Law Courts 225
with the evolution of the common-law courts in mind It
is not hard to understand that there would come a tirne
when the Chancellor's conscience had become ua technical
conscience " and his court as much bound by precedent as
its predecessors. x
4. The Common Law.—England's exceptional legal
history has been an important element in determining
the final character of English government. In the period
covered by this book, the main features of the law were
established. It is therefore proper here, without touch-
ing the detail of substantive law, to speak briefly of
these distinguishing traits; especially to note their con-
stitutional bearing. The term common law is at present
used in more than one sense and often vaguely,
It has been thus defined:
(a) In its most general sense, the system of law in force
among English-speaking peoples, and derived from England,
in contradistinction to the civil or Roman law and the canon
or ecclesiastical law. (b) More appropriately, the parts of
the former system which do not rest for their authority on
any subsisting express legislative act; the unwritten law. In
this sense common law consists in those principles and rules
which are gathered from the reports of adjudged cases, from
the opinions of text writers and commentators, and from
1 For a brief summary of the later history of Chancery, see Medley,
English Constitutional History', pp. 410-413. Maitland has summed up the
constitutional significance of the two late judicial developments with which
this section has been concerned: "Somehow or another England, after a
fashion all her own, had stumbled into a scheme for the reconciliation of
permanence with progress. The old medieval criminal law could be pre-
served because a Court of Star Chamber would supply its deficiencies;
the old private law could be preserved, developed, transfigured, because
other modes of trial were limiting it to an appropriate sphere. And so our
old law maintained its continuity . . . The Star Chamber and the
Chancery were dangerous to our political liberties. Bacon could tell
King James that the Chancery was the court of his absolute power. But
if we look abroad we shall find good reason for thinking that but for these
institutions our old-fashioned national law, unable out of its own resources
to meet the requirements of a new age, would have utterly broken down,
and the 'ungodly jumble' would have made way for Roman jurisprudence
and for despotism. Were we to say that equity saved the common law,
and that the Court of Star Chamber saved the constitution, even in this
paradox there wotild be some truth."—Sketch of English Legal
pp. 127, 128.