Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1907-08-29
AMERICAN BAR ASSOCIATION.
Continued from Page Onc)

1T belongs to Z strong race to have
the power of self-Control. Our fore
fathers were fierce and passionate, like
other Ealf-civiliZed peoples, but the Y
had this power and they restrained
themselves from overriding the process
ot law and letting passion work injas-
ticc many 4 time when men of other
races, Greeks, or Siavs, or Cclts, would
have yielded to their impulses.
so, too, they had q latent solidty
and steadiness which indisposed them
to frequent or fitful change. Compared
with their Slavonic neighbors to the
East, and their Celtic neighbors to the
West the Teutons have always been Of
| n conservative temper. This may be
so we like to think-a mark of good
| sense and patience. or it may be an at
| tribute of logged and slowly moving
minds. Anyhow, there ii is. and Gas
already remarked> for the purposes of
| law building, it is q merit of the first
magnitude.
| Further, the mcdiacval English mind
| was of a practical rather than of a
speculative type. 1t had plenty of acu-
| Ihen, plenty of logical vigor. But it did
| not run to the spinning of theories or
| the trying of experiments. When new
remedies were needed but not till then,
| new forms of writ were devised
Here. then. we have noted five char
| aCtcristicS Of those to whom we owe the
| common law. They were strong men
| and puenacous men. They respected
| authority; they could at need control
| their impulses; they were not given to
| change; they were not fertile in theory
| or invention. With these qualities they
started on the work of making a law.
How did the conditions of England
from the 18th to tie 18th century affect
th"m, and 50 guide their action as to
bring out in the fullncss of time the
legal product we have inherited-a fruit
very different from that which ripened
under the sun of Germany or France
1.-THE English King in the Middle Ages
was strong, stronger than the kings of
France or CASTLE or .AragOn. He WAS
from the DAYS Of Henry II. EDWARDS.
effective master ieNccpt for brief inter
vals) of the whole realm. His writ ran
everywhere. His aim. and that OF his
Judges. was during the 18th and 18th
centuries to build up one law. instead
of the variety Of diverse customs such
as had grown up in Continental Europe.
Thus he and they must needs strive 10
make the law clear and certain. SucI
it became.
From good motives as well az bad
ones, the king was tempted to stretch
his authority and make himself aim Dst
a despot. He was 50 strong over
against the barons that they were
obliged from time to time to ally th"m-
selves with the church-usually their
antagonist-and with the middle class
IS of small landholders and burghcrs.
This alliance was in the interests Of
freedom and of q limitation of royal
power. To it we owe Magma Charta.
and the long line of restrictions there
after imposed on arbitrary government.
Now Magma Charta is the declaration
of one generally binding law 1t is
for us of the English stock, the parent
of all instr uments defining the rcla-
tion Of citizen and sovereign. 1t is the
ancestor of you'd own Federal Consti-
tuition, as we'll as of the bill Of
Rights" provisions of all state Con-
situations.
1T was often tho interest Of the king
and his judges also, because his power
was limited and they desired to have
| ono law for tho whole land to rely on
precedent. Thus were grew up th;-t
| habit of recording and following judi
| ciaI decisions which is 50 cmincntly
| characteristic Of the common law
| "t.xactitudc of thought and express
| sion were f"stcr"d by the reference to
decide cases 1t is especially conspiC-
uouS in the car" taken by English
lawyers to separate moral from strictly
legal considerations and to distinguish
sharply issues Of law from issues Of
fact.
THE first lesson a student learned
was to consider in any given case
whether he ought to plead or dcmur.
1t is a lesson of value to all Of US in
our daily life. Half the confusions of
thought in the world. certainly not OK
ccpting the world of political discus
sions, arise because of fact or of prin-
ciplc.
ION M feature Of the common law
did your ancestors lay more stress than
on the jury and the right of every cit
izen to be tried by his peers. This right
has been Il bulwark of English freedom,
and was deemed in the 18th century to
be essential thereto.
1--WE in England have no longer that
confidence in the wisdom Of a jury in
certain classes Of civil actions which
once had, ana the tendency Of re-
cent years has been to narrow the
sphere of its employment. But the in
stitution Of the jury has had some not
ably hcne0Cent results. 1t has helped,
along with the technical rules Of plead
ing to form in us a keencr sense of the
need for separating issues of law from
issues of fact that exists anywhere
outside England and America and has
trained us how to make this distnC-
ton in every case we have to advise on
or to argue. 1t has tended to keep jul
dicial delivcranCe Of the law within
due limits of brevity. 1t has formed
the practice of using almost exclusive
w. oral evidencc. at a trial. and thus
incidentally it prevented both these Sc
cret examinations of the accused per-
sons ard that recourse to torture which
were common in Continental Europe. 1t
confirmed the ancient usage of making
judicial proceedings public and thus
subject to the watchful eye of popular
opinion. And it mitigated the harshness
of the penal law which belongs TO all
comDaratiyely rude societies and was