登陆注册
15752600000010

第10章

Yet the moment the judgment has been rendered and reported, weslide unconsciously or unavowedly into a new language and a newtrain of thought. We now admit that the new decision has modifiedthe law. The rules applicable have, to use the very inaccurateexpression sometimes employed, become more elastic. In fact theyhave been changed. A clear addition has been made to theprecedents, and the canon of law elicited by comparing theprecedents is not the same with that which would have beenobtained if the series of cases had been curtailed by a singleexample. The fact that the old rule has been repealed, and that anew one has replaced it, eludes us, because we are not in thehabit of throwing into precise language the legal formulas whichwe derive from the precedents, so that a change in their tenor isnot easily detected unless it is violent and glaring. I shall notnow pause to consider at length the causes which have led Englishlawyers to acquiesce in these curious anomalies. Probably it willbe found that originally it was the received doctrine thatsomewhere, in nubibus or in gremio magistratuum, there existed acomplete, coherent, symmetrical body of English law, of anamplitude sufficient to furnish principles which would apply toany conceivable combination of circumstances. The theory was atfirst much more thoroughly believed in than it is now, and indeedit may have had a better foundation. The judges of the thirteenthcentury may have really had at their command a mine of lawunrevealed to the bar and to the lay-public, for there is somereason for suspecting that in secret they borrowed freely, thoughnot always wisely, from current compendia of the Roman and Canonlaws. But that storehouse was closed so soon as the pointsdecided at Westminster Hall became numerous enough to supply abasis for a substantive system of jurisprudence; and now forcenturies English practitioner have so expressed themselves as toconvey the paradoxical proposition that, except by Equity andStatute law, nothing has been added to the basis since it wasfirst constituted. We do not admit that our tribunals legislate;we imply that they have never legislated; and yet we maintainthat the rules of the English common law, with some assistancefrom the Court of Chancery and from Parliament, are coextensivewith the complicated interests of modern society.

A body of law bearing a very close and very instructiveresemblance to our case-law in those particulars which I havenoticed, was known to the Romans under the name of the ResponsaPrudentum, the "answers of the learned in the law." The form ofthese Responses varied a good deal at different periods of theRoman jurisprudence, but throughout its whole course theyconsisted of explanatory glosses on authoritative writtendocuments, and at first they were exclusively collections ofopinions interpretative of the Twelve Tables. As with us, alllegal language adjusted itself to the assumption that the text ofthe old Code remained unchanged. There was the express rule. Itoverrode all glosses and comments, and no one openly admittedthat any interpretation of it, however eminent the interpreter,was safe from revision on appeal to the venerable texts. Yet inpoint of fact, Books of Responses bearing the names of leadingjurisconsults obtained an authority at least equal to that of ourreported cases, and constantly modified, extended, limited orpractically overruled the provisions of the Decemviral law. Theauthors of the new jurisprudence during the whole progress of itsformation professed the most sedulous respect for the letter ofthe Code. They were merely explaining it, deciphering it,bringing out its full meaning; but then, in the result, bypiecing texts together, by adjusting the law to states of factwhich actually presented themselves and by speculating on itspossible application to others which might occur, by introducingprinciples of interpretation derived from the exegesis of otherwritten documents which fell under their observation, they educeda vast variety of canons which had never been dreamed of by thecompilers of the Twelve Tables and which were in truth rarely ornever to be found there. All these treatises of the jurisconsultsclaimed respect on the ground of their assumed conformity withthe Code, but their comparative authority depended on thereputation of the particular jurisconsults who gave them to theworld. Any name of universally acknowledged greatness clothed aBook of responses with a binding force hardly less than thatwhich belonged to enactments of the legislature; and such a bookin its turn constituted a new foundation on which a further bodyof jurisprudence might rest. The responses of the early lawyerswere not however published, in the modern sense, by their author.

