to the book shelves of the antiquarian, instead of cumbering the library and emptying the pocket of the practising lawyer."

The plan of codification here set out is the only modern one which I have seen stated in any detail, and, so far as the Statute Law is concerned, it seems to me to be neither more nor less than this: that the whole work of Parliament of the last six hundred years should be simply done over again. How otherwise is the whole Statute Book to be "simplified, abridged, and made consistent with justice?" Now, can it be really supposed that such a task would ever be undertaken at all; or that, if undertaken, Parliament would let such a matter out of its own immediate hands? I cannot think that such a plan as this will ever come seriously under discussion.

As to the mode in which it is intended to deal with the Reports, my belief is that the plan of consolidation here proposed would break down the moment an attempt was made to apply it, and I will now proceed to point out some of the misconceptions which I think the plan discloses.

Let us first take the classification of cases into judicial enactments and illustrative propositions with which Sir Henry Thring commences. Surely, he starts with an utter misconception as to the nature of judiciary law. What is meant by "a case which contains in itself a substantive judicial enactment?" I venture to say that there is no such case. If there was, the power which now resides in Parliament would be, in a great measure, transferred to the judges sitting at Lincoln's Inn and Westminster Hall. The judges could manufacture law as fast and as easily as the representatives of the people. That they cannot do this is alone sufficient to prove that no judicial decision is accurately described as a "substantive judicial enactment." Because substantive law,as binding as any Act of Parliament, ultimately grows out of judicial decisions, and because the most tangible. external authority for that law is the case in which it was first applied, we are apt to ignore everything else in the

process except the first stage of it. But between the first application of an assumed rule by a judicial decision, and the really final acceptance of this as a law, a long history intervenes. It must be remembered that no law coming from a judge is absolutely binding until it has received the sanction of the House of Lords; and it must also be remembered that it is always open to the courts, even whilst admitting the authority of a precedent, to cut it down to the smallest point which the bare necessity of the former case required to reject all abstract statement of the law, and to accept the concrete decision only; and that it is never certain when this cutting down process may be commenced, or how far it will go. Law which emanates from judges is thus subjected to constant criticism, to modification, and even to displacement; and the rule of law which (speaking loosely) we attribute to any particular decision is really the result of the whole legal sense of the community, arriving at a final consensus after many years.

The case cited by Sir Henry Thring is no exception to what is here stated. He says "the negotiability of a bill of exchange was determined by a judicial decision; and this decision being followed very soon passed into the domain of settled law." But all the importance lies in the "being followed." That is the period of gestation which precedes the birth. The nascent rule is no more as yet actual law than the foetus in the womb is an actual human being. Even so late as Lord Holt's time the transferee of a bill payable to bearer could not sue upon the bill in his own name. It was with the negotiability of bills of exchange as with all other judiciary law. The law on this point was ultimately settled, but slowly and after many fluctuations; fewer, perhaps, and less prolonged than usual, chiefly because of the exceptional influence and successful boldness of Lord Mansfield.

The truth is that the law advances under the influence of

judges, not, as Sir Henry Thring seems to think, in the same way as a man walks by a series of definite steps, which can be marked, counted, and measured, but as a carriage is propelled by a steam engine, the motion of which is the result of a combination of force and friction too intricate to be perceived. Few jurists, indeed, would admit that the advance of law can be fitly compared to any mechanical operation, however intricate. "Organic growth" is the term they commonly apply to it, which explains nothing, and only expresses our despair of being able completely to unravel its complications. But we need not now pursue this further. What I affirm is, that our Law Reports do not contain judicial enactments which succeeding cases leave wholly undisturbed, and only serve to illustratę and confirm. They contain long lines of cases leading gradually and imperceptibly up to a certain number of settled or apparently settled propositions of law. Around each of these propositions we find that clusters of new questions are arising which the old proposition does not exactly fit. These are the cases which set lawyers hunting up the old Reports. In those vast stores of human ingenuity and knowledge they hope to find some spark of light which will lead them out of the darkness. They go back from the abstract proposition of law which has been ultimately arrived at to the concrete cases which preceded it, and see if they cannot either recast the principle so as to fit the new case, or get a clue to some extension of it. Frequently the judges, whilst professing merely to apply the old doctrine, really push it slightly forwards in a new direction. It would be a grievous error to class these decisions as merely illustrative. They are various terms in several new series, which will end in producing entirely new propositions of law, but only again themselves to form fresh points of departure for more innovations. To suppose that the law laid down in any case or series of cases is final, or that a Code would make it so, is to suppose that there is some contrivance by which we can stop the growth of the

common law, a supposition which, as I have already said, is contrary to all experience.

cases.

Of course I am not denying that much useful work may be done by sifting the Reports, by placing their results before lawyers in a concise form, by distinguishing what has become obsolete from what has been, for the present, finally accepted, and so forth. But if it be supposed that this is the panacea which is to cure the growing evils of English law, I answer that this experiment has already been tried and failed. What guarantee does Sir Henry Thring give that his "consolidation of case-law" will do anything more for us than has been hitherto done? Some of the very ablest of modern lawyers have been for years engaged upon writing treatises which are in fact consolidations of reported Williams on Executors, Blackburn on Sales, Benjamin on the same subject, Byles on Bills, Dart on Vendors and Purchasers, are all first-rate works of this kind. I do not see that Sir Henry Thring even suggests any means of arriving at a better result, except the classification of decisions into "judicial enactments" and "illustrative cases," a classification which I maintain to be fundamentally false. But let the experiment be tried. There is nothing to hinder it. There is no need to wait for "Her Majesty's Government," or for the "beginning of next Session." There are plenty of publishers near Temple Bar who will bring out the work; and there is no fear of buyers if it will enable lawyers to dispense with the Reports in extenso. And we can scarcely admit any plea by Sir Henry Thring that this would not be his scheme, because his consolidation would have the stamp of authority. We shall see that he wants no authority. He contemplates the statutes being made "consistent with justice" (p. 8), but he does not give the least hint that the judiciary law is to be in any way modified. On the contrary, he assumes that certain rules have been already made by competent authority, and that nothing remains but to collect and arrange them.

That is the very essence of his scheme. He does not, therefore, want authority, and authority will add nothing to the work. Even in countries where judiciary law, as we understand it, is comparatively unknown, and where the stamp of authority which a Government may add to the work of an individual is of more importance than here, the distinction between a private treatise and a code which gathers up the existing law is fully understood to be only an external one. It does not affect the substance of the work at all; and need not necessarily affect even the form of it, though it generally does so. Savigny puts this very clearly. "It is," he says, "in itself quite conceivable that a number of private persons, learned in the law, might undertake a work of this kind without the State either authorizing it beforehand, or accepting it after it was completed. In fact, this was often the case with the older German law, and it would have been very difficult to have made our ancestors even comprehend the difference between such a production and a true code, obvious and important as that difference may now appear to us. Of course, we adhere to that conception of a code which corresponds to the ideas of our own time. Yet it is clear that the difference lies entirely in the occasion which calls the Government into action, and in the sanction which is accorded by the latter. The task to be performed is the same.

It is now,

as it was then, a purely scientific and not a political undertaking. For with regard to all the law which would be comprehended in the proposed code the politician has brought his labours to a close, and it only remains to recognize and to give expression to the result, and this belongs entirely to technical jurisprudence." (Vom Beruf, p. 19).

I have dealt with Sir Henry Thring's proposals upon his own assumptions. Whether, if he and his assistants were once set to work upon their consolidation of the Reports, they would really do no more than just gather up the existing law, is exceedingly doubtful. Brevity and clearness