272 HISTORY OF LAW 



in America at the present day. The periods are separated by three 

 centuries, or those of the common law in sixteen hundred and in 

 nineteen hundred. The period with Lord Coke is selected because 

 during his time the jurisdiction of the common law courts was 

 defined, limits to the royal prerogative set, and chancery made 

 a court of ordinary jurisdiction for equity; and because this was the 

 time of the beginning of colonization in America. The common law 

 of Lord Coke was the common law of Winthrop and Smith. 



Like other forms of thought manifested in literature, the common 

 law is the product of influences that can be discovered and whose 

 ' effects can be traced. These influences may be called direct, if exer- 

 cised by the people or the judges, and indirect if occasioned by 

 forces operating on the people or the judges. A body of law which 

 starts with the proposition that it is the custom of the people soon 

 arrives at the stage where the solution of legal questions calls for the 

 aid of either outside systems or reason. According as the people or 

 the legal profession applying this reason or deductions from the 

 outside system have been the more concerned in law-making, the 

 characteristics of the law have been popular or technical and con- 

 servative or progressive. It is therefore necessary, if we would dis- 

 cover the characteristics of the common law, to say something of 

 the influences that contributed to shape it prior to Lord Coke; then 

 to note its characteristics in his day; and then to speak of the 

 influences that operated in America to influence its unwritten law, 

 and to note its characteristics so far as they are disclosed by certain 

 resemblances in the law of the several states. 



Of the external influences, the canon and the civil law were most 

 potent and operated upon the common law by way of compression 

 rather than repression. Apprehensions of those systems and con- 

 tentions with them intensified the loyalty of the English people for 

 their own system. The power of the advocates of the canon and 

 civil law in the universities, combined with the location of the courts 

 at Westminster, tended to develop the schools of common law in 

 the Inns of Court. The decline of the local courts with the growth 

 of courts at Westminster made them less responsive to and expressive 

 of popular needs, and may have impaired the popular regard for the 

 common law. How far the oft-quoted phrase in the Statute of Merton 

 justifies wide generalization, it is not easy to say. But the influence 

 of the Inns of Court would seem inevitably to substitute a profes- 

 sional for a popular standard of justice. The concentration in those 

 Inns of a body of specialists, who for years dealt with problems, 

 worked out in moots, in the halls, and in arguments in court under the 

 scholastic training of the century before Lord Coke, must have 

 developed a body of logicians and a legal system founded on logic. 

 In the Inns of Court, like bees in a hive, the lawyers secreted the law 



