The Roman Contribution to the Common Law
The R oman Contribution to the Common Law
Edward D. Re 0
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Recommended Citation Edward D. Re, Th e Roman Contribution to the Common Law, 29 Fordham L. Rev. 447 (1961). Available at: http://ir.lawnet.fordham.edu/flr/vol29/iss3/2
EDWARD D. RE*
Although the Roman law was not received in England to the extent that it
was received on the Continent, Professor Re submits that its influcnce Tcas
hardly less pervasive. The concepts, the terminology, the 1nivCrsa!ity, and
the jurisprudential principles of that vast system, were transmitted and
infused into the body of English law throughout its dcvclopmcnt. While the
growth of the Anglo-American law still continues, so may the contributions
to its development by the Roman law, whose own growth so closely parallels
the growth of civilization.
"Si cet ouvrage a du succds, ie le devrai bcaucoup a la majeste de mon
A discussion of any phase of legal history, the difficulty of finding
a point of beginning seems obvious. "Such is the unity of all history
that any one who endeavours to tell a piece of it must feel that his first
sentence tears a seamless web."'
This frustrating difficulty has been experienced particularly by those
who have attempted to unravel the complex skein of English legal
history. Plucknett, for example, in a remarkable one-volume work
modestly entitled A Concise History of the Common Law, refers to the
dependence or indebtedness of later civilizations upon those that preceded
in the following way:
The age which saw the first beginnings of English history witnessed also the decline
of Roman law which had run a course of a thousand Years, making priceless
contributions to civilization. But behind the Roman system were others still more
ancientGreek, Semitic. Assyrian, Egyptian-all with long histories of absorbing interest.2
%This article is based on lectures delivered at Philosophy Hall, Columbia Univcrnity,
in February 1959 under the auspices of the New York Classical Club, and at the Ii'tituto
Italiano di Cultura (of the Italian Embassy), 6S6 Park Avenue, New York City, in
Professor of Law, St. John's University School of Law.
-* "If this work be successful, it shall be due chicfly to the majesty of the fubjectO
Alontesquieu, De L'Esprit des Lois ii (Nouvelle &lition, Paris, Imprimerie E. Caplomont
et V. Renault). (Author's translation.)
1. 1 Pollock & Maitland, The History of English Law 1 (2d ed. 1.93) [hcreinafter
cited as Pollock & Maitland]. In IS2 Stubbs commenced his ess:ay on The Hitory of
the Canon Law in England, in 1 Select Essays in Anglo-American L-"al History 249
(1907), by saying: "It requires no small amount of moral courage to approach a subjcct
of legal history without being either a lawyer or a philosopher." Without commenting
for the philosopher, it may be added that it requires no lesser an amount of moral courage
for a lawyer!
2. Plucknett, A Concise History of the Common Law 3 (5th ed. 1956).
For our purposes, however, it would seem practical that the inquiry
begin with the Roman occupation of the British Isles.
It is not the burden of this article to extol the virtues of the Roman
legal system, or its judicial precepts and institutions. This has already
been done by skilled hands. Nevertheless, since the Roman legal system
had "undoubtedly wider historical significance than the common law"
even if only because of "circumstances," some passing reference will
be made to the prestige enjoyed by the Roman law and how it must
have influenced the minds of future generations familiar with its
panorama of legal rights and duties.' It has been said that far more important
than the reception of Roman "rules" of law by the English law "was
the influence of the Roman law on the English way of looking at the
law, on English jurisprudence and on English law writing."4
Clearly, no attempt will be made to trace the Roman law to its sources
to determine its indebtedness to prior legal systems and cultures. Nor
will the corpus juris of Rome or Roman legal institutions be compared
with the common law of England. By and large all of this has been
admirably treated by eminent scholars of unquestioned authority.5
Rather, what is to be attempted concerns the extent to which the
Roman law played a part in the growth and development of the common
law of England. Hence, the subject has been entitled The Roman
Contribution to the Common Law. To the extent that the common law of
England supplied the legal fabric for the United States of America, the
title might very well have been The Roman Contribution to
It is clear to the legal historian that the Roman law was not "received"
in England to the degree and in the manner that it was "received" on
the Continent. Nevertheless, it is gross error to deny its influence and
pervasive impact upon the growing body of English law, particularly
during its formative period. Whereas on the Continent the Roman law
was utilized to meet the needs of changing social conditions, it is
demonstrable that English law borrowed "foreign law" to meet the increasing
needs of a developing great nation.
Professor Munroe Smith of the Columbia Law School told his students
that in England "equity jurisprudence and legislation served to help
bridge the gaps in the law, which, on the Continent, were filled by
3. See Yntema, Roman Law and Its Influence on Western Civilization, 35 Cornell
L.Q. 77, 79 (1949).
4. Smith, Elements of Law, in Studying Law 171, 341 (Vanderbilt 2d ed. 1955).
5. See Buckland & McNair, Roman Law and Common Law (2d ed. Lawson 1952);
Burdick, The Principles of Roman Law (1938); Sherman, Roman Law in the Modern
World (2d ed. 1922).
6. Smith, Elements of Law, in Studying Law 171, 339 (Vanderbilt 2d ed. 1955).
Hence, while we may not speak strictly of a "reception" or
"acceptance" of Roman law in England, this is not to imply that "Roman law
had no influence on English law.' 7 The very same scholar who refers to
English "equity" as a reason why Roman law was not "received" in
England, goes on to say: "In equity there was, of course, more
borrowing than elsewhere."' Professor Yntema, perhaps wishfully, has also
noted that, despite certain differences, the two people whose laws we are
discussing possess certain national traits in common.'
In presenting the indebtedness of the common law to the Roman law,
some remarks concerning the place of Roman law in the general stream
of culture are inevitable.
STUDY OF RoAN LAW: THE LANGUAGE, DOcTRINEs AND
PHILOSoPHY OF LAW
As a threshold inquiry one may very well ask, "Why discuss Roman
law at all, and particularly at this late date?"
In this connection, the reader ought to pause for a moment to grasp
the full impact of John Maxcy Zane's introductory sentences in his
famous essay on The Five Ages of the Bench and Bar of England. He
It is a singular fact that but two races in the history of the world have shown
what may be called a genius for law. The systems of jurisprudence, which owe their
development to those two races, the Roman and the Norman. now occupy the mbole
of the civilized world.10
7. Id. at 340.
S. Id. at 341.
9. E.g., "reverence for authority and tradition, hostility- to exotic individualLm,
insistence on useful occupation, on Victorian modesty, on frugality, and above all, loyalty,
again and again demonstrated in steadfast resistance to the public enemy, in unhaken
fidelity to their native land and its institutions, and in perzewring courage under the
severest trials." Yntema, supra note 3, at 77.
10. 1 Select Essays in Anglo-American Legal History 625 (1907). See books
recommended by d'Entrves in his Natural Law; An Introduction to Legal Philosophy 16, 32
(1951). Professor d'Entr~ves, of Oxford and formerly of the University of Turin, Lays:
"Hqistorical and critical study of Roman law has developed in the last hundred years,
and particularly in Germany and in Italy, into an immense literature which cannot be
referred to in detail. To the English reader the most inspiring approach to Roman Law
jurisprudence may perhaps still be provided by Gibbon's Decline and Fall, Chapter h'liv?
Id. at 32. The Reverend H. H. Milman in his edition of Gibbon says that "this important
chapter [on Roman law] is received as the text-book on Civil Law in some of the foreign
universities." 4 Gibbon, The History of the Decline and Fall of the Roman Empire 293
(Milman ed. 1852). Gibbon opens that chapter thus: "The vain titles of the victories of
Justinian are crumbled into dust. But the name of the lc,-lator is inscribed on a fair
and everlasting monument. Under his reign, and by his care, the civil jurisprudence was
digested in the immortal works of the Code, the Pandects, and the Institutca: the public
reason of the Romans has been silently or studiously transfused into the domestic
To this may be added the words of Dr. James T. Shotwell, found in
his most recent masterful work entitled The Long Way to Freedom:
Down to our own day the daring achievements of Athenian democracy have
remained an inspiration for the thoughtful and studious rather than a model for
practical application in world affairs. On the other hand, the Roman experience in
government was the largest single influence upon the minds of those who, throughout
the long centuries of European history, created the state system of today. 1
Fully appreciative of the Roman contribution to government-and
man's struggle for freedom-Dr. Shotwell notes that Rome's most
lasting contribution was the Roman law:
The permanent contribution of Rome to the Western world was not this
prodigious structure of empire, however lasting its impression on the minds of statesmen
and peoples of succeeding centuries, but the development of a vast and splendid
system of law. The history of this great juristic creation runs parallel with that of
Rome itself from the days of kingship of the little city state to those of the Emperor
Justinian when the barbarians
of the ancient world was Constanwtienroepalelr.e1a2dy ruling in the West and the last citadel
Is the subject important or useful? Two witnesses will be called to
testify on the cultural and practical value of the subject. The first will
be a distinguished Englishman, a reader in Roman law in the Inns of
Court, who states:
The reasons which justify [the study of Roman law], particularly for students
who breathe a Common Law atmosphere, are principally these:
1. Roman Law is one of the great things which have happened in the world. It is
part of a liberal education to know something about it.
Roman Law is an introduction to the study of the Science of Law, or, as we call
it, Jurisprudence. For many centuries the Science of Law was Roman Law. If in
modem times it has widened its outlook and improved its methods its debt to
Roman Law remains unquestioned.
Roman Law is a key to the terminology and, to a great extent, to the substance
of foreign systems.
tions of Europe, and the laws of Justinian still command the respect or obedience of
independent nations." Id. at 298-99. He also observes that "the laws of a nation form
the most instructive portion of its history. ..." Id. at 300.
11. Shotwell, The Long Way to Freedom 107-08 (1960).
12. Id. at 117. James Brown Scott expressed this thought as follows: "Great empire
builders as the Romans were, they were still greater architects of law. And when their
empire crumbled and disappeared, the firmly knit structure of their legal system withstood
the barbarian avalanche which threatened to sweep away the civilization of the ancient
world." 1 Scott, Law, the State, and the International Community 241 (1939). "Roman
Law as a civilizing influence. . . . The Romans in their law reflected and embodied
much of the best that man had been able to devise as the result of thousands of years
of experience in social living raised to the level of civilized living." Kinnane, A First Book
on Anglo-American Law § 77, at 202-03 (2d ed. 1952).
Roman Law enlarges the mind. Burke has well said that "the science of law does
more to strengthen the mind than to liberalise it ....13
Its liberalizing influence, however, is not to be overlooked or
The second, an American, is Dr. Phineas Sherman, a keen scholar and
researcher in Roman law who, writing about forty years ago, had this
The revival in the United States of the study of the Civil Law has already
assumed ample proportions which are yearly increasing, and its full fruition with
many far-reaching consequences is but a question of time. The greatest contribution
of this revival to American law will be a powerful influence operating for the
betterment of the private law of the United States, purging it of its present dross of
redundancy, prolixity, inconsistency, and lack of uniformity, and crystallizing it into
the compact form of a codification.14
The foregoing opinion as to the historical and continuing contribution
of Roman law is shared by many scholars who declare that the
contribution of Roman law to world culture is second only to the advent of
Christianity.l" "In the opinion of Buckland, one of the greatest Romanists
of our time, next to Christianity, it 'was the greatest factor in the
creation of modem civilization, and it is the greatest intellectual legacy
of Rome.' ,
"Indeed it was the Roman Empire," states Bryce, "and the Church
taken together which first created the idea of a law common to all
subjects and (later) to all Christians, a law embodying rights
enforceable in the courts of every civilized country."17
Most scholars would probably readily concede the existence of this
contribution since it is not difficult to see that many of the beautiful
phrases of natural law philosophers embodied the eternal principles of
justice of the corpus juris of Rome. The role of the Roman law as a
universal law embodying principles of natural law applicable for all
time is also generally admitted.'"
Dr. Sherman indicates that the American Declaration of Independence,
a monumental declaration that may be regarded as the crowning
achievement of eighteenth century philosophy, "enshrines many a tenet of
Roman jurists who confessed the alliance of philosophy with law." 1"
The inspiring statement that "by natural law all men are equal" is
the inspiration of the great Ulpian as is the noble definition that "justice
is the constant and perpetual will to allot to every man his due."
Although all students of the common law know the Latin maxim volenti
non fit injuria, few know that it also, in addition to countless others,
represents the survival in modern law of the genius that was Ulpian.
In portraying Papinian and Ulpian, Professor John Henry Wigmore,
in his instructive and most enjoyable A Panoramaof the World's Legal
Systems, reminds the reader that "for us, these two bear also this
sentimental distinction, that (with Paulus) they once dispensed justice in the
island of Britain, as Roman magistrates in a Roman basilica. 2 0
In mentioning Papinian one cannot refrain from saying that he has
been referred to as the greatest name in Roman law. In fact, Justinian
calls him "The Illustrious." For it was he who enjoyed the unique
distinction that, among the five principal jurisconsults, where they were
divided in opinion, his opinion should prevail. But Wigmore points out
that his "truest fame should be that he died a martyr to his professional
honesty." When the ruthless Caracalla caused the assassination of his
own brother, who shared the throne with him, and directed Papinian,
then his attorney general, to write a legal opinion in justification,
Papinian replied with these immortal words: "I do not find it so easy
to justify such a deed as you did to commit it." For this rebuke,
Caracalla had Papinian put to death.2
But other glowing tributes have not been registered without restraint
and reservation. Sir William Blackstone, in his opening Vinerian lecture
at Oxford, on the 25th of October, 1758, commended the study of the
civil law. He indicated that both on the Continent of Europe and "in
18. See Smith, A General View of European Legal History 1, 4-5 (1927).
19. 1 Sherman, Roman Law in the Modern World 61 (2d ed. 1922).
