1

451 B. C.1 The English Law, however, does not become known until the time of Roman contact with the Germans. Thus it happens that the earliest date in the history of the English Law is 55 B. C.

There are three reasons why that later date is memorable for Englishmen and Americans; and these reasons illustrate the relation between general history and legal history, and are especially important in tracing the rivalry between the Roman Law and the English Law. In 55 B. C., as a mere incident of Roman conquest, Julius Caesar acquired that knowledge of Germanic custom which enabled him to insert in his Commentaries on the Galic War the description which is still used as the beginning of English constitutional and legal history. Again, in that year Caesar, for the first time succeeding in crossing the Rhine, was driven back by the Germans, and thus the infant Common Law escaped the danger of being destroyed and superseded in its first home, the secluded corner where Denmark juts out from the mainland of Europe at a right angle. Finally, in that year Caesar, attacking for the first time Britain,

1 There are differences of opinion as to the accuracy of this date and of other dates used in this address; but the differences of opinion are not so serious as to be of interest for the present purpose, and consequently the dates given in ordinary books of reference are repeated herein without comment.

failed to make a conquest; and thus the Common Law, as yet scarcely born, was not deprived of the possibility of occupying what by and by became its second home. Caesar, it is true, was

not wholly discouraged by these two failures, and shortly afterwards made further attempts upon both Britain and Germany; but the results were much as before, and 55 B. C. stands without competition as the important initial date in the history of the Common Law-the year when it was determined that neither the first nor the second home of that system should be a part of the vast region by Caesar permanently brought within the power of Rome, and the year when the Roman and the Germanic systems, so far as they existed, being first brought face to face in the presence of a skilled statesman and observer, may be imagined, by a sort of personification, to have learned of each other's existence and to have become consciously rivals for the control of men of European descent throughout all time.

The Germanic system, as already intimated, had been but slightly developed in 55 B. C., although enough existed to attract the attention of Caesar; but the Roman system had left its days of infancy behind, and, in the very time of Caesar, it seems, was taught much after the fashion in which law was until recently taught

in American law offices, as one can learn from a diligent student and practitioner of that day, Cicero.

As Caesar was primarily a statesman and only secondarily a soldier, doubtless he appreciated that the real purpose of war was to enlarge political influence and to extend civilization; and unquestionably he knew before the fact, quite as well as we knew after the fact, that the result of his conquests would be to extend throughout western Europe the Latin language, the use of Roman models for literature and art, and the use of the Roman Law, and that there would grow up, as time passed, a development of the Roman Law in harmony with the needs of later times in short, the Modern Civil Law. Yet even Caesar could not foresee that his conquests paved the way for the rapid spread of Latin Christianity, and hence for the rise and dissemination of the Canon Law, a system based upon the Roman Law, nor that his failure to conquer Germany and Britain left an opportunity for the growth of the great force, the Common Law, which was to hold back from the supremacy of the Roman Law - that most permanent relic of the Empire a great and growing fraction of

the world.

Today what for Caesar could have been, at the most, prophecy, lies open before us as his

tory; and as we know that in the regions added to Rome by Caesar the local systems of law were to a great extent destroyed and the Roman system substituted in their place — such a change of systems, indeed, always occurring even now when people of decidedly inferior civilization are conquered -we have no room to doubt that a decisive victory for Caesar in either Germany or Britain would have terminated the race between the Common Law and the Civil Law at the very beginning.

Before we come to another date of vast importance, centuries pass. It is true that just before the birth of Christ, and also a generation thereafter, there were renewed attempts, in the reigns of Augustus and Tiberius, to conquer Germany-attempts to which we owe the elaborate description of Germanic institutions by Tacitus; - but these were ultimately as unsuccessful as those of Caesar. It is true too that in A. D. 43 the Romans gained such a foothold in Britain as to erect it into a Roman province -a conquest followed by Roman occupation for almost as long a time as that which has today elapsed since the discovery of America, and threatening, as is obvious enough, to fasten the Civil Law upon Britain with such firmness as to render the country a wholly inhospitable and impossible home for the Common Law. Yet for

reasons not yet fully discovered, the Romanization of Britain was incomplete, and thus, almost by a miracle, as it seems today, the Common Law remained for Britain a possibility. In or about 411 A. D. the possibility was strengthened; for then the Romans abandoned Britain. That abandonment, it should be borne in mind, was caused by the pressure which men of Germanic race were bringing to bear upon the Romans in other parts of the Empire -the Huns, the Goths, and the Vandals being unconsciously saviours of Britain and promoters of the Common Law.

The next date of undeniable importance in the history of the rivalry between the two systems is 449, the famous year when the possibly mythical Hengist and Horsa led the first Teutonic settlers from the first home of the Common Law to England. At that time Germanic Law was a very scanty and simple affair as can be seen from the almost contemporaneous relics of the Salian Franks - and was grotesquely incapable of comparison with the Civil Law, which was already represented by a vast, acute, and polished literature worthy of comparison with the English Law of the present day, and was a few years later to be embodied in the Institutes, Digest, and Code of Justinian.