Page images
PDF
EPUB

possibly as the Supreme Court might hereafter find beneficial. The decisions selected should definitely announce, discuss and apply, the maxims. Such a system would not only open the door of Justice to the poor, but would so expedite the business of the courts that we would have no complaint of their being behind in their work, as is now the case in nearly every State.

Says Judge Morris in his History of the Development of the Law (p. 307): “Probably there is no better illustration of the extent which equity and therefore the civil law of Rome, has gained in our jurisprudence upon the common law, than the statistics of the courts in respect of the number of suits filed in equity as compared with those at common law. Whereas a hundred years ago it was scarcely more than one to fifty and forty years ago no more than one to ten, it is now in the proportion of one to two; and this, too, in face of the rule, which remains the law as it was two hundred years ago, that recourse can be had to a court of equity only when there is no remedy, or adequate remedy, at common law. In fact,” says this learned Judge, “our civilization would be impossible without the advancing growth of our equity jurisprudence to meet its requirements.” The fact that equity has been rooting out the common law in America, should be ample proof of the greater efficiency of the plan Bacon wished to leave us. Up to this time few writers in America have called to our attention the distinctions which emphasize the greater ability and learning of Bacon as compared with Coke and Blackstone. Mr. W. T. Hughes has done this with marked ability. Our law schools should have done it, but they have failed. Next to Hughes, Kent is, in the opinion of the writer, the greatest of American writers. But Kent will be more appreciated when the merits of William T. Hughes are recognized. Kent saw the great difference between Bacon and Coke. The worship of Coke and Blackstone in America has prevented both bench and bar from seeing and heeding what Kent so pointedly set forth.

When David Dudley Field gave us his code, the influence of Coke and Blackstone was so potent that neither bench nor bar understood that the code was an enunciation of the principles of the civil law. But Kent saw at the time the rule in Shelly's case was abolished what it meant to the learning in his time and which applies fully as well as to what the Field Code meant to the English common law in America. In a vein of irony he sets forth its meaning as follows: "The juridical scholar, upon whom his great master, Coke, bestowed some of the gladsome light of jurisprudence, will scarcely be able to withhold an involuntary sigh as he casts a retrospective glance over the piles of learning devoted to destruction by an edict as sweeping and unrelenting as the torch of Omar. He must bid adieu forever to the renowned discussions in Shelly's case which were so vehement and so protracted as to arouse the sceptre of the haughty Elizabeth. He may equally take leave of the multiplied specimens of profound logic, skillful criticism and refined distinction, which pervaded the various cases in law and equity, from those of Shelly and Archer, down to the direct collision between the courts of law and equity, in the time of Lord Hardwicke. He will have no more concern with the powerful and animated discussions in Perrin v. Blake, which awakened every precinct of Westminster Hall. He will have occasion no longer, in the pursuit of the learning in that case, to tread the clear and bright paths illumined by Sir William Blackstone's illustrations or to study and admire the spirited and ingenious dissertation of Hargrave, the comprehensive and profound disquisition of Ferne, the acute and analytical essay of Preston, the neat and orderly abridgement of Cruise and the severe and piercing criticisms of Reeves. What I have written on this subject may be considered, so far as my native State is concerned, as an humble monument to departed learning."

Mark in the following from Kent how much more respect he has for Bacon than for Coke and Blackstone, as shown

[ocr errors]

by a comparison of the above quotation with the following: Speaking of Bacon, says Kent: “We have no report of his chancery decisions, although he made over two thousand orders and decrees in a year. Those decisions, if well and faithfully reported, would have doubtless presented to the whole world a clear illustration and masterly display of many principles of equity since greatly considered and discussed, for even upon dry technical rules and points of law he shed the illumination of his mighty mind.” (1 Kent 491.) But Kent did not fail to appreciate the splendid valor of Coke and the importance of his stand for humanity when he announced to King James and Parliament that above them was the law. The misunderstanding of the Field Code by its early critics is a prolific source of the confusion which now reigns in the States.

