There have grown up in the history of nations only two great
systems of law, the civil law of ancient Rome, and the common law of
England. All the most civilized nations in the world are governed by
either of these two great schemes of justice. Though the civil law and
the common law have much in common, yet in many important particulars
they are the opposites of each other. In the course of his studies, the
student of law finds so much said, in an incidental way, about the
civil law, that is calculated to mislead his judgment in regard to the
true character of that scheme of justice, that it is important, at the
outset of his walks over the fields of the common law, to give him some
account of the civil law, and point out in what it differs essentially
from the common law. This is a matter of much importance to every
student who aspires to a comprehensive and enlightened knowledge of
jurisprudence.
Rome is the grandest empire presented in the great spectacle of the
history of nations. From the limits of a few square miles, on the
southeast bank of the lower course of the Tiber, Rome extended her
territorial dominions to the Pillars of Hercules on the west, to the
Euphrates on the east, to the German ocean and the Grampian hills on
the north, and to the cataracts of the Nile and the great African
desert on the south. Over his vast territory Rome extended her
government, her laws, and her language. To preserve these immense
territories, as the natural and legitimate heritage of Rome, was the
one great end of Roman policy. And any of the many peoples subject to
Roman sway, who attempted to throw off the imperial authority, were
treated as rebels against a lawful dominion.
The law which regulated the affairs of such a vast and various
empire of high civilization is a wonderful scheme of human justice,
attracting, with uncommon interest, the student of jurisprudence.
The political history of Rome is divided into the period of the
kings, the period of the republic, and the period of the emperors. Its
legal history corresponds with these political periods.
In the period of the kings, the administration of justice was in
the royal hands. The law was at that epoch very much a matter of royal
discretion. During the period of the republic, the administration of
justice was in the hands of the consul, pretors, and inferior
magistrates. It was during the epoch of the republic that most of the
fundamental rules for the regulation of private rights and peaceful
pursuits were introduced into Roman law. The law was gradually
developed by the peculiar modes of administering justice. In the later
days of the republic the praetor urbanus was the magistrate chiefly
concerned in the administration of justice. But neither he nor any
other Roman judicial magistrate ever decided directly the matter
brought before him. He only allowed the action upon a statement made by
the plaintiff, and regulated the proceedings to a point in which the
matter in dispute was reduced to a proper form for investigation and
decision. The case thus prepared was then referred by him, with
directions, to a judex, chosen by the parties themselves from amongst
their fellow-citizens, whose function it was to investigate the facts
and pronounce judgment upon the issue. This judicial reference and
direction by the pretor to the judex was called an edict. It contained
a statement, in a certain formula, of the matter in dispute and the
general rules of law applicable to it, with a direction to the judex to
make his decision conform to the facts as he might find them. The
ownership of land was excepted from this mode of trial. It was decided
by the court of one hundred men.
The praetor urbanus was elected annually. It was the working of his
jurisdiction that chiefly developed Roman law. The old forms of action,
contained in the twelve tables, required every suitor to bring his case
within their strict terms; else he was without remedy, no matter how
just was his complaint. These forms, so narrow and technical, were, in
the course of progress, abolished, so as to enlarge legal remedies.
There was given to the praetor urbanus authority to devise new rules
and orders applicable to special cases which might be brought before
him. If a person complained of an injury for which the old law afforded
no remedy, the praetor urbanus could, upon a statement of facts by the
party, allow him an action, and put the facts, with the prop0er
judgment upon them, into a certain formula, for the direction of the
judex to whom he referred the matter. In this way, through the
jurisdiction of the praetor urbanus, new actions, enforcing claims not
before recognized by the law, and new rules of law applicable to the
changing wants of society, were established. But the new remedies were
made to take the form of those which had been long observed; and thus
progress was made to conform to the Roman spirit of conservatism.
Customs, as they grew up in the various new business and changing
conditions of society, were allowed as law in these new actions.
It was the custom for pretors, on entering upon their office, to
publish an edict, declaring the principles upon which they intended to
administer justice during the year of their pretorship. This was called
a continuous edict. By this practice, the pretor would appear to the
suitors to be governed by pre-established general rules, and not to be
influenced by the special interests of any particular case. His
administration would, therefore, be felt as more impartial and just.
The pretor also passed special edicts, as cases, not anticipated in the
continuous edicts, were brought before him. These continuous edicts had
authority only during the year of the pretor who declared them. But in
time, successive pretors came to adopt, in their own edicts, the rules
declared by their predecessors. In this way, a body of edictal law
became as well established and as authoritative as if it had received
the express sanction of positive legislation. As the edicts of the
pretors embraced new usages and customs, as well as any special rules
that might occur to the minds of the respective pretors, which grew up
in the changing business of a progressive society like that of Rome,
the edictal law was the purest sort of legislation, springing from the
spontaneous acts and opinions of the people. Society, in the modes of
its working, declared the rules of its actions; and the pretors gave
them judicial sanction, and thereby made them law.
