HISTORY OF LAW 269 



not justified by their results in the actual administration of the 

 law. 



Another marked difference between the two systems is the separa- 

 tion in practical administration of the functions of determining the 

 law and the facts for the particular case. There was a Separation 

 similar separation under the civil law as administered ofQues- 

 at Rome, with this difference, however, that the general L &W an< j 

 principle to be applied to the case was determined ab- Fact, 

 stractly beforehand, and the facts ascertained afterwards, while in 

 the common law system the principles are expounded only with 

 reference to the particular facts. But in the modern civil law prin- 

 ciples and facts are usually determined in one investigation and 

 without any definite distinction as between the two processes. The 

 common law jury trial is cumbersome, and sometimes unsatisfactory 

 by reason of this separation of functions between the jury and the 

 judge; but on the whole the development of the law as a system is 

 thereby promoted, and there is a practical advantage in placing the 

 judge with relation to the case in the attitude of an arbitrator of the 

 law, superintending only the determination of questions of fact. It 

 can hardly be said that in this respect either system possesses any 

 marked advantage over the other. Certainly there would be no 

 gain to either system from any attempt to introduce into it the 

 methods of the other. Each has had its historical growth, and each 

 has become a part of the social organization of the people among 

 whom it prevails. 



It may be justly claimed for the common law system that it 

 represents more fully the conception of law as the outgrowth of 

 social conditions, and resting for its authority upon the Rests on 

 aggregate social will. There is something more than 

 rhetorical commonplace in speaking of the common Will, 

 law as the law of the people. The civil law, on the other hand, is pecu- 

 liarly the law of a sovereign, whether that sovereign be a monarch 

 or a legislative body with unrestricted powers. 



It is this last distinction which suggests a certain dramatic 

 interest attaching to the contest for supremacy on the American 

 continents between the Latin races and the Anglo- pjyjgjQj. * 

 Saxon race as affecting the history of law. The Spaniards America 

 planted the civil law in the states of South America and common 

 in Mexico, where it still remains the foundation of juris- Law and 

 prudence. The Anglo-Saxons brought the common law Law- 



to the Atlantic coast of the continent of North America. The 

 final supremacy of the common law in Canada and in the other 

 portions of the North American Continent east of the Mississippi 

 was determined by the result of the long conflict between the English 

 and the French. But it remained for the United States, in the acqui- 



