The Influence Of National Character And Historical Environment On The Development Of The Common Law

( Originally Published 1913 )

ADDRESS DELIVERED TO THE AMERICAN BAR ASSOCIATION AT ITS ANNUAL MEETING IN PORTLAND, MAINE, AUGUST, 1907.

Not long ago I had occasion to read an opinion rendered on a point of law by an eminent legal practitioner in a Spanish-American country. The point itself was one which might have arisen equally well in the United States or in England. But the way of approaching it and dealing with it, the turn of thought and the forms of expression, were curiously unlike those which one would have found in anyone trained in the Common Law whether in the United States or in England. This unlikeness pointed to some inherent difference in the way of looking at and handling legal questions. Many of you have doubtless had a similar experience, and have been similarly led to ask what is at the bottom of this difference between the legal ideas and legal methods of ourselves whose minds have been formed by the study of the Common Law and the ideas and methods of the lawyers who belong to the European continent or to South and Central American States. French, German, Italian, Spanish lawyers are all more like one another than any of these are to Englishmen or Americans.

The causes of this difference lie far back in the past. It would have been discernible in the seventeenth century, and might indeed have been even more marked then than it is now. Two hundred years ago the law of England had already acquired a distinctive quality, and that quality has remained distinctive until now, both here and in Old England, although the substantive provisions of the law have been changed in many respects by the economic and social progress which the two branches of the race have made, and by the new conditions under which those branches live. We may still with truth speak of the Common Law as being the common possession of the United States and of England, because that spirit, those tendencies, those mental habits which belonged to the English stock when still undivided have been preserved. The causes that produced them belong to a period long anterior to 1776, when the ancestors of Marshall, Kent, Story, Taney, Webster, Curtis, were living in English villages side by side with those of Coke, Hale, Holt, Hardwicke, Blackstone, Eldon, and the other sages who adorn the English roll of legal fame. These causes were indeed at work far back in the Middle Ages. Just as the character of an individual man is in its essence formed before he attains manhood, though the circumstances of his life modify it, giving prominence to some parts of it and leaving others undeveloped, so in those early centuries were formed that set of ideas and that type of mind which took shape in the provisions and the procedure of the old law of England. The substance of these pro-visions was partly general, that is, such as must exist in every organized and civilized society, partly special, such as the particular conditions of the country and the time needed. The form was due to the lawyers, whether judges, writers, or practitioners. Now the form has greatly affected the substance, and has proved hardly less permanent. When we study the growth of the Common Law we must think not only of the rules of inheritance, the doctrine of consideration for a contract, the conception of felony, the definition of manor ; we must think also of the forms of actions, of the jury, of the authority of decided cases. All these were already well settled before the first English colonist set foot on the American continent. They had become part of the life and legal consciousness of the nation.

What would an observer who had studied legal history in general select as the distinguishing qualities, the peculiar and characteristic notes of the Common Law?

First, its firm grasp of the rights of the individual citizen. He is conceived of, he is dealt with, as a centre of force, an active atom, whirling about among other atoms, a person in whom there inhere certain powers and capacities, which he is entitled to assert and make effective, not only against other citizens, but against all other citizens taken together ; that is, as against the state itself and its visible embodiment or organ, the executive government.

Secondly, its recognition of the state and the executive as clothed with the authority of the whole community, as being an effective power, entitled to require and compel the obedience of the individual wherever and whenever it does not trespass on the rights which are legally secured to him. To be effective, law must have not only physical force behind it, but also the principle of legitimate authority, the sense in every citizen that his individual free will has its limits, and can be exerted only within the sphere allotted to it. Liberty is, in a civilized community, the child of law. It is not his own pleasure, but the fact that the community has recognized a certain sphere of unchecked action as belonging to him, within which he can do as he pleases, that secures the citizen in his rights. Outside that sphere he must not only obey, but cooperate with the executive. It is his duty to aid in preventing a crime, in suppressing disorder, in arresting an offender. A sheriff exercising his functions can call on all persons present to support him, and they are bound to support him, a wholesome and, if you like, a truly democratic doctrine. The law is the people's law, not only in its origin, but also for the purpose of its enforcement.

