crystallized from their original fluid forms into solid documents. These otherwise possibly negligible declarations might not be taken seriously if it were not that they have created a sort of general feeling among those who have not given the subject enough thought to enable them to feel the falacies of the argument, that it is true, and that the common law is really open to all the reproaches that have been. heaped upon it. They have heard so often from legal lips that it is a "Codeless myriad of precedent" that they forget. that Tennyson was a poet, and not a justice of the Supreme Court of the United States, or a Lord High Chancellor of England. They believe that it is a "tangled mass of irreconcilable contrarieties," although this reproach again is made by one who is not a student of the law. They also hearthis time from a legal source-that it is "Chaos" tempered by various acknowledgedly unscientific tools. If a thing is said often enough, and loudly enough, some people will be sure to believe it; and this thing has been said long enough and loudly enough to get itself believed by many who should not depend on loud voices or much speaking for their convictions.

Doubtless, all these things must also seem true to the lawyer who has never looked upon, perhaps has never been able to look upon, the law as a whole; who has groped from precedent to precedent, and fought his cases upon precedent, and believes he has won them simply because he "had a case" in his favour. Such men there are doubtless, who do not look behind the case itself; who do not know why the case they cite decides the cause; who are bewildered sometimes when even though they have "a case," even the "latest case," they do not win; they darkly suspect the Court of conspiracy with the other side, or have an heretical suspicion that the Court may have counted wrong, and mistakenly believed there was one more case on the other side than they had on theirs! So may the man in the Culebra Cut believe that the work is without plan and means simply digging long enough and deep enough and there will be the canal some day; to him the scientific plan is an unsolved mystery, and the shovels alone practical facts. But, it will be argued, it is not the man who digs at the law without skill and without knowledge who claims that the common law is without science and without plan; it is the man who does think; the man who does desire a scientific plan, who does want the law

to be carried on in accordance with a great design and a skilled knowledge, who is making this attack and making it for the purpose of improving our law. To some extent it is so; there are many minds to whom a mathematical demonstration is the highest attainment of human mentality. They forget that whenever the human integer is a part of the calculation the mathematical demonstration inevitably fails. The mathematical argument of a sociological fact always works out to the confusion of the demonstrator and the failure of the demonstration. The scientific code can be worked out with mathematical exactness, but when it comes into contact with that humanity for which it was worked out, it is denied and put to rout by that infinitely varied mass which refuses to be reduced to either scientific formula or mathematical exactness.

But was Stonore alone when he stood there in his sturdy strength and uttered his short defiance to all who would claim that that common law of which he was a part was merely precedent, or the “will of the Justices?" Were all his kind, who from the earliest Year Book steadily supported his "Nanyl, ley est resoun," mistaken, and was that reason of which they prated merely abstract justice and the law of nature, which they called upon for support when precedent went against them, as a last desperate resource? Nanyl, and again, nanyl. Through all the centuries there have been men of his calibre, and through all these centuries they have stood firmly for that life of the common law which is the soul of precedent and formula.

One there was who, in the opening days of our own great commonwealth, was called upon to speak as the first law lecturer of the University of Pennsylvania. Conspicuous above his fellows in the Convention which framed the Constitution of the United States, he had been chief factor in securing its adoption by the State of Pennsylvania, and was the member of the Convention most deeply learned in the civil law; that last factor should not be forgotten. When James Wilson undertook to expound a subject he did it thoroughly. His was no superficial brilliancy of intellect, content with the obvious and the easily seen. When he would find if a thing were true, he began with the beginning of history and followed it down through the ages to the least and latest data on the subject It was his method in all matters and he followed it in his lectures upon law One of these lectures is for to

say was " relegates them to the past where they do not belong a lecture upon the common law Now, I do not think it can be claimed that Mr Wilson was a student of the Year Books. We may, perhaps, assume that he was not, and it would not have occurred to me to go to Mr. Wilson's lectures, in 1790, for a proof that when Stonore said "Ley est resoun," he did not mean "right," but did mean reason." But Mr. Wilson had no superstitions about "bewildering precedent or any other narrow interpretation of the common law; he brushed such things aside in the true style of Stonore. Just as he gets fairly started in his lecture, he turns aside to say that the term common law is not confined to England-it is the term for other laws also. "Euripides" (we have at last another poet to offset Tennsyon) "mentions the common law of Greece, and Plato defines common law in this manner; that which being taken up by the common consent of a community is called law." In another place he names it the golden and sacred rule of reason which we call the common law. "This," he says "is very notable; it opens the original first beginning of the common law; it shews the antiquity of the name; it teaches common law to be nothing else but common reason-that refined reason which is generally received by the consent of all." Surely Stonore knew of what he spoke; here is nothing about doing as others have done.

