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vailed everywhere ; property was not secure, and life was of no value. Amid the distractions of the succeeding times, jurisprudence, like every other branch of knowledge, declined, and the organization of Roman government being left to depend on the accidental character of one man, could never be relied on, even to secure the first necessities of civilised life.”
The authority of law, however, subsequently recovered itself, particularly after the introduction of Christianity, and its development as a social principle in Roman life. The account given of the important and interesting discovery of the institutes of Gaius ought not to be passed over. Respecting it, Lord Mackenzie observes :
“For a long time this work was only known to us from an imperfect epitome in the breviarium of Alaric. But in 1816, Niebuhr found in the library of Verona a palimpsest, which contained the epistles of St. Jerome, and beneath the writing he discovered the manuscript of Gaius. His discovery was verified by Savigny, and the care of deciphering the palimpsest was entrusted to Professor Goschein, of Berlin, who was assisted by Becker and Holweg. These institutes of Gaius, which were published under the title of Gaii Institutionum Commentarii IV.,' are of inestimable value in what may be termed the classical study of the Roman law. They have thrown new light on some important branches of law previously involved in much obscurity, and particularly on the forms of judicial procedure, and they are of immense use in explaining and illustrating the institutes of Justinian, which are mainly founded on this long-lost work of Gaius.”
The great era of law reform in Rome was the reign of Justinian, extending from A.D. 527 to 565, being a period of 38 years. Lord Mackenzie quotes Gibbon, who, in his 44th chapter, tells us that “in the space of ten centuries the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase, and no capacity could digest. Books could not easily be found, and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion.” We in England are not in so bad a case as this, for, although by no figure of speech could the term “riches” be applied to our legal literature, we are not certainly without books. We have not hitherto had, however, the guidance of that legal instinct, nor the happy power of applying the necessary remedy, by which the Romans benefited. But an able and philosophic lawyer is at present on the Woolsack, and it would still be no mean advantage to our system if Lord Chancellor Westbury could follow the Emperor Justinian in his amendment of the law. Various commissions, consisting exclusively of juris consults, were appointed, and the ultimate result of their labours was the Digest, or Pandects, which we are told was published on the 16th December, 533, and declared to have the force of law from the 30th of that month. The fullest powers were given to the commission which produced this great work to select only what was useful, to omit what was antiquated or superfluous, to avoid contradictions, and to make such alterations and corrections in the original works as they might think expedient, and the commission was allowed ten years to complete the undertaking-a period certainly not too long when we remember what Gibbon has before told us. But such was the vigorous industry with which they applied themselves to the work, that they completed it in three years! When or where shall we find parliamentary or royal commissions who will so exert themselves ? But this is touching on too delicate and irritating a subject.
Lord Mackenzie combats the popular story respecting the supposed discovery of the Pandects at Amalfi in 1135, justly remarking that the Roman law never at any period was wholly unknown, or had lost its authority ; and that the works of Justinian, and particularly the Pandects, were known and studied in different parts of Europe long before the siege of Amalfi; and he states that Peter of Valence, in a law book published by him in the 11th century, made use of the Institutes, the Pandects, and the Code, and translations of the Novels by Julian.
The learned lord devotes some interesting pages to the subject of the revival of Roman law in Europe, in which he pays a well-merited tribute to Pothier, and, through that fine jurist, to the French School of law of which he was so great an ornament. He laments the short-comings of “Britain ” as a contributor to the study, but makes no exception from this confession for his own country, although the law of Scotland is founded on the Roman jurisprudence, and the Scotch lawyers are generally understood to be more or less acquainted with it,--and an exception which, if made, his own work would go far to favour. But in the comparatively modern historical school of Germany, he finds a fitting subject of eulogy. “ Facts,” says Lord Mackenzie, “ formerly unknown, have been revealed; ancient errors traditionally received have been exploded; and Roman law, as a science, has in many respects assumed a new aspect,” mentioning the well-known names of Hugo, Haubold, Thibaut, Niebuhr, and Savigny, as writers who have given a wonderful impulse to such researches. We cannot allow the name of Savigny to pass without expressing our satisfaction at a proposal which has emanated from the Law Amendment Society, to co-operate with the effort now being made at Berlin, and indeed generally throughout the Continent, to record and perpetuate, by some public testimony, the reputation and memory of that profound lawyer. Perhaps the most fitting way to accomplish this happily conceived project is by the establishment, as is proposed, of a Foundation for encouraging the study of Comparative Jurisprudence.