20. Wigmore, A Panorama of the World's Legal Systems 428 (1936).
21. Ibid. See also Howe, Studies in the Civil Law 82-83 (2d ed. 1905). "'That It was
easier to commit than to justify a parricide', was the glorious reply of Papinian; who did
not hesitate between the loss of life and that of honor." 1 Gibbon, The History of the
Decline and Fall of the Roman Empire 159 (Milman ed. 1852).
the northern parts of our own island... it is difficult to meet with a
person of liberal education, who is destitute of a competent knowledge
irnulethoaft hsicsiecnicveil wchoincdhucist. t'o22 be the guardian of his natural rights and the
After stating that the imperial laws of Rome had not been "totally
neglected even in the English nation," and that it was not his intent
"to derogate from the study of civil law, considered ... as a collection
of written reason, 3 he hastens to add:
But we must not carry our veneration so far as to sacrifice our Alfred and Edward
to the names of Theodosius and Justinian; we must not prefer the edict of the
praetor, or the rescript of the Roman emperor to our own immemorial customs, or
the sanctions of an English parliament ....21
This is not to be taken to mean, however, that English scholars and
jurists have not admired and appreciated the grandeur and beauty of
the Roman law. It is on the question of the "reception" or the influence
of the Roman law upon the common law that scholars have differed
widely. Perhaps Professor Burdick is correct when he states that the
various answers depend "in some instances, upon the prejudices or the
sympathies of the different writers.' ' -a He suggests that some of the
conclusions are affected by the "great conservatism of some English
writers, also pride in the alleged indigenous laws of their own country,
and prejudice, perhaps, against foreign influence ...."-2Professor Burdick
may perhaps have offered the real explanation of Blackstone's "courteous
diplomacy" toward the civil or Roman law. He subnits that Blackstone's
views were influenced by his political and ecclesiastical environment.
This attitude of "insularity" and religious prejudice has not gone
unnoticed. Dr. Sherman, who refers to the use of Roman law "to supply
the defects of the common law," adds: "But its use and reception were
not always acknowledged by the courts. And this habit and practice
gradually increased proportionately with the rise and increase of English
prejudice against whatever bore the name 'Roman.' ),27
The hostility against "foreign laws" was especially aimed at the canon
law-"that ecclesiastical offshoot of Roman law" 2 8-and soon both came
to be regarded with suspicion as "instruments to enslave the English
people to popes and emperors."" Mr. Ben W. Palmer, writing in the
American Bar Association Journal, describes this attitude, with
remarkable conservatism, as "a certain insular patriotism which may have
affected English legal historians.""
One more word will be said about this aspect of the subject. It will
be remembered that Blackstone attributed the continued teaching of the
civil law in the English universities to the influence of "the popish
clergy." Blackstone also repeated the fanciful story, perhaps current in
his day, that a copy of Justinian's Digest was accidentally discovered at
the siege of Amalfi in 1135, and this caused a revival of the Roman law.
From this story, which is regarded as apocryphal by modern scholars,"
Blackstone would have the reader believe that up to that time, Roman
law had been all but forgotten.3 2 This is clearly erroneous, since Roman
law was taught at the University of Bologna long before the legendary
discovery of the manuscript at Amalfi. Blackstone, however, was
accepting or espousing a theory that fit neatly in the then current impression
27. Sherman, The Romanization of English Law, 23 Yale L.J. 318, 328 (1914).
29. Ibid. Wigmore, in A Panorama of the World's Legal Systems, following chapter XV
on the "Romanesque Legal System," lists certain excellent works under the heading,
"General References." To the listing of Dr. Sherman's two-volume work, Roman Law In
the Modern World, Wigmore adds: "[T]his author's excessive claims for the wide Influence
of Roman and Romanesque law must be discounted." It is interesting to compare
Wigmore's caveat about Sherman's "excessive claims" with the map of the Roman Empire
in chapter VII, "The Roman Legal System," and the "World Map of the Romanesque
System." Wigmore, A Panorama of the World's Legal Systems 1040, 1046 (1936). In
reading the works of those who make "claims" and those who deny them, one is reminded
of the French literary critics Charles-Augustin Sainte-Beuve and Hippolyte
Tatneparticularly of Taine's "trois forces primordiales dans l'histoire: race, milieu, moment"
in L'Introduction b l'Histoire de la Litt~rature Anglaise. One is also reminded of
Whitehead's statement that "the ideals cherished in the souls of men enter into the character of
their actions." Whitehead, Adventures of Ideas 49 (1955).
30. Palmer, An Imperishable System: What the World Owes to Roman Law, 45
A.B.A.J. 1149, 1151 (1959). Mr. Album, also writing in the American Bar Association
Journal, said that "Englishmen are loath to concede any great influence of Roman law upon
English law ... " Alburn, Corpus Juris Civilis: A Historical Romance, 45 A.B.A.J. 562,
31. 1 Pollock & Maitland 23. It has been said that "we may all admit the great ability of
Blackstone as a lawyer and a lecturer, but it is manifest that history was not his forte."
Howe, Studies in the Civil Law 112 (2d ed. 1905).
32. Burdick, The Principles of Roman Law 57, 165 (1938).
THE ROMAN CONTRIBUTTION
that, since the canon law had drawn upon the Roman law, and since
the Roman Catholic clergy was familiar with it, Roman law was "in
some occult or insidious way, being used to propagate popish doctrines. ' 3:
Professor Burdick concludes thus: "The very term 'Roman' Law seemed
to connect it with the Church of Rome, and probably many zealous
adherents of the English church believed they were prompting a righteous
cause by discouraging the spread, or even the retention, of Civil Law
In this connection, William Wirt Howe, lecturing at Yale in 1894,
observed that those who entertained these prejudices "perhaps forgot
that the classical jurists who made the civil law what it was never heard
of any pope ... but were merely poor pagans looking for that justice
which is the uniform and enduring endeavor to render to every man
that which is his due... 2 35 Of course, Howe was paraphrasing Ulpian's
definition of justice as enshrined in the Institttcs.0
The reference to Blackstone and the attitudes of the time do not mean
that English scholars have not come to appreciate the grandeur of the
Roman law. Dr. James Bryce, who for almost a quarter of a century
was Regius Professor of Roman Law at Oxford, had this to say in his
valedictory address at that great English University:
In . . . [the Roman Law] one may find something of value upon almost every
principle and general legal doctrine with which a jurist has to deal. The legal
conceptions set forth are those upon which all subsequent law has been based; and
nearly all of them find their place in our ovn system, which they have largely
contributed to mould.... No rules could better conform to the three canons of good
law, that it should be definite, self-consistent, and delicately adapted to the practical
needs of society. No study can be better fitted to put a fine edge upon the mind, or
to form in it the habit of clear logical thinking.ar
BRITAIN AS A RomAN PROVINCE: ULPIAN, PAPINIAN AN PAUL
In 53 B.C., Julius Caesar landed in Britain. In 43 A.D., the systematic
conquest of Britain was begun by Agricola, and for the next three and
a half centuries Britain was a Roman province.
This occupation cannot be minimized, because it is clear that Britain
was an imperial province of the first order. At one time it had a garrison
33. Id. at 57.
35. Howe, Studies in the Civil Law 112-13 (2d ed. 1905).
36. Institutes 1.1.1. To this may be added what the Institutes call the thrcz main
principles of justice: "To live honestly, to hurt no one, and to give everyone his due."
(Author's translation.) (Juris praecepta sunt haec: honeste vivcre, alterum non lacdere,
suum cuique tribuere.) Institutes 1.1.3. See note 126 infra.
37. 2 Bryce, Studies in History and Jurisprudence S94 (I501).
of about 30,000 Rom38 an soldiers and was regarded as an important
Likewise, it is well to remember that, centuries later, the Roman
legions were withdrawn from Britain because they were needed to
defend the Italian peninsula against the invasions from the north. They
were not ousted from the island. As Mommsen puts it: "[I]t was not
Britain that gave up Rome, but Rome that gave up Britain.""9
What was the nature of this occupation and what influence did it have
upon the legal development of the island?
Certain physical facts stand out in bold relief. South of the "Roman
Wall," a stone rampart still largely in existence in Northumberland,
many townships were planned on the Roman pattern. The largest of
these, and of purely Roman foundation, was Londinium. Many others
could be mentioned. Suffice it to say that Agricola did much to Romanize
the province. He started schools for the sons of the nobles, encouraged
the erection of temples, baths and forums, and we are told he even
popularized the adoption of the "toga" in lieu of the native breeches.
Although there is less certainty as to the extent to which the Latin
language was adopted, the following quotation is both relevant and
It was certainly used in all official documents, in the law courts, and among the more
educated classes; but there is also sufficient evidence to show that ordinary workmen
knew a smattering at least, for on tiles and bricks have been found such scrawlings
as satis ("enough") and puellam ("the girl"), and even the entertaining inscription
"Austalis dibus XIII vagatur sibi cotidim," which means "Augustalis has been off on
his own every day for a fortnight. '40
This period may very well be entitled the obscure age of English
legal history. Some light on the general nature of the occupation has
been shed by Haverfield, but he too tends to minimize the importance
of the occupation and its influence. He states:
From the standpoints alike of the ancient Roman statesman and of the modern
Roman historian the military posts and their garrisons formed the dominant element
in Britain. But they have left little permanent mark on the civilisation and character
of the island. The ruins of their forts and fortresses are on our hill-sides. But,
Roman as they were, their garrisons did little to spread Roman culture here. Outside
their walls, each of them had a small or large settlement of womenfolk, traders,
perhaps also of time-expired soldiers wishful to end their days where they had
served. But hardly any of these settlements grew up into towns. York may form an
exception . ... 1
Haverfield goes on to say that the "departure of the Romans" from the
island did not mean any departure of Romans or other persons. Rather,
"it meant that the central government in Italy now ceased to send out
the usual governors and other high officials and to organise the supply
of troops. No one went: some persons failed to come."4' 2 The reader is
nevertheless told that towns were abandoned, Roman speech and
boundaries vanished, and only the massive foundations of the roads survived 3
History tells us that the Roman legions were not evacuated until
410 A.D. Since Britain was under Roman rule for such a long period of
time, how could she have completely escaped the influence of Roman
law? Those that have urged that the feudal system was of Roman origin,
and that the craft guilds were the descendants of the collegia opifictm
and that the English village community was derived from the Roman
villa, have met with the severest attack. 4 Selden, for example, declared
that when the Roman left Britain, his law likewise departedV3 After
stating Selden's opinion on the matter, Dr. Winfield comments:
No reasonable man can resist the conclusion that it must have had some effect
while he was there. Lawyers like Papinian, Ulpian and Paul, would leave their
influence on anyone with whom they came in touch, and Papinian was at one time
prefect of York, and may possibly have had Paul and Ulpian as his assezsors there.
Nor is it credible that Rome, of all empires, should have ruled any dominion for
three and a half centuries without making her subjects familiar with some of the
principles of law that backed her government.40
Winfield adds, however, that "satisfactory evidence" has not yet been
produced showing "any very appreciable or lasting transmission of the
Roman law to the rulers who succeeded the Romans."' , It is, of course,
perfectly safe to say that if one seeks proof comparable to the "massive
foundations of roads," it is not likely to be found. Nonetheless, Winfield
enumerates three "exceptions." One exception deals with the land law.
Citing Vinogradoff,4- he states that grants of land to private individuals,
unclogged by the native "folkwright," can be linked up to Roman
conceptions of ownership. The second exception relates to the law of wills,
which may have had a Roman origin by way of the ecclesiastical law.
Citing Scrutton, 2 the other exception concerned Teutonic procedure
which might have been affected by the presence of the bishops in the
shire-moots. The shire-moot, also known as the scire-gemote or
shiremot, comes from the Saxon scyre or county. It was a court or an
assembly. Specifically, it was the principal Saxon county court and it was
held twice a year before the aldermen of the shire.
Mommsen tells us that the Roman law "made rapid strides in Britain
during the second and third centuries A.D., as is attested by the writings
of the Roman jurists Javolenus and Ulpian, who discussed cases arising
in Britain."" ° Reference must again be made to Papinian. He was chief
justice at York with Ulpian and Paulus as his associate justices.
Commenting upon this galaxy of talent, Dr. Sherman, writing in 1914, states
that it was "as if the United States Supreme Court were to hold sessions
in Alaska." '51
THE ADVENT OF CHRISTIANITY: THE EARLY KINGS AND A
The introduction of Christianity into Britain had far-reaching effects
both upon the people and the law of the land. Since Constantine had
adopted Christianity as the state religion in 325 A.D., this introduction
had started in the later years of the Roman occupation of Britain.
Assuming, however, that after the Romans left, the Britons had to be
converted anew, this "reconversion" took place within a comparatively
short time. The important date in this "reconversion" is 596 A.D., the
date of the arrival of St. Augustine, who established contact between the
English tribesmen and the Roman Church.
St. Augustine, with forty missionary Benedictine monks, in 596 A.D.
arrived at Canterbury (hence known as St. Augustine of Canterbury as
distinguished from the great St. Augustine of Hippo, in Africa), where
he built a monastery and established his episcopal seat. The most
famous of St. Augustine's converts to Christianity was Ethelbert, King
of Kent. Ethelbert welcomed St. Augustine and his missionaries and
willingly gave them permission to preach everywhere in his kingdom.
St. Augustine was sent to Britain by St. Gregory, or Pope Gregory the
Great, as he is also called. The fact that the leadership of the Church
This work by Thomas Edward Scrutton was the Yorke Prize Essay of the University of
Cambridge for the year 1884. The essay bore the motto "Tu regere imperlo populos,
Romane, memento" from Book VI of Virgil's Aeneid. The "exception" referred to by
Winfield reads as follows: "The introduction of written instruments as evidence of the
transfer of property, and the adoption of wills, are certainly due to ecclesiastical and
probably to Roman influences; and the presence of the bishops in the shiremoots may have
affected Teutonic procedure, but the traces of such an influence are very slight." Scrutton,
op. cit. supra, at 65.
