D. 1066, William the Bastard, with his hordes of robber barons and pirates and buccaneer followers, introduced the Feudal System into Great Britain, and established it upon the lands which he confiscated from all who had opposed him. Twenty years later, at the Council of Sarum, the principal landowners whose property had not been confiscated were compelled, from the necessity of self-defense and to save themselves from oppression, to become William's vassels like all the rest, and to place their lands under the same system. Thus the Fuedal System became established throughout Great Britain, and with its inauguration the development of the Common Law began.

Blackstone may speak of the Feudal System as “a plan of simplicity and liberty." (Commentaries, Book II, p. *59.) Romantic writers may sing the brave and heroic deeds of the lords and barons of feudal days. Artists may draw around those times the halo of past glories and of deeds of daring. But the truth is that the purpose of the Feudal System was oppression, and its agency to accomplish this was force. The system needed soldiers, and it trained men only for the duty of soldiers. Women and children, the young and the old, the weak and the helpless, all alike were subordinated to the spirit of war. It was the prostitution of the civic, industrial and economic life of the country before an absolute and despotic militarism. The men who founded it and who maintained it for the purpose of perpetuating their own power and conquests have nothing but the passing centuries to thank if today they are regarded in any other light than as ruffians and bandits.

Such was the social system out of which the Common Law of England grew. Such was the system, and such were the founders of the system, which permeated British jurisprudence, and which was reflected in nearly every legal principle of the Common Law. Would it not be

free, owe much in our institutions to such a system as that? Would it not be strange if we, of all people, have inherited a jurisprudence whose principles are the outgrowth of the despotic, military organization which produced the Common Law?

In truth, we owe substantially nothing to English feudalism, and, therefore, surprisingly little to the Common Law. No matter what be the field of law we examine, nearly every important principle of our jurisprudence today is the reverse of what was the corresponding principle of the Common Law. Nearly every important legal principle which our courts now apply corresponds, not to the Common Law at all, but to the Civil Law of Rome. It is really an untruth to speak of ours as a Common Law Country. It is much nearer the truth to say that we are a Civil Law Country. It is the purpose of this paper to prove this in the case of several of the more important subjects of our law.

REAL PROPERTY.

Under the Common Law system of feudalism the holder of land never owned it. His tenure was always conditional upon the rendition of feudal services to his immediate lord. In every State in this country this feudal principal has been abolished, either expressly or in effect. The ownership of land is now allodial, or absolute and free. This was the case at Rome, so that in this fundamental particular our law is the same as the Roman Law, and the exact opposite of the Common Law.

With respect to the alienation of land, the Common Law did not at first permit a conveyance by deed or a devise by will, without the lord's consent. Otherwise the vassal would have been able to relieve himself from his

gation to another less competent than himself to preform it. Later, conveyances were permitted through livery of seizen, but this was a fanciful and symbolic process which itself became the direct cause of various restrictions upon the power to convey. The power to will had to be conferred by the Statute of Wills, passed in A. D. 1540. Livery of seizen has long since been abolished by statutes passed in the different States. In Maryland, it was abolished by the Act of 1715, Ch. 47. The power to will is, of course, everywhere recognized. The result is that land is now freely transferable by both deed and will. It was the same at Rome. Here again we follow not the Common Law, but the Roman Law.

With respect to inheritance, the two fundamental principles of the Common Law were, first, the preference of males to females, and secondly, primogeniture. Both of these principles owed their existence to the military character of feudalism. Males were preferred to females because males could fight and females could not. The eldest son received the whole inheritance because he was deemed the most competent to take his father's place in rendering military service, and also in order to prevent the splitting up of feuds and the consequent division of military responsibility. The younger sons and the daughters of the family were left penniless and without means of support or a home in which to live. They were thrown upon their own resources or upon the charity of the world, in order that the military duties of feudalism might be the more efficiently performed.

There is nothing analagous to this in the laws of inheritance in this country. In no one of the United States is any distinction made in the laws of inheritance between males. and females or between the elder son and his younger brothers. Neither were any such distinctions made under

perpetuated in order that there should always be some one to observe the family religious rites resulted in the doctrine that land passed by inheritance equally to all the children, male and female alike. In the matter of inheritance, therefore, our law is not the Common Law at all. It is the Civil Law of Rome.

Thus the fundamental doctrines of our law which pertain to the absolute ownership of land, to its alienation by deed or will, and to the principles of inheritance, are all Roman Law doctrines. They were unknown to the Common Law.

PERSONAL PROPERTY.

Feudalism was not concerned with personal property, except, perhaps, heirlooms and domestic animals and agricultural implements. Personal property is the subject of trade and commerce, and in the days when war was the business of men there was little or no room for trade or commerce. Such personal property as was regarded as of any importance was always seized by the feudal lord upon the tenant's death. In time the influence of the church compelled the feudal lord to deliver the personal property to the keeping of the bishop of the diocese, who became the administrator, and distributed it through the ecclesiastical courts in accordance with the principles of succession of the Roman Law. All that Blackstone has to say about personal property he took from the treatise of Henry de Bracton, published about A. D. 1267, and what Bracton wrote was confessedly extracted from the Code of Justinian. In fact, the Common Law had no law of personal property at all. Such law as it professed to have, and practically all of our modern laws upon the subject, are based

DOMESTIC RELATIONS.

Under the Common Law the wife's indentity was merged into that of her husband. She was not fitted to render military service, and, therefore, she could not inherit, she could incur no obligations which might become a charge upon the land, she was not entitled to the profits of her industry, and such property as she had at the time of her marriage or acquired later became her husband's. At her husband's death she was allowed a meagre period of forty days before being turned out of her home upon her own resources or upon the charity of strangers, for fear that the heir, who in many cases was no child or kin of hers, might be deprived in some part of what was property.

now his

Today married women's enabling acts have conferred upon married women the status which the Common Law denied them, and in practically all of the States they now enjoy the same personal, contractual and property rights as do men. In these respects our law is the law of Rome, and of the Codes of Justinian and of Napoleon. Hardly an important trace of the Common Law pertaining to married women remains.

It is the same with respect to our law relating to the marriage contract itself, the way in which that contract is regarded, the manner in which it may be annulled or abrogated, and the impediments to marriage. In England these matters were withdrawn from the Common Law Courts altogether, and fell within the jurisdiction conceded to the ecclesiastical courts. These latter courts administered, of course, the Roman Law.

The restrictions arising from relationship, nonage and the like are practically identical with the corresponding