112 The Evolution of Law. 



the difference of the circumstances from those of any 

 previous case, is the amount of new law made. Yet 

 the books and the case-lawyer would have us believe that 

 this decision was somehow implicit and potential in the 

 judgment of the Court in a case tried before Lord Holt 

 in 1704, in which the plaintiff brought suit against the de- 

 fendant for loss occasioned by his having undertaken to 

 haul and deliver a cask of brandy ; which he did with 

 such negligence that it fell out of the cart and was staved, 

 so that the brandy was spilt upon the ground, to the great 

 loss of the plaintiff. 



The thorough-going theory of the law of judicial de- 

 cision is that a rule or principle is somewhere to be found 

 in reports which will fit the facts of any case in trial and 

 serve as a precedent. Yet, as Maine says, '' the moment 

 ^'tlie judgment has been rendered and reported, we slide 

 ^' unconsciously or unavowedly into a new train of thought. 

 " We noAv admit that the new decision has modified the 

 '' law. The rules applicable have to use the very in- 

 ^' accurate expression sometimes employed become more 

 ^' elastic. In fact they have been changed." 



The growth of judicial law is a process of continuous 

 adjustment of the rules of previously determined law to 

 conditions ever varying. As gradually and slowly as the 

 simple means of transport used in old times the heavy 

 wagon dragged through many miles of mud develops 

 into the long train of cars running on its iron track, with 

 all the attendant complexity of commercial incidents, so, 

 slowly and running parallel with it, taking up small in- 

 crements along the course of growing commerce, with 

 some help from legislation, does the law of Carriers 

 groAV to a comprehensive system adequate to the needs of 

 a complex civilization. 



And so each part of the law rapidly increases, following 

 civilization as it advances, until at last the total becomes a 

 vast bulk of judge-made laws ; eacli part very great, the 

 Avhole enormous ; recorded in 8,000 volumes of reports, 

 the despair of lawyer and legislator ; tlie result of the 

 progressive deduction of rules and principles by a process of 

 distinguishing, by small variation, variations from previous 

 cases, similar, but not identical ; so that when a decision is 

 made, some increment is added to the body of the law, or sub- 

 stitution of new for old is made, even to such a degree that 



