Front Page Titles (by Subject) IV.: ENEMIES IN THE GATE - The Genius of the Common Law
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IV.: ENEMIES IN THE GATE - Sir Frederick Pollock, The Genius of the Common Law 
The Genius of the Common Law (New York: Columbia University Press, 1912).
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ENEMIES IN THE GATE
So far we have spoken of dangers to the Common Law within her own household. Before we can understand the limits and the difficulties of possible remedies in the Middle Ages and even later, we must consider the perpetual conflict with external foes which had to be waged at the same time. One kind of these, as they were the most shameless, were the most formidable, namely men who were strong enough, in parts of England remote from the central authority, to defy legal justice and legal process openly. Nowadays we do not easily realize the chronic persistence of such behaviour in a land whose rulers are seriously minded to keep order. Riot is not impossible in the most civilized of jurisdictions, but it is abnormal; it is at most an occasional scandal. Powerful interests may be arrayed against the law; they may dispose of great resources and be capable of giving much trouble. But they have at any rate to do the law of the land some kind of lip-service. Their aim is, if possible, to capture its machinery and use it for their own purposes. Chicane and corruption are their weapons, and the corruption is seldom undisguised even when it is notorious. Intimidation is employed more sparingly, not from any moral scruple, but because it is less profitable and provokes defensive combination; and when it is employed, it is in the form of social and pecuniary pressure. Violence is avoided as impolitic, unless there is a fair chance of representing it as lawful self-help. A very different state of things prevailed in England down to the sixteenth century. We find the danger of great men defying the law not only recognized but prominent in the dooms of Anglo-Saxon kings. As the extent and effectiveness of royal justice increase after the Norman Conquest we still find repeated and anxious condemnation of those who take the law into their own hands. Whoever asserts his right without due process of law puts himself in the wrong: iniuste quia sine iudicio. The principle is carried even to greater lengths than our modern law finds necessary. Whether we look at the common law of disseisin or the statutes against forcible entry, we find the same continuous protest, expressing a real and arduous conflict with lawlessness. Neither must we suppose that the law was always gaining ground. Under a strong king much crime went undiscovered and unpunished, police methods being rudimentary; but private war was repressed. Nevertheless the elements of revolt were still there and ready to break out at the first sign of weakness. The middle quarters of the fifteenth century were a period of reactionary disorder of which our strictly legal authorities disclose very little. England was delivered over, one might almost say, to the great faction fight called the Wars of the Roses, and to innumerable smaller feuds of private greed and ambition. Every man who had property worth protecting was as much compelled to secure the protection of some great lord as if the feudal structure of society had relapsed into its crudest Merovingian infancy. Forcible disseisin was rife, statutory penalties notwithstanding, and was often planned and executed as a military operation. Country gentlemen’s houses were fortified, attacked and defended ‘with strong hand in manner of war,’ and the fortunate possessors of firearms improvised loopholes cunningly placed too low to be used for archery in case of a hostile occupation. It is true that the process of law was not formally arrested, but corruption and intimidation of juries, besides the simpler method of packing the jury from the first, were so common that no man would embark on a lawsuit without powerful influence at his back. ‘God send us a good sheriff this year’ may seem a pious and innocent wish, but in the mouth of a faithful steward, when the balance was trembling between Lancaster and York, a good sheriff meant one who could be trusted to impanel the right sort of jury for the steward’s lord.1 All this may be learnt, in abundant quantity and variety, from the contemporary and practical evidence of the Paston Letters. The factions of York and Lancaster both acted under colour of legal claims to the crown, on which Fortescue and others expended much dialectic ingenuity. But this can hardly be taken as evidence of any specially English show of respect for law, or desire to have the law on one’s side. It is a common feature of all political controversy in the Middle Ages. All it does prove, if proof were needed, is that the aim of each party was not an anarchical conquest or a social revolution, but to acquire control of the established governmental machine as a going concern, using for that purpose, without legal or moral scruple, as much force as it could command.
