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Common Law or [Roman] Civil Law

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.

This system of jurisprudence was closely connected with the imperial theory
and form of government, both by the manner of its growth and the political
doctrines introduced into it by the writings of the jurists. The jurists were,
in politics, imperialists; and they made their legal opinions support the
imperial authority at all points of doctrinal application and administrative
contact between it and the law. For though the theory of the republic was
forgotten, and the right of revolution, so often exerted in the early history of
Rome, was hardly even a matter of tradition, still it was deemed necessary, by
the jurists, to vindicate to human intelligence, by some theory of right, an
authority so stupendous as that of a Roman emperor. Therefore it was that the
jurists invented the fiction of the lex regia, by which it was pretended that
all the authority of the Roman people was irrevocably granted to the emperor.
And, to complete their theory of absolutism, the jurists introduced into their
writings, as a constitutional principle, the dogma, Whatever pleases the prince
has the force of law.

Thus the jurisprudence which had been recast in an imperial mold became a
part of the imperial system; and as the chief functionaries under the empire
were generally selected from the profession of the law, they entered upon their
official functions thoroughly imbued with imperial ideas and trained to
principles of imperial policy. The administration of the law, too, was
subordinate to the imperial authority, not only in theory but in practice, the
courts being organized accordingly. Under the republic, the courts were open to
the public in both civil and criminal trials. Under the empire, open courts
disappeared, and an appeal lay in all cases to the emperor in his imperial
court. Thus a perfect system of despotism, disguised under forms of law, was
built up on the ruins of the republic.

After the seat of the Roman empire had been transferred by Constantine to
the borders of Asia, and the unity of the Roman dominion had been broken into a
western and an eastern empire, the Emperor Justinian, in the first half of the
sixth century of the Christian era, had all the constitutions which had been
promulgated by the successive emperors compiled into a code. And afterwards, at
the suggestion of Tribonian, a distinguished lawyer who had been one of the
compilers of the code, a commission was appointed, with Tribonian at its head,
to make a selection from the writings of the elder jurists, which should
comprehend all that was most valuable in them, and should be a compendious
exposition of Roman law. The commissioners, in the very short period of three
years, produced their compilation, called the Pandects or Digest, containing
literal extracts from thirty-nine jurists, those from Ulpian and Paulus
constituting about one half of the whole work. The Pandects or Digest, besides
being designed as a book for the practitioner, was designed also to form a
necessary part of legal education in the schools of jurisprudence at
Constantinople and Berytus. But it was too vast a work, and required for its
comprehension too great a previous knowledge of law, to admit of its being mad
an introduction to a course of legal study. Justinian, therefore, appointed
Tribonian, in conjunction with Theophilus and Dorotheus, respectively professors
in the law schools of Constantinople and Berytus, to compose an elementary law
book. The produced the Institutes.

The code, the Pandects or Digest, and the Institutes contain the civil law
as it has come down to modern times, and are the sources from which the modern
jurists have derived their knowledge of Roman jurisprudence. They embody
principles and ideas of law which were the slow growth of ages, and which,
beginning with the origin of the Roman people, had been gradually unfolded,
modified, and matured.

During the progress of Roman jurisprudence the forms of legal procedure had
undergone an entire change. As soon as the republic was overthrown and the
empire was established by Augustus, changes in the law began to be contemplated;
and two schools of law reformers arose, one school in favor of adhering to the
strict technical forms of the law under the republic, and the other in favor of
substituting for them simple and general forms, more accommodated, as they said,
to the larger equity, the more ample justice of the jurisprudence required by
the enlightened spirit of the age. At the head of the republican school stood
Labeo, and at the head of the other stood Capito. Both were eminent lawyers. But
the first, though in favor of liberalizing the principles of the old
jurisprudence, was utterly averse from changing the strict technical forms of
procedure, as he believed they afforded the only protection to the rights of the
citizen. Capito, on the contrary, a time-serving adherent of the new order of
things, maintained that the forms of legal procedure, as well as the
jurisprudence itself, must be changed to suit the spirit of progress. The
controversy between these schools of lawyers lasted nearly a century, the
imperial party gaining ground all the time, until the Emperor Hadrian, by the
perpetual edict, exercised uncontrolled legislative authority, and fixed forever
the character of the imperial jurisprudence. From this epoch the civil law and
its procedure assumed that pretorian form and spirit which were consummated in
the Code, the Pandects, and the Institutes of Justinian. The old forms of law
procedure of the republic, and the respect for precedent when the law was an
emanation from the manners and spirit of the people, gave way to the more simple
forms of the empire. Thus was consummated what has sometimes been considered an
advance in jurisprudence. But in this opinion things wholly different have been
confounded: the machinery for carrying law into effect has been confounded with
the law itself. There can be no doubt that the law itself was so improved, under
the empire, as to make it almost a new creation; but there should be as little
doubt that the mode of procedure was changed from one suited to the liberty of
the citizen to one suited to arbitrary power, by its enlarging the discretion of
judges.