The edictal direction to the judex was not the only mode in which
the pretor discharged the function of justice. He also, in certain
cases, passed edicts, ordering specific things to be produced or
restitution of them to be made. And he also sometimes, by interdict,
forbade certain things to be done. These acts of the pretor might be
final, or merely preliminary to further proceedings, in which the
rights of the parties would be settled.
The law was still further developed, and that into a more ample
justice, because of relations to Rome to foreign states, especially to
those with which she had formed treaties, giving their citizens certain
civil rights, such as the right to acquire and hold property within the
Roman dominion. In order to administer justice, in cases growing out of
foreign relations, a special magistrate having jurisdiction over them
was annually elected, called praetor peregrinus. As in the cases
brought before this pretor the parties were never both Roman citizens
and the transactions involved were hardly ever entered into with
reference to Roman law, the principles common to all systems of law
were applied as dispensing, in such cases, a more adequate justice.
Through this liberal form of administering justice between Romans and
aliens, a practical acquaintance with the laws of foreign states was
acquired by the Roman magistrates, and such rules as seemed common to
all systems of laws were recognized as a law of nations, and were made
a part of the civil law of the Romans. And thereby the law of nations,
because of its universal acceptance as a standard of right and justice,
became a part of the positive law of the Romans. Under this law the
rights and obligations of foreigners, as well as of Roman citizens,
were recognized and judicially enforced. According to the teachings of
Roman jurists, it was from the law of nations that the law of
contracts, such as buying and selling, letting and hiring, loans and
bailments, partnership, and the law of slavery so far as it gave the
right of property in man, and many other matters, were introduced into
the Roman civil law.
This mere judicial development of the law left it in a shapeless
and unwieldy mass. Magistrates annually elected, as the Roman pretors
were, could hardly know what had been decided by their predecessors.
Consequently there could be very little like fixed principle in the
law, if it were left to mere judicial development; especially, too, as
the subsequent pretor was not bound by the decisions of his
predecessors, but could exercise his judgment untrammeled by precedent.
Therefore it was that a class of men arose by the side of the
administration of justice, who became connected with it in a very
peculiar relation, and supplied the defects in the judicial system, and
by their very writings reduced the law into shape. These were the Roman
jurists, so celebrated in the history of European law. They made their
first appearance in the time of Cicero. Quintus Mucius Scaevola was the
first of them, and Servius Sulpicius was the second. These jurists must
not be confounded with the mere practitioners of the law. The mere
practicing lawyer held a lower position in the legal profession than
the jurist. The business of the mere practicing lawyer was to give
legal advice, and to draw up testaments, contracts, and other
instruments in legal form. He had nothing to do with the management of
causes before a court. The orator, though his great vocation was in the
senate and before the assemblies of the people, was the advocate in
criminal trials and in important civil cases. The jurists, in the time
of Cicero, besides doing the business of practitioners of law, also
appeared in public, at certain times and places, to give their advice
orally to those who asked it, and also opened their own houses for the
same purpose. Young men who wished to acquire a knowledge of the law
were present when the jurists gave their advice, and saw the mode in
which they transacted legal business. Cicero was a pupil of Scaevola.
He was admitted to the intimacies of his accomplished family, and
learned, as he said, elegant conversation from his refined daughters.
But it was under the empire, when the glory of the republic was
gone, that the jurists attained their eminence, and in fact became the
architects of the great system of Roman law. Though Scaevola and
Sulpicius wrote treatises on the law, these treatises had no authority
beyond the opinions of men learned in the law. But Augustus Caesar gave
to a certain number of jurists the privilege of giving opinions in
cases which might be referred to them by a judex; and if the jurists
were unanimous, the judex was bound by their opinion; if they were not
unanimous, the judex was left to adopt what opinion seemed to him best.
Tiberius Caesar, during his reign, adopted the practice of
authenticating, under his seal, the opinions of certain jurists. This
class o privileged jurists, whose unanimous opinion made rules o flaw,
became an established institution. Some of these jurists, were advisors
of the emperors in al matters of legislation, as well as in matters of
law referred to them either immediately or by appeal. As the military
power, which during the republic was kept in the strictest
subordination to the civil, could, under the empire, at any time be put
above the civil authority by the emperor, his very title being
military, Septimus Severus appointed Papinian, the greatest of all the
Roman jurists, pretorian prefect, which placed him at the head of the
army and of the law. And Ulpian and Paulus, only a little, if at all,
less eminent as jurists than Papinian, were successively appointed
praetorian prefect by Alexander Severus.
