Time: Thu Jul 17 07:09:15 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id HAA22096 for [address in tool bar]; Thu, 17 Jul 1997 07:05:50 -0700 (MST) by usr04.primenet.com (8.8.5/8.8.5) with SMTP id HAA16808; Thu, 17 Jul 1997 07:03:43 -0700 (MST) Date: Thu, 17 Jul 1997 07:03:16 -0700 To: (Recipient list suppressed) 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 tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU website: http://www.supremelaw.com : visit the Supreme Law Library now ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this As agents of the Most High, we came here to establish justice. We shall not leave, until our mission is accomplished and justice reigns eternal. ======================================================================== [This text formatted on-screen in Courier 11, non-proportional spacing.]
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