第8章

The doctrine of consideration is merely historical.The effect given to a seal is to be explained by history alone." The powers and functions of an executor, the distinctions between larceny and embezzlement, the rules of venue and the jurisdiction over foreign trespass, these are a few haphazard illustrations of growths which history has fostered, and which history must tend to shape.There are times when the subject matter lends itself almost indifferently to the application of one method or another, and the predilection or training of the judge determines the choice of paths.The subject has been penetratingly discussed by Pound.8 I borrow one of his illustrations.Is a gift of movables inter vivos effective without delivery? The controversy raged for many years before it was set at rest.Some judges relied on the analogy of the Roman Law.

Others upon the history of forms of conveyance in our law.With some, it was the analysis of fundamental conceptions, followed by the extension of the results of analysis to logical conclusions.The declared will to give and to accept was to have that effect and no more which was consistent with some pre-established definition of a legal transaction, an act in the law.With others, the central thought was not consistency with a conception, the consideration of what logically ought to be done, but rather consistency with history, the consideration of what had been done.I think the opinions in Lumley v.Gye, 2 El.& Bl.216, which established a right of action against A.for malicious interference with a contract between B.and C., exhibit the same divergent strains, the same variance in emphasis.

Often, the two methods supplement each other.Which method will predominate in any case may depend at times upon intuitions of convenience or fitness too subtle to be formulated, too imponderable to be valued, too volatile to be localized or even fully apprehended.Sometimes the prevailing tendencies exhibited in the current writings of philosophical jurists may sway the balance.There are vogues and fashions in jurisprudence as in literature and art and dress.But of this there will be more to say when we deal with the forces that work subconsciously in the shaping of the law.

If history and philosophy do not serve to fix the direction of a principle, custom may step in.When we speak of custom, we may mean more things than one."Consuetudo," says Coke, "is one of the maine triangles of the lawes of England; these lawes being divided into common law, statute law and customs." 9 Here common law and custom are thought of as distinct.Not so, however, Blackstone: "This unwritten or Common Law is properly distinguishable into three kinds: (1) General customs, which are the universal rule of the whole Kingdom, and form the Common Law, in its stricter and more usual signification.

(2) Particular customs, which for the most part affect only the inhabitants of particular districts.(3) Certain particular laws, which by custom are adopted and used by some particular courts of pretty general and extensive jurisdiction." 10Undoubtedly the creative energy of custom in the development of common law is less today than it was in bygone times.11 Even in bygone times, its energy was very likely exaggerated by Blackstone and his followers."Today we recognize," in the words of Pound, 12 "that the custom is a custom of judicial decision, not of popular action."It is "doubtful," says Gray, 13 "whether at all stages of legal history, rules laid down by judges have not generated custom, rather than custom generated the rules." In these days, at all events, we look to custom, not so much for the creation of new rules, but for the tests and standards that are to determine how established rules shall be applied.When custom seeks to do more than this, there is a growing tendency in the law to leave development to legislation.Judges do not feel the same need of putting the imprimatur of law upon customs of recent growth, knocking for entrance into the legal system, and viewed askance because of some novel aspect of form or feature, as they would if legislatures were not in frequent session, capable of establishing a title that will be unimpeached and unimpeachable. But the power is not lost because it is exercised with caution."The law merchant," says an English judge, "is not fixed and stereotyped, it has not yet been arrested in its growth by being moulded into a code; it is, to use the words of Lord Chief Justice Cockburn in Goodwin v.Roberts, L.R.10 Exch.346, capable of being expanded and enlarged to meet the wants of trade." 14 In the absence of inconsistent statute, new classes of negotiable instruments may be created by mercantile practice.15 The obligations of public and private corporations ma y retain the quality of negotiability, despite the presence of a seal, which at common law would destroy it."There is nothing immoral or contrary to good policy in making them negotiable if the necessities of commerce require that they should be so.A mere technical dogma of the courts or the common law cannot prohibit the commercial world from inventing or issuing any species of security not known in the last century." 16 So, in the memory of men yet living, the great inventions that embodied the power of steam and electricity, the railroad and the steamship, the telegraph and the telephone, have built up new customs and new law.Already there is a body of legal literature that deals with the legal problems of the air.