The jurists wrote innumerable treatises on the law, which came to
be of as much authority as their privileged opinions. It was these
writings that exerted a paramount influence in developing and bringing
into system Roman jurisprudence. The law contained in the twelve
tables, the edictal law, and established usage, were the materials upon
which the jurists labored in their writings with great honesty of
purpose, remarkable good sense, and fine dialectical skill. Oratory was
no longer, as it had been during the glorious period of the republic,
the great art by which men rose to eminence in the state. Its voice was
now silent; when to speak of the rights of Roman citizens was treason.
Therefore, to the silent and obscure labor of building up jurisprudence
the greatest minds devoted themselves. The writing of the jurists
became in time so numerous, that, in order to help the incapacity of
those who administered law, at a time when, amidst general degradation,
the great jurists had no successors, the Emperor Valentinian III, by a
constitution, declared that the writings of Papinian, Paulus, Gaius,
Ulpian, and Modestinus should have the force of law when they were
unanimous; when they were not unanimous; the opinion of the majority
was to be followed; and when they were equally divided, the opinion in
which Papinian concurred was to be adopted.
Thus, according to a tendency common to all systems of law, the
Roman, in the new application of principles required by the
ever-changing conditions of society, gradually, through the offices of
the two pretors and afterwards through the writings of the great
jurists, emerged from the narrow rules which originated in the early
peculiarities of Roman society, and gradually expanded itself into a
more ample scheme of justice, fitted for a universal dominion. It
became in time, allowing local differences, the common law of all the
provinces.
This system of jurisprudence was closely connected with the
imperial theory and form of government, both by the manner of its
growth and the political doctrines introduced into it by the writings
of the jurists. The jurists were, in politics, imperialists; and they
made their legal opinions support the imperial authority at all points
of doctrinal application and administrative contact between it and the
law. For though the theory of the republic was forgotten, and the right
of revolution, so often exerted in the early history of Rome, was
hardly even a matter of tradition, still it was deemed necessary, by
the jurists, to vindicate to human intelligence, by some theory of
right, an authority so stupendous as that of a Roman emperor. Therefore
it was that the jurists invented the fiction of the lex regia, by which
it was pretended that all the authority of the Roman people was
irrevocably granted to the emperor. And, to complete their theory of
absolutism, the jurists introduced into their writings, as a
constitutional principle, the dogma, Whatever pleases the prince has
the force of law.
Thus the jurisprudence which had been recast in an imperial mold
became a part of the imperial system; and as the chief functionaries
under the empire were generally selected from the profession of the
law, they entered upon their official functions thoroughly imbued with
imperial ideas and trained to principles of imperial policy. The
administration of the law, too, was subordinate to the imperial
authority, not only in theory but in practice, the courts being
organized accordingly. Under the republic, the courts were open to the
public in both civil and criminal trials. Under the empire, open courts
disappeared, and an appeal lay in all cases to the emperor in his
imperial court. Thus a perfect system of despotism, disguised under
forms of law, was built up on the ruins of the republic.
After the seat of the Roman empire had been transferred by
Constantine to the borders of Asia, and the unity of the Roman dominion
had been broken into a western and an eastern empire, the Emperor
Justinian, in the first half of the sixth century of the Christian era,
had all the constitutions which had been promulgated by the successive
emperors compiled into a code. And afterwards, at the suggestion of
Tribonian, a distinguished lawyer who had been one of the compilers of
the code, a commission was appointed, with Tribonian at its head, to
make a selection from the writings of the elder jurists, which should
comprehend all that was most valuable in them, and should be a
compendious exposition of Roman law. The commissioners, in the very
short period of three years, produced their compilation, called the
Pandects or Digest, containing literal extracts from thirty-nine
jurists, those from Ulpian and Paulus constituting about one half of
the whole work. The Pandects or Digest, besides being designed as a
book for the practitioner, was designed also to form a necessary part
of legal education in the schools of jurisprudence at Constantinople
and Berytus. But it was too vast a work, and required for its
comprehension too great a previous knowledge of law, to admit of its
being mad an introduction to a course of legal study. Justinian,
therefore, appointed Tribonian, in conjunction with Theophilus and
Dorotheus, respectively professors in the law schools of Constantinople
and Berytus, to compose an elementary law book. The produced the
Institutes.
The code, the Pandects or Digest, and the Institutes contain the
civil law as it has come down to modern times, and are the sources from
which the modern jurists have derived their knowledge of Roman
jurisprudence. They embody principles and ideas of law which were the
slow growth of ages, and which, beginning with the origin of the Roman
people, had been gradually unfolded, modified, and matured.
