Washington Law Review


G. F. Curtis


In contrast, the common law had its origins in the decisions of judges, and its growth through the cases. The legal system thus built is one of the imposing products of the human mind; and all who serve it are justly proud of it. Not a little of the literature of our system, indeed, is concerned to assert the superiority of the case method. "Law grows, and though the principles of law remain unchanged, yet (and it is one of the advantages of the common law) their application is to be changed with the changing circumstances of the times. Some persons may call this retrogression; I call it progression of human opinion," said a nineteenth century English judge. His sentiments are echoed time and again from the Bench and from the rostrum. It is my purpose to raise for your consideration whether this description remains accurate and this appraisal valid. Are we not in a new, situation from our predecessors; and if we are, how suited are our techniques-of instruction, of advocacy, of decision-to the new conditions? In all the long and uninterrupted history of the common law to the end of the nineteenth century and well into the twentieth century (a span of some 800 years), the fashioning of the law was almost wholly in the hands of the legal profession. Only fitfully had resort been made to the legislature in building the system. So much is this so that the historians single out the reigns of the first Edward and the Tudors as exceptional by reason of the legislative activity of those times, an activity which, while it left its mark on the law, was short lived. Indeed, the writers can scarcely conceal their relish as they recite how the ingenuity of the old conveyancers, with the co-operation of the Court of Chancery, managed to circumvent the Statute of Uses and put aside the fiscal purposes of that piece of Tudor legislation—as neat a bit of tax avoidance as a modern tax expert could wish for. [Lectura at the Annual Order of Coif Banquet, July 22, 1964, Seattle, Washington.]

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