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body of the Roman law. Toullier, who stands without a rival at the head of the commentators on the Code Civile, and who in the opinion of Dupin surpasses Pothier himself, (Biblioteque choisie, 85,) seldoin refers to the decision of even the highest court, that of cassation, for the illustration of his doctrine. In one of the examples which we have given above, where he differs from Pothier, it has been seen that he does not attempt to refute the doctrine, which he combats, by an array of decided cases, but by reasons drawn from the nature of the case and the general and received principles of jurisprudence. When he does cite an arret, it is not with that blind submission to authority which we find in the elementary writers on English law. The ipse dixit of a court, however respectable, never silences the judgment of the commentator. If he approves the decision he uses it as an authority to confirm his own opinion; if he disapproves it, he combats the doctrine of the court with the freedom and boldness of a jurisconsult, who is reasoning on the basis of a known law, and who feels a just confidence in the powers of his own mind and in the rectitude of his own conclusions. When he requires examples to illustrate his doctrine, instead of going to the collection of arrets, he takes them from the Roman law, or from authors who have treated the same subject before him, with such additions as suggest themselves to his own mind. The advantages which an author derives from this mode of explaining the law, instead of confining himself, like the English elementary writers, to cases which have received a judicial decision, are great and obvious. The cases he puts are of his own choice, and he selects such as are best adapted to open and explain the sense of the law and give a clear and full notion of its various applications. He may vary the case and show whether the rule will still apply, or whether the change of some of the facts will bring the case under a different rule. He thus shows what are the limitations and restrictions as well as the application of the rule, and explains it in this way in all its extent and all its branches. He incorporates into his commentary the distinctions, divisions, and subdivis ons that belong to the subject, and throws over the whole the light of a sound philosophy and correct logic. Principles are followed out to their consequences, and results are obtained, not from the marginal notes of decided cases, but by logical induction. A commentary thus becomes a reasoned and methodical exposition of the whole law. All the light which the jurisprudence of ages, which the speculations of former authors, who have illustrated the law by their profound learning and penetrating sagacity, which the wisdom of the closet or the practice of the forum have struck out, are laid under contribution to expound the text of the code. A commentary on any title of the law becoines in this way not merely a practical manual, but a scientific treatise resting on general principles philosophically reasoned out, and logically deduced one from the other; and the doctrine is to be tried, not by arbitrary authority, not by the ipse dixit of a court, but by sound arguments drawn from the great and general principles of law, which are consecrated in the code.
If any one is curious to see the difference between a commentary of this description, which opens and expounds the law in a me hodical manner by the force of philosophical reasoning, and a treatise on the same branch of the law, by an author who gropes his way in the leading-strings of judicial precedents, let him take any English elementary work on a particular title of the law, as, for instance, Comyn on Contracts, and compare it with Pothier on Obligations, or Toullier on the third title of the Code Civile, and he cannot fail to be struck with the infinite disparity. In the latter he will find a complete treatise, the whole subject exhausted, principles followed out to their ultimate results, with the most copious fulness of detail and the most admirable conciseness of statement;- in the former a jejune prolixity, the most tedious and eshausting to the mind, in explaining particular rules and minute distinctions, with the most pitiable barrenness in the detail of principles, and no tracing out of principles, however prolific in their nature, beyond copying the barren rubricks of particular cases.
We may refer also, with some feelings of national pride, for the confirmation of these observations to the excellent commentaries on the law of bailments by Mr. Justice Story, a work which, with those the learned public are impatiently expecting from the saine source, is destined to form, we believe, a memorable epoch in American jurisprudence. The lawyer, who has confined his reading wholly to the text books of the common law, must be struck, on reading these commentaries, with something like astonishment at the barrenness of the law of England on one of the most trite and beaten titles of the law, compared with the fulness and riches of that of Rome. The object of the learned prelector was to give a complete treatise, which should contain a full illustration of that title of the law. Strike from the work all that is derived directly from the civil jaw, and from the great luminaries who have drawn their riches from that copious fountain of written reason, and how bald and meagre will that appear, which remains, compared with the fulness and copiousness of the treatise as it now stands. We have had the curiosity to run over the references at the bottom of the page under the title of Mandates to see in what proportion the contents of this treatise are divided between the civil and common law. We find that exclusive of the references to the short compendium of Sir William Jones, the most of which is drawn from the civil law, there are one hundred and forty-one references which include two hundred and seventy-six citations. of these, rinety references and one hundred and seventy citations are from the civil and foreign law, and sixty-one references and one hundred and six citations from the common law. It appears, therefore, that the learned author, after working up all his common law materials, was obliged, for the purpose of rendering his work complete, to borrow more than an equal amount from foreign sources.
