REPORT ON CIVIL AND COMMON LAW. IN SENATE, February 27, 1850. THE Committee on the Judiciary, to whom was referred the petition of certain members of the bar of San Francisco, beg leave Respectfully to Report, That they have had the same under consideration, and have given the subject, of which it treats, that serious attention which its magnitude seems to demand. The petition, praying, as it does, that the Legislature will retain, in its substantial elements, the system of the Civil Law, distinctly presents the alternative of the adoption of the Common, or of the Civil Law, as the basis of the present and future Jurisprudence of this State. A choice between these two different, and in many respects conflicting systems, devolves upon this Legislature; and, we think, we do not over-estimate the importance of the subject, in expressing our conviction, that this choice is the most grave and serious duty which the present Legislature will be called upon to perform. It is, in truth, nothing less than laying the foundation of a system of Laws, which, if adapted to the wants and wishes of the People, will, in all probability, endure through generations to come, which will control the business transactions of a great community,-which will direct and guide millions of human beings in their personal relations,-protect them in the enjoyment of liberty and property,-guard them through life, and dispose of their estates after death. Actuated by these considerations, your Committee have felt it their duty to submit to the Senate a more full and detailed Report upon the matter referred to them, than they should otherwise have felt themselves justified in doing. The petition sets out with a description of the gentlemen, whose signatures are affixed to it, as "practising members of the Bar of San Francisco." Your Committee is of the opinion that the judgment of intelligent members of the legal profession upon this subject, is entitled to great weight, and should not be lightly disregarded. We are aware, that it is a somewhat popular doctrine, that, in matters of Law and Legislation, the crude notions of any man, who is not a lawyer, are entitled to higher consideration than the reflection and ripe experience of the most profound jurist. According to this creed that magic power, "good common sense," as it is termed, inspires every man who may [588] Report on Civil and Common Law. happen to be possessed of it, instinctively, and without investigation or study, with a thorough knowledge of an abstruse and difficult science. In short, reduced to its simplest terms, and traced through its legitimate consequences, the proposition is, that the man who is entirely ignorant of a multifarious subject, is more competent to form a just and correct judgment concerning it, than the man who has made it the business of his life to comprehend it in theory and understand it in its minute and practical details. From all such doctrine we respectfully dissent. We hold to the opinion, unpopular though it may be, that a person is best qualified to judge of the matter upon which he has bestowed most examination, and to which he has devoted most study and reflection. We hold that a carpenter may reasonably be expected to build a better house than a tailor, and a tailor stitch a coat more neatly than a house joiner; that a machinist may construct a steam-engine, arrange and adapt its complicated parts, and set them in harmonious motion, with more facility and greater success, than a shoemaker. We even think that an experienced surgeon may amputate an arm or a leg, with as little pain to the patient, and with as much safety to his life, as a wood sawyer; and that a well read and skilful physician may be able to counteract and remove the various "ills that flesh is heir to," as quickly and adroitly as a farrier, or even a quack doctor. And, for the same reasons, we do honestly maintain that a member of the Bar,-who has been educated to the profession which he practises,-who has made law his study and engrossing occupation,-who has bestowed upon it the "viginti annorum lucubrationes," — made it the subject of his reflections by day, and of his meditations by night,-traced it through all its ramifications and mysteries,―gloried in its excellence, and regretted its defects,-is quite as competent to form a sound and correct judgment in respect to the wisdom or impropriety of its particular provisions, as well as the beauty or deformity of the whole, as if he had been educated behind the counter, or brought up at the anvil or the plough. We think, therefore, that the enlightened opinions of the legal profession, when fairly expressed, should go far towards inducing conviction of the policy, or impolicy, of establishing, abrogating, or modifying, a system of laws; and if the petition under consideration be in unison with the settled convictions and real wishes of a large proportion of the practising members of the Bar in this State, we should feel bound to accord to it a very respectful deference. For the purpose, then, of determining to what extent your Committee ought to consider