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206 WILLIAMS' CASE.
an infant's property to his maintenance and education, may well
be regarded as the natural course and necessary result of a judicial
power; as the proper exercise of judicial functions. But to insti-
tute an inquiry as to the propriety of disposing of any property,
and the selling of it, and investing the proceeds of the sale in other
property merely for the general interest and advantage of its infant
owner, without reference to any peculiar circumstances, as in the
before mentioned cases of a conversion of one kind of property
into another, has nothing of the aspect or character of an exercise
of judicial authority about it. Such a proceeding puts in issue,
and determines no matter in controversy, either as to the claim of
a debt, or of maintenance, or of any other right which had been
denied, disputed, or neglected. It has nothing judicial even in its
appearance. The proceeding is merely that of a trader, who, upon
inquiry, conceives it to be to his interest and advantage to carry his
property into the market, and to sell it for the purpose of making
a more profitable investment of its proceeds. But the several judi-
cial tribunals of the republic are unfitted and incompetent to act as
traders; they have not been organized for any such purpose, and
cannot constitutionally be clothed with any such power. An arbi-
trary and discretionary power, in a court of justice, to sell and dis-
pose of the property of a citizen, in any case in which the court
should be induced to believe that it would be for his own interest
and advantage, could not fail, in many instances, to be productive
of the greatest mischief. But the exercise of such an authority
over the property of an infant, would be pernicious in the extreme;
not having the means, or the power to object, or to complain pend-
ing the proceeding, the helpless infant might be plundered without
mercy; and that very court of justice which was intended as his
shield, might be made the instrument of the iniquity.
Upon these considerations, therefore, I am of opinion, that these
public acts, now proposed to be executed, so far as they clothe
this court with a new and more enlarged jurisdiction, must be so
construed as to confine them to those cases only where it is proper
and necessary to sell the infant's estate for his maintenance and
education; that the general terms, ' for the interest and advantage
of such infant,' used in the first section, must be limited to mean,
' for the maintenance and education of the said infant,' as spoken
of in the latter sections of them; (q) and consequently, in order
(q) 1816, ch, 154, s. 1, 6 and 8; 1818, ch. 133, s. 2.
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