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 THE INFLUENCE 
 
 ROMAN LAW 
 
 THE LAW OF ENGLAND,
 
 Sontion: C. J. CLAY AND SON, 
 
 CAMBRIDGE UNIVERSITY PRESS WAREHOUSE, 
 
 Ave Maria Lane. 
 
 Cambritisc: DEIGHTON, BELL, AND CO. 
 ILcipjig: F. A. BEOCKHAUS.
 
 { 
 
 ^)^: 
 
 THE 
 
 INFLUENCE OF THE EOMAN LAW 
 
 ON THE 
 
 LAW OF ENGLAND. 
 
 BEING THE YORKE PRIZE ESSAY OF THE UNIVERSITY OF 
 CAMBRIDGE FOR THE YEAR 1884: 
 
 BY 
 
 THOMAS EDWARD SCRUTTON, 
 
 M.A. LL.B. (lOND.), B.A. LL.B. (CAMB.) : BARRISTER AT LAW; PROFESSOR OF 
 
 CONSTITUTIOKAL LAW AND HISTORY IN, AND FELLOW OF, DNIVEKSITT COLLEGE, 
 
 LONDON: LATE SCHOLAR OF TRINITY COLLEGE, CAMBRIDGE: AUTHOR OF 
 
 "the laws of COPYRIGHT," BEING THE YOEKE PRIZE ESSAY 
 
 FOR 1882. 
 
 "Tu regere imperio populos, Eomane, memento." 
 
 Verg. Aen. vi. 
 
 CAMBRIDGE: 
 AT THE UNIVERSITY PRESS. 
 
 1885.
 
 Cambritigc: 
 
 PRINTED B1 C. J. CLAY, M.A. & SON, 
 AT THE UNIVERSITY PRESS.
 
 
 TO 
 
 SIR ALFRED WILLS, 
 
 ONE OF THE JUDGES OP THE QUEEN'S BENCH DIVISION OF 
 HER MAJESTY'S HIGH COURT OF JUSTICE, 
 
 THIS WORK IS DEDICATED, 
 
 BOTH TO A JUDGE LEARNED IN OUR LAW 
 
 AND ITS HISTORY, 
 AND IN GRATITUDE FOR HIS KINDNESS TO 
 
 THE AUTHOR.
 
 PKEFACE. 
 
 The Yorke Prize of the University of Cambridge, to the 
 establishment of which this work owes its existence, was founded 
 about twelve years ago by Edmund Yorke, late Fellow of St. 
 Catharine's College, Cambridge, and, under a scheme of the 
 Court of Chancery, is given annually to that graduate of the 
 University, of not more than seven years' standing from his first 
 degree, who shall be the author of the best essay on some subject 
 relating to the "Law of Property, its Principles, and History in 
 various Ages and Countries." The subject prescribed for the 
 year 1884 by the Adjudicators, (Arthur Cohen, Esq., Q.C., M.P., 
 and R. Romer, Esq., Q.C.), was " The Influence of the Roman 
 Law on the Law of England ". The prize was awarded to the 
 Essay bearing the motto: " Tu regere im^ierio poimlos, Romane, 
 viemento',' which is now published in accordance with the 
 conditions of the Award. 
 
 The history of English law has yet to be written, but one 
 of the most interesting chapters in that work of the future will 
 be the one which deals with the subject of this Essay. I am 
 far from imagining that the following pages afford an exhaustive 
 or even adequate treatment of so important and difficult a 
 question. To expect such a work to be written in ten months 
 by a young man within seven years of his first degree would, I 
 think, be asking too much even of " the omniscience of youth." 
 Except in one instance, I do not pretend to have done more 
 than collected and, to the best of my ability, criticized what
 
 viii PREFACE. 
 
 has been written on the subject by my predecessors in the 
 field, though this possibly may lighten the labours of my 
 
 successors. 
 
 The question is a very difficult one for three reasons. As 
 to many of the critical periods in the growth of the English 
 law, especially the centuries immediately following the Saxon 
 invasion and the Norman Conquest, we have but slight 
 evidence as to even the nature of our institutions and laws. In 
 those periods on which we have more information, the growth 
 of the law by judicial decisions is frequently influenced through 
 personal, and as it were underground, channels, which leave 
 but scanty traces of their existence to subsequent students. 
 Lord Holt's borrowings from the Law of Rome are on the 
 surface, but what can we say of the methods of his forerunners 
 who made and moulded the Common Law of England? And 
 thirdly, some of the principal sources of knowledge on the 
 history of English law are still of such an inaccessible nature 
 as to discourage and repel any but students most patient and 
 prodigal in time. The Year-Books are still enveloped in the 
 darkness in which their original editions enshroud them, 
 though I learn with pleasure that there is prospect of a 
 satisfactory edition of these treasure-houses of English Law, 
 for which Mr Pike's recent volume affords an admirable 
 pattern. 
 
 Part of the chapter on Bracton, (in which I claim to have 
 accomplished at least some original work, though much 
 remains to be done in the same field), has already appeared, 
 imder a slightly altered form, as a separate article in the Law 
 Quarterly Review for October, 1885. In that article I have 
 criticized that wonderful production, the edition of Bracton 
 by Sir T. Twiss in the Rolls Series, more freely than it was 
 possible to do in this Essay. John Selden must have had a 
 prophet's pen when he wrote that Bracton has been " basely 
 handled by his editors." But on this edition, or on the 
 foundation of its text, the corrupt edition by Tottell, the
 
 PREFACE. ix 
 
 ordinary Englisli student, who cannot collate all the Bracton 
 MSS., has still to rely. 
 
 To these causes we perhaps owe it that the most startling 
 divergences of opinion on particular parts of the subject exist. 
 One writer ascribes everything to Roman influence ; another 
 finds Roman materials almost entirely wanting in our law. 
 
 Hie liber est, in quo quaerit sua dogmata quisque, 
 Invenit et pariter dogmata quisque sua. 
 
 That patriotic maxim "An Englishman's house is his castle" 
 is traced back to Justinian's Code, and the Twelve Tables of the 
 Roman Law are discovered to be " plainly referred to " in the 
 Sermon on the Mount. 
 
 But the interest of the subject to the student of our law 
 is at least equal to its difficulty, and I only hope that I may 
 have lessened in some degree the difficulties, for those who 
 feel the interest. For the rest, the words of Sir Henry 
 Spelman are still true and to the point : " I wish some worthy 
 lawyer would read the law diligently, and show the several 
 heads from which these laws of ours are taken. They beyond 
 the seas are not only diligent, but very curious in this kind; 
 but we are all for profit and Lucrando pane, taking what we 
 find at market, without enquiring whence it comes." 
 
 T. E. S.
 
 TABLE OF CONTENTS. 
 
 Introduction 
 
 FAOE 
 
 1,2 
 
 PART I. 
 
 Roman Influences on English Law before the Com 
 OF Vacarius . . . • 
 
 Chapter I. The Sources of the Roman Law . 
 
 Chapter II. The Claims of the Roman Law 
 Chapter III. Roman Law in the Early Land Law 
 
 air Seebohm's Manorial Theory 
 Chapter IV. Roman Law in the Early Family Law 
 Chapter V. Roman Law in Eai-ly Procedure . 
 Chapter VI. Roman Law in the Early Constitution 
 
 Part I. Shires and Hundreds . 
 
 Part II. Towns and Gilds. 
 Chapter VII. Roman Law and the Norman Conquest 
 Chapter VIII. Summary 
 
 ING 
 3—66 
 
 3—11 
 12—18 
 19—39 
 30—39 
 40—44 
 45—49 
 50—57 
 50—52 
 53—57 
 58—64 
 
 65,66 
 
 PART II. 
 
 Roman Influences in English Law after the Coming 
 
 OF Vacarius . . . • 67—193 
 
 Chapter I. The Introduction of the Roman Law 
 
 Chapter II. Roman Law in Glanvil . • . 
 Chapter III. Roman Law in Bracton 
 
 Bracton's First Book : on Persons 
 Bracton's Second Book : on Property 
 Bracton's Third Book : on Contracts 
 
 Actions 
 
 Criminal Law .... 
 
 Remainder of Bracton . 
 
 Results ..... 
 
 and 
 
 67—73 
 
 74—77 
 
 78—121 
 81—86 
 86—99 
 
 99—106 
 106—112 
 112—119 
 119—121
 
 xii CONTENTS. 
 
 PAGE 
 
 Chapter IV. Roman Law in Britton and Fleta . . 122—124 
 
 Chapter V. Roman Law from Fleta to Coke . . . 125—128 
 
 Chapter VL Roman Law in Coke 129 — 133 
 
 Chapter VIL Authority of Bracton since Coke . . . 134—139 
 Chapter VIIL Roman Law ; its authority in Hale and 
 
 Blackstone 140—142 
 
 Chapter IX. Roman Law in Blackstone .... 143 — 149 
 
 Chapter X. Summary of Roman Law in Text-writers . 150, 151 
 
 Chapter XL Roman Law in the Chancery . . . 152 — 162 
 
 Chapter XII. Roman Law in the Ecclesiastical Courts . 163 — 169 
 
 Chapter XIII. Roman Law in the Admiralty . . . 170 — 176 
 
 Chapter XIV. Roman Law in the Law Merchant . . 177 — 186 
 
 Chapter XV. Roman Law in the Common Law . . 187 — 193 
 
 Conclusion 194, 195 
 
 Index 196—199
 
 LIST OF WORKS CITED. 
 
 {Other than Reports and Text Books.) 
 
 Anglo-Saxon Law : Essays in. Boston, 187G. 
 
 Arnold, Wilhelm : Ansiedeliingen und Waiider^inffcn Deutschar Stammc. 
 
 Marburg, 1881. 
 Azo : Siimma of. Venice, 1596. 
 Bale : Scriptorum Britannorum Centuriae. 
 BiENER : Das Englische Geschtcornengericht. 
 BiGELOW, M. M. : Placita Anglo-Normannica. Lond. 1879. 
 
 ,, „ : Leading cases on Torts. Boston, 1875, 
 
 Blackstone, Sir W. : Commentaries on the Law of England. 1st ed. 
 
 Oxford, 1765. 
 Bracton, H. de : ed. Tottell. Lond. 1569. 
 
 „■ : ed. Sir T. Twiss. Rolls Series. 6 vols. Lond. 1878 — 
 
 1883. 
 Brentano, L, : On the History and Development of Gnilds, and the Origin 
 
 of Trade Unions. Lond. 1870. 
 Brice, Seward : Public Worship. Lond. 1875. 
 Britton : ed. Nicholls. 2 vols. Oxford, 1865. 
 Callis, R. : Reading on Statute of Sewers ; delivered, 1622 : 2nd ed. 
 
 Lond. 1686. 
 Campbell, Lord : Lives of Lord Chief Justices. 2 vols. Lond. 1849. 
 Coke, Sir E., upon Littleton : ed. Hargrave and Butler. 2 vols. 19tli 
 
 ed. Lond. 1832. 
 Coke, Sir. E : Institutes. 4 vols. Lond. 1817. 
 CoLLYER, J. : on Partnership. Lond. 1840. 
 
 CoOTE, H. C : A neglected Fact in English History. Lond. 1864. 
 „ : Romans in Britain. Lond. 1878. 
 
 „ : Ordinances of the Secular Gilds of London. Lond. 187 L 
 
 ,, : Ecclesiastical Practice. Lond. 1847. 
 
 „ : Probate Practice. 8th ed. Lond. 1878. 
 
 Corpus Juris Canonici : A. L. Richter. 2nd edit, by Friedberg, 2 vols. 
 
 Leipsic, 1876—1881. 
 CoWELL, John : Institutiimes Juris Anglicani ad seriem Institutionum 
 
 Imperialium Digestae. Camb. 1605.
 
 xiv LIST OF WORKS. 
 
 Doctor and Studext : 18th ed. Lond. 1815. 
 
 DoMAT, J. : Loix Civiles dans leur Ordre Naturel. 2 vols. Paris, 1777. 
 
 Duck, A. : De Usu et Anthontate Juris Civilis Romani. Lond. 1679. 
 
 Ellis, Sir H. : Introduction to Domesday. 2 vols. Lond. 1833. 
 
 Elton, C. : Origins of English History. Lond. 1882. 
 
 FiNLASON, W. F. : ed. Reeves' History of the English Law, q. v. 
 
 FiTZHERBERT, A. : Grand Abridgment. 1516. 
 
 Fleta: 1618. 
 
 FoRTESCUE, Sir J. : Be Laudibus Legum Angliae. Lond. 1616. 
 
 Foss, E. : The Judges of England. 9 vols. Lond. 1848—1864. 
 
 Freeman, E. A. : Norman Conquest. 5 vols, Oxford, 1867—1876. 
 
 FuLBECK, W. : A Conference of the Civil, Canon and Common Law of 
 
 England. 1601. 
 Glanvil, R. de : Tractatus de Legihus et Constoehcdinibus Angliae. 
 Lond. 1673. 
 
 „ „ : translation of, by Beames. Lond. 1812. 
 
 GoDOLPHiN, J. : View of the Admiralty Jurisdiction. Lond. 1661. 
 GiJTERBOCK, C. : Bracton and his relation to the Roman Law : trans, and 
 
 ed. Brinton Coxa. Philadelphia, 1866. 
 Hale, Sir M. : History of the Common Law : pub. 1713 : 5th ed. Lond. 
 
 1820. 
 Hanssen : Agrar-Historische Ahliandhlungen. Leipsic, 1880. 
 Hargrave, F. : Law Tracts. Lond. 1787. 
 Hartwig : Untersuchungen ilber die ersten Anfiinge des GUdeicesens. 
 
 Gottingen. 1863. 
 Holmes, 0. W. : The Common Law. Lond. 1882. 
 Houard, D. : Traite's sur les Coutwnes Anglo- Normandes. 4 vols. Paris, 
 
 1776. 
 Irving, D. : Introduction to the Study of the Civil Law. Lond. 1837. 
 Justinian : Digesta, ed. T. Mommsen. Berlin, 1870. 
 
 „ : Codex, ed. Krueger. Berlin, 1877. 
 
 Kemble, J. M. : The Saxons in England : ed. Birch. Lond. 1876. 
 Kenny, C. S. : On Primogenitm-e.' Lond. and Camb. 1878. 
 
 ,, „ : On Effects of Marriage on Property. Lond. and Camb. 
 
 1870. 
 Landau : Die Territorien in Bezug avf ihre Bildung und ihre ErUwicklung. 
 
 Hamburg, 1854. 
 Littleton : On Tenures, ed. Tomlins. Lond. 1841. 
 Loftie, AV. J. : History of London. 2 vols. Lond. 1883. 
 Long, G. Discourses introductory to Jurisprudence and Civil Law. 
 
 Lond. 1847. 
 Ltndwood : Provinciate, seu Constitutiones Angliae. Paris, 1505. Oxford, 
 
 1679. 
 Mackeldey : Modern Civil Law, ed. Kaufmann. Lond. 1845. 
 Madox, T. : History of the Exchequer. 2 vols. Lond. 1769.
 
 LIST OF WORKS. XV 
 
 Maine, Sir H. S : Ancient Law. 8th ed. Lond. 1880. 
 
 „ „ : Village Communities in the East and West. Lond. 
 
 187L 
 „ „ : Influence of Roman Law. Cambridge Essays. 1856. 
 
 Malynes, G. : Lex Mercatoria. 1st ed. 1622, 3rd ed. 1685, Lond. 
 Meitzen, a. : Georg Hanssen, als Agrar-Histonher. Tubingen, 1881. 
 MiRROUR OF Justice : by Andrew Home. Lond. 1642. 
 Palgrave, Sir F. : Rise and Progress of English Commonwealth. Lond. 
 
 1832. 
 Pannier : Ruines de la Coiihime de Normandie. Rouen, 1856. 
 Pardessus, J. M. : Collection de Lois Maritimes. 4 vols. Paris, 1828. 
 Park, Alan : Insurance. 7th ed. Lond. 1806. 
 Pearson, C. H. : History of England in Early and Middle Ages. 2 vols. 
 
 Lond. 1867. 
 Pike, L. 0. : Preface to Year-books, 12 & 13 Edw. iii. Rolls Series, Lond. 
 
 1885. 
 Pollock, F. : Land Laws. Lond. 1883. 
 Pothier, R. J. : Des obligations : trans, and ed. Evans. 2 vols. Lond. 
 
 1806. 
 Record Commission : 
 
 Ancient Laws and Institutes of England, ed. Thorpe. Lond. 1840. 
 
 Ancient Laws and Institutes of Wales, ed. A. Owen. Lond. 1841. 
 
 General Introduction to Domesday Book, by Sir H. Ellis. 2 vols. 
 1833. 
 Reeves, J. : History of English Law. 3 vols. ed. Finlason. Loud. 
 
 1869. 
 Report of City Guilds Commission : Pari. Papers, 1884. R. 4073. 
 Rolls Series : 
 
 No. 70. Bracton, ed. Sir T. Twiss. 6 vols. 1878—1883. 
 
 No. 55. Black Book of Admiralty, ed. Sir T. Twiss. 4 vols. 1871 
 —1876. 
 
 No. 51. R. de Hoveden. ed. Stubbs. 4 vols. 1868—1871. 
 Savigny, F. C. de : Gesckichte des Romischen Rechts itn Mittelalter. 
 
 Heidelberg. 1815—1831. 
 Seebohm, F. : English Village Community. Lond. 1883. 
 Selden, John : Dissertatio ad Fletam. Lond. 1618. Trans, by Kelham. 
 Lond. 1771. 
 
 ,, ,, : Notes on Fortescue, de La^idihus. 
 Shelford, L. : on Marriage. Lond. 1841. 
 SoMNER, W. : on Gavelkind. Lond. 1660. 
 Spelman, Sir H. : Archaeologus sen Glossarium. Lond. 1687. 
 
 „ „ : The Law Terms : Posthumous Works, ed. Gibson. 
 
 Lond. 1723. 
 
 V „ : Concilia in Re Eeclesiarum Orhis Britannici, Lond. 
 
 1639.
 
 xvi I^IST OF WORKS. 
 
 Si'KNCE, G. : Equitiible .hirisdiction of the Court of Chancery. 2 vols. 
 Lend. 1849. 
 
 Staunford, Sir W. : Pleas of the Crown. Lond. 1607. 
 
 Stephkx, Sir J. F. : History of Criminal Law. 3 vols. Lond. 1883. 
 
 Stubbs, W. : Constitutional History. 3 vols. Oxford, 1874. 
 „ : Select Charters. 3rd ed. Oxford. 1876. 
 
 : Preface to R. de Hoveden. Rolls Series. 4 vols. 1868— 
 1871. 
 
 Thorpe, B. : Ancient Laws and Institutes of England : Record Com- 
 mission. Lond. 1840. 
 
 Vacarius : Article on, in Penny Encyclopaedia. Lond. 1843. 
 
 YixoGRADOFF, P. : " Text of Bracton." Law Quarterly Review. April, 
 1885. 
 
 Waitz, G. : Deutsche Verfassungs Geschichte. Kielj 1865 — 1866. 
 
 Warren, S : Introduction to Law Studies. 3rd ed. 2 vols. Lond. 1863. 
 
 Wenck, C. F. C, : Magister Vacarius, Primus Juris Romani in Angliae 
 Professor. Leipsic. 1820. 
 
 Wilda : Das Oildeicesen in Mittelalter. Halle, 1831. 
 
 Wright, Sir M. : On Tenures. 2nd ed. Lond. 1734. 
 
 Wright, T. : Municipal Privileges under the Anglo-Saxons. Archaeologia, 
 xxxii. pp. 298—311. Lond. 1847. 
 
 ZoucH, R. : Jurisdiction of Admiralty of England asserted. Lond. 1686.
 
 THE INFLUENCE OF THE KOMAN LAW 
 
 ON 
 
 THE LAW OF ENGLAND. 
 
 " Tu regere imperio populos, Eomane, memento." 
 
 INTRODUCTION. 
 
 Any discussion of the influence exercised in EngLand by the 
 Roman Law will naturally fall into two divisions, separated by 
 the arrival in the year 1143 of Vacarius on our shores in the 
 train of Archbishop TheobnkP, 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 tlie 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. 
 We have then in our survey to deal with two great periods. 
 Investigating in the first place, if such a search be possible, 
 what traces of its influence the Roman occupation of Britain 
 had left on its inhabitants, their institutions and customs, we 
 may study both the law before the Conquest, and that law as 
 influenced by the Norman invasion, to ascertain, if possible, how 
 far its leading features at either period are attributable to 
 Norman or to Teutonic influences. The period is one of custom, 
 not of written law ; of vagueness rather than of precision ; and 
 it will afford no matter for surprise if in the legal obscurity of 
 
 ^ Kaufman's Mackeldey, p. 72, - Ibid. p. GG. 
 
 S. 1
 
 2 INTRODUCTION. 
 
 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 books by masters of the law. The treatises of Ranulph 
 Glanvill, Justiciar, composed in 1190, and of Sir Henry de 
 Bracton, one of the King's judges, written in the few years before 
 1259, the works called Briton and Fleta, compiled about 1290, the 
 Year books, the legislation of Edward I., all combine to illumine 
 the dawn of the historical period of English law. Though great 
 industry, ingenuity, and learning may yet be necessary to unravel 
 the tano-led skein, we are not left without material for such a 
 task. We are not asked to make our legal bricks without straw, 
 to compile our laws without sources. We are able to trace, under 
 the guidance of Silence', the rise of the Court of Chancery, Eoman 
 to the backbone; we can study the efforts of the great Lord 
 Mansfield to construct a scientific code of Mercantile Law on 
 principles largely Roman, and we can follow through the 
 Ecclesiastical Courts the learning of the clergy in the laws of 
 the mighty Rome. 
 
 To the first of our periods, however, we may now turn, if 
 not with hope, at least with the knowledge that where success 
 is all but impossible, failure has in it nothing of disgrace. 
 
 Equitable Jurisdiction of the Court of Chancery, Lond. 1849.
 
 PAET T. 
 
 ROMAN INFLUENCES ON ENGLISH LAW BEFORE 
 THE COMING OF VACARIUS. 
 
 CHAPTER L 
 
 THE SOUECES OF THE ROMAN LAW. 
 
 The Romans under Julius Caesar landed on these shores in 
 B.C. 55, and in A.D. 43 the serious conquest of Britain com- 
 menced under the Emperor Claudius : the Roman legions were 
 finally withdrawn in A.D. 410 under the Emperor Honorius. 
 During this period, while the adventurers or puppets who ruled 
 the Western Empire exercised very little direct control over 
 Britain, it is probable that the greater part of the island was 
 governed on the Roman provincial system, and the Roman law 
 was administered with more or less strictness. Into the details 
 of this system we do not propose to enter. " The details of the 
 later Roman Provincial system, and of the economic condition of 
 the German and British proviuces, remain so obscure, even after 
 the labours of Mommsen, Marquardt and Madvig, that he who 
 attempts to build a bridge across the gulf of the Teutonic 
 Conquests between Roman and English institutions still builds 
 it somewhat at a venture \" The nature of the Roman provincial 
 government is too obscure, the Roman law is too well known, to 
 justify any lengthy exposition here of either of them. We may 
 however remark that it is recorded by Dio Cassius'^ that the 
 great Papinian, the Fearne of Roman Law, whose works it was 
 
 ^ Seebohm on English Villarie reconstruction, but with more in- 
 
 Community, Lond. 1883. Pref. p. xii. genuity than success. 
 
 Mr Coote in his Romans in Britain, ^ Selden, Dissertatio ad Fletam, 
 
 London, 1878, has attempted such a c. 4 § 3. Duck, De l<sv, ii. 8, 2. 4. 
 
 1—2
 
 EARLY CODES. 
 
 presumption to profess to understand under three years' study, 
 not only accompanied the Emperor Severus to Britain, but also 
 filled the judicial office in the City of York, evidently admini- 
 stering the Imperial law in Britain. 
 
 We may accept it as probable that, for the century or so 
 preceding the withdrawal of the legions, the actual influence of 
 Rome on Britain was very slight, whilst the withdrawal of those 
 legions in A.D. 410 did not mean the entire withdrawal of 
 Roman institutions, customs, and culture. But the vestiges of 
 Roman influence can hardly have endured with any permanence 
 in face of the anarchy of invasion which swept over them. The 
 incursions of Teutonic invaders had been frequent even during 
 the Roman occupation, and that part of the coast exposed to 
 their ravages had acquired the name of the Littus Saxonicum , 
 with special officers to guard it, as ^arly as A.D. 300. There are 
 traces also of the permanent transplanting of certain Gaulish or 
 Teutonic tribes as legionaries in Britain during the Roman era^ 
 a fact not without its importance in view of subsequent investi- 
 gations. But historical materials are very scanty', as authentic 
 records entirely disappear from A.D. 418 to A.D. 473. It is 
 clear that during the last half of the 5th century the Saxon 
 invasions resulted in settlements of some degree of permanence 
 and power; Hengist in Kent, Ella in Sussex, Cerdic in Wessex, 
 established themselves in force. During the Gth century the old 
 settlements grew into Kingdoms, and new conquests were made 
 in Essex, Northumbria and East Anglia. In the year 600, we 
 obtain the first written code of English Laws, which purports to 
 be issued by Ethelbert, King of Kent"*. This code (which, with 
 the other Kentish laws, is only preserved to us by the Textus 
 Roffensis, a MS. of the 12th century) contains 90 short clauses, 
 many of which are of great obscurity. It is clear that as a code 
 of law the document is utterly inadequate, and presupposes a 
 vast mass of custom regulating the ordinary relations of life. 
 
 ' According to Palgrave {Common- - Palgrave, i. 355, 356, 377. 
 
 wealth, pp. 359, 384), on account of ^ Elton, Origins of History. 
 
 the Saxons already settled there. The * Thorpe, Ancient Laws and Insti- 
 
 Bishop of Chester prefers the explana- tutcs of England, p. 1. 
 tion given in the text Hist. i. 59).
 
 EARLY CODES. » 
 
 Many of the clauses' relate to the particular fines to be paid for 
 damage to the person, which are set out with great minuteness : e.g. 
 §58. If there be a bruise... a shilling. §59. If the bruise 
 be black in a part not covered with the clothes, let hut be made 
 with 30 scaetts. § 60. If it be covered with the clothes, let hut 
 be made with 20 scaetts. 
 
 About the year GSO we have a second Kentish code' of 
 Kings Hlothaere and Edric, composed of 10 clauses, which relate 
 mainly to procedure, and recite that the two kings " augmented 
 the laws which their elders had before made by these dooms." 
 lu 696 a farther Kentish code^ issued by Wihtraed, recites that 
 " the great men decreed, with the suffrages of all, these dooms, 
 and added them to the lawful customs of the Kentish men." 
 This code consists of 28 clauses, and has, as compared with its 
 forerunners, a distinctly Christian and clerical character. 
 
 The first Wessex code appears about the year 700 in the 
 shape of Dooms issued by King Ina* "with the counsel and 
 teaching of his Witan." These consist of 76 clauses, and, when 
 taken in connexion with the laws of Alfred, give much greater 
 insight into the early law. But for a period of 300 years after 
 the Roman legions left Britain, 300 years filled with wars 
 and rumours of wars, raids of Angles and Saxons, Picts and 
 Scots, bloodshed and burning, there are, with the exception of 
 three scanty codes of one small kingdom, scarcely any materials 
 for even the knowledge of early law and custom, let alone any ■ 
 satisfactory traces of its history. The Roman system is for 
 nearly 400 years exposed to such an ordeal of fire and sword 
 that it would be indeed strange were any considerable part of 
 its principles to survive in a recognizable shape. 
 
 The Laws of King Alfred' commence with nearly 50 sections 
 representing the Mosaic law, followed by 77 actual English laws 
 of considerable importance. Alfred has himself described his 
 method of framing them as follows ^ "I then, Alfred, King, 
 gathered these together and commanded many of those to be 
 written which our forefathers held, those which to me seemed 
 
 1 E.g. §§ 32 72. * Thorpe, p. 45. Ina, a.d. 68S-725. 
 
 2 Thorpe, p. 11. •' Circa, a.d. 900. Thorpe, p. 20. 
 
 3 Ibid. p. 16. « Thorpe, p. 27.
 
 (5 CUSTOMARY LAW. 
 
 o-ood and many of those which seemed to me not good, I rejected 
 them by the counsel of my Witan, and in other wise commanded 
 them to be holden : for I durst not venture to set down in 
 writing much of my own, for it was unknown to me what of it 
 would^please them who should come after us. But those things 
 which I met with, either of the days of Ina my kinsman, or^ of 
 Offa\ King of the Mercians, or of Ethelberht,... those which 
 seemed to me the rightest, those I have here gathered together 
 and rejected the others." 
 
 Here, as throughout the early history, we are forced to 
 recognise that the written laws are but crystallizations on 
 the surface of a mass of custom, which varies in nature with 
 \ race and place, and which holds in solution all the real institu- 
 tions of the English people. The possible elements in fusion 
 have up to this time been: (1) BrUish or Celtic, (2) Roman, (3) 
 Teutonic. Each tribe that landed from the German warships 
 brought its peculiar customs to blend into " those things which 
 our forefathers held ;" while, fourthly, it is probable that some 
 institutions and customs of South German tribes, who had come 
 more under Roman influence than their North German brethren, 
 have had influence on at least the English Land system I 
 
 From the beginning of the 9th century the Dane-lagu 
 brino-s a new element to the compound, that Dane-law which 
 the Northmen who had settled after successful raids in the 
 North-east of England obeyed, as embodying the customs they 
 had brought from their Northern homes. And these customs 
 took form in written legislation in the "Peace of Alfred and 
 Guthrum" in 878, and the Laws of Edward and Guthrum^ {circa 
 A.D. 900). Not to elaborate this account of our scanty sources, 
 we have the Laws of Edward, of Athelstan, of Edmund, of 
 Edgar (especially his famous ordinance of the Hundred)*, and of 
 King Ethelred^ This latter code is more lengthy than those 
 of Ethelred's predecessors, and shows many traces of clerical 
 influence. 
 
 ' These laws Lave not survived ^ Thorpe, pp. 66, 71. 
 
 except as embodied in Alfred's code. ■* Ibid. pp. 68 — 119. 
 
 ' 2 Seebohm, Eiujlish Village Com- ^ Ibid. p. 119. 
 munlty, see infra, pp. iJO, ct acq.
 
 LAWS OF WALES. 7 
 
 The Laws of Cniit' a^^ain indicate the reiiitroduction uf the 
 Norse element. There also exist several detached documents of 
 some importance, such as the Penitentials of Canterbury and 
 York"; the Rectitudines Singularum Personarum^, containing 
 much information as to ranks and status ; the Dooms of the 
 City of London* ; detached fragments on Oaths, and on Were^ 
 and other similar sources. Some information as to customs and 
 institutions is gained from the wills, land-grants and records of 
 suits collected by Thorpe, but any account of Anglo-Saxon law 
 founded on these sources alone cannot but exhibit large hiatus. 
 These gaps may be to some extent conjecturally supplied by 
 collation with the written sources of law of the kindred German 
 tribes on the continent ^ 
 
 Some evidence as to British and Saxon customs may also be 
 obtained from the laws of Wales, although these only exist in 
 MSS. of the 13th and 14th centuries', and purport to date from 
 the codification of Welsh custom by Howel Dha about the year 
 950. But when these laws are put forward as strong evidence 
 to show the customs of Roman Britons, it will not be sufficient, 
 as is done by Mr Finlason^ to extract those small parts which 
 suggest a Roman origin, while entirely omitting to consider 
 those portions which, while different from what we know of 
 Saxon institutions, are also completely unlike the Roman system 
 on which they are supposed to be founded. The Welsh land 
 and family law especially suggest, in the first place, that Roman 
 civilization had either never very deeply affected British institu- 
 tions, or that, if it had, the traces of its influence had been 
 destroyed during the anarchy that followed the Roman with- 
 drawal. While, secondly, if the Welsh institutions are unlike 
 the Saxon in important points, either the ancient British system 
 has been modified in Wales in an entirely different way to that 
 in which it has changed in Saxon England, a result which can 
 
 1 Thorpe, p. 153. rian, Frisian, Saxon, and Tliuringian, 
 
 2 Ibid. p. 277. Law Collections ; originating between 
 ' Ibid. p. 185. the 5th and 8th centuries. Mackeldey, 
 ■» Ibid. pp. 97, 127. Kaufmann, p. 78. 
 
 ' Ibid. pp. 75, 76. ^ Ancient Laws and Customs of 
 
 * The Visigothic, Salic, Burgun- Wales: Eecord Commission, 
 dian, Eipuarian, AUemannic, Bara- ** Finlason's Preface to Reeves.
 
 8 WELSH LAW. 
 
 only be due to the laws and customs of the Saxon invaders, or, 
 which is far more probable, while British customs have survived 
 in Wales with but small change, the Saxon invaders have in 
 England altogether replaced them by their own. 
 
 To put the argument in another form, the Welsh land and 
 family law is entirely different, as far as we can gather, from the 
 laws of the Komans and Anglo-Saxons on kindred subjects. 
 Now either the Roman law was the source of both Welsh and 
 Saxon law or it was not. If it was the source of neither, cadit 
 quaestio. The question is also answered if it was the source of 
 Welsh law only, the Saxon system being independent, while it 
 can only have been the source of Saxon law by being also the 
 origin of the law of the Welsh or Romanized Britons, which 
 forms the alleged connecting link between the 5th and 7th 
 centuries. If then it was the source of both, the two laws, 
 Welsh and Saxon, had on impoitant points become entirely 
 unlike. Now the law of Wales, i.e. of the Romanized Britons, 
 was subject to no special disturbing influences but the retreat 
 before the Saxon invasion, while the law of England was, or 
 may have been, largely affected by the importation of Teutonic 
 customs and institutions in the Saxon keels. From every point 
 of view therefore, the dissimilarities as well as the similarities 
 of Welsh to Roman and Saxon law, should be included in our 
 study. 
 
 But from that study, so widened, our greatest historian 
 expects but little. "If," says Mr Stubbs\ "the agreement 
 between the local machinery of the Welsh laws and the Anglo- 
 Saxon usages were much closer than it has ever been shown to 
 be, if the most ancient remains of Welsh law could be shown 
 not to be much younger in date than the best established 
 customs of Angle and Saxon jurisprudence, the fact would still 
 remain that the historical civilization is English and not Celtic. 
 The cantved of Howel Dha may answer to the Hundred of 
 Edgar, but the Hundred of Edgar is distinctly the hundred of 
 the Franks... The Welsh may in late times have adopted the 
 institutions from the English, or in all the nations the common 
 
 1 Const. Hist. I. 63.
 
 UNTRUSTWORTHY SOURCES. 9 
 
 features may be the signs of a common stage of civilization; Lut 
 the kinship is between the English and German forms." 
 
 The early soui'ces of our investigation have been dwelt on at 
 this length in order to show the difficulties of our task and the 
 slight materials on which our conclusions must be based. 
 Several of the sources are unfortunately not to be depended on 
 as evidence. Thus the so-called "Laws of Edward the Con- 
 fessor V which purport to be the result of the inquiries made in 
 or after the 4th year of the Conqueror through 12 sw^orn men 
 from each shire, bear traces on their face of a much later date, 
 and are considered by modern historians, as possibly founded on 
 a report of the jurors of 1070, but in their existing form not 
 earlier than 1180 and put forward by Glanvilll A passing 
 reference may also be made to the "Mirrour of Justice," a work 
 of the time of Edward I. purporting to give authentic informa- 
 tion as to the laws of Alfred, and information to be found 
 nowhere else. Of this it is sufficient to say here that Palgrave 
 considers it "a curious specimen of the apocrypha of the lawV' 
 and Sir J. F. Stephen treats the part relating to Alfred as 
 "merely an invention*." It is moreover an undoubted fact that 
 many of the existing charters are monkish forgeries for the 
 purposes of subsequent suits. 
 
 Though it is unnecessary and even misleading to draw a 
 definite line between law before and after the Conquest, since 
 on the one hand Norman influences had been at work durino- 
 the reign of Edward the Confessor, and on the other hand the 
 customary law was not changed in any direct or immediate way 
 by the Conqueror, yet as undoubtedly the development of 
 feudalism under Ranulf Flambard and the changes in procedure 
 wrought by the introduction of the sworn inquest and the 
 procedure by appeal did affect English law, the Conquest forms 
 a convenient halting ground in our first period. 
 
 We have thus enumerated the English sources of laws and 
 charters, and the extra-English sources of Continental Teutonic, 
 and Welsh laws, from which the early law of England may be 
 
 1 Thorpe, p. 190. 3 CominomccaWi, Proofs, p. 113. 
 
 2 Stubbs: Treface to R. de Hove- •* Stephen, J/j's^ Crim. Law, i. 52. 
 den, 11. 44.
 
 ^0 ROMAN SOURCES. 
 
 g-ithered It only remains to state briefly what Roman law was 
 available as a modifying, (as opposed to an originating), influence 
 during the period before the Conquest. 
 
 The legal compilations of Justinian did not come into 
 existence until A.D. 5G5 : prior to these, the only systematic 
 collections were the Codices Gregorianus and Hermogemanus\ 
 both compiled about A.D. 450, and the Codex Theodosianus, 
 published in A.D. 438; and these, besides being published after 
 the Roman legions had left Britain, only extended in operation 
 over the Eastern Empire. This, the Justinianean body of law 
 appears to have had no force in Western Europe' and indeed, 
 with the exception of a partial and temporary application in 
 Italy, to have been almost unknown until the revival of its study 
 by the Bolognese Law School about the year 1150. 
 
 The Collections of law in the Western Empire, which was 
 overrun by Goths, Vandals and Huns, were as follows : 
 
 I.' The Edidum Theodorici, issued at Rome, A.D. 500, and 
 imposed on the conquered Romans, and conquering Ostrogoths. 
 Though this was derived almost entirely from the Roman Law, 
 and especially from the Codex Theodosianus, the sources were 
 used so arbitrarily and with such freedom, that the character of 
 the Roman Law can scarcely be traced in them. 
 
 II. The Breviarium Alaricianum, current among the Visi- 
 goths; published in 506 by Alaric, and also derived, with 
 modifications, from Roman sources. 
 
 III. The Lex Romana Burgundiorum, published between 
 the years 517 — 534 ; and largely compiled from Roman Law ; 
 intended for the Roman subjects of the Burgundian Empire. 
 
 This Roman law, ante-Justinianean in character, and much 
 altered in the different collections*, was the only source, which 
 could modify, by Romanizing, the Saxon institutions. Into 
 the laborious task of tracing these modifications, if any, we 
 cannot enter in detail. It may suffice at present to have pointed 
 
 ' Mackeldey : Kaufmann, p. 45. •' llackeliley, p. 48. 
 
 ^ Selden ad Fletam, c. vi. § 1. * Selden ad Flctam, c. v. § 5. 
 
 Mackeldey, pp. 87, (i4.
 
 ROMAN SOURCES. 
 
 11 
 
 out that the comparison, until the 12th century, is not with the 
 Corpus Juris of Justinian, but with a much mutilated code of 
 earlier date, largely added to from barbarian sources'. 
 
 1 The Eoman Law never seems to press edict the use of the Eoman Law 
 
 have been very popular among the among the Wisigoths. Selden ad 
 
 early Western Nations. King Cindas- Fletam, v. 5. 
 winthus, in a.d. 650, prohibits by ex-
 
 CHAPTER II. 
 
 THE CLAIMS OF THE KOMAN LAW. 
 
 There arc two ways in which the influence of the Roman 
 on the English Law previous to the 12th century may be 
 discussed. One, and the most exhaustive, method would give a 
 complete account of the Saxon Polity and Law, comparing it 
 step by step with its supposed Roman prototype. Such a 
 method, while most satisfactory if thoroughly carried out, would 
 for exceed the bounds or possibilities of this Essay. The other 
 and more feasible course would set out the claims that have 
 been made for Roman Law by its most pronounced advocates, 
 with the evidence by which those claims are supported, and 
 would endeavour by independent criticism and investigation to 
 adopt or reject them, or to add to or diminish their extent. For 
 this task fortunately materials exist, and such a method does 
 not appear an unfair one. It is not pretended that the fact 
 that energetic advocates have not ventured to claim some 
 particular part of the Anglo-Saxon polity as of Roman origin 
 proves conclusively that no such claim can fairly be made. 
 That even so zealous and daring an advocate as Mr Finlason^ 
 does not allege the English criminal procedure to be Roman in 
 its source, need not preclude us from attempting to give a few 
 conclusive proofs that its leading features are purely Teutonic. 
 But we can thus concentrate our attention on those points for 
 which a Roman origin is specially asserted. 
 
 The writers who make definite and precise allegations as to 
 the Roman influences at work during the period before the 
 
 1 Finlason's Reeves, p. 2, note. Mr rxomans in Britain, pp. 303—313. 
 Coote however does make the claim.
 
 SIR F. PALGRAVE AND MR COOTE. 13 
 
 Conquest are few. Sir Fras. Palgravc' is mainly concerned with 
 
 his unfortunate theory of the English kings as Roman Emperors. 
 
 He however declares the feudal system to be partly Roman^ in 
 
 its orisfin, and asserts that the Craft-Gilds descend in a direct line 
 
 from the Roman collegia opiflcum^ : though he admits that only 
 
 scanty traces of Roman Municipal institutions can be discerned, 
 
 and that we cannot, as in Gaul, deduce the political existence of 
 
 Cities from the Roman era*. Noticing of course the undoubted 
 
 fact of the Roman and ecclesiastical parentage of Wills^ he also • 
 
 traces a rather shadowy line of descent from Rome for English 
 
 parliamentary proceedings^ Mr H. C. Coote, in a small work 
 
 entitled, A Neglected Fact in English Historij, afterwards 
 
 expanded into his larger work, Romans in Britain, makes 
 
 what the Bishop of Chester calls " a very learned and ingenious" 
 
 contribution to the question, which certainly deserves more than 
 
 a passing notice\ He finds the chief traces of Roman influence 
 
 in : (1) the division into privileged and unprivileged classes ; 
 
 thegnas and ceorlas : (2) the land system, especially the trinoda 
 
 necessitas, and an alleged right of resumption, (3) the Municipal 
 
 system, (4) the general civilisation and institutions of the 
 
 people. Any argument that Mr Coote urges demands the most 
 
 careful attention, though the ingenuity with Avhich he makes 
 
 bricks without straw, and describes institutions without evidence, 
 
 almost conceals the entire lack of foundation for some of his 
 
 statements. 
 
 Mr Finlason is more daring, though his materials hardly 
 warrant the boldness of his claims. In editing in 1869 the 
 learned work of Mr Reeves, who, writing during the last century, 
 had taken the purely English view of the common law, he found 
 himself constantly opposed to the results arrived at bj his 
 author, and was therefore led to sum uj) liis own views in a 
 Preface of 128 pages, avowedly directed to maintain the theory 
 of the prevailing influence of Roman Law in this country. The 
 
 1 Palgrave's Rise and Progress of ''Ibid.; Proofs, 418. 
 
 English Commonwealth. "^ Mr Coote's lack of acquaintance 
 
 2 Ibid. 77 ; Proofs, p. 205. with the recent German investigations 
 ^ Ibid. 628. into early English civilisation is how- 
 * Ibid. 629. ever very marked. 
 
 5 Ibid. ; Proofs, 3.5S.
 
 14 THE I^IIRROR OF JUSTKJE. 
 
 conclusions in the essay are plainly stated though it is some- 
 times a little difficult to discover on what evidence they have 
 been reached. We cannot but notice the great importance Mr 
 Finlason attaches to the " Mirrour of Justice," of whose genuine- 
 ness he apparently entertains no suspicion. There seems now a 
 complete concurrence of opinion among historical students^ as 
 to the apocryphal character of this work, so far as it professes to 
 be anything more than a private compilation, made in the reign 
 of Edward I. by Andrew Home, Town Clerk of London, Citizen 
 and Fishmonger. It has been alleged that the account of 
 Saxon Law is taken from some earlier work to which Home had 
 access in the Guildhall Library, but such a work is no longer in 
 existence and the materials supposed to be derived from it are 
 so curious as to render its actual existence at any time very 
 improbable. Home continually cites the " Rolls of Alfred," a 
 set of documents probably invented by analogy to the then- 
 existing Pipe and other Rolls. Statements like the following: — 
 " He (Alfred) hanged Markes, because"'' he judged During to 
 death by 12 men who were not sworn : he hanged Thurston 
 because he judged Thuringer to death by a verdict of inquest 
 taken ex officio without inquest joined: he hanged Fribume 
 because he judged Harpen to die whereas the jury were in 
 doubt of the verdict, for in doubtful cases one ought rather to 
 save than to condemn:" — statements so contrary to all that is 
 known, from authentic sources, of Saxon procedure, do not 
 suggest that any reliance is to be placed on the number of 
 strange names of judges, and the confidence with which their 
 alleged decisions are cited. Neither does the manner in which 
 Mr Finlason deals with the statements of the work increase our 
 confidence in his own power of estimating evidence. Two 
 instances will suffice. The Mirrour says (s. 22) : — " Thurmond 
 ordained that criminal actions for revenge should cease at the 
 year's end " : on which Mr Finlason comments : — " a passage 
 which is evidently most ancient, for the name of the judge is 
 Saxon, and the notion of any limitation of criminal prosecution 
 was not known in later times'." This method of proof would 
 
 1 Palgrave, Proofs, 113. Stephen, ^ citedinFinlason'sEeeves,pref.p.64. 
 Hist. Crim. Law, i. 52, note. :*Ibid. pref. p. 64, note.
 
 THE MIRROR OF JUSTICE. 15 
 
 demonstrate the antiquity of any decision, ascribed to a judge 
 with a Saxon name, and out of accord with all known law. In 
 other words, it assumes the Mirroiir to be an accurate work, and 
 then proves the antiquity of the statement by the fact that it is 
 inaccurate as applied to any period of which we have any 
 knowledge. But tliis is not all : our advocate, having proved 
 the antiquity of the decision, performs the same kind office for 
 Thurmond himself, as follows': "Now Thurmond was clearly 
 neither a Saxon nor a Norman king, neither was he a judge 
 after the Conquest, for the names of the judges since then are 
 known. He was therefore (!) some Saxon judge or sheriff." 
 Surely there is another and more probable alternative; he is 
 an altogether imaginary person. But Mr Finlason, assuming 
 his existence, proves his antiquity by showing he did not exist 
 during the times when records of the judges are available. 
 
 The Mirrour also cites a number of decisions in the present 
 tense; "Turgis saith"; "Billing saith", in commenting on 
 which Mr Finlason excels himself in logical acumen^ : — "'Billing 
 saith', as if the judge were still alive at the time it was 
 written." Billing is proved by the above method to be of 
 great antiquity ; consequently his decision is ancient ; therefore 
 the Mirrour was written in times of great antiquity, the writer 
 remarking of a recent decision, " Billing saith." This would 
 prove every book in which occurs the common phrase, " Lord 
 Eldon lays down"; "Lord Mansfield says"; to have been 
 written in the time of Lord Eldon or Lord Mansfield ; while to 
 apply it to the very work before us, Mr Finlason's Preface can 
 be by his own method conclusively proved to have been written 
 in the times of Lord Hale, Montesquieu, Guizot, Lingard, and 
 St Augustine, all of whom are cited in the present tense in the 
 same manner in which the apocryphal Turgis, Billing and their 
 brethren are cited in the " Mirrour of Justice." 
 
 Leaving however this " curious specimen of the apocrypha 
 of the law " as Palgrave calls it, and with it a large portion of 
 Mr Finlason's evidence, let us consider the grounds on which 
 this most daring advocate of Roman Law bases his claims. His 
 methods of procedure appear to be two. We have first the 
 
 1 Finl. Reeves, p. 65. - Ibitl. p. 63, note.
 
 IG MR FINLASON. 
 
 proof by negation : the English Law must be E,on\an, because 
 there is no other source from which it can have come. Appar- 
 ently from some sense of weakness in this line of argument, we 
 have the second method, consisting of positive statements as to 
 specific branches of the law attributable to Roman sources. 
 
 The first method is carried out by Mr Finlason with great 
 daring. The question is as follows. Let us assume a Roman- 
 ized civilization existing in Britain in A.D. 400 : the next 200 
 years, the Roman legions having withdrawn, are filled with 
 anarchy, and the invasions of North German tribes, who had in 
 Germany well defined institutions and customs of their own, 
 which have had a great influence in continental history. In 
 A.D. 600 the first written laws remaining to us are composed, 
 and by A.D. 850 the island has become tranquil and united. A 
 system of law is then found in existence which can be compiled 
 with some precision from written laws, references to customs, 
 and our knowledge of continental legal codes. This system has 
 been alleged to bear a distinctly Teutonic stamp. Mr Finlason 
 desires to prove it of Roman origin. 
 
 He first disposes of the aboriginal Britons : " That the 
 Britons were in a state of barbarism on the arrival of the 
 Romans is clear... and it is idle and absurd to talk of their 
 laws\" The maintenance of Roman institutions after the 
 departure of the legions is then asserted with considerable 
 confidence when we consider the almost entire absence of 
 evidence as to Britain in the 5th century ^ But the coming of 
 the Saxons is an undoubted fact, and their peculiar institutions 
 can hardly be denied. How does Mr Finlason deal with them ? 
 The method is simple. " The Saxons, being little better than 
 
 savages, had no civilized institutions of their own they did 
 
 not bring any institutions or laws worthy of the name with 
 them. They brought only rude barbarian usages, as will be 
 seen in their written laws, which express for the most part 
 their own usages.,.. It is manifest that they created nothing 
 civilized^" Notinir the admission that the written laws are 
 
 1 Eeeves, Ficl. pref. p. 1, note. ^ Eeeves, Finl. pref. pp. 39, 40, 42, 
 
 2 Elton, Origins of English History, 44. The whole passage {pp. 39—44) is 
 pp. 358 — 3G'2. curious.
 
 CLAIMS OF THE ROMANISTS. 17 
 
 not Roman, but Teutonic, we find Mr Finlason recofrnizinsf the 
 existence of a large mass of custom ; " the most vakiable 
 rights of the people were embodied in customs, which were 
 unwritten \" Are these then Teutonic or Roman in origin? 
 Mr Finlason's answer is extraordinary. After admitting that 
 much unwritten law was mentioned in, and its existence implied 
 by, the written law, he continues: "but its origin is not to be 
 found in any of the written laws, and it therefore could only 
 have been derived from the Roman law\" Why ? we wonder- 
 ingly ask: and the answer seems to be that as the Saxons were 
 barbarians and brought nothing worthy, in Mr Finlason's opinion, 
 of the name of law, any system of unwritten law, which Mr 
 Finlason may subsequently think worthy of the name, can only 
 have arisen from Roman sources. Such an argument susfcrests 
 a great ignorance of historical progress, and lack of appreciation 
 of the value and fertility of early customs and institutions, 
 " barbarous " though they may seem to an enlightened 
 Romanist. The whole of the argument requires the assumption 
 that no Saxon customs had in them even the germs of later 
 institutions, an assumj)tion incorrect, as Mr Finlason admits, 
 with regard to criminal law, and without foundation, as will be 
 seen, in many other portions of the English legal system. 
 
 For, having dealt with the negative side of Mr Finlason's 
 argument, we may now turn to his positive claims. Though 
 these are often of a shadowy nature, involving the assertion that 
 certain very general princij)les pervade both laws and must 
 have been derived by one from the other, we yet find our 
 author definitely committed to the claim of a Roman origin for, 
 inter alia^ : I. The Manorial system. II. The Municij^al 
 system. III. A regular judicature and judicial tribunals with 
 skilled judges of the law and jurors, or sworn judices facti, for 
 the matters of fact. In short, as Mr Finlason vaguely puts it : 
 " the general scope of our civil procedure and the whole scope of 
 our law, so far as it relates to civil matters^" IV. The political 
 organization, and divisions of the country. 
 
 ^ Finl. Eceves, Pref. p. 65. p. 2, note. 
 
 - Ibid. p. 5, note. ' Finl. Rooves, i. 2, note. 
 
 ^ Finl. Reeves, Pref. p. 92; Text, 
 
 s. 2
 
 18 DIVISION OF THE SUBJECT. 
 
 With these specific claims and those of other writers, 
 notably Mr Coote^ and Mr Seebohm, we may best deal by treat- 
 ing the Anglo-Saxon Law, under four heads, as follows : 
 I. Land Law. 
 11. Family Law. 
 
 IIL Law of Courts and Procedure, Civil and Criminal. 
 IV. Law of Organization : (a) Territorial. 
 
 [h) Municipal. 
 
 1 Mr Coote has summarised his The Romans in Britain, pp. vi. viii., 
 matured positions in the Preface to and in the Introduction, pp. 2 — 5.
 
 CHAPTER III. 
 
 KOMAN LAW IN THE EARLY LAND LAW. 
 
 The researches of recent German writers and of Mr Seebolim 
 have thrown a flood of new lio^ht on the Eno-lish and German 
 land systems, and Mr Finlason's remarks on this point have 
 become out of date. He laid special stress on the resemblance 
 of the folc-lnnd to the ajer publicus, on tlie system of militarj' 
 services, and on the connexion of the manor, with its villani and 
 manorial court, with the Roman villa and coloni^. On this point 
 he contented himself with a simple statement that, "the Saxons 
 established themselves in the manors and adopted the manorial 
 systemV There was, he said, no trace in the written law'S of 
 the establishment of such a system by the Saxons. The Latin 
 translation of the Laws of Ina used the terms " colonus vel 
 villanus^" the original words being geneat and ceoii, and this 
 choice of words in translation was supposed to prove the Roman 
 character of the institution*. There was also a most extraordi- 
 nary argument that because copyholds were held of the manor 
 "by immemorial usage", therefore manors were of Roman origin, 
 an argument which, if it proves any thing, would prove that 
 manors originated with the aboriginal Britons. But on this 
 point we may safely leave Mr Finlason for conclusions more 
 modern both in date and spirit. 
 
 The real question in dispute among historical students at the 
 present day is as to the origin of manors'\ Were the village 
 
 1 Reeves, i. 10, note. ^ Reeve, Pref. p. 51. 
 
 ^ Ibid. Pref. p. 40. s Seebohm, English Village Com- 
 
 ' Lau's of Ina, Thorpe, §§ 10, 22, munitg, Pref. p. ix, 
 n 45.
 
 20 THE MARK AND THE jVLINOR. 
 
 communities living in the hams and tms of England at the out- 
 set of English history free village communities, or communities 
 in serfdom under a manorial lordship ? If the first alternative 
 is accepted, English history and the English land law begin 
 with free village communities, gradually degenerating into 
 mediaeval serfdom; and, as the free village community is an 
 essentially Teutonic institution, the germs of the English land 
 system are seen to be Teutonic, and not Roman. If, on the 
 other hand, English history commences with a population, perhaps 
 themselves freemen, tilling the soil in serfdom to a lord, and 
 gradually freeing themselves from servile tenure, it has been 
 suggested, though the evidence is not very clear, that such a 
 system, similar to the later manorial one, has elements in it 
 derived, in all probability, from the Roman system of coloni. 
 
 Until quite recently the weight of opinion has been in favour 
 of the former view. G, L. von Maurer in Germany united the 
 system of common husbandry which he found there, and the 
 village community which inhabited it, into the conception of the 
 "Mark," as the unit of Teutonic civilization, Kemble, in his 
 "Saxons in England," built up the English polity as an aggre- 
 gation of Marks, communities of freemen tilling the land in 
 common; while Nasse, in Germany, showed the similarity 
 betw^een the English and German land-systems. Mr Freeman 
 adopted in full Kemble's view of the Mark system, although its 
 existence in England is largely a matter of conjecture\ Prof 
 Stubbs, with his usual caution, has recognized this conjectural 
 character, and contents himself with saying that " it cannot 
 safely be affirmed that the German settlers in Britain brought 
 with them the entire system of the Mark-organization^" 
 
 But recent German investigations^ notably those of Dr 
 Landau and Professors Hanssen and jMeitzen, and the admirable 
 work of Mr Seebohm have thrown great doubt on many of the 
 previously accepted conclusions of the advocates of the Mark. 
 
 1 See also Sir H. Maine on Village lungen. Leipzig, 1880. 
 Communities, c. 5. Meitzen, Georg Hanssen, als Ag- 
 
 2 Stabbs, Hist. i. 83. rar-Historiker. Tubingen, 1881. 
 
 ■* Landau, Die Territnrien, etc. Seebohm, Village Community, p. 
 
 Hambure, ISol. 371. 
 
 Hanssen, Agrin-historiscJw Ahliand-
 
 RECENT INVESTIGATIONS. 21 
 
 Mr Seebohm, for instance, in an elaborate analysis^ of the early 
 evidence of the existence of Marks, produced by Von Maurer, 
 shows that evidence to be at least equally consistent with the 
 hypothesis of a manorial villa with serfs as tenants. It is again 
 a little startling to find that the well-known "three-field" 
 system, hitherto confidently asserted to be the common possession 
 of English and German Saxons, is really a South German system''; 
 and that the North German lands, from which our Saxon and 
 Anglian ancestors came, were, and still are, tilled by marl and 
 manure on a one-field system. Investigation* of the Welsh and 
 Irish land systems has shown a very early species of land culture 
 existing among them, and, in the case of the Welsh, certainly 
 showing no traces of Roman influence. The solution of the 
 question is very difficult and involved, and we can only profess 
 to state briefly the way in which Roman influences are alleged 
 to have acted on our Land system. 
 
 The advocates of the Mark allege that England, by the Saxon 
 invasion, was portioned out among communities of freemen*, 
 who held their land in common and tilled it according to strict 
 customs of cultivation. These freemen, their land and their 
 village organization, constitute the Mark. Each freeman holds 
 his homestead or alod as his own property : the arable and 
 pasture-lands are portioned among the freemen at stated intervals, 
 and cultivated or grazed according to fixed rules of agriculture. 
 The woods or waste, which surround the cultivated land, belong 
 to the community in common; and each community is embedded 
 in unappropriated forests or moors, which in time are held to 
 belong to the folk or nation into which the Marks have 
 amalgamated. 
 
 We have thus three classes of customary estates ^ held, 
 not by any writing, but by customary rules. 
 
 I. Tlie estate of the Family or Individual; Family Land or 
 Heir-land; the etliel or alod^. This is essentially an estate of 
 
 1 Seebohm, pp. 329—335. p. U. Stiibbs, Hist. i. 49. 
 
 2 Hanssen, pp. 190 et seq. See- ^ Anglo-Saxon Laic, p. 57. 
 
 bohm, p. 372. g Ibid. pp. G8, 72, 73. Pollock, La;ul 
 
 3 Seebohm, pp. 181—213. Laicg, p. 191. Note B. 
 * Kemble, Saxons in England, i.
 
 22 LANDS HELD BY CUSTOM. 
 
 inheritance, being originally inalienable, and descending in the 
 family according to fixed rules. It rested primarily on the needs 
 of the family, and was subject to rights and limitations in favour 
 of the family. Thus, originally inalienable, it became alienable, 
 :it first, within the limits of, and by the consent of, the family ; 
 then the consent of the King and witan sufficed; at last no 
 consent for alienation was necessary. It was primarily an 
 untaxed estate \ full, free, and unburdened. For the test of the 
 presence of taxation is the appearance in charters of grants of 
 immunity; and before A.D. 798 no grant of any family land, 
 freed from taxation, is to be found, while such lands only gradu- 
 ally become subject to taxation after the time of Alfred. 
 Family land gradually dies out by conversion into Boc-land. 
 
