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had enlightened the understandings and mingled with the opin ions and feelings of mankind even in that age, and thus contributed much to form the mores-the common law, which is only the common sense-of the English people.
Independently, however, of any historical connexion of that kind, very little reflection will be necessary to convince us of what vast utility the volumes of the Civilians may be to us in our legal inquiries. As widely as systems of positive law may differ, there will always be some-frequently many points of coincidence and similarity between them. Besides this, in the progress of things, there is a tendency to a gradual abolition of merely technical rules and arbitrary institutions, and to the adoption in their stead of such as are more simple and rational, and of more universal application. This tendency is, of course, increased by the progress of commerce and the intercourse of nations. Thus, the Lex Mercatoria-the great body of the law merchant, is strictly juris gentium-and there would, at the present day, be very little discrepancy between the decisions of a French, an English, and an American court, upon any commercial question.
The use of the word juris gentium, in this connexion, suggests to us an illustration of this topic, from the writings of the Civilians, which deserves, on more accounts than one, to be brought to the notice of our readers.
The Roman lawyers, besides their first great division of law into the jus publicum and jus privatum, analyzed it into three distinct kinds, or rather constituents. 1° jus naturale, which they described as being common to the whole animal creation, such, for instance, as the union of the sexes, the procreation and education of offspring, &c. 2o The jus gentium, which we must be careful not to confound (as is often done) with what is called, in the language of modern jurisprudence, the law of nations. The jus gentium of the Civilians, comes nearer to what we term the "law of nature," and was by them distinguished from the jus naturale, in that the latter was common to all animals, whereas the former extended only to the human species. In another place, they have defined it thus-quod naturalis ratio inter omnes homines constituit, id apud omnes gentes peræque custoditur, vocaturque jus gentium, quasi quo jure omnes gentes utuntur.—l. 9. in fin. ff de just. et jur. To this jus gentium, they accordingly refer most of the usages and institutions, the pursuits and relations of civilized men-among which we find the following particulars enumerated under the same head in the Pandects. Ex hoc jure introducta bella, discretæ gentes, regna condita, dominia distincta, agris termini positi, ædificia collo
cata, commercium, emptiones, venditiones, locationes, conductiones, obligationes institutæ-1. 5. eod. That is to say, they class together under this head, those things which are so manifestly reasonable and proper, or so agreeable to the general condition and exigencies of society, as to have found their way into every system of laws. In by far the majority of cases, the jus gentium, as thus defined, would be found to coincide with the law of nature, according to the opinion of Cicero, who affirms, broadly, that omni prorsus in re omnium consensus lex naturæ putanda est. It may happen, however, that an extraordinary concurrence of circumstances, the barbarism of an age, or other similar causes, shall lead to the universal adoption of customs and principles that shall not coincide with the conclusions of right reason, or the feelings of a refined humanity. Piracy was once juris gentium, and so was the seizure of property wrecked. It is in this sense of the word also, that Sir H. Spelman speaks of the feudal system as the "law of nations in our western world"-a system (as has already been observed) as artificial, as far removed from the natural state of society as it is possible to imagine. 3° The third kind was the jus civile, which it were inaccurate to translate "municipal law," for the Civilians mean by jus civile, not that law which is contradistinguished from international, but only that part of the municipal law of every country, which arises from arbitrary legislation and peculiar customs, and which, therefore, cannot be classed either with the jus naturale or the jus gentium. "Itaque," as it is elegantly expressed in the Digest, "cum aliquid addimus vel detrahimus juri communi, jus proprium idcivile efficimus"-1. 6. eod.
If we adopt this precise and philosophical arrangement of the civilians, we shall find that in an advanced state of society, a very large, if not the largest portion of every system of jurisprudence is, what is strictly speaking, juris gentium. The peculiarities of positive law are gradually effaced by the intercourse of nations, and each code approximates more and more to the standard of that-quod naturalis ratio apud omnes gentes constituit. In this respect it will be found to be with the laws as it is with the characters of different peoples; they appear, at first sight, to be infinitely diversified, but very little examination is necessary to convince us that they resemble each other much more in the great, eternal principles of a common nature, than they differ in respect of local or national peculiarities. Thus by our law, the most solemn contract is in the shape of a sealed writingby the civil, it was a verbal stipulation. So far there is a wide difference between them; but for one question that arises about the form of a covenant, there will be, at least, a hundred involv
ing principles of universal application; as to the meaning of the parties, the extent to which their responsibility goes, the effect of fraud, mistake or duress, the rights and liability of sureties, &c. In all such matters, the writings of the Civilians are a neverfailing source of light and instruction, and we have no hesitation in saying, that in many most important enquiries, we have derived, in the course of our own experience, much greater assistance from Voet and Cujacius, or Domat and Pothier, than from our own books. Indeed, the juridical history of England furnishes illustrious examples of the same fact. The boasted essay of Sir W. Jones, on the law of bailments, contains very little that is not familiar to every student of the corpus juris civilis, and if his classification is inore complete, and his discussion of the subject more satisfactory than that of Lord Holt in Coggs v. Barnard, it is, no doubt, owing altogether to his familiarity with the works of the Civilians. The same thing may be predicated of the still more boasted improvements of Lord Mansfield. That great judge invented nothing. He was called upon to expound the contracts of merchants, and he did so, with the assistance of special juries at Guildhall, by the lights of the jus gentium. He had before him, besides the monuments of the ancient civil law, and the learning of the commentators, the French ordonnance de la marine and the commentary of Valin, and he did no more than sanction by the authority of judicial decision, and accommodate, in some few instances, to the usages of his own country, the principles which he found developed in those great repositories of wisdom and equity.
