Page:The Green Bag (1889–1914), Volume 19.pdf/608

 DEVELOPMENT OF THE COMMON LAW the law, not only very minute, but very technical. With the love of precision there naturally goes a love of certainty and fixity. The spirit of the Common Law is a conservative spirit, which stands upon what exists, dis trusting change, and indeed refusing change until change has obviously become necessary. There is a favourite dictum among the old school of English lawyers which says: "It is better that the law should be certain than that the law should be just," a dictum which one cannot expect the laity to appre ciate as a lawyer might. The respect for what has been settled, and the desire that what has been settled should be definite in its terms, imports a deference to precedent. No legal system, not even the Mussulman law, used in the interpreta tions of the Koranic traditions, has ever gone so far in basing itself upon cases judi cially determined and recorded. Now, judicial decisions are given and legal pre cedents made as events bring them, there is no order among them, except a chrono logical order, and therefore, a law constructed out of them is necessarily wanting in sym metry. The Common Law is admittedly unsymmetrical. Some people might call it confused, however exact may be the propo sitions that compose it. There are general principles running through it, but these are often hard to follow, so numerous are the exceptions. There are inconsistencies in the Common Law, where decisions have been given at different times and have not been settled by the highest Court of Appeal or by the Legislature. There are gaps in it. Thus there has been formed a ten dency among lawyers to rate principles, or, at any rate, let us say, philosophical and logical views of the law, very low compared with any positive declaration made by a court. The old maxim, that " An ounce of precedent is worth a pound of principle," still expresses the attitude of the profession in England, and very possibly may express it here also.

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With the love of certainty and definiteness there naturally goes a respect for the forms of legal proceedings and for the precise expressions that have been given to legal rules. This is a quality which belongs to most legal systems in their earlier stages. In the Common Law it held its ground with great pertinacity until very recently both in England and here; nor am I sure that it is not now strong still in some of your states, possibly stronger than in the England of to-day, in which especially since the Judi cature Act of 1873, the distinctions be tween forms of action are beginning to be forgotten. You may think that among the features that characterize the Common Law I ought to name both the love of justice and the fondness for subtle distinctions. I do not, however, dwell upon the latter of these, because the love of subtle distinctions belongs to all legal systems, and is perhaps more conspicuous in some other systems than in our own. The robust common sense which is inherent in the Common Law never allowed fine distinctions to go beyond a certain point. As respects the love of jus tice, it belongs to mankind generally and to all systems of law. Such differences as may be noted between different systems consist not in the reality of the wish to give every man his due, suiim cnhjite tribucrc, but to the self-control which prevents emotional impulses from over riding justice, in the practical sense which perceives that to allow the forms of law to be neglected, or unusually harsh treatment to be inflicted where a cause or a person happens to be unpopular, is really to injure the community by impairing the respect for law itself and the confidence in its admin istration. Americans and Englishmen may claim that although, like others, they have sometimes lapsed from the right path, they have on the whole restrained their passions from trampling upon justice and upon the regular methods of securing justice, better than most nations have done.