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 MAN LAW IN ENGLISH 
 JURISPRUDENCE. 
 
 A 'J^ H K S I S 
 
 l-'.>lt TIIK 
 
 Degree of Doctor of Civil LanK 
 
 IN «'OlhSK, IN 
 
 McGILL UNIVERSITY. 
 
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 JOHN .1. MACLAKEN, M.A., B.C.L. 
 
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 1888. 
 

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EOMAN LAW IN ENGLISH 
 JUEISPEUDENCE. 
 
 There is no history of the Roman law in England. The 
 writers of the history of the Ent^lish law have, as a rule, devoted 
 but little attention to this branch of their subject. Various 
 causes have combined to bring about this result. The majority 
 of them, like most English lawyers, have had but an imperfect 
 acquaintance with the civil law. Many of them have been un- 
 duly influenced by the prejudices of their countrymen, which, 
 at different periods and at certain important epochs in the his- 
 tory of the country, have been unreasonably strong against the 
 Roman law and its principles. This prejudice has been so great 
 that it has prevented some of the most distinguished writers on 
 English law from even acquiring a fair knowledge of the 
 Roman law. It is not a thing unknown to find, even in authors 
 of high repute, depreciatory remarks about the civil law, in 
 close relation to words of praise for some principles of the com- 
 mon law supposed to be indigenous to that system, when even 
 a superficial knowledge of the Roman law would have revealed 
 the fact that the principles in (juestion had been taken bodily 
 from that source. The fact alone that tliey came from Rome 
 has been often sufficient to excite antipathy to them, on both 
 national and religious grounds. 
 
 It was not to be expected that the study of the civil law 
 would have been pursued as diligently in England as in those 
 continental countries whose jurisprudence is almost solely de- 
 rived from it, and where it is recognized as a primary authority ; 
 but it is not complimentary to English legal learning to be com- 
 pelled to acknowledge the fact, that wc are indebted quite as 
 
 sork'f o 
 
much to tlie rescarelies of (itTnian scholars as to those of EnjLf. 
 land for our ])reHent knowlcdnjc on the subject of this pajter 
 Tlie names of Savi<,'ny, Oiitorbock, liicner, and Wenck, an* 
 deserving of special mention in this connection. 
 
 The majorit}' of Enj^lish legal authors and judges have failed 
 to properly appreciate or acknowledge the merits of that law, 
 which, as a distinguished C'hief Justice of Kngland has sai<l,* is 
 "the fruit of the researches of the most learned men, and the 
 collective wisdom of ages." To this, it must be confessed, there 
 are some notable exceptions. We are told by Burnett, in his 
 Life of Sir Matthew Hale, that the latter "set himself to the 
 .study of llomarj law, and he often said that the true grounds of 
 reasons of law were so well delivered in the Digest, that a man 
 could never understand law as a science so well as by seeking- 
 it there, and therefore he lamented that it was so little .studied 
 in England." Another brilliant Chief Justice of Ennrland, who 
 turned his intimate knowlediie of the civil law to jjood account 
 by evolving from its principles the .synunetrical .system of mer- 
 cantile law which we possess at the present day, and sub- 
 stituting it for the chaotic mass of conflicting principles which 
 prevailed before his time, saj's of the Roman law : "It is ad- 
 mirably calculated to furnish the minds of youth with univer- 
 sal and leading notions relating to natural and positive, to 
 written and unwritten, law ; it instructs them in the various 
 rights of persons, whether in a natural or civil capacity ; the 
 origin and rights of property ; the grounds and reasons of 
 testamentary and legal succession ; the obligations ari.sing from 
 proper and improper contracts ; the several species of civil in- 
 juries and crimes, together with the means of applying for and 
 obtaining redress, and of bringing the guilty to condign punish- 
 ment." America has also paid a fitting tribute to the same 
 wonderful system, through the leading commentator on its law. 
 Chanc.dlor Kent, who sa^'s.-f " The rights of absolute and 
 usufructuary property, and the various ways by which property 
 may be acquired, enlarged, transferred and lost, and the inci- 
 
 • Tindal, C. J., Adon v. Jilumklf, 12 Mecsou & WelsUy'e Reports, p. .V).3. 
 t Commentaries, Vol. I., Lecture XXIII. 
 
dents aiul accutninodations which t'uirly belonj^ to property, are 
 admirably disciLssed in the Roiaan hiw, an<l the most refined 
 and e<|uitable distinctions are establinhed and vindicated. 
 Trusts are settled and pursued through all their numerous 
 inoditications and complicated dei>ail8 in the most rational and 
 equitable manner. So the rights and duties Howing from per- 
 sonal contracts, express and implied, and under the infinite 
 variety of shapes which they assume in the business and com- 
 merce of life, are defined and illustrated with a clearness and 
 brevity without example, [n all these respects, and in many 
 others, the civil law shows the proofs of the highest cultiva- 
 tion and refinement ; and no one who perust^s it, can well avoi«l 
 the conviction that it has been the fruitful source of those 
 comprehensive views and solid principles which have been ap- 
 plied to elevate and adorn the jurisprudence of modern nations." 
 It is to another distinguished American writer that we are largely 
 inde})ted for having made known to English-speaking profes- 
 sional men on both continents, the similarity between the 
 common and civil law on very many points, and the obligation 
 of the latter to the former. Judge Story, in his admirable 
 commentarie.s, and particularly in his works on Equity Juris- 
 prudence, Partnership, Bailments and Agency, lias probably 
 done more than any other writer to popularize the civil law in 
 England and America, and to lead students to seek an acc|uaint- 
 ance with its principles. 
 
 In endeavoring to analyze the English law, or to trace it to 
 its sources, it is well to bear in mind the words of Lord 
 Bacon, who has said that "Our laws are as mixed as our 
 language, compounded of British, Roman, Saxon, Danish and 
 Norman customs; and as our language is so much the richer, 
 so the laws are the more complete." Most of the English 
 writers on the sources of our law have put forward for the 
 Saxon or common law, claims that it is believed a critical in- 
 vestigation will show not to be well founded. 
 
 The object of the present paper will be to trace the influence 
 of the Roman law in England, and to endeavor to show that it 
 has contributed to English jurisprudence some elements that 
 
() 
 
 have, in both the popular and profosHional mind, been credited 
 to other sourceH. The history of that law in England, and itH 
 introduction at different times and by different means, will 
 first be briefly sketched. Its acceptance as a direct authority 
 in a greater or less degree in special courts may next be con- 
 sidered, while those branches of the English law which are 
 more than others indebted to the Roman law may be glanced 
 at, as well as the means by which they have been incorporated 
 into the jurisprudence of England. 
 
 ROMAN OCCUPATION. 
 
 From what we know of the ancient Britons, the}' had nothing 
 that could be designated by the name of government or of law, 
 in the modern acceptation of these terms. As Sir James 
 Mackintosh has well said :* " It is vain to inquire into forms of 
 government prevalent among a people in so low a state of 
 culture. The application of the terms which denote civilized 
 institutions to the confused jumble of usages and traditions, 
 which gradually acquire some ascendency over savages, is a 
 practice full of fallacy. It is an abuse of terms to bestow the 
 name of government on such a state of society." The Romans, 
 therefore, on their conquest and occupation of the country in 
 the first century of the Christian era, had no laws or even 
 established customs to displace. They introduced a system of 
 law that seemed capable of universal application, and which 
 was admirably adapted to mould and civilize the nations which 
 they had subdued by the force of their arms. In other countries, 
 •vhere local usages had obtained some degree of consistency, 
 the Roman law at this period showed a degree of flexibility in 
 incorporating these into its own system. As Sandars says, in 
 his introduction to the Institutes : " The history of Roman law 
 is the history of the changes introduced into this law, of the 
 additions made to it, and of the method adopted in the process. 
 The notion of a body of customary law, mainly unwritten, 
 which was not abrogated, but was evaded or amplified by 
 persons acting under the ideas of later times, must be embraced 
 
 * Hiatory of England, Ch. I. 
 
clearly by any one who wishes to understand Roman law." In 
 Britain we have good reason to believe that the provincial 
 system was administered during the greater part of the four 
 centuries of Roman occupation with considerable efficiency, and 
 we have the testimony of Tacitus* to the fact that from its 
 introduction it had a refining and civilizing influence upon the 
 savage Britons. It was also during this period that all the free 
 subjects of the empire were admitted to the rights of citizen- 
 ship by Caracalla. We may also assume that, f j'r the r ason 
 above stated, the Roman law was, during tho same p3riod, 
 administered in a purer form and with greater strictness tlian 
 where the conquered nation, previous to its subjugation, he. 
 attained to some degree of civilization. Britain is also .specially 
 connected with some of the greatest names in Roman legal 
 history, and the promulgation of some important laws. Wo 
 learn from Dio Cassius, that Papinian, the most celebrated of 
 Roman jurists, filled the office of Prtetorian Prefect at York, 
 under the Emperor Severus, and it is also claimed that lie had 
 Ulpian and Paulus for his assessors. Severus, in the last year 
 of his reign (A.D. 222), promulgated at York the law by which 
 tt master might acquire property through the slave of another 
 in his bona Jide possession.-f* The law prohibiting a testator 
 from naming his son's heirs before naming his own, was due to a 
 rescript sent to Virius Luppus, the Roman governor of Britain. :J: 
 During the latter half of the Roman occupation the country 
 had the advantage not only of the earlier civil law, but also of 
 the works of the "five great luminaries of Roman jurisprudence, 
 Gaius, Papinian, Paul, Ulpian and Modcstinus." The Theodosian 
 code was published only a few years before the withdrawal of 
 the Roman legions; but there is little doubt that it had found 
 its way to Britain. Roman institutions, customs and culture 
 had taken deep root, and remained long after the withdrawal 
 of the Roman armies. Indeed, to such an extent was this the 
 case, that the British author, Gildas, writing about a century 
 after the legions had retired, speaks of Roman institutions 
 
 * Agricola, Bk. V., Ch. XXXII. 
 tCode, Lib. III., Tit. XXXII., 1. 
 i^DigMt, Lib. XXVIIL, Tit. VI., 1, §6. 
 
previiilin^ in Hritaiti to sue)) an extent that it wan called 
 ' KoMiunia." 
 