If we now turn to the common law of England, we will find that, as far as
administrative principles and forms of procedure are concerned, it is the
opposite of the Roman civil law as it was molded under the empire. The principle
which, in the practical administration of the two systems, marks the primary
essential distinction between them, is the relative obligatory force under them
of precedent or former decisions. Under the common law, former decisions control
the court unconditionally. It is deemed by the common law indispensable that
there should be a fixed rule of decision, in order that rights and property may
be stable and certain, and not involved in perpetual doubts and controversies.
Under the civil law the principles is different. Former decisions have not so
fixed and certain an operation, but are considered as only governing the
particular case, without establishing as a settled rule the principle involved
in it. When a similar case occurs, the judge may decide it according to his
personal views of the law, or according to the opinion of some eminent jurist.
The civil law, as administered at the present time on the continent of Europe,
possesses all the uncertainty and fluctuations of doctrine that results from the
little respect paid by it to precedent. The commentaries of the doctors, who
have succeeded to the jurists, are as various as the diversity of human judgment
can make them. The late United States Attorney General, Legare, who studied law
in Germany, with all his strong predilections for the civil law, said, "One who
was initiated in this study, as we happened to be, under the old plan of the
eighteenth century, with Heineccius for a guide, will find himself in the
schools of the present day in almost another world - new doctrines, new history,
new methods, new textbooks, and, above all, new views and a new spirit." The
diversity of doctrine in the schools signalized by Mr. Legare descends into the
courts to perplex and bewilder the administration of justice. Let anyone, who
wishes to examine a specimen of this perplexity in regard to a fundamental
classification which the civilians make of laws into personal statutes and real
statutes, refer to the opinion of the supreme court of Louisiana, by Mr. Justice
Porter, in Saul v. His Creditors, in 17 Martins Reports. After referring to the
jurists of the different European countries who have treated of this
distinction, Justice Porter says: "The moment we attempt to discover from these
writers what statutes are real and what personal, the most extraordinary
confusion is presented. Their definitions often differ; and, when they agree in
their definitions, they dispute as to their application." And Mr. Justice Story,
in his "Conflict of Laws," when speaking of the civilians who have treated of
the subject of his book, says: "The civilians of continental Europe have
examined the subject in many of its bearings with a more comprehensive
philosophy, if not with a more enlightened spirit. Their works, however, abound
with theoretical distinctions, which serve little purpose than to provoke idle
discussions and metaphysical subtleties, which perplex, if they do not confound
the inquirer. * * * * Precedents, too, have not, either in the courts of
continental Europe or in the judicial discussions of eminent jurists, the same
force and authority which we, who live under the influence of the common law,
are accustomed to attribute to them; and it is unavoidable that many differences
of opinion will exist amongst them, even in relation to leading principles."
Such is the fluctuating wind of doctrine with which the judicial mind is liable
to veer under the civil-law institutions where precedents have but little force.

The common law, in broad contrast to the civil law, has always wholly
repudiated anything as authority but the judgments of courts deliberately given
in causes argued and decided. "For (says Lord Coke, in the preface to his 9th
Report) it is one amongst others of the great honors of the common law that
cases of great difficulty are never adjudged or resolved in tenebris or sub
silentio suppressis reationibus, but in open court: and there upon solemn and
elaborate arguments, first at the bar by the counsel learned of either party,
(and if the case depend in the court of common pleas, then by the sergeants at
law only;) and after at the bench by the judges, where they argue (the presiding
judge beginning first) seriatim, upon certain days openly and purposely
prefixed, delivering at large the authorities, reasons, and causes of their
judgments and resolutions in every such particular case, (habet enim nesio quid
energia viva vox:) a reverend and honorable proceeding in law, a grateful
satisfaction to the parties, and a great instruction and direction to the
attentive and studious hearers." Nothing less elaborately learned and cautiously
considered than such a judgment of a court has a legitimate place in the common
law. By such adjudication has that great system of jurisprudence been built up.
The opinion of no lawyer has a place in the system of common law. And this wise
principle of the common law is never lost sight of by those bred in its spirit.
When Lord Coke wrote his commentaries upon certain statutes of England, from
Magna Charta to Henry VIII, which are called his II Institutes, he did not give
his personal opinions of their meaning, but gave the judicial interpretations of
them, which had been made. In the conclusion of the preface to the II Institutes
he says: " Upon the text of the civil law there be so many glosses and
interpretations, and again upon those so many commentaries, and all written by
doctors of equal degree and authority, and therein so many diversities of
opinions, as they rather increase than resolve doubts and uncertainties, and the
professors of that noble science say that it is like see full of waves. The
difference, then, between those glosses and commentaries are written by doctors,
and which be advocates, and so in a great manner private interpretations; and
our expositions or commentaries upon Magna Charta and other statutes are
resolutions of judges in courts of justice in judicial courses of proceeding,
either related and reported in our books or extant in judicial records, or in
both, and therefore, being collected together, shall (as we conceive) produce
certainty, the mother and nurse or repose and quietness." Such is the doctrine
of the common law! Nothing but the solemn voice of the law itself, speaking
through its constituted tribunals, is of any judicial authority. And how august
is that authority, reposing as it does upon the solemn decisions of courts which
have administered justice in the very same halls for nearly eight hundred years!
In vain shall we search the history of nations for a parallel to this stability
of law amidst the fluctuating vicissitudes of empire. It is this stability of
law, ruling over the prerogative of the crown and administering equal justice to
the high and the low through so many centuries, that vindicates the "frame and
ordinary course of the common law" to the consideration of the present times.