During the progress of Roman jurisprudence the forms of legal
procedure had undergone an entire change. As soon as the republic was
overthrown and the empire was established by Augustus, changes in the
law began to be contemplated; and two schools of law reformers arose,
one school in favor of adhering to the strict technical forms of the
law under the republic, and the other in favor of substituting for them
simple and general forms, more accommodated, as they said, to the
larger equity, the more ample justice of the jurisprudence required by
the enlightened spirit of the age. At the head of the republican school
stood Labeo, and at the head of the other stood Capito. Both were
eminent lawyers. But the first, though in favor of liberalizing the
principles of the old jurisprudence, was utterly averse from changing
the strict technical forms of procedure, as he believed they afforded
the only protection to the rights of the citizen. Capito, on the
contrary, a time-serving adherent of the new order of things,
maintained that the forms of legal procedure, as well as the
jurisprudence itself, must be changed to suit the spirit of progress.
The controversy between these schools of lawyers lasted nearly a
century, the imperial party gaining ground all the time, until the
Emperor Hadrian, by the perpetual edict, exercised uncontrolled
legislative authority, and fixed forever the character of the imperial
jurisprudence. From this epoch the civil law and its procedure assumed
that pretorian form and spirit which were consummated in the Code, the
Pandects, and the Institutes of Justinian. The old forms of law
procedure of the republic, and the respect for precedent when the law
was an emanation from the manners and spirit of the people, gave way to
the more simple forms of the empire. Thus was consummated what has
sometimes been considered an advance in jurisprudence. But in this
opinion things wholly different have been confounded: the machinery for
carrying law into effect has been confounded with the law itself. There
can be no doubt that the law itself was so improved, under the empire,
as to make it almost a new creation; but there should be as little
doubt that the mode of procedure was changed from one suited to the
liberty of the citizen to one suited to arbitrary power, by its
enlarging the discretion of judges.
If we now turn to the common law of England, we will find that, as
far as administrative principles and forms of procedure are concerned,
it is the opposite of the Roman civil law as it was molded under the
empire. The principle which, in the practical administration of the two
systems, marks the primary essential distinction between them, is the
relative obligatory force under them of precedent or former decisions.
Under the common law, former decisions control the court
unconditionally. It is deemed by the common law indispensable that
there should be a fixed rule of decision, in order that rights and
property may be stable and certain, and not involved in perpetual
doubts and controversies. Under the civil law the principles is
different. Former decisions have not so fixed and certain an operation,
but are considered as only governing the particular case, without
establishing as a settled rule the principle involved in it. When a
similar case occurs, the judge may decide it according to his personal
views of the law, or according to the opinion of some eminent jurist.
The civil law, as administered at the present time on the continent of
Europe, possesses all the uncertainty and fluctuations of doctrine that
results from the little respect paid by it to precedent. The
commentaries of the doctors, who have succeeded to the jurists, are as
various as the diversity of human judgment can make them. The late
United States Attorney General, Legare, who studied law in Germany,
with all his strong predilections for the civil law, said, "One who was
initiated in this study, as we happened to be, under the old plan of
the eighteenth century, with Heineccius for a guide, will find himself
in the schools of the present day in almost another world - new
doctrines, new history, new methods, new textbooks, and, above all, new
views and a new spirit." The diversity of doctrine in the schools
signalized by Mr. Legare descends into the courts to perplex and
bewilder the administration of justice. Let anyone, who wishes to
examine a specimen of this perplexity in regard to a fundamental
classification which the civilians make of laws into personal statutes
and real statutes, refer to the opinion of the supreme court of
Louisiana, by Mr. Justice Porter, in Saul v. His Creditors, in 17
Martins' Reports. After referring to the jurists of the different
European countries who have treated of this distinction, Justice Porter
says: "The moment we attempt to discover from these writers what
statutes are real and what personal, the most extraordinary confusion
is presented. Their definitions often differ; and, when they agree in
their definitions, they dispute as to their application." And Mr.
Justice Story, in his "Conflict of Laws," when speaking of the
civilians who have treated of the subject of his book, says: "The
civilians of continental Europe have examined the subject in many of
its bearings with a more comprehensive philosophy, if not with a more
enlightened spirit. Their works, however, abound with theoretical
distinctions, which serve little purpose than to provoke idle
discussions and metaphysical subtleties, which perplex, if they do not
confound the inquirer. * * * * Precedents, too, have not, either in the
courts of continental Europe or in the judicial discussions of eminent
jurists, the same force and authority which we, who live under the
influence of the common law, are accustomed to attribute to them; and
it is unavoidable that many differences of opinion will exist amongst
them, even in relation to leading principles." Such is the fluctuating
wind of doctrine with which the judicial mind is liable to veer under
the civil-law institutions where precedents have but little force.
