570
THE GREEN BAG
think not only of such matters as the rules of inheritance, the doctrine of consideration for a contract, the definition of felony and of the rules denning the agent; we must also think of the forms of actions, of the jury, of the authority of decided cases. All these things were well settled before the first English colonists landed on the shores of Virginia and Massachusetts. Now, what is it that a skilled observer would select as being the peculiar and characteristic notes of the Common Law? I think he would begin by dwe'ling unon the firm grasp which it has of the rights of the individual citizen. The citizen is conceived of, he is dealt with, as being a center of force, and active atom, a person in whom there inhere certain powers and capacities which he is entitled to assert and make effec tive, not only against other citizens, but against all citizens taken together, that is to say. against the community, the State it self and its organ, the executive govern ment. Secondly, our observer would note as another characteristic feature the recog nition by the Common Law of the State and the executive as being clothed with the authority of the whole community, as being' an effective power, entitled to require and compel the obedience of the individua' wherever and whenever the State does not trespass on the rights which are legally secured to him. To be effective, law must not only have executive force behind it, but also the principle of legitimate authority, the sense in every communitv that individual authority has its limits, and can be exerted only within the sphere allotted to it. Liberty is the child of Law. It is not his own pleasure, but the fact that the community has recognized a certain sphere of unchecked action as belonging to him, within which he can doas he pleases, that secures to the individual citizen his rights. Outside that sphere he must not only obey, but must co-operate with the executive. It is his duty to aid in preventing a crime,
in suppressing disorder, in arresting an offender. A sheriff, in the due exercise of his functions, can call on all persons present to support him, and they are bound to support him. This doctrine is a whole some doctrine, and, if you like so to call it, it is a democratic doctrine, because it expresses the sense that the whole com munity is behind the law. Now, Ladies and Gentlemen, these two principles go together. The first principle, the recognition of the rights of the individ ual citizen, is the safeguard against tyr anny; that is to say, the absolute and capri cious will of the governing power; the other principle is the safeguard against anarchy, against that unrestrained and unlimited exer cise of the will of the citizen which must re sult in collision and disorder. It may be suggested that these two prin ciples were not peculiar to the Common Law, because no law could grow up and no state could prosper, without both of them. That is perfectly true. But there have been svstems of law in which sometimes one principle and sometimes the other was imperfectly developed, and, so to speak, overweighted by the other. The former principle, that of the recognition of the rights of ths individual, has often been too feebly applied to secure due protection to the individual. It is the clearness with which both principles are recognized, and the full ness with which both have been developed ii the mediaeval and post mediaeval Com mon Law, that constitutes its highest merit. From the equal recognition of these principles there follows a third characteristic. If two principles, apparently antagonistic, are to be reconciled, there must be a precise delimitation of their respective bounds and limits. The law must be definite and exact. Now, precision, definiteness, exactitude are features of the Common Law so conspicuous that the unlearned laity — of whom there are. perhaps, some present to-day — have often thought them to have been developed to an inordinate degree. They have made
