old maxims as sacred
because no obvious reason could be assigned for them. He was suspicious
of abstract theories, and it did not even occur to him that any such
process as codification or radical alteration of the laws was
conceivable. For the law itself he had the profound veneration which is
expressed by Blackstone. It represented the 'wisdom of our ancestors';
the system of first principles, on which the whole order of things
reposed, and which must be regarded as an embodiment of right reason.
The common law was a tradition, not made by express legislation, but
somehow existing apart from any definite embodiment, and revealed to
certain learned hierophants. Any changes, required by the growth of new
social conditions, had to be made under pretence of applying the old
rules supposed to be already in existence. Thus grew up the system of
'judge-made law,' which was to become a special object of the
denunciations of Bentham. Child had noticed the incompetence of the
country-gentlemen to understand the regulation of commercial affairs.
The gap was being filled up, without express legislation, by judicial
interpretations of Mansfield and his fellows. This, indeed, marks a
characteristic of the whole system. 'Our constitution,' says Professor
Dicey,[9] 'is a judge-made constitution, and it bears on its face all
the features, good and bad, of judge-made law.' The law of landed
property, meanwhile, was of vital and immediate interest to the
country-gentleman. But, feeling his own incompetence, he had called in
the aid of the expert. The law had been developed in mediaeval times, and
bore in all its details the marks of the long series of struggles
between king and nobles and parliaments. One result had been the
elaborate series of legal fictions worked out in the conflict between
private interests and public policy, by which lawyers had been able to
adapt the rules fitted for an ancient state of society to another in
which the very fundamental conceptions were altered. A mysterious system
had thus grown up, which deterred any but the most resolute students. Of
Fearne's essay upon 'Contingent remainders'(published in 1772) it was
said that no work 'in any branch of science could afford a more
beautiful instance of analysis.' Fearne had shown the acuteness of 'a
Newton or a Pascal.' Other critics dispute this proposition; but in any
case the law was so perplexing that it could only be fully understood by
one who united antiqu