Front Page Titles (by Subject) 7.: THOMAS EDWARD SCRUTTON, ROMAN LAW INFLUENCE IN CHANCERY, CHURCH COURTS, ADMIRALTY, AND LAW MERCHANT 1 - Select Essays in Anglo-American Legal History, vol. 1
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7.: THOMAS EDWARD SCRUTTON, ROMAN LAW INFLUENCE IN CHANCERY, CHURCH COURTS, ADMIRALTY, AND LAW MERCHANT 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 1 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1907). Vol. 1.
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ROMAN LAW INFLUENCE IN CHANCERY, CHURCH COURTS, ADMIRALTY, AND LAW MERCHANT1
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 precedents are not to be objected against us, because we are not subject to foreign laws”3 —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.”4 And in a side-note he remarks: “Nota differentiam . . . inter malum in se against the Common law, and malum prohibitum by the Civil or Canon law, whereof the judges of the Common law in these cases take no notice.”5 Sir Edward Coke indeed had not a high opinion of the Civil law. In his Proæmium to the Second Institute, he observes: “Upon the text of the Civil law there be so many glosses and interpretations, 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; “Statio bene fida peritis.”
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.”1 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,”2 which seems entirely inaccurate. He notes the differences in the laws as to guardianship, already alluded to,3 and says that the law of England is contrary to the Civil law, which “est quasi agnum lupo committere 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.4 Lord Macclesfield strongly disapproved of the English rule, deeming it “to have prevailed in barbarous times, and a cruel and barbarous presumption.”5
Coke cites very largely from Bracton, and some of the passages are those directly derived from Roman sources;6 as far as I can find, he only expressly refers to the CorpusJuris twice.1 The rule as to the half-blood, which has been attributed to a misunderstanding of the Civil law, he treats as settled.2 He states rather curiously and inaccurately that coparcenery was called in the ancient books of law “familia herciscunda,”3 which was a tenure; and compares the Common Civil and Canon laws on kinship, saying, “thus much of the Civil and Canon laws is 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. Speaking of banishment he remarks, “if the husband by act of Parliament have judgment to be exiled for a time, which some call a relegation, that is no civil death;”4 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,5 and cites Seneca as to their agreement in the punishment of rape. He uses the phraseology of peremptory and dilatory exceptions,6 though bargain and sale, (in the Institutes a consensual contract), is described as a real one.7 The respite of a pregnant woman under sentence till she is delivered, for which Bracton had cited Roman law, is restated,8 but some of Bracton’s Roman incorporations 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,9 and that to little purpose.” Coke ascribes the introduction of the rack to the Civil law,10 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.”11
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 realm.”1 The Court of Admiralty is always spoken of as “proceeding according to the Civil Law,”2 though Coke gives no reasons for such a procedure. The Court of Chivalry 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 armorum.”3 In a case as to ambassadors, the Committee of the Privy Council heard the “counsel learned in the Civil and Common laws;”4 and Coke says of one of their decisions “and this also agreeth with the Civil law.”4 As to the Ecclesiastical 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 Courts.”5 The Convocation proceed according to “legem divinam et canones strictae ecclesiae,” the ecclesiastical courts generally by “the laws of Christ.”6 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.”7
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,8 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 usurpatio possessionis, and Coke himself in one place uses the term “usurpations” in connexion with discontinuances.1 Secondly, the Roman law as to collatio bonorum,2 by which emancipated children, wishing 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 the subsequent Statute of Distributions,3 and Coke expressly says, “this is that in effect which the civilians call collatio bonorum.”4
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 building 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. . . .
Summary of Roman Law in Text-writers
We have thus dealt with the position with regard to the Roman 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 Blackstone, following Hale, recognizes the Roman origin of parts of our Law, including the passages in Bracton, and while he recognizes it, adopts 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, they 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 Acton v. Blundell (1843),1 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.” Tindal, 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 soundness of the conclusion to which we have come, if it proves to be supported by that law, the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries in Europe. The authority of one at least of the learned Roman lawyers appears decisive upon the point in favour of the defendants.”
The authority of Roman Law in the Common Law Courts cannot be put higher than this, or be better expressed than in these words.
Roman Law in the Chancery
While the judges of the Common Law Courts after the fourteenth 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.1 The Court of the Constable and Marshal also proceeded according to the Civil Law:2 “causas ex jure civili Romanorum et consuetudinibus armorum, et non ex jure municipali 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.”3 But these latter are of small importance.
The Court of Chancery originates in the position of the king as the fountain of justice.4 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 and favour were entrusted to him, first for custody, and ultimately 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 coming indirectly into his hands. From 1358, such transactions were recognized as his proper province, and the powerful and complicated 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.5 But every Chancellor from 1380 to 1488 was a clerk; until the end of Wolsey’s Chancellorship in 1530 only a few lay holders of the office are found, and up to that year 160 Ecclesiastics had held the office.1 In this clerical preponderance, the advantages of the Civil law, familiar to the Chancellors by their early training, and as the system in use in the ecclesiastical Courts, are obvious.
