Page:The Green Bag (1889–1914), Volume 18.pdf/44

 THE SPIRIT OF THE COMMON LAW pressing wrong than the individuals who compose it. And if the individuals who are charged under our legal system with the maintenance of their own rights are too busy or too lazy or too indifferent to carry out this duty, is the community likely to prove more diligent or efficient in so doing for them? An English lawyer tells us that in his earlier days he was an inspector of schools, and that when in the course of an inspec tion, he once asked some school boys to write in a page what they knew about Ad miral Nelson, one of them closed an elo quent page with this significant statement : His last words were, Every man expects "England to do his duty." It is chiefly be cause of such a spirit, because of a feeling that responsibility is not and should not be upon each individual, but instead is and should be upon society, that the common law is out of touch with the times. The common law expects, as Nelson did, that every man will do his duty. It asserts that the individual is responsible for the preser vation of the peace, the upholding of the law, and the maintenance of right. Granting that some modification of the extremities to which this spirit has been developed is ine%pitable, it is none the less manly and fortifying. We talk much and glibly of "the people" in the abstract. What we need to do is, as does the common law — to talk of the individual in the concrete. The rights and duties of the people are the duties of individuals. Hence, this same obstinate individualism of the common law, which makes it fit so ill in many a modern niche, may yet. prove a necessary bulwark against an exagger ated and enfeebling collectivism. When from the sixteenth to the eighteenth cen turies the whole world was turning abso lutist, England alone kept alive the local, individual, legal government of the Middle Ages. In consequence, the English Parlia ment has become the type of all the colle

giate sovereignties of to-day. Bacon was modern and Coke was antiquated. Yet the constitutional ideas of Coke have triumphed. To-day the up-to-date economist and soci ologist is as sure that the narrow individ ualism of the lawyer is a relic of the past as Bacon was that Coke's precedents from the reigns of the Plantagenets and from the Wars of the Roses were antiquated shackles by which a Stuart king could not be bound. The lawyers saved our Teutonic heritage of individual rights and individual respon sibility in the seventeenth century, and unless our legal system is to be hopelessly decadent, they must do so once more to-day. Their obstinate conservatism in refusing to take the burden of upholding right from the concrete each, and put it upon the ab stract all, may yet save for us a valuable — nay an indispensable — element in our in stitutions. The greatest of modern Romanists found the strength and life of our rival AngloSaxon system in this very insistence upon the duty and responsibility of the individ ual. And comparing the easy-going Aus trian, who shrugs his shoulders and accepts wrong as part of the order of nature, with the Englishman who litigates to the end in vindication of the most trivial rights, he exhorts his countrymen to a livelier indi vidual interest in justice and individual participation in the battle for right. "Ev eryone," he says, in the very spirit of our common law, " Everyone has the mission and the duty of cutting off the head of the hydra of unreason and lawlessness wherever it shows itself. Everyone who enjoys the blessings of law, must for his share contrib ute to hold upright the power and the maj esty of the law. In short, everyone is a born champion of right in the interest of society." * LINCOLN, NEB., November, 1905. 1 Ihering, " Kampfum's Recht" (14 ed),