is at least a certain rule. The act of the judicial legislature is invariably the precursor of uncertainty and confusion. Apply to it a test, which may be set down as unerring, never failing soon to discover the true metal from the base counterfeit: its effect upon litigation. A decision in conformity to established precedents is the mother of repose on that subject; but one that departs from them throws the professional mind at sea without chart or compass. The cautious counsellor will be compelled to say to his client that he cannot advise. One cause is the general uncertainty to which it leads. Men will persuade themselves easily, when it is their interest to be persuaded, that if one well-established rule has been overthrown, another, believed to be quite as wrong and perhaps not so well fortified by time and subsequent cases, may share the same fate. Shall counsel risk advising his client not to prosecute his claim or defence, when another bolder than he, may moot the point and conduct another cause resting upon the same question to a successful termination? The very foundations of confidence and security are shaken. The law becomes a lottery, in which every man feels disposed to try his chance. Another cause of this uncertainty is more particular. A court scarcely ever makes an open and direct overthrow of a deeply founded rule at one stroke. It requires repeated blows. It can be seen to be in danger, but not whether it is finally to fall. Hence it frequently happens[Pg xlviii] that there is a sliding scale of cases; and when the final overthrow comes, it is very difficult to determine, whether any and which steps of the process remain. Shortly after the decision in Post v. Avery, the case of Fraley v. Bispham was tried in one of the inferior courts; in which the Judge, thinking that Post v. Avery, however the intention may have been disclaimed, did in fact overrule Steele v. The Phœnix, rejected as incompetent one of the nominal plaintiffs, a retiring partner, who upon dissolution had sold out for a price bona fide paid, all his interest in the firm to his copartners, who continued the business. A motion was made for a new trial, and before the rule came on to be heard, Patterson v. Reed (7 W. & S. 144) had appeared, and the court, on the authority of that case, which decided that an assignment must be colorable and made for the purpose of rendering the assignor a witness in order to exclude him, ordered a new trial. Before the case was again called for trial, the first volume of Barr's Reports had been published, in which the Supreme Court said: "The time is come, when the doctrine of Steele v. The Phœnix Ins. Co. must be exploded altogether. The essential interests of justice demand that the decision in that case be no longer a precedent for anything whatever." (McClelland v. Mahon, 1 Barr, 364.) And the Judge before whom the cause was then tried had no other course left, but again to reject the witness, the very same thing on account of which a new trial had been ordered.

The case of Post v. Avery is a most striking illustration of judicial legislation and its mischievous results. It is usual to hear it excused on account of the unequal and unjust operation of the rule reversed, by which one party was heard but not the other, and the temptation it held out for the manufacture of false claims, to be supported by perjury. But it is to lose sight of the real question involved to raise such an issue: for, like the execution of a notorious culprit by the expeditious process of a mob and a lamp-post, instead of the formalities and delays of law and courts, it may be a very good thing for the community to have rid itself of the offender, but the way by which it was accomplished was a heavy blow at the very root of the tree of public and private security.

There is another decision of the Supreme Court of Pennsylvania, not so bold and avowed an act of judicial legislation as that just mentioned, but not less transparent, which may be cited as strongly illustrating the same consequences of uncertainty and litigation flowing from a disregard of the principle adverted to. From the year 1794, there had existed in Pennsylvania an act of Assembly limiting the lien of the debts of a decedent on his real estate, at first to seven, afterwards to five years. No question ever arose before the court in regard to it. Lien was considered to mean lien and not obligation: lands to be subject to execution for all debts of the owner prosecuted to judgment, and of course not barred by the Statute of Limitations; and the limitation of the lien merely intended for the protection of purchasers from the heirs or devisees or their lien creditors. Such was recognized to be the true meaning of the law in 1795 (Hannum v. Spear, 1 Yeats, 566), and so distinctly ruled in 1830 (Bruch v. Lantz, 2 Rawle, 392); yet on grounds palpably only relevant to what, in the opinion of the court, the law ought to be, it was held in 1832, in Kerper v. Hoch (1 Watts, 9), that the period named was a limitation not of the lien but of the debt itself, and available in favor of heirs and devisees, volunteers under the debtor and succeeding to his rights cum onere. As we have seen, but two cases are to be produced of litigation arising out of this law carried to the highest tribunal from 1794 to 1832. More than twenty cases are to be found reported since, in which that court has been called upon to draw distinctions and settle the precise extent of their own law. Thus a little complicated system has grown up on this construction of the act. A volume, indeed, might be written on Kerper v. Hoch and its satellites, when if the act had been let alone to speak for itself, and the prior decision followed, it would have been a simple and intelligible rule of action, until the legislature saw fit to alter it. It seems that this consideration pressed upon at least one of the judges, who joined in that decision; for in a subsequent case, when Kerper v. Hoch was cited, that Judge, with characteristic candor, interrupted the counsel with the remark: "We will abide by the rule, but it was erroneously decided." (Hocker's Appeal, 4 Barr, 498.)

This, then, is the legitimate province of Jurisprudence, Stare super antiquas vias, to maintain the ancient landmarks, to respect authority, to guard the integrity of the law as a science, that it may be a certain rule of decision, and promote that security of life, liberty, and property, which, as we have seen, is the great end of human society and government. Thus industry will receive its best encouragement; thus enterprise will be most surely stimulated; thus constant additions to capital by savings will be promoted; thus the living will be content in the feeling that their earnings are safely invested; and the dying be consoled with the reflection that the widow and orphan are left under the care and protection of a government, which administers impartial justice according to established laws.

With jurisprudence, lawyers have the most, nay all, to do. The opinion of the Bar will make itself heard and respected on the Bench. With sound views, their influence for good in this respect may well be said to be incalculable. It is indeed the noblest faculty of the profession to counsel the ignorant, defend the weak and oppressed, and to stand forth on all occasions as the bulwark of private rights against the assaults of power, even under the guise of law; but it has still other functions. It is its office to diffuse sound principles among the people, that they may intelligently exercise the