Page:Harvard Law Review Volume 32.djvu/401

365 MILITARY LAW — A STUDY IN COMPARATIVE LAW 365 tant court-martial, this is not done as a matter of fact. The opinions of the Judge- Advocate- General are preserved but they are not published. They are available in the form of a digest in which a summary of abstract rules of law is generally given with such lack of detailed statement of fact, in many cases, as to prevent the application of the abstract principle from being discernible readily. This digest is the collection of responsa of military law and as such it has been commented upon by the different text-writers on military law. These opinions as a rule are treated as finalities except where modified subsequently by statute. IV At Anglo-American law it has become settled doctrine that the court has power only to decide each case as it is submitted for adjudication. Judicial power is distinguished from legislative power and the declaration of law for the particular case is re- garded as judicial power which can be exercised by the court. While the declaration of law in advance for similar cases which may arise in the future, is now regarded as legislative power which is outside of the jurisdiction of the court, at an earlier period it once seemed as if a different view of this matter might be taken. The year books occasionally show us judges who feel free to make ofl&cial declarations of law from the bench as well as to draft stat- utes. In the case of doubtful or disputed points, conferences of judges were occasionally held and resolutions were adopted which were intended not merely to decide the specific case but to lay down broad and comprehensive principles by which analogous cases could be decided. Coke seems to have felt that as a common- law judge he had authority to take part in making such resolu- tions. When Coke's rival and enemy. Bacon was made Lord Keeper of the Great Seal of England and took his place in Chan- cery, he made an address to the bar in which he avowedly com- pared himself to a Roman praetor as the officer who had the great- est affinity to the jurisdiction of the Chancellor; and in which he announced, like the praetor, how he would use his jurisdiction.^ 2* 2 Works of Francis Bacon, 1844 ed., 471, et seq. 1827 ed., Vol. 7, 244 et seq. See also Kerly, Historical Sketch of the Equitable Jurisdiction of Chancery, 102 et seq. U. M. Rose, "Coke and Bacon: The Conservative Lawyer, and the Law