« السابقةمتابعة »
antiquity in law, that element of sterner character? If Rome went to Greece it was to learn any thing but law,—this was the growth of her own soil, developed in the workings of her own great system, and handed down to us, the most stupendous fabric of antiquity, the most valued relic of that colossal empire whose giant strides shook the world. On the banks of the Tiber was elaborated a system of civil jurisprudence, admirable for its wisdom, for its justice, for its adequacy to meet all the exigencies of a vast people. Built upon the foundations of Numa; through all the stages of the State, the kings, the republic, the empire, its proportions were being shaped and moulded, and when Justinian swayed the sceptre of the East, the fabric was complete.* Barbarian invasion,-civil discord-chaos, dark and cheerless, for gloomy centuries, involved in night this monument of embodied wisdom, till its accidental redintegration from the rubbish of Amalfi, was like the sudden blazing up of a torch or meteor in the groping darkness of midnight.f All Europe was aroused. Justinian, the theme of all applause, the object of all study. Nations rivalled each other in interpolating his principles into their then forming political constitutions, stimulated by a contrast which threw into the shade every other system. On the continent everywhere, an obedience to its authority, almost slavish, was sanctioned. But, in England, a hardier spirit was encountered, a spirit which disdained all innovation from abroad, which rested upon its own vigor and elasticity, and repudiated, in that notable parliament of Merton, the principles that were to be foisted upon the nation. Et omnes comites et barones una voce responderunt, quod nolunt leges Anglie mutare, que hujusque usitate sunt et approbate. The struggle was a temporary one,-the voice of Rome could not be hushed. She acted in the closet. She was heard in the forum. Mansfield at last, from her profound sources, drew the elements of that system of Commercial Law which has immortalized his name. Succeeding jurists and legislators have exhausted those sources. So phrophetic a voice had the Latin bard:
Romanos rerum dominos gentemque togatum. Wonderful is it that Rome has kept up so perpetual an empire over mankind, governing, in successive ages, by her military, by her ecclesiastical and by her civil power! So true, says
* I. Kent Com. 537. Ed. III.
+ 1. Black. 18.
Chancellor Kent, are the words of D’Aguesseau, that "the grand destinies of Rome are not yet accomplished ; she reigns, throughout the world, by her reason, after having ceased to reign by her authority.”
During the middle ages, mankind were too much engrossed with the crusades, with chivalry, with monkish conceit and scholastic erudition, to bestow any attention upon the science of jurisprudehce. The hierarchy was too busy in keeping men in the same happy ignorance they enjoyed themselves; whilst the illuminati, the wonderful and angelical doctors, the quodlibitarians,* had their hands and heads too much occupied with essences, universals, genera species and names, to think of any thing rational, the very thought too of a Pope and seven Cardinals,f was enough to dissipate a sensible thought, did one exist. With the revival of letters there came an influence which, operating differently in different nations, broke down the feudal aristocracy, buried in its ruins that monstrous system under whose grasp of death nations had sent up their groans to heaven and prepared the way for the resurrection of the Church, from the grave in which Rome had buried it. Suddenly a new power is recognized in Europe. International or Public Law springs up and advances rapidly to a high degree of perfection. It had not even a name in Greece. Rome was too crafty an interpreter of treaties, too arrogant, too domineering to admit its growth. Down to the sixteenth century nothing in Europe had the least appearance of an equitable code of public law. At which time and since, the number of enlightened writers, as Grotius, Vattel, Burlemaqui, Bynkershæck and others, who have contributed their labors,—the clear light which Christianity has imparted,—the formation of treaties or conventional laws for purposes of commerce,-the settlement of a scale of political rank and precedency,—the treatment of prisoners and admission of resident ambassadors, have given to this species of jurisprudence a definite and permanent character, recommending its decisions to the attention and highest regards of every enlightened and civilized nation in the world. I
* D'Isr. Cur. Lit. p. 17.
+ Gallileo was compelled to recant his "abominable heresys,” before the Pope and Seven Cardinals. Percy Anec. pt. viii. Science.
See a full discussion of this subject in I. Kent Comm.
To all the perfection of the civil law add the element of liberty,--the improvements of more advanced civilization, the teachings of a pure religion,--the wisdom and experience of many centuries,--and you have some idea of the perfection to which the science of law has advanced in England. What Sir Edward Coke says of the Parliament of England, may, without hesitation, be applied to its jurisprudence: si spectes antiquatatem, est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capassima;and, to account for its origin and growth, Littleton's quaint derivation of the law of hotchpot, "wherein is not put one thing alone, but one thing with another," will suffice. When we reflect from
how many independent and often conflicting sources this vast and comprehensive system has been derived, the wonder is that so many jarring elements could ever be combined into a perfect whole, wherein nothing valuable has been lost. Not alone from native lips have the highest eulogiums been pronounced,--foreigners, who have taken the pains, or have had the opportunity to examine its proportions, have expressed themselves in language of unhesitating and unmeasured praise. If there yet remain a few excrescences to mar those fair proportions, it is but the common fate to which every thing human is subjected.