But the laws of Rome had a further foothold in the Chancery. There were 12, afterwards 6, Clerks de prima forma2 and Masters of the Chancery, who “are assistants in the Court to show what is the Equity of the Civil law, and what is Conscience.”3 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 necessary. 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, jus gentium, and the laws of other nations,” seeing that 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.”4 And though the Chancellors became laymen and decided without reference to the Masters, their system was still largely clerical and Roman. 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,5 writing in 1678 says: “Judicia apud Anglos, in Curiis quae non ex mero jure Anglicano, sed ex aequo et bono exercentur, cum jure civili Romanorum plurimum conveniunt; quarum suprema Cancellaria prima est. . . . Cancellarii autem feres omnes fuerunt Episcopi aut Clerici, plerumque legum Romanarum periti usque ad Henricum VIII. quo D.Richius primus juris Municipalis Apprenticius Cancellarii munus obtinuit: post quem etiam alios episcopos juris Romani peritos, sed plerosque juris municipalis consultos, reges nostri ad hoc munus admoverunt. In hac etiam curia assessores seu Magistri plerumque fuerunt juris Civiles Doctores, et Clericos hujus Curiae antiquitus habuisse eximiam juris civilis scientiam, clarissimum est ex libro Registri Brevium Originalium. . . . In Curia etiam . . . fere omnes fuerunt antiquitus Episcopi Praelative, in legibus Romanis vel utroque 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, nullius gentis leges tam accommodatae sunt, quam jus Civile Romanorum, quod amplissimas continet regulas de Contractibus, Testamentis, Delictis, Judiciis et omnibus humanis 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:”1 and the “Doctor and Student” of the reign of Henry VIII., reads: “Conscience never resisteth the law nor addeth to it, but only when the law is directly in itself against the Law of God or of reason . . . in other things Aequitas sequitur legem.”2
This Equitable Jurisdiction has been compared with the Jurisdiction of the Praetors, both being used as a means of alleviating the rigour of the older law.3 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 inadequacies 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 writs. 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 therefore 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 the time nor the knowledge to enable me to give at all an adequate account of this Roman element, but the question has been discussed by Spence,1 and I avail myself of his results. Sir H. Maine,2 without going at length into the subject, thinks that the earlier Chancery judges followed the Canon law, a later generation the Civil law, and that the Chancellors of the eighteenth century availed themselves largely of the Romano-Dutch Treatises on ethics and jurisprudence, compiled by the publicists of the Low Countries.
One of the most important branches of Equitable Jurisdiction related to Uses and Trusts.3Fideicommissa 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 fideicommissa.
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 Roman fideicommissa. Both systems were thus introduced to evade the strict law. The jurisdiction of Chancery over Uses dates from the reign of Henry V.; 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.1 We can only say that probably the general conception of Uses and Trusts and the assumption of Jurisdiction over them were assisted by the acquaintance of the Clerical Chancellors with the Roman fideicommissa.
The system of Mortgages2 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.”3 The strictness of the Common law viewed the Mortgage 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 redemption” 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 themselves, 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 Constantine, which expressly rendered such stipulations void.1 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 Chancellors have availed themselves freely of Roman rules.2 The 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. Beach3 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,4 where the question was whether two legacies to the same person in a will and codicil were cumulative or substitutive, 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.1 Remains of the Roman doctrine of beneficium 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.2 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.”3 And the same is true of charitable trusts.4 But these rules were sometimes applied with more zeal than discretion, as when Sir R. Arden, M. R., afterwards Lord Alvanley, entirely misunderstood the meaning of exceptio deli.5 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”6 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 Infants7 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 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 law.8 The Chancery jurisdiction over idiots and lunatics is also similar to that of the Praetor and may very possibly have been derived from it.9
The English Law of Partnership is derived from three sources, the Common Law, the Lex Mercatoria, and the Roman Law.10 Of the Lex Mercatoria we need only say here that it appears in itself to have been at least partly based on the Roman law.1 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.2 Both laws recognize the difference between a partnership and a community of interest,3 and provide that no new partner can be introduced without the concurrence of the original partners.4 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;5 and that all partners must contribute something, whether property or skill, to the common stock.6 Both require community in profits among the partners and, to a more limited extent, community in losses.7 In the absence of express agreement both laws require an equal division of profits.8 The Common law formerly went beyond the Roman law in making persons who share the profits of a trade liable to operation of law, to third parties as partners,9 but this rule was overthrown in Cox v. Hickman.10 Both laws recognize a division into universal, general, and special partnerships, though the chief Common law division is into public and private partnerships.11 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.12 No particular forms for the constitution of a partnership were required by either law.13 By the Roman law, the mere partnership relation conferred less extensive powers of disposition of the partnership property than are given by the Common law.14 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 administration over the whole of the partnership affairs.1 Both laws admit a discharge of a debt to or by one partner to be good for or against the whole firm.2 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.3 Both laws make partners liable to each other for negligence or fraud, and require a withdrawal from the partnership to be in good faith.4 Both laws consider a partnership for no certain period as dissoluble at the will of any partner;5 but the Roman law went further than the Common law in requiring that the dissolution should not take place at an unseasonable time.6 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.7 By both laws, the assignment of his interest by one partner, contrary to the will of the others, dissolves the partnership.8 Both laws dissolve the partnership by death;9 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.10 Whilst English partners are liable to third parties in solido, by the Roman law they were only liable pro 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 Partnership.11
