us how to make this distinction in every case we have to advise on or to argue. It has tended to keep judicial deliverances of the law within due limits of brevity, because when a judge finds himself tempted to wander off into the merits of the case he is reminded that merits are for the jury, and that his natural human tendency to do what he thinks substantial justice must be restrained by the sense that his business is to declare the law and be content with advising the jury on the facts. It framed the practice of using, almost exclusively, oral evidence at a trial, and thus incidentally it prevented both those secret examinations of the accused person and that recourse to torture which were common in continental Europe. It confirmed the ancient usage of requiring judicial proceedings to be conducted in public, and thus kept subject to the watchful eye of popular opinion, and it mitigated that harshness of the penal law which belongs to all comparatively rude societies, and which was not removed from the English Statute Book until the memory of persons still living. When men were liable to be hanged for small thefts, English juries refused to convict for such offences, and their refusal hastened the march of legislative reforms.

The mention of penal matters suggests a word as to the extreme technicality of the older Common Law. Frequently as that technicality frustrated the doing of substantial justice in civil cases, it had its advantages in criminal proceedings. Often a prisoner who did not deserve a severe sentence-and no doubt also sometimes a prisoner who did-escaped on some technical ground. Our forefathers had such a respect for the law that they would rather a guilty man should escape punishment than that some of their technicalities were neglected. Perhaps they carried that principle almost a little too far.

The Common Law, which had the great merit of forbidding the use of torture-abominably frequent in continental Europe even in the eighteenth century-had also the merit of forming in the legal profession the feeling that an accused person ought to have a fair run for life or freedom. A sportsmanlike instinct grew up, like that which gives the hunted deer 'law' or a fair start, or the instinct which forbids certain tricks by which a game of cricket might be won. A judge who bullied a prisoner was condemned by professional opinion. A prosecuting counsel who overstated his case or betrayed a personal eagerness to convict the prisoner, incurred the displeasure of his brethren, and was sure to hear of it afterwards.

I have often been struck in our criminal courts-and the same thing doubtless happens here-by the self-restraint which experienced counsel impose on themselves when conducting a case, as well

as by the care which the judge takes to let the prisoner have the benefit of everything in his favour. How different things are in continental 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 comparatively few convicted prisoners need opportunities for raising points of law after the trial. The trial itself almost always secures for them whatever justice requires, though of course there is a power of bringing forward for subsequent argument points reserved, and we have recently, in the parliamentary session just closed, instituted 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 expansion. 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 Common Law, remained distinct from it in England until the Judicature Act of 1873, and I believe still remains distinct from the Common Law in some of your States. 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 a thoroughly positive system and a technical 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 may be perceived by whoever will compare English Equity with the civil law of most European countries in the seventeenth century.

I have kept to the last the most striking of all the historical conditions which determined the character of Anglo-American law. England was an island. The influences which governed the development 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 was 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 cannot suppose that his hearers were confined to those who wished to practise 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 contradicts them when English usage differed. In the fourteenth and fifteenth centuries, the ecclesiastical chancellors, who built up the system of Equity, were much influenced by Roman legal doctrines, drawn largely through Canonist channels. Still the fact remains that the law of England was a new creation, not an adaptation of the law of the Empire. It has a character and a quality which are all its own; and its free spirit and tendencies have always stood out in marked contrast to the despotic spirit and tendencies which France, Spain, and Germany inherited from the imperial jurisprudence. To that jurisprudence it was, during the Middle Ages and the centuries which followed, as much superior in respect of freedom and in what may be called a popular flavour as it was inferior in philosophic breadth and elegance to the ancient sources on which that imperial jurisprudence was founded. The use of the jury, the far larger part assigned to oral evidence, the sharper separation of issues of law from issues of fact, are among the most salient points in which the superiority of the Common Law to the law of continental Europe appears.

