Posted by KatNip on September 17, 1998 at 02:54:31:
“[...] American law is closer to the [Roman] civil law than the English common law.” Roscoe Pound, The Formative Era of American Law (Little, Brown and Company. 1938), p. 138.
“Examinations of witnesses upon Interrogatories,” he [John Adams for Hancock’s counsel] added, “are only by the Civil Law. Interrogatories are unknown to the common Law, and Englishmen and common Lawyers have an aversion to them if not an Abhorrence of them.” Adams’s argument in “Sewal v. Hancock,” in Wroth and Zobel, II, 194-207. Leonard W. Levy, Origins of the Fifth Amendment (Macmillan Publishing Company, 1986), p. 398.
. . . That the trial by jury, which is the grand characteristic of the
common law, is secured by the constitution, only in criminal cases. 2. That the appeal from both law and fact is expressly established, which is utterly inconsistent with the principles of the common law, and trial by jury. The only mode in which an appeal from law and fact can be established is, by adopting the principles and practice of the civil law; unless the United States should be drawn into the absurdity of calling and swearing juries, merely for the purpose of contradicting their verdicts, which would render juries contemptible and worse than useless. . . . Minority of the Pennsylvania legislature, December 18, 1787, in opposition to the Constitution.
Trial, following the civil-law tradition with which the maritime law is closely connected, was to the judge rather than to a jury, and procedure was rather non-technical and simple, though perhaps no more so than under any modern code. Grant Gilmore and Charles L. Black, Jr., The Law of Admiralty (N.Y.: Foundation Press, Inc., 1975), p. 35.
Bishop Stubbs said (Letter, p. 159), the Roman law has been “a most pliant tool of oppression . . . no nation using the Civil Law has ever made its way to freedom . . . wherever it has been introduced the extinction of popular liberty has followed sooner or later.” Philip P. Wiener, ed., Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas (New York: Charles Scribner’s Sons, 1973), vol. 3, p. 686.
“Under the Roman Civil Law, which postulates the State as of divine origin, all-wise and all-powerful, it becomes the duty of the State to seek to achieve happiness for all its subjects, in such manner as it may dictate, and, to that end, its own wisdom must override all private judgment in prescribing regulations for the whole range of human endeavor. Under this latter policy, an extensive system of admistrative law, with its particular and varied regulations, enforced by innumerable agents, boards and commissions, becomes necessary and inescapable. Under the Common Law, which denies the divinity, omniscience and omnipotence of the State, which concedes no privileges, which accords to every man the right to work out his own happiness free from intermeddling by government, save where his actions may impair the like right of others, and which recognizes but one system of general law for all, rich and poor alike, high and low, enforced in ordinary courts, there is no function for administrative law to perform and no reason for its existence.
“While we may still think ourselves living under the free common law system, there has nevertheless developed in the United States, and in England as well, an omnious body of practice containing the same features, now open referred to as ‘administrative law.’ It has gotten its foothold in very recent years, mainly through the increasing number of boards, bureaus and commissions created by Congress, to which Congress had delegated the authority to make rules and regulations having the force of the law, to sit in judgment under them and enforce them.” Sterling E. Edmunds, The Federal Octopus in 1933: A Survey of the Destruction of Constitutional Government and of Civil and Economic Liberty in the United States and the Rise of an All-Embracing Federal Bureaucratic Despotism, 3rd. ed., (The Michie Company, 1933), pp. 30-31.
“A free society has always put limits on the authority and power of civil law; our Bill of Rights indicates that our Founding Fathers knew of limits to the law.” A. C. Germann, Frank D. Day and Robert R. J. Gallati, Introduction to Law Enforcement and Criminal Justice, rev. ed., 25th Printing (Springfield, Illinios: Charles C. Thomas Publisher, 1976), p. 22.
“An appeal is a process of civil law origin, and removes a cause entirely, subjecting the fact, as well as the law, to review and re-trial. A writ of error is a process of common law origin; and it removes nothing for re-examination, but the law.” Joseph Story, A Familiar Exposition of the Constitution of the United States (1840), (Regnery Gateway, Inc., 1986), §379, p. 272.
Appeal borrowed from civil law.——The appeal as practiced in the English courts of equity, admiralty and ecclesiastical jurisdiction, is borrowed from the civil law. The effect of such appeals is to remove the whole proceeding, and generally, though not always, to open both the law and the facts for re-examination. Republic of Texas v. Thomas I. Smith, No. XVI Dallam’s Decisions 407 (1841).
“Jus emmins” is a term of the civil law used to designate the supreme power of the state over its members and whatever belongs to them. Gilmer v. Lime Point, 18 Cal. 229, 250 (S.Ct. 1861).
jus eminens. (Civil law.) The supreme power of the state over its members and whatever belongs to them. Ballentine’s Law Dict., 2nd ed. 1948.
“The judicial power, under the proposed constitution, is founded on well-known principles of the civil law, by which the judge determines both law and fact, and appeals are allowed from the inferior tribunals to the superior, upon the whole question; so that facts as well as law, would be re-examined, and even facts brought forward in the court of appeals; and to use the words of a very eminent civilian—‘The cause is many times another thing before the court of appeals, than what it was at the time of the first sentence.’
“That this mode of proceeding is the one which must be adopted under this constitution, is evident from the following circumstances: 1st. That the trial by jury, which is the grand characteristic of the common law, is secured by the constitution only in criminal cases. 2d. That the appeal from both law and fact is expressly established, which is utterly inconsistent with the principles of the common law and trials by jury. The only mode in which an appeal from law and fact can be established, is by adopting the principles and practice of the civil law, unless the United States should be drawn into the absurdity of calling and swearing juries, merely for the purpose of contradicting their verdicts, which would render juries contemptible and worse than useless. 3d. That the courts to be established would decide on all cases of law and equity, which is a well-known characteristic of the civil law, and these courts would have cognizance not only of the laws of the United States, and of treaties, and of cases affecting ambassadors, but of all cases of admiralty and maritime jurisdiction, which last are matters belonging exclusively to the civil law, in every nation in Christendom.” The Pennsylvania Minority: The Address and Reasons of Dissent of the Minority of the Convention of the States of Pennsylvania to their Constituents, Cecelia M. Kenyon (ed.), The Antifederalist (Boston: Northeastern University Press, 1985), pp. 49-50.
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