Mr. Spence and Lord Justice Fry12 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 potestpraecise cogi ad factum.”1 Spence considers the jurisdiction a “clerical invention” and Fry doubts whether to attribute it to the Canon law, which said “Studiose agendum est ut ea quae promittuntur opere compleantur,”2 or to “the plain principles of morality and common sense of the Judges who founded 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 “Conscience,”3 which is so involved in the decisions of the Court, though itself of clerical invention, is like the Praetorian notion of bona fides; but as to mala fides the English law has departed from the Roman principle, lata culpa plane dolo comparabitur, by holding that, “Gross negligence may be evidence of mala fides, but it is not the same thing.”4 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.5 Both Praetor and Chancellor had a power to relieve against Accident, grounded in the Roman law on naturalis justitia.6 So the jurisdiction to relieve against Mistake, and the distinction between mistake of law, and of fact, both in the Common law and Chancery, appear of Roman origin; though under Edward IV. the Roman maxim, “nec stultis solere succurri sed errantibus,” was met by a clerical Chancellor with “Deus est procurator fatuorum,”7 and the “fool” was relieved. The injunctions of the Chancery are comparable to Praetorian Interdicts;8 its jurisdiction in discovery to the actio ad exhibendum, and possibly to the early and obsolete actio interrogatoria.9 The procedure for perpetuating evidence by examining witnesses de bene esse had also a parallel in Roman procedure.10
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,1 “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.”2
Roman Law in the Ecclesiastical Courts
Of the Ecclesiastical Courts, Hale says:3 “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 may be treated of under two heads: (1) that relating solely to the internal life and worship of the Church of England; (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 episcopales leges rectum Deo et Episcopo suo faciat,”1and the procedure 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:2 I. Statutes, and enactments made in pursuance of, or ratified by, statutes. II. Certain portions of the Canon law, and certain constitutions and canons issued by competent authorities. III. The Ecclesiastical Common law; ecclesiastical usages, not embodied in writing, except in some judicial decisions, 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,3 and in the general usages of the church, and are recognized in the Courts of this realm, are binding in England.4 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 VIII., and not sanctioned by Parliament, are binding on the laity: nor are canons binding made before that reign, unless adopted by the English church.5
The position of Ecclesiastical law in England has been well described by Tindal, L. C. J. as follows;6 “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 kingdom have from the earliest times been governed and regulated, is not the general Canon law of Europe, imported as a body of law into this kingdom, and governing those courts proprio vigore, but instead thereof an Ecclesiastical law, of which the general Canon law is no doubt the basis, but which has been modified and altered from time to time by the ecclesiastical constitutions of our archbishops and bishops, and by the legislation of the realm, and which has been known from early times by the distinguishing title of the King’s Ecclesiastical 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 Nicholl:1 “Indeed the whole Canon law rests for its authority in this country upon received usage; it is not binding here proprio vigore.” The Canon law of itself is not therefore part of English law [This statement, however, should be compared with the views of Dr. Stubbs, in Essay No. 8, post, and of Professor Maitland, in his volume on the Canon Law, there cited.—Eds.], nor does the Civil law appear to enter into this branch of the Ecclesiastical Jurisdiction.
The Ecclesiastical Courts had jurisdiction affecting 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.
The Judicature Act, 1873,2 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 1857,3 by which all causes and matters matrimonial, which should be pending in any Ecclesiastical Court 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.1 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 according to a mixture of both, corrected and new modelled by their own particular usages, and the interposition of the courts of common law.”2 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.
The Testamentary jurisdiction was also in the hands of clerical judges.3 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 1875.4 This Court was created by the Act of 1857,5 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.6 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 “probatio solemnis per testes.”1 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. Lyndwood2 expressly says ‘cujus regis temporibus hoc ordinatum sit non reperio,” but the jurisdiction certainly existed at the time of Glanvil,3 and the absence of evidence appears to show that, when assumed, it was not opposed by the common lawyers. As to the other branch of testamentary 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.4 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.5 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.6 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.7 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 provision8 “Si aliquis liber homo intestatus decessit, catalla sua per manus propinquorum et amicorum suorum per visum ecclesiae distribuantur, salvis cuicunque debitis, quae defunctus ei debebat.” 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. He 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,1 “Si aliquis liber homo intestatus decesserit, bona sua per manum proximorum parentum suorum et amicorum, et per visum ecclesiae, distribuantur;”2 unless this was a concession to the church by the barons to secure its coöperation 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, dominus rex et caeteri domini feudorum bona defuncti sibi applicantes non permittunt de ipsis debita solvi, nec residuum in usus liberorum et priximorum suorum et alios pios usus per loci ordinarium cujus interest, aliqua converti;”3 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 rationabiles partes of the widow and children.4 A statute of 13575 commanded the Ordinaries to appoint “de plus proscheins et plus amis de mort intestat, pur administrer ses biens . . . et recoverer come executoures les dettes dues au dit mort . . . et soient accountables aux ordinairs si avant come executioures sont en cas de testament.” The Ordinary thus appointed one of the next of kin as administrator to distribute 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.1 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.2 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 the law.3
We have thus traced, as far as the lack of evidence allows, the process by which the Clerical Courts acquired the jurisdiction 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,4 “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 King’s courts, and its influence on the works of Glanvil and Bracton have already been referred to.