These two principles go together. The one is a safeguard against Tyranny, i.e. the absolute and capricious will of the governing power, the other against Anarchy, i.e. that unrestrained and unlimited exercise of the will of each and every citizen which must result in collision, disorder, and the triumph of mere force.

It may be suggested that these two principles are not peculiar to the Common Law, because no law could grow up, and no state could prosper, without both of them. That is true. But there have been systems of law in which sometimes the one, sometimes the other, principle was imperfectly developed, and (so to speak) overweighted by the other. The former principle especially (viz. the recognition of the rights of the citizen) has often been quite too weak to secure due protection to the individual man. It is the clearness with which both have been recognized, the fulness with which both have been developed, in the mediæval and post-mediæval English law that constitute its highest merit.

From the equal recognition of these two principles there follows a third characteristic. If principles apparently antagonistic are to be reconciled, there must be a precise delimitation of their respective bounds and limits. The law must be definite and exact. Now precision, definiteness, exactitude are features of the Common Law so conspicuous that the unlearned laity sometimes think they have been developed to an inordinate degree. They have made the law not only very minute, but very technical. But of this anon.

With the love of precision there naturally goes a love of certainty and fixity. The spirit of the Common Law is a conservative spirit, which stands upon what exists, distrusting change, and refusing change until change has become inevitable. "Stare super antiques Dias:" "Nolumus leges Anglice mutari" (the words of the barons at the council of Merton in Henry the Third's day) : "It is better that the law should be certain than that the law should be just," these were favourite dicta among the lawyers of the old school in England.

The respect for what has been settled, and the desire that what has been settled should be definite in its terms, import a deference to precedent. No legal system, not even the Mussulman law, grounded on Koranic interpretation and traditions, has ever gone so far in obedience to what was ruled in the past as the Common Law does in basing itself on cases judicially determined and recorded.

Judicial decisions are given, legal precedents are made, as events bring them. There is no order among them except the chronological. Thus a law constructed out of them is necessarily wanting in symmetry. The Common Law is admittedly unsymmetrical. Some might call it, as a whole, confused, however exact may be the propositions that compose it. There are general principles running through it, but these are often hard to follow, so numerous are the exceptions. There are inconsistencies in it, where decisions apparently conflicting have been given by different authorities at different times. There are gaps in it, where no decision has happened to cover a particular set of circumstances. Thus there has been formed a tendency among lawyers to rate principles, or, let us say, philosophical and logical views of the law, very low compared with any positive declaration made by a court. The maxim, "An ounce of precedent is worth a pound of principle," still ex-presses the attitude of the profession in England, and very possibly here also.

With the love of certainty and definiteness there goes a respect for the forms of legal proceedings and for the precise verbal expression given to rules. This is a quality which belongs to most legal systems in their earlier stages. It was very highly developed in the early days of Rome and the early days of Iceland. In the Common Law it held its ground with great pertinacity till quite recently, both in England and here ; nor am I sure that it is not now strong in some of your states, possibly stronger than in the England of to-day, in which, especially since the sweeping changes made by the Judicature Act of 1873, the old distinctions between forms of actions are being forgotten.

You may think that among the features that characterize our Common Law I ought to name the love of justice and also the fondness for subtle distinctions. I do not, however, dwell on the latter of these, because it belongs to all legal systems that reach a certain point of development, and is even more evident in some others than in our own. The robust common sense which is inherent in the Common Law seldom encouraged fine distinctions to go beyond a certain point. As for the love of justice, it belongs to mankind generally, and to all systems of law. Such differences as may be noted between different peoples consist not in the reality of the wish to give every man his due, — suum cuique tribuere, — but in the self-control which prevents emotional impulses from overriding justice, in the practical good sense which perceives that to allow the forms of law to be neglected or unusually harsh treatment to be inflicted where a cause or a person happens to be unpopular, is really to injure the community by impairing the respect for law itself and the confidence in its administration. Englishmen and Americans may claim that although, like others, they have sometimes lapsed from the right path, they have, on the whole, restrained their passions from trampling upon justice, and upon the regular methods of securing justice, better than most nations have done.

