THE RECEPTION OF ROMAN LAW

As the national states in continental Europe gloried in their new found ‘sovereignty’, and set up professional courts to take over important busi­ness from local courts, they uniformly adopted a variant of the Romano- canonical procedure.

Everywhere there was a need for the more comprehensive and tech­nically superior law that was offered in Justinian's texts. but the extent of its adoption depended on the local circumstances. The situation in Britain illustrates the process of the reception. At the beginning of the sixteenth century. the northern part of the island. Scotland. had a cus­tomary law similar to that of England but far less developed. since. unlike England. it lacked both a central court of professional judges and a core of trained lawyers. In 1532 a permanent court of professional judges. the Court of Session. was set up and it adopted the standard con­tinental written procedure. As far as possible. it applied traditional Scots law but in cases where no guidance was to be found in that law. the lawyers turned to the ius enmmune. An act of the Scots Parliament of 1583 refers to a civil law rule as ‘the disposition of the common law'.

The situation in England was more complex. After its flirtation with the civil law in the time of Bracton. the English common law had become a highly sophisticated discipline with a well-trained core of lawyers. who had studied at the Inns of Court in London. a legal uni­versity in all but name. It had. however. become inward-looking and resistant to change. One of its features was that. as in the formulary pro­cedure of classical Roman law. almost the only remedy that the common law offered was money damages. When other remedies came to be needed. such as an injunction to a party to do something or not to do something. or rectification of a document. they had to be sought else­where. Litigants petitioned the chancellor. as ‘the keeper of the king's conscience'. to give them the relief that the common law courts could not provide. This jurisdiction of the Court of Chancery. administering rules which were collectively known as Equity, grew up in the fourteenth and fifteenth centuries.

Most of the pre-Reformation chancellors were ecclesiastics, familiar with canon and civil law, and they drew freely on them in developing Equity. For example, the principal institution of Equity is the trust, under which the legal owner of property is compelled to hold it for the benefit of another person, the ‘equitable owner'.

England, of course, had its Church courts, applying canon law and procedure, and also certain courts which used the Romano-canonical procedure and directly applied the ius commune. The most important was the Court of Admiralty, which dealt with maritime disputes and other matters with an international character. The lawyers who accompanied the army on campaign in the capacity of judge-advocate also used the civil law, as did the courts of the vice-chancellors of the two English uni­versities of Oxford and Cambridge.

The common lawyers had no right of audience in the courts of canon and civil law. The practitioners in those courts belonged to a guild, equivalent to the Inns of Court, called Doctors' Commons. It was these doctors to whom the government turned to conduct international nego­tiations. For the most part they received their training at Oxford and Cambridge. On severing the links with Rome, King Henry VIII abol­ished the formal teaching of canon law, although in practice the courts of the Church of England continued to apply it in matrimonial and tes­tamentary matters and even took account of contemporary post­Reformation continental doctrine. The teaching of civil law, on the other hand, was strengthened and Henry chose it, together with other Renaissance subjects, such as Greek, Hebrew and Protestant theology, as the subjects of the Regius Chairs that he established in Oxford and Cambridge, the nomination for which was to be, and still is, in the Crown.

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