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James Bryce Bryce.

University and historical addresses, delivered during a residence in the United States as ambassador of Great Britain online

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many a weary week, asking when, at last, they would
be put on shore.

Many things have come to pass, both in England and
here, which those grave, grim ancestors of yours might
disapprove, good and necessary as you and we may
think them. But one thing remains as true now as it
was then.

The fearless man who loves truth and obeys duty
is the man who prevails and whose work endures.
The State which has such men, and to which such men
are glad to render devoted service in war as in peace,
grows to be the great State. Those men bequeathed
to you traditions and the memory of high thoughts
and brave deeds which have been helpful to you ever
since hi many an hour of need, and will be helpful to
you while your Republic stands. Many new elements
have entered into the American people, and much of the
blood of the New England of to-day comes from other
than old English sources. But there is an inheritance
of the spirit as well as of the blood, and the type
survives because it has become a part of the character



40 UNIVERSITY AND HISTORICAL ADDRESSES

which each generation transmits to those who come
after. So may the type of the resolute, God-fearing
men who laid the foundations of this Commonwealth
abide with you for ages to come.

You are setting the corner-stone of a Tower which,
looking far out over the waves of the Atlantic, shall com-
memorate those who laid the foundations of the Com-
monwealth of Massachusetts, an event worthy of ever-
lasting memory. Yet there is a sense in which we may
deem that no monument piled high in stone is needed.

It was said by a famous statesman of antiquity that
" the whole earth is the tomb of illustrious men." So the
wide land which the descendants of these settlers have
covered with flourishing cities and in which they them-
selves planted the first seeds of civil and ecclesiastical
government is itself their most enduring monument.

In their darkest days one wrote to them from Eng-
land : "Let it not be grievous unto you that you have
been instruments to break the ice for others. The
honour shall be yours to the world's end." That
honour has been theirs and will be theirs.

From Cape Cod here close beside you to Cape Flat-
tery on the far-off shores of the Pacific, corn-fields and
mines, railroads, and populous cities, State Houses
where legislatures meet, and courts where justice is
dispensed, all bear witness to the men who here began
the work of civilizing a continent and establishing in
it a government rooted from the first, and rooted deep,
in the principles of liberty.



THE INFLUENCE OF NATIONAL CHARACTER
AND HISTORICAL ENVIRONMENT ON THE
DEVELOPMENT OF THE COMMON LAW

ADDRESS DELIVERED TO THE AMERICAN BAR ASSOCIATION AT ITS
ANNUAL MEETING IN PORTLAND, MAINE, AUGUST, 1907.



THE INFLUENCE OF NATIONAL CHARACTER
AND HISTORICAL ENVIRONMENT ON THE
DEVELOPMENT OF THE COMMON LAW

ADDRESS DELIVERED TO THE AMERICAN BAR ASSOCIATION AT ITS
ANNUAL MEETING IN PORTLAND, MAINE, AUGUST, 1907.

NOT long. ago I had occasion to read an opinion ren-
dered on a point of law by an eminent legal practitioner
in a Spanish-American country. The point itself was
one which might have arisen equally well in the United
States or in England. But the way of approaching it
and dealing with it, the turn of thought and the forms
of expression, were curiously unlike those which one
would have found in anyone trained in the Common
Law whether in the United States or in England. This
unlikeness pointed to some inherent difference in the
way of looking at and handling legal questions. Many
of you have doubtless had a similar experience, and
have been similarly led to ask what is at the bottom of
this difference between the legal ideas and legal methods
of ourselves whose minds have been formed by the
study of the Common Law and the ideas and methods
of the lawyers who belong to the European continent
or to South and Central American States. French,
German, Italian, Spanish lawyers are all more like one

43



44 UNIVERSITY AND HISTORICAL ADDRESSES

another than any of these are to Englishmen or Ameri-
cans.