It is this primary difference in the principles of practice, under the two
systems of law, which gives to the common law its great superiority over the
civil law, as a practical jurisprudence regulating the affairs of society. It
has the great advantage of producing certainty in regard to all rights and
obligations which are regulated by law. But, above all, it excludes private
interpretations and controls the arbitrary discretion of judges. In the common
law the principles of interpretation are fixed and certain. Rules of
interpretation were early adopted, and have never been departed from. Other
rules from time to time have been adopted, but when once introduced into
practice they become precedents.

But it is far otherwise in the civil law. Different schools of
interpretation have existed in countries where it is administered in modern
times, called respectively the historical and philosophical schools. And the law
is subject to all the fluctuation in practice which grows out of the different
principles of interpretation of these schools. By the different principles of
interpretation, and by the principle that former decisions may be disregarded,
much certainty in the law is lost; so that often the decision of the plainest
case, unless it depends upon some fundamental positive rule, can hardly be
confidently foretold.

This difference in the administrative principles of the common law and the
civil law is intimately connected with their different modes of procedure and
with the different degree of respect paid to technical forms. Under the common
law, forms are as sacred as the principles they embody. They are precedents. The
precise form being a precedent, the certainty of the principle which it embodies
is thereby fixed. There can be no more dispute about the principle than about
the form which embodies it. Every new case must conform to it, there can be no
dispute about its import.

The great instrument by which certainty has been given to precedents in the
common law is special pleading. This is the mainspring and the regulative force
of the whole machinery of the common law as a practical jurisprudence. By it
every step, from the original writ to the judgment, is kept in specific
undeviating forms. There can be no dispute about the specific import of every
step in the procedure. And when the decision is made, no matter how loosely the
opinion of the court may be expressed, the pleadings in the case give
definiteness to the point or points decided, and preserve them forever as a
precedent for future judges to follow.

The object of judicial proceedings is to ascertain and to decide upon
disputes between parties. In order to do this, it is indispensable that the
point or points in controversy be evolved and distinctly presented for decision.
The common law and the civil law have different modes for accomplishing this
purpose. The rules of common law pleading are designed to develop and present
the precise point in dispute upon the record itself, without requiring any
action on the part of the court for the purpose. The parties are required to
plead alternately in writing, until their respective allegations of affirmation
and denial terminate in a single material issue, either of law or of fact, the
decision of which will dispose of the cause.

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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 Majestys 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 mans house is
called his castle. Why? Because it is surrounded by a moat or defended by a
wall? NO! It may be a straw-built hut the wind may whistle through it, the
rain may enter, but the king cannot."

In all the various revolutions, with their dark and dreary
scenes of violence and bloodshed, through which England has passed, the people
have clung to their ancient laws with a devotion almost superstitious. When
our forefathers established governments in America they laid their foundations
on the common law. And when difficulties grew up between them and the mother
country, they acted as their English ancestors had always acted in their
political troubles - interposed the common law as the shield against arbitrary
power. When the United Colonies met in Congress, in 1774, they claimed the
common law of England as a branch of those "indubitable rights and liberties
to which the respective colonies are entitled." And the common law, like a
silent providence is still the preserver of our liberties.

From the book;

A TREATISE

ON THE

PRINCIPLES OF PLEADING

IN CIVIL ACTIONS:

COMPRISING

A SUMMARY VIEW OF THE WHOLE

PROCEEDINGS IN A SUIT AT LAW.

BY HENRY JOHN STEPHEN,

SERGEANT AT LAW.

___________________

. . . . Res antiqu laudis et artis

Ingredior, sanctos ausus recludere fontes.--Vide.

____________________

THIRD AMERICAN

FROM THE SECOND LONDON EDITION:

WITH A PREFACE, AN INTRODUCTION, A DISSERTATION ON PARTIES

TO ACTIONS, AND NOTES.

BY SAMUEL TYLER, LL. D.,

PROFESSOR IN THE LAW DEPARTMENT OF COLUMBIAN COLLEGE, WASHINGTON, D.
C., AND AUTHOR OF THE MARYLAND SIMPLIFIED PLEADING, ETC., ETC.

____________________

WASHINGTON, D. C.:

WALTER C. MORRISON,

LAW-BOOK PUBLISHER AND SELLER.

Copyright, 1871, by W. H. & 0. H. MORRISON.

Copyright, 1898, by WALTER C. MORRISON.

TO THE ALUMNI OF THE

LAW DEPARTMENT OF COLUMBIAN COLLEGE,

THIS EDITION OF A WORK, THE STUDY OF WHICH IS SO WELL FITTED TO
SHARPEN AND INVIGORATE THE MIND OF THE LAWYER AND IMPART TO IT A PRACTICAL
FACILITY, IS, WITH THE BEST WISHES FOR THEIR PROFESSIONAL SUCCESS,

Respectfully Suscribed.

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