in opinion upon law, but a trial of spirit between parties, our courts of law are no longer the temple of justice, but the amphitheatre for gladiators.  No,—­God forbid!  Juries ought to take their law from the bench only; but it is our business that they should hear nothing from the bench but what is agreeable to the principles of the Constitution.  The jury are to hear the judge:  the judge is to hear the law, where it speaks plain; where it does not, he is to hear the legislature.  As I do not think these opinions of the judges to be agreeable to those principles, I wish to take the only method in which they can or ought to be corrected,—­by bill.

Next, my opinion is, that it ought to be rather by a bill for removing controversies than by a bill in the state of manifest and express declaration and in words de praeterito.  I do this upon reasons of equity and constitutional policy.  I do not want to censure the present judges.  I think them to be excused for their error.  Ignorance is no excuse for a judge; it is changing the nature of his crime; it is not absolving.  It must be such error as a wise and conscientious judge may possibly fall into, and must arise from one or both these causes:—­1.  A plausible principle of law; 2.  The precedents of respectable authorities, and in good times.  In the first, the principle of law, that the judge is to decide on law, the jury to decide on fact, is an ancient and venerable principle and maxim of the law; and if supported in this application by precedents of good times and of good men, the judge, if wrong, ought to be corrected,—­he ought not to be reproved or to be disgraced, or the authority or respect to your tribunals to be impaired.  In cases in which declaratory bills have been made, where by violence and corruption some fundamental part of the Constitution has been struck at, where they would damn the principle, censure the persons, and annul the acts,—­but where the law has been by the accident of human frailty depraved or in a particular instance misunderstood, where you neither mean to rescind the acts nor to censure the persons, in such cases you have taken the explanatory mode, and, without condemning what is done, you direct the future judgment of the court.

All bills for the reformation of the law must be according to the subject-matter, the circumstances, and the occasion, and are of four kinds:—­1.  Either the law is totally wanting, and then a new enacting statute must be made to supply that want; or, 2. it is defective, then a new law must be made to enforce it; 3. or it is opposed by power or fraud, and then an act must be made to declare it; 4. or it is rendered doubtful and controverted, and then a law must be made to explain it.  These must be applied according to the exigence of the case:  one is just as good as another of them.  Miserable indeed would be the resources, poor and unfurnished the stores and magazines of legislation, if we were bound up to a little narrow form, and not able to frame our acts of Parliament according to every disposition of our own minds and to every possible emergency of the commonwealth,—­to make them declaratory, enforcing, explanatory, repealing, just in what mode or in what degree we please.