274 HISTORY OF LAW 



affirm that this is a cause or an effect from such masterful hands as 

 those of Henry II. But the reliance on courts has tended to the de- 

 velopment of law and the independence of the judge. It is of this that 

 Lieber says, " It is a great element of civil liberty and part of a real 

 government of law which in its totality has been developed by the 

 Anglican tribe alone. It is this portion of freemen alone on the face of 

 the earth which enjoys it in its totality." (Civ. Lib. and Self -Go vt., 

 p. 203.) The other is a respect for authority deep-seated in the 

 English people, a respect arising either from position or age. This 

 in part explains why precedents have such a hold on the courts, 

 and its lack is one of the facts to be noted in America. It has been 

 said that the reliance on precedents is due to an incapacity in the 

 English to reason generally. Commenting on the arguments in the 

 debates on impositions in 1610, in which we find an early and 

 remarkable use of precedents, Mr. Gardner says, "The speakers on 

 both sides seemed to have had a horror of general reasoning." 

 (2 Hist, of Eng. 75.) De Tocqueville noted this trait in Englishmen 

 and its absence in Americans, and devotes a chapter to "Why 

 the Americans show more aptitude and taste for general ideas than 

 their forefathers, the English. " (Dem. in Am. vol. n, chap. 3.) It 

 will be instructive to follow the Japanese in their jural growth under 

 a French code with their seeming natural capacity for generalization, 

 but with their present tendency to disregard precedent excepting 

 for illustration. (See address of Dr. Rokuichino Masujima before 

 N. Y. State Bar Ass'n, 1903.) The other aspect of authority arising 

 from age is commented on by Mr. Gardner in connection with the 

 same impost debates, " Our ancestors did not refer to precedents 

 merely because they were anxious to tread in the steps of those 

 who went before them, but because it was their settled belief that 

 England had always been well governed and prosperous. They 

 quoted a statute not because it was old but because they knew that, 

 ninety-nine times out of every hundred, their predecessors had 

 passed good laws." Lord Ellesmere in Calvin's Case, quoting from the 

 Year- Books, said, "Our predecessors were as sage and learned as we 

 be." In connection with precedent in the time of Coke it is to be 

 noted that during the reign of Elizabeth the printing-press was busy 

 reproducing law-books. The labors of Tottell made the Year-Books 

 a "profitable and popular literature." (See Soule, " Year-Book Bib- 

 liography," 14 Harvard Law Review, 563, 564.) There were edi- 

 tions of all the treatises, and these with the abridgments opened up 

 the past and ancient laws to the professional students in the Inns in 

 a new and forceful way. 



In trying to describe the fundamental characteristics of the com- 

 mon law I appreciate that it will be difficult to say anything that 

 is not trite or commonplace. To obviate this in part I shall select 



