Images de page

rejected these laws, even with a degree of illhumour ;* and the usurper Stephen, whose interest it was to conciliate their affections, went so far as to prohibit the study of them.

As the general disposition of things brought about a sufficient degree of intercourse between the nobility or gentry, and the people, the aversion to the Roman laws gradually spread itself far and wide ; and those laws to which their wisdom in many cases, and particularly their extensiveness, ought naturally to have procured admittance when the English laws themselves were yet but in their infancy, experienced the most steady opposition from the Jawyers ; and as those persons who sought to introduce them, frequently renewed their attempts, there at length arose a kind of general combination among the laity, to confine them to universities and monasteries. +

* The nobility, under the reign of Richard II., declared in the French language of those times, “ Purce que le “roialme d'Engleterre n'étoit devant ces heures, ne à “ l'entent du roy notre seignior, et seigniors du parle“ ment, unques ne sera, rulé ne governé par la loy civil;" viz. Inasmuch as the kingdom of England was not before this time, nor, according to the intent of the king our lord, and lords of parliament, ever shall be ruled or governed by the civil law.–Parl. Westmonast. Feb. 3, 1379.

+ It might perhaps be shown, if it belonged to the This opposition was carried so far, that Fortescue, chief justice of the King's Bench, and afterwards chancellor, under Henry VI., wrote a book entitled De Laudibus Legum Angliæ, in which he proposes to demonstrate the superiority of the English laws over the civil; and that nothing might be wanting in his arguments on that subject, he gives them the advantage of superior antiquity, and traces their origin to a period much anterior to the foundation of Rome.

This spirit has been preserved even to much more modern times; and when we peruse the many paragraphs which judge Hale has written in his history of the common law, to prove that, in the few cases in which the civil law is admitted in England, it can have no power by virtue of any deference due to the orders of Justinian (a truth which certainly had no need of proof), we plainly see that this chief justice, who was also a very great lawyer, had, in this respect, retained somewhat of the heat of party.

subject, that the liberty of thinking in religious matters, which has at all times remarkably prevailed in England, is derived from nearly the same causes as its political liberty: both perhaps are owing to this, that the same men, whose interest it is in other countries that the people should be influenced by prejudices of a political or religious kind, have been in England forced to conform and unite with them. I shall here take occasion to observe, in answer to the reproach made to the English, by president Henault, in his much esteemed Chronological History of France, that the frequent changes of religion which have taken place in England, do not argue any servile disposition in the people; they only prove the equilibrium between the then existing sects: there was none but what might become the prevailing one, whenever the sovereign thought proper to declare for it; and it was not England, as people may think at first sight-it was only its government which changed its religion,

Even at present the English lawyers attribute the liberty they enjoy, and of which other nations are deprived, to their having rejected, while those nations have admitted, the Roman law; which is mistaking the effect for the

It is not because the English have rejected the Roman laws that they are free; but it is because they were free (or at least because there existed, among them, causes which were, in process of time, to make them so), that they have been able to reject the Roman laws. But even though they had admitted those laws, these same circumstances, that have enabled them to reject the whole, would have likewise enabled them to reject those parts which might not have suited them; and they would have seen, that it is very possible to receive the decisions of the civil law



on the subject of the servitutes urbane et rusticæ, without adopting its principles with respect to the power of the emperors.*

Of this the republic of Holland, where the civil law is adopted, would afford a proof, if there were not the still more striking one of the emperor of Germany, who, though, in the opinion of his people, he is the successor to the very

throne of the Cæsars, has not, by a great deal, so much power as a king of England ; and the reading of the several treaties which deprive him of the power of nominating the principal officers of the empire, sufficiently shows that a spirit of unlimited submission to monarchical power is no necessary consequence of the admission of the Roman civil law.

The laws therefore that have taken place in England are what they call the unwritten law (also termed the common law), and the statute law.

The unwritten law is thus called, not because it is only transmitted by tradition from generation to generation, but because it is not founded on any known act of the legislature. It receives its force from im

• What particularly frightens the English lawyers, is L. i. Lib. I. Tit. 4. Dig.- Quod principi placuerit legis habet vigorem.

memorial custom, and, for the most part, derives its origin from acts of parliament enacted in the times which immediately followed the Conquest (particularly those anterior to the time of Richard the First), the originals of which are lost.

The principal objects settled by the common law, are the rules of descent, the different methods of acquiring property, the various forms required for rendering contracts valid; in all which points it differs more or less, from the civil law. Thus, by the common law, lands descend to the eldest son, to the exclusion of all his brothers and sisters; whereas, by the civil law, they are equally divided among the children; by the common law property is transferred by writing ; but, by the civil law, tradition (or actual delivery) is moreover requisite, &c.

The source from which the decisions of the common law are drawn, is what is called præteritorum memoria eventorum, and is found in the collection of judgments that have been passed from time immemorial, and which, as well as the proceedings relative to them, are carefully preserved under the title of Records. In order that the principles established by such a series of judgments may be known, extracts from

« PrécédentContinuer »