THE HISTORY OF COMPARATIVE LAW * ^COMPARATIVE law, as ...

THE HISTORY OF COMPARATIVE LAW 1063
attempted to bring the French jurist into contact with and to give
him an understanding of the modern development of foreign law.
However, neither these works nor most articles in Foelix's periodical
were comparative in the strict sense.
While in the English cases of the i8oo's the influence of civil
law is much less marked ^^° than in the previous generation under
Lord Mansfield, nevertheless, legal scholars continued to direct
their attention toward it. But the object of study was the classical
Roman law rather than the modern continental laws.^^" On
the other hand, the analytical jurists made an extensive use of the
civil law. Bentham, whose knowledge of foreign laws was neither
comprehensive nor profound, borrowed many illustrations for his
proposals from them,^" and Austin who was very well trained in
modern Roman law based his principles and conceptions to a
large extent on civil law doctrines.^^^ Yet, on the whole, it would
followed by two others of the same character; namely. CONCORDANCE ENTRE LES
CODES DE COMMERCE ET LE CODE DE COMMERCE FRANQAIS (1844), and CONCORDANCE
ENTRE LES Lois HYPOTHECAIRES ^TRANGERES ET FRANQAISES (1847). These collections
of statutes and codes were highly praised as a source of comparative material
by Mittermaier. See (1844) 16 KRITISCHE ZEITSCHRIFT FUR RECHTSWISSENSCHAFT
UND GESETZGEBUNG DES AuSLANDES 174.
1^5 The English courts, while not recognizing the Roman law as authority,
still take it into consideration in cases where English authorities have not been
found in point or where the principles of both English and Roman law appear
to be similar. " The Roman Law forms no rule binding in itself upon the subjects
of these realms; but in deciding a case upon principle, where no direct authority
can be cited from our books, it affords no small evidence of the soundness of the
conclusion to which we have come, if it proves to be supported by that law, the
fruit of the researches of the most learned men, the collective wisdom of ages,
and the groundwork of the municipal law of most of the countries in Europe."
Acton V. Blundell, 12 M. & W. 324, 353 (1843).
I''" See, e.g.. WOOD, NEW INSTITUTE OP THE IMPERIAL OR CIVIL LAW (4th ed.
1730); IRVING, AN INTRODUCTION TO THE STUDY OF THE CIVIL LAW (4th ed. 1837);
SPENCE, INQUIRY INTO THE ORIGIN OF THE LAWS AND INSTITUTIONS OF MODERN
EUROPE (1826); HALIFAX, AN ANALYSIS OF THE ROMAN CIVIL LAW COMPARED WITH
THE LAWS OF ENGLAND (Geldart ed. 1836). In a lengthy preface the author follows
Blackstone's Introduction to his Commentaries, and discusses the value of the study
of civil law. These works usually are introductions to or outlines of courses on civil
law and they do not have any considerable scientific value.
i''^ See, e.g., BENTHAM, THEORY OF LEGISLATION (translated from the French of
Etianne Dumont sth ed. 1887) 71, 74, 84, 119, 163, 169, 201, 213, 214, 229, 286,
3S3J 369, 382, 389; I BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS
AND LEGISLATION (1823) 24, 175, 260; 2 id. 94, 103, 178, 218, 273, 274.
^°s See AUSTIN, LECTURES ON JURISPRUDENCE OR THE PHILOSOPHY OF POSITIVE
LAW (1832). Cf. an interesting review by Zachariae in (1833) s KRITISCHE ZEIT-