These facts must be borne in mind if we would understand the rapid development of extraordinary jurisdictions under the Tudor dynasty. Lack of executive power had always been the weak point of the Common Law, and in order to keep faction permanently repressed, after Henry VII’s victory had closed the dynastic strife, more drastic methods were required. What the Chancellor was already doing in matters of private law was now to be done by the King’s Council in the Star Chamber and in the special palatine and frontier jurisdictions. Thus Sir Thomas Smith tells us of ‘the insolency of the noblemen and gentlemen of the north part of England, who being far from the king and the seat of justice made almost as it were an ordinary war among themselves’; and Bacon speaks in like manner of ‘maintenance or headship of great persons’ as one chief reason why jurisdiction of this kind was needful and politic; and we could have no two more competent witnesses to the traditions of sixteenth-century statecraft. More than this, there was a time when the demand for strong government was virtually leagued against the Common Law with a learned intellectual movement among Romanizing scholars and publicists. Maitland has given us the proofs in his brilliant essay — not the less solid because brilliant — on English Law and the Renaissance. Towards the middle of the century, the situation might well have seemed critical; a foreign observer might even have expected that the Court of Chancery, not yet officially declared to be an ordinary court of justice, would easily be drawn into the confederacy. Such a forecast would have been wrong but not without plausibility. What actually followed we know; the last quarter of the sixteenth century saw, concurrently with the steady growth of equity jurisdiction, a great revival of the Courts at Westminster, based on clear and proud consciousness of their historical authority and doctrine. Antiquarian jurisprudence was militant and triumphant, with the compilers of the Abridgments and the printers of the Year Books for its armourers, and Sir Edward Coke for its champion; a champion to be venerated, still active and valiant, by a younger generation fighting the battle of constitutional right with like weapons against Charles I. The history was not always critical in either case, but that was not material for the result. Such a revival is among the most impressive evidences of a vitality not only professional but national, which might be obscured but could not be suppressed by adverse conjunctures.
Yet, when all is said, our lady the Common Law had to abide a season of some danger and much disparagement; and whatever tends to disparage the Common Law must in the same measure encourage all kinds of encroachment, and especially the official kind. Not that England can be said to have suffered from excess of officials or administration, in secular affairs at any rate, at any time before the classical framework of the Common Law was finally settled. In common frankness it must be admitted that in the sixteenth century, while the executive had nominally very large powers, its instruments for ordinary occasions were both weak and scanty. One way and another a great deal of officialism had to be created if the conditions of life were to be tolerable for lawful men. But the Tudor sovereigns and their ministers were easily tempted to provide it in arbitrary ways. Hence arose high prerogative doctrines, claims to legislate in minor matters by proclamation, and other controversial pretensions which ultimately filled the cup of the Stuarts to overflowing. Charles II, alone of his dynasty, had a share of the practical worldly wisdom that told the Tudors where to hold their hand. In modern England the problem of reconciling administrative efficiency with the principles of lawful authority has been solved by recourse to the legal omnipotence of Parliament, a Parliament representing the will of the people in a very different fashion from its predecessors three centuries ago. When we remember that the venerable institution of justices of the peace is itself statutory, there seems to be very little risk in saying that all executive acts of importance (in domestic affairs at any rate) are now done under statutory authority of one sort or another. But Parliament is not always vigilant, and the Ministers who frame statutes are advised by permanent officials in technical matters. Thus there is an ever growing tendency, constitutional traditions and safeguards notwithstanding, to confer more and more discretion, often of a substantially judicial kind, on officials of the great departments of state who practically cannot be made responsible. Of late years there have been many protests, quite irrespective of party politics; indeed the zeal of either party to use encroachment of legislation on ordinary legal jurisdiction as a topic against the other is naturally tempered by the reflection that the accusing party has itself made statutes of that kind by the score, and will want to make them again when it comes back to office. A similar tendency in American State legislation was noted by my learned friend Mr. St. George Tucker of Virginia when he presided over the American Bar Association some years ago. The ravages of the gipsy moth and the brown-tailed moth have been the cause, it seems, of administrative enactments in Massachusetts which perhaps only strict necessity can justify.
