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process. Anglicized law merchant has become, to a certain extent, insular; but if we must admit so much to its disadvantage, I believe it is, on the other hand, a wider, richer, and more flexible system than is to be found in the commercial codes of France and her imitators, who have stereotyped mercantile usage and business habits as they existed in the seventeenth century. We have, indeed, preserved antiquated forms, but we preserve them because every clause and almost every word carries a meaning settled by modern decisions. A policy of marine insurance is to our current maritime law somewhat as a text of the praetor's edict to a title of the digest built upon it. And this does not prevent further development. The courts cannot contradict what has already been settled as law, but the power of taking up fresh material is still alive, as we have been assured by high authority in England within the present generation.
Can we rest here in contemplating the past work and present activity of the common law? We cannot forbear, I think, to look to the future and consider what security we have for the maintenance of this vital unity. Ten years ago the Supreme Court of the United States declared, in a judgment of admirable clearness and good sense, which I trust will be followed in England when the occasion comes, that in matters of general commercial principle a diversity of the law as administered on the two sides of the Atlantic ... is greatly to be deprecated.” Shall this remain for all time a mere deprecation, appealing forcibly, no doubt, to the best sense of our highest tribunals, but still subject to human accidents ? Is there not any way, besides and beyond the discussion of lawyers in books and otherwise, of assisting our ultimate authorities to agree? Would not the best and surest way be that in matters of great weight and general importance to the common law, they should assist one another ? Certainly there are difficulties in the way of any such process; but is there, in truth, any insuperable difficulty? The House of Lords, as we know, is entitled to consult the judges of the land, though not bound either to consult them in any particular case or, when they are consulted, to decide according to their opinion or that of the majority.
There is nothing I know of in our constitution to prevent the House of Lords, if it should think fit, from desiring the judges of the Supreme Court of the United States, by some indirect process,
if not directly and as a matter of personal favor, to communicate their collective or individual opinions on any question of general law; nor, I should apprehend, can there be anything in the constitution of that most honorable court, or the office of its judges, to prevent them from acceding to such a request, if it could be done without prejudice to their regular duties. It would be still easier for the Privy Council, a body whose ancient powers have never grown old, and whose functions have never ceased to be expansive and elastic, to seek the like assistance. And if the thing could be done at all, I suppose it could be done reciprocally from this side, with no greater trouble. Such a proceeding could not, in any event, be common. It might happen twice or thrice in a generation, in a great and dubious case touching fundamental principles, like that of Dalton v. Angus, — a case in which some strong American opinions, if they could have been obtained, would have been specially valuable and instructive.
Could the precedent be made once or twice in an informal and semi-official manner, it might safely be left to posterity to devise the means of turning a laudable occasional usage into a custom clothed with adequate form. As for the difficulties, they are of the kind that can be made to look formidable by persons unwilling to move, and can be made to vanish by active good will. Objections on the score of distance and delay would be inconsiderable, not to say frivolous. From Westminster to Washington is for our mails and dispatches hardly so much of a journey as it was a century ago from Westminster to an English judge on the Northern or Western circuit. Opinions from every supreme appellate court in every English-speaking jurisdiction might now be collected within the time that Lord Eldon commonly devoted to the preliminary consideration of an appeal from the Master of the Rolls. At this day there is no mechanical obstacle in the way of judgments being rendered which should represent the best legal mind, not to this or that portion of the domains that acknowledge the common law, but of the whole. There is no reason why we should not live in hope of our system of judicial law being confirmed and exalted in a judgment-seat more than national, in a tribunal more comprehensive, more authoritative, and more august than any the world has yet known.
Some one may ask whether we look to see these things ourselves, or hope for them in our children's time. I cannot tell; the movement of ideas will not be measured beforehand in days or years. Our children and grandchildren may have to abide its coming, or it may come suddenly when we are least hopeful. Dreams are not versed in issuable matter, and have no dates. Only I feel that this one looks forward, and will be seen as waking light some day. If any one, being of little faith or over-curious, must needs ask in what day, I can answer only in the same fashion. We may know the signs, though we know not when they will come. These things will be when we look back on our dissensions in the past as brethren grown up to man's estate and dwelling in unity look back upon the bickerings of the nursery and the jealousies of the class-room; when there is no use for the word “foreigner” between Cape Wrath and the Rio Grande, and the federated navies of the English-speaking nations keep the peace of the ocean under the Northern Lights and under the Southern Cross, from Vancouver to Sydney, and from the Channel to the Gulf of Mexico; when an indestructible union of even wider grasp and higher potency than the federal bond of these States has knit our descendants into an invincible and indestructible concord.
For that day is coming too, and every one of us can do something, more or less, to hasten it; of us, I say, not only as citizens, but as especially bound thereto by the history and traditions of our profession which belong to America no less than to England. If we may deem that the fathers and founders of our policy can still take heed of our desires and endeavors, if we may think of them as still with us in spirit, watching over us and peradventure helping us, then surely we may not doubt that in this work Alfred and Edward and Chatham are well pleased to be at one with Washington and Hamilton and Lincoln. Under the auspices of such a fellowship we, their distant followers, are called ; in their names we go forward; it is their destiny that we shall fulfil, their glory that we shall accomplish.
This, and nothing less than this, I claim here, an Englishman among Americans, a grateful guest, but no stranger, for the full and perfect vocation of our common law.
Frederick Pollock, LL. D., '95.
HOLMES, WINTHROP, HOAR. 1
“ Each passing year some treasure steals away;"
The old refrain — so trite, and yet so new;
What sage, what seer has ever held in view!
Our eldest brethren thrice has fate assailed;
October's leaves to earth our poet drew;
And winter's blast our counselor o'erthrew.
Wide o'er the land their funeral praise hath rung
For thoughts and words enchanting, bold, and wise ; Yet shame, were here their elegy unsung,
Vocal with chords that love alone supplies.
Our laureate bard! Still, with electric play,
His Muse round us her points and brushes throws; Still, with the jasmine of Phi Beta's day,
Blends the weird fragrance of his tuberose.
While humor's elf shall mock the fiend of care,
While songs refresh the scholar's musty tomes,
Wit, song, and stars find shelter in our Holmes.
Our white-haired statesman! Heir to Pilgrim fame,
Twined with his sire's renown his own he scrolled,
The stately order of those worthies old.
Far o'er the gulf of war to memory ring
The favoring shouts that hailed his manhood's prime;
1 Read at the Phi Beta Kappa dinner, June 27, 1895.
And Harvard's loyal sons their leaf shall bring
To Winthrop’s civic crown, unseared by time.
Our stalwart judge! How frank and bluff he cast
His hearty jests round our fraternal board! Gay whitecaps, dancing upon billows vast
From caverns deep of thought and feeling poured.
Tingling each hour with tales of Concord fight,
As though from Naseby rose an Ironside, To us his presence beamed with genial light,
And to our Hoar was never frost allied.
Holmes, Winthrop, Hoar! through man's appointed time
Full in our sight they trod the grand review; So let our record swell their passing chime,
To friendship, honor, duty, Harvard, true.
Past beyond strife, beyond mean cavil past,
Our country's sky gives every star its sphere; Since from such rays our horoscope is cast,
Their light be ours, to guide, to warn, to cheer.
The old must fall; we elders take our turn;
Youth presses manhood; each their losses know; Pass, brothers, pass the torch; where'er it burn, Responsive sparks in heroes' ashes glow.
William Everett, '59.