Having noted and enlarged upon the his torical character of the life-pledging con tract, a contract which eventually crystal lized into law, Mr. Billson goes on to say that "the conservatism of such communi ties was so controlling that when, through changed social conditions, a modification of existing law became unavoidable, the ten dency was, while adhering nominally to the old law, to inflict penalties upon or in some way obstruct those who attempted to assert rights under it; an expedient whereby the effects of amendment might be obtained without a confessed abandonment of ancient principles." This brings us close to our subject, and here we see that while the letter of the law stood for the validity of the bond given by Antonio to the Jew, the more advanced spirit of jurisprudence pointed in the opposite direction. This view is sustained by Pro fessor Kohler, who, speaking of those inept survivals from early conditions of society, declares that, " long before the law branded as illegal the execution of such practices against insolvent debtors, popular opinion regarded such practices, even when counte nanced by law, as disgraceful and inimical to the interests of society." We return now to Mr. Billson. " In the domain of law, quibbling had substantial functions, and paved the way for reforms otherwise unattainable. We have already had occasion to notice why ancient societies required methods of reformation not involv ing 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 fruit ful 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 hostile to the theory of innovation upon which nearly all legislation proceeds, the only alternative was between an absolutely unprogressive condition of 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 en larging the operation of legal principles; and exercised, as it usually was, in aid of the finer sentiments and more advanced con ditions of a later age, against the crude customs of an earlier, was an important factor in legal development." Speaking still more directly of the case of Shylock, Mr. Billson says: " It thus repre sents the very marked propensity of early societies to assail an obnoxious legal right indirectly through its remedy; impairing the latter either by regulations making a resort to it difficult or impossible, or by en cumbering its exercise with stringent and technical limitations, the non-observance of which would subject the party to heavy penalties." Professor Kohler is also in some sort an apologist for the Portian quibble. Says he : "The sentence is good, but its premises are bad; which is, after all, much to be pre
