ment and supplementation in the future. The Romans, for the two or three centuries before Hadrian, had their unlicensed prudentes freely suggesting modifications in their law, the best of which were presumably incorporated in that law year after year by the Praetor. After Hadrian they had the multifarious rules emitted by their licensed prudentes -rules which conflicted wonderfully little but still did occasionally conflict with one another, and gradually formed a confused and perplexing mass". Contemporary with, and surviving, this irregular legislation was the supreme legislative of the Emperor, generally exercised to the last from wise and beneficent motives, but only exercised in an intermittent and occasional manner.

In modern times, besides the ordinary legislative power, whether of original enactment or of authentic interpretation, we find a considerable variety in the special provisions, if provisions they can be called, for this particular object. The French have their jurisprudence, answering nearly to the German praxis, the Germans their wissenschaft and praxis, together known as Jurisprudenz 5o. The different elements included under these names have different and undefined degrees of influence, amongst which the regard due to decided cases appears to be gaining somewhat the predominance. The Prussians have exceptional provisions for supplementary enactment called out by direct judicial experience. We have our Case-law.

Of all the means here mentioned the Roman Praetorian system seems to be the best, and our own, in spite of its faults, the best practicable. It is from no prejudice in favour of the latter that I am led to this conclusion, but 46 Above, p. 294.

47 Ib. 295-7.

48 Ib. 231. The prospective and universal character of authentic interpretation is, I may add, very clearly stated in the Austrian Gesetzbuch (Einl. § 8).

49 Above, p. 224.

50 See above note 30.

mainly from the fact that it is being gradually adopted in other countries: where however the uncertainty of authority appears to be a weak point.

I have spoken before of the value of the materials with which our Case-law furnishes us. That these materials require to be very much diminished in bulk, as well as generalised in form, is I think generally admitted. But I doubt whether they would be advantageously reduced to the rare cases which, as I understand the law of Prussia, would come before its legislative commission or "Chief of Justice." Nor do the individual difficulties whereby the Prussian machinery is set in motion appear so likely to produce comprehensive legislation as the general view of a number of cases. All these considerations seem to point to a retention of our Case-law and our system of reporting, but subject to an authoritative periodical digest. By this I do not understand a mere collection of the "headnotes" of cases: but a deliberate review of all the judgements reported in the period, resulting in the elimination of all unimportant cases, in the clearing away of all particular circumstances, and in the extraction of general rules, arranged according to the clauses of the Code. After such a Digest of Case-law has been made, just as in the first instance of the Digest preliminary to the Code, any reference in Court to its constituent materials should be, if not prohibited, at least strongly discouraged 52. To secure a sufficient amount of generality and a diminution in bulk, it would be desirable not to fix too short a period: not less for instance, than five years.

Such a transformation of Case-law into matter, statutory in form if not in enactment, would certainly be a possible, though as certainly a very responsible, undertaking. By no one could it be better performed than by our judges 51 Above, pp. 264, 5. 52 Above, p. 390.

themselves, and it is probable that this would be regarded, by a sufficient number of the judges, as an agreeable variation of their labour. In any case, it might be very advantageously left to a judge to reject, at the end of each year, such reported cases of his own decision as appear to him unnecessary to be retained. The tendency to overreporting, which is natural and excusable enough, would be, in this manner, subjected to some check, or, at least, corrective.

The views here expressed do not contemplate any new legislative power, nor the giving to Case-law any greater authority than it at present possesses. Proposals for distinctly new legislation to fill up the lacunae observed in practice, would come with great effect and much benefit from such a body of Case Digesters as has been suggested, but would need to be enacted in the usual way.

Nor, to conclude, is any permanent provision of this kind essential to the scheme of Codification. That stands on its own merits, which almost every civilised nation has practically acknowledged; for, even in the most imperfect carrying out of the scheme, they have far outweighed the trouble that must be taken and the slight disturbance of established ideas that may be caused.

53 See above, p. 263.