50. 1 Mommsen, The Provinces of the Roman Empire 194 (Dickson transl. 1886).
51. Sherman, The Romanization of English Law, 23 Yale L.J. 318 (1914).
THE ROMAN0N2 CONTRIBUTION
was under St. Gregory at the time when Augustine was spreading the
teachings of Christianity in Britain is of especial significance. Gregory
had dedicated himself to the task of establishing the spiritual supremacy
of the Church over all of Europe. It has been written that he "was a
Roman of the Romans, nurtured on traditions of Rome's imperial
greatness, cherishing the memories of pacification and justice, of control and
protection. ' a'
It is well established that Gregory knew the Digest of Justinian."
Likewise, it is well established that Ethelbert of Kent soon revealed
Roman influences because at about 600 A.D., on "St. Augustine's day,"
he compiled or codified the laws of his kingdom in "Roman style" or
in "Roman fashion. '11 4 The latter phrases are translations of the Latin
juxta exempla Romanorzm, found in Bede's Ecclesiastical History of
England, written about 735. Hence, Ethelbert committed his laws to
writing "according to the example of the Romans" or "according to the
Roman mode, "' 5 significantly at about 600 A.D. It is therefore almost a
certainty that Augustine and his missionaries, sent to Britain by Gregory,
must have brought to the attention of Ethelbert the "exploits of Justinian,
then dead scarcely forty years."5ao
The presence of the clergy on the island was significant in bringing
a knowledge of government to the inefficient tribal organizations. The
missionaries who came from well-organized states on the Continent
brought with them ideas and notions of public administration. From
them, the leaders of the island, for example, learned the Roman method
of taxation which divided the land into units ("hides") of equal
assessment instead of equal area.17 At the same time this new class, the
clergy, made necessary a new body of law for their protection. This
gave impetus to the development of the law of status or, as it is known
today, the law of persons.
During this pre-Norman period of English legal history, the Roman
law was the law of the Romani, and in Britain, the Romani were the
clergy. In such an era of personal laws, the Roman law was a living law
as long as there were Romani. Although this led to a "vulgarizing" of
Roman law, it is equally true that it continued the diffusion and
dissemination of Roman law and Roman law concepts. Pollock and Maitland
say that "the German and Roman law were making advances toward
each other. If the one was becoming civilized, the other had been badly
barbarized or rather vulgarized."5'8 This Roman law was "vulgar" in
the same sense that the Latin or Romance that was spoken by the
people was "vulgar" when compared with classical Latin. Nevertheless,
this "low" Roman law was the source of many of the doctrines and
concepts that prevailed. It is to this that modern conveyancing owes its
origin, and it is stated categorically that the "Anglo-Saxon 'land book' is
of Italian origin.""0 To all this must be added that "through the
fostering care of the Christian clergy, whose personal law was the Roman
law,"6 a knowledge of the Roman law was kept alive in Britain from
the seventh to the eleventh century. It is no longer doubted that
during these centuries Roman law was taught and studied in the
Cathedral School at York.6
Committing the laws to writing, first accomplished by Ethelbert, set a
precedent to be followed by several of the later kings. The first law
book of Wessex was compiled by order of King Ina about 700 A.D. In
827 the kingdoms of the Angles and the Saxons united under Egbert and
became Angle-land-England. Alfred, who has been called "the Great"
by English historians by reason of his literary attainments and because
he drove out the Danes, reigned from 871 to 901. In his youth he visited
Rome and endeavored to import to England the learning of the
Continent. He promulgated a code known as The Laws of King Alfred,
wherein he gathered such laws of Ina and Ethelbert that to him seemed
good. 62 The next great king is Canute, who ruled in Denmark and also
in England from 1016 to 1035. He, too, had visited Rome and enacted
comprehensive statutes, earning for him the honor of being called "the
greatest legislator of the eleventh century.) 63
58. 1 Pollock &Maitland 15; see 2 Holdsworth 133.
60. Sherman, supra note 51, at 319.
62. Thorpe, Ancient Laws and Institutes of England 20, 27 (1840).
63. 1 Pollock & Maitland 20.
The Anglo-Saxon dynasty was restored with Edward the Confessor,
who was crowned King on Easter Sunday, 1042. Edward, who had spent
about thirty years of his life in exile on the Continent, was destined to
continue Roman influence in Britain. Because of the spread of Norman
influence during his reign, this period, just preceding the Norman
conquest, has been dubbed "a sort of peaceful Norman conquest."C Since
the early Norman kings, in order to obtain favor with the people, swore
to keep the laws of Edward the Confessor, his laws form an important
basis of the later English law.6 ' In 1066, Edward died without issue and
was succeeded to the throne by his wife's brother, Harold. This
succession was disputed by William, Duke of Normandy, who defeated
Harold at the Battle of Hastings on October 14, 1066, thus becoming in
the pages of history William the Conqueror, K-ing of England.
The legislative activity of this pre-Norman period by codifications,
or generally by setting laws to writing, is a significant result of the
contact with Rome and those familiar with its legal system. It is the
fruition of the wish to follow "the example of the Romans" that laws
can be made by the issue of commands."6 "Statute appears as the
lized form of law." 5
Discussing the sources of English law in the twelfth century,
immediately after the Norman conquest, Pollock and Maitland ask: "Who
shall say that there is not in it an Italian element?" s The references to
the "Roman style" in the codifications long before the conquest indicate
that the question, or rather observation, should not be limited to the
Although the foregoing sketch suggests the continuity of Roman
influences, in particular through the presence of the Roman clergy, it
does not represent the truly important contribution of Christianity to
the island. What Christianity really brought concerned the moral ideas
that were destined to revolutionize all of English law. In the words of
Plucknett: "Christianity had inherited from Judaism an outlook upon
moral questions which was strictly individualistic. The salvation of each
separate soul was dependent upon the actions of the individual."6' '
Surely such an approach differed radically from the custom of the
English tribes which looked to the family group rather than to the
individual. As the people embraced Christianity, notions of individual moral
responsibility replaced those of group responsibility. Just as did the
64. Plucknett, A Concie istory of the Common Law 10 (5th ed. 1956).
65. 1 Pollock & Maitland SS, 95-96; Sherman, supra note 51, at 320.
66. 1 Pollock & aifland 12.
68. Id. at 78.
69. Plucknett, op. cit. supra note 64, at 8-9.
Church, the law soon came to judge the act according to the intention of
the person who committed it.
The foregoing Christian outlook of the morality and legality of human
conduct assumes tremendous importance, for it goes to the very heart of
English equity, which acted "in personam"-upon the conscience of the
defendant. Although the Court of Chancery that administered "equity"
was not an ecclesiastical court, its presiding officer was for a long time
always an ecclesiastic. He was the King's Chancellor-the keeper of the
royal conscience. It is not seriously disputed that he knew both the
canon law and the Roman law. Through him "it was only natural that
the doctrines and methods of the civil law should find entrance largely
into this branch of the English system."7 0 Separate treatment will be
given to the Court of Chancery, which has been called "Roman to the
THE NORMAN CONQUEST: WILLIAM AND LANFRANC
The most important immediate consequence of the Norman conquest
was the introduction into Britain of an orderly system of law and
government. William, apparently a gifted administrator, had developed a sound
financial organization called the "Camera," or chamber.7 2 After nearly
twenty years of preparatory work, he accomplished the remarkable feat
of successfully invading England by crossing the English channel. His
victory over Harold at the Battle of Hastings and the date, 1066, are
matters of common knowledge. However, even those who know of the
contribution of William in systematizing the administration of the island
may not know of the role played by Lanfranc, the lawyer from Pavia,
most often described as "the Conqueror's right-hand man." 3 This
distinguished scholar, who in 1070 became Archbishop of Canterbury, was
William's "prime minister and chief adviser."7 Not only was he a great
prelate and theologian, but he was also an accomplished lawyer who had
studied and taught Roman law at Pavia, in his native Italy. He was one
of the "masters" of the "Longobardistic-Frankish" school of lawyers
and was always remembered "with respect" by the great jurists for his
knowledge of the law."a By training and experience he was uniquely
suited for the role of "prime minister."
Lanfranc arrived at Normandy and opened a secular school at
Avranches. While in Normandy he became a monk and taught at the
Abbey at Bec.7 6 Although there is some doubt, it is probable that, in
addition to grammar and rhetoric, he also taught Roman law both at
Avranches and at BeC.17 The probability is strengthened by the fact that
he was remembered in Normandy as a discoverer of Roman law. 8
By virtue of the special confidence reposed in Lanfranc by William,
his influence upon the law at this most crucial period of English legal
history cannot be overemphasized. Admittedly he knew Lombard law,
Roman law and the canon law. When he was Archbishop "the decreta
and canones were ever in his mouth." ° In addition he dramatically
proved that he had also mastered the English law. In the one great
lawsuit of William's reign-to recover the See of Canterbury from a
usurper-the cause was personally conducted by Lanfranc. William
brought Aethelric, an ancient churchman steeped in the Saxon laws
and lore, to the trial to evaluate Lanfranc's presentation. His training
in the Italo-German legal customs, learned in Lombardy, was of
tremendous value. The skillful Pavian prepared himself well and at the trial he
"discoursed brilliantly on sac and soc, toll and team, infangthief and
utfangthief," and thus won the lawsuit. The case was reopened in his
absence and an adverse judgment was entered. At a retrial, Lanfranc
was once again victorious. After this we are told that no one dared
challenge him in legal matters."0
Most recently, Lanfranc has been described as William's "eminent
collaborator, above all in the legislative field."'" It is in the light of his
remarkable background, the august position that he occupied, and the
historical importance of the period, that the reader can best appreciate
Pollock and Maitland's rhetorical question about the sources of English
law. They note that the "very existence of Lanfranc... must complicate
the problem of anyone who would trace to its sources the English law
of the twelfth century." 2 Then follows:
The Norman Conquest takes place just at a moment when in the general history of
law in Europe new forces are coming into play. Roman law is being studied, for men
are mastering the Institutes at Pavia and will soon be expounding the Digest at
Bologna; Canon law is being evolved, and both claim a cosmopolitan dominion. 83
Lanfranc's role in the development of the common law assumes new
dimensions if it is remembered that, by his very presence and influence,
he prepared the soil for the reception of the legal and intellectual revival
that was beginning in northern Italy. And the revival of the Roman law
was not limited to the universities.
In 1038, Conrad II, King of Germany, who in 1027 had been crowned
emperor by the Pope at Rome, decreed that Roman law should once
again be the territorial law of the City of Rome. In 1076 the Digest was
cited in the judgment of a Tuscan court. Very soon, possibly before
1100, Irnerius, "the bright lamp of law," as he was called, began
teaching Roman law at Bologna.' To him, "a simple teacher of liberal arts,"
is attributed the teaching of law at Bologna as an "autonomous" science,
and "at the same time the study of [Justinian's Code and Digest] from
genuine dnd complete texts . . . ."" These he regarded as repositories
of legal science and "written reason."
Irnerius, and the masters that followed him, set in motion a wave of
Roman law influence that was to be felt in all of the former Roman
provinces. It was truly a Renaissance, in the etymological sense of the
word. This was to be a Roman conquest more lasting and enduring than
any prior conquest by the sword.
POST-NOMAN DEVELOPMENT: THE E.4iuY ARCHBISHOPS,
VACARIUS AND THE LEGISTS
Lanfranc and the Abbey at Bec had a direct and profound influence
upon England for generations to come. Lanfranc was followed as
Archbishop of Canterbury by St. Anselm (1033-1109), who had also been
a monk and teacher at the Abbey at Bec. St. Anselm was a Piedmontese
who, because of his writings, is considered the father of Scholasticism.
He is well known in English history for his quarrels with Rufus and
Henry II, having thereby precipitated the Investiture contest in England.
Under Anselm, not only do we see the independence which soon would
cause Chancellors to assume jurisdiction and give relief in causes when
the ordinary courts would not, but also an inceptive special prominence
of the clergy in all matters legal-whether canonical, civil or
Anselm was succeeded as Archbishop by Theobald, in whose
household was trained Thomas a Becket, who was to be Chancellor,
Archbishop and martyr. In 1145 [1143?], Theobald brought to England,
Vacarius, a celebrated "civilian glossator" from Mantua who taught
Roman law at Bologna. 0
The importance of Vacarius upon the subject can be gleaned from the
introductory sentences of Scrutton in his Yorke Prize Essay. Scrutton's
dichotomy is indeed a glowing tribute to the influence of Vacarius upon
the law of England. He states:
Any discussion of the influence exercised in England by the Roman Law vill
naturally fall into two divisions separated by the arrival in the year 1143 of Vacarius
on our shores in the train of Archbishop Theobald, and his lectures on Roman Law
at Oxford in and after 1149; for these events, which in European history form part
of the current of Roman influence which sprang from the enthusiastic studies of the
Law School at Bologna in the 12th century, begin a new era in the history of English
law and of its connexion with the legal system of Rome.87
In addition to teaching at the Archbishop's household, Vacarius
86. Ambrosino, 2 Glossatore Vacario Polemista Antiereticale (nora bibliografica), in
Rivista Italiana per le Sdenze Giuridiche 415-20 (1950); Calasso, Media Evo del Diritto
S7. Scrutton, The Influence of the Roman Law on the Law of England 1 (1KS5).
Scrutton proceeds to say: "We have then in our survey to deal with two great porios."
Ibid. The period before Vacarius "is one of custom, not of written law; of vaguenEs
rather than of precision; and it will afford no matter for surprise if in the legal obzcurity
of those early centuries we find very little ground for confident assertion in matters
peculiarly difficult. With our second period we find more light. From the teaching of
Vacarius in 1149, we pass at once to authoritative text boolb by masters of lay." Id.
at 1-2. "In the train of the Archbishop of Canterbury, an Italian named Vacariuw, leancd
in the Justinianean Law which the newly-born Law School of Bologna was teaching with
a young converts zeal, had landed on English shores; and from his lips Oxford and
England heard the laws of Rome." Id. at 66.
