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engaged in the business of the law that they have not learned what has really taken place. Though they have seen the confusion, they have not understood the source of it. Another reason for it is this: We have been so in the habit of accepting everything from England as English common law that we have not noticed that it has been civil law with which England has been replacing the old Feudal customs which Coke and Blackstone represented. England discarded its old rules of procedure sixty-five years ago. What our bench and bar need is to be wakened to a realization of what has happened. The object of this article is to show that though Bacon's manuscript was lost, yet his Rules and Decisions have come to us. We have been amazed at what scholars have read from the walls of cities, buried for thousands of years, as well as what has been deciphered from tablets and cylinders found under the ruins of old Babylon. To decipher Bacon is a much easier task. Bacon gave us the clue when he told us his system consisted of Rules and Decisions. We find that his hundred rules for equity jurisprudence are maximized rules. They have been in use in the high courts of chancery in England, just as they came from the pen of that great master, and they are followed also in the courts of chancery, both Federal and State, in the United States. We have shown how Judge Tuley saw enough in the maxims on which to base a system of jurisprudence and that Hamilton saw in the maxims, a study of government. We know that our own John Marshall saw as Hamilton did, that in the maxims were to be found the conserving principles of government and that when he found it necessary to justice he did not hesitate to read them into the constitution. (Marbury v. Madison, 1 Cranch 137; McCulloch v. Maryland, 4 Wheat 316).
If it is true that the civil law of Rome has been made the common law of England and America and also true that the civil law was built upon the maxims, how then shall we understand our common law unless we understand the max
ims? It should not require much calculation to see that it is necessary to go to the fountain head. We wonder at the brilliant genius in jurisprudence of John Marshall. The explanation of it is, that he had learned the genius of Roman jurisprudence and went to the fountain head for inspiration. Marshall constantly resorted to the maxims. Had Bacon's Rules and Decisions come to us in the place of the system of Coke and Blackstone, we would have learned the true source and philosophy of jurisprudence. We have been led to believe by the law schools that we are in debt for the law we have, to Coke and Blackstone, whereas, as a matter of fact, scarcely anything of Blackstone and Coke is taught in them at the present time.
Following these cues, Mr. William T. Hughes has worked out a system of Rules and Decisions, with so profound a knowledge of the maxims and their relationships, and so careful a study of cases both American and English, that it would seem that the spirit of his great ideal and master, Bacon, had guided and inspired his efforts. Mr. Hughes has drunk deeply of the history of the world, and the philosophy thereof, knows the great epochs and what they portend, and thereby is prepared, as only a great master may be prepared, to proclaim the unity and inviolability of fundamental law. He has accordingly shown us that the great fundamental maxims of the civil law are practically the same as those of Christianity, and our own law is based upon them.
The civil law of Rome was based upon those principles which underlie the Mosaic Law. Each was the product of a republic. Napoleon, too, built well when he, aiding in the founding of a republic, caused the Code Napoleon to be based on the principles of the civil law. It was the selfishness of the Feudal laws that produced the French Revolution. It is not strange that planted in the soil of France to replace the laws of Feudalism the civil law grew, blossomed and fruited into a republic. But it was not only in France that the Code Napoleon took root, but in all Eu
rope. Has not all Europe in the last hundred years developed a spirit of freedom unknown before, and prepared the way for further republics? The civil law, although planted in the soil of South America by a king, yet grew true to its nature—behold a galaxy of republics there! Napoleon might have founded a republic in France in his day, had he not proved recreant to the trust the people had reposed in him, by seizing the powers himself which belonged to them, for as is well said by John Lord, he “overthrew constitutions; made himself supreme; and repudiated the very ideas in the name of which he climbed to a throne.” But in spite of the fact that he was a monster of selfishness, he has proved himself one of the greatest benefactors to the human race by leaving to France, Europe and the world the Code Napoleon and the maxims of the Civil Law by which to interpret that code.
