Front Page Titles (by Subject) VI.: ALLIANCE AND CONQUEST - The Genius of the Common Law
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VI.: ALLIANCE AND CONQUEST - 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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ALLIANCE AND CONQUEST
Thus far we have spoken of the Common Law militant, striving with troubles at home and opposed to hostile powers without. It is now time to speak of our lady’s triumphs in enlarging her borders. Little or almost none of this was done by force, much by judicious alliance and voluntary commendation. She did not go forth in manner of war to make her conquests, but was rather like a wise prince whose neighbours gladly seek his friendship, whose policy binds them to him by the commerce of mutual benefits, and whose government is a profitable example. We may read in many books of what the Common Law has borrowed or is supposed to have borrowed from other systems. It was once fashionable to exaggerate the importance of these foreign elements; later, and within recent memory, there was risk of undue depreciation at the hands of a school dominated by the Germanic tendency which was part of the general nationalist revival in Europe in the nineteenth century. We must not enter here on these larger aspects of historical thinking; but we note for our own purposes that students of the Common Law, being lawyers but no historians, were too long at the mercy of historians and antiquaries who were no lawyers or, what is worse, indifferent amateurs in law. Through successive generations, for about two centuries, English text-writers were ready, now to ascribe magical influence to ‘the civil law,’ of which they seldom knew a word at first hand, now to swallow legends of a feudal system that never existed in England, or again to fly to the other extreme and swear by a ‘mark system’ that never existed anywhere. Rigorous in vouching and expecting authority for the assertion of any doctrine in their own law, they thought any kind of remote hearsay and unverified opinion good enough for historical fact. The prevalence of this uncritical temper may well be due to the bad example set by a great working lawyer whose mind was thoroughly unhistorical, Sir Edward Coke.1 If Coke had been endowed with the scholarly method of a Spelman (to set up a mark more within reach than John Selden’s unique learning and judgment) we might perhaps have had a historical school before the Germans. At this day we know that firm ground can be attained only by a training both legal and historical: the best of our law schools have already worked on this line long enough to show much good fruit and the promise of more. Let us now come to the facts; we must be content to deal with such as are well established, and I think we shall find those, taking them broadly as they stand, sufficient.
The Common Law, like the English language,2 contains a great deal of mixed and composite material, but has an individual structure and character which are all its own; and, also like the English language, has on the whole had the best of it in competition with rivals. There is no case, I believe, of the Common Law having lost ground in presence of another system; there are certainly many where it has gained, and the question is forced on an inquiring mind, to use the words of a recent ingenious French writer: “A quoi tient la supériorité des Anglo-Saxons?” Whatever we might say if we could throw ourselves back into Coke’s frame of mind, we can surely not be content to say that it is due to the intrinsic virtues of our race, or altogether to the superior justice or convenience of our rules. The more we look into other civilized modern laws, the more we shall find that under all differences of terminology and procedure the results come out not much unlike. No sane and impartial man will believe that in the main there is not as good justice in Edinburgh as in London, or at Montreal as at Toronto. Besides, one thing the boldest champion could never say in our praise is that we take any pains to make our ways easy for strangers who have a mind to learn them. The fact remains that the Common Law shows an assimilative power which, to all appearance, grows by what it feeds on. Therefore it must have started, even in its rude infancy, with some definite advantage. The suggestion I am about to put forward does not purport to give a complete explanation, but I hope it is sound as far as it goes.
As it emerges into distinct view in the late twelfth and early thirteenth century, our law is perceived as wielding one jurisdiction among many; so far eminent, no doubt, as it is in a special manner the king’s. But the king recognizes and protects the other jurisdictions too, if indeed, as regards the Church, there is any talk of protection rather than of equality or even claims to supremacy. Is there, then, any other distinctive character? Yes, there is this great difference, that other laws are special and personal, while the Common Law is not. It is the law not of a class or of a kindred, but of the whole kingdom and the men who dwell therein; lex et consuetudo Angliæ is its proper style. On the other hand the canon law, to take the case of the greatest rival, is personal though it is universal. Doubtless it is binding on all Christian men, but it is the law of Christians only; we do not speak here of the justice which many prelates, from the Pope downwards — say, for a domestic example, the Bishop of Durham — administer as temporal princes with territorial jurisdiction, for, though such justice may be bound in principle1 to accord with the law of Holy Church, it is in itself not spiritual but secular. Doubtless, also, the Common Law assumes that the king’s subjects in general are Christians in the obedience of the Church; it is by no means clear that others, Jews for example (if indeed this be not the only practical case) had any right to our lady’s protection down to the end of the Middle Ages and even later2 ; but it is clear that all men dwelling on English ground have to abide English law, the law of the king’s courts, unless they can show some special reason to the contrary. That, indeed, is what ‘the common law’ means. Therefore our lady the Common Law takes, as matter of course, whatever other jurisdictions have left for whatever reason, and keeps it with very little chance of losing it again. Moreover, being of a free hand, she knows how to take as well as to give nobly and without false shame, which is a high point of generosity and something of a divine secret. Her cloak will open as wide as the Madonna’s, and the children she welcomes under it are adopted for her very own. Where the occasion was not ripe for full intimacy, she has been politic in making friends of rivals and possible adversaries.
