Roman law in England

When the Romans colonized Britain, Roman law became the law of the province. But it is not clear to what extent Roman law applied to non-citizens before the general grant of citizenship in AD 212.

n.3.1 The medieval period

England was not unaffected by the early stages of the Reception of Roman law (see Brand, P. 'The Beginnings of the English Common Law', in OHELH, 430-49, Herzog, Short Introduction, 93-114). English scholars studied in the law schools abroad; Glossators from Bologna lectured in England; and Roman law became one of the earliest disciplines taught at the universities. Lanfranc, Archbishop of Canterbury and chief counsellor under William the Conqueror, was a notable scholar from Pavia where he studied canon law, Roman law, and Lombard law, before distin­guishing himself as a teacher (he was possibly a predecessor of Irnerius at Bologna). He adjudicated on legal issues, but the extent to which he applied his Romanist learning is unclear. Another foreign scholar, Vacarius, a teacher from Bologna, was invited by Archbishop Theobald c.

The most important works on English law in the early medieval period, commen­taries on the 'law and customs' of England by Glanvill and Bracton, demonstrate appreciation of Roman law and some borrowing, mostly of organizational con­cepts rather than substantial rules (see Baker, Introduction, Ch. 11). For example, the work attributed to Glanvill—dating from the 1180s when he was Henry Il's chief justiciar—makes use of Justinian's Institutes in the classification of contractual obli­gations. Bracton's work (he was probably not the sole author) was written some fifty years later and shows an even more substantial Roman influence. Indeed, Bracton quotes extensively from Justinian, and his treatise demonstrates that Roman law and the work of the Glossators considerably influenced his thinking as a lawyer and judge. Bracton found valuable precedents in Roman law that gave him the tools for presenting English law as a coherent body of law. The royal judges of the time, often trained in Roman canon and civil law, used their learning to fill the gaps in the nascent common law. Some important remedies were possibly inspired by Roman precedents, notably the assize of novel disseisin, which bore resemblance to the praetorian possessory interdicts (Padoa-Schioppa, History, 212-27).

The influence of Roman law in the medieval period can also be seen in the opera­tion of the courts. See Siepp, D. J., 'The Reception of Canon Law and Civil Law in the Common Law Courts before 1600' (1993) 13 Oxford Journal LS, 388-420; as well as Brand, ‘The Beginnings', 439-43, and Baker, Introduction, chs 3-9.

However, there were developments in medieval England which were not paral­leled elsewhere, and which were to prove the decisive obstacle to a full Reception of Roman law in England. A centralized legal system was developed—based on the royal courts at Westminster—and a common law was established throughout the country, thus reducing the importance of local law and custom. Notable among the medieval kings who helped to achieve this transformation were Henry 11 and Edward 1. Moreover, an enduring common law tradition was fostered through the growth of an active legal profession and the evolution of the Inns of Court. The influence of the universities on the operation of the legal system waned sharply, Consequently, the mixture of factors which were conducive to the Reception else­where in Europe in the fifteenth and sixteenth centuries—the existence of cus­tomary law, fragmented political units, and a university-trained legal profession erudite in Roman law—was absent in England. Nor did the common law courts use Romano-canonical procedure.

11.3.2 The Tudor period and beyond

Not all was well with the common law at the time of the crucial stage of the Reception in Europe (see MacMillan, K., 'English Law and Its Expansion', in OHELH, 830-53, as well as Herzog, Short Introduction, 131-51).

Following Wolsey's fall and the break with Rome, the possibility of the com­mon law being replaced by Roman law became even more remote. However, Henry VIII was prepared to create a Regius Professorship of Civil Law at Cambridge in 1540. The first holder—Sir Thomas Smith—acquired a reputation as a civilian in the French humanist tradition. See Stein, Character and Influence, 186 ff. On the other hand, when Wriothesley LG allegedly tried to introduce further Roman practices in Chancery in 1546, he was dismissed. The pulses of Romanists may have quick­ened for a while in the early seventeenth century when James I, who as James VI of Scotland had ruled for some years in a country experiencing a partial reception, found himself much at odds with the common law of England.

Later, outstanding judges such as Holt CJKB and Lord Mansfield made use of their erudition in Roman law in the development of the commercial law of England. Moreover, English jurisprudence came to be influenced by Roman law. For exam­ple, the views of Austin, one of the founders of English positivism, were coloured by his studies in Bonn of the work of early nineteenth-century German jurists such as Savigny. Austin's study of Roman law clearly influenced his theories about the nature of law, particularly his view of law as the command of a sovereign (see Tamm, Roman Law, 240-1).

