law, and have only departed from it so far as particular occasions might require. Every gap not filled up by special legislation, or specially recognized custom, has been supplied from the Roman law, and even modern codes, to a very large extent, only contain the ideas of the corpus juris in a nineteenth century dress. This being so, is it not manifest that a knowledge of the civil law is a desideratum to the complete rounding out of a legal education? Is it not equally manifest that some knowledge of it is a pre-requisite to a thorough acquaintance with international law? For "if international law be not studied historically," writes Sir Henry Maine, "if we fail to comprehend the influences of certain theories of the Roman writers on the mind of Hugo Grotius, we lose all chance of comprehending that body of rules which governs nearly all Europe." And, besides being the key to international law, it has also given birth to the law of war, and is the source of most of the special ideas as to law, politics, diplomacy and society, which, for over a hundred years, have been diffused over the enlightened nations of the old world. The technicalities of Roman law are as really, though not so visibly, mixed up with questions of diplomacy as are the technicalities of special plead ing with points of the English common law. We must conclude, therefore, that ignorance of Roman law dooms us to ignorance of European institutions, based, as they are, on that law.

In the next place the study of this system should be of peculiar interest and furnish manifest advantage to the student of the common law, in that it is largely the scientific basis of that law. The recognition of this fact alone ought to constitute a sufficient plea for its place among legal studies. "He knows not the law who knows not the reason thereof," says Lord Coke. As a knowledge of the classics is admittedly of inestimable value to the man who aims to be a thorough English scholar, as enabling him to trace the etymological derivation of words, and note the changes they have undergone in transition to the mother tongue, so an acquaintance with the principles of the civil law will show the origin of those of the common law, and illustrate and clarify them.

And, first, as to the scientific arrangement of our legal system. Who led the way in this undertaking? Glanvil, Bracton and the unknown author of "Fleta." The opening page of Glanvil is a literal transcript from Justinian's Institutes, and in the margins of Bracton and "Fleta" are found numerous manuscript references to parallel passages in the same Roman work. Indeed, nearly the third of Bracton consists of quotations (unacknowledged quotations) from the corpus juris and from commentators on it. The earliest elementary arrangement

of the Roman law now extant is that of Gaius (A. D. 170), whose fundamental division is into persons, things and actions; and Blackstone himself has made the old division of Gains the basis of his arrangement; for his first book answers to Gaius' first book, his second to Gaius' second and third, and a great portion of his third and fourth to Gaius' fourth.

So is it both interesting and instructive to trace the origin and development of those many branches of our law which have sprung from the civil. The law of obligations (contracts and delicts), of the theory of possession, of the natural modes of acquisition of property by occupancy, accession, specification, is taken entirely from the civil law of Rome. In the development of commercial law in its various departments the common law owes likewise a great debt to the civil. The early English law was almost exclusively a law of real estate. Tenures of land, the modes of creating and transferring them these are the great subjects of the early English law, while other species of property receive scarcely any attention. Hence, as personal property rose into greater relative importance as trade became more developed, and business relations more complicated, cases were continually arising for which the English law had no rule or principle, but in the civil law the English judges found ready to their hand a rich store of such principles carefully worked out and copiously illustrated. These they quietly absorbed, adopted in their decisions, and incorporated into the English law. And that grand palladium of our civil rights, trial by jury, though not indeed directly handed down from the Romans, still the early Roman law furnishes a proceeding strikingly analogous to the modern jury system, in that the power and duty of the "judices" was confined, as that of our jurors has always been, to questions of fact alone. And it may, perhaps, be thought remarkable that the challenge of jurors should find a type in the Roman law. Yet such, Sir Henry Maine says, was the effect of a plebiscitum which Cicero terms "lex æqua." So, too, the compulsory unanimity of our juries, which has been deemed so singular a feature of their practice, finds an analogy in the Roman law.* A careful research would also disclose the fact that all those maxims of the common law which are not restricted to feudal institutions originated in the sound sense of the old Roman jurists, who united with a penetrating intellect a Spartan brevity of expression. And from the same sources have flowed many common-law writs, notably the writ de ventre inspiciendo, which, though rare, is still in use.

