THE ANATOMY OF AN OLD ANECDOTE. 375 



Shylock's right to the pound of flesh, he should be held to incur death 

 if, waiving a part, he took less than was called for by his bond. Yet that 

 such a quibble was not always impossible, but is probably historical, 

 must be inferred from the fact that the laws of the Twelve Tables, after 

 authorizing the creditors of an insolvent to divide his body between 

 them in the proportion of their respective claims, expressly provides 

 that no creditor shall incur liability by taking, without bad faith, either 

 more or less than his share. Whether this protection to the creditor 

 taking less than his share was, as seems probable, enacted in settlement 

 of an old and mooted question or only in anticipation of a new one, it 

 is in either event highly significant as having been thought necessary 

 in order to preclude just such a construction of the law as the judge 

 in our story placed upon the bond. 



Nor was the quibbling infirmity without its compensations. In the 

 domain of law, at least, it had substantial functions, and paved the way 

 to reforms otherwise unattainable. We have already had occasion to 

 notice why ancient societies required methods of reformation not in- 

 volving an avowed abandonment of established rules. To leave such 

 rules nominally intact, and at the same time to indefinitely curtail or 

 enlarge their operation by the withdrawal or addition of particular 

 classes of cases through judicial construction, was a mode of legal 

 amendment eminently adapted to the genius of such communities, and 

 fruitful of many beneficent modifications of the law. It was a matter 

 of minor consequence whether such modifications were effected by 

 sound arguments or quibbles. In an age habituated to the amend- 

 ment of law by legislation, nothing can be said in defense of the 

 vicious practice of judicial quibbling. However faulty existing law 

 may be, legislation is the appointed, effective, and only appropriate 

 agent for its reformation. But, during the ages when men were as 

 ignorant of the processes of legislation as they were implacably hos- 

 tile to the theory of innovation upon which nearly all legislation pro- 

 ceeds, the only alternative was between an absolutely unprogressive 

 condition of the law and an effort to bring it into harmony with the 

 requirements of an ever-advancing society by a resort to such meth- 

 ods of amendment, however vicious or clumsy, as had then been effi- 

 ciently evolved. The reform of law by judicial construction, however 

 forced and illogical, being a much more familiar and agreeable process 

 than amendment by legislation, the art of quibbling, of drawing dis- 

 tinctions where there was really no difference, and of detecting resem- 

 blance though there was no essential similitude, was employed with 

 no inconsiderable effect in contracting or enlarging the operation of 

 legal principles ; and, exercised, as it usually was, in aid of the finer 

 sentiments and more advanced conditions of a later age, against the 

 crude customs of an earlier, was an important factor in legal develop- 

 ment. The agencies by which early societies modified their law and 

 which discharged imperfectly, indeed, yet almost exclusively, the func- 



