HISTORY OF COMMON LAW 347 



An unwritten common law now exists in most of the states, which is 

 substantially the same. For any of them to codify it is to invite the 

 establishment of local differences. A common law is of the highest 

 political importance to those who have a common country. 



But more than this, it goes naturally with a rigid constitution of 

 political government. Law clothes a people like a garment, and as 

 they wax or wane in power or wealth and diversity of interests, so 

 must it accommodate itself in some measure to their changing form. 

 A written constitution may be expanded by construction, but only 

 within narrow limits and under unusual stress of circumstance. The 

 law which is administered under it must therefore be the more 

 readily capable of extension to the varying conditions of the times. 

 This under a common law is attained with ease; under a code with 

 difficulty and delay. Under a common law it comes from the people 

 and the courts who are always at work. Under a code, primarily 

 from a legislature, slow moving if it does its office well, and seldom 

 in session: from the people not at all; from the courts with a timid 

 and hesitating hand. 



Looking more broadly at the relations of a common law to political 

 organization, no treatment of the subject under consideration would 

 be adequate which did not look beyond the circumstances and 

 necessities of any one nation on the earth to those of all. 



England and America recognize public international law as a part 

 of their common law. The constitution of the United States refers 

 to it as a form of law of acknowledged authority. 2 So far as their 

 courts recognize any principles of private international law, these also 

 become a part of their common law. 



While it may have been less explicitly announced in the constitu- 

 tional or judicial documents of other countries, the world is coming 

 to the same position; and where no statute lays down a different 

 rule, the people can rely on the protection which the law of nations 

 and the comity of nations extend to all whose acts are called in 

 question in a court of justice. 



There is, then, besides the common law for regulating the dealings 

 of individuals, or between individuals and the state, a law for regu- 

 lating the dealings of nations and of one nation with the citizens of 

 another. Here, indeed, we come back in principle to the jus gentium 

 of the Romans, in so far as it professes to speak what all nations 

 admit to be just and true all nations, for we no longer have a 

 Christendom on one side, and only barbarians on the other. 



As the common law of and for a particular people is made by that 

 people from day to day as a natural growth of social life, so the 



1 See paper on the " Part taken by Courts of Justice in the Development of 

 International Law," Report of Nineteenth Conference of the International Law 

 Association, 35; Yale Law Journal, x, 1; American Law Review, xxxv, 214. 



- Art. i, sec. 8; In re Martin, Law Reports, Appeal Cases, 1900 (Probate), 211. 