Roman law, by showing inaccuracies, have met with the reply that his
knowledge must be tested not by the Digest, but by the Romanized
customs of the Continent. 123
Sir William Holdsworth, who has given a rather detailed account of
the Romanism in Bracton, 124 offers the following penetrating evaluation:
What, then, was the debt of Bracton and English law to the Roman law? ... We
cannot say that all Bracton's law is English in substance, that the influence of Roman
law is merely formal. No doubt there is a body of thoroughly English rules; and
Bracton differs at very many points from the Roman texts. But it is clear that he
has used Roman terms, Roman maxims, and Roman doctrines to construct upon
native foundations a reasonable system out of comparatively meagre authorities.
Even when he is dealing ith purely English portions of his Treatise, and discoursing
upon the assizes, the vits of entry, or the writ of right, Roman illustrations and
phrases naturally recur to him. And it is clear that his study of Roman law has led
him to discuss problems which, when he wrote, were very far from any actual case
argued in the royal courts. Thus he deals with accessio, specificatio, and confusio;
and "where," says 'Maitland, "in all our countless volumes of reports shall we find
any decisions about some questions that Azo has suggested to Bracton?" Similarly
he deals with many questions relating to obligation and contract, fraud and
negligence, about which the common law had as yet no rules. In dealing with these
matters he necessarily uses Roman terms and borrows Roman rules. It is, as we shall
see, because his Treatises have given to English law at least one authority upon many
matters which were outside the routine of the practising lawyer of the thirteenth
century that his influence upon the history of English law has been so great. That
his Treatise deals with such matters is due to the Roman law which it contains. 25
The reference to Azo is to the famous lawyer and Glossator of Bologna
who was called "the master of the masters of the law." There can be no
doubt that not only had Bracton "diligently studied"'", Azo's Summary
of Roman Law, but he made copious use of the book!
As a matter of diversion, it may be added that there was a popular
123. See Scrutton, Roman Law Influence in Chancery, Church Courts, Admiralty and
the Law Merchant, in 1 Select Essays in Anglo-American Legal Hiitory 203, 201 (107),
where he discusses Sir Edward Coke's Institutes and says: "Col:e cites very largely from
Bracton, and some of the passages are those directly derived from Roman source."'
Vinogradoff, Roman Law in Mediaex-al Europe 83-105 (1909).
124. 2 Holdsworth 267-S6. "The introductory sections of the Treatise are modcllcd on
the introductory sections of the Institutes. They also contain traces of the dialectical methods
of the glossators. . . . But all through the hook we can see that Roman doctrine is uzd to
illustrate and explain the principles of the law, or is worked, in a medified fcjrm, into its
substance.... Even where the substance of the law is not Roman, Roman phrascolo - is
used, and Roman texts are followed sometimes with considerable exactnecs." Id. at 271,
125. Id. at 285-86.
126. 1 Pollock & Maitland 207. For authorities that Bracton "copied from Azo," sea
2 Holdsworth 267. "Law is just when it renders to every one his own. 'Juris praccepta
sunt tria haec, honeste vivere, alterum non laedere, jus suum unicuique tribucre,' rays
Bracton, quoting from the Digest and Azo." Rooney, Lawle":nes, Law, and Sanction 73
(1937). See note 36 supra.
jingle about Azo-of particular interest to the lawyer who aspired to
Unless on Azo you prepare
Judicial robes you'll never wear.' 27
Zane, in a thought-provoking lecture, declared that "the greatness of
Bracton's work is best proven by the reflection that five centuries were
to pass away before another English lawyer, in the person of Blackstone,
was to appear, competent to write a treatise upon the whole subject of
English law."' 28 Although the influence of Bracton has varied over the
centuries and Zane's test of time has much validity, Bracton's
immortality would have been assured by his emphasis upon responsibility and the
supremacy of the law. For Bracton, the King, too, was subject to God
and the law-and this was the answer to the state absolutism of the
Tudors and the Stuarts, and is no less responsive to the totalitarian state
of all ages. And in the tradition of the great lawyers of classical Rome,
justice was due to all men, and all men are under the law, King and
The words of Bracton, "Ipse autem rex, non debet esse sub horine
sed sub Deo et sub lege, quia lex facit regem," and "Non est enim rex
ubi dominatur voluntas et non lex," embodied all that was noble in
medieval government.3 0 In all future crises, excepting Magna Carta,
no words were to be cited more often than his.
The assertion of the existence of a body of law above the King was
Bracton's legacy to posterity."'3 It was the dramatic answer given by
Sir Thomas More, albeit unsuccessfully, on July 1, 1535, at his trial for
high treason for having refused to take the Oath of Supremacy
acknowledging the King as the head of the Church. "This indictment," said
More, "is grounded upon an act of parliament directlie repugnant to the
lawes of God and his holie churche ... .,132
Of Bracton and his contemporaries of the twelfth and thirteenth
centuries, Professors Pollock and Maitland have written:
English law was administered by the ablest, and best educated, men in the realm;
nor only that, it was administered by the self-same men who vere "the judges
loeradrinneadryi"notfhethecacnhounrclhaw's . 1c3o3urts, men who were bound to be, at least in some measure,
And they proceed to rectify a false notion inflicted by Blackstone
upon generations of common law lawyers that the nation was "divided
into two parties": "The bishops and clergy," espousing foreign
jurisprudence, and "the nobility and the laity, who adhered with equal
pertinacity to the old common law."'n3 They proceed to pronounce the
following judgment, the significance of which requires no comment:
It is by "popish clergymen" that our English common law is converted from a rude
mass of customs into an articulate system, and when the "popish clergymen," yielding
at length to the pope's commands, no longer sit as the principal justices of the
king's court, the creative age of our medieval law is over.1 " 5
It is fitting that a discussion of Glanvill, Bracton and Azo dose with
the thought of a modern legist who has recently written that Glanvill
and Bracton were able to write their works, and particularly Bracton's
"scientific systematizing of the common law or the national law of
England," because they were "nurtured by romanistic doctrine."'2 0
No remarks concerning the era commencing with Glanvill and ending
with Bracton, during the reign of Henry III, could conclude without
mentioning King John, from whom "the Army of God and the Holy
Church" wrested the Great Charter. Magna Carta is the very symbol
of freedom, liberty and the rule of law in Anglo-American
jurisprudence. 37 Nonetheless, its historical antecedents and its humble origins as
a document of human liberty are not too well known, even by the
English-speaking lawyer, who relates the glorious achievement of the barons
on June 15, 1215, with justifiable pride. A study of the Charter must
commence with Thomas & Becket who, refusing to submit to the
tensions of Henry II, was assassinated on the altar of the Cathedral of
Canterbury. It has been said of Thomas that he was "not more a martyr
of religion than he was of freedom and justice."' 38
King John's serious difficulties began when Pope Innocent III
compelled him to accept Cardinal Stephen Langton as Archbishop of
Canterbury, and John retaliated by confiscating Church property. Langton,
a truly worthy successor of Thomas A Becket, an exponent of doctrines
that all human conduct is subject to law and that "loyalty was devotion,
not to a man, but to a system of law and order,' 3 joined with the barons
in bringing about, in retrospect, perhaps the most dramatic of all events
in English history-the signing of the Magna Carta by King John. 4 "
Although the specific author of the Charter is not known with
certainty, the most reasonable assumption is that its draftsman was Stephen
Langton, a Doctor of Laws from the University of Bologna. 141 The
belief that Langton is the author is fortified by the Charter's style and
content, and the fact that he was the most prominent among the assemblage
of clergy and barons.
The provisions of Magna Carta are introduced as follows:
To all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers;
and to all bailiffs, and other our faithful subjects, who shall see this present charter,
greeting. Know ye, that we, unto the honor of Almighty God, and for the salvation
of the souls of our progenitors and successors kings of England, to the advancement
of the holy church, and amendment of our realm, of our mere and free will, have
given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to
all freemen of this our realm, these liberties following to be kept in our kingdom of
England forever. 142
The very first article proclaims the freedom of the Church, which
concept is reiterated in the last. From this it has been inferred that the
Charter is "to a far greater extent" the work of Langton and the bishops
than it is of the barons.' In this monumental historic event it is
believed that Langton was assisted by Cardinal Pandulph (Pandolfo), the
Papal Legate in England, who upheld Langton's appointment against the
protests of King John. And it is interesting to note that although
Shakespeare makes no mention of Magna Carta in King John, he does have
the King utter the following words in answering Pandulph:
AShdadllthtiitshemourchtomll oinreo,uthradtonmoinIitoanlsian1 4priest,
Pandulph and John later reconciled, and when in the reign of Henry
III Langton asked Rome to remove Pandulph, he was replaced by
Cardinal Guala Bicchieri, of whom Pollock and Maitland say: "Another
lawyer who for a while controls the destiny of our land is Cardinal Guala
Bicchieri, but it were needless to say that he was no Englishman."'15
The intellectual environment immediately preceding and following
Magna Carta sustains the belief of authorship herein put forth. It is the
period of Ugolino, Azo, the legists and canonists-strong cultural
currents, which did not escape the kings. "Henry III kept in his pay Henry
of Susa, who was going to be cardinal bishop of Ostia, and who, for all
men who read the law of the Church, will be simply Hostiensis. Edward
I had Franciscus Accursii at his side." 6
As for Magna Carta, clearly its source and inspiration were not the
English feudalistic institutions, but notions of the majesty and
universality of the law as proclaimed by the Roman legal tradition. 47 And as
for its authorship, the concession might be made by even a Blackstone
that the person most likely to have written it was Stephen Langton.
THE GENESIS OF ENGLISH EQUITY: THE CHANCELLOR, THE
COURT OF CONSCIENCE, AND A IORE PERFECT REMEDY
Several references have been made to the Chancellors and the Courts
of Chancery which administered "equity." When viewed
dispassionately one cannot avoid the conclusion that this "equity" infused into the
common law system the qualities of flexibility and liberality which
evidence the maturity of law.
The Court of Chancery takes root in the notion that the King "with
us," says Lord Campbell, in his Lives of the Lord Chancellors, "has ever
been considered the fountain of justice."' 4 8 Since he could not
personally decide all controversies and remedy all wrongs, tribunals were
established to execute the law-hence, the King's courts. Nevertheless,
applications for relief by injured parties were still made to the King,
who referred them to the appropriate forum. The office that assisted the
King in this administrative phase of royal justice was called the officina
justitiae, or Chancery. 149 This was the first occupation of the
Chancellor. The second, of infinitely greater importance in the development of
English law, was in deciding-always in the King's name-"a peculiar
class of suits as a judge."' 50 These cases involved those petitions
addressed to the King, as a matter of grace, because the complainants
deemed themselves wronged by the common law-either because the
common law offered them no remedy or because the remedy was
inadequate. This became the "equitable" jurisdiction of the Chancellor
which, as it expanded, incurred the wrath of the common law judges,
thus creating a problem that was not solved until 1616 when James I
personally decided in favor of Chancery.
Although many descriptions are available of the Chancellor's
"equitable jurisdiction," Lord Campbell's commends itself because of its
simplicity and brevity. He writes:
By "equitable jurisdiction" must be understood the extraordinary interference of the
chancellor, without common-law process, or regard to the common-law rules of
proceeding, upon the petition of a party grieved, who was without adequate remedy
in a court of common-law; whereupon the opposite party was compelled to appear
and to be examined, either personally or upon written interrogatories; and evidence
being heard on both sides, without the interposition of a jury, an order was made
secundum aequum et bonum, which was enforced by imprisonment. 1 1
One additional aspect of the Chancellor's duties casts considerable
148. 1 Campbell, Lives of the Lord Chancellors 3 (7th ed. 1885). Lord Campbell says
that it "has been too much the fashion to neglect our history and antiquities prior to the
Norman conquest" and proceeds to mention those who held the office of Chancellor under
the Anglo-Saxon Kings. After naming Augmendus as the "Chancellor" or Referendarlus
of Ethelbert, "who received petitions and supplications addressed to the Sovereign," lie
adds: "There is great reason to believe that he was one of the benevolent ecclesiastics
who accompanied Augustine from Rome on his holy mission, and that he assisted in
drawing up the Code of Laws then published, which materially softened and Improved
many of the customs which have prevailed while the Scandinavian divinities were still
worshipped in England." Id. at 32. He then tells about St. Swithin, who also became
Chancellor and accompanied Alfred the Great to Rome, "taking the opportunity of
pointing out to him the remains of classical antiquity visible in the twilight of
refinement which still lingered in Italy." Id. at 34.
149. 1 Campbell, op. cit. supra note 148, at 3.
150. Id. at 6.
151. Id. at 8.
THE ROMAN CONTRIBUTION
light upon the atmosphere that must have pervaded Chancery, that is,
his function as the "Keeper of the King's Conscience," and whose court
also came to be called the Court of Conscience.
This came about as follows:
From the conversion of the Anglo-Saxons to Christianity by the preaching of St.
Augustine, the King always had near his person a priest, to whom wvas intrusted the
care of his chapel, and who was his confessor. This person, selected from the most
learned and able of his order, and greatly superior in accomplishments to the
unlettered laymen attending the Court, soon acted as private secretary to the King,
and gained his confidence in affairs of state. The present demarcation between civil
and ecclesiastical employments was then little regarded, and to this same penon was
assigned the business of superintending writs and grants-with the custody of the
great seal.', 2
By the time of Edward III, the Chancellor's court assumed a definite
and separate character, and petitions as a matter of grace were addressed
directly to him. Such practice soon became customary and hence the
growth of the equitable jurisdiction of Chancery. Several factors,
intellectual1, 3moral and spiritual, combined to give this growth "Roman
Up to the time of St. Thomas More, practically all of the Chancellors
had been "churchmen" or "ecclesiastics." To the end of Cardinal
Wolsey's Chancellorship in 1530, the office had been held by no less than
160 "ecclesiastics."'n Commenting upon this "clerical preponderance,"
Scrutton draws the inference that "the advantages of the Civil law,
familiar to the Chancellors by their early training, and as the system in
use in the ecclesiastical courts, are obvious. '1n And to the influence of
these "clerics" must be added that of the Masters of the Chancery who
were appointed to assist the Court of Chancery. These Masters, learned
in civil and canon law, were to advise the Chancellor as to the equity of
the civil law and matters of conscience.
