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 charity of the world, in order that the military duties of feudalism might be the more efficiently performed.

resources or upon the

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 Roman Law. In Rome, the idea that the family must be

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 upon the Roman Law.

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 now his property.

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 provisions of the Roman Law. It is true that under the

Roman Law marriage was regarded as a civil contract which could be terminated at any time by mutual consent, but our modern theory of the indissolubility of the marriage tie is in no sense a product of the Common Law. It is directly traceable to the influence of the Christian Church upon the ecclesiastical courts.

Our law of divorce and marriage annulment is largely statutory, because there have never been ecclesiastical courts in this country, but it represents the outgrowth of the practices and customs of the ecclesiastical courts administering Roman Law.

Under the Common Law a child not born in lawful wedlock was not legitimatized by the subsequent marriage of its parents. Nor was adoption recognized, so that the offspring of another could not be given the status of the child and heir of a parent by adoption. The Roman Law recognized the child's legitimacy and adoption in both of these cases. It is the same by statute in most, if not all, of the United States today, so that in these two important and humane respects we follow the principles of the Roman Law.

Uuder the Common Law infants who inherited property were deprived of their income until they became of age because of the feudal aid of wardship, on the theory that the lord of the manor should have the means wherewith to hire someone who could render military service until the infant heir, if a male, became old enough to fight, or if a female, old enough to marry a husband who could fight. The Aids of Relief or Primer Seizen and Livery represented financial levies made upon the ward when he came of age before he was allowed to enjoy his estate. These hardships of the Common Law ceased, of course, when feudalism fell, and the law of guardianship, with its attendant conservation of the infant's income, was developed by the Chancellor along the lines of Roman Law principles.

Justice Holmes in his work on the Common Law states that the influence of the Roman Law of Master and Servant upon our own law on the same subject is shown in every book which has been written for the last five hundred years.

Thus it is seen that the important doctrines of our law of Domestic Relations are all referable to the Civil Law.

MERCANTILE LAW.

The Common Law became in time rigid and inelastic, and incapable of moulding itself to new conditions. This was partly due to the strictness with which the doctrine of Stare Decisis was applied. It was more directly due to the statute which in 1258 prohibited the issuance of any new form of writs, without the King's consent.

At that time, before the courts of Common Law had jurisdiction to try any case at all it was necessary for the litigant in every instance to secure a writ from the Chancellor, delegating to the court the King's inherent right to administer justice.

After the passage of the statute mentioned, it became the practice for the Common Law Judges to be consulted before any new forms of writs were issued, and they, being devoted to precedents, and wedded to the idea that the Common Law as it then existed furnished an adequate remedy for every wrong that ought to be actionable, discouraged the issuance of new writs. This embargo against new writs made it impossible for litigants to obtain relief in any case not covered by some existing writ.

The discovery of America, the rounding of the Cape of Good Hope by Bartholemew Diaz, the opening of a passage by de Gama through the Straits of Mozambique into the Indian Ocean, and later the cessation of the Civil Wars in England and the gradual disintegration of the Feudal System, all gave an impetus to trade and commerce, which