Imágenes de páginas
PDF
EPUB

THE COMMON LAW'S INDEBTEDNESS

TO ROME
By CHARLES SUMNER LOBINGIER.

(Professor of Civil Law, National University; formerly

Judge of United States Courts of China and the Philippine Islands.)

I use the term "common law” in its wider significance! as the system which arose in England, prevailing now in most English speaking countries—regardless of its form, whether scripta or non scripta, and of its origin, whether worked out in the purely native courts or in those applying borrowed doctrines. Blackstone?, Kent', Pollock and Maitland", all tell us of the jealousy manifested by early adherents of that system toward the older one which today shares with it the civilized world of law. Dr. Sherman in his recent and comprehensive work”, expresses the opinion that

Ignorance and prejudice—so potent in past centuries in England and Americano longer obscure the great debt of Anglo-American law to the law of Rome and the truth that knowledge of Roman law is knowledge of our own law.

I should like to share this optimistic view; but I have noticed from time to time what seem like lingering echoes of that medieval prejudice-expressing itself in a disposition to belittle the influence of the Civil Law upon our own and even to deny the former any considerable merit.

3

1 "The English common law in its enlarged senses, as embracing law

and equity, became by the principle of colonization the fundamental jurisprudence of the American colonies." Ware v. Wan

less, 2 Wyo. 144, 152. Commentaries, I, 19 * Commentaries, I, 546. * History of the English Law (2nd Ed.), I, 122 et seq. • Roman Law in the Modern World (2nd Ed. 1922), I, 8. • I have sometimes wondered if this sentiment may not account for

the Comparative Law Bureau's continued failure to obtain funds to publish its translation of Las Siete Partidasthat noble pioneer in the fruitful literature of Spanish law.

[ocr errors]

Thus, a well known law teacher of the older generation, who served as an appellate court judge in his later years and wrote considerably (tho not in the field with which we are here concerned) asserted that

few rules of law, consciously and avowedly taken from the more highly developed system of Roman jurisprudence, have been successfully introduced into the English system.?

Then I sometimes meet law school professors, and even Deans, who solemnly assure me that the modern curriculum has no place for Roman or Civil Law-that it is an alien subject with little or no practical value for the American law student. To all such I say, this is a question for experts. Let us invoke the opinions of those who have devoted a goodly portion of their lives to an intensive study of both systems.

One of the earlier of the numerous English works on the subject contains this estimate:

In England, then, as in every other land where the Mistress of the World impressed her stamp, the image and the superscription yet remain. As the spirit of the Roman tongue survives in the words and forms of well-nigh every language in the Old World and the New, so does the spirit of the Roman Jurisprudence live and work in well-nigh all their Codes. That spirit which, twelve centuries ago, entangled the earlier Teutonic peoples in its net, and made them bow before a system which they might not crush, has for their children also, meshes which they may not burst. Ignore it as we may, the books of Gaius and Justinian are no

'Emlin McLain, The Civil and the Common Law, Neb. State Bar

Ass'n. Proceedings, II, 164. An encouraging exception is Chancellor Hadley of Washington

University, St. Louis, whose attitude will appear from the following excerpt from his address at the inaugural dinner of the American Law Institute, Feb. 23, 1923: “There is scarcely a department of our far-reaching system, with the exception of the law of real property, that does not owe its debt of gratitude to the men who developed and established the Roman Law.” Proceedings, I, 106.

mere fragments of a by-gone world, the broken links of a chain once strong, now riven, and of worth only as memorials of the mighty race that forged them; they are portions of a living and a growing system; working, at times covertly and at times confessedly; appealing from the weakness of a present to the glories of a past; enriching, in the hands of those that recognize their power; endangering only when that power is unfelt, or unacknowledged. Scarcely a change for the better has, of late years, taken place in the administration of the Law of England, which has not been foreshadowed in the law-books of Justinian. Wearied with subtle trickeries, and clumsy forms, and constant breaches of substantial justice, we have been driven, at times unwittingly, and grudgingly at times, to the broad principles and the severe logic of the Roman Jurisconsults."

