HISTORY OF COMMON LAW 343 



because they belong of right to nobody. When the hand that gath- 

 ered or preserved fell lifeless, it was for the state to send what no 

 longer was in the rightful grasp of any where it would. 



Judicial procedure also is a matter proper for legislation. It is the 

 means by which the power of the state is exerted to preserve the 

 order of the state and the rights of its inhabitants. 



But these rights, unless they rest on something better than statutes, 

 are on no assured foundation. Rights are inviolate. Statutes may 

 be passed to-day and repealed to-morrow. 



Rights also, founded on a common law, contain a principle of 

 growth. They may increase, though, so far as they are founded on the 

 principle of equality of opportunity, they can never be permanently 

 diminished. 



To define them in statutory words is to circumscribe them. It tends 

 to prolong inequalities of condition. The freer, therefore, a people 

 may be, the longer they will be apt to cling to unwritten law. 



There is, however, one tendency of modern times which occasion- 

 ally exerts great force in an opposite direction. It is that towards the 

 aggregation of nationalities, to the strength that comes from union. 

 In the course of such great movements the maintenance and de- 

 velopment of a national common law may be checked by codification 

 proceeding from reasons of political policy. The Gesetzbuch of Fred- 

 erick the Great was an early example of this. The German Imperial 

 Civil Code of 1900 is in large part due to the same cause. It helps 

 to unify a new empire. Those who framed it, however, did not under- 

 rate the inevitable reluctance of the particular states to yield more 

 than could justly be claimed as necessary. The " law of introduction " 

 is so full of exceptions in their favor that more almost seems to be 

 reserved than is taken away. 1 



None of the early codes or collections of common law are codes in 

 the modern sense. 



When the first beginnings are made toward stating it in an author- 

 itative shape, it is put forward as a mere bundle of propositions, 

 reached apparently by no scientific process, and arranged certainly 

 in ro scientific way. It will be full as to some points; meagre or 

 silent as to the rest. So far as it has arrangement or order, it may 

 be that of bare chronology. To learn what it is, we must look to the 

 history of the people, and trace its halting and devious steps from 

 this level to that, now ascending and now perhaps sinking to a point 

 from which it can never rise. These things once known, we can 

 begin to construct a philosophy to state their ultimate results. As 

 in everything else, to quote the words of Froude, " we must have the 

 real thing, before we can have a science of a thing." 



See Sec. 1, Art. 3, and Sec. 3. 



2 Thomas Carlyle, Life in London, n, 126. 