Chief among her allies and companions is Equity, who has at last come to keep house with her in England though not in all her dominions. Their days of strife are over; it is not easy to be sure how much of the strife was genuine. On certain points there was definite conflict; but the sixteenth-century complaints which reiterate a general charge of administering vague and capricious natural justice may be thought to savour of controversial common form, employed to cover the unavowable motive of dislike to effectual competition. Anyhow, the battle of judgments and injunctions in which King James I and Bacon finally had their will of Coke seems to us nowadays a battle fought very long ago. There were other and later jealousies which crossed the Atlantic with the Puritans and have left pretty recent traces, if I mistake not, in some American jurisdictions; but the causes of these were more political than legal. At home the relations of law and equity, once put on a correct footing, became harmonious and profitable, and have steadily improved for more than two centuries. Each system, being compelled to understand something of the other, learnt also to know itself better. Equity has enriched the common law, the common law has clarified equity. We have discovered, of late years, at any rate, that many doctrines which had been supposed to be mysteries of the Chancery were in truth very good common law. We have done with the punctilio which forbade equity judges to decide a purely legal question; we have long known that a good equity lawyer must build on a solid common law foundation; real property law, indeed, may be said to have been too much left to specialists of the Chancery Bar in modern times. We have all but done with the old attitude of distant and formal respect veiling something like a contemptuous incredulity. Very soon it will cease to be possible for a man to have a reputation for skill in the Common Law without at least an elementary knowledge of equity. Readers of English reports of the last generation, in the early days of the so-called fusion, may, by this time, find a quaint archaic flavour in the confessions of ignorance uttered with a certain ostentation by sturdy common law judges of the old school. But, while Bramwell declared that he could attach no meaning to constructive fraud (having satisfied himself, presumably, that the constructive possession and constructive delivery of modern commercial law were simpler notions), Bowen could, with the utmost courtesy, and more justly and profitably, point out that Jessel, surpassed by none among recent equity lawyers, and perhaps equaled only by Cairns, had underrated the resources of the Common Law. With regard to the contributions made by equity jurisprudence to what is now the common stock, it is well known that they account for most of our Romanist importation. Here it is needful to call to mind the warning given a good many years ago by Langdell. The learning and procedure of the early Chancellors might well enough be called Roman, but not in the classical sense of modern scholars. As between the two rival branches of jurisprudence outside England, they belonged not to the civilian, but to the canonical side; and therefore, when we think we are on the track of Roman influence anywhere between the thirteenth and the seventeenth centuries, it is quite unscientific to jump to a modern edition of the Corpus Juris.
Some trafficking with canon law, but not much, came in a more direct way through contact with ecclesiastical jurisdiction; and maybe some with pure civilian learning, but very little from admiralty law. The practitioners in those branches were quite separate in England from those of the Common Law till 1857, and indeed the law and procedure of our Probate Divorce and Admiralty Division retain most of their old special features to this day. Much more important were the relations of the Common Law with the cosmopolitan doctrine of the Law of Nature, certainly not the least notable product of medieval intellect.1 Our grand pervading principle of Reasonableness, which may almost be called the life of the modern Common Law, is intimately connected with it. St. German, the first of our comparative jurists, pointed this out with admirable clearness in the forefront of his ‘Doctor and Student,’ but for about three centuries and a half he spoke to deaf ears. I have written of this matter elsewhere, and my friend and successor at Oxford, Professor Vinogradoff, worked out some details of great interest at the last Historical Congress in Berlin. During the classical period of medieval English law the king’s judges were quite aware of the Law of Nature, and sometimes (though, as St. German says, not usually) appealed to it by name. This is a topic on which proper critical study of the later Year Books may yet bring us new light. We are however fairly well informed as to the most practical applied branch of the Law of Nature, namely, the Law Merchant. Here we find the greatest of our lady’s acquisitions, the more remarkable because it was made in a generation not otherwise distinguished for creative power or large enterprise. The king’s law had always recognized the law merchant as having its proper sphere; royal charters even prescribed its use.1 There were sporadic attempts at pleading it in ordinary litigation, first avowedly, later by fictions of special local custom. But it clearly would not do for the king’s courts to admit parties to be judged by any other law than the king’s, and in the absence of a general doctrine of contract there was no other way. When the action of Assumpsit had enlarged not only procedure but ideas, mercantile causes could be brought before the court on the footing, not that the parties were persons subject to the law merchant, but that they had agreed to be bound by the custom of merchants. In this sense it could be said in the seventeenth century that the law merchant was part of the Common Law: Blackstone had no difficulty in adopting this statement, writing just before Lord Mansfield’s work began. We do not know exactly why business men wanted, after the Restoration, to come into the king’s court, but we may surmise that on the one hand the domestic jurisdiction of trade gilds, whether of Englishmen or of foreigners in England, had broken down for economic reasons, and, on the other hand, the summary process of local market and maritime courts failed to insure much certainty in the substance of their judgments. Perhaps, too, the executive powers of the local courts, in spite of their customs of attachment, left something to be desired. In London the aid of the Chancellor had been invoked to determine the commercial matters of strangers by ‘the law of nature in the Chancery’; the practice was to refer the case to a commission of merchants, and Malynes, who tells us this, also tells us that it was not expeditious. Only two steps more were needed to complete the desired transfer to common law jurisdiction. The first was to treat the averment of the parties having contracted according to the custom of merchants as merely formal, or the form of the instrument itself as conclusive evidence of that intention; and this was done in the early part of the eighteenth century at latest. The second, which was reserved for Lord Mansfield, was that the Court should not treat the law merchant as an exotic law to be proved by evidence in every case, but should be bold to take judicial notice in the future of what had once come to its knowledge. Thus general mercantile custom, provided it were really general, became in the fullest sense matter of law. From the point of view of the Common Law the triumph was perfect. The Law Merchant, however, had to pay her footing for admission to our lady’s house by submitting to the procedure of the common law courts and its incidents; including legislative regulation such as the Statute of Frauds. In the middle of the nineteenth century Parliament made amends by providing a new summary procedure on bills of exchange, afterwards extended to all liquidated demands to which it appears, on the proper interlocutory application, that there is no substantial defense. Remembering that in England, at any rate, the majority of actions are undefended, we cannot doubt that Order XIV (so it stands in our Rules of the Supreme Court) is among the most beneficent inventions of modern procedure; and the history shows that indirectly we owe it to the law merchant. For a parting word concerning Lord Mansfield, let us note that, being a Scotsman by birth, he followed, consciously or unconsciously, the Scottish tradition of cosmopolitan jurisprudence rather than the insular learning of the Inns of Court. Without that temper, made a ground of reproach against him by short-sighted enemies, the peaceful conquest of the Law Merchant by the Common Law might not have been achieved, or not so well. Certainly it was a happy day for our lady the Common Law when she took William Murray into her service; and yet we shall hardly count it mere luck. We do not refuse to ascribe merit to a sovereign who attracts the best men to his court, whether he knows or does not know precisely what their services will be. Mansfield, indeed, failed in some of his experiments which went farther on less open ground, so that two or three of his reported judgments now stand for warning rather than example. Yet nothing worse can be said of his unsuccessful ideas than that they came too late to find room in a systematic doctrine already settled.