The foregoing characteristics of our Common Law are submitted for your consideration, not as being the only ones which belong to it, for others might be added, but as being characteristics so broad and salient as to make it comparatively easy to discuss them and to endeavour to account for them. Some are found in all systems that have reached a high level of scientific development, being indeed qualities without which no system could be deemed excellent. Only one other system, the Roman, possesses them in so large a measure as to deserve comparison.

To what are we to ascribe these features distinctive of the Common Law ? The in-dwelling qualities of the race of men who built it up must have been a principal and indeed the primary cause. The mind and character of a people are indeed more exactly and adequately expressed in and through its law and institutions than they are through its literature or its art. For books and paintings are the work of individual men, many of whom may have been greatly influenced by foreign ideas or foreign models ; and some of whom, powerful enough to influence their successors, may not have been typical representatives of the national genius. But laws are the work of the nation as a whole, framed indeed by the ruling class, and shaped in their details by a professional class, but to a large extent created by other classes also, because (except in those few cases where a conqueror imposes his own law on the vanquished) the rules which govern the relations of the ordinary citizen must be such as suit and express the wishes of the ordinary citizen, being in harmony with his feelings and fitted to meet the needs of his daily life. They are the offspring of custom, and custom is the child of the people. Thus not only the constructive intellect of the educated and professional class but the half-conscious thought and sentiment of the average man go to the making and moulding of the law. It is the outcome of what German philosophers call the legal mind (Rechtsbewusstsein, or Legal Consciousness) of a nation.

But law is the product not of one or two generations, but of many. National character is always insensibly changing, and changing more rapidly the more advanced in civilization the nation becomes, the greater the vicissitudes in its fortunes, and the more constant or intimate its intercourse with other nations. Hence institutions become the expression of historical influences as well as of those original gifts and tendencies of a race or a people which we observe when it emerges from prehistoric darkness. Time and circumstances cooperate in the work. Law is the result of the events which mould a nation as well as of the mental and moral qualities with which the nation started on its career. These two elements are so mixed and blent in their working that it is hard to describe them separately. Nevertheless let us try. Let us begin by a glance at the inborn talents and temper of the English people, and then see how the course of history trained their powers and guided their action.

All the Teutons are strong, resolute, even wilful; and the Low Germans and Northmen were the most active and forceful branches of the Teutonic stock. Every man knew his rights and was ready to assert his rights by sword and axe. Not only so, — he was ready, where society had become advanced enough for courts to grow up, to assert his rights by legal process also. Read the Icelandic Sagas, in which records of killings and of lawsuits are mingled in about equal proportion, if you wish to realize how keen was the sense each freeman had of his own claims, and how resolute he was in enforcing them. Never was there a people more fond of legal strife than were the Norwegians and Danes, who spread themselves over East-ern Britain in the ninth and tenth centuries, or than their brethren, whom Rolf Ganger led to the conquest of the northern coast of France in the ninth century. The Norman peasant is proverbial to-day in France for his litigiousness.

In this self-assertiveness, however, there is no disregard of duly constituted authority. The primitive Teuton had his Folk Mot in England, his Thing in Nor-way and Iceland. He was loyal to his chief or king. He felt his duty to the community wherein he lived. He did not always obey the law, but he respected the law, and felt the need of its enforcement.

It belongs to a strong race to have the power of self-control. Our forefathers were fierce and passionate, like other half-civilized peoples, but they had this power, and they restrained themselves from overriding the process of law and letting passion work injustice many a time when men of other races, Greeks, or Slays, or Celts, would have yielded to their impulses. So too they had a latent solidity and steadiness which indisposed them to frequent or fitful change. Compared with their Slavonic neighbours to the east and their Celtic neighbours to the west, races at least as intellectually quick and intellectually fertile, the Teutons have always been of a conservative temper. This may be — so we like to think — a mark of good sense and patience, or it may be an attribute of dogged and slowly moving minds. Anyhow, there it is, and (as already remarked) it is, for the purposes of law-building, a merit of the first magnitude.