Until within a few years the jurisprudence of this country has been little better than a transcript of that of England. Scarcely any other than English books were quoted in our courts of justice, and the decisions of English courts, on all questions, not growing out of our own statute law or local usages, were considered as of paramount authority. An argument drawn from the civil law, or any other jurisprudence than that of England, with whatever apparent equity or force of reason it might be supported, was hardly listened to with patience, if it was not sustained by English decisions or recommended by English authors. But the time is past, we trust, never more to return, when any reluctance will be felt to incorporate into our jurisprudence the enlightened equity of the civil law. Justice, says Chancellor D'Aguesseau, never fully unveiled her mysteries but to the jurisconsults of ancient Rome. That extraordinary people surpassed all other nations of antiquity, as much by the wisdom of their laws as they did by their achievements in arms; and if they established their empire over cotemporary nations by physical force, the empire of their laws has been perpetuated over modern ages solely by the power of superior reason. The prejudices against the civil law in this country have never existed to the extent that they have in England. But deriving, as we do, the body of our law from that country, learning it originally from their text books, and trusting implicitly to their jurisprudence, we could hardly escape from the influence of their prepossessions. Happily half a century of political independence is beginning to liberate us from the colonial vassalage of mind, and we can examine the laws and institutions of other nations and compare them with our own, without having our views perverted by the antisocial prejudices of the English.
But to return to Mr. Park. We willingly admit on his authority the accumulation of points, which have been ruled by the courts, to the number at which he estimates them ;- but we do not admit the impracticability of compressing the substance of these decisions within the limits of a code of reasonable and moderate dimensions. When they are examined it will be found that but a small portion of them embrace leading and general principles. The great mass consists of nothing more than minute distinctions, turning on differences of great subtlety and extreme delicacy; many but technical distinctions where no difference of principle exists, and which ought to be abolished; - many again, which, having been at first hastily and inadvertently made, are reluctantly followed from an unwillingness to overturn former decisions, and a still greater number are but the exposition and application of a comparatively small number of the great and sacramental principles of the law. These minute distinctions, as we have before said, should never be introduced into a written code. They properly belong to jurisprudence and not to legislation. Mr. Preston, in his preface to bis treatise on Merger, states that there are contained in that volume at least three thousand distinct propositions on subjects of every day's occurrence.' No man can be made to believe that the substance of these three thousand propositions may not be condensed into a small number of elementary and comprehensive rules. If they cannot, it must be because they turn on mere arbitrary and technical distinctions, that serve no other purpose but to embarrass and perplex the subject. It is impossible that such a multitude of rules can be necessary for the protection and the secure transmission of the rights of property as they may be affected by the operation of merger. Indeed, when we consider the whole corpus juris as made up of a million and a half of distinct points or propositions, it is manifest that the whole subject must be split and minced up into such a number of minute technical distinctions, of subtle and artificial refinements, turning on evanescent differences, many of them jostling and conflicting with each other, as it is admitted they do, that the most natural inference to be drawn from the fact is that the law is involved in an inextricable labyrinth of consusion. And is not this the case with at least one very important branch of the law of England, viz. the law of real property ? Let us appeal to the learned in that very occult science, that mystery of mysteries, or apocalypse of the law, as it has been called, the law of conveyancing. Quisque est credendus in sua arte. Mr. Park hiinself acknowledges that in the present state of the law a defect will often be discovered in a title, or an oversight in a transaction, after it has passed the previous ordeal of lawyers of unquestioned learning and diligence.' p. 13. And his whole argument shows that this is to be attributed to the excessive multiplication of arbitrary and technical rules. It is stated in the Edinburgh Review, vol. 45, p. 473, that Mr. Preston, one of the most learned real property lawyers in England, declared on a recent occasion to the Court of King's Bench, that after thirty years assiduous study of this intricate and recondite science he was unable to say whether he was master of it or not. And Mr. Park quotes him as saying, in his Essay on Estates, vol. 1. p. 425, that whoever will trouble bimself to trace the decisions of the courts of justice on any general head of the law, with a view to its history, will observe that at different periods and under different judges, and sometimes under the same judges at different periods, the same question, or a like question in similar cases, and sometimes in the same case, has received a different determination. Hence in part arose the difficulty of studying the law. And it is averred that when a title has been submitted to professional men for their opinion, it is not uncommon 10 see two or three opinions in one way and as many directly opposed to them. Edin. Rev., vol. 35, p. 203. Mr. Park mentions an estate, the title to which depended