 II. Estates of the Community, or Common Land^. These 
 were those lands of the Mark, which were divided among its 
 members according to customary rules, and held for a limited 
 period. Assuming the Mark, one of the most interesting 
 (questions in early English History is the reason of its change 
 into those Manorial Communities, which undoubtedly were most 
 numerous at the time of the Conquest^ The community settled 
 on and tilling this land, might either be dependent on a superior 
 or independent. If dependent, their lord might be the King, 
 on whose private demesne they were settled ; the state, if they 
 occupied the folc-land; or some private landowner. While thus 
 dependent as a community, within their bounds there w^ould 
 still be alods or homesteads as separate property, strips in the 
 arable fields, held from year to year, and common pasture lands. 
 And the advocates of the Mark point to this common land in 
 manors, as the relic of the community of freemen who, often 
 remaining free themselves, have sunk into cojDyholders or villeins, 
 holding lands by servile tenure. 
 
 III. Estates of the People, or Folk-land^. Though but 
 slight evidence exists, we can confidently infer that estates of 
 folc-land could, and did, exist, held by private individuals: such 
 
 1 So Maurer in oi^position to Kem- - Ibid. p. 81. 
 
 ble ; Stubbs does not meet the question •'■ Ibid. p. 83. 
 
 clearly. Anglo-Saxon Law, p. 78. * Ibid. pp. 01, 03.
 
 LANDS HELD BY BOOK. 23 
 
 estates, though alienable as to the tenant's interest therein, were 
 neither heritable nor the subjects of devise\ but reverted to 
 the nation, if not re-granted by the King and witan, who alone 
 could so deal with them. The groat feature of the fulc-land 
 was the taxation'^ which originatctl in, and always, in the absence 
 of an express grant of immunity, accompanied it. For early 
 grants of folc-land almost always contain a grant of immunity 
 from taxation, early grants of family land never do. During the 
 period from Cnut to William I. the folc-land became terra 
 regis, granted by the King alone. 
 
 Before dealing with Boc-land, we may treat shortly of the 
 much-misunderstood laen-land. This was not in any sense 
 leasehold estate in the modern meaning; i.e. an estate for a 
 fixed term of years: for only one such case, and that a very late 
 one, can be found. The Anglo-Saxon laen^ was simply an estate 
 in which possession and title were separated ; — a loan of land, 
 usually for life. Laens might be hooked or unhooked, that is held 
 on definite written terms, or orally; and the class of unbooked 
 laens included all estates of folc-land ^ and all land held in a 
 manor from the lord. 
 
 In broad opposition to these Customary Lands, was the later 
 and more rigid tenure of Book-land, or land held by hook, which 
 originates in a written instrument'^, charter or grant, the land 
 being in theory held in strict accord with the conditions of the 
 book. Such land always, probably, reverted to the donor, in cases 
 of escheat or intestacy*'; and the charters, or books, gave to their 
 possessor an all-important advantage in litigation. The intro- 
 duction of " books" and Book-land is undoubtedly owing to 
 Church influence, the exclusive object of all the early grants 
 being the endowment of the Church^ Its great result is the 
 steady destruction of customary holdings and forms of procedure 
 
 ^ Anglo-Saxon Law, p, 98. does not refer to a written grant, since 
 
 - Ibid. pp. 78, 94. lie expressly, on p. 70, sots out hook- 
 
 3 Ibid. p. 95. land as being helAhj writing, folc-land 
 
 *■ Prof. Stubbs speaks (i. 77) of being outside it. On unbooked laens, 
 
 /ote-Za?i(Z "held according to the terms see Pollock, Land Laws. Note B, p. 
 
 of the grant," on which the authors of 194. 
 
 "Anglo-Saxon Law " comment rather ^ Anglo-Saxon Laic, '^. 10^. 
 
 severely, that if it were so, it would be •^ Ibid. p. 111. 
 
 bookland, but presumably Prof. Stubbs " Ibid. p. 101.
 
 24 INHERITANCE AND WILLS. 
 
 in favour of the exact tenure by a writing. The growth of 
 book-land involved the decay of customary tenures, which sur- 
 vived mainly in the manors and common lands. 
 
 At least two examples of mortgages of land appear in the 
 charters, and the second bears a distinctly Roman form: "quam 
 videlicet terrain Sigericus archiepiscopus dedit mihi in vadimo- 
 nium jjropecujiia quam a me mutuo accejnt": but it is impossible 
 on the slight evidence to affirm more than the existence of 
 mortQ;ages\ 
 
 The Saxon laws of inheritance to land are of some interest. 
 Tacitus expressly declares that the Germans had no wills^ and 
 it is admitted that the Saxons and Angles did not develope the 
 testamentary power until urged to the step, for interested 
 motives, by ecclesiastical influence. Book -land is specially desig- 
 nated as " teiTa testamentalis." But the new documents gained 
 ground very slowly : there are only four Saxon wills in existence 
 dating from before A.D. 950, and none of them refer to the 
 permission of the King or lord, as do the later wills^ Duke 
 Alfred wills " his hoc-land and his yrfe-land * " (i.e. family land 
 which was alienable to members of the same family). The same 
 will shows ih.^t folc-land could not be left by will: "and I grant 
 to Aethelweard my son, 3 hides of hocland, and if the King will 
 give him i\\e folcland in addition to the hocland, let him have it." 
 
 In the absence of wills, family land followed the custom of 
 inheritance, hook-land followed the hook, folc-land reverted to 
 the Crown or nation. The custom of inheritance in family 
 land was to all the sons equally, and failing them to all the 
 daughters^ Women were only conditionally, not absolutely 
 excluded®. Special customs, such as Borough English, or the suc- 
 cession of the youngest son, existed in various counties and towns. 
 
 Such is a brief sketch of the Saxon land-law, as developed 
 by the later authorities. But, before we proceed to deal with 
 claims of Roman origin, we may note the apparent confusion 
 resulting from the fact that the division of lands is not exclusive. 
 
 1 Cod. Dip. 499, 690. Anrjlo-Saxon ^ ibi(j_ pp. 7(5^ 93 Qq^_ j)jp_ p 
 Law, 106, 342. 317. 
 
 2 Tac. Germ. § 20. s Ibid. p. 113. 
 ^ Anglo-Saxon Laic, p. 107. « Ibid. p. 132.
 
 MR COOTES VIEWS. 25 
 
 Folc-land granted to a groat lord as an unhooked laen may have 
 imposed upon it a village community of freemen, with all their 
 communal rights. As between the members of the community 
 family and common-land exist, all being to the lord unbooked 
 laens, while he may, by a suitable grant, convert portions into 
 book-land as regards himself The same land may therefore 
 bear several different characters. 
 
 Admitting then the clerical and Roman origin of wills, and 
 of hooks or charters, and hook-land, we open a great field for 
 clerical influence. Learning being almost a clerical monopoly, 
 the Church would acquire great influence over all legal relations 
 involving a written form. But, owing to the isolated and almost 
 independent character of the early English Church, it was less 
 influenced by Roman learning, and less likely to spread 
 the dominion of Roman legal notions, than the continental 
 ecclesiastics. 
 
 The chief points of resemblance which Mr Coote alleo'es to 
 exist between the Roman and Saxon land-systems include^ : — 
 (1) an alleged imperfect ownership in the landholder and 
 power of resumption in the Sovereign, which are not Teutonic, 
 but Roman. This resumption, as a Roman institution, is 
 alleged to have been a special feature of the possessio, or 
 Bonitarian ownership of land, as distinguished from the dominium 
 or Quiritarian ownership: and jwssessio was a provincial tenure, 
 inalienable except by leave of the magistrate. The Agrarian 
 laws, and the grants to military colonies in Italy, are alleged to 
 be special examples of this resumption. 
 
 The evidence as to Anglo-Saxon land by which Mr Coote 
 
 supports his position consists of those charters in which it is 
 
 recited that the leave of the King was given for such an 
 
 "alienation. He cites no example earlier than a.d. 759, and 
 
 most of his examples are of the 10th and 11th centuries. 
 
 But Mr Coote neither mentions nor explains the fact that, 
 while a certain number of charters recite the license of the Kino- 
 a far larger number do not contain such a recital. Our 
 preceding pages have shown that family land at one stage of its 
 
 1 Coote, Neglected Fact, pp. 23, 178; Ixomam in Britniii, pp. 217 2.j1.
 
 26 TllIXODA NECESSITAS. 
 
 history was alienated with the consent of the King in order to 
 bar the claims of the family'. Whether then the principle be 
 true of Roman Law, or not, its application in English Law is 
 certainly not universal, and its supposed examples may be 
 explained by other considerations. Indeed Mr Coote has 
 himself recognized the existence of other kinds of land^ : he 
 refers to land in Huntingdonshire: — " tcnii libera quae i^er 
 forisfacturam -non possit iri perditum"; and to those estates 
 and even hundreds referred to in Domesday^, and omitted from 
 the Textiis Roffensis, as exempted from the trinoda necessitas. 
 In these he finds that ager privatus which, by special Imperial 
 favour, existed in a very few cases in the Roman provinces. A 
 more obvious and consistent explanation would refer these to 
 the same rapidly disappearing class of family lands, allodial and, 
 originally, free from taxation. 
 
 In the second place'*, Mr Coote claims Roman origin for the 
 well-known tax called trinoda necessitas, or tlireo nede, the 
 liability to contribute to burhhot, or town-fortifications, hrycg-bot, 
 or repair of bridges, and possibly roads, and the obligation to 
 serve in the fyrd, or national militia. He finds the Roman 
 onera ptoirimonalia paid by all provincial lands for " pontium 
 refectio, arcium munitio, viarum munitio, et tironum productio" 
 services apparently identical with the trinoda necessitas. On 
 the other hand such services would naturally be required in any 
 country exposed to war, and with a certain amount of traffic. 
 Owners of land in the Frankish Empire were liable to repair 
 bridges, roads and fortifications, and to maintain the host and 
 the watch, an obligation described by Charles the Bald, as, 
 "antiquam et cdiarum gentium consuetudinem^ . But the trinoda 
 necessitas in its origin does not appear to be a land tax at all, 
 but a personal tax, universally imposed on frecmen^ No genuine 
 
 1 Anglo-Saxon Law, p. 77. Bishop refers to Mr Coote's argument 
 
 2 Coote, Neglected Fact, p. 45 ; on this point as displaying " great 
 Romans in Britain, p. 244. learning and ingenuity", but the only 
 
 3 Ellis, Domesday, p. 18. answer he makes to it is that it " wants 
 ■* Coote, Neglected Fact, pp. 33, both congruity and continuity." 
 
 177; Romans in Britain, pp. 244— s Stubbs, i. 77, note. Waitz, B. 
 
 247, 259—261. Anglo-Saxon Law, p. T'. G. iv. 30, 31. 
 
 61; Stubbs, Hi^i. I. 77, note. The >^ Anglo-Saxon Law, -p. 61.
 
 ROMAN ORIGIN OF THE HIDE. 27 
 
 charter contains an exemption from this tax; indeed no genuine 
 charter before A.D. 740 contains any mention of it, and refer- 
 ences to it only become common in the 9th century. The 
 charters which do refer to it speak of it as the "burden common 
 to all people" (not to all lands). These facts suggest that the 
 tax, originally personal, became connected with the land as the 
 progress of feudal ideas inseparably connected the freeman and 
 the landowner. But this personal character is fatal to the 
 Roman origin of the tax, the patrimonalia munera being 
 essentially taxes on the land. The undoubted and curious 
 coincidence between these munera and the trinoda necessitas 
 cannot therefore be placed higher than a coincidence. 
 
 A third ingenious argument of Mr Coote's^ attempts to 
 trace to a Roman origin the hide, and the qualification of 5 
 hides as the holding of a thegn. The Roman agrimensores, in 
 parcelling out a colony, allotted to each family 200 Roman 
 jugera, being the amount which could be cultivated ab uno 
 possidente: this amount was called a centuria. Further, the 
 Leges Licinia et Sempronia allowed no citizen to hold more than 
 1000 jugera, and that amount only if he had two or more sons. 
 Mr Coote does not pretend that these laws were strictly adhered 
 to : indeed he says himself that they remained in force to the 
 end of the Empire^ "if not as laws, as measures"; (whatever that 
 may mean). His chain of argument then appears to be that, 
 the soldiers being the chief recipients of land grants, only dis- 
 tinguished officers would receive the full modus of 1000 jugera, 
 which would therefore become associated with the idea of 
 personal distinction. We may pause here to ask where the 
 "two sons" of the Lex Sempronia have dropped out of the 
 argument: for if the laws remained in force, the maximum 
 holding of 1000 jugera could only be held by citizens with two 
 children ; wdiile if they did not remain in force, it is difficult to 
 see how the limit of 1000 jugera, which the needs of Mr Coote's 
 argument compel him to cling to, survives. For his next step is 
 to establish a connexion between this 1000 jugera, a maximum 
 holding, and the 5 hides, which were the minimum holding of 
 
 1 Coote, Neglected Fact, 37—42 ; - Ibid. Neglected Fact, p. -il. 
 
 Rjmunx in Britain, pp. 267 — 270.
 
 28 THE CENTUKIA AND THE HIDE. 
 
 an Anglo-Saxon thegn. But Mr Coote is here in a difficulty. 
 To explain liis 5 hides, he needs the Lex Sempronia, allowing 
 1000 jugera, and he also needs that the hide should equal 200 
 jugera. But the normal English hide was composed of 120, 
 occasionally of 240 acres\ Even assuming that the hid, (a 
 word having some connexion in meaning v^^ith "family"), is 
 related to the centuria, the normal holding of the free Roman 
 citizen, we have still the difficulty that the 5 hides will not 
 equal the 1000 jugera from which Mr Coote is anxious to derive 
 them, but will contain 600 or 1200 acres. Mr Coote is therefore 
 compelled to accept as his hide a measure of 200 acres, existing 
 only in Kent and Sussex, and not universally adopted in those 
 counties ^ 
 
 We may therefore dismiss Mr Coote's arguments on this 
 point, to deal with Mr Seebohm's theory of the connexion of 
 the centuria and the hidel His reasons for assumino- or sus- 
 gesting, a Roman origin for the hide, are briefly as follows : — 
 
 (1) The Roman unit of taxation was the jugum, which 
 was connected in some way with the amount of land j)loughed 
 by a team of oxen, though finally it was merely a hypothetical 
 unit of assessment. The English hide in the same way is 
 connected with the amount ploughed by a full team of oxen, 
 and ultimately becomes a unit of assessment. 
 
 (2) The centuria consisted of either 200 or 240 jugera, 
 and 30 jugera were connected with the plough-work of a yoke 
 of oxen. The hide was 120 or 240 acres, and 30 acres were the 
 plough- work of a yoke of oxen. 
 
 (3) The lord of a Roman villa paid the trihutum for his 
 own land and that of his coloni. The lord of the English manor 
 paid hidage for the whole of the land of his manor. 
 
 This evidence, though not convincing, certainly suggests 
 some connexion, but it is so involved in the strength or 
 weakness of Mr Seebohm's theory of the growth of manors that 
 we may defer comment on it for the present. 
 
 Mr Coote's attempt to trace Roman influence* in the 
 
 1 Seebohra, pp. 37, 76. 3 geebohm, pp. 289—295. 
 
 "- Mr Secbohm finds bides of 2iO 4 Coote, Neglected Fact, p. 57. 
 
 acres in Sussex, p. 51.
 
 BOROUGH ENGLISH. 29 
 
 succession to laud is more ingenious than convincing. The 
 Anglo-Saxon law of succession was to the sons equally, and, 
 failing male issue, to the daughters equally, being the rule 
 surviving in the Kentish tenure of gavelkind : in some places the 
 youngest son succeeded to the original homestead, by the English 
 custom of Boroucjh English, analoTOus to the continental 
 Jungsten-Reclit. Mr Coote alleges both rule and exception to 
 be Roman, the rule of gavelkind apparently on the ground that 
 the Roman division among unemancipated children may have 
 been relaxed to include all the children', the exception of 
 Borough English because if only the youngest son were 
 unemancipated, he might succeed to the property by Roman 
 Law. But the fact that in a particular case the succession 
 under the Roman Law is the same as that of Anglo-Saxon Law 
 cannot explain the remarkable local distribution of the custom 
 of Jilngsten-Eecht, as noted by Mr Elton and Mr Seebohml 
 They find the custom to have been universal in Wales, and in 
 the Welsh settlements in Somersetshire; also in a district 
 nearly corresponding with the Littus Saxonicum, Kent, Sussex, 
 Surrey, the environs of London, and East Anglia, while on the 
 Continent it is localized with curious precision. In Ireland' 
 the custom of gavelkind appears without the Jungsten-Reclit, 
 while in many English manors, and frequently on the Continent, 
 the Jilngsten-Recht appears without the succession in gavel- 
 kind. As to this Mr Seebohm conjectures that when the tribal 
 household became manorial, the division among heirs, or gavel- 
 kind, being stopped by a necessity of maintaining the holding 
 undivided, the JiXngsten-Recht remained to settle which of the 
 sons should be the heir. It is abundantly clear that the theory 
 
 1 Gavelkind divides amongst all (3) no dower was allowed to the 
 sons, not all children. mdow. 
 
 2 Elton, Origins of History, pp. In Kent 
 
 188, 189 ; 197, 198. Seebohm, pp. (1) bastards were excluded, 
 
 352^351. (2) daughters succeeded in the ab- 
 
 3 The Welsh and Irish "gavelkind" sence of sons, 
 
 is widely different from the Teutonic (3) dower was allowed, 
 
 custom in Kent. In Ireland the land was partible 
 
 In Ireland and Wales among the clansmen. Kenny on Pri- 
 
 (1) bastards were included, viogeniturc, p. 27. 
 
 (2 daughters were excluded,
 
 30 MR SEEBOHM ON MANORS. 
 
 of Roman origin is insufficient: it in no way explains the 
 curious local distribution of the custom, and is content with the 
 mere accident of the youngest son alone remaining unemanci- 
 pated, as the explanation of a local custom of the succession of 
 the youngest son. Both Gavelkind and Jungsten-Recht are 
 more probably survivals of the Tribal household. 
 
 We have thus enumerated the chief points in the English 
 land system before the Conquest, which Mr Coote and Mr 
 Finlason ascribe to Roman influences; and Ave may therefore 
 turn to the more important theory developed by Mr Seebohm of 
 the growth of manors from Roman and South German institu- 
 tions. 
 
 Mr SeehoJim's theory of the Poman Origin of Manors. 
 
 We have rather assumed so far that English Economic 
 History begins with a free people who gradually degenerate 
 into serfdom under the pressure of the growing manorial system. 
 The poorer freemen find the protection of a lord invaluable, and 
 the tie of land tenure gradually becomes inseparable from the 
 tie of fealty. This theory of the manorial system Mr Seebohm 
 attacks with great vigour and research, and with some success ; 
 and as his counter-theory involves the assumption of another 
 source of Roman influence in England, and alleges a j)artly 
 Roman origin for the English manor, it may well claim our 
 careful attention. 
 
 Mr Seebohm's position^ broadly stated, is that English 
 Economic History begins with the serfdom of the rural popula- 
 tion, who lived in village communities, each under a manorial 
 lordship. His method of proof is to trace back the existing 
 manor, century by century, and to show that the services 
 required from the villein become more and more uncertain, 
 more and more servile, the nearer we approach the early 
 centuries of Saxon rule, while the manors appear at all times 
 equally numerous. This investigation completed, he endeavoui's 
 to discover the origin of this manorial community, and finds it 
 
 ^ Seebohm, Pref. p. 9. It is not clear not iuvolve loss of freedom by the 
 how far Mr Seebohm appreciates the tenant. See on this, Pollock, Land 
 fact that a servile tenure of land did Laics. Note C, pp. 196—206.
 
 MR SEEBOHM OX MANORS. 31 
 
 ultimately in a mixture of Roman and South German insti- 
 tutions: finally, he suggests, (for evidence is almost totally 
 absent), a South German series of military colonies, by which 
 such a system might have been introduced. 
 
 We need not set out in any detail the stejjs by which Mr 
 Seebohm traces back manors to the time of Domesday. He 
 finds the manor to consist of: (1) the lord's demesne : (2) land 
 held in villeinage, laid out in three large fields, cultivated in a 
 customary rotation, and divided into parallel strips of an acre in 
 extent \ The holding of each villein is made up of a number of 
 these strips scattered about in apparently irregular order. The 
 Enclosure Acts were intended to destroy this system, and 
 between 1760 and 1814 these Acts were passed for 4000 out of 
 10,000 parishes in England. A very ingenious investigation 
 proves that the ordinary holding of a villein was a "yard- 
 land" or holding of 30 acre-strips of land, otherwise called a 
 virgate^. These holdings were probably customarily hereditary 
 by primogeniture^ and are connected with the hide of 120 acres, 
 and the plough-team of 8 oxen, to which each villein furnished 
 two oxen, his original outfit from the lord*. In approaching 
 Domesday : (1) we find fewer irregular holdings : (2) the com- 
 mutations of services for money payments become less common: 
 (3) the services themselves become more severe and at the will 
 of the lord^ 
 
 From Domesday onwards the evidence, for the purposes of 
 this essay, becomes more interesting. Hitherto Mr Seebohm, 
 on common ground with his opponents, has but given further 
 elucidation of points of difficulty : before the Conquest his 
 theory professes to carry back the existence of manors to a far 
 earlier date than that suggested by the advocates of the English 
 Mark. Both parties agree in the widespread existence of 
 manors under the Norman kings : they differ as to the time at 
 which they became thus common. 
 
 1 Seebolun, p. 15. to satisfactorily explain the "yard- 
 
 "■ Ibid. p. 26. Cf. Saxon Chronicle, land." 
 
 cited ibid. p. 92. That not a liide nor 3 ibid. pp. 23, 24, 133, 176. 
 
 "an gyrde landes" was omitted from •» Ibid. p. GO. 
 
 Domesday. Mr Seebohm is the first » Ibid. p. 75.
 
 32 DOMESDAY BOOK. 
 
 The Domesday Book, which records also the state of the 
 land under Edward the Confessor, shows that England at the 
 Conquest was manorial. The King alone has 1422 manors^ : 
 the division of manorial land into the lord's demesne, and land 
 held in villeinage is common ; and the usual manorial incidents 
 appear everywhere. Moreover in the Domesday survey for the 
 greater part of England there is not even a mention of free 
 tenants, liberi homines or liheri tenentes^. Socmen and liberi 
 Jiomines form only 12 per cent, of the recorded population, and 
 they are almost entirely settled in East Anglia and the Danish 
 districts, a fact which may confirm the opinion of historians as 
 to the effect of the Danish inroads as perpetuating early 
 customs of freedom and free institutions. The servi or slaves 
 in Domesday only number 2 per cent, of the people, being 
 distributed over the West and South-west of England and on 
 the Welsh Marches, or precisely where we should expect to find 
 the descendants of the aboriginal Britons, driven west and 
 enslaved by the Saxon invaders. In the Danish districts, 
 Yorkshire and Lincolnshire, scarcely a slave is recorded. On 
 the other hand the villani, hordarii and cotarii^, who are 
 distinctly manorial, form the mass of the population : between 
 them they make up 70 per cent, of the population of England, 
 forming 45 per cent, of the people in East Anglia where they 
 are weakest^ Mr Seebohm seems justified in concluding that, 
 except in East Anglia and the Danelagh, the class of free 
 tenants was at the time of Domesday practically extinct. 
 
 1 Seebohm, p. 82. Ellis, Int. i. 225. Kent ) qd , + 
 rt _, . - „ / oo per cent. 
 
 2 Ibid. p. 86. Stafford \ 
 
 ^ hordarii and cotarii, manorial ten- Berks 82 ,, 
 
 ants -with holdings inferior to the Surrey 81 ,, 
 
 typical yardland. Oxfordshire ) 
 
 * The following is a list of counties Warwick \ 
 
 in which they form more than 75 p.c. Huntingdon \ 
 
 of the people, compiled from Seebohm, Bucks S 
 
 P- 86 : Cambridge 78 
 
 Rutland 97 per cent. Hants 
 
 Sussex 88 ,, Somerset 
 
 Yorkshire ) „„ Essex 75 
 
 80 
 
 79 
 
 78 
 
 76 
 ,, Somerset ) 
 
 -c I 
 
 TT I 86 „ 
 
 Hertford ) The lowest counties arc Lincoln 40 
 
 Middlesex ) ^^ p.c. and Suffolk 41 p.c. 
 
 Derby i ''
 
 MANORS BEFORE DOMESDAY. 33 
 
 But Domesday also records the condition of the land 
 " tempore regis Edwardi^," i.e. as the Saxons left it. It shows 
 that at least half the land then in cultivation was held in their 
 customary holdings by the villani, hordarii and cotarii, while 
 they probably tilled another quarter of the land as their lord's 
 demesne^ And these customary holdings were composed of 
 strips of land, assigned in a rotation bearing some relation 
 to the number of oxen contributed to the village plough- 
 teams': this is confirmed by the grant of tithes in the laws 
 of Ethelred and of Cnut", "as the plough traverses the 10th 
 acre." A similar state of things existed in Wales, where 
 the land ploughed was allotted in fixed proportions, according 
 to the number of oxen and implements contributed to the 
 common plough, the acre being probably the measure of a 
 day's ploughing^ 
 
 Before Domesday the word manerium disappears, (even in 
 Domesday it is sometimes replaced by mansio or villa); and 
 the places called in the Saxon records hams and tims, are 
 frequently, if not always, manors^ The lord is the thegn or 
 hlaford ; the demesne land the thegn s inland; the villeins are 
 geneats or geburs ; their land, geneat- or gesettes- or gafol-land, 
 composed of yard-lands, tilled by gebiirs, and smaller holdings 
 occupied by cottiers. The document called Rectitudines Singu- 
 larum Personaruni' contains a full account of the rights and 
 services of the thegn and the gebur, which are of a clearly 
 manorial character. The gebur, or villein, did three classes of 
 work for his lord: (1) gafol or payments in money or kind: 
 (2) week-work, work on the lord's demesne land for so many days 
 a week, varying with the season of the year : (3) precariae or 
 benework, extra and special services. From the Laws of Ina® we 
 infer that the full gebur received a homestead from his lord, and 
 it may be that the liberi tenentes of Domesday were those who 
 had rented a yard-land from the lord, without, by receiving the 
 
 1 Stubbs, S:. C. p. 86. « Ibid. p. 127. 
 
 - Seebohm, p. 102. 7 Thorpe, p. 185. 
 
 3 Ibid. p. 117. 8 § 67. Thorpe, p. 03. Seebohm, 
 
 4 Thorpe, pp. 144, 156. p. 142. 
 ^ Seebohm, p. 124. 
 
 s. 3
 
 84 EARLY MANORS, 
 
 homestead, becoming geburs, liable to the customary services 
 in full, or holding by servile tenure. 
 
 So far we have nothing more than evidence of the existence 
 of an institution similar to a manor in the 7th century. Now a 
 comparison of the services on the manor of Tidenham, adjoining 
 Wales, in the years 950 and 1307, shows that the earlier services 
 were far more indefinite and servile than the later ones. The 
 villein of the 18th century works "5 days in every other week 
 from Michaelmas to Midsummer, 2|- days every week from 
 Midsummer to August, 3 days a week from August to 
 Michaelmas," for his lord : the geneat of the 10th century 
 " shall work as v/ell on land as off land, whichever he is bid," 
 there being no limit of time. And it is suggested that as 
 Tidenham was a royal manor in A.D. 950, its tenure and 
 services had probably undergone no change during its previous 
 history as a royal manor, which is assumed to date back to the 
 Welsh Conquest\ Similarly the ceorls at Hysseburn in A.D. 900 
 "every week do what work they are bidl" The expressions in 
 the Laws of Ina have been referred to, and Mr Seebohm relies 
 on a number of passages in the Laws of Ethelbert^ of this 
 character : " If the king drink at a mans ham," and contends 
 that the hams and tuns, so referred to as belonging to the king, 
 an eorl or " a man," were in fact manors. 
 
 As evidence of extensive manorial tenures before the Laws 
 of Ina this is very slight ; and the Laws of Ina are consistent 
 with a small or large acreage of lands tilled as manors. The 
 interest of the theory for our present purpose lies in the steps 
 by which Mr Seebohm endeavours to trace his manorial 
 community to a partially Roman origin. 
 
 Welsh agriculture from the 7th to the 10th century was 
 probably not manorial, but of the nature of a tribal and pastoral 
 free community, paying food rents to its chief, and with a mode 
 of tillage much simpler than the Saxon three-field system*. 
 Irish and Scotch evidence shows an earlier form of tribal free 
 community than the Welsh ^ We have thus evidence of the 
 
 1 Seebohm, pp. 148, 157. * Seebohm, p. 181. 
 
 2 Ibid. p. 102. 5 Ibid. p. 214. 
 
 3 Ibia. p. 174.
 
 THE MANOll AND VILLA. 35 
 
 tribal free community in the West of Britain, and of the 
 manorial community in the East ; and Mr Seebohm contends 
 on the authority of Caesar, Zosimus, Pliny and others, that even 
 in pre-Roman times the South-east of Britain was under a 
 system of tillage of some degree of fixity and development ^ 
 This, he urges, continued during the Roman occupation, in the 
 open field system, which, as it is divided irregularly, cannot be 
 Roman^ and which is not brought by the Saxon invaders, for it 
 is also found in Wales and Scotland. It must therefore have 
 preceded the Roman occupation. 
 
 In order to trace the three-field system to its source, 
 Mr Seebohm enters into an elaborate discussion^ of the Roman 
 provincial land system, and the German tribal system, into 
 which we need not follow him minutely. Place names yield 
 some interesting conclusions: the suffix -tun, -ton seems peculiar 
 to England ^ a result held by Mr Coote to be due to the 
 numerous enclosures of the Roman land-system. The suffix 
 -ham corresponds to the -heim, -hem, of the Continental manors, 
 and is chiefly found in the South-east of England. King 
 Alfred's will disposes of his "land" in the West of England, his 
 ''hams" in the South-east. On the Continent the -heims are 
 most prominent in those German districts which first became 
 Roman provinces, in which also the termination -Wi/l, -weiler 
 (villa), unknown in England, is found. The possessions of the 
 abbeys are found to be often manorial before they come into 
 monkish hands. 
 
 Mr Seebohm then examines the constitution of the Roman 
 vUla^, which was originally the estate of a lord, worked by slaves 
 under a villicus. Coloni, or freemen, though sometimes indigeni, 
 or bound to the manor, are frequently found tilling it. And in 
 
 1 Seebobm, p. 2i6. See Elton, Ori- =» Seebohm, p. 252. 
 
 gins of Historij, jjp. 33, 119. •» Stubbs, i. 82, note. " The tun is 
 
 - Seebohm, p. 411. Mr Coote shows originally the enclosure or hedge." 
 
 clear evidence of centuriatlon in some Seebohm, p. 255. Coote, Neglected 
 
 parts of England, but probably only Fact. Mr Coote does not explain why 
 
 in cases of land actually assigned to these enclosures should be peculiar to 
 
 the soldiers of a colonia. See Romans England. 
 
 in Britain, pp. 12— I'Jl. s Seebuhm, p. 204.
 
 36 THE THREE-FIELD SYSTEM 
 
 many continental cases the historical connexion between the 
 villa and the manor can be traced*. 
 
 Veterans settling on vacant land of the Empire received an 
 outfit of oxen and seed to enable them to till the land. But 
 the pure Roman field-system was one of straight lines and 
 regular holdings; the irregular holdings of the open-field system 
 may probably be attributed to Germanic customs and to joint 
 ploughing. 
 
 It is believed that German military colonies were settled 
 in Britain by the Romans, as for instance the Marcomanni, 
 deported by Marcus Antoninus^ and the Burgundians, Vandals 
 and Alamannic tribes from the Rhine valley, by Probus^ There 
 was a vigorous trade in corn between Britain and Gaul, 
 involvincf the constant intercourse of their inhabitants. 
 
 Now the German system, apart from Roman influence, 
 appears to have been of an early tribal type^ like that of the 
 Welsh and Irish ; a system of open-field ploughing, which had 
 not then developed into the " three-field " culture, but which 
 tended in Germany, though not in Wales, to become manorial. 
 With regard to German agriculture in its more developed form 
 the researches of the latest German authorities^ appear conclu- 
 sively to establish that " the Angles, Saxons, Frisians, Low 
 Germans and Jutes who came to England cannot have brought 
 the 'three-field system' with them into England, because they 
 did not themselves use it at home in North-west Germany 
 and Jutland V For in those parts a simple " one-field " 
 system of crops grown every year on the same land, by marl 
 and manure, still exists, and has existed for centuries past. A 
 " three-field " system similar to the English one is found in 
 South Germany, within the Roman limes, especially in Baden, 
 Wirtemberg, Swabia, Bavaria, Elsass and the Moselle valley j 
 and its details show a remarkable resemblance to the English 
 system ^ 
 
 1 Seebobm, p. 269. * Seebohm, p. 336. 
 
 2 Gibbon, c. 9, quoting Dion Cassius ^ G. Hanssen; A. Meitzen. ViiJe 
 71, 72. Seebohm, p. 283. ante p. 20, note. 
 
 * Ammianus Marcellinus, 18. 2. 3, " Hanssen, Agrar-Historische Ah- 
 
 and Zosimus, quoted in Elton, Ori- hancUungen, p. 496. Seebohm, p. 37."$. 
 yins of Hiatnrif, and Seebohm, p. 2S7. ' Ibid. p. 110.
 
 DElllVED FROM THE ROMANS. 37 
 
 A study of the distribution of places terminating in -ing, 
 -ingen, leads to interesting concIusions\ These places are usually 
 supposed to be the original free settlements of families or clans, 
 -ing being a patronymic. But such a suffix would seem 
 primarily to imply settlement. Before a place can be called after 
 people, the people must live there with some regularity. In 
 England the -ings occur with the greatest frequency in the 
 district called the Saxon shore, in which also Mr Elton has 
 found the Jilngsten-Recht surviving. Similarly, on the Conti- 
 nent the succession of the youngest son to the homestead and 
 the -ings are found together. And the " three-field " system is 
 found in the same parts of the Continent, and in the South-east 
 of Britain, as distinguished from the North-west and West. 
 
 Now Professor Wilhelm Arnold is of opinion^ that the suffix 
 -ing, -ingen invariably denotes an Alamannic settlement. And 
 further, a striking resemblance, amounting in many cases to 
 identity, exists between these English and German -ings or so- 
 called "personal names:" of such names in Picardy 80 per cent. 
 are found in a slightly altered form in England. 
 
 From these facts Mr Seebohm reaches the main position of 
 his work", that the English "three-field" manorial community 
 is due to tribal households of Alamannic Germans, settled in 
 South-east Britain by their Roman rulers, and using the 
 aboriginal inhabitants as serfs to till their land. These 
 Alamannic tribal households are supposed to have either usurped 
 the lordship of existing Roman villas, or to have taken the 
 Roman villa in some respects as the type of their settlements. 
 Local investigations in the neighbourhood of Hitchin show 
 many instances of historical continuity between the Roman 
 villa and the modern village, suggesting that the Saxon settlers 
 occupied and tilled the localities they found already under 
 cultivation. The mediaeval serf would then derive his origin 
 from the Roman slave, the Roman colonus, and the German 
 tribe-slave or laet. 
 
 The evidence that those settlements of tribal iiouseholds 
 
 ' Seebohm, p. :ii7. l.",,3 rt srq. 8eebi)hin, p. ;5G0. 
 
 - AmiedcUuigeii and WandcntiKji'ii '■'• Seubohm, p. 8o0. 
 
 DeutscJie Stihnine. Maibiirg, 1881, pp.
 
 38 Mil SEEBOHMS RESULTS. 
 
 were manors is very slight, though such a state of things would 
 not be impossible. Mr Seebohm, while admitting the "precarious 
 nature" of his suggestion, urges that the evidence to support 
 the theory of settlement by free village communities is equally 
 insufficient. In answer to this it can only be said that the 
 latter is more in accord with what is known of the Teutonic 
 family and its institutions. 
 
 Mr Seebohm states as the results of his investigation : a 
 " one-field " system of agriculture, a step more advanced than 
 the simplest form of tillage, existing in South-east Britain 
 when the Romans landed ; — a three-field system of rotatory 
 crops, introduced during the Roman occupation, probably by 
 Alamannic settlements imder Roman authority; — this system 
 carried out by the settlers by means of a manorial community 
 in which they were the lords, and the conquered population the 
 labourers and serfs ; — the adoption by the North German 
 invaders of the three-field manorial system, which they found 
 in use on their landing. 
 
 If this hypothesis be well founded, it obviously effects a 
 gTeat change in our views of English institutions. For I 
 understand Mr Seebohm to assert the entire absence of Marks, 
 or settlements by free village communities, except in so far as 
 those cases where tribal households are the lords of a manor 
 come under such a title. The liheri tenentes he explains to be 
 those who till the demesne land of the lord, as tenants by 
 gafol or rent of laen land, but not owing work or servile 
 services. 
 
 The chief difficulty in Mr Seebohm's way is the very scanty 
 traces of any such South German settlements, or military 
 colonies of South German race, as he contends for\ The 
 Littus Saxonicum is undoubtedly the shore exposed to Saxon 
 ravages, and not the shore colonised by Saxons. The remark- 
 able similarity of continental and English place-names and 
 the presence of the marks of Alamannic settlements as in- 
 vestigated by Arnold are facts entitled to some weight. The 
 Bishop of Chester, writing in 1875, before the latest German 
 
 ^ Stubbs, I. .59, 63, note; Freeman, Norman Conquest, i. 11. 
 
 1
 
 CONCLUSIONS. 39 
 
 inyestigations, considered the theory "not improbable, but 
 resting on very scanty evidence :" and this evidence has cer- 
 tainly now been strengthened. 
 
 Further, there are very slight proofs of the existence of 
 manors on any large scale before A.D. 900 : the expressions in 
 the Laws of Ina concerning ceorls with a meadow in common, 
 and in the Laws of Ethelbert concerning " the king's tun, the 
 eorVs tun' are very insufficient; and though proof is certainly 
 difficult, its burden is undoubtedly on Mr Seebohm. 
 
 Aofain, the theorv of universal manors, with descent of the 
 yard-lands or manorial holdings to one son only, is difficult to 
 reconcile with the undoubted Anglo-Saxon law of succession 
 among all the sons equally, which appears as the rule, and not 
 as an exception. Yet this rule, as applied to manors or hams, 
 would break up the equal holdings or yard-lands into varying 
 fragments. In short we may, without underrating the inge- 
 nuity of Mr Seebohm's arguments, or the value of a large 
 portion of his reconstruction of the English land system, decline 
 at present to accept his theory of a Roman and South German 
 parentage for the manor. 
 
 The English land system is therefore in the main Teutonic, 
 or its Roman origin has not yet been established, even in part. 
 To Mr Coote's theory of simple derivation of the English from 
 the Roman system we may oppose a complete refutation. No 
 Roman system, pure and simple, will explain the curious "three- 
 field" system, which, whether tilled by a free community or as 
 a manorial settlement, covered the greater part of England. 
 Mr Seebohm's more guarded theory of South German and 
 Roman origin we may regard as unproven as yet : its mainten- 
 ance, together with recent German researches, will compel the 
 advocates of a North German origin for our early land system 
 to restate their case, and to dispel or recognise the now 
 difficulties which new knowledge has brouyht acjainst them.
 
 CHAPTER IV. 
 
 ROMAN LAW IN THE EARLY FAMILY LAW. 
 
 Roman influence is not alleged to have seriously affected this 
 branch of the Anglo-Saxon law. In the time of Bracton indeed 
 it acted through ecclesiastical channels to produce changes of 
 importance, but what httle is known of the early English law of 
 the family and kindred is purely Teutonic ; and the family was, 
 as in the other German tribes, the most important institution 
 of private law, and the foundation of the whole police and 
 criminal systems. 
 
 The Family Law of the Anglo-Saxons consists of two 
 
 distinct parts : — 
 
 (1) The law of the maegth, maegburh, or kindred\ which 
 has exercised very slight influence on modern law. It is 
 certainly not Roman, but Teutonic. 
 
 (2) The law of the family'', which, in its essential charac- 
 teristics, remains to the present day the same. This again 
 appears largely Teutonic. Sir Henry Maine indeed says that, 
 "All the Germanic immigrants seem to have recognised a 
 corporate union of the family under the mund, or authority of 
 a patriarchal chief, but his powers are obviously only the relics 
 of decayed patria potestas^" But the absence of agnation, 
 and the recognition of kinship through the mother, point rather 
 to a tribal household, probably developing from polyandry, than 
 to the Roman patria potestas of a patriarchal system. 
 
 1 Anglo-Saxon Law, p. 123. ^ Ancient Laic, p. 144. 
 
 - Ibid. p. 148.
 
 THE TEUTONIC FAMILY. 41 
 
 In the maeg-lagu, or law of the kindred \ admittedly 
 Teutonic, we need only notice one point. Every person had 
 two maegthe, his father s kin (faedren maegth), and his mother's 
 kin {medren maegth), the maegth being the whole kindred of 
 some one 'propositus. -The wife did not pass into her husband's 
 maegth, but remained in her own; and this medren maegth 
 could protect the rights of the wife and children against the 
 father. We have here the fact of "men calling themselves 
 relatives of their mother's relatives," which Sir Henry Maine 
 has expressly stated to be incompatible with and fatal to the 
 patria potestas^. 
 
 The Teutonic family presents more marked features of 
 difference from Roman law. Agnation and its results are 
 absent, and its system of emancipation is radically different. 
 For though in the early Teutonic family there was a formal 
 emancipation on attaining majority (which was physical 
 maturity), by giving arms in the assembly, or by cutting the 
 hair, this ceremony, while it destroyed the father's rights over 
 the son's person, in no way affected the son's position in the 
 father's kindred or his rights of succession^ The slight evi- 
 dence as to Anglo-Saxon law seems to show a fixed age 
 of majority (at first 10 years, then 12, with a tendency to 
 lengthen to 15*, the age of majority for non-military tenures 
 under the Normans). During the minority the father is guar- 
 dian of the child, but his personal control ceases at majority, 
 and there is nothing in Anglo-Saxon law to show that he had 
 any rights in the son's property after that period. The 
 attainment of majority in girls, at the age of 12, freed their 
 persons from the disposal of the father. This system is clearly 
 unlike the Roman patria potestas. 
 
 The marriage relation, with its effects on property is 
 distinctly Teutonic, and, as such, has affected all later law^ 
 The marriage at first was a real contract of sale ; the beweddung 
 
 1 See Anglo-Saxon Law, pp. 123— was that fixed by the Normans for 
 144, military tenures. 
 
 2 Ancient Law, p. 149. ^ Anglo-Saxon Law, ip. 166. Kenny, 
 
 3 Anglo-Saxon Laio,Tpp. 155—161. on Effects of Marriage on Property. 
 * 21, the present age of majority, London, 1879. pp. 22, 65.
 
 42 M-iRRIAGE AND KINSHIP. 
 
 or betrothal, ou which the weotuma or price of the bride was 
 prepaid, was followed by the gi/ta, the delivery or nuptials. 
 The toeotuma gradually became a mere earnest, or wed, to make 
 the contract binding, while the substantial part of the price was 
 paid to the woman herself after consummation, as the morffen- 
 qi/ti, or her morning-gift. Clerical influence then combined 
 the wed or iceoUima and the vwrffen-ffi/u as the dos ad ostium 
 ecclesiae ; and from this we can tr;\ce without interruption 
 the descent of the dower of English Common Law, while the 
 Roman (fos and the French ddt have no place in the chain 
 of evidence. No evidence of any gift from the wife's kindred 
 appears before the Conquest \ If there were no express 
 morning-gift, the wife would take half of her husband's estate at 
 death if she had children, a third if she was childles.s. But the>e 
 shares by express stipulation at the church door might be : 
 (1) restricted; (2) enlarged to half if the widow were childless, 
 or to the whole property if she had children. Mr Kenny is of 
 opinion that the early evidence shows a system of community of 
 joint acquisitions in Saxon times similar to the French and 
 Scotch law". The husband may undoubtedly make gifts to his 
 wife during coverture. 
 
 The system of kinship before the Conquest was purely 
 Teutonic : no distinction existed between the whole and the 
 half-blood. A species of adoption is found, which ga\-e no 
 rights of kinship, but only the rights of succession at death ^ 
 Natural children could not be legitimated ; and it is probable 
 that no right of representation in succession existed, though 
 it had become recognized by the time of Bracton. 
 
 We have already dealt with the rights of succession to land, 
 and it only remains to mention succession to personalty*. 
 It has been argued that Anglo-Saxon law restrained testa- 
 mentary disposition by dividing the chattels into three parts, 
 one of which went to the wife, one to the children (irrespective 
 
 ' Anglo-Sa.ron Law, p. 176. Kenny * Aunlo-Saj-on Law, p. 134. Coote. 
 
 speaks of the '• fatherfee " as such. Xeplected Fact, p. 59. Coote's i\f/<>j- 
 
 but cites no authorities (p. 22). astical Practice, Introd. p. i5 et >:,q. 
 
 ' Kenny, p. 2.5. Coote's Romam in Brit^iin, p. 287. 
 
 ' Anglo-Sajcon Law, pp. 126 — 130.
 
 SUCCESSION. 4:3 
 
 of SOX), and the third was at the disposal of the testator. This, 
 wliich is said to resemble the Roman legitima pars, is sus- 
 tained by passages from the Kent Custurnal, and from Bede 
 as to the Northumbrian practice. It undoubtedly became the 
 almost universal custom after the Conquest, though in London, 
 at the time of Bracton, the unlimited right of testation was the 
 rule'. But there are no traces in Anglo-Saxon law of any 
 distinction between movables and immovables, reality and 
 personalty^ : the early law also appears not to have recognized 
 any restriction on the right of testation. Customs there may 
 have been, and the later lawyers disputed whether the writ 
 "de rationahili parte honorv.rii" which enforced the above division, 
 lay at common law or by custom ; but any such law appears 
 to have its origin after the Conquest. And though it was 
 maintained and developed by clerical courts and judges learned 
 in the civil law, it is yet unlike the Roman law, both in its 
 widow's share, which is evidently connected with the right 
 of dower where there was no express agreement'^ and in 
 its absence of distinction between emancipated and unemanci- 
 pated children. 
 
 It seems clear therefore that so far as the law of the Family 
 and Household is concerned, Anglo-Saxon law owes nothing to 
 Roman influences. In the Law of Persons outside the family, 
 Mr Coote claims Roman origin for the distinction between 
 thegns and ceorls*, whom he alleges to have been distinct castes, 
 and therefore distinct nationalities, the ceorls being the Romano- 
 British inhabitants, descendants and representatives of the 
 Roman coloni. Mr Finlason makes the same claim^ The 
 colonus stands or falls with ^Mr Seebohm's theory, which we 
 have already discussed, but Mr Coote claims in addition the 
 idea of a privileged order as a "striking non-German fact." 
 He neglects to consider the existence of the large number 
 
 1 Somner'B Gavelkind, pp. 02—98. be derived from Roman clerical in- 
 
 2 Yrfe means both land and chattels, fluence. Blackstone had also noticed 
 
 3 Vide supra, p. 42, and see Law of this, i. 4.j6. 
 
 L'<ZmMnd, Kenny, p. 26. Coote's .Bo/naiw * Coote, Ne[)leeted Fact, pp. 1, 47— 
 
 ill Britain, p. 288. Mr Coote notes ;?2, 113; Romans in Britain. 
 
 the curious coincidence in the widow's ' Finl. Beeves, Pref. p. 51. 
 luctus or year of grief, which may
 
 44 THEGN AND CEORL. 
 
 of slaves*, many of whom were undoubtedly British, or the 
 fact, which appears fatal to the idea of caste, that a ceo^d with 
 the necessary amount of property could become a thegn, the 
 thegn an eorl. The ranks also among the Anglo-Saxons corre- 
 spond with the ranks in Continental Teutonism^ It is true that 
 the institution of the comitatus^ is undeveloped w^hen the 
 invaders leave for England, but it springs up from similar 
 causes in both countries. And Mr Coote's assertion that the 
 nohiles of Tacitus, the eorlas and adalings, whose existence 
 conflicts with his theory, were not a privileged class, seems 
 certainly inaccurate*. 
 
 We may therefore conclude that no part of the Anglo- 
 Saxon Law of Persons can safely be attributed to Roman 
 influence. 
 
 ^ Servi, thcow, laet, esne. ^ tli^gn, gesith. 
 
 2 Stubbs' Hist. I, 81. * Coote, Romans in Britain, p. 443.
 
 CHAPTER V. 
 
 ROMAN LAW IN EARLY PROCEDURE. 
 
 The intricate but interesting subject of Anglo-Saxon pro- 
 cedure need not detain us long, for it is hardly seriously main- 
 tained, except by Mr Coote, that it is in any important respects 
 influenced by Roman law\ It shows on the contrary the 
 common features of all Teutonic systems, and in some respects 
 is even purer than the continental codes, which frequently bear 
 marks of Roman influences, while its differences from the well- 
 known Roman procedure are radicaP. Mr Finlason however 
 says confidently : — " As to the general principles of jurispru- 
 dence, and the administration of justice, there can be no question 
 that they were derived from the Roman system, although 
 doubtless in a very rudimentary form^" Condescending to 
 particulars, he asserts " its fundamental principle of the supre- 
 macy of public justice over private law* " to be the result of the 
 revival of Roman influence. Now it is certainly true that 
 the irregular procedure of the feud did not become finally 
 suppressed till a strong central authority was found in the 
 Norman kings, but there is no evidence to connect its gradual 
 decay with the influence of Roman law ; the growth of a strong 
 central power furnishes sufficient explanation. Mr Finlason 
 also claims as Roman, — " the great principle that the duty of 
 securing that justice should be administered rested with the 
 sovereign*;" while he admits that it is scarcely to be found 
 
 1 Coote, Romans in Britain, 294— 1882. 
 
 313. 3 rinl. Reeves, Pref. p. 53. 
 
 - Anglo-Saxon Law, pp. 183—306. •» Ibid. Pref. p. 54. 
 O. W. Holmeson Common Jjaw, London,
 
 46 TRIAL BY JURY. 
 
 in the earliest Saxon laws, though gradually recognized and 
 developed. The truth is that the extension of the king's power, 
 the tendency to regard ofifences as " contra pacem domini regis," 
 as well as sources of compensation to the person injured, increase 
 with the power of the central authority. The king becomes 
 regarded as the " fountain of justice," and the Court of Chancery 
 springs from the exercise of the royal conscience ; but there is 
 no evidence to show any connexion between the Saxon laws 
 bearing on this point and Roman law. 
 
 The presence of the bishop in the shireraoot side by side 
 with the ealdorman^ may indeed have led to modifications 
 in procedure, and clerical influence usually favoured the rules 
 of the civil and canon laws : against this may be set the fact 
 that, during the greater part of the period before the Conquest, 
 the English Church was remarkably free from foreign influences. 
 The only traces of clerical influence forthcoming are in the 
 introduction of hooks or charters as witnesses, and probably 
 in the Christian modifications of the ordeal. 
 
 Though Mr Finlason admits that the trial by jurors upon 
 evidence was the development of a much later period, he yet 
 claims trial by jury as of Roman origin'"'. He alleges in criminal 
 justice, "a mode of trial by king's judges, and jurors or sworn 
 judges of the facts;" and in civil cases, "a system of trial 
 by sworn witnesses upon whose testimony of their own know- 
 ledge the body of men, who acted as judges, determined." 
 This probably refers to the " transaction witnesses," who no doubt 
 did assert facts, but his idea of the procedure in which they 
 took part is curiously inaccurate^ He has indeed to confess 
 that his "trial by jurors or witnesses, and whole system of 
 criminal procedure ; a system of presentment by grand jurors, of 
 indictment upon their oaths, and of trial by juries*," has no 
 countenance from the written laws, but is based entirely upon 
 the apocryphal statements of the " Mirrour of Justice^" 
 
 1 Stubbs' Hist. I. 114. cause he juclged Harpen to die, wLere- 
 
 - Finl. Eeeves, Pref. pp. 21, 63. as the jury were in doubt in their 
 
 Coote, Romans in Britain, p. 312. verdict, for in doubtful cases we ought 
 
 3 V. stib p. 47. to save rather than to condemn," cited 
 
 ^ Finl. Eeeves, Pref. p. 6.5, note. Finl. Eeeves, Pref. p. 64, note. 
 5 e. (I. " Alfred hanged Friburne be-
 
 TEUTONIC PROCEDURE. 47 
 
 While the "twelve senior thegus " of Ethelred^ bear some, 
 though a much criticized, resemblance to the subsequent grand 
 jury, there is nothing to connect them with Roman influence, 
 and the general opinion now refers the origin of trial by jury to 
 the development of the system of inquest by sworn recognitors, 
 introduced in the Norman reigns as an administrative method 
 of gaining information mainly financiaP. 
 
 The great ditFerence between Teutonic and Roman pro- 
 cedure may be briefly stated'^ In the Roman suit, judgment 
 was given after hearing the evidence, and it decided whether 
 the claim of the plaintiff was rightly founded or not. In the 
 German suit judgment was given before the hearing of 
 evidence ; it was based merely on the assertion of the plaintiff, 
 and its confession, denial or a counter-assertion by the 
 defendant. This judgment, when pronounced, only decided on 
 whom the burden of proof was to fall, or which of the two 
 parties was to be called on to prove his case. This judgment 
 given, the party to whom the proof was assigned proceeded to 
 support his case by complying with rules of the strictest 
 formalism. In Anglo-Saxon law three methods of proof were 
 allowed'*. In the first place, the party might vouch for the 
 truth of his case with compurgators, who swore to their belief 
 in their credibility of their principal, and not to their know- 
 ledge of the fact he asserted. He might, secondly, confirm his 
 oath by that of the Transaction- or Community-Witnesses^ 
 who swore to what they had seen, but only if they were called 
 by the party proving. If his oath failed or (to use the 
 expressive Saxon term) "burst," (and the precise quantity of 
 oath he must produce was carefully prescribed l>y law), he 
 might as a last resort invoke the aid of God, and submit 
 himself to the ordeals of fire, water, or the holy bread, that 
 heaven might testify to his innocence. To these two methods, 
 
 1 Ethelred iii. § 3. Thorpe. Stubbs' no account of this striking difference. 
 Hist. I. 103, •» Anglo-Saxon Law, p. 186, 
 
 2 Stubbs, I. 608. 5 Estabhshed by the laws of Edgar 
 
 3 Anglo-Saxon Law, p. 288. Mr and Athelstan. Thorpe. Anfjlo-Samn 
 Coote's account, Romans in Britain, Law, p. 187. 
 
 p. 300, is curiously inaccurate, and takes
 
 48 TEUTONIC PROCEDURE. 
 
 oath and ordeal, the Church had added the use of documents, 
 which were produced by the party to whom proof was awarded. 
 
 In the Criminal Procedure \ which was essentially an en- 
 forcement by the individual of his right to compensation, with 
 sometimes a payment to the Crown or the lord of wite for 
 breach of the peace, the proceedings were in form the same. 
 The judgment, after hearing a mere assertion by the prosecutor, 
 and denial or confession by the accused, usually condemned 
 the latter to prove his innocence or pay the fine^ This proof 
 was almost always awarded to the accused, the few exceptions 
 being in cases where a flagrant criminal was the prisoner, 
 such as a thief caught in the act or by the hue and cry^ or in 
 cases where negligence was presumed in the accused*. If he 
 either provided the necessary quantity of oath, his neighbours 
 and kinsfolk swearing, " By the Lord the oath is pure and not 
 false that N. swore ; " or if he satisfied the requirements of the 
 ordeal, he was acquitted. Wager of Battle was of Norman 
 introduction. 
 
 It will be seen how unlike the Roman practice this rather 
 clumsy and technical procedure was. Anglo-Saxon criminal 
 law was in an advanced stage of the development observable 
 in Teutonic procedure. This progress was from individual 
 vengeance in the feud, initiated by the State who outlawed the 
 offender ; through the substitution for private revenge of a fixed 
 composition to the injured man or his kindred ; to the idea of 
 true punishment exacted by the state for offences against itself. 
 Anglo-Saxon criminal law was in an intermediate stage between 
 the second and third of these periods^ 
 
 The line of progress in Teutonic civil procedure is also well- 
 marked ^ The earliest procedure is purely executive: actions 
 for debt, based on formal contracts, were enforced without any 
 examination of material right in the suit. We find later a 
 contradictory procedure, based on the investigation of material 
 
 ^ Anglo-Saxon Law, p. 262. Coote, cattle or unfenced bounds. In these 
 
 Romans in Britain, pp. 303—312. the prosecutor swore. Laws of Ina, 
 
 2 Anglo-Saxon Law, p. 290. 40, 42, § 1. 
 
 ^ Ibid. p. 295. 5 Anglo-Saxon Laic, p. 275. 
 
 < Ibid. p. 296. Cases of straying « Ibid. pp. 185, 260.
 
 CONCLUSIONS. 49 
 
 right ; and the gap between is bridged by developments of the 
 land procedure. But the procedure throughout is utterly unlike 
 that of the Roman courts. 
 
 There is no trace, for instance, in Anglo-Saxon sources of 
 any period of usucapion, or adverse possession giving owner- 
 ship or protection from actions \ The first trace of such an 
 institution is in the Laws of the Conquerorl Again the Anglo- 
 Saxon usufructuary had seisi7i ; but the Roman usiifructuarius 
 had not possessio^. In the Roman Law the plaintiff must 
 prove his ownership of land ; in the German procedure, he 
 merely asserted that the defendant could have no right, and 
 required him to prove his alleged right. For contrary to all 
 Roman precedent, ownership was not usually the basis of 
 German suits^ And examples might be multiplied. 
 
 Anglo-Saxon procedure. Civil or Criminal, owes then nothing 
 in its origin to the Roman Law, and is but slightly influenced 
 in its development. The introduction of charters and writings 
 as modes of proof is clerical, and probably Roman ; and some 
 modifications may have been due to the presence of the bishop 
 in the shire-moots. But in its main features Anglo-Saxon 
 procedure is conspicuously free from Roman influence. 
 
 1 Anglo-Saxon Laio, pp. 226, 253. ^ Anglo-Saxon Laic, pp. 233, 234, 
 In one of the charters land is sued for * Holmes, Common Lair, pp. 100, 
 after 34 years' silence. Cod. Dip. cclvi. 175. 
 
 2 Laws, Thorpe, § 6.
 
 CHAPTER VI. 
 
 ROMAN LAW IN THE EARLY CONSTITUTION. 
 
 Part I. Shires and Hundreds. 
 
 We have now to consider tbe Roman origin claimed for 
 Anglo-Saxon Local organization ; first, with respect to divisions 
 of the country, such as shires and hundreds, and, secondly 
 with regard to municipal institutions and the gilds. 
 