Wilson was a civilian, a deep student of the continental and the Roman law, yet he had no thought that those systems were the only logical systems ever produced by the human mind; and further, he recognized, what the modern critics fail to notice, the great part which the common law, in its broader sense, plays in all these systems. The modern critic speaks as if codes and systems did away with the common law. "Rome retained her common law as long as she was free and powerful; no state either is or has been without a great body of the common law-that law whose authority rests upon reception, approbation, custom, long and established. The same principles which establish it, change, enlarge, improve, and repeal it."

Any system which did not rest upon reason would be destined to death before it had really begun to exist. No one claims that any system ever did rest upon anything else, except those who claim that the common law is a mere

"Wilson Works, Vol. 2, p. 4. 1st Ed., 1804.

Wilson: Works, Vol. 2, p. 38, 1st Ed., 1804.

mass of undigested cases. And they would see this claim in its bald absurdity did they think for a moment of the impossibility of the thing. A system of law growing up through centuries, playing its important part through eight or more centuries in a civilization advancing steadily in everything that goes to make for the healthful growth of mankind; art, letters, morality, wealth, and the social condition of the people. That system of law of which Dr. Francis Lieber spoke in this fashion:-5

"A living common law is, as has been indicated, like a living common language, like a living common architecture, like a living common literature. It has the principle of its own organic vitality and of formative as well as assimilative expansion, within itself. It consists in the customs and usages of the people, the decisions which have been made accordingly in the course of administering justice itself, the principles which reason demands and practice applies to ever-varying circumstances, and the administration of justice which has developed itself gradually and steadily. It requires, therefore, self-interpretation or interpretation by the judiciary itself, the principle of the precedent and 'practice' acknowledged as of an authoritative character, and not merely winked at; and in general it requires the non-interference of other branches of the government or any dictating power. The Roman law itself consisted of these elements, and was developed in this manner as long as it was a living thing.

"The common law acknowledges statute or enacted law in the broadest sense, but it retains its own vitality even with reference to the lex scripta in this, that it decides by its own organism and upon its own principles on the interpretation of the statute when applied to concrete and complex cases. All that is pronounced in human language requires constant interpretation except mathematics."

"So long as the Roman law was a living thing," it remained a common law; codified it ceased to live and became, like those planets which whirl in space, perfects worlds, but cold and dead; unfitted for humanity, while the common law lives in its as yet unattained perfection, a warm and living thing, where humanity may still find shelter and put forth new and fresh life with every passing season.

292

5

Lieber: Civil Liberty and Self Government, Vol. 1, pp. 222

Rome died, but left as a legacy to those peoples who should come after it a system upon which they might model their own systems of law. The continental nations have done so; they have adopted and adapted the Roman system, and it is continental law, we are told to follow because of its scientific form, its greater clearness, its sureness, its practical convenience.

Does the actual practice of the civil law, as systematized and condensed into codes shew it to be so much more simple, so much more condensed, so much more certain? To take an example from the law of Germany. It is popularly supposed that one has only to go to the Bürgerliches Gesetzbuch (endeared to the public mind by its diminutive, the "B. G. B.") to find all the law applicable to his case, in clear and definite language, so that nothing more has to be done; there is the law, under a scientific definition, and if it does not agree with his theory of what the law should be for his client's case, so much the worse for him. That is the law; there it is, and there is nothing more to it. Quick, simple, efficient; no looking after decided cases, no bewildering precedents; just plain, clear scientific demonstrations; every thing settled in a trice.

Take the simple matter of the working out of a contract, and a contest upon the contract; one suing because it was not carried out; the other defending because according to the code there was a carrying out so far as was possible. There is the code, that shews just what the parties can do, what they should do, what their rights are. But upon appeal to the code it is found that this is a commercial contract; the civil code does not contain the principles of the commercial code; we must turn from the B. G. B. to the H. G. B. (Handelsgesetzbuch) and we must construe the law we find there in accordance with the general provisions found in the B. G. B.; we must decide if the provisions of the H. G. B. are in accordance with the B. G. B. or not, before acting upon its provisions. Further, after making up one's mind on that point, one must go to the commentaries upon both

This code, by the way, has been called "a scientific body of law, a system of principles supported by a sound philosophy which has awakened the admiration of the civilized world." Introduction, p. 10, Guide to the Law and Legal Literature of Germany, Borchard.

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