The causes of this difference lie far back in the
past. It would have been discernible in the
seventeenth century, and might indeed have
been even more marked then than it is now. Two
hundred years ago the law of England had already
acquired a distinctive quality, and that quality has
remained distinctive until now, both here and in Old
England, although the substantive provisions of the
law have been changed in many respects by the eco-
nomic and social progress which the two branches of the
race have made, and by the new conditions under
which those branches live. We may still with truth
speak of the Common Law as being the common posses-
sion of the United States and of England, because that
spirit, those tendencies, those mental habits which
belonged to the English stock when still undivided
have been preserved. The causes that produced them
belong to a period long anterior to 1776, when the an-
cestors of Marshall, Kent, Story, Taney, Webster,
Curtis, were living in English villages side by side with
those of Coke, Hale, Holt, Hardwicke, Blackstone,
Eldon, and the other sages who adorn the English roll
of legal fame. These causes were indeed at work far
back in the Middle Ages. Just as the character of an
individual man is in its essence formed before he
attains manhood, though the circumstances of his life
modify it, giving prominence to some parts of it and



DEVELOPMENT OF THE COMMON LAW 45

leaving others undeveloped, so in those early centuries
were formed that set of ideas and that type of mind
which took shape in the provisions and the procedure
of the old law of England. The substance of these pro-
visions was partly general, that is, such as must exist in
every organized and civilized society, partly special,
such as the particular conditions of the country and
the time needed. The form was due to the lawyers,
whether judges, writers, or practitioners. Now the
form has greatly affected the substance, and has proved
hardly less permanent. When we study the growth of
the Common Law we must think not only of the rules
of inheritance, the doctrine of consideration for a
contract, the conception of felony, the definition of
manor; we must think also of the forms of actions,
of the jury, of the authority of decided cases. All
these were already well settled before the first English
colonist set foot on the American continent. They
had become part of the life and legal consciousness of
the nation.

What would an observer who had studied legal his-
tory in general select as the distinguishing qualities, the
peculiar and characteristic notes of the Common Law ?

First, its firm grasp of the rights of the individual
citizen. He is conceived of, he is dealt with, as a centre
of force, an active atom, whirling about among other
atoms, a person in whom there inhere certain powers
and capacities, which he is entitled to assert and make
effective, not only against other citizens, but against



46 UNIVERSITY AND HISTORICAL ADDRESSES

all other citizens taken together; that is, as against
the state itself and its visible embodiment or organ, the
executive government.

Secondly, its recognition of the state and the execu-
tive as clothed with the authority of the whole com-
munity, as being an effective power, entitled to require
and compel the obedience of the individual wherever
and whenever it does not trespass on the rights which
are legally secured to him. To be effective, law must
have not only physical force behind it, but also the
principle of legitimate authority, the sense in every
citizen that his individual free will has its limits, and
can be exerted only within the sphere allotted to it.
Liberty is, in a civilized community, the child of law.
It is not his own pleasure, but the fact that the com-
munity has recognized a certain sphere of unchecked
action as belonging to him, within which he can do
as he pleases, that secures the citizen in his rights.
Outside that sphere he must not only obey, but
cooperate with the executive. It is his duty to aid
in preventing a crime, in suppressing disorder, in
arresting an offender. A sheriff exercising his functions
can call on all persons present to support him, and
they are bound to support him, a wholesome and, if
you like, a truly democratic doctrine. The law
is the people's law, not only in its origin, but also for
the purpose of its enforcement.

These two principles go together. The one is a
safeguard against Tyranny, i.e. the absolute and capri-



DEVELOPMENT OF THE COMMON LAW 47

cious will of the governing power, the other against
Anarchy, i.e. that unrestrained and unlimited exercise
of the will of each and every citizen which must result
in collision, disorder, and the triumph of mere force.

It may be suggested that these two principles are not
peculiar to the Common Law, because no law could grow
up, and no state could prosper, without both of them.
That is true. But there have been systems of law in
which sometimes the one, sometimes the other, prin-
ciple was imperfectly developed, and (so to speak)
overweighted by the other. The former principle es-
pecially (viz. the recognition of the rights of the citi-
zen) has often been quite too weak to secure due pro-
tectiorf to the individual man. It is the clearness
with which both have been recognized, the fulness with
which both have been developed, in the mediaeval and
post-mediaeval English law that constitute its highest
merit.

