French Law and the French Judicial System. A study of the civil law and a practical familiarity with its working 'brings a com mon-law lawyer,—who has not blindly pre judged the matter, and is in consequence not open to conversion,—-finally around to the notion that it was very unfortunate for us in this country that in breaking with England we did not break away from her law, as we did from her monetary system, her social order and her State Church. Our money, our manner of life, our art and our architec ture were developed substantially on French lines, and molded after French models. Our law and our weights and measures might well have followed the same course. At the time of our Revolution it would have been entirely possible for our lawyers to have worked out a reform in our jurisprudence along the lines of codification, somewhat as the French did after 1789. True, they were then an old country and had a sub stratum of Roman law, but on the other hand we were a new country and had no law at all, and could fish in all waters. In those days, even more than now, 'it was the fashion to worship the common law. Men then in studying law were wont to drop on to their knees and roll their eyes in unctuous reverence for a system of law that was no system at all. That was and is the sheerest fetishism. Then Blackstone was bepraising the common law as "the perfection of rea son," and all that, when the English statute books contained laws making more than two hundred different offences, including poach ing and the stealing of a shilling or upwards from the person, punishable with death. That was common law with a vengeance, but when Blackstone sang everybody joined in the chorus, and all were blindly sure that the English common law was the last word in jurisprudence. -This we too did, and this system we voluntarily adopted at a time when it exceeded in barbarity and ferocity the code of any other . soi-disant civilized community on the earth.
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Twice in the history of the English people the Roman law was brought to their doors, and twice with a strange fatuity they rejected it. Caesar imposed it upon Britain 51 B. C., and for four hundred years—longer than the common law has obtained with us—it was the law of the island. But when the Ro mans departed their law disappeared with them. Again at the time of the French con quest in the eleventh century, the Normans took over with them their law as well as their language. The language remained, but again the law, 'as a corpus juris, failed to take root; and, except for its indirect influence on the barbarous laws of the country, it re mained for Mansfield and Holt, and the Chancellors,—when advancing civilization in England made it imperative—to import it for a third time, bit by bit and piecemeal, and so to patch out the deficiency of their outworn system of tribal law, which, however indus triously tinkered up and revamped, still re mains, as compared to the civil law, a thing of shreds and patches. So that, in the end, having adopted it for ourselves, we find it our own, and now beyond much possibility of any radical reform. Our legal develop ment has been the reverse of that of France and the rest of the world. We have pro ceeded in law making in somewhat Cuvier's fashion in comparative anatomy, without his excuse for the use of the method. For him that was the only way—no living mastodon was at hand. But we had the living civil law before us, consummate and complete, from which we deliberately turned away, following instead of the doctors of the Roman law, the stupid lead of the dull barons at Runnemede who "would not change the law of England," and who then started us on a course which now we cannot easily retrace. The persist ence we display in this course is scarcely creditable to lawyers in the twentieth cen tury, and the attempts to prove its wisdom are the veriest ad captandum. We have patched up and pieced out the English tribal
