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now that the light of history shines in the heavens and has dispelled the mists of prejudice and passion, let us admit that in both cases it was the devotion of lawyers to constitutional liberty which laid broad and deep the foundations of the two governments.
We must not forget that the Common Law at the end of the Eighteenth Century was as yet undeveloped in many of its modern applications. Save for the luminous and comprehensive Treatise of William Blackstone, there was hardly a law book which could be described as attractive reading. Coke on Littleton I have always regarded as a repulsive authority, and the Eighteenth Century Digests were presumably so called because their contents were quite indigestible. Coke, indeed, claimed
, that the Common Law was “the perfection of reason”; but a system which punished witchcraft by fearful penalties; which ascertained whether a man was mute by malice or by visitation of God, by piling weights upon his body heavier than he could bear, to see whether he would cry out; and which chiefly concerned itself with the incidents of feudal tenures and the niceties of written pleadings, may well have seemed unsuited to the needs of the vigorous and progressive Republic of America. All honor, then, to the lawyers of this nation who realized that there was precious gold hidden beneath this dross and who extracted from the ancient Common Law so many of those modern application's which have made it the basis of the jurisprudence of the Englishspeaking world.
It is instructive and interesting to observe how far during the last 150 years lawyers in the two countries, building independently on the same foundation of the Common Law have erected a corresponding structure. The world in which the Common Law had its roots knew nothing of modern methods of transportation or communication, and it remained to be seen whether the ramifications of banking and insurance and every form of business could be served by new applications of ancient principles. It is a wonderful proof of the truly scientific character of law that alike in the old world and in the new, judges and lawyers trained in the same school should have found the same solution for the same difficulties. The works of Joseph Storey who, knowing the bearings of every case, navigated from headland to headland, and the judgments of John Marshall, who was like a mariner with a compass by which he could find his way across uncharted seas so as to proceed straight across to the desired and destined haven, may almost be said to be “familiar as household words” to a trained English lawyer. It is one of my earliest recollections of the practice of the law how the English Court of Appeal was convinced by reference to a chapter in Mr. Justice Holmes' profound and masterly analysis of the Common Law, that a previous decision of the English High Court was wrong, and that the true principle was to be found expounded in his luminous treatise. And, just before I left England, I was arguing before the House of Lords the question whether, what we call “ bonus shares," and you call “stock dividends,” were liable to income tax, and I had the satisfaction both of winning my case and of establishing the true principle of law largely by means of citing a recent judgment of Mr. Justice Pitney in the Supreme Court of the United States.
Equally remarkable is the development in the two countries, side by side, of that branch of the law which deals with personal rights.' An interesting book might be written by an English lawyer and an American lawyer jointly, comparing and contrasting provisions for securing the rights of married women, for protecting children, for enabling the insolvent debtor who has done his best but is overwhelmed by misfortune, to have another chance, for admitting parties in civil and criminal cases as witnesses in their own behalf, and for removing disabilities of sex. We have at length followed the American lead in throwing open the profession of the law to women.
I think it will be found, if a comparison were made, that the main differences between the private law of England and America are more in the region of practice and procedure than in the realm of substantive rights. Nearly 50 years ago we swept away the distinction between law and equity, and it may fairly be said that the existing system in England is one which does not deprive a man of his rights because he has come to the wrong court. The old system of pleading has been abolished, with the result that more simplicity has been introduced into the preliminaries of trial, though with a sacrifice of precision which many of the English lawyers realize to be a misfortune. So far as England is concerned, the challenge of a juryman is practically unknown, and we have not found it necessary to inquire into the antecedent knowledge of the jury, but have thought it sufficient to rely upon their sense of responsibility as citizens. The use of juries, however, has much decreased of late, and though for my part I think twelve jurymen much the best tribunal to give a competent decision on insoluble problems, such as the amount of damages which should be given for a broken leg, or rendered to a lady who has lost her husband in a railway accident, and married again, there is an undoubted tendency in the old country to dispense with their assistance in cases which formerly would have required it. But I think the main claim which an English lawyer would seek to make in favor of his own procedure is on the score of speedy trial. Justice delayed is justice denied, and though our circuit system sometimes leaves an accused person in custody for as much as two or three months before his case is heard, the trial itself is carried through without delays, the opportunities for appeal are circumscribed, we have abolished much of the technicality which formerly offered a way to escape for the guilty, and the carrying out of the sentence promptly follows conviction. In civil cases great efforts have been made to avoid delay, and it is possible in our commercial courts to have a case tried within a few weeks or at most a few months of the issue of the writ.
