The tenacity of the common law is first noted. After celebrating its triumphs and its ascendency over all forms of law with which it has come into contact, Mr. Pound says, "Superficially, then, the triumph of the common law seems assured." But he fears that there are dangers to be met; the first is that of legislation, and he cites Maitland and Brunner as sounding the cry of danger from over-legislation. He does not think their fears, from this cause, well-founded, however, but the danger he foresees is a new one. The people have in all times in the past been with the common law; now they are against it. Recent decisions uphold the freedom of the individual to contract; deny the rights of the people to "stand between a portion of our people and oppression." He cites decision after decision to substantiate this statement, and he succeeds. But the cases he cites are all cases in which the lines are drawn with great distinctness between labor and capital. Is this not where the trouble lies?
Is it the common law which is against the people, or is it that the courts for a time inevitably interpret the sentiments of the class from which the judges are drawn? To say "by which the judges are influenced," might be too severe. The people were with the common law because the common law was with the people, and the common law has not changed. It has been contended, and with ability, that in the common law we have a weapon with which to defend every right of the people which has of late years been assailed. Mr. Pound himself asks, "What is the spirit of the common law?" And he finds it to be, in effect, the spirit of the people, and that it has within itself the means of bringing it in touch with the spirit of the people. He finds the weapon at hand to be the police power.
If the police power were not at hand, there would be some other weapon. For the common law is the breath of the people, and while they live and breathe the common law will survive. It seems not so much the protection of individual rights, as Mr. Pound contends, that is so securely safe-guarded to-day, as the sacred rights of property; it is the subordination of the individual, singly and collectively, to the accumulated power of property, against which the people revolt. When the courts remember, what they temporarily seem to have forgotten, that laws were made first for the protection of the individual, secondly for the protection of property; that a man or a collection of men have supreme rights, and that the property they own has only secondary rights, the people will have come to their own again, and the spirit of the common law will once more be one with that of the people.
–University of Pennsylvania Law Review, Vol. 54 [1906]