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CHAPTER 1: THE CIVIL LAW OF ROME - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE CIVIL LAW OF ROME
THE BARBARIANS AND ROMAN LAW
For twenty-five centuries Roman law has had a continuous history of which only a relatively small portion lay in the middle ages or influenced English legal development. Into this complicated story we cannot enter. As Vinogradoff said, “The story I am about to tell is, in a sense, a ghost story. It treats of a second life of Roman law after the demise of the body in which it first saw the light.”1 At the moment when it begins to concern us the classical Roman law had already entered upon its decline. With the fall of the Roman Empire the once universal system of Roman law depended for its continued existence upon custom, and it was largely in the form of custom that it continued to be applied during the middle ages. With the establishment of the new Teutonic kingdoms in the fifth century this aspect of Roman law was conspicuous; the problems raised by the clash of races were solved by a system of personal laws whereby each individual was subject to the law peculiar to his race—a system which still obtains in several parts of the world where numerous different races and religions are in close contact, as in Palestine. The barbarian kings, therefore, were put to the trouble of finding out the principal rules of this personal Roman law to which many of their subjects were entitled, and a number of texts from about the year 500 embody the results. Farther east, Roman law retained to some extent its imperial character and in 438 portions of it were codified by the Emperor Theodosius. In the west, however, Roman law suffered the common fate of personal laws and rapidly degenerated in quality and diminished in quantity—at least from the point of view of a classicist. It was inevitable that there should be cross influences; Roman law was modified as a result of neighbouring customs, while on the other hand originally Germanic customs underwent a certain degree of Romanisation.1
ROMAN LAW IN THE MIDDLE AGES
All through the middle ages, therefore, there were two aspects of Roman law. First there was that of the pure academic doctrine which was from time to time revived through the learning of scholars; but in contrast with it there was the customary Roman law which had grown up in numberless communities all over Europe, and which had been modified in infinite variety according to local needs. Between these two aspects of Roman law there was not infrequently open conflict, for scholars naturally wished to restore the orthodox doctrine of classical times, and were apt to be impatient when less learned lawyers persisted in retaining the practical working-day law of their local communities. By this time there was no practical question of academic Roman law being imperially enforced—the Holy Roman Empire itself bore little resemblance to the Roman Empire of the classical Roman law. The struggle between these two views of Roman law took place principally in the universities, and may be roughly described as an attempt made from time to time by certain law schools to influence practice. It may very well be that the great mediaeval Romanists took too academical a view of the situation, and some of their attempts to restore classical law were ill-advised. Nevertheless it was they who accomplished the great feat of the middle ages in preserving classical law for many centuries during which it remained of ideal rather than practical value, until such time as society had sufficiently developed in thought and economic structure to be able to appreciate and make full and wise use of its ancient inheritance; while the more practical school of Bartolus and his followers had already made of it a body of living, growing law. It was the Romanists who maintained through the middle ages a scientific attitude towards law, and even in those cases where we find a scientific approach to bodies of non-Roman law it is, in fact, usually due to the example of the Romanists. Our own Glanvill and Bracton are eminent examples.
THE RECOVERY OF JUSTINIAN’S BOOKS
Until the close of the eleventh century, Western Europe had relied principally upon the Theodosian code and abridgments of it for an official text of Roman law, in the light of which it developed its various local Roman customs. Early in the twelfth century the great Corpus Juris Civilis of Justinian, which came a century later2 than that of Theodosius, began to be studied in Italy, where it took a natural part in the great revival then going on in various branches of culture, assisted no doubt by the new material prosperity of the Italian cities. Justinian’s books were much larger and much more thorough in their return to classical Roman law than the code of Theodosius. In Constantinople there were greater facilities both in books, in tradition, and in spirit for an antiquarian revival—for to some extent this was the nature of Justinian’s work; the jurists whose opinions figure most frequently in the Digest were as remote from his day as Coke is from ours. To the professors of the Law School of Bologna the books of Justinian came as a new revelation. At their head was the great Irnerius (d. 1135) and around him were his pupils, including the famous “Four Doctors”, Bulgarus, Martinus, Ugo, and Jacobus. Hardly less distinguished were Azo, from whom Bracton learned a great deal, and Vacarius, who travelled from Italy to the distant University of Oxford.1 There soon arose a school of glossators whose commentaries upon the books of Justinian were finally summarised in the thirteenth century into one great gloss by Accursius (1182-1260), whose son, Francis, visited the court of Edward I, attended a Parliament, and saw the enactment of a statute.2 This academic movement in the end went too far; the refinements and subtleties of the doctors were too much for the common people who insisted upon retaining their imperfectly Romanised customs. A reaction therefore occurred, and Bartolus (1314-1357), frankly recognising the place which local custom actually held, and the difficulties created by local custom and local legislation (of which there was a good deal), applied himself to the study of the problems of statute law and conflict of laws3 which were constantly arising in Italy in the course of inter-city commerce.4
CUJAS AT BOURGES
The next great revival of Roman law was in the sixteenth century, and began in the tiny University of Bourges which sprang into fame on account of its illustrious teacher Cujas (1522-1590). The origin of the movement was in the Renaissance, and its object was pure scholarship, aiming at the restoration of classical Roman law and good Latin instead of the mingled custom and graceless language of the Bartolists. In the field of jurisprudence and legal history the School of Bourges exerted immense power, but practice was less amenable to university influence. This was fortunate on the whole, for however valuable the study of philosophy and legal history might be to the formation of a science of law, there was nothing to be gained by denying the experience of over a thousand years of legal development. As one example, the civilians introduced mischief in the sixteenth century when they attacked the transferability of debts, as then universally practised by mercantile custom, on the ground that it conflicted with the law laid down a thousand years earlier in the books of Justinian.1
