V. Lecture continentalization of our law. I invoke the conservative judgment of the profession against the iconoclast who in the name of reform comes to destroy the jury; against the rash surgery which holds not a cautery to cure, but a knife to amputate. Twelve good and lawful men are better judges of disputed facts than twelve learned judges.1 1 See ante Lecture IV LECTURE VI. OUR LAW IN ITS NEW HOME AMERICA ITS EXPANSION, DEVELOPMENT, AND CHARACTERISTICS IN THE POLITICAL RESUMING the subject of the last lecture, I Lecture commence by saying that it is no part of my purpose to institute a comparison between the The civil mon law. civil and the common law, the one or the other of and comwhich constitutes the foundation of the jurisprudence of every civilized Christian state. It is true that, abstractly considered in its entirety as a system of jurisprudence, the civil law, elaborated during many centuries and matured by Rome in the height of her civilization, was at one time superior to the common law, whose foundations were laid in the twilight of the nation, and which had not in many points kept pace with the progress of the English people. The feudal system in its day made serfs of masses of men. It was a system in its nature at war with commerce. It was inimical to peaceful General pursuits. Out of its logic sprang the most baleful feudalism. doctrine that has blighted the English law, 1 See ante Lectures I., V.; post Lecture VIII. · the effects of VI. Lecture doctrine of tenure.1 To gratify ancestral pride and maintain family splendor, the feudal aristocracy tied up landed property in the iron fetters of tenure; and although it constituted the chief wealth of the nation, it was withdrawn from commerce and could not serve as a basis of credit. The feudal system is the principal source of the land-laws of Great Britain, which still press with such weight upon the agricultural and industrial classes. What singular phenomena we frequently witness as the results of opposing forces. For example, feudalism as a military system was by its very nature compelled to ignore the rights of woman. She could not render military service. Upon marriage her legal identity was lost, merged in that of her husband; and the old common law pressed this fiction inexorably to all its logical consequences, Effect on domestic life and manners. consequences which often so shocked the moral sense as to lead the Court of Chancery timidly to take the wife partially under its benign protection. At the same time it is curious to observe that it was feudalism, in its effects upon the domestic life and manners in the castle, that gave to woman, to the wife and mother, an importance they never before had, and have never since lost. Having done its work, feudalism is happily gone; but its choicest flower- the elevation, companionship, and recognized dignity of woman- still lives, and its fragrance fills the air. Nevertheless, her legal rehabiliment — perhaps it were better to say her new birth is the work of our own times.2 1 See post Lecture VIII. 2 More at large, post Lecture XIII. VI. equalled of the legal sys England America. But with the growth of commerce, the world's Lecture great civilizer; with the advancement and elevation of the people and their constant progress toward lib- The unerty; with the establishment and growth of the prin- excellence ciples of equity under the great Hardwicke and a long existing succession of illustrious equity judges; with the disappearance from the law courts of the refinements, and subtilities, and artificial logic of the schoolmen, which so long poisoned the common law, — and taking law and equity as together constituting one connected system of laws and jurisprudence, as that system exists at this time in Great Britain and in America, it is, I think, with all of its defects, the best system of enlightened and practical justice that the world has ever witnessed. The Roman law conquered the nations of continental Europe; but the English people, as I have already pointed out, resisted it, and as a system it obtained no foothold on English soil. Many of its principles have been introduced one by one into, and have thereby enriched, the English law, notably commercial and equity law; but the common law has always maintained itself intact as a competing, distinctive system. It must be confessed that it lacks the artistic symmetry of its great rival; but it was better adapted than the civil law to the institutions and character of the English people, and is for them at least, as it is for us, the better system.2 1 See ante Lecture I. 2 Wherefore Sir Matthew Hale well says: "Of its common municipal law this great kingdom has been always tender, and there is great reason for it. For it is not only a very just and excellent law Lecture The sources of lence. It is not a speculative system. It has not been wrought out by doctrinaires and built up from without as a work of conscious art. Its merit is that this excel- it is based upon the experience of mankind; has grown out of real transactions, actually litigated and recorded. The foundation, or at least the distinguishing feature, of our legal system is the conviction that the only knowledge which can be relied on in framing statutes or rules of conduct must come from experience and not speculation. The principles of a judicial judgment, settled and announced after the argument of counsel, limited to the precise state of facts which the particular case presented, added that much, but only that much, to the existing mass of legal doctrine. The chief value of our system of law as we now have it is that it embodies the lessons of time and long experience. "Everybody is wiser than anybody," said Talleyrand, and truly; and it is this general, accumulated wisdom that has been carried into our law. Lord Hale in his short tract on the "Amendment and Alteration of Laws," every word of which is golden, three times declares that "time is the wisest thing under heaven," and that "time and long experience is "much more ingenious, subtile, and judicious, than in itself, but it is singularly accommodated to the frame of the English government and to the disposition of the English nation; and such as by a long experience and use is, as it were, incorporated into their very temperament, and in a manner become the complexion and constitution of the English Commonwealth." Sir Matthew Hale, "The History of the Common Law" (4th ed., Runnington, 1779), chap. iii., p. 51. And much more to the same effect will be found in Fortescue's "De Laudibus," written two centuries before. See particularly chaps. xxviii., xxx., xxxiii., xlv., xlvii., liv. |