Of what, then, does English law consist ? Let us hurriedly consider its elements. 1. The Common Law presents itself with its various definitions, "common sense," "enlightened experience,” “wisdom of ages," "worn-out statutes," etc. This is none other than a collection of rules that have obtained, time out of mind, in the administration of justice; with no higher sanction than prescription, no other repository than the writings of sages learned in the profession, and reports of adjudged cases. Its antiquity may be clearly trūced up to the Saxon times, and, if certain writers are to be credited, considerably farther. The free and hardy spirit of our fathers could never abide any encroachments upon it. They wrested from king John a confirmation of its privileges; and, it is even said, that the laws of Edward the Confessor, of which so much is read in early English history, and which won so much favour to the sovereigns consenting to observe them, were nothing more than a compilation of these ancient customs, first made by Alfred, and afterwards completed by the Confessor. II. The Statute Laws, and these divisions taken together, the lex scripta and lex 49
VOL, VI,—NO. 12.
non scripta, comprise the whole. If we note the great changes through which England has passed, it will easily be observed how foreign accretions have been made to her civil polity. First, we have a collection of barbarous tribes under the denomination of Britons; second, a Roman province; third, a Saxon invasion and analgamation; fourth, a Danish irruption ; fifth, a Norman conquest and establishment. Now, is it not natural, in the formation of law, as in the formation of language, to expect wide traces of all these mutations? The Briton had the dark superstitions of his Druids; the Roman brought to his northern dependency that system which had thrived so well on the banks of the Tiber; the Saxon, his bold and free nature, which scorned all restraint; and the blighting footstep of the Norman brought feuds and slavery. The idea of conquest supposes much-new institutions, new maxims, new principles, new laws. Hence that bitter contest between the invader and the invaded,--that radical and conservative warfare,—that struggle for existence on the one hand, and supremacy on the other,--that ceaseless struggle. With the people that he despised, the Norman would even have blouted out their very language. It was nut sufficient to work his system of feuds into the heart of the nation, he must maintain it there; he must deduce its most servile consequences. The system remained,—no arm of power could eradicate it. Centuries passed away,—new principles were developed, -new lights shone,-new efforts were stimulated; it fell at last, but furnishes, even to this day, the key to mysteries which were otherwise inexplicable.
With the administration of English law, two species of courts are entrusted; the one with, the other without, the intervention of a jury. Of the former, the Common Pleas and King's Bench are examples ; of the latter, the Chancery or Equity. The Chancery Court presents an anomaly to the student of English law. It is as antique, at least, as the times of Henry III.; and has from thence made gradual encroachments upon the sphere of the common law. These encroachments have excited, at times, no little uneasiness and dissatisfaction among the people, ever jealous of the prerogative of their “welve men,” and have been met by a spirit of sturdy opposition on the part of the earlier judges. This dispute, which was carried on with great vigor, and lasted many years, commenced with Sir Edward Coke,
Chief Justice of the Common Pleas, and Lord Chancellor Ellesmere. Of the peculiar nature of Chancery, foreigners have had very confused notions; and Mr. Justice Story has shown, that even native writers, learned in the law, have strangely erred. That it is ordained to supply, and not subvert, the law,- that it acts ex æquo et bono, and is administered at the discretion* of the chancellor, which discretion is said to be a legal discretion, that it differs from all other courts in the modes of trial, proof and relief,—that it extends to numerous cases wherein the law, by reason of its generality, is deficient,—and, in fine, that it reaches to all cases of rights recognized and acknowledged by the muni. cipal jurisprudence, 10 which a plain, adequate and complete remedy cannot be addressed at common law,—are descriptions with which one, who is not a lawyer, must be satisfied, and one, who is a lawyer, unless we are much mistaken, after examining all the books upon the subject, will find a confusion of ideas still existing in his mind. The truth is, it is easier to know what Equity does, than to know why it does it; and for our own parts, we have never yet seen so clearly why a great part of its business might not, with great propriety, be entrusted to the ordinary courts. But, we are on tender ground.
The important part occupied by the jury in the English juridical system, entitles it to an extended notice in this place. No Englishman can feel other than a just pride, when he considers the distinctive character which it has given to the administration of justice in his country. To the Greeks and Romans, it was an institution unknown; and it has gained but partial admission into any of the countries on the continent of Europe, which have been formed upon the basis of the Roinan law. The trial by jury has been esteemed the bulwark of British liberty, and its guarantee formed one of the most important stipulations of Magna Charta. All the wealth, honor, liberty, life of the subject, hangs upon its determinations. From its honesty and enlightenment every thing may be hoped,—from its corruption every thing
* This drew forth the well-known reproof of Mr. Selden: "For law we have a measure, and we know what to irust to; Equity is according to the conscience of bim who is chancellor; and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the standard for the measure the chancellor's foot. What an uncertain measure this would be! One chancellor has a long foot, another a short foot, a third an indifferent foot. It is the same thing with the chancellor's conscience."