Page:Harvard Law Review Volume 32.djvu/104

70 70 HARVARD LAW REVIEW competition. Yet the manner of the process is not always edifying to the thoughtful lawyer. Too often it suggests Mr. Podsnap's backward sweep of the hand and solving phrase "not English." On the one hand we find the Supreme Court of the United States turning to Glanvill in order to. understand the Roman law as to universal succession for the purposes of an appeal from Porto Rico.^ At the other extreme, the Judi- cial Committee of the Privy Council now express grave doubts about a doctrine in the Roman-Dutch books when it is merely derived from or fortified by the general Romanist juristic writings of the period of the Reception. In Demerara Turf Club v. Wight,^ on a question of offer and acceptance in a sale by auction, a decree of specific performance made by the Supreme Court of British Guiana rested on an alleged rule of Roman-Dutch law requiring express reservation of the right to with- draw. In the course of a decision reversing the decree and denying that there is such a rule of Roman-Dutch law. Sir Walter Phillimore says: "The writers on Roman-Dutch law also avail themselves of the writ- ings of the commentators of other European nations, such as Bartolus, who was an Italian, and Choppinus, who was a Frenchman from Anjou. How far they can be used as authorities on Roman-Dutch law may be doubted." ^ The starting point of the system known as Roman-Dutch law is not later than the setting up of the Great Council at Mechlin in 1473.'* At this time Roman law was a universal law and Bartolus was its most authoritative exponent.^ Perhaps if a Romanist were some day to administer Anglo-American law in some Pacific island, he might be found saying: "The writers on American common law also avail them- selves of the writings of European nations, such as Coke who was an Englishman. How far he can be used as an authority on American law may be doubted." Then he might cite the American legislation after the Revolution forbidding citation of English authorities and the dictum of Judge Dudley that he had never read and never would read Coke or Blackstone.^ Both in American administration of Roman-Spanish law and British administration of Roman-Dutch law, the fundamental assumption is that English common law is the order of nature. The burden is on those who assert a rule or principle or mode of thinking at variance therewith to prove it clearly by texts of undoubted authority, and if they are able to do so, our tribunals seem to think of the situation on the analogy of an exceptional modification of the common law by an interloping statute. Hence when Roman-Dutch writers "endeavor to help themselves out by the analogy of the Roman law as to sales by addictio in diem," ' we are told that the analogy is misleading. So are many analogies upon which rest settled common-law doctrines. But when a court is ad- 1 Ubarri v. Laborde, 214 U. S. 168, 172 (1909). 2 [1918] A. C. 605. » Ibid., 611. Ages — even down to the sixteenth century — is based, in its essentials, on the glossa and the writings of Bartolus." Grueber, Introduction to Sohm, Institutes of Roman Law, Ledlie's transl., xvi. 470. ^ [1918] A. C. 611.
 * Lee, Roman-Dutch Law, 2-4; Wessels, History of Roman-Dutch Law, 126.
 * "It may safely be said that the jurisprudence of the later centuries of the Middle
 * Corning, "The Highest Courts of Law in New Hampshire," 2 Green Bag, 469,