humanity. A positive law, having been once created, should be improved continuously and patiently: it grows with the society that gave it life and power. It is like a large house, made fit for human habitation and standing on a solid basis; nothing but some general calamity makes it fall to ruins. The international law of Europe is a child of modern civilisation. It sprang into being from practical necessity, par la force des choses. Its growth was as natural as the growth of the Christian world, founded on justice, supported by conscience, and by the common interests of humanity; its principles are firm and invulnerable. Political storms and convulsions may reform some of its provisions, but the general edifice stands consolidated by the Christian religion, by philosophy, by the experience of ages, and by the opinions of honest men.

There are, however, still sophists and sceptics in this world, who make violent attacks on international law, and try to depreciate our knowledge of it. I revert to them once more, only to exhibit their new failure. You have heard, perhaps, of the recent work of Proudhon (La Paix et la Guerre), two volumes, published at Paris last year. It belongs to the class of books read by the multitude, and written in popular language. I have perused it carefully, and am able now to give here my opinion of it. Its author is the celebrated sophist of our time. He wrote some pamphlets about political economy, and combated successfully its doctrines. The revolutionary party of continental Europe proclaimed him the greatest of philosophers. After the appearance of his book on Justice (1860), with a bold epigraph, destruam et ædificabo, it might have been expected that he reserved his most dreadful blows for the international jurisprudence of Europe. They are struck at last, and its edifice stands unimpaired. We are out of danger; there is no harm in the sophistry of M. Proudhon. His work does not deserve to be seriously criticised. It is utterly insignificant. In his first volume, our sophist tries to prove that war is a religion of humanity, and that every effort for mitigating it is useless; in his second, that war is the result of pauperism, and will be extinguished with it. The right of force (droit de la force), according to Proudhon, is established in human societies. by

natural law, as firmly as the rights of love, of labour, and of intellect. I do not know whether you understand this new classification of human rights; to me it appears senseless. In asserting that war is the universal religion, Proudhon calumniates humanity: his opinions on the right of force, as if it were the foundation of the family, are repudiated by history; nor can I agree with him that war is the result of pauperism. On the contrary, pauperism seems to be the result of war, at least in some countries. However this may be, modern nations have never grown rich by war and conquest. But the most wonderful part of Proudhon's book is its last chapter: he proclaims at the end of it, "que l'humanité ne veut plus la guerre." Why, then? Because humanity has abjured its religion? The same inconsistency we find in his judgments on the works of Grotius, Vattel, and other great lawyers. In his first volume he says they are stupid; in his second, he repeats their opinions in his own manner. If those opinions have no value, why did he not give us new truths? Because he possesses none. His book does not make us wiser; paradoxes, for the most part, are good for nothing. International law, as understood by Proudhon, is worthless, like an arid field; we do not find in it matter for our intellectual food.

I certainly do not affirm that international jurisprudence has attained in our days its utmost perfection. On the contrary, I find in it various defects. But I have strong reasons for expecting its regular development by those who are able to distinguish in it truth from error. A work of many centuries cannot be destroyed and reconstructed at once by such sophistry as that of Proudhon. Human knowledge has in itself an ever-working power of renovation: its history is an incessant battle of discordant opinions. They meet on equal terms, and have a fair trial. An international reformer, I hope, will be better prepared to fight for his idea than was M. Proudhon, and will understand a little more of history. Even in our time, men acquainted with the new exigences of practical life, and defending the interests of civilisation, are sure to be heard. A practical truth, by whomsoever it may be discovered, finds support in human society. International law is gradually gaining ground

in Europe. Great and useful discoveries are made in it by such men as Mohl, Laurent, Hautefeuille, &c. Their example should not be lost on us. Unequal as may be our talents for the great task lying before us, we should never despair of ameliorating and reforming the international law of Christian communities. Let us only be true to our duties of men and of brethren! If we be but impartial in our inquiries and good in our intentions—if we have on our side the strong sense of justice and the feeling of humanity—our works will not perish with us. The international jurists of the nineteenth century can do nothing better than emulate each other in those honest arts by which alone our knowledge has ever been advanced. The surest way for us all is still

Certare ingenio, contendere nobilitate,
Noctes atque dies niti præstante labore,
Ad summas emergere opes rerumque potiri.

