RS 25

made in a case.Treatise writers were thus given considerable scope to draw on these cases as providing problems and fact patterns which they could explain and classify according to their own preferred formulation. Jurists, as much as judges, could distinguish cases they did not agree with, or simply ignore them. Someone like Frederick Pollock, who became editor of the semi-official Law Reports in1895, was able to exert greater power still, by exercising his judgment on what cases merited reporting.67 Yet if the selection and interpretation of what were ‘important’ cases was then largely a matter for legal writers and publicists, it is not to be assumed that the digesting and presentation of such material was necessarily driven by a strong theoretical view. For alongside those jurists who drew self-consciously on learned models, there were also many influential works which sought to tease the principles of doctrine out of the common law by grouping together strands of case law under the heading of a ‘leading case’,which was thought to originate or encapsulate a key doctrine, and giving glosses on the law found in them. Prime among these was J.W. Smith’s A Selection of Leading Cases inVarious Branches of the Law, the first edition of which was published in 1837, and the thirteenth edition of which appeared in 1929.68 If this is to suggest that we should not exaggerate the influence of abstract theory on the development of areas of common law(such as contract), it is not to argue that the judges and jurists who sought to tease principles out of the common law had no theoretical view of what they were doing.This can be seen from a glance at the law of torts, which is often seen as lacking any theoretical coherence in the nineteenth century.The law of torts was transformed in the nineteenth century, as courts looked increasingly to root liability for wrongful acts in the faulty conduct of a defendant. In this process, the notion of negligence assumed an ever-growing importance in the law, which would result in its recognition in the twentieth century as a distinct form of tort, rather than as merely a way of committing another tort. From the early nineteenth century, judges began to look for organizing categories for the substantive law of torts. In the mid-century, they began to explore the nature of a number of distinct duties (in order to establish whether re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 154 67 Pollock denied that he had ever suppressed a case; though he was reluctant in later years to report cases he disliked: see Duxbury, Pollock, p. 305. 68 See also F.T.White and O.D.Tudor, A Selection of Leading Cases in Equity, 2 vols (London, 1849-50).

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