300 



la this way only can be explained the notorious fact that, in spite of 

 the avowed hostility of the English people to the Roman law, the English 

 lawyers, from the time of Glanville to the present day, have freely bor- 

 rowed from its principles. (0 



The same process took place on the continent, and resulted in the estab- 

 lishment of the Roman law as the common law of Europe — a fact, it 

 would seem, more calculated to surprise than its partial adoption in Eng- 

 land. In the latter country, the process was, at a period subsequent to 

 the time of Bracton,* checked by the hostility of the English people to the 

 Roman law ; but the only result was, that the process was transferred from 

 the common-law courts to the court of chancery, where it went on un- 

 checked. In modern and more enlightened times the common-law judges 

 again commenced to borrow freely from the civilians. It is related of 

 one of the greatest of our jurists, Sir Matthew Hale, that "he applied 

 himself with great avidity to the contemplation of the Roman law ;" and 

 that " he often affirmed that the principles of jurisprudence were so well 

 delivered in the Digests that law could not be understood as a science 

 without first resorting to them for information."! (to) 



Nor, as we have observed, can any one, even slightly familiar with the 

 two systems, fail to perceive the entire identity of principle and method 

 of those portions of the two systems that deal with the determination of 

 rights, and the substantial identity of rights themselves as realized in all 

 civilized nations. 



(6) Two distinctions, however, are to be drawn between the English 

 and the continental jurists. The Roman law was inherited by the latter 

 from a corrupt and degenerate age, after its spirit had fled, and the 

 rational method, by which it had been developed, had ceased to operate ; 

 and its general reception on the continent, in its complete form, as part 

 of the positive law, has given to it an undue authority. Hence, the 

 genius of the continental jurists seems, to a certain extent, to have been 

 cramped or fettered by the authority of Justinian's collections, in the same 

 manner as, in other branches of philosophy, thought has been dominated 

 by the authority of the Church ; and, accordingly, it has been well 

 remarked that "the fruits to be obtained from the study of the Roman 

 law can be reaped to their full extent only in countries where it is not 

 allowed the force of law, "| as is the case in England. 



On the other hand, jurisprudence has been cultivated in England, in 

 the main, only by professional lawyers, for purposes of the practical ad- 

 ministration of justice ; while on the continent, it has fallen into the hands 

 of jurists, devoted exclusively to its theoretical study, or of philosophers ; 

 and hence, has resulted a (to us) humiliating superiority in the exposition 

 of the law, and of the philosophy of the law, on the continent. Still, ad- 

 milting this superiority, it may be said of continental jurisprudence, that 



* Calvin's Case, 346. 



t Hale's History of the Common Law, iii. 



X Kaufman's Mackeldey, Translator's Preface, 7. 