The following quotation will be sympathised with by all who understand and value the true character and value of our learned profession, and it is a real pleasure to be able to connect such sentiments with the venerated name of Chief Justice Tindal :
“ The Roman law not only possesses a universal scientific value which it can never lose, but preserves also indirectly a practical value in this sense, that it forms the basis of the new civil codes of different states, besides furnishing an inexhaustible store of general principles for the decision of questions constantly occurring
in daily practice, which are not settled by statute, precedent, or usage. In giving judgment in Acton v. Blundell, Chief Justice Tindal observed : ‘The Roman law forms no rule binding in itself on the subject of those 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 conclusion at which we have arrived if it prove 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 of Europe.'”
As introductory to his comparative exposition of the laws of France, England, and Scotland, the learned lord gives us an admirable “ Preliminary Chapter on Jurisprudence and the Principal Divisions of Law,” in which he defines jurisprudence, justice, natural and legal, the relations of positive law and morality, the principal divisions of law, the vexed subject of natural law, positive law, pointing out the imperfections in all legal systems, against which he tells us “ there is no appeal, except to the conscience. And here we are reminded of the three general precepts mentioned by Justinian, to live uprightly, to hurt nobody, and to render to every one his due. These maxims breathe a fine spirit of morality, and are evidently for the common advantage of men in their social relations; yet, with all their excellence, they fall greatly short of the golden rule of the Gospel - All things whatsoever ye would that men should do to you, do ye even so to them.'—Matt. vii. 12."
The learned author does not in so many words state it, but he speaks in such terms of our division into law and equity as to leave no doubt that, in his mind, that double form of administration is a very serious imperfection in our English system. He says: “ The division of the two jurisdictions proceeds on no very intelligible grounds, and leads to many anomalies;” and, while admitting the improvements of recent legislation, by which the two departments are brought nearer each other, he observes : “ But, notwithstanding these improvements, many
evils still attend this double system of judicature, which occasion great expense and delay to litigants, who are frequently obliged to appeal to two tribunals to obtain redress for a single wrong, or to settle one and the same dispute. In Scotland, there is no division in its courts of law and equity, both these jurisdictions being combined and exercised by the same courts, according to the system which is understood to be universal on the Continent of Europe.”
We fear it may be long before a change in our English views in this behalf will take place. Practically regarded, the subject is full of difficulties, and it would require even a more powerful engine than even this work of Lord Mackenzie's to hammer his idea into our stubborn English natures. Some are of opinion that, by judicious legislation having the object in view, a change might gradually come over the habits and opinions of the profession in this country, so that in course of time the fusion of law and equity would work itself out. But this we very much doubt. We are rather of an opinion expressed in a paper read before the Law Amendment Society, about a year ago, by Mr. Robert Stuart, who considered that the change would have to be compulsory, if at all. In that paper Mr. Stuart observes:
“The existing practice at law is too bald and bare for the purposes of equity ; and there is still to be discovered in it a devotion to its darling idea of developing the issue to be tried, whether in law or in fact, in a simple and single form which, in nine cases out of ten, I believe to be incompatible with the purposes of justice. A compulsory change in this respect, therefore, I believe to be necessary, and that if the common law courts are to have given them an equitable jurisdiction, co-ordinate and concurrent with the Court of Chancery, they must be more largely and liberally provided with the necessary expedients than at present. But all this might easily be regulated ; and truly, as I have said, the whole question is one of procedure, particularly of PLEADING. It is there, in the pleading, that the fusion is to be worked out, if it is to be worked out at all ; and I venture to suggest that this Society would be well employed in directing its attention to this, the practical and inevitable cha