8
THE GREEN BAG
THE UNWRITTEN LAW AND WHY IT REMAINS UNWRITTEN BY THE LATE ALBION W. TOURGEE THE babe that first sees the light within the domain of the English common law may well smile in its dreams. Above its cradle hovers a presence unmatched among human institutions for benignity and power. Already, before the breath of life had visited his nostrils, it had taken note of his existence and tenderly provided for his welfare and his rights. With the dawn of consciousness, it draws nearer to him. It hears his first inarticulate wail and provides for his proper nurture. It lays its behests on parent, guardian and nurse; protects him from neglect as well as malice, and even be fore he can speak himself, provides a friend who shall speak for him. As he grows in strength it puts into his hand a shield potent for his defence against all enemies. It makes the judge his servant to define his rights, and puts between him and the sover eign power the insurmountable presumption of incapacity. It will not hear his words, even of admission or self accusation, but puts in his baby hand the scepter and de clares that "the king can do no wrong." Through childhood and youth it tenderly watches over his footsteps, clears the obsta cles from his pathway and sees to it that he does not dash his foot against a stone. Little by little as he grows in power and dis cretion, it removes the barriers that restrict his action. It listens to his voice, trusts the testimony of his eyes, enlarges his capacity, enhances his responsibility, and prepares him by easy and successive steps for the more serious task and heavier burdens of manhood. It gives the power of the realm to enforce his rights, and demands concurrence of twelve of his peers before it will listen to any impu tation of wrong doing against him. In the battle of life it is with him. In the ancient mythology the "Queen of Heaven"
watched over her favorite in the fierce on slaught of battle, warding off dangers which he did not see or was unable to prevent. Such a presence is the English Common Law to every champion in the arena of life. It clothes him in armor of proof; guards against surprise or ambush; bids him go boldly forward heedful only of his own foot steps and mindful of his own rectitude and watchfulness. It protects him from con spiracy and fraud, but refuses to shield him from the consequences of his own wrong, and requires him to come with clean hands to in voke its aid. It guards him in slumber, but deserts him in sloth. In return for its faithfulness it demands vigilance, and of him to whom it grants relief it demands that he shall first do equity. While a reasonable doubt re mains, the presumption of innocence is for him an impenetrable breastplate, warding off even the sting of imputation. It puts a guardian angel at the threshold of the home, whose ever naked sword guards its holy mysteries against intrusion or in quisition. It protects the maiden in her love and the mother in her holiest right. It trudges with the child to school, gives the teacher authority and restrains his passion. Around the husband and the wife it folds the mantle of silence which none may pene trate, and which they themselves are power less to lift. It protects the sanctuary but leaves the worshipper free. As many Ma hometans as Christians enjoy its benefits and more believers in Brahma than Mahom etans and Christians both. One-sixth of the habitable globe and one-third of its popula tion acknowledges its sway. Twelve million square miles and four hundred million people constitute its empire. One-half the wealth of the world is in its keeping. It is the re
