uncertain, use, in the ascertainment of legal rights." Mr. Justice Cresswell said, "I presume that your lordships did not intend to ask the opinion of the Judges upon any general motion of public policy, or, in other words, whether they think the interests of the public could be better advanced by tolerating or by refusing to tolerate such provisoes; but whether they are in contravention of any established law, or in contravention of the spirit, although not against the letter, of any law, in which case they may be said to be against the policy of the law." "I presume we are not asked our opinions as to public policy, but as to the law." Mr. Baron Alderson said,—“ If by public policy is meant the object and policy of a particular law, then I readily accept it as a rule

but here it seems to be contended, that an act possible and legal, but, in the opinion of sensible men, not expedient to be done, is, for that reason, to be void, as contrary to public policy. Now, I think that this, which is really what is here meant, would altogether destroy the sound and true distinction between judicial and legislative functions, and I pray your lordships to pause before you establish such a precedent as that." "It is notorious that this would introduce an ever-shifting principle of decision, and that no case hereafter could be ever determined upon precedents, if it was to be adopted." "It is impossible to foresee where such a principle will stop. I shall not venture to take this therefore for my guide, nor go into political theories or instances from the history of our own country to decide on the validity of the Earl of Bridgewater's will. My duty is, as a Judge, to be governed by fixed rules and former precedents." And Mr. Baron Parke said:"It is argued that the provisoes are illegal because they are against public policy. This is a vague and unsatisfactory term, and calculated to lead to uncertainty and error when applied to the decision of legal questions." "It is the province of the Judge to expound the law only,the written from the statutes, the unwritten or Common Law from the decisions of our predecessors and of our existing Courts, from text-writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference,-not to speculate upon what is

the best, in his opinion, for the advantage of the community. Some of these decisions may have, no doubt, been founded upon the prevailing and just opinions of the public good.. they have become a part of the recognised law, and we are therefore bound by them; but we are not thereby authorised to establish as law everything which we may think for the public good, and prohibit everything which we may think otherwise."

The opinions of Judges of such eminence claim the highest deference and respect upon whatever question they may be given; but the circumstance that the House of Lords arrived at a conclusion opposite to that of the learned Judges who delivered the observations above quoted, requires those who wish to understand this important decision, to examine the difficulty which those high dignitaries of the law experienced in acceding to the view of public policy which was contended for on the part of the appellant.

Before entertaining, then, the question whether the provisions of Lord Bridgewater's will were in fact contrary to public policy, let us see how far the Judges were at liberty to ground their decision upon considerations of that nature, in the absence of any express principle or authority showing them to be void.

To determine this question of the extent of judicial discretion, we must consider both the nature of judicial functions in the abstract, and the relation in which our own Judges stand towards our own laws in particular.

Now, every one must concede with Bacon', that "Judges ought to remember that their office is jus dicere and not jus dare; to interpret law, and not to make law, or give law." And, though it is true, salus populi suprema lex, we must agree with Selden, when he reminds us that that famous conclusion of the Roman twelve tables is an admonition intended rather for legislators than for Judges. "There is not anything in the world more abused," says Selden", "than this sentence, — salus populi suprema lex esto; for we apply it as if we ought to forsake the known law, when it may be 3 Table Talk, "People."

Essay of Judicature."

most for the advantage of the people, when it means no such thing; for it is, in all the laws you make, have a special eye to the good of the people." We acknowledge, then, that the Courts are not at liberty to proceed on their own views of what is right, unless consistent with the law; and that every encroachment of the Judge upon the boundary which separates legislative from judicial functions, even when justified by an occasional or special necessity, must be regarded as a public evil, inasmuch as it sets a dangerous example of insubordination, and tends to disturb the order of the constitution. In reference especially to the ordinances of the Legislature, the Judges exercise a sound discretion when they refuse to rectify an alleged impropriety in a statute upon the basis of the motive which led to its being passed; when they decline to give effect to an intention in the statute, which it does not express, or to speculate upon the probable as against the expressed intention, or to supply provisions for cases not included, or to make exceptions for a rule which by the statute is clear and unqualified,—or, lastly, to balance theoretical notions of common right and reason against the power of the Legislature's decree.

