342 HISTORY OF COMMON LAW 



any one age, and admit of forensic controversy and doubt, probably 

 not one in a hundred, perhaps it would be more correct to say not 

 one in a thousand, ever comes before a court of justice to be there 

 finally settled by adjudication." 



If a disputed question of private right is submitted to counsel to 

 be determined by the rules of common law (and I mean the common 

 law supplemented, as it always is and must be in a civilized people, 

 by the rules of equity), he considers first whether there is any one 

 of them which obviously and directly applies to it. If not, he asks 

 if there be not one which by analogy governs. If there be none such, 

 he looks to the fundamental principles of natural justice, and there 

 he cannot fail, or if he does it is because he fails in his selection. The 

 principles are established and they are decisive. Ubi jus, ibi remedium. 



The common law of a people will develop on two lines, that of 

 their relation to the state, and that of their relation to each other. 



The former naturally comes first. In its infancy a nation gropes 

 after large things only. It thinks, when it begins to think, in poetry. 

 It is ready to idealize whatever is the representative of sovereign 

 power. Then, if it finds his hand too heavy, it seeks for charters and 

 guaranties. These, for a people that is strong and feels its power, are 

 the conditions of its support. They proceed from what already has 

 begun to be a custom, and new customs are built upon their founda- 

 tions. It is simply adherence to law and to the man who personifies it. 



The history of civil liberty is the first and best part of the history 

 of common law. But it is a short chapter. 



Liberty soon asks for itself recognition in some written document 

 to which man can appeal in time of public stress and conflict. 



On the other hand, no written document, under any conditions 

 of human society yet developed, can adequately provide for every 

 future conflict of private interests. 



There is a field for the professed law-makers, be they king or repre- 

 sentative assembly, and there is a field for the unprofessed law- 

 makers, the people. 



Legislative power in early days seems to have been mainly exerted 

 to serve the purpose of authentication. It was not looked to for 

 innovation, but for preservation. 1 The legislative hall was a record- 

 ing office. 



And it must still be regarded as the great function of a legislature 

 to regulate the dealings of the state with individuals and with other 

 states. When it passes beyond this and seeks to regulate details 

 of conduct between man and man, it enters upon dangerous ground. 

 It is making law for those who can generally make it better, have 

 generally made it better, for themselves. 



Legislation as to succession to the estates of the dead is justified 

 1 See Maine, Early History of Institutions, 26. 