11.3.3 Roman law and modem English law

Although Roman law never became a dominant influence in England, it has made a significant contribution to English legal culture (see Wauters et al„ History, 144-67). Part of the stock-in-trade of the modern English lawyer consists of the language of Rome and her law—animus, consensus ad idem, restitutio in integrum, sui iuris, inter vivos, ultra vires, eiusdem generis, and so forth. But it is more than just a ques­tion of vocabulary: the grammar of English law has been influenced, especially as regards the basic distinctions and the classification of the law, e.g. the distinction between actions in rem and in personam, or between gifts inter vivos and mortis causa. And well-known maxims such as id certum est quod certum reddi potest and concepts such as ncc vi, nec dam, necprecario, in the operation of easements (see Newnham v Willison later in the chapter) testify that the substantive content of modern English law has some Roman borrowings.

Workers Trust and Merchant Bank Ltd v Dojap Investments Ltd [1993] AC 573

The issue in this case was whether a deposit that had been paid under a contract of sale of land was forfeited to the vendor on the failure by the purchaser to complete on the due date. The Bank had sold premises to Dojap under a contract requiring a deposit of 25 per cent, the deposit to be forfeited if the purchaser failed to complete in time (time being of the essence). Dojap failed to complete in time. In the course of the judgment of the Privy Council, Lord Browne-Wilkinson stated (S78-9):

In general, a contractual provision which requires one party in the event of his breach of the contract to pay or forfeit a sum of money to the other party is unlawful as being a penalty, unless such provision can be justified as being a payment of liquidated damages being a genu­ine pre-estimate of the loss which the innocent party will incur by reason of the breach. One exception to this general rule is the provision for the payment of a deposit by the purchaser on a contract for the sale of land. Ancient law has established that the forfeiture of such a deposit (customarily 10 per cent of the contract price) does not fall within the general rule and can be validly forfeited even though the amount of the deposit bears no reference to the anticipated loss to the vendor flowing from the breach of contract... The special treatment afforded to such a deposit derives from the ancient custom of providing an earnest for the performance of a contract in the form of giving either some physical token of earnest (such as a ring) or earnest money. The history of the law of deposits can be traced to the Roman law of arra, and possibly further back still: see Howe v. Smith (1884) 27 ChD 89 per Fry LJ at pp. 101-2. Ever since the decision in Howe v. Smith, the nature of such a deposit has been settled in English law. Even in the absence of express contractual provision, it is an earnest for the performance of the contract: in the event of completion of the contract the deposit is applicable towards payment of the purchase price; in the event of the purchaser's failure to complete in accordance with the terms of the contract, the deposit is forfeit, equity having no power to relieve against such forfeiture.

However, the special treatment afforded to deposits is plainly capable of being abused if the parties to a contract, by attaching the label 'deposit' to any penalty, could escape the general rule which renders penalties unenforceable.

The Privy Council's view was that the deposit in this case was not a true deposit by way of earnest; that the forfeiture provision was a penalty; and that the deposit should be returned, subject to the retention of a fund by the Bank for any damage that it might have suffered by reason of the failure to complete on time.

Sen v Headley [1991] Ch 425

The issue was whether there could be a valid donatio mortis causa (see 7.3.2) of realty. Shortly before his death from terminal cancer, the donor told the donee that he was giving her his house. The deeds were kept in a steel box, the key to which had been given to the donee by the donor. The Court of Appeal held that a valid donatio mortis causa had been made. The decision was controversial because there had previously been considerable doubt whether land could be the subject of such a gift. And property lawyers were understandably concerned that valuable realty could be legally transferred by little more than the utterance of a few words. Nevertheless, the result was consistent with the position in Roman law, although the court did not specifically rely on Roman principles in reaching its decision. But the court did recognize the Roman ancestry of the rules that the gift must be made in contemplation of death and that the gift was to be regarded as absolute only when the donor died.

Newnham v Willison (1987) 56 P & CR 8

This was a dispute between neighbours concerning the plaintiff's use of tracks over the defendant's land. The plain tiff had a tight of way over the tracks and contended that the junction between them was a curve rather than a comer. However, he failed to establish the requisite twenty years' use (of the junction as a curve) immediately prior to the proceedings because for over a year prior to the action the defendant had objected to the particular way in which the plaintiff was using the tracks, and had occasionally tried to obstruct him. The plaintiff thus failed to show that his use was not by force, secrecy, or permission, i.e. nec vi, nec dam, necprecario. An extract from the judgment of Kerr LJ in the Court of Appeal (17):

In Megarry and Wade [Low of Real Property, Sth edn. at p. 870] the following passage in my view presents a correct summary of the position on the authorities. The heading is 'User as of right': 'The claimant must show that he has used the right as if he were entitled to it, for otherwise there is no ground for presuming that he enjoys it under a grant. From early times English authorities have followed the definition of Roman law: the user which will support a prescriptive claim must be user nec vi, nec clam, nec precario (without force, without secrecy, without permission). The essence of this rule is that the claimant must prove not only his own user but also circumstances which show that the servient owner acquiesced in it as in an established right. Since the necessary conditions are negative, it is usually the servient owner who alleges that the user was either forcible, secret or permissive; but the burden of proof on these matters nevertheless rests on the claimant'.

