IO
THE GREEN BAG
wave-lines on an ocean beach, and what point could go either way — in other words, constitutes a distinct and clearly defined to see the river from end to end. It is said, equitable landmark to-day, by the course of too, that no man can acquire this knowledge legislation or decision disappears in the by the study of charts, but must gather it ocean of Common Law to-morrow. The by constant observation, and has and can nearest approach to a competent definition have no intimation of the progress he is of this familiar legal term is the despairing making. After long experience and re conclusion of the father of American Equity- peated failures, all at once, perhaps when Jurisprudence, that "Equity is that portion walking the streets, lying in his bed or of the law (he should have said the Common sometimes in a dream it flashes upon him, Law) which is cognizable only by a Court of he "puts the river together" — the picture Equity." In truth, Equity in a technical is complete — he sees the course and land sense is simply a part of the Common Law marks back and forth, up and down, and is which accident at first separated from the ready for examination and license as a rest of its domain, and which a curious and pilot. There is some analogy between "putting unfounded fear of change has served to keep distinct in form in some jurisdictions, only the river together" and an adequate com in name in others, while in others still both prehension of what constitutes the Common form and name have been abandoned, and Law. There is probably no experienced practi the law so divided in its functions has come at length to administer justice in the same tioner who reads my words who does not form of action and by the same instrument remember the mist of uncertainty which alities, no matter what the character of the hung over his early years of study, which no application to the text-books of the pro relief sought. In truth, Equity is best defined to be that fession, no hint of any instructor, seemed portion of the Common Law which ignorance, able to penetrate. The Common Law was stupidity and empiricism separated centuries an incubus that hung over his consciousness, ago from the body of legal principles and unsettled his conclusions, disappointed his which it is one of the highest triumphs of hopes. He found himself baffled in every modern learning under the lead of Bentham attempt to discover its nature, define its and Austin and their co-adjutors and dis boundaries or assign it to its proper place ciples in England, and Livingstone, Field, in the science of judicature. Perhaps he and their co-workers in America, to have even grew incredulous in regard to its restored to proper relations with its long existence, and came to regard it as a myth by which the elders of the profession estranged kindred. But what is this Common Law, of which consoled themselves for the existence of the practitioner speaks so glibly, and very conditions for which they could not account. often, it is to be feared, very loosely, is still It is possible that — like an eminent prac the question which constantly recurs to the titioner who has pictured that period in puzzled student's thought? unmistakable colors in a fancied life, they It used to be said by the pilots on the came to think of the "Common Law as a great rivers of the West that one is never scientific term for unscientific nonsense." Probably every practitioner recognizes competent to take the wheel and be respon sible for boat and passengers and cargo, the fact that a time came — he may not until he could "put the river together," know how nor be able to specify time and — that is, begin at its source and give every place — when he thought and spoke of landmark, its distance and bearing from the Common Law with a certainty and any other to its mouth, or beginning at any comprehension he had never felt before,