I had intended to have given you a brief sketch of the earlier history of the ancient Roman Law for the sake of showing how the characteristics of that great rival system sprang from features in the national character of the Romans in their republican days, not unlike those which marked our own ancestors. They too had a genius for law. Less imaginative, less artistic, less acute in speculation, altogether less intellectually versatile and alert than were the Greeks, they had a greater capacity for building up and bringing to an almost finished and certainly unsurpassed perfection, a body of legal principles and rules. They had this capacity in respect of gifts

They were conservative. They They were filled with practical

like those of our ancestors. They realized clearly the rights of the individual as against the state. had the power of self-control. good sense.

But this subject is too great to be dealt with at the end of an address, and I must be content with recommending it to the attention of those who are interested in the study as throwing much light upon the general tendencies which have governed the growth of law. The best illustrations of English legal history are to be found in Roman legal history.

So far I have spoken of the Common Law as a product of the English intellect under certain peculiar historical conditions, but one word must be said of it in another aspect: If it was a result, it was also a cause. It reacted powerfully upon the people that made it. Just as the habit of physical or mental exercise strengthens the body or the mind where native energy has made exercise enjoyable, so the Common Law, once created, began to develop further and give more definite form to those very qualities of the nation whereto its own features were due. Under its influence the national mind became more and more permeated by the spirit of Legality. It grew accustomed to resist arbitrary power, but as it did this in defence of prescriptive right, it did not lapse into revolutionary ways. Thus there was formed the idea of a government of limited powers and the habit, when any one claimed obedience, of requiring him to show his title to demand it. If it be asked why should not such a conception of the legal character of all authority belong to and arise in every duly matured system of law, the answer must be that the case of England stood alone in this respect that the law came early to be recognized as being something more than an expression of the will of the sovereign ruler. It sprang partly out of the old customs, partly from an assembly which was national, although not as yet popular. It did not descend, as in continental Europe, from an ancient and foreign wisdom or authority. It was English. It came not from above, but from all around. In England, moreover, the men who knew and practised the law were largely persons of some independent social standing. There were among them not a few of the lesser landholders, and of the younger sons or nephews of some of the larger landholders. They were a link between the nobles and the middle classes. Unlike the lawyers of France, those of England did not generally depend on the Crown. Some no doubt did, and served the Crown in ways which the best opinion of their time condemned. But on the whole they were independent of the Crown and were ready on occasion to oppose it. Thus it came about that although the people

at large knew little of the details of the law, the spirit of independent legality was diffused through the nation, and it was not the docile servant of power as it became in countries where both physical force and the function of making or declaring the law lay in the hands of the executive ruler.

How great a part the conception of the legal rights of the subject or citizen against the Crown or the State power has played in English and in American history is known to you all. Still less need I dwell on the capital importance for the whole political system of the United States of that doctrine of Limited Powers which has been so admirably worked out in your constitution, nor of that respect for a defined legal right which supports their provisions. The life of every nation rests mainly on what may be called its fixed ideas, those ideas which have become axioms in the mind of every citizen. They are stronger than fundamental laws, because it is they that give to fundamental laws their strength. They are, as the poet says, 'the hidden bases of the hills.' Now, it was mainly by the Common Law that those fixed and fundamental ideas were moulded whereupon the constitutional freedom of America, as of England, rests.

One hundred and thirty-one years have now passed since the majestic current of the Common Law became divided into two streams which have ever since flowed in distinct channels. Water is naturally affected by the rock over or the soil through which it flows; but these two streams, separated in 1776, have hitherto preserved almost the same tint and almost the same flavour. Many statutes have been enacted in England since that year, and many more have been enacted here, but the broad character of the Common Law remains essentially the same, and it forms the same mental habits in those who study and practise it. An American counsel in an English Court, or an English counsel in an American Court, feels himself in a familiar atmosphere, and understands what is going on and why it is going on, because he is to the manner born. We read and we quote your law reports, although we are sometimes embarrassed by the enormous quantity of the food, not all of it, equally nutritious, but some of it most nutritious, which you annually present to our appetite. So you quote our Law Reports, although they are nowadays so largely filled by decisions upon recent statutes as to be less serviceable for the elucidation of the Common Law than they at one time were. In nothing, perhaps, does the substantial identity of the two branches of the old stock appear so much as in the doctrine and practice of the law. It is a bond of union and of sympathy whose value can hardly be overrated. An English visitor who as himself been