 The inriuoncc of the Chiirei) also contributed hir^cly to the 
 sanH5 result. St. Augustine and the early fathers were great 
 admirers of the civil law, and even in the Theodosian code, we 
 tind a number of laws referring municipal affairs to the bishops 
 and clergy. From the body of laws compiled in the early part 
 of the tenth century by the Welsh king, Howell l)hu, we 
 have evidence that the Britons who had been driven into Wales 
 l>y the Saxons, had retained even up to that time the impress of 
 Roman institutions and laws that had been stamped upon the 
 country more than Hve centuries before. On this subject, Mr. 
 Finlason has well said,* "The Roman system of government 
 in the provinces was one .so complete and perfect in all its parts, 
 with such an elaborate organizaticm, not only extending over 
 rvery part of the country, but entering into all the relations of 
 life and all cla.s.ses of society, that it could hardly fail to im- 
 plant its laws and institutions very deeply, even among the 
 native population ; and when to this is added the establishment 
 of colonies, the erection of municipal corporations, the operation 
 of the manorial system, an«l the effect of intermarriages in 
 blending the Roman and the British races, it is impo.ssible not 
 to see that Roman laws, institutions and ideas must have taken 
 firm root, especially as there was a uniform administration of 
 justice. Those who had been so long accustomed to the Roman 
 rule would probably, even when a.sserting their independence 
 of it, desire to preserve the laws and institutions, the advan- 
 tage of which .they had so long enjoyed ; and the voice of 
 history a.ssures us that this was so in point of fact. From 
 the.se causes it was impossible but that in the course of cen- 
 turies, during which the whole fabric of Roman society, and of 
 Roman civilization with all its laws and in.stitutions, was firmly 
 established here, those laws and institutions must have taken 
 deep root, the institutions through their being everywhere 
 planted, and the laws through their becoming incorporated 
 with the customs of the people." 
 
 * Intrmluction to Reeves' History of the English Law, p. xxxiv. 
 
MAXnV AMI DANISH IM'I.K. 
 
 On no (|ii«>sti()n ate the ftuthurities more iit vurinnce, tlum 
 as to the extent to which the hiws in force in Kn;^'hin<i 
 nt the <lftte of the Norman Con(|Ue.st had a Konian orij,);in. 
 Nearly all the leading writers claim for them a purely 
 Saxon or Norse parenta«,'e. Many of those who are prepared 
 to admit that Roman institution.s and laws had Hourished 
 and taken root under Roman rule, claim that they either 
 entirely disappeared before the wave of anarchy which swept 
 over the country, or that they were driven to the wilds of 
 Wales and ('ornwall, with the Romans and Britons who took 
 refuj^o there, where they may for a time have lingered. The 
 claim, however, put forward by Mr. Finlason, for the continu- 
 ance of the Roman law in a modified form, seems to bo stronj^ly 
 supported by the more recent investigations, and the more 
 thorough study of the Roman law, particularly in CJermany. 
 "The Saxons, therefore, did not bring any institutions or laws 
 worthy of the name with them. They brought only rude, bar- 
 barian usages, as will be seen in their written laws, which 
 t!xpres.s for the most part their own usages ; such, for instance, 
 as the ordeal. It i.s manifest that they create<l nothing civil- 
 ized. On the other hand, it i.s ecjually clear that they de- 
 stroyed nothing civili/ed ; that i.s, the^' dcstroytd no existing 
 institutions, they eradicated none of the existing laws or 
 usages in which lay so much of Roman law. They neither 
 created nor destroyed ; they adopted and appropriated, trying, 
 no doubt, to mix up their own barbarous usages, which, how- 
 ever, it was found, as will be .seen, would not coalesce or unite 
 with civilized institutions, .so that this ba.ser matter soon fell 
 off, and left the whole fabric of Romanized laws and institutions, 
 .save that the Saxons infused into the Roman institutions their 
 own rough spirit of freedom, which gave them fresh life and 
 vigor. But they did not destroy the Roman laws and institu- 
 tions. The notion that they did .so, arose from an erroneous 
 idea as to the nature of their invasion. It is ima(;ined 
 that there was a sudden and sweeping Saxon conquest, and 
 
10 
 
 huncu it is supposed that institutions entirely perishe*! and 
 •lisappeared. The conquest of the country by the Saxons was 
 a slow and gradual process, extending over five centuries, 
 and scarcely completed when the Danish invasion occurred. 
 And during that long period there was, of course, to a great 
 extent, an amalgamation between the races, and a mixture of 
 usages and laws."* Speaking on the same subject, Guizot saysr-f 
 " It follows evidently from the facts laid before you, that not 
 only in municipal institutions and laws, as Savigny has proved, 
 but in political order — in all departments of social and intellec- 
 tual life — the Roman civilization was transmitted far beyond 
 the date of the empire ; that we may everywhere discern a 
 trace of it ; that the thread is nowhere broken." And again : 
 " One is surprised that the permanence of the Roman law, af tei* 
 the fall of the empire, should ever have been doubted. Not 
 only do the barbaric laws everywhere make mention of thr 
 Roman laws, but there is scarcely a single «locument or act of 
 that epoch which does not, directly or indirectly, attest their 
 daily application." 
 
 Lord Coke, who certainly could not be accuse<l of partiality 
 towards the Roman law, was of opinion that the division of the 
 country into counties descended from Roman times, and that 
 there also was to be found the origin of the English towns, 
 cities and boroughs. He is also of opinion that the Saxon earl 
 was the .succe.s.sor of the Roman consul or pra3fect, and the 
 Saxon .shire-reeve, or .sheriff, ot the Roman vice-consul. 
 
 Sir James Mackintosh says::J: "One part of the Roman insti- 
 tutions had permanent con.sequences, of which we trace the 
 fruits at this day. This was their care in providing for the 
 government and privileges of towns. Thirty-three towns were 
 established in thi-. country with various constitutions. The 
 choice of the decurions or senators, out of whom the magis- 
 trates were taken, was left to the inhabitants. To these magis- 
 trates belonged the care of the public wor-ship, the municipal 
 
 • Inti'Oiluctiou to Reeves' History, p. xlii. 
 t Leutures on Civilization in France, XXX. 
 
 * History of England, Vol. I x 'ZTy. 
 
11 
 
 property, and the local police, together with sonic judicial 
 powers. Whatever may have been some of the consequences 
 which are attributed to the condition of these subordinate re- 
 publics, it cannot be doubted that the remembrance and the 
 remains of them contributed to the formation or preservation 
 of their elective governments, customs which were the founda- 
 tions of liberty among modern nations." 
 
 The following may be mentioned as instances of the laws in 
 force in England at the time of the Conquest, that were long 
 considered by English writers to be of Saxon origin, but which 
 later researches have either proved to have been derived from 
 Roman law, or have raised a strong presumption that such was 
 their origin. 
 
 1. Land Law. — The manorial system, under which about 
 seventy per cent, of English land was held at the date of the 
 Conquest, has been shown by Mr. Seebohm* not to have been 
 of Saxon origin, or to have sprung from free village communi- 
 ties, as generally supposed, but that it is derived in all probabi- 
 lity from the Roman system of coloni The tenure of book- 
 land was evidently either of Roman or ecclesiastical origin, and 
 the only examples of mortgages which we find in Saxon times 
 are manifestly derived from the same source. 
 
 2. Municipal and other Institutions. — To support tho 
 theory that English municipal institutions, including towns and 
 guilds, were of Roman origin, we have the high authority of 
 Sir James Mackintosh and Guizot, as well as Coote and Finla- 
 son. The fact that this position is contested by Bishop 
 Stubbs and Mr. Freeman, is sufficient to lead to some hesitatio)) 
 in adopting it ; but they may, perhaps, be said to accomplish 
 little more than to raise doubts on account of the meagre know- 
 ledge we po.ssess of the history of these institutions during 
 Saxon times. The craft guilds, at least, would seem to have 
 had their origin in the Collegia Opijicum of the Romans. 
 
 3. Wills and Donations. — It is now scarcely doubted that 
 wills were introduced wholly either from Roman or Ecclesias- 
 tical law. We learn from Tacitusf that wills were unknown 
 
 * English Village Community. t Germania, Ch. 20. 
 
12 
 
 among the ancient Germans, and it is conceded that they were 
 not introduced ainonj; the Saxons until after their invasion of 
 Britain. The same may be said of donations, as well as of all 
 charters, deeds and conveyances of land. 
 
 The constitution of the county court and the procedure, both 
 civil and criminal, includin<i' trial by jury, have also been claimed 
 to be of Roman descent, but the weijrht of evidence would seem 
 to be against such a claim. 
 
 There is no doubt but .some elements of the Roman law were 
 introduced under Edward the Confessor, but that may be better 
 considered in connection with the Norman than the Saxon 
 regi)ne. 
 
 THK NORMAN CONt^UK.ST. 
 
