ondly, that although the doctrine of waiver was well known to the Romans, and beyond all question to Festus, yet no member of the court evinced any disposition to hold that Paul, by entering into his defense upon the merits (as he afterward did), had thereby waived the appeal previously taken. Festus is entitled to a niche in the temple of fame among the sages of the law.

The Romans, in the course of their conquests, subjugated the Britons and established their manners and customs among them; and when the Conqueror arrived a thousand years later, he found traces of the Roman laws and institutions still in existence. He seized and appropriated whatever he deemed necessary or useful in his great design of fastening upon England the feudal system, the genius of which was the development of the martial spirit. And while we are told that the civil law was never adopted even as a subsidiary law in England, yet its influence in the construction and interpretation of the English Constitution and laws has been potent. The principles of Magna Charta, as before suggested, were derived from the civil law. The statute quia emptores, passed two hundred years after the conquest, was in response to the longing of the English people for the free alienation of lands enjoyed by the Romans. The devices, such as subinfeudation, fines, and common recoveries, that were adopted to free the land from the feudal tenures, each and all had their origin in the civil law; and so the influence of Roman jurisprudence continued, sometimes weak and sometimes strong, but always present, until the sixteenth century, when both the religion and the spirit of the laws of Rome were consumed in the flames of the Reformation.

About the beginning of the seventeenth century two men appeared in England, each of whom has left upon the jurisprudence of his country the imperishable mark of his genius. These men were Edward Coke and Francis Bacon. We have nothing to do with the personal quarrels, discreditable alike to each of these two great men; with the hatred of each toward the other, and the envy with which each witnessed every step in the professional or official advancement of the other.

I speak first of Coke. The best technical lawyer of his age, and one of the greatest and most incorruptible judges that England has produced, he was distinctly the outgrowth of the feudal system. He had achieved his place at the head of the English bar by his argument in Shelley's case, which was determined in accordance with feudal principles. In manners he is said to have been an irascible, obstinate and brutal man; and in his prosecution of Sir Walter Raleigh he resorted to unfair methods, attempted to secure the admission of illegal testimony, and overwhelmed the prisoner with vituperation and abuse. It is said, also, that he was overbearing and insulting in his treatment of counsel, and unkind to the litigants who appeared before him. In extenuation of these faults (if they need any extenuation), it may be said that he declared the law in its purity on all occasions; and that if he was harsh in his treatment of ordinary litigants, he was uncomplying with the king, and refused to heed the royal command in his decisions; that he was removed for his non-compliance successively from the Common Pleas and Kings' Bench, and was permitted to close his great career by the formulation of the Petition of Right.

Although Coke has mastered the Latin language as few moderns have been able to master it, and was beyond question familiar with the learning of the civil law, he steadfastly refused to extend its influence. For every judgment he must either find a precedent in the common law, or else reach his conclusions by means alone of the general principles of the common law. He reveled in the casuistry of the common law system of pleading, and was unable to imagine that it could ever be improved.

In speaking of Coke, it is impossible for me to avoid a brief digression. The quack has generally avoided our profession; but the vender of nostrums has assailed us at last, and beseeching us to buy their books, they flood us with circulars and calendars in which is sought to be inculcated the dangerous heresy that there is a royal road to legal attainments. We are told that a talisman has been discovered which is automatically to unlock the secrets of the law. The older members of the profession are generally

safe from the snares of these charlatans, but it is difficult to overestimate their evil influence upon the minds of young students.

Coke wrote books, and presumably desired that they would be accepted and approved by the profession; but he utterly repudiated as an insult the intimation that anything that he had written would tend to lighten the labors of the student. On the contrary, it was his hope and wish that the suggestions in his books would open new avenues of investigation with a corresponding increase of labor. He knew, as few other lawyers have known, that eminence in the profession is obtained only through unremitting toil. We all appreciate the value of a systematic arrangement of a subject under discussion, and Coke, probably in anticipation of the criticisms of posterity because of the apparent disorder in his writings, in the epilogue of his Commentaries on Littleton, said: "I had once intended for the ease of our student to have made a table to these institutes. But when I considered that tables and abridgements are most profitable to them that make them, I have left that work to every studious reader."