About the same time that the annexation of the law merchant was completed, our lady began to extend her influence beyond seas in various ways. I do not speak here of the simple transport of English law by English colonists to countries where no civilized law was in possession, but only of cases where another system or tradition was there already. If, indeed, a few historical circumstances had been different, there might have been curious questions as to the local law of colonies by settlement. Nobody, for example, ever heard of a colony being under the law of Scotland, not even Nova Scotia. But what if there had been Scottish colonies before the Act of Union? At this day I conceive it may be a theoretical question what is the proper law of a ship registered in Glasgow and sailing from the Clyde. The British ensign is no more English than Scots or Irish. Under what law would a boat’s crew be who landed from such a ship on an unclaimed island? The practical answer is that the modern maritime law of the two jurisdictions is identical either by statute or as part of universal sea law. But certainly there is no authority for assuming that English law, as such, is the general national maritime law of British subjects, though I have known arguments reported which seemed to make that assumption, or even to extend some such doctrine of the ‘predominant partner’ to the conflict of laws on land. Not that any qualified person could dispute, even in the most adventurous argument, that a conflict of this kind is just as possible between English and Scottish rules as between any others, say those of Maine and Ontario. Here, however, we are near touching on one of our lady’s little secrets, or rather a family secret of all jurisprudence; namely, that any clever student can put a number of questions which lawyers and men of affairs, in the exercise of their common sense, have tacitly agreed to avoid in practice. Only one law, the Common Law, has ever gone forth into the world beyond the narrow seas under or in company with the British flag; and wherever the British flag has gone, much of the spirit of the Common Law has gone with it, if not of the letter also. Everywhere our system has made its mark, and often without official countenance. We should not expect this influence to operate alike in all parts of the law, nor to manifest itself in an invariable fashion in different and remote jurisdictions, nor do we find it so. The tendency to imitate English models is strongest in criminal and constitutional law, considerable in mercantile law; while in the private civil law of property (excluding real estate) and obligations it is less, though not negligible, and in the regions of real estate, the family and succession it hardly exists; as indeed those are not the parts of our system which any English lawyer would recommend for general adoption. Most remarkable is the success of English criminal law, for it would be hard to name a British possession where it does not prevail under one form or another. In substance it compares not unfavourably with other systems, and this needs no proof; it is obvious that otherwise it would have no serious chance in competition. Certainly the substantial merits of our criminal law get no help from its form. In point of form it has almost every possible fault. It is encumbered with archaic and clumsy definitions rendered yet more obscure by centuries of judicial construction which has pursued no uniform policy. The worst example in this kind is the definition of larceny at common law; this goes back to Bracton’s adaptation (not literal copying) of Roman terms which he possibly did not understand and his successors certainly did not; and the result is that the question whether a certain act was larceny, or some other offense, or no offense at all, may be a dialectic puzzle capable of dividing judicial opinions in the last resort, involving reasons of the most subtle kind, and wholly unconnected with the merits.1 The fruits of legislation have been little better. Gaps have been filled up from time to time by the creation of statutory offenses, equally without any continuous plan, and often with lamentable shortcomings in both learning and draftsmanship; and with all this accretion of legislative new matter and amendment the old misleading definitions were treated as too sacred to be touched. Yet, strange to say, the occasions on which the difficulties come to the surface have long been so uncommon that a man may have a large criminal practice and know next to nothing of them. The Genius of the Common Law has somehow contrived to extract from all the theoretical confusion a body of law which is quite well understood by those who handle it, and quite sufficient for everyday needs, and has the reputation of being, on the whole, just and merciful.1 Complaints almost invariably relate to the exercise of judicial discretion in sentences, especially in inferior courts, or of executive discretion in granting pardons; and I do not myself believe that any material abridgment of the judge’s discretion, which certainly is very large, would in England be popular or beneficial. Thus our criminal law looks at first sight as hopeless a task for the codifier as the law of real property, but in truth lends itself to codification as well as any other branch. After that operation its intrinsic merit becomes visible, and its conquests in codified form have been extensive. Of such codes we have two types. In British India the criminal law of England was enacted in a systematic and simplified recension for a territory where the Common Law had never been in force; on the other hand, statutes have been framed for many English-speaking states with the purpose of codifying the criminal law already followed within the jurisdiction.
