SCOTUS and Roman Civil Law

[heyday]

COMMON LAW V. CIVIL LAW SYSTEMS
By Judge Peter J. Messitte

"The two principal legal systems in the world today are those of civil law and common law. Continental Europe, Latin America, most of Africa and many Central European and Asian nations are part of the civil law system; the United States, along with England and other countries once part of the British Empire, belong to the common law system."

civil law
From: The Columbia Encyclopedia, Sixth Edition | Date: 2007

civil law as used in this article, a modern legal system based upon Roman law , as distinguished from common law . Civil law is based on written legal codes, a hallmark of the Roman legal system, in which disputes were settled by reference to a written legal code arrived at through legislation, edicts, and the like; common law is based on the precedents created by judicial decisions over time. The tendency in civil law is to create a unified legal system by working out with maximum precision the conclusions to be drawn from basic principles. The civil law judge is bound by the provisions of the written law. The traditional civil law decision states the applicable provision from the code or from a relevant statute , and the judgment is based upon that provision.

Hills v. Ross, 3 U.S. 3 Dall. 184, 185 (1796)

The Judiciary Act of the United States had greatly innovated upon the old system of admiralty and chancery proceedings, the forms and principles of the common law were interwoven with and in many cases entirely substituted to those of the Roman jurisprudence.

Anderson v. Bock, 56 U.S. 15 How. 323, 328-329 (1853)

This rule from the Louisiana code, corresponding with that of the Code Napoleon, deviates from the rule of the Roman and feudal law, which exacted a formal delivery, to perfect the transfer of the property.

The rule is in complete harmony with the American system of conveyancing, which accomplishes the cession of property, with its incidents of possession and enjoyment, without a resort to symbolical acts, or inconvenient ceremonies, by the consent of the owner, legally authenticated.

Basket v. Hassell, 107 U.S. 602, 610 (1883)

This statement of the law we think to be correctly deduced from the judgments of the highest courts in England and in this country, although, as might well have been expected, since the early introduction of the doctrine into the common law from the Roman civil law, it has developed, by new and successive applications, not without fluctuating and inconsistent decisions.

Holden v. Hardy, 169 U.S. 366 (1898)

Similar views have been heretofore expressed by this court. Thus, in the case of Missouri v. Lewis, 101 U. S. 22, 31, it was said by Mr. Justice Bradley:

"We might go still further and say, with undoubted truth, that there is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law and its methods of procedure for the rest of the

Page 169 U. S. 388

State, there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the Fourteenth Amendment, be a denial to any person of the equal protection of the laws. . . . The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line, there may be a right of trial by jury, and, on the other side, no such right. Each State prescribes its own modes of judicial proceeding. If diversities of laws and judicial proceedings may exist in the several States without violating the equality clause in the Fourteenth Amendment, there is no solid reason why there may not be such diversities in different parts of the same State."

The same subject was also elaborately discussed by Mr. Justice Matthews in delivering the opinion of this court in Hurtado v. California, 110 U. S. 516, 530:

"This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law. . . . The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the principles and institutions of common law, we are not to forget that, in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that code which survived the Roman Empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice -- suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we

Page 169 U. S. 389

are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms."

We have seen no reason to doubt the soundness of these views. In the future growth of the nation, as heretofore, it is not impossible that Congress may see fit to annex territories whose jurisprudence is that of the civil law. One of the considerations moving to such annexation might be the very fact that the territory so annexed should enter the Union with its traditions, laws and systems of administration unchanged. It would be a narrow construction of the Constitution to require them to abandon these, or to substitute for a system which represented the growth of generations of inhabitants a jurisprudence with which they had had no previous acquaintance or sympathy.

We do not wish, however, to be understood as holding that this power is unlimited. While the people of each State may doubtless adopt such systems of laws as best conform to their own traditions and customs, the people of the entire country have laid down in the Constitution of the United States certain fundamental principles to which each member of the Union is bound to accede as a condition of its admission as a State. Thus, the United States are bound to guarantee to each State a republican form of government, and the tenth section of the first article contains certain other specified limitations upon the power of the several States the object of which was to secure to Congress paramount authority with respect to matters of universal concern. In addition, the Fourteenth Amendment contains a sweeping provision forbidding the States from abridging the privileges and immunities of citizens of the United States and denying them the benefit of due process or equal protection of the laws.

