fUDICIAL LEGISLATION. 201 lie in the judicial temper which relies on its own conceptions of justice and expediency as a substitute for the wisdom of the past. It is to no such habit of mind that we owe our inherited body of law, and it would be unfit to trust to this means for its reform. It is " wiser," in the words of an eminent judge, 1 " to ascertain the powers of the instrument with which you work, and employ it only on subjects to which they are equal and suited ; and if you go beyond this you strain and weaken it, and attain but imperfect and unsatisfactory, and often only unjust, results." The need of the present time lies in a true critical and historical understanding of the principles of our law, which shall make clear alike its exact scope, its merits, and its defects, and thus point the way to a legislative cure of the latter. Even when a reform seems most plainly desirable, the conditions under which the judge works often make it preferable that the change should come from the legislature. 2 One step by the court unless followed up can cause nothing but confusion ; and the fact that the actual decision alone is Binding makes it often doubt- ful how far a later court will continue the course upon which its predecessor has entered. Whether such a course should be begun depends on all the circumstances of the case. The only sure guides are common sense, and a knowledge of the law which is founded upon a knowledge of its history. Ezra R. Thayer. Cambridge, 1891. 1 Coleridge, J., in 2 E. & B. 269. 2 Amory v. Meredith, 7 Allen, 397, may perhaps furnish such an instance of a desira- ble result attained by a less desirable method. See also Sugden v. St. Leonards, 1 Prob. Div. 154, 244-5, 240-2, where the majority of the court proceeded on a " principle " which if enacted by the legislature would have gone far to overthrow the whole hearsay rule, yet which was probably not so intended by the court. Note. — This essay received the prize offered by the Harvard Law School Asso- ciation to the graduating class of 1891. — Eds. 26
