Part 1 to blupete's Essay
"The Common Law"
Common law is law that comes from the common people, vers., legislation, which, comes from the "experts."
Common law comes about at the root levels of society: it is not law that is imposed by some authority from on high. The development of common law was "essentially a private affair concerning millions of people throughout dozens of generations and stretching across several centuries." It is a process that is self adjusting and which goes on everyday unnoticed, without great expense to the state and with out fractionalizing society. This is to be compared to the legislative process, a comparison I make elsewhere.
Before getting into the specifics of the common law, let me first set forth a small speech given in 1875 by an obscure judge. The name of the judge was The Honourable Joseph Neilson, Chief Justice of the City Court of Brooklyn. He gave this address at some sort of a gathering, (not in a court, I don't think). The publisher of the book2 in which I discovered this short speech, entitled it "The Growth of Principles."
"At the sea shore you pick up a pebble, fashioned after a law of nature, in the exact form that best resists pressure, and worn as smooth as glass. It is so perfect that you take it as a keepsake. But could you know its history from the time when a rough fragment of rock fell from the overhanging cliff into the sea, to be taken possession of by the under currents, and dragged from one ocean to another, perhaps around the world, for a hundred years, until in reduced and perfect form it was cast upon the beach as you find it, you would have a fit illustration of what many principles, now in familiar use, have endured, thus tried, tortured and fashioned during the ages. We stand by the river and admire the great body of water flowing so sweetly on; could you trace it back to its source, you might find a mere rivulet, but meandering on, joined by other streams and by secret springs, and fed by the rains and dews of heaven, it gathers volume and force, makes its way through the gorges of the mountains, plows, widens and deepens its channel through the provinces, and attains its present majesty. Thus it is that our truest systems of science had small beginnings, gradual and countless contributions, and finally took their place in use, as each of you, from helpless childhood and feeble boyhood, have grown to your present strength and maturity. No such system could be born in a day. It was not as when nature in fitful pulsations of her strength suddenly lifted the land into mountain ranges, but rather, as with small accretions, gathered in during countless years, she builds her islands in the seas.The common law is a great scientific lab, the resources and results of which are brought to bear on the populations which are fortunate enough to possess an English common law tradition, such as exists, for example, in: Canada, the United States and Australia. My use of the adjective, "scientific," will be better appreciated after one reads my essay, Siren's Song. Sufficient to say here, at this place, that nature is the great and ultimate scientific testing lab, and it always, in time, shakes out the truth. Whether we appreciate it, or not, for hundreds of years: the common law tests, observes, adjusts and re-observes on a continual bases.
"It took a long time to learn the true nature and office of governments; to discover and secure the principles commonly indicated by such terms as 'Magna Charta,' the 'Bill of Rights,' 'Habeas Corpus,' and the 'Right of trial by jury;' to found the family home, with its laws of social order, regulating the rights and duties of each member of it, so that the music at the domestic hearth might flow on without discord; the household gods so securely planted that 'Though the wind and the rain might enter, the king could not'; to educate noise into music, and music into melody; to infuse into the social code and into the law a spirit of Christian charity, something of the benign temper of the New Testament, so that no man could be persecuted for conscience sake, so that there should be an end of human sacrifice for mere faith or opinion; the smouldering fires at the foot of the stake put out, now, thank God, as effectually as if all the waters that this night flood the rivers had been poured in upon them. It took a long time to learn that war was a foolish and cruel method of settling international differences as compared with arbitration; to learn that piracy was less profitable than a liberal commerce; that unpaid labor was not as good as well-requited toil; that a splenetic old woman, falling into trances and shrieking prophecies, was a fit subject for the asylum rather than to be burned as a witch.
"It took a long, long time after the art of printing had been perfected before we learned the priceless value, the sovereign dignity and usefulness of a free press.
"But these lessons have been taught and learned; taught for the most part by the prophets of our race, men living in advance of their age, and understood only by the succeeding generations. But you have the inheritance."
The fact of the matter is that there exists all around us a great body of law which has not ever been (nor could it be) written down in one spot. In a way, it's, it's more of a process which has a single guiding rule, the "golden rule," a negative rule: "Don't do something to someone that you don't want to have visited on yourself, either directly or through the agency of a government." Though it has suffered much at the hands of legislators, common law is yet followed in all major English speaking nations around the world. Common law to England was and is its very force. The greatness of England, certainly in the past, is attributable, I would say fully attributable, to the stabilizing and enriching institution that we have come to know as common law. This subject of the common law is a great and wonderful subject: its evolutionary development and its great benefits make it the most superior law system known in the world, as history will readily tell.
The common law is as a result of a natural sequence which hardened first into custom and then into law. It did not come about as an act of will, as an act of some group aware only of the instant moment, unaware of the nature and history of man. It came about as a result of a seamless and continual development, through processes we can hardly begin to understand; it evolved along with man.
If we were to take the common law, figuratively speaking as a huge tent and net, so to cover and hold safe all those engaged in the human circus, we may liken the guys or supporting lines to tradition and culture.
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TABLE OF CONTENTS
[Essays, First Series]
[Essays, Second Series]
[Essays, Third Series]
[Essays, Fourth Series]