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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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ing claims gave constant occupation to the lawyers and
the judges, and, while forming habits of exact thought
and precise statement, it created a great mass of techni-
cal learning. The older English land law was indeed
as intricate and elaborately artificial a body of rules
as the world has ever seen. Though modified in some
important points, it lasted with us until less than a cen-
tury ago, when it began to be so cut about by amending
statutes as to lose its ancient logical cohesion. For
some reason or in some way which is not clear to most
of us, many of its technical doctrines were held not
applicable to land in North America, so you have es-
caped most of the complications it handed down to us.
But the process which produced it left a deep impress
on the law generally. Some of the faults, some also
of the merits, of the Anglo-American way of handling
legal questions are due to the ancient land rights and
the procedure followed in trying the issues that arose
under them.

English freedom, in the particular legal form it took,
sprang out of feudal conditions. In reality, it was



58 UNIVERSITY AND HISTORICAL ADDRESSES

older than feudality, and had lost some of its simple
Teutonic breadth when overgrown by feudal notions.
But the structure of parliament and the right of parlia-
ment alone to impose taxes sprang out of the relation
of the king (as feudal lord) to his tenants, which is in
a certain sense a private relation as well as a political
one. It is hardly too much to say that what we call
the public or constitutional law of England is a part
of, as it has certainly grown out of, the private law.
Some of our fundamental constitutional principles
have been established by decisions given in private
suits. And although you in America can draw a
sharper line between public and private law than can
be drawn in England, because you have a written or
rigid constitution, and we have, strictly speaking, no
constitution at all, still the old character of the Common
Law remains plainly visible in the fact that many of
the most important questions that have arisen on the
construction of your federal and state constitutions
have arisen in suits between private parties, where
the primary issue before the court was one in which
the rights of those parties had to be determined.

I have referred to exactitude of thought and expres-
sion as one of the excellencies which we justly admire
in the sages of the Common Law and particularly in
the deliverances of the judges. That exactitude has
become a feature of all our legal thinking and legal
writing, and has in particular made us separate more
clearly than the lawyers of most other nations do,



DEVELOPMENT OF THE COMMON LAW 59

considerations strictly legal from those which belong
to the sphere of morality or sentiment. We owe this in
no small measure to the old system of pleading which,
slowly matured and refined to an excessive point
of technicality, gave to the intellects of many genera-
tions of lawyers a very sharp edge. That system had
the great merit of impressing upon them the need for
distinguishing issues of law from issues of fact. The
first lesson a student learns is to consider in any given
case whether he ought to plead or to demur. It is a
lesson of value to all of us in our daily life. Half the
confusions of thought in the world, certainly not ex-
cepting the world of political discussion, arise because
men have not learnt to ask themselves whether the
issue is one of fact or of principle. "Do I deny the
facts or do I dispute the inference ? Ought I to plead
or to demur?"

It is a remarkable fact that although the Common
Law came into existence at a time when personal slav-
ery was not extinct in England, and had reached an
advanced state of development before praedial slavery
or villenage had died out, the existence of slavery in
the North American colonies had nothing to do with
either English institution, but arose quite independently
in colonial days. Though villenage existed at Common
Law, and is said to have lasted into the seventeenth
century, personal slavery does not, I think, stand re-
corded and recognized in any English Common Law book
of authority or in any decided case, and I suppose that



60 UNIVERSITY AND HISTORICAL ADDRESSES

the incidents of negro slavery in the colonies, doubtless
practically assumed before anyone thought of specific
legal sanction, were either parts of the general Common
Law of personal property or else rested upon statutes
of those colonies in which slavery existed. It may be
observed in passing that although one might think
that the recognition of the rights of man as man (i.e.
as a human being) would be clearest and fullest in a
country where there were no slaves, this may not in
fact have been the case. Where some men are free
and others are slaves, the status of freedom may have
been conceived more sharply as a positive status, and
the rights belonging to the individual as a freeman
may have stood out more strongly, because he is le-
gally exempt from treatment to which the slave is
liable. As a freeman, he is prima facie the equal, as a
holder of private civil rights, of all other free men, even
though the latter may belong to a specially privileged
caste. The history of the Roman law of persons lends
colour to this view.

