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THE GREEN BAG

The foregoing characteristics of our Com mon Law are submitted for your considera tion, gentlemen, not as being the only ones which belong to it, for I might easily add others, but as being so broad and salient as to make it comparatively easy to discuss them and to endeavor to account for them. Some exist in other systems that have reached a high level of scientific develop ment, being, indeed, qualities without which no system could be deemed excellent. But only one other system, that of the Roman Law, possesses them in so large a measure as to deserve comparison with our own. Now, to what are we to ascribe these qualities that are distinctive of the Common Law? The indwelling qualities of the race of men who built it up must have been a principal cause, and indeed, the primary cause. One may perhaps say that the mind and character of a nation are more exactly and more adequately expressed in and through its law and its institutions than they are through even its literature and its art. Books and paintings are the work of indi vidual men, many of whom have been greatly influenced by foreign ideas or foreign models, and some of whom may have been powerful enough to influence their successors although not themselves typical representatives of the national genius. But laws and customs are the work of a nation as a whole. They are indeed framed by the ruling class, and they are shaped in their details by the pro fessional class, but they are the handiwork of other classes also, because (except in those few cases where a conqueror imposes his law on the vanquished) the rules which govern the ordinary citizens must be such as fit and express the wishes of the ordi nary citizen, being in harmony with his feelings, and calculated to meet the needs of his daily life. They are the offspring of custom, and custom is the child of the people. Thus not only the constructive intellect of the educated and professional class, but

also the half-conscious thought of the aver age man go to the making and moulding of the law. But law is the product not of one or two generations only, but of many generations. National character is always insensibly changing and it changes the more rapidly the more advanced in civilization the nation be comes, the greater its vicissitudes, and the more constant its intercourse with other na tions. Hence, institutions are the expression, not solely of those original gifts and ten dencies of a race of people which we observe when it emerges from prehistoric darkness. Time and circumstances co-operate in the work. Law is the result of the events which mould a nation, as well as of the mental and moral qualities with which the nation started on its career. These two elements are so blent and mixed in their working that it is hard to describe them separately. Nevertheless, we must try to do so. Let us, therefore, begin by a brief glance at the inborn talents and temper of the race that produced the Common Law, and then see how the course of history trained their powers and guided their action. All the Teutonic peoples were strong, resolute, anrl even wilful; and the Low Germans and Northmen were the most active and forceful branches of the Teu tonic stock. Every man knew his rights and was ready to assert them by sword and axe. Not only so, — he was ready, where society had become advanced enough for courts to grow up, to assert his rights by the law also. Read the Icelandic Sagas, in which records of killings and of lawsuits are mingled in about equal pro portions, if you wish to realize how keen was the sense that every freeman had of his own rights, and how resolute he was in enforcing them. Never was there a people more fond of legal strife than were the Norwegians and Danes who spread them selves over Eastern Britain in the ninth and tenth centuries, or than their brethren whom Rolf Ganger led to the conquest of