DEVELOPMENT OF THE COMMON LAW in suits between private parties, where the primary issue before the Court was one in which the rights existing between plaintiff and defendant had to be determined. I have referred to exactitude of thought and expression as one of the excellences which we justly admire in the sages of the Common Law and particularly in the judi cial decisions. That exactitude has become a feature of all our legal thinking and legal writing, and has in particular made us sepa rate more clearly than the lawyers of some other nations do, strictly legal considerations from those which belong to the sphere of mor ality or sentiment. We owe this system in no small measure to the system of pleading which, slowly matured and refined to a per haps excessive point of technicality, gave to the intellects of many generations of law yers a very sharp edge. The old system of pleading 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, and I wish our friends in the laity could have at least that amount of legal training to make them see the difference between a case where you ought to plead and one where you ought to demur. Half the confusions of thought in the world, not excepting the world of political dis cussion, have arisen because men have not stopped to ask themselves whether the issue is one of fact or of principle. " Do I deny the facts or do I dispute the inference?" Or in legal words, " 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 praedial slavery or Villenage had died out, the existence of slavery in the North American colonies had nothing to do with either English institu tion, but arose quite independently in
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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 recorded in any Common Law book of authority. It may be observed in passing that although one might think that the recogni tion of the rights of man as man would be clearest and fullest in a country where every man was free, 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 a freeman is legally exempt from treatment to which a slave is liable. As a freeman, he is prima facie the equal of other freemen even though the latter may belong to a privileged caste. That, however, is only a possible historical deduction which 1 mention because it is suggested by the history of Law of Rome, in which the presence of slavery was an extremely important institution and where the rights of the individ ual citizen were very clearly recognized. On no feature of the Common Law did your and our ancestors lay more stress than on the jury, and the right of every citizen to be tried by his peers. This right has been considered a bulwark of English free dom, and was deemed in the eighteenth cen tury to be essential thereto; yet it deserves to be noticed that the jury was an institution which, in the form in which it is known to us, arose almost, we might say, by accident. The legal genius, or instinct, of the mediaeval English may be credited, however, 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 indi vidual organism which is beyond our power of inquiry, may become the source of a new type, possessing advantages which enable that new type to survive and prevail and reach a higher level of efficiency than the