On no feature of the Common Law did your ancestors
lay more stress than on the jury, and the right of every
citizen to be tried by his peers. This right had been
a bulwark of English freedom, and was deemed in the
eighteenth century to be essential thereto. Yet it
deserves to be noticed that the jury was an institution
which, in the form familiar to us, arose almost by acci-
dent. The legal genius, or instinct, of the mediaeval
English may, however, be credited with the use they



DEVELOPMENT OF THE COMMON LAW 61

made of this accident. Darwin has shown how a
variation from a type which in its origin is accidental,
that is to say, due to some cause operative in an in-
dividual organism which is beyond our power of en-
quiry (do we quite know what we mean when
we talk of chance?), may become the source of a new
type possessing advantages which enable it to survive
and prevail and reach a higher level of efficiency than
the original type possessed. So it may be not too
fanciful to suggest that where a political or legal germ
happens to fall in a fertile soil the virtue of the soil
enables it to spring up and become the parent of a
flourishing progeny. Our ancestors moulded the jury
into an instrument serviceable not only for discovering
the truth but for securing freedom and justice, freedom
because it was practically independent of royal power,
justice because, although it was sometimes intimi-
dated, and occasionally even corrupted, it was usually
less liable to be tampered with by those malign influences
which might poison the mind or pervert the action of a
judge in days when public opinion was ill-informed or
weak. We, in England, have no longer that confidence
in the wisdom of a jury in certain classes of civil ac-
tions which we once had, and the tendency of recent
years has been to narrow the sphere of its employment.
But the institution of the jury has had some notably
beneficent results. Along with those rules of pleading
to which I have already referred, it helped to form in
us a keener sense of the need for separating issues of



62 UNIVERSITY AND HISTORICAL ADDRESSES

law from issues of fact than exists anywhere outside
England and America, and it has trained us how to
draw this distinction in every case we have to advise
on or to argue. It has tended to keep judicial deliver-
ances of the law within due limits of brevity, because
when a judge finds himself tempted to wander off from
a determination of legal points into the general
merits of the case, he is reminded that the latter are
for the jury, and that his natural human tendency to do
what he thinks substantial justice must be restrained
by the sense that his business is to declare the law and
be content with advising the jury on the facts. It
formed the practice of using, at a criminal trial, evidence
almost exclusively oral, and thus incidentally it pre-
vented both those secret examinations of the accused
person and that recourse to torture which were com-
mon in Continental Europe. It confirmed the ancient
usage of requiring judicial proceedings to be conducted
in public, and thus kept subject to the watchful eye of
popular opinion. And it mitigated that harshness of
the penal law which belongs to all comparatively rude
societies and was not removed from the English statute
book till within the memory of persons still living.
When men were liable to be hanged for small thefts,
English juries refused to convict for such offences, and
their refusal hastened the march of legislative reform.
The mention of penal matters suggests a word as to
the extreme technicality of the older Common Law.
Frequently as that technicality frustrated the doing of



DEVELOPMENT OF THE COMMON LAW 63

substantial justice in civil cases, it had its advantages
in criminal proceedings. Often a prisoner who did not
deserve a severe sentence and no doubt sometimes
also a prisoner who did escaped on some technical
ground. The Common Law, which had (as already
remarked) the great merit of forbidding the use of
torture, abominably frequent in Continental Europe
and practised even in the free cantons of Switzerland
till near the end of the eighteenth century, had also
the merit of forming in the legal profession the feeling
that an accused person ought to have a fair run for
life or freedom. A sportsmanlike instinct grew up,
like that which gives the hunted deer "law" or a
fair start, or that which forbids certain tricks by
which a game at cricket might be won. A judge who
bullied a prisoner was condemned by professional opin-
ion. A prosecuting counsel who overstated his case or
betrayed a personal eagerness to convict the prisoner,
incurred the displeasure of his brethren and was sure
to hear of it afterwards. I have often been struck in
our criminal courts by the self-restraint which experi-
enced counsel impose on themselves when conducting
a case, as well as by the care which the judge takes to
let the prisoner have the benefit of every circumstance
in his favour. Here one feels the tradition of the Com-
mon Law, which insisted on protecting the individual
against the state. How different things are in some
parts of the European continent is known to you all.
It is partly because this good tradition has been so well



