The spirit of the common law

Front matter

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€ SPIRIT OF THE COMMON l^

Foreword

^HE Dartmouth Alumni Lectureships

have been established upon the theory that the influence of the intellectual life of the College ought to be available, in some degree at least, to others than those who are in residence as students, — as for example, to graduates who are solicitous for some contact with the College which will help to maintain the breadth of their scholarship ; or to friends who are interested in the kinds of intellectual interest for which the College wishes to stand.

The suggestion of the particular form which the project of these lectureships has taken was made in my inaugural address in 1916 when statement was made as follows :

"I am very sure that the contribution of the College to its graduates ought to be continued in some more tangible way than exists at present. The tendency of college men to seek careers outside the professions, the tendencies of the professions themselves to become so highly specialized as to necessitate the complete engrossment of thought of the men who follow them, and the ever increasing demand of the age on all, requiring constantly greater intensity of effort and

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more exclusive utilization of time in men who wish to do their respective shares of the world's work, impose a duty upon the college which formerly belonged to it in no such degree, if at all. Contacts with what we broadly classify as^ the arts and sciences are less and less possible for men of affairs. In many a graduate the interest in or enthusiasm for these which the college arouses is, therefore, altogether likely to languish, or even die, for lack of sustenance. If the College, then, has conviction that its influence is worth seeking at the expense of four vital years in the formative period of life, is it not logically compelled to search for some method of giving access to this influence to its graduates in their subsequent years! The growing practice of retiring men from active work at ages from sixty-five to seventy, and the not infrequent tragedy of the man who has no resources for interesting himself outside the routine of which he has been relieved, make it seem that the College has no less an opportunity to be of service to its men in their old age than in their youth, if only it can establish the procedure by which it can periodically throughout their lives give them opportunity to replenish their intellectual reserves. It is possible that something in the way of courses of lectures by certain recognized leaders of the world's thought, made available

FOREWORD IX

for alumni and friends of the College during a brief period immediately following the Commencement season, would be a step in this direction. Or it may be that some other device would more completely realize the possibilities. It at least seems clear that the formal educational contacts between the College and its graduates should not stop at the end of four years, never in any form to be renewed."

The carrying out of the plan, with such purpose in view, was made possible by the hearty endorsement of Mr. Henry Lynn Moore of the class of 1877 — and a Trustee of Dartmouth College— and by his promise of generous financial assistance to establish in this form a memorial, to keep alive the memory of his beloved son, Guernsey Center Moore, of the class of 1904, who died early in his college course.

The completion of the plans for the lectureships was originally set for an earlier time, but the World War interrupted. It was, therefore, not until the summer of 1921 that the experiment was finally undertaken with Professor Roscoe Pound, the brilliant and scholarly Dean of Harvard Law School, and Mr. Ralph Adams Cram, noted architect and original thinker, as lecturers upon this Foundation.

It has, of course, been recognized from the beginning that the extension of the influence of

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these lectures would be largely increased by publication, which should make the mental stimulation in them available to wider groups than, under any circumstances, could be expected to be in attendance as auditors during any course. It is, therefore, with much satisfaction that there is presented herewith the lectures of Dean Pound for the consideration, on the one hand, of the considerable group who heard him and have since been desirous of the lectures in printed form as well as, on the other hand, that far greater constituency to whom attendance was not possible to hear the spoken word, but whose interest in the speaker and the subject has been keen. To all of these this book on, "The Spirit of the Common Law" from the hands of Dean Pound will be of major interest.

Ernest Martin Hopkins

Preface

tN 19 14 I gave a course at the Lowell Institute -*■ upon this same subject, summaries of which, based upon reports of the lectures in the Boston Transcript, were published in the Green Bag (vol. 26, p. 166). Also the first lecture of that course was published in the International Journal of Ethics (vol. 25, p. i). In 1910 I delivered an address before the Kansas State Bar Association upon the subject of the second lecture, which was published in the proceedings of that Association (Proc, 19 10, p. 45) and reprinted in the American Law Review (vol. 45, p. 811). An address on the subject of the third lecture was delivered before the Iowa State Bar Association in 19 14 and is published in its proceedings (vol. 20, p. 96). It was also delivered before the Worcester County (Mass.) Bar Association which printed it for private circulation. An address on the subject of the fifth lecture was delivered before the Bar Association of North Carolina in 1920 and published in the proceedings of that year. This address was reprinted in the West Vir" ginia Law Quarterly (vol. 27, p. i). All these materials have been used freely, but all have been revised and much has been wholly rewritten.

