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The Green Bag
creator of the common law. We have said that the Roman law was the special creation of the lawyer, as the common law is the creation of the judge. Can we not say that the Roman law system grew out of the code of rules prescribed by the sovereign for the government of his subjects, while the common law system developed from those regulations formulated by the people for their own observance and for the government of their sovereign? The Anglo-Saxons had developed a system of their own before they were conquered by the Normans, but so great was their force of character that they soon absorbed the Normans, adopting such of their characteristics as were good and rejecting the rest. They could not accept complaisantly their system of jurisprudence, though they did adopt such features of it as were better than their own. Bracton was the originator of that distinctive feature of the common law system, the dependence on decided cases as precedents. Out of his method grew the doctrine of stare decisis. Because of this maxim we are blessed, or cursed, with the vast accumulations in our libraries of the volumes of reported deci sions. Nor are we satisfied with the printed opinions of our own judges, but must collect those of Great Britain, and those of other lands beyond the seas, wherever the common law system pre vails. At the opening of this twentieth cen tury, because of our blind devotion to precedent, we hear the criticism that in the practice of law,—in our own country at least,—we aim not to estab lish substantial justice between the
parties to an action, but to play the game according to the rules, to observe the forms regardless of inherent rights; that the court is no longer a dispenser of justice, but an umpire in the pro fessional game played by the opposing counsel. Such has been the far-reaching influ ence of Bracton on the common law system. The influence of Blackstone extends in an entirely different direction. He made the study of the law popular. Before he gave his first lectures the law was studied only by those who were to take up its practice as a profession. From the beginning, we are told, his lectures "were attended by a very crowded class of young men of the first families, characters and hopes." Upon the publication of the Commentaries, written in his comprehensive style, his following became greater. If Blackstone had not written, Stephen would prob ably not have written his Commentaries, which are now so popular and, in Eng land, have so largely superseded Black stone; nor would Kent have written his Commentaries on American law, at least in the style which he adopted, and which have largely become, in our own coun try, the first books of the law. The making of the study of the law popular, and comparatively easy, has resulted in the gathering together of that vast army of legal practitioners, which can exert so great an influence in the affairs of life. Indirectly this can be traced to Blackstone's influence. His name will be as intimately connected with the common law, so long as that system shall endure, as is the name of Justinian with the civil law.