 The difficulties of investigation into the origin of shires and 
 hundreds are enormous ; the conflicting theories innumerable. 
 The Bishop of Chester has collected the most prominent of 
 them in an elaborate note^ in which even so great an authority 
 can do no more than offer conjectures. But Mr Finlason is very 
 decided^ : " the counties and hundreds could not have been of 
 Saxon origin, for the ' shire ' is mentioned in the earliest 
 Saxon laws, those of Ina, as already existing ; and, on the other 
 hand, hundreds are not mentioned until the Laws of Edgar, 
 later than the British laws." To Mr Finlason, to be mentioned 
 as existing in early times, or not to be mentioned till a late 
 date, alike prove the non-Saxon origin of an institution ; and 
 the two arguments are, perhaps, of equal weight. He cites 
 the centenarius ager, of the Romans, (which originally meant 
 the land of a hundred citizens), and the Welsh cantred^, and 
 concludes that as " there is no trace in the Saxon laws of the 
 formation of hundreds and counties, it seems that their real 
 
 1 Stubbs, Hist. I. 97. ^ ibid. Pref. p. 14 ; Text, pp. 7, note, 
 
 " Finl. Reeves, Pref. p. .38. 42, note.
 
 ORIGIN OF THE SHIRE. 51 
 
 orio-in is to be found in the Roman usages introduced among 
 the Britons." He adopts also the "Mirrour's" view of shires, 
 that all counties ending in " -shire " are based on the Koman 
 counties or divisions, while the others " belong to the English 
 by conquest\" 
 
 Mr Coote^ while he grants ^'hundreds" and "wapentakes" 
 as names to be "reminiscences of old Germany and applied 
 from a real or fancied analogy ", yet asserts the counties to be 
 the Roman civitates with their accustomed territoriimi, the 
 hundreds to be the ^:>a^^ into which they were divided. We 
 have however no information as to the extent of the Roman 
 organization, and it is impossible to compare the two systems 
 and say that the county of Kent is coincident with the 
 territorium of Rochester; of Lincoln with the territorium of 
 Lindum ; or to identify this hundred with that pagus. On the 
 contrary, an instance quoted by Mr Coote shows that the 
 territorium of Londinium may have been much larger than the 
 county of Middlesex ^ 
 
 On the other hand, while we have definite information as to 
 the formation of the Mercian and some Northern shires, the 
 irregularity in size of the hundreds proves that they were not 
 portioned out by any one enactment, but came into existence 
 gradually, the boundaries of each being decided by local 
 conditions*. The existing shires are of three classes^ They are 
 coincident with historic kingdoms, as Kent, Sussex, and Essex : 
 or they are subdivisions of kingdoms, which existed before the 
 absorption of their parent kingdom, as Hamp)ton scir, Defna 
 scir, and the other shires of Wessex : or lastly they may be 
 subdivisions of kingdoms, made after the absorption of the 
 kingdom, as the scirs of Mercia, portioned out by Edward the 
 Elder. The scir of the laws of Ina only relates to Wessex. 
 But there is no valid reason to attribute even the earliest 
 divisions to aught else than the settlement of related tribes. 
 
 1 Finl. Reeves, p. 42, note. No account ling, 
 is given of the title by which the other - Coote, Neglected Fact, pp. 63—71. 
 
 shires "belong to the English". Mr ncmans in Britain, pp. 330—342. 
 Finlason seems to think that Warwick- -^ And see Romans in Britain, p. 342. 
 
 shire and Euerwic scir, (i.e. Yorkshire), ■• Stnbbs, Hist. i. 98, 99. 
 
 are the same, which is rather start- ^ Ibid. i. 109. 
 
 -i— 2
 
 52 ORIGIN OF THE HUNDRED. 
 
 There is hardly any modern writer who does not accept the 
 hundred as a Teutonic institution, the dispute being as to its 
 original basis. The Bishop of Chester is of opinion that the 
 geographical hundred was the pagus or district, in which the 
 hun'dred warriors settled, of a size varying according to the 
 local necessities and features of the country. He explains the 
 Law of Edgar as recognizing the already existing hundred as a 
 basis for police, while at some time it was also made the basis 
 of taxation \ 
 
 The essay in "Anglo-Saxon Law" on the Courts of Law 
 argues elaborately in favour of the existence of territorial 
 hundreds before the Law of Edgar ^ The author concludes that 
 just as the " state " of the 7th century became the " shire " of 
 the 10th, (which is not universally true), so the shire, or 
 division of the state, of the 7th century, became the hundred in 
 the 10th; and he instances the "shires" still existing as local 
 divisions in Cornwall and Yorkshire, as compared with the 
 "hundreds" in other countries'. But this theory, though 
 probable and interesting, need only be used here to confirm the 
 opposition to any Roman origin for these divisions of Saxon 
 States. The division, originally personal in part, became 
 entirely territorial. But as all the Teutonic constitutions 
 contain some trace of the personal idea, and as the Lex Salica 
 shows that in the 5th century the administration of the 
 hundred played an important part in the Frankish system, we 
 need not assume a shadowy and far-fetched Roman origin, 
 when Teutonic sources appear so clear. 
 
 1 Stubbs, I. 98—108. qnent use of " regio " in charters ; regio 
 
 2 Anglo-Saxon Law, pp. 8—20. HoJig = nov;, the Hundi-ed of Roo,regio 
 
 3 He finds the hundred in the fre- Eosfer^ie = the Hundred of Eastry.
 
 Part II. Towns and Gilds. 
 
 Towns and Gilds furnish the advocates of Roman influence 
 with some of their most vigorous claims. Mr Pearson \ 
 Mr Thomas Wright ^ Mr Coote' and Mr Finlason" all speak of 
 Roman origin as here almost undoubted : yet we find the 
 Bishop of Chester writing that "there is no evidence wliich 
 connects the hurlis of the Anglo-Saxons with the remains of 
 Roman civilization^", and Dr Brentano refuses even to consider 
 a Roman origin for Gil(ls°. 
 
 Both Sir Francis Palgrave and the Bishop of Chester agree 
 that very little indeed can be stated with certainty about the 
 constitution of the hurh of early times ^; and this paucity of 
 information continues till the treasures of Domesday are 
 reached. The burden of proof may therefore be thrown on 
 those who assert a connexion, amounting to historical identity, 
 between the Anglo-Saxon hurh and the Roman civitas or 
 municipium. Mr Finlason contents himself with an assertion of 
 the undoubted connexion, and the citation, as authorities, of 
 similar assertions by Mackintosh as to England, and by Guizot 
 as to France. Sir Francis Palgrave while he agrees that the 
 political existence of Anglo-Saxon hurhs cannot be deduced from 
 the Roman era, yet claims a Roman origin for the Gilds, as 
 corresponding to the collegia opijicuin ; he sums up his views in 
 these words, " with the exception of the trading Gilds which 
 descend in a direct line from the College of Operatives, only 
 scanty vestiges of Municipal institutions can be discerned I" 
 
 ^ History oj England in the earli/ ^ Hist. i. 92. 
 
 and Middle Ages, i. pp. 264, 267. " Breutano on Gilds, c. i., see also 
 
 2 Archaeologia, xxxii. pp. 298 — 311. Spence, Eq. Jitrisd. i. 54. 
 
 3 Neglected Fact, pp. 69—89. " Stubbs, Hist. i. 93. Palgrave, pp. 
 Romans in Britain, pp. 343—413. 103, 331, 629. 
 
 ■» Finl. Reeves, Pief. pp. 9, 49. » Palgrave, p. 628.
 
 54 GOVERNMENT OF TOWNS. 
 
 Mr Wright, whose views Mr Pearson adopts, and Mr Coote are 
 more explicit. Mr Coote assumes all boroughs to be governed 
 by a port gerefa appointed by the king' ; but the evidence of 
 his existence is his mention in four towns only, while ruic- 
 gerefas and tun gerefas exist in others'. There was probably an 
 officer called the gerefa in most boroughs, but the evidence of 
 his being appointed by the king is very slight, except in 
 London which has in A.D. 680 a "king's wic-reeve^". Both 
 Mr Wright and Mr Coote lay stress on the two classes in the 
 borough*. In the Roman cities there were the vulgus, or 
 people at large, and the curia, or governing body, ultimately 
 presided over by one person, (the survivor of two or four 
 duumviri), assisted by a committee of lyriucipales. They find 
 the duumviri in the bailiffs or reeves, (of whom there was only 
 one in a Saxon town), the curia iu the burgesses, a select and 
 aristocratic governing body of the borough ; the principales in 
 the aldermen. Such briefly is the analogy suggested : we can 
 only reply that there is no evidence to show that the burh in 
 Saxon times was so organized. Many burhs, such as London, 
 have undoubtedly had a continuous local existence since the 
 Roman occupation, but we have no information as to their 
 constitution in Saxon times. A "reeve" appears, but he is 
 barely more than a name. The Bishop of Chester implies that 
 in London he was nominated by the Crown ; Mr Loftie, that 
 he was elected by his fellow-burgesses®. Lincoln has a gerefa in 
 the 7th century, while in Domesday it is governed by twelve 
 Lawmen, as also is Chester''. In the scarcity of evidence we 
 may well conclude that, while there is nothing to justify the 
 notion that Gilds were the basis on which the hu7'h was 
 organized, yet very little else can be stated with certainty about 
 the early borough. The Roman, as well as any other constitu- 
 tion, must be dismissed as unproven. 
 
 The origin and nature of Gilds have been so elaborately 
 
 1 Coote, Neglected Fact, p. 71. Ro- Ilomans in Britain, p. 363. Wright, 
 
 iitans in Britain, p. 369. p. 299. 
 
 '^ Stubbs, I. 93, note. 5 Loftie, History of London, i. 79. 
 
 3 Thorpe, p. 1-i. Wright, p. 305. « Stubbs, Hist. i. 94. 
 * Coote, Xcf/lcctcd Fuel, p. 81.
 
 ORIGIN OF GILDS. 55 
 
 discussed by Brentano, Stubbs, Wilda and Hartwig that a mere 
 summary of their conclusions will suffice. The materials for 
 the history of Gilds before the Conquest are very slight ; 
 though, as England and possibly London is the birthplace of 
 Gilds, their early history is entirely English'. But this paucity 
 of evidence tells against the theory of Roman origin, for a view 
 of Craft-gilds which derives them from the Collegia Opificum 
 " needs rather to be proved historically by its adherents, than 
 refuted by its opponents." It is true that in the Laws of lue 
 and Alfred, a class of gegildan are mentioned"'', but who they 
 were and how they were connected with the kinless man's 
 wergeld is 'a matter of great obscurity. There is also under 
 Athelstan^ the code of a London frithgild, for mutual defence ; 
 and at the beginning of the 11th century, we have three Gild- 
 Statutes, of Abbotsbury, Exeter and Cambridge*. 
 
 Three, if not four classes of Gilds are found to exist : (1) 
 the religious or social Gild°, whose chief purposes are good 
 fellowship and common performance of religious offices. The 
 members hold periodical banquets, and their contributions 
 provide for religious services, festivals and the burial of members 
 with proper solemnities^ The Exeter and Abbotsbury Gilds 
 are of this class. 
 
 (2) The Frithgild added to these religious and social 
 purposes the temporal functions of mutual defence and respon- 
 sibility. The members of such a gild were protected against 
 criminals, and the Gild was responsible for the sins of its 
 members. The Cambridge Gild and the London one, {tempore 
 Athelstan) were of this class''. (3) The Merchants or Trading 
 Gild is at least as old as the Conquest ; it regulated the trade 
 of its members, and attempted to regulate that of the town^ 
 Originally independent of the municipality, it came to be either 
 
 1 Brentano, p. 50. ® Brent.ano, c. 2, pp. 17—28. 
 
 3 Ine, §§ 16, 21. Alfred, §§, 27, 28. ^ As to the functions of the Collegia 
 
 Stubbs, I. 89, 414. Waitz, D. V. G. i. Opifimm, see the authorities quoted in 
 
 432—438. the Report of the City Gruilds Commis- 
 
 * Athelstan vi. 1—12 ; Judicia Civi- sion, 1884, p. 8, note. Coote, Eomans 
 talis Limdoniae. Stubbs, i. 414. in Britain, pp. 383—396. 
 
 * Brentano, c. i. Stubbs, i. 412— '' Stubbs, i. 41G. Brentano, c. 3. 
 415. l)p. 29—49.
 
 56 ORIGIN OF GILDS. 
 
 identical with, or closely connected with the governing body 
 of the towns. It was usually of a distinctly aristocratic 
 character. 
 
 A similar class of bodies, though of different origin is, (4) 
 the Craft Gilds\ composed of the freemen and bondsmen of 
 each trade, who aimed at furthering the livelihood of their 
 members in their respective crafts. They were later in origin 
 than the Merchant Gilds, and usually came into violent collision 
 with them in a battle of rich against poor, privilege against the 
 people. But this struggle was more marked in the Continental 
 than in the English Gilds. 
 
 A well-recognized theory refers the origin of the Religious 
 Gilds to the feasts of the Northern Scandinavian tribes, which 
 are expressly called " Gilds ^." These, originally of a heathen 
 character become Christianized as the Religious Gilds. Wilda^ 
 admits the Scandinavian origin of the banquets, but ascribes 
 their special character to monastic institutions : this Hartwig* 
 rejects, referring their origin to Christianity in the mixed 
 associations of clergy and laity for mutual support. Against 
 them Brentano argues for the essentially pagan character of the 
 original Gilds, which subsequently came under Christian and 
 monastic influences. The development of fellowship he regards 
 as purely English. England is the birthplace of Gilds^ : the 
 Frith-, Merchant-, and Craft-Gilds come to England from no 
 foreign source, but are indigenous, arising from the needs of 
 the time and based on the development of the mutual regula- 
 tion and assistance contained in the German family. 
 
 This English view is adopted by the Bishop of Chester, and 
 by Mr Freeman in a letter to the City Guilds Commission, in 
 which he says": "the trade of London is as old as it well can 
 be. The gap between the Roman and English periods is hidden 
 by the blackness of darkness, which shrouds our settlement of 
 Britain, and which... teaches much more clearly than any light 
 
 ^ Brentano, c. 4, pp. 50—100. * Unt. ilber die ersten anfange des 
 
 Stubbs, I. 417. Gildewesens. Gottingen, 1860. 
 
 ^ Brentano, pp. 3—6. s Brentano, Pref. ix. 
 
 ^ Das Gildewcsen in 2IittelaUcr. " 1884. Report, p 8. note. 
 IJalle, 1831.
 
 CONCLUSIONS. 57 
 
 could what the nature of that settlement really was. Had 
 there been any continuity between the institutions of the two 
 periods, that blackness of darkness could hardly have been." 
 The Commissioners remark that^ " the better opinion appears 
 to be that the mediaeval Gilds were not a relic of Roman 
 civilization, but an original institution." We may safely adopt 
 the same view, or at least pronounce that the case of Roman 
 origin has not been proved by its advocates^. 
 
 1 Eepo7-t, p. 8. Mr Coote's general theory, see Macmil- 
 
 2 See also Coote's "Ordinances of lan's Magazine, June, 1870. Freeman, 
 the Secular Gilds of London." London, N. C, v. 887. 
 
 1871. For Mr Freeman's criticism on
 
 CHAPTER VII. 
 
 ROMAN LAW AND THE NORMAN CONQUEST. 
 
 The Norman Conquest effects no sudden or sweeping 
 changes in our institutions and laws : historical continuity of 
 growth may be traced throughout. The " Feudal system ", as 
 it is misleadingly called, the chief product of Norman rule, was 
 present in germ before the Conquest, and would probably have 
 developed even if William had never crossed the channel. 
 True it is that English institutions underwent great changes 
 during the 12th and 13th centuries: Ranulf Flambard, the 
 Justiciar of William Rufus, elaborated the details of feudal 
 tenure with oppressive ingenuity: the Henries, with the clerical 
 family of the Le Poors, developed an administrative system far 
 in advance of the Saxon period both in finance and in the 
 judicature. The second Henry did much to modify the law by 
 direct legislation, and paved the way for our English Justinian, 
 the first Edward. But all these changes are rather in the 
 history of institutions than in the history of Law. Our records 
 of cases are scant and difficult^ : the Year Books do not 
 commence till 1274; the written Law is scanty. The study of 
 the Law of Rome does not revive till the latter half of the 
 12th century, and not until between 1180 and 1190 is the great 
 work of Ranulf Glanvil, the Justiciar, published. 
 
 We have of course three codes extant ^ which, if genuine, 
 would be of great assistance to our task, the so-called Laws of 
 
 1 Collected in Bigelow's Placita S. C. pp. 74, 80, 100. Stubbs, Preface 
 Anglo-Normaunica. London, 1879. to Roger of Hoveden, ii. 22—47. 
 
 ^ Freeman .Y. C. v. 868. Stubbs Thorpe, pp. 190—267.
 
 LAWS OF EDWARD AND WILLIAM I. 59 
 
 Edward the Confessor, of William I., and of Henry I. But 
 their unofficial and informal character has been so completely 
 established by the Bishop of Chester and Mr Freeman, that a 
 very brief notice will suffice. 
 
 The Laws of Edward the Confessor^ purport to be the 
 result of the inquiries ordered by the Conqueror in 1069 to be 
 made, through 12 wise men from each shire, as to the laws and 
 customs of the realm. But one article distinctly refers to a 
 Danegeld under William II.^ and the preamble contains his- 
 torical anachronisms, fatal to its claims as a contemporary 
 record. The version supplied by Hoveden is probably a version 
 prepared by Glanvil about A.D. 1170, and possibly founded on 
 an early report of the inquiry by jurors in A.D. 1070. It 
 contains no evidence of Roman influences. 
 
 The so-called Laws of William, his new legislation apart 
 from the confirmation of old law, are extant in two widely 
 different versions^ ; one, the most ancient, contained in the 
 Textus Roffensis and Hoveden, and reprinted by the Bishop 
 of Chester* ; the second and fuller one, in the Red Book of the 
 Exchequer and printed in Thorpe'. The latter version has been 
 fully discussed by the Bishop', who holds it to date most 
 probably from the reign of Edward I. One of its clauses 
 purports to remit tallages, a boon appropriate in the reign 
 which saw " De Tallagio non Concedendo " presented to the 
 king, and the Confirmatio Cartarum granted. The form of the 
 charter in the 1st person plural is unique at so early a date. 
 The verbose description in the preamble ; " Francos et Britones 
 Walliae et Cornuhiae, Pictos et Scotos Alhcmiae", is appropriate 
 to the reign of Edward rather than to the time of the Conqueror. 
 All the evidence therefore points to the Bishop's conclusion, in 
 which Mr Freeman concurs, that the longer version dates from 
 the time of Edward I., and is suggested by the controversies of 
 his reign. The shorter form given by Hoveden' is probably 
 
 1 Stubbs, Eoger de Hoveden, ii. 43. ^ Stubbs, S. C. p. 80. 
 Thorpe, pp. 201—212. ^ Thorpe, p. 211. 
 
 2 s 11. « Koger de Hoveden, Pref. ii. 22— 
 
 3 Stubbs, Roger de Hoveden, Pref. 13. 
 
 ii_ 22. ' Ibid. II. 42.
 
 (jO LAWS OF HENRY 1. 
 
 "a mere collection of distinct enactments made at different 
 times by the Conqueror." It is not one legislative act, nor even 
 an authentic form of the various enactments made, some of 
 which are accessible from other sources in a more ancient 
 version. 
 
 According to a story repeated by Hoveden', William showed 
 a marked preference for the Danelagu, or laws of the Danish 
 part of England. This tale finds no support elsewhere and is 
 probably incorrect. The Laws of William, as preserved in the 
 shorter version, and his confirmation of the older laws afford no 
 special traces of Roman influence. 
 
 There only remains the code of the " Laws of Henry I.", 
 purporting to be a collection of his legislative enactments^ 
 But this is clearly not authentic. The number it assigns to 
 the English Bishoprics dates it after A.D. 1133 ; and it refers to 
 the canonization of Edward the Confessor and Gratian's 
 Codification of the Decretals, both which events took place in 
 1151. On the other hand it alludes to Queen Matilda as alive, 
 who died in 1118, and contains no references to the laws 
 of Henry IL, who succeeded in 1154. Most of its clauses 
 appear to be extracted from old English sources, mingled with 
 some genuine ordinances of William I. The Bishop of Chester 
 considers it " a collection of legal memoranda and records of 
 custom, illustrated by reference to the Canon laws, but contain- 
 ing very many vestiges of old English jurisprudence." It is 
 evidently of a later date than the reign of Henry I. " It would 
 appear to give probable, but not authoritative illustrations of 
 the amount of national custom existing in the country in the 
 first half of the 11th century, but cannot be appealed to with 
 any confidence except where it is borne out by other testi- 
 mony." 
 
 Its most interesting feature for us is the evident acquaint- 
 ance of the compiler with civil and canon law^ In dealing 
 with the conduct of a suit he cites* the substance of a passage 
 
 1 Freeman, N. C. iv. 425, v. 869. had begun to teach the Civil Law in 
 
 - Freeman, N. C. v. 872. Thorpe, England. 
 
 p. 2(37. Stubbs, S. C. 104. * Laws, 33, 4. Thorpe, p. 232. 
 
 5 If compiled after 1150, Vacarius C. Thcod. lib. 2. cap. 9.
 
 FEATURES OF THE PERIOD. 61 
 
 from the Theodosian Code as to the time in which a defeated 
 litigant might appeal against an unjust decision. One of the 
 provisions as to the rights of a husband to use violence against 
 an adulterer seems derived from a passage in one of the novels 
 of Justinian \ The compiler also cites the Salic Law^ as to 
 accomplices in murder, and the Decretals^ on clerical offenders, 
 while one passage on the widow's rights is identical with a 
 passage in the Ripuarian Laws*. A number of chapters 
 contain provisions translated literally from the Saxon Laws^ 
 
 While therefore the compilation is not a collection of laws 
 promulgated by Henry I.*^, but a digest of Anglo-Saxon laws 
 and usages made by some private individual, the fact remains 
 that that private individual is acquainted with and even cites 
 as of some authority systems of law, including the Roman, 
 other than his own. 
 
 Any detailed examination of English Law after the Conquest 
 we may leave till Glanvil and Bracton afford us materials more 
 ample than the Placita Anglo-Normannica. We may however 
 touch shortly on three features of the period ; the rise of 
 feudalism, the removal of the bishops from the secular court, 
 and the changes in the law as to married women. 
 
 The removal of the bishops was effected by an ordinance of 
 the Conqueror ^ and commences the long record of difficulties 
 between the State and the Church. It is of interest for our 
 subject, because in the presence of the bishops in the popular 
 courts we have found a constant source of Roman influence on 
 popular laws and customs. But this source of influence is 
 much diminished by their removal to deal solely with those 
 matters ''quae ad regimen animarum pertinent." Yet the 
 judges were frequently ecclesiastics and thus in another quarter 
 the clerical and Romanizing influence was continued. 
 
 Of greater importance is the rise of Feudalism. At the 
 time of the Norman Conquest it is " a complete organization of 
 society through the medium of land-tenure, in which, from the 
 
 1 Laws, 82—8. Just. Nov. 117. * Laws, 70, 22. Thorpe, p. 251. 
 
 Stephen, Hist. Crimiiinl Lair, i. 15; •'' e.g. cc. 7, 8, 11, 70, 87, etc. 
 
 55, <5 Thorpe, p. 268, note. 
 
 ^ Laws, 88, 10. Thorpe, p. 259. ' Stubbs, .S'. C. p. 81. 
 
 3 Laws, 5, 27. Thorpe, p. 221.
 
 (52 ENGLISH FEUDALISM. 
 
 king down to the lowest landowner, all are bound together 
 by obligations of service and defence \" These obligations 
 are based on and regulated by the extent of the land, and 
 tlic nature of its tenure. This Feudalism is distinctly 
 Frankish: as found in France, and introduced into England, 
 feudal relations had arisen from two sources, beneficial ten- 
 ures and commendation. The conquering leaders distributed 
 the land among their followers as heneficia, to be held under 
 the obligation of assisting their lord by military service : or the 
 weaker landowners gave up their land to more powerful men, 
 and received it back, with protection, in return for faithful 
 service. Commendation, on the other hand, was personal: it 
 involved the homage of the vassal and the protection of the 
 lord, but no alteration in the tenure of the vassal's estate. 
 Feudalism as combined from thece had the two-fold character 
 of land-tenure and of personal relation. As thus combined, it 
 was partly of Roman, and partly of German origin', " a com- 
 pound of archaic barbarian usage with Roman Law." The 
 Roman jurisprudence gives the idea of the usufruct ; the 
 German institutions that of personal subservience. But there 
 is no sufficient ground for suggesting that the Roman em- 
 phyteusis, and relation of patronus and cliens have also a place 
 in its development. 
 
 English Feudalism differs widely from Feudalism on the 
 Continent. This result is largely due to the much misunder- 
 stood Gemot of Salisbury, and the oath of fealty which "all 
 land sittende men " took there to William. " Whereas Conti- 
 nental Feudalism was disruptive in tendency, and the vassal 
 owed allegiance to the mesne, rather than to the superior, lord, 
 the English system was centralizing and coherent in the higher 
 allegiance of the vassal to the king. William's policy weakened 
 the mesne lords, and strengthened the crown ; their vast terri- 
 torial holdings lost their power when scattered over England ; 
 their tenants' fealty was deprived of its strength by the rights 
 of the sovereign ; the king and the people were allied against 
 
 1 Stubbs, I. 153, 252. Waitz, D. T". ^ gtubbs, i. 254. Maine, Ancient 
 
 G. II. pp. 226—258. Maine, Ancient Low, p. .S65. 
 Laiv, p. 107.
 
 ITS DEVELOPMENT. G.S 
 
 the feudal lords. Moreover the Anglo-Saxon and Frankish 
 systems had followed different lines of development. Some- 
 thing resembling Feudalism would have developed in England 
 had the Norman keels never furrowed the sand at Pevensey, 
 but it would have developed from different germs. Frank 
 Feudalism sprang from benefices, and commendation ; the 
 English system was growing by the changing of the comitatus 
 of the king, the gesiths or thegns doing personal service to their 
 warrior leader, into a territorial nobility, whose lands had been 
 given as a reward for personal service. Tenure of land from 
 another was present ; personal service was present, but they 
 were not yet, as always in later feudalism, inseparably com- 
 bined. Their origin, the territorial development of the comi- 
 tatus, was peculiar to English history*, and later English 
 feudalism is largely indebted to the Anglo-Saxon polity. 
 
 That system became developed in all its oppressiveness by 
 the ingenuity of Ranulf Flambard, the Justiciar of William 
 Rufus, and was developed not by written legislation, but by the 
 creation of custom by particular precedents. The firm rule of 
 William's successor initiated the English judicial and adminis- 
 trative system. The Curia Regis, with its itinerant judges, is 
 the origin of the Central Judicature, which harmonizes the 
 practice of the popular courts of the shire ; while the second 
 Henry by making his sheriffs lawyers continues that unifying 
 influence throughout the Courts of the Hundred. The period 
 " which is called the reign of Stephen ", had thrown the whole 
 system into confusion and anarchy, but the genius of Henry II. 
 brings order out of the chaos; the fiscal and judicial circuits 
 are restored ; the system of inquest by sworn recognitors is 
 borrowed from the Franks and applied, at first for financial 
 purposes, and then for judicial inquiries, in which sphere it is 
 the precursor and parent of Trial by Jury. 
 
 Such are the great changes in the system which administered 
 the law ; but one considerable alteration in the law itself claims 
 attention, as preparing the way for those alterations which the 
 influence of the Roman Law effected in the position of 
 married women. 
 
 1 Stubbs, I. 152.
 
 (34 MARRIED WOMEN. 
 
 We have seen' that in later Saxon times the childless 
 widow took one third of her husband's estate, the widow with 
 children one half, in the absence of any express agreement as 
 to the dowry. Such an agreement might either restrict this 
 proportion, or extend it to one half if childless, or to the whole 
 property if she had borne children ; and this share was abso- 
 lutely her own. But under the Norman rule'"* the dowry in the 
 absence of agreement was restricted to a life interest in one 
 third of the lands which the husband possessed at the time of 
 the marriage, a portion which might, by express agreement, 
 be either restricted, superseded by personalty, or enlarged to one 
 third of the lands of which he was seised at any time during 
 coverture. The dower from personalty was in the Saxon pro- 
 portions, but, when given, it barred any dower from the realty^. 
 This only applies to the lands heM by military tenure; for in 
 socage, gavelkind, and copyhold lands, the dower is still one 
 half, and in the Borough English towns and in some manors 
 the whole of the lands. 
 
 1 Vide supra, p. 42. s Kenny, p. 34. 
 
 ' Kenny, p. 65.
 
 CHAPTER VIII. 
 
 SUMMARY OF PART I. 
 
 We have now reached the limits of the first period in our 
 inquiry, and have endeavoured to ascertain whether, in the 
 first place, the Roman occupation of Britain left any traces of 
 its influence on the Anglo-Saxon polity, and secondly, whether, 
 from the landing of the Teutonic invaders down to the advent 
 of the Justinianean learning, the Roman Law, as then taught 
 or known on the continent, influenced the growth of English 
 Law and institutions. In both these inquiries our results have 
 been mainly negative. 
 
 The early English Law is distinctly Teutonic: Roman 
 influences can only be suggested in the vague applications of 
 principles so comprehensive as to be shadowy, or in minor 
 points where careful manipulation of the evidence exhibits 
 curious coincidences. Mr Seebohm's theory of the origin of 
 manors in mingled South German and Roman sources comes 
 nearest to satisfactory evidence, and even that we have seen to 
 remain in the category of hypotheses which may be true but 
 are as yet unproven. 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. The Land-law 
 apart from the manorial system is Teutonic ; the Family Law 
 is unmixed in its origin ; the divisions of the country and the 
 s. 5
 
 (jQ CONCLUSIONS. 
 
 organization of the towns cannot be claimed with success as 
 Roman, while civil and criminal procedure is utterly unlike that 
 of the tribunals of Rome. 
 
 The Conquest, while at first it makes no great changes, has 
 led to the interweaving of Norman and Frankish institutions 
 with the English polity, but, except in as far as Feudalism is 
 connected with the Roman heneficia, the influence of the 
 Roman law is not put forth, or is powerless. From the era of 
 Teutonic development we now turn to a period in which the 
 law and its administrators are affected by an influence too 
 fascinating in its intellectual charm to exert no sway over 
 thoughtful minds, too powerful to leave no mark on English 
 Law. In the train of the Archbishop of Canterbury, an Italian 
 named Vacarius, learned in the Justinianean Law which the 
 newly-born Law School of Bologna was teaching with a young 
 convert's zeal, had landed on English shores ; and from his lips 
 Oxford and England heard the laws of Rome.
 
 PART II. 
 
 ROMAN INFLUENCES IN ENGLISH LAW AFTER THE 
 COMING OF VACARIUS. 
 
 CHAPTER I. 
 
 THE INTRODUCTION OF THE ROMAN LAW. 
 
 JUSTINIANEAN Law was almost unknoAvn in the Western 
 Empire until the teaching of the Law School at Bologna in 
 the twelfth century brought it into prominence^ The tale, 
 adopted by Blackstone, of the finding of a single copy of the 
 Pandects at the siege of Amalfi in 1135, may be dismissed after 
 Savigny's destructive criticism, which shows it to have originated 
 long after the siege and probably in the desire of the Pisans to 
 uphold the superiority of their text, the Litera Pisana, over the 
 Litera Bononiensis of the rival school, Bologna. This latter was 
 commenced by the lectures of Pepo, but first brought into fame 
 by the teaching of Irnerius and his successors'^. It illustrated 
 the writings of Justinian by short notes, called glosses, and 
 hence its teachers obtained the name of Glossatores. By their 
 teaching the Roman Law rapidly spread among those Western 
 nations who had only previously known it by the versions of 
 the Theodosian code contained in the Alarician Breviary and 
 Edict of Theodoric^ Both in Italy and France the new study 
 was received with great favour and the Emperor Lotharius 
 
 1 Kaufmann's 3Iackeldey, p. 66. 1815—1831. 
 
 Twiss, Bracton, Pref. ii. 68. ^ Bulgarus d. 1166. Martinus d. 
 
 Selden ad Fletam, c. 6 § 2. 1165. Eogerius d. 1192. Azo d. 1220. 
 
 Ii'ving's Introduction to the Civil Accursius d. 1260. 
 
 Law, pp. 84—92. London, 1837. ^ Selden ad Fletam, c. 5 § 4. Mac- 
 
 Savigny's Geschichte des Romischen hcldey, Kauf. i^p. 48, 49. 
 Rechts ini Mittelalter, Heidelberg,
 
 (;3 VACARiUS. 
 
 t-nacted tliat causes should be decided according to the one 
 Roman corpus of the Civil Law'. 
 
 Under these circumstances Theobald, Archbishop of Canter- 
 bury, in 1143 brought to England in his retinue Yacarius^a 
 Lombard skilled in the new learning^ Selden, aided by a 
 missing full-stop, has succeeded in most ingeniously confusing 
 the identity and history of Vacarius, but the tangle has been at 
 length unravelled by the learned monograph of Weuck. The 
 Norman Chronicle contains the statement: " Obiit Bechardus, 
 VI Abbas Becci, cui successit Rogerius, Magister Vacarius, 
 gente Longobardus, cum leges Romanas anno 1149 in Angha 
 discipulos doceret et midti tarn divites quam j^tauperes ad eum 
 causa discendi conjluerent. Suggestions paiiperum de Codice 
 et Digesto exceptos ix libros composidt, qui sufficiunt ad omnes 
 legum lites quae in scolis freqventari solent decidendas, si quis 
 eos perfects noverit." The full-stop being omitted between 
 Rogerivs and Magister, Selden has first identified Rogerius, 
 7th Abbot of Bee, who was afterwards offered the see of 
 Canterbury, with Vacarius, and has then further identified his 
 composite w^ith Rogerius Beceventanus, an Italian civilian 
 and author of several legal works. He made this composite 
 being leave England in 1149 for his abbey, and consequently a 
 teacher of Roman Law in England before 1149. This confusion 
 Wenck has succeeded in clearing up by showing that the name 
 of the seventh abbot was Roger de Bailleul, proving his French 
 orio-in ; that he was therefore not the same as the Italian Civi- 
 iian, and that the impossible combination " Rogerius Magister 
 Vacarius," indicates clearly a dropped full-stop after "Rogerius." 
 Vacarius undoubtedly lectured at Oxford in the Roman Law, 
 and that University has ever since been connected wdth that 
 study. Its Bachelor of Civil Law takes what are practically 
 honours in its Law School, its Doctor of Civil Law possesses the 
 
 1 Selden, c. 6 § 2. piits the date of Vacarius' coming be- 
 
 2 Magister Vacarius, primus Juris tween the years 1143 — 1146. Wenck, 
 Eomani in Anglia Professor. Wenck, p. 21. 
 
 Leipsic, 1820. Buck, De usu et autho- The article on "Vacarius" in the 
 
 ritate Juris CiviUsItoinanor^im,'London, Penny Encyclopaedia gives the results 
 
 1679. Irving, pp. 84—89. Spence, r. of Wenck and Savigny. 
 1U8. SeldcnadFletani,c.7iB. Wenck
 
 HIS WORKS. G9 
 
 most honourable degree the University can confer. Its doctors 
 may be open to the censure of the anonymous pasquinade : 
 *' In Institutis Comparo vos brutis ; 
 In Digestis niJiil jjotestis ; 
 In Codice satis modice ; 
 In Novdlis, Similes Asellis ; 
 Et vos creariiini Doctores ! tempora ! mores ! ^" 
 but the memory of the ancient studies has survived in the 
 name. 
 
 The work of Vacarius, in nine books, consisted in a series of 
 comments on the compilations of Justinian. His lectures appear 
 to have been directed to those parts of the Roman Law which 
 bore upon or illustrated the Law of England. For it was a 
 principle of the Vacarian school that those parts only of the 
 Roman Jurisprudence should be adopted which were in harmony 
 with the development of the English Law. The former statutes 
 of the Chair of Civil Law at Oxford contain the regulation : 
 " quam libet partem Corporis Juris Civilis exponat, eosqiie prae- 
 cipue titidos, qui ad usum et praxim in hoc regno conducunt." 
 
 But the study of Roman Law in England did not find favour 
 with the Crown. John of Salisbury reports the action of Stephen^: 
 " Tempore Regis Stephani a regno jussae sunt leges Romanas, 
 quas in Britanniam, domus venerabilis pairis TheohaMi...as- 
 civerat. Ne quis etiam libros retineret edicto regis prohibitum 
 est, et Vacario nostro indicium silentium : sed, Deo favente eo 
 magis virtus legis invaluit, quo earn amplius nitebatur tmpietas 
 infirmare." 
 
 Some attribute this prohibition to personal enmity against 
 the Archbishop, the patron of the new learning; others to the 
 fact that Vacaiius taught also Canon Law, which conflicted with 
 the laws of the realm. This latter theory seems improbable; for 
 the first authoritative collection of Canon Law, the Decretoruni 
 Collectanea of Gratian, was only published m 1L51, and Wenck 
 is of opinion that Vacarius did no more than borrow from the 
 Canon Law some few illustrations for his Civil Law lectures. 
 Moreover the study of the Civil Law shortly afterwards fell into 
 
 ^ Cited in Warren, Law Studies:, ii. ^ Seldcn ad Fletam, c. 7 § 3. 
 
 1341.
 
 70 ROMAN LAW IN ENGLAND, 
 
 disfavour with the Papal Court, on account of its tendency to 
 supersede the Canon Law. In 1164' Pope Alexander III. decreed 
 that no religious person should teach Physic or Civil Law out of 
 his monastery, and this was confirmed by Pope Honorius III. 
 William of Malmesbury had said "nallus clerus, nisi causidicus^"; 
 and the church from the earliest timfes was well skilled in the 
 Roman Law, and apt to extend the knowledge of it. The Schools 
 of Learning of York and Northumbria, before their destruction 
 by the Danes, were skilled in the Roman Law as then known ; 
 St Dunstan had books of Roman Law among his library; Arch- 
 bishop Lanfranc who had been prior of Bee, "ilia famosa 
 schola," was learned in the Jus civile^; and Thomas a Becket 
 had studied Law at Oxford*. The household and pupils of 
 Theobald continued the knowledge of the Law of Rome. Poli- 
 craticus, the work of John of Salisbu»-y written some time before 
 1180, constantly cites the Civil Law, in some cases as being 
 referred to in English Courts ^ The Ordinary considers a matter 
 referred from the king's court by the aid of "Legwn Principutn 
 et Civilium," and Rescripts of the Roman Emperors are cited®. 
 Petrus Blesensis gives an interesting account of the studies of 
 the Archbishop's household in the reign of Henry II., when 
 " omnes quaestiones regni nodosae referimtur ad nos," and the 
 household exercised themselves "in causarum decisione'^" 
 
 Before dealing with the legal writings of the period, Glanvil, 
 Bracton, Britton and Fleta, some contemporary references to the 
 Jus Civile will show how the air was full of the Law of Rome. 
 Giraldus Cambrensis, writing at the end of the 12th century, 
 cites with approval the Institutes of Justinian. Gervase of 
 Tilbury, a little later, in computing the size of Britain, cites the 
 Pandects as an authority for the measure he adopts^ The Vision 
 
 1 Selden ad Fletam, c. 7 § 7. Pref. 76. 
 
 2 ibid. The Monks of Abingdon in « Selden, ibid. 
 
 1070 were "legibus p^Uriae optivie Holcot writing temp. Henry iii. says 
 
 instituti. " " Leges et Canones innninerabiliter sunt 
 
 * Selden, ibid. fecundae, concipiunt divitias,et pariunt 
 
 * Irving, p. 89. Duck, ii. 8. 2. 29 : dignitates; ad illas conflmmt qvasi tota 
 inter juris Roniani peritos oxonienses vmltitudoscholarumhis diebus." Duck, 
 cnumeratur. Dc usu ii. 8. 2. 32. 
 
 * Selden, c. 8 § 1. Twiss, Bracton, n. ^ Selden, c. 8 § 1.
 
 LEARNT AND FORGOTTEN. 71 
 
 of the Monk of Evesham speaks of a certain monk as the most 
 learned of the Civilians and Canonists of his time; '' peritissimns 
 eorum quos Legistas et Decretistas appellant^!' The "Golias" 
 sarcastic poems of the 12th and 13th centuries, usually attributed 
 to Walter Map, contain traces of the widespread authority of 
 Roman Sources. The poem, "De Judicio extremo" in describing 
 the stern justice of the Last Day, proceeds : 
 
 "Judicabit judices judex generalis; 
 
 Ibi nihil proderit dignitaa papalis, 
 
 Sive sit episcopus, sive cardinalis, 
 
 Eeu3 condemnabitur, nee dicetur: Qualis. 
 
 Ibi nihil proderit quidquam allegare, 
 
 Neque vel excipere, neque replicare, 
 
 Neque ad apostolicam sedem appellare, 
 
 Eeus condemnabitur, nee dicetur, quare. 
 
 Cogitate, miseri, qui et quales estis, 
 
 Quid in hoc judicio dicere potestis, 
 
 Ubi nullus Codici locus aut Digestis, >- ' 
 
 Idem erit dominus, judex, actor, testis 2." 
 
 On the other hand, in 1234', for some unknown reason, the 
 teaching of Law was forbidden in the schools of London*. But 
 John de Lexington, one of the Justices in Eyre, is described as, 
 "in utroque jure, Ganonico scilicet et civili, peritus*." Edward I. 
 endeavoured to officially assist the study by bringing over to 
 England Franciscus Accursius, son of the celebrated Glossator, 
 but he seems never to have got further than Toulouse*: "interea 
 Tolosae jus civile aliquamdiu docuit." In the Yearbooks for 
 1312 Inge, Justice, is recorded as saying to the Counsel in a 
 case of cosinage^ : "Que respondez vous a la ley empiel donque 
 sur quel ley de terre est fondu, et que veut que heritage soit 
 descendu a plus digne, quod possessio fratris facit sororem here- 
 
 1 Selden, c. 8 § 1. the Law assuming Ecclesiastical digni- 
 
 2 Mackeldi-y, Kauf. p. 72. ties. Duck, De usu 11. 8. 2. 33. 
 
 In 1217, the Constitutions of the Duck states decidedly "m judiciis 
 
 Bishop of Salisbury ran "2i/^ec aduocaii quae secundum jus Anglicanum exer- 
 
 sint clerici, vel sacerdotes in foro secti- centur, juri civill Romanorum autho- 
 
 lari, nisi vel proprias causas, vel mise- ritatem tribui nunquam passi sunt." 
 
 rabilium personarum proseqnnntur,^^ (11. 8. 3. 4). 
 
 Spelman, ConcUia 11. 1-iO. •* Selden ad Fletain, c. 8 § 2. Spence 
 
 ^ And in 1254, Innocent iv. prohi- Eq. Jurisd. i. 131. 
 
 bited any Professors or Advocates of '' Yearbooks : 5 Edw. 11. f. 148.
 
 72 ROMAN LAW IN ENGLAND. 
 
 dem?" Devom, a counsel, answers: "The imperial law rests on 
 right, but we are in possession, and claim nothing through the 
 brother." And so in the Reports of Richard of Wmchedon, and 
 iu a MS. preserved in the Inner Temple, and cited by Selden, 
 the Pandects are referred to by Counsel and Commentators on 
 at least three recorded occasions \ 
 
 But during the 14th century the knowledge of Roman Law 
 began to wane. In 1347 Skipwith, whom Selden calls a cele-- 
 brated lawyer, dealing with a case of "inhibitionem novi operis" 
 says: "in ceux parols 'contra inhibitionem novi operis' mj ad 
 pas entendement" : to which the Judge answers; "Ce n'est que 
 un restitution en leur ley pourque a eel navoums regard''." And 
 there is very little trace of its influence on the pleadings of the 
 time. The Barons at Merton in 1235 had expressly refused to 
 adopt the rule of the Civil and Canon Law as to Legitimation 
 of natural children by subsequent marriage in the celebrated 
 words: "Kolumus leges Angliae mutare\" In the disputes in 
 1292 as to the succession of Scotland, the citation of the Im- 
 perial Law was expressly rejected*. A proclamation of Edward 
 II. contains the phrase : "eo quod regnum Angliae ah omni 
 siihjectione Imperiali sit liberrimum" ; but this, though cited by 
 Selden, seems rather to concern the authority in England of 
 nominees of the Emperor*. In the indictments of 1388, the 
 king referred the charges "to the judges, Serjeants, and other 
 sages of the law of the realm, ayid also to the sages of the civil 
 law": both classes of sages took the matter into consideration 
 and reported that "the appeal was not made according to the 
 requisitions of either law." Upon which the Lords of Parliament 
 resolved that the matter must be decided in Parliament and 
 by the law of Parliament "pour que ce royaume d'Engleterre 
 nestait devant ces heures, ne a Ventent du roy...et seignoirs du 
 parleinent unque ne serra rule ne gov erne par la ley civil^." 
 
 These scattered references show a period of popularity 
 almost amounting to enthusiasm, followed as might be expected 
 
 1 Selden, c. 8 § 3. * Selden, c. 9 § 2. 
 
 2 ibid., § o. Case of the Abbot of s 3 Rolls of Pari, 229— 2U, WRich. 
 Torre. Y. B. Mich. 22 Edw. iii. pi. 37. ii. Selden, c. 9 § 2. Stephen, Hist. 
 
 ' Selden, c. 9 § 2. Stubbs Hist. ii. Criin. L. i. 152. Coxe's Giiterhol; p. 
 52. 13 note.
 
 SUSPECTED AND REJECTED. 73 
 
 by a period of decline and neglect. They afford no ground for 
 the remark of Chief Justice Fortescue that some kings of 
 England "leges civiles ad Anrjliae regimen inducere et patrias 
 leges 7'epiidiare fuisse conafos^." The only king whose actions 
 even suggest such an assertion is Edward I., whose attempted 
 patronage of Accursius might be supposed to have such an aim, 
 and the whole tenor of his legislative history makes the 
 supposition absurd. 
 
 But this period of enthusiasm corresponds with that of the 
 production of the first systematic treatises on English Law; and, 
 if those treatises were affected by its popularity, the results 
 of Roman influence might survive through the centuries when 
 Roman law, without disguise, was suspected and even repudiated. 
 To the works of Glanvil and Bracton therefore we now turn. 
 
 1 Fortescue. De Laudibus c. 33. adFletam, c. 9 % 2. 
 Selden, Notes on Fortescue p. 40. Selden
 
 CHAPTER II. 
 
 ROMAN LATV IX GLANVIL. 
 
 The first sptematic Treatise on the Laws of England is a 
 work entitled, " Tradatus de Legib.is et Consuetudinibus Beani 
 AngUae\" and usually attributed to Eanulph de Glanvil, Chief 
 Justiciar during the reign of Henry II., and to a date between 
 the years 1180, and 11901 It has a definite and somewhat 
 limited scope, which its Preface states thus: "Leges autem 
 et jura regni scripto iiniversaliter concludi nostris tempo)'ibus 
 omnino quidem impossibile est, cum propter scribentium igno- 
 rantiam turn propter earum multitudiyiem confusam ; verum sunt 
 quaedam in curia generalia et frequentius usitata, quae sa^ipto 
 commendare non mihi ridetur pi-aesumtuosum" His materials 
 for the treatise are "Leges regni, et consuetudines de ratione 
 introductae et diu obtentae"; and he aims at constructing a 
 hand book of procedure in the Curia Kegis, ''very useful to 
 most persons, and highly necessary to assist the memo^y^" The 
 author is acquainted with the Civil and Canon Laws, and has 
 made some, though not a great, use of them. The Preface, com- 
 mencing "Regiam Potestatem", is modelled on the Prooemium, 
 "Imperatoriam inajestatem," to the Institutes of Justinian, which 
 indeed seems to have been a favourite subject for imitation or 
 
 1 Glanvil, translated by Beames, ascription to him, but tradition and 
 
 Lond. 1812. Bracton, Twiss, i. Pref. the evidently anthoritative position of 
 
 30 — 32. Giiterbock, pp. 31, 44, 48. the writer, point strongly to the chief 
 
 Spence, l 119 — 123. Foss, Judges of justiciaTj who arrived at that post in 
 
 England i. 180, 376. Beeves, i. 254. 1180, and was killed at Acre in ll'jO. 
 
 * There is no positive evidence for ^ Beames' Translation.
 
 ROMAN LAW IN GLANVIL. 75 
 
 plagiarism. Tlie "Regiam Majestatem" , that Scottish source 
 of legal coTitroversy\ has in all probability copied it through 
 Glanvil ; Bracton imitates it, probably directly ; and Fleta 
 has copied it. 
 
 Glanvil in some places expressly points out where the 
 English Law differs from the Civil or Canon Law. Book YII. 
 begins: "In alia enim acceptione accijntur Dos secundum Leges 
 Romanas," and its 15th chapter points out the difference of Law 
 as to Legitimation: "et quidem licet secundum canones et Leges 
 Romanas talis filius sit legitimus haeres, tamen secundum jus et 
 consuetudinem Regni nullo modo &c." But such differences are 
 not always noted, either because the writer was not aware of 
 them, or because the competing rule had not been so put 
 forward, as to make a statement of the distinction necessary. 
 For instance, where the rule is laid down that the custody of 
 the person shall never be in those who would succeed to the 
 inheritance, no notice is taken of the contrary Roman rule, "ithi 
 successionis est emolumentum ibi et onus tutelae esse debet^." 
 
 The only part of the work which suggests Roman influence 
 is Book X., which deals with Contract Law. Some terminology 
 is Roman: e.g. crimen falsi^, (I. 2: XIV. 7); crimen quod in legibus 
 dicitur crimen laesa-e majestatis (I. 2): dominium (VII. 1); the 
 terminology of Contract Law, mutuuni, commodatum, locatio, 
 conductio, emptio-venditio, arrha, (III. 1 : X. imssimy. The 
 Tenth Book has however a distinctly Roman appearance, so 
 much so, that Bishop Nicholson has accused Glanvil of "aping 
 the Roman code^" It follows the Roman divisions; "aut enim 
 debet ur ei quid ex causa mutui aut ex causa venditionis, aut ex 
 commodato, aut ex locato, aut ex deposito^." Mutuum is defined, 
 conformably with Roman law, as dealing with things "quae 
 consistunt in numero vel pondere vel mensura''" but Glanvil 
 
 1 (1) as to whether it is original, or substance, Stephen i. 20, m. 378. 
 
 derived from Glanvil. * See also Bk. 12. c. 21, for possible 
 
 (2) as to whether it is part of the influence of the rules as to pluris 
 
 Scotch law. pctitio. 
 
 - Glan. VII. 11. Just. Inst. i. 17, pr. ^ Beanies, p. 246, note. 
 
 and cf. Stephen, Hist. C. L. iii. 130, on « Gi. x. 3. 
 
 Glan. X. 13. ^ Just., Imi. in. 14 pr. 
 
 ^ in this case there is similarity in
 
 76 
 
 ROMAN LAW IX GLANVIL. 
 
 immediately plunges into the further security of datio plegiorum, 
 which shows no traces of the influence of the laws as to fide jussores. 
 In c. 6 the author breaks away from his definition of mutuum, and 
 speaks of lands and tenements as lent as a mutuum. Commodatum 
 is defined as "iit si rem meam tibi gratis cmnmodem ad usuin 
 inde percipiendum in servitio tuor but if the thing is lost or 
 destroyed. Glanvil requires the borrower to pay a reasonable 
 price, while the Roman law only did so if the borrower had not 
 used exacta diligentia, except in the case of a 7iiutuum\ So 
 under Emptio-Venditio\ whereas Roman law completed the 
 purchase as soon as the price was fixed, Glanvil required also 
 either delivery or payment in whole or in part, or earnest, arrha. 
 Where an earnest had been given, the buyer could recede by 
 forfeiting it, but, as to the seller, "Quaero", said Glanvil, 
 " utnun sine poena id facere possit" By the time of Bracton 
 the Roman rule of rescission on forfeiture of twice the earnest 
 had been adopted'. An express warranty of quality is apparently 
 necessaiy to support rescission, whereas the Roman law implied 
 such a warranty in all contracts. Locatio-condiictio is defined : 
 " lit cum quis locat rem suam alii usque ad certum termimun, 
 certa inveniente mercede*," of which the certus terminus has no 
 place in Roman law ; and the remaining chapters are filled with 
 purely English procedure. But Glanvil reminds his readers: 
 " Fraedictos vero contractus qui ex privatorum consensu fiunt, 
 hreviter transigimus, quia privatas conventiones non solet Curia 
 domini Regis tueri, et quidem de talibus contractihus, qui quad 
 private quaedam conventiones censeri possunt, se non intro- 
 mittit Curia Domini Regis\" For all contracts which could 
 not be proved by evidence admissible in the King's Court (i.e. 
 the duel, writing, or transaction witnesses), were matters for the 
 ecclesiastical courts^ Hence contracts neither in writing nor 
 involving the transfer of property did not come before the 
 Courts of the King. 
 
 ^ Gl. X. 13, cf. Just. Inst. in. 14, 2. conventiones non fuerint servatae, 
 
 2 Gl. X. 14. Just. Inst. in. 23, pr. Curia Domini Regis se inde non intro- 
 
 ••* Br. f. 62, a. See post, p. 93. viittit." See post, pp. 100, 101. 
 
 ■» Gl. X. 18. ^ Holmes, Common Law, p. 265. 
 5 See alpo x. 8. " ideo si privatae
 
 ON CONTRACTS. 77 
 
 This Book on Contracts ilieu owes very little except 
 terminology to the Koman law ; it exhibits large omissions and 
 frequent variances, and even the terms taken undergo alterations 
 of meaning. Its Roman appearance may have been derived 
 from the clerical judges of the ecclesiastical courts, which 
 punished breaches of contract as "laesio vel transgressio fidei\" 
 
 Our conclusion therefore is that the work of Glanvil, though 
 it bears" traces ofTiis^cquaintance with the Roman law, and 
 adopts in some few cases its terminology, is otherwise entirely 
 free from Roman influence, and shows the almost complete 
 purity of the English Law at the end of the 12th century from 
 Roman elements. 
 
 ^ Giiterbock, p. 61, note.
 
 CHAPTER III. 
 
 EOMAN LAW IN BRACTON, 
 
 The work of Bi acton ^: "De Legihus et Consuetudinihus 
 Angliae", calls for far more careful attention. The writer was 
 evidently well acquainted with the laws of Rome, and in one 
 way or another Roman learning has supplied no small part 
 of his work, but the extent and nature of its influence is a 
 matter of great controversy. While Mr Reeves is of opinion 
 that the Roman law is only used by Bracton as an illustration 
 and ornament, not adduced as an authority, and doubts whether 
 the Roman parts of his work if put together would fill three 
 whole pages of his book'^; M. Houard^ has been so struck with 
 his Romanizing tendencies as to omit him entirely from his 
 collection of Anglo-Norman legal sources, as a corrupter of the 
 law of England. Sir Henry Maine speaks of " the plagiarisms 
 of Bracton," and considers it " one of the most hopeless enigmas 
 in the history of jurisprudence that an English writer of the 
 time of Henry III. should have been able to put off on his 
 countrymen as a compendium of pure English law, a treatise of 
 which the entire form and a third of the contents were directly 
 borrowed from the Corpus Juris*." Biener holds that Bracton 
 allows no legislative authority to the Roman law^; Spence, 
 
 1 Bracton, ed. Sir T. Twiss. 6 vols. Law Quarterly Review, April, 1885. 
 Rolls Series. Bracton and Ms relation to ^ Finl. Reeves, i. 529. 
 the Roman Law : by Prof. Cari Giiter- 3 Traites sur les Coutumes Anglo- 
 hock, trans, by Coxe, Philadelphia, Normandes. Paris, 1776. 
 1866. Foss, Judges of England, ii. * Ancient Law, p. 82. 
 249—252. Long's Discourses, LonA. ^ DasEnglische GescJnvornengericht, 
 1847, pp. 93—107. cited by Giiterbock, p. 56. 
 
 Text of Bracton, by Prof . Vinogradoff,
 
 BRACTON AND HIS WORK. ^79 
 
 that he reproduced Roman incorporations which were good and 
 valid English law^ ; while Prof. Guterbock is of opinion that 
 Bracton has in general reproduced only those Roman elements, 
 which were actually received in England as valid law, though 
 in some instances he has made additions to them^ Where 
 authorities differ so widely, a decided answer seems hardly 
 possible. 
 
 The work itself professes to deal with "facta et casus qui 
 quotidie emergunt et eveniunt in regno Angliae, ut sciatur quae 
 competat actio, et quod breve'"; its avowed object is to teach, 
 " qualiter et quo ot^dine lites et placita decidantur secundum leges 
 et consuetudines Anglicanas" ; and this task is undertaken "ad 
 Vetera judicia justorum perscrutanda*," by examining diligently 
 the ancient judgments of the wise. 
 
 It is now accepted that the author is Henricus de Bracton 
 (or Bratton), who appears constantly as a justiciar between 1246 
 and 1267. He was an ecclesiastic, Archdeacon of Barnstaple, 
 and afterwards Chancellor of Exeter Cathedral. The date of 
 his work, or of the greater part of it (for, as its second title, 
 in varies tractatus distincti, denotes, the several tracts may 
 easily have been composed at different times), is probably 
 between the years 1256-1 259 ^ Since Glanvil's time the 
 new procedure had become more settled, and the eyres of the 
 justices itinerant had provided ample precedents, of which 
 Bracton avails himself to the full. He cites 378 original writs 
 and 484 decided cases®, all of the reign of Henry III., with one 
 exception in the reign of John. The cases cited are usually 
 those tried before Martin de Pateshull or William de Ralegfh^. 
 The former occupied a prominent position among the justiciarii 
 at the end of the reign of John, and beginning of the reign of 
 Henry III. One of the justiciars accompanying him on circuit 
 prays the Court at Westminster for relief, " for the said Martin 
 is strong, and in his labours so sedulous and practised that all his 
 
 1 Spence, i, 124. Twiss, i. Pref. 16—25, Guterbock, p. 
 
 2 Gut. p. 57. 25. 
 
 ^ Br. f. I. b. ® Gilt., Coxe's note, p. 45. 
 
 * f. I. a. 7 Twiss, I. Pref. 28, ii. Pref. 40, ni. 
 
 ^ For a discussion of the date see Pref. 27.
 
 80 DIVISIONS OF BRACTON S WORK. 
 
 associates, especially W. de Ralegh and myself, are overpowered 
 by his labour, for he works every day from sunrise to night \" 
 Ralegh was also a prominent ecclesiastic, and a judge from 1229 
 to 1239 when he became Bishop of Norwich. In 1258^ Henry 
 de Bracton was ordered to return the Rolls of M. de Pateshull 
 and W. de Radley, which he had in use, probably for this work ; 
 and from these two justiciars Bracton has garnered his store of 
 precedents. He cites a few statutes^ especially the Statute of 
 Merton. There seem only a few passages in his work, which 
 suffsest an immediate use of Glanvil*, and in some of these 
 Bracton is far more diffuse and detailed. 
 
