that legislation has receded from and overturned such custom, has the glory of modern law been most conspicuous.

How customs grow into common law. Supposed superiority cf common law over statute law. To ask how it is that customs come to be universal, and thus tacitly grow into the general law, is not less idle than to ask why human tendencies and faculties were made as they are, and why, in spite of ourselves, we sooner or later agree with our neighbours, or they with us, not only in our habits and modes of action, but, as far as can be ascertained, even in many of our secret thoughts. This unity of thought and sentiment is the law of our being, and while circumstances of race, of climate, of soil, of neighbourhood, of battles, victories, and defeats give a predominance to some one virtue or defect, the result nevertheless is, that the substratum of rights enjoyed, or at least aspired to, by the subjects of all countries is much the same, and national peculiarities, or rather national defects and incapacities, play a comparatively small part in every municipal code. But whatever may be the laws which have been derived from custom, these are always necessarily vague and uncertain, and for no other reason than because the less a community has advanced towards civilisation, the more is its legislation incapable of those nice distinctions of thought and language which civilisation sooner or later brings in its train. Justice and right are at first expressed in general phrases, and often are enunciated in poetry or sounding verse.1 And though, when administered by vigorous and impartial judges, language of wide import helps rather than impedes sound decisions, yet civilisation. can never rest till it searches out more detailed, accurate, and appropriate provisions and appliances of justice, than any common law can ever dream of.

1

Distinctions are

And the laws of and F. ch. xliv.

1 The laws of Pittacus were said to be in verse. Charondas were also uttered in verse.-Gibb. Decl. In ancient Erin, if the legislature did not in early times speak in verse, it was, at all events, the practice to give to the poets the office of expounding the law, until, on a memorable occasion, a declamatory exposition of one ratio decidendi led to the poets being discarded, and the profession thrown open. And this change produced excellent results.-2 O'Curry's Lect. 2; 3 Anc. Laws Irel. ch. lii.

drawn, exceptions are discovered and allowed, procedure is amended, punishments graduated, jurisdiction defined, as society advances.

Supposed superiority of common law over statute law. Judges, however, following Coke, are to be found, who, forgetful of these things, utter vain regrets that the brevity and the breadth of the common law have been overlaid and encroached upon by materials that have spoiled its symmetry. They forget that the common law, being conceived in an age of comparative barbarism, is devoid of that flexibility and adaptation, which the wisdom of judges themselves alone has given to it. It is this latitude and amplitude of discretion invariably vested by the common law in its administrators, which make the latter insensibly cling to it so closely. But the unerring instinct of civilisation demands above all things that law shall be certain, discriminating, and easily understood by those who are to be guided by it, and certainty cannot in general be attained without particularity and copiousness of expression, and these again in turn not seldom degenerate into diffuseness and tautology. Thus, while judges are too frequently apt to view the common law as inherently superior in quality, as it undoubtedly permits and demands wider excursions in reasoning, those who have to obey both are more inclined to prefer the statutory law for no other reason than because they know it to be more minute and painstaking, more sedulously framed so as to distinguish between classes of circumstances, more easily known and discoverable, more zealous to facilitate procedure, to bring justice home to each and all, and so attain a higher standard of right—a system of rights better adapted to the varying conditions of the governed. There is no real repugnance, because there is no common ground of comparison, between the common law and the statute law. The former is the normal municipal law; the latter grows out of it, and is always intended to rectify, and improve, and expand the former. They are mutually the complement of each other. Nations cannot help beginning with the former, and cannot help ending with the latter.

The common law is indeed to this day the storehouse of many of the leading principles on which our rights depend, for though the statutes embody masses of specific

laws, these were chiefly designed to meet special cases of hardship. And probably on this account a habit has grown up of viewing the statutes as treating only of things evanescent and changeable, in contradistinction to those more solid and enduring elements elsewhere found, and which are superior to change. This is, however, an error that requires constantly to be corrected. The common law could only supply rules and maxims of right, applicable so far as the circumstances of the age had developed rights and wrongs, or rather the occasions which gave rise to the necessity of laws. But as society is progressive, as new wants arise with each generation, and new customs inevitably supervene to displace the old, it is obvious that the common law requires to be always recruiting from the statutes, in order to keep abreast of the times, and so as to satisfy the rising standard of justice as it grows and expands from age to age. Without this elastic principle the best common law must soon develop the seeds of its own decay.1

Voluminousness of statutes.-Not a little of the distaste, if not contempt, which lawyers too often evince for the statute law as contrasted with the common law, is the extraordinary diffuseness and voluminousness of the former. Not only are the general statutes composed of details too vast for any human memory, and composed in a barbarous and debased technical language, but over and above the general statutes there are local statutes and groups of statutes regulating every several town, corporation, and district, every body of commissioners, every railway, harbour, and local improvement board in the kingdom. The details of each of these groups of statutes

1 LORD MANSFIELD rhetorically observed that "A statute very seldom can take in all cases; therefore the common law, that works itself pure by rules drawn from the fountains of justice, is superior to an act of parliament."-1 Atk. 32.