Now the Indian Penal Code, drawn chiefly by Macaulay more than two generations ago, has not only been in force in British India more than half a century, but has been largely copied in other countries under British rule or influence from Hong Kong to the Sudan, and among them Ceylon, where we found Roman-Dutch law in possession. In India the Company’s courts had endeavoured, honestly but with no success, to adapt the penal law of the Koran, imposed by the Mogul dynasty of Delhi, to modern social conditions. It is curious to read that after Macaulay’s death in 1859 Harriet Martineau, a person of universal information who was often ill-informed, pronounced his draft a complete failure. She may have taken the opinion of some philosophical Radical who disliked Whigs in general and had not forgiven Macaulay’s attack on James Mill in particular. In 1860 the Penal Code was enacted, and it may be said with confidence that few codes have needed so little amendment. Turning to the other type, in which the Common Law is reduced to writing for settlers of European civilization, we find one notable parallel to the case of Ceylon. In the Province of Quebec, as we all know, the old French laws and usages of Lower Canada were preserved in civil matters, but English criminal law was introduced very soon after the British conquest, apparently without objection; and accordingly the modern Criminal Code of Canada applies to the whole of the Dominion. Mauritius gives us an example of a Crown Colony where the criminal law is English and the civil law French. In this case the circumstances were not altogether similar, as the conquest took place before the promulgation of Napoleon’s codes was complete. One or two colonies have been Anglicized by degrees, beginning with criminal and public law. Trinidad is a curious, perhaps a singular, instance. This island was conquered from Spain late in the eighteenth century. The old Spanish law was administered by the first English officials, and has never been abrogated except by the piecemeal enactment, first in one branch and then in another, of rules closely following English models, or sometimes, in procedure ordinances, Anglo-Indian. By this time the whole law of the colony, civil as well as criminal, is substantially English, with one odd lacuna. Marriage, in a Spanish colony, naturally came under the exclusive jurisdiction of the Roman church. English governors could not administer Roman ecclesiastical law, nor admit the Catholic archbishop as an independent co-ordinate authority, nor yet introduce a new jurisdiction which the conscience of almost all the inhabitants would have declined to recognize. The result was that Trinidad had to do without any matrimonial jurisdiction at all. But this by the way. There seems to be no doubt that English criminal jurisprudence has an attractiveness which goes beyond the merits of its particular rules and cannot be explained by purely juridical reasons. Questions as to the rights of the citizen and the powers and duties of the magistrate may arise in almost any kind of contentious proceeding and in fact are not infrequent in civil jurisdiction. But in criminal matters they are often the only or the principal material issues; they involve graver consequences and are presented with a more dramatic emphasis. Our fathers laboured and strove chiefly in the field of Crown law to work out those ideals of public law and liberty which are embodied in the Bill of Rights and are familiar to American citizens in the constitutions of the United States and of their several commonwealths. English and American books of authority on public and particularly criminal law deal at large with these questions in many places, and the fundamental assumptions have for fully two centuries been treated as indisputable. Pleas of the Crown, to use the old English catchword, have a far higher scope than the repression of vulgar crime. Precedents of this class have varied and will continue to vary in form, as they are versed in the special institutions of British, American, Canadian or Australian government; but in every case they exhibit in action the ultimate political principles of the Common Law which belong equally to all our kindred nations. By this deeper political significance our criminal law has gained a world-wide influence in spite of its superficial technicality. Further, our criminal procedure, being associated most intimately with the elements of civic freedom as we understand them, has been not only admired, but imitated, in countries to which the Common Law is otherwise wholly foreign. The spread of trial by jury in the nineteenth century is one of the most remarkable events in the general history of legal institutions. It is not our business here to inquire whether the delicate operation of borrowing details from a foreign system has always been performed with full knowledge or with all desirable prudence.
Something remains to be said of the cases where Englishmen, or men of substantially English training and imbued with the Common Law, have been confronted with a legal system of Roman or Romanized form in the handling of ordinary civil affairs. Here the effects have been less conspicuous than in public law, but they have not been insignificant. The leading examples are those of Roman-Dutch law in South Africa (and on a smaller scale in Ceylon) and French law in the Province of Quebec. In each case the old European law which existed at the time of the British conquest has been scrupulously preserved, and whatever weight official authority has in such a matter is thrown into the same scale and against any encroachment of Common Law doctrine. Yet, in the contact of the two sets of ideas, we shall find that in each case our lady the Common Law has given rather than received. If there is a doctrine in our law more peculiar than another and less easy for a foreigner (or even a Scots lawyer) to understand, it is the doctrine of Consideration. Roughly stated, it seems plain and sensible. The Court will hold people to their bargains, but will not enforce gratuitous promises unless they are made in solemn form (and not always, or in the fullest sense of the word, then). But that was not the way in which the rules were developed, nor is the language of the authorities so simple. For ordinary business the rough statement is practically correct; the application to various unusual but not unknown cases has been made subtle and obscure by excessive dialectic refinement. Moreover the Roman law of obligations arising from contract cannot be reduced to any such general form, nor, so far as I know, the corresponding law in any modern system derived from it. Yet this particular doctrine has lately been grafted on the Roman-Dutch law in at least one South African jurisdiction. The decision does not seem elegant, and I should doubt, with great respect, whether it is useful; but the fact remains that it has been made. In the Province of Quebec things have not gone so far, but the English term has left its mark on the language, if not on the substance, of the Civil Code promulgated in our own time. This is the more notable because the lawyers and legislators of that Province are not, as a rule, men bred in the school of the Common Law. Recently a new body of law has come into being in Germany, which resembles ours in being both composite and original, but differs from it in being the product of a systematic design deliberately worked out with the best learning and skill available. There are signs that the influence of the German Civil Code in neighbouring lands, perhaps farther afield also, will make an interesting chapter of legal history before long.
Apart from the actual contents of the substantive law, it is remarkable that everywhere under the British flag — I think it may be said without exception — our forensic and judicial habits have prevailed. In particular the custom of attributing exclusive or all but exclusive authority to judicial decisions, as distinguished from extra-judicial opinions of even the most learned persons, has spread far beyond the bounds within which English law is administered or followed. One may find indeed that imitation of our methods is now and then carried to excess. Not only the decisions of Indian superior courts and of the Judicial Committee on appeal therefrom, but those of English courts, are cited wholesale throughout British India, frequently by advocates who cannot know much of the Common Law and before judges or magistrates who may know as little; and the citations, one suspects, are too often not even from the report but at second hand from text-books. Even technical rules of English real property law have been relied on in Indian courts without considering whether they had any reasonable application to the facts and usage of the country. Some Indian judges, even in the superior judgment seat of the High Courts, have forgotten that the law they administer (with strictly limited exceptions) is not English law as such, but ‘justice, equity and good conscience,’ interpreted to mean so much of English jurisprudence as appears to be reasonably applicable, and no more. Blind following of English precedents according to the letter can only have the effect of reducing the estimation of the Common Law by intelligent Indians to the level of its more technical and less fruitful portions, and making those portions appear, if possible, more inscrutable to Indian than they do to English lay suitors. Still all this homage is done to the Common Law, whether with the best of discretion or not. Neither are the blunders our lady’s fault. Like others who bear rule in high places, she has to assume a certain measure of common sense in her officers.