Benson v. McMahon, 127 U.S. 457, 466 (1888)

Another circumstance in connection with this matter is that this Court has frequently decided that there are no common law crimes of the United States. In very few of the states were there common law crimes remaining as subjects of punishment at the time when this treaty was made. Almost every state in the Union has recast her criminal law by the enactment of statutes in such a mode that the common law is now only appealed to as an aid in the definition of crimes. By the Roman civil law, which perhaps pervades or did pervade the jurisprudence of the larger portion of the civilized nations of the earth at the time of the making of this treaty, forgery was looked upon as one of the subdivisions of the crimen falsi, which included forgery, perjury, the alteration of the current coin, dealing with false weight and measures, etc. 1 Bouvier's Law Dictionary 411.

[heyday]

Fay v. New York, 332 U.S. 261 (1947)



[Footnote 36]

While English common law is the source from which it often is assumed a uniform system was derived by the States of the United States, it must not be overlooked that many of them have been deeply influenced by Roman and civil law to which their history exposed them. None of the territory west of the Alleghenies was more than briefly or casually subject to common law before the Revolution. French civil law prevailed in most of the Ohio and Mississippi Valleys from their settlement until Wolfe's decisive victory before Quebec in 1763. Its ascendancy in the north then was broken, and, in 1803, the Louisiana Purchase ended French sovereignty in the rest of the Mississippi area. Louisiana continues, however, a system of law based on the Code Napoleon. The Southwest and Florida once were Spanish. See Colvin, Participation of the United States of America with the Republics of Latin America in the Common Heritage of Roman and Civil Law, 10 Proceedings of the Eighth American Scientific Congress 467.

Even among the early seaboard States, the English common law had rivals. The Swedes on the banks of the Delaware held one of the earliest jury trials on this continent. The Governor followed Swedish law and custom in calling to his aid in judging "assistants" who were selected from among "the principal and wisest inhabitants" and were both judges and jurors, and sometimes witnesses. See 1 Johnson, The Swedish Settlements on the Delaware (1911) 450 et seq. In New York, there was a deep and persistent influence from Roman Dutch law. Upon capitulation of New Amsterdam, it was stipulated that certain Dutch law and judgments and customs should be respected. But even beyond this, in the organization of the courts, the Dutch rule persisted although contrary to the "Duke's Laws" enacted by the conqueror. The history of the early Dutch influence in New York court procedure was preserved by the diligence and foresight of Judge Daly. 1 E.D. Smith's Reports (New York Common Pleas) xvii, xxxiv, xxxvii. The Roman-Dutch element in New York law is recognized by its courts, e.g., Dunham v. Williams, 37 N.Y. 251, 253; Van Giessen v. Bridgford, 83 N.Y. 348, 356; Smith v. Rentz, 131 N.Y. 169, 175, 30 N.E. 54.

[amenmesse]

http://www.svpvril.com/comcivlaw.html

Common Law or [Roman] Civil Law

INTRODUCTION.

OF THE CIVIL LAW AND THE COMMON LAW

There have grown up in the history of nations only two great systems of law, the civil law of ancient Rome, and the common law of England. All the most civilized nations in the world are governed by either of these two great schemes of justice. Though the civil law and the common law have much in common, yet in many important particulars they are the opposites of each other. In the course of his studies, the student of law finds so much said, in an incidental way, about the civil law, that is calculated to mislead his judgment in regard to the true character of that scheme of justice, that it is important, at the outset of his walks over the fields of the common law, to give him some account of the civil law, and point out in what it differs essentially from the common law. This is a matter of much importance to every student who aspires to a comprehensive and enlightened knowledge of jurisprudence.

But it was under the empire, when the glory of the republic was gone, that the jurists attained their eminence, and in fact became the architects of the great system of Roman law. Though Scaevola and Sulpicius wrote treatises on the law, these treatises had no authority beyond the opinions of men learned in the law. But Augustus Caesar gave to a certain number of jurists the privilege of giving opinions in cases which might be referred to them by a judex; and if the jurists were unanimous, the judex was bound by their opinion; if they were not unanimous, the judex was left to adopt what opinion seemed to him best.

