Page:The Green Bag (1889–1914), Volume 18.pdf/38

 THE SPIRIT OF THE COMMON LAW Thus, Professor Maitland says that with some hundred legislatures busy at law-mak ing in the various common-law jurisdictions, "the unity of law is precarious," ' and that with unity much that is precious must disappear. Likewise, Brunner, writing, how ever, at a time when codes were more immi nent than they are now, states that "the period of the uncontested supremacy of the common law appears to be now passing away." 2 I cannot think, however, there is any real cause for apprehension from this quarter. I come to such a conclusion for two reasons. In the first place, there is little in legislation that is original. Legis latures imitate one another. One may number on his fingers the landmarks of legislation in common-law jurisdictions, and copies or adaptations of them have gone round the world. Secondly, everything indi cates that codification, as such, is still far remote. The gradual codification now in progress is but a legislative restatement of particular departments of the common law. It promotes unity. It does not affect the system itself — its basic dogmas and tenets — in the least. Each statute is but a fresh starting point for a new body of case law. Moreover, general codification, when it comes, is almost certain, unless an entire change of feeling intervenes, to be a restate ment of the common law in improved form, pruned of archaisms and antinomies, to be construed according to common-law prin ciples, and in due time overlaid by a new growth of adjudicated cases. The failure of the New York Draft Codes to meet the re quirements of good code-making, has set back codification so thoroughly that none of us are likely to see a codified common law. But in any event, legislative innova tions are impossible in America. For in stance: the federal bankruptcy act goes a long way in mixing up legal, equitable, ad ministrative, and criminal jurisdiction. But

the most serious innovation, and the only one of special significance, is thwarted by the intrenchment of the common law in the Federal Constitution. The act provides that the bankruptcy court may punish bank rupts, trustees, and other parties for vio lations thereof. If this was meant, however, to give summary powers to the court, it failed to reckon with the Fifth Amendment to the Federal Constitution, which requires an indictment or presentment of a grand jury as an indispensable preliminary to pros ecutions in any federal court.1 • If legisla tion, therefore, were all that was to be feared, I should feel confident that the common law was with us to stay. To my mind, the real danger to the com mon law is in another quarter. Hitherto, the people have been with it. When Henry II put bounds to the jurisdiction of the church, when the barons exclaimed, nolumus leges Angliae mutare, when the commons petitioned against the Court of Chancery, when Coke for the judges of England told James I that he ruled sub Deo et lege, when the Continental Congress resolved that the several colonies were entitled to the common law of England, the common-law side was the national and the popular side. But to-day the popular side is not. that of the individual, but that of society. To-day, for the first time, the common law finds itself arrayed against the people; for the first time, instead of securing for them what they most prize, they know it chiefly as something that continually stands be tween them and what they desire. It cannot be denied that there is a growing popular dissatisfaction with our legal system. There is a feeling that it prevents every thing and does nothing. Commissions and boards, with summary administrative and inquisitorial powers are called for, and courts are distrusted. Partly, of course, this is due to impatience of thorough search for

1 " English Law and the Renaissance," 33. 2 " Sources of the Law of England" (Hastie's Translation), 176.

1 Bankruptcy Act of 1898, sec. 2 (4), Mackin v. U. S. 117 U. S. 348, Ex parte Wilson, 114 U. S.