The common law, in broad contrast to the civil law, has always
wholly repudiated anything as authority but the judgments of courts
deliberately given in causes argued and decided. "For (says Lord Coke,
in the preface to his 9th Report) it is one amongst others of the great
honors of the common law that cases of great difficulty are never
adjudged or resolved in tenebris or sub silentio suppressis
reationibus, but in open court: and there upon solemn and elaborate
arguments, first at the bar by the counsel learned of either party,
(and if the case depend in the court of common pleas, then by the
sergeants at law only;) and after at the bench by the judges, where
they argue (the presiding judge beginning first) seriatim, upon certain
days openly and purposely prefixed, delivering at large the
authorities, reasons, and causes of their judgments and resolutions in
every such particular case, (habet enim nesio quid energia viva vox:) a
reverend and honorable proceeding in law, a grateful satisfaction to
the parties, and a great instruction and direction to the attentive and
studious hearers." Nothing less elaborately learned and cautiously
considered than such a judgment of a court has a legitimate place in
the common law. By such adjudication has that great system of
jurisprudence been built up. The opinion of no lawyer has a place in
the system of common law. And this wise principle of the common law is
never lost sight of by those bred in its spirit. When Lord Coke wrote
his commentaries upon certain statutes of England, from Magna Charta to
Henry VIII, which are called his II Institutes, he did not give his
personal opinions of their meaning, but gave the judicial
interpretations of them, which had been made. In the conclusion of the
preface to the II Institutes he says: " Upon the text of the civil law
there be so many glosses and interpretations, and again upon those so
many commentaries, and all written by doctors of equal degree and
authority, and therein so many diversities of opinions, as they rather
increase than resolve doubts and uncertainties, and the professors of
that noble science say that it is like see full of waves. The
difference, then, between those glosses and commentaries are written by
doctors, and which be advocates, and so in a great manner private
interpretations; and our expositions or commentaries upon Magna Charta
and other statutes are resolutions of judges in courts of justice in
judicial courses of proceeding, either related and reported in our
books or extant in judicial records, or in both, and therefore, being
collected together, shall (as we conceive) produce certainty, the
mother and nurse or repose and quietness." Such is the doctrine of the
common law! Nothing but the solemn voice of the law itself, speaking
through its constituted tribunals, is of any judicial authority. And
how august is that authority, reposing as it does upon the solemn
decisions of courts which have administered justice in the very same
halls for nearly eight hundred years! In vain shall we search the
history of nations for a parallel to this stability of law amidst the
fluctuating vicissitudes of empire. It is this stability of law, ruling
over the prerogative of the crown and administering equal justice to
the high and the low through so many centuries, that vindicates the
"frame and ordinary course of the common law" to the consideration of
the present times.
It is this primary difference in the principles of practice, under
the two systems of law, which gives to the common law its great
superiority over the civil law, as a practical jurisprudence regulating
the affairs of society. It has the great advantage of producing
certainty in regard to all rights and obligations which are regulated
by law. But, above all, it excludes private interpretations and
controls the arbitrary discretion of judges. In the common law the
principles of interpretation are fixed and certain. Rules of
interpretation were early adopted, and have never been departed from.
Other rules from time to time have been adopted, but when once
introduced into practice they become precedents.
But it is far otherwise in the civil law. Different schools of
interpretation have existed in countries where it is administered in
modern times, called respectively the historical and philosophical
schools. And the law is subject to all the fluctuation in practice
which grows out of the different principles of interpretation of these
schools. By the different principles of interpretation, and by the
principle that former decisions may be disregarded, much certainty in
the law is lost; so that often the decision of the plainest case,
unless it depends upon some fundamental positive rule, can hardly be
confidently foretold.
This difference in the administrative principles of the common law
and the civil law is intimately connected with their different modes of
procedure and with the different degree of respect paid to technical
forms. Under the common law, forms are as sacred as the principles they
embody. They are precedents. The precise form being a precedent, the
certainty of the principle which it embodies is thereby fixed. There
can be no more dispute about the principle than about the form which
embodies it. Every new case must conform to it, there can be no dispute
about its import.
The great instrument by which certainty has been given to
precedents in the common law is special pleading. This is the
mainspring and the regulative force of the whole machinery of the
common law as a practical jurisprudence. By it every step, from the
original writ to the judgment, is kept in specific undeviating forms.
There can be no dispute about the specific import of every step in the
procedure. And when the decision is made, no matter how loosely the
opinion of the court may be expressed, the pleadings in the case give
definiteness to the point or points decided, and preserve them forever
as a precedent for future judges to follow.
The object of judicial proceedings is to ascertain and to decide
upon disputes between parties. In order to do this, it is indispensable
that the point or points in controversy be evolved and distinctly
presented for decision. The common law and the civil law have different
modes for accomplishing this purpose. The rules of common law pleading
are designed to develop and present the precise point in dispute upon
the record itself, without requiring any action on the part of the
court for the purpose. The parties are required to plead alternately in
writing, until their respective allegations of affirmation and denial
terminate in a single material issue, either of law or of fact, the
decision of which will dispose of the cause.
