DEAN CHARLES NOBLE GREGORY (introducing Professor Eugene Wambaugh): — Mr. President, Ladies, and Gentlemen: The most important contribution to the theory of evolution made by America was that of the late John Fiske, of Cambridge, Massachusetts. It was to the effect that the protracted infancy, the long continued helplessness of the human race, was the occasion of the intellectual superiority of mankind over the other animals: that this long dependence of the child knit close the connection in affection and intimacy between parent and offspring and caused the former to transmit to the latter the lessons of life and experience. So the human race hived up its growing wisdom and developed beyond those races which have no such continuity of knowledge from generation to generation. Carlyle said: "My father's life is the sunken pillar on which my life rests." And so it is with us all. History is the record which transmits from age to age the lessons and events which have passed by; and this noble art and science of history in its broadest sense distinguishes man from the humbler creatures of the earth. This gives it its high place and its dignity, unsurpassed in the whole domain of scholarship. History is as necessary to the race as memory is to the individual; and lacking these there is no learning or progress for the one or the other. "Law", said Lord Davy, "is the mode of regulating the social life of people in the interest of the community." It is an ancient and beneficent science closely connected with history; and I have often quoted and hope yet to quote D'Aguesseau who justly called the lawyers "an order as old as the magistracy, as noble as virtue, as necessary as justice."' There is one beside me who comes from Cambridge, Massachusetts, from its great and venerable University, and from the very house which was in life the home of John Fiske a ripe and famous scholar in history, as his wonderful edition of Coke on Littleton assures, and one who in the law has never let his minute knowledge and observation impair the breadth of his view or the soundness of his judgment. He was formerly a valued member of our faculty of Law and has always obliged us all by holding this State and this University in kind remembrance. He will speak to us of The Relation Between General History and the History of Law. I have great pleasure and honor in presenting to you Professor Eugene Wambaugh of Harvard University. THE RELATION BETWEEN GENERAL HISTORY AND THE HISTORY OF LAW That general history and the history of law have close relation can be shown by countless concrete instances; and the subject can be approached from many points of view. The point of view to which I restrict myself is the relation between history and law as shown by an account of the rivalry of the two legal systems the Roman or Civil Law, and the English or Common Law - which divide between them the task of maintaining public and private rights in almost all countries which are commonly called Christian. To restrict the discussion still more narrowly, I confine attention to Europe and America. Even then I retain a point of view so wide that I must select only a small fraction of the available facts; for even as thus restricted, my subject is the relation between general history and the history of law as illustrated by events of two thousand years. The discussion does not assume technical knowledge of law. Every one knows that the Roman Law, having had its origin at Rome, spread with the growth of the Roman Empire to many countries, and that, under the name of the Modern Civil Law, it governs now Italy, France, Spain, Portugal, Germany, and indeed the whole mainland of the continent of Europe, except the Scandinavian countries, Turkey, and that it governs South America and Central America. Every one knows also that the English or Common Law had its origin in Germany, was developed in England, and now governs England, Ireland, and, with some exceptions, North America. Yet it must be borne in mind that whether a country is to be classed as a Civil Law country or as a Common Law country is a question of degree, and that for the purposes of this brief discussion it seems desirable to avoid details and to adopt without comment the ordinary classification. It is unnecessary to describe fully the differences between the two systems. The chief feature of the Roman Law is the emphasis laid upon the importance of obedience, whereas the chief feature of the English Law is a recognition of the value of individual independence. This point is capable of long discussion. For the present, I can simply remind you that the English Law, by having a jury, calls in the common people, so to speak, as a party to judicial transactions, even of a civil nature, and that the English Law does not save in Chanc ery, where the procedure is derived from Roman sources command the private citizen in a civil case to do anything or to leave anything undone, but simply commands a public official to seize property, sell it, and pay out the proceeds in a certain way, and that the English Law has many safeguards - perhaps too many - for the criminal. Further, the English Law requires the judge to disregard irregular acts of the executive department, and lends itself easily to that American development of constitutional law which requires the judge to disregard irregular acts of the legislature also, whereas the Roman Law, even when its famous maxim that "Whatever pleases the Emperor is law" is translated into modern language by substituting for "the Emperor" the words "the government," gives a much modified conception of the relation between the government and the citizen. Yes, though neither system of law makes a citizen either wholly independent or wholly servile, the Roman Law lays emphasis on obedience and the English Law lays emphasis on independence. The rivalry of the two systems for the mastery of the civilized world can be traced back, as I have intimated, two thousand years. The Roman Law can be found at a still earlier date -the date of the earliest of the Twelve Tables, |