 The eft'ect of the Norman Conquest upon the laws of Eng- 
 land was to introduce additional Roman elements, although 
 under William and his inunediate succe.ssors this was done 
 chietly in an indirect manner. He established the Curia Regi.s, 
 or Aula llegi.s, as it was sometimes called, with its chief justi- 
 ciar, next in power and authority to the king himself, as a 
 grand central court^to supersede the Saxon county courts. In 
 this court practised a body of men who had been trained in the 
 Universities, and whose classical education had made them 
 familiar with the terms and language of the civil law. He 
 also separated the ecclesia.stical courts from the civil, and 
 thereby removed the former from the restraining influence of 
 the common law, which under Saxon rule had largely held 
 them in check. The compulsory u.se of the Norman tongue in 
 all the courts, placed the administration of the law in the hands 
 of a body of men who, as a rule, were not in sympathy with 
 the distinguishing features of Saxon lav These justices 
 were sent into the various counties where they introduced into 
 the county courts much of the procedure which had been 
 copied from the civil law, and which must have been a great 
 improvement upon the rude system which had previoasly pre- 
 vailed in these local courts. 
 
13 
 
 \ ACARIUS. 
 
 It is to be borne in niiml that the Roman occupation of 
 
 Britain had ceased a few years before the promulgation of the 
 
 laws of Rome, wliich were compiled under the auspices of 
 
 Justinian. Indeed these laws were comparatively unknown in 
 
 the Western Empire until their revival in the twelfth century, 
 
 chiefly by the teacliing of the new law school at Bologna, which 
 
 attained the highest reputation. Theobald, Archbishop of 
 
 Canterbury, aliout 1144, brought from Bologna Vacarius, one 
 
 of the professors in the university there, and appointed him 
 
 professor of the civil law at Oxford. While at Oxford, he 
 
 published in nine books his comments upon the compilations 
 
 of Justinian, for the use of the students. He treated especially 
 
 of those portions of the Roman law which were in harmon\' 
 
 with the laws of England. Its study became so popular that 
 
 it provoked great jealousy on the part of the Crown, and 
 
 Stephen decided to put a stop to it. John of Salisbury, who 
 
 wrote about 1180, .says :* " In King Stephen's time the Roman 
 
 law.s, which the household of the reverend father Theobald ha<l 
 
 brought into Britain, were expelled the kingdom. An edict of 
 
 the King forbade any one to retain the books, aiul silence was 
 
 imposed on our Vacarius; but by the favor of God so much tlie 
 
 more the law grew in strength as impiety strove to weaken it." 
 
 John of Salisbury, in his work called PoUcraticus, gives copious 
 
 extracts from the civil law, and refers to it as being quoted in 
 
 the English courts. 
 
 n 
 
 GLANVILLE, BRACTON, KLKTA, I5RITT0X. 
 The.se four names, which cover a period of i;bout one hundred 
 years, may be mentioned both as aM'i.'rding strong evidence ot 
 the extent to which the Roman law had been incorporated 
 with, or absorbed in, that of England, and as having given fi 
 very powerful impetus to such assimilation. 
 
 (Jlanville, who was Chief Justiciar under Henry 11., wrote, 
 shortly before 1190, the first known regular treatise on the 
 * Sekleii ail Fletain, ("h. VII., tS \l 
 
14 
 
 laws of England, called Tractataa de Leglbus et Conauetudini- 
 bu8 Regni Anglice. His work professes to give only the pro- 
 cedure in the Curia Regis in which he presided, and the points 
 of law that most frequently arose in that court. Hf was evi- 
 dently skilled in both the civil and canon law, and made use of 
 both of them, especially of the former, in the preparation of 
 his work. He frequently calls attention to points of similarity 
 in the Roman and English laws, and also to points of difference. 
 The tenth book of his work which treats of contracts, is so 
 largely Roman both in form and substance, that he has been 
 accused of " aping the Roman Code." 
 
 From the time of Glanville the civil law continued to be 
 assiduously studied under the auspices of the Oxford Law 
 School founded by Archbishop Theobald. The central courts 
 had to a still greater extent superseded the local Saxon courts, 
 and had introduced a more uniform system of jurisprudence, 
 into which Roman elements more largely entered. Glanville's 
 work professed to give only a portion of the law. The neces- 
 sity for some more complete exposition of it must have been 
 generally felt. Accordingly, some seventy years later, about 
 the year 1259, appeared the great work of Henricus de Bracton, 
 ;in ecclesiastic and justiciar, under the same title, De Legihus 
 et Gonsitetudinibus Angliai. His work, like Glanville'.s, was 
 written in Latin, but, unlike that of Glanville, it covered the 
 whole field of English law at the time it was written. It is 
 impossible to over-estimate the importance of this work or the 
 intlnence which it has exerted as the chief authority upon the 
 common law of England. Mr. Reeves says of him* " In after 
 titiies he continued the great treasure of our ancient jurispru- 
 dence, where the rudiments of the law were to be traced in their 
 first formation, where were to be seen the origin and sense of 
 certain notions and principles, the reason of many rules of pro- 
 perty and of practice, which had become obscure by the change 
 of times, with the causes that led to the framing of many an- 
 cient statutes, which would be unintelligible without the help of 
 this author. Thus was Bracton deservedly looked up to as the 
 
 * History of Knglish Law, C'h. VIII., p. .');V2. 
 
15 
 
 Hrsfe source of legal knowledge, even so low down as the days 
 of Lord Coke, who seems to have made this author his guide 
 in all his inquiries into the foundation of our law." It is 
 interesting to observe that some of the leading English legal 
 authorities who are most prejudiced against the civil law, are 
 among the greatest admirers of Bracton and his work, as one 
 of the higlie'^t authorities on the common law, apparently \in- 
 aware of the fact of how largely he had borrowed from Roman 
 sources. Sir Henry Maine, while assailing Bracton as a pla- 
 giarist, and comparing his work to the Forged Decretals, is 
 forced to acknowledge the extent to which the Roman law 
 entered into the composition of his great work. He says,* 
 "That an English writer of the time of Henry III. should 
 have been able to put off on his countrymen as a compendium 
 of pure English law a treatise of which the entire form, and a 
 third of the contents, were directly borrowed from the Corpus 
 Juris, and that he should have ventured on this experiment in 
 ii country where the systematic study was formally proscribed, 
 will always be among the most hopeless enigmas in the history 
 of jurisprudence ; but still it is something to lessen our surprise, 
 when we comprehend the state of opinion at the period, as to 
 the obligatory force of written texts apart from all considera- 
 tion of the source whence thej'' were derived." 
 
 The Roman law in Bracton was taken partly from ori- 
 ginal sources, but chiefly from the Sinnma of the Digest, 
 Code and Institutes, compiled by Azo, the renowned Glos- 
 sator, a professor in the University of Bologna, who died 
 about 12r30. Professor Giiterbock, in his work on Brac- 
 ton,+ says that the Institutes are only once referred to by 
 him, while he has found twelve express (quotations from the 
 Digest and ten from the Code. He goes on to say, " Much 
 greater, however, is the number of passages of the Roman 
 law, which are incorporated into the text itself, and into the 
 tissue of the author's commentary, without any statement 
 of their source. These include not only particular leges, but 
 also whole connected fragments of the Corpus Juris, repro- 
 
 * Ancient f,ii\v, p. S'2. + Translation by Coxe, p. 50. 
 
10 
 
 «lucetl in an onier but slij^'htly modified." As to his borrowing 
 from the Siunma of A/o, he says,* " Throu<,diout nearly the 
 whole of Braeton's book we can distinctly trace the scientific 
 influence of Azo's views and doctrines, especially in the defini- 
 tions and divisions of le^'al notions and conceptions, which are 
 generally clothed in Azo's words. Bracton has, however, gone 
 still farther in availing himself of Azo's assistance, farther 
 indeed than is consistent with our present notions of an author's 
 dignity. Particularly when Bracton follows the course of the 
 Institutes, that is to .say, in his exposition of the law of per- 
 .sons, of the division and modes o£ acquiring things, and of the 
 law of actions, he generally does not lay down the text of the 
 original authority as a foundation, but gives, unaltered, Azo's 
 correspon<ling commentary in his Sammd of the Institutes, 
 merely omitting his citations, and making necessary abbrevia- 
 tions and changes ; or, to speak more precisely, he transcribes 
 whole pages liteially." 
 
 The work of Bracton has recentlv been translated bv Sir 
 Travers Twiss, and published in live large volumes, the Latin 
 text and English translation being printed on opposite pages. 
 The learned editor takes the view that the Roman law found 
 in Bracton had in reality become a component part of the 
 English law. He says.-f- " In many })laces he discusses Roman 
 elements of law as integral parts of the laws and customs of 
 England ; he cites Roman authorities in some instances in the 
 same familar manner as English judgments; and in a few par- 
 ticular cases, after stating English judicial precedents, he illus- 
 trates them by direct quotations from the Digests of Justinian. 
 The discrimination with which Bracton in some cases makes 
 use of Roman prinsiples, not importing into the subject the 
 whole Roman law, but onU* portions of it, cannot well be 
 attributed to accident ; but may be reasonablj'- accounted for by 
 his desire to repro<luce only .such portions of the Roman law as 
 had become part of the consuetudinary law of England ; and 
 the same explanation holds good where, in certain pas.sages, 
 apparently borrowed from the Roman law, we find slight varia- 
 
 * r. ^>'2. I lutrodmtioii, p. xxxvi. 
 
17 
 
 tions of the text. To treat these variations us instances of 
 misquotation would probably be an injustice to Bracton ; they 
 are rather to be regarded as evidence that a principk; of the 
 Roman law had undergone some moditication in practice to 
 adapt it to the peculiar circumstances of the realm of England. ' 
 
 In the frame or outline of his work, as has been stated, he 
 follows closely the plan of Justinian. Tlie first part devote<l to 
 the substantive law, is suVxlivided int<- jus <ul pcrmmfi, jus ad 
 res, find jux ml actio)heH,i\\\i\ occupies the whole of the first and 
 second, iind part of the third, of the live bDoks into winch the 
 work as jjrinted is dividel. The second part, devoted to legal 
 procedure, oecupies the romaindt'r (»!' tin- thinl boctk and the 
 whole of the fouith and fifth. 
 