As these lectures speak in large part from the second decade of the present century, they show the faith in the efficacy of effort and belief that the ad-

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ministration of justice may be improved by conscious intelligent action which characterized that time. The recrudescence of juristic pessimism in the past three years has not led me to abandon that point of view. At the end of the nineteenth century lawyers thought attempt at conscious improvement was futile. Now many of them think it is dangerous. In the same way the complacent nothing-needs-to-be-done attitude of Blackstone, who in the spirit of the end of a period of growth thought the law little short of a state of perfection, was followed by the timorous juristic pessimism of Lord Eldon who feared that law reform would subvert the constitution. Not a little in the legislative reform movement which followed might have proceeded on more conservative lines if he had been willing to further needed changes instead of obstructing all change. The real danger to administration of justice according to law is in timid resistance to rational improvement and obstinate persistence in legal paths which have become impossible in the heterogeneous, urban, industrial America of today. Such things have been driving us fast to an administrative justice through boards and commissions, with loosely defined powers, unlimited discretion and Inadequate judicial restraints, which is at variance with the genius of our legal and political Institutions.

Nor were the efforts of the decades of faith in progress as futile as it is fashionable for the moment to think them. Sometimes, as in projects for recall, they displayed more zeal than intelligent understanding of the task. But who would do away with the

PREFACE XlU

Municipal Court of Chicago and the modern city courts which have arisen in its image ? Who would wipe out the simplifications of practice which were brought about after 1900 at the instance of bar associations? Who would return to the condition of industrial accident litigation at the end of the nineteenth century, or revive the state of things in which every act of administration encountered an injunction, or restore the attitude of the bench from 1890 to 1 9 10 when, in many state courts, any statute which went upon unfamiliar premises or departed from historical lines was prima facie unconstitutional ?

When eighteenth-century common-law pleading had become impossible in nineteenth-century America, one of the great lawyers of the time was called upon to serve upon the commission which framed the first code of civil procedure. Had he been willing to put his skill and knowledge to the work of rational improvement, legal procedure in the majority of our states might be far different from what it is, and the conflict between legislative endeavor to reform and judicial refusal to walk in new paths, which has marked the history of "code pleading," might have been averted. Moreover, had the judges of the first half of the century possessed sufficient vision to exercise their common-law powers and had they done even some part of what Chief Justice Doe did in New Hampshire, it is not unlikely that the movement for an elective bench which swept over the country about 1850, putting the courts into politics and seriously impairing the judicial indepen-

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dence which is vital in our law, might have proceeded more slowly, have extended to relatively few frontier communities and have spared the higher tribunals. When the lawyer refuses to act intelligently, unintelligent application of the legislative steam-roller by the layman is the alternative.

RoscoE Pound

Harvard Law School August s, 1921

Contents

LECTURE PAGE

Foreword by Ernest Martin Hopkins . vii

Preface xi

II

LEGAL history, as we now know it, began to be written after Savigny and so after Hegel. Hence the "great-man interpretation" of history which was superseded by Hegel's idealistic interpretation, has never played much part in the literature of law. The attributing of ancient "codes" to gods or to divinely inspired sages or the Greek and Roman practice of attributing a whole body of legal and political institutions to some one lawgiver are another matter. They represent an attempt to put symbolically the sacredness of the law or the antiquity and authority of the custom on which the general security rests, and their place is taken in modern times by an idea that our traditionally received body of law is based upon an eternal intrinsic reasonableness. Yet something might be said for a greatlawyer interpretation of legal history. One might attribute progress in legal institutions and the development of legal doctrines to the influence and the genius of leaders among juristic writers, judges and practising lawyers. Lord Campbell thought the lives of the Chancellors and of the Chief Justices might be made to tell the history of the English constitution and the history of English law. Not long ago a writer sought to give us the spirit of the classical Roman law through a study of the life and character of Papinian. Undoubtedly the great lawyer has not been the least factor in legal history. Roman law without Papinian and Ulpian and Paul, the civil law of the modern world without Bartolus, international law without Grotius, French law without Pothier, German law without Savigny, the common law without Coke, or American constitutional law without Marshall, are almost unthinkable. But it may be that lawyers are products of legal development or along with legal institutions and systems and doctrines are results of deeper-seated forces. It may be that the lawyers themselves call for interpretation. Historical jurists in the last century were wont to teach us that the contents of a legal system were a necessary result of the whole history of a people and were no more to be explained by the labors of individuals than was language. Later it was asserted that great jurists and great judges had been but the mouthpieces, through which social forces, or the civilization of the time and place or class struggle or economic pressure and the interest of the dominant class for the time being had spoken the law. Whichever of these views was accepted, the creative role of great lawyers was pushed into the background in legal history, and he would be a bold man today who would essay an exposition of the spirit of the common law by study of the judges through whose decisions our law has been expressed and has been given form.