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 connected 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,1 it is recorded that “the pleas yoven to the law maryne, 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 Customs 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 commerce and civilization.2 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. The Consolato del Mare represents the customs observed at Barcelona; 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:3 “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 memorandum of 1339, entitled “Fasciculus de Superioritate Maris,”4 which recites that the Justiciaries of the King were to be consulted as to the proper mode of revising and continuing 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 the Kings 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, were promulgated in England by Richard.1 This account receives confirmation from the contents of the famous “Black Book of the Admiralty,” which, having disappeared for many years, was at length found 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:2 “when one is made Admirall,” he must first ordain deputies, “some of the most loyall wise and discreet persons in the Maritime law (la loy maryne et anciens coustumes de la mer),” (2) articles of war for the King’s navy, and (3) an account of the Admiral’s jurisdiction in 34 articles, of which the first 24 are identical with the most ancient version of the Rolls of Oleron, and the rest are peculiar to the English Admiralty, and probably the result of the conference of 1339. Another article in this part:3 “Item any contract made between merchant and merchant beyond the sea, or within the flood marke, shall be tried before the Admiral, and nowhere else by the ordinance of the said King Edward I. and his lords,” appears to furnish the origin of the Admiral’s jurisdiction in civil suits, which probably were more often settled informally by the merchants in the seaport towns “selon la ley merchant.”
The Admiral took his oath to make summary and full process “selon la ley marine et anciennes coustumes de la mer.”4 A subsequent treatise on procedure, entitled the Ordo Judiciorum, is Roman in character and terminology, and bears traces of being written by a civilian of the School of Bologna.1 Indeed, as many of the judges in the Court of Admiralty, the deputies of the Lord High Admiral, were clerics, the procedure at any rate, if not also the rules of the Court, was likely to become Roman in character. The inquiry of 1339, already alluded to, was entrusted to three clerics, the Official of the Court of Canterbury, the Dean of St. Maria in Arcubus, and a Canon of St. Paul’s.2 By an Act of 1403, “les dites admiralles usent leur leys seulement par la ley d’Oleron et ancienne ley de la mer, et par la ley d’Angleterre, et ne mye par custume, no par nule autre manere,’3 while in 1406 under the Admiralties of the Beauforts, the jurisdiction of the Admiralty Court was much increased.4 It is not therefore wonderful that under Edward VI. the answer was made to a French envoy5 “that the English Ordinances for Marine affairs were no others than the Civil Laws, and certain ancient additions of the realm.” The Black Book itself has an express reference to the Roman Law:6 “It is ordained and established for a custom of the sea that when it happens that they make jettison from a ship, it is well written at Rome that all the merchandise contained in the ship ought to contribute pound per pound,”7 and many other clauses are indirectly 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; (b) as introduced by subsequent clerical judges, mainly in procedure; (2) in subsequent written and customary rules, adopted in view of the developments of commerce. This view is borne out by the accounts which text writers give of the nature of the Law.
Thus Sergeant Callis says (in 1622) “I acknowledge that the king ruleth on the sea by the Laws Imperial, as by the Roll of Oleron and other; but that is only in the case of shipping and for merchants and mariners;”1 on which Zouch remarks:2 “I suppose no man will deny that the Civil and Imperial laws, the Roll of Oleron and others . . . are of force in the Admiralty of England,” and again,3 “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 Ley 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 beyond the sea have usually clauses relating to Civil law and to the Law of the Sea.”4
This work of Zouch’s was written in reassertion of the privileges of the Court of Admiralty in opposition to the encroachments of the Courts of Common law,5 who secured for their jurisdiction cases which properly fell within the cognizance 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:6 “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 said7 “Juris civilis usus ab antiquis saeculis etiam nunc retinetur in foro maritimo, seu Curia Admiralitatis,” and Duck:8 “Jus autem dicit Admiralitas ex Jure Civili Romanorum, et ejus Curia consuetudinibus.”9 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.”1 . . . “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”2 . . . 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 the law of England, not the Land law, but the Sea law of England.”3
Hale in 1676, with his usual strong feeling against the Civil law, sums this up thus;4 “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 such matters as are proper for its cognizance. This 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 far 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 enactments; and both of these propositions are recognized by previous writers.
Blackstone says of the5 “maritime Courts before the Lord High Admiral,” that “their proceedings are according to the method of the Civil law, like those of the Ecclesiastical Courts.” . . . 1 “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 determination 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, Blackstone alludes to the disuse of its old procedure:2 —“but as this Court proceeded without jury in a manner much conformed to the Civil law, the exercise of a criminal jurisdiction there was contrary to the genius of the law of England;” and as, owing to the requirements of two witnesses, gross offenders might escape, therefore “marine felonies are now tried by commissioners 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 (Contributio), Bottomry (pecunia trajectitia vel nauticum foenus), and probably charter parties, all bear traces of Roman origin.
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 “propter privilegium et favorem mercatorum;”1 and a summons with less than 15 days’ notice may be adjudged lawful, “propter personas qui celerem debent habere justitiam, sicut sunt mercatores, quibus exhibetur justitia pepoudrous.”2 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.”3 The Court of Pipowders in 1478 was a Court that sat from hour to hour administering justice to dealers in time of fair;4 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.5
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 commerce are permanent and constant.”6 Coke states that7 “the merchant strangers have a speedy recovery for their debts and other duties, per legem mercatoriam, which is a part of the Common Law.” The Court of the Mayor of the Staple, he says,8 “is guided by the Law Merchant . . . merchant 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”1 (because 12 men of a neighbouring county cannot be obtained).