 The limits of the piVM-nt [»api;r will lujt pi'imil any detuiltd 
 examination oF th<> sulijocts or points of lloiuan law which art- 
 to be found in Biacton. A few of tlu-m will be mentioned oi- 
 briefiy referr^id to, in order that the efieet of the very genernl 
 adoption h}' later writers, and by the coui'ts, oi the law as laid 
 down l)y liim may be more fully appreciated. 
 
 In the early part of the first book we find that he has given 
 the definitions of Justinian or of Azo to such terms as jusfllin. 
 ju8,jii)'lsprudevtUi, and ucqaUas ; that he follows thcMii in the 
 ti'ia prac'cepta juris, and by dividing law into jus iiuhlirun,. 
 and juH prlvatuYii ; also by subdividing the latter into jus 
 wdiii'oh', jiifi (fenfiit)n and jus civile. For lex lie copies the 
 definition of the Digest, and consuefado he explains by a (piota- 
 tion from the Code. 
 
 As to pcrsuvs, he follows the Institutes of .histinian in 
 dividing them into li'x'fi and srrrl, identifying the Knglish, 
 viUani with the Roman scri:!. The lloman rule, " partus 
 sequitur venhriuj' he modifies, to make it express correctly the 
 English law, to " se((uitur coiiditiouem. iiiatrw qiicif^i ra/:/o con- 
 ceptuf*." He also follows the Roman rule as to the freedom of 
 a slave when a lord has neglected to enforce his rights, aii-l a.s 
 to the aei|uisitions of a nervas iuymmanis. He copies A/o in 
 defining iufjcnul, lihcriinl, and Ik rni<iphroditi, and in adding 
 " aut d uh'i't " to the division of men in the Institutes into 
 
18 
 
 ■" homines •'<ai aid itlif.nl juris," and also in his distinctions be- 
 tween furiosi, non annpotes vienfis, and fatiii, stulti and 
 'Idfotae. But it is in that part of Braeton devoted to the law 
 of thin<'s that his use of the Roman law and the influence of 
 his work on the coininon law of Enijland are so conspicuous. 
 He follows the Institutes and Azo in re^'ard to the divisions of 
 Hes, as: in putrimonio nostroet euira; ('{n'jtoraleset inrorpor- 
 alea ; inohilfK et innwhilrs ; comniu les, piMirxc, univeriitdtis 
 et nuUiiis. 
 
 To the doctrine of possession with regard to the acquisition 
 of property he has dev^oted a large space, and it is taken from 
 Azo almost bodily, with minor changes to adapt it to the Eng- 
 lish law. As to the modes of acquiring property by the ju8 
 (jcntixini, viz., orritpatio, allnrlo, avcetiHio, specijicatio and con- 
 fusio, he follows the Roman law very closely ; and in accessio, 
 acknowledges its source by adding, " ut in Tnstitutis plenius 
 invenirl potest et insn,7)wi(i Azonis" 
 
 As to the modes of acquiring property under the Jus civile, a 
 leading place is given to donatio, which is used in a much 
 wider .sense than the modern word, donation, and which he 
 speaks of as, " magna Celebris et fainosi causa adqnisitlonls." 
 The Roman law divisions into donatio inter vivos, mortis causa, 
 Hinip)lex, conditloTudis, etc., are followed, and the same condi- 
 tions required, viz., mutuus consensus et voluntas, and they are 
 vitiated by error, metus and vis, as in the Roman law. Traditio 
 was necessary to the validity of the donatio. The prohibition 
 of donations from husband to wife, or from wife to husband, 
 which long remained the law of England, had been only 
 lately introduced, and was evidently borrowed from the Roman 
 law in the interest ot the feudal heir. 
 
 Usucaption, and prescription, which he gives as means of ac- 
 quisition of property, were copied from the Roman law after 
 the time of Glanville, and did not take permanent root in 
 England, except as to real property. 
 
 The rural servitudes of jus eundi, aquae ducendi, pascendi, 
 etc., are also derived from the Institutes and Azo, the latter 
 beinff, however, considerably extended by Braeton. 
 
19 
 
 The law of inliurituiice is ulinost entirely Enj^lish ; but 
 through the influence of the ('hurch some Roman elements 
 were introduced as to lefvitimacy and bastardy, as attectinjj the 
 capacity to inherit. The rijjfhts accorded to a party in fjood 
 faith enterinij into an invalid niarriajre come from the same 
 .source. This subject lias a special interest, from the spirited 
 manner in which the barons at the Parliament of Merton, in 
 12.SG, resisted the demand of the ('htirch to lej^itimi/e oHsprinfj 
 by the sub.sequent marriai^e of their ])iirents, when with one 
 voice they answered: " Xobtitian lei/es AiKjliae vmtdre, quafi 
 iiMijac ad llliid teinpuf* u>*itat(i(' facraiit ci appvobatae." The 
 action of partition was undoubtedly of Roman orij^in. Bracton 
 says little about wills, as they were within the jurisdiction of 
 the ecclesiastical courts. The rules prevailinij were those of 
 the civil law modified in some respects by the canon law. A.s 
 to doH'dioncti mortis rausd, Bracton closely follows the divisions 
 of Ulpian in the J)ii(est. 
 
 His treatise on Actions in his third book includes the law 
 of obligations. These occupy a comparatively small space, 
 and he follows Azo in his definition, and the Institutes as to 
 the sources of obligations, viz., contract, quasi-contract, delict 
 and (luasi-delict. The extinction of oblijiations bv nolntio, 
 iiovatio and covfusio has the same origin, as also his division 
 of actions into personal, real and mixed, and the definitions of 
 tach of these. 
 
 In criminal law the definitions of treason, homicide and mur- 
 der, robbery and arson, are taken from the Roman law, with 
 little change. As to theft, he omits two points from the defini- 
 tion of Paulus, which is yiven in the Di^t'st and Institutes, and 
 makes two additions to make it harmonize with the English 
 law. 
 
 The remainder of Bracton is taken up chiefly with treatises 
 on the different kinds of real actions, called assizes, from the 
 a.ssize or parliament at which they were enacted. Most of these 
 bear unmistakable evidence of a Roman origin. The only one 
 to which special reference need be made is the assize of novel 
 disseisin, adopted at the Assize of Northanipton in 117C, in 
 
so 
 
 or<l»'r to jtiotcrt possi'SMioii ui^ainst disseisin. It is liurmwcMl in 
 its inuir. features from tin- intcrilicts vn?*/*' »/ un<l uti fn>f*siJrfis. 
 
 Such is an iiiipui fi-ct suniinai y of thos*; portions of Hracton's 
 work, which hear thc! clearest indications of hein<jf derived from 
 the lloman law. The <h'maiid for the work was rrreat, hut, 
 hein^ so vohuninous and expensive, this demand was in pait 
 supi)iied Ity ahridi^ments or ahstracts moi'e or less faithful and 
 complete. The hest known of these nr(! F/i'Ik and liriHini. 
 T\\r former is in Latin, and derives its nam*;, not from that of 
 the autlioi", hut liecause it was composed in the Fleet prison 
 ahout \'2\)'2, as is suppose*!, iiy one of the judges imprisoned 
 there hy Kdward I. It is al)outhalf the size of Hraetons ijjrent 
 work, and is considered a fair epitome of it. it is known 
 chietly l)y tlu' eilition puhiisht'il hy Selden about l()47. Th" 
 extracts from the llonian law in IJracton are largely en\hodii'd 
 in Fleta, and l*rofessor (liiterhock* has pointed out that in tin-. 
 chapter dc tlolis cmisl'tl iit ioiw there are aiUlitions of liouian hiw 
 matter not found in the original. 
 
 Another treatise hased u[)on l^iracton is that called Brit Ion. 
 It is in Norman French, and was written about 1297. Tlu; 
 name is believed to he a ujere vaiiation of Bracton. Mr. 
 Nicholls, who has edited the work, is of opinion that the author 
 was familiar with hoth Bracton and Fieta, but made much 
 more use of the lattm- than the former in his work, which, from 
 .some expressions, is thought to have been undertaken at the 
 instance of the kinif. 
 
 Later writers of the liiglicst authority on Eiii^lish law, and 
 even those who are stron.gly prejudiced again.st the Roman law, 
 as well as tlie courts themselves, have ([uoted w'ith approval 
 copious extracts from Bracton and these compilations, includ- 
 ing a large portio.i of the civil law embodied in them. 
 
 Sir Edward Coke, wlio thought the Roman law otdy increased 
 (loul)ts and uncertainties in.ytead of resolving them, and whose 
 knowledge of that law was very limited, constantly quotes 
 from Bracton with approval, and adopts many extracts which 
 are taken directly from the Roman law. He refers ordy once 
 
 * iiractoii, p. 70. 
 
