Page:The Green Bag (1889–1914), Volume 18.pdf/36

 THE SPIRIT OF THE COMMON LAW

THE SPIRIT OF THE COMMON LAW1 BY ROSCOE POUND NOTHING in the history of our com effectually made them over to the commonmon law is more striking than its law model. Evidence in equity is now gov tenacity in holding ground. Like our Eng erned by rules framed to regulate the admis lish speech, there seems to be something sion of .evidence before juries; common-law about it that commends it to men of diverse executions are issued on decrees for the pay lands and races, and where it once goes, it ment of money, though courts admit that stays. From the beginning, it has been in contempt proceedings might sometimes be competition, if not in conflict, with other proper; ' exemption laws, effective against systems, and it has steadily gained ground. executions, are defying equitable principles On its own soil, it had to meet and resist as to trusts and trust funds; 2 and more the canon law in the twelfth century, the than one equitable doctrine has become so Roman law at the Renaissance, the powers legalized as to run counter on occasion to of the crown exerted against its fundamental the justice and equity which were its origi doctrine of the supremacy of law in the six nal foundation. So far has this gone, that teenth and seventeenth centuries, an influx an acute observer has laid it down as a prin of foreign law through the law merchant in ciple of legal science, that the judicial the eighteenth century, the legislative re administration of justice is intrinsically form movement in England and America in contentious.3 On what we may fairly term foreign soil, the nineteenth century, and in America, at the same time, a temporary but formidable the common law has been no less aggressive agitation for French law, influenced by the and tenacious. Louisiana alone, of the spread of the Code Napoleon and the suc states carved from -the Louisiana purchase, cess of the Louisiana Civil Code. Not only preserves the French law. In Texas, only has the common law as a system success a few anomalies in procedure serve to re fully resisted all attempts to bring in some mind us that another system once prevailed •other law in its place, but in those parts of in that domain. Only historians know that •our system where alien and more flexible the custom of Paris once governed in Michi methods have existed or have arisen, in con gan and Wisconsin. And in Louisiana, not travention of the fundamental theory of the only is the criminal law wholly English, but common law that litigation is contentious, the fundamental common-law doctrines, su and wherever arbitrary discretion has ob premacy of law, case law, and contentious tained a serious foothold, the common law procedure, are likely to make the legal sys ultimately has prevailed. Probate, admin tem of that state a common-law system in istration, and divorce have been absorbed all but its terminology. In Quebec, like into our American common law. Case law wise, there are many significant signs of and precedent have turned admiralty into common-law influence. The Roman-Dutch a. common-law mold. Equity and equity law of South Africa is adopting English con procedure have been legalized. Precedent ceptions. Finally, even Scotland, which and case law in the one, and the doctrine of received the Roman law in the sixteenth contentious procedure in the other, have century, is becoming a common-law coun 1 Delivered before the Nebraska State Bar As try. Except as it lingers in their legal vosociation on November 23, 1905. A considerable portion of this address was published in the Co lumbia Law Review for May, 1905, in an article entitled, "Do We Need a Philosophy of Law?"

1 Stuart v. Burcham, 62 Neb. 84. 1 Green v. Simon, 17 Ind. App. 360. 3 Salmortd, "Jurisprudence," sec. 30.