Zouch goes into the matter more at length.2 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:3 “For the advantage of those who use navigation and trade by the sea, the Law Merchant and laws of the Sea4 admit of divers things not agreeable to the Common law of the realm,” and he cites instances and continues: “It is 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 where 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 are 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;1 “for as the transactions of foreign 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 commercial 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 to.”2
Now this Law Merchant, thus recognized by the laws of England, drew part of its matter from the Civil law. Being “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 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 sunt.”3 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.1
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,2 during the 32 years in which he was Lord Chief Justice of the King’s Bench,3 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:4 “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,5 “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 England; deriving also similar assistance from the law of nations, and the modern Continental codes.” The nature of his work was well described by Buller, J. in his celebrated judgment in Lickbarrow v. Mason,6 where he says concerning 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 stretch 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:1 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. McLachlan even assigns a Roman origin to the name, deriving it from actio ex aversione,2 though this origin is challenged by Mr. Lowndes and seems rather fanciful. The Rhodian law:3 “Si levandae navis gratia, jactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est,” really contains the whole principle of general average, though it restricts the example to Jettison. The Corpus Juris expanded it to cover other cases, such as cutting away the mast, “removendi communis 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 1560:1 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.2 Lawrence, J. defines a general average loss as “all loss which arises in consequence of extraordinary sacrifices made, or expenses incurred, for the preservation of the ship and cargo,” and this “must be borne proportionably by all who are interested.”3 Since then the law on the subject, probably founded on the Rhodian and Roman law, and expanded by mercantile usage in all countries, is still undergoing development in the Courts;4 though in the last reported case, the Master of the Rolls rejected the idea that the law of England should be brought 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.”5 But the law of England on these points was originally the Law Merchant, the same in all commercial countries; and the agreement of all foreign 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 coherence to the Law Merchant, it does not seem that that law can be traced to Roman sources. Its Roman origin has indeed been suggested; Zouch, for example, says:6 “Policies of Insurance 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 1560), it probably originated about 1200 ad with the Italians, and was introduced into England by Lombard merchants.1 Under Queen Elizabeth a special Court was constituted 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 the Civil Law, two common lawyers, and eight merchants.2 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 connected with the Civil law. Apart from this, there is no trace of Roman influence in the English law of Insurance.
The Roman pecunia trajectitia3 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.4 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,5 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 Pecunia 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 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 Maritima.”6 The “darkness of an earlier age”7 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:1 “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:2 “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;3 “Si quis navem conduxerit, instrumenta consignata sunto,” 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;4 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 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. Wallace,1 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:2 “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.”3 In the Hamburg4 (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 appeal5 “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 1865,6 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:7 “We can understand this term in the sense of the general maritime law as administered in English Courts, that being in truth nothing more than English law, 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.”1 This series of cases came before the Court of Appeal in 1882, in a case2 which Sir R. Phillimore had decided by “the general maritime law as administered in England;”3 and in reversing his decision Brett, L. J. said:4 “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 England 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 whenever 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. . . .
This inadequate sketch of the influence of the Roman Law on the Law of England has now reached its close. We 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 are unable to support their case by any satisfactory evidence. The most plausible of these theories is that which refers manorial institutions to a mingled Roman and South German origin, and even this at present lacks any certain foundation. The introduction 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 influence 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 Common Law; and we have referred though briefly to some of the points in which the Common Law itself has been affected by the Law of Rome.1
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.
[1 ]These extracts are taken from a treatise on “The Influence of the Roman Law on the Law of England,” Part II, cc. VI, X, XI, XII, XIII, XIV, and Conclusion (1885, Cambridge, University Press, being the Yorke Prize Essay for 1884).
[2 ]B. A. Trinity College (Cambridge) 1881; M. A. London University; four times Yorke Prize Essayist; LL. B. Cambridge; Barrister of the Middle Temple 1882; at one time Professor of Constitutional Law and History in University College, London.
[3 ]Coke, ii. 98.
[4 ]iii. 100.
[5 ]iii. 153.
[1 ]i. 122, b, 123.
[2 ]i. 11, a.
[3 ]i. 88, b. Blackstone, i. 461.
[4 ]Coke, ii. 489.
[5 ]2 P. Wms. 264, 9 Mod. 142. Hargreaves’ notes, 63.
[6 ]e.g. Bracton’s Roman def. of actio (Coke, ii. 39, Br. 98, b); the division of actions into real, personal, mixed (C. ii. 21, 286; Br. f. 101, b); on monsters (C. i. 7, b; Br. f. 5); de ventro inspiciendo (C. i. 8, b; Br. ff. 69-71); on treasure trove (C. iii. 132; Br. f. 10, 119, b); also cf. C. i. 36, a. with Br. ff. 33, b, 34.
[1 ]C. ii. 658: Dig. 48, 19, 18, where he misquotes meretur for patitur: the quotation is characteristically used to resist a claim of jurisdiction by the Ecclesiastical Courts. Coke also says of the Regiam Majestatem, “so called because it beginneth as Justinian’s Institutes do, with these words,” which is incorrect, as the words are Imperatoriam Majestatem.
