effect, shall not be an estate at will only, but SHALL be deemed and taken to have ANOTHER and greater effect, is certainly, very bold, if not, as certainly, very wrong.

The truth, therefore, seems to be that, where a person leases lands to another by PAROL, without expressing the time for which the lessee is to hold, the law will avail itself of the circumstances which the demise presents, in order to construe such a lease, as creating a tenancy for a year, or from year to year, rather than a tenancy at will: but where a person leases lands to another by parol for a longer space of time than three years from the making of such lease, the statute interferes by declaring it an estate at will, and precludes us from saying that it is not an estate at will, but a tenancy for a year; because such a tenancy would NOT be an estate

AT WILL.

The courts may, certainly, give a reasonable construction to the agreement of individuals; but the courts have not, nor can they have, without making the executive superior to the legislative power, any authority to repeal or contradict a positive Act of Parliament. If an Act of Parliament be absurd or impolitic, or inconsistent with the manners of the times, let it be repealed or altered by the powers by which it was enacted; but, till it be so repealed or altered,

it should be obeyed, if not contrary to the laws of GOD.*

These observations of Mr. Watkins on the limits within which the courts of law should confine their decisions, proceed from that jealousy which every person, who wishes to preserve the constitution of this country, must feel when he sees any branch of it assuming powers that encroach on the functions allotted to another. For it is useless to confine the powers of making laws to a legislative body, if the courts who are to carry them into execution assume a jurisdiction which renders those laws nugatory. But, at the same time, we must not forget, that a great part of the law of England has arisen from the decisions of our courts; and to the principles which have influenced the courts in their decisions, and which have afterwards derived authority from those decisions, we have been indebted for many valuable improvements. The condition of villeinage was, in fact, abolished by the steady opposition of the courts of law, and their taking advantage of every circumstance which ingenuity could suggest to favour the manumission of the persons subject to that degrading servitude. From the same source probably the tenure of copyhold arose in the place of one depending on the mere will of the lord. The free circulation of landed property, by admitting a power of barring entails, was derived from the same quarter. In these instances, not to mention others, the courts by a series of decisions, founded on an enlightened policy, gradually encroached on the established order of things, and ultimately effected a great and beneficial alteration in the state of society and property; and these changes probably would not have been made so early had they been attempted by an application to the legislature. The burthens of the feudal system were also virtually got rid of before they were removed by the legislative authority; for, by the invention of uses, and afterwards by the introduction of trusts, the

Co. Litt. 270.b.

But a lessee at will, though he cannot transfer Litt. sect. 460. his own interest, is capable of accepting a re

rigour of that system was so far alleviated that it existed scarcely otherwise than in name when it was eventually abolished. The history of our jurisprudence shows, therefore, that our courts have always exercised a power which cannot be strictly reconciled with their authority, considering them as merely intrusted with the execution of the laws; and in the exercise of this power, experience has shown, in most cases, that the courts have felt the influence of the progress of liberal principles earlier than the legislature, particularly where the application of those principles concerned only the mutual rights of individuals. In the present state of society, the exertion of this power ought certainly to be narrowly watched, and perhaps ought never to be admitted in any question of constitutional law. For, with whatever safeguards the judicial authority may be environed, to prevent the influence of government from swaying its determinations (and it is difficult in this view to form any system more perfect than that established in this country), yet there appears to be generally a bias in the judicial towards the governing power; and probably, on examination, many of the changes which have been effected by the exertions of the courts of judicature may be traced to such a bias; particularly in the destruction of villeinage, and the unfettering of entails, they were perhaps influenced more by a desire of weakening the power of the nobles, and rendering the authority of the crown predominant, than by any other motive. It may therefore be a question, whether, notwithstanding the benefits that have been derived from a contrary practice, the courts of law ought not to be strictly confined within the boundaries of a power purely executive? But, even in that case, as they must be the expounders of the law, and as it is difficult to frame any law which does not admit of great latitude in its interpretation, they must still, to a certain extent, exercise a

lease of the inheritance from his lessor, on such lessee's entry into the premises: for he has a no

discretion which, on many occasions, will appear to trench on the legislative authority. And it is always to be kept in mind that the greater part of our law has been formed in the courts, without the interference of the legislature, by an application of the principles of the preceding decisions, to the successive cases that arose, and that these principles must be applied by the courts in the expounding of any positive law, where they are not absolutely abrogated by, and repugnant to, its enactments. The courts in raising a constructive tenancy from year to year, instead of an estate at will, in all cases where the acts of the parties, independently of any actual agreement between them, would afford ground for implying an agreement, that such a tenancy should exist, appear to have been influenced chiefly, as Mr. Watkins has stated in the text, by the consideration of the inconvenience attached to a strict tenancy at will. When therefore they had by their decisions, in cases where there was no immediate reference to that part of the statute of frauds which relates to parol leases, established the circumstances from which the tenancy from year to year should be implied, the question was, whether the principles which governed those cases could be applied to the case of a parol lease which was void by that statute? and the courts determined that they could. The grounds of this determination appear to be, that the object of the statute was principally to render invalid any parol agreement for a lease for a longer term than three years; and as the constructive tenancy from year to year, arising from the mere possession at an annual rent, was not then established, the statute could only refer to a tenancy at will, when it avoided the actual agreement between the parties: but after the tenancy from year to year was raised by implication of law from the acts of the parties, the courts did not feel that they violated the intention of the statute in giving the same effect to the possession

torious possession on entry, [and there is a privity between him and the lessor,] and the reversion or inheritance may be released to such an one.*

and payment of rent by a person who entered under a parol lease void by the statute, which they would have done, had the same circumstances occurred unconnected with such parol lease, and they therefore felt themselves bound by the prior decisions to put the same construction upon those circumstances, as evidence to infer an agreement for a tenancy from year to year, notwithstanding the agreement between the parties, which in consequence of the statute could not be taken into consideration. They do not therefore give any effect to a parol lease which the statute has rendered null, but merely presume, consistently with their decisions in other cases, an agreement for a different kind of tenancy, where the facts of the case will warrant that construction. And it should seem that in conformity with these principles they would construe a possession taken under a parol lease void by the statute, as a strict tenancy at will, where no act is done by the lessor, by acceptance of rent, or otherwise, to raise by implication a tenancy from year to year; but where such acts take place that tenancy will be implied.

* It appears that the acceptance by a lessee for years, of an estate at will, in the land comprised in his lease, would be a surrender in law of his term, Mellows v. May, Cro. Eliz. 874, and 6 Com. Dig. 306. It is also to be observed that a remainder cannot be limited on an estate at will; for by the limitation over, the will of the lessor is determined; and then the remainder cannot be good, as a remainder, for want of a particular estate; and it cannot be good as an estate in possession, because it was granted as a remainder, 5 Bac. Ab. 822, tit. remainder G.

Bernard v. Bonner, Aleyn, 58.