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happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise will, instead of judgment, the consequence would be equally the substitution of their pleasure, to that of the legislative body. The objection to the exercise of this power by the courts of justice upon this ground, if it would prove anything, would prove that there ought to be no judges, distinct from that body, or in other words, that the legislative body ought to possess also, judicial powers. a The powers, legislative and judicial, in the
same hands, with no check or control other than their own will, might be pronounced the very best definition of tyrrany.
It is now comparatively rare that rules of universal and constant operation are laid down by statutes. In former times, a simple, general rule was enounced, with a corresponding simplicity of expression, and the praise of the ancient lawgiver was considered to be, in the words of Lord Coke, that "prudent antiquity included much matter in few words." b But such statute law could not maintain an unbending character. Its harshness would have been intolerable, if indiscriminating, general rules could not have been mitigated by judicial construction, in cases where they produced an unintended injury or oppression. In those times, the unquestionable use and advantage of interpretative legislation was, that it modified and adapted the law to special cases, and the sages of the law are accordingly and justly commended for the improvements they by these means effected in the institutions of the country.
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.
Again, no reflecting man can fail to perceive that there has been the greater facility in making this adaptation, in so far as our laws were unwritten, or part-written, and therefore, in a certain sense, unascertained. So far, good has unquestionably resulted from our laws being in an unsettled state, and propounded in generalities. From not being more formally prescribed, the laws were less certain-from being less certain, they admitted of being rendered nore complete.
It is the character of modern legislation, that it applies itself to particular cases, and classes of cases, and endeavors to adjust the law to their varieties, and to determine specifically every kind of right and every corresponding obligation. It is not easy to esti
b 2 Inst. 306-id. 401.
mate the practical importance of specific legislation, in adjusting our law to the various interests of the community. But one of its effects has certainly been to put an end to verbal generalities in propounding the law, though the draftsman may not invariably succeed in his endeavor to supply its place with aptness and certainty of expression; and often indulges in too much verbiage. But abundans cautela non nocet, and to this period belongs the different praise of that wisdom "which aims to make things as plain, and to leave as little to construction as may be." a
Where the law was only part-written, it was left to the judges to adjust the law to special cases and to supply every deficiency by construction.
But, where the law is specifically 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 usually founds its regulations upon general principles; Courts of law-and of equityfrequently refine upon individual cases.
Their different functions have been thus illustrated. The lawgiver commands that housebreakers shall be hanged; the judge orders that for a specific burglary, a particular thief shall be hanged. The legislator determines a class and description of acts; and commands, with a like generality, that punishment shall follow. The judge orders a specific punishment, the consequence of a specific offence.
1st. Laws are made directly by statute, in the properly legislative way.
2ndly. Laws are made judicially, in the way of improper legislation.
Of this latter class, admitted and unexceptionable instances are -1. Laws fashioned by judicial decisions upon pre-existing customs; "jus moribus constitutum." 2. Laws founded upon authority of learned writers and ancient sages of the law; "jus prudentibus compositum." 3. Laws drawn from the natural law, founded on the law of God. 4. Laws of foreign original, fashioned on positive international law; the "jus receptum.
The positive law made judicially, is equally binding with the law made in the properly legislative manner. Considered as moral rules turned into positive laws, customary laws are binding as
a 2 Inst. 375.
established by the state: established by the state directly, when the customs are promulged in its statutes; established by the state circuitously, when the customs are adopted by its tribunals. a
A portion of the sovereign power is tacitly delegated to the judge; though a subject, the judge is, in strictness, merely a minister. Since the state may reverse the rules which he makes, and yet permits him to enforce them by the power of the political community, its sovereign will "that his rules shall obtain as law," is clearly evinced by its conduct, though not by its express declaration. This is the explanation given, b why subject judges, who are properly ministers and administrators of the law, have commonly shared with the sovereigns in the business of making it.
But in a great variety of cases, as will be hereafter shown, the invasion by the judges, of the province of the legislature, has been quite unjustifiable. Yet, if in modern times, complaints be justly made of alterations in the laws effected by equitable interference, or by judicial usurpation, it is ascribable to the remisness of the legislature, which should long since have provided for a revision of our statute law.
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 occasions 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.
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. c 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 unquestionable 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.'
a Austin on Jurisprudence, 29. b Id. ad fin. c Butler's Reminis. vol. 1
It is not in the examination and solution of constitutional questions alone, that great abilities, and a thorough mastery of the principles of government, are required of American legislators and American jurists. The ordinary course of legislation, in the state and national councils, is full of intricate and perplexing duties, and laborious research, if intelligently and appropriately performed. It is not every man, that can make an animated address at a popular meeting or run through the common places of party declamation at a political caucus with fluent elocution and steady pressure, who is qualified for a seat in the national, or in the state legislatures, or, upon the judicial bench. a
All history and experience have taught us, that the great mass of human calamities in our own period of experiment in government, as in all ages, has been the result of bad government; of a capricious exercise of power; a fluctuating public policy; or a degrading tyranny in which a portion of its subjects have been held in unequal bondage, through the means of a desolating ambition. The besetting delusion in a popular form of government, especially when controlled by men unlearned, and unskilled in the science of government, is, that its administration is a matter of great simplicity; that its principles are clear, and that they, its agents, are hardly liable to mistakes, and they easy satisfy themselves, that it is a satisfactory method of winning popular favor by appeals which flatter popular prejudices; and that designs, which they are thus enabled to accomplish by being sustained by such evidence of approbation of their agency, is regarded as satisfactory evidence also of capacity.
But in truth, an intelligent and unprejudiced mind, ripe with human experience, may safely assert, that just in proportion as a government is free, and extended over a vast and populous domain of diversified habits, manners, institutions, climates, employments, characters, passions, and even prejudices and propensities, so in proportion the administration must be complicated. Simplicity, belongs to governments only, where one will governs all; where one mind directs, and all others obey; where few arrangements are required, because no checks to power are allowed; where law is not a science, but a mandate to be followed, and not
a Story on the Science of Government.
to be discussed; where it is not a rule for permanent action, but a capricious and arbitrary dictate of the hour. a
To fit a man for a legislator to enact laws in a sound system of free government, we may adopt the opinion of Lord Brougham. "It requires that he should read and inform himself upon political subjects; else they are the prey of every quack, of every imposter, every agitator, who may practice his trade in the country. If he do not read, if he does not learn, if he does not digest by discussion and reflection what he has read and learned; if he does not qualify himself to form opinions for himself, other men will form opinions for him; not according to the truth, and the interests of the people, but according to their own individual and selfish interest, which may, and most probably will be contrary to that of the people at large. The best security for a government like ours, (a free government,) and generally for the public peace, and public morals, is, that the whole community should be well informed upon its political as well as its other interests."
The principles of the constitution under which we live, and under which our legislators are called to act in the enactment of laws; the principles upon which the republics are founded; by which they are sustained, and by which they must be saved; the principles of public policy by which the national prosperity is secured, and national ruin averted; are not party credit, or party dogma's; but are principles inherent in, or fundamental to every citizen of the government. There are no secular blessings in human life of more inestimable value, than those derived from good government, where honest labor has its just reward, property its perfect security; domestic life undisturbed tranquility; and every citizen, without regard to rank, color or condition, an equal right to the enjoyment of liberty. These are rights secured by the constitution and made perfect by legislation.
As to the assumptions of jurisdiction by the 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." b
Whatever may be regarded as the distinct and certain origin of • Id.
6 Humphrey's Observations on the Laws of Real Property, &c.