The introductory discourse, so often already quoted, observes upon this head, and very judiciously:a "Il est trop heureux qu'il y ait des recueils, et une tradition suivie d'usages, de maximes, et de regles, pour que l'on soit, en quelque sorte, necessite a juger aujourd'hui, comme on a juge hier, et qu'il n'y ait d'autrss variations dans les jugements publics, que celle qui sont amenees par le progres des lumieres et par la force des circonstances." Again, and more emphatically :6 "Le pouvoir judiciaire, etablie pour appliquer les lois, a besoin d'etre dirige dans cette application par certaines regles. Nous les avons tracees: elles sont telles, que la raison particuliere d'aucun homme ne puisse jamais prevaloir sur la loi, raison publique.'

Lastly, (and no longer mediately, but directly affecting the subject under consideration, viz., the boundaries of legislation and of judicial interpretation,) the same dissertation proceeds: "En effet, la loi statue sur tous : elle considere les hommes en masse, jamais comme particuliers; elle ne doit point se meler des faits individuels, ni des litiges qui divisent les citoyens. S'il en etait autrement, il faudrait journellement faire de nouvelles lois : leur multitude etoufferait leur dignite et nuirait a leur observation. Le jurisconsulte serait sans fonctions, et le legislateur, entraine par les details, ne serait bientot plus que jurisconsulte. Les interets particuliers assiegeraient la puissance legislative; ils la detourneraient, a chaque instant, de l'interet general de societe."

"Il y a une science pour les legislateurs, comme il y en a un pour les magistrats: et l'une ne ressemble pas a l'autre. La science du legislateur consiste a trouver dans chaque matiere les principes les plus favorables au bien commun: la science du magistrat est de mettre ces principes en action,-de les ramifier,de les etendre, par une application sage et raisonee, aux hypotheses privees; d'etudier l'esprit de la loi quand la lettre tue; et de ne pas s'exposer au risque d'etre, tour a tour, esclave et rebelle, et de desobeir par esprit de servitude." c1o

10

It cannot be denied, that these extracts given from the "Dis

a Tit. Prel. p. 23.

b P. 31.

c P. 27.

NOTE 9." It is very fortunate that there are collections, and respected traditions of customs, maxims and rules, that we may in some manner be obliged to judge to day as we judged yesterday; and that there are no other variations in public judgments, than those which are induced by the progress of knowledge and the force of circumstances."

"The judicial power established to apply the laws, needs to be directed in this application by certain rules; we have marked them out; they are such that the private judgment of no man, can ever prevail over the law; over public judg ment."

NOTE 10." In reality, the law decides equally in regard to all; it considers men in the aggregate; never as individuals; it must not meddle with individual

cours Preliminaire du Premier Projet de Code Civil," " contain a very particular and even minute enumeration of the duties of the judge; but it may be thought to be still opon to inquiry, what are the functions of the legislator? The province of the legislator is shadowed out in the following passages, indistinctly indeed,without relief, and in a manner wanting the bold and consistent aspect presented by the other part of the work.

66

"Il faut que le legislateur veille sur la jurisprudence; il peut etre eclaire par elle, et il peut de son cote la corriger; mais il faut qu'il y en ait une."

"C'est a l'experience a combler successivement les vides que nous laissons.'

"Les codes des peuples se font avec le temps; mais a proprement parler, on ne les fait pas." a "

With us it has been shown to be the duty of the judges, where a case occurs which was not foreseen by the legislature, to declare it casus omissus; or where the intention, if entertained, is not expressed, to say of the legislature, quod voluit, non dixit; or where the case, though within the mischief, is not clearly within the meaning; or where the words fall short of the intent, or go beyond it;-in every such case it is held the duty of the judge, in a land jealous of its liberties, to give effect to the expressed sense, or words, of the law, in the order in which they are found in the act and according to their fair and ordinary import and understanding. As to deciding contrary to the plain words of an act of parliament,-as to holding that the legislature did not mean what it has

acts, nor with disputes that divide citizens. If it were otherwise, it would daily be necessary to make new laws; their number would destroy their influence, and interfere with their observance. The lawyer would be without functions, and the legislator, involved in details, would soon be nothing more than the lawyer. Private interests would besiege legislative power; they would incessantly turn it aside from the general interest of society."

