goods, the recognition of peaceable enjoyment and control as deserving the protection of the law, the defense of them against usurpation, and, at need, restitution by the power of the State for the person who has been deprived by them by unauthorized force; these are the points that stand in the forefront of the common law when we take it as presented by its own history and in its native authority. Or, more briefly, possession guaranteed by law is with us a primary, not a secondary, notion. Possession and rights to possess are the subject-matter of our remedies and forms of action. The notion of ownership, as the maximum of claim or right in a specific thing allowed by law, is not primary, but developed out of conflicting claims to possession and disposal. He is the true owner who has the best right to possess, and to set or leave others in his place fortified with like rights and exercising like powers over the thing in question.

This is the line of development indicated by our own authorities. It leads us gradually from the crude facts to the artificial ideas of law, from the visible will and competence of the Germanic warrior to use his arms against any intruder on his homestead to the title, rights, and priorities of the modern holder of stock or debentures. It is impossible here to follow the steps; they follow a long and sometimes intricate history. But is the process, on the face of it, absurd? Is there anything unreasonable about it? Can one assign any obvious objection against using the genius of our own laws as the most promising guide to their fundamental ideas? As it is, our students, not to say the books they put their trust in, are in little better plight than our learned ancestors of the eighteenth century. They too commonly start with a smattering of Roman doctrine, taken directly or indirectly from Justinian, then find (as they needs must) a great gulf between Roman and English methods, and, lastly, make desperate endeavors to span it with a sort of magic bridge, by invoking supposed mysteries of feudalism which, in truth, are in no way to the purpose; and they are still on the wrong side when all is done.

Is there any real need for this trouble? I venture to think not. Let us dare to be true to ourselves, and even if the first steps seem less easy (for everybody thinks he knows by the light of nature what ownership is, and resents being undeceived), we shall

find increasing light instead of gathering darkness as we go farther on the way. We may smile at our mediaeval ancestors' anxiety to keep something tangible to hold on to, their shrinking from incorporeal things as something uncanny, their attempts, as late as the fourteenth century, to give delivery of an advowson by the handle of the church door; their Germanic simplicity may be called rude and materialistic; but at all events they did their best to keep us in sight of living facts. In some respects they failed; we cannot deny it. It is no fault of theirs that the arbitrary legislation of the Tudor period plunged us into a turbid ocean, vexed by battles of worse than fabulous monsters, in whose depths the gleams of a scintilla juris may throw a darkling light on the gambols of executory limitations, a brood of coiling, slippery creatures abhorred of the pure common law, or on the death-struggle of a legal estate sucked dry in the octopus-like arms of a resulting use; while on the surface, peradventure, a shoal of equitable remainders may be seen skimming the waves in flight from that insatiable enemy of

their kind, an outstanding term. There are some ravages of

history that philosophy cannot repair, and the repentance of later generations can at best only patch.

Observe that when I defend our fathers I make no pretense of right to attack the Roman institutional system on its own ground. The history of Roman forms of action and Roman legal categories is quite different from ours. The common law has never had a procedure answering to the Roman vindication. At first sight it may seem a small matter whether a man who finds his cattle in strange hands shall say "Those are my beasts; it is no business of mine where you got them: I claim them because they are mine" (which is the Roman way), or shall reverse the order of thought and say "Where did you get those beasts? for they were mine, and you have no business to hold them against me" (which is the Germanic way). Practically, no doubt, the result may come to much the same thing; but the divergence of method goes pretty deep. The formulas of the Roman republican period are already more modern and abstract than ours, and the Roman lawyers of the Empire, when they began to systematize, had to construct their system accordingly. The fact that their work, in its main lines, has lasted to this day, and has stamped itself on the modern codes of not only Latin but Teutonic nations,

is enough to show that it was not ill done. Only when modern admirers claim universal speculative supremacy for the Roman ideas and methods need we feel called upon to protest. In that case we must remind the too zealous Romanizer that the masters of modern Roman law, notwithstanding their advantages in systematic training and in having a comparatively manageable bulk of material, are still not much nearer than ourselves to the attainment of a unanimous or decisive last word on possession, or ownership, or divers other fundamental topics.