It would not be wise or just to conclude, on the strength of such facts as we have rapidly surveyed, that our legal system must in itself be better or more convenient than all other actual or possible ones. But the facts, being for the more part independent of official authority or persuasion, do give proof of a certain masterful potency, not the less operative because not easy to define. Maitland found the right word for this quality. The Common Law, whatever else it may be, is pretty tough. Moralists may determine (or have determined in several irreconcilable ways) whether any and what active virtues are of a higher order or have greater merit than toughness. At all events it is of the kind that prevails.
PERILS OF THE MARKET-PLACE
We have already noticed that our law is not committed to any particular form of political institutions, but can work with any that will secure the essentials of justice and freedom. Nevertheless the form in which legal doctrine has been expressed from time to time has constantly been affected by prevailing political theories. In like manner our lady the Common Law is not a professed economist and has not (for example) any decided views about tariffs. At one time she was inclined to think that whatever a citizen’s duty about domestic revenue laws might be, it was rather a laudable feat than otherwise to evade foreign ones; but this opinion is no longer of authority, if it ever was. Yet she is not without certain ideas of economic justice which her servants have endeavoured to apply with such consistency as they might to the circumstances of different periods. Those ideas cannot be confined within the dogmatic lines of any particular school; they cannot be invoked in favour of any universal rule of economic policy. If it be asked whether the Common Law is on the side of individual enterprise or governmental interference, we can only answer, as we did to the wider political question whether it is individualist or socialist: Both and neither. There is no doubt that the manner in which the standing principles have been worked out has been largely modified by the doctrines in favour among economists and publicists for the time being, and accordingly the tendency of decisions has inclined one or another way with the fluctuations of theory. The oscillations have been less violent in case-law than in legislation, and they have followed expert opinion, or what was deemed to be such, rather than the voice of the multitude or of a party. For the men who make law, by judicial methods at any rate, are not mere men in the crowd; they rather belong to the educated class who mediate between the leaders of thought and the general public opinion that sooner or later follows them.
With regard to our lady’s most general principles in these matters, they may be put very shortly. The Common Law favours competition wherever free competition is practicable, but prefers regulation by public authority to restrictions imposed by any combination of private interests; and this, in either case, with a view to the common advantage and not on any assumption of absolute natural rights. Now we must be careful at the outset not to be misled into making familiar historical words bear a purely modern significance. Free competition is favoured in the law. That is true, but it did not originally mean unlimited competition between all men. The merchant and the tradesman of the Middle Ages had to be qualified persons. Before they could exercise their business they passed through a stage of apprenticeship; and when they became ‘free’ of their gild or craft, this freedom was the name (as almost always in medieval speech) of a privileged condition, as much earned by a special training as that of the learned professions at this day. The man who had thus made himself a full member of a craft or corporation had a positive right to exercise his calling or ‘lawful mystery’ without hindrance, and his neighbours were entitled on their part to the benefit of his skilled work. Our modern notion of letting every man try his chance, and trusting unchecked competition between all sorts of competent and incompetent persons to secure the public interest automatically, may have its virtues, but it is modern and not medieval. A ‘franchise’ conferring an exclusive right to some kind of local profit is, of course, quite familiar in our law; one example is the exclusive right to work a ferry. Such rights might or might not be seigniorial; feudalism, that much abused antiquarian servant of all work, will not explain them. The old Common Law made no objection to the self-government of the trades, nor, with one material reservation, to the number of one trade in any one place being limited. That reservation was that the privilege must not be abused so as to create a monopoly. For the medieval fathers of the law knew well enough the danger that lay that way; they knew too that in denouncing all forms of monopoly they were supported by a strong popular feeling. It was an unlearned local court, in 1299 or 1300, that fined several chandlers of Norwich for having made a covenant among themselves that none should sell a pound of candles cheaper than another.1 We need hardly add that presentments for breaking the assize of bread and ale and selling corrupt victual are the commonest items in both municipal and manorial records. Thus the whole system of medieval regulation hangs together. The craftsman has his rights which must be protected; it is also his duty to exercise them for the public good, and he may not disable himself from exercising them. Doubtless abundant mistakes were made in working out such a system, and some which now appear to us childish. Still it was in itself a consistent plan and by no means contemptible. It had to pass away with the condition of society for which it was made, but it left its mark in a continuing hatred of monopoly which has not lost its vigour in the latest jurisprudence and legislation of English-speaking countries; a vigour which, now as much as ever, needs to be guided by well advised judgment.
Accordingly, when monarchs in search of revenue took on themselves to grant monopolies, they found themselves in acute conflict with the people and with the lawyers; and our lady the Common Law showed, not for the first time, that she could and would maintain her ideals even against the King’s authority and whatever learning he could command among his counsellors. But the danger was not exhausted here. Private and local monopolies might be created by agreement; or, short of actual monopoly, capable workers might be tempted by the offers of rivals or successors to deprive the public of their services and unduly narrow the field of competition. From these considerations the whole chapter of the law against contracts in restraint of trade was developed. In the earlier decisions, and still more in dicta which have been carelessly quoted in modern books as if they had positive authority, we find an extreme jealousy of all undertakings by which a man purports to restrain himself in any degree from the exercise of his calling. It is not clear that this attitude was always unreasonable. But as time went on the old merely local conditions disappeared, the volume and scope of trade increased, and the range of business relations in space became practically unlimited. At last it was obvious that no man dealing on a large scale could safely acquire the good-will of a business unless he were protected from destructive competition at the hands of the seller himself; without adequate protection of that kind, indeed, there really would be nothing substantial, in many kinds of business, for the seller to offer, and he would find no buyers. Hence it became needful to recognize that restrictions which appeared extravagant in the sixteenth or eighteenth century might be no more than reasonable in the nineteenth; and here we may see one of our lady’s most remarkable successes. Without any aid of legislation, without express disapproval of a single received authority, the law as to agreements in restraint of trade has in our own time effected a change of front that has brought it completely into line with modern business conditions. It is true that the framers of the draft Civil Code of New York inserted on this subject provisions which were much too narrow even as authority stood fifty years ago, and this with an avowed reactionary intention. Yet these clauses were adopted by the legislature of British India some ten years later, it would seem by improvidence rather than perversity. Such are the drawbacks of unconsidered imitation.