the memorial as an expression of the sentiments of the Bar, we have taken some pains to ascertain the reasons why this petition happens to be laid before the Senate at the present time. From inquiries made by us, we have learned that, a short time since, a meeting of the members of the Bar of San Francisco was held, for the purpose of taking into consideration the subject of the adoption of the Common, or of the Civil Law, as the substratum of the legal system of the State. We have further learned, that such meeting Report on Civil and Common Law. was attended by a large portion of the members of the legal profession of that city; that it was adjourned once or twice, in order to enable all to express their predilections; and that, after a somewhat protracted discussion, in which some of the most distinguished of the petitioners took part, resolutions were almost unanimously passed, recommending the Common Law, and requesting the Legislature to adopt it. We understand that these resolutions are now before the Assembly. There are, according to the best information and judgment of your Committee, not less than one hundred practising lawyers at San Francisco. The names of but eighteen persons are signed to this petition; and thus, the Civil Law comes recommended by less than one fifth of the profession at that place. Your Committee would further suggest that, in their opinion, the disparity existing between the number of those whose choice would be the Civil Law, and of those whose partialities are in favor of the Common Law, is not greater in that portion of the profession practising at San Francisco, than it is throughout the residue of the State. If, therefore, the question is to be affected in any way by the known and expressed wishes of that profession to which the petitioners claim to belong, it must be in favor of the Common rather than of the Civil Law. We will now proceed to the more immediate examination of the matter of the petition. But before entering upon the subject in detail, we would premise, that no one for a moment entertains the idea of establishing in California the whole body of either the Common or the Civil Law. There are, in each, principles and doctrines, political, civil, and criminal, which are repugnant to American feelings, and inconsistent with American institutions. Neither the one nor the other has ever been, or ever can be, unqualifiedly adopted by any one of the United States. Thus, in Louisiana, where the Civil Law prevails, and in the rest of the States, in which the Common Law is recognized, great and radical additions, retrenchments, and alterations, have been made in the particular system which each has taken as the foundation of its jurisprudence. The Constitution of the United States swept away at once the entire political organization as well of the Common as of the Civil Law. The several State Constitutions make still further inroads, not only into the political, but also into the civil and criminal departments of both systems; and the statute law of each State eradicates many harsh doctrines, and abolishes many oppressive and tyrannical provisions, and in their place substitutes positive rules of action, milder and more enlightened in their nature, more applicable to our political organization, and more congenial with the cultivated feelings and liberal institutions of our people. But still the great body of each system remains untouched. Such is the wonderful complexity of human affairs—a complexity which must always increase more and more in proportion to the advance of commerce, of civilization, and of refinement-that of the immense multitude Report on Civil and Common Law. of questions which are brought before courts for adjudication, but very few arise under, or are dependent upon, or can be controlled by, Constitutions or express statutory laws. Examine the reports of the different States, Louisiana amongst the rest, and it will be found that a precise rule has been laid down by statute for scarcely a tithe of the cases which the Courts have been called upon to decide; and it would be a futile attempt to provide, in advance, for every contingency which may occur. We know it to be a favorite theme of some men, that the entire laws of a community, regulating every variety of business, and defining and providing the penalty for every grade of crime, may be, and ought to be, reduced within the compass of a common sized spelling-book-so that every man might become his own lawyer and judge-so that the farmer, the artisan, the merchant, with this "vade mecum" in his pocket, at the plough, in the workshop, or in the counting-house, might be enabled, at a moment's warning, to open its leaves and point directly to the very page, section, and line, which would elucidate the darkest case, solve the most abstruse legal problem, clearly define his rights, and prescribe the exact remedy for his wrongs. It is scarcely necessary to say that all such notions are but the chimeras of ignorance and folly, or the fancies of a spirit more reprehensible and more to be deprecated than ignorance and folly