64 UNIVERSITY AND HISTORICAL ADDRESSES

preserved that we have in England found that con-
victed prisoners need comparatively few opportunities
for raising points of law after the trial. The trial it-
self almost always secures for them whatever justice
requires, though of course there is a power of raising
for subsequent argument points reserved. 1

The mediaeval Common Law has been charged with
one serious defect, that of lacking elasticity and the
power of expansion. It halted at a certain point. It
refused to deal, or I should perhaps say, its machinery
proved incapable of dealing, with certain sets of cases,
and left them to be taken up by the crown acting
through the Lord Chancellor. I cannot stop to
enquire how far this was due to an excess of con-
servatism in our forefathers, how far to the circum-
stances of the time, which, while circumscribing the
action of the king through one set of machinery, left
him free to act through another. Anyhow, the result
was that the huge system which we call Equity grew
up side by side with the Common Law, remained dis-
tinct from it in England until the Judicature Act of
1873, and I believe remains, in some states and to some
extent, still distinct from it in the United States. In
a broad sense, however, although, speaking technically,
we distinguish Common Law from Equity, we may in-
clude Equity within the term Common Law, when we

1 In the present session of Parliament (1907) an Act has been
passed providing for an appeal, under certain circumstances, in crim-
inal cases.



DEVELOPMENT OF THE COMMON LAW 65

use this latter term to distinguish the law of England
and America from the Roman law of the European
continent, or of Louisiana and Spanish America.
And it must not be forgotten that not only had
Equity become a thoroughly positive system and a
technical system by the time when the North
American colonies were founded, but also that it
had been largely influenced by the same historical
environment and had been moulded by the same
national tendencies as had governed the growth
of the law administered in the Common Law courts.
How much of its own precision and certainty the older
system had given to the younger system may be seen
by whoever will compare English Equity with the civil
law of most European countries in the seventeenth
century.

I have kept to the last the most striking of all the
historical conditions which determined the character
of Anglo-American law. England (or rather Britain)
was an island. The influences which governed the
development of law in the European mainland reached
her in an attenuated form. The English people had
the chance of making a new start and of creating a
system of law for themselves, instead of merely adopting
or adapting the Roman jurisprudence, as did, at va-
rious times and in diverse ways, the French, the Span-
iards, the Germans, and (ultimately and indirectly)
nearly all modern peoples except those of English
stock. We must not indeed exaggerate the originality



66 UNIVERSITY AND HISTORICAL ADDRESSES

of our law. It is not as original as that of Iceland would
probably have been, had Iceland gone on developing
the legal customs she had formed by the middle of the
thirteenth century. It is not original in the sense of
owing little or nothing to foreign sources, for a great
deal of law flowed from Roman fountains into the
English stream. When (according to Gervase of
Tilbury) the Lombard Vacarius taught the Roman
law in the reign of King Stephen at Oxford
this is among the very first traces we have of that
famous university we cannot suppose that his hear-
ers were confined to those who wished to practise in
the ecclesiastical courts. In the next century we find
Bracton, one of our earliest legal writers, copying freely
from the Roman law books, though he frequently also
contradicts them when English usage differed. In the
fourteenth and fifteenth centuries the ecclesiastical
chancellors who built up the system of Equity were
much influenced by Roman legal doctrines, drawn
largely through canonist channels. Still the fact
remains that the law of England was a new creation,
not an adaptation of the law of the Empire. It has a
character and a quality which are all its own ; and its
free spirit and tendencies have always stood out in
marked contrast to the despotic spirit and tendencies
which France, Spain, and Germany inherited from the
imperial jurisprudence. To that jurisprudence it was,
during the Middle Ages and the centuries that followed,
as much superior in respect for freedom and in what



