The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1886-02-03
restrained the power of the State, and pro-
tected the freedom of the citizen.
LEADING CHARACTERISTICS OF THE COMMON


leadiug princi1He$ and the Distinguishing chnr-
octer.&ics Of Ire Common Ltt,c, which give II Il
peculiar claim TO the love and admiration,
nay yencration Of our people,
ESSENTIALLY ENGLISH.
And first it is essentially English: it is the
cause and product alike of our civilization; /!
has grown with our growth and strengthened
with hourstrengthit has entwined itSeifwith all
the aSSO"ia ions of our early ll1e kept pace WITH
all the Developments of our latcrSroWth, ana
reached its full e1flOrrSconce in The GROWING
glory If our vigorous manhoOI. ttlcr SyS
tens have been Supcr-impoSed upon conquer
ed provinces and given law to the ranquiS-
ed. The Civil Law has formed the basis OF
the European systems, ana WIethcl III tllc
form of digcsts and codes, has furnished the
principles, the language and the modes of
procedure. But the Common Law. IN its or
igin and progress, was essentially EnSllsh ;
lis history is the history of the English pco-
pie Without claiming for il the high am iq.
uity, assigned by FOrtcscuc, Sc!den and Coke,
we may affirm that the nation continued to
be essentially Saxon, even after the Norman
conquest that the saxon customs rain-
tanned their hold upon the people and amelio-
rated the severity Of the Feudal laws; that
though the Norman tongue and the Norman
forms OF procedure prevailed IN the h'Shcr
Courts, still Ia the county anu ltlnerhnt
Courts, Saxon law was administered, and
Saxon law was developed from SaNen crS-
innlS even under Norman kings; ANA as the
nation threw off the shackleS of Its former
yoke, 1t gradually rc-cstabilshed those lnSt-
tutions and laws. which were more consonant
with the genius and spirit of the people.
GROWTH, NOT A CREATION.
Again, we may remark as springing atrrai.
ly out of the last mentioned characteristic,
that the Common Law, perhaps even more
than our language and literature, IS gfoHM,
not u creation Il development; an evolution.
gradual and progressive; not system mod,
clcd upon some high standard OF thcoretlcal
,f,.S,,. .t,,nn ny,I 1E.pt nVr q
into symmetry by the logic of the schools; :;
and which might have given laws to some
Platonic Republic or modern Eutopia: not q
system springiifg into being as the tabled
Minerva from the brow OF Jovc; but Il Sys-
TEN Of hlmble orig and small beginnings,
having its source in the hearlhs and homes
of the people, giving stay and support 10 Inc
virtues which consecrate tho fircside the fear
Of Goo and obedience to law; which arises
from the necessities of the hour, and is
moulded by the cXigenctes of everyday life; ;
which comes home to che "bnsincSs ;lnd 6GS-
ons7' of men, because it has been perfected IN
the field, In the workshop, in the market
place and in the forum: which discards no
foreign element as such, but arproprlateS ana
makes peculiarly its own, wha ever may pro-
mote its own development or advance the in
telests of the people. The Canon and the
Civil Law have alike contributed to its
growth, pruned its cScreScenccs. ami temper
cd lis cfuditieS. but they have been only, sub
Sidary to its development, and furnished on
ly the materials of It's larger and more rignr-
oas growth. Sars Lord Hale, our "ancitnt
laws, especially that have Il common concern,
are not the i sues Of this or that Council or
Senate, but they are the productions OF the
various experiences Of the WiSrSt thing IN the
inferior wo I'd, to wit time; which as il dis
covers day after day new inconven,cnceS so
it doth succr rSslvely apply new remedies, and
indeed is a kind of aggrc :ation of the dlscov-
cries and results, and applications Of ages
Il nd events" So also the philosophic Burke,
BY pursuing the method OF nature III the
conduct Of the state. in what we improve.
We are never wholly new. and in what we re-
tain we arc never wholly obsolete. by au-
herring in this manner aId on these priEci-
pies to our fnrefa;horS. We are guided II Il by
the superstition of the antiquary, but by the
Spirit of pilOsOpn1c untlO%y; binding up the
0nSlitItl,'n OF our country. with our delrSt
domestic ties: adopting our fundamental
laws into the bosom of our family affections,
kpepn" ins"parlbe anl chcriSEing with all
the warmth of their combined and mutually
reflected charity, our State, our hearths, oar
sepuchres and our altarS.'
a SYSTEM FOUNDED On PRECEDENT.