Newnham v Willison is one of a stream of cases down the years in which the nec vi, nec clam, nec precario principle has been at issue. Scarcely any other rule of Roman law has had (and continues to have) such widespread application in English law. A more recent example is:

Mills v Silver (19911 1 All ER 449

The case concerned the acquisition of a prescriptive right of way. The defendants alleged that they were entitled to drive vehicles over a rough track leading from their upland farm in the Black Mountains (one of the highest points of agricultural land in England) across the plaintiffs' land to a public road. Although the plaintiffs made it clear that they did not accept that the defendants had any right to cross the land with vehicles, the latter continued to use the track for that purpose. Indeed, they employed contractors to lay some 700 tons of stone to make the track pass­able in all weathers. The plaintiffs sought a declaration that the defendants were not entitled to use the track with vehicles, an injunction restraining them from doing so, and damages for trespass. The plaintiffs were successful at first instance, but the Court of Appeal ruled that the defendants had a right of way with vehi­cles. A crucial issue was whether such user had been nec precario. Micklem J held at first instance that the tolerance of such user by previous owners of the plaintiffs' land constituted implied permission. The user was thus by permission (.precario) and hence prevented a prescriptive right of way from arising. But on appeal it was held. that the user was necprecario: the user could not be regarded as being by permission. simply because the previous landowner had tolerated it. The award of damages for trespass stood, however, because the improvements made to the track went beyond j the defendant's right to make repairs.

Waverley Borough Council v Fletcher [1995] 4 All ER7 56

The defendant found a valuable medieval gold brooch whilst scanning ground in < a public park with his metal detector (he had to dig some nine inches for it). The plaintiffs—the owners of the park—claimed the brooch after a coroner's inquisition had decided that the brooch was not treasure trove. At first instance it was held that the defendant was entitled to it; but the Court of Appeal held in favour of the local authority, applying the principle that an owner of land owned all that was in or attached to it. This was a superior right to that of the finder. In Roman law, the owner would have been absolutely entitled—assuming the brooch was not treasure—without the issue of 'superior right' obtruding, Auld LJ commented that 'the English law of ownership and possession, unlike that of Roman law, is not a system of identifying absolute entitlement but of priority of entitlement’ (764).

Oil Corporation Ltd v Greenstone Shipping SA (Panama) [1988JQB 345

This case illustrates how even the most arcane rules of Roman law may have a vital application in modern law. The owners of an oil tanker, chartered to transport a quantity of Russian crude oil belonging to Indian Oil Corporation, wrongfully mixed the Russian oil with their own crude on board the ship. The mixture of oils could not be separated—a classic case of confusio (see 7.2.4). Having received short delivery, Indian Oil Corporation claimed damages, and that it was entitled to the residue of oil on board the tanker. The court, upholding the arbitrators' decision, allowed damages but held that the claim to all the oil on board the ship must fail. Where a party wrongfully mixed his own goods with those of another, and they could not practicably be separated, the resulting mixture was held in com­mon, the innocent party being entitled to a quantity equal to that of his goods in the mixture.

The judgment in this case was in effect an application of the Roman princi­ples on amfusw. Oil, international trade, tankers... and confusio—oil drives the modern world and yet its ownership depends in some circumstances on principles formulated in ancient Rome.

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FURTHER READING

Backman, C. R. (2003), The Worlds of Medieval Europe, Oxford: Oxford University Press, contains a particularly readable account of the history of Byzantine law and society. For an overview of later Byzantine law, see Laiou, A. E. and Simon, D. (1994), Law and Society in Byzantium: Ninth-Twelfth Centuries, Washington, D.C.; Dumbarton Oaks Research Library and Collection. Those with an interest in the reign of Justinian may also wish to focus on Maas, Μ. (2005), The Cambridge Companion to the Age of Justinian, Cambridge: Cambridge University Press.