Returning to the earlier history, let us note that the king, being the foremost and indispensable champion of the Common Law in its infancy, was himself the greatest officer of state. Hence, when he used his authority to provide more adequate means for the administration of uniform justice, it was possible for lords of private jurisdictions, or other persons whose privileges were threatened, to represent his action in a sinister light as an encroachment of arbitrary discretion on ancient custom, thus reviving the prehistoric repugnance to allowing any judicial discretion at all. There is in truth all the difference in the world between increasing the resources of a procedure which is open to all men and assuming to withdraw particular cases from the scope of ordinary process, or interfering to dictate the result. But the popular instinct is not always instructed and hardly ever discriminates; and so monopolists may lead it by the nose under pretence of maintaining individual freedom. In the thirteenth century one of the Barons’ grievances was the inventiveness of the king’s clerks in his Chancery, who sought to extend the jurisdiction of the royal judges by framing new writs. By the Provisions of Oxford (ad 1257-58) an oath was imposed on the Chancellor that he would seal no writ that was not in common course except by the order of the king and his council. The later Statute of Westminster (ad 1275), which defined the scope of actions on the case, represents not a simple movement of expansion, but a compromise between advanced ideas and obstructive archaism. It must be allowed that the danger of arbitrary interference with the course of justice was by no means imaginary. As late as 1313 we find the king commanding justices in eyre to expedite a cause, with open avowal of personal interest in one of the parties, and (what is more) the justices turning a deaf ear to counsel’s objection that the writ in the action is out of time under a statute regulating proceedings in the eyre, and therefore the court has no jurisdiction. The only answer counsel can get is that the judges cannot dispute the king’s authority, and if it were necessary to presume a statute they would presume it. ‘What the king commands we must suppose to be commanded by the General Council.’1 It was natural enough for the king to suppose that he could do as he pleased in his own court although his judges could not; only fuller experience made it clear that the efficiency and the repute of the king’s justice depended upon an inflexible understanding that no executive authority, not even the king’s will, could meddle with its rules. In England we have now delegated large powers of regulation to the judges themselves. It is far from clear that it would have been safe to do so at any time before the Revolution. Interference with the ordinary process of the Court has, of course, nothing to do with the extraordinary or residuary power regularly attributed to the king, down to the seventeenth century, of doing justice in cases where for any reason the ordinary means were ineffective. The later orthodox doctrine, from any scientific point of view quite as arbitrary as the prerogative claims it displaced, was that this royal power or duty had exhausted itself in the establishment of the Court of Chancery, and that the jurisdiction of the Star Chamber, or rather of the king’s Council in the Star Chamber, was lawful only so far as it was created or confirmed by statute. One thing is certain, however, which is of the first importance, and has been justly made prominent by all recent authors on the English constitution. No one ever maintained that the king’s command, however express, would of itself justify or excuse an act not warranted by the law of the land; much less that his officers could derive any protection from his general authority. The sheriff’s responsibility to the king’s subjects even for honest mistakes in the execution of his office is very ancient. It extends, and appears always to have extended, to acts of the sheriff’s deputy or subordinate officers done without his personal knowledge. Perhaps it is our earliest example, outside the family or household, of the general rule summed up in the words ‘respondeat superior.’
Next we have to consider the open enemies of law and legal order in modern times. We do not mean ordinary criminals, for lawbreakers, occasional or habitual, do not undertake at this day to subvert the law, but only do their best to thwart or evade it in their own particular interests. Again there is no need to dwell on those who speak evil of the legal profession rather than of the law itself. The common topics of vulgar abuse have been abundantly refuted by English authors, lay and professional, from Dr. Johnson to my lamented and accomplished friend Dr. Showell Rogers of Birmingham.1 Least of all is it needful to dwell on such matters in this country, where the canon of professional ethics has been so thoroughly discussed and formulated. Enough to say that the rules accepted by American and English lawyers alike, whether in written form or unwritten, aim as high as those of any other calling in the world, and on the whole are as well observed. Betrayal of a client’s confidence is so rare as to be practically unheard of; and in this point of honour the three learned faculties have long emulated one another on an equal footing of inflexible discipline. Laxity and even fraud in dealing with the property of clients are, unfortunately, by no means unknown, but I venture to think they are less common than in other kinds of business which offer like temptations. The only professional abuse, short of actual malversation, which is both facile and frequent is that of encouraging speculative and unsubstantial claims for the sake of making costs. Here it may be observed that the pursuit of hopeless causes is in fact oftener due to the client’s obstinacy than to the lawyer’s contrivance; nor does experience show that litigants, when they appear in person, are less litigious or more scrupulous than their advocates would have been for them. Nevertheless there is a real evil. It can be largely mitigated, under any simplified and rational scheme of procedure, by the firm application of judicial discretion. It could not be wholly prevented without investing the Court, from the very commencement of proceedings, with such inquisitorial functions as would make the remedy worse than the disease in the eyes of English-speaking people. Our lady the Common Law will mend her clothes and alter their fashion moderately from time to time; she will not take to garments of such incongruous cut that her friends would not know her in them.
