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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