If competition under equal conditions is to be free, then it follows that the consequences must be accepted. A man cannot complain if a more skilful or fortunate competitor diminishes his profit. Monopoly is exactly what the law will not give him. It is curious that our earliest classical authority on the necessary toleration of competition relates not to rival tradesmen but to rival schoolmasters who certainly would have joined in making short work of any unqualified intruder — a process not unknown, it is said, in modern politics. This legal result fitted quite naturally, when the time came, into the political and economic theories of individual freedom which dominated the latter half of the eighteenth and the former half of the nineteenth century. Then, as the extent and variety of trafficking increase, competition assumes more complex forms, and it becomes needful to determine the point at which competition ceases to be fair and must be regarded as fraudulent or oppressive. To enter on details here would be to undertake a purely technical exposition both foreign to the purpose of these lectures and useless in such a context. But it is obvious that in a frame of society which no longer limits competition the claim of the individual to be guaranteed against unfair competition becomes much stronger. Indeed, if we insisted on our institutions being or appearing logical (as happily we do not), the individual might say with some plausibility to the State: ‘You turn us all out to compete with one another, and say that if half of us are ruined the other half have only exercised their common right. You say the result is worth more to the community than it costs. Good: but why should the cost fall wholly on innocent unsuccessful competitors? If they suffer for the common good, why should not the community compensate them? Either go back to the old plan of limiting competition, or insure us as individuals against the consequences of your collective policy.’ Thus the Nemesis of unchecked individualism would lead to something which I suppose would be not improperly described as a form of State Socialism. There is one answer, to be sure, which is decisive if accepted; namely, that these matters do not concern the State at all. It was a fashionable answer during the second and third quarters of the nineteenth century. Whatever may be the ultimate fate of the doctrines it sprang from (whose rise and decline in their influence on British legislation have been admirably set forth by my friend Professor Dicey), I do not think this is such an answer as our lady the Common Law has ever committed herself to, or indeed very well could. But I must avoid the danger of putting an unlicensed sickle into the harvest of political as distinct from legal science.
It may be worth while to notice how the doctrine of free competition has overflowed, so to speak, into the law of property. We have now held for about half a century that an occupier of land who uses it in any ordinary way is not liable, apart from claims founded on some definite special title, for any damage resulting to his neighbour. He is not bound to provide against any such result even if it is apparently probable. On the other hand, if he creates a hazardous state of things by doing anything unusual, he may fall (though not to the same extent in all jurisdictions) into the clutches of a very stringent rule1 which recalls the most archaic law of trespass, excluding all or almost all questions of intention and negligence. This is a survival from the ancient Germanic principle that a man is liable without any qualification for the consequences of his voluntary acts. Where we have an original rule of this absolute kind, it is natural that the exceptions, also, when exceptions come to be recognized, should be absolute as far as they go. Thus a conception of responsibility which may be called in a relative sense primitive seems to have combined with the modern and expansive notion of individual freedom to produce a set of rules whose extremely sharp contrasts must be a cause of no little surprise to any intelligent foreign critic. On one side of a more or less conventional line I may do as I please without taking any care at all not to damage adjacent owners; on the other side I act at my peril, whatever amount of caution I may have used, or at best, according to the milder opinion held by several American courts, unless I can show that no practicable caution has been wanting. Apart from rules of this kind, it is generally true that our law of property is individualist as between the owner and the State. The Common Law makes no provision for anything like eminent domain.1 The king may enter on a subject’s land, in time of war within the realm, for reasons of military necessity, but by way of excusable temporary intrusion, not of acquisition. He cannot compel any subject to sell him one square foot of land to improve a highway, still less grant any power of that sort to a corporation. Whatever is done in this kind nowadays (how much is done, and how helpless modern enterprise would be without it, we need not stop to mention) is done under statutory powers. The trend of all recent legislation is to magnify the office of the State in these matters. We may perhaps regret that the Common Law had no means of meeting legislation halfway: the results might have been more harmonious.
So far we have seen the law building on a foundation of common sense, medieval common sense, and yet fairly capable of adjustment to ours. But there ran along with this an assumption that wrought much mischief, and whose ghost has not ceased from troubling us, namely, that there is something intrinsically wicked in all concerted endeavour to raise the price of anything, and in particular of labour. Hence the long and lamentable history of judicial and parliamentary warfare against the persistent efforts of workmen, from the time when the medieval structure of society broke up, to devise organized methods of self-defense. A series of penal enactments from the Statute of Labourers to the latest anti-combination Acts enslaved the Common Law to a policy of mere repression. We were saddled with a confused and obscure doctrine of criminal conspiracy, and with a controversy not yet extinct as to the possibility of conspiracy being in itself a cause of civil action apart from any ulterior object which can be definitely called unlawful. It would be hard to find any adventure in which our lady the Common Law was worse served, or from which she came out, if she has finally come out, with less worship. Not that I think it a hopeless task to extract an acceptable opinion, so far as the common law part of the problem goes, from the seeming chaos of the books, or to show that this opinion is the better supported as well as the better in itself. On this, however, which is a matter of somewhat refined argument, I have said elsewhere what I could say. Whatever view may be taken of the technical points, there is no doubt that the law was dominated by class legislation in these matters, has paid dearly for it, and is now paying in a crude reaction. In England the last instalment of the price has been the Trade Disputes Act of 1906, a barefaced piece of retaliation which remedies some old grievances and some real or supposed new ones, not by constructing a just and comprehensive scheme on rational lines, but by creating fresh partial anomalies in the narrowest spirit of class hostility and with no regard to legal and very little to natural justice.
