an act of parliament,-as to holding that the legislature did not mean what it has unequivocally expressed,—it may be observed that if with decided cases, the maxim of law be, (as it incontrovertibly is,) stare decisis, if the courts feel themselves bound by the positive authority of a solemn determination of the same question by former judges; a fortiori ought they to be concluded by the more positive authority of an act of parliament. As to the weight of authority,—the influence justly due to the codes of France, Prussia, Bavaria, the Netherlands, &c., considered as a question of general jurisprudence,-the Code Napoleon, with which we have the opportunity of being the best acquainted, has been a source of endless litigation. The controversies and discussions to which it has given rise are innumerable; the commentaries upon it would already fill a library;-the result of forming a new system, depending upon general rules, which it is left to the judges to interpret and apply.

§ 421. The duty of the judge is to adhere to the legal text, as his sole guide. The legislator also, has his important rights and solemn duties. Where there has been an omission in an act,—or where his intention has been misconceived, and the remedy, in consequence, carried too far, or not given full effect to, he may supply deficiencies, may state his own meaning with greater precision, and guard, for the future, against an application of the remedy more extensive than the intention. But-poor and limited would be his sphere, were it confined to these functions. The higher province and duty of the legislator, is to exercise a surveillance over something more than the mere judicature of the country,over the objects, as well as the administration, of the laws,-over the history of man and the progress of society. Silently but vigilantly it is incumbent upon him to watch the spirit of the age, the growth of feelings,— the development of principles, the changes of every

kind produced by time,-the demand for different laws to protect newly-created species of property, the cases in which judges are found lamenting the want of a law adapted to existing circumstances, the instances in which society is felt to be disturbed by laws utterly unsuitable, the retention of antiquated forms-or the infliction of unprofitable severities.

§ 422. No intelligent man will deny that, with us, the laws have, in a succession of ages, been gradually adapted to the free institutions of the country. Beyond all question, we are extensively indebted to the liberality of the judges, for much of the regulated freedom we at present enjoy. No reflecting man can fail to perceive that there has been the greater facility in making this adaptation, in as far as our laws were unwritten, and therefore, in a certain sense, unascertained. So far, good has unquestionably resulted from our laws being in an unsettled state. From not being more formally prescribed, the laws were less certain-from being less certain, they admitted of being rendered more complete.

§ 423. But, where the law is prescribed and promulgated as the declared will of the supreme power in the state, the case is wholly different. Supposing the written law to require change or modification, it will hardly admit a question whether such alteration is to be effected in a direct manner, by the superior power that originally created the law, or indirectly, by the subordinate authority employed to give it effect, and put it in operation; and if a doubt could exist upon the subject of the comparative competency and fitness of the legislature, and of the judicature of the country, to correct its laws, recourse should in preference be had to the legislature. For the legislature intends to found its regulations upon general principles; courts of law-and still more of equity-refine upon individual cases.

§ 424. The truth is, that the legislature, and not the

courts, should be driven to comply with the necessities of mankind. But this, unfortunately, has not been the practice. When rules of law have been found to work injustice, they have been evaded instead of being repealed. Obsolete or unsuitable laws, instead of being removed from the statute book, have been made to bend to modern usages and feelings. Instead of the legislature framing new provisions, as occasion has required, it has been left to able judges to invade its province, and to arrogate to themselves the lofty privilege of correcting abuses and introducing improvements. The rules are thus left in the breasts of the judges, instead of being put upon a right footing by legislative enactment.

§ 425. Much of the evil just described, is no doubt attributable to the supineness of the legislature,-something to the narrowness of the rules of the common law, --but the principal share, to the want of a proper understanding at what point interpretation ought to end, and legislation should begin.(a) Let the discriminating reader look at Burke s eloquent panegyric upon Lord Mansfield, and then ask himself soberly, whether every improvement the orator ascribes to the judge, however unquestionably meritorious, is not within the province, and ought not to have been effected by the intervention of the legislature? "He sought," it is said, "to effect the amelioration of the law, by making its liberality keep pace with justice and the actual concerns of the world, and not restricting the infinitely diversified conditions of men, and the rules of natural justice, within artificial circumscriptions, but conforming its principles to the growth of our commerce and our empire."

§ 426. As to the assumptions of jurisdiction by the

(a) Butler's Reminis. vol. 1.

court of chancery, it will be more satisfactory to rest upon the admissions of its ornament, as well as apologist, Lord Hardwicke; than to refer to the opinion of Mr. Humphreys, its less ardent admirer, that "its acts have been rather legislative than judicial."(a) "New discoveries and inventions in commerce," says Lord Hardwicke, in a letter to Lord Kames before referred to, “have given birth to new species of contracts; and these have been followed by new contrivances to break and elude them, for which the ancient simplicity of the common law had adapted no remedies; and from this cause, courts of equity, which admit of a greater latitude, have, under the head adjuvandi, vel supplendi juris civilis, been obliged to accommodate the wants of mankind.

§ 427. Another source of the increase of business in the courts of equity has been, the multiplication and extension of trusts. New methods of settling and incumbering landed property have been suggested by the necessities, extravagance, or real occasions of mankind. But what is more than this, new species of property have been introduced, particularly by the establishment of the public funds, and various transferrable stocks, that required to be modified and settled to answer the exigencies of families, to which the rules and methods of conveyancing would not ply or bend. Here the liberality of courts of equity has been forced to step in and lend her aid." Thus it appears, that these objects, rendered necessary by a change of circumstances, have been effected by equitable interference; that is, in truth, by judicial refinement, and not by the seasonable enactment of salutary laws. Instead of the encroachment upon the common law, of which Bacon was apprehensive, it seems that the Prætorian courts(b) overflowed their banks in

(a) Humphrey's Observations on the Laws of Real Property, &c. (6) Maxime omnium interest certitudinis legem, ne curiæ prætoriæ intumes

an opposite direction, and, while sparing of injunctions, openly invaded the province of the legislature. Upon a careful investigation of the course actually pursued, it will be found that, in general, inconvenient laws were set aside, and required changes were effected, by the use of technical fictions and contrivances to evade inconsistent rules; and if there was a lamentable want of politic institution, there has been thought to have been also, at times, some defect of judicial principle. Mr. Butler is decidedly of opinion, as regards the ascertaining and obtaining the proper boundary of interpretation and legislation, that the French courts of justice have shown greater moderation than our own, in the exercise of this important branch of judicature. (a) It certainly is a remarkable fact, that the jurisdiction or methods of proceeding, in all our superior courts, will be discovered, on inquiry, to be founded in usurpation, and sustained by fiction.

cant et exundent in tantum, ut prætextu rigoris legum mitigandi, etiam robur et nervos iis incidant aut laxent, omnia trahendo ad arbitrium.-Aphorism, 43. (a) Reminis. vol. 1.

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