This system of jurisprudence was closely connected with the imperial theory and form of government, both by the manner of its growth and the political doctrines introduced into it by the writings of the jurists. The jurists were, in politics, imperialists; and they made their legal opinions support the imperial authority at all points of doctrinal application and administrative contact between it and the law. For though the theory of the republic was forgotten, and the right of revolution, so often exerted in the early history of Rome, was hardly even a matter of tradition, still it was deemed necessary, by the jurists, to vindicate to human intelligence, by some theory of right, an authority so stupendous as that of a Roman emperor. Therefore it was that the jurists invented the fiction of the lex regia, by which it was pretended that all the authority of the Roman people was irrevocably granted to the emperor. And, to complete their theory of absolutism, the jurists introduced into their writings, as a constitutional principle, the dogma, Whatever pleases the prince has the force of law.

If we now turn to the common law of England, we will find that, as far as administrative principles and forms of procedure are concerned, it is the opposite of the Roman civil law as it was molded under the empire. The principle which, in the practical administration of the two systems, marks the primary essential distinction between them, is the relative obligatory force under them of precedent or former decisions. Under the common law, former decisions control the court unconditionally. It is deemed by the common law indispensable that there should be a fixed rule of decision, in order that rights and property may be stable and certain, and not involved in perpetual doubts and controversies. Under the civil law the principles is different. Former decisions have not so fixed and certain an operation, but are considered as only governing the particular case, without establishing as a settled rule the principle involved in it. When a similar case occurs, the judge may decide it according to his personal views of the law, or according to the opinion of some eminent jurist. The civil law, as administered at the present time on the continent of Europe, possesses all the uncertainty and fluctuations of doctrine that results from the little respect paid by it to precedent.

http://www.lawlink.nsw.gov.au/lawlin...igelman_210204


The first and most distinctive aspect of common law procedure is its fundamentally pragmatic quality. We proceed by deciding the facts of particular cases. This process may take a very long time before a principle emerges by a process of induction. The common law method has never been more perceptibly described than it was on a number of occasions by Oliver Wendell Holmes. In one essay he wrote:

"It is the merit of the common law that it decides the case first and determines the principle afterwards ... It is only after a series of determinations on the same subject matter, that it becomes necessary to 'reconcile the cases', as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step."[1]

What is involved in this process is the development of legal principles on the basis of actual practical decision-making and dispute resolution over long periods of time in the course of dealing with real problems that arise in real factual situations. This is, of course, a different process than that involved when applying a rule expressed in terms of a formulation of words contained in an overriding code that is to be applied to particular factual situations. That approach is the usual model of decision-making in civil law systems, whose jurisprudence is derived from Roman law and Canon law.....

The difference in approach between common law and civil law systems is well expressed in a metaphor derived from a cognate area of discourse in philosophy, namely epistemology, the theory of knowledge. One of the great controversies of the history of philosophy was between empiricists and rationalists. The former sought to relate knowledge, ideas, truth and meaning to experience, whereas the latter related these matters to pure reason, so that thought about such matters transcended mere experience. It was no accident that most empiricists were British - Bacon, Hobbes, Locke, Berkley, Hume, whose intellectual tradition included the common law method. On the other hand the rationalists - Descartes, Spinoza and Leibniz, were continental, whose intellectual heritage was Roman law and Canon law.

Francis Bacon expressed the contrast between the two schools of philosophy in the following way:

"Empiricists are like ants, they collect and put to use; but rationalists are like spiders, they spin threads out of themselves."[2]

The common law method is the way of the ant: collecting particular fact situations which give rise to decisions relating only to those fact situations and putting them to use by a process of analogy or adaptation in other factual situations.

[palani]

Observe that the origin of common law anciently was Germany. Germany defeated the Romans. Yet now Germany is civil along with the rest of Europe.

Civilization is the process of converting a common law crime to civil law.

Is that a good thing?

[heyday]

Originally Posted by palani

Observe that the origin of common law anciently was Germany. Germany defeated the Romans. Yet now Germany is civil along with the rest of Europe.

Civilization is the process of converting a common law crime to civil law.

Is that a good thing?

Not unless you call mal prohibitum "crimes" a good thing...

[amenmesse]

Originally Posted by palani

Observe that the origin of common law anciently was Germany. Germany defeated the Romans. Yet now Germany is civil along with the rest of Europe.
Civilization is the process of converting a common law crime to civil law.

Is that a good thing?

In Europe it is often known that after one soccer team earns a goal the opposing teams spectators and fans will leave the stands and run across the field to murder the opposing side. How is murder and mayhem made civil in Europe? To call the Roman law civil is to mean civis or citizen, meaning within the city. Roman law is cosmopolitan in nature.. It is not to be construed as meaning civil conduct. Murdering christians was not civil. Letting jesuits loose on the Jews was not civil.