Through the ecclesiastical courts, also, the doctrines of the civil law filtered into and permeated *Julian, D. 40, 12, 30.

points of the philosophy of law, nor too lax or elastic for their lucid and accurate discussion."

In the next place, as an efficient aid to the study of comparative jurisprudence, some familiarity with the civil law is an absolute necessity. There are but two grand systems of law in the world, and manifestly a study of both will lead to a more intimate acquaintance with either. And while the common law is our law, and its rules will be often better suited to us than the corresponding rules of the Roman, yet the real reason and raison d'être of these will be much better understood by the com parison. We shall then no longer consider them as logical necessities and accept them as existing facts, but we shall have adopted them as our delibeFate choice. Noting the imperfections of one, or the excellencies of another, we shall form an idea of the ultimate perfection which all law is destined to reach in the march of enlightened progress. The civil law never drew the puzzling distinction between real and personal property which encumber the legal system of ownership under the common law, which causes different species of property to descend in varying lines and to different persons which oblige the heir in a will suit of his ancestor to litigate in different courts, attended at times with opposite success and discordant decisions. The civil law knew no feudal fictions which ham per alienations of English estates, and encumber conveyances already intricate. The Roman, unlike the English law of primogeniture, paid no reverence to the first born, and preference of the male to the female line, though common to the laws of many civilized countries, was singularly absent in the Roman code. The Roman law allowed an inheritance to ascend, rejecting the feudal principle that estates must never ascend. And, under it also, even incorporeal things, such as debts and actions, might have been the subject matter of a mortgage. While, according to English law, the rule, subject to some exceptions, is that choses in action are non-transferable. On the other hand, there are many points in which our law is vastly superior to that of the Romans. We cannot fail to admire the free spirit of the common law as contrasted with the despotic tendencies of the civil; for that law which defines the form and power of the government must necessarily be despotic if the government is a despotism. The English law claims as its crowning glory that its rules exclude the exercise of arbitrary power. A man may be punished for a breach of the law, but he can be punished for nothing else. Not only so, but equally, if not more important, is the principle that this breach of the law must be established as to all classes, and all persons, official and unofficial, in the ordinary courts of justice. Arbitrary power and special ad

ministrative tribunals, such as we find in France and other countries following the civil law, and administering what the French call droit administratif, do not exist. In England the same law applies to all persons, and it is administered for and against all persons in the great law courts, so also direct personal responsibility for torts exists without limit or exception. No command of an official, not even of the Crown, can be pleaded in bar to any wrongful act. These great and glorious characteristics — these fundamental and immortal principles of the English law have been inherited or adopted in all their amplitude in this country. And in these vital and essential respects the law of England and America is far superior to the Roman law, either as it anciently existed or as it exists to-day in the States of modern continental Europe. Yet a study of that ancient law will but foster a veneration and create an enthusiasm in the lawyer for his own law as he learns to regard the latter as pre-eminently that of a free people. But to the American student peculiarly does that study commend itself, for it has been the spirit of the founders of this republic to absorb the wisdom and reject the follies of every system and people. And, although during many years after the severance of the United States from the mother country, the new States, successively formed out of the unoccupied territory of the Federation, did, all of them, assume as a standard of decision for the courts in cases not provided for by legislation, either the common law of England or the common law as transformed by early New England statutes into something closely resembling the custom of London. But this adherence to a single model ceased about 1825. The State of Louisiana for a considerable period after it had passed under the dominion of the United States, observed a set of civil rules strangely compounded of English code-law, French code-law and Spanish usages. The consolidation of this mass of incongruous jurisprudence was confided to Mr. Livingston, the first legal genius of modern times. Almost unassisted he produced the code of Louisiana. "Of all republications of Roman law, the one," says Sir Henry Maine, to whom I have so repeatedly referred in this essay, "which appears to us the fullest, the clearest, the most philosophical, and the one best adapted to the exigencies of modern society." And some have seen, as a reason inducing President Cleveland to call Mr. Justice White to sit among the "ermined sages of the Supreme bench," the latter's familiarity with this code. "Certain it is," continues Mr. Maine, "that it is this code, and not the common law, which the newest American States are taking as the substratum of their laws. The diffusion of the code of Louisiana,”