DEVELOPMENT OF THE COMMON LAW 67

may be called a popular flavour as it was inferior in
respect of the philosophic breadth and elegance of the
ancient sources on which that imperial jurisprudence
was founded. The use of the jury, the far larger
place assigned to oral evidence, the sharper separation
of issues of law from issues of fact, are among the
most salient points in which its distinctive and indi-
vidual quality appears.

I had intended to have given you a brief sketch of
the earlier history of the ancient Roman law for the
sake of showing how the characteristics of that great
rival system sprang from features in the national char-
acter of the Romans in their Republican days, not un-
like those which marked our ancestors. The Romans
too had a genius for law. Less imaginative, less artistic,
less acute in speculation, altogether less intellectually
versatile and alert than were the Greeks, they had a
greater capacity for building up and bringing to an al-
most finished and certainly unsurpassed perfection a
body of legal principles and rules. They possessed this
capacity in respect of gifts like those of our ancestors.
They realized clearly the rights of the individual as
against the state. They were conservative. They had
the power of self-control. They were filled with practi-
cal good sense. But this great subject is too great
to be dealt with at the end of an address, and I must
be content with recommending it to the attention of
those who are interested in these studies as throwing
much light upon the general tendencies which have



68 UNIVERSITY AND HISTORICAL ADDRESSES

governed the growth of law. The best illustrations
of English legal history are to be found in Roman legal
history.

I have so far been speaking of the Common Law as
a product of the English intellect under certain pecul-
iar historical conditions. But if it was a result, it was
also a cause. It reacted powerfully upon the people
that made it. Just as the habit of physical or mental
exercise strengthens the body or the mind where na-
tive energy has made exercise enjoyable, so the Common
Law, once created, began to develop further and give
more definite form to those very qualities of the na-
tion whereto its own features were due. Under its in-
fluence the national mind became more and more per-
meated by the spirit of legality. It grew accustomed
to resist arbitrary power, but as it did this in defence
of prescriptive right, it did not lapse into revolutionary
ways. Thus there was formed the idea of a govern-
ment of limited powers, and the habit, when anyone
claimed obedience, of requiring him to show his title
to demand it. If it be asked why should not such a
conception of the legal character of all authority be-
long to, and arise in, every duly matured system of
law, the answer is that the case of England stood alone
in this respect, that the law came early to be recognized
as being something more than an expression of the will
of the monarch. It sprang partly out of the old cus-
toms, partly (and more as time went on) from an as-
sembly which was national, although not yet popular.



DEVELOPMENT OF THE COMMON LAW 69

It did not descend, as in Continental Europe, from an
ancient and foreign wisdom or authority. It was
English. It came not from above, but from all around.
In England, moreover, there were among the men
who knew and practised the law not a few persons of
independent social standing. They were largely the
lesser landholders and the younger sons or nephews
of some of the larger landholders, and so they formed
a link between the nobles and the middle classes. Un-
like the lawyers of France, those of England did not
generally depend on the Crown, and they were ready on
occasion to oppose it. Thus, although the people at
large knew little of the details of the law, the spirit of
independent legality was diffused through the nation,
and legality was not the docile servant of power as it
became in countries where both physical force and the
function of making or declaring the law were in the
hands of the executive ruler.

How great a part the conception of the legal rights
of the subject or citizen against the Crown or the state
power played in English and American history, is known
to you all, nor need I dwell on the capital impor-
tance for the whole political system of the United
States of that doctrine of limited powers which has
been so admirably worked out in your constitutions,
nor of that respect for a defined legal right which sup-
ports their provisions. The life of every nation rests
mainly on what may be called its fixed ideas, those
ideas which have become axioms in the mind of every



70 UNIVERSITY AND HISTORICAL ADDRESSES

citizen. They are stronger than fundamental laws,
because it is they that give to fundamental laws their
strength. They are, as the poet says, " the hidden bases
of the hills." Now it was mainly by the Common Law
that these fixed and fundamental ideas were moulded,
whereon the constitutional freedom of America, as of
England, rests.