21 
 
 to tlif Diiji-it <it' .liisiiiiiiui Jiiiil oiicf t<» tlif Iiistitut«'.s, JiTid in 
 Itotli iiixtnnct's his i|iiMt)ilioiiM mv iiicorn'ct. Lonl iiule, in liis 
 llistniy of the Coinnion lifiw,* in spt'nkini^ of linicton's work, 
 siys: "The greater part of its .siiljstunro is cither of the conrse 
 of proceediriij.s in the hiw known to the author, or of resolu- 
 tions aixl (h'cisions in the Kn.jlish ('(turts." HIackstone says :+ 
 "There are also other authors to whom ^reat veneration and 
 respect is paid hy the students of th«! connnon law. 'Such are 
 (rlanvil and liracton, Hritton ami Kleta, . . . with sonie others 
 of ancient date, whose treatises are cited as authority, and 
 are evidence that cases have formerly happened in which such 
 and sucli points were determined, which are now become settled 
 and lirst principles." In speaking of the Koman doctrine of 
 j>ropt')-ty arisinrr from accession, lie .says -.^^ " And tliese doctrines 
 are implicitly copied and a<lopted by our Hracton, and have 
 since then V)een confirmed by manj' resolutions of the Courts." 
 Nor are the utterances of judges, as found in the reports, le.ss 
 (Muphatic. In the celebrated judgment of Lord Holt in the 
 h'ading case on bailments, Cof/ifs v. Bernard,^ Bracton is quoted 
 or referred to approvingly no less tlian seven times. In sup- 
 port of the proposition that a man who receives goods to be 
 kept gratis is not answerable, except in case of gross neglect, 
 he cites from Bracton,; and remarks: "This Bracton I have 
 cited is, I confess, an old author, but in this his doctrine is 
 agreeable to reason, and to what the law is in othtsr countries. 
 The civil law is so." He also (juotes from him in support of 
 the doctrine of the liability of the borrower, if he use the goods 
 in a manner not warranted by the terms of the loan. In the 
 ca.se of lending for hire, in laying down the rule that the bailee 
 is bound to take the utmost care and return the goods, he says :*! 
 " And here ajjain I must recur to my old author." He further 
 refers to him in support of the liability of a person who negli- 
 gently executes a gratis commission, and after (juoting from 
 Justinian and Bracton as to mandate, he adds :** " I don't find 
 
 ♦ F. 189. i^ 2 Lord Raymond'a Rep., p. 909. 
 
 + Comm., I., p. 72. Br. Lib. 3, Ch. 2, 99/>. 
 
 : Comm., II., p. 404. •' P. 91(5. *' P. 919. 
 
22 
 
 this wonl in auy (tthcr author of our hiw, ht'sidcs in this |)lftc«' 
 of BractoM, which is a full authority, if 't he not thou^'ht too 
 ohl. But it is supported hy j^ood r'-ason and authority. " 
 
 In tho (jrand Opinion* for tho Pn'ro<,mtivi! concerning,' the 
 inarriajje and education of the kin^^'s ^randchihh'en in 1717, 
 wljero the counsel for the Princt; of Wales claimed that Bracton, 
 who was opposed to his jiretension, ouj^ht not to he rejjfarded, 
 hecause he deviates from the common law, and is nothinj^ hut 
 civil law: ten of the twelve Ju<l<,'cs adopted the law as laid 
 down in Bracton. Most of them do not refer specially t(; this 
 part of the ari^ument, hut Chief Justice Parker said -.f " As to 
 the authority of Bracton, to he sure, numy thin;;s are now 
 altered, hut there is no color to say it was not law at that timi", 
 for there are many thinjjfs that have never heen altered and are 
 law now." Baron Fort»'scue, who ^ave the leadinj,' opinion for 
 the majority of the Judges, said:;): "The law hooks of Bracton 
 and Fleta, which have heen (juoted, are the ancient law of the 
 land, extendinjj^ to all cases; hut this law hein^- altered only in 
 private cases, hy usa^e and statute, it remains law to this day 
 as to the royal family, hecause as to them this law has had no 
 alteration hy any law or statute whatever, and the usajj;e has 
 gone accordin<,dy. These law hooks are so stron*,' that there 
 has heen no way thou<,dit of to evade them, hut hy denying the 
 authority of them, and callii\g it civil law. But 1 own I am 
 not a little surprised that these hooks should be denied for law, 
 when in my little experience I have known them (jUoted almost 
 in every aigument wliere pains have been taken if anything 
 could be found in those books to the question in hand, anil I 
 have never known them denied for law but when some statute 
 or usage time out of mind has altered them." Baron Montague 
 said :§ " I insist on Bracton and Fleta being good authorities- 
 It is objected, indeed, this is civil law ; that may be, and yet it 
 may be and is the law of the land also, and these books take 
 notice of several things that are law now, besides this case ; 
 these books are often quoted by the greatest judges and law3-ers 
 heretofore in Enuland, and allowed as law." 
 
 • Fortescue's Reports, p. 401. X Fortescue, p. 419. 
 
 t Fortescue, p. 4U8. S Fortescue, p. 424. 
 
'2\ 
 
 III tlu! case of WumUll v. Cofffrall* whcTf tin* right of i\\v 
 puljlic to the use of tlie Hoji-.slioro was in <|iU'stion, Hest, J., after 
 quotiii;^ from Hracton"f at sonie h'ngth, says: " IWactoii has 
 not .stilted this as civil hiw, he has inach' it part of his hook, l>r 
 Lcj/'ihiiH *l (yoiisiieti iiihlls Anjilior. lie was (Miief .lustier of 
 iMij^hind in the reii^n of Henry III., and Lor<l Hah- snys 
 that, in his time, the C(jmmon law was much improved und 
 the pleading.s were nioru perfect and orderly than in any pre- 
 ceding period of our history. Surely such a man is no mean 
 authority for what the connuon hvw was at tlie time Im' wrote. 
 . . . I do not say that the whoh; of tlie passa;^'e in Hracton 
 is now good law ; it was all good law at tiie time he wrote, and 
 all of it that is adapted to the present state of things is good 
 hiw now." 
 
 In the later case of (llljonl v. Lonl Vorlntronji/i,'^ l^est, then 
 (!hief .Justice, in giving the opinions of the judges as to land 
 formed l»y alluvion, (piotes a passage from IJractonJij in fa\orof 
 the proposition that it belongs to the owner of the adjoining 
 land and not to the Crown, and adds : " It is true Braeton 
 follows the ci\'il law, for the passage above quoted is to be 
 found in the .same words in the Institutes. IJut Braeton, by 
 inserting tliis j)assage in his book on the laws and customs of 
 lingland, presents it to us as part of those laws and customs. 
 . . . Braeton wrote on the law of England, and the situation 
 whicli he tilled, namely, that of Chief Justice in the reign of 
 Henry III., gives great authority to his writing.s. Lord Hale, 
 in his history of the Common Law, says that it was mucli 
 improved in the time of Braeton. This improvement was made 
 by incorporating much of the civil law with the counuon law. 
 We know that many of the maxims of the common law are 
 borrowed from the civil law, and are still quoted in the language 
 of the civil law Notwithstanding the clamor raised by our 
 ancestors for the restoration of the laws of Edward the Con- 
 fessor, I believe that these and all the Norman customs which 
 followed would not have been sufficient to form a system of 
 
 *5 Barnewall and Alderson, p. 208. X •'* Bingham, p. 1G3. 
 
 tLib. 1, Ch. 12, 8. I). S Book II., Ch. II. 
 
24 
 
 l>iw sufficient for the state of society in tlie times of Henry 
 HI. Botli courts of Justice and law writers were obliged to 
 adopt such of the rules of the digest as were not inconsistent 
 with our principles of jurisprudence." He then goes on to 
 <|Uote with approval the remarks of Chief Justice Fortescue 
 given above.* 
 
 In the case of Nmfent v. Sinitli,^- Brett, J., in di.scussing the 
 liaiiility of a ship-owner as a common carrier, says: "No one 
 who has read the treatise of Mr. Justice Story on Bailments, 
 the essay of Sir William Jones, .and the judgment of Lord Holt 
 in ('ogi/8 V. Bernard, itun doubt that the common law as to bail- 
 ments is founded upon, though it has not exactly adopted, the 
 Roman law. It is true that Lord Holt re.sts as for authority 
 .solely on Bracton ; but the treatise of Bracton adopts all the 
 divisions of the Roman law in the very words of the Roman 
 text, and further adopts the exception of the Roman law and 
 the Roman rea.sons for it. The divisions may be the logical 
 divisions of the subject, and so be naturally adopted by all in 
 every country who treat the subject logically; but the exception, 
 both in the Roman Empire and in England, was no natural 
 e.Nception, but one depending entirely on public policy, arising 
 fioin the nianner in which some particular kinds of business 
 were carried on in both places. It is obvious, therefore, that 
 Br4cton,or English judges lefore him, adopted into the English 
 the Roman law." This conclusion seems to be well founded, 
 although Chief Justice Cockburn strongly di.ssented from it in 
 the Court of Appeal in reversing the judgment of Mr. Justice 
 Brett. In the recent case of Foder v. Wright^ (1878), Justice 
 Lindlev recognized the authority of Bracton refjardinjj alluvion 
 and its Roman origin. He says : " Gradual accretions of land 
 from water belong to the owner of the land gradually added 
 to: and converse!}', land gradually encroached upon by water 
 cea.ses to belong to the former* owner. The law on this subject 
 is ba.sed upon the impossibility of identifying from day to day 
 .small additions to or subtractions from land caused by the 
 
 * Ante p. 22. t Law Reports, I C.P.D., p. 428. 
 
 t Law Reports, 1 ('. \'.U., p. 28. 55 Law Reports, 4 C.P.D., p. 446. 
 
2.3 
 
 constant action of running; water. Tlio histniy of tin* l>iw 
 shows this to Ite the caso. Our own law may ho traced hack 
 through Blackstone, Hale, Britton, Fleta and Bracton to the 
 Institutes of Justinian, from which Bracton evidently took his 
 exposition of the subject." 
 
 THE CIVIL AND COMMON LAW. 
 
