578
THE GREEN BAG
In the fourteenth and fifteenth centuries, the ecclesiastical chancellors who built up the system of Equity, were much in fluenced by Roman legal doctrines, drawn largely through canonist channels. Still the fact remains that the law of England was a new creation, not an adaptation of the law of the empire. It has a character and a quality which are all its own; and its free spirit and tendencies have always stood out in marked contrast to the despotic spirit and tendencies which France, Spain, and Germany inherited from the imperial jurisprudence. To that jurisprudence it was, during the Middle Ages and the cen turies which followed, as much superior in respect for freedom and in what may be called a popular flavor as it was inferior in the philosophic breadth and elegance of the ancient sources on which that imperial jurisprudence was founded. The use of the jury, the far larger part assigned to oral evidence, the sharper separation of issues of law from issues of fact are among the most salient points in which the supe riority of the Common Law to the law of continental Europe appears. I had intended to have given you a brief sketch of the earlier history of the ancient Roman law for the sake of showing how the characteristics of that great rival system sprang from features in the national character of the Romans in their republican days, not unlike those which marked our own ancestors. They too had a genius for law. Less imaginative, less artistic, less acute in speculation, altogether less intel lectually versatile and alert than were the Greeks, they had a greater capacity for building up and bringing to an almost finished and certainly unsurpassed perfec tion, a body of legal principles and rules. They had this capacity in respect of gifts like those of our ancestors. They realized clearly the rights of the individual as against the State. They were conservative. They had the power of self-control. They were filled with practical good sense.
But this subject is too great to be dealt with at the end of an address, and I must be content with recommending it to the attention of those who are interested in the study as throwing much light upon the general tendencies which have governed the growth of law. The best illustrations of English legal history are to be found in Roman legal history. So far, Ladies and Gentlemen, I have spoken of the Common Law as a product of the English intellect under certain peculiar historical conditions, but I must say one word in another aspect: If it was a result, it was also a cause. It reached powerfully upon the people that made it. Just as the habit of physical or mental exercise strength ens the body or the mind where native energy has made exercise enjoyable, so the Common Law once created, began to develop further and give more definite form to those very qualities of the nation whereto its own features were due. Under its influence the national mind became more and more permeated by the spirit of legality. It grew accustomed to resist arbitrary power, but as it did this in defense of prescriptive right, it did not lapse into revolutionary ways. Thus there was formed the idea of a government of limited powers, and therewith the habit, when anyone claimed obedience, of requiring him to show his title to demand it. If it be asked why should not such a con ception of the legal character of all authority belong to and arise in every duly matured system of law, the answer must be that the case of England stood alone in this respect that the law came early to be recognized as being something more than an expression of the will of the sovereign ruler. It sprang part out of the old customs, partly from an assembly which was national, although as yet not popular. It did not descend, as in continental Europe, from an ancient and foreign wisdom or authority. It was English. It came not from above, but from all around. In England, moreover, there were among the men who knew and practiced the law many