The work of these ecclesiastical Chancellors has been judged to have
been "an exceedingly beneficial one, for it may well be doubted whether
judges trained in the practice of the Common Law would ever have
possessed the courage to interfere with its rules, in the face of the
professional opinion of their brethren, or indeed have been sufficiently
detached in mind to discover that the rules stood in need of correction. ))"'
The following summary of the nature of equitable jurisdiction, from
the lips of James I, will reveal its close analogy to the acquitas of the
152. Id. at 4.
153. Scrutton, The Influence of the Roman Law on the Law of England 153 (1335).
154. 1 Spence, Equitable Jurisdiction of the Court of Chanccry 340 (146).
155. Scrutton, op. cit. supra note 153, at 153.
156. Kerly, An Historical Sketch of the Equitable Jurisdiction of the Court of
Chancery 94-95 (IS90).
Roman law and the jus gentium of the Roman praetor peregrinus. He
declared: "Where the rigor of the law in many cases will undo a subject,
there the Chancery tempers the law with equity, and so mixes mercy with
justice. . .. ""' To this may be added a quotation from the work of
Christopher St. Germain (1460-1540), a barrister of the Inner Temple
who possessed an admirable command of philosophy and the canon law.
The book, written in Latin, entitled Dialogues Between a Doctor of
Divinity and a Student of the Common Law, shows that the moral and
philosophical bases of equity are found in the canon law, and depicts
Equity is a right wiseness that considereth all the particular circumstances of the
Deed, the which also is tempered with the Sweetness of Mercy. And such an Equity
must always be observed in every Law of Man, and in every general Rule thereof:
And that knew he well that said thus, Laws covet to be ruled by Equity.las
From this latter quotation one sees the Aristotelean notion of epikeia
(epieikeia), 59 which was adopted by the theologians."' Since future
lay Chancellors were to turn to St. Germain's book, popularly called
Doctor and Student, for the underlying ideas of equity, its importance
157. Cited in Scrutton, op. cit. supra note 153, at 154, and in 1 Spence, Equitable
Jurisdiction of the Court of Chancery 409 (1846). See, e.g., the quotations from the Digest and
from Cicero in the first chapter of Story's Equity Jurisprudence, 1 Story, Commentaries
on Equity Jurisprudence 1-10 (14th ed. 1918).
158. St. Germain, Doctor and Student, ch. XVI, f.52 (1721). Sir William Markby
in 1889 wrote that equity "has to a great extent lost in England that feature, which at
first sight it would seem easiest to preserve, its elasticity." Markby, Elements of Law 76
(6th ed. 1905). "The problem of Equity was known quite early to Greek thought.
It was, as is implied in the word chosen, epieikeia, something soft and yielding, in contrast
with the harshness of law, and Plato, in the Laws, puts it together with clemency, as an
infraction of strict justice which must sometimes be permitted. It was Aristotle however
who, though he did not discard the old implications, first formulated a definition, and his
formulation has never been surpassed." Jolowicz, Roman Foundations of Modern Law
54 (1957). St. Thomas Aquinas knew Aristotle's views on epikeia. "Aristotle (Ethic.
v. 10) mentions epieikeia as being annexed to justice. . . ." Summa Theologica II, Q. 80.
159. Aristotle, Ethica Nicomachea, Book V, 10, in 9 The Works of Aristotle, 1137b
(Ross ed. 1925). The Aristotelean definition and idea is followed closely by Lord Ellesmere
in the Earl of Oxford's Case, 1 Ch. Rep. 1, 6, 21 Eng. Rep. 485, 486 (1615), wherein he
stated that the Chancellor intervened because "Mens Actions are so divers and infinite,
That it is impossible to make any general Law which may aptly meet with every
particular Act, and not fail in some Circumstances."
160. See the definition in Riley, The History, Nature and Use of Epikeia in Moral
Theology 137 (1948), which follows the definition in Priimmer, Manuale Theologiae M6ralis
110, 154 (1935), which in turn follows Aristotle's. These definitions are set forth in Re,
Selected Essays on Equity xi-xii (1955). The ecclesiastical Chancellor is therein referred
to as one "who perfected the common law by bringing to bear on many problems the
wisdom of the Canon law and the moral tradition of the western world." Id. at xii.
Equity, therefore, originated and was presented as a canonical
contribution alleviating the rigor of the law-just as was done by the Roman
praetors. The analogy to the Roman practorperegrinus (c. 247 B.C.),
who, in doing justice, was not bound by the formalistic rules of the jus
civile, indicates that England too was approaching a period of maturity
in the law. The doing of equity or the affording of a more perfect
remedy, i.e., specific relief and prevention of wrongs, is the second stage of
the doing of justice. And it is indeed a trenchant observation that "only
those legal systems which have come to maturity display a growth of
Primitive systems of law, like the early Roman, granted only pecuniary
compensation; notions of prevention and restriction are of a later
development. And it was in the fashioning of specific remedies that the
Chancellor made his greatest practical contribution to the common
law.'62 An American scholar who has made a special study of equitable
decrees and remedies concluded:
The history of remedies in the other great legal system of the Western world,
the Roman law, affords a striking parallel to the development which our
AngloAmerican law has followed. MoLreover it points the way to the rounding out of our
common-law scheme of remedies by means of an effective enforcement of specific
Within this framework the genius of Maitland is apparent when he
observed that "Equity saved the common law."''1
The very liberality of equity aided the Chancellors immensely in
drawing upon their ecclesiastical training in deciding the cases that came
before them. Bryce introduces the Roman element in English equity as
Our system of Equity, built up by the Chancellors, the earlier among them
ecclesiastics, takes not only its name but its guiding and formative principles, and many
of its positive rules, from the Roman acquitas, which was in substance identical
with the Law of Nature and the ins gentium. For obvious reasons the Chancellors
and Masters of the Rolls did not talk much about Nature. and still less would they
have talked about ins gentium. They referred rather to the law of God and to
Reason. But the ideas were Roman, drawn either from the Canon Law. or directly
from the Digest and the Institutes, and they were applied to English facts in a manner
not dissimilar from that of the Roman jurists. The very name. Courts of Conscience,
though the conscience may in the immediate sense have been the King's, suggests
that moral element on which the Romans insisted so strongly; and the wide,
some161. Seagle, The Quest for Law 184 (1941).
162. For the almost unlimited number of situations wherein equity injunctions are
sought, see the works on equity cited in Chafee & Re, Cases and Materials on Equity
(4th ed. 1958), and particularly the cases referred to in the Historical Note concerning
requests for injunction against alleged nuisances. Id. at 795-95.
163. Huston, The Enforcement of Decrees in Equity 39 (1915).
164. Maitland, A Sketch of English Legal History 12S (1915).
times almost too wide, discretionary power which Equity judges exercised, finds its
prototype in the passages in Roman texts which refer to natural equity as the
consideration which guides the judge in qualifying, in special cases, the normal strictness
of law. 165
Sir Henry Maine, in his Ancient Law, observed:
The jurisprudence of the Court of Chancery, which bears the name of Equity in
England . . . derives its materials from several heterogeneous sources. The early
ecclesiastical chancellors contributed to it, from the Canon Law, many of the
principles which lie deepest in its structure. The Roman Law, more fertile than the
Canon Law in rules applicable to secular disputes, was not seldom resorted to by a
later generation of Chancery judges, amid whose recorded dicta we often find entire
texts from the Corpus Juris Civilis imbedded, with their terms unaltered, though their
origin is never acknowledged.' 6
Scholars have traced many doctrines of equity, such as the system of
uses and trusts and the equity of redemption in the law of mortgages, to
canonical and Roman notions.'1 7 Spence states that the Chancellors
availed themselves of Roman rules in the construction of legacies and
documents.' Scrutton adds that since "Chancery had no original
jurisdiction in testamentary matters," it "felt bound to adopt the rules of the
Ecclesiastical Courts, which were those of the civil law."'0 9 Indeed much
has been written about this. Oliver Wendell Holmes stated that at the
end of the reign of Henry V, the Chancery Court was an established
court of the realm and "had already borrowed the procedure of
the Canon law, which had been developed into a perfected system at
the beginning of the thirteenth century. . . ."I" Eminent scholars have
attested to this borrowing' and new and fascinating discoveries are
constantly being made as to the specific points of contact of the two
systems. One scholar in particular, who has made a special study of St.
Germain, has recently traced English equity to the denznciatio
evangelica procedure of the canon law."' This penitentiary procedure,
originating in the idea that a sinner ought to make amends, reform and save his soul,
served the purpose of obtaining reparation for wrongs and thus acquired
legal character. This procedure, resting on the words of the
Evangelist,' has recently received masterful treatment by one who concluded
that although it disappeared on the Continent, because "most disputes
could be satisfactorily dealt with on the basis of Roman law," it survives
"only in English equity ...in however modified a form."'"
No researcher of equity, particularly during the centuries when the
common law had already been cast into its distinctive mold, could
possibly avoid encountering such common threads as the canon law,
ecclesiastical influence and Roman thought. In fact, it has also been attempted
to show that equity was designed to do more than merely amend or
correct the inadequacies of the common law. It has been submitted that
had for its province as well to enforce a superior morality by relieving in the interest
of good conscience against many types of defects in the substantive law, that its
root is in the sovereign prerogative of grace in civil matters, the same prerogative to
which the Roman praetor accredited his boons.' 7r
Regardless of the weight that one desires to ascribe to the various
factors that have produced the end product of English equity-e.g., the
ecclesiastic Chancellor, the ecclesiastical courts, the canon law-the
result is undeniable. Even Blackstone had to subdue his bias against the
"popish ecclesiastics" and had to admit the glaring fact that in Chancery
"the proceedings are to this day in a course much conformed to the
civil law.' 76
A treatise on the law of equity that has had much influence upon
generations of lawyers and judges in the United States is Pomeroy's Equity
172. De Luca, Aequitas canonica ed equity ingleze alla luce del pensiero di C. St.
Germain, 3 Ephemerides juris Canonici 46, 63 (1947).
173. "And if thy brother sin against thee, go, show him his fault between thee and
him alone: if he hear thee, thou hast gained thy brother. But if he hear thee not, take
vwith thee one or two more, that at the mouth of two witnescs or three every word may
be established. And if he refuses to hear them, tell it unto the church and if he refuses
to hear the church also, let him be unto thee as the gentile and the publican." Matthew
174. Coing, English Equity and the Denunciatio Evanqeica of the Canon Law, 71
LQ. Rev. 223, 241 (1955)."The denunciatio evangelica enforcs the duties of 'reaon and
conscience,' or, more precisely, of the divine law and the natural law binding on human
conscience. The same is true of equity as is shown by the whole treatise Doctor and
Student. . . . The mere observance of the positive law is held insuffidcnt both by
denunciatio evangelica and by equity." Id. at 233.
175. Billson, Equity in its Relations to Common Law iv (1917).
176. 1 Blackstone, Commentaries *20.
Jurisprudence. It seems appropriate to close this phase of the
discussion with the following quotation from that work:
The growth and functions of equity as a part of the English law were anticipated by
a similar development of the same notions in the Roman jurisprudence. In fact,
the equity administered by the early English chancellors, and the jurisdiction of
their court, were confessedly borrowed from the aequitas and judicial powers of
the Roman and the one cannot be fully understood without some
IX. ADDITIONAL INROADS: THE CANON LAW, THE ECCLESIASTICAL
COURTS AND THE LAW MERCHANT
It must be obvious that the failure to attribute a separate treatment
to the canon law is not because it has not made a monumental
contribution. Rather, since the canonical influence has been the sturdy thread
that has given body and texture to the entire legal fabric, it has been
impossible to separate its influence throughout the discussion of other
areas. This feeling of inseparability has also struck Stubbs, who
in his essay on the History of the Canon Law in England said that he
"must . . . couple the two Roman systems together, for to all purposes of
domestic litigation they were inseparable: the 'canones legesque
Romanorum' were classed together, and worked together . ,,"IlHe added
that "if you take any well-drawn case of litigation in the middle ages,
such as that of the monks of Canterbury against the archbishops, you
will find that its citations from the Code and Digest are at least as
numerous as from the Decretum. '179 Indeed, if one were asked for a single
source which contributed Roman law to English law, the best answer
would probably be the canon law. Witness the positive statement in
Winfield: "It is in the Canon Law which borrowed libeially from Roman
Law that we must look for the more abiding influence of Roman Law
on our system, rather than in the pure Civil Law."18
Certain specific references will be helpful even if only to place in
evidence the great work of a Bolognese monk, Gratian, whose Dccretum
systematized the canon law.
Although the "Western church had grown up within the Empire,"",' it
was this growth and expansion, continuing after the Empire declined,
that perpetuated the Roman tradition of a universal law. 'With this
expansion the acquisition and formulation of rules for the government of
the Church and its members became inevitable. Soon canonists would
speak of a jus commune, i.e., the ordinary common law of the universal
church as distinguished from rules peculiar to particular provinces, long
before "the term common law" was used by "temporal lawyers.""' 2
When these church rules, consisting of the legislation and decisions of
the Popes and council resolutions, became bulky, the need was felt to
gather and codify at least the important ones into a single commentary.
Although these compilations began as early as the year 500, a
compilation, known as the Pannormia,which shows the growth of a coherent
body of law,1 3 was produced by Ivo (Ives), who became Bishop of
Chartres (1091-1116). It is interesting to note that Ivo, a contemporary
of Henry I of England, was a pupil of Lanfranc at the Abbey at Bec."
