LECTURE IV ROMAN LAW IN ENGLAND

Authorities: Pollock and Maitland, History of English Law, I, II ; IF. S. Holdsworth, History of English Law, II, III, 1909 ; Stubbs, Lectures on Mediaeval and Modern History ; Selden, Dissertatio ad Fletam ; Maitland, Bracton’s Notebook, 1888; Marcel Fournier, L’Egliseet le droit romain au XIII siecle, in the Nouvelle Revue historique de droit franfais et etranger, 1890 ; E.

i. /~^AIVIL· law did not become a constituent element of English common law acknow­ledged and enforced by the courts, but it exer­cised a potent influence on the formation of legal doctrines during the critical twelfth and thirteenth centuries, when the foundations of common law were laid. Indeed the teaching of Roman Law inaugurated by Vacarius seemed for some time to carry everything before it. No school was more popular in Oxford at the close of the twelfth century than the school of legists. The tide was stemmed to some extent by powerful agencies acting in other directions. The Church realised that its predominance was threatened by the spread of secular learning in the field of law ; Canon law was more sharply differentiated from civil jurisprudence, and it began to oppose the latter in its striving towards juridical su­premacy. A bull of Honorius III (Super Speculam, a.d. 1217), and another of Innocent IV (Dolentes, a.d. 1259) were directed against the teaching of Roman Law in Paris and in “neighbouring countries.’’ On the other hand, there grew up a national opposition against cosmopolitan doctrines which finds a definite expression in many facts.

Nevertheless, the teaching of Roman Law was never discontinued at the principal seats of learning in England. The canonists themselves frequently referred to its sources, as is shown, for instance, by the Golden Text-Book (Summa aurca) of the Oxford professor, William of Drog­heda (thirteenth century). The study of Roman Law in Cambridge can be traced from this very thirteenth century, which witnessed so many declarations of the powers that be against its introduction. It was used at both universities

and in other minor centres of learning as a kind of “general jurisprudence,” and, as such, it exerted considerable, though indirect, influence on the practice of common law.

Turning to the results of this study in England, we have to notice, firstly, its bearing on the principal juridical doctrine evolved during the twelfth century, namely, on the doctrine of seisin, and the means of protecting it. The age of Henry If has left a profound mark in this respect by formulating the point of view of possession, and providing adequate remedies for its protection in the King’s courts. As we have seen, the French lawyers were much con­cerned with this aspect of jurisprudence in the thirteenth century, and so were the English in the twelfth. A point in which the influence of Roman Law is clearly traceable concerns the action itself by which possession was protected. The famous writ of Novel Disseisin—introduced by Henry Il’s lawyers, appears as a secular variation of the canonistic action of spoliation (adio spolii), and this again has evidently sprung from the Roman interdict “unde vi.”

To what extent the English view of seisin was coloured by Roman teaching on possession may also be gathered among other things from Glan- vill’s treatment of the gage of land.

Probably at the same time with Glanvill’s treatise, William Longchainp, a Norman peasant who was to become Bishop of Durham and Regent of England in the reign of Richard Cceur-de-Lion, composed his Practice of Laws and Decrees (Frac­tion legum et dccrctorum). It is a short manual of procedure based on civil as well as on canon law, and intended for use primarily in the French possessions of the English Crown. As the career of the writer demonstrates, however, there was no sharp cleavage between the English and the French parts of the Plantagenets’ dominions. At the fair of Lagny in Bresse, which is casually mentioned in the tract, English merchants were so numerous that one of the streets got its name from them (vicus Anglicus).

The teaching of the practica may well have in­fluenced contemporary English lawyers on one or two important occasions. There was, for instance, a great controversy among the jurists of the time about the framing of an action. An authoritative 87 glossator, Placentinus, held that it was not neces­sary to formulate an action in accordance with strict terms ; the plaintiff might be allowed to state his claim in general expressions. Other doctors, such as Johannes Bassianus and Azo, disputed this and required the presentation of claims according to technical forms. William Longchamp’s “ prac­tice ” urges the necessity of definite formulae of actions, and it may be considered in this respect as introducing the theory of strict writs adhered to by common law.

2. The most important English contribution to Romanesque jurisprudence, however, is con­tained in Bracton’s work on the Laws and Customs of England. Although this famous book was primarily written for the instruction of practical lawyers, and its most valuable chapters are based on the case law of Henry Ill’s age, it opens with a comprehensive introduction chiefly drawn from Azo’s manuals of the Institutes and of the Code, a general analysis of actions. The very fact that an English justice should have felt the necessity of such a general introduction is extremely note­worthy.