Further, the mediaeval English mind was of a practical rather than of a speculative type. It had plenty of acumen, plenty of logical vigour. But it did not run to the spinning of theories or the trying of experiments. This has been characteristic more or less of the English and the American mind, and, I may add, of the Low German or Dutch mind, ever since, as compared with the Scotch mind and with that of our brethren the High Germans of the European Continent. For those who were destined to create a great and complex legal system, it was an excellent quality. Speaking to an American audience, no one would venture to disparage ingenuity. The jurist needs it daily. But the jurist who is making the law needs caution and practical judgment even more ; and with all your ingenuity, it has never been your way either to run ahead of actual needs or to pull up the plant to see whether the roots are sprouting.

Here, then, we have noted five characteristics of those to whom we owe the Common Law. They were strong men and pugnacious men ; they respected authority ; they could at need control their impulses ; they were not given to change ; they were not fertile in theory or invention. With these qualities they started on the work of making law. How did the conditions of England from the twelfth to the eighteenth century affect them, and so guide their action as to bring out in the fulness of time the legal product we have inherited, a fruit very different from that which ripened under the sun of Germany or France ?

The English king in the Middle Ages was strong, stronger than the kings of France or Castile or Aragon. He was from the days of Henry II onwards effective master (except for brief intervals) of the whole realm. He was able to make his executive authority feared even if it was sometimes disobeyed. His writ ran everywhere. His judges travelling through the country brought the law to the sight of all men.

His aim, and that of his judges, was during the thirteenth and fourteenth centuries to build up one law, instead of the variety of the diverse customs such as had grown up in Continental Europe. Thus he and they must needs strive to make the law clear and certain. Such it became. Here and there, as in Kent and in some old boroughs, local land customs survived, yet not enough to mar the unity and definiteness of the law as a whole.

From good motives as well as bad ones, the king was tempted to stretch his authority, and make himself almost a despot. He was so strong over against the barons that they were obliged from time to time to ally themselves with the church — usually their antagonist — and with the middle class of small landholders and burghers. This alliance was in the interests of freedom and of a limitation of royal power. To it we owe Magna Charta, and the long line of restrictions there-after imposed on arbitrary government. Now Magna Charta is the declaration of one generally binding law. It enounces and consecrates, and is itself, LEX TERRAE, the law of the whole land, and of all persons therein. It is for us of the English stock the parent of all instruments defining the relation of citizen and sovereign, be the sovereign a king or the people. It is the ancestor of your own federal constitution, as well as of the "Bill of Rights" provisions of all State constitutions.

Just as the barons and the people were obliged to base themselves upon the solemnly made engagements of the Crown as the evidence of their immunities, so the Crown, acting through its judges, not being strong enough to make its own policy or view of what was right prevail as a mere exercise of the sovereign's own will, and desiring to have some positive authority to set against the texts quoted from imperial or papal law by the civilians or the canonists, was forced to rely upon acts previously done, and decisions previously delivered, and to found the law upon them. Thus both parties were led to appeal to and lay stress upon precedents. The rights which the law enforced were, as usually happens in early times, much involved with the procedure for enforcing them ; and the desire to secure uniformity of procedure in the king's courts led to the constant citation of judgments delivered on previous occasions. Under these conditions, and favoured by them, there grew up that habit of recording and following decided cases which is so eminently and indeed uniquely characteristic of the Common Law.

The balance of forces in English mediæval society appeared most clearly in the relations of lord and vassal. Each had unquestionable rights, and these rights were apt to come into conflict. The adjustment of conflicting claims gave constant occupation to the lawyers and the judges, and, while forming habits of exact thought and precise statement, it created a great mass of technical learning. The older English land law was indeed as intricate and elaborately artificial a body of rules as the world has ever seen. Though modified in some important points, it lasted with us until less than a century ago, when it began to be so cut about by amending statutes as to lose its ancient logical cohesion. For some reason or in some way which is not clear to most of us, many of its technical doctrines were held not applicable to land in North America, so you have escaped most of the complications it handed down to us. But the process which produced it left a deep impress on the law generally. Some of the faults, some also of the merits, of the Anglo-American way of handling legal questions are due to the ancient land rights and the procedure followed in trying the issues that arose under them.