[2 ]C. i. 14, a, 191, a. note.
[3 ]C. i. 164, b.
[4 ]C. i. 133, a.
[5 ]C. ii. 132.
[6 ]C. ii. 426.
[7 ]C. ii. 672.
[8 ]C. iii. 17.
[9 ]Br. f. 63, b.
[10 ]C. iii. 35, cf. Step. Hist. C. L. i. 222.
[11 ]Cf. also, C. i. 41, a; Br. f. 311. C. i. 47, b. on traditio. C. i. 55, a, on possessio precaria. C. ii. 198, 441, on liability of heirs. C. ii. 591, on ultimum supplicium, cf. Dig. 48, 19. C. ii. 391; melior est conditio possidentis. C. ii. 360, 573, et Br. passim “nihil est tam conveniens naturali aequitati unumquodque dissolvi eo ligamine, quo ligatum est.” C. iii. 2, Crimen laesae majestatis. C. iii. 168, Crimen falsi. Coke also cites Bracton’s definition of theft.
[1 ]C. iv. 14.
[2 ]C. iv. 134: Duck, ii. 8, 3, 24.
[3 ]C. iv. 125; Hargreaves’ note to i. 74, a, b. Duck, ii. 8, 3, 12-22. “Causas ex Jure Civili Romanorum et consuetudinibus armorum et non ex Jure Municipali Anglorum esse dijudicandas.”
[4 ]C. iv. 153.
[5 ]C. iv. 321, 322.
[6 ]C. ii. 487: cf. Duck, ii. 8, 3, 26, et seq. De his omnibus in hoc foro jus dicitur ex Jure Civili, cui porro accessit Jus Canonicum. Ex quibus omnibus constituitur Lex quam nostrates appellant Ecclesiasticam . . . Lex Civile in hoc foro Lex terrae appellatur.
[7 ]C. ii. 647, 652.
[8 ]C. i. 325, a; i. 272.
[1 ]C. ii. 272.
[2 ]Dig. 37, 6. Cod. 6, 20. Hunter, R. L. p. 663.
[3 ]22 and 23 Car. II. c. 10 § 5.
[4 ]C. i. 177, a.
[1 ]12 M. and W. 324, 353; see Warren’s Law Studies, 732, note, for an account of the inner history of the case by one of the counsel engaged.
[1 ]Sub. C. xii. Eccl. Courts; C. xiii. Admiralty Courts.
[2 ]Duck, ii. 8, 3, 12, 22.
[3 ]Duck, ii. 8, 3, 30.
[4 ]Stubbs, i. 603, 604 note. ii. 268.
[5 ]Spence, i. 340. R. Parning, 1341. Thorpe, Knivet, 1372.
[1 ]Spence, i. 340-7, 356 note.
[2 ]Apparently a term of Roman origin. (Hargreaves, Law Tracts (1787), p. 296.) The conferring of the office by placing a cap on the head is compared by the author of this Tract, (probably a master in Chancery, writing about 1600), to the conferring of the freedom of a Roman city by putting on a cap, or to “capping” a doctor at the Universities (p. 294). But the custom is not traced to these sources, as Spence says, i. 360.
[3 ]Sir T. Smith, Commonwealth of England, ed. 1663, p. 121. Spence, i. 360, note.
[4 ]Hargreaves, pp. 309, 313.
[5 ]ii. 8, 3; 10-11.
[1 ]Cited Spence, i. 409 note.
[2 ]Probably derived from “Jus praetorium jus civile subsequitur.” Spence i. 409.
[3 ]Maine, Ancient Law, p. 68.
[1 ]Equitable Jurisdiction of Court of Chancery, Vol. i.
[2 ]Ancient Law, p. 44, 45.
[3 ]Spence, i. 435-517.
[1 ]Spence, i. 460 note; Butler’s note to Co. Lit. i. 290 b.
[2 ]Butler’s notes to Co. Lit. i. 205 a., 290 b. Spence, i. 601. Coote on Mortgages, 4th edit. pp. 1, 14. Warren, Law Studies, p. 521.
[3 ]Coote, p. 1.
[1 ]Cod. 8, 34, 3.
[2 ]Spence, i. 518, 523, 566.
[3 ]5 Mad. 351, 357, 360.
[4 ]Cited in Ridges v. Morrison, 1 Brown. Ch. C. 389.
[1 ]Knight v. Knight, 3 Beav. 161, 172.
[2 ]Spence, i. 585, citing Tothill, 183: 15 Car. I., which appears a wrong reference.
[3 ]White v. White, 1 Br. Ch. C. 15.
[4 ]Spence, i. 587.
[5 ]Kennett v. Abbott (1799), 4 Ves. 808.
[6 ]Spence, i. 523 note.
[7 ]Spence, i. 606-615.
[8 ]V. supra, p. 130.
[9 ]Spence, i. 618-620.
[10 ]Collier on Partnership, Lond. 1840, p. 1.
[1 ]Spence, i. 665.
[2 ]Story on Partnership, Boston, 1881, 7th ed.
[3 ]Story, §§ 3, 4.
[4 ]Ibid. § 5.
[5 ]§ 6.
[6 ]§ 15.
[7 ]§ 20.
[8 ]§§ 24, 25.
[9 ]§ 37.
[10 ]18 C. B. 617. 8 H. L. C. 268.
