SPENCE, G. Equitable Jurisdiction of the Court of Chancery. 2 vols.

Lond. 1849.

STAUNFORD, SIR W.

STEPHEN, SIR J. F.:

Pleas of the Crown. Lond. 1607.

History of Criminal Law. 3 vols. Lond. 1883. STUBBS, W.: Constitutional History. 3 vols. Oxford, 1874.

THORPE, B.

: Select Charters. 3rd ed. Oxford. 1876.

: Preface to R. de Hoveden. Rolls Series. 4 vols. 18681871.

Ancient Laws and Institutes of England: Record Commission. Lond. 1840.

VACARIUS: Article on, in Penny Encyclopaedia. Lond. 1843. VINOGRADOFF, P.: "Text of Bracton." Law Quarterly Review. April, 1885.

WAITZ, G. Deutsche Verfassungs Geschichte. Kiel, 1865–1866.

WARREN, S: Introduction to Law Studies. 3rd ed. 2 vols. Lond. 1863. WENCK, C. F. C.: Magister Vacarius, Primus Juris Romani in Angliae Professor. Leipsic. 1820.

WILDA: Das Gildewesen in Mittelalter. Halle, 1831,

WRIGHT, SIR M.: On Tenures. 2nd ed. Lond. 1734.

WRIGHT, T. Municipal Privileges under the Anglo-Saxons. Archaeologia, XXXII. pp. 298-311. Lond. 1847.

ZOUCH, R.: Jurisdiction of Admiralty of England asserted. Lond. 1686.

THE INFLUENCE OF THE ROMAN LAW

ON

THE LAW OF ENGLAND.

"Tu regere imperio populos, Romane, memento."

INTRODUCTION.

ANY discussion of the influence exercised in England by the Roman Law will naturally fall into two divisions, separated by the arrival in the year 1143 of Vacarius on our shores in the train of Archbishop Theobald1, and his lectures on Roman Law at Oxford in and after 1149; for these events, which in European history form part of the current of Roman influence which sprang from the enthusiastic studies of the Law School at Bologna in the 12th century, begin a new era in the history of English law and of its connexion with the legal system of Rome. We have then in our survey to deal with two great periods. Investigating in the first place, if such a search be possible, what traces of its influence the Roman occupation of Britain had left on its inhabitants, their institutions and customs, we may study both the law before the Conquest, and that law as influenced by the Norman invasion, to ascertain, if possible, how far its leading features at either period are attributable to Norman or to Teutonic influences. The period is one of custom, not of written law; of vagueness rather than of precision; and it will afford no matter for surprise if in the legal obscurity of 1 Kaufman's Mackeldey, p. 72. 2 Ibid. p. 66.

those early centuries we find very little ground for confident assertion in matters peculiarly difficult.

With our second period we find more light. From the teaching of Vacarius in 1149 we pass at once to authoritative text books by masters of the law. The treatises of Ranulph Glanvill, Justiciar, composed in 1190, and of Sir Henry de Bracton, one of the King's judges, written in the few years before 1259, the works called Briton and Fleta, compiled about 1290, the Year books, the legislation of Edward I., all combine to illumine the dawn of the historical period of English law. Though great industry, ingenuity, and learning may yet be necessary to unravel the tangled skein, we are not left without material for such a task. We are not asked to make our legal bricks without straw, to compile our laws without sources. We are able to trace, under the guidance of Spence', the rise of the Court of Chancery, Roman to the backbone; we can study the efforts of the great Lord Mansfield to construct a scientific code of Mercantile Law on principles largely Roman, and we can follow through the Ecclesiastical Courts the learning of the clergy in the laws of the mighty Rome.

To the first of our periods, however, we may now turn, if not with hope, at least with the knowledge that where success is all but impossible, failure has in it nothing of disgrace.

Equitable Jurisdiction of the Court of Chancery, Lond. 1849.

PART I.

ROMAN INFLUENCES ON ENGLISH LAW BEFORE THE COMING OF VACARIUS.

CHAPTER I.

THE SOURCES OF THE ROMAN LAW.

THE Romans under Julius Caesar landed on these shores in B.C. 55, and in A.D. 43 the serious conquest of Britain commenced under the Emperor Claudius: the Roman legions were finally withdrawn in A.D. 410 under the Emperor Honorius. During this period, while the adventurers or puppets who ruled the Western Empire exercised very little direct control over Britain, it is probable that the greater part of the island was governed on the Roman provincial system, and the Roman law was administered with more or less strictness. Into the details of this system we do not propose to enter. "The details of the later Roman Provincial system, and of the economic condition of the German and British provinces, remain so obscure, even after the labours of Mommsen, Marquardt and Madvig, that he who attempts to build a bridge across the gulf of the Teutonic Conquests between Roman and English institutions still builds it somewhat at a venture1." The nature of the Roman provincial government is too obscure, the Roman law is too well known, to justify any lengthy exposition here of either of them. We may however remark that it is recorded by Dio Cassius' that the great Papinian, the Fearne of Roman Law, whose works it was

1 Seebohm on English Village Community, Lond. 1883. Pref. p. xii. Mr Coote in his Romans in Britain, London, 1878, has attempted such a

reconstruction, but with more ingenuity than success.

2 Selden, Dissertatio ad Fletam, c. 4 § 3. Duck, De Usu, II. 8, 2. 4.

presumption to profess to understand under three years' study, not only accompanied the Emperor Severus to Britain, but also filled the judicial office in the City of York, evidently administering the Imperial law in Britain.

We may accept it as probable that, for the century or so preceding the withdrawal of the legions, the actual influence of Rome on Britain was very slight, whilst the withdrawal of those legions in A.D. 410 did not mean the entire withdrawal of Roman institutions, customs, and culture. But the vestiges of Roman influence can hardly have endured with any permanence in face of the anarchy of invasion which swept over them. The incursions of Teutonic invaders had been frequent even during the Roman occupation, and that part of the coast exposed to their ravages had acquired the name of the Littus Saxonicum', with special officers to guard it, as early as A.D. 300. There are traces also of the permanent transplanting of certain Gaulish or Teutonic tribes as legionaries in Britain during the Roman era, a fact not without its importance in view of subsequent investigations. But historical materials are very scanty, as authentic records entirely disappear from A.D. 418 to A.D. 473. It is clear that during the last half of the 5th century the Saxon invasions resulted in settlements of some degree of permanence and power; Hengist in Kent, Ella in Sussex, Cerdic in Wessex, established themselves in force. During the 6th century the old settlements grew into Kingdoms, and new conquests were made in Essex, Northumbria and East Anglia. In the year 600, we obtain the first written code of English Laws, which purports to be issued by Ethelbert, King of Kent. This code (which, with the other Kentish laws, is only preserved to us by the Textus Roffensis, a MS. of the 12th century) contains 90 short clauses, many of which are of great obscurity. It is clear that as a code of law the document is utterly inadequate, and presupposes a vast mass of custom regulating the ordinary relations of life.

1 According to Palgrave (Commonwealth, pp. 359, 384), on account of the Saxons already settled there. The Bishop of Chester prefers the explanation given in the text Hist. 1. 59).

2 Palgrave, 1. 355, 356, 377.
3 Elton, Origins of History.

4 Thorpe, Ancient Laws and Institutes of England, p. 1.