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I have sometimes thought that possibly the world would be better off if we could burn all our text books upon equity jurisprudence, and we might include ninety per cent of the reports, and preserve only those grand, wise, comprehensive, pure and beautiful maxims, with which to redress Civil Wrongs and enforce all Civil Rights as between man and man." The Romans exemplified the sufficiency of this statement, for the maxims were what the Romans began with and are the structure of the Civil Law. To understand what has wrought so much havoc with our Jurisprudence in America, there must be a thorough understanding of the difference between the systems represented by Coke and Blackstone on the one hand and by Bacon on the other. A thorough understanding of the nature and origin of these and their philosophies, will show clearly even to laymen, how far the system of Bacon surpassed that of Coke and Blackstone. Bacon saw all the philosophical beauty of the Civil Law. He saw that it was a development from the maxims of the Twelve Tables. He saw in the maxims the conserving principles of government; that in them were the wisest provisions ever made by any nation. The morality the maxims represent could have originated only from the highest moral source. They were in fact inspirations. Bacon saw the fundamental conserving principles of the Roman system in the maxim, Juris praecepta sunt haec: Honeste vivere; alterum non laedere; suum cuiquae tribuere. On what better foundation could a government be laid than this: These are the precepts of the law: Live honestly; injure no one; render to every man his due. To test whether a decision was well founded, the provision of the Roman was to go back to the fountain head, hence the maxim, “It is better to seek the fountains than wander down the rivulets," was provided as a guide for the judge to determine the right of a matter. Following this rule the judge would always get back to the great fountain head: “These are the precepts of the law: Live honestly; injure no one; render to every man his due." Bacon, the greatest of lawyers and philosophers, could not help seeing the genius of the Roman in government. He saw that if he wished to build well and permanently, he must build with the material the Republic of Rome had left to posterity. He knew that it would be for the good of posterity, that he should warn mankind against the errors of Coke. The latter, through his greater political influence and the English prejudice against the Civil Law, succeeded in establishing his system of reports, which has prevailed in England and America ever since. But Bacon, though he failed to establish his system of Jurisprudence, left us this: “I am in good hope, that when Sir Edward's (Coke's) reports and my Rules and Decisions come to posterity (no matter what may now be thought) it will then be seen which was the greater lawyer.” Here we have the cue to an understanding of what Bacon meant to leave us in his Rules and Decisions. Bacon knew that the Roman Law had been built upon rules (the maxims) and the decisions were the product of the rules.
All the rules of construction left by Bacon with which to articulate the decisions of the Equity Courts of England come from the Civil Law. Since there is no question but , that he was an open advocate of the Civil Law, it is practically certain that the rules which he wished to come to posterity were the maxims of the Civil Law. It must also appear, since there can be no doubt that Bacon saw in the maxims the fundamentals of Government, that the decisions he would have provided would have been such as to show the practical use of these maxim rules in the decisions. It was Bacon's idea that with certain decisions articulating the maxims or rules he got from the Civil Law, there would be a fixedness to Jurisprudence which had not been wholly provided in the maxims alone. Bacon's contribution to the Civil Law was intended by him to be a set of decisions selected and designed to cover practically the body of the law and thereby to show the relationships of the maxims to each other. Vainly did Bacon importune King James to
cause the publication of his Rules and Decisions. When that monarch failed to do so, he lost his greatest opportunity to become a public benefactor, for Bacon was too poor to publish the manuscript at the time, and afterwards it was lost. It is reasonable to presume from what we know of Bacon's published works, that in the loss of the manuscript of his Rules and Decisions, the greatest and most useful system of Jurisprudence ever intended for man was lost. But the system of Coke did come to us.