As to complaints against the law in general, every man who loses a cause is apt to think that the law must be unjust or his counsellor incompetent; and since in every contentious cause at least one party must lose, it is obvious that complaint of this kind must abound. Much more subtle, and more dangerous because mixed with worthier motives than merely personal interest, is the dissatisfaction of such men as mislike the law when legal justice withstands the demands of their trade or their class. Law, being bound to regard the good of the commonwealth as a whole, must needs curb the partial ambition of both individuals and sections. Mistakes are possible, no doubt, in that process, as in all human endeavours to do justice. But it is not to be hastily assumed that bodies of men who demand advantages or immunities for themselves are likely to have as clear a sense of right as those whose business it is to be just to all. It is true that in controversies of this kind there may be real conflict of social and economic ideals, and that the doctrines prevailing in the Courts will almost inevitably be those of the older rather than the younger generation. But again there is no presumption either way that one or the other view is the sounder or contains more permanent elements of truth. There are such things as transitory dogmatic delusions, and novelties must overcome a certain amount of legitimate resistance if they are to prove their title to be taken into the common stock of a sane world. In a later discourse we shall return to these matters from a slightly different point of view.
It is certain, in any case, that far more class grievances have been raised by legislation than by the purely judicial development of the common law. From the Statute of Labourers downwards the legislature has constantly imposed on the Courts its own solution of the novel problems raised by social and economic changes. That solution, right or wrong, has always been dictated by the prevalent opinion among the governing classes and interests, in which lawyers, as such, have no more part than any other citizens. Not only legal experts cannot be made responsible for a large part of social legislation in substance, but their attempts to secure a tolerably workmanlike form for its expression have had very partial success, and sometimes have been wilfully disregarded by promoters who care little for the faults of a showy enterprise if they can score an advantage to their party by hurrying it through. So far indeed are lawyers from having any particular love for legislators that some of our classical authorities exhibit a tendency to regard legislation as a natural enemy of the law. Quite recently the late Mr. Carter of New York (giving, I think, excessive reasons for mainly sound conclusions against an ill-informed and ill-framed project) followed in the path of Sir Edward Coke. Most of us will not go that length. It is too rash to affirm in general, and without respect to differences of time, place, constitutional methods, and other circumstances, that legislation is more likely to be foolish than wise. On the other hand it would be more than rash to affirm that, among the well meant statutory reforms of our law, neither few nor unambitious, any great proportion have achieved complete success in reputation or in fact. Let us take, as a pretty familiar subject, the great series of real property statutes from the thirteenth century onwards, which for the most part are as fully received here as in England. Only two of them, I think, can be said to have met with general approval, an early and a rather late one. The earlier is the statute of Quia Emptores, which abolished subinfeudation — the creation of new lordships and tenures intermediate between the ultimate lord and the actual freeholder1 — and may be said to have knocked the bottom out of feudalism as a working theory of English law. We may note for curiosity that William Penn’s charter of 1681 contained, among other ample and regal franchises, a dispensation from Quia Emptores, by force whereof, as I understand, in the State of Pennsylvania rents are reserved on conveyances in fee simple to this day;1 likewise that our Scottish neighbours contrive to do their modern real estate business well enough with forms which are quite logically feudal. Still Quia Emptores was an excellent piece of work, anticipating indeed the methods of our best modern draftsmen, and no one in England ever wanted to amend it. The later example is the statute, commonly called of Wards and Liveries, which abolished military tenures and their incidents at the restoration of Charles II, in substance re-enacting the work of the Commonwealth. Its workmanship did not escape learned criticism, but the business was needful and was done once for all. Between these two great Acts we have in the thirteenth century the statute De Donis, purporting to make entails perpetual, which the lawyers protested against with all their might and helped their clients of the rising middle class to evade; and the Statute of Uses in the sixteenth century, so hastily and unskilfully framed that instead of simplifying tenure and conveyance it made them a worse tangle than before. These two most unhappy feats of legislative interference are answerable, to the best of my belief, and I think I may say in the general opinion of historical students of our law, for nearly the whole of the extraordinary complication in which dealings with land are