CHAPTER X.

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

AUTHORITY OF ROMAN LAW.

151

Acton v. Blundell (1843)', 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." Tindall, 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.

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.

CHAPTER XI.

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'. The Court of the Constable and Marshal also proceeded according to the Civil Law: “ 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 formam3." But these latter are of small importance.

The Court of Chancery originates in the position of the king as the fountain of justice. 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

CLERICAL CHANCELLORS.

153 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'. 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. 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 forma3 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." 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

1 Spence, 1. 340. R. Parning, 1341. Thorpe, Knivet, 1372.

2 Spence, 1. 340-7, 356 note.

3 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.

4 Sir T. Smith, Commonwealth of England, ed. 1663, p. 121. Spence, 1. 360, note.

154

MASTERS IN CHANCERY.

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 law1." 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, 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 Civilis 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": and the "Doctor and Student" of the reign of Henry VIII., reads: "Conscience never resisteth the law nor addeth to it, but

1 Hargreaves, pp. 309, 313.

2 II. 8, 3; 10-11.

3 Cited Spence, 1. 409 note.