English freedom, in the particular legal form it took, sprang out of feudal conditions. In reality, it was older than feudality, and had lost some of its simple Teutonic breadth when overgrown by feudal notions. But the structure of parliament and the right of parliament alone to impose taxes sprang out of the relation of the king (as feudal lord) to his tenants, which is in a certain sense a private relation as well as a political one. It is hardly too much to say that what we call the public or constitutional law of England is a part of, as it has certainly grown out of, the private law. Some of our fundamental constitutional principles have been established by decisions given in private suits. And although you in America can draw a sharper line between public and private law than can be drawn in England, because you have a written or rigid constitution, and we have, strictly speaking, no constitution at all, still the old character of the Common Law remains plainly visible in the fact that many of the most important questions that have arisen on the construction of your federal and state constitutions have arisen in suits between private parties, where the primary issue before the court was one in which the rights of those parties had to be determined.

I have referred to exactitude of thought and expression as one of the excellencies which we justly admire in the sages of the Common Law and particularly in the deliverances of the judges. That exactitude has become a feature of all our legal thinking and legal writing, and has in particular made us separate more clearly than the lawyers of most other nations do, considerations strictly legal from those which belong to the sphere of morality or sentiment. We owe this in no small measure to the old system of pleading which, slowly matured and refined to an excessive point of technicality, gave to the intellects of many generations of lawyers a very sharp edge. That system had the great merit of impressing upon them the need for distinguishing issues of law from issues of fact. The first lesson a student learns is to consider in any given case whether he ought to plead or to demur. It is a lesson of value to all of us in our daily life. Half the confusions of thought in the world, certainly not excepting the world of political discussion, arise because men have not learnt to ask themselves whether the issue is one of fact or of principle. "Do I deny the facts or do I dispute the inference ? Ought I to plead or to demur ?"

It is a remarkable fact that although the Common Law came into existence at a time when personal slavery was not extinct in England, and had reached an advanced state of development before prædial slavery or villenage had died out, the existence of slavery in the North American colonies had nothing to do with either English institution, but arose quite independently in colonial days. Though villenage existed at Common Law, and is said to have lasted into the seventeenth century, personal slavery does not, I think, stand re-corded and recognized in any English Common Law book of authority or in any decided case, and I suppose that the incidents of negro slavery in the colonies, doubtless practically assumed before anyone thought of specific legal sanction, were either parts of the general Common Law of personal property or else rested upon statutes of those colonies in which slavery existed. It may be observed in passing that although one might think that the recognition of the rights of man as man (i.e. as a human being) would be clearest and fullest in a country where there were no slaves, this may not in fact have been the case. Where some men are free and others are slaves, the status of freedom may have been conceived more sharply as a positive status, and the rights belonging to the individual as a freeman may have stood out more strongly, because he is legally exempt from treatment to which the slave is liable. As a freeman, he is prima facie the equal, as a holder of private civil rights, of all other free men, even though the latter may belong to a specially privileged caste. The history of the Roman law of persons lends colour to this view.

