« НазадПродовжити »
fifty pieces of gold. However, so late as the time of Pliny, the old mode of summoning, or carrying by force, before a judge, continued in general to subsist; though, in the time of Ulpian, the necessity of expressly obtaining the prætor's leave was extended to all cases and persons; and, in Constantine's reign, the method began to be established of having the legal summons served only by means of a public afficer appointed for that purpose. After that time, other changes in the former law were introduced, from which the mode of proceeding now used on the continent of Europe has been borrowed.
In England, likewise, some changes, we may observe, have been wrought in the law and practice concerning the arrests of sued persons, though as slowly and late as those effected in the Roman republic or empire, if not more 80; which evinces the great impediments of various kinds that obstruct the improvement of laws in every nation. So late as the reign of king George the First, an act was passed to prohibit the practice of previous personal arrest, in cases of demand under two pounds sterling; and, since that time, those courts, justly called of Conscience, have been established, in which such demands are to be summarily decided, and simple summons, without arrest, can only be used. A bill was afterwards enacted (on the motion of Lord Beauchamp, whose name deserves to be recorded), by which the prohibition of arrest was extended to all cases of debt under ten pounds sterling; a bill, the passing of which was of twenty, or even a hundred times more real importance than the rise or fall of a favourite, or a minister, though it has, perhaps, been honoured with a less degree of attention by the public.
Other peculiarities of the English civil law are, the great refinements, formalities, and strictness that prevail in it. Concerning such refinements, which are rather imperfeo tions, the same observation may be made that has been introduced above, in regard to the mode and frequency of civil arrest in England; which is, that they are continua tions of methods adopted when the English law began to be formed, and are the consequences of the situation in which the English placed themselves when they rejected the
ready-made code of the Roman civil law, and rather chose to become their own law-makers, and raise from the ground the structure of their own national civil code; which code, it may be observed, is as yet in the first stage of its formation, as the Roman law itself was during the times of the republic, and in the reigns of the first emperors. *
The time at which the power of administering justice to individuals becomes separated from the military power (an event which happens sooner or later in different countries), is the real æra of the origin of a regular system of laws in a nation. Judges being now deprived of the power of the sword, or (which amounts to the same) being obliged to borrow that power from other persons, endeavour to find their resources within their own courts, and, if possible, to obtain submission to their decrees from the great regularity of their proceedings, and the reputation of the impartiality of their decisions. At the same time, also, lawyers begin to crowd in numbers to courts, which it is no longer dangerous to approach, and add their refinements to the rules already set down either by the legislature or the judges. As the employing of them, especially in the beginning, is matter of choice, and they fear, that, if bare common sense were thought sufficient to conduct a lawsuit, every body might imagine he knows as much as they do, they contrive difficulties to make their assistance needful. As the true science of the law, which is no other than the knowledge of a long series of former rules and precedents, cannot as yet exist, they endeavour to create an artificial one to recommend themselves by. Formal distinctions and definitions are invented to express the different kinds of claims that men may set up against one another; in which almost the same nicety is displayed as that used by philosophers in classing the different subjects, or kingdoms, of natural history. Settled forms of words, under the name of writs, or the like, are
* The refinements and formalities alluded to by De Lolme have, since he wrote, been greatly modified; but the benefits of our common law cannot be thoroughly understood or appreciated until the great mass of our statute laws and reports is reduced into a compendious and systematic code in plain and intelligible language.--Ed.
devised to set forth those claims; and, like introductory passes, serve to usher claimants into the temple of justice. For fear their clients should desert them after their first introduction, like a sick man who rests contented with a single visit of the physician, lawyers contrive other ceremonies and technical forms for the farther conduct of the process and the pleadings ; and, in order still more safely to bind their clients to their dominion, they at length make every error relating to their professional regulations, whether it be a misnomer, a mispleading, or the like transgression, to be of as fatal a consequence as a failure against the laws of strict justice. Upon the foundation of the above-mentioned definitions, and metaphysical distinctions of cases and actions, a number of strict rules of law are moreover raised, with which none can be acquainted but such as are complete masters of those distinctions and definitions.
To a person who, in a posterior age, observes for the first time such refinements in the distribution of justice, they appear very strange, and even ridiculous. Yet, it must be confessed, that during the times of the first institution of magistracies and courts of a civil nature, ceremonies and formalities of different kinds are very useful to procure to such courts both the confidence of those persons who are brought before them, and the respect of the public at large; and they thereby become actual substitutes for military force, which, till then, had been the chief support of judges. Those same forms and professional regulations are moreover useful to give uniformity to the proceedings of the lawyers and of the courts of law, and to ensure constancy and steadiness to the rules which they set down among themselves. And if the whole system of the refinements we mention continue to subsist in very remote ages, it is in great measure owing (not to mention other causes) to their having so coalesced with the essential parts of the law as to make danger, or at least great difficulties, be apprehended from a separation; and they may, in that respect, be compared with a scaffolding used in the raising of a house, which, though only intended to set the materials and support the builders, happens to be suffered for a long time to stand, because it is thought the removal of it might endanger the building.