Another doubtful adventure of our lady the Common Law in the field of social economics has been in the theory for which our professional catchword in England is ‘common employment.’ Here you call it, I think more aptly, the fellow-servant doctrine. It is a very modern exception, grafted, as late as the second quarter of the nineteenth century, on the rule of an employer’s liability for the acts of his servants and agents in the course of their employment. The principal rule itself is not ancient in any general form; it was established, apparently not before the Restoration, by gradual extension from particular cases, and no record of any deliberate exposition has come down to us. When workmen and subaltern employees plucked up courage to bring actions against their masters, orthodox political economy was already in the ascendant, and those judges who had minds above mere empirical routine had one leading idea, that all would be well in the best of possible competitive worlds if one could only reduce all human relations to contract. I do not mean that they proposed to apply the same system to marriage, divorce and other domestic relations; English matrimonial jurisdiction, it will be remembered, was still in the hands of the spiritual courts. The question, therefore, which they asked without a thought of any other being admissible, was the seemingly straightforward one: What were the terms of the contract between the parties? Equity, no doubt, had pursued a different method in times past, but those, in the eyes of the philosophic reformers of 1832, were the dark uneconomic ages; and moreover it was still a pretty fixed assumption of every good common law practitioner that, when he found in equity reports anything he could not quite understand, the equity lawyer must be talking nonsense. Thus, when the workman or small clerk suffered by the negligence of a fellow-workman or a defect in the employer’s plant, the judges did not search for an applicable principle of the Common Law, but relied on a short cut of infallible economic dogma. They retorted: Show us the term of your contract by which your master undertook to compensate you. This he could not do; but still he had a reply. Show me, he said in effect, the term by which I have undertaken to waive the common right of holding a master to answer for his servant’s negligence. But the Court, having gone so far, did not stick at the further step of implying as against the workman a term which was not there. That risk, they said, must have been counted in fixing your wages. It was not a convincing reply to the workman: it hardly seems convincing to the majority of thoughtful lawyers at this day. Such as it was, it dominated English jurisprudence for a generation, and is still of authority so far as not displaced by statute. Now I am not speaking here of England alone. In fact, our first leading case did not raise the question squarely. It was a Massachusetts case in which, within a few years, Chief Justice Shaw fairly took it in hand, and laid down the ‘fellow-servant doctrine’ in one of his most able judgments. I do not think the later authorities (including the decisions by which the House of Lords forced the doctrine on Scotland in its full extent) go much beyond repeating his reasons with variations. This doctrine, I humbly conceive, has been one of the great mistakes of the Common Law. Starting to handle the problem on the ground of contract and of contract alone, our Victorian lawyers found no real agreement at all on the point in dispute, and stultified their own initial assumption by inventing one. It is a sad example of the wrong way to use fiction. And yet this was the same generation of judges who introduced the brilliant, eminently just and wholly successful fiction that a professed agent warrants his authority. Being once established, the perverse doctrine was worked out with relentless logical ability, for the most part in the Court of Exchequer, a court which in our fathers’ time had great qualities and the defects of those qualities. Even of late years the results have been seen in a few cases of this class where for some inscrutable reason plaintiffs have chosen to risk an action at common law. No plain man would say that an actor’s employment has much in common with a scene-shifter’s. It is not an actor’s business to understand the stage machinery; he has no right to interfere in handling it, and would be neglecting his own duties if he attempted to observe how the work was being done. Nevertheless it is held that if a scene-shifter in the flies drops a heavy object on the actor’s head, they are fellow-servants of the manager in a common employment, and the actor cannot recover.
A rule so manifestly one-sided and so remote from ordinary notions of justice could not stand unamended. It is hardly worth while at this day to consider whether some less extensive doctrine on similar lines might have been tolerable. For example, it might have been held that the employer (having used due diligence in finding competent workmen) should not be liable to one workman for the negligence of others employed along with him in the same operation and in a grade not above his own. What was in fact held was that the rule of liability for servants’ negligence exists only for the protection of the outside public, and has nothing to do with what goes on inside the employer’s undertaking, however various its branches and how many soever the degrees of authority and responsibility may be. The case-law of several American states has, I believe, more or less qualified the doctrine in the direction above suggested; I do not know whether such modifications have anywhere been accepted as adequate. On the whole the Common Law had come to a deadlock, and about thirty years ago the period of remedial legislation set in. As usual, the first experiment was empirical and clumsy. Nothing could be much worse in point of form than our Employers’ Liability Act of 1880, which mitigated an anomalous rule by creating an involved series of exceptions and sub-exceptions, further complicated by minute novelties in procedure. However, it was better than nothing, and has, I believe, been rather widely imitated. All this does not touch the real economic problem. From the business point of view it is not a question of individual wrongs, but of insurance on a large scale. If the fellow-servant doctrine had never been invented, employers would have accepted the risk and, when it became considerable, insured against it. The mere lawyer must be excused from determining in what proportions the insurance would ultimately rest on the employer, or fall on the workman in the shape of diminished wages, or on the consumer of the product (anything from an Atlantic liner to an opera) in the shape of enhanced prices. Even so, however, there would remain the difficulty that there is no cause of legal action without proof of negligence somewhere, and that such proof is often troublesome and precarious. In 1897 our Parliament, inspired by Joseph Chamberlain, took the bold course of removing the whole matter out of the litigious region where the first necessary step is to find some person in default. Our Workmen’s Compensation Act makes the employer an insurer not against negligence as such, but against accidents, and leaves him to insure over. This, to go back for a moment upon a question already put, may for anything I know be socialism. Certainly some people take pleasure in calling it so: which, in my poor judgment, makes it neither better nor worse. With or without this or any other classifying label, it deserves the credit of being a courageous endeavour to get behind the technical categories and attack the problem in its real center. In point of form the Act is not a satisfactory piece of work. The use of semi-popular language resembling terms already known to the law but not identical with them has led, as it always does, to tedious and inconclusive controversies on points of construction, in which the real dispute is nine times out of ten on the minute interpretation of the facts. One may hope that this fault, and others which I cannot stop to explain here, may be avoided in other jurisdictions.