Perhaps the most forceful illustration of how an idea, once thoroughly imbedded in the minds of a people, still clings to them in the face of overwhelming evidence to the contrary, is in the misunderstanding the Jews had of the looked-for Messiah, and its consequence. So imbued were they with the idea that Christ was to establish a worldly kingdom, that even the death on the cross and the resurrection did not completely erase this view from the minds of some of his followers. It took a death on the cross and a resurrection to prove his real character and his true mission, even though he had plainly told his followers, many and many a time, that His Kingdom was not of this world. So complete was the seeming defeat in the death on the cross that all hope was abandoned by His followers. Unless Christ had risen from the dead as He said He would, how could the wonderful work have been inspired which the apostles afterward did? It is this that has made so many of our greatest men believers in Christianity. It has been the influence of Christianity which has humanized the execution of the law and which has done so much to replace the barbarism of Feudalism with the benign force of the Christianized civil law. So, though the works of Bacon and

Kent have pointed out clearly the true jurisprudence, most of the bench and bar of America believe, to this day, because of the teaching in the law schools, that Coke and Blackstone are the true prophets. Our law schools environed by the spirit of Coke and Blackstone have been trying to grow grapes on thorns and figs on thistles. Not one of them has seen that equity is the true jurisprudence which is bringing in the perfect day. No great thinker has been developed in our schools. That Mr. Hughes is not only a deep thinker but knows the world's history and its philosophy, and understands Bacon and his jurisprudence so well that he is able to reflect it in its native brilliancy, is not the belief of the writer alone. Mr. Hughes would have been recognized long ago but for the modesty of his environment which has kept him from a premature ripening. But today he comes in the perfection of ripened wisdom in the very fullness of time. Everything that Bacon did in jurisprudence was inspired by the spirit of the civil law, which to our minds is the greatest tribute which could have been paid it by one person. But . while other nations have been crowning the civil law with laurel, the juridical scholars of most of the States of America have been wallowing in a quagmire of precedent and prejudice. “Science moves but slowly, slowly, creeping on from point to point.” But the wonderful progress in new fields of science is helping to clear away the prejudices in older fields and the breadth of our vision is widened by a better understanding of the past. With this awakening we see a hope for the future never given to mortals before. We feel confident America will soon arrive at the front in jurisprudence now that we are being driven to an acceptance of the civil law in toto, by the rapidity with which all nations have adopted it since the advent of the Code Napoleon. The adoption of the same system of jurisprudence by the nations which are already the prime factors of the business world, requires a universal system such as Mr. Hughes has brought again to the light.

e

[ocr errors]

Note what the Hon. Wendell Phillips Stafford, a well known Judge of the Supreme Court of the District of Columbia, a juridical scholar, poet and orator of unusual ability, says of the jurisprudence of William T. Hughes, and consider it in relation to the need of the times. Speaking of the work of Mr. Hughes, Judge Stafford says: “It is the fruit of a long lifetime of study and reflection, of a wide knowledge of cases and a rare skill in the use of them. You have cast into brief, logical and philosophical form the real substance of the law, the law which survives from age to age and in its essence and reality remains the same. Hence your work is not local or provincial, but cosmopolitan. It is for the world, wherever man inhabits and commerce runs. You have wrought upon the model proposed by Sir Francis Bacon three centuries ago and with vaster materials to master and arrange, it appears to me you have performed the task as he would have had it done.

“Perhaps the highest service you have rendered is by making plain the great gulf fixed by reason of the needs of government between the mandatory and statutory records. You have been the first to adequately state and defend the ground upon which that distinction rests and to show that free constitutional government itself is bound up with the essentials of procedure—that as the law arises out of the facts, the facts must always appear that justify the judgment—that the inerests of he State require it and that parties cannot bargain it away. This is the great forgotten truth which you have brought to light and have illustrated with a clearness of comprehension and a wealth of learning that entitles you to rank with the greatest of legal authors. It is the cry on all sides that the law must be restated. In my humble opinion you have done it." We do not see what more need be said to show that we have in our midst the man for the occasion.

The long delays under our common law system have in many cases resulted in a practical denial of justice. Particularly is this true with respect to the poor. But with

« PreviousContinue »