But these differences are all differences of detail in which each country may have something to teach and something to learn. The great fact is, that English law and American law, derived from the same origin, are pursuing the same goal, and in our intercourse with one another we are realizing more completely the solidarity of the friendship of the English-speaking world.
What are the unseen but unshakable foundations upon which Anglo-American friendship rests? It is a friendship the peaceful continuance of which over a full century of time we were preparing to celebrate in that year of destiny 1914. It is friendship which since that date has been cemented and consecrated in the valley of the shadow of death; by heroic suffering and triumphant effort in a common cause. In Flanders and in France, British and American dust lies mingled. Both nations share, in the immortal words of Abraham Lincoln, in solemn pride that is theirs to have laid so costly a sacrifice upon the altar of freedom. These young lives, so boldly offered, and so bravely surrendered, are at once a token and a pledge. They are a token of that unity of spirit pervading alike this young nation and the old land from whose loins she sprang, which no width of ocean could divide and no memory of ancient feud could destroy. And they are a pledge for the future of Anglo-American friendship and thereby for the peace of the world. Love of liberty, a joint literature, the same language, and the common law—these are the four evangelists of the gospel of Anglo-American friendship; these are the Big Four who can best guarantee that hands will be stretched across the sea and grasped in a common resolve to save those for whom this stupendous sacrifice was made from a renewal of strife. And among these influences which for the reconciliation of mankind and the saving of humanity from the unspeakable horrors of armed conflict, law, in its highest and broadest sense, is one of the chief. It is the instrument of justice; it is the handmaid of order; it is the guarantor of individual right; it is the arbiter of dispute and the reconciler of difference; it is the cement which binds together the fabric of human institution; it is the standard which society erects to guide those that are tempted, to recall to the true path those who are led astray, and to symbolize the fact that each one of us cannot live for himself but must serve and work for the common good. Let us then boldly proclaim our pride in this great profession; our resolve to bring no dishonor upon its escutcheon and our belief in the value of the contribution which it may make to the future advancement of the world.
WITHOUT A FRIEND.
CHARLES S. THOMAS,
The student of American constitutional history will note that many of the objections urged against the ratification of the federal compact, although successfully challenged by its advocates, have been justified by the experience of time. Whatever the causes of this evolution, and there are many, it is evident that although the benefits to be derived from the adoption of the Constitution were correctly forecasted in 1787 by its friends, the development of federal, at the expense of state, authority was foretold by its opponents with equal accuracy.
The developing needs of a stronger and more efficient national authority, the inevitable tendency of the greater to encroach upon the domains of the weaker jurisdictions; the incredible growth of commerce and industry, of systems of transportation and communication; the unavoidable conflicts between sovereignties however delimited, exercising authority over the same people within the same territory; judicial construction; the necessity of federal expansion to the general welfare, and the verdict of the Civil War, have all contributed to the general result. The opposition encountered by the progress of innovation has become less insistent as it has become more obviously unavailing. Indeed, it would seem that except the legal profession and the occasional interests of classes and sections, opposition has largely given way to acquiescence, and acquiescence to active encouragement of a more intensive centralization.
Loyalty to the states, and a jealous insistence upon their respective sovereignties was a political characteristic of the American people when the union was formed. It was manifest during the greater part of our national life. But it survives largely as an abstract principle, finding formal expression in party platforms and occasional advocacy in Congress.