which mark a real addition to or change in the law. This truth has come home to the Editor of the Digest in a rather forcible way. It has been his duty, as the successive volumes appeared, to note, in the table of Errata and Corrigenda prefixed to each, the recent changes in the law which have rendered any statement in the previous volumes obsolete or incorrect. Though he has fulfilled this duty to the best of his ability during the last ten years, the tale of his labours has been light, as may be seen by reference to the tables in question; and the impression left upon his mind is one of immense fixity and unchangeableness in the fundamental principles of English Civil Law. This fact may be noted for philosophical consideration hereafter.

Meanwhile, it would seem almost superfluous to call attention at this date to what is familiar to all students of English Law as its most striking and characteristic feature, viz., the overwhelming importance, both in bulk and character, of that part of its principles which rests on judicial decisions. In a general way, this knowledge is commonplace; and a writer who should allude to it might fairly be accused of wasting his reader's time. But it is not quite certain that the full extent of the characteristic is realized by all who profess a lip acquaintance with it; and, in the writer's humble judgment, its full significance is not always understood.

It is, perhaps, difficult to express, in arithmetical terms, the proportion which judiciary law bears to statutory law in the English civil system. But the writer has made a somewhat detailed effort in that direction, and confesses himself startled to find that whereas, to state in fairly complete form the fundamental rules of English Civil Law, it has been found necessary to quote about 1450 statutory provisions (each section of a statute being counted as a separate provision), the same task has required references to not less than 7000 judicial decisions. This fact may, however, be said to be meaningless, unless some estimate be made of the comparative shares contributed by each source of authority to this result. Perhaps, therefore, a sounder conclusion may be drawn from the fact that, out of the 2200 propositions in which, as mentioned at the beginning of this article, the English Civil Law has been embodied in the Digest, only about 800 rest in any way on statutory authority, while not less than 1400 rest on judicial decisions alone. Even this comparison does not, however, bring out the full contribu

tion of the English judiciary to the substance of English Civil Law; for it leaves out of account the fact that two or three of the most frequently quoted statutes, such as the Sale of Goods Act and the Partnership Act, are little more than codified judiciary law, and ought, therefore, fairly to be reckoned as the work of English judges. If allowance be made for these, it seems absolutely fair to say that, as nearly as arithmetical calculation in such a case can go, two thirds of the fundamental rules of the existing English Civil Law have been contributed by the labours of English judges.

And, if we turn from bulk to quality, what a splendid memorial that is to the high sense of justice, the acuteness of intellect, the patience, the industry, of a long line of illustrious occupants of the English Bench. That there have been mistakes, cannot be denied. The doctrine of 'common employment' can hardly be regarded as a happy effort of judiciary law. The series of decisions which has made of the 'tied house system' so sacred a thing that even Parliament now finds itself helpless to abolish it, is not precisely that aspect of English case law of which the admirers of the system are most proud. The efforts of the Courts to build up a rational law of corporate liability have not been entirely successful. The decision in Poulton v. L. S. W. Railway Co.,26 which virtually laid it down that a corporate employer is not liable for the torts of its servants unless it was within its power to authorize them, was, to put it quite plainly, an unfortunate step, which has caused much trouble and some injustice. But, with all allowance for occasional mistakes, a perusal of the 7000 decisions upon which English Civil Law rests, to say nothing of the many others which have been rejected as merely expository, has left upon the writer's mind, as, doubtless, on the minds of others, a feeling of the most profound admiration for the work of the English Bench in the performance of its historic task, and a firm conviction that, in no other way hitherto attempted, could the task of building up the English Civil Law have been so well achieved. These feelings lead naturally to a difficult question: By what authority, and out of what materials, has this task been undertaken and performed? An attempt to answer this question in the light of historical knowledge may lead

26 L. R. 2 Q. B. 534 (1867). The true doctrine is, that an employer is liable for the torts of his servant committed within the scope of his (the servant's) employment.

to interesting conclusions, and, perhaps, to a not wholly orthodox view of the true nature of law.

It is common knowledge, that English judges, at least the judges of the common law jurisdiction,27 have for many generations steadily refused to admit that they make new law; and that, when faced by the apparent contradiction of creative precedents, they have asserted that even these were no true 'legislation' 28-i. e., making of new law, but merely an application of existing principles to new facts. This is clearly the Blackstonian theory, put forward with all Blackstone's charm of style and persuasiveness in the Introduction to his famous Commentaries; 29 and much of the rather cheap criticism and ridicule to which it has been subjected seems really to be quite groundless. We have learned a good deal since Blackstone's day about the origin of the common law (in its restricted sense of law which was formulated only in the judgments of the old courts of the King's Bench, Common Pleas, and Exchequer); and the more we learn of it, the more support do we find, in the facts of history, for the old theory of the common law judges. Shortly put, it may be said to be now the accepted view, that the 'common law' (in the restricted sense alluded to above) is the result of the efforts of the King's judges, mainly in the thirteenth and fourteenth centuries, to build up, out of the varying customs of the different parts of England, that 'common custom of the realm' which Blackstone,30 in the passage just referred to, regards as the equivalent of the common law, and which it was necessary to establish, if England was to become a single commonwealth. The comparison between the Roman Prætor and the English Chancellor at a slightly later stage in the history of English Law, is so familiar as to be almost hackneyed; but it is not always seen that the resemblance between the jus gentium applied by the Prætor and the common law administered by the earlier English judges, is equally striking, not merely in the nature of its materials, but in the meth

27 The apparently contrary claim put forward by the late Sir George Jessel for the Equity judges in re Hallett, 13 Ch. D. 711 (1879), is also well known; but it may be doubted whether Sir George Jessel's words were used in quite the sense in which they are commonly understood.