"There is a science for legislators, as there is one for magistrates, and the one does not resemble the other. The science of the legislator, consists in finding in each case the principles most favorable for the common welfare; the science of the magistrate, is to put these principles in action,-to ramify them, -to extend them by a wise and thoughtful application to private assumptions; to study the spirit of the law when the letter destroys, and not to expose himself to the risk of being by turns slave and rebel; and to disobey in the spirit of servitude."

a P. 27.

NOTE 11.-"Introducting Discourse on the First Division of the Civil Code." NOTE 12.-"The legislator must watch over jurisprudence; he can be enlightened by it, and he can on his part correct it; but there must be a jurisprudence. It devolves on experience successfully to fill the voids that it leaves. The codes of nations are said to be formed by time; but properly speaking they are not formed."

anequivocally 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.

The duty of the judge is to adhere to the legal text, and not to travel out of what that expressly or impliedly contains. In the interpretation of the letter, if difficulties occur, he is to look to the spirit and object, and to be guided by the rules and the examples, which it has been a principal object of this work to collect, to compare, and to expound.

The legislator also, has his solemn duties. He is called upon, no doubt, to watch over both the jurisprudence and the judicature of his country; to detect the deficiencies of the one, and to correct the excesses of the other. He is also to note his own miscalculations and failures, and to fill up the voids he has before left, as said by the French juris-consults. 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 desiderata, 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 is it 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 instances in which society is found lamenting the want of a law adapted to existing circumstances,-the cases in which it is felt to be disturbed by laws utterly unsuitable,—the retention of antiquated forms-or the infliction of unprofitable severities.

These powers and duties, as explained by the English and French theories, are under a system where the legislative power is little short of absolute sovereign power. There, the powers of a judiciary, are truly, in degree, under the surveillance of the legislator. Under the American theory, the powers of the legis lature, are limited by written constitutions, beyond the bound of which they may not pass, and it is conferred upon the courts of justice to declare all legislation void, which is in excess of the

fundamental law. The complete independence of the courts of justice, is the essential and peculiar feature in our system. The limitations of legislative power, can be preserved in no other way than through the medium of the courts of justice. It is, and must be, the duty to declare void, all acts of the legislature which are contrary to the manifest tenor of the constitution. Without this, all the reservations of particular rights and privileges would amount to nothing.

It has been charged, by those whose minds are imbued with the idea of the perfection of the English and French systems of government, that this power of the courts in our system implies a superiority of the judiciary to the legislative power; that the power to declare an act void, must necessarily be superior to the power whose acts are declared void. Whatever may be the logic of this proposition, practically, there is no superiority of one coordinate department of the government over another.

We have shown in a subsequent chapter, a that the sovereign power of our governments, is distributed into three equal and co-ordinate departments of power; each distinct from, and independent of the other, each having power to act, only, within prescribed limits; and each, being sovereign while exercising its own powers within its proper sphere, but each limited in its power, by the constitution. It follows from this, that if the legislature pass an act contrary to the constitution, such act is void. It would be an imbecile and useless government, that did not possess the power to control its several departments in the exercise of a conferred and limited power. "To deny these propositions, would be to affirm, that the deputy is greater than his principal; and the servant above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do, not only what their powers do not authorize, but what they forbid." b

By no provision of the constitution, are the legislature the constitutional judges of their own powers; they cannot set up their will, against the guaranteed rights of their constituents. It is far more reasonable to suppose, that the judicial power was intended to stand between the people and the legislature, in order to keep a Chap. 10.

b Federalist Letter, 78.

the latter within the bounds assigned to them by the constitution. The interpretation of the laws, is the peculiar province of the courts. The constitution is, in fact, and must be, regarded by judges, as fundamental law. It therefore belongs to them, to ascertain its meaning, as well as of any particular act proceeding from a legislative body. If there should happen to be an irreconcilable variance between the constitution, and the statute, that which has the superior obligation and validity, ought to be preferred to the other; the intention of the people, to the intention of their agents. a

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than by that which is not fundamental.

This exercise of judicial discretion in determining between two contradictory laws, is not an uncommon occurrence. Take the case of two statutes existing at one time, clashing in whole or ir part with each other, and neither of them containing any repeal ing clause or expression. In such case, it is the conceded province of the court to determine their meaning and operation. So far as they can, by any fair construction be reconciled to each other, reason and law conspire to dictate that this should be done; when that is impracticable, it becomes a matter of necessity, to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity, is, that the last in order of time, shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law.

It can be of no weight to say, that the courts, upon a pretense of repugnancy, may substitute their own pleasure, for the consti tutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or, it might as well as

a Id.