On medieval learned law, see Van Caenegem, R. C. (1991), Legal History: A European Perspective, London: Hambledon; and Drew, K. P. (1988), Law and Society in Early Medieval Europe, London: Variorum, for an informative overview of the period. 1'hose with a keen interest in specific aspects of this period may also wish to consult one of the following works, Ullmann, W. (1975), Law and Politics in the Middle Ages, Cambridge: Cambridge University Press; Ullmann, W. (1980), Jurisprudence in the Middle Ages, London: Variorum; Ullmann, W. (1988), Law and Jurisdiction in the Middle Ages, London: Variorum.

On medieval canon law, see specifically Brundage, J. A. (1995), Medieval Canon Law, London: Longman, and Evans, G. R. (2002), Law and Theology in the Middle Ages, London: Routledge. Those with a specialized interest may also wish to consult Ullmann, W. (1975), The Church and the Law in the Earlier Middle Ages, London: Variorum; Kuttner, S. (1983), Gratian and the Schools of Law 1140-1234, London: Variorum; Winroth, A. (2000), The Making of Gratian's Decretum, Cambridge: Cambridge University Press.

On the reformation and its effect on the development of the European ius commune, see comprehensively Berman, H. J. (2003), Law and Revolution II: The Impact of Protestant Reformations on the Western Legal Tradition, Cambridge, MA: Harvard University Press.

On natural law, Enlightenment and codification, see Stein, P. (1980), Legal Evolution: The Story of an Idea, Cambridge: Cambridge University Press; Watson, A. (1981), The Making of the Civil Law, Cambridge, MA: Harvard University Press.

On the reception of Roman law in Germany, see Kunkel, W., ‘The Reception of Roman Law in Germany', in Pre-Reformation Germany, 263-81; Berman, H. J. (1983), Law and Revolution, Cambridge, MA: Harvard University Press; Whitman,]. Q. (1990), The Legacy of Roman Law in the German Romantic Era, Princeton: Princeton University Press; Stein, P. G., 'Legal Education in Mid-Nineteenth Century in Germany through English Eyes’, in Quaestiones laris, 233-7; Van Caenegem, R. C. (2002), European Law in the Past and the Future—Unity and Diversity over Two Millennia, Cambridge: Cambridge University Press.

On the reception of Roman law in the Netherlands, see the particularly readable account of Zimmermann, R., 'Roman-Dutch Jurisprudence and its Contribution to European Private Law' (1992) 66 Tulane LR, 1685-721. Those with a keen interest in this topic may also wish to consult Van Caenegem, R. C. (1994), Law, History, the Low Countries and Europe, London: Hambledon, as well as Feenstra, R. and Waal, C. J. D. (1975), Seventeenth- Century Leyden Law Professors and their Influence on the Development of the Civil Law: A Study of Bronchorst, Vmnius and Voet, Amsterdam: North-Holland Publishing Company.

On customary law in pre-feudal and feudal Scotland, see Stein, P. G., ‘Roman Law in Medieval Scotland', in Stein, Character and Influence, 269 ft.; Sellar, W. D. H., ‘The Common Law of Scotland and the Common Law of England', in Davies, R. R. (ed.) (1988), The British Isles, 1100-1500, Edinburgh: John Donald, 82-99.

On the reception of Roman law in Scotland, see Stein, P. G., 'The Influence of Roman Law on the Law of Scotland’ (1963) Juridical Review, 205-45; Stein, P. G. (1968), Roman Law in Scotland tins Romanum Medii Aevi, pars v, 13b), Milan: Giuffre; and Cairns, J. W., 'The Civil Law Tradition in Scottish Legal Thought', in Civilian Tradition, 191-224.

On English common law, see Van Caenegem, R C., 'The English Common Law. A Divergence from the European Pattern' (1979) 47 TR, 1-7; Van Caenegem, R. C. (1988), Birth of the English Common Law (2nd edn.) Cambridge: Cambridge University Press; Hudson, J. (1996), The Formation of the English Common Law: Law and Society in England from the Norman Conquest to the Magna Carta, London: Longman.

On the debate concerning the use of Roman law as the basis of the new ius commune of the European Union, see Cairns, J. W., ‘Comparative Law, Unification and Scholarly Creation of a New Ius Commune' (1981) 32 Northern Ireland LQ, 272-83; Schulze, R., ‘European Legal History—A New Field of Research in Germany' (1992) 13 JLH, 270-95; Zimmermann, R., 'Roman Law and Comparative Law: The European Perspective’ (1995) 16 JLH, 21-33; Luig, K., 'The History of Roman Private law and the Unification of European Private Law' (1997) 5 ZEP, 405-27.

For a good recent account of the impact of Roman law upon the development of law in Eastern Europe, see various chapters collected in the newly published OHELH.