The daily morning journal and courier., 1907-08-29

ones, the king was tempted to stretch his authority, and mzze himself al- most despot He was so strong over against the barons that they were .obIiged from time to time to ally themselves with the church-usually their antagonist-and with the middle classes Of small landholders and burghers, This alliance was in the interests of freedom and of a llmita- tion of royal power To 1t we owe Magma Charta, and the long tine of restrictions thereafter imposed on ar bitrary government, Now Magma .Charta is the declaration of one gen Ierally binding law. It is for us of the English stock the parent of all in- 'struments defining the relation of ctti- zen and sovereign. It Is the ancestor of your own Federal constitution, as we'll as of the Bill of Rights provi- sions of all State constitutions.
 ''It was often the interest of the king and his judges also, because his power was limited and they desired to have one law for the whole land to rely on precedent. Thus there grew |up that habit of recording and fol- lowing judicial decisions. which is so eminetly characteristic of the common law
 "Exactitude of thought and express sion were fostered by the referee to decide cases. It is especially conspic- uous in the care taken by English lawyers to separate moral from strict ly legal considerations and to distin- guish sharply issues of law from is- sues of fact.
 The first lesson a student learnt was to consider in any given case whether he ought to plead or demur. | It is a lesson of value to all of us in our daily life. Half the confusions of | thought in the world, certainly not eX- lpecting the world of political discus sions, arise because men have not learnt to ask themselves whether the i issue is one of fact or of principle.
 "On no feature of the common law did your ancestors lay more stress than on the jury and the right of every citizen to be tried by his peors. This right has been bulwark of Eng fish freedom and was deemed in the eighteenth century to be essential thereto,
 We In England have no longer that confidence in the wisdom of jury in certain classes of civil action which we once had, and the tendency of re- cent years has been to narrow the sphere of it's employment But the institution of the jury has had some notably behefcent results It has helped along with the technical rules of pleading to form in us q keener sense of the need for separating issues of law from issues of fact than exists anywhere outside England and Ameri- ca, and has trained us how to make this distinction in every case we have to advise on or to argue. It has tend ed to keep judicial deliverances of the law within due limits of brevity. It has formed the practice of using all most exclusively, oral evidence, at a trial, and thus incidentally it prevent ed both those secret examinations of the accused person and that recourse to torture which were common in IContinental Europe It confirmed the ancient usage of making judicial pro- lceedings public and thus subject to the watchful eye of popular opinion. And lit mitigated the harshness of the penal flaw which belongs to all comparative ly rude societies and was not removed from the English Statute Book till within the memory or persons still living When men were liable to be hanged for small thefts, English juries refused to convict for such offences land their refusal hastened the march Iof legislative reforms.
 "The common law which had the great merit of forbidding the use of torture, abominably frequent in Con tinetnal Europe even in the eighteenth century, and has also the merit of forming in the legal profession the feeling that an accused person ought Ito have fair run for life or freedom A sportsmanlike instinct grew up. A Judge who bullied a prisoner was con demned by professional opinion. A prosecuting counsel who over stated his case or betrayed a personal eager ness to convict the prisoner, incurred the displeasure of his brethren and was sure to hear of it afterwards.
 T have kept to the last the most strilSlng of all the historical conditions which determined the character of Anglo-American law. England was an island The English people had the chance of making new start and of creating a system of law for them selves instead of mercy adopting or adapting the Roman jurisprudence, as did at various times and in divers ways the French, the Spaniards, the Germans and Ultimately and indl. rectly) nearly all modern peoples ex- cept those of English stock. Broadly speakitfg the law of England was { new creation, not an adaptation oi the law of the empire. It has a char. acter and quality which are all its lown, and it's free spirit and tendencies have always stood out in marked con. trast to the despotic spirit and tenden' cies which France, Spain and Ger.
 many inherited from the imperial jur. lisprudence.
 T have so far been speaking of the common law as a product of the Eng
 fish intellect under certain peculiar
 historical conditions. But if it was a result it was also cause It re
 acted powerfully upon the people tha
 made it. Just as the habit of physi
 cal or mental exercise strengthens thu
 body or the mind where native energ!
 had made exercise enJoyable, so tht
 common law, once created began tt
 develop further and give more def1nitt