the Judges have been in the habit of exercising an authority closely resembling, at all events, that of the legislature; and refers the origin of such authority to the supineness of the legislature. "When rules of law have been found to work injustice, they have been evaded, instead of being repealed.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 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 is, no doubt, attributable thus 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." These observations are equally applicable to the judicial interpretation of statutes, and the judicial departure from precedent, in administering the unwritten law. In ancient times, cases of the first impression i, e. new cases, and all difficult matters, were usually adjourned into parliament, to be resolved and decided there, t says Sir Edward Coke, 'to which end parliaments were often holden-and there be infinite precedents in the rolls of parliament, of difficulties thus resolved.' Nor is this species of uncertainty confined to our own system of jurisprudence. "Even among our enlightened neighbours," says Sir F. Dwarris, speaking

* Dwarr. on stat. p. 792; Butler's Reminis. vol. i.

EE

+ 2 Inst. 418.

of the French, "and at a very recent period, the boundaries of legislation and of judicial interpretation were so vaguely defined, and so imperfectly understood, that the judges were constantly either mistaking the principles, or erring in the application of them ;" and he justifies his assertion by copious citations from the Discours Préliminaire du premier projet de Code Civil, and to which we must refer the reader; as also to the whole of the 14th chapter of Sir Francis Dwarris's work; to the remarks of Mr. Amos, in his edition of Fortescue's De Laudibus, pp. 198-200; and some observations to be found in the Introduction to Mr. Smith's "Mercantile Law." Let us now, however, proceed to look at this matter a little more in detail, in order to illustrate the real difficulties of the subject; at all events in a speculative point of view.

It is a fundamental maxim of the constitution, that the judges are to declare, not to make the law:-jus dicere, et non jus dare. A Court, says Mr. Ram, in the interesting and useful work from which we have already quoted, when it constructs a judgment, forms it of certain materials* which are law. These materials the Court does not make; and so far the judgment is not creative of law; but the judgment or body into which the materials are wrought, IS LAW-and that, though the materials may be ill chosen, or improperly applied. It would therefore seem that in some degree a judgment is creative of law; for, as long as it stands unreversed, the case is law, and may become so fast settled, in course of time, as to require an Act of Parliament in order to root it out of the law of the land. This has been called by

Ram's Science of Legal Judgment, p. 2.

+ For examples of such statutes, see stat. 11 Geo. IV. & 1 Will. IV. c.

Bentham and others "judge-made law;" and it is indeed difficult to deny that the judges do, in such cases, exercise, and have from the earliest times exercised, in some degree, a species of legislative power. "It naturally becomes the subject of inquiry," observes Mr. Spence,* when speaking of the times in and before Edward I., "how the mere decisions of the Curia Regis, especially on such important matters as changing the course of descent, and altering the criminal law, acquired the force of laws, in a country where, in theory, the laws can have their force only from the consent of the King, Lords, and Commons in parliament assembled. Some persons have supposed that these changes must have been effected by Acts of Parliament, the records of which are lost. It is not, however, by any means necessary to resort to this supposition. With the study of the Roman law, the Roman principles of legislating became familiar with the Norman and English language. Consequently it became known that a very great proportion of the law which was then the object of study throughout Europe, was framed by the jurisconsults without any other public sanction than that of tacit consent. It seems therefore very naturally to have been considered, that that could hardly have been deemed an usurpation on the part of justices appointed by the sovereign, who are the fountain of justice, which had been sanctioned on the part of unaccredited jurisconsults, in a republic so jealous of any sort of arbitrary authority, as was that of Rome. Accordingly, as it would

40, on undisposed-of residues of the effects of testators; and 11 Geo. IV. & 1 Will. IV. c. 46, relating to illusory appointments. Vide quoque ante p. 35 (n.); post, p. 433.

* Laws of Modern Europe, pp. 555 et seq.

appear, the justices of the two benches [King's Bench and Common Pleas] were permitted, by their solemn decisions, framed pro re nata, and recorded in their respective courts, not only to declare the law where doubtful, or where no rule before prevailed, but also to accommodate the law to the altered state of society, until, by a succession of precedents, a system of law suited to the exigencies of society had been completely established. And although the principle of stare decisis, which is generally acted upon, has long prevented the Courts of Law from attempting any fundamental alteration in the recorded laws, the process of judicial legislation has not, by any means, ceased, in any of the Courts of Westminster Hall, as about 3818 pages of reports of their decisions annually testify."

Our judges, as we have seen, are sworn to decide according to the known customs and laws of the land-to conform, in other words, to established precedents-not to pronounce a new law, but to maintain, to enunciate, and expound the old one. But suppose an existing decision of one of the Courts, appears to another of them to be based upon insufficient grounds-to have proceeded upon erroneous reasons: even in such cases the judges, in overruling it, declare, not that the previous decision was bad law,'* but that it was not law at all; i. e. was not, as had been erroneously determined, the established law of the land. There are many instances on record, of judges, and of the Court, refusing to overrule an existing decision, at the same time that they stigmatised it as 'a shocking

*This expression, however, is in practice often used by even the ablest judges. In Balme v. Hutton, 9 Bing. 476, for instance, Mr. Justice Patteson says "The decision in Letchmere v. Toplady, 3 Mod. 326, is plainly bad law," i. e. of course, is not law at all.

decision.' (See per Mansfield, C. J., in Morgan v. Surman,* 1 Taunt. 292); "an extraordinary case," (per Eldon, C., in Brummell v. M'Pherson, 14 Ves. 175; per Mansfield, C. J., in Doe v. Bliss, 4 Taunt. 736);† "one that has produced considerable mischief," and "ought not to have been decided as it was" (per Eldon, C., in Ex p. Hooper, ‡ 19 Ves. 479, and see 1 Meriv. 9).—This list might be indefinitely extended. There are, on the other hand, a great number of instances in which judges have thrown aside all such misgiving and timidity, and boldly overruled even the most elaborate decisions of their predecessors. Thus we find even Lord Eldon declaring himself at liberty to overrule a case, "though none can be entitled to more respect," (Aldrich v. Cooper, 8 Ves. 390); or "an authority to which the Courts look with great respect," (Wallwyn v. Lee, 9 Ves. 34); or even a most solemn and deliberate opinion, after great consideration, by Lord Hardwicke !" (Ex p. Young, 2 V. & B. 244). So Lord Ellenborough, C.J., in Kightley v. Birch, 2 Maule & S. 533, overruled the

* On this occasion, when counsel cited a case of Chester v. Chester, 3 P. Williams, 56, the Chief Justice interfered, and observed: "That case was decided on the authority of Strode v. Lady Russell, 2 Vernon, 621. It is a shocking decision, but it has been followed by a hundred others!"

+"Certainly the profession have always wondered at Dumpor's case (4 Coke, 119); but it has been law so many centuries [i. e. since A. D. 1603], that we cannot now reverse it." Per Mansfield, C. J., in Doe v. Bliss. "Though Dumpor's case always struck me as extraordinary," says Lord Eldon, C. (in Brummell v. M'Pherson), "it is the law of the land at this day," i. e. 1807; and it is so now (1845), and has even been carried further, by many subsequent decisions. See 1 Smith's Leading Cases, p. 18 (1st ed.).

"With great deference to Lord Thurlow, his decision, that the deposit of a deed necessarily implied an agreement for a mortgage, has produced considerable mischief; and the case of Russell v. Russell, 1 Bro. C. C. 269, ought not to have been decided as it was. It has, however, been repeatedly followed, and must not now be disturbed." Per Eldon, C., in Ex p. Hooper, 19 Ves. 479.