In the Common Law was the spirit of liberty; in that of the Continent
the spirit of science. The Common Law has given to the world trial by
jury, _habeas corpus_, parliamentary representation, the rules and
orders of debate, and that benign principle which pronounces that
its air is too pure for a slave to breathe,--perhaps the five most
important political establishments of modern times. From the Continent
proceeded the important impulse to the systematic study, arrangement,
and development of the law,--also the example of Law Schools and of
Codes.
Story was bred in the Common Law; but while admiring its vital
principles of freedom, he felt how much it would gain from science,
and from other systems of jurisprudence. In his later labors he never
forgot this object; and under his hands we behold the development of a
study until him little known or regarded,--the science of _Comparative
Jurisprudence_, kindred to those other departments of knowledge which
exhibit the relations of the human family, and showing that amidst
diversity there is unity.
I need not add that he emulated the law schools of the Continent,--as
"ever witness for him" this seat of learning.
On more than one occasion, he urged, with conclusive force, the
importance of reducing the unwritten law to the certainty of a code,
compiling and bringing into one body fragments now scattered in all
directions, through the pages of many thousand volumes.[170] His views
on this subject, while differing from those of John Locke and Jeremy
Bentham,--both of whom supposed themselves able to clothe a people in
a new code, as in fresh garments,--are in substantial harmony with
the conclusions now adopted by the jurists of Continental Europe,
and not unlike those of an earlier age having the authority of Bacon
and Leibnitz, the two greatest intellects ever applied to topics of
jurisprudence in modern times.[171]
[170] Encyclopædia Americana, article _Law, Legislation, Codes_,
Appendix to Vol. VII. pp. 576-592. Report of the Commissioners of
Massachusetts on the Codification of the Common Law. American Jurist,
Vol. XVII. p. 17.
[171] Bacon, Offer to King James of a Digest to be made of the Laws of
England: Works, Vol. II. p. 548, 4to ed. Leibnitz, Ratio Corporis Juris
reconcinnandi; Epist. XV., ad Kestnerum: Opera, Tom. IV. Pars iii. pp.
235, 269.
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