574
THE GREEN BAG
make himself almost a despot. The king was so strong over against the barons that they were obliged from time to time to ally them selves with the Church — usually their antagonist, and also with the middle class, consisting of small landholders and burghers. To that alliance of the nobles with the church and the upper part of the middle class we owe Magna Charta and the long line of restrictions thereafter imposed on arbitrary government. Now Magna Charta is the declaration of one generally bind ing law. It announces and it consecrates, and it is of itself Lex Terra, 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. 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 which were quoted from the imperial or papal law by the civil ians or the canonists, was forced to rely upon acts previously done, decisions pre viously delivered, and to found the law upon it. Thus both the judges on one hand and those representing the people on the other were led to appeal to and lay stress upon precedents. Under these con ditions, and favored by them, there grew up that habit of recording and following eminent cases which is so eminently and uniquely characteristic of the common law. The balance of forces in English mediaeval society appeared most clearly in the rela tions of lord and vassal. Each of these had rights and those rights were apt to come into conflict. The adjustment of conflict
ing claims gave constant occupation to the lawyers and the judges, and while forming habits of exact thought and precise state ment, it created a great mass of technical learning. The older English land law was as intricate and elaborately artificial a body of rules as the world has ever seen, and although modified in some important points, it lasted with us down to a century ago, when it- began to be so cut about by amend ing statutes as to lose its ancient logical cohesion. For some reason or other which is not very clear to most of us, many of its technical doctrines were not held to be applicable to land in America, so you have escaped most of the complications it handed down to us. But the circumstances and forms of legal process which produced the ancient land law left a deep impress upon the law in general, and much of the tech nicality of your law and ours is due to that cause. English freedom in our particular legal form which 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 superior 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 consti tutional law of England is a part of, as it has certainly grown out of, the private law. Some of our fundamental constitutional prin ciples have been established by decisions given in private suits, and although you Americans can draw a sharper line between public and constitutional law than we can draw in England, where we have not got a constitution at all (in your sense of the term), still the old character of the Com mon Law remains plainly visible in the face that many of the most important questions that have arisen on the construction of your Constitution, Federal and State, have arisen
