Page:The Green Bag (1889–1914), Volume 20.pdf/44

 THE UNWRITTEN LAW fee for good or bad advice. If these forms had been newly prescribed by statute the court would unhesitatingly have pronounced them barbarous and intolerable outrages against the right of the citizen. But the fact that generations of judges had sanc tioned this wrong lulled the voice of con science, and permitted the ever-growing company of black-robed banditti. It is this fact which has made the administra tion of justice in almost all Anglo-Saxon, nations more costly and burdensome than in any other land. The statement has recently been made, and I do not doubt its correctness, that the administration of justice in any leading city of the United States costs the people more than in the whole of France. The Common Law is a terrible enemy to the man whose rights are of small value and whose opponent has a long bank account. The corrupt judge is happily almost unknown to the Common Law, but its machinery must be lubri cated with gold — its pinions like those of fine watches run smoothly only when pivoted on diamonds. And this defect the Code has in many cases increased rather than diminished by substituting for a half dozen forms of action, an infinity of incon clusive motions. But a still more confusing element is that idea so easily obtained and so hard to be eradicated, that it is a body of usages and customs derived from days "to which the memory of man runneth not to the con trary," and deriving force and validity from the fact of ancientness. Indeed, the presumption of universal concurrence based on their contiguity is cited by almost every one who has written upon the subject, as the real basis of authority for the Common Law element of our jurisprudence. Even a cursory examination of the pres ent state of the law is sufficient to show neither of these presumptions is correct. Aside from ordinary principles of universal justice common to all systems of juris prudence, there is but very little of the

Common Law which derives any especial sanction from antiquity. What was the Common Law of ancient times has gradually crystallized into statutes, been negatived by express enactment, or rejected by the more enlightened judgment of modern times. Indeed it may be doubted if this familiar view of the source, character, and reason of the Common Law was ever anything more than a mythical theory intended to account for a system so unique that no juridical writer of any other land has been able to comprehend its char acter or operation. To the mind of the continental jurist, the Common Law is without sense or reason. He listens to the explanation of its beauties with a pitying smile. To the claim that the chiefest excellence of the Common Law lies in the fact that its rules are flexible, he responds with the unanswerable query, "What is the use of flexibility in a rule?" The idea is at variance not only with his notions of scientific accuracy, but also with ideas of law regarded as a rule or standard. What would one say of an elastic yardstick — one that gave sometimes a yard and sometimes an ell? Indeed, the Common Law itself regarded such variable yardsticks with such abhorrence that when used in traffic their employment became a crime. The truth is that Common Law has no "rules" in the sense of fixed standards — the only sense, by the way, in which the term is properly used in judicature. It is on this fact that its distinctiveness depends. Instead of employing fixed rules, it applies theoretically the universal principles of justice to every question coming within its scope, according to the conscience and wis dom of the judge, applied to specific con ditions — this conscience being not a simple uniform, unmodulated impulse, but a judg ment enlightened and informed by the ac tions of those under circumstances and con ditions more or less analogous. In some cases analogies are so nearly identical that a continuous line of harmonious decisions