They were recorded and edited by his pupils, and were nottherefore in all probability arranged according to any scheme ofclassification. The part of the students in these publicationsmust be carefully noted, because the service they rendered totheir teacher seems to have been generally repaid by his sedulousattention to the pupils' education. The educational treatisescalled Institutes or Commentaries, which are a later fruit of theduty then recognised, are among the most remarkable features ofthe Roman system. It was apparently in these Institutional works,and not in the books intended for trained lawyers, that thejurisconsults gave to the public their classifications and theirproposals for modifying and improving the technical phraseology.

同类推荐
  • 洞真上清龙飞九道尺素隐诀

    洞真上清龙飞九道尺素隐诀

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • 羽族单

    羽族单

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • 唐享太庙乐章·凯安

    唐享太庙乐章·凯安

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • 辨证录

    辨证录

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • 兵典

    兵典

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
热门推荐
  • 非常道:突破困境的另类法门

    非常道:突破困境的另类法门

    本书以大量的实例和故事,向人们提示应走出思维定式,摆脱惯常思维,以不同的思维去处理事情,才能走出困境,解决矛盾乃至取得成功。
  • 一屋两鬼三人行

    一屋两鬼三人行

    学校里优秀全能的高材生归璃,所经之处却是花凋草谢,黑雾笼罩……见者避三分,神秘之极。<;br>;风云学生肖西仁、夏智桕,要长相有长相、要家财有家财、要智慧有智慧、青春年少,正是意气风发之时,可是天有不测风云。<;br>;某日,身为校长也身为两大风云学生干爹的明泽要求二人将成绩赶上学校NO.1归璃。于是一屋两鬼三人行的故事正式开始,而诡异事件也陆续发生……<;br>;本故事情节轻松,略有EG,但笑中带泪,希望能让人笑着流泪……
  • 图解宝宝常见病预防与治疗

    图解宝宝常见病预防与治疗

    本书讲述了掌握预防、发现和护理、治疗宝宝常见病症、突发疾病及心理异常等方面的知识,懂得通过饮食采调理宝宝,学会为宝宝按摩推拿,所有的这一切都是爸爸妈妈们应该做到的。
  • 剑神回归

    剑神回归

    万年前,一人称霸,剑神大陆,无人能挡万年后,且看一少年如何,强势回归,他又会有怎样的坎坷之路呢?
  • 黄檗山断际禅师传心法要

    黄檗山断际禅师传心法要

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • 狩猎者战斗吧

    狩猎者战斗吧

    六界大乱,魔界一统六界,神界已经灭亡,无意中做任务的时候发现了一个白发男人,救回去才知道是神界逃出的人。这个男人真的很奇怪啊,竟然没有说过一句话。魔界步步紧逼人界,一件又一件翻天覆地的阴谋出现了.....
  • 诸子百家之道术巅峰

    诸子百家之道术巅峰

    文化初始,无数的奇人异事追逐仙道,留下道统,先秦时期,诸子百家,争相竞艳,历史的滚滚车轮滚过,这些玄而又玄的流派学说非但没有没落,在千年之后又大放异彩。李玄,道家的一位惊才艳艳的弟子,遵循先祖的意志,破碎虚空,达到一个先所未有的高度。
  • 重生:三生缘

    重生:三生缘

    上一世他们在万古大陆爱得纠缠却又遗憾,错过前世,今生又相逢,冥冥之中一切早已注定。不论是谁,是否能逃过命运的掌心。
  • 随风而逝

    随风而逝

    一个渐成大龄的80后女孩,带着一颗矛盾的心努力而认真的生活,这里有爱、有心情、有故事。
  • 双棍复仇

    双棍复仇

    一个村庄名叫桃园村庄一个哥妹俩出去玩被一个武功高强的人到时带走令他们俩去一个地方送他们俩一人一个棍子回家的时候全村人全部死了然后他们长途跋涉走了结果那个高人又出现给他们俩送到蜀山然后哥妹长大了俩有了高强武功有了互相爱的人哥妹俩调查凶手复仇…………………………