many of our important rules of evidence owe their origin to the Roman Law. Thus, the principle which we are in the habit of regarding as at the foundation of our criminal jurisprudence, namely, that every man is presumed to be innocent until proved guilty, is not indigenous to the Common Law at all.

Indeed, when the older modes of trial-the ordeal, battle, and wager of law-prevailed in England, the law was exactly the reverse. The accused was then presumed to be guilty, and he was only pronounced innocent if he overcame this presumption by a successful outcome of the ordeal or the battle, or by bringing forward the necessary number of witnesses who would swear not that he was innocent, but that they believed he told the truth.

In this connection it is interesting to note that while the last reference to the ordeal occurs about 1679, (Howell's State Trials, Vol. 7, page 383), trial by battle was fully recognized by Lord Ellenborough as late as 1818, in the case of Ashford vs. Thornton, I Barnewell & Alderson 405, and was not abolished until the following year by the Statute of 59 Geo. III Ch. 46; and wager of law, although falling into disuse, was yet recognized and discussed by Lord Holt in 1701 in the case of London vs. Wood, 12 Mod. 669, and again in 1805 in the case of Barry vs. Robinson, I B. & P. (N. R.) 297, and still later in 1824 in the case of King vs. Williams, 2 B. & C. 538, and was only finally abolished in 1833 by the Statute of 3 & 4 Wm. IV 42,

Sec. 13.

The truth is that the presumption of guilt was really the native English doctrine, and that, in spite of the inquisitorial character of the criminal procedure employed on the Continent, the doctrine of the presumption of innocence was nevertheless a maxim of the Civil Law, and prevaded the administration of the Criminal Law in Rome. This is clearly shown by no less an authority than Chief Justice

White in the case of Coffin vs. United States, 156 U. S. 432, 452-456.

The same is true in the case of many other presumptions which under our law must be overcome by proof. As Hunter, Grueber and McKenzie point out, the presumption of the regularity of legal proceedings, of bona fides, that one in possession of personalty has title thereto, that money moving from a debtor to a creditor is a payment and not a gift, and that the possession by a debtor of the credit instrument signifies that it has been paid, are all Roman principles.

The Common Law denied to the defendant in a civil case and to the prisoner in a criminal case the privilege of taking the stand in his own behalf, and the Statute of 25 Henry VIII, as construed by Lord Coke in 1606, made it unlawful to compel a prisoner to testify. Of all the doctrines of the Common Law which are extraordinary, none surpass this. The Common Law not only prevented a prisoner from being compelled to open his mouth, but it actually prohibited him from voluntarily doing so. The one man most interested in the proceedings, the one who of all others knew the most about the charge brought against him, could not be forced to talk, nor was he allowed to talk if he wished to.

Of course, defendants in both civil and criminal cases are now permitted to testify on their own behalf, and this was the rule of the Roman Law, and of the Codes of Justinian and of Napoleon. The prisoner in a criminal case can still not be compelled to testify, but Professor Wigmore has shown that this was not a principle original with the Common Law, nor was it contained in any of the great charters of England. It was extracted from a Roman maxim applicable to ecclesiastical practice, and became fundamental with us when it was introduced into the various constitutions of this country.

JURY SYSTEM.

The jury system, which we are so fond of calling the bulwark of our liberties, is often attributed to Anglo-Saxon origin. Messrs. Pollock and Maitland, (History of English Law, Second Edition, Vol. 1, Chapter 6), show that this was not the case at all, but that it was introduced into England by William the Conqueror, who in turn borrowed it from the Franks. Some trace it to the Roman judices, who determined the facts in litigation in Rome after the Praetor had first announced the law.

But if the jury system is not of Roman origin, it is also true that at Common Law the jury was not at all what it is today, but was composed of men who were already familiar with the litigation, and played the part of witnesses rather than of modern jurors. It was not until the latter part of the Eighteenth Century that the jury began in England to develop its present status.

Today the difficulty of securing competent men to serve, and the changing social conditions in our country, with the feelings of class unrest and prejudice incident thereto, have led to radical amendments to the system itself, such as the substitution of Jury Commissioners for the Sheriff who exclusively selected the jury at Common Law, provisions relating to qualifications for service, and the abolition in several of the States of the requirement of unanimity. It is consequently true that the modern jury is something that was quite unknown to the Common Law.

This great charter, finally wrung from King John and the barons at Runnymede in A. D. 1215, is also associated in the popular mind with the liberties of the English people,

and, therefore, with our own. It is a fact, however, that only one of its thirty-eight articles has had any substantial influence upon our institutions. This is the article which provided that no freeman should be deprived of life, liberty and property, except by the legal judgment of his peers or the law of the land.

It is a fact, however, as bills of attainder, servile parliaments and Star Chamber convictions testify, that the possibilities of this provision were not recognized in England and it was not seriously invoked there until centuries after its adoption, certainly not until the time of Lord Mansfield. Indeed, it was reserved for our own country to fully appreciate the significance of this clause and to develop its present importance.

CONCLUSIONS.

The aforegoing comparison between the laws of our country and the Civil Law of Rome is not intended to be at all exhaustive. Many other instances of similarity might be cited as, for example, in the field of procedure-in all of which the principles of the Common Law have been completely abolished, and are now of historical interest and importance only. But the comparison, extending into the heart of our law of Real Estate, Personal Property, the Domestic Relations, Mercantile Law in all its branches, the vast field of Equity, Public International Law and Conflict of Laws, and Evidence and Presumptions, is perhaps sufficient to indicate the debt, so often unacknowledged or unknown, which we owe to the Civil Law.

When we bear in mind the momentous influence of the Civil Law upon these subjects which prevade every branch of our modern life, and the extent to which Anglo-Saxon influence upon our institutions through Magna Charta and the Jury System have both been exaggerated, it is not too

much to say, that in nearly all, if not in all the important particulars which have tended more directly to create for us a simple, uniform and just system of jurisprudence, and which, therefore, have done the most for the progress of our institutions and the advancement of our civilization, in these particulars we owe little or nothing to the Common Law, when compared with the debt we owe to Rome.

On motion duly made and seconded, and after vote, the Association adjourned until Thursday, July 8th, at 10 o'clock A. M.

MORNING SESSION.

Thursday, July 8, 1915.

The Association was called to order at 10 o'clock A. M. by the President.

The President: The Secretary has some announcements to make.

The Secretary: We have applications for membership from John A. Garrett, of Rockville, Md., Mark O. Shriver, Jr., and Frank E. Welsh, Jr., of Baltimore. They have passed through the proper form and have been approved by the committee.

Thomas Foley Hisky: I move the Secretary cast the ballot of the Association for the gentlemen named.