Front Page Titles (by Subject) SECTION III: Circumstances which prevented the Civil Law from being so much incorporated in the System of English Jurisprudence, as in that of other European Countries. - An Historical View of the English Government
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
SECTION III: Circumstances which prevented the Civil Law from being so much incorporated in the System of English Jurisprudence, as in that of other European Countries. - John Millar, An Historical View of the English Government 
An Historical View of the English Government, From the Settlement of the Saxons in Britain to the Revolution in 1688, in four volumes, edited by Mark Salber Philips and Dale R. Smith, introduction by Mark Salber Philips (Indianapolis: Liberty Fund, 2006).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Circumstances which prevented the Civil Law from being so much incorporated in the System of English Jurisprudence, as in that of other European Countries.
To those who survey the common law of England, in its progress towards maturity, there is one peculiarity which must appear extremely remarkable; the little assistance it has borrowed from the ancient Roman jurisprudence; that system of equity, which has been so highly esteemed, and which, in the other countries of Europe, has excited such universal imitation. Why the English have deviated, in this particular, from the practice of all the neighbouring nations, and have disdained to draw supplies from those plentiful sources of legal knowledge, by which many systems of modern law have been so amply enriched, it seems a matter of curiosity to inquire: at the same time that, by examining the causes of a proceeding so singular, and apparently so unreasonable, we shall, perhaps, be enabled to<317> discover the advantages or disadvantages which have resulted from it; and likewise to form an opinion, how far expediency may, in the present state of things, recommend the same, or a different line of conduct.
The Gothic nations who subdued the provinces of the Roman empire, and settled in the countries which they had over-run, were by degrees incorporated with the ancient inhabitants; and from the communication and mixture of these two races of men, there was formed a composition of laws, manners, and customs, as well as of language; in which, upon different occasions, and from a variety of circumstances, the proportions contributed by the one people, or by the other, were accidentally more prevalent. Although the ancient inhabitants were, every where, the vanquished party, they possessed that superiority which knowledge and civilization have usually bestowed over ignorance and barbarism; and hence we find a multitude of Roman institutions inserted in the codes of law, which, at an early period, were published by many kings or leaders of those barbarous nations.
Soon after the settlement of those barbarians,<318> or rather before it was completed, they embraced Christianity, and fell under the direction of the Christian clergy; who, having been firmly established in the Roman empire, were enabled to preserve their footing in those new states that were formed. These ecclesiastics were attached to the Roman law, in opposition to the barbarous customs of the new settlers; both as it was the system with which they were acquainted, and as it was calculated to maintain that peace and tranquillity, which their profession and manner of life disposed them to promote.
The doctrines of Christianity, unlike the fables which constituted the mythology of the Greeks and Romans, contained philosophical truths, which the teachers of that religion were under the necessity of knowing, and by the knowledge and propagation of which they supported their credit among the people. Those teachers, therefore, became conversant in several branches of literature; and, as their theological system afforded them great scope for speculation and reasoning, and consequently for difference of opinion, they soon arranged themselves in different sects; disputed eagerly<319> with one another; and, in proportion to their zeal in making proselytes, acquired a degree of acuteness and skill in defending their several tenets.
The learning and abilities which came, in this manner, to be possessed by the clergy, together with the general ignorance and superstition of the people, bestowed upon the former an influence and authority over the latter, and produced, as I formerly took notice, an extensive jurisdiction both in ecclesiastical and secular matters. It is sufficient here to observe, that in the exercise of this jurisdiction, ecclesiastical judges were guided, as far as the difference of circumstances would permit, by the rules and principles of the Roman jurisprudence; which had been transmitted from the ancient inhabitants of the provinces, and were delivered in the collections made by different Roman emperors, by Theodosius the younger,11 by Justinian, and by many of his successors. The Roman system became, in a great measure, the law of the church; and was therefore propagated by her, with the same zeal, and from the same views and motives, by which she was actuated in supporting and extending her influence and authority. The disorders which, for some cen-<320>turies, were continued, by the successive invasions of new barbarous tribes, retarded, no doubt, the progress of every regular establishment. But when Europe began to recover from these convulsions, and when the restoration of public tranquillity was followed, as there was reason to expect, by the revival of letters, the efforts of the clergy, to extend the credit and authority of the Roman law, became highly conspicuous and successful. Innumerable schools were founded in cathedrals and monasteries, many of which, under the patronage of the church, obtaining large endowments, and being invested with jurisdiction and various privileges, became what are now called universities. Both the canon law, which was the rule of decision in ecclesiastical courts, and the civil law, properly so called, the original fund from which a great part of the former had been gathered, were taught in these different seminaries, and thus rendered familiar, not only to those who had views of entering into holy orders, but to all who received the benefit of a liberal education.
