Page:The Green Bag (1889–1914), Volume 20.pdf/45

 THE GREEN BAG result and we have what is termed a rule of the Common Law. By and by a new element is injected, a new condition arises which is inconsistent with the former de termination, and the so-called rule disap pears by the same process which called it forth. Instead of being a finished product of a remote past, therefore, we see that the Com mon law is a constantly growing and con stantly changing increment of all AngloSaxon law. What was the Common Law yesterday is not the Common Law to-day, and what is so accepted to-day, to-morrow's conditions may reverse. The flexibility of the Common Law is not then a flexibility of rule, but an inexhaustible adaptability of its machinery to the formulation of new rules to fit the ever-varying conditions of life. It is this fact that makes the Common Law not always the guarantor of liberty or the instrument of beneficent results, but a most efficient agent of oppression and the bulwark against which the tide of human progress not unfrequently breaks for long periods with unavailing force. The Common Law is not a system of prin ciples or maxims, but a peculiar system by which legal principles are formulated and applied. It is this fact which makes judicial power in any Anglo-Saxon society — in any English-descended community — so much more an important and notable element than in any other. The judge has been the constant creator of law. About every constitution, ordi nance, statute, has grown up a little system of law based upon continuous, conflicting, and perhaps finally settled adjudication. New social and scientific conditions have overthrown conclusions apparently the most securely fixed. The law-making power has been held in check by the fact that the power to construe rests in the hands through which alone its edicts can be enforced, and that justice, vague, intangible, undefined as it may be, controlling the mind of the judge, forbids it to do evil. It makes the judge also

the reflection of the thought and manhood of his age and of the moral tone of his environ ment, which he in turn makes part and par cel of the Common Law he creates in the daily performance of his duties. The Com mon Law is not a specific, definable portion of English jurisprudence as so many com mentators have sought to regard it, but is that over-ruling spirit, that genius of AngloSaxon individuality which subjects formu lated law to restrictional and enabling con struction, and creates or adapts whatever may be found needful to meet new conditions or supply the deficiencies of the enactments of the law-making power. It created Equity Jurisprudence; it formulated and has adapted popular government to all social conditions. It is the supplement — appar ently a necessary and indispensable sup plement — of parliamentary legislation and government by the people. It is a growth, not a creation — a continuing force, not a perfected science. It is possible that this view of that dis tinguishing element of Anglo-Saxon civiliza tion which we call the Common Law, may seem so new and incongruous with precon ceived ideas to some, that a few illustrations of its continuing operation may be desirable to fix the truth more firmly in the mind. The volumes of the reports are so full of testimony upon this point that even the tyro could hardly go amiss in the search for them. A hundred years or more ago a group of English colonists, having cut loose from the mother-country undertook the hazardous task, not merely of founding a new national ity, but of establishing one upon a new plan — to invent, indeed, a new form of govern ment. They named the result the United States of America. Our government has sometimes been said to have been modelled on the constitution of Great Britain. Eng lish arrogance and American sycophancy have repeated this so often that there was actually danger of its being accepted as a fact had not one Englishman of wider views and truer knowledge shown its absurdity.