But are the Judges mere expounders of precedents, and critics of pleadings? dispensers of forms and arbiters of costs? Are they to examine only the records upon their rolls and in their year-books? Or are they not rather to take notice that laws, as Demosthenes said, are "the morals of a State"-that, as Cicero declared, they should be " explained according to the public benefit,” and that, "unless they be in order to that end," as Bacon said, "they are but things captious, and oracles not well inspired"? Are they at liberty to forget that there is "left to them, as a principal part of their office, a wise use and application of laws"? Is it less true now than of old, that boni judicis est ampliare jurisdictionem? Is their function limited by any other than the rule of Justinian, ne aliter judicet quam legibus aut constitutionibus aut moribus proditum est?

It is, we apprehend, the attribute of a Judge to conceive, and therefore necessarily it is his duty to give effect to, the spirit of the whole body of laws which he is appointed to

administer. An undiscriminating adherence to letter and precedent in the law, so far from deserving honour as a scrupulous observance of the line of duty prescribed to Judges, may be highly censurable as endangering the substance for the sake of the form. Non licet judici de legibus judicare sed secundum ipsas, while it denies the right to invent law, requires that the spirit of what is law, should be discerned. Is it not of the essence of a wholesome system of laws that, in administering them, those relations should be observed which they have " to each other, to their origin, to the intention of the legislator, and to the order of things on which they are established," including in this the "nature and principle of the government?" Nor is all this less true than the proposition, which equally bears upon our present question, that it is contrary to the very nature of judicial functions that the Judge should treat any case as unprovided for by the law. The Judge is entitled to decide that by analogy which he does not find to be expressly ruled; and this principle our neighbours in France have carried so far as to provide a punishment for those judges who, upon the ground of the silence or insufficiency of the law, refuse to come to a decision upon a case. Quod legibus omissum est, non omittitur religione

iudicantium.

1

We find it objected, however, as a difficulty, in the course of the argument of the Bridgewater case, that the judges have no peculiar aids to determine what is publicly injurious, and on that account liable to be held illegal. But, in so far as they have authority to determine what is the spirit of the laws under which we live, they have an advantage which does not belong to any private speculations upon that point, or upon the public good. What, however, is required by these eminent persons for the discharge of this high function but reason and experience?-that reason which is, in a greater or less degree, the source and material of all laws and their continuing expansion; not vague, fluctuating or fanciful reason, but that reason, which consists with the analogy and spirit and settled reason of the laws: and that experience

! Montesq. Sp. Laws, lib. i. c. 3.

which Bacon denominates to be the test of all truth, when he says "truth is rightly named the daughter of time, not of authority." And when to this is added what was said by a late Judge', that "it is the duty of the Judge in every country to take notice of public matters which affect the Government of the country," the materials surely are ample which the Judges have at hand, in public experience, for coming to conclusions upon questions of legal policy. In this view, we may observe in passing, the peers were doubtless justified when, in the Bridgewater case, they referred, as matter of experience, to the political corruption among ministers and peers, by which particular periods of our national history are disgraced or disfigured, and thence drew inferences as to what public policy required in the case before them. Such, then, being the rightful functions of Judges, we are not surprised to find an old sage expressing his conviction upon this point in the smart saying, "There could be no mischief in the Commonwealth without a Judge."2

If from these considerations of the nature of judicial powers generally, we pass on to reflect upon the institutions of our own law in particular, and the position which the Judges occupy in administering it, our astonishment will certainly not be lessened at the exceptions which, in the Bridgewater case, were taken, by some of our learned Judges, to the rule of public policy as a principle of judicial decision. What is the entire history of our Common Law but a constant and gradual development of theories and principles, which, until the occasion arose for their manifestation, were to be found only in the "breasts of the Judges ?" Can any system of jurisprudence be imagined more completely and essentially one of judicial conception and expansion than our own? there any body of laws more elaborately armed with rules of public policy derived from purely judicial authority than our own? Does not the whole course of the Common Law, from the rule in Shelley's case downwards, exhibit one continual struggle of the expounders of our law to exclude mischievous contrivances, and promote wholesome purposes, by rules which

1 2 Sim. 221.

2 Selden, Tab. Talk, "Judge."