of municipal law, which lays down rules of action for the common affairs of life, stands on a different basis. Among all civilized nations, although different names may be employed, the same crimes are punished, and in much the same manner; the same principles of law prevail in business matters, and there is but little variance in their modes of application. The question of the origin of these rules as they exist to-day in the United States is, however, an interesting one, and, if not of intrinsic importance, its discussion will throw a side-light on some other material subjects.

Apart from the great differences already noticed, and some others which will be specifically pointed out hereafter, the legal systems of England and America are much alike. But this alone does not prove that American law is of English origin, any more than it would prove it in regard to the Decalogue, which we also have in common with our kin across the sea. The latter, although read by most Americans only in King James's version of the Bible, far antedates the birth of England, and so does much of what we somewhat loosely speak of as English law. Most of this law is a transplanted growth, very little, except the decayed or stunted shoots, having sprung from British soil. Some of it has come to us by the way of England—that is, through the decisions of her judges and the writings of her commentators— but even the amount of this is often overestimated. We speak of English law as of English agriculture and English manufactures, little realizing at the time how all of the three have changed since America was settled. As to the law, the change, though gradual, has been almost a revolution.*

*"An account of the growth and development of our legal system

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Such of the early settlers of America as came from England were so opposed to the whole legal machinery which they left behind them, that in some of the colonies lawyers were not permitted to practise their profession. Any one who reads the State Trials of the time of Elizabeth and the Stuarts will understand their abhorrence of the English mode of administering criminal law. But, apart from this, they disliked the whole civil jurisprudence of their native land, regarding it as cumbrous, intricate, unjust, a snare for the unwary and a weapon for the knave. Well might they entertain such opinions, for probably they were founded on their own bitter experience. Few things in the history of England, during the last half of the sixteenth and the first part of the seventeenth century, are more remarkable than the prevalence of litigation, the growth and wealth of the lawyers, their chicanery, and the abuses of the courts. The system was such that justice, even when there was honesty among the judges, was almost utterly lost sight of in a jungle of technicalities, worthy of the early schoolmen. The American colonists generally supplanted this system with codes, many of the provisions of which were not borrowed from England, all having the merit of simplicity and being based on plain principles of justice.†

is perhaps the most urgently needed of all additions to English knowledge." Sir Henry Maine, "The Early History of Institutions" (Henry Holt, 1888), p. 342. See Gneist, "Hist. of the English Constitution," ii. 331, as to the want of a work on the history of English law in the eighteenth century, when the most rapid changes took place in some departments.

* See Hall's "Society in the Elizabethan Age."

The early codes of Massachusetts and Connecticut are on some important points more than a century in advance of the law in Eng

As the colonies grew, their jurisprudence naturally developed with them, and after they became independent states this development was much more rapid. New law was required to meet new conditions of society. Sometimes the want was supplied by enactments of the Legislature, at others by what Bentham aptly called judgemade law, the creation of the courts. The result is that the legal system of America has changed about as much in the last two centuries as the face of the country itself. In England, too, the same change has been going on, in much the same directions, and from the same causes.

Some of the admirers of the old Common Law, who regard it as the perfection of human reasoning-perhaps upon the theory that knowing it to be ugly they think it must be great-tell us that all this seeming transformation is unreal, that there has been only a development of original principles, and that the seeds of all our modern system were contained in the earliest jurisprudence of the English race. Such a view of the facts ignores

all the Continental influences which have affected the institutions of England, and to a much greater extent those of the United States. To show how this effect has been produced is the main object of the present work, and to its general discussion the subject of the law might make a fitting prelude.

England and America have, to-day, much the same

land. Cromwell, who had studied law, and the other leading men of the Commonwealth were almost as much opposed to the lawyers as the colonists themselves. They wished to simplify the law, but the lawyers, as a class, opposed this and every other reform. They flourished on abuses. Cromwell regarded them not only as corrupt, but as among the worst enemies of liberty. Hosmer's "Sir Henry Vane," p. 438. I shall show hereafter what attempts were made under the Commonwealth to reform the law.

ROMAN LAW IN AMERICA

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legal principles, but they are the same because derived in large measure from a common foreign source, the Roman Civil Law. It is to Rome that we are indebted for almost all of our system of equity and admiralty; our laws relating to the administration of estates and the care of minors, the rights of married women, bailments, and, to a large extent, our whole system of commercial law. Of the old Common Law of early times, the system of a race of barbarians, very little now remains. How this has been brought about is a very simple story.

It must be borne in mind that the men who conquered the Britons and founded England were pagan savages, the rudest of their race, and least tinctured with the civilization of Rome. Cut off from the Continent, where much of the old civilization still survived, the descendants of these men lingered on in barbarism, long after some of their brethren across the Channel. As for the law of the conquerors, it was such as might be expected from such a source. They knew and cared little about legal principles. Quite early they established the doctrine, common to all rude nations,* that what some chief or judge had decided years before, however monstrous or unjust, must be followed by his successors. This made memory take the place of reason, a substitution never entirely reversed among their descendants, either in legal or political discussions. But if there was little reason, there was enough reasoning to take its place. This, however, was of the same character as that which prevailed in the early universities, where words were everything and principles of small account. Under this system there grew up a jurisprudence cumbrous, complicated, and unnatural, which in many of its features will

*See Maine's "Ancient Law."

only excite amazement and derision among our descendants a few generations hence.

Still, there was one link between England and the Continent; that was the Romish Church, which was soon re-established. This brought in foreign ecclesiastics, and fortunately some of them had a knowledge of the law of Rome. They not only fostered its study in the colleges, but, obtaining judicial power as chancellors, where it was possible, and against the bitter opposition of the other judges, they adopted its more enlightened principles in the courts, building up what is known as the system of equity, to correct the crudities, injustice, and absurdities of the Common Law. When England in time became a commercial and manufacturing country, and was brought into contact with her more advanced neighbors, the process went on further. The nations of the Continent had formed their jurisprudence on the Civil Law: it was taught in their universities, and became the basis of all commercial dealings. Hence it was that with the development of her commerce and manufactures England absorbed more and more of the law of ancient Rome.

As to the character of this law, let us call a few modern witnesses. Chancellor Kent says of the Pandects of Justinian that, with all their errors and imperfections, they "are the greatest repository of sound legal principles applied to the private rights and business of mankind that has ever appeared in any age or nation."* Sir George Bowyer says: "The corpus of civil law is a juridical compilation which contains the whole science of jurisprudence."+ Roby adds that the Civil Law of Rome

* Kent's "Commentary," i. 541.

"Introduction to the Study of the Civil Law," p. 3.