About the end of the eleventh century, Ivo de Chartres12 published a collection of canon-<321>law, much more complete than any that had been formerly made; though it was much inferior to the subsequent compilation of Gratian, a Benedictine monk, known by the title of the Decretum.
In the year 1137, the Pisans, at the taking of the town of Amalphi, found a copy of Justinian’s Pandects; and to this accident, the rapid cultivation of the civil law, from that period, has been commonly ascribed. But we may be allowed to entertain some doubt, whether an event of that magnitude could have proceeded from a circumstance apparently so frivolous.
There is no reason to believe that this book had been entirely lost in the western part of Europe, although, for a long time, it had been less in request than other compilations upon the same subject. Ivo de Chartres, in the preceding century, quotes the laws of the Pandects; and Irnerius,13 professor of law at Bologna, as early as the year 1128, prelected upon some part at least of Justinian’s compositions.
Even supposing the Pandects to have been lost, there were many other writings upon the Roman law still remaining, from which the<322> knowledge of it might, in some degree, have been preserved; the Institutes, the Codex; and the Novellae of Justinian; the Theodosian Code; and the compilations, published after the time of Justinian, by different emperors of Constantinople.
Neither is it likely that, if men had possessed no previous disposition to that study, it would have been inspired by finding an old book upon the subject. Few people will be at the pains to peruse a long book, upon any abstract science, unless they already feel a strong inclination to acquire the knowledge contained in it. But, in the twelfth century, when, from different circumstances, a spirit of improvement began to diffuse itself in Italy and France, it is probable that men of learning were excited to the discovery of ancient books upon every subject; and, as the civil law became then a principal object of attention, the Pandects, containing the fullest collection of legal opinions and decisions, was considered as the most instructive work of the kind, and copies of it were greedily sought for. As Amalphi was, at this time, the chief trading state of Italy, an Amalphitan merchant, ob-<323>serving the demand for books of that nature, is said to have brought from Constantinople this copy of the Pandects, which was found by the Pisans. Some authors mention another copy of the same book, that had been discovered in the year 1128, at Ravenna.*
However this be, the Roman law was, upon the revival of letters in Europe, universally held up and admired as the great system, from an imitation of which the laws of each particular country might receive the highest improvement. This the modern lawyers were, by their education, accustomed to consider as the standard of reason and equity; and, wherever their own municipal customs were defective, they had recourse to it, in order to supply what was wanting, or to correct what was amiss. Even such of the modern writers as endeavoured to delineate the principles of natural justice,14 independent of all positive institutions, made use of the Roman system, almost exclusively of every other, in order to illustrate their doctrines.
