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that this English practice of never declaring a legal rule
authoritatively until a state of facts arises to which it can be
fitted； is the secret of the apparent backwardness and barrenness
of English law at particular epochs； as contrasted with the
richness and reasonableness of other systems which it more than
rivals in its present condition。 It is true； as I said before；
even of the Brehon law； that it does not wholly disappoint the
patriotic expectations entertained of it。 When they are
disencumbered of archaic phrase and form； there are some things
remarkably modern in it。 I quite agree with one of the Editors
that； in the ancient Irish Law of Civil Wrong； there is a
singularly close approach to modern doctrines on the subject of
Contributory Negligence； and I have found it possible to extract
from the quaint texts of the Book of Aicill some extremely
sensible rulings on the difficult subject of the Measure of
Damages； for which it would be vain to study the writings of Lord
Coke； though these last are relatively of much later date。 But
the Brehon law pays heavily for this apparent anticipation of the
modern legal spirit。 It must be confessed that most of it has a
strong air of fancifulness and unreality。 It seems as if the
Brehon lawyer； after forming （let us say） a conception of a
particular kind of injury； set himself； as a sort of mental
exercise； to devise all the varieties of circumstance under which
the wrong could be committed； and then to determine the way in
which some traditional principle of redress could be applied to
the cases supposed。 This indulgence of his imagination drew him
frequently into triviality or silliness； and led to an
extraordinary multiplication of legal detail。 Four pages of the
Book of Aicill （a very large proportion of an ancient body of
law） are concerned with injuries received from dogs in
dog…fights； and they set forth in the most elaborate way the
modification of the governing rule required in the case of the
owners in the case of the spectators in the case of the
'impartial interposer' in the case of the 'half…interposer；'
i。 e。 the man who tries to separate the dogs with a bias in
favour of one of them in the case of an accidental looker…on
in the case of a youth under age； and in the case of an idiot。
The same law…tract deals also with the curious subjects of
injuries from a cat stealing in a kitchen； from women using their
distaffs in a woman…battle； and from bees； a distinction being
drawn between the case in which the sting draws blood and the
case in which it does not。 Numberless other instances could be
given； but I repeat that all this is mixed up with much that even
now has juridical interest； and with much which in that state of
society had probably the greatest practical importance。
It is not； perhaps； as often noticed as it should be by
English writers on law that the method of enunciating legal
principles with which our Courts of Justice have familiarised us
is absolutely peculiar to England and to communities under the
direct influence of English practice。 In all Western societies；
Legislation； which is the direct issue of the commands of the
sovereign state； tends more and more to become the exclusive
source of law； but still in all Continental countries other
authorities of various kinds are occasionally referred to； among
which are the texts of the Roman Corpus Juris； commentaries on
Codes and other bodies of written law； the unofficial writings of
famous lawyers； and other branches of the vast literature of law
holding at most a secondary place in the estimation of the
English Judges and Bar。 Nowhere； however； is anything like the
same dignity as with us attributed to a decided 'case；' and I
have found it difficult to make foreign lawyers understand why
their English brethren should bow so implicitly to what Frenchmen
term the 'jurisprudence' of a particular tribunal。 From one point
of view English law has doubtless suffered through this
reluctance to invent or imagine facts aS the groundwork of rules；
and it will continue to bear the marks of the injury until
legislative re…arrangement and re…statement fully disclose the
stores of common sense which are at present concealed by its
defects of language and form。 On the other hand； these habits of
the English Courts seem to be closely connected with one of the
most honourable characteristics of the English system； its
extreme carefulness about facts。 Nowhere else in the world is
there the same respect for a fact； unless the respect be of
English origin。 The feeling is not shared by our European
contemporaries； and was not shared by our remote ancestors。 It
has been said and the remark seems to me a very just one
that in early times questions of fact are regarded as the
simplest of all questions。 Such tests of truth as Ordeal and
Compurgation satisfy men's minds completely and easily； and the
only difficulty recognised is the discovery of the legal
tradition and its application to the results of the test。 Up to a
certain point no doubt our own mechanism for the determination of
a fact is also a mere artifice。 We take as our criterion of truth
the unanimous opinion of twelve men on statements made before
them。 But then the mode of convincing； or attempting to convince；
them is exactly that which would have to be followed if it were
sought to obtain a decision upon evidence from the very highest
human intelligence。 The old procedure was sometimes wholly
senseless； sometimes only distantly rational； the modern English
procedure is at most imperfect； and some of its imperfection
arises from the very constitution of human nature and human
society。 I quite concur； therefore； in the ordinary professional
opinion that its view of facts and its modes of ascertaining them
are the great glory of English law。 I am afraid； however； that
facts must always be the despair of the law reformer。 Bentham
seems to me from several expressions to have supposed that if the
English Law of Evidence wer