By the civil law the parties are not required to plead in such a
way as to evolve upon the written record, by the allegations of the
respective parties, the point in dispute, but are permitted to set
forth all the facts which constitute the cause of action or defense at
large; the questions of law not being separated from the questions of
fact, as in the common law pleadings, but the whole case is presented
in gross to the court for its determination. Under this practice, the
court has the labor of reviewing the complex allegations of the
respective parties, and methodizing them, and evolving for adjudication
the material points on which the controversy turns.
When the court of chancery in England began to take cognizance of
disputes between parties, it adopted the civil law mode of procedure.
This court assumed to eschew the strict technical rules of the common
law, and to proceed upon the broad equities of the case; and therefore,
naturally required the statement of the facts at large. As the trial by
jury did not pertain to this court, the inconvenience of mingling
questions of law and of fact was not felt, as they were both decided by
the court, and therefore needed not to be separated on the record, as
in courts of law, where they are decided by different tribunals. And,
besides, the chancellor, from the nature of his court, can take all the
time required for the examination of the questions of law and of fact
involved in the allegations of the opposite parties. There is,
therefore, nothing in the organization of the court of chancery, which
forbids the use of the civil law mode of pleading. Indeed, the court of
chancery is, in form, a civil law tribunal. Its whole practice is
modeled after the edict law of the Roman pretor.
But the civil law mode of pleading is not applicable to the
common law courts. In these courts questions of law are determined by
the judges, while questions of law are determined by the judges, while
questions of fact are determined by the jury. It is therefore manifest
that it is at least convenient that these questions, which are to be
decided by different tribunals, should be separated upon the written
record before the case is presented for trial. The material points,
about which the parties are in dispute, cannot be so easily evolved
from the complicated mass of facts in the hurry of a trial as they can
be by pleadings carefully framed beforehand by experienced lawyers, in
accordance with rules which require all issues to be single, involving
only one question, and to be stated upon the written record itself. And
certainly it facilitates the administration of justice to have the
record of every case disencumbered of all extraneous matters, and of
everything irrelevant and immaterial, and nothing but the naked points
in dispute, whether of fact or of law, presented distinctly to the
judges and the jury, as is done by the special pleading of the common
law.
Nothing is more important, in the administration of justice, than
a distinct theory and law of evidence. Without it there can be no
certainty in administrative justice. For it matters not how clearly a
system of jurisprudence may define obligations and rights, if in
judicial investigations improper evidence is admitted, and proper
evidence is rejected, there can be no security. The system of common
law pleading is framed with reference to this point, making issues of
fact simple, so that the relevancy of evidence can be easily perceived.
The common law is greatly superior to the civil law on this point. In
the loose, detailed statements of civil law pleadings the exact point
in dispute will often be left in so much doubt that the evidence will
be various, latitudinous, and vague; and many topics will be introduced
at the trial which have nothing to do with the real questions in
dispute. It has been said that the whole government of England is but a
contrivance to bring twelve men into the jury box. Trial by jury is,
therefore, in connection with the court, the great end of the
government; and special pleading is the great instrument by which that
peculiar form of judicature is made efficient. It presents the precise
points to be determined, and thereby indicates the character of the
evidence required, which is all that any contrivance can accomplish.
It is thus seen how the common law pleading gives certainty to
trials at law, making the questions to be decided precise, the
admission and rejection of evidence definite, and retaining on the
record, after the trial, precision in everything, from the summons to
the judgment, sot that it can be know what was in dispute, what was
proved, and what was adjudged.
It must not be inferred from what has been said that I undervalue
any influence which the civil law has exerted in liberalizing any too
narrow principles of the common law in that long sweep of ages through
which they both have governed the affairs of men; though I think that
this influence has been exaggerated by some of the ablest writers on
the common law. It is not as systems of principles of justice that I
have contrasted the common and the civil law. It is only their
respective modes of procedure in administering justice that I have
contrasted. We must, in such a discussion, e careful not to confound
what Sir Henry Spelman calls "the course and frame of justice" with the
principles of justice.
In concluding the contrast between the common law and the civil
law, as a juridical question, it will be profitable to consider the two
systems of law in their political aspects.
