payment and not a gift.00

In the Roman Law, as in our own, facts and not opinions were usually sought from witnesses, and signatures were provable by a comparison of handwriting.92 Evidence was required to be pertinent and revelants as well as the most original which could be obtained. Copies of documents were admitted only in the exceptional cases now provided for** and hearsay was generally excluded though the supposedly modern exceptions as to ancient facts and dying declarations were recognized. The method of perpetuating testimony by examining witnesses de bene esse is plainly of Roman origin.98 So is the Bill Discovery."

III.

I have not attempted here to exhaust the subject of Roman influence on the Anglo-American law, but merely to present pertinent examples of such influence upon its various branches. But that influence has not been direct only; hardly less important have been the indirect results.

* Id.

2 Id.

"Id. 1053; Code lib. IV, tit. XIX, 10.

94

Hunter, Roman Law, 1054; Code, lib. IV, tit. XXI, 167. "Hunter, 1055.

" Id.; Digest, lib. XXII, tit. III, 28.

"Mascardus, De Probationibus, concl. 108L.

* Digest, lib. IX, tit. II, 40.

99

Equitable remedies-Discovery. "The fundamental conception of this auxiliary jurisprudence to obtain evidence by means of a suit for discovery was undoubtedly borrowed from the Roman law procedure. That law had provided actiones, interrogatoriae by which defendants were obliged to make answer under oath to questions propounded, and actiones ad exhibendum in which the degree compelled the defendant to produce some specific thing. The former class had, as it appears, become obsolete, in the time of Justinian; but the general purposes, objects, and methods of the proceeding are described in the treatises and compilations of the Roman law which have survived to our own time." Pomeroy, Equity Jurisprudence (3d Ed.) I, Sec. 193, citing Phillimore Private Law Among the Romans, 182.

"The Roman law," said Lord Chief Justice Tindall.100 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 books, it affords no small evidence of the soundness of the conclusions to which we have come, 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 groundwork of the municipal law of most of the countries in Europe. The authority of one at least of the learned Roman lawyers appears decisive upon the point in favor of the defendants.

Lord Thurlow, in deciding a case101 involving two legacies and whether they were cumulative or substantive said: "No argument can be drawn in the present case from internal evidence; we must therefore refer to the rules of the Civil law."

So it has been said102 of Lord Mansfield that "he made ample use of the compilations of Justinian, but only for a supply of principles to guide him upon questions unsettled by prior decisions in England."

An early American Judge, amplifying the same thought said:

With respect to the civil law, however enlightened and admirable a system of jurisprudence it may be, it is not our law, nor have our Courts any authority to declare it so. Our Legislature has adopted another system of laws. Where our law is obscure or doubtful, it is frequently of great utility in explaining or determining it, more especially as a great portion of our law was derived from that source.103

A well known American text-writer,104 subsequently a member of the French bar, has expressed as follows the results of his observations on this point:

190

Acton v. Blundall, 12 M. & W. 353 (1844), where Justinian's Digest was cited arguendo. See Warren's Law Studies 732. 101 Hooley v. Hatton, cited in Ridges v. Morrison, 1 Brown, C. C. 389. Campbell, Lives of the Chief Justices, II, 438, 439.

102

103 Harper, J., in Fable v. Brown, 11 S. C. Eq. 378, 390 (1835).

In the case of doctrine after doctrine and rule after rule is it not written in the book of the history of the Common law-our judges have floundered about for a few centuries, shutting their eyes to the light, shooting wide of the mark, guessing as best they could, conning their precedents and trying through the interpretation of one man's nonsense by another man's nonsense to reconcile the decisions more than to decide the cause, doing wrong by rote, working injustice to an uncounted multitude of unhappy litigants, doing, however, only wat they were compelled to do in the administration of the judicial system imposed upon them, and then, when quite out of breath in the mad chase after a case in point, finally fetching up in the clearness and justice of the Civil law rule on the subject.

The truth is that this process of borrowing from the Roman Law has been carried on for many centuries and has been effected not only by text writers and judges but by legislatures as well. At certain times it has been more extensive than at others. Leaving out Vacarius, who first formally introduced the study of Roman Law in England, the most prolific single borrower was Bracton, and if his famous treatise105 had, like its even more celebrated Spanish contemporary, "Las Siete Partidas," been actively supported by the reigning monarch, England, like Spain, might have become a civil law country.106 But, although that result did not follow, neither did Roman contributions to the English law cease with Bracton. They have continued, through one or more of these agencies down to our own day and bid fair to continue, through at least the legislative agency, for an indefinite period in the future. Surely then no student or practitioner of the Anglo-American legal system who hopes to be well equipped can afford to ignore the Roman Law. For the modern methods of legal study are mostly the application of a maxim emphasized by one of the

105 "De Legibus et Consuetudinibus Angliae."

100 Bracton.-"It is highly probable that if many of his fellows on the bench had shared his bent, romano-canonical jurisprudence would have become a 'subsidiary law' in England." Pollock & Maitland, History of the English Law (2nd Ed.), I, 207.

framers,107 of the common law and selected as the motto of the first case book,108;

Melius petere fontes, quam sectari rivulos.

I shall have accomplished my purpose if I have shown that

Roman law is one of our principal fontes.

THE INTERSTATE COMMERCE COMMISSION

HISTORY, FUNCTIONS, AND PROCEDURE

By EMMA C. JOHNSON.

NOTE-Miss Johnson has had sixteen years of active railroad service, in the transportation and traffic departments. Was in Division of Operation, U. S. Railroad Administration during entire period of Federal control of railroads; subsequently Assistant to Manager, Public Relations Section, Car Service Division, American Railway Association. Is now engaged in interstate commerce work in this city.

Commerce between the states is a matter of national regulation. The interstate commerce clause of the Constitution guarantees the right to ship merchandise from one state into another, and protects until the termination of the shipment by delivery at the place of consignment. The purpose of the Federal Constitution in committing to Congress power to regulate commerce was to protect commercial intercourse from individous restraints, to prevent interference through conflicting or hostile state laws, and to insure uniformity in regulation."

It is to be doubted whether there is any other form of litigation so extensive, and at the same time so technical, complicated, and involved, and calling for such a wide knowledge of commercial and economic affairs, as does the practice of interstate commerce law. Not only is it varied, but extremely interesting. Perhaps it is the element of chance that enhances the interest, for there is little by way of precedent in interstate commerce regulation. A general statement of the scope of the work and the extent and variety of its delegated powers may be helpful to students by way of informing them of the potentialities in this form of practice. A successful commerce lawyer must not only be thoroughly informed concerning the statutes under which the Commission functions; he must be very familiar, as well, with the previous reports and conclusions of that body. Statistical matter must frequently be prepared, and an ability to clearly and concisely analyze such data in the presentation of evidence and preparation of briefs is important. An understanding of the railroad growth and development of the country, and of the past and present

1 Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 378.

Vance v. Vandercook, 170 U. S. 438.

Pennsylvania v. West Virginia, 262 U. S. 553.