ORIGINAL MISCELLANY. ON THE STUDY OF THE CIVIL LAW. The civil law is frequently stigmatized, in the books which now form the basis of our legal education, as being in the highest degree unjust and arbitrary ; yet it is not easy to believe that a code can be otherwise than excellent, which has appropriated to itself an epithet originally common to every system of municipal jurisprudence; which is esteemed the perfection of written reason by so many enlightened nations, and which is the fountain of all the most admirable legal doctrines and maxims that pervade the continent of Europe. Republics in abundance, and those of the most jealous spirit of freedom, have made it their model and their text-book : how, then, can its principles be so completely and dangerously despotical? The compilation of the civil law was made near the close, of that long period of brilliant mental illumination, which has immortalized Greece and Rome. We We may, therefore, consider it the spirit of all that is most perfect in the jurisprudence of antiquity : since it is a selection from the voluminous opinions, decisions, and decrees of the most eminent lawyers, magistrates, and legislators of that and preceding ages, arranged in a systematic form, and published with imperial magnificence. Comprizing then the collected legal wisdom of antiquity, written with classical elegance of language, and constituting the foundation of all the codes of modern timesmay not the civil law reasonably pretend to some value in our esteem, and a proportionate place in our system of preparatory legal education ? The civil law constitutes, as has been before remarked, the basis of the codes of almost every people in Europe. But the laws and jurists of those people have other claims on our consideration, apart from the light which they throw on the principles and character of their parental jurisprudence. Men of the greatest talents, learning, and ingenuity, who have made the science of law the study of their lives, must be capable of affording us some valuable instruction, if not on subjects directly applicable to the wants of this nation, yet on many others of indirect utility. The laws of all countries being derived from the same source,-the situation and circumstances of men,—there cannot but be considerable correspondence in them, which should render them all mutually beneficial to jurists of different countries, and therefore worthy to be carefully examined. Besides, it is by comparison of our rules and practice with those of foreigners, that we become fully sensible of what is defective or excellent, and therefore of what is to be cherished and upheld, or to be disapproved and abolished in our institutions. Nothing more inevitably checks improvement than a jealous or contemptuous rejection of foreign, and an over weening admiration of domestic habits, customs, and principles. National attachment should never cease to be cultivated; but we ought to be as far from despising, as from servilely imiitating, the peculiarities of other countries. These are general and antecedent titles to regard in the civil and continental law ; but there seem to be several particular advantages in the study of this law, of much greater weight, because immediately growing out of our national character, situation, and circumstances. For as the common law, in strictness of language, arose from the feudal system, and therefore chiefly concerns the several relations of landed estate, it is necessarily defective in many things now of the highest importance. Not that the common law does not contain rules relative to some of the particulars presently to be mentioned; but they are rules which it has adopted and imitated from the civil and continental codes, where alone we can find those rules in their proper and original fulness. First, the civil law comprehends many things relative to personal rights, which are of special usefulness in this nation. The distinction between alien and citizen, and the rights and disabilities springing out of that distinction ; the powers, duties, and disabilities of guardianship, infancy, mental alienation and marriage; the nature and qualities of corporate bodies or colleges ;-are indeed continually discussed in common-law books, but it is to the civil law that the maxims, rules, and principles, regulating them in fact belong. The feudal relation of vassal and lord is the source of the principal doctrines of the common law concerning personal rights; and as this source was incapable of furnishing all the rules required by the subsequent progress of civilization, the common law was obliged to resort to the continent for the supply of its own radical and essential deficiencies. We must borrow too from the civil law the rules on another subject in this class, with which this part of the nation has no connexion, but which in another part of it is of but too great importance, to wit, involuntary servitude. Secondly, although our laws of property are essentially of feudal origin, yet in some very considerable sections of them we are expressly referred to the civil law for guidance. These are the laws relative to the descent and distribution of the lands and chattels of persons deceased intestate, on administration, on the probate of wills, and on other matters of a testamentary nature. As to most of these subjects the common law is obstinately silent; as to the rest so palpably ridiculous and unjust, that our ancestors repealed it among the first acts after their emigration. As the colonial charters generally granted lands in this country by the tenure of gavelkind, the colonists instantly took advantage of this to introduce