AS connected with the last mon ntioned char
We MAY again remark, that the
Common Law, is empha,icaiy system
founded on precedent. The memorable an
Swer of the Parliament OF Merton 10 the pre-
latrS who wanted to make the municipal law
conform 10 the Canon Law, SO as to leSili-
mate issue born before wedlock-NolunnS
leges dngtiuc MutGTc'-reticcts the spirit of
the race, and giving expression to the con-
trol ing principles of English jurisprudencc;
sure. the safegua! d> Of civil and constitution
al liberty. The doctrine of stare i"ciSis
lies al the foundation OF English turispru-
dence; and the great body OF the Common
Law is to be found in the long series of re-
ported cases, coming down from the days OF
Edward II, which constitutes the only au-
thorltativc exposition Of its principles. Even
Lord Mansned, WHO made greater inn0va-
tions upon the law. than amy of his predecrs-
Sors, declared that the certainty Of aiu!c was
often OF much more Importance Than The ret-
son of it: and that Il settled rule ought to be
observed for the sake OF property; and we all
remember the Strong language of Sir William
Joncs-"No man who is not q lawyer, would
ever know how to act, and no man VINO Is
lawyer would know what to advise, unlfss
Courts were bound by authority, as the Pagan
deties were said TO be bound by the DEGREES of
fate" But amid all the changin. scenes, and
growing development Of an advancing civill-
cation, it is impossible TO preserve the ancient
boundaries, and to stand with Lord Kenyon
Super untiIuds rids. The child Out5lowS its
c.otheS, the nation in q measure ouliiveS its
traditions; and they who minister to people,
whose ships cover the seas. and whose work
shops Orersprcad the land, must accommo-
date the ancient laws to the wants Of q COM
plcX and highly advanced civilization. Hence
whilst 1t is characteristic OF the EngllSh peO-
pie, To preserve and to pcrpctuatc, it is equal
ly characieri to renoNate, to enlarge ard
10 re construct; diScarding what is obsolete,
and embodying the ancient spirit in for:ns
more adapted To The eXigcncieS Of our expand
ing civilization.
ITS RICHNESS AND VARIETY.
Hence, we remark a"ain that the Common
Ld1C is diStine uiShcd for the richness aHa td-
riety Of its elements, 0'ld The comprch"nSceneSs
Of It's provisions. At a time when the Roman
Civil Law, like the Empire Itself, cotcrcd the
earth with its oTcrshaIOWing grca mess, the
Common Law originating in q code Of savage
barbarians, found lOdgment on British soil ;
and gathering contributions alike from the
Canon and the Civil Law, the wise utter
a7lccs of its legal sages, Il Bracton, Il Glanvilc
and Il FortescnC: coke, Il Hale and Black
stone: the luminous dccrccs Of Il Holt, q Mans
field and Cam len; a i1ardwicke, a Stowc!l. J..
and an lGidOn and of those SagrS Of American
lava Marsha!l a Kent and n Story-who re-
Elected back with equal lustrc, The learning OF
Westminster Hail found its development in
that bcneticent system of Equity Ju,ispru.
de,lce, originated and perfected by a Hard
wicle. an Eldon, and others; and in that wide
domain of the Commercial LaW OF Englnnd,
which owes its origin to the genius and raricl
accomplishments of Lord Mansfield. Thus IL
greatness of England, and its Anglo American
descendants, and has developed that magnifi-
cent system of Municipal and Constitutional
Law. which fears no rivalry with any other; ;
and is worthy to dispense justice to the great
est people upon earth and u inspire and sus-
tain it's expanding civilization.
ITS FREE SPIRIT.
Finally, we may emphasize, n leading char
actcri<tic of the Common Law, which has
been perhaps abundantIy shown; its free S'ir.
IL ara re0tud for indiridtuH right, which con-
stitutes its controlling prncipie-whch finds
expression in the Federal Constitution and in
the Bill OF Rights of every State in the Union
which guarantees the incStimablc right OF
Trial by Jury, and protects against two trials
for the same offence, which protects alike per-
son and property, and furniS hes all the safe
guards OF individual right. Chancellor Kent,
with all his admiration of the Civil Law,
whilst prcierring its exposition Of the rights
and duties of tutors and guardians, and those