Page:The Green Bag (1889–1914), Volume 19.pdf/606

 DEVELOPMENT OF THE COMMON LAW

THE

INFLUENCE

HISTORICAL

OF

NATIONAL

ENVIRONMENT

MENT

OF

THE

ON

CHARACTER THE

COMMON

AND

DEVELOP

LAW

By James Bryce NOT long ago I had occasion to read an opinion rendered on a point of law by an eminent legal practitioner in a SpanishAmerican country. The point itself, on which the opinion was given, was one which might have arisen equally well upon the Common Law as the Spanish-American law, but the way of approaching it and dealing with it, the form of thought and the forms of expression, were curiously unlike those which one would have found in a legal opinion rendered either by a United States lawyer or by a lawyer in England. Now, that difference seemed to me to point to some inherent difference in the way of looking at and of treating legal questions. I dare say, that many of you, in the course of your profession, may have had a similar experience, and I dare say that you have been led to ask, as I was, what is the cause of this difference between the legal ideas and the legal methods of those of us who have been reared in the Common Law and of those lawyers who live and practice in Con tinental Europe, or in the republics of Spanish-America. Now, the cause of that difference lies very far back in the past. A similar dif ference might have been noted even in the seventeenth century, and perhaps it might in some ways have been more striking than it is at this moment. Two hundred years ago, long before the year 1776 — and even, perhaps, further, before the foundation of the American Colonies — the law of England had acquired a distinctive quality, and that quality has remained distinctive, both here and in England, until now, although the sub stantive provisions of the law have been

largely altered, as they must needs be, in two countries whose economic and social con ditions have been changing so rapidly as they have changed both here and in England. Therefore, we may still in truth say, that the Common Law is a common possession both in the United States and in England, because that spirit and those tendencies and those mental habits which belong to the English stock when it was still undivided have been preserved until now. The causes which produce those habits and tendencies belong to a period long anterior to 1776, a period when the ancestors of Chief Justice Marshall and Chancellor Kent, of Story, Taney .Webster and Curtis were living in Eng lish villages, side by side with the ancestors of Coke, Hale, Holt, Hardwick, Blackstone, Eldon, and the other sages who adorn the English roll of legal fame. These causes were at work far back in the Middle Ages. Just as the character of an individual man forms itself before he attains manhood, though the circumstances of his life modify it while they reveal it to others, so in those early mediaeval centuries of which I speak, there was developed that set of ideas, and that type of mind which took shape in the provisions and the procedure of the ancient law of England. The substance of those provisions was partly general, such as must exist in every organized and civilized society; partly special, such as the particular con ditions of the country and the time required. The form was due to the lawyers and the judges, to writers and practitioners, and now the form has, in point of fact, greatly affected the substance and has proved scarcely less permanent. So when we study the growth of the Common Law we must