We have seen by these examples that the Common Law has passed or is passing through at least three distinct stages of economic assumption in its dealings with industrial affairs and the relations of capital and labour. There was the medieval stage in which every man was supposed to have his proper state of life, and the law had to see that he was kept in it. We cannot fix a point of time when this conception of social welfare ceased to be officially accepted. Official and judicial opinion are rather apt to lag behind the general movement of ideas, but they do move, and older and younger colleagues are not likely to move at the same pace: just as, in dating a manuscript, one has to remember that an ancient scribe may be writing the hand of the last generation at the same time that a young one is eager to display the very newest graces of penmanship. We shall not be far wrong in placing the period of transition between the beginning of the nineteenth century and the reforms of 1832. Next came the reign of utilitarian individualism, under which unlimited competition was to be the universal regulator, and it was thought that the State ought not to hinder this beneficent operation of human nature and could do nothing to help it beyond removing artificial obstacles. In the faith of that doctrine our fathers (I mean the fathers of men now growing old) lived through their active years, and their sons were brought up in its atmosphere. It prevailed for approximately half a century. Then, well within the memory of men not much past the prime of life, it became a tolerated, indeed a probable or plausible, opinion, that the State was abdicating its functions by remaining passive, and should not only leave the road open for ability, but give active assistance in suppressing unfavourable external conditions and equalizing opportunities. The present generation is full of this spirit, and its power seems likely to increase for some time yet. It is not for me to discuss the merits of these different ideals or to point out the perversions and excesses incident to each of them. What we have to note is that in a community pervaded by any of them the law runs no small danger of accepting the current opinion without any critical examination and importing it into judgments that ought to be purely legal. I do not know why lawyers should be readier than other men to take persons holding themselves out as experts at their own valuation, but so it is that they are generally credulous in matters outside their own art, except when they are cross-examining a hostile expert witness; and our lady the Common Law pays for it sooner or later. The conclusion is that judges ought to be very careful about committing themselves to fashionable economic theories: first because they are quite likely to misunderstand or misapply such theories, secondly because the theory may well be discredited after a short time, and thirdly because, when mistakes in this kind are once made, they are pretty sure to call for legislation, and the legislative amendment is almost sure to be unsatisfactory.
We have been speaking of particular failures in the face of social and industrial conflicts, doing our best neither to exaggerate nor to extenuate. It would be disloyal to our lady if we left off on this note without saying a word of her success in keeping her more general methods up to the mark of business requirements. We are so familiar with our learning of Agency, now a common learning in all essentials, that we seldom stop to think how much we owe to its rapid, comprehensive, and elastic development in the course of the past century. Beginning with very simple principles, it has grown to be capable of dealing with the most intricate commercial relations and finding solutions acceptable to men of business as just, and to lawyers as workman-like and scientific. It has enabled us to build up a full and elaborate law of corporations and reserve the thorny speculative problem of corporate personality to be discussed in such learned leisure as we may command, without any fear of unsettling practical foundations. Combined with the equitable doctrine of notice, it has allowed us to enforce the highest standard of honesty and diligence in dealings with every kind of property. If the law has sometimes erred in refinement, it is a fault on the better side. Another weapon of great power is in our lady’s hand for maintaining good faith in all kinds of business, the doctrine of Estoppel, a subtle and far-reaching weapon not to be wielded without skill and judgment, but such is the virtue of all arms of precision. We may safely challenge any other system to show principles of like generality better fitted to advance justice, capable of nicer discrimination in doubtful affairs, or applied with more scientific elegance. A man who has mastered these two branches of our jurisprudence, Agency and Estoppel, may not always, in a complex piece of business, give that opinion which finally prevails in court, but he will surely give one that has to be treated with respect. Equipped with such arms, our lady the Common Law may take to herself the praise of the lover in the Song of Songs. Her justice is fair as the moon, clear as the sun and terrible as an army with banners.
One or two recent writers have gone the length of calling Coke illiterate but this is an unjust reproach. His Latin prefaces are not classical, but they do not pretend to be, and there is nothing to show that he had any trouble in writing them. He was not a scholar like Bacon; very few lawyers were.
[2 ]It must not be supposed that English is alone in this respect. Modern Persian offers a remarkable analogy both in its wealth of adopted Arabic words and in its extreme grammatical simplicity. My Oriental studies are too slight to enable me to say how much attention this analogy has received from philologists. In Urdú, the current polite language of Northern India, we have a large Persian vocabulary, including much imported Arabic, added to a Hindi stock of which the original structure is unchanged. In both cases there has been large adoption of exotic literary form; there does not seem, however, to be any parallel in either to the organic influence which the Romance elements have exercised in English.
[1 ]In England the Bishop of Durham’s secular law followed the king’s so closely that his temporal court issued in his name prohibitions directed to himself as judge of his spiritual court.
[2 ]No one appears to have doubted Edward I’s right to banish the Jews by a mere act of royal authority. Prynne, under the Commonwealth, wrote a violent controversial tract against their readmission, accepting all the medieval fables about sacrificial murder or circumcision of Christian children. Presumably the king might at any time have given his protection to individual Jews as an exceptional favour. But I rather think that, so far as the presence of Jews was winked at after the expulsion, the toleration was informal and precarious; nor was there ever any formal restitution.
[1 ]Opinions may differ on the amount of originality shown by the lawyers and schoolmen of the Middle Ages in adapting their Greek and Latin material. My own estimate of it is very high.
[1 ]As in the Court of Yarmouth Fair, temp. Ed. I. Montagu Burrows, Cinque Ports, 170.
[1 ]I have known one man who thoroughly understood the law of larceny, the late Sir R. S. Wright.
[1 ]All such terms, it will be understood, are relative. We are going through something like a revolution in our notions of punishment and penal discipline, and still more of preventive measures at an early stage. These things, however, belong only in part to the domain of substantive law.
[1 ]Leet Jurisdiction in Norwich (Selden Soc., 1892), p. 52.
[1 ]The rule in Rylands v. Fletcher.
[1 ]It has been suggested, I think by Renan, that the story of Ahab and Naboth, as we have it, is a sacerdotal libel, and Ahab was an enlightened ruler who tried to introduce ‘expropriation pour cause d’utilité publiquè’ to a generation too backward to understand it.