conjoined. The features and forms of men are not more diverse than their minds-and their business transactions are as ever-varying as their mental and moral characters. One man views the same object, whether physical, or moral, or legal, in a different light from another-no two men ever do the same thing in precisely the same way-perhaps no two cases ever arose without a shade of difference between them; and until you can cast the forms and features of all men in the same mould, reduce the operations of their minds to the same uniform level, and endow each individual with the same moral sense and the same intellectual faculties, you may expect nothing less than diversity in their modes of business, in their bargains and sales, their contracts, conveyances, and testaments, and their manifold devices for the perpetration of fraud and of crime. To undertake, by statute or by code, to establish a just and accurate rule for every contingency of human avarice and of human passions, and for all the endless phases of varied life, is to essay a task which never yet was accomplished-a task which, until the Almighty shall change the nature and attributes of man, must for ever remain equally impracticable and absurd. In truth, all the provisions of constitutions, and statutes, and codes, are but pebbles on the sea-shore-the vast ocean of legal science lies beyond. The most, therefore, that can be expected from the present Legislature is, to set the machinery of government in operation in all its departments, establish a system of pleadings and practice, enact certain statutes providing for the most common cases of judicial investigation; and for the rest, resort to one of the two great repositories of legal learning, the Common or the Civil Law. The question naturally presents itself here, What is the Common Law? Report on Civil and Common Law. what the Civil Law? and what the distinction between them? The several divisions of this question we shall now proceed to answer in their order. The Common Law is that system of jurisprudence which, deducing its origin from the traditionary customs and simple laws of the Saxons, becoming blended with many of the customs and laws of the Normans, enriched with the most valuable portions of the Civil Law, modified and enlarged by numerous Acts of the English Parliament, smoothed in its asperities and moulded into shape by a succession of as learned and wise and sagacious intellects as the world ever saw, has grown up, during the lapse of centuries, under the reformed religion and enlightened philosophy and literature of England, and has come down to us, amended and improved by American Legislation, and adapted to the republican principles and energetic character of the American people. To that system the world is indebted for whatever it enjoys of free government, of political and religious liberty, of untrammelled legislation, and unbought administration of justice. To that system do we now owe the institution of trial by jury, and the privileges of the writ of Habeas Corpus, both equally unknown in the Civil Law. Under that system all the great branches of human industry— agriculture, commerce, and manufactures-enjoy equal protection and equal favor; and under that, less than under any scheme ever devised by the wisdom of man, has personal liberty been subject to the restrictions and assaults of prerogative and arbitrary power. The Civil Law, on the other hand, is that system which, based upon the crude laws of a rough, fierce people, whose passion was war, and whose lust, conquest-received, in its progress through the various stages of civilization from barbarism to refinement, a variety of additions and alterations, from the Plebiscita of the Roman Plebeians, from the Senatus-consulta of the Roman Senate, from the decrees of Consuls and Tribunes, from the adjudications of prætors, from the responses of men learned in the laws, and from the edicts and rescripts of the tyrants of Rome, until, in the early ages of Christianity, the whole chaotic mass was, by the order and under the patronage of the Emperor Justinian, systematized, reduced into form, and promulgated for observance by the Roman people, in the shape of four books called the Institutes, fifty books known as the Pandects, and certain additional edicts designated as the Novels of Justinian. Thereafter, and until the final downfall of the Eastern Empire of Rome, the Justinian code furnished the guide for legal tribunals throughout the provinces subject to the Imperial sway, in all cases political, civil, and criminal, except so far as particular decisions were commanded, annulled, or modified by the will of despotic power. But, as, century after century, wave upon wave of Northern barbarism poured down on the effeminacy of Southern Europe, sparing in its course neither the intellectual nor the material monuments of civilization, the administration of Roman law was, city after city, and province after province, gradually obliterated, at the same time, and to the same extent, that Roman power was crushed, and Roman institutions demolished. The whole |