[11 ]Story §§ 72-76.
[12 ]Story §§ 85, 196.
[13 ]§ 86.
[14 ]§ 95.
[1 ]§ 103.
[2 ]§ 116.
[3 ]§ 125: noted by Blackstone, i. 484.
[4 ]§§ 135, 170, 176.
[5 ]§§ 268, 269.
[6 ]§§ 275, 276.
[7 ]§§ 288, 292.
[8 ]§ 307.
[9 ]§ 317.
[10 ]§ 352.
[11 ]Spence, i. 665.
[12 ]Fry on Specific Performance, 2nd edit. Lond. 1881, pp. 3-8. Spence, i. 645.
[1 ]Pothier, Des obligations, i. 2, 2, 2.
[2 ]Decret. Greg. IX. i. 35, 3.
[3 ]Spence, i. 411. cf. aequitas sequitur legem.
[4 ]Ld. Denman in Goodman v. Harvey, 4 Ad. & E. 876. See also 1 Hare, 71. Spence, i. 425 note.
[5 ]Spence, i. 622.
[6 ]Ibid. i. 628. Dig. 27, 1, 13, 7.
[7 ]Dig. 22, 6, 9. Cary’s Rep. (ed. 1650), p. 17. Spence, i. 632, 637. Both editions of Cary that I have seen have the odd reading est procurator futurus.
[8 ]Spence, i. 669.
[9 ]Spence, i. 228, 678.
[10 ]Dig. ix. 2, 40. Spence, i. 681.
[1 ]Bl. iii. 436.
[2 ]Bl. i. 20.
[3 ]Hist. C. L. 28.
[1 ]Stubbs, S. C. p. 85.
[2 ]Brice, Public Worship, London, 1875, pp. 1-10. Phillimore On Ecclesiastical Law, London, 1873: i. pp. 12-19. Coote, Ecclesiastical Practice, London, 1847.
[3 ]Collected in Lyndwood’s Provinciale seu Constitutiones Angliae. Paris, 1505; Oxford, 1679.
[4 ]Martin v. Mackonochie, L. R. 2 Adm. and Eccl. 116, 153.
[5 ]Bishop of Exeter v. Marshall, L. R. 3 H. L. 17, 47, 55.
[6 ]R. v. Millis (1844), 10 Cl. and Fin. 534, 671, 678, 680.
[1 ]3 Phill. Rep. 67, 78-79.
[2 ]36 and 37 Vic. c. 66 §§ 34, 70, 74. 38 and 39 Vic. c. 77 §§ 18, 21.
[3 ]20 and 21 Vic. c. 85 § 4, 6, 22.
[1 ]Shelford On Marriage. London, 1841: pp. 17-21.
[2 ]Blackstone, iii. 100.
[3 ]Coote’s Probate Practice, 8th edit. London, 1878.
[4 ]38 and 39 Vic. c. 77 §§ 18, 21. 36 and 37 Vic. c. 66 §§ 23.
[5 ]20 and 21 Vic. c. 77 § 3.
[6 ]Ibid. § 29, 30.
[1 ]Bl. Com. iii. 95. Coote’s Eccl. Practice, pp. 22-86.
[2 ]Lyndwood, Provinciale, 3, 13, f. 176 (ed. 1679).
[3 ]Gl. vii. 8.
[4 ]Coote, p. 22.
[5 ]Gl. vii. 6, 7.
[6 ]Coote, p. 27. Stubbs, S. C. p. 114.
[7 ]Ibid. p. 31.
[8 ]§ 27. Stubbs, S. C. p. 292.
[1 ]Article 16. Ibid. p. 283.
[2 ]Note, that the clause as to payment of just debts is omitted.
[3 ]Gravamina and Articles of 1257, § 25. Coote, p. 39.
[4 ]Coote, pp. 44-47, (ad 1285).
[5 ]31 Edw. III. c. 11. Coote, p. 58.
[1 ]Coote, p. 81.
[2 ]Coote, p. 55.
[3 ]22 and 23 Ch. II. c. 10, made perpetual by 1 Jac. II. c. 17 § 18.
[4 ]Hale, Common Law, p. 28.
[1 ]Cited from a MS of 1289, in Twiss, Black Book of Admiralty, ii. 23.
[2 ]Pardessus, Collection des Lois Maritimes, Paris, 1828, cited in Twiss, iv. Pref. 129. Godolphin’s View of the Admiral’s Jurisdiction, London, 1661, p. 13. Zouch, Jurisdiction of the Admiralty of England asserted by R. Zouch, D. C. L., late Judge of the Admiralty Court, p. 88: (written before 1663, published 1686). Malynes’ Lex Mercatoria, p. 87, 1st edit. 1622; 3rd edit. 1685.
[3 ]Cited in Zouch, p. 88. The original Spanish version (Twiss, iv.), has not the clause.
[4 ]On a roll of 12 Edw. III.; cited in Twiss, i. Pref. pp. 32, 57.
[1 ]Twiss, i. Pref. 58.
[2 ]Twiss, i. 3.
[3 ]Twiss, i. 69.
[4 ]Twiss, i. 169.
[1 ]Twiss, i. 178. The title is Sir T. Twiss’ invention.
[2 ]Twiss, ii. Pref. 42.
