366 LAW covers over three hundred pages, of which fully two-thirds are occupied with the legislation of the last hundred years. This activity varies of course at different times, and the variations even in recent times have been remarkable. And, large as are the contributions of modern parliaments to the law, it is notorious that but for defects in the legislative machinery they would be much larger. Nor is this activity to be accounted for by the theory that the domain of law is more intrusive than in earlier times. There has undoubt edly been within the last generation a steady increase in the control asserted by the state over the habits of its citizens, for some account of which reference may be made to the article GOVERNMENT. But on the whole the range of action with which the English law declines to interfere is probably as great now as it ever has been in civilized societies. The true explanation is that parlia ment has effectually secured for itself exclusive authority as the source of legal changes. The violent assault of Bentham on judiciary law was but the echo of the lesson taught by the English judges as to omnipotence of parlia ment, and thoroughly understood and accepted by popular opinion. To that is due the caution, not to say timidity, which now characterizes the judicial interpretation of statutes. The courts adhere to the literal meaning of the enactment unless compelled to open it by its too frequent absurdity or self-contradiction. If there is any way out of a difficulty which will not involve the slightest addition to the enacted law, that will be the way followed by judicial decision, This attitude is a complete reversal of that which once prevailed in the courts, when the law embodied in decided cases, pure drawn from the fountains of justice, was deemed superior in dignity to the enactments of an unlearned parliament. The tribunals, in so far as they now make law, operate much more freely on the cases than on the statutes.
The consequence of this relation of the judiciary and the legislature is that, while great reforms are no doubt accelerated, small reforms have to wait. Parliament does in a single session that which would have taken ages to accomplish under the natural agencies of equity and fiction, and much which would never have been brought about by these agencies at all. But the capacity of parliament is limited, and so is its foresight. The work of legislation is left in complete, and the judicature carefully avoids completing it, leaving the legislature to take it up again when it may. An instance in point is the late history of the law of evidence. This portion of the law grew to maturity in the courts, whose creation it was. It has been wholly transformed by direct legislative enactment (under the influence of Benthamite principles), Act after Act being passed as occasion pointed out defects in what had already been accomplished. One of the latest Acts on the subject simply enables parties and their husbands or wives to give evidence in a certain class of indictments. The substitution of an affirmation for an oath has been carried out in the same piecemeal fashion, the courts refraining from developing the principle of the amendments, as they would have done if the movement had originated with themselves and in an earlier stage of their history. The most portentous example of the intervention of the legislature to complete the exact details of its enactments is the Act previously noticed, which orders the word "this" to be interpreted as "that." The defects of existing legislative methods in England result in some defects in the form of the law, which the tribunals are free to criticize but not to correct. An Act of Parliament bears upon its face the marks of the tumultuous discussion of a large popular assembly, and of the compromise which reconciles the opposing views of the two Houses. Very few Acts, no matter what care may be employed in framing them, are promulgated in the form best suited for actual exercise, – in the form which would be given to them by an intelligent legislator, charged with the expression of the principle which parliament is supposed to have sanctioned.
In what has been said regarding the relations of the legislature and the judicature it is not implied that the manufacture of case-law by the latter has ceased. On the contrary, it goes on with yearly increasing volume, and the immense accumulation of decided cases is one of the evils of the present state of the law. The hand of precedent never lay heavier on the conscience of the judge than it does now. The necessary literature of the law is increased by a dozen large volumes every year. The law becomes more voluminous without becoming more elastic or more systematic. The stereotyped judicial habit is to follow absolutely the precedents set by every tribunal of higher rank, and almost absolutely those set by tribunals of coordinate rank. A careful semi-official record has taken the place of the private reports published by lawyers privileged by the courts to take notes of their proceedings. Every case of any importance is recorded and becomes a precedent which the practising lawyer in future must know, and which the judge must follow. The minute detail into which legal literature is thus made to descend is becoming an intolerable load; and it is a question whether some revolution in respect to precedents is not becoming necessary.
Legislation by judges has its counterpart in the use of legislative forms for judicial purposes. Long after legislative and judicial functions have been separated, we find legislative acts serving the purpose of judicial decisions. The history of English law is full of examples, the best known of which is that of divorce. The practice of passing private bills of divorce, at a time when the technical law did not allow of that remedy, hardened into a purely judicial practice. The Act which established the Divorce Court did not in effect do more than create a new and better tribunal. So with the General Enclosure Act, which took over from the legislature the purely judicial work of sanctioning enclosures in proper cases.
Comparative jurisprudence, in the sense in which it is distinguishable from historical jurisprudence, can scarcely be said as yet to have a separate existence. Since Leibnitz projected his youthful scheme for tabulating the laws of all the countries of the world, and exhibiting their correspondence and differences by parallel columns, little or nothing has been done for the comparison of laws except in connexion with history. One special line of study does indeed use what may be called a comparative method. The "conflict of laws" involves at least a contrast of a vast number of important points in which the laws of different nations disagree. The object of the study of this conflict is of the practical kind which comparative jurisprudence as here conceived is meant to subserve. It is to develop some rationale of decisions where two or more discordant rules claim exclusive application to the case. There are circumstances which seem to show that the mere comparison of laws with no other object but that of discovering in how many ways the same thing can be done, and which way is the best, will enter more and more into the higher legal studies. For one thing, the vast increase which has taken place in the means of communication between nations has made a knowledge of each other's laws a matter of imperative necessity, and has broken down, at least as between the most advanced nations, that barrier of insularity which formerly shut out all suggestions of improvement from abroad. We have already emphasized the marked extent to which this exclusiveness has characterized English law, and we cannot but regard it as typical of a new temper that in preparing for the solution of important problems of
