THE GROWING INFLUENCE OF THE CIVIL LAW. We are very apt to think in this day of progress that we surpass all ages in achievement. It is hard for us to believe, although we know it is a fact, that the ancients surpassed us in many things. Particularly is this true in the matter of Jurisprudence. Our average lawyer has been too busy about his business to give much attention. to the philosophy of the law so has no conception of how far the Roman surpassed us in Jurisprudence and too blindly the follower of Coke and Blackstone, who had been the idols in England and America so long, that to question them would have seemed like sacrilege. Nevertheless, England has some time since learned, that neither of them was well grounded in the history of the law. The reason for this is, that Coke took We are using to-day his system of reports. Had he been deeply founded in the civil law, he might have left a splendid monument to his memory. He only "knew in part." A national prejudice was early formed against the civil law and was too much cultivated by English lawyers. Lord Coke mentions by way of reproach, that William de la Pole, Duke of Suffolk, in the reign of Henry VI., endeavored to bring in the civil law, which gave occasion to Sir John Fortescue to write his work in praise of the English law; and the same charge was made one of the articles of impeachment against Cardinal Woolsey (1 Kent. 15 Ed. 584). "But," says Chancellor Kent continuing, "The more liberal spirit of modern times. has justly appreciated the intrinsic merit of the Roman system." Sir Mathew Hale, according to the account of Bishop Burnet. frequently said, that the true grounds and reasons of the law were so well delivered understand law as a science without first resorting to the Roman law for information, and he lamented that it was so little studied in England. the law as he found it in England, as Eng- in the Digest, that a man could never well lish law. It is said he even thought some of the maxims of English origin. Coke was well satisfied to believe that he was right about it, and too thoroughly English to want to think that the Romans had furnished England with the best of her laws. At any rate his work shows that he believed the law he found was English. He gathered the English cases decided into reports, to be authority for future decisions. These reports contained the common law of England. The Roman law was brought to England at the time of the Roman conquest and remained there, that is fragments of it. Fragments were brought in by the Normans, but the system of the civil law had not obtained in Coke's time nor has it been fully established there to-day. Coke did not concern himself about the civil law, and never knew, of course, what a field of learning was lost to his view, or that the source of the English common law, was, to a great extent, from the civil law. Coke had a great legal mind and with the materials he had, wrought remarkably well. Bacon was Coke's contemporary and rival. He had delved deeply into the civil law. He had "chewed and digested it." He was the greatest of all philosophers. Although his fame is chiefly due to his inductive method of philosophy, he was fully as great in his philosophy of the law as in any other branch. Indeed, he gave more time to it. He was the champion of equity; was the author of a system of jurisprudence drawn from the civil law. It consisted of rules and decisions. Coke succeeded through his greater political influence in establishing his system of reports, but Bacon succeeded in establishing the jurisdiction of equity over common law judgments, greatly to the discomfort of Coke. He also formulated a hundred maximized rules, which have been used in the equity courts of England ever since, and are a part of our equity procedure in the United States Courts to-day, just as they came from the pen of that great master. Coke hated Bacon with all the bitterness of a jealous disposition fitted into a strong and venemous nature. He saw no good in anything Bacon did. On the fly leaf of a presentation copy of Bacon's philosophy he wrote: "It deserveth not to be read in schools, but freighted only in the ships of fools." It is plain enough, from this, to see why Coke did not conceive that it was possible to surpass the law he found in England, which he had gathered into his system of reports-selfishness, jealousy, envy, bigotry are old acquaintances. They are not the elements which develop progress along lines at variance with their own conceits. In truth we have the fruits of them in the condition of our jurisprudence to-day. The consensus of opinion of d hundred leading lawyers in a recent issue. of the "Green Bag," is that the condition of our jurisprudence is "appalling," "foreboding." "We are in a jungle." The reason for this is not suggested in the article, yet no well grounded lawyer of to-day will be heard to deny, that our equity is the saving grace of what jurisprudence we have. The common law came from Coke, equity from Bacon and the civil law. our This being true, should we not look to Bacon and the civil law for our reformation? Indeed, Bacon saw from the depth of his knowledge of the civil law, just where the Coke system would lead, and then set it down for future generations to read, that: "I am in good hope, when Sir Edward's Reports and my Rules and Decisions, come to posterity, (whatever may now be thought) it will then be seen, which was the greater lawyer." Bacon's was a system which was finished, so that it might come to posterity. Bacon had read how the civil law had gotten so in conflict that, in Justinian's time, no lawyer could tell when the authority on which he relied, might not be met with authority of equal dignity. And the judges were equally embarrassed to de cide which should have the preference. There were forty great jurisprudents at that time, regarded as authorities. Justinian saw the necessity of reconciling these authorities as nothing had been doing so. much to advance the discontent of the people as the conflict of the laws. This is our own serious problem to-day. Justinian commissioned sixteen lawyers and especially instructed them to remove all the contradictions of the older authorities. He prohibited all further reference to the older jurists, after his work was complete, and forbade all further commentaries, on the new compilation. The maxims were kept intact. All Rome arose against any attempts