CHARACTERISTICS OF THE COMMON LAW 283 



subsidiary force; and they consciously departed from many of its 

 most essential principles. This was but natural; the common law 

 was a technical system adapted to a settled community; it took 

 the colonies some time to reach the stage of social organization 

 which the common law expressed ; then gradually more and more of 

 its technical rules were received." (p. 58.) 



After being dormant for nearly one hundred and fifty years, the 

 vital power of common law displayed itself from 1750 onward. At 

 first mainly on its public side, as a basis for argument in the appeals 

 for civil liberty; later, in its general aspect, in the local courts under 

 the influence of lawyers trained in the Inns of Court. It would be 

 hard to overestimate the influence in the colonies of lawyers trained 

 in these Inns. Winthrop, Bellingham, Dudley, and Ward all had 

 studied law in the Inns, and the recent catalogue of notable Middle 

 Templars shows upon its list the following who signed the Declara- 

 tion of Independence: Charles Carroll of Carrollton, Middleton, 

 Rutledge, McKeen, and John Dickenson and Arthur Lee. The 

 continual discussion and publications of such men as these, not 

 only trained them, but prepared the public for the federal laws and 

 constitution and the state constitutions. 



At the end of three hundred years, the resemblances between the 

 common law in America and its parent in England are greater 

 than the differences, and the differences are rather in degree than in 

 kind. Each has borrowed from the other's statute law; the American 

 more from the English unwritten law. The common law in America 

 has the same adaptability and generality, but publicity is greater 

 here both in civil and in criminal cases. In the former there is an 

 excess of publicity, both in the progress of trials and through the 

 newspapers. In jury trials the American courts are more dilatory 

 and more spectacular than the English courts. In some of the West- 

 ern states a criminal trial gives attorneys an opportunity to adver- 

 tise that is "worked for all that it is worth." There is much less 

 freedom of comment on evidence and law by the judges in America 

 than in England, and the relation between the judges and the jury 

 is less close. In two respects there has been a departure from the 

 English theory. These are the theory of constitutional law, espe- 

 cially as to the power of the court to pass on the constitutionality 

 of statutes, and in the source of grounds for decision by the judges. 

 In the latter case in some of the states there seems to have been 

 developed a substantially different theory from that shown in the 

 discussion of Calvin's Case. 



As I have tried to show, the factors that have contributed to 

 make the characteristics of the common law were popular and 

 professional; the same factors are seen in America. At the close of 

 the Revolution there arose need of a system of law in each of the 