still involved in England to a great and highly inconvenient extent, and in varying and more or less inconvenient degrees in other Common Law jurisdictions. I confess I do not know who framed the Statute of Uses, or whether the framers aimed at any result beyond securing the king’s revenue; nor have I so much as heard whether any one has seriously tried to find out. It might be an interesting theme for some young scholar on this Continent or at the antipodes: for our generation has lived to welcome learned lawyers and keen historians from Australasia as well as from the Atlantic shores and from the heart of Canada. As for the later real property statutes that were enacted on broadly similar lines in England and America during the nineteenth century, one must say of the English ones at any rate that they can claim only a relative success, being either simplification of routine and common forms or makeshift amendments not going to the root of the matter. In the minority of cases where the work was entrusted to really skilled hands it was ingeniously and elegantly done within the limits assigned.1
Various modern theorists, political or economical, are hostile to particular legal institutions or their existing forms; and hence it is easy for their opponents, and sometimes profitable, to charge them with conspiring against the very existence of law. Concerning Socialism in its many forms, there is plenty of room for legitimate criticism, but antinomian heresy seems to be about the last kind that it can reasonably be accused of. For the one thing in which all socialist plans agree is in requiring not less legal compulsion than is imposed by existing civilized governments, but a great deal more, though the law to be enforced would in many respects be novel both in its actual contents and in the scale of social values it would lay down or assume. In any conceivable socialist legislation and jurisprudence public law, for one thing, would be magnified at the cost of private law, since individual discretion would be supplanted by State regulation in many parts of the conduct of life where it is now tolerated or even encouraged. A strike would no longer be the exercise by divers citizens in combination of their individual right to work only on their own terms, but an act of rebellion against the public authority. We might like to be governed in that fashion or not, but it would be absurd to call a minutely regulated society lawless. Herein we may note that some persons who have been called or even have called themselves socialists were really anarchists; William Morris, for example, as shown by his ‘News from Nowhere,’ which, whatever else it be, is the most delightful exposition of pacific anarchism1 in our language. That idyllic life in a regenerate England, as Morris conceives it, is life not under a paternal or fraternal executive, however democratically appointed, but without any executive at all; there is not a State which has appropriated capital and administers it for the common good, but the State has disappeared and capital has, apparently, been distributed among a number of very small autonomous communities whose members are wonderfully unanimous as to the use of it. Socialism properly so called presents the question (of no special import for us here) what kind of law would be fitted to carry out its economic ideals. Anarchism raises a much more curious problem, whether William Morris’s or Tolstoy’s Utopia would really succeed in getting rid of law so neatly or completely as the inventor thought. If the Morrisians or Tolstoyans could not agree, their only remedy would be to split up into smaller bodies each with its own habits. The splitting process would however be limited, in the last resort, by the numbers of the smallest social unit capable of permanently supporting itself. Smaller or larger, the final units would be held together by something outside the wills of their individual members; and that something, being a force of habit which would be uniform, binding, and applicable to a definite independent group, would be very like what we know as customary law. Such a society might claim to justify its name of anarchist in so far as it knew nothing of a formal court or of those ‘names of office’ which Bentham considered the most decisive mark of established government. But one may doubt whether it could be wholly antinomian unless it relapsed into a state of internecine warfare between very small and unstable groups, which would be Hobbes’s state of nature. No such catastrophe being contemplated by William Morris, Tolstoy, or to add a living name, Prince Kropotkin, its consequences do not enter into the consideration of their doctrine from the point of view of classification, or of ascertaining its essential contents. If, on the other hand, all the Utopians did agree, they would live under a custom that would be no less their rule of life because a blessed unanimity would make it needless for them so much as to think of enforcing it. And surely this is what William Morris did contemplate. One might go near to say that a commonwealth where no judge and no sheriff was wanted, and yet every man knew quite well what to expect of his fellow, would, so far from being lawless, exhibit the perfection of law. But the pursuit of the many puzzles ingeniously concealed by the charming artistic simplicity of ‘News from Nowhere’ would lead us too far, though on a proper occasion it might be a very pretty exercise.