But little has been done in the way of applying the other modes of interpreting legal history to the history of Anglo-American law. The idealistic interpretation, which, looks upon the history of law as the unfolding of an idea of right or justice in human experience, has been employed with no little success in writing the history of Roman law. One phase of this, the religious interpretation, which seeks the key to juristic progress and juridical institutions in the progress of religious thought and in the progress of religious institutions, has been used in connection with Roman law by those who have attempted to trace the effect of Christianity upon the final stage of that system in the ancient world. Neither of these, however, has been tried by historians of the common law. Another phase of the idealistic interpretation, on the other hand, has been the staple of our books in the immediate past. Both in jurisprudence and in politics, the political interpretation has been the favorite in England and in America. Historically it assumes that a movement from subjection to freedom, from status to contract, is the key to legal as well as to social development. Philosophically it sees the end of all law in liberty and conceives of jurisprudence as the science of civil liberty. Given currency in the United States through the writings of Sir Henry Maine, this interpretation was no mean influence in bringing about the attitude of our courts and lawyers toward social legislation which often, but, as I think, erroneously, has been attributed to class interest. An ethnological interpretation, which finds the determining factors in juristic progress and in legal institutions in the characteristics of the races of men among whom laws exist, has been urged also. But the attempts to apply this method to the history of Roman law have yielded doubtful and meager results and there seems no reason to suppose that it will do more for the history of our law. Finally there is an economic interpretation which is much in vogue at present. Its exponents assert that the idea of justice has had nothing to do with the actual course of legal development, and contend that the sole agency in determining the growth and the content of legal systems has been the self interest of the class dominant for the time being in a particular society.

There is truth behind each of these several inter-? pretations, and it would be hard to choose among them, if choice were necessary. But choice is not necessary. No social institution is the product of any one cause. It is rather the resultant of many: causes, of which some observers will lay stress upon' one and some upon others, but none of which may be left out of account. Hence if some tell us that the spirit of the common law, the exaggerated abstract individualism of our juristic thinking and judicial decision in the last century, is due to an innate tendency to individualism among Germanic peoples, kept down in some quarters by the weight of Roman authority, but never so repressed in England, while others see in it an outgrowth of the political contests between the courts and the crown in the sixteenth and seventeenth centuries and an outcome of the political development of that time; if some regard it as a product of Puritanism, an application of Puritan ideas in law and politics, reaching its highest development in America, that paradise of the Philistines, as Matthew Arnold put it, while others see instead a result of economic thought and economic conditions in nineteenth-century America and of the frontier spirit surviving the frontier, I do not think we are bound to make an absolute choice. In truth all of these are factors and more than one has been a factor of importance. Possibly one might refer Puritan theology and sixteenth- and seventeenth-century political thought ultimately to Germanic individualism. Kept back by Roman authority in law and in theology, the Germanic genius burst its bonds at the Reformation and the individual asserted himself in law, in politics, in philosophy and in religion. One might say that there was something congenial to the Germanic spirit in Hebraism which gave the Old Testament so profound an influence when our fathers began to read it. In that view the Germanic character plus the economic conditions of the past century and the resulting economic theories would be our formula. But one must reckon with the interaction of individualist character and religious doctrine and social conditions upon one another. There is little to be gained therefore by an attempt at broad generalization. We may say, at. least, that Puritanism of itself and possibly because of the deeper-seated causes of which it was a manifestation, has been a significant factor In molding the spirit of our common law.

, Indeed there are special reasons for believing that Puritanism has been In a sense a controlling factor. And these reasons are my excuse, at a time when religious interpretations are not the fashion, for venturing a bit of religious interpretation of jurisprudence. For individualism, in and of itself, has not been peculiarly English or peculiarly American. What is peculiar to Anglo-American legal thinking, and above all tb American legal thinking, is an ultraindividualism, an uncompromising insistence upon individual interests and individual property as the focal point of jurisprudence. Other causes brought about a period of individualism in jurisprudence in politics and in economics everywhere. It was perhaps Puritanism which gave that added emphasis to individualist ideas in the formative period of our American legal thought that served to stamp them upon our theory and our practice and kept them alive and active in the United States a half century after English legal thought had turned over a new leaf. Upon this hypothesis, the religious interpretation of our legal thought becomes no less important than the philosophical interpretation of Roman law, through recognition of the part played by the Stoic philosophy in its formative period.

