Entered as Second-Class Matter January 10, 1910, at the Postoffice, at Rochester, N. Y., under the act of March 3, 1879. Copyright, 1916, by The Lawyers Co-operative Publishing Company. All rights reserved. The following subjects in American law may be mentioned, which have been largely influenced by the civil law, and resemble that system in many important elementary principles, namely, the subject of probate, of succession to personal property and testamentary capacity; the law of admiralty; the law merchant, largely of continental origin; the law of equity and trusts; the law of corporations as juridical persons distinct from the corporators; the law of res judicata, fully expounded in the Digest of Justinian; the theory and practice of habeas corpus, the leading principles of which are found in the same compilation; the law of alluvion, of accession, and of wild animals; and finally the great subject of obligations in general as arising from contract, quasi contract, tort, neglect, and the operation of law, the logical arrangement of which by the civilians becomes more and more useful in legal analysis and discussion. To these we may add the general doctrines of public and private international law which are mainly of continental origin. Chief Justice Holt, writing nearly 200 years ago, said: "Inasmuch as the laws of all nations are doubtless raised out of the ruins of the civil law, as all governments are sprung out of the Roman empire, it must be owned that the principles of our law are borrowed from the civil law, and therefore grounded upon the same reason in many things." Sir William Jones, writing during the Revolutionary War, said: "With all of its imperfections, the Digest is a most valuable mine of judicial knowledge; it gives law at this hour to the greatest part of Europe, and though few English lawyers dare make such an acknowledgment, it is the source of nearly all our English laws that are not of Feudal origin." And Mr. Hornblower, addressing the New York State Bar Association (1902), has said: "It is also well for us votaries of the common law to remember that there is another jurisprudence founded upon the Roman or the civil law, and prevailing throughout the greater part of continental Europe, from which we have ourselves borrowed many of the most important legal principles." The present practical importance of the civil law to us consists in the fact that about one-sixth part of the present population of the United States and its dependencies or, to put it in figures, more than 12,000,000 of our population-live under the civil law, and are governed in their personal and property rights by some form of it. Thus Louisiana, with a population of 1,400,000, Porto Rico, with a population of 1,000,000, the Hawaiian Islands, with a population of 150,000, the Philippine Islands, with a population of 8,000,000, and Cuba (if indeed it may be included), with a population of 1,600,000, are governed by the civil law. Not only, therefore, must our judges and lawyers acquire familiarity with it and facility. in working in it, but our commercial and trading classes are finding it constantly of more and more consequence to them in their business. Not only is much of our law derived from it, but many millions of our people live and must continue to live under it. -Charles F. Beach. ase and Comment VOL. 23 DECEMBER 1916 No. 7 Foreign Influences in English and American Law SPOR BY ORRIN K. McMURRAY Professor of Law in School of Jurisprudence, University of California NOT uncommon con Aception as to the devel opment of our law is that God and nature conspired to plant its seeds in a favored island, to foster the growing plant until it achieved a certain maturity, and to cause it to be transplanted to our own land, where it continued to flourish. A very eminent English jurist only a few years ago delivered an address at the annual meeting of the American Bar Association, adopting as his thesis the proposition that the geographical situation of England predestined her legal development. He found the explanation of the phenomenon that England alone of the European states escaped the "reception" of the Roman Law in the fact that she was an island, and that "the influences which governed the development of law on the European mainland reached her in an attenuated form."1 Unfortunately for the learned gentleman's thesis, he overlooked the fact-though himself 1 James Bryce, The Development of the Common Law, American Bar Association Reports, 1907, p. 458. a "Northcountryman"-that England is not an island (for, as our geographies teach us, it is bounded on the north by Scotland), and that her canny neighbor, though far more remote geographically from the continent, did "receive" the civil law.2 In truth, English law is not wholly a plant of indigenous growth. Though in the main it is true that our law and that of England upon which it is based has a method and a spirit peculiar to itself and in many of its institutions and doctrines shows little of foreign influence, it is also true that at hardly any period of its history has it been wholly independent of such influence. The history of English law really begins with a foreign and Romanized influence, the work of the Norman Kings. The Saxon laws and customs, the importance of which it was formerly so much the fashion to exaggerate, had, modern scholars tell us, comparatively little influence on our institutions. Even the jury, which the older popular English historians were fond of tracing to a Saxon original, has been proved to be a Frankish invention, not unmodified by 2 20 Juridical Review, p. 178. |