To this extent interpretation was unavoidable; for without it there could be no comprehension of the law and therefore no application of it. But its extension to other cases was strictly forbidden, except where the delegated authority from the sovereign to make law could be implied. If we are to hold still to their theory that all law was of necessity created by the sovereign, it is difficult to see why this doctrine was not logical, or to show any right of the inferior magistrate to make law by interpretation, or in any other method. The only just ground upon which the formation of new law by the judge can be put, is to regard it as strictly a scientific process, by which law already existing in principle, although not distinctly stated in terms, is deduced in the form of new rules or expressions of the same substance, applicable to novel conjunctions of fact; and this unquestionably is the doctrine of the common law.

The power of the English parliament to declare the meaning of their statutes or law of the kingdom in any form has never been disputed; nor could it well be, whether such declaratory statutes were intended to operate only for the future, or to act retrospectively by changing the law applicable to previous cases. But in this country the constitutional distinction between legislative and judicial power was alone sufficient, even without express restrictions, to prevent the exercise of authentic interpretation in any form. The power of the legislature is purely anticipatory; its rules can operate only after their enactment, or after the period when by the constitution of the state they take effect. The meaning of such laws in their application to individual cases, and consequently all questions as to what the law is or has been in the past, belong to the judiciary. (Dash v. Van Kleek, 7 Johns. 494.) The legislature cannot say what the meaning of a law is, after it is once enacted; any such infringement upon the functions of

the courts is unconstitutional and void. But as they have the right of making law for the future, alike by altering former expressions of it and by adopting new ones, a declaratory act may be held valid in its future effect, provided that was included in the legislative intention, even though it may have intended also to change a former statute from the date of its original enactment; such an act will be void only so far as retrospective.

Another distinction must be made in cases where a legislative act is intended to cure omissions and informalities and errors in the acts of other departments of the state or of inferior bodies, or to give legal force and effect to private acts, such as conveyances, etc., previously ineffectual. Such statutes may assume the form of declaratory acts interpreting the previous law; and even though they do not, it is evident that the same principles govern the legislator's power to change the effect of contemporaneous law, whether by the method of formal interpretation or otherwise. The rule generally laid down in such cases, whereby the legislature may validate such acts whenever they could constitutionally have dispensed with them in advance, is certainly open to the same objection with retrospective interpretation. To say what the effect of a law shall be at a certain time is the same thing in substance as saying what the language of that law should be. But the courts have uniformly sustained such corrective statutes whenever substantial justice has been done by them, even at the expense of technical legality.

There must be in every civilized state some power to save men from the effects of their own errors, mistakes, and accidents, wherever it can be done without injury to others and that power is perhaps more safely lodged in the legislative body than in any other; at all events it is least likely to harm or be improvidently used when it comes in the form of a general rule.

(25) From this method of interpreting laws by the reason of them, arises what we call equity, page, 61.

Equity in this sense is not to be confused with that equitable or extraordinary jurisdiction of the Court of Chancery, now exercised also by other courts in connection with jurisdiction at law, which is frequently designated by the same name. There is, indeed, a historical connection between the two meanings. The chancellor's extraordinary jurisdiction had existed for at least two centuries before the term "equity" was applied to it: but in the sixteenth century the analogy between that and the equitable or honorary jurisdiction of the Roman praetor attracted so much attention, that equity came to be regarded as the ground upon which the chancellor exercised his extraordinary power. Lord Bacon is largely responsible, if not for the first introduction, yet at least for the acceptance of this term; and his Orders in chancery furnish a good illustration of its original use, and the connection between its two mean. ings. The chancellor is to act "upon the particular circumstances of each individual case" (p. 61); and Chief Justice Vaughan, used to express his astonishment to hear precedents quoted in chancery. But soon after, this became an established habit; chancery had its own course of procedure and its own rules based upon the decisions of prior chancellors, which gradually became elaborated into one of the most exact and technical systems of judge-made law that has ever existed. This only illustrates Blackstone's remark that" there can be no established rule and fixed precepts of equity laid down without destroying its very essence and reducing it to positive law." (p. 62.) Equity in this sense thus became a collateral system of positive law and rights, for the most part covering subjects and relations unknown to the earlier law, but in many instances modifying legal rights and duties by disregarding technicalities and by the use of more flexible and effective

remedies; in particular by its power to act directly upon the conscience of the defendant, and to direct his actions under penalty of imprisonment: a power unknown to the common law, the remedies of which could be given only through the action of its officers. Of equity in this sense more will be said in the notes to book 3, chapter 27, where it is discussed by the commentator.

Equity in the sense here used of a method of interpretation was familiar to the civilians, alike of the classic period and of the middle ages; and is recognized by English law as early as the coronation oath of Ethelred the Second in 975, and in the preface to Glanvil: but it was a part of the law administered by the ordinary courts of justice, which have always to the present day interpreted statutes as well as other writings equitably, without in any manner trenching upon the chancellor's jurisdiction. This is accurately described by Blackstone as depending upon the particular circumstances of each individual case: for law, by reason of its generality, must always be expressed in abstractions; the terms it employs do not describe precisely any act or event as it actually takes place. They disregard all the circumstances which give individuality and specific character to human affairs, as they disregard the name and personal identity of men and women, by framing their rules for classes of persons of greater or less extent. As a rule, the circumstances so disregarded are of no legal importance; but it is impossible to make such abstractions so perfectly that they will not in some cases leave out features that justly bear upon the results of the action and in other cases include in the general term features or marks that are not invariably found in the conception which the law-giver had in mind. Thus, in the example given by Blackstone himself of a Bolognian law, drawing blood is used as the general mark of a class of assaults always violent and

usually dangerous, which the law forbids: but when circumstances of a particular case are put in evidence, it may be found that such an assault has been committed, although no blood has been drawn; or, on the other hand, that blood is drawn for an entirely different purpose and without any assault. Such discrepancies are perhaps inevitable in the process of generalization by a finite mind: but they are made much more frequent and dangerous through the carelessness of legislators and the changes of meaning in human language.

Equity in this sense was correctly described long before Grotius by Aristotle, and substantially in the same way, as the correction of the deficiencies of the law by reason of its generality. It being the object of justice to reward every man according to his works, there must be in every system and form of law some method of noticing the individual peculiarities of a case, of recurring from the ultimate or legal facts to the evidential, in order to give these latter their due effect upon the judgment pronounced. In systems where the judge has to deal alike with fact and law, the rules of equitable interpretation form a system of great extent and complexity, as may be seen by looking into the civilians' books, especially such as Menochius de Presumptionibus and Mascardus, where the connection between this subject and the law of evidence is very fully illustrated. In the common law, its importance and field of action are much diminished by the institution of the jury, who act upon equitable grounds very largely in finding their verdict, that is, in reducing the facts given them in evidence, which actually took place, to the general categories or ultimate facts in which the issue is expressed. Hence it has been said that the jury do always act equitably and play the chancellor's part.