to attain.... In the present case we perceive no such pressing
need of our anticipating the legislature as to justify our
departure from what we cannot doubt is the settled tradition of
the common law to a point beyond that which we believe to have
been reached by equity, and beyond any to which our statutes
dealing with kindred subjects ever have seen fit to go. It will
be seen that we put our decision, not upon the impolicy of
admitting such a power, but on the ground that it would be too
great a step of judicial legislation to be justified by the
necessities of the case."[Footnote: Stack _v._ New York, New
Haven and Hartford Railroad Co., 177 Massachusetts Reports, 155;
58 Northeastern Reporter, 686.]

The theory of judicial power thus stated carries implications
that would not be universally accepted. It is intimated that if
the necessity had seemed strong enough to call for the order
asked for in the trial court it ought to have been granted,
although not justified by any settled rule or authoritative
precedent, nor by any clear analogy from such a rule or
precedent. This is a view taken, though with less caution and
qualification, in a work written by the same hand many years
before, which is recognized as a legal classic on both sides of
the Atlantic. In "The Common Law,"[Footnote: Pp. 35, 36.] after
discussing some of the reasons which actuate judges in assuming
to unfold the unwritten law, it is stated thus:

The very considerations which judges most rarely mention, and
always with an apology, are the secret root from which the law
draws all the juices of life. I mean, of course,
considerations of what is expedient for the community