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proceeded upon in the King's courts, it sufficiently appears from Glanvill and Bracton that the royal remedies were only conceded de gratia if ever. 62 The royal remedies were afforded at first only by way of privilege and exception, and, as I have already shown, never extended to all the ancient customs which prevailed in the popular tribunals. But if the King failed the Church stood ready. For a long time, and with varying success, it claimed a general jurisdiction in case of laesio fidei. Whatever the limit of this vague and dangerous claim it clearly extended to breach of fides data. And even after the Church had been finally cut down to marriages and wills, as shown in the last note, it retained jurisdiction over contracts incident to such matters for breach of faith, and, it seems, might proceed by way of spiritual censure and penance even in other cases.



62 Glanv. X., C. 8; Bråct. 1ooa.

63 The fluctuations of the struggle may be traced in the following passages: “Item generaliter omnes de fidei laesione vel juramenti transgressione quaestiones in foro ecclesiastico tractabantur.” A.D. 1190. 2 Diceto (Rolls ed.), 87; 2 Matt. Paris, Chron. Maj. (Rolls ed.), 368. Placita de debitis quae fide interposita debentur vel absque interpositione fidei sint in justitia Regis.” Const. Clarend. C. 15; Glanv. X., C. 12; Letter of Thomas à Becket to the Pope, A. D. 1167, i Rog. Hoved. (Rolls ed.), 254. Agreement between Richard and the Norman clergy in 1190, Diceto and Matt. Par. ubi supra. As to suits for breach of faith, outside of debts, in the Courts Christian, circa 1200, Abbrev. Plac. 31, col. 1 (2 Joh.), Norf. rot. 21. Prohibetur ecclesiasticus judex tracture omnes causas contra laicos, nisi sint de matrimonio vel testamento:" A.D. 1247, 4 Matt. Paris (Rolls ed.), 614. Resistance to this, Annals of Burton (Rolls ed.), 417, 423; cf. ib. 256. But this prohibition fixed the boundaries of ecclesiastical jurisdiction.

64 22 Lib. Ass., pl. 70, fol. 101. Cf. Glanv. VII., C. 18, "propter mutuam affidationem quae fieri solet" Bract. fol. 175a, 406b, 407, 412b; Y. B. 38 Hen. VI. 29, pl. 2. But covenant was the only remedy if the contract had been put in writing; Y. B. 45 Ed. III. 24, pl. 30. *. From Speeches (1913), printed by Little, Brown & Co.

Thus the old contracts lingered along into the reign of Edward III, until the common law had attained a tolerably definite theory which excluded them on substantive grounds, and the Chancery had become a separate Court. The clerical Chancellors seem for a time to have asserted successfully in a different tribunal the power of which they had been shorn as ecclesiastics, to give a remedy for contracts for which the ordinary King's Courts afforded none. But, I think, I have now proved that in so doing they were not making reforms or introducing new doctrines, but were simply retaining some relics of ancient custom which had been dropped by the common law, but had been kept alive by the Church.




FEBRUARY 5, 1885*

THE Court and the Bar are too old acquaintances to speak much to each other of themselves, or of their mutual relations. I hope I may say we are too old friends to need to do it. If you did not believe it already, it would be useless for me to affirm that, in the judges' half of our common work, the will at least is not wanting to do every duty of their noble office; that every interest, every faculty, every energy, almost every waking hour, is filled with their work; that they give their lives to it, more than which they cannot do. But if not of the Bench, shall I speak of the Bar? Shall I ask what a court would be, unaided? The law is made by the Bar, even more than by the Bench; yet do I need to speak of the learning and varied gifts that have given the Bar of this State a reputation throughout the whole domain of the common law? I think I need not, nor of its high and scrupulous honor. The world has its fling at lawyers sometimes, but its very denial is an admission. It feels, what I believe to be the truth, that of all secular professions this has the highest standards.

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And what a profession it is! No doubt everything is interesting when it is understood and seen in its connection with the rest of things. Every calling is great when greatly pursued. But what other gives such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life — so share its passions, its battles, its despair, its triumphs, both as witness and actor?

But that is not all. What a subject is this in which we are united — this abstraction called the Law, wherein, as in a magic mirror, we see reflected, not only our own lives, but the lives of all men that have been! When I think on this majestic theme, my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be wooed with sustained and lonely passion — only to be won by straining all the faculties by which man is likest to a god. Those who, having begun the pursuit, turn away uncharmed, do so either because they have not been vouchsafed the sight of her divine figure, or because they have not the heart for so great a struggle. To the lover of the law, how small a thing seem the novelist's tales of the loves and fates of Daphnis and Chloe! How pale a phantom even the Circe of poetry, transforming mankind with intoxicating dreams of fiery ether, and the foam of summer seas, and glowing greensward, and the white arms of women! For him no less a history will suffice than that of the moral life of his race. For him every text that he deciphers, every aoubt that he resolves, adds a new feature to the unfolding panorama of man's destiny upon this earth. Nor will his task be done until, by the farthest stretch of human imagination, he has seen as with his eyes the birth and growth of society, and by the farthest stretch of reason he has understood the philosophy of its being. When I think thus of the law, I see a princess mightier than she who once wrought at Bayeux, eternally weaving into her web dim figures of the ever-lengthening past — figures too dim to be noticed by the idle, too symbolic to be interpreted except by her pupils, but to the discerning eye disclosing every painful step and every world-shaking contest by which mankind has worked and fought its way from savage isolation to organic social life.

But we who are here know the Law even better in another aspect. We see her daily, not as anthropologists, not as students and philosophers, but as actors in a drama of which she is the providence and overruling power. When I think of the Law as we know her in the courthouse and the market, she seems to me a woman sitting by the wayside, beneath whose overshadowing hood every man shall

deserts or needs. The timid and overborne gain heart from her protecting smile. Fair combatants, manfully standing to their rights, see her keeping the lists with the stern and discriminating eye of even justice. The wretch who has defied her most sacred commands, and has thought to creep through ways where she was not,

see the countenance of his

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