Notwithstanding the efforts of all prior attempts to state this common
law of the Church, "the fame of earlier labourers was eclipsed by that
of Gratian."'5 5 Gratian's Decretum, published about 114011 and entitled
Concordia Discordantium Canonum (The Concordance of Discordant
Canons), although unofficial, came to be regarded as an authoritative
work. It is not merely a compilation of authorities but a digest logically
arranged with a discussion of doubtful materials. Not only has it been
hailed as "a great lawbook," but it is significant that the "spirit which
animated its author was not that of a theologian, not that of an
ecclesiastical ruler, but that of a lawyer."' 6s Rashdall says that the "Decretum is
ISi. 2 Holdsworth 137.
182. 1 Pollock & Maitland 176.
183. See 2 Holdsworth 139; Stubbs, The History of the Canon Law in England, in
1 Select Essays in Anglo-American Legal History 24S, 254 (1907) For a simple and
interesting presentation of "The Papal Legal System," see Wigmore, A Panorama of the World's
Legal Systems 931-75 (1936).
134. 1 Rashdall, The Universities of Europe in the Middle Ages
127 (Powicke & Emdcn
). The Ives (1035-1115) of the canonical text, The Pannormia, and who became
Bishop of Chartres is not to be confused with St. Yves of Brittany, who is regarded as the
patron of lawyers. Ives, the pupil of Lanfranc, "had as a fc'llow pupil another Italian,
Anselm, from Aosta in Piedmont, who was of the same age, having been born in 1033."
Both Ives and Anselm were later canonized. Ortolan, The History of Roman Law 41G
(2d ed. Cutler 1896).
135. 1 Pollock & Maitland 112.
186. The date generally given is "c. 1150." Although Pollock and Maitland put the
date between "1139 and 1142," it is probably between 1139 and 1141. See 2 Holdsworth
139 n.12; 1 Pollock & Maitland 112.
1S7. 1 Pollock & Maitland 113.
one of those great text-books which, appearing just at the right time and
in the right place, take the world by storm.' 88
With the appearance of Gratian's Decretum, or Digest, the canon law
acquired dignity and professional status as a separate body of legal
learning also to be taught in the universities. As for Gratian, he became
the leader of a school of lawyers who mastered the Roman law.
Henceforth the canon law was to be taught alongside of the Roman law and
those who mastered both laws acquired the degree of juris utriusque
Even these cursory remarks may have helped explain the justification
for the statement that the "canon law had borrowed its form, its
language, its spirit, and many a maxim from the civil law."'9 0 And this is
the canon law that became one of the sources of the law of England.
The ecclesiastical courts, which have had a "longer history than the
Courts of Common Law and Equity,"' 91 provided a direct channel for
the infusion of canon law and Roman concepts into English law and
English institutions. These courts, which were very numerous, were
assured the development of their own Roman and canonical procedures
from the moment that William the Conqueror separated them from the
civil courts. The law effecting this separation provided that these courts
would be administered "secundum canones et episcopales leges rectum
Deo et Episcopo suo jaciat."19' 2 Furthermore, William "assumes that all
men know what causes are spiritual, what secular.' 93
The lasting influence wielded by these courts can, perhaps, best be
appreciated by a statement of its vast jurisdiction. Contrary to what
one might guess, their jurisdiction was not limited to those matters
which were by their nature ecclesiastical, such as ordination,
consecration, the status of ecclesiastical persons and ecclesiastical property. In
the foregoing matters the jurisdiction of the ecclesiastical courts was
exclusive, but it also exercised a wide jurisdiction over matters that are
taken for granted today as being purely civil. In addition to a criminal
188. 1 Rasbdall, The Universities of Europe in the Middle Ages
127 (Powicke &
Emden ed. 1936
189. See Pound, The Lawyer from Antiquity to Modern Times 64 (1953), wherein
Dean Pound says: "Bachelor, Master and Doctor of Laws (notice not of law) and the
continental degree of Doctor of Either Law (J.U.D.), in each of these cases referring in
terms to two systems, bear witness to the two coordinate systems of law which obtained
in the Middle Ages."
190. 1 Pollock & Maitland 116.
191. Holdsworth, The Ecclesiastical Courts and Their Jurisdiction, in 2 Select Essays
in Anglo-American Legal History 255 (1908).
192. Stubbs, Select Charters 85 (3d ed. 1876). "Let [the Court] do justice before
God and its proper bishop by following the canons and episcopal norms." (Author's
translation.) See 1 Pollock & Maitland 450, and id. at 439-57 (dealing with the clergy).
193. 1 Pollock & Maitland 450.
jurisdiction over clerics accused of crime and cases involving offenses
over religion, they possessed a vast jurisdiction over matrimonial matters
relating to marriage, divorce and legitimacy, and the testamentary
jurisdiction included all matters pertaining to the administration of estates,
intestate succession and supervision over executors and administrators.'0
The relationship of the "Ecclesiastical law" administered by these
courts to the common law of England can be seen from the following
dictum of Lord Chief justice Tindal, uttered in 1844:
[T]he law by which the Spiritual Courts of this kingdom have from the earliest
times been governed and regulated is not the general canon law of Europe, imported
as a body of law into this kingdom, and governing those Courts proprio rigore, but
instead thereof, an ecclesiastical law, of which the general canon law is no doubt the
basis, but which has been modified and altered from time to time by the ecclesiastical
Constitutions of our Archbishops and Bishops, and by the Legislature of the realm,
and which has been known from early times by the distinguishing title of the King's
Notwithstanding feelings of hostility on the part of the common law
courts against the ecclesiastical courts, and in spite of the effects of the
Reformation in England, these courts continued to function until the
middle of the nineteenth century. Even when their jurisdiction, excepting
matters purely ecclesiastical, was by statute transferred to other courts,
for example, the Court for Divorce and Matrimonial Causes,10L the new
courts were to proceed and give relief on principles and rules which
might be conformable to those on which the ecclesiastical courts had
theretofore acted and given relief."0 7 Of course, these ecclesiastical courts
operated on the principle that "where the Canon Law ... is silent, the
Civil Law is taken in as a director, especially in points of exposition and
determination touching wills and legacies."'1 8 And this is precisely the
attitude that was adopted by Chancery in such matters.'1'
Any discussion of the Roman contribution to the common law must
offer a place of enduring prominence to the law merchant. The law
merchant, or the lex mwercatoria,is admittedly of "foreign" origin.
Holdsworth, in considering courts which administer a body of law "outside the
jurisdiction of the Courts of Common Law and the Courts of Equity,"
lists the courts which administer the law merchant.200 Nevertheless,
the law merchant was so completely received that it became, according
to Coke, a part of the "lawes within the realme of England."2 0 '
Blackstone also acknowledged that the "lex mercatoria,which all nations agree
in, and take notice of . . .is held to be part of the law of England."2
Yet this body of law, being the customs and usages of all merchants
and of "all nations," included many rules of the Roman and civil law
which continued as the practice of the merchants bordering the
Mediterranean. Although many of the customs date back to the Babylonians
and Phoenicians, commercial law in the modern sense began to develop
during the tenth, eleventh and twelfth centuries, principally in the
northern Italian city-states, and the seaport cities of Italy, Spain,
France and Germany. From these sources may be said to have sprung
a new jus gentium of commerce. These customs were written in several
codes, the best known being the Consolato del Mare, the Laws of Oleron,
the Laws of Wisbuy and the Ordonnance de la Marine of Louis XIV.2 °'
Although worthy of individual treatment, courts of admiralty will not
be mentioned since they were closely connected with the law merchant.
Apart from later developments, therefore, the civil law procedure and
Romanism that animated the law merchant courts also pervaded the
admiralty courts. Holdsworth, in fact, says that the maritime and
merchant courts are so closely connected that they may be regarded as
"branches of the same Law Merchant. 2 >'
The law merchant and the customs of the sea, therefore, as we shall
treat this area of customary law, involved the usages of merchants in
lands that had been under Roman sway and developed with the needs of
commerce-both land and maritime. Whereas this jus gentium of
merchants originally applied only to merchants, it ultimately governed all
commercial transactions. A remarkable system, embodying the
experience of centuries, it needed only a great judge to adopt its rules and
absorb them into the common law of England.
The person most responsible for this most beneficial addition and
amelioration of the common law was Lord Mansfield, who merits the
honor of being called the "father of modern Mercantile law." ' 5
Mansfield, who had studied Roman law at the University of Leyden, during
the thirty-two years that he was Lord Chief Justice of the King's Bench,
molded a modern commercial law. Once again, we encounter the element
of prejudice against that which is foreign, and Mansfield was subjected
to attacks because of the Roman and civil law qualities of the law that
he absorbed into English law. Note the following aimed at Mansfield:
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
unknown to Englishmen. The Roman code, the law., of nations, and the opinion of
foreign civilians, are your perpetual theme....200
To Campbell's reply that there was "no sufficient ground for the
general charges" that he "gave a preference to the Roman Law,"37 one
must add the sober judgment of Mr. Justice Buller in the case of
Lickbarrow v. Mason:20 5
ithin these thirty years... the commercial law of this country has taken a very
different turn from what it did before. . . . From that time w.e all know the great
study has been to find some certain general principles, which shall be knovn to all
mankind, not only to rule the particular case then under consideration, but to serve
as a guide for the future. Most of us have heard these principles stated, reasoned
upon, enlarged, and explained, till ve have been lost in admiration at the strength and
stretch of the human understanding. And I should be very sorry to find myself under
a necessity of differing from any case on this subject which has been decided by Lord
Mansfield, who may be truly said to be the founder of the commercial law of this
X. EPILOGUE: CIVILIZATION AND THE UNIVERSALITY OF THE
RomAN LEGAL SYSTEM
Had an attempt been made to trace the borrowing and adaptation of
specific rules, an interminable project might have been assumed. Indeed,
whole areas of the law have been omitted, and even some fascinating
matters have been neglected.21 The countrymen of Mansfield, all heirs
205. Scrutton, op. cit. supra note 197, at 10, citing Park, Insurance (1789). For an
evaluation of his contribution, see 3 Campbell, The Lives of the Chief Justices of England
206. 3 Campbell, The Lives of the Chief Justices of England 337 (ISSI).
20S. 2 Term R. 63, 100 Eng. Rep. 35 (K.B. 17S7).
209. Id. at 73, 100 Eng. Rep. at 40.
210. "AMany of the basic principles of American law are Roman in many fields:
of Scottish birth, may well demand an apology for daring to ignore the
Roman law that survives in Scotland."' Yet, they would have to admit
that some prominence was accorded to Lord Mansfield, whereas no
mention was made of Lord Holt, who presided over the King's Bench
from 1689 to 1710. Like Mansfield, Holt also was learned in the Roman
law. Holt was introduced to the study of Roman law by reading Bracton,
and through Lord Holt, some of Bracton's Romanisms and "academic
speculations . . . became living common law."21 Not only did Holt
prepare the way for Mansfield's adoption of the law merchant, but he
actually anticipated Lord Mansfield's decision in Somerset v. Stewart,213
which decided that one could not be a slave on English soil. Although
he authored many decisions that were milestones in the development of
the common law,214 the most celebrated is Coggs v. Bernard2,1 decided
adverse possession, bairments, carriers and innkeepers, contracts, corporations, the descent
of property, easements, legacies and wills, guardianship, limitations of actions, marriage,
ownership and possession, conveyances, sales, trusts, warranties, partnerships, mortgages.
It was the Romans who developed the conveyance of real estate by written instruments
and subscribing witnesses, and passage of title by a will, also to be in writing and with
subscribing witnesses." Palmer, An Imperishable System: What the World Owes to Roman
Law, 45 A.B.A.J. 1149, 1152, 1220 (1959). One may even find that certain concepts and
phrases seemingly distinctively Anglo-Saxon, such as "an Englishman's house Is his castle,"
were borrowed from Roman sources. The house-castle notion, for example, apparently
first appeared in Coke's Institutes, and the "Latin phrase, the only one Coke cites as
authority, is taken almost verbatim from the Digest," and the passage in the Digest Is
taken from Gaius' Commentaries on the Twelve Tables. Radin, The Rivalry of
CommonLaw and Civil Law Ideas in the American Colonies, in 2 Law: A Century of Progress
404, 424 (1937).
211. See Levy-Ullmann, "Le Droit tcossais, 53 Bulletin de la Soci6t6 de Lgislatlon
Compar~e 148 (1924) (it is "absolutely Roman in character"); Muirhead, An Outline
of Roman Law xxxi (2d ed. 1947).
212. Plucknett, A Concise History of the Common Law 300 (5th ed. 1956).
213. Lofft 1, 98 Eng. Rep. 499 (K.B. 1772); see Smith v. Brown, 2 Salk. 666, 91 Eng.
Rep. 566 (K.B. 1705). "Holt, C.J., held, that as soon as a negro comes into England, he
becomes free: one may be a villein in England, but not a slave." Ibid.
214. See, e.g., Ashby v. White, Holt K.B. 524, 90 Eng. Rep. 1188, 1189 (1702), which
was probably motivated by the Latin maxim "ubi jus ibi remedium." "Lord Holt, contrary
to the other judges who decided for the defendant, stated that the plaintiff should have
been allowed a cause of action . . . for the deprivation of his right to vote. He stated:
'... the plaintiff had a right to vote, and that in consequence thereof the law gives him
a remedy, if he is obstructed. . . . It is a vain thing to imagine, there should be right
without a remedy. . . .' On a writ of error to the House of Lords, the judgment for the
defendant was reversed 'by a great majority of the Lords, who concurred with Holt, C.J.'"
Chafee & Re, Cases and Materials on Equity 865 n.7 (4th ed. 1958).