28 This is an unfortunate term, if it is intended to convey a distinction between old and new law. 'Legislation' is a question of form, not of essence.

29 Introduction, § 3, p. 69.

30 Op. cit., p. 67.

ods of its formulation. There is, in fact, a far greater resemblance between the Register of Writs and the Prætor's Edict, with its list of formula, than between the Edict and the vague processes of the early days of Equity.

But another almost equally important fact in the history of English Law is not so well known; and it deserves to be mentioned here, as it serves to clear away an unnecessary complication, and to reduce to uniformity a process which has hitherto been regarded as manifesting itself in two somewhat inconsistent ways.

It is common to assume, that the special branch of English Law known as 'Equity' did not make its appearance until after the common law, as embodied in the Register of Writs, had virtually ceased to be an expanding system, owing either to the restraints imposed on the invention of new writs by the jealousy of the newly-created Parliament, or to the growing conservatism of the common law judges. This is a natural assumption from the fact that the separate jurisdiction of the Chancellor became prominent just at the time when the Register of Writs (despite the well-known provision of the Statute of Westminster the Second 31) was practically closed. But recent researches 32 seem to place it almost beyond dispute that, at a considerably earlier date, not merely the grievances, but even the remedies, which we have been wont to associate peculiarly with the Court of Chancery, were familiar to the common. law tribunals, and, what is more, that they were dealt with and administered, not only in Westminster Hall, but also on the local circuits. The truth appears to be, that English 'common law' and English 'equity' had almost precisely similar origins, in the claim of the King's prerogative to redress the grievances of his subjects, and that they differed mainly, if not entirely, in the fact, that the older tribunals, having adopted a special form of procedure for dealing with these grievances, and offered their remedies

31 13 EDW. I, st. I, c. 24 (2). Of course the importance of the action of 'Case,' introduced by this provision, must not be underestimated. (As to this, see the author's SHORT HISTORY OF ENGLISH LAW, at pp. 137-45.) Still it is clear that, for some reason, this provision had only a limited operation.

32 See especially Mr. Bolland's edition of THE EYRE OF KENT (in 1313-14) for the Selden Society (Vols. 24, 27, 29), especially Vol. 27, pp. xxi-xxx, and the articles of Dr. Hazeltine, 'Early History of English Equity,' in ESSAYS IN LEGAL HISTORY, Oxford, 1913, and Professor G. B. Adams, 'Origin of English Equity,' 16 COL. L. REV. 87. See also Mr. Bolland's SELECT BILLS IN EYRE, also in S. S. series (Vol. 30).

on these terms as a matter of right, rejected other forms of procedure (and, almost inevitably, therefore, all grievances which were not capable of being dealt with by that procedure), while the Chancellor made a new and vigorous, but discretionary,33 use of the rejected grievances and others of a similar nature, and thus rapidly built up a large supplementary jurisdiction.

Is there any real reason to doubt that, in framing the rules of Equity, the Chancellors relied mainly on the materials which had previously served for the formulation of the common law? The Chancellors did not, of course, underestimate the value of popular catchwords, such as 'grace,' 'conscience,' and 'equity' - i. e., equality; but these served them rather as ideals than as practical guides. It may be that we owe one or two equitable doctrines (e. g., the doctrine of 'clogging the equity of redemption' 34) to the Canon Law, or to the Roman Law.35 Most of the early Chancellors had a bowing acquaintance, at least, with one or other of these systems. But can any one doubt that, under such vague expressions as the 'Law of Nature' or the 'principles of Equity,' what the early Chancellors really did was to sanction and enforce rules of conduct which had already established themselves among the better members of the community - that when, for example, they began to enforce uses or trusts, they merely bound the lower type of citizen to do what every decent citizen already felt himself bound to do, or that, when they laid down the famous maxim: 'once a mortgage, always a mortgage,' they merely formulated a principle upon which all reasonable mortgagees, as distinguished from sharks of the type of Trapbois, already acted?

Is this a suggestion which belittles the high office of the judge as an expounder of law, or which the judges themselves would repudiate? To the latter question, the frequent appeals of the common law judges to the conduct of the 'average reasonable citizen' in fixing the standard of negligence, or of the Equity judges to the 'man of ordinary prudence' in the administration of trusts 36

33 The principle that the common law is ex debito justitiæ, while Equity is ex gratiâ, is, perhaps, the most fundamental distinction between common law and equity still subsisting.

34 The connection was probably through the Usury Laws.

35 A good example is the well-known equitable doctrine of 'marshalling,' which is the Roman subrogatio.

36 See the well-known dictum of Lord Watson, in Learoyd v. Whiteley, L. R. 12