Although the Roman law was, in this man-<324>ner, generally incorporated in that of the modern European nations, it acquired more authority in some of these nations than in others. The German emperors appear to have considered themselves as the successors to the Roman empire in the west, and their dominions as therefore subject to that system of law, by which the Romans were governed. Hence, in Germany, properly so called, in the Southern part of France, or what are called the Pays de droit ecrit, and in several parts of Italy, which, at the time when the German emperors enjoyed the highest prosperity, were included under their dominion, the Roman law is understood to be the common law of the country, to which the inhabitants, upon the failure of their own municipal customs and regulations, are bound to submit. In other European countries it is viewed in the light of a foreign system; which, however, from its intrinsic merit, is entitled to great attention and regard; and of which many particulars have been, in a manner, naturalized by long usage, or adopted by the positive will of the legislature. This is the case in Spain, in Portugal, in the northern parts, or what are called the<325> Pays de coutumes, in France, in Sweden, in Denmark, and in Scotland.*
Upon the revival of letters, the same regard to the Roman law was discovered in England as in the other countries of Europe. It was propagated with equal zeal by the clergy, and, in the twelfth century, became the subject of public lectures in both the universities. The decisions and principles delivered in the writings of Justinian, were borrowed, and even the expression was frequently copied, by Bracton, by the author of Fleta, and by other English lawyers of that period.15 The work attributed to Glanville, the grand justiciary of Henry the second, and a Scotch law book, known by the name of Regiam Magistatem,16 both set out with a passage which is almost literally the same; whence, as well as for other reasons, it is concluded, that the latter of these productions has been copied from the former. Upon examination, however, the passage in question is<326> found in the preface to the Institutes of Justinian.
Thesettlement of the chief courts of common law in the neighbourhood of the capital, which was begun in consequence of the great charter of king John, and completed in the reign of Edward the first, made it necessary that the lawyers, and other practitioners in those courts, should reside there also. Hence arose the inns of court, and of chancery,17 which were lodging-places in the neighbourhood of London, intended for the accommodation of the retainers about the courts of Westminster. Seminaries of common law were soon formed in those places of resort; and lectures upon that subject were given to the elder students, in the inns of court, and to the younger students, in the inns of chancery. The king gave encouragement to these institutions, by forming the members of each lodging-place into a sort of corporation, and by establishing a set of rules for their conduct. We find that Henry the third bestowed upon them an exclusive privilege, by prohibiting any other school for teaching law within the city of London.<327>
The universities of Oxford and of Cambridge were the only other institutions in the kingdom, in which law was taught with public encouragement. But in those learned societies, the only systems which had reputation, and which were thought worthy of public lectures, were those of the civil and the canon law. The municipal law, from its tendency, in many particulars, to encourage violence and disorder, from the barbarous jargon in which it was involved, and from the want of literature among its practitioners, was treated with contempt. These practitioners, we may easily imagine, were disposed to retaliate those unfavourable sentiments. Upon this account, and from the distance between the seats of instruction, in civil and municipal law, the former contributed no assistance to the latter. Those two branches of education were carried on apart, and became entirely distinct, and separate. The teachers of each, instead of co-operating in order to form a complete lawyer, were actuated by mutual jealousy and opposition; and the one science being treated as despicable in the universities, the other was probably represented as useless by the practitioners of the common law.<328>
For some time the civil law, under the patronage of the clergy, and of the universities, was in the highest esteem throughout the nation; and the study of the municipal law was confined to mere lawyers by profession; but at length, from the natural course of things, the comparative value of those two branches of science was of necessity altered. The latter, being that system by which the property and the conduct of individuals were chiefly regulated, could not fail to rise in consideration and importance; at the same time that, by the progress of judges in experience and refinement, its defects were gradually supplied; while the laws of Rome, which were unconnected with the ordinary courts of justice, and therefore of no practical utility, became an object of little attention.
We accordingly find, that, in the reign of Edward the fourth, and even before that time, the inns of court and chancery had become the fashionable places of education for men of rank and fortune, and were frequented by a great multitude of students. There were four inns of court, and no less than ten of chancery: in each of the former, the number of students<329> amounted to about two hundred, in each of the latter, to about an hundred. Neither was the system of education, in this great seminary, confined entirely to law: it comprehended all exercises, and every sort of accomplishment becoming a gentleman of the king’s court; such as dancing and music. Sir John Fortescue18 informs us, that it was likewise customary to study divinity on festival days; I suppose, by way of relaxation.*
Justice Shallow is introduced by Shakespear,19 boasting, that he had been a student of Clement’s Inn, and that he had often heard the chimes at midnight; as a proof that he was a young man of fashion and spirit.—In the same manner as he boasted of his acquaintance with John of Gaunt.