On no feature of the Common Law did your ancestors lay more stress than on the jury, and the right of every citizen to be tried by his peers. This right had been a bulwark of English freedom, and was deemed in the eighteenth century to be essential thereto. Yet it deserves to be noticed that the jury was an institution which, in the form familiar to us, arose almost by accident. The legal genius, or instinct, of the mediæval English may, however, be credited with the use they made of this accident. Darwin has shown how a variation from a type which in its origin is accidental, that is to say, due to some cause operative in an individual organism which is beyond our power of enquiry (do we quite know what we mean when we talk of chance ?), may become the source of a new type possessing advantages which enable it to survive and prevail and reach a higher level of efficiency than the original type possessed. So it may be not too fanciful to suggest that where a political or legal germ happens to fall in a fertile soil the virtue of the soil enables it to spring up and become the parent of a flourishing progeny. Our ancestors moulded the jury into an instrument serviceable not only for discovering the truth but for securing freedom and justice, freedom because it was practically independent of royal power, justice because, although it was sometimes intimidated, and occasionally even corrupted, it was usually less liable to be tampered with by those malign influences which might poison the mind or pervert the action of a judge in days when public opinion was ill-informed or weak. We, in England, have no longer that confidence in the wisdom of a jury in certain classes of civil actions which we once had, and the tendency of recent years has been to narrow the sphere of its employment. But the institution of the jury has had some notably beneficent results. Along with those rules of pleading to which I have already referred, it helped to form in us a keener sense of the need for separating issues of law from issues of fact than exists anywhere outside England and America, and it has trained us how to draw this distinction in every case we have to advise on or to argue. It has tended to keep judicial deliverances of the law within due limits of brevity, because when a judge finds himself tempted to wander off from a determination of legal points into the general merits of the case, he is reminded that the latter are for the jury, and that his natural human tendency to do what he thinks substantial justice must be restrained by the sense that his business is to declare the law and be content with advising the jury on the facts. It formed the practice of using, at a criminal trial, evidence almost exclusively oral, and thus incidentally it pre-vented both those secret examinations of the accused person and that recourse to torture which were common in Continental Europe. It confirmed the ancient usage of requiring judicial proceedings to be conducted in public, and thus kept subject to the watchful eye of popular opinion. And it mitigated that harshness of the penal law which belongs to all comparatively rude societies and was not removed from the English statute book till within the memory of persons still living. When men were liable to be hanged for small thefts, English juries refused to convict for such offences, and their refusal hastened the march of legislative reform.

The mention of penal matters suggests a word as to the extreme technicality of the older Common Law. Frequently as that technicality frustrated the doing of substantial justice in civil cases, it had its advantages in criminal proceedings. Often a prisoner who did not deserve a severe sentence — and no doubt sometimes also a prisoner who did — escaped on some technical ground. The Common Law, which had (as already remarked) the great merit of forbidding the use of torture, abominably frequent in Continental Europe and practised even in the free cantons of Switzerland till near the end of the eighteenth century, had also the merit of forming in the legal profession the feeling that an accused person ought to have a fair run for life or freedom. A sportsmanlike instinct grew up, like that which gives the hunted deer " law" or a fair start, or that which forbids certain tricks by which a game at cricket might be won. A judge who bullied a prisoner was condemned by professional opinion. A prosecuting counsel who overstated his case or betrayed a personal eagerness to convict the prisoner, incurred the displeasure of his brethren and was sure to hear of it afterwards. I have often been struck in our criminal courts by the self-restraint which experienced counsel impose on themselves when conducting a case, as well as by the care which the judge takes to let the prisoner have the benefit of every circumstance in his favour. Here one feels the tradition of the Common Law, which insisted on protecting the individual against the state. How different things are in some parts of the European continent is known to you all. It is partly because this good tradition has been so well preserved that we have in England found that convicted prisoners need comparatively few opportunities for raising points of law after the trial. The trial it-self almost always secures for them whatever justice requires, though of course there is a power of raising for subsequent argument points reserved.'

