12
THE GREEN BAG
A very high authority has added materi ally to the complexity of the subject by declaring that the "lex non scripta" is law not written by the authority of law. Could confusion itself be worse confounding? If we keep on improving our definitions in this manner —• and this is by a noted Ameri can judge — we shall soon have some con ceited legal sensationalist asserting that the Common Law is unlawful law. The truth is that no law can be formulated except by authority of law. Common Law — the lex non scripta. — is actually and truly unwritten still, just as much as it was when the opinions of the judges were perpetuated only by oral tradition, or in the case-book of the practitioner. But the volumes of the reports are not law. Neither are they, as has been sometimes declared, the evidence of what the law is. A paper-writing is ipso facto, evidence of a contract. The record of a court is evidence of what the court has done. But the volumes of re ports are not evidence of what the unwritten law is, they are only evidence of what certain experts, at particular times and under certain conditions, believed the un written law to be. The judge, so far as the construction of statutes or the formulation of non-statutory principles of law is concerned, is simply an authorized expert, while the text-writer is simply a voluntary or unauthorized expert. The process of development in the Common Law — the evolution of what we call Com mon Law principles — is of the simplest and most natural character. A decides that under certain conditions the law is thus and so : B endorses his opinion in a similar case, C in another and so on it may be for years, it may be for centuries, until there is established a line of decisions from which a general principle is deducjble. This is said to be the law; yet it loses the character of law as soon as the conditions on which it rests are changed or its underpinning of logic fails. Such form ulations are properly termed "opinions" —
the opinions of experts. They hold good in the cases determined and are what we term authority in certain others, but their founda tions are always open to assault. By keeping this fundamental fact in view you will perceive that the whole field of equitable jurisdiction is a part of the lex non scripta, a part of that Common Law which, distinguishes English judicature from all other systems, and which, though it may be gathered from books, has never been written and never can be written — meaning by the term "written" finally and authoritatively formulated. But is nothing then ever settled at the Common Law? Theoretically, never: prac tically, a long line of decisions is much more difficult to flex or modify than a statute. A judge who would not hesitate to construe a statute out of all resemblance to what he may well know to be the legislative intent, upon the ground that the law-making power must have intended to act justly — knowing all the time that they really meant to act unjustly — would shrink back ap palled from an attempt to overthrow a strong line of decided cases, though he might see clearly enough that the logic on which they rested, if it was ever good, had ceased to be conclusive. As pertinent examples of this fact may be cited the Common Law forms of action. They were nearly always within the control of the court which administered them — always in England and usually in the United States. Every judge knew that they were harsh, unnecessary, unjust and oppressive. He knew that he was violating the highest function of the judge when he kicked a suiter out of court and made him pay costs for his attorney's error in de claring in covenant when he ought to have sued in assumpsit. He knew, too, that Equity was only another name for injustice when it required law to be asserted by piecemeal and the judge and chancellor played at shuttlecock with the suitor's rights, and the lawyer pocketed an equal