577

XXIX. THE EXPEDIENCY OF DIGESTING THE PRE-
CEDENTS OF THE COMMON LAW, AND REGU-
LATING THE PUBLICATION OF REPORTS. BY
GEORGE SWEET, Esq.

(Read 10th February, 1862.)

I PROPOSE very briefly to direct your attention to the state of the precedents of the common law, and to ask you to consider whether it is possible and expedient to extract from the existing records, and perhaps also to classify, all that is valuable in them; to establish the digest so formed as an authority in the place of the existing books; and further to appoint and regulate one sole authentic record of future decisions, which may be incorporated, at stated intervals, in the digest.

The papers on codification and on the common law, which were read before this Society by Mr. Best in the years 1856 and 1857, and which have been printed (a), are doubtless in your recollection; and, with those papers before us, it is scarcely needful to say that I recognize the impossibility of refining the common law to a collection of abstract rules, or of consolidating it in any manner with the statute law.

The statute law is a collection of positive precepts intended to be expressed in precise language, and to be construed as if they were exact and full exponents of the sovereign will. If the provisions of a statute are incomplete or inaccurately expressed, the judge has no power to expand or correct them. Such a law can never rise above the level of the capacity and powers of the individuals who frame it; and, even in proportion to the scientific nicety of its construction, would often be liable to be misunderstood and misapplied, if it were administered without the light of judicial precedents (b).

The common law, on the contrary, exists in precedents, and only in precedent. A precedent is a decision on a particular case, involving a principle to be deduced, not literally from the

(a) Papers read before the Juridical Society, Vol. I. pp. 209, 399.

(b) Consider, for example, the decisions on the Statute of Limitations (3 & 4 Will. IV. c. 27), on the Prescription Act, or on the Succession Duty Act.

words of the judgment, but by inference from the circumstances and the decisions in that and in other cases founded on or illustrating the same principle. The precision which is essential in a statute is needless in the record of a precedent. The material facts of the case, the decision, and an indication of the grounds of the decision, stated with only so much accuracy as a reporter of ordinary capacity and knowledge can command, are the sole elements of a complete precedent. It sometimes even happens that the judge, while he decides rightly, gives a wrong reason for his judgment, without wholly impairing the value of the precedent. In such a case, the acquiescence of the loser without appeal may afford a presumption that his advisers saw other and better reasons for the decision than those stated by the court. From the report of a case we learn, infallibly and with scarcely any dependence on the accuracy of its language, the precise principle on which the decision proceeded, and for which it is an authority. A cluster of such precedents, associated by a community of subject, presents to us a rule with its limits, qualifications, applications, and exceptions, ascertained after laborious and repeated investigation, deliberation, and discussion, in the closet and in court, during successive generations, by the finest legal intellects, and so expressed as to exhibit the mental process by which the results were obtained, and not the mère results abstracted in fixed formula, so that, when a precedent directly in point is not found, light may be drawn from others by inference and analogy. Practical lawyers know, what amateur reformers can scarcely be made to credit or even to conceive, that this induction from precedent is at once more easy and more certain than the interpretation of the most exact written law. Upon it alone depends the existence of the law as a science, its applicability to new and unforeseen cases, and such certainty as it has; and the sovereignty of precedent is the origin and guarantee of social and political freedom, for it is the "breach of custom that is breach of all." Where precedent is not regarded, law cannot be a science, and no code can secure an impartial, pure, and certain administration of justice; for when the common law is said to be flexible, the meaning is not that it can be bent to the wishes of the executive, but that it is applicable to