One might produce further examples to show the danger of being in haste to abandon our own methods, and the still greater dangers that arise from well-meant attempts to improve them by mixing them with others. Thus our native common law procedure is in essence contentious; it is a combat between parties in which the court is only umpire. Our equity procedure, a sufficiently acclimatized exotic, but still an exotic, is in essence officious; it represents (though one cannot say that in modern times it has actually been) an active inquiry by the court, aimed at extracting the truth of the matter in the court's own way. No one has put this contrast on record more clearly or forcibly than Mr. Langdell. Twenty years ago the authors of our Judicature Acts in England, men of the highest eminence, but trained exclusively in the chancery system, went about to engraft considerable parts of that system on the practice of the Courts of Common Law. What came of their good intentions? Instead of the simplicity and substantial equity which they looked for, the new birth of justice was found to be perplexed practice, vexatious interlocutory proceedings, and multiplication of appeals and costs, so that for several years the latter state of the suitor was worse than the former. Repeated revision of the rules of court, and some fresh legislation, was needed before the reconstructed machine would work smoothly. But I may not pursue these matters here, and can only guess that perhaps American parallels might be found. I think I have shown that the common law has a right to its individuality, and, if we now turn to facts observable on this continent and elsewhere in order to see how that right maintains itself in practice, I do not think we can fairly be accused of taking refuge in empiricism.

The vitality of any coherent scheme of rules or doctrine may

be tested in various ways. Among other tests the power of holding or gaining ground in competition with rivals, and the faculty of assimilating new matter without being overwhelmed by it, are perhaps as good as any. We shall find, I think, that in religious and philosophical debate each advocate concerns himself to justify the system of his choice, according to these tests, quite as much as to establish its truth or superiority by demonstrative proof. If I may use the highest example without offense, modern theology, so far as it is apologetic and not purely critical, pays much more attention to the general standing of Christianity in relation to modern ethics and civilization than to discussing the testimony of the apostles and evangelists as if it were a series of findings by a special jury. The plain man asks not what you can prove about yourself, but what you have done, and can do; and the philosopher may perhaps find more reason in this method than the plain man himself knows. Applying it to the case in hand, we see that the common law has had considerable opportunities and trials, both in the East and in the West, in presence of other systems.

In British India the general principles of our law, by a process which we may summarily describe as judicial application confirmed and extended by legislation, have in the course of this century, but much more rapidly within the last generation, covered the whole field of criminal law, civil wrongs, contract, evidence, procedure in the higher, if not in the lower, courts, and a good deal of the law of property. Family relations and inheritance are the remaining stronghold of the native systems of personal law, which are fortified by their intimate connection with religious or semi-religious custom. It is not much to say that a modified English law is thus becoming the general law of British India, for if the French instead of ourselves had conquered India, the same thing must have happened, only that the "justice, equity, and good conscience" by which European judges had to guide themselves in default of any other applicable rule would have been Gallican and not Anglican. But it is something to say that the common law has proved equal to its task. The Indian penal code, which is English criminal law simplified and set in order, has worked for more than a generation, among people of every degree of civilization, with but little occasion for amendment. In the matter of

business and commerce English law has not only established itself but has been ratified by deliberate legislation, subject to the reform of some few anomalies which we might have reformed at home ere now, and to the abrogation of some few rules that had ceased to be of much importance at home, and were deemed unsuitable for Indian conditions. More than this, principles of equitable jurisprudence which we seldom have occasion to remember in modern English practice have been successfully revived in Indian jurisdictions within our own time for the discomfiture of oppressive and fraudulent money-lenders. The details of procedure, both civil and criminal, have undergone much revision and transformation in British India, as in most other civilized countries and states; and there is doubtless much to be said of both success and failure in this department. But, since neither the praise nor the blame that may be due to modern codes of procedure can be said to touch the common law, save in a very remote way, they do not concern us here.

There is another example in which you take a neighborly interest, that of the Province of Quebec. You are aware that the inhabitants of Lower Canada live in the guaranteed enjoyment of a law whose base is not English but French, and that their civil code, enacted not quite a generation ago, is avowedly modeled on the Code Napoléon. Nevertheless the common law (which of course prevails in the other Provinces of the Dominion) has set its mark to some extent on the substance of legal justice in French Canada, and to a considerable extent on procedure. We find in the civil procedure of Lower Canada, as we should expect, the decisory oath of the defendant, and other features of pleading and process common to all modern systems derived from Roman law; but we also find that in a large proportion of causes either party can demand a trial by jury. This may be said to show the common law competing against a powerful rival under the greatest possible disadvantage, or rather making itself felt in spite of being excluded from formal competition.

Perhaps the assimilation of new matter is a yet stricter test of vital power than tenacity on old ground, or prevalence over enfeebled rivals. In this case the great example is the incorporation of the law merchant with the common law, and the immense development of commercial law that accompanied and followed this