It is well to hear what an acute intellect, but not that of a lawyer, has to say on this point. "Blackstone speaks with uncommon respect of the old common law, which the generality of lawyers highly prefer to the statute law. He will find it, however, difficult to persuade an impartial reader, that old customs (begun in barbarous ages and since continued from a blind reverence to antiquity) deserve more respect than the positive decrees of the legislative power."5 Gibbon, Misc. Works, 546.

must be kept in view by those who live in the particular locality affected, if they wish to know all the law that governs their interests, and which comes home to them. The strain on the memory of man is thus prodigious, when all this law that is common to the whole empire, and all that is applicable to each separate locality, are taken together as the rule of conduct and the test of right and wrong.1

Judiciary, or judge-made law, what.-A statute, inasmuch as it is the most direct and immediate act of legislation, and the voice of the legislature itself, is, however, to be distinguished from certain other indirect and circuitous modes of originating rules of law. Thus the courts, as the proper and only authentic expositors of what the law is, find it impossible to carry on the work of interpretation, exposition, and application of the law to individual cases, without establishing certain subordinate rules of procedure as well as principle, and these in turn operate as a species of derivative legislation. In truth, however, these rules of practice and procedure are to be viewed as nothing more than the tools or weapons, with which the courts exercise their proper functions. No man in the business of daily life can carry on the commonest handicraft without generalising the work which he undertakes, and setting about what he does according to certain rules and methods which 'practice has proved to be the simplest, and shortest, and easiest for its furtherance, and which after a little experience become a second nature, and influence him unconsciously. The carpenter uses his saw or his hammer, the woodman his axe, the ploughman his team, and the compositor his type according to well-established methods, and these have become a secondary law of themselves. Every trade and occupation of life has its appropriate method of work, and a certain routine in all its multifarious appliances, which may, in a popular sense, be called the law of that trade. In like manner courts and judges set about the business of expounding and applying the law according

1 DUNNING said that he professed to know the chief rules of the common law, and to carry them in his memory; but as to the statute law, the utmost he could do for his clients or anybody else was to give an opinion as to the construction of a particular enactment when it was placed before him.

to well-known methods, which when stated in detail seem to be the mere creation of some unrecognised legislative function, whereas the whole is referable to the necessary action of reflective beings, who insensibly generalise as they proceed, and settle into some approved routine, whatever be the work that is undertaken.

Necessity of judge-made law. The great body of what has been called judge-made, or judiciary law, is wholly attributable to this tendency of all human employments, and so far from such law being stigmatised as having been invented without authority and entitled to little respect, it is impossible in any system of jurisprudence to dispense with it. It is on the same footing as all other expositions and adaptations of law. The bye-laws made by corporations, collegiate, and statutory bodies invested with administrative powers are all examples of the same tendency. No code could descend into all the minute particulars to which it is found necessary to enforce attention in conducting local affairs and carrying out special purposes; hence the same result is secured by investing some body or authority with necessary powers to carry out the general purpose, and to define through the medium of bye-laws the methods by which it is to be secured. The tendency of all persons charged with general duties to use subordinate rules and methods in carrying out their work is an inevitable accompaniment of such work. When a general sends his officer to execute a certain operation in the field, it is impossible to give even in outline all the details of the process or the successive steps by which the result is to be arrived at. Much of the detail must be invented by the subordinate charged with the execution of the work as each step of the work advances. In the same way, judges and courts, who have the duty of applying a general rule or statute, must inevitably invent many of the details of the machinery, and so give rise to what has been called judiciary law, but which is of equal authority with any other description of law.1

The mystery surrounding the growth of what is called the common law, and all that law which cannot be traced

1 In Rome the province of legislation was silently invaded by the expounders of ancient statutes, such as the Twelve Tables.-Gibbon, Rom. Emp. ch. xliv.