The vulgar error on this subject arises from a total confusion in the very idea of things widely different in themselves,—­those of convention, and those of judicature.  When a contract is making, it is a matter of discretion and of interest between the parties.  In that intercourse, and in what is to arise from it, the parties are the masters.  If they are not completely so, they are not free, and therefore their contracts are void.

But this freedom has no farther extent, when the contract is made:  then their discretionary powers expire, and a new order of things takes its origin.  Then, and not till then, and on a difference between the parties, the office of the judge commences.  He cannot dictate the contract.  It is his business to see that it be enforced,—­provided that it is not contrary to preexisting laws, or obtained by force or fraud.  If he is in any way a maker or regulator of the contract, in so much he is disqualified from being a judge.  But this sort of confused distribution of administrative and judicial characters (of which we have already as much as is sufficient, and a little more) is not the only perplexity of notions and passions which trouble us in the present hour.

What is doing supposes, or pretends, that the farmer and the laborer have opposite interests,—­that the farmer oppresses the laborer,—­and that a gentleman, called a justice of peace, is the protector of the latter, and a control and restraint on the former; and this is a point I wish to examine in a manner a good deal different from that in which gentlemen proceed, who confide more in their abilities than is fit, and suppose them capable of more than any natural abilities, fed with no other than the provender furnished by their own private speculations, can accomplish.  Legislative acts attempting to regulate this part of economy do, at least as much as any other, require the exactest detail of circumstances, guided by the surest general principles that are necessary to direct experiment and inquiry, in order again from those details to elicit principles, firm and luminous general principles, to direct a practical legislative proceeding.

First, then, I deny that it is in this case, as in any other, of necessary implication that contracting parties should originally have had different interests.  By accident it may be so, undoubtedly, at the outset:  but then the contract is of the nature of a compromise; and compromise is founded on circumstances that suppose it the interest of the parties to be reconciled in some medium.  The principle of compromise adopted, of consequence the interests cease to be different.