A distinguished Scotch writer, who was also a judge, observed:

That the Roman law exercised considerable influence on the law of England cannot be doubted; for Bracton, and other early writers, who contributed much to the formation of the English law, borrowed many rules and principles from the civilians.10

As to the Roman contributions through Bracton, Lord McKenzie's view is supported by no less an authority than Sir Henry Maine," and also by the pioneer writer on

'Grapel, Sources of the Roman Law (Philadelphia, 1857), 105, 106. 10 Mackenzie, Roman Law (Kirkpatrick's Ed., 1911), 45.

11 "That an English writer of the time of Henry III should have been able to put off on his countrymen as a compendium of pure English law a treatise of which the entire form and a third of the contents were directly borrowed from the Corpus Juris, and that he should have ventured on this experiment in a country where the systematic study of the Roman Law was formally proscribed, will always be among the most hopeless enigmas in the history of jurisprudence." Ancient Law, 82.

Equity,12 while the one English author who has devoted an entire treatise to this general subject states his conclusion regarding Bracton as follows:

English Law was reduced to order on a Roman framework, furnished with many Roman terms, its gaps filled up with actual Roman matter, so long as this was not inconsistent with English Law. To him English law is undoubtedly indebted for an extensive Roman terminology which survives to the present day.13

13

[ocr errors]

Thus, says an eminent English legal scholar:

Partly through the early law-writers, much more through the Chancellor's jurisdiction, and partly, perhaps in an increasing degree, through intercourse with other nations and through literary and professional training, the Roman law has materially helped, and is still helping, to form our rules for the business of life.11

I will close this examination of the experts by calling two Americans.

"The evidence, both internal and historical," says Pomeroy1 "is conclusive that the common law of England, in the earliest formative period, was much indebted to the Roman jurisprudence which enters so largely into the judicial systems of all the western nations of the European continent. Besides the proof furnished by the law itself, several important facts connected with the external history of its primitive

13 "There is scarcely a principle of law incorporated in the treatise of Bracton, that has survived to our times, which may not be traced to the Roman Law. Bracton's direct references plainly do not comprise nearly the whole of what he adopted immediately from the Corpus Juris." Spence, Equitable Jurisdiction of the Court of Chancery, I, 132.

13 Scrutton, Influence of Roman Law on the Law of England (Cambridge, 1885), 120, 121.

"Roby, Introduction to Justinian, XV.

"Equity Jurisprudence (3d Ed.), I, sec. 14, citing Guterbock Braceton and His Relation With the Roman Law (Coxe's Trans.) p. 24.

mere fragments of a by-gone world, the broken links of a chain once strong, now riven, and of worth only as memorials of the mighty race that forged them; they are portions of a living and a growing system; working, at times covertly and at times confessedly; appealing from the weakness of a present to the glories of a past; enriching, in the hands of those that recognize their power; endangering only when that power is unfelt, or unacknowledged. Scarcely a change for the better has, of late years, taken place in the administration of the Law of England, which has not been foreshadowed in the law-books of Justinian. Wearied with subtle trickeries, and clumsy forms, and constant breaches of substantial justice, we have been driven, at times unwittingly, and grudgingly at times, to the broad principles and the severe logic of the Roman Jurisconsults.

A distinguished Scotch writer, who was also a judge, observed:

That the Roman law exercised considerable influence on the law of England cannot be doubted; for Bracton, and other early writers, who contributed much to the formation of the English law, borrowed many rules and principles from the civilians.10

As to the Roman contributions through Bracton, Lord McKenzie's view is supported by no less an authority than Sir Henry Maine," and also by the pioneer writer on

11

Grapel, Sources of the Roman Law (Philadelphia, 1857), 105, 106. 10 Mackenzie, Roman Law (Kirkpatrick's Ed., 1911), 45. 11 “That an English writer of the time of Henry III should have

been able to put off on his countrymen as a compendium of pure English law a treatise of which the entire form and a third of the contents were directly borrowed from the Corpus Juris, and that he should have ventured on this experiment in a country where the systematic study of the Roman Law was formally proscribed, will always be among the most hopeless enigmas in the history of jurisprudence.” Ancient Law, 82.

« AnteriorContinuar »