 The work is divided into five books'' ; the first two divided 
 into chapters and paragraphs, the last three into 15 treatises 
 on procedure. The work thus falls into two parts. 
 
 I. — Books I., II. and III. to folic 104a ; which contain the 
 substantive law. This part follows the Justinianean division of 
 jus ad personas, vel ad res, vel ad actiones pertinens^. 
 
 II. The remainder of the work is composed of tracts 
 on criminal law and legal procedure, which however leave the 
 treatise unfinished. In this part, owing to the peculiarly 
 English character of the procedure, the Roman division is 
 followed less closely, but we have the fundamental division into 
 Actiones Reales, Personales, vel Mixtae and the subdivision of 
 Actiones Reales into Possessoriae vel Petitoriae. 
 
 There is ample evidence of Bracton's intimate acquaintance 
 with the civil and canon law. He expressly cites the Digest 
 twelve times, and the Code ten tiniest The Novels are not 
 referred to, and the Institutes only once, and then in conjunction 
 with a source with which Bracton was more familiar : " ut in In- 
 stitutis plenius tnveniri potest et in Summa Azonis^." But a large 
 
 1 Twiss, 11. Pref. 42. » For abstract, see Giit. pp. 35—38. 
 
 2 Madox, Hisf. of Exchequer ii. 257. Long, pp. 93 — 94. Reeves, i. 530. 
 
 3 Br. ff. 227, 416, etc. Gut. p. 44, « Thus: Jus ad Personas, Lib. i. c. 
 « cf. Gl. VII. 5, with Br. ii. c. 26. Gl. 6—11. Jus ad Res, Lib. i. c. 12, Lib. 
 
 X. 14, -with Br. ii. c. 27. Giit. p. 44. ii. Jus ad actiones, Lib, iii. tract, i, 
 
 I should add to these, the passage on c. 1 — 4. 
 
 treason. Gl. xiv. 1. Br. f. 118 b: '' Giit. p. 50, 51, note. 
 
 and the definition of murder, Gl. xiv. * Br. f. 10. 
 
 3. Br. f. 134, b.
 
 AZO. 81 
 
 number of passages from the Roman law are incorporated 
 in the text, without any acknowledgement of their origin. 
 Most of Bracton's Roman materials are derived indirectly from 
 the Corpus Juris through the Summa Azonis, the summary of 
 the Roman law compiled by Azo, the celebrated Glossator of 
 Bologna, who died about 1230\ This work was in such high 
 repute in Italy as to give rise to the popular proverb " Chi non 
 ha Azo, non vada al Palazzo'' or will not rise to the judicial 
 office. With this Summa Bracton was well acquainted, and 
 where in his 1st and 2nd Books he follows the order of the 
 Institutes, he usually transcribes the corresponding passage from 
 Azo. His knowledge of any other legal writers seems doubtful^ 
 
 The Canon Law is cited in two or three places, apparently 
 from the Decretals of Gratian and incorporated in others ; Bracton 
 also cites the provisions of the Lateran Council of 1219. The 
 Canon Law has influenced his account of the Criminal Law^ 
 
 A statement by Duck that Bracton taught Civil Law at 
 Oxford, though not improbable has no direct evidence in support 
 of it*. At the same time, the formalism of parts of the first 
 three Books, and the closeness with which they follow Azo, 
 suggest that they are founded on lectures or readings on the 
 subject. 
 
 Bracton s First Booh : On Persons. 
 
 Bracton's first book is misnamed " Pe Reruni Divisioney 
 This title only applies to its last chapter, which should in 
 strictness form the first chapter of Book II. A general intro- 
 duction (cc. 1 — 5), and chapters " de personis et earuni statu " 
 (cc. 6 — 11), compose the rest of the book. I have carefully 
 compared it with the corresponding portions of the Summa of 
 Azo^ and with the Justinianean sources, and I have no hesitation 
 
 1 Twiss, Pref. i. 28, 34, Pref. ii. 80, 55. Twiss, vi. Pref. 53. 
 
 Gilt. p. 51,— following Eschbach, Mac- » Giit. p. 64. Twiss, i. Pref. 38, 39. 
 
 keldey gives 1220. Stephen, Hist. Crim. Law iii. 
 
 " Giiterbock finds no trace of the * De usu n, 8, 3, 9, citing Bale, 
 
 influence of Vacarius, and only one Scriptor. Britan. cent. 8. 
 
 possible quotation from Placentmus ; ^ Summa Azonis, Venice, 1596. Bk. 
 
 TwissallegesonecitationfromBw/r7a;'«s, i. and ii. tit. 1, of Azo's version of the 
 
 but the reading is doubtful. Giit. p. Institutes. 
 
 s. 6
 
 82 BRACTONS METHOD 
 
 in saying that about two thirds of it are taken all but verbatim 
 from Azo. Where the Institutes are cited indirectly, which fre- 
 quently happens, they are quoted in the form given to them by 
 Azo. In only two places does Bracton break away for more than 
 three or four lines of his work from his model \ On the other 
 hand, while so much of Bracton is derived from Azo, large 
 portions of Azo, such as the titles on adoptio, capitis diinimitio, 
 and several on tutela and ciira, have been omitted as inapplicable 
 to English Law. 
 
 A careful study of Bracton's variations from the Summa 
 suggests his method of procedure. He had to reduce to form a 
 chaotic mass of English Law and custom, " omne jus de quo 
 tractare proposuiinus...secnnduvi leges et consuetudines Angli- 
 canas.'" His object was to reduce this confusion to such order 
 that judgment by precedent or according to rule might be 
 possible : — " a similibus procedere ad similia^." In the Roman 
 Law he had ready to his hand an admirable form. He followed 
 Azo closely, omitting such parts as were inconsistent with the 
 existing English Law ; varying those parts which might by 
 modification be made consistent ; and adding illustrations of 
 his own from English sources, where the Roman ones did not 
 strike him as apt. But where there was no English Law on 
 the matter treated of he adopted Azo almost exactly, not from 
 any desire to impose Roman Law on England, but because he 
 thus gave completeness to his exposition, while, as the matter 
 had never arisen in English Law, he perhaps did not consider it 
 of great importance. We can thus explain the constant appeai'- 
 ance in the extracts from Azo of Roman terms, having no English 
 counterpart, which Bracton has not apparently thought it worth 
 while to alter^ To read the two works side by side is the best 
 
 1 c. 8, on feudal dignities, c. 10, adoptio, the Roman names of servitu- 
 on serfs and serfdom, in the middle of des, haereditas jacem, emancipatio, 
 which the Roman mark of tame ani- res sacrae, religiosae, sanctae, mobiles 
 mals, having " animum et consuetudi- et imfnohiles. But it is difficult to ex- 
 7iem revertendi, " is applied to slaves. plain his adoption verhatim of Azo on 
 
 2 Bk. I. c. 6. f. 4, b. the sacred nature of walls, and the 
 '• 1> b- cai^ital offences committed by those 
 
 * e.g. Praetor enim jits dicitur red- who get over them. Br. f. 8. Azo, p. 
 dere, (Azo, p. 1048, Br. f. 3), usus, usus- 1063. Sub, p. 127. 
 fructus, patria potestas, manumissio,
 
 ILLUSTRATED. 83 
 
 proof of the correctness of tbis theory of his method and it would 
 be difficult without great tediousness to afford equally forcible 
 evidence; but a few striking examples of each class of variation 
 may be supplied. 
 
 I. Cases ivhere Bracton has omitted passages of Azo as incon- 
 sistent with English Law. Azo defines the seashore as public 
 up to the rise of the highest winter tide : Bracton, following 
 him verbatim before and after this passage, omits it as con- 
 flicting with the claim of the Crown to the shore between high 
 and low-water mark\ Similarly, Bracton omits the rules as to 
 the rights of the finder of a thesaurus, as conflicting with the 
 Crown-rights to Treasure Trove ^. And these instances are the 
 more striking because immediately before and after the omitted 
 passages Bracton is following Azo very closely'. 
 
 II. Cases where Bracton has modified passages from Azo 
 into consistence with English Laiu. This is especially seen in 
 the application of the maxim Partus sequitur ventrem*. This 
 was only the English rule in cases of illegitimacy ; as Bracton 
 says, "sequitur conditionem matris quasi vulgo conceptus." If 
 either of lawfully married parents was constitutus in villenagio, 
 the child w^as a serf, but lawfully married parents, not in 
 villeinage, made the child free, though the mother was bom a 
 serf^ Bracton can hardly fail to have been aware of this 
 difference from the Roman Law, and Littleton, who followed 
 him, certainly was as he writes, " et cest contrarie a la ley 
 civille car la est dit, partus sequitur ventrem^." A similar 
 change is seen in Bracton's use of the two terms, statu liber and 
 adscriptitius glebae. The statu liber in Roman Law is a slave 
 "qui statutam et destinatam in tempus vel conditionem libertatem 
 
 1 Br. f. 8. Azo, p. 1061. father, is shown to be too wide by 
 
 2 Br. f. 8. Azo, p. 1063. Bracton's "Item dicitur servtis natione, 
 * See also Azo, p. 1055. In potestate de libera genitus, qui se copulavit villa- 
 
 aliena sunt servi, item filii. Bracton nae in villenagio constitutae sive copula 
 
 (i.9,h)om.\ts item filii. He also omits niaritalis inteiTenerit." f. 4. 
 
 Azo's passage (p. 1063) as to the sacred- « Littleton, Tenures % 187. As to 
 
 ness of legati. the genuineness of this passage see the 
 
 •* Br. f. 5. Azo, p. 1052. note to this section in Tomlius' edition, 
 
 ^ Gilterbock's statement (p. 81), that Lend. 1841. 
 in marriage the offspring followed the 
 
 (3—2
 
 84 BRACTON 
 
 habet^" ; being conditionally freed by will. Bracton, citing the 
 phrase from Azo, uses it of a slave who has deserted his master 
 and whom his master does not claim within a year'*. 80 the 
 adscriptitiiis glehae in Roman Law was a colonus bound to the 
 land, who passed with its sale, and had no rights of property 
 against his master I But Bracton uses the term of a freeman 
 holding in villeinage who cannot be dispossessed of his land by 
 his lord so long as he pays the customary dues. Again, Azo, 
 speaking of the duration of patria potestas, says, " Item morte 
 civili dissolvatur, ut cum jyater damnatur in metalliim vel in opus 
 metalli vel deportatur in insulam,'" which Bracton corrects into — 
 " item morte civili lit si pater damnetur propter aliquam feloniar)i 
 commissam'^." 
 
 III. Cases where Bracton illvstrates his Roman principles 
 hy English examples. Jus possessionis^ is explained by a feud, 
 the subject of an assize mort d'ancester, and a freehold held for 
 life. Azo's Roman illustrations of the maxim " conditio femin- 
 arum est deterior in midtis quani masculorum^" are omitted. 
 His explanation of emancipatio is accompanied in Bracton by 
 the remark "secundum quod antiquitus fieri solef" : and the 
 passage on tutela is expanded by references to the wardship of 
 feudal lords^. Cemeteries are introduced as an illustration of 
 res sacrae and the statement that they cease to be sacred if taken 
 by the enemy is omitted ^ And there is throughout the work a 
 revision on minor j)oints, which shows that Bracton has copied 
 with intelligence. Thus he only reproduces three of Azo's six 
 meanings of "jus civile^'^," omitting references to the Twelve 
 
 1 Dig. 40, 7, 1. •* Azo, p. 1057. Br. f. 6, b. Cf. also 
 
 2 Br.ff. 4, b, 7, 197, b. Est enim statu Azo, p. 1077 with Bracton, f. 6, a, on 
 liher qui personamhabet standi in judicio intolerabilis injuria, and see Vinogra- 
 quasi liber, licet non sit. cf. Azo, 1051, doff, 197. 
 
 1052. Bracton also introduces a new ^ f. 3. But see on this passage Vino- 
 condition of statu servi, analogous to gradoff, 196. See also on ingenui (f. 
 liber homo bona fide serviens. 5). 
 
 3 Cod. xi. 47. Br. f. 7. Dicuntur ^ Azo, p. 1054. Br. f. 5. 
 gJebae ascripticii, quia tali gaudent '' Azo, p. 1057. Br. f. 6, b. 
 privilegio, quod a gleba amoveri non ^ i. 6, b. 
 
 poterunt, qnamdiu solvere possunt debi- " f. 8. Azo, p. 1062. 
 
 tas pensioner, cf. Azo, 1051. i" f. 4. Azo, p. 1050.
 
 AND AZO. 85 
 
 Tables and the Resjjonsa Prudentiim, and the statement that 
 "jus civile" without other words refers to the Law of 
 Rome. 
 
 To turn to positive results Bracton has taken the definitions 
 of justitia, jus, juHsprudentia, aequitas, and the tria praecepta 
 juris, from the Institutes as represented in Azo, together with 
 his distinction between human and divine justice and much 
 connecting matter\ In his fifth chapter' he has the definitions 
 of jus naturae, jus gentium, jus civile, and the division into jus 
 privatum and jus publicum, relating ad statuni reipuhlicae^ , and 
 dealing with the subject matter of 5ac?'a, sacer dotes, magistratus. 
 The sixth chapter* contains the Institutional divisions into jus 
 ad personas, vel ad res, vel ad actiones pertinens, and of homines 
 into liheri and servi ; Azo's difficulties as to adscriptitii and 
 statu liberi; the definitions of liberty and slavery, taken 
 through Azo, from the Institutes ; the maxim partus sequitur 
 ventrem ; and parts of Azo on ingenui, especially a passage on 
 the effect of servitude during pregnancy ^ In his seventh 
 chapter he follows Azo on lihertini and on monsters, even in 
 his quaint illustrations®. The eighth chapter, on the ranks of 
 persons, is of Bracton's own composition. The ninth contains 
 the Institutional division, homines sui aut alieni juris, with 
 Azo's addition "aut duhii''." Azo's account oi postliminium is 
 taken almost verbatim, with one curious exception^ The 
 maxims, " quidquid per servum juste acquiritur, id domino 
 acquiritur," and "pater est quern nuptiae demonstrant," are both 
 adopted. The tenth chapter expands Azo on guardianship 
 with reference to feudal wardship ; and the whole of this 
 chapter, which deals with a subject on which English materials 
 
 1 Br. I. c. 4. Azo, p. 1047. the same arguments in the same words, 
 
 2 Azo, p. 1048. -writes it is possible (f. 6). This is pro- 
 
 3 Azo has ad statiim rei Romanae. bably a transcriber's or printer's eiTor, 
 
 4 Azo, p. 1051. though Sir T. Twiss takes no notice of 
 
 5 Azo, 1052. Just. 7HS^ I. 4, pr. the incongruity. ci.'S,v.i.\.S,h,valent, 
 8 Azo, p. 1053, 4. vfiihDig. 39, 5, 15, iionvalent. Azo (f. 
 7 Azo, p. 1055. Ins. r. 8. llOii) aestbiiare jwterit vfith.Bv.i.d8,h, 
 s Where Azo says (p. 1055) it is im- aestimare non poterit. And see sub j). 
 
 possible that a prisoner should have a 87, note 8 ; p. 101, note 4. 
 son ill potestate sua, Bracton, using
 
 8g BRACTON S 
 
 are at hand, shows more originality. The twelfth chapter, 
 De Rerum Divisione, follows Azo very closely: it adopts the 
 Roman divisions of Res; in patrimonio nostra vel extra; corpora- 
 les vel incorporales : mobiles vel immohiles; communes, puhlicae, 
 universitatis, nullius, singulorum ; and copies Azo's illustrations 
 all but word for word\ 
 
 In fact no mere recital of similar subjects wall show the 
 identity of order and language which proves convincingly that, 
 during the greater part of this first book, Bracton has simply 
 copied the Summa Azonis. Whether in doing so he has 
 suppressed any English Law at variance with his text, or has 
 added any new law to that which he found existing, or again 
 whether the matter thus incorporated has survived in English 
 Law are questions we must reserve. And, after the examples 
 cited by Prof. Vinogradoff, we must wait for a trustworthy ex- 
 amination of the MSS. before we can decide whether some of 
 the modifications are not really glosses by English lawyers on 
 Bracton's Roman Text. 
 
 Bracton s Second Booh. 
 
 The first three chapters of Book IL De acquirendo rerum 
 dominium are taken almost literally from Azo^ They deal with 
 methods of acquisition jure gentium on purely Roman lines; but 
 Bracton's treatment shows that he is only applying Roman rules 
 where there is no express English rule on the subject. In 
 speaking of acquisition of wild animals by capture, he adds to the 
 Roman rule the qualification, " nisi consuetude vel privilegium se 
 habeat in contrarium," and again " et haec vera sunt nisi ali- 
 quando de consuetudine in quibusdam partibus aliudfiaf." Again, 
 as to insulae in mari natae*, Bracton adds " nisi consuetudo se 
 habeat in contrarium projjter fisci privilegium": and with 
 respect to islands in a public river, he adds to Azo's conceditur 
 
 1 Azo, Book II. on Institutes, Title 1. » Br. ff. 8, b, 9. Azo, p. 1064. 
 
 2 Br. ff. 8, b.— 11. Azo, pp. 1063— ^ Br. f. 9. Azo, p. 1064. 
 1072.
 
 SECOXD BOOK. 87 
 
 occupanti, liis own English comment " et per consequens regi 
 propter suuni privilegium^ !' 
 
 Occupatio, Alliivio, Accef^sio, Specificatio and Confusio are 
 all treated almost in the words of Azo, though Bracton omits 
 most of the Roman illustrations of his model^ and adds 
 English ones^. On minor points he corrects Azo ; thus he 
 omits the rules as to the acquisition of thesaurus, as inconsistent 
 with English Law ; he changes the diffi,cilis per'secutio of a 
 hunted animal, which destroys property in the pursuer, to 
 impossibilis persecutio^ ; he inserts the Roman provisions as to 
 agri limitati, but omits the rule as to their capture by the 
 enemy, as improbable in England^ In several places he abridges 
 his models ; he gives the rule as to accessio literarum, and states 
 frankly ut in Institutis p)lenius iiiveniri potest et in sunima 
 Azonis^ ; Azo, in fact, gives some 50 lines of illustration of 
 the rule, which Bracton omits. In treating of accession of 
 buildings he adopts the maxim " omne quod inaedificatur solo 
 cedit" but abbreviates and anglicizes his model. His copying 
 results in two curious slips ; he quotes Azo that confusio differs 
 from mixtio in three respects, but he only gives two of them^ 
 and by the omission of a negative in an attempt to combine two 
 sentences in one, he entirely misrepresents Azo^ His fourth 
 chapter^ which treats donation as a means of acquisition jure 
 civili, instead of jure naturali, as in Azo, copies almost word for 
 word Azo's section on res corporales sen incorporales, and on 
 servitudes. Bat with this chapter continuous copying of Azo 
 
 ^Br. f. 9,b. Azo, p. 1065. Compare authority for translating pavones, 
 
 also Azo, 1063, per occupationem eorum seafowl, a r/cnus not usually supposed 
 
 quae non sunt in bonis aliciijus, ut sunt to include peacocks. Tw. i. 67. 
 
 ferae bestiae, with Bractou's insertion ^ Azo, p. 1061:. Ins. ii. 1, 12. Br. 
 
 after alicujus (f. 8, h) of the clause "t'f f. 8, b. 
 
 quae nunc sunt ipsius regis de jure civili, ^ Br. f. 9, b. Azo, p. 1065. 
 
 et non commnnia tit oliyn." These ex- ^ Br. f. 10. Azo, p. 1067. 
 
 tracts look suspiciously like glosses, ^ Br. f. 10, b. Azo, p. 1069. Brac- 
 
 which have wandered into the text. ton, or Twiss' version, omits Azo's 
 
 2 e.g. de glande legenda, tigno in- item confusa sunt communia omnia etiam 
 
 juncto, actio de dolo, doli exceptionem. sine voluntate dominorum, sed mista 
 
 Azo, p. 1064. demum cum voluntate. 
 
 ^Br. f. 8, b. He adds C2/(7?ii to Azo's » Ibid. Si autem [non) separari. cf. 
 
 list of tamed wild animals. It would p. 85 supra, note 8. 
 
 be interesting to know Sir T. Twiss' " Br. f. 10, b. Azo, 1070—1072.
 
 88 BRACTON ON 
 
 ceases : and up to this point we infer that, while Bracton has 
 adopted Roman Law bodily, he has yet modified or omitted 
 whatever portions are actually inconsistent with existing English 
 Law. 
 
 The 5th chapter shows great variations. The definition of 
 donatio ..." quaedmn institutio quae ex mera liberalitate et volun- 
 tate, nullo jure cogente, procedit ut rem transferat ad alium\" 
 corresponds to Azo's "qiiaedani mera liberalitas quae, nullo 
 cogente, conceditur." But by its interpretation it is made to 
 cover a much wider ground than the Roman donatio^. The 
 feudal relation was conceived as one of good faith between lord 
 and vassal, and might therefore be said to rest on "pure liberality" 
 on the part of the lord. Hence any donation of land, in return 
 for services or otherwise, by alienation or free gift, by the rules of 
 the feudal system, comes within Bracton's donatio. ■ His next 
 21 chapters^ treat this subject with a rambling show of precision, 
 and also contain a good deal of Bracton's law as to Possession, 
 with chapters on usucapio and servitudes.. Though the whole 
 form of the discussion is Roman*, I cannot trace any sustained 
 following of Roman authorities in these chapters, which un- 
 doubtedly contain a great mass of purely English law. 
 
 But the general tone of the discussion shows continual 
 Roman influence ; the Justinianean sources are expressly cited 
 twice^; the triple division of donationes mortis causa is taken from 
 Ulpian®; while some passages are certainly taken from Azo^ 
 The illustrations also are Roman : "Do tibi digestum id des mihi 
 codicem^": "Do si coeluni digito tetigeris^ — si Titius consul factus 
 fuerif — si navis venerit ex Asia^." The four innominate contracts 
 are set out in full. Bracton also expressly notes the agreement 
 of the English and Roman laws as to the effect of felony on 
 
 1 Br. f. 11. Azo, p. 876. Cod. vni. ^ gp. f. 12^ b, from Digest de Dona- 
 
 De Donationibus. tionibus 39, 5, 15. Cf. also, f. 30, b. Br. 
 
 " Giiterbock, p. 109. f. 16, b, from Codex 11. 3. 13. Depactis. 
 
 3 Br. ff. 11—60. 6 Br. f. 60. Dig. 39, 6, 2. 
 
 * e.g. quid sit donatio, et qiialiter "> Quid sit jMssessio. Cf. Azo, p. 740. 
 
 dividatur, quis donare possit, et qiiis Cod. vn. with Br. f. 38, b, and Azo, p. 
 
 nan. Item quae res possit donari, et 1070 — 1 with Br. f. 41, b. 
 
 quae non, et cui dari possit, et cui non. » f. 19. 
 
 Ttem qualiter acquiratur posscssio. Br. ^ ff. 19, 47. 
 f. 11.
 
 POSSESSION. 89 
 
 donations, in the words "convenit lex cum consuetudine Angli- 
 cana^'\ The discussions, ''Per quas personas nobis acquiratur 
 Possessio^" (which treats of a servus communis, servus alienus, 
 procurator &c.),aud " Quihiis modis amittitur Possessio^ " suggest 
 the influence of the Digest and the Suriima. 
 
 Bracton's doctrine of Possession, while curiously un-Roman 
 on some points, has been derived in the main from civilian 
 sources. We need not consider how far it truly represents 
 the law of England till we come to Lord Holt's celebrated 
 judgement in Coggs v. Bernard, but may content ourselves 
 with pointing out briefly the salient Roman features in Bracton's 
 exposition*. 
 
 He defines 2JOSsessio, in the words of Azo, as " corporalis 
 rei detentio, id est corporis et animi cum juris adminiculo con- 
 currente"; with Azo he divides it into civilis, quae animo tantum 
 retinetur, and naturalis, quae corpore tantum retinetur^. It 
 must be either acquired, or lost, animo et corpore. But while 
 Azo does not allow civil and natural possession to exist in the 
 same person at the same tmie, Bracton speaks of it as possible. 
 Possession, according to him, was not lost unless both elements, 
 corpus and animus, were gone, a doctrine directly contrary to 
 the Roman rule", (which however gave a very lenient interpre- 
 tation to loss of corporal possession). But he adds a curious 
 variation, that possession might be retained ''solo corpore sine 
 animo, ut post mortem alicujus donee corpus efferatur ad sepul- 
 turam", where possession was by the dead body I 
 
 Animus and corpus are both treated on Roman lines^; 
 traditio, as a means of acquisition corpore, is defined as "in 
 
 1 Bracton misquotes the Roman Gilt. 112. 
 
 Law, reading valent, for non valent. ^ Br. f. 43, b. 
 
 The Digest reads ''Post contractum ^ ff. 45 b, 51. 
 
 capitale crimen donationes factae non ^ Bracton 11. c. 17—22. Guterbock, 
 
 valent nisi condemnatio secuta s/i"; pp. 90— 100, 109— 117. Twiss, i. Pref. 
 
 but Mommsen suggests the reading 42 et seq. Holmes, Common Law, 164 
 
 reti'o injirmantur enim, si condemnatio — 246. 
 
 secuta sit, which would agree in sense ^ Br. f. 38, b. Azo, f. 740. 
 
 with Bracton's "post contractum crimen ® L>ig. 41, 2, 44, 2. 
 
 donationesfactaevalentnisicondemnatio '' Br. f. 41, b. 
 
 secuta sit:' cf. Selden, Fleta, m. 1. ** Br. f. 38, b. 41, b. ol. 
 Br. f. 12 b, 30 b, 129. Dig. 39, 5, 15.
 
 90 DONATION. 
 
 possessionem inductio de re corjjorali ", and Bracton insists on 
 the necessity for " vacua possessio ", as a pre-existing requisite. 
 This, though going beyond the Justinianean sources, was at 
 the time the prevalent civilian view'. Several passages from 
 the Digest De acquirenda vel amittenda possessione are cited on 
 the acquisition of possession^ On its loss we have already 
 noticed Bracton's departure from the Roman sources. His 
 views on Quasi Possessio of liberties, servitudes, and other 
 incorporeal rights are obscure, but more akin to the opinions of 
 the Canonists than to those of Bologna'. A scale of degrees of 
 possession in right is taken in its terminology from Azo*. 
 
 Bracton has borrowed from the Roman law many of his 
 divisions of donatio, e.g. inter vivos, mortis causa, simplex, vel 
 conditionalis, vel suh modo, and under the latter head, conditiones; 
 potestivae, casuales, impossihiles, ex insidiis fortimae, suspensive 
 and resolutory. The donatio requires for its validity, mutuus 
 consensus et voluntas, and the hindrances to mutual consent, 
 error', metus, vis, are treated by him in accordance with Roman 
 sources^ 
 
 Donatio, as stated by GlanviP, was perfected by traditio, 
 until which it remained nuda promissio. Bracton supports this 
 by the Roman maxim, " traditionibus et usucapionihus rerum 
 dominia transferuntur." The nature of this traditio is plainly 
 Roman' ; for symbolical tradition, tradition of lands, traditio 
 hrevi manu, and the necessity of justa causa, are treated in the 
 spirit and nearly in the words of the Digest. 
 
 A strikinsf case of Roman influence is to be seen in the 
 prohibition of donations from husband to wife during cover- 
 ture I Such gifts were valid during Saxon times, and Glanvil 
 
 1 Gut. p. 94. 10 ; 45, 1, 4 ; 41, 1, 36. 
 
 2 ef. Br. f. 44 with Dig. 41, 2, 1,20. « Gl. vii. 1. 
 
 Br. f. 43, b, with Dig. 41, 2, 1, 10. ^ cf. Br. f. 40, Dig. 41, 2, 3, 1. Br. 
 
 3 Giit. pp. 98, 99. f. 44, Dig. 41, 2, 1, 20. Br. f. 39, b, 
 * Br. f. 39, 160. Azo, f. 190. This 41, b. Dig. 41, 1, 31. Br. f. 41. 
 
 reference is from Giit. 100, note, but I (assignari), Azo f. 1070. 
 
 cannot find the passage in Azo. ^ Kenny on the Effects of Marriage 
 
 5 vis, cf. Br. f. 16, b, with Dig. 4, 2, on Property, pp. 45, 75, 110, 111. Giit. 
 
 2. metus, Br. f. 16, b, 17, with Azo f. p. 110. Twiss, Pref. i. 43. Flcta, in. 
 
 100—102. Dig. 4, 2, 5, 6, and 9. 3, 12. 
 error, Br. f. 15 b, 16, with Dig. 39, 5,
 
 HUSBAND AND WIFE. 91 
 
 is silent as to their prohibition. Giiterbock indeed suggests 
 they were used to evade the feudal restrictions on the amount 
 of the dos ad ostium ecdesiae. But Bracton expressly states 
 " hujusmodi donationes non vcdent^ " , and cites in support three 
 recent cases in which the judges declared all such gifts in 
 excess of the legal dower, whether made in view of or after 
 marriage, void. He gives no reason for the change, though he 
 supports the allowance of any dower at all by instancing the 
 Roman donatio ante nuptias. The author of Fleta is more 
 explicit, and gives as the reason, quia prohihetur in lege. There 
 can be therefore very little doubt that the influence of the 
 Roman law is responsible for this change. Anticipating its 
 future history, this Roman policy was indirectly reversed by the 
 Court of Chancery in 1712, when in Mitchell v. Mitchell"^, it held 
 a gift by the husband to the wife without the intervention of a 
 trustee, good in equity. But this is only possible where the 
 husband constitutes himself a trustee for his wife. An instance 
 of failure to make a valid gift is to be found in the recent case 
 of Breton v. Woolven^ (1881), where Hall V. C. said; "It is a 
 monstrous state of the law which prevents effect being given to 
 such a gift." 
 
 Treating of possession per usucaptionem, Bracton states 
 considerable changes in the law, though they do not appear to 
 have taken deep root*. Usucapio in the Roman law was the 
 acquisition of ownership by possession ; it required a certain 
 length of uninterrupted possession, bona fides and a Justus 
 titulus^. But Bracton's usucaptio was a means of acquiring sine 
 titulo et traditione per longam continuant et pacificam possessio- 
 nem^. The length of possession requii-ed was left " ex justitiar-' 
 orum disc7^etione\'^ It was not a means of acquiring dominium, 
 but only possession, which gave the possessor the possessory 
 legal remedies, even against the negligent owner, who has still 
 his jus majus, only extinguished by the loss of his writ of right. 
 It was in fact more akin to the Roman " prescriptio " (which 
 
 ^ f. 29. 5 Dig. 41, 3. Hunter, Roman Laio, 
 
 2 Bunbury, Reports, p. 207, note. p. 119. 
 
 Kenny, p. 102. « As opposed to tnulitio ex titulo et 
 
 '^ L. R. 17 Ch. D. pp. 416, 419. justa causa acquirciuU. 
 
 ^ Br. f. 52. Gilt. p. 118. ^ Br. f. 51, b.
 
 92 PRESCRIPTION. 
 
 protected the possessor against actions, but did not give him 
 ownersliip), but differed from it in not requiring bona fides and 
 Justus titulus\ When Bracton says " long a enim possessio xx^rit 
 jus jwssidendi, et tollit actionem vero domino petenti^", his 
 expressions must be interpreted in the light of the foregoing 
 remarks. 
 
 Prescription or usucapion were unknown to the early law, 
 and Glanvil only refers to them in connexion with the recog- 
 nition of Novel Disseisin, which must be brought, "infra tempus 
 a domino rege de consilio procerum ad hoc const itutum^." But 
 Bracton asserts a general prescription, "quia omnes actiones in 
 mundo infra certa tempora habent limitationem" ; he names 
 several periods of time*, though the vagueness of his state- 
 ments points to imperfect development. The Statute of Merton 
 had dealt specially with the recovery of land ; except on this 
 point, however, it seems that the only influence of the Roman 
 law has been in furnishing terms which have been misapplied. 
 
 Treating of servitudes and liberties Bracton again borrows 
 from Rome his terminology and some principles^; thus of praedial 
 servitudes, which alone have influenced English law, we have 
 jus eundi, aqua ducendi, pascendi &c., though their discussion is 
 almost entirely English. On acquisition of servitudes by quasi- 
 traditio, he follows Azo with some deviations. The servitude 
 from the point of view of the dominant tenement, which 
 Glanvil has called aisiamentum (easement), is called by Bracton, 
 libertas^. 
 
 Donationes mortis causa are divided according to Ulpian^. 
 They are to be regulated by the lay courts, though Fleta 
 identifies them with testaments, which were dealt with by 
 ecclesiastical tribunals. But in treating of them, Bracton 
 
 1 It also differed from the Canon scilicet x. xx, xxx, annos, f. 422. As 
 hsmrnle^quodnullavaleatiyraescriptio to servitudes — tempus quod excedit 
 absque bona fide." Giit. 119. memoriam f. 2.30. Cf. Azo, ''cujus 
 
 2 Br. ff. 40, .52. Cflonga possessio non exstat memoria" , Giit. 124. 
 farit jus" ; '^longa possessio sufficit ® Bk. ii. e. 23, 24. 
 
 pro jure." « Br. f. 220, b. Gl. xii. 14. Giit. 
 
 3 Gl. XIII. 32, 33. 174. 
 
 ■* Longa enim absentia scilicet x. ^ Dig- 39, 6, 2. 
 
 annonim f. 45, b. ; longum tempus
 
 SALE. 93 
 
 mingles distinctively English matter with a free use of the 
 Digest^. His treatment of wills is scant}'-, as the Courts 
 Christian had cognizance of them. Wills and executors are 
 the undoubted offspring of the Roman law^ and executors and 
 administrators furnish the only examples of universal succession 
 in English lawl At the time of Bracton the executor had not 
 entirely superseded the heir, but the liabilities of the latter 
 were becoming narrowed, for whereas in Glanvil the heir was 
 bound to warrant the reasonable gifts of his ancestor*, in Bracton 
 he was only bound to do so to the extent of the property 
 he inherited ^ This corresponds to the limitations introduced 
 by Justinian. But the chapter on wills, which only applied 
 to movables, contains a certain amount of peculiarly English 
 matter, especially with reference to the Custom of London. 
 
 On Sale, Bracton again deviates from Eoman law^ Emptio- 
 Venditio in the Eoman system was a consensual contract ; but 
 according to Bracton unless at the time of the agreement either 
 an earnest {arrha) is given, or the whole or part of the price is 
 paid, or until the contract is reduced to writing, either party 
 can withdraw from the mere agreement^ Justinian called the 
 arrha, argumentum emptionis, a proof, not a part of the contract, 
 but Bracton quotes the same phrase as proving the arrha to be 
 an essential element of a valid contract. Glanvil had 
 doubted whether the vendor could retreat from the contract, 
 without forfeiting the earnest; Bracton decides, in accordance 
 with Justinian, that he forfeits tivice the earnest'. Between the 
 
 1 Bracton, f. 60. Big. 39, 6, §§ 2, 26, in c. 28, f . 62, apparently following Jus- 
 27. Gut. 133, 134. FJeta, ii. 57, 1. tiniau, Bracton speaks of sale as con- 
 
 2 In some places the Canon law is tracted ''postqitam de precio convene- 
 preferred to the Civil, e.g. to the r'lt." 
 
 number of witnesses, stated to be two, ^ Glan. x. 1-1. Br. f. 62, supra, p. 76. 
 
 Br. f. 61, though in f. 35-1 the seven The'' Regiam Majestatem" &\so iorieiis 
 
 witnesses are mentioned. ' tivice the earnest. See Moyle, i. 418, 
 
 3 Holmes, Common Law, pp. 340— note. 
 
 3g0_ The doctrine of forfeiture of earnest 
 
 4 Gl. VII. 2. still sui-vives; see Hoice v. Smith 
 
 5 Br. 61.' ' (1884), L. R. 27 Ch. D. p. 102, where 
 
 6 Br. II. c. 27. Giit. 144. Just. Fry, L. J., expressly refers it to Bracton 
 Imt. III. 23, pr. and the Eoman law. 
 
 7 Inst. III. 23, pr. Br. 61, b. But
 
 94 CONTRACT OF HIRE. 
 
 times of agreement for sale and of delivery by the vendor, the 
 Roman law put the thing sold at the buyer's risk, so far as 
 accident was concerned; Bracton, following Glanvil and the 
 old law, puts it at the risk of the seller^ His reference to 
 conditional sale is from the Institutes^. According to Bracton 
 and Justinian the buyer of movables may rescind in case of 
 undisclosed faults; but in the case of land, according to Bracton, 
 the buyer must bring an action to enforce delivery of the land 
 as contracted for. In modern times the development of 
 commerce has led to the adoption of "Caveat Emptor", as the 
 general rule, but subject to many exceptions ^ 
 
 Bracton treats Locatio-Gonductio very briefly* ; the fixing of 
 the price is its investitive fact. The hirer's liability qualem 
 diligentissimus paterfamilias is taken from the Institutes, and 
 the liability of the hirer's goods in his hired house for rent is 
 treated on Koman lines. 
 
 Succession as a means of acquiring dominion is treated in 
 CO. 29 — 34^ ; but on this head the influence of the Roman law 
 has been slight. That system either gave universal succession 
 according to the testator's will, or distributed his property by 
 fixed rules, according to nearness of kin to the deceased^ But 
 by the English law, a man could not make a will as to lands, 
 quia solus Deus heredem facere potest ; the descent of his lands 
 was settled either by the form of their donation, or by rules 
 which gave preference to the male sex and to priority of birth, 
 and which forbad ascendants to succeed. These rules, which at 
 this time only applied to lands held by military tenure ^ were 
 feudal innovations, so far as primogeniture is concerned, on the 
 
 1 He actually cites the Institutes, (1) Descendants, in order of kin, 
 
 Buhsiiiniing qui earn tenet (i.e venditor) (2) Ascendants, by proximity, 
 
 for emptorem. Br. f. 62. Just. Inst. (3) Collaterals. 
 
 III. 23, 3. No difference between males and 
 
 ^ Ibid. III. 23, 4. females, or by priority of birth. 
 
 3 Benjamin On Sale, 3rd edit, pp. Novels 118, 127. 
 
 606— G83. 7 Br. f. 62 b— 64. When Bracton 
 
 "* Br. 62, 62, b. Just. iii. 24, 5, et. says " haereditas est successio in uni- 
 
 al. Giit. pp. 146, 147. versum jus, quod defunctits hahuit" f. 
 
 8 Br. ff. 62, b— 77, b. Twiss, i. Pref. 62 b, he is using a Roman maxim 
 
 44—46. Gut. pp. 125—133. without adapting it to English law. 
 
 " e.g. tempore Justiniani.
 
 INHERITANCE. 95 
 
 Saxon rules which first called the sons equally, and then the 
 daughters together. There is no evidence of the right in 
 representation in Saxon law\ In the time of Glanvil the 
 question as between a grandson and his uncle was still in 
 dispute ; and he himself, while stating both views, prefers the 
 grandson's right^ But the question soon became of practical 
 importance in the disputed succession of John and Arthur, in 
 which John, the uncle, attained the crown. Bracton states the 
 law as definitely in favour of the grandson^; and this recognition 
 of the right of Representation is probably due to Roman and 
 clerical influence. 
 
 In personalty, rules, which are not Roman, limit the power 
 of disposing by will, to either one-third or one-half of the 
 personalty, after the payment of debts, funeral expenses, and 
 the wife's quarantine*. But this innovation on Saxon procedure 
 is certainly not Roman. The old Saxon rules, dividing the land 
 equally among the sons still existed on all socage and gavel-kind 
 lands though these, as they appeared less frequently in the 
 King's Courts than the great military fiefs, are less noticed by 
 Bracton I 
 
 Bracton's distinctions as to haeredes are tinged with Roman 
 law on several points. He defines the legitimus haeres as 
 " quern nuptiae demonstrant," and adopts Azo's liheri legitimi et 
 naturales, " qui ex justis nuptiis et legitima uxore procreantur^". 
 Glanvil had forbidden those to inherit " qui ex legitimo matri- 
 monio non sint naW", but Bracton admits an exception in the case 
 of those who have ignorantly but publicly contracted an invalid 
 marriage, in the belief of its validity and without the prohibition 
 
 1 e.g. a grandson did not take bis that those who have contracted an in- 
 deceased father's share. Anglo-Saxon valid marriage clandestinely seem to 
 Laiv, p. 132. have acted non ex parte sciente (!), vel 
 
 2 Glan. VII. 3. saltern affectatores ignorantiae. This 
 
 3 Br, f. 64, b, 267, b. Gilt. 132. is in substance a quotation from the 
 Twiss, I. Pref. 45. Canon Law (X. c. 3, 4, 3), and Twiss 
 
 * Br.f.60,b. Anglo-Saxon Lair,Y>.7(). notes the reference : yet if he had taken 
 
 5 Br. f. 76. the trouble to turn to his reference he 
 
 8 Br. f. 64. Azo, f. 132, b. Sir T. would have found the obvious reading 
 
 Twiss here affords another instance of " expertes scientiae;" and he even notes 
 
 the care with which he has edited that one MS. reads scie7itiae. 
 
 Bracton. TottcU's text (f. 63) runs ^ Glan. vii. 13.
 
 96 LEGITIMACY. 
 
 of the Church ; following the Canon law, which he expressly 
 cites, he states their children to be legitimate \ Here there 
 was no English custom to the contrary, but in the case of 
 legitimatio jjer suhsequens matrimoniiim such a custom did exist, 
 and the attempt of the Church to introduce the Roman rule 
 was successfully resisted. Glanvil had noticed the opposition ^ 
 and Bracton recognizes the legitimacy of such children " ad ea 
 quae pertinent ad sacerdotiimi,^' but not "ad ea quae pertinent 
 ad regnum propter consuetudinem regni, quod se habet in contra- 
 rium." At the Parliament of Merton in 1236 the clergy had 
 made an attempt to change the law, to which the barons 
 returned their well-known answer, " Nolumus leges Angliae 
 7nutare, quae usque ad illud tempus usitatae fuerunt et appro- 
 hatae." The compromise effected required the spiritual courts 
 only to decide the fact of birth before or after marriage, by 
 which means they escaped from giving a decision on the 
 legitimacy of children previously born^ 
 
 Brothers of the half-blood can, according to Bracton, 
 succeed as heirs to each other*. He also notes at length two 
 forms of procedure, which appear to be of Roman origin. When 
 the inheritance was to be divided among daughters as co-par- 
 ceners, or sons of a tenant in socage, a method of partition was 
 adopted, apparently copied from the Roman judicium familiae 
 herciscundae^. So also, when the wife of a deceased tenant 
 declared herself pregnant, and her child-bearing would affect 
 the descent of the inheritance, the truth of her allegation was 
 inquired into by a procedure, closely resembling the Praetorian 
 edict " De ventre inspiciendo," and probably derived therefrom®. 
 
 We may remark on the phrase " quasi-succedit" that it 
 supports the theory of the development of the doctrine of 
 
 1 Br. f. 63. Giit. 127. 130. 
 
 2 Glan. VII. 15. Br. f. 63—63, b. * Br. f. 65, b, but cf. f. 267, see sub 
 ^ No definite rule as to the case in p. 115. Maine, Ancient Law, 151. ; 
 
 ■which the child of a married woman ^ This phrase has an unfortunate 
 
 bom after the cessation of the mar- history. Herciscunda api^ears as a 
 
 riage was her former husband's, was lady, in Britton (iii. 7, 1), and as a 
 
 laid down, as in the Eoman law, but tenure, in Coke. 
 
 each case was left on its own merits. ^ Cf. Dig. 25, 4, with Br. ff. 69 — 
 
 Some other particulars as to Bastardy 71. Giit. 131. 
 
 appear however of Roman origin, Giit.
 
 BRACTON ON DOWRY. 97 
 
 transmission of rights and liabilities to assigns inter vivos, from 
 an application of the Roman doctrine of universal succession, 
 treating assignment inter vivos as quasi-succession*. 
 
 Bracton's treatment of homage, relief, and the custody and 
 maritage of heirs is ahnost entirely Engli.sh^ Roman influence 
 may be traced in the suggestion as to females attaining their 
 majority at 12 years of age, with the reason given, though this 
 age is rejected in military fiefs for 151 The rule as to the 
 guardianship of blood relatives, excluding any who could be 
 suspected of a claim to the inheritance, is directly contrary to 
 the Roman rule " uhi spes successionis, ihi et onus tutelae debet 
 
 4 » 
 
 esse . 
 
 The last two chapters of Bracton's 2nd book deal with the 
 question of dos\ The early morgen-gifu, or gift from the 
 husband to the wife, had become transformed under clerical 
 influences into the Dos ad ostium ecdesiae, and in lands held by 
 military tenure this had been cut down under feudal influences 
 to a life-interest in one-third of the husband's lands, where no 
 lesser sum was agreed on. This is entirely unlike the Roman 
 dos, which was a limited gift from the wife's family to the 
 husband. Bracton treats the dos ad ostium ecdesiae as a 
 donatio propter nuptias, and introduces the Roman dos, in a 
 woman's maritagium" , which he divides into profectitia and 
 adventitia, terms taken from the Roman law, but with changed 
 meanings I The Roman dos profectitia was the contribution 
 made by the wife's father or male ascendant; the dos adventitia, 
 the contribution made by the wife, or any other relation of hers. 
 But in Bracton, the dos profectitia is given by father, mother, 
 
 1 Holmes On Common Law, Lect. xi. * f. 87, b. Vide supra, p. 75. 
 
 Br. f. 68, b. * Kenny, Effects of Marriage on 
 
 2 Br. ff. 78 —91. Property. Bracton, ff. 92—98. Twiss, 
 
 3 f. 86, b. One would not have ii. Pref. 16, 17. Guterbock, pp. 135 
 thought it a great strain on Sir T. —137. Long, pp. 99—104; mislead- 
 Twiss' ingenuity to conjecture that ing owing to Mr Long's ignorance of 
 when Tottell printed that a socage Teutonic law. 
 
 tenant came of age at 25 years (!) he 6 f_ 92. 
 
 was printing from a MS., which had " Dig. 23, 3, 5. Neither has Sir T. 
 
 XXV., as a slip for XV., and to correct Twiss' critical insight enabled him to 
 
 his repi'int accordingly, to agree with correct '■'Jecto mortal i" into lecto mari- 
 
 Glanvil, vii. 9. taJi, on f. 92. 
 
 s. 7
 
 98 DOWRY. 
 
 vel alio parente; the dos adventitia by other than the father and 
 mother, sive parens sit, sive extraneus. Thus, besides disagreeing 
 with the Roman law, the definitions clash with each other, as a 
 dowry given by an uncle would fall under both heads. But 
 they seem of no practical importance, though repeated by 
 Fleta\ Bracton also refers to a dos paraphernal a phrase 
 evidently derived from the Roman paraphernalia, or parts of 
 the dos which the wife retained as her absolute property ; in 
 Saxon times the wife besides her share of the property was 
 entitled to retain her bed and apparel on the death of her 
 husband, and in the time of Bracton she had probably the right 
 of disposing of her jewels and dress by will. But feudal theory 
 cut down her power over her 'paraphernalia to her apparel 
 "pur ceo que necessaire que el ne alera naked mes d'estre conserve 
 del shame et del cold\" A Roman name has been applied to a 
 Saxon institution cut down by feudal principles*. 
 
 Dower, exceeding the dos rationabilis, which was one-third 
 of military lands, was revoked. But though Bracton mentions 
 it only casually ^ large portions of the land of the country were 
 still held on the old rules of dower. 
 
 A curious incident of the marital relation, probably derived 
 from the Roman law, is the life-tenancy of the husband in his 
 wife's lands of inheritance, if issue has been born alive, a tenure 
 known as "per legem Angliae," or "by the curtesy of England *'." 
 It is prominent in English, Scotch'', and Norman law, though 
 the general feudal law expressly forbids it® ; it is contrary to the 
 
 1 Fleta y. 23 A, -who calls prof ectitia, Yearbook of 1302; it does not relate 
 
 perfectiva (!). to the "courtesy" of the law, but to the 
 
 * Trapd (pepvr}v. fact that the husband, being tenant of 
 
 * Rolle, I. 911. the whole fief, on the birth of issue, 
 
 * Parapherna also existed in the can sit as tenant in the Lord's Court, 
 custom of Normandy, Giit. 136. Pan- (cwv? a), whereas the widow, holding only 
 nier, Ruines de la Coutume de Nor- a 2^flri, is so tenant to the heir. Kenny, 
 mandie, pp. 80, 81. pp. 74, 79. 
 
 6 f. 93, 94, '^7iisi aliter observetur ^ Derived through the Rcgia Majes- 
 
 de aliqua consuetudine speciali, vel nisi tas from Glanvil. 
 
 terrateneaturinsocagio,ubidiversimode * Feud. i. 15. Si femina habens 
 
 Jit dotis constitutio, vel in gavelkind, vel benejicium et maritum vioriatur, mdlo 
 
 si socagium adjungaturfeodo militari." mode succedit in benejicium maritus, 
 
 * Br. f . 89, b, Kenny, pp. 73 — 82. The nisi specialiter investitus sit. (Wright, 
 term " Courtesy'' first occurs in the Temires, p. 195, 2nd edit. 1734.)
 
 CURTESY. 99 
 
 rules of succession of the Roman law, and unknown in Saxon 
 times. Sir M. Wright, following Sir T. Craig, suggests that it 
 is an application of Constantino's rule as to the 2'^^culium 
 adventitium\ which gave the father a life interest in all 
 property coming to the son, through the mother. This would 
 account for the necessity of issue born alive, and also for the 
 fact that the husband had no such right in a life-estate of his 
 wife's, or in property to which his son succeeded not in right 
 of his mother, but as remainder man I The curious limitation 
 that the child must have cried within four walls may have 
 resulted from the rules of evidence which, following the Canon 
 law, prohibited females from taking part in a sworn inquest. 
 Thus the birth of a live child could not be proved by the 
 attendant women, and men could not testify from sight, "quia 
 non est permissum quod masculi intersint hvjusmodi secretis : '" 
 but they could witness from hearing, and the cry was an 
 evidence of life. The '^ infra quatuor parietes" may either be 
 derived from a similar German law, or, according to Caspar, 
 from Ante- Justin eanean sources. 
 
 Tn the prohibition of conjugal donations and the introduction 
 of curtesy we have substantial effects of Roman influence, but 
 on other points the English law as to dowry seems unaffected 
 by Rome. 
 
 Bracton's Third Book. 
 
 Bracton's Third Book is divided into two treatises, " De 
 Actionibiis" and "De Co?-o?ia," which deals with Criminal law. 
 The treatise on Actions* deals also with obligations, and com- 
 pletes Bracton's consideration of contracts, which had be^un 
 with the chapters on Emptio-Venditio and Locatio-Conductio^ in 
 the 2nd Book. In the first half' of the treatise the influence of 
 
 1 Cod. 6, 60, 2. Wright, p. 196. ^ Twiss, ii. Pref. p. 25—32. Giiter- 
 
 ^ This however was contrary to the bock, pp. 138 — 158. Pollock on Con- 
 
 amending constitution of Arcaclius and tracts (3rd edit. 1881). Introd. pp. 7 — 
 
 Honorius, which gave the father such 20. Text. pp. 145 — 157. Holmes, 
 
 an interest in property coming from Common Laic, pp. 247 — 307. Long, 
 
 maternal ancestors. Cod. 6, 60, 2. jip. 104, 105. 
 
 ^ Abbreviatio Placitomm, p. 267. ^ Siqmi, pp. 93, 94. 
 
 Kenny, p. 80. 6 ff. 98 b— 104 b. 
 
 7—2
 
 100 ROMAN LAW IN 
 
 the Roman Law is very marked : much of the text is taken 
 word for word from the Institutes, and parts are derived from 
 the Digest and from Azo'. The scantiness of Bracton's exposition 
 of the law of contracts is explained, on the one hand by the slight 
 importance of personal property, on the other by the jurisdiction 
 of the ecclesiastical courts over all promises not susceptible of 
 proof by the strict rules of the Common Law, as laesiones fidei, 
 breaches of faith ^ 
 
 By English law contracts could only be sued upon in the 
 Curia Regis, if either partly performed, or embodied in a sealed 
 writing. All other " stijndationes conventionales " were called by 
 Bracton niida pacta, and subject to the Roman doctrine " ex 
 nudo pacto non oritur actio". The term thus appropriated 
 underwent considerable changes of meaning. At Roman Law, 
 it had been, not an agreement made without consideration, but an 
 informal agreement, which did not come within some one of the 
 privileged classes which were actionable, or which had no 
 causa, or mark assigning it to one of the privileged classes. 
 But in Bracton it means an agreement which cannot be proved 
 by one of the recognized methods of proof in the King's Courts 
 Two hundred years later it had come to mean, "a promise 
 where nothing is assigned why it should be made," an agree- 
 ment without consideration*. Prof. Pollock had suggested that 
 the Court of Chancery introduced the doctrine of Consideration 
 into Contracts from its development in the Law of Uses^ But 
 
 1 Sir T. Twiss' references here are fessor Pollock's severe criticism (Con- 
 both very inadequate and very mis- tracts, 3rd edit. Introd. pp. 7, 8,) is in 
 leading. In 12 pages of text (ii. my opinion entirely justified. 
 108—130), I have counted 20 wrong " Glan. x. c. 8, 18. Bracton, f. 100. 
 references, and 23 references to parallel de quibus omnibus (i.e. conventionales 
 passages omitted. The translation is stipulationes) omnino curia regis se non 
 equally careless; e.g. 25ai'o?if.s = seafowl, intromittit nisi aliquando de gratia. 
 Tie^os r= nephew, when "■grandson" is PoUock, p. 151. Gut. p. 139. Vide 
 the obvious translation ; actio negoti- supra, p. 76. 
 
 orum gestorum translated "action on ^ i.e. witnesses, writing, or the duel, 
 
 the case", in a book written 30 years [which in debt was practically obso- 
 
 before such a term was introduced ; so lete]. 
 
 usufructuarius, followed by usurarius, ^ Pollock, 182, 184. Holmes, 253. 
 
 which Twiss reprints from Tottell, and Doctor and Student, (1530). Dial. 2, c. 
 
 translates usurer (!) instead of correct- 24. 
 
 ing the obvious slip to usuarius. Pro- ^ 2nd Edit. Contracts, p. 56.
 
 CONTRACTS. 101 
 
 in his third edition, he doubts whether this opinion is tenable, 
 and considers Mr Holmes' theory, though not proved, as of 
 great weight \ 
 
 Mr Holmes had traced the origin of " Consideration," as 
 essential to an agreement not evidenced by deed, to the fact that 
 such an agreement, to be enforceable at all, must be proved by 
 witnesses, whom he traces to the " transaction witnesses " before 
 the Conquest, the secta after it^ These witnesses would swear 
 to what they had seen and heard, which, in an action of debt, 
 would be the actual transfer of property, or money ; and they 
 were in Saxon times only required to be present when there 
 was such a transfer. He therefore suggested that originally a 
 debt not arising from a deed or covenant could only be proved 
 where witnesses had seen a quid pro quo, or consideration 
 actually pass ; and that this rule of procedure developed into a 
 rule of substantive law that no contract was actionable where 
 consideration had not passed, unless it was in writing ; and in 
 that case it was suggested that every deed importeth a con- 
 sideration. This seems the more probable origin of the English 
 doctrine of consideration and nuda pacta ; and if true it shows 
 the Roman Law to have done little more than supply the terms 
 " nudum pactum " and " causa" which acquired a distinctively 
 English meaning. 
 
 The first four chapters of the 3rd book are composed almost 
 entirely of Roman material. Indeed the form, which is Insti- 
 tutional and Academic, lends countenance to the supposition 
 that Bracton lectured on the Civil Law at Oxford. "Actio" is 
 defined, following the Institutes and Azo, as "jus prosequendi 
 in judicio quod sibi debetur*," and the subsequent explanations 
 are taken from Azo. The Actio is said to arise from preceding 
 obligations as a daughter from a mother, the comparison being 
 
 1 Int. p. 14. havej^crsequendi. Azo, 1118; Ih.5. iv. 
 
 2 Holmes, C. L. p. 253 et seq. v. 6, pr. Azo's aestimare poterit ((.UQS) 
 supra, p. 47. has been altered in the printed editions 
 
 3 ff, 98^ b 104, b. (f. 98, b) to aestimare aoi^ijioterit, which 
 
 * Prosequendi printed by the 1569 makes nonsense. Both these obvious 
 
 edition, and Twiss, is probably a prin- misprints appear to have been copied 
 
 ter's error. Azo and the Institutes from Tottell's edition.
 
 102 BRACTON ON 
 
 Azo's'. The division of obligations ; orientes ex contractu, vel 
 quasi, sive ex maleficio vel quasi ; is taken from Justinian, and 
 the subsequent doctrine of vestimenta pacti is also civilian'"*. 
 
 Obligations are defined in the words of Azo, following the 
 Institutes, as "juris vincuhmi, quo necessitate adstringimur ad 
 aliquid dandum vel faciendum^" -, they are divided, re, verbis, 
 scripto, consensu] and real obligations, (rnutuum, commodatum, 
 depositum and pignus), are dealt with in the words of Justinian, 
 omitting the technical terms of the Roman actiones*. This passage 
 is not filtered through Azo, but taken direct from the Insti- 
 tutes, neither does Bracton appear to have followed Glanvil 
 in this, the most Roman part of Glanvil's work. The passage 
 as to liability for accidental loss is obscure^, but the printed 
 version appears to contradict Glanvil's statement of the 
 English Law*', which following an older law made the commoda- 
 tarius liable for casus, while Bracton, in accordance with the 
 Institutes, relieves him, if he has acted as " diligentissimus 
 p>aterfamilias^ ". 
 
 While the general treatment of obligations verbis, per stipu- 
 lationem is Institutional, Bracton makes an important adapta- 
 tion to English procedure ^ A simple stipulation, as we have 
 seen, could not be sued on in the King's Courts, as being 
 incapable of proof. After suggesting that a deaf man might 
 make a stipulation by nods, or writing, he adds " et quod per 
 scripturam fieri jjossit, stipulatio et obligatio videtur, quia si 
 scriptum fuerit in instrumento aliquem promisisse, perinde 
 habetur ac si intey^^ogatione praecedente responsum sit^," and, 
 though Bracton is silent, Fleta expressly says that a writing 
 without seal will not suffice^". Again: "Per scripturam vera 
 
 1 Br. f. 99. Azo, 1103. Bracton. 
 
 2 Just. Im. III. 13, 2. Giit. 140. » Br. ff. 99, b, 100. Ins. in. 15 and 
 
 3 Br. f. 99. Azo, 304. Ins. iii. 13, pr. 19. 
 
 * Ins. III. 14. 9 Br. f. 100, at the end of a passage 
 
 * Owing to probable corruption of taken from Dig. 44, 7, 1, 15. 
 
 the text. Lord Holt quotes a different " Pollock, 150. Br.f.lOO,b. Holmes, 
 
 version. 272. Fleta, ii. 60, 25. Gilt. 144. cf. 
 
