CHAPTER V.

ROMAN LAW FROM FLETA TO COKE.

As in Britton, so in later writers, though Bracton is quoted constantly, we find his Roman form gone and his Roman matter seldom reproduced; and the preface to Staunford's Pleas of the Crown expressly states: "Citavi non pauca e Bractono et Brittono, vetustis legum scriptoribus, hoc consilio ut cum leges Coronae magna ex parte jure statuario constant, ponatur ante legentis oculos commune jus quod fuit ante ea statuta condita"." Staunford's work cites Bracton at great length, and includes the whole of his canonical division of homicide", and his semi-Roman definition of theft. He also quotes the passage on justice, which Bracton had taken from Azo1.

There is a curious book, described by Butler as "an ingenious but neglected work," which, had its author fully carried out his plan, might have been of great interest in this essay. It is entitled: "A Parallel or Conference of the Civil Law, the Canon Law, and the Common Law of this realm of England, wherein the agreement, and disagreement of these three Lawes, and the causes and reasons of the said agreement and disagreement are opened and discussed." The author, William Fulbeck, dedicates his work to the Archbishop of Canterbury, "to whom his Majesty hath

1 Ed. 1607. With this cf. similar statement in the Proæmium to Coke's 2nd Institute.

2 Staunford, Part 1. c. 4.

3 Ibid. Part I. c. 15.

4 Ibid. II. c. 1.

5 London, 1601.

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FULBECK'S PARALLEL.

committed the executing and maintenance of the Civil and Canon Laws," I suppose in the Ecclesiastical Courts. The form is that of a dialogue in which Nomomathes, a wealthy patron of learning, inquires of Codicignostes, Canonologus, and Anglonomophylax, as to the provisions in various points of their respective laws. Unfortunately Fulbeck's historical faculty is not very keen, and he does not fulfil his promise to "discuss the causes and reasons of agreement and disagreement." The book consists of questions by the patron, and short statements of the Civil and English laws by their respective advocates, the professor of Canon Law being unexpectedly quiet. That the result is not of very great value may be seen from the fact that, though Codicignostes cites Paulus' definition of theft, the English lawyer does not note the omissions which Bracton had thought necessary, and which were still required, to make it English Law. The most interesting passage I have found is one as to the crime of procuring abortion1; the Civil lawyer states it to be homicide to kill an infant in its mother's womb, to which Anglonomophylax answers "In Bracton's time it seemeth that our Law did in this point somewhat nearly agree with yours, for he hath these words" (citing Bracton) "but now the law is altered."

Fulbeck is of opinion that the Canon Law is "more ancient than the other two and of greater continuance": while as to the Civil Law he is curiously doubtful. "I do not think that which may properly be called Civil Law, and was so-called at the first is any other than jus Romanum, or comments or additions to it." While a fuller work would have been interesting, the book is of value as showing that at that time the idea of any parentage or authority of the civil law, as related to the common law, was at any rate not widely spread. They were compared as unrelated systems of separate growth.

But advocates of Roman origin were not wanting. Dr Cowell, Reader on Civil Law at Cambridge, (best known as the author of the "Interpreter," which the Commons attacked for undue exaltation of the Prerogative, and the king disowned as

1 Fulbeck, p. 100, b, and see supra, p. 108, note 7.

1

COWELL'S INSTITUTES.

127

"writ only by a civilian by profession, and meddling in matters beyond his reach,") had endeavoured to maintain the unity of the Civil and Common Law, in a book published in 1605 and entitled "Institutiones Juris Anglicani ad methodum et seriem Institutionum imperalium compositae et digestae." Its object was to show that the two laws had "eadem utriusque fundamenta, easdem rerum definitiones divisionesque, consentaneas plane regulas, similia fere scita sola idiomatis atque methodi varietate disparata......et redigere largiora illa legum nostrarum volumina putidi idiomatis squalore expurgata ad Pandectarum Justinianearum ordinem"; and he concludes that "illam jus et legem nostram communem...quod hactenus linguae obscuritate involutum barbarismi notam apud exteros vix evasit... nihil aliud esse quam Romani et feudalis mistionem1." He transfers the old authorities, Bracton, Britton, and Fleta into the framework of the Institutes, which Bracton's borrowings from the Corpus Juris and from Azo enable him in some places to do with great accuracy: as for instance in Book I. on Persons, the commencement of Book II. on the Acquisition of things Jure Gentium, parts of Book III. on Obligations, and Book IV. on Actions. Where a Roman title has no corresponding feature in English law he mentions it, e.g. "unde constat hunc Romanorum adoptandi morem aut a nobis nunquam receptum, aut jam pridem, quemadmodum et apud Gallos evanuisse;" and "ut tam arctus non est apud nos patriae potestatis nexus quam apud Romanos fuit: sic neque est tam solennis ejusdem per emancipationem solutio3:"..."illam tutelam fiduciariam, quam Romani...imposuerunt, majores nostri penitus neglexisse videntur."

He accepts the Roman parts of Bracton at any rate as law at the time when they were written, though the curious passage in Bracton as to the sanctity of walls seems to have been almost too much for his faith, for he introduces it with the remark, "si veteribus juris nostri scriptoribus credimus", and concludes "Sed haec poena videtur hodie arbitraria." It is

f

noteworthy that Dr Cowell does not suggest any authority for the Civil Law in the Common Law Courts.

Another discussion of the matter is found about the same date in the Posthumous works of Sir H. Spelman', the well known antiquarian, who says "Great portion of our Common Law is derived from the Civil, (unless we will say that the Civil Law is derived from ours), which Bracton also, above 300 years before, right well understanding not only citeth the Digests and Books of Civil Law in many places for warrant of our Common Law, but in handling our Law pursueth the method phrases and matter of Justinian's Institutes of Civil Law...I think the foundation of our Laws to be laid by our German ancestors, but built upon and polished by material taken from the Canon and Civil laws... When and how these several parts were brought into our Common Law is neither easily nor definitively to be expressed ...Those no doubt of Canon Law by the prevalency of the clergy in their several ages......those of Civil Law by such of our reverend judges and sages of ancient time, as for justice and knowledge's sake sought instruction therein when they found no rule at home to guide the judgment by. For I suppose they in those days judged many things ex aequo et bono and that their judgments after, (as Responsa Prudentium among the Romans, and the Codex Theodosianus), became precedents of Law unto Posterity."

1 On the Law Terms, last chapter, pp. 99, 101: published in 1723, written

before 1641 (? 1614).

CHAPTER VI.

ROMAN LAW IN COKE.

SIR E. COKE in his Institutes, (themselves Roman in name), takes a decided position as to the authority of the Civil law. He says: "Our common laws are aptly and properly called the laws of England, because they are appropriated to this kingdom of England...and have no dependency upon any forreine law whatever, no, not upon the Civil or Canon law other than in cases allowed by the Laws of England...therefore foreign precedents are not to be objected against us, because we are not subject to foreign laws1”—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"." 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." Sir Edward Coke indeed had not a high opinion of the Civil law. In his Proœmium 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."