[3 ]5 Hen. IV. c. 7; 2 Hen. V. c. 6.
[4 ]Spelman, Glossarium, sub voce Admirallus, ed. 1687, p. 16.
[5 ]Zouch, 89.
[6 ]Twiss, i. 127.
[7 ]Lex Rhodia de jactu, Dig. 14, 2, 1. Twiss has a wrong reference.
[1 ]Reading on the Statute of Sewers. 1st ed. 1622. Ed. 1686, p. 42.
[2 ]Zouch, p. 95.
[3 ]Ibid. p. 89.
[4 ]Ibid. p. 118.
[5 ]Coke, iv. 134; see also i. f. 11 b. “Civil Law in certain cases, not only in Courts Ecclesiastical, but in the Admiralty, in which is observed la ley Olyroun, 5 Rich. I.”
[6 ]p. 103.
[7 ]ad Fletam, viii.
[8 ](1676) ii. 8, 3, 24.
[9 ]Godolphin, p. 40.
[1 ]Godolphin, Pref.
[2 ]Ibid, p. 123.
[3 ]Ibid, p. 127.
[4 ]Hale, Common Law, p. 40.
[5 ]Bl. iv. 68.
[1 ]Bl. iii. 108.
[2 ]Bl. iv. 268.
[1 ]Br. f. 444.
[2 ]Br. f. 334: so called because justice was done while the dust was still on the foot, or before it could be shaken off.
[3 ]Black Book of Admiralty, ed. Twiss. Rolls Series, ii. 23.
[4 ]17 Edw. IV. c. 2.
[5 ]Coke, iv. 272.
[6 ]Pub. 1622, 3rd Edit. 1686; pp. 2, 3.
[7 ]Coke, ii. 58; see i. 11, b.
[8 ]Coke, iv. 237, 238.
[1 ]De Laudibus, p. 74, ed. 1616: Selden on Fortescue, ibid.
[2 ]Zouch, p. 89. See Godolphin, p. 128.
[3 ]p. 128.
[4 ]i.e. the written laws of Oleron, etc.
[1 ]Bl. i. 273.
[2 ]Bl. iv. 67.
[3 ]ii. 8, 3, 25.
[1 ]p. 69.
[2 ]Park on Insurance, Lond. 1787, 7th edit., Int. pp. 43-48. Lowndes on Insurance, Int. p. 27; Campbell’s Lives, Vol. ii.
[4 ]Cited in Campbell, ii. 437.
[5 ]Ibid. p. 438, 439.
[6 ]1787, 2 T. R. 63, 73; see also Lowndes on General Average, Pref. 3rd edit. p. 45.
[1 ]Moses v. McFerlane, 2 Burr. 1005. 1 W. Bl. 219; see this set out in Warren’s Law Studies, pp. 1353, 1354 from Evans’ translation of Pothier des Obligations, ii. 379, 380.
[2 ]McLachlan’s Arnould on Insurance, 5th ed., pp. 882-885. Lowndes, General Average, 3rd edit., pp. 270-272.
[3 ]Dig. 14, 2, 1. See Lowndes, Int. pp. 45, 46. Ibid. p. 256.
[1 ]Lowndes, 275.
[2 ]Birkley v. Presgrave, 1 East, 228. Lowndes, pp. 1, 276; Int. p. 48.
[3 ]cf. the Ordonnance; les despenses extraordinaires faites, et le dommage souffert, pour le bien et le salut commun des marchandises et du vaisseau sont avaries grosses et communes.
[4 ]cf. Atwood v. Sellar, 5 Q. B. D. 286, Wright v. Marwood, 7 Q. B. D. 62, Svendsen v. Wallace, 11 Q. B. D. 616, 13 Q. B. D. 69. 10 App. C. 404.
[5 ]13 Q. B. D. 73.
[6 ]p. 102.
[1 ]Park on Insurance, Int. pp. 10-19. Lowndes on Insurance, Lond. 1881, Int. pp. 19-21.
[2 ]Park, Int. p. 40. 43 Eliz. c. 12.
[3 ]Dig. 22, 2, 1-5.
[4 ]Cod. 4, 32, 26.
[5 ]McLachlan, Merchant Shipping, 3rd ed. pp. 51-65.
[6 ]p. 122.
[7 ]McLachlan, p. 65.
[1 ]Zodiac (1825). 1 Haggard, Adm. 325.
[2 ]Justin v. Ballam (1702). 1 Salk. 34. 2 Lord Raymond, 805.
[3 ]p. 102.
[4 ]pp. 98, 99.
[1 ]13 Q. B. D. 69.
[2 ]The Gratitudine, 3 W. Rob. 240, 259.
[3 ]Ibid. p. 271.
[4 ]Br. and Lush, 259.
[5 ]Ibid. 272.
[6 ]Lloyd v. Guibert, L. R. 1 Q. B. 115, 119.
[7 ]L. R. 1 Q. B. p. 123.
[1 ]L. R. 1 Q. B. p. 125.
[2 ]Gaetano e. Maria, L. R. 7 P. D. 1, 137.
[3 ]Ibid. p. 4.
[4 ]Ibid. p. 143.
[1 ][Compare the Essays in Volume II under Ecclesiastical Courts, Equity, and Commercial Law; and Maitland’s Bracton and Azo (Selden Society).—Eds.]