The mediaeval Common Law has been charged with one serious defect, that of lacking elasticity and the power of expansion. It halted at a certain point. It refused to deal, or I should perhaps say, its machinery proved incapable of dealing, with certain sets of cases, and left them to be taken up by the crown acting through the Lord Chancellor. I cannot stop to enquire how far this was due to an excess of conservatism in our forefathers, how far to the circumstances of the time, which, while circumscribing the action of the king through one set of machinery, left him free to act through another. Anyhow, the result was that the huge system which we call Equity grew up side by side with the Common Law, remained distinct from it in England until the Judicature Act of 1873, and I believe remains, in some states and to some extent, still distinct from it in the United States. In a broad sense, however, although, speaking technically, we distinguish Common Law from Equity, we may include Equity within the term Common Law, when we use this latter term to distinguish the law of England and America from the Roman law of the European continent, or of Louisiana and Spanish America. And it must not be forgotten that not only had Equity become a thoroughly positive system and a technical system by the time when the North American colonies were founded, but also that it had been largely influenced by the same historical environment and had been moulded by the same national tendencies as had governed the growth of the law administered in the Common Law courts. How much of its own precision and certainty the older system had given to the younger system may be seen by whoever will compare English Equity with the civil law of most European countries in the seventeenth century.

I have kept to the last the most striking of all the historical conditions which determined the character of Anglo-American law. England (or rather Britain) was an island. The influences which governed the development of law in the European mainland reached her in an attenuated form. The English people had the chance of making a new start and of creating a system of law for themselves, instead of merely adopting or adapting the Roman jurisprudence, as did, at various times and in diverse ways, the French, the Spaniards, the Germans, and (ultimately and indirectly) nearly all modern peoples except those of English stock. We must not indeed exaggerate the originality of our law. It is not as original as that of Iceland would probably have been, had Iceland gone on developing the legal customs she had formed by the middle of the thirteenth century. It is not original in the sense of owing little or nothing to foreign sources, for a great deal of law flowed from Roman fountains into the English stream. When (according to Gervase of Tilbury) the Lombard Vacarius taught the Roman law in the reign of King Stephen at Oxford — this is among the very first traces we have of that famous university — we cannot suppose that his hearers were confined to those who wished to practise in the ecclesiastical courts. In the next century we find Bracton, one of our earliest legal writers, copying freely from the Roman law books, though he frequently also contradicts them when English usage differed. In the fourteenth and fifteenth centuries the ecclesiastical chancellors who built up the system of Equity were much influenced by Roman legal doctrines, drawn largely through canonist channels. Still the fact remains that the law of England was a new creation, not an adaptation of the law of the Empire. It has a character and a quality which are all its own ; and its free spirit and tendencies have always stood out in marked contrast to the despotic spirit and tendencies which France, Spain, and Germany inherited from the imperial jurisprudence. To that jurisprudence it was, during the Middle Ages and the centuries that followed, as much superior in respect for freedom and in what may be called a popular flavour as it was inferior in respect of the philosophic breadth and elegance of the ancient sources on which that imperial jurisprudence was founded. The use of the jury, the far larger place assigned to oral evidence, the sharper separation of issues of law from issues of fact, are among the most salient points in which its distinctive and individual quality appears.

I had intended to have given you a brief sketch of the earlier history of the ancient Roman law for the sake of showing how the characteristics of that great rival system sprang from features in the national character of the Romans in their Republican days, not unlike those which marked our ancestors. The Romans too had a genius for law. Less imaginative, less artistic, less acute in speculation, altogether less intellectually versatile and alert than were the Greeks, they had a greater capacity for building up and bringing to an al-most finished and certainly unsurpassed perfection a body of legal principles and rules. They possessed this capacity in respect of gifts like those of our ancestors. They realized clearly the rights of the individual as against the state. They were conservative. They had the power of self-control. They were filled with practical good sense. But this great subject is too great to be dealt with at the end of an address, and I must be content with recommending it to the attention of those who are interested in these studies as throwing much light upon the general tendencies which have governed the growth of law. The best illustrations of English legal history are to be found in Roman legal history.

I have so far been speaking of the Common Law as a product of the English intellect under certain peculiar historical conditions. But if it was a result, it was also a cause. It reacted powerfully upon the people that made it. Just as the habit of physical or mental exercise strengthens the body or the mind where native energy has made exercise enjoyable, so the Common Law, once created, began to develop further and give more definite form to those very qualities of the nation whereto its own features were due. Under its influence the national mind became more and more permeated by the spirit of legality. It grew accustomed to resist arbitrary power, but as it did this in defence of prescriptive right, it did not lapse into revolutionary ways. Thus there was formed the idea of a government of limited powers, and the habit, when anyone claimed obedience, of requiring him to show his title to demand it. If it be asked why should not such a conception of the legal character of all authority be-long to, and arise in, every duly matured system of law, the answer is that the case of England stood alone in this respect, that the law came early to be recognized as being something more than an expression of the will of the monarch. It sprang partly out of the old customs, partly (and more as time went on) from an assembly which was national, although not yet popular.

