Page:The Green Bag (1889–1914), Volume 19.pdf/614

 DEVELOPMENT OF THE COMMON LAW when conducting a case, as well as the care which the judge takes to let the pris oner have the benefit of everything in his favor. How different things are in con tinental Europe is known to you all. It is partly because this old tradition has been so well preserved that we in England have found that convicted prisoners need com paratively few opportunities for raising points of law after the trial. The trial itself almost always secures for them what ever justice requires, though, of course, there is a power of raising by subsequent argument points reserved, and we have recently in this very session of Parliament, created by statute a court which is to hear criminal cases on appeal. The mediaeval Common Law has been charged with one serious defect, that of lacking elasticity and the power of expan sion. It halted at a certain point. It refused to deal, or rather, perhaps, I should say its machinery proved incapable of dealing, with certain sets of cases, and left them to be taken up and dealt with by the Crown, acting through the Lord Chancellor. I cannot stop to inquire how far this was due to an excess of conservatism in our forefathers, how far to the circumstances of the time which, while circumscribing the action of the King through one set of machinery left him free to act through another. Anyhow the result was that the huge system which we call Equity grew up side by side with the Com mon Law, remained distinct from it in Eng land until the Judicature Act of 1873, and I believe still remains distinct from the Common Law in some parts of this country. Still, in a broad sense, although, speaking technically, we distinguish Common Law from Equity, we may include Equity within the term Common Law when we use it to distinguish the law of England and America from the Roman Law of the European continent, or of Louisiana and Spanish America. And it must not be forgotten that not only had Equity become

577

thoroughly a positive system and a tech nical system by the time when the North American Colonies were founded, but also that it had been largely influenced by the same historical environment and had been moulded by the same national character as had governed the growth of the law administered in the Common Law Courts. How much of its own precision and certainty the older system had given to the younger system of Equity may be perceived by whoever will compare English Equity with the civil law of most European coun tries in the seventeenth century. I have kept to the last the most striking of all the historical conditions which determine the character of AngloAmerican law. England was an island. The influence which governed the develop ment of law in the mainland reached her in an attenuated form. The English people had a chance of making a new start and of creating a system of law for themselves, instead of merely adopting or adapting the Roman jurisprudence, as did at various times and in divers ways nearly all modern peoples except those of English stock. We must not indeed exaggerate the originality of our law. It is not as original as that of Iceland would probably have been, had Iceland gone on developing the legal customs she had formed by the middle of the thirteenth century. It is not original in the sense of owing little or nothing to foreign sources, for a great deal of law flowed from Roman fountains into the English stream. When the Lombard Vacarius taught the Roman law in the reign of King Stephen at Oxford — this is among the very first traces we have of that famous university — we can not suppose that his hearers were confined to those who wished to practice in the ecclesiastical courts. In the next century we find Bracton, one of our earliest legal writers, copying freely from the Roman law books, though he frequently also con tradicts them when English usage differed.