The Spirit of the Common Law

Nothing in the history of our common law is more striking than its tenacity in holding ground. Like our English speech, there seems to be something about it that commends it to men of diverse lands and races, and where it once goes, it stays. From the beginning, it has been in competition, if not in conflict, with other systems, and it has steadily gained ground. On its own soil, it had to meet and resist the canon law in the twelfth century, the Roman law at the Renaissance, the...
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Nothing in the history of our common law is more striking than its tenacity in holding ground. Like our English speech, there seems to be something about it that commends it to men of diverse lands and races, and where it once goes, it stays. From the beginning, it has been in competition, if not in conflict, with other systems, and it has steadily gained ground. On its own soil, it had to meet and resist the canon law in the twelfth century, the Roman law at the Renaissance, the powers of the crown exerted against its fundamental doctrine of the supremacy of law in the sixteenth and seventeenth centuries, an influx of foreign law through the law merchant in the eighteenth century, the legislative reform movement in England and America in the nineteenth century, and in America at the same time, a temporary but formidable agitation for French law, influenced by the spread of the Code Napoleon and the success of the Louisiana Civil Code.

Not only has the common law as a system successfully resisted all attempts to bring in some other law in its place, but in those parts of our system where alien and more flexible methods have existed or have arisen, in contravention of the fundamental theory of the common law that litigation is contentious, and wherever arbitrary discretion has obtained a serious foothold, the common law ultimately has prevailed. Probate, administration, and divorce have been absorbed into our American common law. Case law and precedent have turned admirality into a common-law mold. Equity and equity procedure have been legalized. Precedent and case law in the one, and the doctrine of contentious procedure in the other, have effectually made them over to the common-law model. Evidence in equity is now governed by rules framed to regulate the admission of evidence before juries; common-law executions are issued on decrees for the payment of money, though courts admit that contempt proceedings might sometimes be proper; exemption laws, effective against executions, are defying equitable principles as to trusts and trust funds; and more than one equitable doctrine has become so legalized as to run counter on occasion to the justice and equity which were its original foundation. So far has this gone, that an acute observer has laid it down as a principle of legal science, that the judicial administration of justice is intrinsically contentious.