Nor is his work in this line by any means a contemptible one. I do not propose to determine by exact marks what the school value of such work may be nowadays. But what we can do is to notice that Bracton’s aim was as different from that of his model, the Bolognese doctor, S8 as the means at his disposal were peculiar. He lived in a country which could not be compared with Italy in its standard of general culture, and especially in the wealth of classical tradition and scholarship. The Bolognese glossator provided a remarkable exegesis of the Institutes and of Justinian’s Code ; he comments on his texts, illus­trates and explains them, but does not remodel their doctrine—he speaks of patria potestas, of slavery, of the Lex Aqitilia, of the interdicts, as if they were institutions which still obtained in the Italian practice of his time ; in doing this he does not consider modern practice, and he stands very near our own expositors of Roman Law: we might almost be induced to treat him as one of ourselves, as a citizen of our present republic of letters. Now such a standard would be entirely out of place in regard to Bracton. He does not want to state Justinian’s teaching more or less exactly, but compiles Institutes for the English law of his time, and he attempts to build up these English Institutes with the help of Roman ma­terials. There were no better materials at his disposal ; there was no body of doctrine which could show better the general notions with which legal thought must deal, and when we think of the place still occupied by the teaching of Roman Law in European schools, we shall not wonder at the course followed by Bracton.

what his French contemporaries were doing in a much more casual fashion.

Some of the general principles expounded in the Institutes and in the commentaries to them might serve as an illuminating guide for English legal thought, while features entirely foreign to English life had to be removed. Thus the Introduction was undoubtedly intended to strengthen native legal doctrine by the infusion of legal conceptions of a high order drawn from the fountain head of civilised and scientific law. But there might also be a second aim, namely, to influence the material development of English legal doctrine, to provide it with clues for the solution of difficult problems, and to improve on the existing practice of the courts. Bracton aimed chiefly at the first of these results, although in some cases we may notice that he had in view to influence substantive law itself.

Let us turn, however, to Bracton’s own work and take as examples some of its initial specu­lations.

3. On the very threshold he encounters an inevitable difficulty of his undertaking, and striking contrasts between English Law and Roman Law cause him to reflect on the great question as to the modes by which a legal rule is sanctioned and stated. Civil law as collected by Justinian and expounded by Azo was a definite body of doctrine sanctioned by Imperial authority,

and consigned to an authorised written version. Now does English law afford a parallel in this respect ? Where is the sanction of English Law to be found ? How is one to recognise its rules ? Both Glanvill and Bracton have been reflecting on these questions. It is not absurd to give English unwritten rules the designation of law, because they proceed from a command of the sovereign, the King, are established by the con­sent of the great men, and imply a promise of obedience (spoiisio) on the part of the common­wealth. Thus far Bracton, while Glanvill is not only shorter but onesided—he deduces the au­thority of English law from the famous saying : quod priucipi placuit legis habet vigorcin—a saying which was not in keeping with the political tendencies of Simon de Montfort’s time, and therefore put aside by Bracton.

of English legal rules is thus ultimately referred, although it remains always expressed in vague Romanesque terms.* We can sec that a diffi­culty is felt as to the power of single judges to lay down the law, and it is settled in a way which reminds us of Beaumanoir. The Common law rules established by general custom ought to proceed from the whole court of the King, and their repeal and alteration is the affair of the whole court. In case of doubt recourse should be had to this court, which represents the inajorcs, the magnates of the kingdom. Undoubtedly some of the great men, the judges and justiciars, one might be in­clined to say, do not act up to this general doctrine, but lay down decisions as if their opinions were sufficient to constitute law. This is altogether reprehensible. The single judge is in the position of interpreter of the law, however, and though he is precluded from altering it at his wish, he may not only follow it when it is clear, but also improve upon it, an improvement not being an alteration. This reasoning is partly suggested by Azo’s teaching as to the interpretation of law, and as to legal fictions by which the meaning of rules is widened, but it goes further both in wording and spirit, and though strained from a purely logical point of view, it very aptly opens a work which has to combine and contrast Civil law and English Common law.

* App. VIII.