 It would be interesting to trace the varying fortunes of the 
 civil law in England, subsequent to Vacarius, apart from tho.se 
 portions of it embodied in Bracton and other acknowledged 
 authorities on the common law referred to in the forejroing 
 pages, but the merest glance mu.st suffice. Stephen's ordinance 
 against its study, already referred to, seems to have had but 
 little eftect. In the reign of his successor, Henry II., we are 
 informed by Peter, chancellor to Theobald, Archbishop of Can- 
 terbury, that in the Archbishop's house, after prayer and break- 
 fast, the most learned men in the kingdom took part in discuss- 
 ing knottj'^ points of law. Giraldus, of Oxford, (juotes from 
 Justinian's Institutes as recognized authorities in the rei^^ns of 
 Richard Land John, and tells us that a clerk, Martinus, blamed 
 the O.^ford professors " because the imperial laws suffbcated all 
 other sciences." Roger Bacon, in the following reign, accused 
 the bishops of neglecting the study of theology for " the 
 quibbles of law that fouled philosophy." There is no doubt 
 that a strong prejudice was created against the public law of 
 Rome, on account of the principles of absolutism which it con- 
 tained. Such maxims as " qitod prlvripi plaeuit lej/it< /tahef 
 iHgoretnJ' made it specially obnoxious to those who wished to 
 restrict the power of the king. The provision of the Magna 
 Charta, that trials were to take place " })er paylam jiufiri lun 
 ml per leurm terror," was no doubt intended to substitute the 
 rules of procedure of the common law for those of the ci\il or 
 canon law. In the reign of Henry III. every judge took an 
 oath to decide all cases " .sectnuhun legem et consuetiidinevi 
 regni," this being the expression used at that time when the 
 law of England was contrasted with that of Rome. 
 
 In the same reign (1285), the bishops desired to have the 
 
26 
 
 rule of the civil and canon law as to the legitimation of natural 
 children by subsequent marriage adopted in the statute of 
 Merton, but the barons with one voice declared " quod nolunf 
 leges Anglioi mutare." No doubt a great deal of the hostility 
 manifested to the Roman law at this time, and in later periods 
 of Knglish history, was owing to the difficulties between tho 
 English people and the Pope, and the fact that the civil and 
 the canon law were very much alike, and were intimately asso- 
 ciated in the popular mind. 
 
 Notwithstanding this hostility, the civil law retained its 
 hold at least until the reign of Edward II., when the Chief 
 Justice declared from the bench that the law of Ensfland wns 
 based upon the civil law by asking of counsel, " Que repoiuh- 
 voiifi a la ley enipid, sur quel leg de terre est fondue ^ " 
 
 During the reigns of Edward I. and Edward II. we find Umt 
 the Roman law was habitually cited in the common law courts, 
 from the compilations of Justinian, as absolutely conclusive 
 authority. 
 
 Under Edward III., the influence of the civil law, at least so 
 far as it was not embodied in Glanville and Bracton, began to 
 wane. In 1847, an eminent sergeant, Skipworth, in defending 
 a case ronfra inliihitlonein novi oper'is, argued that these Latin 
 words had no meaning,* .showing his ignorance both of the civil 
 and the canon law. In the same reign (1362), a statute was 
 passed authorizing the use of Englishf in the pleadings in the 
 courts, a measure which tended to depreciate the civil law. In 
 the succeeding reign (Richard II.), we find the barons again 
 protesting that they would never suffer the kingdom to be 
 governed by the Roman law, and the common law judges pro- 
 hibited its being cited in their tribunals. By the middle of the 
 fifteenth century, the common law seems to have obtained a 
 complete ascendency in these courts, and Chief Justice Forte.scue 
 in his work, ' De Laudibus Legum Angliae," publi.shed in 
 the reign of Henry VI., is never tired, in his lectures to the 
 heir-apparent, of disparaging and even misrepresenting the 
 civil law, and unduly extolling the superiority of the common 
 
 • Year Book, Eilw. III., p. 37. t36 E.lw. III., St. I., Ch. ir>. 
 
27 
 
 law. The highest authorities on Engli.sli law during the next 
 three hundred years, althongli more moderate than Fortescue, 
 held the civil law in light esteem, and of no binding authority. 
 Coke says that " The laws of England are not derived from 
 any foreign law, either canon or civil or other, but are a special 
 law appropriated to this kingdom."* Hale says, in his His- 
 tory of the Common Law:f "It is most plain, that neither 
 the canon law, nor the civil law, have any obligation as laws 
 within the kingdom, for no laws of the Pope and Emperor, as 
 they are such, bind here. For we are not bound by their de- 
 crees, further or otherwise than as the kingdom here has, as it 
 were, transposed the same into the common or municipal law 
 of this realm, either by admi.ssion of, or enacting the same, 
 which is that alone which can make them of any force in 
 England." 
 
 Blackstone takes substantially the same position as Coke and 
 Hale. He .says:^ "For the civil and canon laws, considered in 
 respect to an}' intrinsic obligation, have no force or authority 
 in this kingdom ; they are no more binding in England than 
 our laws are bindini; at Rome. But as far as these foreign 
 laws, on account of some peculiar propriety, have, in some par- 
 ticular cases and in some particular courts, been introduced 
 and allowed by our laws, so far they oblige, and no further, 
 their authority being wholly founded on that permission and 
 adoption." These writers, as we have seen, acknowledge the 
 authority of Bracton and the other writers of the 18th century, 
 so that the foregoing remarks apply only to those portions of 
 the Roman law that have not been embodied in these early 
 authors. Blackstone especially acknowledges the authority of 
 the Roman law found in Bracton, and cites approvingly other 
 portions of the civil law which agreed with the law of England. 
 
 In the celebrated case of Ldiie v. Cotton.^ as to the liability 
 of the Postmaster-General for a letter lost by the negligence 
 of a clerk, Lord Holt acknowledges a greater indebtedness on 
 the part of the common law. He says : " And this is the rea- 
 
 *CokeIII., 153. :j:Comin. I., p. H. 
 
 t p. 22. § 12 Modern Reports, p. 482. 
 
28 
 
 son of the civil law in this case, wliicli thoui^h I am loth to 
 ({uote, yet iiuisimich as the laws of all nations are 'loubtless 
 raised out of the ruins of the civil law, as all "governments are 
 sprunij; out of the ruins of the Roman Empire, it must be owned 
 that the principles of our law are borrowed from the civil law." 
 Probably one of the most authoritative and concise statements 
 as to the position of the civil law in those courts of England, 
 where the common law alone is recognized, is that of Chief 
 Justice Tindal, in the case of Acton v. Biandcll* where the 
 Institutes, Digest and Code of Justinian had been freely cjuoted 
 and discussed. He says : " The Roman law forms no rule bind- 
 ing 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 
 (»f the conclusion at which we have arrived 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 ground- 
 work of the municipal law of most of the countries of Europe. 
 The authority of one at least of the learned Roman lawyers 
 appears decisive upon the point in favor of the defendants ;" 
 and he proceeds to quote the opinion of Marcellus as given in 
 tlie Digest. 
 
 What has been said thus tar relates to the civil law as it has 
 found its way into the connnon law, either directly or through 
 the English writers referred to. 
 
 A brief reference will now be made to some of the P^nglish 
 courts, in which the civil law enjoyed a place and authority 
 denied it in the common law courts. By far the most im- 
 portant of these was 
 
 THE COURT OF CHANCERY, 
 
 " Roman to the backbone," as has been said. The office of 
 Chancellor in England has been traced back to the time of the 
 Saxon kings, when he was the chaplain and confessor of the 
 king, and " keeper of the king's conscience." Under them and 
 the early Norman kings, he was the secretary who took charge 
 
 * 12 Meeson & Welshy, p. .15.3. 
 
20 ' 
 
 of the apj)licati()ns tnatle to the king as the fountain of justice, 
 and directeil tliein to the proper quarter for redress. His rank 
 was below that of a bishop, and it was only throuifh the ex- 
 traordinary ability and ambition of such chancellors as Becket 
 and Longchanip, that the office rose into the importance which 
 it has since enjoyeil. Among his duties were the affixing of 
 the great seal to charters and other documents, and supplying 
 writs to suitors who wished to litiofate in the coujts. Accord- 
 ing to the best authority, the Chancery first became a court 
 under Henry II , at the same time as the King's Bench, Common 
 Plt'Ms, and Exchequer, when the old Aula Rrgis or Curie 
 Mro'is was divided. At least, its common law jurisdiction dates 
 from that period, and Lord Campbell* is of opinion that its 
 extraordinary or "equitable jurisdiction," which afterwards bo- 
 came its inost important function, and served a useful purpose 
 in tempering the rigor of the common law, is quite as ancient. 
 " Its jurisdiction is in reality the residuum of that of the Com- 
 niune Concilium or Aula Regis, not conferred on the other 
 couits, and necessarily exercisable by the Crown as a part of 
 its <Iuty and prerogative to administer justice and equity."*!" 
 
 It is not difficult to under.stand why the civil law should be 
 supreme in this court. Down to the time of Wolsey, no less 
 than 160 ecclesiastics had filled the office of Chancellor, while 
 the only laymen we have any record of are Sir Robert Bouchicr, 
 and a few others, for a short period in the reign of Kdward 1 1 1. 
 The chancellor was moreover assisted in his duties by twelve 
 clerical masters of the civil law, who sometimes sat upon tlu; 
 bench with him, to advise him. The hostility of the connnon 
 law judges to the civil law also tended to bring about the same 
 result. " The eti'ect of the exclusion of the. Roman law from 
 the common law tribunals, was tluit a distinct code of laws 
 was formed and administered in the Court of Chancer}', by 
 which the enjojanent and alienation of property were regu- 
 lated on principles varying in )nany essential particulars from 
 the system which those who originated and cari-ied into etrect 
 
 * Lives of the Lord Chiincellors, Vol. I., p. 7. 
 t Story's Equity Jurisprmlonce, § 49. 
 
80 
 
 the exclusion of the Roman law were so anxious to preserve/** 
 The equitable jurisdiction of the court therefore grew up very- 
 much in the same manner and under the same circumstances 
 as the equitable jurisdiction of the praetor at Rome.f " The 
 principles on which the decisions of the chancellor in the exer- 
 cise of his extraordinary jurisdiction were founded, were those 
 f)f honesty, equity, and conscience.":!: Recourse was, therefore, 
 naturall}' had to those large principles of universal justice 
 taught by the imperial law, and which were so admirably 
 " adapted to any set of people and any state of things," with 
 which the clerical chancellors and their assistants were so well 
 acquainted. 
 