to change the maxims, it is said. It took fifty volumes to contain all the law called "The Pandects." "The Pandects" is now considered the most precious monument of the Roman genius for jurisprudence, whether one considers its intrinsic merits, or the prodigious influence it has exerted, or still exerts. It took three years to complete his reformation, although he originally allowed ten. It was misfortune that ten years were not consumed in the work. It was made up of settled law to De interpreted by rules of construction, which were the maxims. Bacon was well instructed in all this, and proceeded to accomplish in his system, just what Justinian sought to accomplish by his efforts. Bacon mined into "The Pandects" and came forth with pure gold. From the civil law he worked out his system of equity and a hundred rules of construction and his Rules and Decisions. The latter were fated, however, not to come to posterity. Vainly did he importune King James to 'cause their publication. Afterwards the manuscript was lost. What a loss we have sustained, may well be imagined from what we know of his published works which. have reached us. But it is a great deal for us to know that, his complete system consisted of rules and decisions, and that he wrought from the civil law. Chancellor Kent says: "We have no report of his chancery decisions although he made over two thousand orders and decrees in a year. Those decisions, if well and faithfully reported, would doubtless have presented to the whole world, a clear illustration and masterly display of many principles of equity, since greatly considered and discussed, for even upon dry technical rules. and points of law, he shed the illumination of his mighty mind" (1 Kent 491). Everything Bacon did in jurisprudence found its inspiration in the civil law. No man who has shown himself well versed in the civil law, but also shows his faith in the maxims. The civil law gave range to the judge versed in the knowledge of the functions. of the maxims. Indeed one of the great maxims is Les Non Exacts Definit, Sed Arbitric Bone V'iri Permitit (The law does not exactly define but trusts to the judgment of a good man.) The greatest Jurisprudents of our time have been those, who have shown their ability in the use of the rules of construction, and herein was the genius of the Romans in procedure. Bacon particularly provided for rules of construction. Had his Rules and Decisions come to us, we would have had the civil law, pure and simple, Baconized. In view of his great reliance on construction, we would, no doubt, have found that his Decisions might have been contained in perhaps twenty-five volumes or even less. The English Law was made up of fragments of the civil law and customs established in England, or brought in in various ways. These got into English decisions and reports. If Coke had become deeply versed in the history of the civil law he would, perhaps, have seen, as Bacon saw, just where his reports would lead. He would have seen how the civil law got into a tangle, and how Justinian sought to provide to prevent another such calamity. He would have comprehended more of equity; would have seen that the civil law was equity, as Bacon did. But as it was, the fact that Bacon was the champion of equity, perhaps, prevented Coke from taking a deeper interest in it than he did. Blackstone was a disciple of Coke, and regarded the law of England as English, just as Coke did; had the same view of equity and knew no more of the civil law than did Coke. But Coke and Blackstone were in the saddle, and were revered by the English bench and bar. It was not till the time of Lord Mansfield, that new ideals began to be established in England. Lord Mansfield was deeply versed in the civil law, and saw that the best of the English law was from the civil law. What Bacon knew would happen to Coke's reports, began to show decidedly in Mansfield's time. Mansfield saw that England needed more of the civil law in order to do justice in many cases. He saw that over and above everything in the civil law, was construction; that the maxims were rules of construction to do justice, and used them with great effect in his own decisions. He was fiercely attacked by the lawyers of the time, and in the "Letters of Junius” (P. 96. Vol. 2, Walker Ed., 1834) one of them wrote: "He is fond of introducing into the Courts of King's Bench, any law which contradicts or excludes the Common Law of England; whether it be Canon, Civil, Jus gentium, or Levitical," and on page 97 id.—“We are both agreed that Lord Mansfield has incessantly labored to introduce new modes of proceeding into the court in which he presides; but you attribute it to honest zeal in behalf of innocence oppressed by quibble and chicane. I say he has introduced new law too, and removed the landmarks established by old decisions. I say his view is to change a court of common law into one of equity and bring everything into the arbitrium of a pretorian court." But what would "Junius" have to say to the English Judicature act, which followed hard on the growing influence of Lord Mansfield's decisions, and the hold the civil law has taken in England to-day? Or that every reform in English jurisprudence brings her nearer to the civil law, pure and simple. In our own country we all know in 1848, several years before the English Judicature act, David Dudley Field had worked out a code which New York adopted. Field was a disciple of Bacon, consequently believed in the civil law as the real source of our jurisprudence. He thought Bacon's hundred rules of construction would preside over and conserve his code. He did not count on the overwhelming influence which Coke and Blackstone had on the lawyers and judges in America at the time. Those judges were not versed in the civil law, so were not prepared to understand a code. The common law spirit was dominant, and the result was that judicial interpretation legislated Field's real purpose out of the code, to his great grief. He hoped that it would breathe the spirit of equity. But the interpretation given it by the judges, strengthened the spirit of the common law in the code. The average code lawyer knows little about equity, and is made painfully aware of the fact, when he goes into the United States Courts in equity cases for the first time. But this is very different in Louisiana under the Code Napoleon. There, the civil law prevails, the