22
THE GREEN BAG
in constitutional doctrines that enable a fortified monopoly to shake its fist in the face of a people and defy effective investi gation or regulation. Is this common law respect for the indi vidual inherent and fundamental? Does it represent a sixteenth and seventeenth cen tury color, then acquired, or is it deeperseated and intrinsic? In other words, what is the spirit of the common law? Three characteristic doctrines set off the common law system from all others, namely, (i) the supremacy of law, (2) case law and pre cedent, and (3) contentious procedure. The supremacy of law — the doctrine that all questions may be tried in the course of orderly litigation between individuals, and that no person and no act is beyond the law — is the Germanic principle that the state is bound to act by law. It is to be seen in Bracton's saying that the king is "under God and the Law," and is as old as our legal system. Our doctrine of prece dents is almost as old. The first precedents were writs, and Glanvill's book is a collec tion of them. Bracton relied on the judg ment rolls, and his Note Book is something like a report. Moreover, we find the doc trine of the authority of adjudications in like cases stated at the beginning of the fourteenth century. Contentious procedure is Germanic, and characterizes English law from before the Conquest. But these three doctrines resolve themselves to a funda mental proposition that law exists for indi viduals, and hence is to deal with every question as a contest between individuals, is to decide it on its individual facts, not arbitrarily, but as like cases have been ad judged for others, and is to allow the parties to fight out the contest for themselves, and as much as possible in their own way. The contest between the people and the law reflected in our American constitutional law, has a parallel in the prior contest be tween the king and the law. At common law the king was parens patriae. He was charged with the duty of protecting the pub
lic interests, and he wielded something very like our modern police power. This power was limited on every side by the maxims of the common law, and the bounds set by the lex terror. A few examples may be noted. King Henry VI granted to the company of dyers in London the power to search for cloth dyed with poisonous dyes, and to seize and confiscate it if found. This was held "against the law of the land" because there could be no forfeiture by virtue of letters patent.1 Henry IV granted "the measur ing of woolen cloth and canvas that should be brought to London by any stranger or denizen," taking a penny of the buyer and another of the seller for each piece measured. It was adjudged that "the said letters patent were in onerationeni, oppressionem, et depaupcrationem subditonim domini regis, etc., et non in cmendationem cjusdem populi; and therefore the said letters patents were voyd." 2 Thus, the common law, in the in terest of the individual, is struggling with the prerogative of the people, represented by the police power, as it struggled with a like prerogative of the crown from Henry VII to James II. But times have changed. The individual is secure and new interests must be guarded. The common law ren ders no service to-day by standing fullarmored before individuals, natural or arti ficial, that need no defense but sally from beneath its aegis to injure society. How far does our legal system contain the power to meet these new conditions? We must admit that it has shown a marvel ous power of regeneration in the past. From Richard II to Elizabeth, the rise of the Court of Chancery preserved it from medieval dry rot. Under James I and Charles I, the indefatigable zeal and uncom promising dogmatism of Coke saved it from subversion by royal authority. At the open ing of the eighteenth century the outlook was dark. The modern business world was 1 2 Inst. 46-47. 2 2 Inst. 62. See also Davenant v. Hurdes, 2 Inst. 47; Darcy v. Allen, Mo. 671, n Rep. 84.