 ® Gl. X. 13. Br. f. 101, obligatio tollitur, si dicatur 
 
 '' Giit. 141, n. Br. f. 99, b. Ins et responditur, vel scribatur. 
 
 HI. 14, 2. Fleta. u. 56 § 5, follows
 
 CONTRACTS. 103 
 
 obligatiir quis, nt si quis scripserit alicui se debere, sive j)ecunia 
 numerata sit, sive non, ohligatur ex scnptura, nee hahebit ex- 
 ceptionem pecuniae non numeratae contra scripUiram quia scripsit 
 se debere." This was contrary to Roman Law which allowed 
 such an exception to be used within 2 years \ In this practical 
 adaptation of the Roman Law, by merger of the obligations 
 verbis et litteris, Bracton found a connecting link between his 
 Roman principles and the English Law : with a similar object 
 he omits the rule " alteri stipulari nemo potest"^" and makes 
 such a stipulation possible even sine poena. Apart from these 
 differences the minor distinctions of the Roman Law are faith- 
 fully reproduced, even to the extent of speaking of a judicial 
 stipulation as " quod fit jussu 2'>raetoris\" But it may well be 
 doubted whether these extracts have had any substantial in- 
 fluence upon English law. 
 
 Bracton just mentions obligations ex consensu*, but as he 
 has already dealt with sale and hiring, and as purely consensual 
 contracts could have no place in the King's Courts, he does no 
 more than mention them. Similarly with obligations quasi ex 
 contractu he merely mentions the heads contained in the 
 Institutes, using the technical Roman terms and says no more'. 
 The persons through whom an obligation is acquired, the means 
 by which an obligation is dissolved, and the general rule, 
 "obligatio dissolvitur eisdeni modis quibus contrahitur'^" , with 
 several technical terms', are taken from the Institutes. 
 
 Delicts and quasi-delicts are also treated very shortly, the 
 examples of a quasi-delict being the Institutional one of a 
 judge knowingly giving a wrong judgment^ Injuria is de- 
 fined, after Justinian, as quod Jure non fit\ and the Roman 
 
 1 l7U. in. 21, pr. (before Justiniau 29. 
 
 5 years). '' Excepiionem doU; pactum de non 
 
 2 cf. Just. Inst. III. 19: 19 and 21. petendo ; exceptionem metus; excep- 
 Br. f. 100, b. tioncm jurisjurandi ; exceptionem rei 
 
 3 e.g. Stipulationes pure vel modo, sub judicatae; acccptihttio, novatio; quasi 
 conditione; facta et loca in stipula- fradif/o; and the subject matter of the 
 tionibus, judiciales et conventionales stipulatio Aquiliana, though the name 
 stijndationes ; sti^nthitio praepostera. is not used. 
 
 4 f. 100, b. ^ Br. f. 101. Inst. iv. 5, pr. 
 
 s of. Br. f. 100, b, with Ins. in. 27. " Inst. iv. 4, pr.; cf. Br. f. 101, b. 
 
 « Br. ff. 100, b, 101. Ins. in. 28 and
 
 104 BRACTON ON 
 
 rule of Don-lkbility of heirs for their ancestor's delicts is 
 followed. 
 
 Bracton identifies actions with placita or pleas^ he adopts 
 both Glanvil's division of civilia-criminalia, and Azo's of 
 realia, personalia, mixta, which seems a combination of the 
 Institutional divisions in rem, in personam, and rei vel poenae 
 persequendae vel mixtae^. The term crimina capitalia is from 
 the Institutes^, though the illustration is changed. Personal 
 Actions are defined in the words of Azo, and Bracton adds 
 that the heir is bound "nisi fuit 2J0cnalis\" Personal Actions 
 ex malejicio^ are again divided into " quae persequuntur poenam, 
 vel ipsam rem et poenam": while actions in rem are divided as 
 in Glanvil, into petitory, super piroprietate rei, and possessory, 
 super possessionem. The actio mixta is defined in Azo's words 
 ''tarn in rem quam in personam, quia mixtae hahent causam 
 ad utrumque'' ," and a number of the following divisions are 
 taken from the Roman Law I 
 
 The Institutional division of Interdicts; causa recuperandae, 
 adipiscendae, retinendae possessionis ; is- applied by Bracton to 
 actions, and identified with the leading Assizes^ Under actiones 
 7'ecuperandae possessionis causa he places the Assize of Novel 
 Disseisin, and identifies it with the " actio unde vi" (sic). Actiones 
 adipiscendae possessionis causa include the Assize Mort d'ancester, 
 
 1 Gl. I. 1. Br. f. 101, b. 1130; Irisi iv. 12, pr. transitoriae ; 
 
 2 Br. f. 101, b. Azo, f, 1119. Inst. Azo, 308; Br. f. 103. in simplum, 
 IV.; 6; 1, 18 — 20. Coke, Inst. ii. 21, duplum, triplum, quadruplum, Azo, 
 28.5. 1127; Br. f. 103; Inst. iv. 6, 21—24. 
 
 ^ Inst. IV. 18, 2. directa-contraria, Br. i. 108, to which 
 
 * Br. f. 102 : Inst. iv. G, 1. cf. Azo, Bracton adds indirecta. confessoria- 
 f. 1119, quae competunt contra allquem negatoria, Azo, 218; Dig. S, 5, 2, pr., 
 ex contractu, vel quasi, ex malejicio, vel though Bracton makes actio confessoria 
 quasi, cumquis teneatur ad aliquid dan- "cum dicat quis aliquem rem corporalem 
 dumz el faciendum. The plirase nafii-ac, suam," instead of limiting it to servi- 
 ce contractihus, as applied to them is tudes, as in the Eoman Law. He also 
 Azo's, who contrasts it with cZaiii^rtfi e.c uses the term "praejudicialis" of an 
 legihus. Azo, 1131. actio, instead of & formula, Br. f. 103, 
 
 ^ cf. Inst. IV. 6, 18: Azo, p. 1126. and introduces several terms not other- 
 
 8 Glan. I. 3. Azo, f. 1119. Inst.iv. wise used in English law, e.g. ^ct/oZe^/is 
 
 6, 1. Br. f. 103. Gut. 151. Aquiliae, vi bonorum raptorum. v. sub. 
 
 7 Azo, 1126. Br. f. 102, b. p. 105. 
 
 * e.g. simplices, duplices; perpetuae, ^ Br. f. 103; Inst. iv. 15, 2. 
 tcmporales, Br. f. 102, b; Azo, 1129,
 
 ACTIONS. 103 
 
 identified with the "actio quorum honorumy An instance of 
 actiones retinendae possessionis is found in "interdicta ne quis 
 alteri vim fiat." 
 
 In treating of "quihus competant actiones", Braeton appears 
 to vary from Roraan Law. The Roman actio furti was open to 
 anyone cujus interest rem salvam fore, but not to the owner, if 
 he had an action against the person in possession before the 
 theft. Braeton allows the owner an actio furti sive condictio, 
 against the thief or his successor. Now the bailee at EngHsh 
 law had an action against the thief, and for that reason was 
 liable over to the owner \ who according to Roman law would 
 therefore have had no actio furti. Probably Braeton means by 
 "actio furti sive condictio" no more than condictio, in which case 
 he accords with the Roman law which gave the dominus a vindi- 
 catio, actio ad exhihendum or condictio, for the thing itself though 
 the actio furti was not open to him^ The Actio legis Aquiliae 
 is thus adapted to English law, ''Actio legis Aquiliae de liomini- 
 hus 'per feloniam occisis vel vulneratis dabitur propinquiorihus 
 parentibus, vel extraneis homagio vel servitio ohligatis, ita quod 
 eorum intersit agere^", which appears to refer to the luergeld 
 while anticipating Lord Campbell's Act. 
 
 Other Roman actions, actio injuriarum\ quod metus causa^, 
 de dolo, are briefly dealt with. The Actio de vi is described as 
 duplex, "scilicet rei restitutoria et poenalis", whereas the Institu- 
 tional meaning of the term is "quia par utriusque litigatoris in 
 his condicio est nee quisquam jjraecipue reus vel actor intelligitur, 
 sed unusquisque tarn rei quam actoris partem sustinet^." In 
 dealing with the "Actio quod vi aut clam" Braeton follows the 
 Digest closely, except that so far as the Interdict is penal, or for 
 compensation, it could not be brought against the heirs accord- 
 ing to Braeton, whereas the Digest gave it to and against heirs 
 "in id quod ad eos pervenif". The Actio sive Interdictum de 
 
 1 Holmes C. L. 175. U, 3. 
 
 2 cf. Inst. IV. 1, 19. " Ins. iv. 15, 7. 
 
 3 Br. f. 103, b, the rule as to actio ^ Br. f. 104. Dig. 43, 24, 15, 3. 
 vi bonorum raptorum is taken from Bracton's clause " sed datur in eo [sic. 
 Imt. IV. 2, 2. Twiss], quae sunt restitutoria," may be 
 
 * Br. f. 103, b. Ins. iv. 6. meant to cover this. 
 
 6 Ibid. Ins. IV. 6, 27. I)i[l. 4, 2.
 
 106 BRACTON ON 
 
 itinere actuque privato is cited verbatim with the prefix, Ait enim 
 'praetor^. 
 
 At this point, Bracton's close following of the Institutes 
 ceases, though the influence of the Civil and Canon Laws is 
 still noticeable^ Frequent Roman citations are found, especially 
 towards the end of the Treatise, on the question of the order in 
 which actions should be tried, where in two folios there are found 
 eleven quotations from the Digest and Code, and one from the 
 Canon Law^ Bracton cites the well-known Roman maxim, 
 "quod principi placuit legis habet vigorem", with the addition 
 of a quotation apparently from the Lex Regia which is expressly 
 referred to: the distinction between ordinary and delegated 
 judges is also derived from the Canon Law*. In short, the whole 
 treatise shows considerable study of the Roman Law, and is 
 largely made up of Roman material, though it may be doubted 
 whether it practically affected the English courts in any marked 
 degree. 
 
 Bracton on Ci'inmial Law. 
 
 The second Treatise of the third book deals with Criminal 
 Law^ which had been touched upon in the preceding Treatise. 
 Thus the general principles as to punishment are taken word for 
 word from the Digest De Poenis, although Bracton modifies them 
 wherever any contrary English law exists*^; e.^/. where the Digest 
 in illustrating the effect of the causa on the punishment to be 
 awarded, says; "ut in verberibus quae impunita sunt a magistro 
 allata vel parente" Bracton adds ''nisi modum excedant" as 
 English law did not recognize the unrestrained right of 
 correction of servants or children ^ The definitions of crimes 
 show some marks of Roman influence, but the English procedure 
 is of native growth, and the English law differed from the Roman 
 
 1 Br. f. 104. Big. 43, 19. 1, pr. 3 ff. 114, 114, b. 
 
 2 cf. actio praejudicialis, f. 104, cri- * Br. f. 107, 108 ; Giit. p. 155. 
 men falsi, f. 104, b, the passage onjw- ^ ff. 115 — 119, b. 
 
 dictum, i. 106, taken from Azo 158, and ^ gf. Br. f. 104, b, 105 with Dig. 48, 
 
 on munus, f. 106, b, from the Canon 19, 16 ; 7, 8, 11, 16. 
 
 Law and Code, which is expressly cited '' Dig. 48, 19, 16, 2; Br. f. 105. 
 (Cod. 9, 27. 3), Gut. 154.
 
 CRIMINAL LAW. 107 
 
 in this cardinal respect that it treated as j)leas of the crown 
 offences which at Rome were the subjects of civil actions\ The 
 influence of Canon law and ecclesiastical procedure is more 
 marked than that of the Civilians I 
 
 Bracton's crimen laesae majestatis appears to derive hardly 
 anything but its name from Roman law I Gliterbock indeed 
 claims its definition as taken from the Roman law^, and Sir T. 
 Twiss says "Bracton adopts the whole doctrine of the Roman 
 law, as well as the collateral penalties attached to the crime^"; but 
 neither writer gives any references in support of his assertion. 
 I have carefully compared the Digest with Bracton, and can find 
 no likeness which justifies such a conclusion : indeed on several 
 points there is direct opposition. In Roman law, "famosi qui 
 jus accusandi non hahent sine ulla dubitatione admittuntur ad 
 heme accusationem" : in Bracton the accuser is required to be 
 "integer famae et non criminosus'^." The Roman criminal might 
 be tried after his death that the exchequer might obtain his 
 estate^; the English traitor escaped by death. The only instances 
 I can trace of Roman influence appear in the provisions as to 
 confiscation of goods, and perpetual disinherison of heirs, which, 
 and especially the latter, suggest a free use of the Code^. But 
 Qnajestas is wider than Bracton's Treason, the one being contra 
 rem puhlicam, the other contra dominum regem. Bracton seems 
 rather to expand the English law as given in GlanviP; both 
 treat of the same three heads, mortem domini regis, seditionem 
 regni, vel exercitus, but Bracton adds a clause concerning acces- 
 sories. Sir J. F. Stephen says "this account of the crime of 
 treason has some resemblance to the Majestas of the Roman law, 
 though it cannot be said to be expressly taken from it'°"; and 
 I am not sure that even this does not overstate the resemblance. 
 Bracton includes under majestas the oilmen falsi^^, which 
 covers forgery and coining ; in this he has substantially followed 
 ' e.g. furtum, injuria, robbery. ^ Cod. 9, 8, 5. Br. f. 118, b. 
 
 2 Guterbock, p. 167. ^ Gl. xiv. 1. 
 
 3 cf. Dig. 48, 4, with Br. f. 118, b. i" ii. 244 Hist. Crim. Law : again 
 * Gut. p. 168. II. 245. " The whole chapter recalls, 
 ^ II. Pref. p. 57. though it docs not quote or directly 
 
 6 cf. Dig. 48, 4, 7, pr. with Br. f. imitate, the Roman law." 
 
 118, b. 11 Br. f. 118, b; 119, b. Gl. I. 2; XIV. 
 
 7 Cod. 9, 8, 5, pr. 7.
 
 108 HOMICIDE AND MURDER. 
 
 Glanvil, and the earlier Saxon laws contain provisions against 
 coinincr. There is here no clear trace of Roman influence, 
 though as to forgery it is not improbable, writing being almost 
 an ecclesiastical monopoly. 
 
 Treasure trove (thesaurus) is defined in the words of the 
 Digest\ but Bracton adds that the finder only has it, jure 
 naturali, for, he says, ''Cum igitur thesaurus in nullius bonis sit, 
 et antiquitus de jure naturali esset inventoris, nunc de jure 
 gentium efficitur ipsius domini regis" thus adapting the Roman 
 law to the English by a very curious method. 
 
 Bracton's definitions of homicide and murder follow Glan- 
 vil ^ but the divisions of homicide with their accompanying 
 illustrations are to be found in the Breviarium Extravagantium 
 compiled by Bernhard of Pavia between the times of Glanvil 
 and of Bracton, and studied together with the Decretum of 
 Gratian in the Law School of Bologna ^ This part of Bracton's 
 work formed the basis of subsequent writings* until Lambard's 
 book in 1610, but the progress of the law brought into promi- 
 nence other questions than those raised by Bracton, and his 
 classification became superseded. Thus the distinctions between 
 murder and manslaughter, and between voluntary and involun- 
 tary homicide, came to the front, and the question of provoca- 
 tion was introduced. On some points, e.g. that in the case of 
 those engaged at or helping in a fight, the blow of one is the 
 blow of all, the law stated by Bracton is still the law of 
 England^ and this rule is directly derived from the Canon 
 law, which follows the Digest". On other points derived from 
 the Civilians, as in the statement that to procure abortion, " si 
 puerperium jam formatum vel animatum fuerit'' was homicide, 
 the law of England is now to the contrary effect^ 
 
 1 Dig. 41, 1, 31, 1. Br. f. 119, b. « Decretal of Alexander to Beckett. 
 
 2 Br. f. 134, b. Glan. xiv. 3. Twiss, ii. Pref. 60. Gut. 170. Big. 
 
 3 Twiss, II. Pref. pp. 59, 60. Giiter- 48, 8, 17. 
 
 bock, pp. 169, 170. These divisions 7 Br. f. 121. D/^. 48, 8, 8. Coke cites 
 
 are set out and criticised from a legal tliis [Inst. iii. 50), erroneously, as an 
 
 point of view by Sir J. F. Stephen, authority in favour of tlie proposition 
 
 Hist. C. L. III. 29. that killing a child delivered alive is 
 
 ■* Fleta, Britton, The Mirrour, Staun- murder, but killing a live child in the 
 
 ford, vide Stephen, Crim. L. in. 33, 34. womb is not. 
 
 » Br. f. 121. Stephen, in. 31.
 
 ROBBERY AND ARSON. 109 
 
 Mr Holmes has suggested a parallelism between tlie 
 English law of deodands, res quae sunt causa mortis alicujus, 
 whicli were forfeited to the king, and the Roman law as to 
 noxae deditio\ On the question of outlawry, Bracton cites 
 several passages from the Code and Digest"", and places the 
 outlaw on the footing of one who has suffered maxima capitis 
 deminutio ; but though he avails himself of the Roman phrase 
 "caput lupinum," the conception of the outlawed man is 
 certainly Teutonic ; as is also the appeal de pace et plagis"^. 
 In this latter case Bracton has introduced a passage as to 
 castration, abortion, circumcision and slaying thieves by night, 
 taken word for word from the Digest*. 
 
 The chapter on Robbery shows a trace of Roman law in the 
 requirement that one complaining of the robbery of another's 
 goods in his charge must show " quod sua intersit appellare^" ; 
 though probably this only means that he must show that the 
 goods were in his custody, which supported an action at 
 Common law. 
 
 The "chapter on Arson agrees with the Digest in that only 
 a civil action could be brought for negligent or accidental 
 burning''. There is no trace of Roman influence in the account 
 of Rape. As to the classes of suicides Bracton follows the Digest', 
 but while the suicide ^^er taedium vitae did not forfeit his pro- 
 perty by Roman law, Bracton allows him only to transmit his 
 lands to his heirs, and writes that he forfeits his movables. 
 
 Bracton's account of Theft affords a good example of his 
 "intelligent copying" from the Roman law. Paulus, whose 
 definition is cited in the Digest and the Institutes, had said* : 
 "Furtuni est contrectatio rei fraudulosa (lucri faciendi gratia^) 
 
 ^ Holmes, C. JL. c. 1 ; Br. f. 122. This appears not in accord with the 
 
 2 Br. ff. 125—129. Cod. 9, 39, 1. Saxon law; v. Holmes, C. L. 168, et 
 9, 40, 2. Dig. 48, 8, 3, 6 : 47, 16 : Br. ff. 150, b : 151. 
 
 48, 17. « Br. f. 146, b. Dig. 48, 19, 28, 12. 
 
 3 Bigelow on Torts, p. 222. ^ Dig. 48, 21, 3, 4. Br. f. 150. 
 
 * Dig. 48: 8, 3, 8, 9, 11. Br. f. « Dis. iv. 1, 1. Dig. 47, 2, 1, 3. 
 
 144, b. Cf. also a passage on infants Paulus ad Edictum. 
 
 and madmen: Br. f. 136, b. Dig. iS, » So in Digest; the MSS of the 
 
 8 12. 7».-;^(<i((cs disagree as to inserting these 
 
 5 Br. f. 140. Cf. Just. Inst. iv. 1, 13. words. Sandars, 400.
 
 110 BRACTON ON 
 
 vel ijysius rei vel etiam iisus ejus possessionisve." Bracton words 
 his definition "Furtum est secundum leges contrectatio rei alienae 
 fraudulenta cum animo furandi, invito illo domino cujus res ilia 
 fuerit^'". He thus makes two important omissions from, and two 
 additions of less importance to, the Roman definition. He omits 
 (1) lucri faciendi gratia, (2) usus possessionisve : he adds (1) in- 
 vito domino ; (2) cum animo furandi. 
 
 To deal first with his additions. That the unwillingness of 
 the owner of the thing stolen was an essential element in theft, 
 was clearly laid down by the Roman writers : "Furtum fit 
 generaliter cum quis alienam rem invito domino contrectat'^ " ; 
 even the use of a thing, believed to be contrary to the will of 
 the owner but in fact not so, was at first not theft, till it was 
 made so in the case of slaves who were enticed to steal, in 
 order to detect the enticer^ Theft must be invito domino, and 
 that unwillingness must be known to the thief: Sir J. F. 
 Stephen's doubt as to whether it was an essential element 
 seems over-cautious*. Similarly the addition "cum animo 
 furandi " is contained in Roman law, " quia furtum sine affectu 
 furandi non committitur" !' But there was a difference as to 
 the time when the animus furandi must exist : according to 
 English law, if the first taking was lawful, no subsequent taking, 
 with some exceptions, could amount to theft® ; and so Glanvil 
 had said : " a furto enim omnimodo excusatur ^jer hoc quod 
 initium habuit suae detentionis per dominutn illius rei." This 
 doctrine indeed finds some countenance in Roman law", but the 
 weight of authority is opposed to it^ 
 
 Bracton's omissions are more important. So long as there 
 is a fraudulent taking, it is immaterial in English law whether 
 it be " lucri faciendi gratia," or from any other motive^, and 
 Bracton therefore omits the phrase. Similarly the English law 
 
 1 Br. f. 150, b. Quaere: whether « Stephen, i. 31, m. 130. Glan. x. 
 '^secundum leges" here refers to the 13. 
 
 Roman Law. 7 j),-^. 47^ 2, 68, pr. 
 
 2 Inst. IV. 1, 6. 8 Ins. iv, 1, 6. Dig. 41, 2, 54, 1. 
 ^ Ibid. 8. Big. 47, 2, 48, 4 ; which Stephen cites 
 * Hunter, Roman Law, pp. 87, 88. seems rather to relate to the aciio Zocafi 
 
 Stephen, C. L. iii. 131. than actio fiirti. 
 
 5 Ins. IV. 1, 7. 9 Stephen, C. L. iii, 132.
 
 THEFT. Ill 
 
 has always required an intent to deprive tlie owner of liis 
 property ; a temporary deprival of possession is not theft ; the 
 definition therefore omits "usus 2^ossessionisve ejus." Bracton 
 thus appears merely to have adopted the Roman phraseology, 
 with such a revision as was necessary to make it accord with 
 English law. The same procedure is observed in his appropri- 
 ation of the Roman distinction of furta manifesta vel nee 
 manifesta, which in the Roman law, is a distinction of substance, 
 involving a difference of crime and punishment, while in 
 Bracton it relates mainly to the procedure against the thief and 
 the evidence of his crime. Thus furtum nee maiiifestum is 
 "ubi quis suspectus est de latrocinio per famam patriae, per 
 indictamentum et rectum, et ubi graves praesumptiones faciunt 
 contra ipsurn^" Furtum manifestum is "ubi latro deprehensus 
 est seisitus de aliquo latrocinio, scilicet ' hondhabende et bac- 
 berende,'" wdiich exposed him to the summary procedure of 
 infangentheof, no other proof being necessary. Bracton's account 
 of theft indeed deals almost entirely with procedure, and the 
 later subtleties of the English law find no anticipation in him. 
 
 His account of the relation of husband and wife shows very 
 slight traces of Roman influence, though he cites the Digest as 
 to respite of sentence on a pregnant woman ^ He cites the 
 Roman definition of injuria, quod non jure fit, and its application 
 to oral or written defamation as well as blows^: he follows the 
 Roman law in allowing a lord to bring an action for injuries to 
 his serfs, but goes beyond it, in allowing the serf also to bring 
 an action*. The distinctions as to injuria Levis vel atrox^, and 
 as to the character of the injury^ the rule as to an action 
 against the procurer of the injury', and the cessation of the 
 action dissiniulatione^ are all taken directly from the Institutes. 
 
 But the greater part of the treatise is occupied with proce- 
 dure which appears free from any Roman influences, though 
 Giiterbock points out traces of the Canon law I As to the 
 
 1 Br. f. 150, b. ^ Cf. ibid. Zoco, veluti si inconspectu 
 
 2 Br. f. 151, b. Dig. 48, 19, 3. praetoris, with Br. f. 155, b, loco, si in 
 
 3 Ins. IV. 4, pr. 1, Br. f. 155, b. curia domini regis. 
 
 * Bigelow on Torts : Boston, 1875. ^ Ins. iv. 4, 11. Br. f. 155, b. 
 
 pp. 224, 225. Br. ff. 115, 155, b. « Ibid. 12. Ibid. 
 
 5 Ins. ly. 4, 9. Br. f. 155, b. " Ciiit. pp. IfiS— 171.
 
 112 CRIMINAL LAW. 
 
 definitions of crimes, Sir J. F. Stephen says that "the influence 
 of the Roman law is clearly traceable in all the definitions, 
 though it was in all cases adopted with modifications peculiar 
 to England \" The result of our examination shows this to be 
 too wide. Roman law is only clearly visible in Bracton's 
 account of theft and injuria ; there are very slight traces of it in 
 Homicide, Laesa Majestas, Crimen Falsi, and Occultatio 
 Thesauri; but in Wounding, Maim, False Imprisonment, 
 Robbery, Arson and Rape, there is, I think, nothing to show 
 any use of the Roman law. And as to those crimes which do 
 show traces of Roman influence, the last part of Stephen's 
 remark is emphatically true. It is clear that where the law of 
 England is contrary to the law of Rome in Criminal Law, 
 Bracton has followed the law of England. 
 
 Remainder of Bracton. 
 
 Bracton's Fourth Book is composed of Treatises on the differ- 
 ent Assizes or forms of real action. The word '^assize" denotes, 
 (1) a legislative act, as the Assize of Northampton; (2) the form 
 of trial established by a particular legislative act, as the Assize 
 of Novel Disseisin ; and (3), its modern sense, the court which 
 holds such trials, the Assizes^ Its development is of interest in 
 the history of Trial by Jury and the progress of the Curia Regis, 
 but shows no traces of Roman influence. At the time of 
 Glanvil the assize was a jury to determine by sworn inquest 
 the right to seisin, while preliminary questions which did* not 
 involve that right were decided jjer juratam. " Trial by jury " 
 thus meant the method of determining issues not tried by an 
 assize^ In the time of Bracton, the assize might be turned 
 into a jury to try preliminary questions. Assizes however 
 gradually gave way before the superior advantages of the action 
 of ejectment. 
 
 The Assize of Novel Disseisin shows marked traces of Roman 
 
 1 C. L. II. 202. and the Assize Mr L. 0. Pike's learned 
 
 " Stabbs, I. 573. Preface to the Yearbooks, 12 and 13 
 
 3 Bigelow, L. C. on Torts, p. 346. Edw. III. in the Rolls Series, Lond. 
 
 See also on the relations of the jjirata 1885.
 
 ASSIZE OF NOVEL DISSEISIN. 113 
 
 influence. It is first mentioned in 1170 in the Assize of North- 
 ampton: " Item justitiae domini regis faciant fieri i^ecognitionem 
 de dissaisinis factis super Assisaiu^," but the actual Assize in- 
 troducing this form is probably lost Glanvil alludes to it thus 
 "de libera tenemento suo disseisito hujus constitutionis beneficio 
 subvenitur^," and Bracton says/'de beneficio principis succurritur 
 ei per recognitionem assisae novae disseysinae, midtis vigiliis ex- 
 cogitatam et inventam^." A measure introduced at a time when 
 the influence of the Roman law was at its height was likely 
 to, and does bear strong traces of Roman influence. 
 
 A man turned out of possession of land might, according to 
 Bracton, use force to reinstate himself sine aliquo intervallo, for 
 he had only lost possessio naturalis, not civilis*. But if he had 
 not re-ejected his disseisor while the disseisin was "flagrant," 
 his only remedy was the Assize of Novel Disseisin, the results of 
 which might be corporal punishment for the " Spoliation " 
 against the peace of the realm, pecuniary damages for the 
 unjust detention, and the recovery of the land and of its mesne 
 profits I Now this Assize in its leading features shows strong 
 similarity to the Interdict Unde vi, and also to the Remedium 
 Spoliationis of the Canon Law®. 
 
 Both applied only to immovables, and Bracton has so far 
 identified them as to quote the Digest that ejectment from a 
 ship did not give such a remedy^ Both implied a previous 
 disseisin, and in each something turned on the character of the 
 disseisin. The Roman remedies were different according as the 
 disseisin had been unarmed or by vis armata, and Bracton has 
 adopted the same distinction, and quotes largely from the 
 Digest to illustrate it^ though it does not lead to any practical 
 results. The Assize could only be brought by those "qui 
 
 1 Stubbs S. C. p. 145 § 5, Twiss, « Br. f. 161, b., 164, b. Bigelow, 
 III. Pref. p. 12. 347. 
 
 2 Gl. XIII. c. 32: cf. c. 88, poena « Giit. p. 161. Bracton frequently 
 Inijusmodi constitutionis; ex beneficio uses the term: e.g. spoliationem contra 
 constitutionis regiae. pacem. Br. f. 161, b. 
 
 3 Br. f. 164, b. ^ Br. f. 168. D(V/. 43, 16, 1, 7. 
 
 ■* Br. f. 162, b: 163, Twiss, iii. Pref. » cf. Br. f. 162, b. Di,j. 43, 16, 3 ; 
 
 24. Giiterbock, pp. 159— 165, "Williams, 5—11. 
 p. 219. 
 
 S. 8
 
 114 ASSIZES AND INTERDICTS. 
 
 nomine siio propria tenementum tenent et non alieno^." For, 
 as the Digest said, '' p)ossessor alieno nomine non possidet licet 
 in possessione fuerit'^" and possession, not property, is the basis 
 of both the Assize and the Interdict ^ The Interdict was 
 available for a mere possessor, whether dominus or not, unless he 
 had originally obtained possession from his disseisor vi clam aut 
 jyrecario *. Both English and Roman Law forbade the ejected 
 person from taking the law into his own hands unless immedi- 
 ately on the disseisin, when the force used might be considered 
 as self-defence^ 
 
 But while the main outlines of Assize and Interdict are the 
 same, the details of the Assize are purely English, and the 
 numerous intricacies of feudal law are carefully explained in 
 their bearing on the Assize. Though this material is non- 
 Roman, the form of the discussion shows the Roman tone of 
 Bracton's mind. He cites the Civil and Canon Laws to show 
 that the claimant must succeed on the strength of his own title, 
 not the weakness of the possessor's®, and quotes the "jiis 
 gentium" in a curious way to prove that "agris sunt termini 
 positi\" The maxim nemini res sua servit is adopted under 
 the form "•nemini servii'e j^otest suus fundus proprius^;" the 
 Digest De vi is laid under constant contribution, while Roman 
 phrases are plentifuF. 
 
 It seems probable, therefore, that the Assize of Novel 
 Disseisin, introduced by direct legislation when the Roman law 
 
 1 Br. f. 165. « Br. f. 183, b. 
 
 2 Dig. 41, 2, 10, 1. Br. f. 167, b. 7 Br. f. 211. 
 
 3 Br. 166, b, item competit cuilibet, 8 f. 220, b. 
 
 quis propria nomine fuerit in seisina " e.g. scintilla juris, haereditas ja- 
 
 juste vet injuste,...non competit alieni cens, res sacrae et sanctae, with quota- 
 
 assisa nisi ei qui possidet. tions from the Institutes as to walls 
 
 f. 195, b. (of a person possessing (ii. 1, 10, Br. 207, b,cf.Br.f.8):/a7Wj7(a, 
 
 unjiistly against the true lord), — quia si with quotations from the Digest as to 
 
 ab illis disseisitus fuit qui jus non the use oi vis hj a famiUa, (Br. i. Ill, 
 
 hahent, recuperahit mcontinenti per b, D/(/. 43. 16. 1. 12 — 11): infamia as a 
 
 assisam; sed quantum ad verum do- punishment of perjured jurors (f. 181, 
 
 minum, si recenter ejectus fuerit, non b) peremptoriae et dilator iae excepti- 
 
 reciiperahit. ones, actio directa,replicatio, justa pos- 
 
 * Hunter, R. L. p. 105. sessio praetore auctore, possessor malae 
 
 " Br. f. 103, b. cf. Dig. 43, 16, 17, 9. MeU etc. 
 Giit., p. 163.
 
 ASSIZE MORT 1) ANCESTEU. 115 
 
 was of great authority, derived at any rate its leading features 
 from that source. It was unlike the Saxon procedure for the 
 recovery of land, in which the mere assertion of a right to the 
 possession of the land by the claimant was enough to compel 
 the possessor to answer, and the possessor's answer on oath that 
 he had such a right was sufficient to end the suit in his favour'. 
 In the Assize of Novel Disseisin, the claimant must prove a 
 right superior to the possessor's, who in turn need only prove a 
 right better than that of the claimant. 
 
 The Assize Mort Uancester", by which the seisin of a tenant 
 deceased was acquii-ed for the next heirs, is expressly compared 
 by Bracton to the Interdict Quorum Bonorum by which the 
 Roman honorum possessor acquired the property of the inherit- 
 ance. But this only lay for corporeal property, while Bracton 
 expressly states that the Assize could recover all things of which 
 the ancestor was seised, sive consistunt in corpore, fiive in jure^. 
 On the other hand both the Interdict and the Assize were only 
 available to the propinquior heres*; it was not sufficient that lie 
 was nearer in title than the possessor, he must be the nearest in 
 title. In this the Assize has broken away from the Teutonic 
 procedure, in which the claimant simply declared that he had 
 a better right to the inherited property than the defendant^ 
 
 The position of the doctrine of Representation has already 
 been noted, and Bracton here refers to the Casum Regis, by 
 which an uncle in seisin is preferred to his elder brother's son 
 out of seisin ^ The rule, which certainly prevailed later, as to 
 the half-blood ^ that neither uterine brothers, nor brothers by 
 the same father, could succeed to each other, probably resulted 
 from an injudicious application of the custom of Normandy, 
 which only forbids the succession of uterine half-brothers, and 
 which is attributed by Maine to the survival of agnation ; for 
 under this system such persons would not be related, though 
 the same reason would not exclude half-brothers by the same 
 
 ^ Anglo-Saxon Laiv, pp. 242, 327, 365. "■ A nglo-Sa.von Lmc, p. 258. 
 
 « Br. ff. 252—280, b. « Supra, p. 45. Br. f. 267, b. 
 
 3 f. 252. " Br. f. 267: but cf. f. 65, b. and 
 
 ■* Moyle on Inatihites, i. 594, note, supra, p. 1)6. Maine, Ancient Law, p. 
 
 Br. f. 252, b, 255 b. Cod. 8, 2, 1. 151. 
 
 8—2
 
 116 WRIT DE INGRESSU. 
 
 father. The great bulk of this Treatise is English, though 
 Roman influences are perceptible in some passages on posses- 
 sion\ and in the presumption of paternity ^ 
 
 The Writ de Ingressu ^ is brought by the heir of a deceased 
 landlord against his ancestor's tenants ; and Sir T. Twiss refers 
 this, in its descent from Anglo-Saxon laenland, to the Roman 
 locatio-conductio*. As the introduction of books is clerical, this 
 may be so as to booMand, but it is doubtful whether any hookland 
 was laenland, and the suggestion hardly seems to touch the "un- 
 booked laefis" universal in manors ^ In the Writ de Recto Sir 
 T. Twiss states that two of the rules of procedure are "heirlooms 
 of the early Roman settlers in Britain''." The one requires the 
 service of a summons at the principal domicil in a county ^ the 
 other an interval of 15 days between the service of a summons 
 and the appearance of the party served in courts He gives no 
 authorities for these assertions and I am not aware of any ; the 
 latter seems contrary to fact. The Roman procedure of a written 
 summons, lihellus conventionis, was hardly fully established till 
 the time of Justinian; and the period between service and ap- 
 pearance was, at first 5, then 10, under Justinian 20, but never 
 15 days, while the summons in Bracton appears to be oral^ 
 
 The long treatise on Essoins seems purely English. That on 
 defaults of appearance, De Defaltis, is noticeable for the number 
 of Roman jDhrases used ^^ but otherwise is English. 
 
 In the Treatise on Warranties" Sir T. Twiss is of opinion 
 that the principle of implied warranty of title by the vendor, or 
 liability to make compensation for cases of failure to warrant, 
 was not Teutonic, (for it is not, he says, found in any Teutonic 
 codes, though he recognizes similar provisions in the laws of 
 
 1 f. 262 : et cf. f. 264 ''justum titidum « Br. f. 327, b. Twiss, v. Pref. p. 44. 
 etjustam cmisam possidendi.'^ ' f. 333, b. 
 
 2 f. 278. ^ f. 334. 
 
 3 The treatises on the Writ of ^ Hunter, R. L. 810. 
 
 cosinage, Assisa ntrum, and the " e.g. litis contestatio, scilicet quoiis- 
 
 Writ of dotver, show no further traces que fuerit praecise responsum inten- 
 
 of Roman influence. As to the last tioni petentis {i. 373).: actio quodmetus 
 
 see s»/)ra, pp. 97, 98. causa (f. 373. h.): jus accrescendi, f. 
 
 ■» Br. f. 318. Twiss, v. Pref. p. ix. 374 : actio mixta, f. 369. b. 
 
 5 V. supra, p. 23. Pollock, Land " f. 380, b. Twiss, vi. Pref. pp. 
 
 Laws, p. 194. 9—11.
 
 WARRANTIES. 117 
 
 the Bavarians and Visigoths), but Roman. Yet the authors of 
 " Anglo-Saxon Law " expressly cite provisions as to warranty 
 both in immovables and movables^; — both as to the liability of the 
 auctor or vendor to be substituted for his vendee in a suit brought 
 against the latter, and his liability to compensate the vendee 
 in case of his failure to warrant ; and these provisions were 
 radically different from the Roman procedure. As the Lombard 
 Law says: — " Langobardus semper dat auctorem et nunquam 
 stat loco auctoris ; Romanus semper stat loco auctoris et nun- 
 quam dat auctorem'^.'" It is true that by Roman practice 
 the buyer could immediately after eviction give notice to the 
 seller who might if he chose prosecute the action, but the 
 buyer could not bring an action against the seller, till sentence 
 had been pronounced ; and this sentence was in form against 
 the buyer, and not, as in English Law, against the warrantor^ 
 The procedure by vouching to warranty appears to follow 
 Teutonic models, and to have no connexion with Roman 
 procedure. Twiss' assertion^ that Glanvil's third book on 
 Warranties shows a Roman hand is only justified by the 
 use of the phrases commodatum, locatio &c., in its first few lines ; 
 for the subsequent statements that the warrantor appearing 
 becomes the principal in the suit which is carried on in his 
 name, and that, failing to warrant he must compensate the 
 tenant, with the procedure stated, are purely Teutonic and 
 not Roman*. 
 
 Considering that the idea of Exceptions is entirely Roman, 
 the long treatise on Exceptions which concludes Bracton's work 
 contains very little Roman material. The division into ex- 
 ceptiones peremptoriae et dilatoriae is Institutional^, while the 
 subsequent replicatio, triplicatio, appear in the Digest^. The 
 last chapter in the work deals very briefly and on Institutional 
 lines, with the actiones communi dividundo, familiae herciscundae, 
 finium regundorum. The exceptio rei judicatae is j ust mentioned , 
 
 1 Anglo-Saxon Laiv, pp. 219, 254. 399, b. 
 
 2 Domat.,i. 2. 10. Hargreaves' note ^ Diff. 44, 1, 2: the Institutes Lave 
 315 on Co. Lit. i. 3G5, a. dujylicatio, which Bracton omits, but 
 
 3 Twiss, VI. Pief. 12. Glan., iii. 1. adds rjnadrupUcatio. The exi)hination 
 * Anglo-Saxon Lmv, pp. 219, 254. of repVicatio is from Inst. iv. 11. pr. 
 " Ins. IV. 13, Big. 44, 1, 3. Br. f. Br. f. 400, b.
 
 118 EOMAN LAW ON PLEADING. 
 
 but the other exceptions cited in a previous part of the work are 
 not even referred to'; the Roman principle acto7- sequitur forum 
 rei is quoted ^ but otherwise all the Roman matter introduced is 
 from previous parts of the work I 
 
 Nor does it seem that the influence of Roman Law upon 
 pleading was ever very large, though the contrary opinion is 
 widely held*. It is true that the formula bears some resem- 
 blance to the assize or writ, in that both were drawn up before 
 the parties proceeded to the trial of fact, and formed the basis 
 on which the trial of fact continued, but there are marked 
 differences in procedure. The formula contained in its ex- 
 ceptiones a number of defences, which in the Assize were raised 
 as pleas when the parties came to trial. When the Praetor had 
 settled the formula his work was done, and the issues of fact 
 went to a judex with power to pronounce sentence ; but, while 
 the assize was in a settled form, all the defences to it were 
 raised orally before judge and jury in open court, and the jury 
 considered their verdict under the direction of the judge, who 
 gave judgment on their findings of fact. The record, as drawn 
 up when pleadings became written, bears some resemblance to 
 the formula in that the case of the two parties is contained in 
 one written document. But the important point in the English 
 suit is the issuing of the writ, and not the joinder of issue, 
 which answers best to the litis contestatio. The Roman and 
 English procedures are so different, that the identification of 
 judex and jury made by Finlason and other writers is truly 
 astonishing^. 
 
 Neither has Bracton's phraseology had much effect on the 
 English Law ; Exceptions have gone out of use, for the " Bill of 
 Excei^tions " of old procedure has no analogy to them. Indeed 
 Bracton's " exceptiones " were not Roman ; they were direct 
 traverses of fact, while the Roman ones were " confessions and 
 avoidances " similar to the old " equitable pleas." The Replica- 
 
 1 Supra, p. 103, note 7. ^ Story, Eq. PI. § 14. Spence, i. 206. 
 
 ^ f . 401. Starkie, Ev. i. 4. Stephen on Pleading, 
 
 ' e.g. on monsters, f. 438, b , on actio Appendix, Notes, 2. 29. Williams on 
 
 mixta, f. 443, b., Ins. iv. 6, 20, furiosi. Institutes, 208. 
 
 sitrdi et muti, f. 420, b.
 
 RESULTS. 119 
 
 tion which survived till the Judicature Acts, and still exists 
 in the Mayor's Court, was not used in the same sense as in the 
 Roman Law. But " peremptory and dilatory pleas " existed 
 before the Judicature Acts in the same sense as the correspond- 
 ing Roman exceptions. 
 
 Results. 
 
 This inquiry, perhaps tediously minute, enables us to 
 attempt to answer the questions with which we started. 
 Bracton's work can be divided into three parts : — 
 
 I. The part in which he has copied with almost verbal 
 accuracy, Azo, the Institutes or the Digest. This consists of 
 perhaps 25 folios out of the 450 or so of which his work is 
 composed, — to be found in Bk. i. (except cc. 8, v. 10) ; Bk. ii. 
 c. 1 — 4; Book iii. ffs. 98 b — 104 b. The First Book, which treats 
 of the Law of Persons, is derived from Azo's summary of the First 
 Book of the Institutes : — the last chapter of the First Book and 
 the four chapters of Book ii., which state the means of acquiring 
 things jure gentium, from Azo's summary of the Institutes: the 6 
 folios in Book III. which deal with contracts, from the Third 
 Book of the Institutes and the Digest. The matter taken is in 
 several places modified to represent the Law of England, and 
 frequent omissions of unsuitable parts show an intelligent 
 copying. 
 
 II. A part in which Roman principles appear to be the 
 framework, though large masses of English matter are moulded 
 on them. This consists of the rest of the second and the first 
 treatise of the 3rd book, and the treatise on the Assize of Novel 
 Disseisin ; it deals with donation, possession, inheritance, and 
 the outline of the theory of actions and obligations, and perhaps 
 comprises from a third to a quarter of the work. Embedded in 
 the English matter are some unacknowledged citations from the 
 Institutes, Digest and Azo ; but they are not very frequent or of 
 great importance. The influence of Roman principles is clearly 
 seen here, especially in the treatment of possession, though 
 sometimes their only effect is to give a form to English matter. 
 
 III. The remainder, and greater part, of the work shows in 
 my opinion, very slight, if any, traces of Roman influences.
 
 120 WAS BRACTON 
 
 Eoman terms are occasionally used, as was natural with a writer 
 well acquainted with Roman law, and dealing with a system till 
 then lacking in form and precision. The few citations from 
 Roman sources have usually done duty already in other parts 
 of his work, and make no important additions to the matter in 
 hand. About two-thirds of the work is of this character, English 
 in its matter with some slight traces of scholastic form. 
 
 As to the Roman law which Bracton actually incorporated, 
 did he, as Spence and Gliterbock hold\ only reproduce what was 
 already held as valid law in England, being thus a trustworthy 
 source of law and not a plagiarist; or, as Sir Henry Maine suggests^, 
 did he actually introduce new Roman matter as English law. 
 There seem to me to be no materials in existence for a positive 
 answer to this question; but I myself should incline to agree 
 wdtb Sir H. Maine, (though I think his estimate of Bracton's 
 indebtedness is as excessive as that of Mr Reeves is under the 
 mark^), that as regards the first j)art of Bracton's work, it was 
 new matter to the English Law, directly copied from Roman 
 sources, to fill up a framework of his first three books which he 
 had adopted from the Institutes. As to the second part, I think 
 that Bracton has both introduced new Roman matter, and repro- 
 duced English lav\r, derived from the Roman by the decisions of 
 other clerical judges, and then recognized as the Law of the Land. 
 
 Li considering Bracton's 1st Book, a conjecture was offered 
 as to his method of writing^, and we have found no reason to 
 depart from the opinion there expressed. English Law was 
 reduced to order on a Roman framework, furnished with many 
 Roman terms, its gaps filled up with actual Roman matter, so 
 long as this was not inconsistent with English Law. At the same 
 time Roman influences, acting on the judges, vary some existing 
 English rules, such as those as to nuptial donations, curtesy, and 
 forfeiture of earnest. But I know of no case where Bracton has 
 cited Roman law, the previous English rules being to a contrary 
 effect, unless indeed some recent decisions give him warrant. 
 On the contrary we have seen many examples of his "intelligent 
 
 1 Spence, I. 123, 12i. Giit. p. 57. whole of form, Anc.Lau-, p. 82. Keeves, 
 - Maine, Ancient Law, p. 82. not tluee pages; i. .529. 
 
 3 Maine, one-third of matter, and ■* V. supra, p. 82.
 
 A PLAGIARIST? 121 
 
 copying", as in the adaptation of the definition of theft, the 
 conception of donatio, and the account of treasure-trove : and 
 this "intelligent copying" contrasts strongly with the unintelli- 
 gent plagiarism of his followers, which converted the actio 
 familiae herciscundae into "accioun mixte, que est appele en la 
 ley le Emperour accioun de la mesnee dame de Ilerciscunde^." To 
 him English law is undoubtedly indebted for an extensive 
 Roman terminology which survives to the present day; the 
 Roman form of his first three books has been less fortunate, 
 though Blackstone's Commentaries show some traces of its 
 influences. But I do not think that Bracton himself is 
 responsible for many material alterations based on the Roman 
 law, though he records some important ones which have been 
 made by his predecessors and contemporaries under civilian 
 influences; and certainly M. Houard's charge against him of 
 Romanizing the law of England cannot to any serious extent be 
 justified. 
 
 1 Britton, iii. 7, 1. F. post, p. 124.
 
 CHAPTER IV. 
 
 ROMAN LAW IN BRIXTON AND FLETA. 
 
 The work of Bracton attained great repute', while its size 
 and cost prevented its being easily consulted. Several abstracts 
 or epitomes were therefore compiled with more or less fidelity, 
 which served to make known the law as contained in Bracton. 
 These were the treatises known as Fleta and Britton, and a 
 Summa by Gilbert de Thornton. 
 
 This latter may be briefly dealt with as no copy of it is at 
 present known to exist'. Selden had a MS. in his library, of 
 which he has left us some account. The abridgment was made 
 about the year 1292, and its title expressly states that it is 
 "Summa de legihus...Angliae a Magistro Henrico de Brijctona 
 composita...quam Ds. Gilhertus de Thornton ahhreviavit sub 
 compenddo:' The order of the work is slightly different from 
 that of Bracton : Selden says : " He, as is usual with Epitomi- 
 sers, passes by a great many things, neither does he always 
 follow Bracton's method, but sometimes another and makes a 
 different distribution." We have very little information as to the 
 Roman or English character of the work^ 
 
 1 See the letter of R. de Scardeburgh Britton, i. Pref. 25. 
 
 borrowing a MS. of Bracton from the » Selden says "He is sometimes 
 
 Bishop of Bath, and promising to an excellent interpreter and expositor 
 
 return it in 6 months. Selden ad of Bracton... though he passes by al- 
 
 Fletam, ii. 2. most all the quotations of the places 
 
 2 Giiterbock, p. 68. Selden ad cited out of the books of the Imperial 
 Fletam, ii. 4. Mr Kenny's censure on Law by Bracton, and which are basely 
 English illiberality for not printing handled by his Editors"— {v;a3 this 
 Thornton would be more applicable if prophetic of the Rolls' Edition?): "but 
 he would tell us where to find a copy he has not omitted them all " : and in 
 of Thornton to print. See Nicholl's the following chapters (in. 1, 2) he
 
 FLETA. 123 
 
 "Fleta, sea Gommentarius Juris Angltcani \" is so called from 
 its composition in the Fleet Prison, and is believed to have been 
 written about 12921 It is in Latin, and it abridges Bracton 
 carefully, though the an-angement differs, and the work is about 
 half the size of the original. But besides omissions the author 
 adds new matter which is sometimes of a Roman character. He 
 mentions the Corpus Juris, as where, in speaking of accession 
 by ferruminatio, he says "Secundum quod Institutis legitur, uhi 
 dicitur quae pars alteri accrescere dehet^." Except in this 
 case he does not expressly quote Roman sources, though 
 Bracton's incorporations are reproduced, in many cases word for 
 word, and in some cases strengthened. Tlius Fleta expressly 
 gives as a reason for the prohibition of donations inter conjurjes*, 
 ^' quia omnino hoc prohibetur in lege:... verba autem legis sunt 
 hujusmodi." Bracton's citation as to the effect of felony is 
 reproduced with the heading et ad hoc facit Lex imperatoria^, 
 which also serves to introduce the citation as to the respite of 
 pregnant women". New Roman matter, not found in Bracton is 
 introduced in the chapter " i)e dotis constitutione" : and some 
 Canonical authorities are citedl Bracton's arrangement is 
 followed except that the subject of criminal law and a book on 
 personal actions are introduced between Books I. and II. of 
 Bracton. 
 
 The work called " Britton^," probably because it was 
 considered as an abbreviation of Bracton, is written in Law 
 French, between 1290 and 1300^. During this period the 
 
 refers to passages where Thornton has * iir. 3, 12, 15. 
 
 followed Bracton's Koman incorpora- ^ in. 10, 3 ; cf. Britton, iii. 7, 1 ; 
 
 tions. on another subject "e/i la ley le 
 
 1 Giit. p. 69: Nicholl's Britton, i. Empcrour.'" 
 Int. 25. Twiss' Bracton, vi. Pref. 18. « i. 38. 15. 
 
 Selden ad Fletam. Fleta, ed. 1647. ''v. 23 : Giit. p. 70 : On the other 
 
 2 Nicholls, " in course of preparation hand, dos profectitia appears in Fleta 
 in 1290." Giiterbock: " composed after (v. 23, 4), as dos perj'ectiva. 
 
 1292." rz(7jss, " shortly after 1292, if 8 Nicholl's LV/«o«, 2 vols. Clarendon 
 
 not in that year." Press, 1865. Giiterbock, p. 72. Twiss, vi. 
 
 3 Fleta, HI. 2, 12. Bracton in the Pref. 18, 62. Selden ad Fletam, ii. 3. 
 corresponding chapter also refers to " Giiterbock, 1297; Nicholls: "1291 
 the Institutes, but on a different point, —1292 is the approximate date for the 
 the accession of pictures. Br. f. 10. origin of this book." Int. p. xviii.
 
 1 24 BRITTON. 
 
 influence of Edward I.'s legislative ability was very great, and 
 the three short treatises we have spoken of show the interest 
 taken in the law. Britton especially bears marks of royal 
 instigation; its form, in the first person plural, "nous voulums', 
 and its constant references to " our writ ", strongly suggest that 
 it is a work undertaken by royal command. Mr Nicholls is of 
 opinion "that Fleta was first written, and, together with Bracton 
 was in the hands of the author of Britton, who appears to have 
 more frequently made use of the compendium of Fleta, than of 
 the larger work\" The work, as a whole, is far more practical 
 and modern than that of Bracton, and though it reproduces 
 some of his Roman incorporations, it is distinctly less civilian in 
 character^ I have only been able to find one express reference 
 to the Eoman Law, and that, a most ludicrous misunderstanding. 
 Britton following Bracton on actiones mixtae comes to the 
 " actio familiae herciscundae," which appears in all the MSS in 
 a form implying that " Herciscunda " is a female proper name' : 
 Nicholls' reading is "que est appele en la ley le Emperour\ 
 accioun de la mesnee dame de Herciscunde" This may be 
 called unintelligent plagiarism, as compared with Bracton's 
 intelligent copying. But the Roman matter in Bracton is much 
 abbreviated and reduced, and thus the tendency of the use of 
 Britton would certainly be to weaken Roman influences. 
 
 1 Nich. Int. p. 27. ^ Britton, in. 7, 1 : this phrase is 
 
 2 Cf. Bracton De acquirendo Rerum unfortunate : Coke speaks of familia 
 doviinio, Bk ii. c. 1—4 : with Britton, herciscunda as a tenure ! Sub, p. 130. 
 11. 2, which is Eoman, but much ah- •* Cf. Fleta, Lex Imperatoria. 
 breviated and modified.
 
 CHAPTER V. 
 
 EOMAN LAW FROM FLETA TO COKE. 
 
 As in Britton, so in later writers, though Bracton is quoted 
 constantly, we find his Roman form gone and his Roman matter 
 seldom reproduced ; and the preface to Staunford's Pleas of the 
 Crown expressly states : " Citavi non pauca e Bractono et Brit- 
 tono, vetustis legum scriptorihus, hoc consilio ut cum leges Coronae 
 magna ex parte jure statuario constant, ponatur ante legentis 
 oculos commune jus quodfuit ante ea statuta condita^^ Staunford's 
 work cites Bracton at great length, and includes the whole of his 
 canonical division of homicide ^ and his semi-Roman definition 
 of theft'. He also quotes the passage on justice, which Bracton 
 had taken from Azo*. 
 
 There is a curious book, described by Butler as "an ingenious 
 but neglected work," which, had its author fully carried out his 
 plan, might have been of great interest in this essay. It is entitled : 
 "A Parallel or Conference of the Civil Law, the Canon Law, and 
 the Common Law of this realm of England, wherein the agree- 
 ment, and disagreement of these three Lawes, and the causes and 
 reasons of the said agreement and disagreement are opened and 
 discussedV The author, William Fulbeck, dedicates his work 
 to the Archbishop of Canterbury, " to whom his Mnjesty hath 
 
 1 Ed. 1007. With this cf. similar •* Ibid. Part i. c. 15. 
 
 statement in the Proa'iiiium to Coke's ■* H'id. ii. c. 1. 
 
 •2nd Institute. '' London, IHOl. 
 
 - Staunford, Part i. c. 4.
 
 126 fulbeck's parallel. 
 
 committed the executing and maintenance of the Civil and 
 Canon Laws," I suppose in the Ecclesiastical Courts. The form 
 is that of a dialogue in which Nomomathes, a wealthy patron 
 of learning, inquires of Codicignostes, Canonologus, and Anglo- 
 nomophylax, as to the provisions in various points of their 
 respective laws. Unfortunately Fulbeck's historical faculty is 
 not very keen, and he does not fulfil his promise to " discuss the 
 causes and reasons of agreement and disagreement." The book 
 consists of questions by the patron, and short statements of the 
 Civil and English laws by their respective advocates, the 
 professor of Canon LaAV being unexpectedly quiet. That the 
 result is not of very great value may be seen from the fact that, 
 though Codicignostes cites Paulus' definition of theft, the 
 Eno-lish lawyer does not note the omissions which Bracton had 
 thought necessary, and which were still required, to make it 
 English Law. The most interesting passage I have found is 
 one as to the crime of procuring abortion^; the Civil lawyer 
 states it to be homicide to kill an infant in its mother's womb, 
 to which Anglonomophylax answers " In Bracton's time it 
 seemeth that our Law did in this point somewhat nearly agree 
 with yours, for he hath these words " (citing Bracton) " but 
 now the law is altered." 
 
 Fulbeck is of opinion that the Canon Law is " more ancient 
 than the other two and of greater continuance " : while as to 
 the Civil Law he is curiously doubtful. " I do not think that 
 which may properly be called Civil Law, and was so-called at 
 the first is any other than jus Romanum, or comments or ad- 
 ditions to it," While a fuller work would have been interesting, 
 the book is of value as showing that at that time the idea of any 
 parentage or authority of the civil law, as related to the common 
 law, was at any rate not widely spread. They were compared 
 as unrelated systems of separate growth. 
 
 But advocates of Roman origin were not wanting. Dr 
 Cowell, Reader on Civil Law at Cambridge, (best known as the 
 author of the " Interpreter," which the Commons attacked for 
 undue exaltation of the Prerogative, and the king disowned as 
 
 ' Fulbeck, p. 100, b, and see ■^iipra, p. 108, uote 7.
 
 CO well's institutes. 127 
 
 "writ only by a civilian by profession, and meddling in 
 matters beyond his reach,") had endeavoured to maintain the 
 unity of the Civil and Common Law, in a book published in 
 1605 and entitled " Institutiones Juris Anglicani ad methodum 
 et seriem Institutionum iniperaliuin compositae et digestae." 
 Its object was to show that the two laws had " eadem utrius- 
 que fundamenta, easdem i^erum definitiones divisionesque, con- 
 sentaneas ))lane regulas, siinilia fere scita sola idiomatis atque 
 
 methodi varietate disparata et redigere largiora ilia leguni 
 
 nostrarum volmnina putidi idiomatis sqiialore expurgnta ad 
 Pandectarum Justinianearum ordinem"; and he concludes that 
 "illani jus et legem nostram communem...quod hactemis linguae 
 obscuritate involutum barharismi notam apud eaieros vix evasit. . . 
 nihil aliud esse quam Romani et feudalis mistionem^." He trans- 
 fers the old authorities, Bracton, Britton, and Fleta into the 
 framework of the Institutes, which Bracton's borrowing's from the 
 Corpus Juris and from Azo enable him in some places to do 
 with great accuracy : as for instance in Book I. on Persons, the 
 commencement of Book II. on the Acquisition of things Jure 
 Gentium, parts of Book III. on Obligations, and Book IV. on 
 Actions. Where a Roman title has no corresponding feature in 
 English law he mentions it, e.g. "wide constat hunc Ronianorum 
 adoptandi morem aut a nobis nunquam receptum, aut jam pridem, 
 quemadmodum et apud Gallos evanuisse^ ;" and "ut tarn arctus 
 non est apud nos patriae potestatis 7iexus quam apud Romanos 
 fuit : sic neque est tarn solennis ejusdem per emancipationem 
 solutio^:" ..."illam tutelam fiduciariam, quam Romani... imposu- 
 erunt, majores nostri pienitus neglexisse videntui-*." 
 