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If the difficulty as to the authority and sanction of common law may be easily overcome, the second objection' to the common form of English doctrine is recognised to be grounded on serious considerations. There is no authorised version of English legal rules. This is felt both by Glan- vill and by Bracton. Very material drawbacks follow from the absence of such a version ; law is ■rverted by the ignorance of beginners who ascend the bench before they have mastered the elements of legal lore ; it is also perverted by the overbearing conceit of people in authority, who treat it according to their personal views and inclinations. It is to remedy these very drawbacks that both Glanvill and Bracton set out to perform their task, the first in a perfunctory and thoroughly practical manner, the other with a great store of authorities at his disposal. Brac­ton’s work may be called a private treatise on the common law in its relation to general juris­prudence, and this literary departure remains significant for the further course of English legal studies.

4. There follow generalities about justitia and jus. The Bolognese doctor starts from the de­finition of justice as given in the Digest : “ justice is a constant and permanent will to allow every­one his right ” (justitia est constans et perpetua voluntas jits suum caique tribuendi'). According to scholastic method he takes up every word in the sentence and expands it by interpretation so as to define the different attributes and con­ditions of justice. In this way he draws attention to the fact that justice may be considered as a divine institution, deciding once for all what is right and what is wrong. Or else it may be considered from the point of view of humanity. In this case the stress would lie on the will of man to do right, and not on external facts. Im­mutability and permanency are necessary attri­butes of justice. Variations or changes would destroy its very essence. If a legal privilege is first conceded and afterwards denied, this is in no way a change of justice, but a consequence of a change of acts. Bracton’s summary of this section cuts short many of the philological dis­tinctions. He finds himself confronted with a peculiarity of English phraseology, namely, with the absence of an equivalent in English to the word pis. Though writing in Latin, he docs not want to make his teaching dependent on a foreign use of terms, and therefore he introduces, though very shortly, the terms lex and consuetude— law and custom—explaining that they correspond to pis, which in this case would be rendered by the English word ‘law.’ But, we may add, the proper rendering of pis would not always be ‘law,’ the objective order of things and duties, as one might say, but sometimes ‘right,’ the subjective sphere, what I claim as my own against my neighbours. If Bracton had been making a trans­lation, he would have found himself obliged to observe this variation of meaning. As it is, he uses Latin, although a Latin addressed to English readers, and this gives rise to what seems at first sight a gross blunder. Azo, talking of jits as ‘ law, ’ ridicules the idea that there could be the law of Peter or John, of a lion or of a donkey. Bracton, evidently speaking of jits as ‘ right,’ turns the same sentence to positive account, and admits the right (jus) of Peter and of Paul. “ The right of a lion or of a donkey ” would, however, sound quaint enough, and it would have been better if Bracton had not gone so far on the subjective track. His meaning seems to have been, that we have to consider varieties of right derived from claims of divers beings and of claims in respect of divers things.

He differs from Azo yet another time when the contrast between proprietas (ownership) and bononmi possessio (possession) makes it necessary for him to notice a material difference in the use of these fundamental conceptions in Rome and in England. While the Roman lawyer draws a sharp distinction between ownership as the genuine and complete right to a thing, and possession as the protected enjovment of it, the English lawyer merges both ideas in the inter­mediate and relative conception of seisin. A man is seised of a thing, more frequently of land, and his seisin must be protected by the courts until a better ground of seisin has been found.

B, the eldest son of A, may be his right heir, but if he did not obtain seisin on A’s death, and

C, the second son, has done so, C must be prima facie protected because he is already in seisin. He may be ousted only if B challenges his title and proves the truth of his contention. Bracton quite appropriately called attention to this fundamental difference of legal principle in a marginal note which eventually crept into the text itself, and destroyed the smooth course of Roman doctrine as set forth in Azo’s manual.

There follows a section on the law of nature, the jus civile and the jus gentium. A7.0, con­cerned with the interpretation of Roman texts as they stand, treats of the general philosophical problem of the law of nature as opposed to the positive law of States. But he also explains the purely Roman distinction between jus civile — the law of the Roman people — and the jus gentium — private law based on the legal customs of different nations. Bracton gives the substance of Azo’s teaching on the law of nature, noticing the two possible meanings of the expression — as derived from the nature of live creatures, of animals as well as men, and as representing the rational concepts of man’s nature. But he combines this second idea with that of the jus gentium, not taking much care to discover the historical differences between such reasonable rules and those im­posed by the jus civile. In this respect he is undoubtedly inaccurate, but we can hardly reproach him, when we remember that even Roman jurists did not always distinguish clearly between the bidding of the jus natwale and the ratio naturalis, on which the rules of the jus gentium were supposed to be based. As for the jus civile, Bracton seeks to appropriate the expression in a way characteristic of medi­aeval usage. He has no interest in the original law of the Roman State, the jus of the Quirites, but there is one kind of law existing in England which might be designated by a reference to jus civile. This is the customary law of boroughs —jus civitatum.