Very singular law formalities and refined practices, of the kind here alluded to, had been contrived by the first jurisconsults in Rome, with a view to amplify the rules set down in the laws of the Twelve Tables ; which, being few, and engraven on brass, everybody could know as well as they : it even was a general custom to give those laws to children to learn, as we are informed by Cicero.
Very accurate definitions, as well as distinct branches of cases and actions, were contrived by the first Roman jurisconsults; and when a man had once made his election of that peculiar kind of action by which he chose to pursue his claim, it became out of his power to alter it. Settled forms of words, called actiones legis, were moreover contrived, which men must absolutely use to set forth their demands. The party himself was to recite the appointed words before the prætor; and should he unfortunately happen to miss or add a single word, so as to seem to alter his real case or demand, he lost his suit thereby. To this an allusion is made by Cicero, when he says, “ We have a civil law so constituted, that a man becomes nonsuited who has not proceeded in the manner he should have done."* An observation of the like nature is also to be found in Quintilian, whose expressions on the subject are as follows:-“There is besides another danger; for if but one word has been mistaken, we are to be considered as having failed in every point of our suit.”+ Similar solemnities and appropriated forms of words were moreover necessary to introduce the reciprocal answers and replies of the parties, to require and accept sureties, to produce witnesses, &c.
Of the above actiones legis, the Roman jurisconsults and pontiffs had carefully kept the exclusive knowledge to them. selves, as well as of those days on which religion did not allow courts of law to sit. I Cn. Flavius, secretary to Appius Claudius, having happened to divulge the secret of those momentous forms (an act for which he was afterwards pre
* Ita jus civile habemus constitutem, ut causâ cadat is qui non quemadmodum oportet egerit. De Invent. II. 19.
+ Est etiam periculosum, quum, si uno verbo sit erratum totá causá cecidisse videamur. Inst. Orat. VII. 3.
I Dies fasti et nefasti.
ferred by the people) jurisconsults contrived fresh ones, which they began to keep written with secret ciphers: but a member of their own body again betrayed them, and the new collection which he published was called Jus Ælianum, from his name (Sex Ælius), in the same manner as the former collection had been called Jus Flavianum. However, it does not seem that the influence of lawyers became much abridged by those two collections : besides written information of that sort, practice is also necessary: and the public collections we mention, like the many books that have been published on the English law, could hardly enable a man to become a lawyer, at least sufficiently so as to conduct a lawsuit. *
Modern civilians have been at uncommon pains to find out and produce the ancient formulæ we mention; in which they have really had great success. Old comic writers, such as Plautus and Terence, have supplied them with several ; the settled words, for instance, used to claim the property of a slave, frequently occur in their works.T
* The Roman jurisconsults had extended their skill to objects of voluntary jurisdiction as well as those of contentious jurisdiction, and had devised peculiar formalities, forms of words, distinctions, and defini. tions, in regard to obligations between man and man, stipulations, donations, spousals, and especially last wills, in all which they had displayed surprising nicety, refinement, accuracy, and strictness. The English lawyers have not bestowed so much pains on the objects of voluntary jurisdiction, nor anything like it.
of The words addressed to the plaintiff, by the person sued, when the latter made his appearance on the day for which he had been compelled to give sureties, were as follow, and are alluded to by Plaut. Curcul. I. 3. v. 5:-“Where art thou who hast obliged me to give sureties? Where art thou who summonedst me? Here I stand before thee: do thyself stand before me.” To which the plaintiff made answer, “Here I am.” The defendant replied, “What dost thou say?" The plaintiff answered, “I say (Aio)”-and then followed the form of words by which he chose to express his action : Ubi tu es, qui me vadatus es ? Ubi tu es, qui me citásti? Ecce ego me tibi sisto; tu contra et te mihi siste, &c.
If the action, for instance, was brought on account of goods stolen, the settled penalty (or damages) for which was the restitution of twice the value, the words to be used were, AIO decem aureos mihi furto tuo abesse, teque eo nomine viginti aureos mihi dare oportere. For work done, such as cleaning of clothes, &c.-A10 te mihi tritici modium, de quo inter nos convenit ob polita vestimenta tua, dare oportere For recovering