It consisted of reports of English decisions in which were contained a number of the maxims of the Civil Law. Coke coming across them in the English cases thought them of English origin. He hated everything from Rome and was so intensely English that he could not conceive that any system of Jurisprudence could compare with that he found in England. His hatred for the Civil Law was no doubt intensified by the fact that Bacon advocated it. He hated Bacon with all the vigor of a strong, obstinate, jealous and venomous nature. He wrote on the fly leaf of a presentation copy of one of Bacon's philisophical works: “It deserveth not to be read in schools, but freighted only in the ship of fools.” Nevertheless Coke was naturally a great lawyer and judge, where his prejudices were not involved. He arose to a sublime height and won the admiration of great judges and scholars, for bearding King James and his parliament, when he informed them, that "above them was the law;" and that “it was his power and authority to modify their acts and even nullify them, if required by reason, morals and common right.” Hughes Pro. Vol. 2, p. 1003.
Bacon saw clearly that though Coke started with many good principles, nevertheless in the constant following of previous cases as precedents, the reason for the law would not be conserved. The trouble Bacon foresaw and attempted to provide against, has come upon us. Instead of going back to the fountain head we are following down the rivulets, the very thing the greatest Jurisprudents of the world told us not to do over 2400 years ago. In the constant following of cases, the maxims in which was embodied the reasons for the laws, have been lost sight of and all but obliterated. As a result our cases are not decided upon principles, but in large measure follow blind precedent devoid of fundamental reasoning. In this way, error kept constantly increasing till the time of Mansfield. In order to reopen the channels of the law, Mansfield again introduced the maxims of the Civil Law. They again proved: effective and evidenced the power of the Civil Law to promote justice. But Mansfield and Bacon, Kent, Story, and Bishop have been but partially understood and followed. The English system of jurisprudence has been established in America on the basis set up by Coke and Blackstone. The views of the latter are today predominant in the United States. Even our law schools teach that the maxims are misleading.
Had our law schools learned that the Civil Law of Rome had replaced the Common Law of England, they would have learned the maxim that: The beginning of a thing is the most important part of it; and would be teaching the maxims as the most important requisite to the beginning of a legal education.
Mansfield was, next to Bacon, the greatest benefactor of the English speaking race. His restatement of the principles of the Civil Law startled the English Bar, who regarded him as an innovator. Naturally there came forth the most bitter criticism from the English lawyers whose knowledge of jurisprudence was confined to Coke and Blackstone. In Mansfield's time English prejudice against the Civil Law still obtained, as was evidenced in the letters of Junius where some lawyer of his time says of Lord Mansfield: “He is fond of introducing into the Courts of the King's Bench any law which contradicts or excludes the Common Law of England; whether it be Common, Civil, Jusgentium or Levitical," and on page 97 id., “We are both agreed that Lord Mansfield has labored inces
santly to introduce new modes of proceeding in the court in which he presides; but you attribute it to honest zeal in behalf of innocence oppressed by quibble and chicane. I say he has introduced new law, too, and removed the landmarks established by old decisions. I say his view is to change a Court of Common Law into one of Equity and bring everything into the arbitrium of a praetorian Court.” Strange as it may seem, we are just beginning to find this out. For example, a few days ago I forwarded to a friend of mine in Chicago the views I have just expressed. He is one of the most brilliant men I know and a lecturer in the law schools of both the University of Chicago and Michigan. He insisted that the common law of England was responsible for the doing away with the barbarisms of Feudal laws. While it is true that what is now the common law of England is responsible for the justice which has replaced the barbarisms of the Feudal system, it was the glory of Mansfield that he showed that this could be done by making the civil law of Rome the common law of England. Since Lord Mansfield opened the doors to the civil law in England it has been coming in like a flood, till today, Coke and Blackstone are practically obsolete there. The old practice in England has been superseded by the simpler practice of the “Pratorian Courts," and the books of Feudalism are left to mould on their shelves, relics of the selfishness which begat them.
In America we have clung to the English common law of procedure till it has led us into a jungle of conflicting opinions, where both Bench and Bar have been lost. In our law schools we have been taught that the common law of Coke and Blackstone is a consummation of human wisdom just as those worthies claimed it to be, and that the law of America is the common law of England. Even to this hour the greatest portion of Bench and Bar in America is startled and amazed when the truth is brought to them, that the English common law (not its procedure) has been practically swept away. They have been so profoundly