The march which the civil law has made over the continental
European nations has carried its forms of procedure with it; and it
cannot be pretended that either liberty or property has been as well
protected in these countries as in England. The people of these
countries are of the same race with those of England, and had
originally the same institutions. "When we peruse, " says Sir Francis
Palgrave, "the annals of the Teutonic nations, the epithet Teutonic
being used in its widest sense, the first impression which we receive
results from the identity of their ancient laws and modes of government
which prevailed amongst them. Like their various languages, which are
in truth but dialects of one mother tongue, so their laws are but
modifications of one primeval code. In all their wanderings from their
parent home the Teutons bore with them that law which was their
birthright and their privilege; and even now we can mark the era when
the same principles and doctrines were recognized at Upsula and at
Toledo, in Lombardy and in England. But, descending the stream of time,
the tokens of relationship diminish, and at length disappear. Amongst
the cognate races of the continent of Europe political freedom was
effaced by the improvement of society. England alone has witnessed the
concurrent development of liberty and civilization. From whatever
causes it may have originated, a beneficial impulse was given by the
Anglo-Saxon and the Anglo-Norman governments to the courts of justice,
which, though emanating from the crown, were interposed between the
sovereign and his subjects in such a manner as to tend towards a
limited monarchy. And if this tendency had not continued and increased,
the share of authority possessed by the people or their representatives
would have been as feebly established here as in other countries,
which, starting from the same point, proceeded in a less fortunate
career. Deprived of the security afforded by the institutions which
became the strongholds of liberty and the stations of defense, from
which the patriot could not be dislodged, the Parliament of England,
like the Cortes of Spain or the States-General of France, would long
since have declined into inefficiency and extinction."
It was the civil law of imperial Rome which gradually undermined
the Teutonic institutions on the continent of Europe. The fundamental
text of that law, as we have seen, is, "the will of the prince has the
force of law." This gradually became the fundamental doctrine of the
governments of continental Europe; and the juridical principles and the
modes of procedure made it efficient in practice. The palatial courts,
to which appeals lay from all inferior tribunals, enabled the prince to
control the whole administration of justice. The prerogative of the
crown could not, therefore, be resisted by the courts, as it has been
at important junctures by the courts of England. It is the law, and the
law only, which can successfully resist the encroachments of despotism.
In the absence of defined laws, and an independent judiciary to enforce
them, the only check upon arbitrary power is popular insurrection; and
the people, after they have overthrown by force one despotism, are
liable, by their excesses, as all history shows, to succumb to another.
In the great contest between the civil law and the Teutonic laws
and institutions, which occurred all over Europe after the fall of the
Roman empire, the Teutonic, under the name of Anglo-Saxon, prevailed in
England. King John was compelled, while that contest was going on, to
sign Magna Charta, proclaiming the great fundamental principles of the
common law. Soon afterwards, under the influence of the spirit of the
common law, the representative system of government, composed of
democracy, monarchy, and aristocracy, was established; which has served
as a model for our form of government, and that of every nation that
aspires after freedom. At that epoch Bracton wrote his treatise, "On
the laws and customs of England." In it he asserted the supremacy of
the law over the king. His words are, "Rex non debet esse sub hominc
sed sub Deo et lege." This work was afterwards translated into French
by Houard, an eminent Norman lawyer, and he avowedly suppressed that
passage as too inconsistent with French constitutional law to be
circulated in France. Such was the difference, at that early period, in
the principles of constitutional law in England, where the common law
prevailed, and in France, where the civil law prevailed.
In the beginning of the reign of Edward I the foundations of the
common law were laid. The clergy, who favored the civil law, no longer
monopolized legal knowledge. A school of common law had been
established. Laymen had gradually formed themselves into societies
called "inns of court," where they devoted their lives to the study of
the common law. Edward selected his judges from this body of
professional men. Then it was that the principles of the common law and
the modes of procedure were systematized, and the courts, as they have
subsisted for nearly six centuries, were framed and established; and
the statutes which were passed during the reign for reforming the law
were framed with reference to the principles of Magna Charta and the
common law.
In the latter part of the fifteenth century the common law
received a new impulse towards development from the celebrated treatise
of Sir John Fortescue, "In Praise of the Laws of England." The work was
written to instruct the prince royal, who was afterwards Henry VI, in
the principles of the constitution of England as a monarchy limited by
law. The superiority of the common law to the civil law as a scheme of
liberty is thoroughly vindicated, and the greater prosperity of the
people of England, when compared with the people of France, is ascribed
to the different systems of law by which the two countries are
respectively governed.
It was during the Elizabethan period of English history that the
character of English jurisprudence was fixed forever on the basis of
common law. The great lawyers who fixed the landmarks of English
jurisprudence at that climactic epoch in English civilization utterly
repudiated the civil law as inapplicable to the English polity. "As for
your Majesty's laws of England," said Lord Bacon, "I could say much of
their dignity, and somewhat of their defect, but they cannot but excel
the civil law in fitness for the government; for the civil law was not
made for the countries with it governeth." Lord Coke, by his Reports
and his Institutes, laid that broader foundation for the common law
which the exigencies of society in the era which was opening required.