The character of Bacon was in many respects the opposite of that of Coke. The integrity of Coke he altogether lacked. He was a sycophant and an ingrate, and beyond all this, he yielded to private solicitation in the rendition of his judgments, and, according to his own confession, was guilty of the grossest corruption.

Bacon, while inferior in technical knowledge to Coke, was better acquainted than any lawyer of his age with the philosophy of the law. He was a reformer, a critic, and, if you please, an innovator. He saw the defects and the incongruities of the common law procedure, and laid the foundation for the great improvements that have been witnessed since his day. His writings breathe the spirit of the civil law, and if he had been permitted to carry into effect his project of a digest of the laws, many reforms the benefit of which we now enjoy would have been sooner accomplished. The book that he advised students to read beyond all books was the treatise De regulis juris. His Ordinances in Chancery, prepared for his own guidance as Lord Chancellor, were the first faint promise of the code of procedure that was to appear

It

in a distant land more than two hundred years after his death. is not too much to say that he re-established the influence of the civil law in English jurisprudence.

Sir Mathew Hale acknowledged the debt that he owed to the civil law, and lamented that its spirit was not more potent in his day. Lord Mansfield, the greatest judge of his century, labored zealously to cultivate a knowledge of the civil law as a remedy for the delays, uncertainties, and expenditures encountered by litigants. Even Holt, thoroughly English as he was, wished to see the influence of the civil law more strongly manifested in the interpretation of the common law.

Coming to our own country,-if John Marshall had no other title to fame, he would have achieved immortality by his decision in McCullough vs. Maryland, where he reached his momentous conclusions simply by the application of a maxim of the civil law.

It was left for our own day to achieve the final emancipation of the law in America from the bondage of the common law procedure. The pleadings in civil cases, both equitable and legal, had grown so cumbersome, and the learning upon the subject was so elaborated with uncertainties that the miscarriages of justice that ensued were a reproach to the age. A very large proportion of the cases decided in the appellate courts was decided not upon the substantial merits of the controversy, but upon ancillary questions of procedure raised by skillful pleaders. The men who devised and secured the adoption of our code were not only profound lawyers, but were also wise, far-seeing statesmen; and they inaugurated a plan which required the pleadings in civil actions to be written in plain language understood by all, stating the ultimate facts and abolishing all feigned issues.

The code says the complaint shall contain "a statement of the facts constituting the cause of action, in orderly and concise language, without unnecessary repetition." And again, we learn from the code that the question that the complaint does not state facts sufficient to constitute a cause of action may be raised at any time. So it would seem to be manifest that this is one of the requirements of the code of civil procedure that can never be waived.

Story paved the way for these declarations of the code in his discussion of equity procedure, and his observations are equally true of all civil procedure. He said:

"But whatever may be the object of the bill, the first and fundamental rule which is always indispensable to be observed is that it must state a case within the appropriate jurisdiction of a court of equity. If it fails in this respect the error is fatal at every stage of the cause, and can never be cured by any waiver or course of procedure by the parties; for consent cannot confer a jurisdiction not vested by law, and although many errors and irregularities may be waived by the parties or be cured by not being objected to, the court itself cannot act except upon its own intrinsic authority in matters of jurisdiction, and every excess will amount to a usurpation which will make its decretal orders a nullity, or infect them with a ruinous infirmity."

Now, after the lapse of a half century since the first institution of the code of procedure, we are again confronted with the same conditions that the code was devised to abate. Although it would seem as if sufficient time had elapsed since the introduction of the code for a settlement of its principles, the current reports are filled with decisions upon questions of pleading, and innumerable causes are determined upon matters of procedure. The murmurs of laymen against the administration of justice are everywhere heard, and the conviction is spreading among the people that the law has left its first love and has ceased to do its first works. The people do not love the law or its ministers, and they are willing to suffer indignities and wrongs rather than resort to the courts for redress. The popular opinion seems to be that the principles of the law are wise and beneficent, and reasonable men absolve the ministers of justice from the imputation of indirection; and still the idea lingers that by reason of the delay, the uncertainty, and the unpleasant episodes incident to proceedings in court, wrongs should be endured and injustice tolerated rather than invoke the aid of the law.

The important pressing work before the profession now is to find a remedy for these discontents, and to re-establish the law in