THE CIVIL AND THE COMMON LAW were the Anglo-Saxons, so called, who went to Great Britain, of the Teutons, and so characteristic were their institutions of those institutions which had prevailed throughout the North of Europe prior to the first invasion of Roman arms and influ ence, that modern German scholars have found in the earliest history of the people of England and the institutions which were developed there, the best illustrations of the characteristics of the German race. The Saxons who remained in Europe lost their individuality through subjection to Roman civilization, while the Saxons who went to England developed a civilization of their own. Had the Anglo-Saxons remained in Europe, they would have taken on the civilization which came from Rome. Had they come earlier to England, they would have been reached by the Roman invasion of the first century, and it cannot be doubted that, with their genius for government, they would have kept alive on the island of Great Britain, the learning and arts and institu tions which the Britains, less capable of civilization, allowed to die when the Roman arms were withdrawn. Had the AngloSaxons instead of the Britains become Roman subjects, it cannot be doubted that the system of law under which Anglo-Saxon institutions were developed would have been the civil law instead of an indigenous system. As it was, Teutonic institutions were pre served on the island of Great Britain by the Anglo-Saxons, were developed from within instead of being imposed from without, and the common law of England became a sys tem of jurisprudence to be carried by the Anglo-Saxon race into the great North American continent, into Australia and India and South Africa. It has not been without conscious pride that the Anglo-Saxons have maintained their independence of Roman influence, and persisted in regarding their system of law as a rival system to that of the Latin races. When the English barons were urged at one time to change a rule of the common law
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affecting the descent of property, so as to conform to the more civilized and enlight ened policy of the civil law, as favored by the Church, whose learning emanated from Rome, the center at that time of Christian ity, they stubbornly declared their unwill ingness to change the laws of England. That this conscious resistance to the introduction of the principles of the civil law as a substi tute for common law principles, was per sistent throughout the development of Anglo-Saxon civilization in England, can easily be surmised from the steadfast and stubborn opposition of judges of England to the substitution of any doctrines of the civil law which seemed to be contrary to common law notions. And it is an interest ing fact that few rules of law, consciously and avowedly taken from the more highly developed system of Roman jurisprudence, have been successfully introduced into the English system. That the lawyers and judges of England have constantly and strenuously insisted that the common law was substantially in digenous and that it had neither been im ported from foreign lands nor materially modified by foreign influences, is evident from the whole tenor of the writings of those whom we are accustomed to refer to as the sages of the common law. Coke and Blackstone speak on the subject in no uncertain terms, whatever may be said as to the his torical soundness of their views, and Lord Hale declares that "The kingdom never admitted the civil or canon law to be the rule of the administration of common jus tice." In order to show that the common law was not imposed by the Norman Con quest, but antedated the Norman rule in England, Lord Hale announces in language startlingly modern in its vigor, that "he will rip up and lay open this whole business from the bottom." These men may speak with prejudice and partiality, but it is not to be denied that they speak with all the opportunities of knowledge possessed by those near to the formative period of the