When those teachers of the common law had begun to feel their own consequence, they assumed the privilege of bestowing rank upon their students of a certain standing; and conferred the degrees of serjeant, and apprentice, corresponding to those of doctor and bachelour in the universities.<330>
As the separation of the civil and the municipal law produced an aversion to the former in the inns of court and chancery, we may easily conceive, that the same prejudice would be communicated to their numerous pupils, and thus become prevalent among the nobility and gentry of the kingdom. Hence the jealousy discovered, on several occasions, by the English parliament, lest, by the influence of the clergy, the laws of ancient Rome should be introduced into England; of which a remarkable instance is mentioned in the reign of Richard the second; when the nobility, in parliament, declare, “that the realm of England hath never been unto this hour, neither by the consent of our lord the king, and the lords of parliament, shall it ever be ruled or governed by the civil law.”† As the laws of ancient Rome had not been incorporated in the municipal system, they seem to have been viewed, by the partizans of the latter, in the same light with the doctrines of a rival sect, which has with difficulty been prevented from acquiring the superiority in the national establishment.<331>
It has been alleged by authors of note, that the opposition of the English nobility to the civil law, arose from its being the law of a despotic government, and therefore inconsistent with their notions of English liberty. But whoever has examined the compilations of Justinian with any attention, must be sensible that there is no foundation for this remark. Those collections relate almost entirely to the private, and touch very slightly upon the public law of the empire. But with respect to property, and the rights of private persons, the opinions and decisions of the Roman lawyers do not seem to have been at all perverted by the nature of their government. Perhaps it will be difficult to point out any modern system of law, in which the rules of justice among individuals appear to be so little warped by the interest of the crown, and in which the natural rights of mankind are investigated and enforced with greater impartiality. In one or two cases, you meet with an observation, “that the prince is above the laws.” These, however, are detached, and, as it were, insulated expressions, delivered in general terms, and without any visible effect upon the body<332> of the work; which relates, not to disputes between the emperor and his subjects, but to such as may arise among the people.
After the free government of Rome was overturned, the emperors found it expedient for a long time to conceal the extent of their usurpation, and to leave the ordinary judges, in a great measure, undisturbed in the exercise of that jurisdiction which had been founded in the more fortunate times of the republic. Augustus first set the example of this prudent dissimulation, which was copied by a great number of his successors. Beside the apprehension that the old republican spirit was not entirely extinguished, and the circumstance that the throne continued elective, the emperors were kept in awe by those powerful armies, under particular officers of distinction, which were maintained in the provinces. These were much superior to that praetorian guard, which, for the immediate support of the imperial dignity, was established in the neighbourhood of Rome. In this manner a sort of balance, however precarious, was for some time held, by the military forces dispersed over the empire, and by the jealousy between the emperor and the<333> leader of each considerable army; in consequence of which, the former was deterred from invading and destroying the internal structure of the constitution.
Some of the first emperors, indeed, were guilty of enormous crimes and disorders; but the effect of these appears to have been limited, in a great measure, to persons high in office, or in such rank or station as to be involved in the intrigues of the court. In the succeeding period the Romans were more fortunate, and the throne was filled by a series of princes who are an honour to human nature; Nerva, Trajan, Adrian, Antoninus Pius, and Marcus Aurelius.20 Under these emperors no interference of the crown prevented the equal distribution of justice; the experience of an empire, which included the whole civilized world, was accumulated in one mass; and the system of private law was thus brought to much greater perfection than it had attained in the preceding ages.
In the reign of Adrian was composed the perpetual edict,21 the first great compilation of the rules of decision; and this became the ground-work of most of the writings published<334> by succeeding lawyers. It was about this time that the law began to be regularly cultivated as a science; that it became the object of a lucrative profession; and that it was taught at Rome with public encouragement.*
Severus new modelled the praetorian guard, by appointing that it should consist of above fifty thousand men; about four times the ancient number; and that it should be recruited, not, as formerly, from the effeminate inhabitants of Italy, but from the hardy and well-disciplined legions upon the frontiers. With the command of this army the emperor possessed a force which nothing in the whole empire was able to oppose; and the government of course degenerated into an absolute military despotism. From this time, therefore, the law could not fail to decline. From the influence of long usage, however, it appears to have declined very slowly; and, notwithstanding the<335> ignorance and barbarism in which the people were sunk, together with the heavy yoke of tyranny to which they were subjected, the ancient system was treated with respect.