5.The contrast between the professor ex­pounding antiquarian doctrines, and the judge fitting English facts into a Roman frame, is especially striking in the treatment of the law of persons. Bracton follows Azo as to the principal and very important generalisation, “all men are either free or slaves.” But such a generalisation had to be modified both in ancient Rome and in mediaeval Italy or Eng­land. Azo proceeds to give the necessary commentary from the point of view of ancient Rome. He treats of statu liberi and of ad- scri/dicii to show that it is possible to arrange these subordinate groups under the chief headings of free and unfree. He does not deal with the Italian world in which he lives, nor is he troubled by the fact that neither the statu liberi nor the adscripticii are known to his Bolognese or Florentine contemporaries. The English lawyer proceeds on an entirely different course. The statu liberi and adscripticii are used by him to illustrate actual English conditions, although they lose much of their antiquarian genuineness, thanks to this process of adapta­tion. Of the free {liberi) it is needless to speak at length, for they appear in England under the same name. Villains are equated with slaves — a far-reaching assumption. As the adscripticii represent a kind of intermediate stage between free and serf, their counterpart would be the villain socmen of ancient demesne, and, to some extent, the freemen holding in villainage. As for the statu liberi, Bracton em­ploys this term to denote serfs enjoying a state of liberty, as for example, serfs dwelling as freemen on free soil. Tn this case they are prima facie protected by law, and any person claiming them as villains must bring an action {de native habendo), and assume the burden of proof in court. This is, of course, no Roman doctrine ; it is the adaptation of a Roman term to English distinctions.

-At the end of the sections treating of the law of persons Bracton returns to the problem of slavery, and lays stress on the fact that slaves are not completely in the power of their lords. He finds support for this contention in the later Roman doctrine which, through the influence of Stoicism and Christianity, granted some protection to the slave against exceptional cruelty on the part of the master. From the time of the Antonines, a master treating his slave in an intolerable manner, could be con­strained by the magistrates to sell him. It was declared that the homicide of a slave by his master was a criminal offence. Azo took particular notice of these limitations of the power of masters over slaves, and adduced as a reason for the interference with the right of property in slaves, the importance for the Commonwealth of preventing owners from misusing their property {expedit reipublica ne quis re sua male utatur'). Bracton not only endorses the doctrine, but adds an important concrete feature which shows that in this case he did not merely copy foreign learning, but was pleading for a certain point of view before English jurists. He defines the “intolerable injury ’’ as a destruction by the master of the serf’s waynage, that is, of his plough team which, as we know, was safe from Royal amerce­ment. There are precedents for this view in Norman legal usage, forbidding the taking away of the rustic’s waynage by the lord ; and, of course, in the fact that in Anglo-Saxon times the predecessor of the villain, the ccorl, was not a slave at all, but had a standing against his lord in the courts of law. But at the time when Bracton wrote, the defence of waynage did not tally with the surrender of the old rights of free cultivators in other respects. Bracton himself, representing the general drift of the jurispru­dence of his time, had maintained that there was no difference between a serf and a villain. The reservations, he wished to draw in regard to the right of waynage, arc akin to the vacilla­tions of his brother judges in cases where there was at stake the right of men holding in villain­age to appeal to the King’s courts for remedies against their lords. After some contradictory decisions, the courts ended by applying strictly the rule that villains have no civil claims against their lords, and that, in law, what is held by the villain, is owned by the lord. At the same time the reservation as to waynage dis­appears. Bracton’s teaching on villainage is thus very instructive, not merely from the point of view of the evolution of villain tenure, but also for estimating the practical influence of Romanesque learning on him and other English lawyers. Though the status of villains was undoubtedly developed chiefly by the pressure of economic and political forces, it is clear that the study of Roman precedents played an important part in the shaping of its legal rules. To put it in another way, the historical growth of English villainage did not necessarily involve its treatment on the basis of serfdom or slavery. But the infusion of Roman doctrine made the legal treatment of villainage harder than might have been the case otherwise, while the partial reservations introduced by the Emperors and admitted by Bracton did not carry much weight in practice.

