general grounds, by Savigny, in his system of modern Roman law. (5) The doctrine of the French law, as expounded by Portalis, (*) in his explanation of the preliminary title of the Code Civil, is substantially the same, but it leaves a wide discretion to the judge in cases which have not been provided for by the legislator, or in which the law is doubtful.

The principles which ought to be adopted for the application of the existing laws to unforeseen cases, and the nature and limits of the discretion to be vested in the executive officers for disposing of such questions, cannot be here discussed. Our principal object is to indicate the importance of adverting to the effects of a law which its authors did not anticipate, and of placing them in a separate class. We may, however, remark that, in proportion as the rules of interpretation for written law are strict, the convenience of unwritten law is likely to be felt. The letter of the written law is inflexible, and legislation often follows changes in manners, and the newly-created wants of society, with unequal steps. In unwritten law, on the other hand, the judge is not bound down to any form of words; he looks to the spirit of the rule, not to its letter; he can mould it according to the new circumstances which present themselves; and he can adapt it by analogy, and by an extension, in pari materia, to the adjacent cases. It is in this exemption from the rules of interpretation, and in its comparative flexibility, and capacity of adaptation to unforeseen cases, that the main advantage of unwritten law consists. (55)

Whenever the application of existing rules of law to unfore

(Ueber Gesetz, &c. p. 22) has likewise collected some passages of Greek writers, in which a multitude of laws is treated as the mark of a bad political and social state.

(53) Vol. i. P. 322.

(54) See Discours du Code Civil, p. 29, ed. 1838: L'office des lois est de statuer sur les cas qui arrivent le plus frequemment. Les accidents, les cas fortuits, les cas extraordinaires, ne sauraient être la matière d'une loi. Dans les choses même qui méritent de fixer la sollicitude du législateur, il est impossible de tout fixer par des règles précises. C'est une sage prévoyance de penser qu'on ne peut tout prévoir.'

(55) See Dwarris, ib. 791-7.

seen cases is in question, either by an interpretation of written or by an extension of unwritten law, the cases under consideration have actually arisen in practice, and demand a settlement by the judicial or administrative authorities. The bearing of the law upon them is, therefore, distinctly perceived, and is the groundwork of the attempt to adjudicate upon, or otherwise deal with them. There are, however, many remote effects of existing laws, which escape the general observation, and, if perceived at all, are noted only by a few attentive and sagacious persons, or by persons having peculiar opportunities of knowledge. To this class particularly belong the negative effects, which consist merely in averting, repressing, or diminishing some evil. If an operation of this sort be indirect and unintended, it is likely to remain unperceived. Hence we may enjoy the benefit unconsciously during the existence of the law, and not discover its good effects until it has been repealed. A nation may thus sometimes find itself in the same position as the people of Camarina, who were warned by an oracle not to alter a marsh near their walls. Unmindful of this admonition they drained the marsh, whereupon an enemy marched over the firm ground and took the city.(5)

The unforeseen effects of new legislation, or of any other political agency, whether positive or negative, may often, as has been above remarked, (5) be detected by the Method of Residues. On examining any complex state of things, the chief part of the facts may admit of a simple explanation; but some residuary phenomenon may present itself which remains unexplained. Now a Now a cause for this effect may be found in some antecedent change, which was not expected to produce it, but which, upon examination, turns out to be the true origin of the questionable fact.

The distinction between the intended effects of a law, either primary or incidental, and its unforeseen effects, is important

(56) See Heyne on Æn. iii. 700; Zenob. Prov. v. 18. The story is not historical.

(57) Ch. ix. § 10.

chiefly with respect to the authors of the law, and to the policy with which it was enacted. When the law is in force, it must be judged by the aggregate of its positive effects, whether designed or undesigned, foreseen or unforeseen. The effects of a law are in general mixed. The best laws produce some bad effects, and the worst laws are rarely unaccompanied with some good influence. But if the bad effects of a law preponderate-if we can with truth apply to it the verse of Martial,

Sunt bona, sunt quædam mediocria, sunt mala plura,

then, whatever may have been the policy which dictated it, and the expectations formed of its operation, it ought, after a fair trial, to be repealed. For example: if a law imposing an excise duty is found to necessitate such an amount of restraint upon the operations of a trade, as produces more evil than the revenue which the duty yields to the state does good, then the duty ought to be abolished.

