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The Green Bag
pleasure of rulers, be they aristocratic or democratic, nor be drawn aside to the left by more insidious temptation of finding popular favor in opposition. If
rected to particular defects as they are discovered or come to be more urgently
Our Lady's servants are not of that spirit, all the learning of all their books
felt. Vithout doubt this is a serviceable instrument when rightly handled, but
will not save them from disgrace or her realm from ruin. If they are, we shall never see the enemy whom she and they will be afraid to speak with in the gate.
in unskillful hands it can be a remedy
V. RESCUE AND RANSOM Having now seen something of the troubles that beset Our Lady of the Common Law and her servants at sundry stages of their pilgrimage, we may well be curious about the remedies; and here we must deal tenderly with lay common sense, which may be apt to think that we are making a great fuss and mystery about nothing, to magnify the impor tance of our Faculty. The plain man is ready enough to
and at first sight the most useful is specific amendment by legislation, di
worse than the disease.
Until our time
it was commonly considered as belong
ing to the technical part of the law and left to the leaders of the profession. It is much older than we commonly recog
nize. Even a tinker of genius cannot get beyond tinkering, and tinkers are not
men of genius as a rule. Best of all ways of reform is that the courts should never be wanting in the knowledge of their own inherent powers and the courage to
use them. This achievement is of a felicity not reducible to classification or rule.
believe that the common law has had
The modern condition of legislative discussion has brought in the danger of
outworn and cumbrous tools to work with. What he does not so readily see
amateur meddling and the not very desirable antidote of purposely framing
is why we should not scrap our old plant
technical amendments in the form least intelligible and most repulsive to the lay
like other modern men of business and say no more about it; or for that matter, why it was not done centuries ago. “So
simple a thing," he will say, “for you lawyers to devise new and better forms; you have not even the cost of materials to reckon with; nothing but pen and ink —— yes, and brains, I know." “My dear man," answers Our Lady of the Common Law, “I have to tell you
mind.
Much has been said in the re
proach of lawyers, but there is more and worse to be said, if we choose to say it, against the man of business who thinks he knows better.
The latest way of amendment we have to note is the deliberate reconstruction
of jurisdiction and procedure on a huge scale; a heroic method adopted in many
that it was just you lay people, as often
countries outside the common law, but
as not, who hindered my servants from improving things in the simplest way when they were eager to do it, and drove them into making their improve ments by crooked devices, to the great
oftener than not for political or national,
disparagement of my honor and worship and useless charges and vexation of my
language, contains a great deal of mixed and composite material, but has an individual structure and character which
suitors.” A remedial method the most obvious
rather than for purely legal reasons.
VI. ALLIANCE AND CONQUEST The common law, like the
English
are all its own; and, also like the Eng