 When, after the Reformation, lay chancellors were appointed, 
 they found a symmetrical system fully established, and they 
 naturally followed the precedents set by their learned pre- 
 <lecessors. In the eighteenth century we find that they freely 
 availed themselves of the works of the civilian writers of the 
 continent, such as Grotius, Puffendorf, and Vinnius, in the ex- 
 tension of that system of equity inseparably connected with 
 the court, and whose flexibility and adaptability to changing 
 circumstances and advancing civilization form one of its chief 
 claims to favorable recognition. 
 
 Lord Campbell has told us of the preparation for his work of 
 Lord Hardwicke, one of the chancellors of this period, who ac- 
 complished much in maintaining and extending the prestige and 
 the inriuence of this court, and who perfected English equity 
 into a symmetrical science. He describes him as "the man 
 nnivcrsally and deservedly considered the most consummate 
 iu(l;^a'! who ever sat in the Court of Chancery."^ As to his pre- 
 paration for tilling the high office, he says:|| "But that to 
 which I mainly ascribe the brilliancy of the career on which he 
 was entering was the familiar knowledge he acquired of the 
 Roman civil law. Like most English lawyers, in preparing for 
 the bar, he had hardly paid the sligiitest attention to it. Now 
 
 * Spence, Equitable Jurisdiction of the Court of Chancery, Vol. I., p. 346. 
 + Story's Equity Jurisprudence, g 50. + Spence, p. 3,39. 
 
 § Lives of tht) Lord Chancellors, Vol. VI., p. ~2. 
 ;, Lives of the Lord Cliancell )rs, Vol. VI. , p. II 1. 
 
31 
 
 that he was to sit in the House of Lords, as sole judfje to decide 
 all appeals from Scotland, he saw the necessity of inakin^r him- 
 self a profound Scotch lawyer, and he found that this was im- 
 possible without being a good civilian. Therefore, having gone 
 through Mackenzie, Bankton and Stair, he regularly proceeded 
 to the Corpii.s Juris Civilis, with Vinnius, Yoet, and other com- 
 mentitors, and his mind was thoroughly imbued with the truly 
 equitable maxims of this noble jurisprudence. I delight in 
 recording how his unrivalled eminence as an equity judge was 
 achieved, lest the aspiring but careless student should think it 
 could be reached by natural genius and occasional exertion." 
 
 The following are some of the branches of English law in 
 which the Court of Chancery has exercised the greatest in- 
 fluence in introducing the principles of the Roman law : — The 
 rules relating to executors, the construction of wills and docu- 
 ments generally; uses and trusts, corresponding to a large 
 extent with Jideicoinmissa; the rules regarding the equity of 
 redemption in the law of mortgages ; the guardianship of in- 
 fants and lunatics ; the setting aside of contracts for fraud or 
 mistake ; the law of set-off; and the equitable assignment of 
 choses in action and the like. In procedure its injunctions 
 were probably copied fiom the prohibitory interdicts of the 
 praetor;* its process for discovery from the actio od exhihcn- 
 ilam, or the old actio inter Wfjatoria, and the procedure for the 
 examination of witnesses de bene c.s.se from the Roman rules on 
 the sanje subject. -f* The provisions of the English Judicature 
 Act of 1873,1 and of the Ontario Judicature Act, 1881, {$ that 
 the High Court of Justice and tlje Court of Appeal thereby 
 constituted should, in certain important respects named, follow 
 the old rules of the Court of Chancery, and, in EnglantI, also 
 those of the Court of Admiralty, and that generally when there 
 was any variance between the rules of ecjuity and those of 
 common law, the former should prevail, wrought in the law of 
 these countries a radical change by the general sweeping intro- 
 duction of equitable principles. Changes in a like direction, if 
 
 * Inst. Lil>. IV., Tit. XV,, I. t'M and :i~ Vict., Ch. GO, sees. '2i and "J."). 
 + l)ii<. Lil). I \'., Tit. II, 40. <; 44 Viot., Ciu 5, .sees. 10 and 17. 
 
•.i-2 
 
 more <5rn(lual, Imve been ^oinj^ on in otlitr iiriti-.li colonies and 
 in the United States, so that, with even <,'reater proj)riety than 
 did Lord Campbell in 1849, one mifrht now speak of " that vast 
 juridical system called equitj', which, not only in this country 
 and in our colonies, but over the whole extent of the United 
 States, rej^ulntes property and pei'sonal rii,'hts more tlian the 
 ancient common law."* 
 
 COURTS l'X"CLKSIATI('AL, MILITARY AND MARITIME. 
 
 These courts are described and their jurisdiction and pro- 
 cedure; discussed by Blackstone in the fifth chapter of the third 
 book of his Commentaries. The civil law, both as to piinciples 
 and [irocedure, entered into them much more t^enenilly than 
 into the courts of connnon law and even of equity. ' The Court 
 of Chivalry, which was a military court, or court of honor, was 
 in hii;h repute in the days of pure chivalry, and had " cogni- 
 /ance of contracts and other matters touching d(!eds of arms and 
 war, as well out of the realm as within it." Sir Mattliew Halo 
 informs us that "its later business was to adjust the rights of 
 armorial ensigns, bearings, crests, supporters, pensions, and also 
 rigiits of place and precedence."' It was never formally abol- 
 ished, but most of its functions were by various statutes assigned 
 to other courts. Coke informs us that it j)roeeeded according 
 to the civil law. The former jurisdiction of the courts ecclesi- 
 astical and nuiritime are now merged in the ProV)ate, Divorce, 
 and Admiralty Division of the High Court of Justice. 
 
 The ecclesiastical courts were separated from the civil by 
 William 1. For a time they had exclusive jurisdiction over 
 the persons of ecclesiastics, but subse(]uently only over tithes 
 and other church questions, and matrimonial, testamentary, and 
 abintestate nuitters. The proceedings in these courts were 
 regulated acconling to the practice of the civil and canon laws, 
 or rather to a nuxture of both. " The establishment of the 
 civil process in all the ecclesiastical courts," says Blackstone,-f- 
 " was indeed a masterpiece of papal discernment, as it made a 
 coalition iui practicable between them and the national tribunals 
 
 " Lives of the Lonl Ciiaiuelloi-s, Vol. VI.. p. 110. tConini., Vol. III., p. 'JIL 
 
88 
 
 without manifest inconvenience and hazard." They have pre- 
 served more faithfully than any other court the procedure and 
 traditions of imperial Rome, and this, no doubt, in a great 
 measure because the judges were formerly ecclesiastics, and 
 when lay judges were first appointed a well-delined system, 
 founded on the civil and canon law, had been tirmly established. 
 
 The Court of Admiralty, which had jurisdiction over matters 
 arising wholly on the high seas, out of reach of the onlinary 
 courts of justice and of the common law, which was the law of 
 the lavd, followed a procedure that was a close transcript of the 
 mode of trial under the later legislation of Justinian, except 
 in so far as it was from time to time modified by statute. It 
 always recognized the Rhodian law as found in the Digest, 
 and the laws of Oleron. " Its proceedings are according to 
 the civil law," says Blackstone. This arose in part from the 
 fact that many of the judges of the court, acting as deputies of 
 the admiral, wore ecclesiastics. The fact of the civil law being 
 followed in both the Admiralty and Ecclesiastical Courts led 
 to their somewhat curious ujiion under the presidency of the 
 same judge and in the same chambers. 
 
 The civil law was also followed in the courts of the Univer- 
 sities of Oxford and Cambridge. By the charters and statutes 
 governing them they were at liberty to proceed according to 
 the practice of the laws, statutes, privileges, liberties, and cus- 
 touis of the universities, or the laws of the land, or the civil 
 law, at their discretion. As might have been expected from 
 such bodies, they chose the latter, so that the civil law became 
 in tliem as binding an authority as in tlie ecclesiastical courts. 
 
 Another means bj' which some of the piinciples of the Roman 
 
 law have been introiluced into England has been by the very 
 
 common use of 
 
 LATIN MAXIMS 
 
 by the judges, whose classical training has led then), often 
 insensibly, to this practice. Some of these have been taken 
 directly from the Corpus Juris; more frequently the}- are 
 from other Latin authors, who have faithfully reproduced the 
 thoughts, though not the exact words of the civil law. A 
 3 
 
34 
 
 refcronco to Broom's or Wlmrton's Lej»al Mnxinis, ami to the 
 211 maxims of the Roman law, found in Lib. L, Tit. XVII., of 
 the DiiLjest, will mvo an idea of the extent and inHuence of this 
 source of the law, to which, as a rule, little attention is paid. 
 As to their authoiity and orij^in, Broom says:* "The juflge.s 
 allow themselves to be governed by the admitted nmxims of 
 the law. In conformity with our most appn)ved commentators 
 I have mentioned luaxims, as an important element of our 
 common law. Of the.se maxims which embody principles of 
 much value when their application is rightly understood, many 
 have been derived from the civil law." The remarks of Chief 
 Justice Best, in the case of Gijford v. Lor^f Yarb(>rough,f re- 
 garding maxims, are also to the same effect. 
 
 LKUISLATION. 
 