Another case, where the study of Roman doctrine has left a distinct trace on English legal thought, is the well-known distinction between real and personal property. We may observe the actual origin of this famous distinc­tion which still holds good at the present day. The root of it lies in the teaching of Roman lawyers on actions. There are real actions— actiones in rem—which aim at obtaining the property of a certain thing, and personal actions, urging certain claims against persons, requiring them to do something, to give something, or to forbear from something. The question of obtaining a specific object does not arise in the latter case. It is the value claimed that is of importance. So far, the teaching is common to both Roman and English lawyers. But Bracton and his fellow-judges, working on this basis, went a step beyond their Roman guides. They used the distinction between actions to differentiate between different kinds of pro­perly. Land and interests connected with it appeared to them to be naturally⁷ the object of real actions, because here the claim was directed to a definite thing and to nothing else. On the other hand, chattels were, as a rule, claimed in the same way as rights, for example, as the performance of some labour or office. Tire aim of the action was to obtain either the thing or service, or its equivalent from the person under obligation. The distinction became funda­mental in the English legal system. Again, a striking example of the influence of Roman dis­tinctions is afforded by the treatment of leases for terms of years. Bracton and thirteenth century judges consider the lessees not as tenants having an estate of freehold, but as mere usujritchtarii. This is altered to a great extent by later doctrine, but the initial classification has left its traces on the law of the subject.

Bracton and his compeers had especially⁷ much to learn from the Romans, and the gloss­ators who expounded their doctrines, on the subject of obligations generated by contracts and torts. The exceedingly active economic intercourse of the Roman State in its most prosperous days had been utilised by keen jurists to frame a doctrine conspicuous, even in the domain of classical law, for its subtlety and dialectical resourcefulness. Part of this vast material had to be left on one side by Bracton, while other parts were adopted more for the sake of possible eventualities than for the immediate requirements of practice. Bracton appropriates the fundamental idea that a nude pact, a convention bereft of particular form, does not constitute an obligation enforceable at law. He cites a couple of doggerel lines in­tended as an assistance to the beginner in remembering what could serve as vestments to pacts. “ Re, verbis, scripto, consensu, iradiiione, juncturci vestes sitmere pacta solent.”

The first three species apply to real con­tracts—such as, e.g., deposit ; to verbal con­tracts—the Roman solemn promise (stipulation, or an equivalent of it in writing, the deed under seal, which came to be the principal mode of contracting in English law ; the fourth relates to consensual contracts—sale and hire by mutual consent, although in this respect English law could not be made to fit exactly the Roman view. Besides these Azo mentions two modes of clothing a bargain which he describes in quaint language. Whereas in the first four cases the contract is born vested, there are two occasions when it is bare at the moment of birth ; but once having seen the light, it begins to look about for suitable cloth­ing, and, eventually, it may find furs which will protect it from frost and decay; this happens should delivery (Iraditio) supervene, or a condi­tion which did not exist at the moment when the convention was made, but which, if it appears later on, renders it perfect and pro­vides it with a vesture. All this is appropriated by Bracton in a slightly modified form, and this “reception” of the Roman doctrine provides a starting-point for subsequent development. First, the ecclesiastical courts and the Chancery, later on Common Law Courts, took part in the development of a doctrine concerning obliga­tions which took account of informal agree­ments, and laid down rules as to their validity and enforcement.

On the whole it is clear that it is impossible to estimate the influence of Roman law in Eng­land by references to paragraphs of the Digest or of the Codex. If we want to find definite traces of it we have to look out not for references but for maxims, some of which, besides, had passed through the medium of Canon law.* The only real test of its character and extent is afforded by the development of juridical ideas, and in this respect the initial influence of Roman teaching on English doctrines will be found to be con­siderable. On many subjects the judges and legal writers of England were, as it were,

■ E.g. Year Books of Edu.'. Il (Selden Soc.\ I, 5, 31, 1S6 ; II, 110, 176.

prompted by their Roman predecessors, and this intercourse of ideas is nowhere as conspicu­ous as in the frequent cases when English lawyers did not simply copy their Roman models, but borrowed suggestions from them in order to develop them in their own way.