It merits attention, that the opinions and decisions contained in the Pandects of Justinian, were delivered by authors, who either lived entirely, or at least received their education, before this great revolution was introduced; and probably a considerable time before its effects, in subverting the private law of the country, had been very sensibly felt. Modestinus, the latest of those authors, wrote in the reign, I think, of the younger Gordian, and only about thirty years below that of Severus.22
The Institutes, an elementary book upon the science of law, intended as an introduction to the perusal of the Pandects, was likewise composed, with a very few additions of Justinian, by an old lawyer, who lived within the period above mentioned.
As the proscription of civil law from the courts of Westminster-hall proceeded entirely from the animosity and opposition between the universities and the inns of court and chancery; it may be supposed that this would con-<336>tinue no longer than while the latter preserved their consideration and popularity. For a long time, however, these institutions have not only ceased to be the great seminaries for educating the nobility and gentry; but have become of little use for conveying instruction to practical lawyers. No lectures are now given in the inns of court or chancery; no exercises are performed; no measures are taken for directing the application of those who, of their own accord, may be disposed to study. The whole care of education seems to be devolved upon the cook; and the only remaining part of the ancient regulations is, that the student shall eat his commons for a certain number of terms.
The causes of this alteration it is not difficult to discover. Beside the luxury of a great metropolis, which is calculated to produce idleness and dissipation both in teachers and scholars, the profits arising from the practice of the law, together with the prospect of preferment in the state, have allured men of spirit and abilities to desert the more speculative and less distinguished employment of communicating the principles of the science to a set of pupils.<337> To counteract this natural tendency, and to maintain the vigour of teaching law, notwithstanding the superior advantages derived from the practical profession of a lawyer, public encouragement, as well as the strictest regulation, would have been requisite; but this object appears to have been overlooked by government; and, upon the advancement of national wealth and prosperity, the old institutions were left to their natural course.
But the decay of the inns of court and chancery did not immediately change the ideas which, in their more flourishing condition, they had impressed upon the nation. The movement continued, and its direction was little varied, for a long time after the hand that gave it was withdrawn. It is but of late years that the prejudices, which had so long prevailed, have begun to disappear, and that the same liberal spirit with which the nation is animated in the prosecution of other sciences, has been extended to the interpretation of the rules of justice. In ecclesiastical courts, indeed, and in those of the universities, the civil law has been long followed; but this proceeded in some measure from prepossession;<338> as the rejection of that system, in the courts of Westminster-hall, was the effect of prejudice. Upon the rise of the court of chancery, its decisions were commonly directed by a clergyman; who naturally possessed an attachment to that system of equity, the propagation of which was the great aim of the whole ecclesiastical order. In the court of the admiral, which acquired a jurisdiction in maritime causes, the principles adopted were such as had been suggested, not by the peculiar customs of England, but by the common intercourse of commercial nations, and in which a great proportion of the civil law was introduced. A similar system was embraced in the courts of the constable and marshal; who, from having the command of armies, more especially when engaged in foreign expeditions, were permitted to assume a military jurisdiction. These officers, as might be expected, were led to imitate the general practice of Europe, or what may be called the law of nations.
