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THE GREEN BAG

taining the right of a riparian owner to the use of the waters of a stream as against the claim of a prior appropriation for irrigation purposes. (See Clark v. Allaman, 80 Pac. Rep. 571.) The same reasoning as pointed out in that case has been adopted in other agricultural states west of the Missouri (Crawford Company v. Hathaway, 67 Neb. —, 93 N. W. 781; 60 L.R.A. 889; Bigelow v. Draper, 6 N. Dak. 152). But the question still remains, whether the system of government developed on the principles of the civil law would have con duced as effectually as our present system, founded on the common law, to the happi ness and prosperity of our people. I cannot enter now into this field of speculation. Perhaps it is not controlling that the text book universally referred to as stating the fundamental doctrines of the civil law sys tem, the institutes promulgated by Justin ian, contains among its maxims the state ment that " what pleases the ruler, that has the force of law"; for it is true that repub lics have been established in countries where the civil law prevails. But we cannot justly close our eyes to the fact that thus far in the world's history there has been a marked preference for the peculiar institu tions of the common law among all people who are striving for self-government. I cannot even stop to point out how essentially diverse are the systems of government per meated with the principles of the civil law, from those which are founded on the com mon law. I can only assume that you will rejoice with me in the good fortune which has kept us in the domain of English law, and ask your attention to a few practical considerations as to the real significance of this good fortune and the importance of preserving intact and in actual operation, not merely the letter, but the spirit, of the system which we have derived from our Anglo-Saxon ancestors, not so much by the descent of blood, but, what is of more im portance, by the transmission from genera tion to generation, from country to country,

and even from race to race, of the institu tions having their source among the AngloSaxons. It is safe to say that the most funda mentally important characteristic of the common law is that it recognizes, not merely theoretically, but practically, the doctrine that before the law all men are equal. It is a great conception, one which was not actu ally embodied in the constitution of any civilized people until it was announced in our Declaration of Independence. Mighty upheavals in government have resulted from its denial. It has been the watchword of the Christian religion, the most persuasive of its doctrines as missionaries have carried it to the oppressed and miserable in nonChristian lands. It is a doctrine which has appealed to philosophy, religion, and senti ment. And yet, it is as old as the beginning of the common law. and a characteristic of the institutions of the Saxons and other Teutonic tribes. With them, however, it was simply a fact, not a dogma. Their whole theory of government was founded on the participation of all freemen in public affairs; and the prevalence of the wishes of the greater number as against the smaller, not by reason of any theoretical right of majority rule, but because among men who are equal the majority is more powerful than the minority. I must not be under stood as saying that there were no inferior classes among the Anglo-Saxons. There were such classes, but the law did not rec ognize their existence. It was a system for the government of freemen. The under classes gradually disappeared, elevated, as it must be believed, from the rank which the law did not recognize to the rank of those who were entitled to the equal protection of the law, until eventually it was the proud boast of Englishmen that slavery could not exist anywhere within the British dominions. It is worth while to insist that in its origin this notion represented actual, existing facts and was not the result of sentimental con siderations, in order to emphasize its im-