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Date: Thu, 17 Jul 1997 07:03:16 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Roman Civil Law vs. Common Law (fwd)

<snip>
>
>A TREATISE ON THE PRINCIPLES OF PLEADING IN CIVIL ACTIONS:
>
>COMPRISING A SUMMARY VIEW OF THE WHOLE PROCEEDINGS IN A SUIT A LAW.
>
>BY HENRY JOHN STEPHEN
>SARGEANT AT LAW
>
>. . . .  Res antiqua laudis et artis
>Ingredior, sanctos ausus recludere fontes. =96Vide.
>
>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-BOK PUBLISHER AND SELLER
>
>INTRODUCTION.
>
>OF THE CIVIL LAW AND THE COMMON LAW.
>
>
>     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.=20
>     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 =96 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 =96 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.
>
>
>
>
>
>

========================================================================
Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

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