Page:The Green Bag (1889–1914), Volume 18.pdf/40

 THE SPIRIT OF THE COMMON LAW day, we look instead for liberty through society. We no longer hold that society exists entirely for the sake of the individual. We recognize that society is in some wise a co-worker with each in what he is and in what he does, and that what he does is quite as much -wrought through him by society as wrought by himself alone. To parody a well-known formula, we are not so much concerned with the liberty of each, limited only by the like liberties of all, as with the welfare of each, achieved through the welfare of the whole, whereby a wider and a surer liberty is assured to him. The common law, however, is concerned, not with social righteousness, but with individual rights. It tries questions of the highest social import as mere private controversies between John Doe and Richard Doe. And this compels a narrow and one-sided view as men look upon these questions at present. To show that this is not overdrawn, let us turn to a classical statement of the com mon law doctrine: "So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole com munity. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively bene ficial to the public, but the law permits no man, or set of men, to do this without con sent of the owner of the land. In vain it may be urged that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual's private rights." ' Our criminal law is a growing cause of popular discontent with the legal system. But the difficulty here again is exaggerated 1 i Blackstone, " Commentaries," 139.

respect for the individual. Procedure, civil and criminal, has been contentious with us from the beginning. This respect for the individual keeps it so. "Litigation is a game in which the court is umpire. The rules are in the knowledge of the court, and will be declared and applied by it as re quired. It is for the parties to learn the rules and play the game correctly at their peril."1 As Manson has put it, "Law is in the nature of a cock-fight, and the litigant who wishes to succeed must try and get an advocate who is a game bird with the best pluck and the sharpest spurs."2 In other words, the common-law theory of litigation is that of a fair fist fight, according to the canons of the manly art, with a court to see fair play and prevent interference. Ameri cans have gone much further in developing this common-law notion than they have in England. We strive in every way to re strain the trial judge and to insure theindividual litigants a fair fight unhampered by mere considerations of justice. To give them this fair play, we sacrifice public time and money; incidentally also — for if all men are equal, their pocket-books are not — giving certain litigants a conspicuous ad vantage in reality through a theoretical equality. This desire to leave a free field for contention reaches the extreme limit of absurdity in Nebraska, in the eminently common-law provision in the constitution that the right to be heard in the Supreme Court on error or appeal shall not be denied, a provision by virtue of which a claim for twenty-eight cents, after three trials, had to be passed on solemnly by the highest court of the state. 3 The individual, in short, gets so much fair play, that the public gets very little. There is nothing more glorious in our legal history than the judges of England telling the king that he ruled sub Deo et lege. And yet that very scene has resulted 1 Pollock, " Expansion of the Common Law,"
 * 8 Law Quarterly Rev. 161.
 * Peterson v. Mannix, 2 Neb. Unoff. 795.