 This important method of the introduction of Roman law 
 must not be wholly overlooked. A very few examples must 
 suffice. The Assize of Novel Disseisin, which in large part 
 adopted the interdicts Unde vl and Uti possidetis, has already 
 been referred to. The Statute of Distribution of intestate 
 estates:}: is taken largely from the 118th and 127th Novels of 
 Justinian, The Bankruptcy Acts, among other civil law reme- 
 dies and provisions, have given the trustee the right to take 
 the Actio Pauliana, to set aside acts done in fraud of creditors ; 
 while the various Married Women's Property Acts have been 
 tending to assimilate the English and the Roman law. The 
 Judicature Act has introduced manj'^ Roman elements from the 
 Court of Chancery and the Admiralty, and among other changes 
 has made the law of set-off' almost e(}uivalent to the coinpen- 
 satio of the civil law ; while it has also in England introduced 
 the equitable assignment of choses in action — a provision pre- 
 viously enacted in Ontario by the Mercantile Law Amendment 
 Act of 1872. 
 
 In even a cursory review, like the present, of this important 
 subject, there should be some allusion to certain branches of 
 the law which have adopted to a greater or less extent princi- 
 
 * Broom's Common Law, p. 22. tAnte, p. 23. |22 Car. II., Ch. 10. 
 
))los of the Rointin law, HOint'tiines by inetliods not yet spt'ciivlly 
 mentioned. 
 
 Both pul)lic and private international law are based almost 
 wholly upon the civil law. On this point, Maine says:* " It i.s 
 Hurpri.sinj,' how lar<i;e a part of the system (of international law) 
 is made up of pure Roman law. Whenever there is a doctrine 
 of the jiwisconsuUs affirmed by them to be in harmony with 
 the JLLs fjcniiivni, the publicists have found a reason for borrowing 
 it, however plainly it may bear the marks of a distinctively 
 Roman origin." Private international law may be said to have 
 been almost unknown in the Enjjflish courts until the time of 
 Lord Hardwicke and Lord Mansfield. The fact that its foun<la- 
 tions were laid both in the chancery and in the common law by 
 these distinj^uished jiidj^es, both of them skilled in the Roman 
 law and both admirers of its excellences, larj^ely accounts for 
 its favorable reception and subsetjuent extension. 
 
 The mercantile law of England may be traced very largely 
 to the same source. Lord MansHeld, who has been aptly called 
 the father of modern mercantile law, " was versed not only in 
 the law and history of his own country, but in those ceK-biated 
 writings which constitute the noblest monuments of ancient 
 greatness." -f- He found the commercial law of England in a 
 state of chaos and altogether inadequate to meet the require- 
 ments of a commercial people. By means of the verdicts of 
 special juries as to what was the usage of merchants and the 
 lex me rca tor la, he hamed a .system in harmony with the princi- 
 j)les of the civil law. For this he was bitterly attacked by 
 Junius, who wrote: " In contempt or ignorance of the common 
 law of England, you have made it your study to introduce 
 into the court where you preside measures of jurisprudence un- 
 known to Englishmen. The Roman Code, the law of nations, 
 and the opinions of foreign civilians are your perpetual theme ; 
 but who ever heard you mention Magna Charta or the Bill of 
 Rights with approbation or respect?" Lord Campbell defends 
 him and says there is not the slightest color or pretence for the 
 charge. That he did freely introduce the civil law, which he 
 
 * Ancient Law, p. 97. t Smith's Mercantile Law, p. 11. 
 
•greatly U'linireil, is imlisputaltle ; tluiL it was otio of thu ;,'roaU'st 
 services tliat hns l»"f»n renderctl to t.ie conunorce of Kiipfland is 
 equally true. 
 
 The law of j^eneral avera;»e also comes to us from the law of 
 Rome. The rule laid down by Mr. Justice Lawrence, in the 
 leading case of lilvjdey v. Presifrore* in IHOl, where a common 
 law court first un«lertook to d':,il with a case of general average, 
 and which has since l>een followed, was a translation of the 
 definition of the Ordounanre of Louis XIV^, which in turn was 
 based upon Justinian's Digest, De Laje R/iodla do jdctu.f It 
 had always been recognized as a part of the law merchant. 
 There have l)een a large number of cases in the English courts, 
 from li'irkiey v. Pi'emjrave down to Suenden v. Wtdlave,l decided 
 in the House of Lords in 1885, but so closely has the Roman 
 law been followed, that a leading text-writer on the subject has 
 been able to .say regarding the title of the Digest above referred 
 to : slj "A perusal of this section of the Koman law will .show 
 that, with the exception of the chapter on the relation of gen- 
 eral average to marine insurance — which latter contract was 
 then unknown — it covers the whole ground gone over in this 
 volume ; and there is scarcely a point which has been or may 
 be debated but this law throws more or less of light upon it. 
 Modern civilization in this, as in many other respects, appears 
 to have been only slowly travelling back to the point from 
 which it was hurled down by the fall of the Roman empire." 
 
 The extension of the equitable principles of the action in 
 (tsHiimpalt by Lord Mansfield, in the leading case of Moses v. 
 M(irfi'rlui),\\ and the cases that followed it, affords another 
 instance of the introduction of a number of the doctrines of 
 the Roman law into the procedure in commercial cases which 
 has proved of immense service in developing the commercial 
 law of the country. Passage after pa.ssage of Lord Mansfield's 
 judgment in this case is taken directly from the Roman law, as 
 
 • 1 East's Rep., p. '220. + Dig. Lib. XIV., Tit. II., 1. 
 
 ■ X I-aw Rep,, 10 Appeal Cases, p. 404. 
 
 § Lowndes on (Jeuerul Average, A pp. A., p. 255. 
 1; 2 Burrow's Rep,, p. 1,005, 
 
n7 
 
 is pointiMl out l»y Mi'. Kvans in his tnuislixtion of Potliiir'n work 
 <»n Ohlit^iitioiis. * 
 
 The introduction of the Roman luw ns to iiuihuunts hy Lor«l 
 Holt, in the case of Cofpjn v. licrhanl,^ has already hvrn con- 
 .sidered when roviowini; the work of Bracton and its intluence 
 on Englisii law. The chiini ha.s been Htronf];ly conteHte<l by Cliief 
 Justice Cockburn in the case of Nmjcvt v. Smith.l He views 
 it simply as a relaxation of the very strict rules which had pre- 
 vailed in the common law courts up to that tinie. Jud^e Holmes, 
 of Boston, in his work on the Common Law, endeavors to show 
 that the Enj^Iish law in this respect " is of pure German descent," 
 and that " in this, as in other respects, the Kn<^lish followed the 
 traditions of their race."4j His theory seems, however, to be a 
 far-fetched one, in view of the undisputed fact of the j.dontion 
 of the Roman law by Bracton. 
 
 The English law of easements has also been borrowed lar;,'ely 
 from the Roman law of prjedial servitudes. In some instances 
 this obli<;ation has been fully acknowledged. For example, the 
 rights of riparian proprietors in a water-course or non-navigable 
 stream in England were formally declared to be identical with 
 the civil law by the Privy Council in the case of Mimrr v. Gil- 
 mour, !| which was an appeal from Lower Canada where the 
 civil law was in force. Their Lordships, in laying <lown the 
 law of England, do little more than translate the passages in 
 the Digest bearing on the subject. ^F 
 
 The assigned limits of the present paper have already been 
 exceeded, and the subject cannot now be pursued further. No 
 one can be more conscious than the writer how imperfectly the 
 subject has been treated. (Champions of the common law will, 
 no doubt, be of opinion that he has claimed too much lor the 
 Roman law. His aim has been not to base any claims on mere 
 identity or stmi'arlty betve.m thv:- 1 wo systems, but to restrict 
 them to instances where there is either direct evidence or a stronjr 
 presumption thai"' the cjaim can be .cubstano'ated. His hope is 
 that some competent writer on tne origin or sources of our 
 
 * Evans' Pothier, Vol. II., p. 379. § Holmes on the Common Law, p. 174. 
 
 1 2 Lord Raymond's Rep., p. 909. I 12 Moore's Privy Council Rep., p. 16(». 
 
 t Law Rep., 1 Com. Pleas Div., p. 430. ^ Dig. Lib. XXXIX., Tit. II., 26. 
 
38 
 
 law may take up this subject, and treat it as its importance 
 demands. As a preliminary to this, if some student of the 
 Roman law would do for the Digest what Mr. Williams has 
 done for the Institutes of Justinian in his little work,* very 
 material and valuable assistance would be given to the future 
 historian in the prosecution of such a work. 
 
 To sum up. It is submitted that an impartial consideration 
 of the question will lead to the conclusion that the law of Eng- 
 land is much more largely indebted to the Roman law, and has 
 embodied many more of its provisions than has been generally 
 conceded by the admirers of the former, and that the following 
 propositions are well founded : — 
 
 1. That a large portion of the English common law, gener- 
 ally supposed to be indigenous, is of Roman origin, having 
 either survived from the Roman occupation, or having been 
 subsequently introduced through the influence of the Church, 
 or under the early Norman kings. 
 
 2. That further additions were made to these Roman law 
 elements in consequence of the revival of the study of civil law 
 under Vacarius and his successors, and the incorporation by 
 Bracton into his work of a considerable part of the CorpiLs 
 Juris, either previously embodied in the common law or inserted 
 by him as not being inconsistent with its provisions. 
 
 3. That many of the principles of the civil law were adopted 
 through the medium of the Court of Chancery, the ecclesiastical 
 courts, and the Court of Admiralty, where the civil law rules 
 were either adopted or generally recognized as authorities. 
 
 4. That even in the common law courts the extension of 
 the law to meet the recjuirements of advancing civilization, and 
 particularly the development of modern mercantile law, were 
 largely on civil law lines, thro'ugh the adoption of the lex mer- 
 catoria, and the favdr'wrih'^Tiieh- eminent ji.io'ges, such as 
 Lord Holt and Lord lyiansfield, regarded the Romar? law. 
 
 5. That recent begi^liltiwn, is, for. instancp*, the '.e-xtension of 
 the rules of equity hj the Judicature Act, has infused the 
 equitable principles of the civil law into the law of England. 
 
 * Inst, of Justinian Illustrated by English Lavi^. 
 
'/ n