very well not have been the person in fault.  But such has not been the view of those most competent to judge.  A consideration of the earliest instances will show, as might have been expected, that vengeance, not compensation, and vengeance on the offending thing, was the original object.  The ox in Exodus was to be stoned.  The axe in the Athenian law was to be banished.  The tree, in Mr. Tylor’s instance, was to be chopped to pieces.  The [35] slave under all the systems was to be surrendered to the relatives of the slain man, that they might do with him what they liked. 1 The deodand was an accursed thing.  The original limitation of liability to surrender, when the owner was before the court, could not be accounted for if it was his liability, and not that of his property, which was in question.  Even where, as in some of the cases, expiation seems to be intended rather than vengeance, the object is equally remote from an extrajudicial distress.

The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law.  In form its growth is logical.  The official theory is that each new decision follows syllogistically from existing precedents.  But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten.  The result of following them must often be failure and confusion from the merely logical point of view.

On the other hand, in substance the growth of the law is legislative.  And this in a deeper sense than that what the courts declare to have always been the law is in fact new.  It is legislative in its grounds.  The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life.  I mean, of course, considerations of what is expedient for the community concerned.  Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, [36] under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis.  And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that, when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at last a new form, from the grounds to which they have been transplanted.

But hitherto this process has been largely unconscious.  It is important, on that account, to bring to mind what the actual course of events has been.  If it were only to insist on a more conscious recognition of the legislative function of the courts, as just explained, it would be useful, as we shall see more clearly further on. 1