CHARACTERISTICS OF THE COMMON LAW 



BY NATHAN ABBOTT 



[Nathan Abbott, Professor of Law, Leland Stanford Jr. University, since 1894; 

 b. July 11, 1854, Norridgewock, Maine. A.B.Yale; LL.B. Boston; Professor of 

 Law, University of Michigan, 1891-92; ibid. Northwestern University, 1892-94.] 



DURING the three centuries prior to Lord Coke the common law 

 of England in some way or other gathered itself together out of 

 custom and differentiated itself from other legal systems so far as to 

 have gained a name and home the common law of England. It 

 was the great intellectual achievement of a people large enough and 

 strong enough to have ideas of its own, and isolated and individual 

 enough to develop those ideas in its own way. In the three centuries 

 subsequent to Lord Coke its child in America has lived and grown 

 after the manner of its kind, but it has not yet gained a new name, 

 although it has a new home. It is the common law of England in 

 America the common law of England plus "those slow accretions 

 and changes that were inevitable where a free and expanding people 

 expressed their jural needs. This is also the great intellectual achieve- 

 ment of the American people; in the eighteenth century its one 

 intellectual product, in the nineteenth century its greatest intel- 

 lectual product. 



The common law in both countries in its beginning was the ex- 

 pression of a free people's needs and standards of justice, and was 

 not essentially different in its nature from their needs and standards 

 as expressed in art or in literature. And the common law being the 

 product of a free people is a living institution possessed, not only of 

 a vital and conservative, but also of an assimilative and progressive 

 power. 



The vicissitudes of parent and child exemplify what such a living 

 institution can endure. But law as a living institution is not as stable 

 as living matter. A cross-section of a tree at its base is not essentially 

 different from one made one hundred feet from its base. A cross- 

 section of the common law at one time is not necessarily like one 

 made at an earlier or later time. Its nature changes with the national 

 views of that on which law rests. This in part explains the difficulties 

 encountered in denning law. What at one time is custom at another 

 time is law, and yet each will have a like compelling force. 



The purpose of this paper is to give some account of the funda- 

 mental characteristics of the common law at two somewhat widely 

 separated periods and to contrast them. One period is that of the 

 common law in the time of Lord Coke, the other the common law 



