i6
THE GREEN BAG
onus of proving that they were entitled to be seen by men of varying inheritance or ac free devolved upon them. In like manner quired impulses. the rule as to self-defence and provocation in A ni si prius judge in New Jersey decided case of assault were modified, impertinent that a bequest to Henry George to enable language from a colored man, although he him to extend the knowledge of his Single might be free, being held to afford and to be Tax system was contrary to Common Law the same excuse for an assault, as a blow as tending to the subversion of good govern from a white man. ment. A hundred years ago this same On these and other adjudications of simi principle was held to defeat the action of one lar character was built up the Common Law of the most distinguished English scholars of slavery, the influence of which is to-day seeking to recover for the destruction of the most dangerous sentiment which yet re books and manuscripts by a mob. Fortu mains to threaten the power of the Republic. nately, in the latter case, the appellate court Another instance of like character, re had advanced far enough to declare that the markable for its boldness yet accepted be Common Law needed a new rule, and that it cause of its justice and propriety, was the was lawful always to advocate a change of assertion by a distinguished judge of a Com political methods. mon Law admiralty jurisdiction over the Thousands of such instances might be commerce of the great lakes without any cited from the volumes of American reports showing clearly that this Common Law of statutory authority. It is but a few years since the new con which we boast is not a mere system of ditions of railroad transportation of passen rules, but a method of formulating legal gers required the Supreme Court of the rules to which English jurisprudence owes United States to reverse the former rule of the whole volume of its equity, and which the Common Law and make a new one. is still enlarging, enriching, modifying, re "The carrier of passengers by the dangerous stricting and adapting the unwritten law instrumentality of steam," said the Court, to the swiftly changing conditions of mod "must be held to the highest degree of dili ern life, is as stable as the human conscience gence consistent with existing and practi and alert as the eye of science. As is cable safeguards." This has now become always true of judicature it is at once a cause the Common Law of all English-speaking and consequence. Having its root in the peculiar individuality of the Visigoth, it both peoples. In the arid regions of the West where ques strengthened and was strengthened by Brit tions affecting the distribution and supply of ish insularity. It nourished the colonizing water are frequent, the courts by common spirit that sent continuous swarms from the consent apparently, have recognized and ac parent hive, each having in it the strange cepted the legal rules governing such tran instinctive germ of independent organization sactions in India, where systems of irrigation and self-directing power. The Common have been in operation for thousands of Law which was derived from the mother years. But in daily practice the practitioner country has already received its fullest de sees these rules reversed, modified, or new velopment in that newer England which rose ones substituted in these days of scientific out of the sea to protest against violation progress with a frequency that ought long and debasement. What its future will be ago to have shown the most unobservant depends upon the character of those who that the Common Law was not a specific administer it and the sentiment of the peo system of legal rules, but a universal method ples whose servant it becomes. It is the of formulating and applying legal principles mainspring of Anglo-Saxon progress and adapted to infinitely varying conditions as liberty, not because of any peculiar and in
