Page:The Green Bag (1889–1914), Volume 20.pdf/40

 THE UNWRITTEN LAW lentless foe of oppression and the sleepless guardian of individual right. Made the in strument of bondage, it serves unwillingly and with constant protest; as the nurse of liberty it is unfailing in assiduity. Tyrants hate its name; freemen bless its beneficence, and the world wonders at its mysterious potency. Whence and what is this Common Law which is the distinguishing feature of AngloSaxon civilization the world over? Is it a peculiar system of rules, a specific part of the great field of jurisprudence which the English people have discovered and of which the rest of the world is ignorant? Such a pre sumption, though it is not lacking the au thority of great names, is in the highest degree absurd. There is no striking differ ence in the so-called principles of the Com mon Law and the jurisprudence of other lands. The simple truth is, that legal prin ciples are not a monopoly of any race or people — they belong to mankind. Almost every- principle of the Common Law may be paralleled in the laws of other nations. It is not a system of laws, but a method of applying law. Its distinctiveness does not arise from the excellence of its formulas or the eminence of its judges, but from the fact that it is linked in foundation and application with the common life. It is the impulse to self-judging which has made it so distinct. Born in the heart of the Visigoth on the rugged shores of the Caspian, it joined the functions of the judge and the legislator and devolved both upon the commune. The chief was president-judge and the whole tribe the court. In the Visigothic bund was the kernel of the American Republic. Borne in barbaric triumph through the forests of central Europe, untouched by Roman faith and uncorrupted by Roman thought, it reached the shores of the North Sea. Pausing here awhile to gather strength, it poured over into Britain, from which it swept away every trace of Roman civiliza tion and Celtic barbarism. Taking root upon the moors and under the greenwood

trees of old England, nourished by Saxon frankness and made strong by Celtic stub bornness, holding its wittenagemote upon the village green and defending the common right against foes from without and usurpers from within; learning subtlety from the Roman and boldness from the Northman; guarded by the four seas that rage and foam about its white-walled home; softened by the light that shines from Calvary and strength ened by the echoes of the great Lawgiver's voice that comes to its ears across the slumbering centuries from the valley of curses and blessings; hidden in the heart of the Puritan; strengthened by the solitude and primeval grandeur of the New World's unsubdued expanse; blessing with unequaled prosperity those who proclaimed equality to all, the mainspring of English civilization is the Common Law we inherit, and which we have extended, harmonized, and replenished with unnumbered examples of its wisdom, beauty and beneficence. For this Common Law is no longer the Common Law of England, but the heritage and glory of Anglo-Saxon civilization. But what are its limits? Of what is it com posed? Where may its tenets be found? How may the Common Law be distinguished from that great mass of conventional regulation of human relations which constitutes the vast field of jurisprudence? To no question which is met in preparation for the Bar is it so difficult to present a satis factory and easily comprehended reply, un less it be that ever-to-remain unanswered query, "What is Equity?" As to this latter question it is quite safe to say that nobody has been able to find a definition which would serve the subtlest legal practitioner under any other system, in determining where, in English law, Equity begins and where it ends. As a matter of fact its boundaries are as irregular as the line of a Virginia worm fence, and as unac countable as the vagaries of the Mississippi on its winding way to the sea. Not only that, its boundaries are as shifting as the