Individualism in legal science, as distinguished from law, had its origin in the end of the sixteenth century and beginning of the seventeenth century in the rise of theories of natural rights out of the older theories of natural law. Two main factors in this rise of individualism may be recognized, namely, the emancipation of the middle class and Protestantism. Berolzheimer has identified the former with the maturity and decay of the theory of natural law. But individualist natural law still flourishes in America. And if it be said that America has been par excellence the country of the middle class, we must note that the middle class has been dominant elsewhere and that Puritanism has given a peculiar character to the middle class of England and America. Even less may we attribute our common-law mode of thought solely to the Protestantism of England in the period which was decisive for modern law. For one thing its attitude toward the State is quite as much Catholic as Protestant. It is much nearer the view of the Jesuit jurists of the Counter-Reformation than it is to the view of Luther and his followers. In politics, Luther's principle was passive obedience. Holding that submission to civil government was enjoined upon Christians by the Scriptures, both Luther and Melanchthon vigorously denounced the Anabaptists and the rebellious peasants. Indeed they assumed that the state was a chief good and that no individual claims could stand against it. The basis for this doctrine was nationalist rather than individualist. They insisted on the local sovereign as against the universal church and the Protestant jurist theologians who followed them insisted upon the national law proceeding from that sovereign as against the universal authority of Rome. Granting that it was the mission of the Reformation to "give life to individual freedom," individual freedom through the state and through society were quite as possible means of achieving this mission as the Anglo-American exaltation of abstract individual freedom above the state and above society. In other words, a peculiar phase of the emancipation of the middle class and a peculiar phase of Protestantism

PtfUiTANlsM And tHE LAW 3$

must be taken account of in order to understand the spirit of our common law.

It is not an accident that the first reformer in English legal thought was also the first reformer in English religious thought. John Wycliffe is known for his resistance to authority in the church and his translation of the Scriptures to bring them home to the common man. But in his tract De Officio Regis he attacked authority in law and asserted the sufficiency of English case law — for such it fairly had become — against the venerable legislation of Justinian and the sacred decretals of the Popes. Let us remember what this meant according to the theories of that time. Whatever the fact, the theory of the king's judges was that they administered the common custom of England, the customary modes of action of Englishmen in their relations with each other. The academic theory as to the Roman law was that the Corpus luris Ciuilis, as legislation of the Emperor Justinian, was binding upon peoples whose rulers were taken to be successors of Augustus. The theory as to the canon law was that all jurisdiction was divided between the spiritual and the temporal, that in matters spiritual the temporal authority was wholly incompetent, and that the church, whose mouthpiece was the Pope, had an absolute legislative power within this field. "The Pope," says Boniface VIII in the fourteenth century, "holds all laws in his breast." Wycliffe said boldly that men might well be saved "though many laws of the Pope had never been spoken," that Roman law was "heathen men's law" and that there was no more reason and justice in the civil law of Rome than in the civil law of England. He appealed from authority to the local custom of England, from the rules imposed externally by Roman law and the Pope, to the rules which Englishmen made for themselves by their everyday conduct. But this was the same position which Wycliffe took with respect to religion. In law and in religion he appealed to the individual and for the individual against authority.

But the real influence of religious thinking was to come later. It has been said that for most purposes the history of the common law begins in the latter part of the thirteenth century. Indeed it might well be said that for American purposes its history begins still later and that we shall not err greatly in beginning with the end of the sixteenth century. I am speaking here of the common law as a mode of thought. Some dogmas, especially in the law of property, have a longer history, and our judicial institutions must be studied from the time of Henry II. But our attitude toward legal problems, our modes of legal reasoning, the principles which make up the system of the common law, have only to be studied from the reign of Elizabeth, and have a continuous and consistent development from that time. The periods of development in Anglo-American law begin respectively with the reigns of Elizabeth and James I, with the American Revolution and with the Civil War.

