th respect to that great portion of our legal
system which is enshrined in cases and recorded in law reports, we
habitually employ a double language and entertain, as it would
appear, a double and inconsistent set of ideas. When a group of facts
come before an English Court for adjudication, the whole course of the
discussion between the judge and the advocate assumes that no question
is, or can be, raised which will call for the application of any
principles but old ones, or any distinctions but such as have long
since been allowed. It is taken absolutely for granted that there is
somewhere a rule of known law which will cover the facts of the
dispute now litigated, and that, if such a rule be not discovered, it
is only that the necessary patience, knowledge, or acumen is not
forthcoming to detect it. Yet the moment the judgment has been
rendered and reported, we slide unconsciously or unavowedly into a new
language and a new train of thought. We now admit that the new
decision _has_ modified the law. The rules applicable have, to use the
very inaccurate expression sometimes employed, become more elastic. In
fact they have been changed. A clear addition has been made to the
precedents, and the canon of law elicited by comparing the precedents
is not the same with that which would have been obtained if the series
of cases had been curtailed by a single example. The fact that the old
rule has been repealed, and that a new one has replaced it, eludes us,
because we are not in the habit of throwing into precise language the
legal formulas which we derive from the precedents, so that a change
in their tenor is not easily detected unless it is violent and
glaring. I shall not now pause to consider at length the causes which
have led English lawyers to acquiesce in these curious anomalies.
Probably it will be found that originally it was the received doctrine
that somewhere, _in nubibus_ or _in gremio magistratuum_, there
existed a complete, coherent, symmetrical body of English law, of an
amplitude sufficient to furnish principles which would apply to any
conceivable combination of circumstances. The theory was at first much
more thoroughly believed in than it is now, and indeed it may have had
a better foundation. The judges of the thirteenth century may have
really had at their command a mine of law unrevealed to the bar and to
the lay-public, for there is some reason for suspecting that in secret
they borrowed freely, thou