ROMAN LAW IN ENGLAND
It now remains to indicate very briefly the principal points of contact between English and Roman law. As we have already remarked,2 Roman influence begins in England with the coming of Christianity, and its specific influence upon Anglo-Saxon legal doctrine can be traced principally in the law relating to bookland. After the Conquest, England became once again a part of the European system, and Glanvill’s treatise shows some familiarity with the Roman texts. No doubt one of the principal links between English law and Italy was Lanfranc. In the eleventh century he had taught in the Law School of Pavia; then he went to Normandy, founded the school at Bec, and became the chief adviser of Duke William, who brought him to England and made him Archbishop of Canterbury; this must have made him a very powerful source of foreign influence—it has been observed that Domesday Book itself is written in an Italian style of handwriting. Lanfranc’s foundation at Bec influenced England for a long time; from Bec there came Anselm who precipitated the Investiture Contest in England; after him came another archbishop, Theobald, in whose household Thomas Becket had been trained, and who brought Vacarius to England.3
When we come to the reign of Henry II we find even more direct influences at work.4 By this time we have to reckon not only with Roman law, but also with canon law, which was partly a Romanisation of the Church’s customs, and partly an attempt to adapt Roman law to Christian and mediaeval use. It may be that Glanvill’s treatise was in imitation of some of the little books of canonical procedure which became frequent at this time,5 while Vinogradoff has suggested that there is significance in the fact that William Longchamp, Justiciar to Richard I, had written a short treatise on canonical procedure in which he urged the advisability of establishing definite formulae of actions.6 It may be that this treatise had some influence in causing Glanvill to insist upon the importance of the original writ and to plan his book as a commentary upon writs and forms of action.1 Already the canon law rules on the competence of witnesses were borrowed by Glanvill, who used them as challenges to jurors. Glanvill also took pains to point out that when the King’s Court uses the Latin word dos it does not mean the dowry of Roman law, but the completely different dower of English law, while at the same time he observes that there are differences between the English and the Roman law of legitimacy. He even gives us the different forms of contract known to Roman law, but immediately observes that the King’s Court takes no notice of them. It seems clear that Glanvill anticipates that his readers will have some knowledge of Roman law, but it is equally significant that he frequently has to warn them against being misled by superficial resemblances. As we shall see later on, the principle of the assize of novel disseisin was deliberately borrowed from canon law, which developed it from Roman models.
When we come to Bracton, as we have already seen,2 the problem of Roman influence, first upon Bracton himself, and secondly upon English law (these two different problems must always be carefully distinguished), raised many complicated questions. With the close of the age of Bracton the most influential period of Roman law in England comes to an end until we reach the sixteenth century, when it was raised in somewhat different forms. All the same, it is now clear that many monasteries in England were well equipped with books on Roman law,3 and its influence never entirely ceased. Some of our forms of action are definitely of Roman or canonical origin (such as novel disseisin and cessavit), while even our statutes may import Roman devices, such as double and treble damages. The distinction between private and public law was a discovery of the Romanists, and some parts of our public law—the idea of treason (even in Anglo-Saxon times) and the conduct of state trials—were in danger of being romanised.4 On the other hand, the queer legend that Roman law survived in English towns has long been exploded.5
ENGLAND AND THE RECEPTION
On the continent there was the great movement called the Reception, when many courts, from the Imperial Chamber in Germany down to petty lordships and cities, abandoned their traditional law and adopted instead the civil law, generally in a Bartolist form. This resulted from a mingling of many motives, some legal and constitutional, others political, religious and economic. The Reception on the continent had its echo in England, and Maitland even went so far as to suggest that during the reign of Henry VIII the common law itself was in danger from the civilians. This view is certainly somewhat exaggerated.1 However high a view Henry VIII may have taken of his position, it is clear that he regarded it as based upon the common law, and although with some difficulty he succeeded in managing his Parliaments, he was well aware of the important position Parliament now occupied as a national legislature and of the decisive influence which the common lawyers exercised in it. This combination of common law and Parliament made any substantial legal changes very difficult—as witness the events leading to the Statute of Uses.2 But, as Sir William Holdsworth remarks, although the continued existence of the common law was never in serious danger, yet its supremacy as the one and only legal system in England was vigorously challenged. The Councils and Star Chamber, the Courts of Requests and of Admiralty, made a high bid for jurisdiction over the whole of commercial law and portions of criminal law, and threatened to develop a constitutional law of their own. Chancery, too, became infected with the same spirit. During the middle ages equity was not regarded as being altogether outside of the common law system, still less as essentially hostile to it, but at the beginning of the seventeenth century Chancery was regarded by the Stuarts as one of the prerogative courts, and there was a danger that the common law would be challenged by a rival civilian system developed in Chancery as well as in the prerogative courts. This situation was well understood at the time, and produced a controversial literature which intelligently attacked the problem. In such a state of feeling there was no room for direct Roman influence upon English law. Indirectly, however, there was still opportunity for contact. As we have already observed, Bracton had looked very far ahead in several parts of his treatise. Questions then unsettled, fields of law with which the common law courts in his day refused to be concerned, he explored, taking Roman law as his guide. In the sixteenth century when lawyers were searching for help in expanding the common law, they turned to the pages of Bracton. His book was printed for the first time in 1569; his imitator, Britton, had already been printed about 1534; and readers of both these works came into contact with Bracton’s Romanism, which they found already adapted, more or less, to common law needs.
