the substance, though they will improve the form, of the clause, he is impatiently rebuked for occupying the time of the House with what will make no difference.' On the other hand, changes in substance are constantly made in Committee which have the effect of rendering the form of the measure worse than when it came from the draftsman's hands. Clauses are put in or struck out, exceptions are added, references to other statutes are inserted, which make the sense of the enactment difficult to follow and its construction uncertain. Sometimes these faults are corrected in that later consideration which is called the Report stage. Sometimes they are not, either because they have escaped notice, or because the Ministry are in a hurry, and do not wish to risk the further raising of questions likely to give trouble. The House of Lords ought to correct all such blemishes. But it seldom does so, either from indolence, or because it does not wish to differ with the House of Commons except where it has some class interest, political or economic, to contend for. In fact, that function of revision which modern theory attributes to the House of Lords is not discharged.

The facilities which Parliamentary procedure affords for delaying the progress of Bills in the House of Commons are so ample, not to say profuse, that the practice has grown up of drafting Bills, not in the form most scientifically appropriate, but in that which makes it easiest for them to be carried through under the fire of debate. To lay down those broad, clear, simple propositions of principle which conduce to the intelligibility and symmetry of the law is to invite opposition, and to make the process of opposing easier for those who desire to resist, but have not the technical knowledge needed for a minute discussion. To bury a principle out of sight under a mass of details; to avoid the declaration of a principle by enacting a number of small provisions, which cover most of the practically important points, yet do not amount to the declaration of a new

general rule; to insert a number of exceptions, not in themselves desirable, but calculated to avert threatened hostility; to hide a substantial change under the cloak of a reference to some previous Act which is to be incorporated with the Act proposed to be passed; to deal with some parts of a subject in one year, and postpone some other parts to be dealt with in another measure next year, while leaving yet other parts to the chances of the future, though all ought to have been included in one enactment; these are expedients which are repellent to the scientific conscience of the draftsman, but which are forced on him by the wishes of the Minister who is in charge of the Bill and who foresees both the objections that will be taken to it and the opportunities for obstructing it which parliamentary procedure affords. Yet the Minister may well plead that, with the limited time at his disposal, these expedients are essential to the passing of his Bill. Any one can see what complication, what obscurity, what uncertainty in the law must needs result from this way of amending it.

Thus it has come about that our English statute law is more bulky and even more unscientific in its form (whatever the excellence of its matter) than was the statute law of the Roman Empire when Theodosius II, and afterwards Justinian, set themselves to call order out of chaos. No Theodosius II, no Justinian, need be looked for in England. Yet much might be done to reduce the existing statutes into a more manageable mass, and something to improve the form in which they come from the hands of the legislature. The former work, previously in the hands of the Statute Law Commission, has since that body came to an end been entrusted to another body called the Statute Law Committee, which is conducting a general revision of the statutes. It has issued a Revised Edition coming down to A.D. 1886, and under its auspices a number of useful Consolidation Acts have been passed, whereby the Statute Law, and in a few instances the Common Law also,

relating to particular departments has been brought together and enacted as an orderly whole. The more difficult enterprise of providing better methods for turning out new law in a clear, concise, and scientifically ordered form, is rarely discussed, even by lawyers, and seems to excite no public interest. It raises many difficult questions which this is not the place to treat of, so I will be content with observing that the remedy for the present defects of British statutes which seems least inconsistent with our parliamentary methods, would be to refer each Act, after it had passed both Houses, but before it received the royal assent, to a small committee consisting of skilled draftsmen and of skilled members of both Houses, who should revise the form and language of the Act in such wise as, without in the least affecting its substance, to improve its arrangement and its phraseology, the Act being formally submitted once more to both Houses before the royal assent was given, so as to prevent any suspicion that a change of substance had been made. It is, however, unlikely that Parliament will consent to any proposal of this nature; and even if some such expedient were adopted it would, at least in some cases, fail to remove the faults above described, because they are necessarily incident to legislation by large assemblies on matters which excite popular feeling and involve political controversy.

X. SOME REFLECTIONS SUGGESTED BY THE HISTORY OF LEGISLATION.

The chief reflections which a study of Roman and English modes of law-making seem to impress upon the inquirer's mind are the three following.

The first is that the law of best scientific quality is that which is produced slowly, gradually, tentatively, by the action of the legal profession. At Rome it was produced by the unofficial jurists under the Republic,

by the authorized jurists under the earlier Empire, by the magistrates who framed and went on constantly revising the Edicts from the time of the Punic Wars to that of Hadrian. In England it has been produced by the writers of text-books, but still more by the judges from the time of Glanvil and Bracton down to our own day. Our private law is as much a growth of time as is our Constitution, or as are our ideas on such subjects as economics or ethics. What has been true of the past will be true of the future; and though we can foresee no changes in the future comparable to those which have built up the existing fabric of our law out of the customs of the thirteenth century, we must expect the process of change to continue as long as life itself, and must beware lest by any attempt at finality we should check a development which is the necessary concomitant of health and energy.

The second is that the special point wherein the Roman system had an advantage over our own, and indeed over that of all modern countries, was the existence of an organ of government specially charged with the duty of watching, guiding, and from time to time summing up in a concise form, the results of the natural development of the law. The Praetor with his Edict is the central figure in Roman legal history, and a unique figure in the history of human progress. The Roman statutes of the Republic were not, except perhaps in their brevity, superior to our statutes down to the time of George III. The imperial constitutions, especially the later ones, are inferior in substance and perhaps not better in form than our later English statutes. The treatises of the Roman lawyers, if more convenient in point of form than our volumes of Reports, contained discussions not more acute and subtle, nor so great a wealth of matter; and they were not more free from discrepancies. But neither England nor the United States has ever had or can have any one who could conduct legal reforms in such a way as did the Praetor.

A third reflection is that the various departments of legislation are not equally well suited to be developed by one and the same organ of legislation. Administrative law can hardly be created except by the direct action of the sovereign power in the State, whether the monarch or the Legislative Assembly acting at the instance of the Executive. In every country that kind of law has been so created, and its growth belongs to a comparatively late stage in the progress of a State. As the need for a more elaborate civil and military administration increases, so does the organ appropriate for legislating on such matters become evolved. A very large part of recent legislation in England1 and in the United States belongs to this category, and similarly a large part of the Codes of Theodosius II and of Justinian are filled by such matters.

A system of procedure, civil and criminal, with the judicial machinery required to work it, may be created either by the direct legislative action of the supreme power, or by custom and the action of the Courts. Both at Rome and in England it was through usage and by the Courts themselves that the earlier system was slowly moulded; both at Rome and in England it was direct legislation that established the later system. Functions discharged by both the Praetor and the Chancellor are the offspring of custom and not of statute. But the judicial system of the Roman Empire, as well as the mode of procedure by formulae (established by the Lex Acbutia probably about B.C. 200) and the criminal quaestiones perpetuae of the later Republic, and similarly all the changes made in English procedure and the English Courts during the last two centuries, culminating in the sweeping reconstruction effected by the Judicature Act of 1873, were the work of direct legislation.

Criminal law has everywhere grown out of Custom, and has in all civilized States been largely dealt with by

1 According to Sir C. P. Ilbert (op. cit.) nine-tenths.