It was reserved for the enlightened judges of the present age to estimate the system of Roman jurisprudence, according to its intrinsic merit; and without being influenced by ad-<339>ventitious circumstances, to derive from it, in the courts of common law, such assistance as it was capable of bestowing. Of all the sciences, law seems to be that which depends the most upon experience, and in which mere speculative reasoning is of the least consequence. As the Roman system contains the accumulated experience and observation of ages, and of the most extensive empire that ever existed in a civilized form; the advantages resulting from it, as an example to the lawyers and judges of any modern country, must be proportionably great. It presents the largest collection of equitable decisions, and rules, that is any where to be found. These are calculated to enlarge the compass of legal knowledge, without having the influence to mislead; they have all the benefit of precedents, without any authority to impose; and, therefore, may render the system of English law more full and comprehensive, without any danger of corrupting it.<340>
[11. ]Theodosius II, Eastern Roman emperor (r. 408–50), issued the Theodosian Code in 438 as an effort to systematize the complex mass of laws that had been issued since the reign of Constantine. See p. 58, note 6.
[12. ]St. Ivo de Chartres (ca. 1040–ca. 1116): French churchman and bishop of Chartres known for his collections of canon law. Gratian was a twelfth-century Italian jurist and monk who compiled the Decretum Gratiani (1139–50), the basic text for all later studies of canon law.
[13. ]Irnerius (d. before 1140), Italian jurist, scholar, and teacher of law at Bologna.
[* ]Giannone, History of Naples.
[14. ]Millar here refers to the Natural Law theorists, most prominently Hugo Grotius (1583–1645), Dutch jurist and humanist, and Samuel Pufendorf (1632–94), German jurist and historian. See p. 794, note 7.
[* ]Duck de Auctoritate Jur. Civil.—It should seem, that, since the time when this author wrote, the ideas of the inhabitants, in some of those countries, have undergone a considerable change upon that subject.
[15. ]Henry de Bracton (d. 1268?), English writer on law and until recently considered the author of De Legibus et Consuetudinibus Angliae, written before 1259 and one of the most important early English legal texts; Fleta, a treatise of unknown authorship on the English common law, was written in the late thirteenth century.
[16. ]Ranulf de Glanvill (d. 1190), English jurist; the Regiam Majestatem (1609), covering “the auld lavves and constitutions of Scotland” of 1004–1400, was compiled and translated by Sir John Skene (d. 1617), lord clerk register to James VI and lord of session.
[17. ]The Inns of Court is the collective name of the four legal societies in London that have the exclusive right of admission to the bar (Lincoln’s Inn, Gray’s Inn, the Inner Temple, and the Middle Temple). These societies date from before the fourteenth century and take their name from the buildings where the original law schools were established. The Inns of Chancery were lesser societies that depended on the former: their importance waned in the eighteenth century, and they disappeared entirely in the nineteenth century.
[18. ]Sir John Fortescue (ca. 1385–1476): English jurist, chief justice of the Court of King’s Bench, and author of De Laudibus Legum Angliae (ca. 1470), an important work on the history of English law.
[* ]Fortescue de laudibus Leg. Ang.—Also the discourses on this subject preserved in Hearne’s collection of antiquities.
[19. ]“Justice Shallow” appears in Shakespeare’s Henry IV, Part II.
[† ]Blackstone’s Commentaries. [[Millar quotes Blackstone’s Commentaries on the Laws of England, 4 vols. (London, 1765–69), vol. 1, sec. 1 (“On the Study of the Law”), 19–20. Blackstone, in turn, cites Selden.]]
[20. ]Roman emperors Nerva (r. 96–98), Trajan (r. 98–117), Hadrian (r. 117–38), Antoninus Pius (r. 138–61), and Marcus Aurelius (r. 161–80).
[21. ]The perpetual edict was commissioned by Hadrian ca. 130 and was a substantial revision of earlier edicts.
[* ]The practice of lawyers taking an honorarium [[fee, had been introduced before the end of the commonwealth, but was prohibited by statute. Complaints of the violation of this law were made in the reign of Claudius; when it was enacted, that no lawyer should receive, in one cause, more than 100 aurei gold coins, or about 80l. sterling.]]
[22. ]Herennius Modestinus, a Roman jurist of the third century whose work is represented in Justinian’s Corpus Juris Civilis; Roman emperors Gordian II (r. 238); Gordian III (r. 238–44); and Lucius Septimus Severus (r. 193–211).