This is scarcly encouraging for our intelligent
foreigner. But we may, at least, take our
inquiring Frenchman up to the splendid array
of our written " unwritten law," and introduce
him to the tremendous army of

THE REPORTS.

The progress of the model Briton is directed
in the way he should go, by two species of
public guides: one, the plain palpable act of
parliament: the other, a sort of custom, or
common law, which is transmitted through the
heads of a series of grand " mystery-men," and
has no tangible existence whatever. As they,
however, are supposed to have the secret of this
airy code which is transmitted from one to the
other, there are certain skilled scribes always
present, who carefully note down and record
whatever drops from the mouths of the great
mystery-men. As the tradition is always
supposed to be the same, when one of their sages
is about to expound the law, whatever one of
his predecessors has said on the subject is read,
and pressed upon him, and so he decides. Those
platoons of volumes, almost uncountable, contain
more true and false reasoning, more law and no
law, more gold of sense and rubbish of nonsense,
more knowledge of human nature, more grand
principles, more brilliant essays, than are to be
found in any series in the world. Yet the whole
is an overpowering mass of wild disorder and
confusion: a perfect jungle of repetitions, statements,
re-statements, denials, qualifications, and
even conversations. Like the statutes, a huge
portion has become useless by alteration or
abolition of what it deals with.

To set our intelligent foreigner at large in such
a prairie, would be idle. There is neither beginning
nor end, top, bottom, nor middle. It is
incomplete at this hour, and as far as ever from
completion, for it seems likely that every case, no
matter how stale in principle, or how familiar
to all, is to have the honours of being reported
afresh. The books, therefore, groan with
verbiage— wholesale, undiscriminating verbiage and
repetition.

The theory of reporting is this. It is
desirable that our impalpable common law should
be, as nearly as possible, constant and unchangeable,
and that each judge should decide on the
same principle as his predecessor. These reports
become the guides and evidence of what has
been the law, and are, as such, very valuable.
Valuable, too, as preserving the expositions of
eminent judges, who have actually often by a
single judgment on a, perplexing point " settled"
the state of the law. But it can be no profit
to load the page with desultory conversations
between bench and bar, with interruptions,
questions, "possible cases," which are really no
more than mere experiments made by the judge
for "testing" the question, and helping his mind
to arrive at some conclusion. As " dicta" and
sentiments "thrown out" by judges of eminence
in the course of argument carry a certain weight,
they are often wrested violently from the
context and imported into a sinking case, and stop
an enlarging leak. British judges are sadly
overworked, and this appeal to authority, if a
really fair precedent is presented to them, does
indeed save the trouble and weariness of a
decision on personal responsibility. There is no
question that the counsel who comes freighted
with a case " Pat" and " All Fours" in point
with the one before the court, has a tremendous
vantage-ground. The court is " coerced" by the
authority.

Far more wisely do they order this matter
in France. The famous code, at its threshold,
forbids judges deciding cases purely on authority,
but requires each to be judged according
to the spirit of the code, as it seems to suit the
case itself. Judges are assisted by reports
of previous cases on the same point, but are
not bound by them. The result is, that French
suitors have never to listen to so distressing
a declaration as sometimes comes from the
British bench. " This seems a hard case, and,
if I were called on to decide the question now,
for the first time, I should not hesitate; but I
am bound by the authority; I have no choice."
Sometimes judges are found manly enough to
break these fetters, as Lord Mansfield courageously
did on several occasions, declaring that he
could not accept the case quoted, as law, and
that he declined to be bound by it. It is
incalculable the influence a few of these bold
instances have had upon the system, and from
what anarchy they have rescued it.

Counsel, too, who are really seeking to
discover what the law is—no simple task under the
most favourable circumstances— are bewildered
by the lavishness of the information showered
on them by these reports. They count up cases
with infinite difficulty, cases with deceitful lying
titles, which seem to settle definitely their own
especial case; and, after wading through what
amounts to a large treatise, find that it is a bare-
faced illusion, and has only an apparent reference
to the point. More disheartening still, it will
be found to deal with a point that has been over
and over again fought, debated, conquered, and
decided. The old principle is at the bottom,
but the reporter has been misled by a cloud of
bewildering particulars. There is a famous
statute of Charles the Second's, known as the
Statute of Frauds, which regulates all commercial
transactions, and which decides that agreements
above certain values must be in writing.
This important condition has been argued,
contested, strained, weakened, strengthened,
weakened again, in many thousands of cases. After
over a hundred years' working— namely, in the
year 1785— a certain painstaking Mr. Harrison
collected all the cases into a Digest, and boiled
down and extracted from a multitude of
decisions what was really the meaning of the act.
By that time the unfortunate statute had surely
been twisted and elongated, and stretched in
every direction, and had been tried and fitted to
almost every conceivable case. Still, for eighty
years—that is, since the Digest— the old
difficulties and old cases have been put forward in
thousands, disguised, of course, more or less