第10章

Yet the moment the judgment has been rendered and reported, weslide unconsciously or unavowedly into a new language and a newtrain of thought. We now admit that the new decision has modifiedthe law. The rules applicable have, to use the very inaccurateexpression sometimes employed, become more elastic. In fact theyhave been changed. A clear addition has been made to theprecedents, and the canon of law elicited by comparing theprecedents is not the same with that which would have beenobtained if the series of cases had been curtailed by a singleexample. The fact that the old rule has been repealed, and that anew one has replaced it, eludes us, because we are not in thehabit of throwing into precise language the legal formulas whichwe derive from the precedents, so that a change in their tenor isnot easily detected unless it is violent and glaring. I shall notnow pause to consider at length the causes which have led Englishlawyers to acquiesce in these curious anomalies. Probably it willbe found that originally it was the received doctrine thatsomewhere, in nubibus or in gremio magistratuum, there existed acomplete, coherent, symmetrical body of English law, of anamplitude sufficient to furnish principles which would apply toany conceivable combination of circumstances. The theory was atfirst much more thoroughly believed in than it is now, and indeedit may have had a better foundation. The judges of the thirteenthcentury may have really had at their command a mine of lawunrevealed to the bar and to the lay-public, for there is somereason for suspecting that in secret they borrowed freely, thoughnot always wisely, from current compendia of the Roman and Canonlaws. But that storehouse was closed so soon as the pointsdecided at Westminster Hall became numerous enough to supply abasis for a substantive system of jurisprudence; and now forcenturies English practitioner have so expressed themselves as toconvey the paradoxical proposition that, except by Equity andStatute law, nothing has been added to the basis since it wasfirst constituted. We do not admit that our tribunals legislate;we imply that they have never legislated; and yet we maintainthat the rules of the English common law, with some assistancefrom the Court of Chancery and from Parliament, are coextensivewith the complicated interests of modern society.

A body of law bearing a very close and very instructiveresemblance to our case-law in those particulars which I havenoticed, was known to the Romans under the name of the ResponsaPrudentum, the "answers of the learned in the law." The form ofthese Responses varied a good deal at different periods of theRoman jurisprudence, but throughout its whole course theyconsisted of explanatory glosses on authoritative writtendocuments, and at first they were exclusively collections ofopinions interpretative of the Twelve Tables. As with us, alllegal language adjusted itself to the assumption that the text ofthe old Code remained unchanged. There was the express rule. Itoverrode all glosses and comments, and no one openly admittedthat any interpretation of it, however eminent the interpreter,was safe from revision on appeal to the venerable texts. Yet inpoint of fact, Books of Responses bearing the names of leadingjurisconsults obtained an authority at least equal to that of ourreported cases, and constantly modified, extended, limited orpractically overruled the provisions of the Decemviral law. Theauthors of the new jurisprudence during the whole progress of itsformation professed the most sedulous respect for the letter ofthe Code. They were merely explaining it, deciphering it,bringing out its full meaning; but then, in the result, bypiecing texts together, by adjusting the law to states of factwhich actually presented themselves and by speculating on itspossible application to others which might occur, by introducingprinciples of interpretation derived from the exegesis of otherwritten documents which fell under their observation, they educeda vast variety of canons which had never been dreamed of by thecompilers of the Twelve Tables and which were in truth rarely ornever to be found there. All these treatises of the jurisconsultsclaimed respect on the ground of their assumed conformity withthe Code, but their comparative authority depended on thereputation of the particular jurisconsults who gave them to theworld. Any name of universally acknowledged greatness clothed aBook of responses with a binding force hardly less than thatwhich belonged to enactments of the legislature; and such a bookin its turn constituted a new foundation on which a further bodyof jurisprudence might rest. The responses of the early lawyerswere not however published, in the modern sense, by their author.

They were recorded and edited by his pupils, and were nottherefore in all probability arranged according to any scheme ofclassification. The part of the students in these publicationsmust be carefully noted, because the service they rendered totheir teacher seems to have been generally repaid by his sedulousattention to the pupils' education. The educational treatisescalled Institutes or Commentaries, which are a later fruit of theduty then recognised, are among the most remarkable features ofthe Roman system. It was apparently in these Institutional works,and not in the books intended for trained lawyers, that thejurisconsults gave to the public their classifications and theirproposals for modifying and improving the technical phraseology.