Page:The American Cyclopædia (1879) Volume V.djvu/156

 152 COMMON LAW COMMON PRAYER the evils to which we are exposed, and the ap- propriate counteraction. 2. Trial by jury has been the most noticed of common law rights, because it belongs exclusively to the English, having been admitted in no other country un- til within a very recent period. It has been attended with doubtful success in France and some other states where the French code has been introduced either as law or prece- dent. Sir John Fortescue insisted that this mode of trial had not been introduced in other countries because a class of men could not be found there fitted to serve on juries. " For though there be in them men of great power and of great riches and possessions, yet they dwell not nigh one to another, as such great men do in England ; neither so many inherit- ors and possessors of land are elsewhere as in England." (Fortes. De Laud. Ang., c. 29.) The meaning of this is, that in his time there was no middle class of men between the no- bility and the impoverished peasantry ; and it was undoubtedly true that no country in Eu- rope then had a common people as well pro- vided and intelligent as the English. But al- though at the present time there may not be the same difference that then there was, be- tween England and other countries, in the comforts of the commonalty, yet it is equal- ly true in our time that there is a comparative deficiency of qualification still existing in con- tinental countries for that office. It requires a training for many successive generations to fit men for judicial functions; it requires above all an individual independence, which has been peculiarly the characteristic of the English people. Possession of a competence is also im- portant. It is related by the old writers that during a considerable period after the conquest, when the common people were oppressed and impoverished, it was difficult to maintain the Saxon administration of justice in the county courts, by reason of the lapsed integrity of the freeholders, who were usually assembled in those courts as jurymen. This led to a pro- ceeding called an attaint, by which a jury was put upon trial for a false verdict, and a severe penalty followed conviction. The English character afterward improved, however, and the trial by jury has always been maintained in a great degree of purity. 3. The mode of proof in trials. The English law of evidence is an extensive branch of the law, and has been founded upon good sense. In criminal cases, the accused parties are not compelled to testify against themselves; and although, upon pre- liminary examination before magistrates, the accused is permitted to make his statement, he is not compelled to do so. Much less was it ever permitted in England, except for a short period under the Tudors and the first Stuart, to put a man to torture to extort his confession. This is mentioned by Fortescue as one superiority of the English laws, from which it may be in- ferred that the practice did not then exist, though the introduction of the rack is referred by Coke to the duke of Exeter, in the reign of Henry VI. It was not used in England after the reign of James I. 4. The rules of the com- mon law relative to husband and wife cannot challenge the merit of superiority to the cor- responding law in other countries. The per- sonal property of the wife became the hus- band's so far as he could get possession ; and it was with extreme difficulty, and only by the aid of the court of chancery, that she could formerly be protected in the enjoyment of any part of her property. The law has within a recent period, and especially in the United States, been ameliorated in favor of the wife, but this change has been by statute and not by any self-amelioration of the common law. Mar- riage can be dissolved only for one offence com- mitted after the marriage, viz., adultery. For some preexisting causes, as impotence, fraud, &c., the contract may be declared null; but no subsequent cause but the one above mentioned is a ground of divorce. Under the same head we may mention the steady persistence in the ancient doctrine that a child born before the marriage is illegitimate. There has always been a special prejudice against any change of the law in this respect, perhaps at an early period, owing to the general opposition to the canon law. Nolumus leges A-mglice, mutari qucB hucusque mitatce sunt et approbate, said the barons when it was proposed in the reign of Henry 111. to legitimate children born be- fore marriage. Fortescue praises the good sense of the rule of the common law, and Black- stone maintains the same view. It is enough for our present purpose to say that in that re- spect it differs from the laws of most other countries. 5. The English law of descent, in- cluding primogeniture, is another peculiarity which has been already sufficiently noticed. 6. Passing over many other points of lesser consideration, the last and principal circum- stance distinguishing the common law is the mode in which it has been promulgated. This has been by the decisions of courts. Treatises of writers have no authority, except as sus- tained by decisions. It was thought as early as the time of Bacon that the decisions had be- come so numerous that they needed to be digested, and digests were in fact prepared, though not by public authority. Still the cases have gone on accumulating ; abridgments and digests have followed ; the older books are no longer cited, but the rules and reasons have been reproduced in other forms. The law seems to be still in growth, while the richness of our legal learning is the detritus from ancient trib- utaries, the sources of which we can no longer trace with distinctness. COMMON PRAYER, Book of, the formulary of public worship of churches of the Anglican communion. The early British church appears to have adopted, many years previous to the departure of the Romans from Britain, a litur- gy almost identical with that of the Gallican churches, and which, like the latter, was