215. 2 Ld. Raym. 909, 92 Eng. Rep. 107 (K.B. 1703). "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 other countries. The civil law is so, as you have it in Justinian's Inst. lib. 3,
tit. 15." Id. at 915, 92 Eng. Rep. at 111. Lord Holt also cited St. Germain's Doctor
and Student. Ibid.
in 1703, which contains a full exposition of the law of bailments inspired
by the Roman law passages found in Bracton.
It is now evident that to find a convenient place upon which to end
is no less difficult than to have found a proper point for the beginning.
Rome is a legendary name of the greatest historical significance. At least
twice it led the world. First, by the might of its republican and imperial
legions, it gave the world political unity and a legal system. Secondly,
by the diffusion of Christianity, it brought spiritual unification
throughout the western world, and once again, its system of laws.2-10 To tell the
story of Rome and its law is to tell the story of civilization itself.
The story of civilization will not be one of self-sufficiency and
autonomy. It is one of constant building upon the wisdom and experience of
prior peoples and a blending of the knowledge from many lands. The
numbers in which we count, the alphabet we use, and indeed language
itself are eloquent tributes to the genius of other lands. And although
little can be regarded as more English than London's St. Paul's, yet it
is Greek and Roman; surely it is Gothic before being English. Since
there is truth to the thought that the law of a people develops in much
the same manner as its language, it may be worthy to repeat the
illustration found in Howe. He pointed out that in the name of "a well-known
society, the American Bar Association . . . there is not a word .. . of
British or Anglo-Saxon origin." He hastens to add that by admitting
the "Romanic origin" of the words "we would not be disparaging our
noble English language, nor denying its continuous organic life and
growth and its distinctly national character, nor would we be proposing
to return to the use of Latin for purposes of conversation or in the
writing of books. We would simply be recognizing the truth of history,
which every one will admit to be a proper thing to do." 21 7
It is opportune to repeat at this juncture what Judge Cardozo observed
in a footnote in his Paradoxes of Legal Scicnce. Citing Royce,2 18 he
wrote: "We may say of law what Royce says of philosophy: 'Our common
dependence upon the history of thought for all our reflective
undertakings is unquestionable. Our best originality . . .must spring from
this very dependence.' 1,211
The notion of universality finds a classical example in the Empire
216. Professor Yntema, following the observation vth which Jhering commenced his
work on Roman law, says that "Rome gave laws to the world and bound the nations in
unity" three times: the first "by the force of arms," the sccond by "the unity of the
Church," and the third "through the reception of Roman law in western Europe, in the
unity of law." Yntema, Roman Law as the Basis of Comparative La,, in 2 Law: A
Century of Progress 346 (1937).
217. Hoowe, Studies in the Civil Law 109-10 (2d ed. 1905).
218. Royce, The Spirit of Modern Philosophy vii (IS92).
219. Cardozo, The Paradoxes of Legal Science 57 n.146 (1923).
that was Rome and the Roman law. The word "Roman" was clearly not
confined to the seven hills or even to a peninsula. Its universality may
even be highlighted by the place of birth of the greatest of its
jurisconsults. Papinian, who was among jurisconsults what Homer was to
poets, and who contributed about 600 extracts from his works to the
Digest, was probably born in Syria. The greatest contribution came
from Ulpian, and he was born at Tyre. A great jurist and teacher was
Gaius, and although he lived in Rome, he was born in Greece.2"' As
for Justinian himself, who was probably of Slavonic parentage, he was
born in Tauresium in Illyricum on the eastern Adriatic coast. 22'
The Roman mind, as can be gleaned from the foregoing, was a
composite of the genius of many lands. Such are the roots of civilization.
And, in its final form, the Roman law was truly all-embracing and
cosmopolitan. It was "the embodiment of Stoic philosophy and Christian
morals. Because it drew from so many diverse sources and was applied
to the citizenship of a universal empire, it proved to be the one
contribution of ancient Rome which lives on in the world today. 2 2 2 These,
therefore, were some of the men that helped fashion a system of laws
of universal validity for the civilized world.2 23
Of this system of laws "embodied and transmitted to posterity in the
law-books of Justinian," d'Entr~ves says:
It is no exaggeration to say that, next to the Bible, no book has left a deeper mark
upon the history of mankind than the Corpus Iuris Civilis. Much has been written
about the impact of Rome upon Western civilization. Much has been disputed about
"the ghost of the Roman Empire" that still lurks far beyond the shores of the
Mediterranean. The heritage of Roman law is not a ghost, but a living reality. It is
present in the court as well as in the market-place. It lives on not only in the
institutions but even in the language of all civilized nations.2 24
This universality is attested by Bryce:
The Roman law is indeed still worldwide, for it represents the whilom unity of
civilized mankind. There is not a problem of jurisprudence which it does not touch:
there is scarcely a corner of political science on which its light has not fallen.22 a
The discussion has concerned itself with the degree of enlightenment
220. Wigmaore says that Gaius, the jurist, typifies the advent of law as a science.
One of "Gaius' treatises, the Institutes, served as the text-book of legal study for three
centuries after his death (which occurred perhaps about 200 A.D.), and is the only Roman
law-book, prior to Justinian, that has survived to us in fairly complete text." Wigmore,
A Panorama of the World's Legal Systems 437 (1936).
221. His original name was Uprauda, derived from prauda, which in old Slavic means
222. Shotwell, The Long Way to Freedom 606 (1960).
223. Sohm, Institutes 70 (3d ed. Ledlie transl. 1907). Chapter II is entitled, "Roman
Law as the Law of the World."
224. d'Entr~ves, Natural Law 17 (1951).
225. 2 Bryce, Studies in History and Jurisprudence 898 (1901).
that the common law of England derived from Roman law. What may
one conclude of the Roman contribution to the common law? Some of
the main channels of transmission have been mentioned. Without malting
extravagant claims as to the exact extent of the contribution, it ought
to be sufficiently clear that "there must be some profound error on the
part of those who so stoutly deny the obligation of the law of England
to the Roman system. '220 To those who deny this contribution one may
reply with the saying of Liebnitz concerning philosophers-that they are
often right in what they affirm and often wrong in what they deny.
Winfield's statement of the indebtedness to the Roman system of laws
is as profound as it is important:
But it would be a mistake to gauge the effect of Roman Law by a nice calculation
of the especial rules in our law which can be affiliated to it. What men gained by it
was not a heap of fresh material for building English law, but a mowledge of the
principles of legal architecture- 2 s
It is hoped that enough has been said to show that the roots of the
common law of England are not exclusively Anglo-Saxon. Since there
is neither virtue nor greatness in autonomy, and since such a conclusion
would do violence to the rules of probability in civilization, the more
objective evaluation would acknowledge a Roman influence. Even
assuming that the soil was not prepared during the Roman occupation,
it is impossible to discount the role of St. Augustine and the Missionaries
who followed him .2'2 And all of this before the Norman invasion with
its influx of a host of Roman law scholars commencing with Lanfranc.
The story thereafter shows more clearly how the common law was
nurtured in an atmosphere of Roman intellectuality-ethical,
philosophical and judicial.
It has been said that greatness can only come from participation in
the culture of other people. Jhering expressed this thought well when
he justified the reception of Roman law in Germany on the broad ground
that no nation can attain the highest civilization except by participation
in the civilization of the world.20
226. Howe, Studies in the Civil Law 110 (2d ed. 1905).
227. Liebnitz, Opera Philosophica 702 (Erdmann ed. 1S40).
228. XlWfield, The Chief Sources of English Legal I-istory C0 (1925).
229. See Dawson, Religion and the Rise of Western Culture 59, 61, 73 (Image Books
230. "German jurisprudence ... commences with, and is due to, the reception of Roman
law. As the child of Roman jurisprudence, it was but natural that, from the very ouLet,
German jurisprudence should bear the impress of its origin." See Smith, Four German
Jurists, in A General Vie' of European Leggal History 110, 121 (1927).
"No sooner, therefore, had Roman law effected its first entrance in Germany, that its own
inherent virtues ensured it a rapid and easy victory. Roman jurisprudence came, saw
and conquered." Sohm, The Institutes 2 (3d ed. Ledlie transl. IS07).
As for the Romans, time has decreed that their most permanent
contribution was their law. What can be said of Rome can be said of
Justinian. Justinian, like earlier Roman emperors, was a great builder
of roads and public buildings. The most splendid of his many churches
was the dome-covered Cathedral of St. Sophia. However, history will
continue to proclaim his name because he was the Roman Emperor who
finally codified the Roman law.231
And so, perhaps abruptly, and at a point not as felicitous as desired,
our survey comes to an end. It concludes with the hope that "insular"
patriotism may some day give way to that of "mankind at large.1 232 It
reaffirms Cicero's profound conviction of the equality of men and the
solidarity of mankind.2 33 When such a philosophy becomes a rule of
daily life, all men, of whatever heritage, who read of Papinian, Ulpian,
Augustine, Lanfranc, Vacarius, Glanvill, Bracton, Langton and countless
others, will conclude that they were men worthy of gratitude and
commemoration. The greatest debt of gratitude, of course, is owed by
those who reap the blessings of the common law.
231. Justinian reigned from 527 to 565 AD. It was his plan to consolidate the entire
existing law into one Code. For a summary account of how this was accomplished by a
commission of professors and advocates under the supervision of Tribonian, see Sohm,
The Institutes 121-25 (3d ed. Ledlie transl. 1907). For a discussion of "The Legislation of
Justinian" see Jolowicz, Historical Introduction to the Study of Roman Law 488 (1932).
"The importance of his work lies in the fact that in his 'Digest' and in his 'Code,' he
collected a great mass of excerpts from classical authors, and of imperial enactments, and
that he gave to Roman law what was, in a sense, its final form." Id. at 6.
232. "The justice of mankind at large . . . is rooted in the social union of the race of
men." Cicero, Tusculan Disputations, I, xxv, 64.
233. See Cicero's De Officiis and his De Republica, and discussion in Mcllwain, The
Growth of Political Thought in the West (1932). See summary of Cicero's philosophy In
1 Scott, Law, The State and the International Community 143-57 (1939).
13. Lee , Elements of Roman Law viii (4th ed. 1956 ). Frcnch law tudents are given the reasons for the study of Roman law under the follov.ing headings: "practical," "juridical technique," "historical and philosophical." Nouvelle Collction Foignct , Manuel Elimentaire de Droit Romain 5- 7 (Treiziime ed. 1947 ). (Author's tramnslation .)
14. Sherman , Preface to First Edition, in 1 Roman Law in the Modern World at v (2d ed. 1922 ). Professor Yntema summarizes the significance of Roman law as follows: 1. It is the "fundamental body of legal doctrine" which is the "common element in the individual legal systems of much of Continental Europe, and its colonies"; 2. The "even wider dissemination ... of systematic legal conceptions and principles not mcrely in the civil law systems but also in the Anglo-American common law"; 3. The "extenion of this stock of conceptions by virtue of its acceptance in the system of international law developed by Hugo Grotius and his successors"; 4. "The language of Roman law has become a lingua franca of universal jurisprudence." Yntema, Supra note 3 , at SS .
15. Yntema , Foreword to Lawson, A Common Lawyer Loohs at the Civil Law at vii, xvi ( 1955 ). Professor Yntema also tells us that "without Inowledge of the Roman cources, it is difficult to appreciate readily or accurately the conceptions used not only in the modem civil law, but also in international law, jurisprudence, and even in -bstantial degree in the law of England." Id. at xv. See discussion of Profcsor Lawson's book in Northrop , The Complexity of Legal and Ethical Experience 216 - 29 ( 1959 ); Re, Book Review, 30 St. John's L. Rev . 144 ( 1955 ).
16. Yntema , supra note 3, at 79.
17. 2 Bryce, Studies in History and Jurisprudence 571 ( 101 ).
22. 1 Blackstone, Commentaries * 4 .
23. Id . at *5.
24. Ibid .
25. Burdick , The Principles of Roman Law 56 ( 1933 ).
26. Ibid . In his introduction to the initial volume of the American Journal of Comparative Law, Dean Roscoe Pound wrote: "The Anglo-mlerican is averse to authorities in a foreign tongue." I Am. J. Comp . L. 3 ( 1952 ). See Professor Yntema's remarks concerning the animating purposes of that journal, 1 Am . J. Comp . L. 11 ( 1952 ). In that volume can be found a survey of comparative law teaching in the .Amnerican law schools . Re, Comparative Law Courses in the Law School Curriculum, 1 Am . J. Comp . L. 233 ( 1952 ). "It is submitted that it is perhaps not premature to my that we are entering upon an era comparable to the twelfth century revival in learning. It cannot be doubted that the wealth of comparative law literature that has very recently appeared indicates that we have perhaps really given up our 'parochial attitude' toward foreign institutions . " Re , Book Review, 30 St. John's L. Rev . 144 , 149 ( 1955 ).
38. 1 Mommsen, The Provinces of the Roman Empire 190 (Dickson transl . 1886 ).
39. Id . at 194.
40. Robinson , A History of Rome from 753 B.C. to 410 A.D., at 338 (2d ed. 1941 ).
41. Haverfield , Roman Britain, in 1 The Cambridge Medieval History 367 , 370 ( 1936 ).
42. Haverfield , supra note 41, at 379. "The Roman veterans were ncoumragcd to colonize in Britain; they married British women; and they received grants of land which they probably held under condition of military service--a system in wvhich Mr. Gibbon perceives 'the first rudiments of the feudal tenures . '" Howev, Studies in the Civil Law 113 (2d ed. 1905 ).
