Page:Popular Science Monthly Volume 20.djvu/389

Rh 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 amendment 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 hostile to the theory of innovation upon which nearly all legislation proceeds, 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 methods of amendment, however vicious or clumsy, as had then been efficiently 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 distinctions where there was really no difference, and of detecting resemblance 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 development. The agencies by which early societies modified their law and which discharged imperfectly, indeed, yet almost exclusively, the