Sivut kuvina
PDF
ePub

oric, he describes others as studying law thus (lines 1435-1437)

His dans Grammaticæ rationis gnaviter artes
Illis Rhetoricæ infundens refluamina linguæ
Illos juridica curavit cote polire.

But it does not seem to have been noticed that the whole passage is a mere imitation of one in the poem of Venantius Fortunatus on St. Martin —

Parvula grammaticæ lambens refluamina gutta
Rhetoricæ exiguum prælibans gurgitis haustum
Cote ex juridica cui vix rubigo recessit.

It would be almost an anachronism to apply the term of plagiary to the most servile imitator of that age, but the lack of originality shows how little dependence is to be put upon the later statement. There were neither students interested in the pursuit of Roman law, nor schools competent to give anything which can justly be termed legal instruction. But even after the conquest, when law did begin to be studied in England, it would have been impossible for any university to give instruction on the common law. The only mode of university instruction known to that age in law was that of verbal exposition of a text, word by word and line by line, as the Lombard law was taught at Pavia, and the Roman at Bologna. The English law had no texts to be studied in this way. The scholars of Oxford who listened to Vacarius and wrote glosses on his book, would unquestionably have seized upon a similar compend of English law with avidity, but the customary law was useless to them. It was not until four centuries later, when the great jurists of whom Cujas is the most illustrious, struck out a new path in legal science, that it became possible to study institutions and customs in any manner that a university could admit or help.

School instruction in law, in the thirteenth century or in the nineteenth; in a mediæval university or in a modern law school, implies processes altogether different from the learning of a trade by an apprentice, or of

law by a clerk under the guidance of a practitioner. It may usefully borrow methods from these forms of instruction, but it cannot rely upon them entirely. The law, or any other science, must be reduced to a form adapted to school instruction before it can be studied in schools. The simplest and easiest form of this kind is a written text, which the student is expected to accept as a final and authoritative statement of the law he studies. If there is no such text, the unwritten law must be stated in the form to which any other kind of human knowledge is reduced for the same purpose, that is in general terms and propositions composed of these general terms, so that the student may know how to apply to the subject the same rules that govern every other process of human thought. This requires a very different statement of the law from any that will be found in the practitioners' books or even the statutes. "Non eadem profecto est leges ferentium, easdemque docentium ratio. Horum est, dare operam ut omnia ordine quam possunt pulcherrimo, verbisque puris ac propriis proponant." Heineccius Praefatio ad Elementa Juris Germ. pp. 18, 19, Op.Om., Tom. 6, ed. Genevæ, 1748.

One has only to study the year books carefully to see how impossible it would have been to teach the law so administered by the ordinary processes of university education. When a new question arose in the exchequer chamber where judges, serjeants, and apprentices of the law were assembled, the answer proposed by either party was tested by a tentative process of comparison with other cases, until a rule was found, or rather a decision implying such a rule, that not only did justice in the case at hand, but was consistent with every other case that the ingenuity of any participant could suggest. The rule itself was not formulatedthis formed the specific mark of the method- but it was determined by the consequences that might be

drawn from it, consistently with the applied consequence in this particular case.

(3) Revival of Roman law in the twelfth century, page 18. "There had been an absurd tradition among English lawyers and historians from the time of Blackstone to the effect that the Roman law had perished, and that it was suddenly brought to light by the discovery of a copy of the Pandects at Amalfi in the middle of the twelfth century." (Finlason, in notes to Reeve's History of English Law, I. 73.) In another note (I. 105) he speaks again of "the absurd idea borrowed from Blackstone that the study of the Roman law all of a sudden began on the occasion of the discovery of a particular book; as if the book would have any interest, if the subject had not already been studied and appreciated." This last remark is just. We know now that the revived study of the Roman law at that period grew out of the felt necessity of a more extensive and refined system of jurisprudence than had sufficed for the socalled dark ages. Merkel and others had shown, before Mr. Finlason wrote, that the Roman law was not even the first object of study after this need began to be felt; but that the Lombard law had been made the subject of glosses and lectures and university instruction before Irnerius first taught at Bologna. That this story of Amalfi Pandects is the peculiar property of "English lawyers and historians" is an absurdity only equalled by dating it "from the time of Blackstone"; the fact being that Blackstone and his contemporary Robertson may probably be regarded as the last authors of any note who gave credence to the "absurd tradition" (see Robertson's Charles V., vol. 1, p. 72), which had already been effectually exploded on the continent, after enjoying acceptance there since the fourteenth century. For its origin and refutation, see Heinecc. Hist. Jur. lib. 1, cap. 6., 414, and still more fully

Savigny Gesch. d. R. R. im Mittelalter, vol. 3, 22 35-38 of cap. 18; J. Merkel, Gesch. d. Langobardenrechts, Berlin, 1850.

The treatise of an English civilian, Arthur Duck, de usu et authoritate Juris Civilis Romanorum dominiis Principum Christianorum, though written in the early part of the seventeenth century, is still held in high respect throughout Europe. Although later investigations by foreign scholars have added much to our knowledge of the details of that remarkable revival of ancient jurisprudence by which Rome conquered the world a second time, yet this book may still be read with much profit by those who would study law as a science. Perhaps the most important lesson to be learned from it now by a student of English law, is that the continental nations were by no means so ready to adopt the Roman law "as being the best written system then extant as the basis of their several constitutions" as Blackstone thinks; and that some of the nations which did adopt it most completely, such as Spain and Germany, for a long time resisted that adoption with far more vigor and bitterness than was shown in England. Indeed, when we consider the distance of England from those parts of Europe where that law had maintained a languishing existence during the dark ages, and where its revived study began, we must be surprised to find how quickly and eagerly that study was welcomed in the island, and what a leading position England took for.a long while in it. The famous declaration of Merton, and that of the Parliament of Richard II., were mild and insignificant acts of opposition compared with many on the continent. The entire attitude of England in this controversy was misunderstood and misstated in Blackstone's time by the same party and superficial spirit that of late years has sometimes shown a tendency to go as far in the other direction.

Upon the relation of the English to the civil law, no

one seems to me to have spoken with more judgment than Biener, whose education as a civilian would certainly not lead him to underrate the importance of that relation, while his thorough study of early English law, and its most important institution, the jury, gives great weight to his opinion.

From his essay on "The English Law and its Codification," forming the fourth Appendix to his word on the English Jury (vol. 2, pp. 263-281), I quote the following passage: "In my opinion that view of the position of the Roman law with respect to the English which makes the former a part of the common law is exaggerated. Glanville and Bracton have indeed romanized: Bracton sometimes has carried his borrowings from Roman law too far, in taking matter which is not consistent with the English law, as for instance, his treatment of stipulations (fol. 99 b), when English law allowed no action on a mere verbal obligation. (See Biener, vol. 1, p. 168, ? 23.) But it is susceptible of proof, that since the beginning of the fourteenth century, the English law has successfully resisted the intrusion of the Roman. It is true that some small specific remains of the romanizing time are still found in the English law-such as the division of actions into real and personal. English law, moreover, contains certain peculiar forms and rules which find a parallel in the Roman law. But I do not regard it as possible to prove that these analogies are traditional remnants of the Roman law in the history of that of England; and I must decidedly protest against such attempts as have actually been made to trace even the feudal law and the trade-guilds to the Roman law. On the other hand, much respect is due to the efforts of Blackstone and later English jurists to point out the analogies and contradictions of the two systems, and to give the civil law that place of honor as "written rea" which it occupies all over the continent. The

son

« EdellinenJatka »