THE CIVIL AND THE COMMON LAW portance as the actual working hypothesis of any system of government resting on the popular will. The will of the people is of no force or significance, and entitled to no con sideration, unless it be the will of all the people who are subject to the law. The question as to how this will shall be ascer tained and made effectual is not a question of law, but a question of statesmanship, of political science. The recognition of all persons as equal before the law is a funda mental principle of our jurisprudence, and a postulate to political liberty. Now it is interesting to notice that this fundamental principle is not only not em phasized in the civil law, but that the Roman system of government did not assume it, nor embody it in existing institutions. In Rome the greater number of persons whom we would regard as free adult subjects, were under some sort of private dominion, some form of control and restraint other than that exercised by the officers of gov ernment. The power of the head of the family to rule its members and control its property was practically exercised by the assent of the law, and the head of the family was not simply, as the term would suggest under modern notions, that of the husband and father over his wife and minor children; but it was the power of a patriarch, asserting complete ownership of all the possessions and accumulations of his sons and their families, of those adopted into the family, of a great aggregation of persons so large that, in a small community, they might con stitute a considerable proportion of the people, and whose subjection was the re sult of relationship, natural or by adoption, and not of any immediate community of interest. Many free Roman subjects passed an entire lifetime, during which they were married, labored in their callings, and died, without having any property which they could call their own, or transmit to their children, and without receiving any recog nition whatever as individuals entitled to the protection of the law
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In short, as it seems to me, the funda mental difference between the common law and the civil law is in the recognition under the one system of individual rights and in dividual accountability, as against collective family rights vested in one head, and ac countability on the part of that head for the entire family aggregation. It will not do to generalize too widely on this distinction, nor to assume that the fundamental doc trine as to the power of the head of the family has remained practically the same wherever the civil law has been extended. But it is safe to say that this fundamental distinction runs through all the rules of law, and has affected all the institutions con nected with the one system and the other. The principles of government formulated by our forefathers in this country were con ceived of as suitable to a homogeneous body of persons, related to each other on the basis of equality of rights and privileges. That body of people was much more like the body of freemen of early Anglo-Saxon times than the aggregation of persons ruled under the government and institutions of Great Britain. Between the time when AngloSaxon institutions had developed to their fullest perfection without interference from abroad, and the time when colonists from Great Britain set up independent govern ments in the new world, there had been a great change in the social and political or ganization of the English people. The Feu dal system had been introduced. The people had been divided into classes. The subserviency of one individual to another and of one class to another had been es tablished. There were earls and counts and lords and knights and freeholders and tenants; and the possession of the preroga tives and the burden of the obligations aris ing out of the existence of these various ranks and classes were not due to any selec tion on the basis of merit of efficiency, or even the acquisition of property. But the colonists who went out from England to the new world were substantially men of equal
