Page:The Green Bag (1889–1914), Volume 18.pdf/43

 THE GREEN' BAG wider and more lasting than himself. But the Middle Ages realized this idea only in fixed outward organizations. Hence, the re volt of the individual was inevitable. This revolt, however, when carried beyond its time and made the basis of a permanent theory of society proves false and danger ous. And those who still repeat its formu las are dealing in ideas of the past which have no application to the present age. Against Coke, then, let us put Hobbes: "But the doubt is of whose reason it is that shall be received for law. It is not meant of any private reason, for then there would be as much contradiction in the laws as there is in the schools; nor yet, as Sir Edward Coke makes it, an 'artificial per fection of reason, gotten by long study, ob servation, and experience,' as was his. For it is possible long study may increase and confirm erroneous sentences, and where men build on false grounds, the more they build, the greater is the ruin; and of those that study with equal time and diligence, the reason and the resolutions are, and must remain, discordant; and therefore it is not that jurisprudentia or wisdom of subordi nate judges, but the reason of this our artificial man the commonwealth, and his command that maketh law." ' The problem, therefore, of the present is to lead our law to hold a more even balance between individualism and collectivism. Its present extreme individualism must be tem pered to meet the ideas of the modern world. As has happened more than once in our legal history, we must revert for a season to the residuary power of the parcns patriac to do justice. The power of rejuvenescence, inherent in our legal system, must be in voked. We must cease to mistake seven teenth century dogmas, in which temporary phases of its individualist bent were formu lated, for fundamental tenets of the common law. More than this we cannot do without casting adrift from our immemorial system of » " Leviathan," Chap. XXVI.

administering justice; and more we ought not to seek to do. As far back as we can trace the Germanic polity, of which our legal system is but a development, it shows a solid core of individualism. In the courts or moots of the Teutonic polity, every free man took part; the titles were in the mem ories of the free men of the vicinage and the law was a tradition held by them all, ex pounded by them all, and administered by them all. Every man was bound to bear his part in keeping the peace and in doing justice. "If the frith breach he committed within a bnrli" say the laws of Ethelred, "let the inhabitants of the burh themselves go and get the murderers." * It is not to a paternal central authority, but to the free action of the individual and of the local community that the common law entrusts the maintenance of right by the might of the state. Has a crime been committed? The common law leaves prosecution to the initiative of the individual. Do executive authorities neglect or abuse their offices? Mandamus at suit of an individual relator, an action for damages by the individual in jured, or injunction by an injured tax payer is the remedy. Do public service companies overcharge or discriminate against their patrons? An action for damages is the common-law remedy. In short, the common law conceives that the administra tion of justice so vitally concerns every man, that every man has a duty of taking part therein; not merely by an occasional perfunctory jury service, but by an honest and earnest individual attack upon wrong whenever it affects him. In the exaggerated form which this in dividualism of our legal system sometimes takes, it is undeniably impracticable, ar chaic, and mischievous. Yet with all its faults, it is a tonic and salutary doctrine. The whole is no greater than the sum of its parts. The community it not likely to be more active in maintaining right and re1 " Laws of Ethelred," II. 6.