Page:The Green Bag (1889–1914), Volume 22.pdf/391

 Correspondence is radical in that it puts forward theories as to‘_’,the fundamental principles of jurispru dence in contempt for the commonly accepted sources and for the doctrine of judicial precedent. In reply to this I will say merely that the work embraces all of Smith's Leading Cases, White & Tudor's Leading Equity Cases, Broom's Maxims, Thompson's Cases Negligence, American Leading Cases, Hare & Wallace, besides hundreds of the most notable

Federal and best State cases. The doctrines advanced in the work are based upon these cases and upon the works of such writers as Story, Kent, Greenleaf, Bispham, Pomeroy, and the sources of Field’s New York Code. You further say: “The theory that the leading principles of the Roman law furnish the basis for our entire legal system is cer

tainly surpr'ming." I must certainly say that I fail to see why this position should be surprising to you, even though you may differ from it, since it has been advanced by such men as Mansﬁeld Kenyon, Ellenborough, Marshall, Kent and Story. See collated the departments of our law that have sprung from the Roman, Section 28, 1 Grounds and Rudiments of Law. What Judge Story thought about this matter is indicated in his Miscellanous Writings, pp. 820, 821. Further, we must not forget how

Lord

Holt built Coggs v. Bernard out of the Roman law (Smith's Lead. Cas.), and also how Story founded Bright v. Boyd, one of his most notable cases, on four Roman maxims. The latter was practically reprinted in Valle’:

Heirs

v.

Fleming's

Heirs, 29

M0.

152, 77 Amer. Dec. 557-565, with extended notes.

See, also, cases like Davies v. Mann,

10 Mees. & Wels. 546', 2 Grounds and Rudi ments,

476, aFﬁrming the

Roman

maxim,

Alterum non lmdere. That the maxims of the civil law underlie many of the branches of the English law, see Kent's Commentaries, 546. Chancellor Kent says that even "that strict English lawyer, Lord Holt, admitted that the laws of all nations were raised out of the ruins of the civil law, and that the principles of the English law were borrowed from that system, and grounded upon the same reasons.”

I must say that, in view

of the authorities on this question, I think you do yourself an injustice to say that you are surprised at my reiteration of them. The great maxims of construction, by which all documents are adjudged, are Roman. 2 Inst. 365, Bacon Max.

Reg.

1, etc.;

1.

369

You further say that but one third of Bracton's treatise shows any considerable trace of Roman inﬂuence. "Of course. au thorities may diﬁ'er on this question, and it is not necessary to enter into lengthy dispute about it. Sir William Jones, however, says of Bracton that he is certainly one of the best of the English juridical classics, and that be copied Justinian almost word for word. And Mr. Spence, in his Equitable Jurisdiction of the Court of Chancery,

l.

c. 132, considers that Bracton drew the learning of his treatises, not from the Anglo Saxon or Anglo-Norman jurisprudence, but essentially from the Roman law.

(1 Kent,

13 Ed. 500.) As to whether I have or have not taken a prejudiced view of Coke, I will leave to the decision of the candid reader who has read the facts set forth in Chapter I of Grounds and Rudiments: The Fountains of the Law. You say that there is lack of proportion in the work, “far too little space being allowed to the substantive law and far too much to procedure to preserve proper symmetry of treatment." The history of our law has been stated by Pollock and Maitland in their history of English law to be more than any thing else a. history of forms and methods of procedure. If it be, the practical lawyer must concede that an attempted distinction between the substantive and the adjective law is illusory. I frankly admit that I so consider it. See 70 Central Law Journal, 311; 25 American Bar Ass'n, 549, by Prof. Henry Redﬁeld of Columbia College; also address of Franklin W. Danaher, 34 Amer. Bar Ass'n (1910). 787. But this does not mean at all that what is known as "substantive" law is not properly treated in my work. It merely means that I have not attempted to separate “sub stantive" from "adjective" law, but have treated them as I think they should be treated, indivisibly. The experiments of some of our large publishing houses seem to be forcing them to the same conclusion. The Edward Thompson Company put out the ﬁrst edition of its Encylopaedia in thirty one large volumes on "Substantive Law"; then in a second edition they spread the work into thirty-two volumes on “Substantive Law" and twenty-three on "Adjective,” in all eighty-six volumes. After all these were widely sold, the American Law Book Company, seeing the ﬁrst mistake, put out their forty volumes C Y C, treating the law