LATER ROMAN INFLUENCES
Under the later Stuarts, civilians were particularly active, and the Dutch wars kept the Admiralty busy. As in the middle ages, they continued to be regarded as the experts in legal theory and legislative policy; thus they were much consulted when the Statute of Frauds1 was being drafted, and it was said by Jekyll, M.R., that “the Statute of Distributions2 was penned by a civilian, and except in some few particular instances mentioned in the statute, is to be governed and construed by the civil law”.3
It is since the Restoration and during the early and middle eighteenth century that Roman law once again exercised noteworthy influence upon English legal doctrine, and here too Bracton is the key to the situation. It is worth noting that a new edition was brought out in 1640. Lord Holt presided over the King’s Bench from 1689 until 1710, and although he was in no sense a profound Romanist, yet he had been a careful student of Bracton, and through his decisions some of the academic speculations of Bracton became living common law.4 A generation later Lord Mansfield carried on the work. The law of his native country, Scotland, had undergone the Reception and had thereby been considerably Romanised, but, as with Holt, it was his reading of Bracton as a student which turned his mind definitely to a study of Roman law at first hand.5
All through the eighteenth century English lawyers were reading Continental works on natural law and jurisprudence, while English scholars were themselves producing comparative studies of their own and foreign systems. Particularly interesting to them were the works of Pothier which circulated widely in England and America, both in the original French and in translation. A study of the books bought by old libraries, and of books translated for the publishers, will show that men like Holt and Mansfield were not lonely geniuses, but outstanding examples of the spirit of legal inquiry which was abroad during this supposedly “stagnant” century.
Even at the present day English courts upon occasion will refer to Roman law in something like Bracton’s spirit in rare cases where the native law gives no guidance.6
Vinogradoff, Roman Law in Mediaeval Europe (2nd edn.), 13.
To contrast “Germanic” and “Roman” law is therefore an over-simplification; see the important study of Ernst Levy, West Roman Vulgar Law (1951) and my review in Traditio, viii. 446.
It came into force in 534.
The evidence is re-examined by Professor de Zulueta in his edition of Vacarius’ Liber Pauperum, xvi (Selden Society).
The Statute of Bigamists (Statutes of the Realm, i. 42); see also Stubbs, Constitutional History (1875), ii. 107 n. 2.
For a translation of some of his remarks, see Beale, Bartolus on the Conflict of Laws.
General introductions to this enormous field of study can be found in Hazeltine’s chapter in the Cambridge Mediaeval History, vol. v; R. L. Poole, Illustrations of Medieval Thought (2nd edn., 1932); C. N. S. Woolf, Bartolus of Sassoferrato (1913); W. Ullmann, The Medieval View of Law (1946), which has a well-chosen bibliography.
Holdsworth, viii. 122, 123.
Above, p. 8; below, p. 511.
Holdsworth, ii. 147; cf. ibid., 133-137.
Holdsworth, ii. 202-206.
They are described in Professor Hazeltine’s introduction to Radulfi de Hengham Summas (ed. Dunham).
Edited by Caillemer, Le droit civil dans les provinces anglo-normandes.
Vinogradoff, Roman Law in Mediaeval Europe (ed. F. de Zulueta), 100.
Above, pp. 261-263.
Senior, Roman Law MSS. in England, Law Quarterly Review, xlvii. 337.
Above, p. 204. For a fuller discussion, see Plucknett, The Relations between Roman Law and English Common Law, Univ. Toronto Law Journal, iii. 24.
Hart, Roman Law and the Custom of London, Law Quarterly Review, xlvi. 49.
Maitland, English Law and the Renaissance (reprinted in Select Essays in Anglo-American Legal History, i. 168-207); the criticisms that follow are set forth in more detail in Holdsworth, iv. 253-262.
See below, pp. 584 ff.
29 Charles II, c. 3 (1677).
22 & 23 Charles II, c. 10 (1670).
W. H. D. Winder, Sir Joseph Jekyll, Law Quarterly Review, lvii. 512 at 535.
See above, pp. 247, 264.
Above, pp. 249-250.
See Oliver, Roman Law in Modern Cases in English Courts (Cambridge Legal Essays), 243.