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THE GREEN BAG
common law and with authority which must not be lightly disregarded. The champions of the civil law, who would have us believe that it is the source of all jurisprudence and that from it the common law has borrowed those principles which entitle it to be considered a system of law adequate for a civilized people, make an argu ment more specious than satisfactory. It is true that the earb'est efforts at formal expo sition of the common law, as a system, were made by borrowing the phraseology of the civil law, just as the learned men of that time in every department of knowledge borrowed Latin words to express concep tions for which the ruder native tongue furnished no vehicle; but those conceptions were original, and characteristic. They were not borrowed. Bracton, the first clear expositor of the law of England, preludes his great work with a synopsis of general principles taken from the civilians, but when he attempts to explain the rules of law as actually administered, he states what has been decided by the judges of England; and the decisions of those judges were not only ostensibly, but actually and demonstrably based on the customs prevailing among the people — the notions of personal and property rights which had grown up with the Anglo-Saxons and which had not been derived from foreign sources. I would not pretend that English civiliz ation owes no debts to Roman civilization, or that the common law has borrowed noth ing from the civil law. No civilization is strictly indigenous. Learning and institu tions spread from tribe to tribe and from race to race, and from country to country. England felt the stimulus of the revival of learning throughout Europe at the end of the dark ages. Scholars and priests and civil rulers in England imported learning and religious ideas and notions of govern ment from across the channel. The Norman Conquest brought into England the Feudal system. The Church brought into England the canon law. The chancellors, who were
at first ecclesiastics, had in mind the prin ciples of the civil law in their attempts to ameliorate the rigorous rules of the common law by means of their equitable jurisdiction. Writers on jurisprudence found the lan guage and the theoretical arrangement of the civil law convenient vehicles by which to attempt a statement of the rules of the common law in general terms. And yet it remains practically undisputed that, what ever the form of their exposition, the prin ciples and characteristics of the common law are distinctly different from those of the civil law; not merely different because of their application to local conditions, as with the Germans, or the French, or the Russians, but distinctly different as to the spirit pervading the developed system. Even the principles of equity have been evolved by the decisions of the great Eng lish chancellors and show no indebtedness to the civil law save as to the terms in which they were expounded. And so I say it is that, as the result of what I have called an historical accident, a rival system of the civil law has been developed among the Anglo-Saxon peoples and carried wherever Anglo-Saxon power has been extended. And I venture to say further, that the prin ciples of the common law are better suited to institutions which recognize the right of self-government and the direct responsibility of the ruler to his subjects, and the legal equality of all men, and the right of all men to participate in the benefits of government and social order, than are the fundamental principles on which the civil law is based. Further on I shall try to indicate more in detail some of the characteristics of the com mon law as a rival system of the civil law, and shall urge that we bear them in mind as blessings to be zealously guarded and pre served, if our free institutions are to be pro tected against imminent dangers. which even now seem to threaten them. But it is enough for the present to say that there are but two distinct systems of law in the whole civilized world, and that as civilization is