It was because of the justice of the civil law that it was chosen to replace the Feudal laws in France. When we understand that Coke and Blackstone are largely represented by Feudalism, and that it was the civil law that Bacon endeavored to establish in England, we are prepared to understand what Bacon meant when he said: “I am in good hope, that when Sir Edward'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.”
What shall we say of the action of Japan, which recently, after a careful examination of the systems of jurisprudence of the world, seeing the merits of the civil law, and seeing that all Europe had replaced the laws of Feudalism with the civil law, itself adopted it. Thus it happens that Japan has planted the seeds of a republic on her soil. What will be the inevitable fruitage? To be sure, although Japan has adopted the civil law, the nature of the Japanese civilization is such that it will take some time before the rules of civil law can be practically applied, yet it comes as a strong ally to Christianity as its conquests rapidly increase and must increase as “through the ages one increasing purpose runs," and Korea and China are widening and expanding under the gracious influences of Christianity. The civil law may be relied upon to do its part in all these countries as they are preparing for a federation with the world, for these things must needs be” as a part of the great plan of the Maker of all; all truth is of God and for all time whenever and wherever it may be found. It is a wonderful thought that 551 years B. C. there was brought into a republic a collection of fundamental principles of government which were sufficient for the rule, of an Empire. The hope of Justinian's wonderful reformation was that it would prove the salvation of Rome, though it is conceded that the result of his work was the production of the most remarkable system of jurisprudence ever known, whether viewed from the standpoint of its intrinsic merits or the influence it has had on governments ever since. Like everything true and good, it was for posterity.
When in Justinian's time it was proposed to change some of the maxims, it is said “All Rome arose in protest." Surely, for was it not upon these maxims the Roman law was built? Change one maxim and think what the result would have been on the Roman law.
But the greatest system of jurisprudence ever established by a nation was a zephyr to a cyclone when it came to stem the tide of the corruption which brought forth the wail, “Omne Romae venale.” When it came to this Rome lost its power, for what could a nation do when all its people had become venal? Barbarism conquered and crushed the civilization which thousands of years had been building, and in its place came the enslaving power of the Feudal system. Judge Morris says: “Feudalism was no more than organized brigandage; and it tended to make every nation, and every petty principality, and every man, the enemy of every other nation and principality and human being." But truth crushed to earth will rise again, so VOL. L.
from the ashes and ruins of old Rome came the civil law with its maxims in the Code Napoleon. It was as the irony of fate that one of the most cruel of despots was to restore the civilization Feudalism had throttled. It was fortunate for the world that Napoleon should, for a time, have become a republican. At heart he was the embodiment of imperialism, militarism and commercialism. The war in Europe today is the dying struggle of these infamous tyrants. The intrenchment of the civil law in the hearts of the people of Germany is the best assurance of the overthrow of imperialism there. With it will go militarism and commercialism. And what is true of Germany is true of Russia, England, Italy, the world.
This brings us to the question which has been breeding so much concern in our own land. Here the seeds of the civil law have been planted in our equity jurisprudence, provided for in our constitutions, Federal and State. But we have been dominated by the influence of Coke and Blackstone, who relegated equity to a secondary place, and held that it could be resorted to only when the common law of England did not furnish a remedy. The civil law, which is our equity, admitted no such weakness and has always proved equal to every emergency. One prolific source of delays in our courts has been the jury system of the English law. The thousand and one rules for the admission of evidence in jury trials are not only the cause of many reversals in our appellate courts, but are the chief source of the cost which bars the door of Justice to the poor. The only reform we need is to drop the whole common law sys- , tem, which its founders admit was never adequate to do justice, and replace it with the equity which is called upon where the common law fails.
The substitution of the plan of Bacon for the plan of Coke and Blackstone would accomplish this result and reduce the number of necessary reports to about fifteen or twenty volumes. This would be enough to cover the body of the law. These decisions should not be added to, except