HISTORY OF COMMON LAW 341 



must be free in each case as it arises to interpret it each for itself. A 

 distinguished lawyer of wide experience in a line of practice requiring 

 considerable familiarity with the laws of France, at a public hearing 

 in 1881, before a legislative committee in New York, said of the 

 Code Napoleon, that he would undertake, if the meaning of anj- 

 important sections of it were questioned, to furnish decisions on both 

 sides, and one as authoritative as another, since the rulings of the 

 Court of Cassation bound no inferior tribunal. 



As Sir Henry Maine has pointed out, with his accustomed precision 

 of statement, one of the material differences between the legal systems 

 of England and America and those of other countries is that the 

 English common law is content with no conclusions from imaginary 

 facts. 1 It demands to know what has been adjudged to be the law on 

 established facts. Anything short of this is an illustration, not a rule. 



A legislative fiat rests on an imaginary state of things. A judicial 

 precedent rests on an actual state of things. 



The actual state of things in any controversy between man and 

 man may so far differ from any state of things previously known that 

 no rule of law can be found which exactly applies to it. In such case, 

 the courts make use of the old rules as far as they can. This gives 

 a twist, perhaps, to the old rules, which thereafter are bent in a new 

 direction. To quote from the author cited, " Almost everybody can 

 observe that, when new circumstances arise, we use our old ideas to 

 bring them home to us; it is only afterwards, and sometimes long 

 afterwards, that our ideas are found to have changed. An English 

 court of justice is in great part an engine for working out this process. 

 New combinations of circumstances are constantly arising, but in the 

 first instance they are exclusively interpreted according to old 

 legal ideas. A little later lawyers admit that the old ideas are not 

 quite what they were before the new circumstances arose." 2 



This change, such as it is, will naturally be in the direction of con- 

 formity to the national standards of justice and civil policy existing 

 at the time of the decision. The judge cannot shut his eyes to the his 

 tory and spirit of the day and time in which and for which he speaks. 



The history of the Anglo-American common law is very far from 

 being a mere history of judicial precedent. It is rather a history of 

 public custom. No collection of precedents could ever be answerable 

 to the wants of a civilized community. The only collection to satisfy 

 them must be one of the principles of justice and incidents of history 

 from which those precedents were derived. It was justly said, in 

 1836, in its report to the legislature of Massachusetts by the very 

 able commission which had been appointed to consider the subject 

 of codification, that "of the innumerable questions, which arise in 



1 Early History of Institutions, 47. 



2 Ibid. 229. 3 See Holmes, The Common Law, 35. 



