332 HISTORY OF COMMON LAW 



influence on the modern world, and a comparison of the various legal 

 systems which have been their fruit. 



Whatever preceded the Roman law may, for the purposes of trac- 

 ing the development of legal institutions, not only in Europe and 

 America, but now to a large extent in Asia, be regarded as merged 

 in it. The unwritten law took on written form as a finality so far 

 as government could accomplish it, under Justinian. But soon there 

 came, or began to be more manifest what had long been growing up 

 under the institutions of a decaying empire, or beyond their reach, 

 the upgrowth of other unwritten rules which at last, in every Euro- 

 pean community, large or small, took shape as its common law. 



Why was it that the Roman law was never put in formal order 

 until Rome had ceased to be the mistress of the world ? 



Why was it that later ages achieved more with the ruder instru- 

 ments of what seemed disorder and was diversity? 



Is it not that law, when distinguished from morals and considered 

 as a social rule, is personal or local rather than universal in its essential 

 attributes? 



How much of it is there of which it can truly be said with Cicero 1 

 that it is not. one law at Athens, another at Rome, but one, un- 

 changing, and eternal? 



The history of religion shows us that the early ministers of 

 religion have sought to give to law a sacred character, and make it 

 the word of God. In one sense we may still affirm this. In another 

 we cannot. 



Its substratum everywhere must be the three rules, honeste vivere; 

 alterum non laedere; suum cuique tribuere* These bear the stamp of 

 divinity. They are questioned by no one, who thinks clearly and 

 fairly; no one at least since the Christian era came in. 



It has been well said, in describing the origin of the English com- 

 mon law, "that the laborer shall receive his hire; that contracts 

 shall be obligatory, and the rights of property in all its relations 

 respected; that personal security and reputation shall be protected 

 from both malice and negligence; that the family relations shall not 

 be disturbed, nor equal justice refused to any man are not propo- 

 sitions that depend for their support upon the customs of our ances- 

 tors any more than upon the precepts of the Pandects. They would 

 be first principles in our law, whatever custom to the contrary might 

 ever have prevailed anywhere. Indeed, no custom upon any sub- 

 ject, however well established, will be tolerated by a court of justice 

 if found to contravene moral justice, or natural right, or those prin- 

 ciples of the common law that are thence derived." 8 



1 De Republica, n, 22, 33. 2 Digest, i, 1, De Justitia, et Jure, 10. 



* E. J. Phelps, Orations and Essays, 103. Cf. Bradford Corporation v. Ferrard, 

 Law Reports, 2 Chancery Div. 655, 661. 



