34
The Constitution’s Deep Roots
pass such Acts into disuse.’’ Otis repeated this argument in his formal
treatise Rights of the British Colonists Asserted and Proved (1764), which contended that parliamentary supremacy was limited by the English Constitution and ‘‘the laws of God,’’ and that taxation without representation
was therefore unconstitutional.
‘‘There is no jewel in the world comparable to learning,’’ wrote Coke,
and ‘‘no learning so excellent both for prince and subject as knowledge
of laws; and no knowledge of any laws (I speak of human) so necessary
for all [social classes] and for all causes concerning goods, lands, or life,
as the common laws of England.’’ The common law that Coke so greatly
admired had evolved over the centuries as a body of legal principles for
determining the rights and duties of individuals respecting their personal security and property. It was judge-made law, developed not by
parliamentary statutes or royal edicts of the King but by the King’s judges,
through the accumulation of judicial decisions. The American system of
property and contract law, to cite just two examples, may be traced back
to general rules based on common sense, habit, and custom that gradually evolved in the English courts. Sir Matthew Hale, an eminent English
judge of the seventeenth century, boasted that the common law was superior to other legal systems because it is ‘‘not the product of the wisdom
of some one man, or society of men, in any one age; but of the wisdom,
counsel, experience, and observation, of many ages of wise and observing men.’’
The different system of jurisprudence called civil law (or Roman law),
on the other hand, is derived from legislative enactment. It was based
originally upon the system of laws administered in the Roman Empire,
particularly as set forth in the compilation of the Emperor Justinian a.d.
529. The jurisprudence of continental Europe, Latin America, and many
other parts of the free world is based upon the civil law. The ecclesiastical
and administrative courts of England, including the infamous Court of
Star Chamber, also applied the civil law, which relied upon different
rules of evidence and tried cases before a judge without a jury. The legal
system of the State of Louisiana is also based in part on the civil law because of the influence of the French in that region before Louisiana became a part of the United States. In 1804 Napoleon Bonaparte, Emperor