What had been achieved in the English courts prior to Coke was summed up for us and handed

PURITANISM AND THE LAW 4I

down to US by that indefatigable lawyer in a form which the past generation chose to consider authoritative; and we have looked at it through his spectacles ever since. Hence the period of growth prior to the reigns of Elizabeth and James I but gave the materials. The shape which those materials have taken in the present law is due to the way in which their possibilities appealed to the end of the sixteenth century and beginning of the seventeenth century, to the interpretation put on them by Coke and his contemporaries, and to the subsequent working over of the product in America when we received such part of the common law as was applicable to the new world. Again, we may pass over the constructive work of the eighteenth century, for that work was done in equity and the law merchant. Neither of these strictly is part of the common law, and so far from their affecting the spirit of the common law, the spirit of the common law affects them powerfully. But there are two growing periods of our common-law system ; two periods in which rules and doctrines were formative, in which our authorities summed up the past for us and gave us principles for the future. These periods are (i) the classical common-law period, the end of the sixteenth and beginning of the seventeenth century, and (2) the period that some day, when the history of the common law as a law of the world comes to be written, will be regarded as no less classical than the first — the period of legal development in the United States that came to an end with the Civil War. In the one the task was to go over the decisions and legislation of the past and make a system for the future. In the other the task was to examine the whole body of English case law with reference to what was applicable to the facts of life in America and what was not. Obviously the spirit of these times and of the men of these times whose juristic labors gave us the mode of treating legal problems which we call the common law, could not fail to give color to the whole system. But the age of Coke was the age of the Puritan in England and the period that ends with our Civil War was the age of the Puritan in America. We must not forget that the Puritan had his own way in America, that he was in the majority, that he had no powerful establishment to contend with, and that he made institutions to his own liking. For, again, it is not an accident that common-law principles, as they were fashioned in the age of Coke, have attained their highest and most complete logical development in America, and that in this respect we are and long have been more thoroughly a common-law country than England herself.

A fundamental proposition from which the Puritan proceeded was the doctrine of a "willing covenant of conscious faith" made by the individual. Thus he put individual conscience and individual judgment in the first place. No authority might rightfully coerce them; but everyone must assume and abide the consequences of the choice he made. Applied to church polity, it led to a regime of "consociation but not subordination." "We are not over one another," said Robinson, "but with one an-

Other." Hence even church organization was a species of contract and a legal theory, a legalism, attached even to religion. If men were to be free to act according to their consciences and to contract with others for consociation in congregations, it was a necessary consequence that the state, as a political congregation, was a matter of contract also; and liberty of contract was a further necessary deduction. The early history of New England furnishes abundant applications of the idea that covenant or compact — the consent of every individual to the formation and to the continuance of the community — was the basis of all communities, political as well as religious. The precedent of the covenant which made Abraham and the children of Israel the people of God, furnished the religious basis for the doctrine. But it was applied to civil as well as to ecclesiastical organization. One consequence was to make for the individualistic conception that all legal consequences depend upon some exertion of the will, as against the feudal conception of referring them to some relation. Contract and voluntary culpable conduct appeared to be the solving ideas for all problems and the law was to be apportioned between the contractual and the delictual. Another consequence was to make a moral question of everything, and yet in such a way as to make it a legal question. For moral principles are of individual and relative application. In applying them we must take account of circumstances and of individuals.

Hence if every question was treated as a moral question and controversies involving moral questions were to be dealt with as concrete cases to be individualized in their solution, subordination of those whose cases were decided to those who had the power of weighing the circumstances of the actual case and individualizing the principle to meet the case might result. The idea of consociation demanded that a fixed, absolute, universal rule, which the individual had contracted to abide, be resorted to; and thus the moral and the legal principle were to be applied in the same way, and that the legal way. "Nowhere," says Morley, "has Puritanism done us more harm than in this leading us to take all breadth and color and diversity and fine discrimination out of our judgments of men, reducing them to thin, narrow and superficial pronouncements upon the letter of their morality or the precise conformity of their opinions to accepted standards of truth." The good side of all this we know well. On the side of politics, the conception of the people not as a mass but as an aggregate of individuals, the precise ascription of rights to each of these individuals, the evolution of the legal rights of Englishmen into the natural rights of man, have their immediate origin in the religious phase of the Puritan Revolution. But on the side of law, it has given us the conception of abstract liberty of contract, which has been the bane of all social legislation, the rooted objection to all power of equitable application of rules to concrete cases that has produced a decadence of equity in our state courts, the insistence upon and faith in the mere machinery of justice, which so often makes American legal procedure intolerable in the business world of today, the notion of punishing the vicious will and the necessary connection between wrongdoing and retribution, which makes it so difficult for our criminal law to deal with anti-social actions and to adjust itself in its application to the exigencies of concrete criminality.