It seems rather idle to ask whether the Common Law is individualist or socialist: it is both and neither. As against some socialist opinions, including perhaps those which are most in fashion just now, it has maintained the rights and the discretion of the individual, and maintained them strongly. Moreover, if I may borrow a phrase used a good many years ago by my learned friend Mr Phelps, the Common Law does its best to secure equality of legal rights, but disclaims any power to secure equality of conditions for all men. Our lady is a shrewd old lady, and has seen too many failures to be over-sanguine about any plan for putting the whole world straight. But as against some dogmas of extreme individualism, our law might with equal truth be called socialist. Thus it has never allowed unlimited freedom of contract even within the sphere of acts not punishable in criminal jurisdiction; and the hands of enterprising grantors were stayed as long ago as the thirteenth century, when, attributing a kind of magic efficacy to the form of the grant, they thought for a season that they could create at their pleasure new-fangled estates and confer greater powers of disposition than they had themselves. Thus, again, the Common Law has always regarded the constitution of the family as a matter appertaining to the discretion of the Commonwealth and not of the individual; agreeing herein, in principle, with socialism as against anarchism, though differing with modern socialist projects as to the possible or expedient amount of regulation. We may note in passing that among such projects we find, along with much novel compulsion, some relaxation and displacement of existing rules. In itself this is no more surprising than the fact that under the Torrens system of registration a vendor of land is no longer bound to prove his title by producing a chain of assurances or other evidence of continuous lawful possession by himself and his ancestors for the last sixty or forty years. It may go some way, however, towards accounting for the popular confusion of socialism with anarchism. The fact that socialists and anarchists can join in attacking the established economic order is in itself no more remarkable than any other coalition, against a common enemy for the time being, of parties or sections who have nothing but enemies in common. On the whole there is no doubt that movements of social and economic opinion are capable of modifying legal as well as other institutions; but if we attend to the actual course of affairs we shall find that any such operation is effected not by the negation of law but by controlling its forms and instruments. Indeed it is notorious that in political convulsions the legal part of an established order has often fared the best. When the French Revolution had swept away the rank and privileges of the nobles, the substance of the civil law remained in other respects much as it had been before. Napoleon’s codes were based on the customs and ordinances of the monarchy; they were found quite well fitted to serve, with a moderate amount of editing and local amendment, for the Province of Quebec, where the Revolution had never passed.
An acuter kind of conflict may arise when obedience is refused to the secular magistrate in the name of a higher spiritual authority. Conscience, right or wrong, can be a very stubborn thing, and has been known to wear out the law in minor matters, as in the case of the Quakers. Not that the Common Law is very tolerant of conscientious pretenders to a special revelation; as witness the anecdote, apocryphal though it may be, concerning Chief Justice Holt and a certain prophet. We speak here, however, of the more serious case where the dissenting conscience appeals to an external and visible authority having a law of its own. Here we have not the State on one side and the individual on the other, but independent powers face to face, with the regular incidents (mostly but not always short of physical combat) of friendly or unfriendly relations, diplomatic discussion, treaties, compromises, and so forth. During the Middle Ages our lady the Common Law was in frequent strife with the more ancient and, at those times, more highly organized empire of the Church and the Canon Law. Now and then the strife might be said to be for independence rather than for any privilege or particular exclusive jurisdiction. Boundary questions, however, must come up whenever two or more jurisdictions exist at the same time and place and are capable of overlapping; and their occurrence, though it may imperil peace, does not involve in itself any state of normal hostility. Far more deliberate, though much less known to posterity, was the attack made on the Common Law in America not by Popes or bishops but by Puritans. The settlers of Massachusetts refused to admit any authority but that of their own enactments, tempered by a general deference to ‘God’s word,’ meaning thereby the text of the Mosaic law: not the system of the great medieval Rabbis, but the letter of the Pentateuch interpreted after their own fashion. Such was the prevailing temper, down to the eighteenth century, throughout the New England States, and the zeal of Massachusetts was equalled or even exceeded elsewhere (I do not, of course, refer to the spurious ‘Blue Laws’ of Connecticut; the genuine examples are sufficient). Besides the constant Puritanic or Judaizing bias, these early colonial ordinances exhibit curious reversions to archaic ideas and classification. Outside New England there was not the same downright aversion to English law and procedure, but it would be hard to find even in Virginia or the Carolinas, within the same period, any received presumption in favour of the Common Law being the groundwork of local jurisprudence.1 It may seem a paradox, but it is a fact which research more and more tends to confirm, that it was none of the Pilgrim Fathers, but the Fathers of the Constitution, who, in the very act of repudiating allegiance to king and parliament, enthroned our lady the Common Law on the western shores of the Atlantic.