From the equal recognition of these two principles
there follows a third characteristic. If principles
apparently antagonistic are to be reconciled, there
must be a precise delimitation of their respective bounds
and limits. The law must be definite and exact.
Now precision, defmiteness, exactitude are features
of the Common Law so conspicuous that the unlearned
laity sometimes think they have been developed to an
inordinate degree. They have made the law not only
very minute, but very technical. But of this anon.

With the love of precision there naturally goes a love



48 UNIVERSITY AND HISTORICAL ADDRESSES

of certainty and fixity. The spirit of the Common Law
is a conservative spirit, which stands upon what exists,
distrusting change, and refusing change until change
has become inevitable. "Stare super antiquas mas:"
"Nolumus leges Anglice mutari" (the words of the
barons at the council of Merton in Henry the Third's
day) : "It is better that the law should be certain than
that the law should be just," these were favourite dicta
among the lawyers of the old school in England.

The respect for what has been settled, and the desire
that what has been settled should be definite hi its
terms, import a deference to precedent. No legal
system, not even the Mussulman law, grounded on
Koranic interpretation and traditions, has ever gone
so far in obedience to what was ruled in the past as the
Common Law does in basing itself on cases judicially
determined and recorded.

Judicial decisions are given, legal precedents are
made, as events bring them. There is no order among
them except the chronological. Thus a law constructed
out of them is necessarily wanting in symmetry. The
Common Law is admittedly unsymmetrical. Some
might call it, as a whole, confused, however exact may
be the propositions that compose it. There are general
principles running through it, but these are often hard
to follow, so numerous are the exceptions. There are
inconsistencies in it, where decisions apparently con-
flicting have been given by different authorities at dif-
ferent times. There are gaps in it, where no decision



DEVELOPMENT OF THE COMMON LAW 49

has happened to cover a particular set of circumstances.
Thus there has been formed a tendency among lawyers
to rate principles, or, let us say, philosophical and logical
views of the law, very low compared with any positive
declaration made by a court. The maxim, "An ounce
of precedent is worth a pound of principle," still ex-
presses the attitude of the profession hi England, and
very possibly here also.

With the love of certainty and definiteness there
goes a respect for the forms of legal proceedings and
for the precise verbal expression given to rules. This
is a quality which belongs to most legal systems in their
earlier stages. It was very highly developed in the
early days of Rome and the early days of Iceland. In
the Common Law it held its ground with great per-
tinacity till quite recently, both in England and here ;
nor am I sure that it is not now strong in some of your
states, possibly stronger than in the England of to-day,
hi which, especially since the sweeping changes made
by the Judicature Act of 1873, the old distinctions
between forms of actions are being forgotten.

You may think that among the features that char-
acterize our Common Law I ought to name the love of
justice and also the fondness for subtle distinctions. I
do not, however, dwell on the latter of these, because it
belongs to all legal systems that reach a certain point of
development, and is even more evident in some others
than in our own. The robust common sense which
is inherent in the Common Law seldom encouraged



50 UNIVERSITY AND HISTORICAL ADDRESSES

fine distinctions to go beyond a certain point. As for
the love of justice, it belongs to mankind generally,
and to all systems of law. Such differences as may be
noted between different peoples consist not in the reality
of the wish to give every man his due, suum cuique
tribuere, but in the self-control which prevents emo-
tional impulses from overriding justice, in the practical
good sense which perceives that to allow the forms of
law to be neglected or unusually harsh treatment to
be inflicted where a cause or a person happens to be
unpopular, is really to injure the community by im-
pairing the respect for law itself and the confidence in
its administration. Englishmen and Americans may
claim that although, like others, they have sometimes
lapsed from the right path, they have, on the whole,
restrained their passions from trampling upon justice,
and upon the regular methods of securing justice, better
than most nations have done.

The foregoing characteristics of our Common Law
are submitted for your consideration, not as being the
only ones which belong to it, for others might be added,
but as being characteristics so broad and salient as to
make it comparatively easy to discuss them and to
endeavour to account for them. Some are found in all
systems that have reached a high level of scientific
development, being indeed qualities without which no
system could be deemed excellent. Only one other
system, the Roman, possesses them in so large a meas-
ure as to deserve comparison.