43. Plucknett , A Concise History of the Common Law 7 (5th ed. 1956 ).
44. See Winfleld , The Chief Sources of English Legal History 54 ( 1925 ).
45. Selden , DiLsertation ad Fletam, ch . IV (1685 ed.)
46. Winfield , The Chief Sources of English Legal History 55 ( 1925 ).
47. Ibid .
43. Vinogradoff , Roman Law in Mediaeval Europe 26 ( 1S09 ).
49. Scrutton , The Influence of the Roman Law on the Law of England 65 ( 12S5 ).
52. Hutton , Gregory the Great, in 2 The Cambridge McdieLal History 236 , 251 ( 1926 ).
53. See 1 Pollock & Maitland 11, citing 1 Conrat, Geschichte der Quellen des rmizhen Rechts im frifieren Mittelalter S (18S9). For a specific example of the early Church father who knew Roman law, see Lardone, Roman Law in the Wrorkls of St. Augustinth 21 Gco . LJ. 435 ( 1933 ). In his discussion of St. Augustine of HippD, Fr . Lardone concludes: "1. St. Augustine knew Roman Law... 4 . Reading Augustine' s writings we realize how Roman Law acquaintance is very useful to understand the Fathers who make free ue of legal expressions and conceptions ... 2' Id. at 455-56.
54. 1 Pollock & Maitland 11, citing Bede's Ecclesiastical History of England.
55. See Burdick , Principles of Roman Law 62 ( 1933 ) ; Jenlcs, A Short History of Englidh Law 4 ( 1912 ) ; Sherman, The Romanization of English Law, 23 Yale LJ . 318 , 319 ( 1914 ).
56. Sherman , The Romanization of English Law, 23 Yale LJ . 313 , 319 11914 ). St. Bede the Venerable ( 673 - 735 ) was a Benedictine monk at the monastery of Jarrow in Northumberland. It was there that he wrote his famous work and trained eeme 00O scholars .
57. 2 Holdsworth, A History of English Law 64- 66 (3d ed. 1927 ) [hereinafter cited as Holdsworth]; Plucknett, A Concise History of the Common Law 3 (5th ed. 1956 ).
70. Hadley , Introduction to Roman Law 47 ( 1880 ). See 2 Bryce, Studies in History and Jurisprudence 599- 600 ( 1901 ); Burdick, The Principles of Roman Law 77-80 ( 1938 ).
71. Scrutton , The Influence of the Roman Law on the Law of England 2 ( 1885 ). Scrutton adds: "English Equity, however, invented and administered by clerical chancellors, derived much of its form and matter from Roman sources. I have neither the time nor the knowledge to enable me to give at all an adequate account of this Roman element, but the question has been discussed by Spence [Equitable Jurisdiction of the Court of Chancery ( 1846 ) ], and I avail myself of his results . " Id. at 155.
72. A recent scholarly Italian work, after referring to the contribution of Edward the Confessor, states that "infiltrations of Latin culture were not lacking . " Calasso, Medio Evo del Diritto 618 ( 1954 ).
73. 1 Pollock & Maitland 77 .
74. Burdick , The Principles of Roman Law 65 ( 1938 ).
75. Calasso , Medio Evo del Diritto 307 , 61S ( 1954 ). Sze refertce3 to the great quantity of literature on Lanfranc in Latin, English, French, German and Italian in Wigmore, Lanfranc, The Prime Minister of William the Conqueror: Was He Once an Italian Professor of Law? (A Study in Historical Evidence ), 58 L.Q. Rcv .. 61 , 70 - 81 ( 1942 ).
76. Calasso , op. cits.upra note 75 , at 618.
77. Ibid . 1 Pollock & Maitland 73 .
78. See sources cited in 1 Pollock &Maitland 73 .
79. Ibid .
SO. See 1 Pollock & Maitland 77-78 , 93; Zane, The Five Ages of the Bench and Bar of England , in Studying Law 41 , 45 (Vanderbilt 2d ed. 1955 ), also rcprinted in 1 Selcct Essays in Anglo-American Legal History 625 , 62S - 29 ( 1907 ); Zane, The Story of Law 240 (Wrashburn ed. 1927 ).
S1. Calasso , Medio Evo del Diritto 61S ( 1954 ). It is aIo said that the "Doniedzay Survey, which enumerated all the lands in England, and ascertained the status of each subject . . . was probably superintended by this great lawycr [Lanfrane]Y2' Zane, The Five Ages of the Bench and Bar of England , in 1 Select Essays in Anglo-American Legal History 625 , 623 - 29 ( 1907 ).
82. 1 Pollock & Maitland 78 .
83. Ibid .
84. See Wigmore , A Panorama of the World's Legal Systems 983-84 ( 1936 ).
85. Calasso , Medio Evo del Diritto 368 ( 1954 ). Irnerius is described as the "founder" of the law school of Bologna . Id. at 522. Although the University of Bologna Is said to have been founded in 1088, Bologna, as a "studium" of arts, was already famous by the year 1000. "In Italy [the] Renaissance found its expression most conspicuously in a revival of the study of the Roman law , which started from Bologna. . . ." 1 Rashdall , The Universities of Europe in the Middle Ages 17 (Powicke & Emden ed. 1936 ). Although some say Ravenna, Pavia was probably "the main centre of legal studies in Italy before the rise of Bologna . . . . " Id. at 106 . Irneri 'ts was therefore not "the first teacher of the Roman law in medieval Italy." Id. at 101 , 107 . See also Maffei, Alessandro d'Alessandro: Giurisconsulto Umanista , 1461 - 1523 ( 1956 ) ; Maffei, Gil Inizi dell'Umanesimo Giurldico ( 1956 ), and a review of these two books in Breen, Renaissance Humanism and the Roman Law, 38 Ore. L. Rev . 289 ( 1959 ).
127. Wigmore , A Panorama of the World's Legal Systems 1008 ( 1936 ).
128. Zane , supra note 81, at 645.
129. See passages in 2 Holdsworth 253-55.
130. "The King himself, however, must not be subject to man, but to God and to the law because it is the law which makes the King." "For there is no King where the will [of a man] governs and not the law." (Author's translation .) See Mcdlwain , The High Court of Parliament and Its Supremacy 101 ( 1910 ).
131. See Re , Freedom in the International Society , in Concept of Freedom 219-20 , 236 - 38 (Grindell ed. 1955 ).
132. See Roper , The Life of Sir Thomas More 108 (Singer ed. 1817 ); The Mirrour of Vertue in Worldly Greatnes or the Life of Sir Thomas More Knight by William Roper, in The King's Classics 91 (Gollancz ed. 1903 ). See the account of More's trial In 1 Howell's State Trials 385 ( 1809 ). See also McIlwain , The High Court of Parliament and its Supremacy 278 - 79 ( 1901 ).
133. 1 Pollock & Maitland 132 .
134. 1 Blackstone, Commentaries * 19 . Blackstone, in referring to "the bizhop.s and clergy," adds: "many of them foreigners." Ibid. He refers to the "popih ccelcsactics" on the following page .
135. 1 Pollock & Maitland 133 .
136. Calasso , MAedio Evo del Diritto 619 ( 1954 ). Glanvill and Bracton are acknowledged as "the first authorities on the common law" by jurists, historians and political icdentisLs. Dunning, A History of Political Theories from Luther to MonteLquieu 197- 93 ( 1923 ), adds the name "Richard Nigel." The reference is to an anonymous bool , Dialogus de Scaccario, written between 1177 and 1179 and ascribed to Richard Fitz Neal, ie., Richard son of Nigel, Bishop of Ely, who was the nephew of Rogcr, Bihop of Salibury. Written by an experienced King's treasurer, it is a fine work by an educated man on the exchequer and government . See references in 1 Pollock & Maitland 161 -62.
137. See Thompson , Magna Carta: Its Role in the Making of the English Constitution , 1300 - 1629 ( 1943 ), and materials cited in Re, Book Review, 24 St. John's L. Rev . 18 ( 1949 ).
138. Morris , The History of the Development of Law 254 ( 1909 ).
139. Powicke , England: Richard I and John, in 6 The Cambridge Medieval History 205 , 219 ( 1936 ). Powicke, Regius Professor of Modern History at Oxford, is one of the editors of the splendid three-volume work, Rashdall, The Universities of Europe in the Middle Ages (Powicke & Emden ed. 1936 ).
140. For a treatment of the provisions of Magna Carta see 2 Reeves, History of the English Law 17-30 (Finlason ed. 1880 ). Blackstone, among others, indicates that "the great charter of liberties, which was obtained, sword in hand, from King John, and afterwards, with some alterations, confirmed in parliament by King Henry the Third, his son . . . contained very few new grants; but as Sir Edward Coke observes, was for the most part declaratory of the principal grounds of the fundamental laws of England." 1 Blackstone , Commentaries * 127 - 28 .
141. Professor Powicke has written a biography of this famous cleric and statesman . Powicke, Stephen Langton ( 1928 ). Quite apart from passages of the Code, "tho writings of both Seneca and Tacitus show that even under the Roman Empire men had become accustomed to the idea that laws existed to control rulers." Seagle, The Quest for Law 223 ( 1941 ).
142. See 2 Reeves, History of the English Law 17 (Finlason ed. 1880 ).
143. Morris , The History of the Development of Law 256-57 tlW09).
144. Shakespeare , The Life and Death of King John, Act III , Scene 1 . Pandulph asks John why "against the church" he keeps "Stephen Langton, chosen Archbikhop of Canterbury, from that holy see?" John refers to Pandulph as a "meddling priczt." See comment on this passage in Thompson, Magna Carta: Its Role in the Making of the English Constitution , 1300 - 1629 , at 164- 65 ( 194S ).
145. 1 Pollock & Maitland 121 .
146. Id . at 122.
147. See Morris , The History of the Development of Lawv 255 ( 109 ); Sherman, The Romanization of English Law, 23 Yale LJ . 325 ( 1914 ).
165. 2 Bryce, Studies in History and Jurisprudence 599 - 600 ( 1901 ). Scrutton capsules all this by saying: "English Equity however, invented and administered by Clerical Chancellors, derived much of its form and matter from Roman sources." Scrutton, op . cit. supra note 153 , at 155.
166. Maine , Ancient Law 44- 45 (9th ed. 1883 ).
167. A common example is the Roman fideicommissa as the origin of the English system of uses and trusts . See Holmes, Early English Equity, in 2 Select Essays in Anglo-American Legal History 705 , 715 - 16 ( 1908 ) ; Scrutton, op . cit. supra note 153 , at 156-57.
168. 1 Spence, Equitable Jurisdiction of the Court of Chancery 518 , 523 , 566 ( 1849 ).
169. Scrutton , op. cit. supra note 153 , at 158.
170. Holmes , Early English Equity, in 2 Select Essays in Anglo-American Legal History 705 ( 1908 ).
171. Langdell , The Development of Equity Pleading from Canon Law Procedure, in 2 Select Essays in Anglo-American Legal History 753 ( 1908 ). "The procedure of the ecclesiastical courts is called the civil-law system, not because it ever prevailed among the ancient Romans, but because it has grown out of the latest Roman procedure, and because it prevails generally in those countries and jurisdictions which derive their procedure from the Romans." Id . at 753-54.
177. 1 Pomeroy, A Treatise on Equity Jurisprudence § 2 (5th ed. Symons 1941 ). See the interesting reference to Chancellor Kent of New York, the author of Kent's Commentaries , in Burdick, The Principles of Roman Law 80-81 ( 1938 ). An indication of Kent's respect for the Roman or civil law, is seen in his chapter on the civil law. He writes: "The whole body of the civil law will excite neverfailing curiosity, and receive the homage of scholars, as a singular monument of human wisdom." 1 Kent , Commentaries on American Law 507- 08 ( 1826 ).
178. Stubbs , The History of the Canon Law in England, in I Select Essays in AngloAmerican Legal History 248 , 261 - 62 ( 1907 ).
179. Id . at 262.
180. Winfield , The Chief Sources of English Legal History 57 ( 1925 ).
194. See 2 Reeves, History of the English Law . 341 - 50 (.Finlason ed. 1 , M0 ); 4 id . at 69- 149 . See also sources cited in Holdsworth, The Ecclesiastical Courts and Their Jurdiction, in 2 Select Essays in Anglo-American Legal History 255 ( l903 ).
195. The Queen v . Millis , 10 Cl . & Fin . 534 , 67S , 3 Eng. Rcp. 344 , 893 (H.L . 1 , 44 ).
196. Established by matrimonial Causes Act of 1857 , 20 & 21 Vict., c. 05 , § § 4 , 6 , 22 . Such jurisdiction was transferred to the Probate, Admiralty and Divorce Division of the High Court of Justice . Supreme Court of Judicature Act of 1S73 , 36 & 37 Vict, c. 6 §§ 34 , 70 , 74; Supreme Court of Judicature Act of 1S75, 33 & 39 Vict., c. 77 , §r 1I, 21 .
197. See Holdsworth , The Ecclesiastical Courts and Their Jurisdiction, in 2 SclEct Essays in Anglo-American Legal History 255 , 234 - S6 ( lsc)'s; Scrutton, The Influence of the Roman Law on the Law of England 165 ( 13S5 ).
193. 1 Hale, The History of the Common Law 3S (5th ed. 1794).
199. See cases cited in Scrutton, op . cit. supra note 197 , at 15S.
200. Holdsworth , The Development of the Law Merchant and Its Courts, in 1 Select Essays in Anglo-American Legal History 289 ( 1907 ). The others listed are the Court of the Constable and the Marshal, Courts of the Forest, and the ecclesiastical courts. A most interesting early book is Malynes , Lex Mercatoria ( 1622 ).
201. Coke , Institutes of the Laws of England, Lib. I, llb (15th ed. Hargrave & Butler 1774 ).
202. 1 Blackstone, Commentaries * 273 . " ... the custom of merchants or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it." Id . at *75.
203. See Howe , Studies in the Civil Law 95 (2d ed. 1905 ) ; Mears, The History of the Admiralty Jurisdiction , in 2 Select Essays in Anglo-American Legal History 312 , 325 - 29 ( 1908 ). See also Mitchell, An Essay on the Early History of the Law Merchant ( 1904 ) ; Sanborn, Origins of the Early English Maritime and Commercial Law ( 1930 ).
204. Holdsworth , The Development of the Law Merchant and Its Courts, in 1 Select Essays in Anglo-American Legal History 289 , 304 ( 1907 ).