certain other peculiarities of that customary 'tenure, and especially gavelling : and such was the origin of our present mode of distribution. This system is altogether republican ; and therefore, although prevailing in England before the conquest and still existing in a few little spots, it is really foreign to the true laws of England, but is one among the many free principles of the misrepresented code of Rome. Our probate and testamentary laws are confessedly no part of the common law, wherein the very right of devising is an exotic, and an innovation on the privileges of feudal superiors. Thirdly, the law of chancery is a subject that is constantly growing more interesting in this country, as most of the states have now admitted some equity powers into their judicial system, although it is hoped that equity will never be with us precisely what it is in England. And since the maxNew Series, No. 4. 52 ims of equity either derogate from the common law, or at least introduce into it novel principles, the common law can aid us but imperfectly in this department. Now the chief rules and methods of proceeding here are in fact close imitations of the civil law ; for the chancellors, having been originally churchmen, entertained little respect for what they considered the rude customs of barbarians, and the lay chancellors in later times found it necessary for want of any inore eligible resource, to give perpetuity to the system which their predecessors had introduced. Therefore it is apparent that we must study the civil law in order to be capable of proceeding with any credit in chancery causes. Fourthly, the civil and continental law is the repository of all the principles by which national intercourse is at present regulated. For as Rome was so long the metropolis, not merely of a single country, but of the whole civilized world, nations were impleaded in her august courts, as men are in our puny tribunals; and thus her code came to contain a system of international, as well as municipal jurisprudence." The riglits of ambassadors, public comity, the maxims regulating the declaration, conduct, and duration of war, the structure and interpretation of treaties, the principles of con. federate union, every thing which is included in the term national law, is therefore an important and copious part of the code of Rome. All the modern writers on this extensive subject are to be considered little else than civilians, or expositors of that system, from which almost all our notions of natural justice are immediately deduced. Whoever is ambitious of the character and rank of a statesman must therefore unavoidably become a civilian ; and even they, who do not look so far, nor aspire so high, cannot easily dispense with a knowledge of the laws of nature, of nations, and of the world. But a remarkable circumstance in our political situation renders this knowledge still more valuable. This republic is composed of numerous federate republics. It is not merely divisible into provinces, but likewise into states. Multiplied relations arise from this circumstance, of which the common law never conceived, and for which it of course contains no provision. We have therefore constant occasion for applying the rules of the civil law concerning international intercourse. Lastly, the civil and continental law is the origin of all that law, mercantile and maritime, which now regulates our most important affairs, as a commercial people. The feudal law did not know commerce, it opposed all alienations, the very essence of commerce ; it regarded nothing but war. Therefore, when England began to seek maritime rank, and to encourage commerce, she was compelled to borrow laws on this subject from those states, which were previously concerned in navigation. Now these states, which were chiefly a few petty communities, had each their distinct maritime laws or customs; and out of these, together with the civil law, have our existing maritime regulations sprung. Such were the consulate of the sea, the roll of Oleron, the or. dinances of Wisbuy, and of the Hanseatic league, the standard of the sea, and the marine ordinances of France ; which, agreeing in many particulars, in some disagreeing, and collected in various forms, are still referred to as of great authority, if not as decisive and paramount. But here the common law entirely deserts the student. Marine affairs were entirely foreign to it, until within a very recent period; and, although one of her kings published an ancient code of marine ordinances, which continues to be cited, admiralty law was for a long time spoken of with opprobium, and considered no part of the substance of the proper laws of Eng. land. The remaining part of our mercantile law has been generated in a manner somewhat similar, though distinguishable. Some of it could not avoid creeping into the common law, in spite of the total difference of their nature and origin; but as the common law was feudal in its princi. ples, English merchants were in the habit of regulating their concerns by mutual agreement or by established customs, which a number of the most respectable among them applied to disputed cases. We must therefore look elsewhere for guidance in the law, mercantile as well as maritime; and the civil law supplies a very large portion of the requisite principles; for it is remarkably copious on the subject of contracts, covenants, and cbligations, which are the topics most frequently discussed in the commercial world. And although in marine law it is not so full, yet there it contains many valuable rules copied from the customs of some of the mari. time republics of antiquity. |