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THE GREEN BAG
and the development of a settled practice that English equity came to be a regular part of the English law. "There was, however, one important his torical difference, between the two movements. The development of the Roman praetorian law not only made Roman law more equitable, but it also introduced into that law the com mercial customs of the Mediterranean — cus toms which apparently date back in part to the Babylonian Empire. A similar reception of European commercial law took place in England, but here it came later, after the development of equity and chiefly through the action of the common law courts. In both cases, however, as Goldschmidt has pointed out, commercial law was not brought in as a distinct and separate system, as in the modern continental European states; the English law was commercialized by decisions of the com mon law courts, largely rendered in the eighteenth century, just as the Roman law had been commercialized by the praetorian edict in the'second and first centuries B.C." Under the Empire the courts were brought into substantially the same form as those of the civil law to-day. The use of juries ceased and codification began. "This change, however, was not the result of a progressive evolution; it was a symptom of degeneration. Judicial decisions ceased to be regarded because jurisprudence had sunk to so low an ebb that the decisions were not worth regarding." The author closes with a plea for this method of comparative study. "Furnished with a knowledge of the Ro man law and of its development, the English investigator will more accurately gauge by comparison the excellencies and the defects of the English law. He may not find that the Roman law is more scientific — a statement which I take to mean that its broader gener alizations are thought to be more correct — but he will certainly find that the Roman law is more artistic. The sense of relation, of proportion, of harmony, which the Greeks possessed and which they utilized in shaping matter into forms of beauty, the Romans pos sessed also, but the material in which they wrought was the whole social life of man. There was profound self-knowledge in the say
ing of the Roman jurist that jurisprudence was 'the art of life.' The comparative stu dent will find also that while the English law has developed in certain directions further than the Roman, the Roman law in certain other respects had attained sixteen hundred or even two thousand years ago a develop ment which seems to go beyond ours." "Best of all, the comparative student will learn to distinguish between that which is peculiar and therefore accidental in both sys tems and that which is common to both and therefore presumably universal. It has long been the hope of some of the greatest modern jurists, both in English-speaking countries and in Europe, that by strictly inductive study it may be possible to discover a real instead of an imaginary natural law. The corresponding hope of the legal historians, that it will in time be possible to formulate the great laws that govern legal development, is not, I be lieve, an idle dream; and I am sure that the minute comparative study of Roman and Anglo-American legal developments will carry us further towards such a goal than any other possible comparison." THE theory of the fundamental similarity of the Roman and the English systems of law, at like stages of civilization, which is the inspiration of Professor Smith's article, is also suggested by an essay on "Law in the Louisi ana Purchase" in the Yale Law Journal for December (Vol. xiv., p. 77) by William Wirt Howe. It is mainly an historical summary beginning with the extension of the "custom of Paris" by royal edicts in the charters of early explorers and settlers, and then taking up the establishment under Spanish dominion of the codes based on the Siete Partidas. These two sources were at bottom alike, since based on the Roman system. Then came the control of the United States, which respected, however, existing municipal law. "But Louisiana did not become in all re spects a civil law state. She has a composite system. In criminal matters as we have seen, she has adopted the theories of the common law. In commercial matters, having no code of commerce, her supreme court has long ago held that the law merchant of England and the other states of the Union should be for