natural setting for a code: there, the maxims are respected, understood and applied in connection with the code. The Louisiana lawyer considers himself fortunate above his brother lawyers in other States, who are shackled by the cumbersome common law system of procedure. The simplicity of the procedure under the Code Napoleon, is bewildering to the lawyers of sister states, who go there to practice occasionally. It is said that Louisiana judges first promulgated one-half of the rules in equity practice accepted in the United States Supreme Court. This is not strange in view of the fact that our equity is the civil law. Says Mr. W. T. Hughes in his Equity in Procedure, Sec. 31, page 27, "Modern equity is the Roman Civil law. This law in all its height, breadth and depth has come to Continental Europe, to England and her provinces. It is the basis of the jurisprudence of all Latin speaking races. Bacon's rules for practice in the High Court of Chancery, were nothing more than one hundred maximized rules. They have governed that court from the time of their promulgation; this practice is the procedure in the Federal Courts in the United States." In some of our law schools they are teaching that the maxims are misleading. This is probably true when the students or the instructors are versed deeply only in the common law. The maxims are of the civil law and should be environed by the civil law to be fully appreciated. Men cannot "gather grapes of thorns or figs of thistles." Neither can they graft a peach on a crab apple. We have shown that the great jurists, who were deeply versed in the civil law, demonstrated their ability to use the maxims. Coke frequently used the maxims in construction and evidently held them in great respect. It is certain that the Romans, who are admitted to have had the greatest genius of all people for jurisprudence, revised and clung to them with a holy reverence, and such a people would have found it out with death's certainty, had they been misleading. It is also true that wherever the civil law has taken root, there the maxims have flourished. Lord Esher, in a dictum said they were misleading, but he is neither a Bacon nor a Mansfield. Nor have we any evidence that he was deeply versed in the civil law and we know that Bacon and Mansfield were. England's Great Lord Chancellors were maxim men, and in our day, in Chicago, Illinois, Judge Murry F. Tuley, presided for thirty-five years over the equity side of the Circuit Court in so satisfactory a manner as to gain the great esteem of the Chicago bar. Just before he died he read a paper before the Illinois Bar Association, in which he paid tribute to the maxims: "The maxims are so comprehensive, so broad, so fruitful, so elastic and inculcate such a pure morality, that I have sometimes thought that possibly the world would be better off if we could burn all our text books upon equity jurisprudence, and we might include ninety-nine per cent of the reports, and preserve only those grand, wise, comprehensive, pure and beautiful maxims with which to redress civil wrongs and enforce all civil rights as between man and man." A man of Judge Tuley's ability could not have sat thirty-five years in a court of equity, without being well versed in the civil law. Again says Mr. Hughes in his Equity in Procedure, Sec. 340, page 28: "The law is an entirety and cannot be written or taught in individual branches. Therefore, should it be longer attempted to learn the Roman law in fragments? If this law was founded. upon the maxims written upon the twelve tables, why should not that law be presented upon the matter of those tables today? If the matter of those tables is to be found in Broom's Maxims and Mansfield's Cases, why should not these fountains be kept in view and familiarized? And why can they not now be stated? What the Field Code was expected to abolish of the common law of England, upon its adoption in New York, is graphically set forth by our own able Chancellor Kent: "The Juridical scholar upon whom his great master Coke bestowed some of the gladsome light of jurisprudence, will scarcely be able to withhold an involuntary sigh as he casts a retrospective glance over the piles of learning devoted to destruction by an edict as sweeping and unrelenting as the torch of Omar. He must bid adieu forever to the renowned discussions in Shelly's case which were so vehement and protracted as to arouse the scepter of the haughty Elizabeth. He may equally take leave of the multiplied specimens of profound logic, skillful criticism and refined distinction which pervades the various cases in law and equity, from those of Shelly and Archer down to the direct collision between the courts of law and equity in the time of Lord Hardwicke. We will no more be concerned with the powerful and animated discussion in Per study and admire the spirited and ingen?ous dissertation of Hargrave, the comprehensive and profound disquisition of Ferne, the acute and analytical essay of Preston, the neat and orderly abridgment of Cruise and the severe and piercing criticisms of Reeves. What I have written on this subject may be considered, so far as my native state is concerned, as an humble monument to departed learning." But Coke and Blackstone were not to be so easily downed. The judges who interpreted Field's Code were, as we have shown, thoroughly imbued with them, but were not well versed in the civil law. In other words, they were not educated to understand a code. Judge Bliss, the author of an able work on Code pleading, recognized that: "Attempts to master a code without knowing the older systems is a grope in the dark." From all we have shown, it must be very clear that, those able to speak with authority would say, we need now, a reformation of the attempted reformation by David Dudley Field, in order to reach what was intended by his efforts. The persons who should be empowered to do this work should be well versed in the civil law, in fact, it would be well to call in some of the best informed scholars in the civil law, to aid any state commission entrusted with the work, whether citizens of the state or not. The next code which issues should be prepared with the greatest care, so that it may not be misconstrued as was Field's code. Field said "The Roman still holds dominion over this world by the silent empire of his law." So he intended by his code. But Coke and Blackstone have not yet been |