DEVELOPMENT OF THE COMMON LAW 51

To what are we to ascribe these features distinctive
of the Common Law? The in-dwelling qualities of
the race of men who built it up must have been a prin-
cipal and indeed the primary cause. The mind and
character of a people are indeed more exactly and ade-
quately expressed in and through its law and institutions
than they are through its literature or its art. For
books and paintings are the work of individual men,
many of whom may have been greatly influenced by
foreign ideas or foreign models ; and some of whom,
powerful enough to influence their successors, may not
have been typical representatives of the national genius.
But laws are the work of the nation as a whole, framed
indeed by the ruling class, and shaped in their details
by a professional class, but to a large extent created
by other classes also, because (except in those few cases
where a conqueror imposes his own law on the van-
quished) the rules which govern the relations of the
ordinary citizen must be such as suit and express the
wishes of the ordinary citizen, being in harmony with
his feelings and fitted to meet the needs of his daily
life. They are the offspring of custom, and custom is
the child of the people. Thus not only the constructive
intellect of the educated and professional class but the
half-conscious thought and sentiment of the average
man go to the making and moulding of the law. It is
the outcome of what German philosophers call the
legal mind (Rechtsbewusstsein, or Legal Consciousness)
of a nation.



52 UNIVERSITY AND HISTORICAL ADDRESSES

But law is the product not of one or two generations,
but of many. National character is always insensibly
changing, and changing more rapidly the more ad-
vanced in civilization the nation becomes, the greater
the vicissitudes in its fortunes, and the more constant
or intimate its intercourse with other nations. Hence
institutions become the expression of historical in-
fluences as well as of those original gifts and
tendencies of a race or a people which we observe
when it emerges from prehistoric darkness. Time and
circumstances cooperate in the work. Law is the
result of the events which mould a nation as well as of
the mental and moral qualities with which the nation
started on its career. These two elements are so mixed
and blent in their working that it is hard to describe
them separately. Nevertheless let us try. Let us
begin by a glance at the inborn talents and temper of
the English people, and then see how the course of
history trained their powers and guided their action.

All the Teutons are strong, resolute, even wilful;
and the Low Germans and Northmen were the most
active and forceful branches of the Teutonic stock.
Every man knew his rights and was ready to assert
his rights by sword and axe. Not only so, he was
ready, where society had become advanced enough for
courts to grow up, to assert his rights by legal process
also. Read the Icelandic Sagas, in which records of
killings and of lawsuits are mingled in about equal
proportion, if you wish to realize how keen was the



DEVELOPMENT OF THE COMMON LAW 53

sense each freeman had of his own claims, and how reso-
lute he was in enforcing them. Never was there a
people more fond of legal strife than were the Nor-
wegians and Danes, who spread themselves over East-
ern Britain in the ninth and tenth centuries, or than
their brethren, whom Rolf Ganger led to the conquest
of the northern coast of France in the ninth century.
The Norman peasant is proverbial to-day in France
for his litigiousness.

In this self-assertiveness, however, there is no dis-
regard of duly constituted authority. The primitive
Teuton had his Folk Mot in England, his Thing in Nor-
way and Iceland. He was loyal to his chief or king.
He felt his duty to the community wherein he lived.
He did not always obey the law, but he respected the
law, and felt the need of its enforcement.

It belongs to a strong race to have the power of self-
control. Our forefathers were fierce and passionate,
like other half-civilized peoples, but they had this power,
and they restrained themselves from overriding the
process of law and letting passion work injustice many
a time when men of other races, Greeks, or Slavs, or
Celts, would have yielded to their impulses. So too
they had a latent solidity and steadiness which indis-
posed them to frequent or fitful change. Compared
with their Slavonic neighbours to the east and their
Celtic neighbours to the west, races at least as intel-
lectually quick and intellectually fertile, the Teutons
have always been of a conservative temper. This may



54 UNIVERSITY AND HISTORICAL ADDRESSES

be so we like to think a mark of good sense and
patience, or it may be an attribute of dogged and slowly
moving minds. Anyhow, there it is, and (as already
remarked) it is, for the purposes of law-building, a
merit of the first magnitude.

