CHARACTERISTICS OF THE COMMON LAW 273 



of England. It was no longer the custom of the people, although 

 so described, but a highly technical law. That the written law and 

 the pleadings were expressed in Latin or French would also tend 

 to restrict its expression to lawyers. These influences would tend to 

 impair the close relation of the people to their law that early had 

 existed. The introduction of a technical procedure which under the 

 hand of the professional lawyer would tend to be an end rather than 

 the means would be misunderstood by the people. Authorities 

 given in Parke's History of Chancery show considerable evidence in the 

 statutes and in the debates in Parliament that the common people 

 were discontented with the common law and its professors. But the 

 lawyers were calling their handiwork the perfection of reason. The 

 pages of Coke and Plowden abound with cases that are in no way 

 related to the customs of the people. As Professor Gray says, " With 

 a great part of the law the customs of the people have obviously 

 had nothing more to do than have the motions of the planets. The 

 enormous mass of the law of pleading and of evidence has been 

 born and bred within the four walls of a court. The community at 

 large, those who make custom, know absolutely nothing about it. 

 So with a great part of those legal rules which are not plainly of an 

 ethical character. For instance, the rule in Shelly's Case, is that a 

 product of the 'common conscience of the people'; or the rule that 

 'dying without issue' means an indefinite failure of issue; or is the 

 rule that a parol promise without consideration cannot be enforced 

 a spontaneous evolution of the popular mind?" (" Definitions and 

 Questions in Jurisprudence," 6 Harvard Law Review, 21-32, 1892.) 

 It is evident, then, that the change from popular to professional 

 factors occasioned by external pressure and internal development 

 have affected the fundamental characteristics of the common law. 



In the growth of the sovereign power and the legislative, judicial, 

 and ecclesiastical elements of society each has exalted its powers and 

 extended its frontiers. There comes a time when the last meet 

 and tend to overlap. The controversies engendered in adjusting 

 the powers and denning the frontiers have created the larger part of 

 constitutional law, the province of legislation, and the jurisdiction 

 of courts. The common law was affected in its scope by the contro- 

 versies of its judges with canonists and chancellors. And the content 

 of the law was modified by the struggle between the different courts 

 for litigants and preeminence. 



There are two forces having their source in national traits which 

 contributed to shape English law; one is the liking for fair play and 

 the natural turn of mind for litigation that is found in the English 

 people. By this is meant something more than a fancy for contention 

 and technicality; rather the right settlement of disputes in an 

 orderly and judicial way. Perhaps at this day it may be difficult to 