One hundred and thirty-one years have now passed
since the majestic current of the Common Law became
divided into two streams which have ever since flowed
in distinct channels. Water is naturally affected by
the rock over or the soil through which it flows, but
these two streams have hitherto preserved almost the
same tint and almost the same flavour. Many statutes
have been enacted in England since 1776, and many
more enacted here, but the character of the Common
Law remains essentially the same, and it forms the
same mental habits in those who study and practise it.
An American counsel in an English court, or an Eng-
lish counsel in an American court, feels himself in a
familiar atmosphere, and understands what is going
on, and why it is going on, because he is to the manner
born. You read and quote our law reports, though
they are nowadays too largely filled by decisions on
recent statutes; we read and quote yours, though
embarrassed by the enormous quantity of the food (not
all of it equally nutritious) which you annually present
to our appetite. In nothing, perhaps, does the sub-
stantial identity of the two branches of the old stock



DEVELOPMENT OF THE COMMON LAW 71

appear so much as in the doctrine and practice of the
law, for the fact that many new racial elements have
gone to the making of the American people causes in
this sphere very little difference. It is a bond of union
and of sympathy whose value can hardly be overrated.
An English visitor who has himself been trained to the
law can find few keener pleasures than that which my
friends, Lord Justice Kennedy, Sir Kenelm Digby, Sir
Frederick Pollock (together with your other English
legal visitors), and I enjoy in being here to-day among
so many eminent members of our own profession and in
seeing how influential and how respected a place that
profession holds, and has always held, in the United
States. It is a bond of sympathy not least because it
is a source of common pride. There is nothing of
which you and we may be more justly proud than that
our common forefathers reared this majestic fabric
which has given shelter to so many generations of men
and from which there have gone forth principles of
liberty by which the whole world has profited.

The law of a nation is not only the expression of its
character, but a main factor in its greatness. What
the bony skeleton is to the body, what her steel ribs
are to a ship, that to a State is its Law, holding all
the parts fitly joined together so that each may retain
its proper place and- discharge its proper functions.
The Common Law has done this for you and for us
in such wise as to have helped to form the mind and
habits as well of the individual citizens as of the



72 UNIVERSITY AND HISTORICAL ADDRESSES

whole nation. Parts of it these private citizens
cannot understand; and when that is so they had
better not try, but be content to seek your professional
advice. But it is all their own. They can remould
it if they will. Where a system of law has been made
by the people and for the people, where it conforms to
their sentiments and breathes their spirit, it deserves
and receives the confidence of the people. So may it
ever be both in America and in England.



THE CONDITIONS AND METHODS OF
LEGISLATION

ADDRESS DELIVERED TO THE NEW YORK STATE BAR ASSOCIATION,
JANUARY, 1908.



THE CONDITIONS AND METHODS OF
LEGISLATION

ADDRESS DELIVERED TO THE NEW YORK STATE BAR ASSOCIATION,
JANUARY, 1908.

THE subject on which I have to address you is far re-
moved from any of those thoughts with which the polit-
ical and financial excitement of the moment fills the
thoughts of the legal practitioner either in the rural
parts of the State, or here in New York City, where
the financial barometer rises and falls so quickly, and
where the lawyer is often summoned to administer
spiritual consolation to some of his clients in the part
of the city where that barometer can best be watched.
But it may have some interest for an audience which
is not wholly absorbed in its professional practice, but
has also to watch and study the machinery of legisla-
tion as it is at work from year to year.

The immense increase in the volume of legislation
during the last half century is one of the salient fea-
tures of our time. Mr. Choate has told you that more



Online LibraryJames Bryce BryceUniversity and historical addresses, delivered during a residence in the United States as ambassador of Great Britain → online text (page 4 of 24)