Further, the mediaeval English mind was of a practi-
cal rather than of a speculative type. It had plenty
of acumen, plenty of logical vigour. But it did not run
to the spinning of theories or the trying of experiments.
This has been characteristic more or less of the English
and the American mind, and, I may add, of the Low
German or Dutch mind, ever since, as compared with
the Scotch mind and with that of our brethren the
High Germans of the European Continent. For those
who were destined to create a great and complex legal
system, it was an excellent quality. Speaking to an
American audience, no one would venture to disparage
ingenuity. The jurist needs it daily. But the jurist
who is making the law needs caution and practical
judgment even more ; and with all your ingenuity, it
has never been your way either to run ahead of actual
needs or to pull up the plant to see whether the roots
are sprouting.

Here, then, we have noted five characteristics of
those to whom we owe the Common Law. They were
strong men and pugnacious men; they respected au-
thority ; they could at need control their impulses ;
they were not given to change ; they were not fertile
in theory or invention. With these qualities they



DEVELOPMENT OF THE COMMON LAW 55

started on the work of making law. How did the
conditions of England from the twelfth to the eigh-
teenth century affect them, and so guide their action
as to bring out in the fulness of tune the legal product
we have inherited, a fruit very different from that
which ripened under the sun of Germany or France ?

The English king in the Middle Ages was strong,
stronger than the kings of France or Castile or Aragon.
He was from the days of Henry II onwards effective
master (except for brief intervals) of the whole realm.
He was able to make his executive authority feared
even if it was sometimes disobeyed. His writ ran
everywhere. His judges travelling through the country
brought the law to the sight of all men.

His aim, and that of his judges, was during the thir-
teenth and fourteenth centuries to build up one law,
instead of the variety of the diverse customs such as
had grown up in Continental Europe. Thus he and
they must needs strive to make the law clear and cer-
tain. Such it became. Here and there, as in Kent and
in some old boroughs, local land customs survived, yet
not enough to mar the unity and definiteness of the
law as a whole.

From good motives as well as bad ones, the king was
tempted to stretch his authority, and make himself
almost a despot. He was so strong over against the
barons that they were obliged from time to time to ally
themselves with the church usually their antagonist
and with the middle class of small landholders and



56 UNIVERSITY AND HISTORICAL ADDRESSES

burghers. This alliance was in the interests of freedom
and of a limitation of royal power. To it we owe
Magna Charta, and the long line of restrictions there-
after imposed on arbitrary government. Now Magna
Charta is the declaration of one generally binding law.
It enounces and consecrates, and is itself, LEX TERRAE,
the law of the whole land, and of all persons therein.
It is for us of the English stock the parent of all in-
struments denning the relation of citizen and sovereign,
be the sovereign a king or the people. It is the an-
cestor of your own federal constitution, as well as of the
"Bill of Rights" provisions of all State constitutions.
Just as the barons and the people were obliged to
base themselves upon the solemnly made engagements
of the Crown as the evidence of their immunities, so
the Crown, acting through its judges, not being strong
enough to make its own policy or view of what was
right prevail as a mere exercise of the sovereign's own
will, and desiring to have some positive authority to
set against the texts quoted from imperial or papal
law by the civilians or the canonists, was forced to rely
upon acts previously done, and decisions previously
delivered, and to found the law upon them. Thus both
parties were led to appeal to and lay stress upon prece-
dents. The rights which the law enforced were, as
usually happens in early times, much involved with
the procedure for enforcing them; and the desire to
secure uniformity of procedure in the king's courts led
to the constant citation of judgments delivered on



DEVELOPMENT OF THE COMMON LAW 57

previous occasions. Under these conditions, and
favoured by them, there grew up that habit of record-
ing and following decided cases which is so eminently
and indeed uniquely characteristic of the Common Law.

The balance of forces in English mediaeval society
appeared most clearly in the relations of lord and vassal.
Each had unquestionable rights, and these rights were
apt to come into conflict. The adjustment of conflict-



Online LibraryJames Bryce BryceUniversity and historical addresses, delivered during a residence in the United States as ambassador of Great Britain → online text (page 3 of 24)