276 HISTORY OF LAW 



case is no feigned or framed case, but a true case between two 

 parties." Legislation is an endeavor to find an answer to an inde- 

 finite number of hypothetical cases. The courts endeavor to find an 

 answer to a single concrete case that has arisen in the past. This 

 characteristic of common law has the inconvenience that a point of 

 law may long be uncertain for lack of parties willing to litigate it. It 

 is especially inconvenient in America, where the constitutionality of 

 a statute remains to be determined until litigation arises. But this 

 inconvenience has not occasioned any change in the theory of the 

 common law. 



Dealing with facts alone, the common law does not judge of un- 

 expressed thoughts, theories, or opinions. The year before Calvin's 

 Case was decided, Lord Coke wrote, "The Lords of the Council of 

 Whitehall demanded of Popham, Chief Justice, and myself, upon 

 motion made by the Commons in Parliament, in what cases the 

 Ordinary may examine any person ex offido upon oath; and upon good 

 consideration and in view of our books, we answered to the Lords 

 of the Council at another day in the Council Chamber, that 'No 

 man ecclesiastical or temporal shall be examined upon secret thoughts 

 of his heart, or of his secret opinion; but something ought to be 

 objected to against him which he hath spoken or done." 1 (Oath 

 Ex Offido, 12 Rep. 2629 (1607). 



A second characteristic of the common law is its adaptability 

 within rigid limits. "The most distinctively English trait of our 

 medieval law is its ' formulary system' of actions. " (2 P. & M. Hist. 

 E. L. 556.) Lord Ellesmere touches upon the elasticity of the 

 ancient common law where in the case of need a new writ could be 

 framed in Chancery so that no one need depart without remedy. 

 But it was now the "closed cycle of original suits, the catalogue of 

 forms of action to which naught but statute could make addition." 

 (Mait. Ed. Bract. N. B. vol. i, p. 6.) "It were better to live under a 

 certain known law though hard sometimes in a few cases than to be 

 subjected to the alterable discretion of any judge," said Chief Justice 

 Popham in commendation of the law of England in his opinion before 

 the Lord's Committee. (2 How. St. Tr. 569.) The litigant could 

 choose a definite weapon, but at his peril. The judges were passive 

 if he erred. " That is part of the fundamental methods of the com- 

 mon law; the party can have the law's help only by helping himself 

 first. On these terms and not otherwise it is open to all." (Sir 

 Frederick Pollock, " Ex. of the Common Law," 14 Col. Law Rev. 20.) 

 The courts did not necessarily initiate proceedings even in the case 

 of crimes. In legal controversies the choice of weapons was large, 

 and within their limits the common law could deal with any matter, 

 simple or complex, and with any party, whether single or many, 

 and could reduce all litigation to the simple formula, Command A 