From that period to the present time the common law has held on in the
direction then given to it. It has within itself an inherent force of
expansion and progressiveness. It consists of elementary principles
capable of indefinite development in their applications to the
ever-varying and increasing exigencies of society. There are certain
fundamental maxims belonging to it which are never departed from. These
are the immutable basis of the system. There are other maxims which are
restricted by modifications or limited by exceptions. It is
pre-eminently a practical system. It has broken away from the shackles
of theory and technicality when, in the changing conditions of society
and of property, justice and expediency required it. For a time the
ancient rules and practice may have resisted the equitable demands of
the new exigencies in human life; but when the new exigencies have
shown themselves to be permanent interest in society, English
jurisprudence has always found within its acknowledged frame of justice
means of providing for the new rights and obligations which have sprung
from the ever-widening sphere of civilization. The method of its
progress is simple and plain. When a case is brought into a court the
first question which legitimately emerges from the facts is, whether
there is any statute which provides for it. If there is none, then it
is inquired whether there be any clear principles of common law which
fixes the rights and obligations of the parties. If the answer be again
in the negative, then springs up the inquiry, whether there be any
principle of the common law which, by analogy or parity of reason,
ought to govern. If from neither of these sources a principle of
adjudication for the case can be educed, it is recognized as a new
case, and the principles of natural justice are applied to its
solution. But if the principles of natural justice, on account of any
technical or other impediment, cannot be applied to the settlement of
the respective rights of the parties, then, by the immutable juridical
principles of the common law, founded upon the jealous limitation of
judicial discretion, if equity cannot relieve, the case must fail; and
provision can only be made by statute for future cases of like nature.
It matters not how the civil law or other foreign jurisprudence may
have disposed of the question, unless, upon one of the principles which
have been stated, the case can be adjudged, the party must fail of
relief who seeks the aid of a court. "The Roman law," said Tinda, C.J.,
in Acton v. Blendell , "forms no rule, binding in itself, upon the
subjects of these realms; but in deciding a case upon principle, where
no direct authority can be cited from our own books, it affords no
small evidence of the soundness of the conclusion at which we have
arrived if it proves to be supported by that law the fruit of the
researches of the most learned men, the collective wisdom of ages, and
the ground-work of the municipal law of most of the countries in
Europe."
Upon such principles has the common law based its practice and
developed its science. From first to last, through the courts at
Westminster, the common law has resisted the introduction of the civil
law into the jurisprudence of England. At the very time that the Tudors
and the Stuarts were grasping at high prerogative the common law was
maturing its vigor in the courts. Coke, one of their judges, did more
to develop and organize it for protecting the individual against
arbitrary power than any man who has appeared in the progress of
English society. In him the professional instinct of the common law
judge reached its sublimest sense of human right. He saw that the
English constitution draws its whole life from the common law, and is
but the framework of its living spirit. By the common law "every man's
house is called his castle. Why? Because it is surrounded by a moat or
defended by a wall? NO! It may be a straw-built hut the wind may
whistle through it, the rain may enter, but the king cannot."
In all the various revolutions, with their dark and dreary scenes
of violence and bloodshed, through which England has passed, the people
have clung to their ancient laws with a devotion almost superstitious.
When our forefathers established governments in America they laid their
foundations on the common law. And when difficulties grew up between
them and the mother country, they acted as their English ancestors had
always acted in their political troubles - interposed the common law as
the shield against arbitrary power. When the United Colonies met in
Congress, in 1774, they claimed the common law of England as a branch
of those "indubitable rights and liberties to which the respective
colonies are entitled." And the common law, like a silent providence is
still the preserver of our liberties.
From the book;
A TREATISE
ON THE
PRINCIPLES OF PLEADING
IN CIVIL ACTIONS:
COMPRISING
A SUMMARY VIEW OF THE WHOLE
PROCEEDINGS IN A SUIT AT LAW.
BY HENRY JOHN STEPHEN,
SERGEANT AT LAW.
___________________
. . . . Res antiquĉ laudis et artis
Ingredior, sanctos ausus recludere fontes.--Vide.
____________________
THIRD AMERICAN
FROM THE SECOND LONDON EDITION:
WITH A PREFACE, AN INTRODUCTION, A DISSERTATION ON PARTIES
TO ACTIONS, AND NOTES.
BY SAMUEL TYLER, LL. D.,
PROFESSOR IN THE LAW DEPARTMENT OF COLUMBIAN COLLEGE,
WASHINGTON, D. C., AND AUTHOR OF THE MARYLAND SIMPLIFIED PLEADING,
ETC., ETC.
____________________
WASHINGTON, D. C.:
WALTER C. MORRISON,
LAW-BOOK PUBLISHER AND SELLER.
Copyright, 1871, by W. H. & 0. H. MORRISON.
Copyright, 1898, by WALTER C. MORRISON.
TO THE ALUMNI OF THE
LAW DEPARTMENT OF COLUMBIAN COLLEGE,
THIS EDITION OF A WORK, THE STUDY OF WHICH IS SO WELL
FITTED TO SHARPEN AND INVIGORATE THE MIND OF THE LAWYER AND IMPART TO
IT A PRACTICAL FACILITY, IS, WITH THE BEST WISHES FOR THEIR
PROFESSIONAL SUCCESS,