 He accepts the Roman parts of Bracton at any rate as law 
 at the time when they were written, though the curious passage 
 in Bracton as to the sanctity of walls seems to have been 
 almost too much for his faith, for he introduces it with the 
 remark, ''si veteribus juris nosti'i scripiorihus credinms", and 
 concludes "Sed haec p)oena videtur hodie arbitraria^." It is 
 
 1 Pref. 4 p. 37. 
 
 ^ p. 26. ^ p. 51, et .■iupni, p. 82, note 4. 
 
 =* p. 27.
 
 1 28 SIR H. SPELMAN. 
 
 noteworthy that Dr Cowell does not suggest any authority for 
 the Civil Law in the Common Law Courts. 
 
 Another discussion of the matter is found about the same 
 date in the Posthumous works of Sir H. Spelman\ the well 
 known antiquarian, who says " Great portion of our Common 
 Law is derived from the Civil, (unless we will say that the Civil 
 Law is derived from ours), which Bracton also, above 300 years 
 before, right well understanding not only citeth the Digests and 
 Books of Civil Law in many places for warrant of our Common 
 Law, but in handling our Law pursueth the method phrases 
 and matter of Justinian's Institutes of Civil Law... I think the 
 foundation of our Laws to be laid by our German ancestors, but 
 built upon and polished by material taken from the Canon and 
 Civil laws. . .When and how these several parts were brought into 
 our Common Law is neither easily nor definitively to be expressed 
 ...Those no doubt of Canon Law by the prevalency of the clergy 
 
 in their several ages those of Civil Law by such of our reverend 
 
 judges and sages of ancient time, as for justice and knowledge's 
 sake sought instruction therein when they found no rule at 
 home to guide the judgment by. For I suppose they in those 
 days judged many things ex aequo et bono and that their judg- 
 ments after, (as Responsa Prudentium among the Romans, and 
 the Codex Theodosianus) , became precedents of Law unto 
 Posterity." 
 
 1 On the Laio Terms, last chapter, before 1641 (? 1614). 
 pp. 99, 101: published in 1723, written
 
 CHAPTER VI. 
 
 ROMAN LAW IN COKE. 
 
 Sir E. Coke in his Institutes, (themselves Roman in name), 
 takes a decided position as to the authority of the Civil law. 
 He says : " Our common laws are aptly and properly called the 
 laws of England, because they are appropriated to this kingdom 
 of England... and have no dependency upon any forreine law 
 whatever, no, not upon the Civil or Canon law other than in 
 cases allowed by the Laws of England... therefore foreign prece- 
 dents are not to be objected against us, because we are not 
 subject to foreign laws^" — and again "it is worthy of consideration 
 how the laws of England are not derived from any foreign law, 
 either canon or civil or other, but a special law appropriated to 
 this kingdom V And in a side-note he remarks: "Kota differen- 
 tiam... inter malum in se against the Common law, and malum 
 prohibitum by the Civil or Canon law, luhereof the judges of the 
 Common laiu in these cases take no notice^.'' Sir Edward Coke in- 
 deed had not a high opinion of the Civil law. In his Prooimium to 
 the Second Institute, he observes: "Upon the text of the Civil law 
 there be so many glosses and interpretation?, and again upon those 
 so many commentaries, and all these written by doctors of equal 
 degree and authority, and therein so many diversities of opinion 
 as they do rather increase than resolve doubts and uncertainties, 
 and the professors of that noble science say that it is like a sea 
 of waves"; and with this he contrasts the certainty of the 
 Common law ; " 8tatio hene fida peritisy 
 
 1 Coke, II. 98. 3 II, i-3_ 
 
 " III. 100.
 
 1:30 COKE AND BRACTON. 
 
 This opinion does not hinder him from occasionally referring 
 to the Civil law, though not with great accuracy. He 
 comments with approval on Littleton's statement that the 
 English law is contrary to the Civil law in which partus sequitur 
 ventrem, saying, " true it is, for by that law " (stating the law), 
 "both of which cases are contrarie to the Law of England ^" 
 He makes the curious assertion that, " in prohibiting the lineal 
 ascent in inheritance, the Common law is assisted with the law 
 of the Twelve Tables^" which seems entirely inaccurate. He 
 notes the differences in the laws as to guardianship, already 
 alluded to^, and says that the law of England is contrary to the 
 Civil law, which "est quasi agnum lupo commiitere ad devorandum"; 
 yet he cites the very rule of the Civil law, "qui sentit commodum 
 debet et onus sentire," in support of the position that the owners 
 of private chapels should repair them\ Lord Macclesfield strongly 
 disapproved of the English rule, deeming it " to have prevailed 
 in barbarous times, and a cruel and barbarous presumption^" 
 
 Coke cites very largely from Bracton, and some of the 
 passages are those directly derived from Roman sources*'; as far 
 as I can find, he only expressly refers to the Corpus Juris twice^ 
 The rule as to the half-blood, which has been attributed to a 
 misunderstanding of the Civil law, he treats as settled^ He 
 states rather curiously and inaccurately that coparcenery was 
 called in the ancient books of law "familia herciscunda^,'' which 
 was a tenure ; and compares the Common Civil and Canon laws 
 on kinship, saying, " thus much of the Civil and Canon laws is 
 
 1 I. 122, b, 123. Supra, p. 83. 33, b, 34. 
 
 2 1. 11, a. 7 c. II. 658: Dig. 48, 19, 18, where 
 
 3 I. 88, b. Elackstone, i. 461. Supra, he misquotes meretiir for patitur: the 
 pp. 75, 97. quotation is characteristically used to 
 
 ■* Coke, II. 489. resist a claim of jurisdiction by the 
 
 5 2 P. Wms. 264, 9 Mod. 142. Har- Ecclesiastical Courts. Coke also says 
 
 greaves' notes, 63. of the Regiam Majestatem, "so called 
 
 8 e.g. Bracton's Eoman def. of actio because it beginneth as Justinian's In- 
 
 (Coke, II. 39, Br. 98, b) ; the di\asion sf(7«fcs fZo, with these words," which is 
 
 of actions into real, personal, mixed incorrect, as the words are7m^je?'rtfor/rtm 
 
 (C. II. 21, 286; Br. f. 101, b); on mon- Majestatem. 
 
 sters (C. I. 7, b; Br. f. 5) ; de ventro » C. i. 14, a, 191, a. note. Supra, pp. 
 
 iitspiciendo (C. i. 8, b; Br. ff. 69—71) ; 96, 115. 
 
 on treasure trove (C. iii. 132 ; Br. f. 10, » C. i. 164, b. 
 
 119, b); also cf. C. i. 36, a. with Br. ff.
 
 COKE AND THE f'TVlT, T.AW. 1 SI 
 
 necessary to the knowledge of the Common law on this point." 
 He of course notices the discrepancy between the Common law 
 and the " laws of Holy Church, or Canon law," as to legitimation 
 by subsequent marriage. Sjoeaking of banishment he remarks, "if 
 the husband by act of Parliament have judgment to be exiled for 
 a time, luJiich some call a relegation, that is no civil death'": 
 this is clearly the Roman " relegatio " or exile, which involved 
 no loss of status. He refers to the agreement of the Civil and 
 Common laws in forbidding distress on beasts of the plough", and 
 cites Seneca as to their agreement in the punishment of rape. He 
 uses the phraseology of peremptory and dilatory exceptions*, 
 though bargain and sale, (in the Institutes a consensual contract), 
 is described as a real one*. The respite of a pregnant woman 
 under sentence till she is delivered, for which Bracton had cited 
 Roman law, is restated®, but some of Bracton's Roman incorioor- 
 ations are not so fortunate, as where Coke says " We remember 
 not that we have read in any book of the legitimation or 
 adoption of an heir, but only in Bracton ^ and that to little 
 purpose." Coke ascribes the introduction of the rack to the 
 Civil law^, as "the rack or brake allowed in many cases by the 
 Civil law', whereas all tortures and torments of parties accused 
 were directly against the Common law of England*." 
 
 In his Fourth Institute Coke states to what extent the Civil 
 and Canon law had force in England. It is the lex et consuetudo 
 parliamenti, he says, that all weighty matters in Parliament be 
 determined by the course of the Parliament, and " not by the Civil 
 law, nor yet by the Common laws of this realni^" The Court 
 of Admiralty is always spoken of as "2')roceeding according to 
 
 ^ C. I. 133, a. on liability of heirs. C. ii. 591, on 
 
 2 C. II. 132. tdtimum siipplicium, cf. Difj. 48, 19. C. 
 
 ' C. II. 426. II. 391 ; melior est conditio po.«/rf<'?i- 
 
 * C. n. 672. tis. C. ii. 360, 573, et Br. j^assim 
 
 ^ C. III. 17. "nihil est tarn conveniens natitrali 
 
 " Br. f. 63, b. aequitati unumqnodque dissolvi eo lign- 
 
 ^ C. in. 35, cf. Step. Hist. C. L. i. mine, quo ligaturn est.'' Cm. 2, Crimen 
 
 222. laesae majestatis. C. in. 168, Crimen 
 
 ^ Cf. also, C. I. 41, a; Br. f. 311. falsi. Coke also citos Bracton's dcfini- 
 
 C. I. 47, b. on traditin. C. i. 55, a. tion of theft. 
 
 on pnssessio prcmrid. C. ii. 198, 4-11, " C. iv. 11. 
 
 D— 2
 
 132 CIVIL LAW IN THE COL^RTS. 
 
 the Civil Law\" though Coke gives no reasons for such a pro- 
 cedure. The Court of Chivahy before the Constable and 
 Marshal " proceeds according to the customs and usages of that 
 Court, and, in cases omitted, according to the Civil law, secundum 
 leges ai-moj-um^." In a case as to ambassadors, the Committee 
 of the Privy Council heard the "counsel learned in the Civil 
 and Common laws^"; and Coke says of one of their decisions 
 "and this also aOTeeth vrith the Civil la■w^" As to the Ecclesi- 
 astical Courts, " which proceed not by the rules of the Common 
 Law," Coke writes with some acerbity, " that the King's laws of 
 this realm do bound the jurisdiction of Ecclesiastical CourtsV 
 The Convocation proceed according to " legem divinam et 
 canones sanctae ecclesiae," the ecclesiastical courts generally by 
 " the laws of Christ"." As to the authority of this law in 
 England, Coke is very decided : " all canons and constitutions 
 made against the laws of the realm are made void": "all 
 canons which are against the prerogative of the king, the 
 Common law, or custom of the realm are of no force*'." 
 
 I have only noticed two cases in which the English Common 
 law, as stated by Coke, appears to have been modified by the 
 Civil law otherwise than through Bracton. These are, first, the 
 law as to discontinuance', or the alienation made by tenant en 
 autre droit, by which the remainderman is driven to an action ; 
 the rules as to this bear some analogy to the civilian doctrines 
 of vsurpatio j)OSsessionis, and Coke himself in one place uses 
 the term " usurpations " in connexion with discontinuances^ 
 Secondly, the Roman law as to collatio honorum^, by which 
 emancipated children, Avishing to share in intestacy, must bring 
 their property into the stock to be divided, seems to have 
 suggested the custom of London as to " hotchpot" and part of 
 
 ^ C. IV. 134: Duck, ii. 8, 3, 24. dicitur ex Jure Civili, citi porro accessit 
 
 2 C. IV. 125: Hargreaves' note to i. Jus Canonicum. Ex quibus omnibus 
 
 74, a, b. Duck, n. 8, 3, 12 — 22. "Can- comtituitur Lex qtiam nostrates appel- 
 
 sas ex Jure Civili Eomayionim et con- lant Ecclesiasticuni...Lex Civile in hoc 
 
 suetudinibus armorum et non ex Jure foro Lex terrae appellatur. 
 
 MunicipaliAnglorum esse dijudicandas.'' « C. ii. 647, 652. 
 
 " C. IV. 153. 7 c. I. 325, a; ii. 272. 
 
 * C. IV. 321, 322. 8 c. n. 272. 
 
 5 C. II. 487: cf. Duck, ii. 8, 3, 26, « Dig. 37, 6. Cod. G, 20. Hunter, 
 
 I't ■tfif]. De Itis omnibus in Jior foro jus 7?. L. p. 663.
 
 (*UKE AXD THE CIVIL LAW. Kjlj 
 
 the subsc([ucnt Statute of Distributions', and Coke expressly 
 says, "this is that in effect which the civilians call collatio 
 bonorum^." 
 
 A study of Coke's Institutes suggests that the Common 
 lawyers of the time expressly repudiated the Civil law as an 
 authority in the King's courts, or even as the parent of the 
 existing Common law. Coke occasionally notes the agreement 
 or disagreement of the two laws, but with such inaccuracy as to 
 show that his own knowledge of the Civil law was slight. The 
 working out of an Equitable Jurisdiction, and the decisions of 
 the Ecclesiastical and Admiralty Courts were buildino- up 
 systems largely of Civilian origin ; but in the Common law, the 
 influence of Roman law has rather retrograded than advanced 
 since the time of Bracton. 
 
 1 22 and 23 Car. II. c. 10 § 5. ^ C. i. 177, a.
 
 CHAPTER VII. 
 
 AUTHORITY OF BRACTON SINCE COKE. 
 
 The publication of Coke's work lessened the influence of the 
 
 earlier writers. His mass of quotations and precedents obviated 
 
 the necessity for search in Yearbooks, Abridgments, and early 
 
 writers on the law^} and as a result they were mainly known 
 
 through Coke, whose connexion with the laws of Rome is, as we 
 
 have seen, slight. But both before and after the publication of 
 
 the Institutes, a controversy existed as to whether Bracton and 
 
 the old writers were or were not good authorities on English law, 
 
 in which the reason given for their untrust worthiness was that 
 
 Bracton had introduced the Civil law. Thus Fitzherbert notes 
 
 a case which he abridges as follows : "Bracton dise que Vage le 
 
 male et female fuit tout un, et tout le Court dise que Bracton ne 
 
 fuit unques tenu pour auctor en nostre ley^y In Stotuell v. Lord 
 
 Zouch^ (1.564 — 1569), Saunders, C. B., cited Bracton "not as an 
 
 author in the law, for he said that Bracton and Glanvil were not 
 
 authors in our law, but as an ornament to discourse where he 
 
 ao-rees with the law," and Catline, C. J. of England, cited Bracton 
 
 " not for an author in our law, but for consonancy and order, 
 
 where he agrees with better authorities." 
 
 Coke cites Bracton constantly without questioning his 
 authority, and Lord Hale, though he says that "Bracton's work 
 
 1 Butler's Pref. to Coke on Lit. 13th ence. Neither Case 2 nor Case 17 in 
 
 Edit. p. xxii. that term seems to be the case referred 
 
 " Grand Ahridr/ment, Title Gard. to though they deal with the same 
 
 71. He refers to Hil. 35 Hen. VI. subjects. 
 (U.57), which I think is a wrong refer- '' Plowden's Reports, pp. 357, 358.
 
 BRACTOX AND LORD HOLT. 135 
 
 iu the beginning seems to borrow its method from the Civil law," 
 yet sjjeaks of it as a "great evidence of the growth of our laws 
 between the times of Henry II. and III.," and sa^'s that "the 
 greater part of its substance is either of the course of proceed- 
 ings in the law known to the author or of resolutions and 
 decisions in the English Courts\" Iu 1701, counsel ariruingf in 
 R. V. Berchet^, cites Fitzherbert and Stowell's Case in support of 
 his allegation that Glanvil and Fleta were of no authority, but 
 the judges do not notice the point. In the next year (1702), 
 Lord Holt, giving judgment in Lane v. Cotton^, an action against 
 the Post-office for the loss of a letter, says, "and this is the 
 reason of the Civil law in this case, which I am loathe to quote, 
 yet, inasmuch as the laws of all nations are doubtless raised 
 out of the ruins of the Civil law, it must be owned that the 
 principles of our laiu are derived from the Civil law, and there- 
 fore grounded upon the same reason in many places." And 
 this expression of opinion took effect two years later (1704) in 
 Lord Holt's celebrated judgment in Coggs v. Bernard*^ where, 
 after citing at length Bracton and the Civil law, he says : 
 " 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^" — "I cite this author 
 (Bracton), though I confess he is an old one, because his opinion 
 is reasonable, and very much to my present jDurpose, and there 
 
 is no authority in the law to the contrary*^" " I do not find 
 
 the word ' mandatum ' in any other iu our law, besides in this 
 place in Bracton, which is a full authority, if it be not thought 
 too old \" 
 
 In the Grand Opinion^, a decision of the Judges in 1717, on 
 the Sovereign's right of disjDosing of the education and marriage 
 of his grandchildren, the counsel for the Prince of Wales 
 expressly objected to the authority of Bracton, saying': "now as 
 to Bracton, that is transcribed from Justinian, therefore the 
 
 1 Hist, of Common Law, published ^ Ibid. pp. 208, 203. 
 1713, written before 1676, p. 189. « Ibid. p. 210. 
 
 2 Showers' liej)- 121. ^ Ibid. p. 215. 
 
 3 12 Mod. R. -182. 8 Fortescue's Eeports, pp. -401—140. 
 ■» Ld. Kaymond, 909. Smith's Lead- » Ibid. p. 406. 
 
 ni[i Cases, i. 199 (8th Edit. 1879).
 
 136 THE GRAND OPINION. 
 
 Book and instance ought not to be regarded, for he deviates 
 from the Common law, and is nothing hut Civil law." The 
 judges gave their opinions separately, and five of them dealt 
 with this objection, three supporting the authority of Bracton, 
 and two denying it. Of the latter, Eyre, J. said^: "What is 
 cited out of Bracton and Fleta is not law, nor accounted so; 
 there is not any such term in our law as emancipatio or foris 
 familiatio"; and Price, B. remarked^: "It was an article of 
 impeachment to endeavour to introduce the Civil law; Bracton 
 and Fleta are old Civil Law Books; they may fetch out of these 
 books Ship money and the dispensing power, they were all 
 fetched out of these old books." On the other hand Parker, C. J. 
 said': "As to the authority of Bracton, to be sure many things 
 are now altered, but there is no colour to say it was not law at 
 any time, for there are many things that have never been 
 altered and are law now." Fortescue, B. said*: "The law-books 
 of Bracton and Fleta are the ancient Law of the Land extending 
 to all cases ; it remains law to this day as to the Boyal family 
 because as to them this Law has had no alteration by any Law 
 or Statute whatever, and the Usage has gone accordingly. 
 These law-books are so strong that there has been no way 
 thought of to evade them, but by denying the authority of 
 them, and calling it ' Civil Law.' But I own I am not a little 
 surprised that these books should be denied for law when in my 
 little experience I have known them quoted almost in every 
 argument where pains have been taken if anything could be 
 found in those books to the matter in hand ; and I have never 
 known them denied for law, but when some statute or usage 
 time out of mind has altered them." Montagu, B. also supported 
 their authority, and said: " It is objected indeed that this is Civil 
 law ; that may be, and yet it may be and is the Law of the Land 
 also, and these books are often quoted by the greatest judges and 
 lawyers heretofore in England and allowed as Law^." 
 
 Blackstone^ who speaks of "Glanvil's excellent treatise, 
 
 1 Fortescne, liej). p. 427. ' Ibid. p. 424, he cites Lord Holt in 
 
 2 Ibid. p. 429. Co[i(js v. Bernard. 
 
 3 Ibid. p. 408. 6 Commentaries, pub. 1765, iv. pp. 
 ■» Ibid. p. 41!i. 421, 425, 427.
 
 BK acton's authority. 187 
 
 though some of it now be antiquated and altered," inchides 
 Glanvil and Bracton in his list of venerated authors, " whose 
 treatises are cited as authority, and are evidence that cases have 
 formerly happened in which such and such points were deter- 
 mined, which have now become settled and first principles." 
 He says that Bracton's treatise "shows still further improve- 
 ment in the method and regularity of the Common law," and 
 in treating of the doctrines of acquisitio doininii juris gentium, 
 he says': "and these (Roman) doctrines are implicitly copied 
 and adopted by our Bracton, and have since been confirmed by 
 many resolutions of the Courts." " The legal treatises written 
 in Edward I.'s reign, as Brltton, Fleta, Hengham and the rest, 
 are for the most part law at this day, or at least were so, till the 
 alteration of tenures took place." 
 
 In Ball V. Herbert"^ (1789), counsel in citing Institutional 
 passages from Bracton on the rights in public rivers, questioned 
 the passage in Fitzherbert, and cited Fortescue and Staunford 
 in support of Bracton's authorit}^, but Buller, J. said^: "another 
 authority cited is the passage from Bracton... that plainly 
 appears to have been taken from Justinian, and is only part of 
 the Civil law; and whether or not that has been adopted by the 
 Common law is to be seen by looking into our books ; and there 
 it is not to be found." Curiously enough, the same passage of 
 Bracton came under discussion in Blundell v. Catterall^ (1821) 
 before Best, C. J., a vigorous supporter of Bracton's authority. 
 While counsel on one hand argued "that the authority of 
 Bracton cannot have much weight, for it is only copied from the 
 Civil law, and was overruled in Ball v. Herbert " : on the other 
 hand it was said that " Lord Hale mentions Bracton as a good 
 authority : he was Chief Justice of England in the reign of 
 Henry III.® (!), and from his station must be taken to be no 
 mean authority of what the Common law was in his day. It is 
 no objection to the passage that Bracton has availed himself of 
 the very words of Justinian. It is impossible that he should not 
 
 1 II. 404. 282. 
 
 - 3 T. Ji. 257. ^ Best, C. J. repeats this mistake in 
 
 ^ p. 263. bis judgment, p. 282, and again in 
 
 * 5 B. and Aid. 208, 270, 272, 279, G ijjonl l\ Lord YurhuivuijJu oBini^.lCl.
 
 138 BEST, C. J., ON BRACTOX. 
 
 have found the principles there laid down, in the Civil law or in 
 any other well-digested code, for they are directly derived from 
 the law of nature." Best, C. J., in his judgment, cited Bracton, 
 and Buller, J.'s disapproval of his authority, and said: "I admit 
 that Bracton agrees with the Civil law, and I must add with the 
 law of all civilized nations... This, I think, proves that the doc- 
 trine is reasonable, and ought to be adopted into our law, unless 
 there is something in our particular situation to exclude it... 
 Bracton 's books show that this passage has been adopted into 
 our law... Bracton has not stated this as Civil law, he has made 
 it part of his hook... I do not say that the whole of the passage in 
 Bracton is good law; it ivas all good law at the time he wrote, 
 and all of it that is adapted to the present state of things is good 
 laiv now." 
 
 The same judge delivering the cpinion of the judges in the 
 House of Lords in Gifford v. Lord Yarhorough^ (1828), where 
 Bracton had been cited as to acquisition by alluvion, said: "It is 
 true that Bracton follows the Civil law, but by inserting this 
 passage in his book, he presents it to us as part of the law and 
 customs of England. Lord Hale says it was much improved in 
 the time of Bracton. This improvement was made by incor- 
 porating much of the Civil law with the Common law... We know 
 that many of the maxims of the Common law are borrowed from 
 the Civil law, and are still quoted in the language of the Civil 
 law... To form a system of law sufficient for the state of society 
 in the times of Henry IH., both Courts of Justice and law 
 writers were obliged to adopt such of the rules of the Digest as 
 were not inconsistent with our principles of jurisprudence. 
 Wherever Bracton got his law from... his authority has been 
 confirmed by modern writers and by all the decided cases." 
 And the present Master of the Rolls, in deciding the well-known 
 case 0^ Nugent v. Smith^ (1875) on carriers' liability, said, "It is 
 obvious therefore that Bracton, or English judges before him, 
 adopted into the English the Roman Law," of bailments. 
 
 The result of these authorities seems to be : — (1). In 
 passages where Bracton has copied the Roman Law, he will be 
 
 1 Bing. 163, 167. 2 L. E. 1, C. P. D. 18, 29.
 
 RESULTS. 139 
 
 accepted as au authority, if confirmed by subsequent cases. (2). 
 Even if such confirmation has not taken place, the passage may 
 be relied on as authority, and its Koman origin will be no 
 objection to it, provided that no later statutes, decisions or 
 customs contrary to it exist. 
 
 Such passages therefore form part of the English law, and 
 are not merely used as suggestions for a right decision, as is the 
 case with the Roman law.
 
 CHAPTER VIII. 
 
 EOMAX LAW; ITS AUTHORITY IX HALE AND BLACKSTONE. 
 
 Continuing our survey of the views of the "sages of the 
 Common law," Sir M. Hale enlarges and defines the views of 
 Coke on the position and authority of the Civil law, and is 
 followed in this by Blackstone. 
 
 Hale^ divides the Law of England into Statute Law, and Leges 
 non scriptae; and the latter again into (1) the Common law, (2) 
 those particular laws, which are aiDplicable to particular subjects, 
 matters, and courts, explained to be "the Ecclesiastical and Civil 
 laws, so far forth as they are admitted in certain courts, and in 
 certain matters allowed to the decision of those courts. But," 
 says Hale, " it is most plain that neither the Canon law nor 
 the Civil law have any obligation as laws within the kingdom... 
 for no laws of the Pope or Emperor, as they are such, bind here. 
 But all the strength that either the papal or imperial laws have 
 obtained in this kingdom is only because they have been received 
 and admitted... by us, which alone gives them their authoritative 
 essence, and qualifies their obligation... The authority and force 
 they have hei-e is not founded on, or derived from themselves... 
 and hence it is that even in those courts where the use of those 
 laws is indulged, according to the reception which has been 
 allowed them, if they exceed the bounds of that reception, by 
 extendiug themselves to other matters than have been allowed 
 them, or if those courts proceed according to that law, when it 
 is controlled by the Common law of the kingdom, the Common 
 
 ^ History uj Common Law. Written before 167(3. pp. '22—26.
 
 HALE ON EXGLISII COURTS. 141 
 
 law does, and may, prohibit and punish them ; and it will nut 
 be a sufficient answer for them to tell the King's courts that 
 Justinian, or Pope Gregory have decreed otherwise. For we 
 are not bound by their decrees further or otherwise than as the 
 kingdom here has, as it were, transposed the same into the 
 Common and municipal laws of this realm; either by admission 
 of, or by enacting the same, which is that alone, which can make 
 them of any force in England." 
 
 And these particular courts, Hale states to be (1) the 
 Ecclesiastical courts, (2) the Admiralty court, (3) the curia 
 Ttiilitaris or court of the constable and marshal, (4) the courts 
 of the Universities\ The Ecclesiastical and Admiralty Courts 
 we may treat hereafter. The Court of the Constable and 
 Marshal is of course of small importance. Hale says of it, 
 "Here the Civil law has been used and allowed in such things 
 as belong to their jurisdiction, as the rule and direction of their 
 proceedings and decisions, so far forth as the same is not con- 
 trolled by the laws of this kingdom, and those customs and 
 usages which have obtained in England ; which, even in points 
 of honour, are in some points derogatory to the Civil law^" 
 
 As to the Courts of the Universities, in 1407 a judgment 
 of the Chancellor of Oxford, proceeding according to the Civil 
 law in a case of debt, was reversed by the King's Bench, the 
 principal error assigned being that they proceeded "per Legem 
 Civilem uhi qiiilihet ligeus Regis Regni sui Angliae in quibus- 
 cunque placitis et querelis infra hoc regnum factis et emergenti- 
 bus de Jure tractari debet per Communem Legem Angliae." But 
 a chai-ter of Henry VIII., confirmed by a statute of Elizabeth, 
 allowed their procedure; "and," says Hale, "'tis thereby that 
 at this day they have a kind of Civil law procedure, even in 
 matters that are of themselves of Common law cognizance, 
 where either of the parties to the suit are privileged^" 
 
 But while the Law of England has admitted the rules of the 
 Civil and Canon law into these Courts, it yet has retained the 
 "signa superioritatis*, the preference and superintendence of 
 
 1 Ibid. p. 26. ' Mich. 8 H. 4, Eot. 72. Ilalc, 
 
 - Ibid. p. 43, vide sujjra, p. 132, f:iib. p. 30. 
 p. 152. Duck, 11. 8, 3, 12—22. ■" Halo, i>p. 11. l."j.
 
 142 BLACKSTONE ON ENGLISH COURTS. 
 
 these courts," in that the Common law courts interpret the 
 extent of their jurisdiction and can prohibit them from exceed- 
 ing it. 
 
 And this view of the position of the Civil and Canon laws 
 in the kingdom, and their relation to the Common law is adopted 
 by Blackstone, writing a century later, and is the accepted view 
 at the present day. Blackstone says': "For the Civil and Canon 
 laws, considered in respect to any intrinsic obligation, have no 
 force and authority in this kingdom ; they are no more binding 
 in England than our laws are binding at Rome. But as far as 
 these foreign laws, on account of some peculiar propriety, have 
 in some particular cases and in some particular courts been 
 introduced and allowed by our laws, so far they oblige and no 
 further, their authority being wholly founded on that permission 
 and adoption." And he asserts the right of the Courts of Com- 
 mon law to prohibit and annul their proceedings, if they apply 
 the Civil or Canon laws in cases where they have not been 
 received and which are governed by the Common law. He 
 states that he will not consider "what hath been claimed or 
 pretended to belong to their jurisdiction, by the officers and 
 judges of those respective courts ; but what the Common law 
 allows and permits to be so. For these eccentrical tribunals 
 (which are principally guided by the rules of the imperial and 
 Canon laws), as they subsist and are admitted in England, not 
 by any right of their own, but upon bare sufferance and toleration 
 from the municipal laws, must have recourse to the laws of that 
 country, wherein they are thus adopted, to be informed how far 
 their jurisdiction extends, or what causes are permitted, and 
 what forbidden to be discussed before them... In short the 
 Common law of England is the one uniform rule to determine 
 the jurisdiction of our courts^" 
 
 1 Bl. I. 14, 15. 2 Bl. III. 87; cf. i. 83.
 
 CHAPTER IX. 
 
 ROMAN LAW IN BLACKSTONE. 
 
 Though Blackstone is thus decided as to the position of the 
 Civil law in this country, he makes considerable use of it in his 
 Commentaries as a standard of comparison, and sometimes 
 attributes to it the origin of an English rule. Another source 
 of influence, indirectly Roman, which was at this time acting on 
 our law, is seen in the citations from Grotius\ Puffendorf, and 
 those Dutch and German publicists, whose ethico-legal Avorks 
 had exercised and were still exercising great influence in 
 England, especially in the Court of Chancery, and whose 
 writings were much coloured by, where they were not entirely 
 composed of, Roman doctrines and conceptions^ 
 
 Blackstone includes among the "originals of our law," — -, 
 "the rules of the Roman Law either left here in the days of 
 Papinian, or imported by Vacarius and his followers." On 
 Bracton's Roman passage as to abortion, he says^: "this, though 
 not murder, was by the ancient law homicide, but the modern 
 law does not look upon this offence in quite so atrocious a 
 light." In duress, metus and vis*, he follows Bracton and the 
 Civil law, which latter he expressly cites from the Digest. 
 On the relation of the prince to his laws, he says^: " it may be 
 some satisfaction to remark how widely the Civil law differs 
 from ours." On pirates, he cites the Digest, "according to that 
 rule of the Civil law"." On Treasure Trove he follows Bracton, 
 
 1 e.g. from Grotius, on Equity, Bl. i. ^ Bl. i. 129 ; cf. iv. 107, Kupra, p. lOS. 
 
 61 ; cf. I. 259, 147, where Montesquieu ^ i_ 130 ; cf. iv. .SO. 
 
 and Puffendorf are cited. ^ i. 2,S8. 
 
 - Cf. Maine, Cambridge Essays, ^ i. 2.";7. 
 1856. No. I. Ancient Lair, p. 97.
 
 144 ELACKSTONE AND THE CIVIL LAW. 
 
 noting that he uses "the words of the civilians\" and says, 
 " Formerly all treasure trove belonged to the finder ; as was 
 also the rule of the Civil law," On bona vacantia he also cites 
 Bracton, but attributes their assignment to the finder to the 
 law of nature ; — " and so continued under the imperial law^" 
 Again, " in this case of idiots and lunatics the Civil law agrees 
 with ours, but in another instance the Roman Law goes much 
 beyond the English," and he instances the curator to a 
 jirodigiis^. On marriage he expressly says that "the common 
 lawyers have borrowed especially in ancient times almost all 
 their notion of the legitimacy of marriage from the Canon or 
 Civil laws*," but notes the different conceptions of marriage, 
 husband and wife being two distinct persons in the Civil law, 
 whilst the English Law considers them in general as one^ 
 On legitimacy*', though he remarks that the rule of the Civil 
 law as to subsequent marriage " is narrowed with us in England," 
 he mentions a case in which the Civil law has been recognized, 
 in that where a bastard whose parents are subsequently 
 married, enters upon his ancestor's land and dies seised and 
 the inheritance descends to his issue, any legitimate children of 
 his parent's are barred ; and that this is due to the Civil law is 
 shown by the fact that if the parents have never been married, 
 the bastard's issue will have no such rights ^ He notes the 
 writ " de ventre inspiciendo, which is entirely conformable to 
 the Civil law," and suggests that the Civil law prohibition of a 
 widow's remarriage infra annum luctus " may account for the 
 early Saxon rule to that effect^" He recognizes that the 
 guardian fulfils the offices of both tutor and curator^. He 
 remarks that our spiritual corporations are derived from the 
 Civil through the Canon law, but that" "our laws have con- 
 siderably refined and improved upon the invention, according 
 to the usual genius of the English realm," and he instances the 
 
 1 I. 295. 5 I. 444. 
 
 2 I. 298. 6 I. 446, 447, 451. 
 ^ I. 306 ; see also on trinoda neces- '' ii. 247. 
 
 sitas, I. 357, aud on the Institutional » i. 456. 
 
 division of slavery, i. 423. s i. 460. 
 
 4 I. 434 : cf. 43G, 437, 438, 444. i» i. 469.
 
 BLACKSTONE ON INHERITANCE. 145 
 
 introduction of corporations sole, while he also notes that 
 whereas the consent of the members fovinded a Koman coi'pora- 
 tion, the king's sanction was required for an English one\ 
 
 On Rights of ways, Blackstone says, " the law of England 
 seems to correspond with the Roman ", and he compares in- 
 corporeal hereditaments to servitudes^ He remarks on the 
 English dower^, " to which the civil law in its original state had 
 nothing that bore a resemblance ; nor indeed is there anything 
 in general more different than the regulation of landed 
 property according to the English and Roman Laws." He cites 
 from Coke a Roman definition of title, and his outline of the 
 scale of possession follows Bracton, and through him Azo and 
 the Digest*. On Inheritance he observes that the English Law 
 of descent of real estate reckons nearness of kin by canonical 
 rules, and in granting administration of personal estate, by 
 civil rulesl He defends the English exclusion of the half-blood, 
 but notices that the custom of Normandy only excludes uterine 
 brothers, and not brothers by the same father ^ On monsters, 
 he reproduces Bracton with the remark that " the Roman Law 
 agrees with our own ", but notices that the Roman Law 
 allowed a monster to reckon as a child to secure the husband the 
 jus trium liberorum, while our law does not consider it a child 
 to give the husband an estate by curtesy'. 
 
 Occupancy, the subject of Bracton's chief plagiarism, 
 Blackstone considers "to be the true ground of all property... 
 according to that rule of the law of nature, recognized by the 
 law of Rome®"; and he notes a number of instances from 
 Bracton^ whom he curiously cites as an authority to show that 
 a new island in the sea is the king's, rather than the occupier's 
 as in the civil law, when the text of Bracton, who copies from 
 Azo, assigns the island to the occupier^". On " things personal " 
 
 1 I. 472, see also p. 484. passage on monsters has descended 
 
 2 II. 36, 106. through all the text-writers. 
 
 3 II. 129. « II. 258, 261. 
 
 * II. 195. Co. I)is. I. 345. ^ e.g. on alluvion ami islands in 
 
 5 n. 504. rivers. 
 
 « II. 227, 228. MsLine, Anciciii L<nv, i" Bl. ii. 2G1. Br. f. 9, b. He cites 
 
 p. 151. V. supra, pp. 96, 115, 130. as the rule Bracton's exception to the 
 
 7 II. 246. V. svjyra, p. 85, 130. Azo's rule. 
 
 S. 
 
 10
 
 146 BLACKSTONE AND ROMAN LAW. 
 
 says Blackstone\ the little that is found in Glanvil, Bracton, 
 and Fleta, seems principally "borrowed from the Civilians",.. 
 "our courts have adopted a more enlarged and less technical 
 mode of considering things personal than things real, frequently 
 drawn from the rules, which they found already established by 
 the Roman Law, whenever those rules appeared to be well- 
 grounded and apposite to the case in question, but principally 
 from reason and convenience, adapted to the circumstances of 
 the time..." And thus we find most of Bractou's rules as to 
 animals repeated^ ; " the English Law agreeing with the civil 
 that partus sequitur ventrem in the brute creation, though 
 for the most part in the human species it disallows that 
 maxim." On accessions, he says "these (Roman) doctrines 
 are implicitly copied and adopted by our Bracton, and have 
 since been confirmed by many resolutions of the Courts " : on 
 confusio, "the English Law partly agrees with and partly 
 differs from the CiviP." 
 
 For the doctrine of consideration Blackstone suggests a Roman 
 origin, and quotes the civilian division of innominate contracts ; 
 he also asserts, as we have seen erroneously, that "our law has 
 adopted the maxim of the civil law, ex nudopacto non oritur actio" 
 whereas the two laws give nudum pactum a different meaning*. 
 He incorporates from Bracton the civilian doctrine of arrha as 
 argunientam emptionis, and notes the agreement of the two laws 
 as to imjDlied warranty of title in contract®. Bankruptcy 
 proceedings, he suggests, follow the analogy of cessio bonorum^. 
 
 While he notes the Roman and clerical character of the 
 testamentary jurisdiction, he points out differences, as that 
 prisoners are not absolutely incapable of making a will as in 
 the Roman Law ; that married women cannot devise lands, or 
 even chattels without their husband's licence ; and the absence 
 of any querela inofficiosi testamenti'' . Donatio mortis causa, 
 he thinks, seems to have been handed to us from the civil 
 
 1 Bl. II. 385. II. 435. 
 
 2 II. 390, 402, 412. ■» ii. 445. V. supni, p. 100. 
 ^ II. 404, cf. also animum revertendi; ^ ii. 447, 451. 
 
 and his remark that the term parapher- ^ ii. 473. 
 
 nalia is borrowed from the Civil Law, ^ ii. 494, 497, 498, 503.
 
 BLACKSTONE OX PROCEDURE, 147 
 
 lawyers'. The Statute of Distributions, he says^, "also bears 
 some resemblance to the Roman Law of succession ah intestato, 
 which, and because this act was also penned by an eminent 
 civilian^, has occasioned a notion that the Parliament copied it 
 from the Roman Law; though indeed it is little more than a 
 restoration of our old constitutional law This just and equit- 
 able provision," (hotch-pot), " has also been said to be derived 
 from the collatio bunorum of the Roman Law; which it certainly 
 resembles in some points though it differs widely in others... and 
 I must acknowledge that the doctrine and limits of representation 
 as laid down in the Statute of Distributions seem to have been 
 principally borrowed from the civil law." 
 
 He gives the definition of an action, " as Bracton and Fleta 
 express it in the words of Justinian," and adopts their division 
 into actions real, personal, and mixed*. He notes the agree- 
 ment of the two laws as to the maxim, " culpae adnunieratur 
 i7nperitia" ; and as to justification as a defence of a slander^; 
 and suggests that some of the rules as to actions by informers, 
 are "borrowed from the rules of the Roman Law''." He remarks 
 that Roman Law required trespass to be preceded by direct 
 prohibition by the owner, while English law does not. In 
 procedure he compares the summons to the jus in vocando' ; the 
 doctrine that an Englishman's house is his castle to the Roman 
 refusal to allow even a summons to be served on a man in his 
 own house^; bails to the satisdatio, (which however was from 
 party to party, while bail was given by third parties to the 
 Court)^; defence, to the litis contestatio, (which rather corresponds 
 to our joinder of issue) ^*'; set-off to conipensatio, and exceptiones 
 to replications and pleas, in which case he uses the division of 
 
 1 II. 514. 6 III. 162. 
 
 2 II. olG. 7 1,1. 279: iv. 28.3. 
 
 3 Sir W. Walker, Lord Eaymond's » m. 288, cf. £)/.r/. 2, -1, 1^, (Black- 
 Itei). 57-1. stone's reference is wrong) — quia doiniis 
 
 ■* III. IIG. cf. attorney andjjrociifdtor, tutissimnm cuique refiiri'ium atque recep- 
 
 III. 25 ; adrocattts Jiscl and king's (aculum sit. 
 
 counsel, iii. 27 ; right of possession " Bl. iii. 2,)1. 
 
 and of property, in. 190; reasonable '" iii.29C. Identification seems carried 
 
 day's journey, in. 218. The burden too far when Blackstone gravely asserts 
 
 of proof in both laws, iii. 3CG. that the scripture ijrecept: "agree with 
 
 ^ III. 121, 12.J. thine adversary quickly while thou art 
 
 10—2
 
 148 BLACKSTONE ON CRIMES. 
 
 pleas dilatory, and to the action \ He notes that the Civil 
 Law always requires two witnesses, while the Common Law 
 may be satisfied with one"; and that the Civil Law does not 
 examine witnesses. in public, as does the Common Law^; while 
 on costs, in both laws "victus victori condemnandus est in 
 expensis*." 
 
 On Crimes, he contrasts the Roman Law "j^er vinuiii delap- 
 sis capitcdis poena remittitur" with the English law, "which 
 will not suffer any man thus to privilege one crime by another^" 
 " Ignorantia juris, quod quisque tenetur scire, neminem excusat," 
 he says, incorrectly, " is as well the maxim of our own law as it 
 was of the Roman '^." High Treason he considers as "equivalent 
 to the Crimen laesae majestatis of the Romans V' while counter- 
 feiting the royal seal " seems better denominated by the later 
 civilians a branch of the crimen falsi or forgery, in which 
 they are followed by Glanvil, Bracton and Fleta^." In both 
 Maintenance and Champerty he cites corresponding Roman 
 enactments^, and in Libel suggests that our law "corresponds in 
 this as in many other respects with the middle age of Roman 
 jurisprudence." He does not use Bracton's Roman definition of 
 theft ^"j though he refers incorrectly to some of its elements; e.g. 
 "This taking and carrying away must be felonious, or done 
 animo furandi, or as the civil law expresses it, lucri causa," 
 where he mixes up two of the elements, and wrongly makes 
 lucri causa an essential of the English law of theft. He refers 
 to the old practice, abolished in the reign of Mary, of neither 
 allowing to prisoners counsel nor witnesses, and states that it 
 was "derived from the civil law"," as also was the respite of 
 pregnant women till delivery, taken, through Bracton, from the 
 civil law 'I 
 
 in the way with him," has a plain re- *"' iv. 26. 
 
 ference (!) to the Eoman Law of the " iv. 75. 
 
 twelve tables, in via rem uti ixicimt ^ iv. 88, 247. 
 
 orato. III. 299. ^ iv. 135, cf. on Perjury, iv. 139. 
 
 1 Bl. in. 301, 304. From Bracton's Homicide, 181, 183, 185, 202. Rape, 
 
 exceptiones dilatoriae et pcremptoriae. 210,212. Arson, 122. Robbery, 24:2. 
 
 ^ III. 370. 10 IV. 229, 232. V. siq)ra, p. 110. 
 
 3 III. 373. 11 IV. 358. 
 
 * III. 399. 1- IV. 395. Vifle supra, p. 111. 
 
 = IV. 25.
 
 RESULTS. 149 
 
 While Blackstone therefore utterly repudiates any authority 
 of the civil laws in themselves in this kingdom, except in 
 particular courts ; and onh" allows them in those, so far as they 
 have been adopted by the English courts and have derived their 
 authority from the English Crown, he yet recognizes that large 
 portions of the Roman Law have been incorporated by Bracton 
 and later authorities into the Law of England. But he bases 
 the authority of these parts, not on their incorporation by text 
 writers, but on their recognition by the judges of the realm.
 
 CHAPTER X. 
 
 SUiDIAEY OF ROMAX LAW IX TEXT-WEITERS. 
 
 We have thus dealt with the position with regard to the 
 Koman Law occupied by leading text-writers and authorities 
 from the time of Bracton. Glanvil is comparatively free from 
 any Roman influence. Bracton has incorporated into his book 
 substantial portions of Roman matter, which are reproduced by 
 Fleta, and in a less intelligent way by Britton. These Roman 
 incorporations are cited without comment by Staunford, and are 
 used by Cowell to show the similarity of the two laws. Coke 
 also cites them, without any allusion to their Roman character, 
 while he claims no authority in the realm for the Roman Law 
 and is indeed a vigorous advocate of the supremacy of the 
 Courts of Common Law. Hale clearly states the relative 
 position of Common, Civil, and Canon Laws, defining the limits 
 of the two latter, and the source of their authority. Lastly 
 Black stone, following Hale, recognizes the Roman origin of parts 
 of our Law, including the passages in Bracton, and while he 
 recognizes it, adepts them. 
 
 Perception of the Roman elements in Bracton leads to a 
 discussion as to his authority in the law, which results in his 
 being generally accepted as binding, if no contrary decisions or 
 customs can be produced. And while the English Courts 
 recognize no authority in the Roman Law, as such, the}^ are yet 
 ready to listen to citations from it in all cases where English 
 authorities cannot be found in point, or where the principles of 
 the English and Roman Laws appear to be similar. Thus in
 
 AUTHORITY" OF ROMAN LAW. lol 
 
 Acton V. Blundell (1843)*, where the question was as to rights in 
 a subterranean water course, the Digest was fully cited and 
 commented on by counsel, Maule, J. intervening with the 
 remark, " it appears to me that what Marcellus says is against 
 you." Tindall, C J., in delivering judgment, said "The Roman 
 Law forms no rule binding in itself upon the subjects of these 
 realms ; but in deciding a case upon principle, where no direct 
 authority can be cited from our books, it affords no small 
 evidence of the soimdness of the conclusion to which we have 
 come, if it proves to be supported by that law, the fruit of the 
 researches of the most learned men, the collective wisdom of 
 ages, and the groundwork of the municipal law of most of the 
 countries in Europe. The authority of one at least of the learned 
 Roman lawyers appears decisive upon the jDoint in favour of the 
 defendants." 
 
 The authority of Roman Law in the Common Law Courts 
 cannot be j)ut higher than this, or be better expressed than in 
 these words. 
 
 1 12 M. and W. 324, 353 ; see an account of the inner history of the 
 Warren's Law Studies, 732, note, for case by one of the counsel engaged.
 
 CHAPTER XI. 
 
 ROMAN LAW IX THE CHANCERY. 
 
 While the judges of the Common Law Courts after the four- 
 teenth century recognized no authority in the Civil Law, and the 
 English people were led by the financial exactions of the Papal 
 Court, and the controversies of the Reformation, to regard with 
 suspicion and dislike everything savouring of Rome, three 
 important courts in the kingdom were largely influenced by the 
 Civil Law, if their procedure was not entirely derived from it. 
 These were the Court of Chancery, the Court of Admiralty, and 
 the Ecclesiastical Courts \ The Court of the Constable and 
 Marshal also proceeded according to the Civil Law^ : " causas ex 
 jure civili Romanorum et consiietudinibus armorum, et non ex 
 jure tnunicipali Anglorum esse dijudicandas," and Duck also 
 states that the Universities of Oxford and Cambridge proceeded 
 according to the civil law: " dijudicant per jus civile et secundum 
 juris civilis formam^ ." But these latter are of small importance. 
 The Court of Chancery originates in the position of the 
 king as the fountain of justice*. To him petitions were 
 addressed by suppliants who conceived themselves wronged 
 by the Common Law, or who found no remedy for the injury 
 they complained of Difficult and novel points arising in the 
 Common Law Courts were also reserved by the judges for the 
 consideration of the king in Council. As the Chancellor was 
 always in attendance on the king, the petitions for royal grace 
 
 1 Sub. C. XII. Eccl. Courts; C. xiii. 2 Duck, 11. 8, 3, 30. V. supra, p. 
 Admiralty Courts. 141. 
 
 2 Duck, II. 8, 3, 12, 22. V. sui^ra, * Stubbs, i. 603, 601 note. 11. 268. 
 pp. 132, 111.
 
 CLEIUCAL CHANCELLORS. 153 
 
 and favour were entrusted to him, first for custody, and ulti- 
 mately for hearing. Under Edward III. the Chancellor's tribunal 
 assumed a definite and separate character, and petitions for 
 grace began to be directly addressed to him instead of comino- 
 indirectly into his hands. From 1358, such transactions were 
 recognized as his proper province, and the powerful and com- 
 plicated machinery of his Equitable Jurisdiction began to grow^ 
 
 There were reasons why its growth should be on Roman 
 lines. Several lay Chancellors had been appointed in the 
 reign of Edward III., probably in consequence of the petition of 
 the Parliament that, as ecclesiastics were not amenable to the 
 laws, only lay persons might in future be appointed Chancellor'. 
 But every Chancellor from 1380 to 1488 was a clerk ; until the 
 end of Wolsey's Chancellorship in 1530 only a few lav holders 
 of the office are found, and up to that year IGO Ecclesiastics 
 had held the office". In this clerical preponderance, the advan- 
 tages of the Civil law, familiar to the Chancellors by their 
 early training, and as the system in use in the ecclesiastical 
 Courts, are obvious. 
 
 But the laws of Rome had a further foothold in the 
 Chancery, There were 12, afterw^ards G, Clerks de prima forma^ 
 and Masters of the Chancery, who " are assistants in the Court 
 to show w^hat is the Equity of the Civil law, and what is 
 Con.science\" Down to the time of Lord Bacon some of the 
 Masters learned in the Civil law sat upon the Bench with the 
 Chancellor to advise him, if necessarj'. The author of the 
 " Treatise on the Masters^" states that "the greater part have 
 always been chosen men skilful in the Civil and Canon laws", in 
 order that the decisions of the Chancellor may accord with 
 "Equity, J wsf/e/^h'uwi, and the laws of other nations," seeing that 
 
 1 Spence, i. 340. E. Paraiug, 1341. 1600,) to the conferring of the freedom 
 
 Thorpe, Kuivet, 1372. of a Eomau city by putting on a cap, 
 
 - Speuce, I. 340 — 7, 3o6 note. or to "caiij^iug" a doctor at the Uni- 
 
 3 Apparentlya term of Eomau origin. versities (p. 2.14). But the custom is not 
 
 (Hargreaves, Law Tracts (1787), p. traced to these sources, as Spence 
 
 296.) Tlie conferring of the oflice by says, i. 360. 
 
 placing a cap on the head is compared •* Sir T. Smith, Commonwealth of 
 
 by the autlior of this Tract, (probably England, ed. 1663. p. 121. Spence, i. 
 
 a master in Chancerv, writing about 360, note.
 
 154 MASTERS IN CHAXCERY, 
 
 a number of matters came before the Chancellor "which were to 
 
 be expedited not in course of common law, but in course of civil 
 
 or canon law\" And though the Chancellors became laymen 
 
 and decided without reference to the Masters, their system was 
 
 still largely clerical and Koman. Under Charles I. it was 
 
 ordered that half the masters in Chancery should always be 
 
 Civil lawyers, and that no others should serve the king as 
 
 Masters of Request. Duck^ writing in 1678 says: " Judicia 
 
 apucl Anglos, in Curiis quae non ex mero jure Anglicano, sed ex 
 
 aequo et bono exercentur, cum jure civili Romanorum plurimum 
 
 conveniunt; qaaruni suprema Cancellaria prima est...Cancel- 
 
 larii autem feres omnes fuerunt Episcopi aut Clerici, 'plerumque 
 
 leguin Romanaj'um p>eriti usque ad Henricum VIII. quo D. 
 
 Richius primus juris Municipalis Apprenticius Gancellarii munus 
 
 ohtinuit: post quem etiam alios episcopos juris Romani p)eritos, 
 
 sed plerosque juris municipalis considtos, reges nostri ad hoc 
 
 munus admoverunt. In Jiac etiam curia assessores seu Magistri 
 
 plerumque fuerunt juris Civilis Doctores, et Clericos hujus Curiae 
 
 antiquitus habuisse eximiam juris civilis scientiam, clarissimum 
 
 est ex lihro Registri Brevium Oi^iginalium. . .In Curia etiam. . . 
 
 fere omnes fuerunt antiquitus Episcopi Praelative, in legihus 
 
 Romanis vel idroque juri versati, Magistri.., plerumque Juris 
 
 Civilis Professores, quibus ex jurisdictione ejus Curiae potestas 
 
 judicandi ex aequo et bono demandata est. Ad omnes enim 
 
 curias in quibus non merum et Consuetudinarium jus, sed 
 
 aequitas spectanda est, nidlius gentis leges tarn accommodatae 
 
 sunt, quam jus Civile Romanorum, quod ainplissimas continet 
 
 regulas de Contractibus, Testamentis, Delictis, Judiciis et omnibus 
 
 himianis actionibus." 
 
 The general character of the Jurisdiction of the Court of 
 Chancery may be gathered from a speech of James I. in 
 the Star Chamber in which he said : " Where the rigour of the 
 law in many cases will undo a subject, there the Chancery 
 tempers the law with equity, and so mixes mercy with justice^": 
 and the " Doctor and Student " of the reign of Henry VIII,, 
 reads: "Conscience never resistcth the law nor addeth to it, but 
 
 1 Hargreaves, pp. 309, 313. ^ Cited Spence, i. 109 note. 
 
 - n. 8, 8 ; 10—11.
 
 PHAETOR AND CHANt'ELLoR. 155 
 
 only when the law is directly in itself against the Law of God 
 or of reason... in other things Aeqintas f>e(jintur legeiu^." 
 
 This Equitable Jurisdiction has been compared with the 
 Jurisdiction of the Praetors, both being u.sed as a means of 
 alleviating the rigour of the older law I Both Equity and the 
 Jus Praetorium tend to become as rigid as the systems they 
 originally modified ; both are supported by fictions, in the one 
 case of a pre-existing state of nature or Golden age, of whose 
 laws fragments survive and are embodied in the Praetor s Edict, 
 in the other of a King, whose Conscience supplied the inade- 
 quacies of his laws. The systems admit of comparison, but 
 there is no trace of causal connexion. It is true that the 
 Praetor framed the formula, and the Chancellor and Clerks 
 of the Chancery issued the w^rits. But the Praetor administered 
 both his own edict and the Jus Civile, and could thus enforce 
 his own innovations, while the Common law judges could and 
 did reject new writs, which seemed to them not in accordance 
 with the Common law. And further, while the Praetor by 
 embodying exceptiones in his Formula could influence the 
 defence to actions, the Chancellor had no control over the 
 defences raised in the Common Law Courts to the writs he 
 issued. The tribunals were separate ; the judges different. 
 The influence of the Chancery on the Common law was there- 
 fore far slower in operation and weaker than the Praetorian 
 changes in the Jus Civile ; while the clerical character of the 
 Chancery, and its innovations on the Common law, raised a 
 spirit of hostility which hindered its influence. 
 
 English Equity however, invented and administered by 
 Clerical Chancellors, derived much of its form and matter from 
 Roman sources. I have neither tlie 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^ and I 
 avail myself of his results. Sir H. Maine*, without going at 
 length into the subject, thinks that the earlier Chancery judges 
 
 1 Probably derived from " Jiw jvae- ^ Equitable Juriadiction of Court of 
 
 torium Jus civile suhsequitur." Spence, Chancenj,Yol. i. 
 
 I. 409. ■• Ancient Law, p. 11, 15. 
 
 * Maine, Ancient Law, p. 68.
 
 156 ^TSES AND TRUSTS. 
 
 followed the Canon law, a later generation the Civil law, and 
 that the Chancellors of the eighteenth century availed themselves 
 laro-ely of the Romano-Dutch Treatises on ethics and juris- 
 prudence, compiled by the publicists of the Low Countries. 
 
 One of the most important branches of Equitable Juris- 
 diction related to Uses and Trusts \ Fideicommissa had been 
 introduced by the Romans to evade the strict rules as to legacies 
 and successions : the person, to whose good faith the fulfilment 
 of the testator's wishes was entrusted, was at first only bound in 
 honour. Augustus took the first steps towards enforcing trusts 
 by law, and finally created a Praetor Fideicommissarius to 
 whom the duty was assigned of giving legal effect to fidei- 
 commissa. 
 
 The English system in its origin only applied to trusts 
 created during life ; for lands were not devisable, and personal 
 estate was not of sufficient importance to call for any special 
 legislation. Conveyances of lands to A, that he might pay 
 their fruits to B, were introduced, probably to allow the clergy 
 to avoid the Statute of Mortmain, and this device was adopted 
 by the laity, especially during the wars of the Roses to avoid 
 forfeiture for treason, and for other purposes. These " Uses " 
 the Chancery would enforce as binding on the conscience, and 
 the bequests of uses of land which it supported, and which 
 enabled testators to evade the feudal rule of the indevisability 
 of land, were akin to the Tiomsin fideicommissa. Both systems 
 were thus introduced to evade the strict law. The jurisdiction 
 of Chancery over Uses dates from the reign of Henry Y. ; and 
 when in the reign of Henry VIII., the Statute of Uses gave the 
 legal ownership to the man who already had the Use, the 
 Chancellors regained their jurisdiction and created Trusts by 
 the device of enforcing " a use of an use," which was not 
 affected by the Statute. In this however there was no trace of 
 Roman influence and, as Mr Spence acknowledges, the details 
 of the system of Uses and Trusts were entirely constructed by 
 the Clerical Chancellors without help from the Roman system ^ 
 We can only say that probably the general conception of Uses 
 
 1 Spence, i. 435—517. to Co. Lit. i. 290 b. 
 
 ^ Speuce, I. -460 note ; Butler's note
 
 MOIlTGAOf:S. ] 57 
 
 and Trusts and the assumption of Jurisdiction over tliern were 
 assisted by tlie acquaintance of the Clerical Chancellors with 
 the Roman fideicoiniiiissa. 
 
 The system of Mortgages^ was much affected by the doctrines 
 of the Civil law, acting through the Court of Chancery, and a 
 mortgage now is "a security founded on the common law, and 
 perfected by a judicious and wise application of the principles 
 of redemption of the Civil law^" The strictness of the Common 
 law viewed the ]\Iortgage in the light of a conditional grant of 
 land by the mortgagor to the mortgagee, the condition being that 
 the land should revert to the grantor on payment by a certain 
 day of the money lent. If not, the land was discharged from the 
 condition and became absolutely vested in the mortgagee. 
 But the Civil law regarded the debt intended to be secured, 
 and not the land, as the principal ; payment of the principal 
 debt at any time would therefore release the accessory security 
 on the land : the creditor, if not in possession of the land, could 
 only sell it under a decree from the Praetor, and tender of the 
 amount due before the decree of sale released the land. This 
 construction, more lenient to mortgagors, was, under Charles I., 
 adopted by the Chancery, who allowed an " equity of redemp- 
 tion" to the mortgagee within a reasonable time, though after the 
 day on which, according to the Common law, the land would 
 be forfeited for non-payment. To maintain their jurisdiction 
 against both the Common law judges and the debtors them- 
 selves, the Chancellors held void any conditions in the loan by 
 which the borrower lost his " equity of redemption." And this 
 is similar to if not derived from a constitution of the Emperor 
 Constantino, which expressly rendered such stipulations void^ 
 We can thus trace the altered view of Mortgages, the necessity 
 for foreclosure, and the protection of the equity of redemption, 
 as established in the Court of Chancery, to the Civil law. 
 