The importance of adverting to the effects of a law which can be foreseen and calculated on, is most apparent in reference to the question of retrospective, or ex post facto, legislation. When a law is in existence, expectations are founded upon its probable stability, and voluntary arrangements are made which rest upon this hypothesis. Thus, when the law disposes in a certain manner of the effects of an intestate, a person may abstain from making a will, in the expectation that his property will, after his death, be distributed according to the legal appropriation. Again, all contracts between private parties with respect to marriage, provision for children, settlement of property, buying and selling, demising, lending, and all other economical and pecuniary matters, are founded upon the rules and provisions of the law, and presuppose its continuance. They all assume certain effects of the existing law, upon the supposed occurrence of which effects their dispositions and covenants are based. It is anticipated that the future effects of an existing law will be similar to its past effects, and that the law will continue to exist, or, if altered, will be altered in such a manner as to preserve all

inchoate rights which have been created, and all arrangements which have been made in the expectation of its continuance. Existing laws are, in fact, a prospective announcement of the intentions of the sovereign power, and their operation, in determining arrangements for the future, is similar to the effect of a notice given by a private person of his intention on any subject-as that he will visit a certain place on a certain day, that he will require certain accommodation, that he will do certain acts, and the like. When notice of this kind is given, people adapt their arrangements to the expected event, and prepare themselves for its occurrence. So, notice may be given of the time when a sale will take place, when a public meeting will be held, &c. By enacting a general law, the sovereign power gives previous notice of what its conduct will be upon a given contingency, instead of deciding the cases arbitrarily when they have arisen.(58)

Accordingly, when a law is altered or repealed, it is usual to give to the new enactment a merely prospective operation, and not to allow it to exercise any retrospective influence. (59) It is held that the legislature has, as it were, pledged its faith to the nation, that laws of this nature shall not be altered without due notice, and that the legal validity of existing contracts and dispositions of property shall be maintained. Vested rights, as they are called—that is, private rights which have grown up under the protection of an existing law, are in general respected; the operation of the law is applied only to cases in which the voluntary arrangements of parties are made after the passing of the law, and, therefore, at a time when they are able to calculate upon its effects, and govern their conduct accordingly.

(58) Notice in law is, in general, information of a fact which has already happened, as notice of a prior incumbrance, of a dishonoured bill, &c.

(59) Retro-active legislation has been condemned from a very early period, and it is universally agreed that the presumption is always against such a course. Demosthenes, in his oration against Timocrates, uses language which shows that the principle was admitted by his hearers (p. 724, 747). Bacon has the following aphorism:- Est et aliud genus

In certain critical states of society, the paramount interest of the public requires that this maxim should be violated; an example of which is afforded by the Seisachtheia of Solon.(") Other instances, in which existing contracts have been set aside by legislation with good effect, may have occurred in later times, but they are very rare; and scarcely any political maxim admits of fewer exceptions than that which asserts the inexpediency of ex post facto legislation. Where the effects of such legislation are on a small scale, they may be cured by compensation, which is the proper and received mode of proceeding in cases of expropriation for public purposes, such as roads, railways, or fortifications.

supplementi casuum omissorum, cum lex legem supervenit, atque simul casus omissos trahit. Id fit in legibus sive statutis quæ retrospiciunt, ut vulgo loquuntur; cujus generis leges raro, et magnâ cum cautione sunt adhibendæ. Neque enim placet Janus in legibus.'-De Augm. viii. aph. 47.

Portalis, on art. 2 of the preliminary title of the Code Civil, says: C'est un principe général que les lois n'ont point d'effet rétro-actif.' Discours du Code Civil, p. 27.

(60) See Grote's Hist. of Greece, vol. iii. p. 138.

END OF VOL. I.