It is foreign from our present purpose (even if we were prepared) to express any opinion as to the comparative merits of the common and civil law. Each has, no doubt, its peculiar excellencies and defects,-points in which it approximates more nearly to, or deviates more widely from, the common standard of right reason, than the other, and the comparing them together, even in these particulars, affords one of the most profitable exercises that can be imagined for a reflecting mind. We will just remark, by the way, however, that we think the civil law will be found, in general, to study a refined equity more than the policy of society, whereas the common law seldom departs from its stern maxim, that a private injury is better than a public inconvenience. It is very important to keep in mind this point of difference between them. Thus there is something captivating in the equity of the principle, that a sound price implies a warranty of the soundness of the commodity; but it is certain that this rule is productive of great practical inconveniences, and we believe that in this State, where we have had
ample opportunity to witness its operation, there are very few experienced lawyers, but would gladly expunge from our books the case which first introduced it here.*
But whatever may be the comparative merits of these two systems of jurisprudence, considered per se, it is certain that the civil law has greatly the advantage of ours in the manner in which it has been expounded and illustrated. This, indeed, is a difficulty, for which allowance must be made by the readers of the volumes before us. They are another attempt to arrange and to develope the elements of a branch of knowledge that has never yet been taught as it ought to be. In comparing what the Civilians have written upon any subjects that have been treated of by English text writers, or discussed in the English courts, it is, we think, impossible not to be struck with the superiority of their truly elegant and philosophical style of analysis and exposition. Their whole arrangement and method-the division of the matter into its natural parts, the classification of it under the proper predicaments, the discussion of principles, the deduction of consequences and corollaries-every thing, in short, is more luminous and systematic-every thing savors more of a regular and exact science. Even Blackstone, with all his prepossessions in favour of whatever is English, admits that before his time "the theoretical, elementary parts of the law had received a very moderate share of cultivation," and although his own Commentaries have abridged and facilitated the studies of professional men, and made a certain knowledge of legal principles accessible even to mere amateurs, yet we think, that they have, by no means, superseded the necessity of future labours in the same vineyard. There is, in spite of all the pompous eulogies that have been passed upon that work, a great deal of justness in Horne Tooke's remark, that "it is a good gentleman's law book, clear, but not deep." The truth is, that "the learned commentator" was any thing but an original or philosophical thinker. He has done nothing more than fill up the outline sketched by Sir Mathew Hale, and with all his spicuity, and precision, and comprehensiveness, one is continually tempted to say of it, as D'Aguesseau does of the Institutes of Justinian-quoique l'ordre de ce livre ne, soit pas vicieux, vous souhaiterez néanmoins plus d'une fois qu'êl eût pu être tracé par M. Domat au lieu de l'être par M. Tribonien. If Lord Bacon had lived in the reign of George III. and accomplished the great work which he was so desirous of undertaking, even * See also Abbott on Shipping, 299.
in his own time, his profound and systematic understanding had left us, no doubt, a novum organon of jurisprudence, worthy of the science and the age. The other elementary writers of our law-the compilers of institutes, abridgments, &c. even down to the present day, are, with few, if any exceptions, liable to the same criticism. The most than can be said of them is par negotiis, neque suprà. None of them stand upon that "vantage ground," of which Bolingbroke speaks. They are mere pragmatici-who treat their subjects in a strictly technical manner, and whose whole system of logic consists of a case in point. They seem to dread nothing more than generalization, or the stating a proposition in the form of a theorem. They string together cases from which it is often difficult to extract any distinct, general principle, and which are determined to be analogous, or otherwise, by circumstances comparatively immaterial. Let any one reflect upon the confusion into which the courts of England were betrayed in their attempts to reconcile the necessity of words of perpetuity to carry the fee in a will, with the rule that the intention shall govern, and the figure which a digest of these decisions makes as part of a scientific system! So of the controversies occasioned by Porter vs. Bradley, and the other cases on that point. Would it be believed that stress has been laid by grave lawyers upon the verbal distinction between "leaving issue" and "leaving issue behind," as if issue could be left any where else. Compare Chitty on Bills with Pothier's Traité du Contrat de Change, or any other elementary book in our law with a corresponding treatise of that admirable writer, and it will be impossible to dispute the justness of the preceding observations. In a word, the remark of a celebrated French jurist, in reference to the law of his own country as it stood in his day, is entirely applicable to the appearance which our jurisprudence makes in these very inelegant and unphilosophical compilations: It seems to be a mass of irregularities and incoherencies, which consists rather in particular usages and occasional decisions, than in immutable principles, or in consequences deduced immediately from the rules of natural justice.
It is such things as these that Hottoman alludes to in a passage which seems to have scandalized Mr. Butler excessively, and which he misinterprets in quite a laughable manner. Stephanus Pasquerius &c. libellum mihi Anglicanum Littletonium dedit, quo Feudorum Anglicorum jura exponuntur, ita inconditè, absurdè et inconcinnè scriptum ut facilè appareat, verissimum esse quod Polydorus Virgilius, in Anglica Historiâ, de jure Anglicano testatus est, stultitiam in eo libro, cum malitia et calumniandi studio, certare. That is to say, was a mixture of foolishness and cavilling. Upon this, Mr. Butler gravely remarks-"Hottoman, if he had read it, might think it (Littleton's Tenures) inelegant and absurd; but he could not think it malicious or indicative of a disposition to slander !"-Pref to Coke upon Littleton, 13th edit.
+ Œuvres de D'Aguesseau. Tom. 1.e 395.