 In the construction of legacies and documents, the Chan- 
 cellors have availed themselves freely of Roman rules\ The 
 
 1 Butler's notes to Co. Lit. i. 205 a., - Coote, p. 1. 
 
 290b. Spence, i. 601. Coote on Mort- ^ Cod. 8, 31, 3. 
 
 gages, 4tb edit. pp. 1, 14. Warren, " Spence, i. 51R, 523, 5G6. 
 Lmo Studies, p. 521.
 
 158 INTERPRETATION OF WILLS. 
 
 Chancery had no original jurisdiction in testamentary matters, 
 and therefore felt bound to adopt the rules of the Ecclesiastical 
 Courts, which were those of the Civil law. In Hurst v. Beach^ 
 the Vice-Chancellor directed the opinion of civilians to be 
 taken as to the admissibility of evidence in a case as to legacies, 
 and on the practice of the Ecclesiastical Courts. In Hooley v. 
 Hatton^, where the question was whether two legacies to the 
 same person in a will and codicil were cumulative or sub- 
 stitutive, the case was argued with citations from the Civil law ; 
 and Lord Thurlow, in his judgment, said : " No argument can 
 be drawn in the present case from internal evidence ; we must 
 therefore refer to the rules of the Civil law." Similarly in 
 interpreting the language of alleged trusts, the rules of the 
 civil law are referred to'\ Remains of the Roman doctrine of 
 heneficium inventoris are traced in the time of Charles I., when 
 an executor who had not exhibited an inventory was charged 
 with a legacy after 20 years*. In the case of legacies for public 
 uses Lord Thurlow said that the cases "had proceeded upon 
 notions adopted from the Roman and Civil laws, which are very 
 favourable to charities, that legacies given to public uses not 
 ascertained shall be applied to some proper object^" And the 
 same is true of charitable trusts ^ But these rules were some- 
 times applied with more zeal than discretion, as when Sir R. 
 Arden, M.R., afterwards Lord Alvanle}^, entirely misunderstood 
 the meaning of exceptio doli". But Mr Spence's remark that 
 " probably the same law as to legacies has continued in England 
 from the time of Agricola to the present day®" shows too great a 
 faith in the persistence of a highly developed system of law 
 through centuries of barbarism. 
 
 The jurisdiction of the Chancery over Infants® is very 
 similar to that exercised over guardians by the Roman Praetor, 
 but Mr Spence is not able to say more than that the Corpus 
 
 1 5 Mad. 351, 357, 360. reference. 
 
 2 Cited in Ridges v. Morrison, 1 ^ WJate v. White, 1 Br. Ch. C. 15. 
 Brown, Ch. C. 389. 6 Speuce, i. 587. 
 
 3 Knight v. Knight, 3 Beav. ICl, '' Kennett v. Abbott (1799), 4 Ves. 
 172. 808. 
 
 * Spence, i. 585, citing Tothill, 183 : 8 Spence, i. 523 note. 
 
 15 Car. I. which appears a wrong » Spence, i. 606 -615.
 
 PAKTXERsniP. 159 
 
 Juris " has been occasionally consulted, if not resorted to as an 
 authority" on the subject. We have already noticed Lord 
 Macclesfield's preference for the Civil law rule as to the persons 
 who should be guardians as compared to that of the Common 
 la\v\ The Chancery jurisdiction over idiots and lunatics is also 
 similar to that of the Praetor and may very possibly have been 
 derived from it". 
 
 The English Law of Partnership is derived from three 
 sources, the Common Law, the Lex Mercatoria, and the Roman 
 Lawl Of the Lex Mercatoria we need only say here that it 
 appears in itself to have been at least partly based on the 
 "Roman Iaw^ Mr Justice Story has made an elaborate and 
 detailed investigation of the relations of the Common to the 
 Roman law, and finds great similarity between them^ Both 
 laws recognize the difference between a partnership and a com- 
 munity of interest^ and provide that no new partner can be 
 introduced without the concurrence of the original partners ^ 
 But the Common law has refused to follow the Roman law in 
 holding invalid an agreement that the personal representative 
 of a partner should succeed him in the partnership'. Both laws 
 require a partnership to be in good faith and for a lawful 
 purpose^; and that all partners must contribute something, 
 whether property or skill, to the common stockl Both require 
 community in profits among the partners and, to a more limited 
 extent, community in losses'". Li the absence of express agree- 
 ment both laws require an equal division of profits". The 
 Common law formerly went beyond the Roman law in making 
 persons who share the profits of a trade liable by operation of 
 law, to third parties as partners '^ but this rule was overthrown 
 in Cox V. Hichnan^^. Both laws recognize a division into 
 universal, general, and special partnerships, though the chief 
 Common law division is into public and private partnerships". 
 
 1 r. supra, p. 130. 7 md § ^ 
 
 2 Spence, i. 618—620. 8 § g. 
 
 3 Colhev on Partnership, Lond.lSiO, " §15. 
 p. 1. 10 § 20. 
 
 * Spence, i. 665. " §§ 24, 25. 
 
 « Story on Partnership, Boston, ^" § 37. 
 
 1881, 7th ed. is 18 C. B. 617. 8 11. L. C. 268. 
 
 « Story §§ 3, 4. i* Story §§ 72—76.
 
 160 PARTNERSHIP. 
 
 Both regulate the duration of partnership by the consent of the 
 partners, but the Roman Law went further than the English, 
 and prohibited partnerships extending beyond the life of the 
 parties\ No particular forms for the constitution of a partnership 
 were required by either law'. By the Roman law, the mere 
 partnership relation conferred less extensive powers of disposi- 
 tion of the partnership property than are given by the Common 
 law'. A Roman partner could not bind the firm by debts, nor 
 alienate more than his share of the partnership property. But 
 in the absence of express stipulation and with some limitations 
 each partner of an English partnership may be taken by 
 outsiders, as having an equal and complete power of administra- 
 tion over the whole of the partnership affairs'*. Both laws 
 admit a discharge of a debt to or by one partner to be good for 
 or against the whole firml In the Common law, within the 
 scope of the partnership, the majority have a right to govern, 
 but in the Roman law the express or implied assent of all the 
 partners is required®. Both laws make partners liable to each 
 other for negligence or fraud, and require a withdrawal from 
 the partnership to be in good faithl Both laws consider a 
 partnership for no certain period as dissoluble at the will of any 
 partner^; but the Roman law went further than the Common 
 law in requiring that the dissolution should not take place at 
 an unseasonable time®. Both laws allow the Court to dissolve 
 the partnership in case of positive or meditated abuse of it by a 
 partner, or when its objects are no longer attainable, as in the 
 case of a partner's insanity'**. By both laws, the assignment of 
 his interest by one partner, contrary to the will of the others, 
 dissolves the partnership". Both laws dissolve the partnership 
 by death '^; and many of the provisions in both laws for taking 
 an account and winding up a partnership are similar, though 
 the English sale is more convenient than the Roman division'^. 
 
 1 story §§ 85, 196. 
 
 
 8 §§ 268, 269. 
 
 2 §86. 
 
 
 9 §§ 275, 276. 
 
 ^ § 95. 
 
 
 10 §§ 288, 292, 
 
 ■» § 103. 
 
 
 " § 307. 
 
 s § 116. 
 
 
 1= § 317. 
 
 8 § 125 : noted by Blackstone, i. 
 
 484. 
 
 ^■^ § 352. 
 
 ' §§ 135, 170, 176. 
 

 
 SI'ECIFIf PERFOUMAXCE. IGl 
 
 Wliilst Eiiglisli partners are liable to third parties in solido, by 
 the Roman law they were only liable jy^'o parte. 
 
 This enumeration shows a sufficient agreement between the 
 two systems to justify the assertion that while the method of 
 the introduction of so much Roman law in early times is not 
 clear, in later times most of its leading principles have become 
 incorporated into the Common law of Partnershi})'. 
 
 Mr Spcnce and Lord Justice Fry^ agree that the Equitable 
 Jurisdiction to enforce Specific Performance is not derived from 
 the Roman law, which only gave damages for breach of contract, 
 and adhered to the maxim; "nemo potest praecise cogi ad 
 factum'^" Spence considers the jurisdiction a "clerical in- 
 vention" and Fry doubts whether to attribute it to the Canon 
 law, which said " Studiose agendum est ut ea quae promittuntur 
 opere compleantur* " or to " the plain principles of morality and 
 common sense of the Judges who fjunded and enlarged the 
 equitable jurisdiction." 
 
 Besides the chief heads of its jurisdiction, the leading 
 principles on which the Chancery administers justice show 
 traces of clerical and Roman influence. The term "Con- 
 science^" which is so involved in the decisions of the Court, 
 though itself of clerical invention, is like the Praetorian notion 
 of hona fides ; but as to mala fides the English law has 
 departed from the Roman principle, lata cidpa plane dolo coni- 
 parabitar, by holding that, "Gross negligence may be evidence 
 of mala fides, but it is not the same thing'''." The jurisdiction of 
 the Chancery, in fraud, to cancel and deliver up deeds is 
 analogous to the Praetorian restitutio in integrum, and actio 
 de dolo\ Both Praetor and Chancellor had a power to relieve 
 against Accident, grounded in the Roman law on natxiralis 
 justitia^. So the jurisdiction to relieve against Mistake, and 
 the distinction between mistake of law, and of fact, both in the 
 
 1 Spcnce, I. 665. leijcm: {nupra, p. 155). 
 
 2 Fry on Specific Performance, 2nd « Ld. Denman in Goodman v. 
 edit. Lond. 1881, pp. 3—8. Spence, Harvey, 4 Ad. & E. 876. See also 
 I- 645. 1 Hare, 71. Spence, i. 425 note. 
 
 ^ Pothier, Des obligations, i. 2, 2, 2. " Spence, i. G22. 
 
 ■* Decret. Greg. IX. i. 35, 3. ^' Thitl i. 028. Difi. 27, 1, 13, 7. 
 
 5 Silence, I. 411. ei. aequitas acquitiir 
 S. 
 
 11
 
 152 KESULTS. 
 
 Common law and Chancery, appear of Roman origin; though 
 under Edward IV. the Roman maxim, "nee stultis solere saccurri 
 sed errantibus", was met by a clerical Chancellor with " Deus 
 est procurator fatuoram^" and the "fool" was relieved. The 
 injunctions of the Chancery are comparable to Praetorian 
 Interdicts^; its jurisdiction in discovery to the actio ad exhihen- 
 dum, and possibly to the early and obsolete actio interrogatoria^. 
 The procedure for perpetuating evidence by examining witnesses 
 de bene esse liad also a parallel in Roman procedure*. 
 
 Without proceeding to a more detailed examination enough 
 has been said to show that though usually the details of the 
 Equitable Jurisdiction were worked out by the Chancellors on 
 English lines, the subjects of jurisdiction and the powers of the 
 Court were largely derived from the functions of the Praetor, 
 and that this was due in the main to the influence of the 
 early Clerical Chancellors. ^ 
 
 At present however the Courts of Chancery and Common 
 law stand towards the Civil or any other law in no different 
 relation. As Blackstone has said' " In matters of positive right, 
 both Courts must submit to and follow ancient and invariable 
 
 maxims where they exercise a concurrent jurisdiction they 
 
 both follow the law of the proper tribunal ; in matters originally 
 of ecclesiastical cognizance, they both equally adopt the Canon 
 and Imperial law, according to the nature of the subject." 
 But the nature of the subjects which come before the 
 Chancery is more likely to call for its recourse to the Canon or 
 Civil law, than those which are discussed in the Common Law 
 Courts, and therefore Blackstone recognizes in 1763 that in the 
 Chancery "the proceedings are to this day in a course much 
 conformed to the Civil law''." 
 
 1 Dig. 22, 6, 9. Gary's Rep. (ed. IGoO), » Spence, i. 228, 678. 
 
 p. 17. Spence, i. 632, 637. Both * Dig. ix. 2, 40. Spence, i. 681. 
 
 editions of Gary that I have seen have ^ Bl. in. 436. 
 
 the odd reading est procurator futurus. " Bl. i. 20. 
 
 3 Spence, i. 669.
 
 CHAPTER XII. 
 
 ROMAN LAW IN THE ECCLESIASTICAL COURTS. 
 
 Of the Ecclesiastical Courts, Hale says^ ; " the rule by which 
 they proceed is the Canon law, but not in its full latitude, 
 and only so far as it stands uncorrected, either by contrary acts 
 of Parliament, or by the common law and custom of England : 
 when 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." Their jurisdiction maybe treated 
 of under two heads : (1) that relating solely to the internal life 
 and worship of the Church of Eogland : (2) that affecting the 
 whole realm, such as the testamentary and matrimonial 
 jurisdiction. 
 
 The first head may be shortly dealt with. The separation 
 of the civil and clerical courts under William I., ensured for 
 the latter a peculiarly Roman and canonical law and procedure ; 
 the Conqueror's law provided ; "secundum canones et episco- 
 pales leges 7'ectum Deo et Episcojjo suo faciat^ ", and the pro- 
 cedure was that of the Roman Consistory. This tended to 
 create a feeling of hostility on the part of the Courts of Common 
 law and the English people towards Courts not ruled by the 
 Common law of England. 
 
 The present ecclesiastical law consists of three portions^: 
 I. Statutes, and enactments made in pursuance of, or ratified 
 
 ^ Hist. C. L. 28. siastical Late, London, 1873: i. pp. 12 
 
 2 Stubbs, B. C. p. 85. — 19. Coote, Ecclcsinittical Prartirc, 
 
 * Brice, Public Worship, London, London, 1847. 
 1875, pp. 1—10. Phillimore On Ecclc- 
 
 11 — 2
 
 164 ECCLESIASTICAL LAW. 
 
 by, statutes. II. Certain portions of the Canon law, and 
 certain constitutions and canons issued by competent author- 
 ities. III. The Ecclesiastical Common law ; ecclesiastical 
 usages, not embodied in writing, except in some judicial de- 
 cisions, but recognized as binding and supposed to be known 
 by the Courts. 
 
 The Canon law as such is a body of Roman ecclesiastical 
 law ; but only such parts of it as are contained in the provincial 
 constitutions\ and in the general usages of the church, and are 
 recognized in the Courts of this realm, are binding in England^ 
 No canon contrary to the Common or Statute law or to the 
 Prerogative is of any force ; and no canons made since the 
 reign of Henry YIII., and not sanctioned by Parliament, are 
 binding on the laity : nor are canons binding made before that 
 reign, unless adopted by the English churchl 
 
 The position of Ecclesiastical law in England has been well 
 described by Tindall, L. C. J. as follows*; " The question depends 
 upon the Common law of England, of which the Ecclesiastical 
 law forms a part... The law by which the spiritual Courts of this 
 ii;ino-dom 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 vigore, but instead thereof an Ecclesiastical law, of 
 which the oreneral Canon law is no doubt the basis, but which 
 has been modified and altered from time to time by the 
 ecclesiastical constituti(->ns of our archbishops and bishops, and 
 by the legislation of the realm, and which has been known from 
 early times by the distinguishing title of the King's Ecclesi- 
 astical law... That the Canon law of Europe does not, and never 
 did, as a body of laws, form part of the law of England, has been 
 long settled and established law." So also Sir John NicholP: — 
 " Indeed the whole Canon law rests for its authority in this 
 country upon received usage ; it is not binding here proprio 
 
 1 Collected in Lyndwood's Pro- ^ Bishop of Exeter v. Marshall, L. 
 
 vinciale sen Constitutiones AnrjUae. R. .3 H. L. 17, 47, 55. 
 
 Paxis, 1505 ; Oxford, 1679. ^ R. v. MiUis (1844), 10 CI. and 
 
 ~ Martin v. 3Iackonochie, L. E. 2 Fin. 534, 671, 678, 680. 
 
 Adm. and EccL 116, 153. 5 3 pjjQi, ji^,j_ gy^ 78—79.
 
 MATRIMONIAL JURlSDICTloX. 1G5 
 
 vijore." 'J'he Canon law of it?;elf is not therefore part of 
 English law, nor docs the Civil law appear to enter into this 
 branch of the Ecclesiastical Jurisdiction. 
 
 The Ecclesiastical Courts had jurisdiction atfecting the 
 subjects of the realm in three matters : — I. Pecuniary, in 
 tithes, dilapidations &c., to which we need not further refer. 
 II. Matrimonial causes ; validity of marriage, legitimacy. 
 divorce, &c. III. Testamentary causes, and the administration 
 of the estates of Intestates. 
 
 Matrimonial Jurisdiction. 
 
 The Judicature Act, 1873', transferred to the newly created 
 Probate, Admiralty and Divorce Division of the High Court of 
 Justice inter alia, all matters within the exclusive cognizance 
 of the Court for Divorce and Matrimonial Causes, and applied 
 to that Division all the rules, orders and procedure of that 
 Court. The Court for Divorce and Matrimonial Causes was 
 created by an Act of 1857*, by which all causes and matters 
 matrimonial, which should be pending in any Ecclesiastical 
 (Jourt in England were transferred to that Court, which was 
 to possess all jurisdiction on the subject exercisable by any 
 ecclesiastical court, and to proceed and act and give relief on 
 principles and rules which in the opinion of the Court should 
 be as nearly as might be conformable to the principles and 
 rules, on which the Ecclesiastical Courts had heretofore acted 
 and given relief. This law of the Ecclesiastical Courts in the 
 matter of marriage had been based on the Canon law, though 
 its authority was much restricted, and depended on its having 
 been received and admitted by Parliament, or upon immemorial 
 usage and custom I This jurisdiction devolved upon the Clerical 
 Courts from the conception of marriage as a religious sacrament 
 and tie, the nature, validity, and dissolution of which were 
 matters of clerical cognizance. The procedure was "regulated 
 according to the practice of the civil and canon laws, or rather 
 
 ' oG ami 37 Vie. e. (5() iJS 31, UK 71. •'■ Sliclford (hi Maninin. Loiulon, 
 
 38 ami 311 Vic. e. 77 §§ 18, 21. 1811 : pp. 17 --21. 
 
 a 20 and 21 Vic. e. 8;") tiS 4, 0, 22.
 
 166 TESTAMENTARY JURISDICTION. 
 
 according to a mixture of both, corrected aud new modelled by 
 their own particular usages, and the interposition of the courts 
 of common law\" A well known instance of this is the way in 
 which the law of England dealt with the Roman doctrine of 
 legitimatio ante nuptias. But generally the greater part of the 
 English law on matrimonial causes is derived from the Civil or 
 Canon law. 
 
 Testa mentary Jurisdict io n. 
 
 The Testamentary jurisdiction was also in the hands of 
 clerical judges ^ The present Procedure and Practice of the 
 Probate Division of the High Court of Justice are the same, 
 (except as altered by rules under the Judicature Acts), as 
 those in force in the Court of Probate before 1875 ^ This Court 
 was created by the Act of 1857*, by which the jurisdiction of 
 all ecclesiastical Courts having power to grant probate of wills 
 was transferred to it, and its practice, except as subsequently 
 provided by rules and orders, was to be according to the then 
 practice in the Prerogative Court of Canterbury^. Thus the 
 present jurisdiction of the Probate Division is founded on this 
 Ecclesiastical law ; but as to the origin of the Ecclesiastical 
 Jurisdiction there is considerable doubt. 
 
 Wills were probably introduced by the clergy from Roman 
 sources, and from early times the clerical courts had jurisdiction 
 over suits as to the validity of wills, or in what is known as 
 '' prohatio solernnis per testes'^." But whether this jurisdiction 
 dates from the separation of the Courts by the Conqueror, or 
 was assumed by the English Church at a later period, there is 
 no evidence to show. Lyndwood' expressly says " cujiis regis 
 temporibus hoc ordinatum sit non reperio" but the jurisdiction 
 certainly existed at the time of Glanvil®, and the absence of 
 evidence appears to show that, when assumed, it was not 
 
 ^ Blackstone, in. 100. ^ Bl. Com. in. 95. Coote's Eccl. 
 
 2 Coote's Probate Practice, 8th edit. Practice, i^p. 22 — 86. T'. sxipra, jjp. 24, 
 Loudon, 1878. 25. 
 
 3 38 and 39 Vic. c. 77 §§ 18, 21. 36 7 Lyndwood, Provinciale, 3, 13, f. 
 and 37 Vic. c. 66 §§ 23. 176 (ed. 1679). 
 
 * 20 aud 21 Vic. c. 77 § 3. s q] yn. 8. 
 
 5 Ibid. §§ 29, 30.
 
 INTESTACY. 107 
 
 opposed by the common lawyers. As to the otlier brancli of 
 testamentavy jurisdiction, the power of granting probate of a 
 will in common form to an executor, and also as to the power 
 of granting letters of administration of the goods of an intestate 
 to his next of kin, we have more evidence'. The latter was, 
 even in the time of Glanvil, in the hands of the king's courts, 
 the next of kin having a right to succeed, subject to the claims 
 of the lord, without any clerical intervention^ In the reign of 
 Stephen, the jurisdiction over ecclesiastical persons and the 
 distribution of their goods was placed in the hands of the 
 Bishop, but this did not affect the laity^ Mr Coote attributes 
 clerical control over wills to the study of the Civil law by the 
 clergy after the teaching of Vacarius, although their attempts 
 to obtain that control were resisted by the barons'*. In 1191, 
 the clergy in Normandy, who had previously been granted, 
 as in England, the control of clerical wills and intestacies, 
 received the control of all wills and intestacies. Magna Charta 
 contains the provision® "Si aliquis liher homo intestatus 
 decessit, catalla sua per manus j^^'ojyin quorum et aniicorum 
 suoriim j)er visum ecclesiae distrihuantur, salvis cuicunque 
 debitis, quae defunctus ei dehehat." But this clause is omitted, 
 not only, as Coote observes, in the Charter of 1225, but also, 
 which he does not notice, in the reissues of the Charter in 1216, 
 and 1217. Ho suggests that the omission is due to the 
 hostility of the barons, but, if so, it is curious that the Articles 
 which the Barons themselves put forward in 1215 should run*', 
 "/Si aliquis liher homo intestatus decesserit, bona sua per manum 
 proximoruyn parentum suorum et amicorum, et per visum 
 ecclesiae, distribuantur'' " ; unless this was a concession to the 
 church by the barons to secure its cooperation in the coming 
 struggle. The Clergy were anxious to obtain control of 
 intestacy that they might devote a share of the intestate's 
 estate to pious purposes ; the lords preferred to confiscate the 
 property. The clergy protested "Item mortuo laico intestato, 
 
 ^ Coote, p. 22. ^ § 27. Stubbs, S. C. p. 292. 
 
 - Gl. vii. 6, 7. « Article 16. Ibid. p. 283. 
 
 ■' Coote, p. 27. Stubbri, S. C. p. 111. " Note, that the clause as to pay- 
 
 ■* Iliid. p. 31. iiicnt of just debts is omitted.
 
 168 INTESTACY. 
 
 dominus rex et caeteri domini feudorum bona defuncti sihi 
 applicantes non permiUiint de ipsis dehita solvi, nee residuum in 
 usus liberorum et proximorum suorum et alios pios usus per loci 
 ordinarium cvjus interest, aliqua converti';" thus the lords neither 
 paid the debts, nor recognized the pious uses. The statute of 
 Westminster charged the payment of the debts of the intestate 
 on that third of the property which the ordinary destined to 
 pious uses, instead of, as in previous practice, on the rationahiles 
 partes of the widow and children'. A statute of 1357' commanded 
 the ordinaries to appoint "de plus proscheins et plus amis de mort 
 intestat,pur administrer ses hiens...et recoverer come executoures 
 les dettes dues au dit mort...et soient accountables aux ordinairs 
 si avant come executoures sont en cas de testament." The ordinary 
 thus appointed one of the next of kin as administrator to dis- 
 tribute the effects in such proportions as the church following 
 the system of the civil law should direct, and the Act also gave 
 power to bring actions concerning the intestacy in the King's 
 Courts, as well as in the Courts of the Ordinary, thus making 
 the system more secure. 
 
 The Prerogative Court of the Archbishop, which dealt with 
 wills and intestacies was established by Archbishop Stafford in 
 1443, who transferred the jurisdiction of the Court of Arches 
 over those matters to the New Court, presided over by a 
 Commissary'*. The first Commissary was Alexander Provert, 
 Bachelor of Canon law. 
 
 But the ordinary's power in intestacy became useless after 
 the Reformation, owing to the refusal of the Common Law Courts 
 to enforce the directions of the Ordinary, or the Ecclesiastical 
 bonds for due performance of their duties which he took from 
 administrators^ This unsatisfactory state of things resulted in 
 the Statute of Distributions, which gave the Ordinaries and 
 ecclesiastical judges, "having power to commit administrations 
 of the goods of persons dying intestate", power to take bonds for 
 the due administration of the estate, which should be enforceable 
 in Courts of law^. 
 
 1 Gravamina and Articles of 1257, •* Coote, p. 81. 
 § 23. Coote, p. 39. * Coote, p. 55. 
 
 2 Coote, pp. 44—47, (a.d. 1285). '' 22 and 23 Cli. II. c. 10, made 
 ■• 31 Edw. III. c. 11. Coote, p. 58. perpetual by 1 Jac. II. c. 17 g 18.
 
 RESULTS. 1(59 
 
 We have thus traced, as far as the lack of evidcuce allows, 
 the process by which the Clerical Courts acquired the jurisdic- 
 tion over all matters connected with wills and testaments. 
 This jurisdiction, once obtained, was exercised on the lines of 
 the Canon and Civil laws: as Hale says', "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," and these "directions of the Civil law" have been 
 adopted by the Chancery in cases involving the construction of 
 documents and wills ^ 
 
 The original jurisdiction of the Ecclesiastical Courts in cases 
 laesionis fidei, over contracts not enforceable by the Kino-'s 
 courts, and its influence on the works of Glanvil and Bracton 
 have already been referred to^. 
 
 1 Hale, Common Law, p. 28. 3 j- su2)ra, pj). 77, 100. 
 
 - V. siqjra, p. 158.
 
 CHAPTER XIII. 
 
 ROMAN LAW IN THE ADMIRALTY. 
 
 The early history of the " Court of Admiralty proceeding 
 according to the Civil law," as Coke terms it, is closely con- 
 nected with the history of the Law Merchant, which will form 
 the subject of our next section. From very early times 
 merchants and mariners regulated their dealings by a set of 
 customs and rules known as the Law Merchant, Law Marine, or 
 Customs of the Sea. In the Domesday Book of Ipswich \ it is 
 recorded that " the pleas yoven to the law maryae, that is to 
 wyte, for straunge marynerys passaunt, and for hem that abydene 
 not but her tyde, shuldene be pleted from tyde to tyde ;" and it 
 is probable that similar courts existed in all seaport towns, and 
 places where merchants resorted. This Law Merchant and Cus- 
 toms of the Sea came into prominence in the countries bordering 
 on the Mediterranean ; lands which had been under Roman rule 
 continued to obey a modified version of the Roman laws, (which 
 the Roman jurists themselves had borrowed from the Rhodian 
 code,) adapted and altered to meet the new developments of com- 
 merce and civilization ^ And by the middle of the thirteenth 
 century a number of written codes of Maritime law came into 
 existence in most of the principal centres of mercantile activity. 
 
 ' Cited from a MS of 1289, in Twiss, the Admiralty of England asserted by 
 
 Black Book of Admiralty, ii. 23. R. Zouch, D. C. L., late Judge of the 
 
 ^ Pardessns, Collection des Lois Admiralty Court, p. 88 : (written before 
 
 Maritimes, Paris, 1828, cited in Twiss, 1663, published 1686). Malynes' Lex 
 
 IV. Pref. 129. Godolphin's Vieiu of Mercatoria, p. 87, 1st edit. 1622 ; 3rd 
 
 the AdttiiruVs Jurisdiction, London, edit. 1685. 
 1061, p. 13. Zouch, Jurisdiction of
 
 THE LAWS OF OLEllOX. 171 
 
 The Consolato del Mare represents the customs observed at Barce- 
 lona; the Laws of Oleron, the usages of Bordeaux and the Isle 
 of Oleron ; the Laws of Wisbuy, the rules of the Hanse Towns. 
 The Italian version of the Consolato speaks of its contents 
 thus^: "these are the good constitutions and customs which 
 belong to the sea, the which wise men passing through the 
 world have delivered to our ancestors." 
 
 The early history of the Customs of the Sea, and of the 
 Admiralty Court in England may be gathered from a memor- 
 andum of 1339, entitled " FasciciUus de Superioritate Maris'\" 
 which recites that the Justiciaries of the King were to be 
 consulted as to the proper mode of revising and continuino- the 
 form of proceeding instituted by the King's grandfather and his 
 Council, for the purpose of maintaining the ancient supremacy 
 of the Crown over the Sea of England, and the right of the 
 Admiral's office over it, with a view to correct, interpret, declare, 
 and uphold the laws and statutes made by tlie Kin^s of 
 England, his ancestors, in order to maintain peace and justice 
 amongst the people of every nation passing through the sea of 
 England, and to punish delinquents, "which laws and statutes 
 were by the Lord Richard, formerly King of England, on his 
 return from the Holy Land, corrected, interpreted and declared, 
 and were published in the Island of Oleron, and were named in 
 the French tongue, ' la ley Olyroun '." There is no doubt that 
 Richard I., on his return from Palestine did not visit the Isle 
 of Oleron, and all that can be meant is therefore, that the Laws 
 of Oleron, whose origin we have seen, w^ere promulgated in 
 England by Richard^ This account receives confirmation from 
 the contents of the famous " Black Book of the Admiralty ", 
 which, having disappeared for many years, w^as at length fouml 
 at the bottom of a chest of private papers in a cellar. It 
 contains : (1) instructions for the Admiral's administrative 
 duties in time of war; the first article of which is*: "when one 
 is made Admirall", he must first ordain dei^uties, •'some of the 
 
 1 Cited in Zoiich, p. 88. The ori- Twiss, i. Pref. pp. 32, 57. 
 
 f^inal Spanish version (Twiss, iv.), has •' Twiss, i. Pref. o8. 
 
 not tlie clause. ^ Twiss, i. .S. 
 
 - On a roll of 12 Edw. III. ; cited in
 
 172 HISTORY OF THE ADMIE-L. . . 
 
 most loyau wise and diseret?t persons in the >l:mtin\e law {la 
 loif marifrie et ancie-ns amstames de la mer)'; (2) articles of ^va^ 
 for the King's navv, and (3) an aeconnt of the Admiral's juris- 
 diction in 34 articles, of which the first 24 are identical with 
 the most ancient version of the Eolls of Olerou, and the rest are 
 peculiar to the English Admiralty, and probably the result of 
 the conference of 13o9. Another article in this part*: "Item 
 any contract made between merchant and merchant beyond the 
 sea, or within the flood marke, shall be trieil before the 
 Admiral, and nowhere else by the orvlinance of the said King 
 Edward I. and his lords." appears to furnish the origin of the 
 Admirals jurisdiction in civil suits, which probably were more 
 often settled informally by the merchants in the seaport towns 
 ^'selon la ley metxhant^ 
 
 The Admiral took his oath to make summary and full 
 process "■sei&n la ley marine et anciennes consumes de la »»er*.'* 
 A subsequent treatise on procedure, entitled the Ordo Jhtdici- 
 orMffi, is Roman in character and terminology, and bears traces 
 of being written by a civilian of the School of Bologna*. Indeed, 
 as many of the judges in the Court of Admimlty. the deputies 
 of the Lord High Admiral, were clerics, the procedure at any 
 rate, if not also the roles of the Court, was likely to become 
 Koman in character. The inquiry of 1339, already alludetl to, 
 was entrusted to three clerics, the Official of the Court of 
 Canterbury, the Dean of *S# Jlaria in AtTithiSy and a Canon of 
 St Paul's*. By an Act of 1403, " les dites admimlles itsent leiir 
 leys seulement par la ley d'Oleron et ancienne ley de la mei\ ei 
 par la ley d'An^leferre, et ne m^ par atstiune, no par mde 
 autre manere^", while in 1406 under the Admiralties of the 
 Beauforts, the jurisdiction of the Admiralty Court was much 
 increased^ It is not therefore wonderful that under Edward VI. 
 the answer was made to a French envoy^ "that the English 
 Ordinances for 3Iarine affairs were no others than the Civil 
 
 1 Twiss, I. 69. 55 Hen. IT. e. 7; 2 Hen. Y. c. 6. 
 
 * Tvriss, I. 169. * Spelman, Glos^fariimt, fnb rotv 
 
 * Twiss, 1. 17S. The tille is Sir T. Ailmirallus, ed. 1«,587. p. 16. 
 Twiss' inyention. " Zoaeh, 89. 
 
 * Twiss, n. Pref. 12.
 
 ADMIRALTY LAW. 173 
 
 Laws, and certain ancient additions of the realm." The Black 
 Book itself lias an express reference to the Roman Law': " It is 
 ordained and established for a custom of the sea that when it 
 happens that they make jettison from a sbii^, it is ivell icritten 
 at Rome that all the merchandise contained in the ship ought 
 to contribute pound per pound"," and many other clauses ai'c 
 indirectl}' taken from the same source. 
 
 The foundations of Admiralty Law are thus to be found in: 
 (1) the Civil law, (a) as embodied in the Law Merchant, 
 especially in the Laws of Oleron ; (h) as introduced by subse- 
 quent clerical judges, mainly in procedure : (2) in subsequent 
 written and customary rules, adopted in view of the develop- 
 ments of commerce. This view is borne out by the accounts 
 Avhicli text writers give of the nature of the Law. 
 
 Thus Sergeant Callis says (in 1G22) "I acknowledge that 
 the king ruleth on the sea by the Laws Imperial, as by the Boll 
 of Oleron and other ; but that is only in the case of shipping 
 and for merchants and mariners^;" on which Zouch remarks*: 
 "I suppose no man will deny that the Civil and Imperial lav.s, 
 the Boll of Oleron and others... are of force in the Admiralty of 
 England," and again\ 'the kingdom of England is not destitute 
 of Special laws for the regulating of sea businesses, which are 
 distinct from the Common laws of the realm, as namely, the 
 Civil laws and others of which the books of Common law take 
 notice by the names of Ley Merchant and Leij Mariner"... 
 "Businesses done at sea are to be determined according to the 
 Civil law, and equity thereof, as also, according to the customs 
 and usages of the sea. . .for instruments made bevond the sea have 
 usually clauses relating to Civil law and to the Law of the Sea\" 
 
 This Avork of Zoueh's was written in reassertion of the 
 privileges of the Court of Admiralty in opposition to the 
 encroachments; of the Courts of Common law", who secured for 
 
 1 Twiss, I. 1-27. " Ibid. p. 118. 
 
 - Lev Ehodia de jactu, Diti. 14, 2, 1. ' Coke, rv. 134 ; see also i. f. 11 b. 
 
 Twiss has a wrong i-efercnce. "Civil Law in ccrtaiu cases, uot only 
 
 ^ Eeadiug ou the Statute of Sewers. in Courts EcclesiasticaL but in the 
 
 1st ed. 1622. Ed. 1686. p. 42. Adiuii-alty, in which is observed h\ 
 
 * Zoiich, p. 05. Irv Olyroun. o liieh. I." 
 
 5 Ihid. p. 80.
 
 17-t CIVIL LAW IN THE ADMIRALTY. 
 
 tlieir jurisdiction cases which properly fell withiu the cogin- 
 zance of the Admiralty, by the fiction that the contract sued on 
 was made in Cheapside, whereas, as the Civilians gravely 
 remarked, a ship could not come to Cheapside because there 
 was no water. The Common Law Courts also prohibited the 
 Admiralty from trying certain classes of cases ; on which Zouch 
 says\- " It may be thought reasonable that such contracts being 
 grounded upon the Civil law, the law amongst Merchants, and 
 other maritime laws, the suits arising about the same should 
 rather be determined in those courts, where the proceedings 
 and judgments are according to those laws, than in other 
 Courts, which take no notice thereof." 
 
 So Selden had said^ "Juris civilis usus ah antiquis saecuUs 
 etiam nunc retinctur in foro maritimo, sen Curia Admiralitatis" , 
 and Duck^: "Jus autem dicit Admiralitas ex Jure Civili 
 Romanorum, et ejus Curia consuetudinibus'^." Godolphin writing 
 in 1661, says "all maritime affairs are regulated chiefly by the 
 Imperial laws, the Rhodian laws, the Laws of Oleron, or by 
 certain peculiar municipal laws and constitutions, appropriated 
 to certain cities bordering on the sea, or by those maritime 
 customs... between merchants and mariners "..."The Court of 
 Admiralty proceeds according to the known laws of the land 
 and the ancient established Sea laws of England with the 
 customs thereof, so far as they contradict not the laws and 
 statutes of the realm® "..."A great part of this Fabric is laid on 
 a foundation of Civil law... a law allowed, received, and owned as 
 the law of the Admiralty of England ''"... though "It is most 
 true that the Civil law in England is not the law of the Land, 
 but the law of the Sea... a law, though not tJie law of England, 
 not the Land law, but the Sea law of England ^" 
 
 Hale in 1676, with his usual strong feeling against the 
 Civil law, sums this up thus®; " The Admiralty Court is not 
 bottomed upon the authority of the Civil law, but hath both its 
 power and jurisdiction by the law and custom of the realm in 
 
 ' P- 103. 5 2i,td. Pref. 
 
 - ad Fletam, viii. 6 xhid. p. 123. 
 
 ■' (1676), II. 8, 3, 24. 7 jj^ij^ p. 127. 
 
 ■* Godolphin, p. 40. s Hale, Common Law, p. 40.
 
 CIVIL LAW IN THE ADMIRALTY. 175 
 
 such matters as are proper for its cognizance. Tliis appears by 
 their process... and also by those customs and law maritimes 
 whereby many of their proceedings are directed, and which are 
 not in many things conformable to the Civil law... also the Civil 
 law is allowed to be the rule of their proceedings, only so fur as 
 the same is not contradicted by the Statutes of this realm, or by 
 those maritime laws and customs, which in some points have 
 obtained in derogation of the Civil laws." 
 
 This opinion of Lord Hale's, though apparently inconsistent 
 with the dicta previously cited is not, I think, so in reality ; for 
 all that he alleges is that the Civil law is only law in England 
 by the authority of the English Crown, and that in many points 
 it has been altered and modified by later decisions and enact- 
 ments ; and both of these propositions are recognized by 
 previous writers. 
 
 Blackstone says of the^ "maiitime Courts before the Lord 
 High Admiral", that "their proceedings are according to the 
 method of the Civil law, like those of the Ecclesiastical Courts " 
 ..."'■^The proceedings of the Courts of Admiralty bear much 
 resemblance to those of the Civil law, but are not entirely 
 founded thereon ; and they likewise adopt and make use of 
 other laws, as occasion requires, both the Rhodian laws, and the 
 laws of Oleron : for the law of England doth not acknowledge 
 or pay any deference to the Civil law considered as such, but 
 merely permits its use in such cases where it judges its deter- 
 mination equitable, and therefore blends it in the present 
 instance with other marine laws ; the whole being corrected, 
 altered and amended by acts of parliament, and common usage ; 
 so that out of this composition, a body of jurisprudence is 
 enacted, which owes its authority only to its reception here by 
 consent of the Crown and people." 
 
 On the criminal jurisdiction of the Court of Admiralty, 
 -rBlackstone alludes to the disuse of its old procedure — ^: "but 
 as this Court proceeded without jury in a manner much con- 
 formed to the Civil law, the exercise of a criminal jurisdiction 
 there was contrary to the genius of the law of England"; and 
 
 J BL IV. 08. •' Bl. IV. 268. 
 
 - Bl. III. lOS.
 
 170 PROCEDURE IN ADMIRALTY. 
 
 ;i.s, owing to the requirements of two witnesses, gross offendeis 
 might escape, therefore " marine felonies are now tried by com- 
 missioners oyer et terminer according to the law of the land." 
 
 The procedure and practice of the Court of Admiralty was 
 transferred by the Judicature Acts to the Probate, Admiralty 
 and Divorce Division of the High Court of Justice, except as 
 altered by subsequent Orders under the Act. This Division 
 thus unites the three branches of English law in which the 
 Civil law had most direct and acknowledged influence, the 
 Testamentary and Matrimonial Clerical Jurisdictions, and the 
 Jurisdiction of the Admiralty, which, as we have seen, was 
 partly built up by clerical judges. 
 
 On the subject matter of Admiralty law, we may say more 
 in the next section. The procedure in rem against a ship, 
 analogous to " Noxa caput sequitur ", the institution of average 
 {Contrihutio), Bottomry, (pecunia trajectitia vel nauticum foenus), 
 and probably charter parties, all bear traces of Roman origin.
 
 CHAPTER XIV. 
 
 ROMAN LAW IN THE LAW MERCHANT, 
 
 From the earliest times a summary mode of procedure appears 
 to have existed, in which a kind of rough and ready justice 
 was exercised in mercantile disputes according to the usages 
 of commerce. As early as Bracton we find recognition of this ; 
 the solemn order of attachments need not be observed in such cases 
 " projyter privilegium et favorem mercatormn^'' ) and a summons 
 with less than lo days' notice may be adjudged \dt.\\'{n\/' propter 
 personas qui celerem debent habere justitiam, sicut sunt merca- 
 tores, quibus exhibehir justitia pepouch'ous^." This " Court of 
 Pipowder " is also mentioned in the Domesday of Ipswich, where 
 besides the " pleas yoven to the lawe maryne," there are also 
 "pleas between straunge folk that men clepeth pypoudrus, 
 shuldene be pleted from day to day^" The Court of Pipowders in 
 1478 was a Court that sat from hour to hour administering justice 
 to dealers in time of fair*; according to Coke, it was to secure 
 "speedy justice done for advancement of trade," and there might 
 be such a Court by custom without either fair or market ^ 
 
 Malynes, in his curious and interesting work on the Lex 
 Mercatoria, speaks of " the law Merchant, that is according to 
 the customs of merchants... which concerning traffic and com- 
 merce are permanent and constant®." Coke states that' "the 
 merchant strangers have a speedy recovery for their debts and 
 
 1 Br. f. 444. Rolls Series, n. 23. 
 
 - Br. f. 334 : so called because justice ■* 17 Edw. IV. c. 2. 
 
 was done while the dust was still on the ^ Coke, iv. 272. 
 
 foot, or before it could be shaken off. '' Pub. 1622, 3rd Edit. 1086: pp. 2, 3. 
 
 3 Black Book of Admiral ty.ed. Twiss. ' Coke, ii. 58 ; see i. 11, b. 
 
 s. 12
 
 178 THE LAW MERCHANT 
 
 other duties, per legem mercatoriaui, which is a part of the 
 Common Law." The Court of the Mayor of the Staple, he 
 says\ "is guided by the Law Merchant... merchaut strangers may 
 sue before him according to the law merchant or at the Common 
 law.... This Court is the Court in the Staple Market, and it was 
 oftentimes kept at Calais, and sometimes at Bruges, Antwerp 
 and Middlebro', therefore it was necessary that this Court 
 should be governed by Law Merchant." Fortescue also 
 mentions that in certain Courts, "where matters proceed by 
 Lawe Merchaunt, contracts or bargains among merchants in 
 another realm are proved by witnesses^" (because 12 men of a 
 neighbouring county cannot be obtained). 
 
 Zouch goes into the matter more at length I Sir John 
 Davies, he says, owns the Law Merchant as a law distinct from 
 the Common law of England in a MS. Tract, where he affirms 
 "that both the Common Law and Statute Laws of England take 
 notice of the Law Merchant, and do leave the Causes of 
 Merchants to be decided by the rules of that law,... which is part 
 of the Law of Nature and Nations," " whereby it is manifest," 
 continues Zouch, "that the cases concerning merchants are not 
 now to be decided by the peculiar and ordinary laws of every 
 country, but by the general Laws of Nature and nations. Sir 
 J. Davies saith further, 'That until he understood the difference 
 between the Law Merchant, and the Common law of England, 
 he did not a little marvel what should be the cause that in the 
 Books of the Common law of England there are to be found so 
 few cases concerning merchants and ships, but now the reason 
 was apparent, for that the Common law did leave those cases to 
 be ruled by another law, the Law Merchant, which is a branch 
 of the Law of Nations.' " 
 
 Again Zouch says^: "For the advantage of those who use 
 navigation and trade by the sea, the Law Merchant and laws 
 of the Sea^ admit of divers things not agreeable to the Common 
 law of the realm," and he cites instances and continues : " It is 
 
 1 Coke, IV. 237, 238. 128. 
 
 2 X»e Laudihus, p. 7i, ed. 161C: * p. 128. 
 
 Selden on Fortescue, ibid. ^ i.e. the written laws of Oleron, 
 
 •' Zouch, p. 89. See Godolphin, p. etc.
 
 AND THE CIVIL LAW. 170 
 
 not hereby intended that the Courts of Common law cannot or 
 do not take notice of the Law Merchant in merchants' cases, but 
 that other things likewise considered, it might be thought 
 reasonable to allow them the choice of that Court Avhere the 
 Law Merchant is more respected, than to confine them to other 
 Courts, where another law is more predominant. Besides there 
 may be danger of doubt thereof, because those things arc not 
 approved of for proofs at the Common law, which are held 
 sufficient in the Admiralty among the merchants." 
 
 Blackstone defines very clearly the position of the Law 
 Merchant in his time'; "for as the tran.sactions of foreiofn trade 
 are carried on between subjects of independent states, the 
 municipal laws of one will not be regarded by the other. For 
 which reason the affairs of commerce are regulated by a law of 
 their own, called the Law Merchant or Lex Mercatoria, which 
 all nations agree in and take notice of; and in particular it is 
 held to be part of the law of England, which decides the causes 
 of merchants by the general rules which obtain in all com- 
 mercial countries, and that often even in matters relating to 
 domestic trade, as for instance in the drawing, acceptance and 
 transfer of inland bills of Exchange." And again : " thus in 
 mercantile questions, such as bills of exchange and the like ; in 
 all marine causes relating to freight,average,demurrage, bottomry, 
 insurances, and others of a similar nature, the law merchant, 
 which is a branch of the law of nations, is regularly adhered 
 toV 
 
 Now this Law Merchant, thus recognized by the laws of 
 England, drew part of its matter from the Civil law. Eeino- 
 " part of the law of nations," in that it was composed of the 
 customs of merchants of all nations, it included a number of 
 usages which were relics of the Civil law, continuing the 
 practice of the coasts of the Mediterranean. Again, the Written 
 laws of the sea, the Consolato and the laws of Oleron, which 
 formed part of the Law Merchant, and the latter of which was 
 expressly embodied in the laws of England, were based on the 
 Civil law, with such additions as were necessary to meet the 
 
 ' BL I. 273. - BL iv. 07. 
 
 12 2
 
 180 LORD MANSFIELD 
 
 needs of the time. Thus Duck is justified in speaking of the 
 " Curia Mercatorum, in qua lites de contractibus mercatorum ex 
 aequo et bono secundum jus civile Romanorum terminandae 
 suiit^." Indeed even at that time the Civil law was recognized 
 as an authority, where usage was uncertain. Malynes records 
 a case with which he was personally acquainted, where an 
 unfortunate merchant unintentionally guaranteed the solvency 
 of another, and "the opinion of merchants was demanded, 
 whereon there was grand diversity, so that the Civil law was to 
 decide the same," and it was decided by the Digest^. 
 
 This Lex Mercatoria had therefore a Roman foundation ; 
 and the importance of this will be seen when we remember that 
 Lord Mansfield, the father of modern Mercantile law^ during 
 the 32 years in which he was Lord Chief Justice of the King's 
 Bench*, constructed his system of Commercial law by moulding 
 the findings of his special juries as to the usages of merchants 
 (which had often a Roman origin) on principles frequently 
 derived from the Civil law and the law of nations. One among 
 Junius' bitter attacks on him expressly alludes to this feature 
 of his^ " In contempt or ignorance of the Common law of 
 England, you have made it your study to introduce into the 
 Court where you preside, maxims of jurisprudence unknown to 
 Englishmen. The Roman code, the law of nations, and the 
 opinions of foreign civilians, are your perpetual theme"; a 
 charge for which, says Lord Campbell^, "there is not the slightest 
 colour of pretence. He did not consider the Common law of 
 England... a perfect code adapted to the expanded, diversified, 
 and novel requirements of a civilised and commercial nation... 
 but in no instance did he ever attempt to substitute Roman 
 rules and maxims for those of the Common law. He made 
 ample use of the compilations of Justinian, but only for a supply 
 of principles to guide him upon questions unsettled by prior 
 decisions in Encrland ; derivinfj also similar assistance from the 
 
 1 II. 8, 3, 25. Lives, Vol. ii. 
 
 2 p. 69. * 17^6—1788. 
 
 3 Park on Insurance, LoncL 1787, ^ Cited in Campbell, ii. 437. 
 7th edit., Int. pp. 43—48. Lowndes ^ ij,j^ p 43,^, 439, 
 
 on Inxiiranre, Int p. 27 ; Campbell's
 
 AND THE LAW MERCHANT. ISl 
 
 law oi' uations, and the modern Continental codes." Tlie 
 nature of his work was well described by Buller, J. in his 
 celebrated judgment in Lickbarroiu v. Mason^, where he says con- 
 cerning bills of lading: "thus the matter stood till within these 
 30 years ; since that time the Commercial law of this country 
 has taken a very different turn from what it did before.... Before 
 that period we find that in Courts of law all the evidence in 
 mercantile cases was thrown together : they were left generally 
 to a jury, and they produced no established principle. From 
 that time we all know the great study has been to find some 
 certain general principles... not only to rule the particular case 
 then under consideration, but to serve as a guide for the future. 
 Most of us have heard those principles stated, reasoned upon, 
 enlarged and explained till we have been lost in admiration at 
 the strength and .«tretch of the human understanding. And I 
 should be sorry to find myself under a necessity of differing from 
 Lord Mansfield, who may truly be said to be the founder of 
 the Commercial law of this country." An example of Lord 
 Mansfield's use of the Civil law will be seen in his exposition of 
 the nature of the equitable action for money had and received, 
 which can be traced, passage by passage, to the Corpus Juris^ : 
 and many of these usages of the merchants, which he thus 
 harmonized, had their origin in the Roman law though their 
 details were of modern growth. 
 
 Thus the law of General Average, as developed by the 
 Courts, appears to rest upon a Roman foundation. Mr 
 M'^Lachlan even assigns a Roman origin to the name, deriving 
 it from actio ex aversions^, though this origin is challenged by 
 Mr Lowndes and seems rather fanciful. The Rhodian law*: "Si 
 levandae navis gratia, jactus mercium f actus est, oinnium contri- 
 hutione sarciatur quod pro omnibus datum est," really contains 
 the whole principle of general average, though it restricts the 
 
 1 1787, 2 T. R. 63, 73; see also Ob}ipatio?i<:, n. 379, 380. 
 
 Lowndes on General Average, Pref. 3rd * McLachlan's Arnould onlnsuraiice, 
 
 edit., p. 45. 5th ed., pp. 882 — 885. Lowndes, Gene- 
 
 2 Moses V. McFerlane, 2 Burr. 1005. ral Average, 3rd edit., pp. 270—272. 
 
 1 W. Bl. 219; see this set out in *.Dig. 14, 2, 1. See Lowndes, hit. 
 
 Warren's Laio Studies, pp. 1353, 1351 pp. 45, 4(5. Ibid. p. 256. 
 from Evans' translation of Pothier (/(■-■
 
 182 GENERAL AVERAGE. 
 
 example to Jettison. The Corpus Juris expanded it to cover 
 other cases, such as cutting away the mast, " removendi com- 
 munis periculi causa." But these laws fell into desuetude, 
 though the practice of contribution may have survived in the 
 Mediterranean. Some slight reference to it appears in the laws 
 of Oleron, but the old Sea laws only recognize two cases of 
 average, jettison and cutting away a mast. The first express 
 definition of " commune avarie " appears in the Guidon de la 
 Mer, about 1560^: and a fuller one is found in the French 
 Ordonnance of 1681. In 1801 a Court of Common law first 
 recognizes and discusses the right to recover at Common law 
 general average contributions ^ Lawrence, J. defines a general 
 average loss as "all loss which arises in consequence of extraordi- 
 nary sacrifices made, or expenses incurred, for the preservation 
 of the ship and cargo," and this " must be borne proportionably 
 by all who are interested ^" Since then the law on the subject, 
 probably founded on the Ehodian and Roman law, and ex- 
 panded by mercantile usage in all countries, is still under- 
 going development in the Courts* ; though in the last reported 
 case, the Master of the Rolls rejected the idea that the law of 
 Engfland should be brouo-ht into consonance with the laws of 
 all other countries ; " no English Court has any mission to 
 adapt the law of England to the laws of other countries ; it has 
 only authority to declare what the law of England is^" But 
 the law of England on these points was originally the Law 
 Merchant, the same in all commercial countries; and the agree- 
 ment of all foreiofn countries in a rule of the Law Merchant 
 would then have been evidence of its being part of the law of 
 England, or rather of a Code which the English Courts would 
 recognize and enforce. 
 
 Lord Mansfield's greatest work was done in the development 
 of the law of Insurance ; and here, though he gave form and 
 
 1 Lowndes, 275. vaisseau sont avaries grosses et com- 
 - Birkley v. Presgrave, 1 East, 228. mimes. 
 
 Lowndes, pp. 1, 276 ; lut. p. 48. 4 cf. Atioood v. Sellar, 5 Q. B. D. 286, 
 
 2 cf. the Ordonnance ; les des- Wright v. Manoood, 7 Q. B. D. 62, 
 penses extraordinaircs faites, et le Svendsen v. Wallace, 11 Q. B. D. 616, 
 dommage soujfert, pour le hlen et le 13 Q. B. D. 69. 10 App. C. 404. 
 salut commun dcs marchandiscs ct du ^ 13 Q. B. D. 73.
 
 INSURANCE. 1 83 
 
 coherence to tlic Law Merchant, it docs not seem that that law 
 can be traced to Roman sources. Its Roman origin has indeed 
 been suggested ; Zouch, for example, says^ : "Policies of Insur- 
 ance are grounded upon the Civil law... which as Malynes affirms 
 were taken up in this kingdom from the laws of Oleron": but 
 the most recent "authorities hold that, though there is almost 
 an entire lack of evidence concerning it till the publication of 
 the Guidon (circa 1500), it probably originated about 1200 A.D. 
 with the Italians, and was introduced into England by Lombard 
 merchants^ Under Queen Elizabeth a special Court was consti- 
 tuted to try London Policies of Insurance, and it is noteworthy 
 that it was to consist of the Judge of the Admiralty, the 
 Recorder of London, two Doctors of tJte Civil, Law, two common 
 lawyers, and eight merchants'. The Court fell into disuse, but 
 its composition shows the view that Insurance was part of the 
 subject-matter of the Law Merchant, which in its turn was con- 
 nected with the Civil law. Apart from this, there is no trace of 
 Roman influence in the English law of Insurance. 
 
 The Roman pecunia trajectitia* was a loan of money with 
 which merchandise was bought and shipped, being at the risk of 
 the lender till the goods reached their destination. The interest 
 on the loan was originally unlimited but was restricted by 
 Justinian to 12 per cent.^ And though the Roman law fell 
 into oblivion, the institution appears to have survived in the 
 Bottomry and Respondentia of the Law Merchant. By a 
 Bottomry Bond**, the master under stress of necessity borrows 
 money for the prosecution of his voyage on the security of the 
 ship, to be repaid with maritime interest if the ship arrives in 
 safety ; Respondentia is a similar loan on the security of the 
 cargo, its repayment being also dependent on safe arrival. 
 Neither of these is quite the same as Fecunia Trajectitia, which 
 was rather an original venture by a merchant, dependent on the 
 safe arrival of the ship, than a loan to the master, made under 
 
 1 p. 102. ■• Dig. 22, 2, 1—5. 
 
 - Parkon J«SHra/ic<', Int. pp. 10—19. •'' Cod. 4, 32, 26. 
 
 Lowndes on Insurance, Loud. 1881, •* McLachlan, Mcirhiitt Shippinii. 
 
 Int. pp. 19—21. ."^id ed. i^p. 51— ( 
 
 •^ Park, Int. p. 40. -13 Eliz. c. 12. 
 
 )■>.
 
 184 BOTTOMRY AND CHARTERPAllTIES. 
 
 necessity, to enable a voyage already begun to be prosecuted. 
 But Malynes expressly calls Bottomry, pecunia trajectitia, 
 while he also alludes to a transaction precisely similar to the 
 Roman one, as " a deliverance of money of the nature of Usura 
 Maritinia^.'' The "darkness of an earlier age^" prevents us from 
 tracing what connexion the later institution has with the 
 Roman one, but it seems probable that the latter survived, and 
 was modified and adapted into the Bottomry of to-day. 
 
 The Admiralty Court endeavoured to introduce the Civilian 
 doctrine of a tacit hypothec of, or maritime lien upon, the ship 
 herself for repairs or the supply of necessaries without any 
 express Bottomry bond. Lord Stowell said^: " In most of those 
 countries governed by the Civil law, repairs and necessaries 
 form a lien upon the ship herself. In our country the same 
 doctrine had for a long time been held by the Maritime Courts, 
 but after a long contest, it was finally overthrown by the Courts 
 of Common law, and by the House of Lords in the reign of 
 Charles II.": and Lord Holt also, no opponent of the Civil law, 
 held that*: "By the Maritime law every contract of the master 
 implies a hypothecation, but by the Common law it is not so, 
 unless it be so expressly agreed." 
 
 Zouch suggests that Charterparties are derived, through 
 the Roman, from the Rhodian law^; "Si quis navem conduxerit, 
 instrumenta consignata svnto," and Malynes, who cites other 
 Rhodian rules as in force in the Law Merchant, also says that 
 charterparties of his time (1622) commonly declared that they 
 were in all things made according to the laws of Oleron'^; the 
 provision as to the forfeiture of double earnest by the Master, 
 "if he repent," is clearly Roman', But in this, as in most other 
 heads of the Law Merchant, we can only speculate whether 
 Roman customs, developed by Mediterranean nations, have 
 furnished the groundwork on which the Courts and the 
 merchants of England have built their Mercantile law. The 
 law of Bills of Exchange, which owes most of its material to the 
 
 1 p. 122. 3i. 2 Lord Eaymoucl, 80o. 
 
 ■ McLachlan, p. 65. » p. 102. 
 
 » Zodiac (1825). 1 Haggard, Adm. « pp. 98, 99. 
 
 325. 7 Y_ supra, pp. 76, 93. 
 ^ Justin V. Bullam (1702). 1 Salk.
 
 LAW MERCHANT IN ENGLAND. ISo 
 
 Law Merchant, appears entirely free from Roman influence, the 
 usages of merchants which it embodies being of much later 
 origin. We must therefore rest content with pointing to the 
 Law Merchant, as a probable source of Roman influence on the 
 English law, while the lack of evidence does not allow us to 
 estimate the amount of that influence. 
 