punishments were branding, beating, chaining up, and burning through the gristle of the ear. In Henry VIII.'s time, for merely striking so as to draw blood, the penalty was the loss of the right hand. The cocking-stool, the brank, and the scold's bridle were in general use for scolds. Vagabonds were "grievously whipped" for their first offence, and were liable to death for the second.

But of all public punishments the pillory was certainly one of the very cruclest. Here the populace was called in to aid the vengeance of the law; and terrible in many instances were the sufferings inflicted on an unpopular offender. In 1756, a man named Egan, pilloried for conspiracy, was literally stoned to death. The pillory had an extraordinary vitality. Various offenders suffered in it as late as the year 1816, and it was applicable to perjurers and suborners of perjury in the year in which Queen

Victoria came to the throne. Mr. Gladstone might easily have seen this punishment inflicted. More horrible than the pillory, however, was the

practice of burning women in public, which at one time was not of very rare occurrence, and which was not entirely disused until within sixteen years of the present century. The punishment of hanging, as in ordinary cases of murder, was not substituted by statute for that of burning until the thirtieth year of the reign of George III.

Late in the eighteenth century the peine forte et dure was still in use for prisoners who refused to plead, and who might be and were pressed to death precisely as in the middle ages. Branding in the cheek was not discontinued until the reign of George III. Long, indeed, were the framers of the law and its administrators in discerning that crime. of whatever kind, is not to be repressed, nor the morals of a nation improved, by barbarous examples in punishment.

So dark was the state of the country at the time of the Revolution that it might have seemed as if no previous state could have been darker; in William III.'s day many of the penal enactments would have disgraced a tribe of savages; and during a considerable portion of the century in which we live the criminal law was, in many respects, quite as much open to reproach as it had been when William the Conqueror ascended the throne. The spirit of the "hideous old medieval law" survived the dawn of this century, and our posterity may say that it was not quite extinct at the end of it.

tarian idea. The abolition of horrid public punishments, not greatly efficacious in checking crime, and most demoralizing in their effects upon those who witnessed them, was an unspeakable gain to humanity. With the abolition of public burnings, public floggings, and the pillory, an ancient principle perished, an ancient and detestable school was closed. "The change in the character of later crimes, there can be little doubt," says a historian, "has been caused, in no slight degree, by the disappearance of spectacles which, if by any chance they acted on anyone as deterrents, converted whole crowds into rioters and discouraged the sentiment of pity." Public punishments savage in their nature neither more nor less than examples of "a ferocity

are

which, in one form or another, will be followed in

private life;" and as punishments began to lose their cruel character, and to be more and more withdrawn from the public gaze, the national life took on a wholesomer tone, sentiments of kindness and

pity were gradually evolved, a love of social order arose, and crimes of exceeding violence became rarer and more rare.

But the old Adam in the English law died hard. Long after the pillory had vanished hanging continued to be a public show; and, as such, it was unquestionably the most degrading influence which this century has known. The saturnalia in front of Newgate on the morning of a hanging Monday (continuation of the revels of the night preceding)

are fresh in the memories of elder citizens. Town

send, the Bow street runner, saw forty men hanged in a batch, on two several occasions. Capital punishment remained for generations the greatest curiosity of the criminal law of England. It was not until the year 1773, for example, that Parliashould be abolished for the crime of sheep stealing; ment began seriously to consider whether or no it and at the time when Howard began his investigations there was not in Britain so much consideration for prisoners, in respect of their liability to a shameful public death, as there had been during the reign of the Emperor Constantine, 1400 years before.

One statement must be made (in parenthesis) which at this day has the air of paradox. It is. that the extension of the list of felonies in the