A TREATISE ON THE PRINCIPLES OF
PLEADING IN CIVIL ACTIONS:
COMPRISING A SUMMARY VIEW OF THE
WHOLE PROCEEDINGS IN A SUIT AT LAW.
BY HENRY JOHN STEPHEN,
SERGEANT AT LAW.
BY SAMUEL TYLER, LL. D.,
PROFESSOR IN THE LAW DEPARTMENT
OF COLUMBIAN COLLEGE,
WASHINGTON, D. C., AND AUTHOR OF THE MARYLAND
SIMPLIFIED PLEADING, ETC., ETC.
Copyright, 1898, by WALTER C. MORRISON.
TO THE ALUMNI OF
THE LAW DEPARTMENT OF COLUMBIAN COLLEGE,
THIS EDITION OF A WORK, THE STUDY OF WHICH IS SO WELL FITTED TO SHARPEN AND INVIGORATE THE MIND OF THE LAWYER AND IMPART TO IT A PRACTICAL FACILITY, IS, WITH THE BEST WISHES FOR THEIR PROFESSIONAL SUCCESS,
BY SAMUEL TYLER, LL. D.,
INTRODUCTION OF THE CIVIL LAW
AND THE COMMON LAW.
There have grown up in the history of nations only two great systems of law, the civil law of ancient Rome, and the common law of England.
All the most civilized nations in the world are governed by either of these two great schemes of justice. Though the civil law and the common law have much in common, yet in many important particulars they are the opposites of each other. In the course of his studies, the student of law finds so much said, in an incidental way, about the civil law, that is calculated to mislead his judgment in regard to the true character of that scheme of justice, that it is important, at the outset of his walks over the fields of the common law, to give him some account of the civil law, and point out in what it differs essentially from the common law. This is a matter of much importance to every student who aspires to a comprehensive and enlightened knowledge of jurisprudence.
…in the changing business of a progressive society like that of Rome, the edictal law was the purest sort of legislation, springing from the spontaneous acts and opinions of the people. Society, in the modes of its working, declared the rules of its actions; and the pretors gave them judicial sanction, and thereby made them law.
….as the subsequent pretor was not bound by the decisions of his predecessors, but could exercise his judgment untrammeled by precedent.
……Thus a perfect system of despotism, disguised under forms of law, was built up on the ruins of the republic
Therefore it was that the jurists invented the fiction of the lex regia, by which it was pretended that all the authority of the Roman people was irrevocably granted to the emperor. And, to complete their theory of absolutism, the jurists introduced into their writings, as a constitutional principle, the dogma. Whatever pleases the prince has the force of law.
……but there should be as little doubt that the mode of procedure was changed from one suited to the liberty of the citizen to one suited to arbitrary power, by its enlarging the discretion of judges.
If we now turn to the common law of England, we will find that, as far as administrative principles and forms of procedure are concerned, it is the opposite of the Roman civil law as it was molded under the empire.
The principle which, in the practical administration of the two systems, marks the primary essential distinction between them, is the relative obligatory force under them of precedent or former decisions.
Under the common law, former decisions control the court unconditionally. It is deemed by the common law indispensable that there should be a fixed rule of decision, in order that rights and property may be stable and certain, and not involved in perpetual doubts and controversies. Under the civil law the principle is different. Former decisions have not so fixed and certain an operation, but are considered as only governing the particular case, without establishing as a settled rule the principle involved in it. When a similar case occurs, the judge may decide it according to his personal views of the law, or according to the opinion of some eminent jurist. The civil law, as administered at the present time on the continent of Europe, possesses all the uncertainty and fluctuations of doctrine that results from the little respect paid by it to precedent.
It is this stability of law, ruling over the prerogative of the crown and administering equal justice to the high and the low through so many centuries, that vindicates the "frame and ordinary course of the common law" to the consideration of the present times. It is this primary difference in the principles of practice, under the two systems of law, which gives to the common law its great superiority over the civil law, as a practical jurisprudence regulating the affairs of society.
In all the various revolutions, with their dark and dreary scenes of violence and bloodshed, through which England has passed, the people have clung to their ancient laws with a devotion almost superstitious. When our forefathers established governments in America they laid their foundations on the common law. And when difficulties grew up between them and the mother country, they acted as their English ancestors had always acted in their political troubles - interposed the common law as the shield against arbitrary power. When the United Colonies met in Congress, in 1774, they claimed the common law of England as a branch of those "indubitable rights and liberties to which the respective colonies are entitled."
And the common law, like a silent providence is still the preserver of our liberties.