 The position of the Law Merchant, or of "the' general 
 maritime law," in this country has been under discussion in 
 a series of cases, other than Svendsen v. WaUace\ down to 
 1882. In 1801 Lord Stowell, discussing the powers of the 
 master to give Bottomry Bonds, referred repeatedly to "the 
 general maritime law," saying in one place ^; "a very modern 
 regulation of our own private law... has put an end to our 
 practice of ransoming. ..but I am speaking of the general 
 maritime law and practice, not superseded by private and 
 positive regulation"; and again; "Adverting to the authority 
 of the maritime law, as it has been for some years practised in 
 this Court... adverting also to the position of what I may call 
 the Lex Mercatoria^." In the Hamburg* (1864), also on the 
 conflict of laws as to bottomry, Dr Lushington announced his 
 intention of "governing his judgment by reference to the 
 ordinary maritime law... no specific law being alleged as the 
 governing law"... "I must take the law which ought to apply to 
 this case to be the maritime law as administered in England," 
 while the Privy Council on appeal^ "entirely agree with the 
 learned Judge that the case is to be decided by the general 
 maritime Law as administered in England." This expression 
 was criticized by Willes, J., in a case in 1805®, where the 
 "general maritime law, as regulating all maritime transactions 
 between persons of different nationalities at sea," was suggested 
 as one of the laws by which the decision should be governed ; 
 he said': "We can understand this term in the sense of the 
 general maritime law as administered in English Courts, that 
 
 1 13 Q. B. D. 69. V. mpra, p. 182 ■* Br. and Lush, 2,39. 
 
 note. '^ l^ifl- 272. 
 
 - The (iratittuUiu: 3 W. Rob. 210. « Lloyd v. Gitibert, T.. JLlQ.B.llo, 
 
 2.59. 119. 
 
 ■^ Ibid. p. 271. ' L. n. 1 (.1 B. p 12:}.
 
 186 LAW MERCHANT IN ENGLAND. 
 
 being in truth nothing more than English km, though dealt out 
 in somewhat different measures in the Common law and Chancery 
 Courts and in the peculiar jurisdiction of the Admiralty; but 
 as to any other general maritime law by which we ought to 
 adjudicate upon the rights of a subject of a country, which by 
 the hypothesis, does not recognize its alleged rule, we were not 
 informed what may be its authority, its limits, or its sanction" 
 ..."It would be difficult to maintain that there is any general 
 in the sense of universal law, binding at sea, any more than 
 upon land, nations which either have not assented or have 
 withdrawn their assent thereto "...and further on he speaks of 
 "the general maritime law as administered in England, or (to 
 avoid periphrasis) the law of England'." This series of cases 
 came before the Court of Appeal in 1882, in a case*^ which Sir 
 R. Phillimore had decided by "the general maritime law as 
 administered in England^"; and in reversing his decision Brett, 
 L. J. said*: "what is the law which is administered in an English 
 Court of Admiralty, whether English law, or that which is 
 called the Common maritime law, which is not the law of 
 Eno-land alone, but the law of all maritime countries... The law 
 which is administered in the English Court of Admiralty is the 
 English maritime law. It is not the ordinary municipal law of 
 the country, but it is the law which the English Court of 
 Admiralty, either by Act of Parliament, or by reiterated 
 decisions and traditions and principles, has adopted as the 
 English maritime law." 
 
 It is not inconsistent with these decisions that the Law 
 Merchant is recognized w^henever a special jury "finds" a custom 
 of merchants, which is acted on by the Courts ; for the law of 
 England recognizes such customs because they comply with 
 rules it has previously laid down, and decides that they were 
 law as complying with its rules, and not from any merit of the 
 Law Merchant. But in this way the usages of merchants still 
 influence the law of England. 
 
 ^ L. E.l Q. B. p. 125. 3 I(,l^l p_ 4. 
 
 2 Gaetano e. Maria, L. R. 7 P. D. 1, •» Ibid. p. 143. 
 
 137.
 
 CHAPTER XV. 
 
 ROMAN LAW IN THE COMMON LAW. 
 
 The range of the English Common law is so vast, and its 
 sources so voluminous, that we can only refer to one or two 
 points on which Roman influences have affected it. 
 
 The English law of Bailments, and especially that part of it 
 which treats of the liability of a common carrier, have been 
 much discussed in relation to the Roman law. The present 
 Master of the Rolls has said^: "No one who has read Story and 
 Sir W. Jones on Bailments, and the judgment of Lord Holt in 
 Coggs V. Bernard'', can doubt that the Common law of England 
 as to bailments is founded upon, though it has not exactly 
 adopted, the Roman law. It is true that Lord Holt rests as for 
 authority solely on Bracton ; but the treatise of Bracton adopts 
 all the divisions of the Roman law in the very words of the 
 Roman text, and further adopts the exception of the Roman 
 law, and the Roman reason for it... It is obvious that Bracton 
 or English judges before him adopted into the English, the 
 Roman law." 
 
 But this, the Roman theory of its origin, was expressly 
 repudiated by Lord Chief Justice Cockburn, on appeal: he 
 said^: — "it is a misapprehension to suppose that the law of 
 England relating to the liability of common carriers was derived 
 from the Roman law; for the law relating to it was first established 
 by our Courts, with reference to carriers by land, on whom the 
 Roman law imposed no liability in respect of loss, beyond that 
 
 1 Nugent v. Smith, L. B. 1 C. V. D. •' Nuneut v. Smilli, L. R. 1 C. P. D. : 
 at p. 28. pp. 428, 4H0. 
 
 2 2 Ld. Raymond, 900.
 
 188 BAILMENTS. 
 
 of other bailees for reward"; and in his view it was introduced 
 as an exception to the more lenient English law, in the times of 
 Elizabeth and Charles I. 
 
 With both these views Mr Holmes disagrees ; he considers 
 that the law of bailments is Teutonic, not Roman, in origin ; 
 and that the liability of carriers is not a stricter exception to 
 the old rule, but a fragmentary survival of that rule, which has, 
 in other parts, been mollified by time : while the changes in the 
 old law were due partly to the introduction of the action on the 
 case, and the assumpsit, partly to notions of public policy. All 
 parties are agreed that Lord Holt in Coggs v. Bermard system- 
 atized and amplified Bracton, who in turn had copied the 
 Institutes almost word for word. But it is not so clear how far 
 Bracton or Lord Holt accurately represented the Law as it 
 existed in their time. 
 
 The Anglo-Saxon procedure was based on the loss of 
 possession against one's will, and was not open to the owner 
 who had willingly parted with possession. Thus the bailee and 
 not the bailor was the right person to sue for any wrongful 
 dealing with a bailment; the bailee had the possessory remedies, 
 and because he had the remedies, he was bound to sue the thief, 
 and to hold the bailor harmless, even though, as bailee, he had 
 committed no fault. These possessory remedies of the bailee 
 were opposed to the Roman law \ which held the agent, borrower, 
 ordinary bailee, hirer and usufructuary, to have only Detention 
 and not Possession, and therefore refused them the Possessory 
 remedies though some of them had actio furti^. 
 
 In process of time, the owner out of possession was allowed 
 to sue the wrongdoer; but his suit against the bailee remained. 
 The bailee had been liable because he only could sue: this reason 
 was inverted to meet the new state of things, and it was held 
 that the bailee could sue, because he was liable to his bailor. 
 In Anglo-Norman law also the action to recover stolen property 
 was based on possession^, and cases in the Yearbooks show that 
 the bailor had originally no remedy against third persons, but only 
 against the bailee. The inverted explanation of the bailee's strict 
 
 1 Moyle, on Institute.'!, i. 323. "' Biacton, f. loO, b. Holmes, p. 168. 
 
 - Iimt. IV. 1, 13—17.
 
 BT? ACTON ON BAILMENTS. 1 N!> 
 
 liability was repeated, as thus': "If a stranger takes beasts in 
 my custody, I shall have a writ of trespass against him., because 
 I am chargeable for the beasts to my bailor, who has the 
 property"; which is analogous to the Roman reason for allowing 
 the actio furti, to the man cujus interest rem salvam fore, 
 because he was liable over to the owner. The bailor acquired 
 his action against third parties, though the possessory remedies 
 of the bailee remained, and also his absolute responsibility to 
 the bailor, if the goods were wrongfully taken from him. Thus 
 Glanvil says: "Sin autem res ipsa interierit vel perdita faerit, 
 quocunque modo in custodia tua, omnino teneris ad rationabile 
 pretium mihi restitaendum^y Bracton has copied the Institutes, 
 but owing either to imperfect absorption of his Roman materials 
 or corruptness of the text, he has left the matter in doubt. The 
 passage in Bracton, side by side with the corresponding passage 
 in Justinian, is as follows : 
 
 Bracton, f. 99, a. b. Institutes, hi. 14, 2. 
 
 Is autem, cui res aliqiia utenda Is, ciii res aliqiia utenda datiir, 
 
 datur, re obligatur, quae comniodata id est commodatur, re obligatur. . . . 
 est ; sed magna ditiereutia est inter Sed is ab eo qui mutuum accepit 
 mutuum et conimodatum, quia is longe distat ; namque non ita res 
 qui rem commodatam accepit, ad datur, ut eius fiat ; et ob id de ea 
 ipsam restituendam tenetur, vel re ipsa restituenda tenetur. Et is 
 ejus precium, si forte incendio, quidem qui mutuum accepit, si 
 ruina, naufragio aut latronum vel quolibet fortuito casu quod accejiit 
 hostium incursu consumpta fuerit. amiserit, veluti incendio ruina nau- 
 ***** fragio aut latronum hostium ve iii- 
 
 Ad vim autem majorem vel cursu, nihilominus obligatus pernia- 
 casos fortuitos non tenetur qui;:;, net.... 
 nisi culpa sua intervenerit. 
 
 Sed propter maiorem vim maior- 
 esve casus non tenetur, si modo non 
 huius culpa is casus intervenerit. 
 
 The first sentence in Bracton, as it stands, is consistent with 
 Glanvil and with the old law ; but it is contrary to the Insti- 
 tutes, and to the second quotation from Bracton, which follows 
 the Institutes. This discrepancy has of course been noted 
 
 1 Per Hankford, J., Y.B. 11 H. IV. 23, - Gl. x. U : see also ,x. 8. Holmes, 
 
 24. Holmes, 170. Blackstone, Com. p. 17.k 
 II. 4.-5B.
 
 190 BRACTON AND LORD HOLT. 
 
 by subseqvieut writers. Lord Holt in Cuggs v. Bernard read 
 " mutuam" for " commodatam," a reading which follows the 
 Institutes, but makes nonsense of the words " ad ipsam restitu- 
 endam" and is not supported by the MSS. Prof. Giiterbock 
 suggests^: "we must either understand ' nisi culpa intervenerit' or 
 hold it to be an echo of the older English law." Sir W. Jones 
 says^ some MSS. of Bracton have a full stop at "preciuni'; and 
 he suggests that at the completion of that sentence, a line has 
 dropped out, viz.; "at is qui mutuum accepit ohligatus perwanet'' 
 (words in the passage from Justinian, though not consecutively)^. 
 My own view, based mainly on the curious mistakes Bracton 
 has made in copying Azo, through running two sentences into 
 one*, is this : Bracton's one sentence contains parts of three 
 consecutive sentences in Justinian ; in compressing them, and 
 probably not quite understanding them, he has stated first the 
 old law as found in Glanvil, and a little later has correctly 
 reproduced in one sentence, the sentence as to vis major in the 
 Institutes. I think his first sentence as it stands represents the 
 true state of the law at the time, and the second is, like his 
 passage on walls, and other Roman incorporations, inaccurate as 
 a representation of English Law, and inconsistent with himself 
 For subsequent decisions of the Courts^, though Lord Holt 
 treats them very lightly, thoroughly support the old law. For 
 instance in the case of the Marshal of the Marslialsea^, who 
 was sued for the escape of a prisoner (being in the same 
 position as a bailee of cattle), his defence was that enemies of 
 the king by force carried off the prisoner : the Court held that, 
 if these were alien enemies, the defence was good, for then the 
 defendant " had a remedy against no one," but if they were 
 subjects of the king he would be liable, for he had a remedy 
 against them. And the law was stated similarly by Littleton'. 
 In 1601 it was decided in Southcote v. Bennett^ that a plea 
 
 1 Gut. Coxe, notes, pp. 141, 175. ^ Holmes, pp. 176—180. 
 
 - Bailments, p. 64, note. s Y. B. 33 Henry \I. 1, pL 3 (1455). 
 
 3 I do not understand the first ^ T. B. 9 Edw. lY. 84, pL 9. Holmes, 
 
 alternative suggested by Giiterbock, p. 178. 
 
 while Sir W. Jones' suggestion seems ® 4 Co. Eep. 83, b. Cro. Eliz. 815. 
 
 to make the passage as to rem com- Both reports agree that the obligation 
 modntam unmeaning. wasfounded on delivery alone. Holmes, 
 
 ■» V. supra, p. 87. 179.
 
 CARRIERS. 191 
 
 of robbery was no defence to an action for a thing bailed Ijy 
 delivery, "for the bailee hath his remedy over by trespass or 
 appeal, to have them again." Lord Holt^ and, to some extent, 
 Sir W. Jones^ endeavour to show that this case is without 
 authority, but it seems to be in accordance with the old law as 
 stated by Glanvil, and found in the Teutonic sources. And if 
 this is so it is unnecessary to consider, as Cockburn, C. J. does, 
 its application to carriers as an exception to an early and more 
 lenient rule, made from motives of public policy; while its 
 agreement with Teutonic law frees it from the Roman origin 
 suggested by Lord Esher. 
 
 Woodliffes case^, in 1596, is the first case of note, as to 
 carriers. In that case Popham, C. J. and Gawdy, J. held a plea 
 of robbery at sea, a bad defence as to goods entrusted to 
 defendant "j^j^fr merchandiser" and Popham made the further 
 distinction that the plea was bad for a carrier, because he is 
 paid for his carriage, but that there was a difference between 
 carriers, and other servants and factors. For servants had not 
 control over the goods, and so were not bailees, while the 
 distinction of paid and unpaid service shows the early stages 
 of the doctrine of Consideration, which was referred to in 
 Southcote's Case, five years later. The difficulty of a case of 
 damage through omission to act was met both by the device of 
 an assumpsit ; i.e. that the defendant took upon himself a duty, 
 for the breach of which he was liable in tort ; and, if the 
 defendant had a public calling, by the allegation that he was "a 
 common carrier" etc., and therefore under a general obligation 
 to carry on his public trade with skill. The carrier's liability 
 might thus be rested either on the simple delivery of the goods, 
 or on his assumpsit, or on his common or public calling, while 
 Popham, C. J.'s distinction suggested that payment was mate- 
 rial, and in this multitude of grounds of liability, the old law 
 was lost sight of. 
 
 Rich V. KneeJand (1613)* was an action in the case against 
 
 1 Cog(js V. Bernard. 1 Smith, 7^. C ^ Moore, iJ^iJ. p.462. Holmes, p. 181. 
 
 8th edit. pp. 199, 208. •» Cro. Jac. 330. Cockburn, C.J. iu 
 
 " Jones on Bailments, London, 1823, L. R. 1 C. P. D. p. 4.30. 431. Holmes, 
 
 pp. 41—44. p. 181).
 
 192 COGGS V. BERNARD. 
 
 a common hoymau ; the writ of error assigned that "this action 
 lies not against a common hoyman without special promise"... 
 " But all the Justices and Barons held that it well lies as 
 against a common carrier on the land." And for nearly a 
 century after WoocUiffes case^ the liability of common carriers 
 was rested on Southcotes case, which as we have seen, stated the 
 old law. In Morse v. Slue^ (1671), the master of a ship from 
 which a robbery of goods had occurred was held by Lord Halo 
 not to be protected "by the rules of the civil law, by which 
 masters are not chargeable p7'o damno fatali," but to be liable 
 because he took a reward, and because he took the goods 
 generally without any special agreement; and this last position 
 is that of Southcotes case. 
 
 The development of the doctrines of assumpsit, Common 
 Calling, and Consideration led to the view that the strict 
 liability of common carriers was something peculiar to them- 
 selves, and not applicable to bailees in general ; and the judg- 
 ments of Lord Holt during his tenure of office confirmed this 
 opinion. In 1701 ^ while suggesting that the liability of carriers 
 and innkeepers was grounded on public policy, he had expressed 
 his belief that " the principles of our law are based on the civil 
 law" : and this view was confirmed by his celebrated judgment 
 in Cor/gs v. Bernard (1703)*, which overthrew Southcotes case 
 and the old Common law. In that case it was moved in arrest 
 of judgment that the declaration did not allege a common 
 calling or any consideration ; it had alleged an assumpsit, and 
 Lord Holt held this was sufficient, distinguishing bailees for 
 reward exercising a public calling, who were within the rule of 
 strict responsibility of Southcotes case on grounds of public 
 policy, from other bailees who were not so strictly liable. But 
 though he cited Roman passages from Bracton in support of his 
 
 » See Sijmons v. Darknoll (1628). Lev. 69. 1 Vent. 190, 238. 1 Mod. 85. 
 
 1 Palmer, 523 : Holmes, 191, where Sir T. Eaym. 220. Holmes, pp. 192— 
 
 "although no promise laid, the plaintiff 194. Cockbarn, C. J. at 1 C. P. D. 
 
 should recover, and not alleging the 430. Brett, J. ibid. p. 31. 
 
 defendant was common lighterman did ^ Lane v. Sir R. Cotton, 12 Mod. 472, 
 
 no harm." Per Hyde, C..J., "delivery 482. 
 
 makes the contract" "ef in ccst cai<e ^ 2 Lord Raymond, 900. 1 Sni. 
 
 Sniithcote's case fuit cite." L. C. 8th edit. 199. 
 
 - 2 Keb. 866, 3 Keb. 72. 112, 135. 2
 
 CARRIERS AND HAILMENTS. 193 
 
 classification of bailments, the above position is far from being 
 the adoption of the Praetor's Edict': "Ait Praetor: iiautae, 
 caupones, stahularii, qiiod cujusque salvum fore recejjerint, nisi 
 restituunt, in eos judicium dabo...nisi si quid damno fatali 
 contingit." For the Roman class were excused by casus fortui- 
 tus or vis major: the English had a stricter liability. The 
 English rule extends to all bailees for reward exercisincr a 
 public calling ; and of these two points the distinction as to 
 bailees for reward is that of Popham, C. J. in 1596, and the 
 conception of a "common calling" had also been in existence for 
 the century before Coggs v. Bernard. The responsibility of 
 carriers is precisely the same as that of all bailees under the old 
 English rule, their exemption from liability for acts of God and 
 the king's enemies being explained, as to the king's enemies by 
 the Case of the Marshal ^ because there was no "remedy over" 
 against alien enemies, as to the "Act of God," by the applica- 
 tion of the general doctrine that all obligations were discharged 
 if acts of God made them impossible of performance^. 
 
 The general law of bailments up to Coggs v. Bernard was 
 therefore Teutonic not Roman, all bailees being as strictly liable 
 as carriers are now, and the alleviation of the liability of bailees 
 other than carriers, though assisted by the Roman leanings of 
 Lord Holt, was the result of the development of the doctrines of 
 assumpsit, consideration, and public calling, of which two are 
 distinctly English, and tlie third part'y so. The present liability 
 of carriers is not therefore an application of the Praetor's 
 Edict, a more rigid exception to the lenient rule applied to 
 other bailees, on grounds of public policy, but a survival of the 
 older rule as to bailments which applied to all bailees universally. 
 
 A part of English law which can in all probability be traced 
 back in a joint growth from Roman and German originals is 
 the gradual development of the liability of a man for the acts of 
 his children, servants, or agents, as to which I can only refer to 
 Mr. Holmes' interesting work. The origin of the doctrine of 
 consideration, and of much of the law as to acquisition of 
 personal property has already been touched upon. 
 
 1 Did. IV. 9. 1, pr. 3 Holmes, 202. 
 
 - V. supra, p. lyO. 
 
 s. l.S
 
 194 SUMMARY. 
 
 CONCLUSION. 
 
 This inadequate sketch of the infiuence of the Roman Law 
 on the Law of England has now reached its close. AW^ have 
 seen that English law in its earliest stages is almost entirely 
 Teutonic, and that those who claim for it descent from the 
 laws and customs of the Roman occupation arc unable to 
 support their case by any satisfactory evidence. The most 
 plausible of these theories is that which refers manorial insti- 
 tutions to a mingled Roman and South German origin, and 
 even this at present lacks any certain foundation. The intro- 
 duction of wills and charters comes from clerical and Roman 
 sources, but except in this respect we cannot say that the 
 influence of the Civil Law has in any way affected the Law of 
 England until the coming of Vacarius. 
 
 The latter half of the twelfth century revives the study of 
 Justinianean law throughout Europe, and England also shares 
 in the revival. The Ecclesiastical Courts rule themselves by 
 the Roman Law, and from their proceedings Roman influences 
 affect the work of Glanvil. Bracton's great treatise contains 
 much Roman matter and terminology, but his knowledge of the 
 civil law was only that of every clerical judge, (and they were 
 many), of his century. The full extent of their infiuence can 
 only, even imperfectly, be traced by a detailed study of the 
 Year-Books, a task far beyond our present powers; but it is 
 clear that the revival was followed by a reaction. The Roman 
 Law became not only a subject of distrust, owing to the conflicts 
 between King and Pope ; it even dropped into oblivion. With 
 Coke, Hale, and Blackstone, while there is knowledge of the 
 Law of Rome, there is also a clear definition of its position, as of 
 no force in England, unless as adopted by the English law, or in 
 particular courts where its authority was recognized by English 
 jurisprudence. In those courts we have traced its history ; in 
 the Ecclesiastical Courts in their jurisdiction over marriages 
 and succession at death, in the Admiralty Courts, proceeding 
 according to the Civil Law and the Law of the Sea, and in the 
 influence of the Law Merchant on both the Admiralty and the
 
 COXCLUSION. 195 
 
 Common Law ; and wc have referred though briefly to some of 
 the points in which the Common Law itself has been affected 
 by the Law of Rome. 
 
 That the history of Roman Law in England has yet to be 
 written, no one is more conscious than the author of this Essay ; 
 he can only hope for an indulgence, proportioned to the 
 difficulties of the task, in the attempt to gather together some 
 of the materials for such a history.
 
 INDEX. 
 
 Abortion, 108, 126. 
 
 Accession, 87, li6. 
 
 Accident in Chancery, 161. 
 
 Actions and procedure in Bracton, 
 
 104-106. 
 Actions and procedure in Blackstone, 
 
 U7. 
 Accursius, F., invited to England by 
 
 Edward I., 71. 
 Administration in intestacy, 167. 
 Admiralty, Court of, 131, 170—176. 
 Black Book of, 171—173. 
 ,, clerical judges in, 172. 
 
 „ prohibited by Common 
 
 Law, 174. 
 „ criminal jurisdiction of, 
 
 175. 
 Adscriptitius glebae, 84. 
 Alamannic Colonies, origin of manors, 
 
 37, 38. 
 Alaricianuni Breviarium, 10. 
 Alfred, Duke, will of, 24. 
 „ King, Laws of, 5. 
 Amalfi, finding of Pandects at siege of, 
 
 67. 
 Aquiliae, actio letjls, in Bracton, 105. 
 Arrha, Glanvil on, 76. 
 ,, Bracton on, 93. 
 Arson, Bracton on, 109. 
 Assizes, in Bracton, 104, 112. 
 Assumjjsit, doctrine of, 191, 102. 
 Average and Contrihutio, 176, 181 — 
 
 182. 
 Azo, his work and its influence on 
 Bracton, 80, 82. 
 
 Bail and Satisdatlo, 147. 
 
 Bailments, Eoman Law and, 187 — 190, 
 
 193. 
 Becket and Roman Law, 70. 
 Blackstone, Koman Law in, 143 — 149. 
 ,, on authority of Eoman 
 
 Law, 142. 
 ,, influenced byDutch writers, 
 
 143. 
 
 Bologna, Law School at, 67. 
 Bookland, in Early Law, 23. 
 Borough English, 24, 29. 
 Bottomry and pecunia trajectitia, 176, 
 
 183, 184. 
 Bracton, Eoman law in, 78 — 121. 
 
 ,, Eoman character of, 78, 79, 
 
 llil— 121. 
 ,, personal history of, 79. 
 ,, arrangement and method of, 
 
 80, 82. 
 „ Canon law in, 80, 81. 
 ,, on Contracts, 99 — 103. 
 ,, on Actions and Procedure, 
 
 104—106. 
 ,, on Criminal Law, 106 — 112. 
 ,, abstracts of, 122 — 124. 
 cited by Coke, 130, 135. 
 authority of, 134—139. 
 ,, Hale and Holt on, 135. 
 ,, Staunford on, 125. 
 ,, Spelman, Sir H. on, 128. 
 ,, Blackstone on, 137. 
 Britain, occujied and left by Romans, 3. 
 ,, colonies of Gairls in, 4, 36. 
 ,, Saxon invasions of, 4. 
 Britton, history and contents of, 123, 
 
 124. 
 Burgundioriim, Lex Bomana, 10, 
 Burh, organization of, 54. 
 
 Calling, Common, doctrine of, 190, 192. 
 Cambrensis, Giraldus, on Eoman Law, 
 
 70. 
 Canon Law, 69, 81, 126, 163, 164, 169. 
 
 „ ,, in Bracton, 80, 81. 
 Canute, Laws of, 7. 
 Carriers, Common, and Eoman Law, 
 
 190—193, 
 Chancellors, Lay and Clerical, 153. 
 Chancery, Eoman Law in, 152 — 162. 
 ,, Masters and Clerks in, 153. 
 ,, .Jurisdiction of, 155. 
 ,, and the Praetor, 155. 
 Charitable trusts and legacies, 158.
 
 INDKX. 
 
 19: 
 
 Chartcrparties, 170, 184. 
 Cbuich iulluence introduces Bookland, 
 23. 
 „ ,, origin of Wills, 24, 
 
 165—109. 
 ,, ,, nature of, 2.5. 
 
 ,, ,, on early procedure, 
 
 46, 49. 
 ,, ,, after the Conquest, 
 
 61. 
 Clergy in Chancery, 153. 
 
 ,, in Admiralty Court, 172. 
 Codicfin, Grecjorianus, Hennogenianug, 
 
 TlieodosUitiiii;, 10. 
 Coke, Roman Law in, 129—133. 
 Colk(jia Opijiciim, alleged origin of 
 
 guilds, 55. 
 Commodntum, Glanvil on, 76. 
 Common land, in Early Law, 22. 
 Common Law and Eoman Law, 187 — 
 
 193. 
 Compurgators, 47. 
 Conscience, in Chancery, ICl. 
 Consideration, in English Law, 100, 
 
 101, 146, 192. 
 Comolato del Mare, 171, 179. 
 Constable, Court of the, 132, 141, 152. 
 Contracts, Glanvil on, 75, 76. 
 
 , y sued in Ecclesiastical Courts, 
 76, 77, 100, 103. 
 Bracton on, 99—103. 
 Coote, Mr, on influence of Roman Law, 
 
 13, 18, note. 
 Corporations, 144, 145. 
 Cowell, on Civil and Common Law, 
 
 127, 128. 
 Criminal Law in Bracton, 106 — 112. 
 ,, ,, in Blackstone, 148. 
 
 „ Procedure, early, 48. 
 Curtesy, tenure by the, 98, 99. 
 Customary Estates of Land, 21 — 23. 
 
 Danish element in English Law, 6, 60. 
 Defdltis, Bracton's Treatise de, 116. 
 Delicts, Bracton on, 103. 
 Deodands and noxae deditio, 109. 
 Distributions, Statute of, 147, 168. 
 Divorce, 165, 166. 
 Domesday Book in Manors, 32, 33. 
 Donations, Bracton on, 88. 
 
 ,, mortis causa, 92, 146. 
 
 Dos ad ostium ecclesiae, 42. 
 Dowry, 42, 64, 97, 145. 
 Dunstan and Roman Law, 70. 
 
 Earnest in sale, 76, 93. 
 
 Ecclesiastical Courts and Contracts, 
 
 76, 77. 
 ,, ,, and Roman Law, 
 
 132, 163—169. 
 Edric and Hlotbaere, Laws of, 5. 
 
 Edward I., invites Accursius to Eng- 
 land, 71, 73. 
 
 Edward the Confessor, Laws of, 9, 59. 
 
 Englishman's house his castle, 147. 
 
 Equity, see Chancery. 
 
 Essoins, 116. 
 
 Ethel, its nature and incidentB, 21. 
 
 Ethelbert, Laws of, 4. 
 
 Ethelred, Laws of, 6. 
 
 Exceptions, in procedure, 117, 118, 
 131, 147. 
 
 Exchange, Bills of, and Law Merchant, 
 179, 182. 
 
 Executors, 93, 167. 
 
 Family Land in Early Law, 21. 
 Family Law, Roman Law in Early, 
 40. 
 „ Mr Coote on, 43, 44. 
 ,, ,, Teutonic differs from 
 
 Roman, 41. 
 Feudalism and the Roman Law, 61 — 
 
 63. 
 Fideicommissa and Trusts, 156. 
 Finlason, on influence of Roman Law, 
 
 13, 16—18. 
 Flambard developes Feudalism, 63. 
 Fleta, history and contents of, 123. 
 Folcland, nature and incidents of, 22. 
 Forgery, and Crimen falsi, 107, 148. 
 Fortescue on Roman Law, 73, 
 Fraud in Chancery, 161. 
 Fulbeck on Civil, Canon and Common 
 Law, 125, 126, 
 
 Gaulish colonies in Britain, 4, 36. 
 Gavelkind, origin of, 30. 
 Gehur, his jjosition, 33. 
 German land system, 86. 
 Gilds, 54—57. 
 
 Glanvil and Roman Law, 74 — 77. 
 Glossators on Roman Law, 67. 
 Grand ojiinion, 135, 136. 
 Gratian, Decretals of, 80, 81. 
 Grotius and Blackstone, 143. 
 Guardians, 97, 130, 144, 159. 
 Guidon de la Mer, 183. 
 
 Hale, Lord, and Roman Law, 140, 141. 
 Half-blood, succession of, 96, 115, 130, 
 
 145. 
 -Ham, -heim, -hem, as place suffix, 35. 
 Heirs, Bracton on, 95. 
 Henry I., Laws of, 60. 
 Herciscundae, actio familiae, 121, 124, 
 
 130. 
 Hide, origin of, 27, 28. 
 Hiring, Bracton on, 94. 
 Hlotbaere, and Edric, Laws of, 5. 
 Holt. Lord, and Roman Law, 188, 190, 
 
 192.
 
 198 
 
 INDEX. 
 
 Homicide, Bracton on, 108. 
 
 Home, A, author of Mirrour of Justice, 
 
 14. 
 Hotchpot, and Collatio bonorum, 132, 
 
 147. 
 Houard, M. and Bracton, 78, 121. 
 Hundreds, origin of, 52. 
 Husband and wife, 42, 64, 91, 97—99, 
 
 111. 
 
 Idiots, in Chancery, 159. 
 Impeachment of 1368, and Eoman 
 
 Law, 72. 
 Ina, Laws of, 5. 
 Infants, Chancery and, 158. 
 Ing, Ingen, Alamannic suffix, 36. 
 Ingress 11, "Writ de, 116. 
 Inheritance, Laws of, 24, 29, 42, 43, 
 
 94, 145, 147. 
 Injunctions in Chanceiy, 162. 
 J»;'«;-/rt, Bracton on, 111. 
 Insurance, Marine, 183. 
 Ipswich, Domesday of, 170, 177. 
 
 Jilngsten-Becht and Borough English, 
 
 29, 37. 
 Junius and Lord Mansfield, 180. 
 Jury, Trial by, 46, 47, 112. 
 Justinian's Corpus Juris in Western 
 
 Europe, 10. 
 
 Kentish Codes of Law, 4, 5, 
 
 Laen-land, 23. 
 
 Land-Law, Eoman Law in, 19 — 39. 
 
 „ ,, customary estates in, 21 — 
 23. 
 
 „ „ Mr Coote on, 25—28. 
 Land-System of England before Eoman 
 invasion, 35. 
 ,, of Germany, 36. 
 
 Lanfranc and Eoman Law, 70. 
 Legithiiacy, Bracton on, 83, 96. 
 Legitimation by subsequent marriage, 
 
 72, 96, 131, 144. 
 Letting and Hiring, 76, 94. 
 Libel, 148. 
 Lien, maritime, 184. 
 Litis Contestatio, 147. 
 Littus Saxonicum, 4, 29. 
 Lotharius, edict as to Eoman Law, 68. 
 
 Maeg-lagu, Teutonic, 41. 
 Maintenance, and Champerty, 148 
 Majority, age of, in A.-S. Law, 41. 
 Manors, origin of, 19—21, 30—39. 
 ,, before the Conquest, 33. 
 ,, in Laws of Ina, 34. 
 
 in Domesday Books, 32, 33. 
 Mansfield, Lord, and Mercantile Law, 
 180, 181. 
 
 Map, Walter, on Eoman Law, 71. 
 
 Marine Law, 171. 
 
 Mark System, 20. 
 
 Marriage, 41, 42, 64, 97—99, 144, 165, 
 
 166. 
 Merchant, Law, 159, 177—186. 
 Merton, Parliament of, 72, 96. 
 Mirrour of Justice, 9, 14, 15. 
 Mistake in Chancery, 161, 162. 
 Monsters, 85, 130, n., 145. 
 Mort d' Ancestor, Assize of, 115, 116. 
 Mortgages, 24, 157, 171. 
 Murder, Bracton on, 108. 
 Mutuum, 15, 189. 
 
 Norman Conquest, and English Law, 
 
 58. 
 Novel Disseisin, Assize of, 112 — 114. 
 No.va caput sequitur, 176. 
 
 Obligations in Bracton, 102, 108. 
 Occupancy, as ground of possession, 
 
 87, 145 
 Oleron, Laws of, 171, 172, 179, 182, 
 
 184. 
 Ordeal, 47. 
 
 Outlawry, Bracton on, 109. 
 Oxford, Bracton at, 81. 
 ,, Vacarius at, 68. 
 
 Pactum, nudum, 100, 101, 146. 
 
 Palgrave, on origin of town-govern- 
 ment, 53. 
 
 Papinian in England, 4. 
 
 Paraphernalia in Bracton, 92. 
 
 Parliament, law of, 131, 
 
 Partnership, 159 — 161. 
 
 Partus sequitur ventrem, 83, 130, 146. 
 
 Pateshull, Martin de, 79. 
 
 Patria Potestas, absent from Early Law, 
 41. 
 
 Pecunia Trajectitia and Bottomry, 176, 
 182, 183. 
 
 Persons, Law of, 43, 81. 
 
 Pipowder, Court of, 177. 
 
 Pleading, Eoman Law in, 118, 119. 
 
 Possession, 89, 90, 145. 
 
 Praetors and Chancery, 155. 
 
 Prerogative Court of Archbishop, 168. 
 
 Prescription in Bracton, 92. 
 
 Privy Council, procedure of the, 132. 
 
 Probate, granting of, 167. 
 
 Procedure, Anglo-Saxon and Eoman, 
 45—49. 
 „ in Bracton, 104—106. 
 
 in Blackstone, 147, 148. 
 
 Proof, burden of in A.-S. Law, 47. 
 
 Provert, Alexander, 168. 
 
 Provincial system of Eome, 3. 
 
 Puffendorf, influences Blackstone, 143. 
 
 Punishments in Bracton, 106.
 
 INDEX. 
 
 199 
 
 Kalegh, William de, 79. 
 
 Rectitudines siiuiularnin personanim, 
 
 7, 33. 
 Eecto, writ de, 116. 
 Rem, in, procedure against .ship, 176. 
 Eepresentation in succession, 95, 11.5. 
 Ee.spondentia, 183 
 Rhodia, Lex, 170, 173, 181. 
 Eobbery, Bracton on, 109. 
 Eoman Law in Welsh Law, 7, 8. 
 
 ,, ,, its claims before the Con- 
 
 quest, 12—18. 
 ,, Mr Finlason on, 13, 16— 
 18. 
 „ „ in Early Land Law, 19 — 
 
 39. 
 ,, „ inEarlyFamily Law, 40 — 
 
 44. 
 ,, „ in early Procedure, 45 — 49. 
 ,, ,, and Norman Conquest, 
 
 58—64. 
 ,, ,, and clerical influence, 23 — 
 
 25, 61, 153, 172. 
 ,, ,, before coming of Vacarius, 
 
 65, 66. 
 ,, ,, in 13th and 14th centuries, 
 
 67—73. 
 ,, ,, in Glanvil, 74—77. 
 
 ,, in Bracton, 78—121. 
 )> ,, I, ,, conclusions as 
 to, 119, 121. 
 „ in pleading, 118, 119. 
 „ ,, in Fleta and Brittou, 123, 
 124. 
 „ in Coke, 129—133. 
 ,, ,, its authority in Hale and 
 Blackstone, 140—142. 
 ,, in Blackstone, 143—149. 
 ,, ,, in English Courts, 151. 
 ,, ,, in Chancery, 152 — 162. 
 ,, ,, in Ecclesiastical Courts, 
 163—169. 
 „ in Admiralty, 170—176. 
 ,, ,, in Law Merchant, 177^ 
 
 186. 
 ,, ,, in Common Law, 187 — 
 193. 
 Eoman occupation of Britain, 3, 
 ,, Provincial .system, 3. 
 
 Sale, 76, 93, 131. 
 Salisbury, Clemot of, 62. 
 
 ,, John of, on Eoman Law, 
 69, 70. 
 Saxon invasions of Britain, 4. 
 Seashore, Bracton on, 83. 
 
 Seebohm, on Manors, 30 — 39. 
 Servitudes, Bracton on, 92. 
 Set-off, and Coinpe)i!iatio, 147. 
 Shires, origin of, 50, 51. 
 Skipwith, and Eoman Law, 72. 
 Specific Performance, 161. 
 Staple, Court of Mayor of, 178. 
 Statu Liber, Bracton on, 83. 
 Stephen forbids study of Eoman Law, 
 
 69. 
 Suicides, Bracton on, 109. 
 Summons, and ji« in vocando, 147. 
 
 Testamentary Jurisdiction, 166, 169. 
 Theft, 109—111, 126, 148. 
 Theobald and Vacarius, 68. 
 Theodorici Edictum, 10. 
 Thornton's Suiiuna of Bracton, 122. 
 Three-Field system, 35—37, 39. 
 Tidenham, Manor of, 34. 
 Tilbury, Gervase of, and Eoman Law, 
 
 70. 
 Torture and Civil Law, 131. 
 Towns, organization of, 53 — 55. 
 Traditio, in Bracton, 90. 
 Transaction witnesses, 46, 47. 
 Treason, 107, 148. 
 Treasure Trove, 83, 108, 144. 
 Trinoda necetssitun, 26, 27. 
 Trusts andi. JideicommiHsa, 156. 
 
 Universities, Courts of the, 141, 152. 
 Uses, 156. 
 Usucapio, 49, 91. 
 
 Vacarius, 68, 69. 
 Ventre inspiciendo, de, 96, 144. 
 Villa, Eoman, constitution of, 35, 36. 
 Villein, his position, 31 — 33. 
 
 Wales, and Eoman Law, 7, 8. 
 
 Wales, Land System of, 21, 33, 34. 
 
 Warranties, 116 — 117. 
 
 Wenck on Vacarius, 68. 
 
 Wessex, Code of, 5. 
 
 Wihtraed, Laws of, 5. 
 
 William the Conqueror, Laws of, 59, 
 
 60. 
 Wills, 24, 25, 93, 146, 158, 166—169. 
 Wisbuy, Laws of, 171. 
 Witnesses in Common and Civil Law, 
 
 148. 
 
 Yardland, nature of, 31. 
 
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 — Spectator. 
 
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 a variety of helps to the full comprehension of term, and such is the edition of Professor jebb. 
 
 the poet, as not so many years ago would have No man is better fitted to express in relation to 
 
 needed a small library, and all this instructicm Sophocles the mind of the present generation." 
 
 and assistance given, not in a dull and pedantic — The Saturday Review. 
 way, but in a style of singular clearness and 
 
 AESCHYLI FABULAE.— IKETIAES XOH<I>OPOI IN 
 
 LIBRO MEDICEO MENDOSE SCRIPTAE EX VV. DD 
 CONIECTURIS EMENDATIUS EDITAE cum Scholiis Graccis 
 et brevi adnotatione critica, curante F. A. Paley, M.A., LL.D. 
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 New Edition Revised. By Benjamin Hall Kennedy, D.D., 
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 "One of the best editions of the masterpiece of Greek tragedy." — Athemeujn. 
 
 THE THE^TETUS OF PLATO with a Translation and 
 
 Notes by the same Editor. Crown Svo. ']s. 6d. 
 
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 CHOLOGY, in Greek and English, with Introduction and Notes, 
 by Edwin Wallace, M.A., late Fellow and Tutor of Worcester 
 College, Oxford. Demy Svo. iSj'. 
 
 "The notes are exactly what such notes "Wallace's Bearbeitung derAristotelischen 
 
 ought to be, — helps to the student, not mere Psychologic ist das Werk einesdenkenden und 
 
 displays of learning. By far the more valuable in alien Schriften des Aristoteles und gro^sten- 
 
 parts of the notes are neither critical nor lite- teils auch in der neueren Litteratur zu densel- 
 
 rary, but philosophical and expository of the ben belesenen Mannes . . . Der schw.achste 
 
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 the treatise itself. In this relation the notes are alien diesen Dingen liegt auch nach der Ab- 
 
 invaluable. Of the translation, it may be said sicht des Verfassers nicht der Schwcrpunkt 
 
 that an English reader may fairly master by seiner Arbeit, .sondern." — Prof. Susemihl in 
 
 means of it this great treatise of Aristotle." — Phiiolog-ische Woclienschrift. 
 Spectator. 
 
 ARISTOTLE.— nEPI AIKAI02TNHS. THE FIFTH 
 
 BOOK OF THE NICOMACHEAN ETHICS OF ARISTOTLE. 
 Edited by Henry Jackson, Litt.D., Fellow of Trinity College, 
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 THE BACCHAE OF EURIPIDES. With Introduction, 
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 "Of the present edition of the ^rtcc/^F by Mr able advance in freedom and lightness of style. 
 Sandys we may safely say that never before has . . . Under such circumstances it is superfluous 
 a Greek play, in England at least, had fuller to say that for the purposes of teachers and ad- 
 justice done to its criticism, interpretation, vanced students this handsome edition far sur- 
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 young student or the more advanced scholar. "It has not, like so many such books, been 
 The Cambridge Public Orator may be said to hastily produced to meet the momentary need 
 have taken the lead in issuing a complete edi- of some particular examination ; but it has cm- 
 tion of a Greek play, which is destined perhaps ployed for some years the labour and thought 
 to gain redoubled favour now that the study of of a highly finished scholar, whose aim seems 
 ancient monuments has been applied to its il- to have been that his book should go forth /<?/«* 
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 versity Press. In the notes Mr Sandys has more will adorn the library of the scholar." — The 
 
 than sustained his well-earned reputation as a Guardian. 
 careful and learned editor, and shows consider- 
 
 THE TYPES OF GREEK COINS. By Percy Gardner, 
 
 Litt. D., F.S.A., Disney Professor of Archaeology. With i6 Autotype 
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 such lucidity and in a manner so straightfor- less, it takes high rank as proceeding upon a 
 
 ward that it may well win converts, and it may truly scientific basis at the same time that it 
 
 be distinctly recommended to that onmivorous treats the subject of numismatics in an attrac- 
 
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 turday Re7>iew. pearance in the drawing-room." — Atlieiueutn. 
 
 " ' The Types of Greek Coins ' is a work which 
 
 A SELECTION OF GREEK INSCRIPTIONS, with 
 
 Introductions and Annotations by E. S. ROBERTS, M.A., Fellow 
 and Tutor of Gonville and Caius College. [/« the Press. 
 
 ESSAYS ON THE ART OF PHEIDIAS. By C. Wald- 
 
 STEIN, M.A., Phil. D., Reader in Classical Archjeology in the 
 University of Cambridge. Royal 8vo. With numerous Illustrations. 
 16 Plates. Buckram, 30^'. 
 
 " I acknowledge e.vpressly the warm enthu- very valuable contribution towards a more 
 
 siasm for ideal art which pervades the whole thorough knowledge of the style of Pheidias." — 
 
 volume, and the sharp eye Dr Waldstein has The Academy. 
 
 proved himself to possess in his special line of " 'Essays on the Art of Pheidias' form an 
 
 study, namely, stylistic analysis, which has led extremely valuable and important piece of 
 
 him to several happy and important discoveries. work. . . . Taknig it for the illustrations alone. 
 
 His book will be universally welcomed as a it is an exceedingly fascinating book." — Times. 
 
 M. TULLI CICERONIS AD. M. BRUTUM ORATOR. 
 
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 and explanatory notes, by J. E. Sandys, M.A., Fellow and Tutor of 
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 M. T. CICERONIS DE OFFICIIS LIBRI TRES, 
 
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 which, especially in the form which it has now matter and the language."— .^<r<z</i-//y. 
 
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 M TVLLI CICERONIS PRO C RABIRIO [PERDVEL- 
 
 ■ LIONIS REO] ORATIO AD QVI RITES With Notes Introduc- 
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 M TULLII CICERONIS DE NATURA DEORUM 
 
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 lege, London, together with a new collation of several of the English 
 l\fsS. by J. H. SWAINSON, M.A. 
 Vol I DemySvo. los.U. Vol.11. 12^.6./. Vol. III. los. 
 
 have ev"dentlv been expended, and is in every durfea."-P. Schwenckk m JB. f. cl. Alt. 
 Sel"^^^^ TL^tteVo-fX Vd^to-i: In^L'at ^■"'■"i'efl"' rdi'.tne.sua e pi. co.piuto, che in 
 
 '^^^^^^^^^o..^.^^■ -^irrn^^^^ol'Tp-pLrcn^rco^da"^:::: 
 
 '"^.^D^r'^'vtSTndrlw^rBand enthalt r\'es"{n.e ed il com'n^ento del contenuto del 
 
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 crheblichen Fortschritt gegen die bisher vor- 1881, pp. 717-731- 
 handenen commentirten Ausgaben. Man darf 
 
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 MATHEMATICS, PHYSICAL SCIENCE, &c. 
 
 MATHEMATICAL AND PHYSICAL PAPERS. By 
 
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 "Wherever exact science has found a fol- age of 17, before the author had commenced 
 lower Sir William Thomson's name is known as residence as an undergraduate in Cambridge. 
 
 L'ch':f his^^^::s!ve c'ontr1bu^rns° L^^^ow! -^^wlponvinced that nothing has had a 
 ledge in the domain of experimental and mathe- greater effect on the progress of the theories of 
 mafical physics has been recognized as marking electricity and magne ism during the last ten 
 Tsta^e in the progress of the subject. But, un- years than the publication of Sir W. Thomson s 
 haoDilv for the mere learner, he is no writer of reprint of papers on electrostatics and magnet- 
 text-books His eager fertility overflows into ism, and we believe that the present volume is 
 the nearest available journal ... The papers in destined in no less degree to farther the ad- 
 this volume deal largely with the subject of the vancement of physical science. —Glasgow 
 dynamics of heat. They begin with two or Herald. 
 three articles which were in part written at the 
 
 MATHEMATICAL AND PHYSICAL PAPERS, by 
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 " The same spirit pervades the papers on which well befits the subtle nature of the sub- 
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 volume They have a severe accuracy of style their author." — 7"//? Tzmes. 
 
 A HISTORY OF THE THEORY OF ELASTICITY 
 
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 by Karl Pearson, M.A. [Near/y ready. 
 
 Lc:idon : C. J. Clay &= Son, Cambridge University Press JVarehouse, 
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 THE CAMBRIDGE UNIVERSITY PRESS. 13 
 
 THE SCIENTIFIC PAPERS OF THE LATE PROF 
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 A TREATISE ON NATURAL PHILOSOPHY. By 
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 Professor of Natural Philosophy in the University of Edinburgh! 
 Parti. Demy 8vo. i6j-. Part II. Demy 8vo. i8j-. 
 
 ELEMENTS OF NATURAL PHILOSOPHY. By Pro- 
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 AN ATTEMPT TO TEST THE THEORIES OF 
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 AxN ELEMENTARY TREATISE on QUATERNIONS. 
 
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 sophy ', an admirable book in its way, but rather unfailing help in acquiring a knowledge of the 
 
 slender. Mr Pattison Muir having aimed at a principles of modern chemistry." — .•lt/ten<rum. 
 
 NOTES ON QUALITATIVE ANALYSIS. Concise and 
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 LECTURES ON THE PHYSIOLOGY OF PLANTS, 
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 A SHORT HISTORY OF GREEK MATHEMATICS. 
 
 Bv T Gow, Litt.D., Fellow of Trinity College. Demy 8vo. \os. M. 
 DIOPHANTOS OF ALEXANDRIA; a Study in the 
 History of Greek Algebra. By T. L. Heath, B.A., Fellow of 
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 is an?4edi|.y valuable Lunb.t.on to the tT.che^w];'^' t'"^rde^terf:\^rnde"nf d^s 
 
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 THE FOSSILS AND PAL^EONTOLOGICAL AFFIN- 
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 ASTRONOMICAL OBSERVATIONS from 1861 to 1865. 
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 THE CAMBRIDGE UNIVERSITY PRESS. 15 
 
 LAW. 
 
 A SELECTION OF CASES ON THE ENGLISH LAW 
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 distinguished these cases from those of im- to which they relate. We can thoroughly re- 
 
 peachment for treason before Parliament, which commend the book." — Law Times. 
 he proposes to treat in a future volume under " To a large class of readers Mr Willis- 
 
 the general head 'Proceedings in Parliament.'" Bund's compilation will thus be of great as- 
 
 — The Academy. sistance, for he presents in a convenient form a 
 
 " This is a work of such obvious utility that judicious selection of the principal statutes and 
 
 the only wonder is that no one should have un- the leading cases bearing on the crime of trea- 
 
 dertaken it before ... In many respects there- son . . . For all classes of readers these volumes 
 
 fore, although the trials are more or less possess an indirect interest, arising from the 
 
 abridged, this is for the ordmary student's pur- nature of the cases themselves, from the men 
 
 pose not only a more handy, but a more useful who were actors in them, and from the numerous 
 
 work than Howell's." — Saturday Keviezv. points of social life which are incidentally illuS' 
 
 " But, although the book is most interesting trated in the course of the trials." — Atkemeum. 
 to the historian of constitutional law, it is also 
 
 THE FRAGMENTS OF THE PERPETUAL EDICT 
 
 OF SALVIUS JULIANUS, collected, arranged, and annotated by 
 Bryan Walker, M.A., LL.D., Law Lecturerof St John's College, and 
 late Fellow of Corpus Christi College, Cambridge. Crown 8vo. bs. 
 
 " In the present book we have the fruits of such a student will be interested as well as per- 
 the same kind of thorough and well-ordered haps surprised to fnid how abundantly the ex- 
 study which was brought to bear upon the notes tant fragments illustrate and clear up ponits 
 to the Commentaries and the Institutes . . . which have attracted his attention in the Corn- 
 Hitherto the Edict has been almost inac- mentaries, or the Institutes, or the Digest."— 
 cessible to the ordinary English student, and Law Times, 
 
 London : C. J. Cla y £r» Son, Cambridge University Press Warehouse, 
 Ave Maria Lafie.
 
 1 6 PUBLICATIONS OF 
 
 AN INTRODUCTION TO THE STUDY OF JUS- 
 TINIAN'S DIGEST. Containing an account of its composition 
 and of the Jurists used or referred to therein, together with a full 
 Commentary on one Title (de usufructu), by Henry John ROBY, M.A., 
 formerly Prof, of Jurisprudence, University College, London. Demy 
 8vo. \%s. 
 
 "Not an obscurity, philological, historical, tamed and developed. Roman la\v, almost 
 
 or le-^al has been left unsifted. More inform- more than Roman legions, was the backbone 
 
 in" aid still has been supplied to the student of of the Roman commonwealth. Mr Koby, by 
 
 the Digest at large by a preliminary account, his careful sketch of the sages of Roman law, 
 
 covering nearly 300 pages, of the mode of from Se.xtus Papinus, under larquin tlie 
 
 composition of the Digest, and of the jurists Proud, to the Byzantine Bar, has contributed to 
 
 whose decisions and arguments constitute its render the tenacity and durability of the most 
 
 substance. Nowhere else can a clearer view enduring polity the world has ever experienced 
 
 be obtained of the personal succession by which somewhat more intelligible."— 7'A^ Times. 
 the tradition of Roman legal science was sus- 
 
 THE COMMENTARIES OF GAIUS AND RULES OF 
 
 ULPIAN. With a Translation and Notes, by J. T. Abdv, LL.D., 
 Judge of County Courts, late Regius Professor of Laws in the 
 University of Cambridge, and Bryan Walker, M.A., LL.D., Law 
 Lecturer of St John's College, Cambridge, formerly Law Student of 
 Trinity Hall and Chancellor's Medallist for Legal Studies. New 
 Edition by Bryan Walker. Crown 8vo. i6s. 
 
 "As scholars and as editors Messrs Abdy way of reference or necessary explanation, 
 
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 reader with few notes and those merely by fanciful representation of it." — Atheiiaum. 
 
 THE INSTITUTES OF JUSTINIAN, translated with 
 Notes by J. T. Abdy, LL.D., and Bryan Walker, M.A., LL.D, 
 Crown 8vo. i6i'. 
 
 "We welcome here a valuable contribution the ordinary student, whose attention is dis- 
 
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 practised scholars, whose knowledge of clas- which it is contained, it will be almost indis- 
 
 sical models does not always avail them in pen.sable." — Spectator. 
 
 dealing with the technicalities of legal phrase- " The notes are learned and carefully com- 
 
 ology. Nor can the ordinary dictionaries be piled, and this edition will be found useful to 
 
 expected to furnish all the help that is wanted. students." — Law Tunes. 
 This translation will then be of great use. To 
 
 SELECTED TITLES FROM THE DIGEST, annotated 
 by B. Walker, M.A., LL.D. Part I. Mandati vel Contra. Digest 
 XVIL I. Crown 8vo. ^s. 
 
 "This small volume is published as an ex- Mr Walker deserves credit for the way in which 
 
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 annotated edition and translation of several translation, as might be expected, is scholarly." 
 
 books of the Digest if this one is received with — Law Times. 
 favour. We are pleased to be able to say that 
 
 Part II. De Adquirendo rerum dominio and De Adquirenda vel 
 
 amittenda possessione. Digest XLL i and ii. Crown 8vo. 6j-. 
 
 Part III. De Condictionibus. Digest XIL I and 4 — 7 and Digest 
 
 XI n. I — 3. Crown 8vo. 6j. 
 
 GROTIUS DE JURE BELLI ET PACIS, with the Notes 
 
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 THE CAMBRIDGE UNIVERSITY PRESS. 17 
 
 HISTORY. 
 
 LIFE AND TIMES OF STEIN, OR GERMANY AND 
 PRUSSIA IN THE NAPOLEONIC AGE, by J. R. Seeley, 
 M.A., Regius Professor of Modern History in the University of 
 Cambridge, with Portraits and Maps. 3 Vols. Demy 8vo. Now 
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 " Dr Busch's volume has made people think are apt to shrink." — Times. 
 and talk even more than usual of Prince Bis- " In a notice of this kind scant justice can 
 
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 almost equally eminent German statesman. It notion of the contents of these volumes, which 
 
 has been the good fortune of Prince Bismarck contain no page that is superfluous, and none 
 
 to help to raise Prussia to a position which she that is uninteresting .... To understand the 
 
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 who laboured to put life and order into her noteworthy production. And we may add that 
 
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 when it seemed almost folly to hope for sue- country, by the use of their own literary 
 
 cess. Englishmen will feel very pardonable weapons, an Englishman has produced a his- 
 
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 dimensions to which English industry and com- what is trivial." — Guardian. 
 
 CHRONOLOGICAL TABLES OF GREEK HISTORY. 
 
 Accompanied by a short narrative of events, with references to the 
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 Carl Peter. Translated from the German by G. Chawner, 
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 lay their hands on an authority for some par- 
 
 CHRONOLOGICAL TABLES OF ROMAN HISTORY. 
 
 By the same. [Preparing. 
 
 KINSHIP AND MARRIAGE IN EARLY ARABIA. 
 
 by W. Robertson Smith, M.A., LL.D., Lord Almoner's Professor of 
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 hi.-tory of Arabia, but on the earlier passages Scctsman. 
 
 I 
 
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 London: C. J. Clav &^ So.v, Cambridge Ufiiversity Press Warehouse, 
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 TRAVELS IN NORTHERN ARABIA IN 1876 AND 
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 HISTORY OF NEPAL, translated by MuNSHi Shew 
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 A JOURNEY OF LITERARY and ARCH.^0L0GICAL 
 
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 HISTORY OF THE COLLEGE OF ST JOHN THE 
 
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 SCHOLAE ACADEMICAL: some Account of the Studies 
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 THE CAMBRIDGE UNIVERSITY PRESS. 19 
 
 THE ARCHITECTURAL HISTORY OF THE UNI- 
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 A CATALOGUE OF ANCIENT MARBLES IN GREAT 
 
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 value of which are scarcely appreciated, and Geriran, but appears for the first time in the 
 chiefly so because there has hitherto been little English translation. All lovers of true art and 
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 loving labours of a learned German the owners of the University Press for the liberal facilities 
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 and now Michaelis performs the same office that it seems unnecessary to say how good 
 
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 tique sculptures for which our country is so 
 
 RHODES IN ANCIENT TIMES. By Cecil Torr, M.A. 
 
 With six plates. Demy 8vo. loj-. (id. 
 
 THE WOODCUTTERS OF THE NETHERLANDS 
 
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 A GRAMMAR OF THE IRISH LANGUAGE. By Prof. 
 
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 LECTURES ON TEACHING, delivered in the University 
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 THE CAMBRIDGE UNIVERSITY PRESS. 
 
 %\)t Camhrilrge Bible for 
 ^cljools ana CoUccjes. 
 
 General Editor : The Very Reverexd J. J. S. Perowne, D.D., 
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 Rev. A. B. Davidson, D.D., Professor of Hebrnv, Edinburgh. 
 
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 Rev. C. D. Ginsburg, LL.D. 
 
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 Rev. A. Plummer, M.A., D.D., Master of University College, Durham. 
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 THE CAMBRIDGE UNIVERSITY PRESS. 23 
 
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 M. T. CICERONIS ORATIO PRO L. MURENA, with 
 
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 GAI lULI CAESARIS DE BELLO GALLICO COM- 
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 M. ANNAEI LUCANI PHARSALIAE LIBER 
 
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 JEANNE D'ARC by A. De Lamartine. With a Map 
 
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 HISTOIRE DU SIECLE DE LOUIS XIV PAR 
 
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 @oet£)e'6 itnabeuia^re. (1749— 1759.) GOETHE'S BOY- 
 
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