There seems to be no ground for affirming that the Common Law is especially attached to any one form of government, or is incompatible with any that makes substantial provision for civic liberty and the representation of the governed. Those fundamental conditions may be satisfied in many ways, perhaps in ways not yet found out. It might be hard to say how much of our lady’s house has been rebuilt, but it is sure that the fashion of the furniture has been changed many times. Henry VIII, not to say Edward I, would never have believed a man who prophesied that his successors, after losing most of their direct power and sinking for a short time into political insignificance, would regain a high degree of consideration and no contemptible measure of influence as confidential but impartial advisers2 of their own Ministers. Yet through all this the Common Law stands where it did. Our lady does not, in truth, care much by what name the chief magistrate is called, whether his office is elective or hereditary, whether he has as much active discretion of his own as the President of the United States or as little as a modern King of Great Britain. What she does care for is that government, whatever its forms, shall be lawful and not arbitrary; that it shall have the essential attribute for which Chief Justice Fortescue’s word was ‘political’ as far back as the fifteenth century. She looks for trusty servants who will stand by her in the day of need. She demands fearless and independent judges drawn from a fearless and independent Bar, men who will not swerve from the straight path to the right hand for any pleasure of rulers, be they aristocratic or democratic, nor be drawn aside to the left by the more insidious temptation of finding popular favour in opposition. If our lady’s servants are not of that spirit, all the learning of all their books will not save them from disgrace or her realm from ruin. If they are, we shall never see the enemy whom she and they will be afraid to speak with in the gate.
[1 ]Paston Letters, No. 420 (ii, 59, 60, ed 1896). This bailiff was himself under a charge of felony, and laments that the trial was postponed when he ‘was through with the scheryff and panel made after myn avice.’ Mr. C. Plummer’s introduction to Fortescue on the Governance of England, Oxford, 1885, gives a good summary view of the time.
[1 ]‘Qant le Roy maunde deit home supposer qe ceo soit per comune consail. Et dautre part home ne deit mye contrepleder le fait le Roy.’ Eyre of Kent, 6 and 7 Ed. II, Selden Soc., 1910, pp. lxxxiii, 161, 176. The king’s letter (p. 158) professes to desire expedition only ‘selont la ley et lusage de nostre Roiaume et le cours del eire,’ but admits that ‘nous avoms ses bosoignes molt a cuer.’
[1 ]The Ethics of Advocacy, L. Q. R. xv. 259.
[1 ]The words ‘in fee simple’ should be added if the statement is to be strictly correct. But in practice the effect was unlimited.
[1 ]As to the complication added to the Pennsylvanian doctrine, it seems without sufficient cause, by a modern decision, see Gray on Perpetuities, § 26.
[1 ]The Act for the abolition of Fines and Recoveries, framed by Mr. Brodie, is a classic of conveyancing draftsmanship.
[1 ]We have nothing to say here of any other kind. The teaching of university schools is and ought to be comprehensive, but I know of no Faculty that has to teach the sheriff his business.
[1 ]Reinsch, English Common Law in the Early American Colonies, in Select Essays in Anglo-American Legal Hist., i. 369, from whom I take the facts.
[2 ]It is not easy to find an unexceptionable word: the fact, partly revealed and partly guessed before, is now made plain by Queen Victoria’s correspondence. I think it may be truly said that her counsels prevailed oftener than not, and not because she was the Queen, but because they were right and carried conviction.