Page:The Green Bag (1889–1914), Volume 18.pdf/42

 THE SPIRIT OF THE COMMON LAW springing up, and the law made no provi sion for its needs beyond a few obsolete rules framed for itinerant, peddlers. But the common law rose to the occasion. It took over the custom of merchants, changed it from fact to law, and on that basis built a solid structure of case law that has en dured. In America, after the Revolution, it had to contend with the odium of its English origin. Kentucky legislated against it.1 Kent did not venture to cite its author ities in New York and was driven to justify his decisions out of French treatises.2 Yet the common law prevailed, and before the century was over, the decisions construing the Fourteenth Amendment had completed the work of fortifying it in our Constitu tion. Hence, the common-law lawyer need not despair. He should only look about him to find within our law the means of bringing it once more abreast of the time and of ranging it where it belongs — on the side of the people. Indeed, the law has already discovered them, and is already moving in the right direction. The residu ary power of the crown to. do justice among his subjects has served to meet two crises in our legal history. When the old polity of local courts became impossible, it gave us the king's courts and the common law. When the common law was in danger of fossilizing, it gave us equity. To-day, when the sovereign people stand in the shoes of the sovereign king as farens patriae, this residuary authority has given us the police power. Not yet one hundred years old, and scarcely mentioned in the books until the last twenty-five years, this doctrine has been worked out slowly at the same time that the common law has been gaining its firm foothold in our constitutional law. It is furnishing the antidote for the intense regard for the individual which our legal system exhibits. And it is in the right line of our legal history and in full accord with 1 See Reporters Note to " Littel's Select Cases." 2 " Memoirs and Letters of Chancellor Kent," 117.

the genius of our system to absorb and assimilate this principle as it absorbed and assimilated equity. In fact, a progressive liberalizing of our constitutional law is no ticeable already, and to all appearance, a slow but sure change of front is in progress. But changes of front are attended with diffi culty. The residuary power is ill-defined, and the common law is jealous of all indefi nite power.1 A compromise is necessary, and the event turns upon this compromise. Fortunately, the common law has a saving doctrine to apply to it. Our case law is not, and Dillon says it never can be, fixed and rigid.2 Its cardinal doctrine is that law is reason and reason is law. "But," said James I, "have I not reason as well as my judges?" And may not the people say, "Have we not reason, as well as our courts?" Let Coke answer: "To which it was answered by me that true it was, that God had endowed his Maj esty with excellent science, and great en dowments of nature; but his Majesty was not learned in the laws of his realm of Eng land, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judg ment of law, which law is an art which re quires long study and experience before that a man can attain to the cognizance of it." s It is in this "artificial reason and judg ment of law" that the change must come. No one can read the Second Institute with out a profound admiration for Coke. Our debt to him is inestimable. But we must reason with our own reasons and not with his. In his day the medieval scheme of society was decadent and the individual was just coming to his -own. We can see now that the Middle Ages were right in holding that the individual depended on something 1 Loan Ass'n v. Topeka, 20 Wall. 655, 662. J " Laws and Jurisprudence of England and America," 28. 3 Conference between King James I and the judges of England, 12 Rep. 63.