It did not descend, as in Continental Europe, from an ancient and foreign wisdom or authority. It was English. It came not from above, but from all around. In England, moreover, there were among the men who knew and practised the law not a few persons of independent social standing. They were largely the lesser landholders and the younger sons or nephews of some of the larger landholders, and so they formed a link between the nobles and the middle classes. Unlike the lawyers of France, those of England did not generally depend on the Crown, and they were ready on occasion to oppose it. Thus, although the people at large knew little of the details of the law, the spirit of independent legality was diffused through the nation, and legality was not the docile servant of power as it became in countries where both physical force and the function of making or declaring the law were in the hands of the executive ruler.

How great a part the conception of the legal rights of the subject or citizen against the Crown or the state power played in English and American history, is known to you all, nor need I dwell on the capital importance for the whole political system of the United States of that doctrine of limited powers which has been so admirably worked out in your constitutions, nor of that respect for a defined legal right which sup-ports their provisions. The life of every nation rests mainly on what may be called its fixed ideas, those ideas which have become axioms in the mind of every citizen. They are stronger than fundamental laws, because it is they that give to fundamental laws their strength. They are, as the poet says, "the hidden bases of the hills." Now it was mainly by the Common Law that these fixed and fundamental ideas were moulded, whereon the constitutional freedom of America, as of England, rests.

One hundred and thirty-one years have now passed since the majestic current of the Common Law became divided into two streams which have ever since flowed in distinct channels. Water is naturally affected by the rock over or the soil through which it flows, but these two streams have hitherto preserved almost the same tint and almost the same flavour. Many statutes have been enacted in England since 1776, and many more enacted here, but the character of the Common Law remains essentially the same, and it forms the same mental habits in those who study and practise it. An American counsel in an English court, or an English counsel in an American court, feels himself in a familiar atmosphere, and understands what is going on, and why it is going on, because he is to the manner born. You read and quote our law reports, though they are nowadays too largely filled by decisions on recent statutes ; we read and quote yours, though embarrassed by the enormous quantity of the food (not all of it equally nutritious) which you annually present to our appetite. In nothing, perhaps, does the substantial identity of the two branches of the old stock appear so much as in the doctrine and practice of the law, for the fact that many new racial elements have gone to the making of the American people causes in this sphere very little difference. It is a bond of union and of sympathy whose value can hardly be overrated. An English visitor who has himself been trained to the law can find few keener pleasures than that which my friends, Lord Justice Kennedy, Sir Kenelm Digby, Sir Frederick Pollock (together with your other English legal visitors), and I enjoy in being here to-day among so many eminent members of our own profession and in seeing how influential and how respected a place that profession holds, and has always held, in the United States. It is a bond of sympathy not least because it is a source of common pride. There is nothing of which you and we may be more justly proud than that our common forefathers reared this majestic fabric which has given shelter to so many generations of men and from which there have gone forth principles of liberty by which the whole world has profited.

The law of a nation is not only the expression of its character, but a main factor in its greatness. What the bony skeleton is to the body, what her steel ribs are to a ship, that to a State is its Law, holding all the parts fitly joined together so that each may retain its proper place and discharge its proper functions. The Common Law has done this for you and for us in such wise as to have helped to form the mind and habits as well of the individual citizens as of the whole nation. Parts of it these private citizens cannot understand ; and when that is so they had better not try, but be content to seek your professional advice. But it is all their own. They can remould it if they will. Where a system of law has been made by the people and for the people, where it conforms to their sentiments and breathes their spirit, it deserves and receives the confidence of the people. So may it ever be both in America and in England.