Introduction

The influence of Roman law upon the law in England, whether directly or through the medium of Canon law, has been the subject of much recent attention.

The early brush with Roman legal ideas in the Latin treatises of Glanvill and Bracton are thus shown not to have been the isolated events they were once considered to be.^[410] An awareness of Roman solutions - though one might also say a wariness of Roman solutions - is to be found throughout the history of the Common law down to modern times.^[411] These influences upon the substantive solutions advanced in the Common law courts continued into the seventeenth and eighteenth centuries. In his famous and influential judgment Coggs v. Bernard^[412] Chief Justice Holt enumerated a list of contracts utilising Roman categories. In the later eighteenth century a number of leading English judges, amongst them Lord Mansfield and Mr Justice Wilmot, displayed and made use of Roman texts and arguments.^{[413] [414]} Such occasional forays into the Roman world continued into the nineteenth century.

II

The quotation in the title of this essay comes from an exchange between counsel and Bench in the mid-nineteenth-century case Acton v.

Denique Marcellus scribit: Cum eo qui in suo fodiens vicini fontem avertit, nihil posse agi, nec de dolo actionem: et sane non debet habere, si non animo vicino nocendi, sed suum agrum meliorem faciendi id fecit."

The whole catena of texts, according to counsel, amounted to this: ‘that, as to flowing water, each party is entitled to use it as it passes through his own land, and if another takes away the water, or draws it off, an action is maintainable against him’.

At this point in the oral argument one of the judges, Maule, J., intervened:

It seems to me that what Marcellus says is against you. The English of it I take to be this: if a man digs a well in his own field, and thereby drains his neighbour’s, he may do so, unless he does it maliciously.¹²

Counsel for the plaintiff tried to escape from this trap of his own making by some unconvincing arguments about the limitations of Roman hydraulics: ‘that the Romans knew little about cutting off or using underground currents of water appears from their use of aqueducts’.

In its judgment the Court of Exchequer Chamber was careful to distance itself from Roman solutions:

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 at which we have arrived, if it proves to be supported by that law, the fruit of the researches of the most learned men, the collective wisdom of

⁹       Shury v. Piggot (1625) 3 Bulstr. 339; Browne v. Best (1747) 1 Wils. 174; Mason v. Hill (1833) 5 B. & Aid. 1.

¹⁰       5 B. & Aid. 1 (per Lord Denman, C.J.).

¹¹       D.39.3.1.12 (Ulpian, 53 ad edictum). For a translation see the text to n. 12 immediately below.

^{color=black face="Times New Roman">12}       12 M. & W. at 336.           ¹³ 12 M. & W. at 347. ages and the groundwork of the municipal law of most of the countries in Europe.

The court then cited the opinion from Marcellus as being ‘decisive... in favour of the defendants.¹⁴

In two respects this case casts a useful light upon the relationship between English and Roman Law. In its judgment the court is careful to place the generous tribute of the importance of Roman law in the context of a definite distancing of Roman from English solutions: ‘The Roman law forms no rule binding...

Secondly, however, the formulation of the quotation is of some sig­nificance, combining as it does a translation of a recurrent and familiar Latin formula quod Marcellus ait with a typical Common law expression ‘this is against you’ - meaning, in fuller form, ‘this matter or argument tells against the position which you are seeking to establish’.¹⁶

The epigrammatic character of the quotation is not haphazard: its author, Maule, J., was famed for his mordant wit in court. It was he who, on another occasion, uttered the comprehensive dismissal of counsel’s argument: ‘The last point is perfectly new, and it is so startling that I do not apprehend it will ever become old.’¹⁷

The juxtaposition of the Common law and the Roman expressions in a context where their respective roles are neatly distinguished illustrates my theme, namely the extent to which the Roman law furnished a model for the comprehension of the Common law in the early modern period.

Ill

There are two sub-themes: first, what actually happened - how, that is, the Common law acquired a method of analysis drawn from the Roman law, with its divisions into Persons, Property and Actions and subord­inate classifications, Property and Obligations further classified into Con­tract, Delict (Tort) and ex variis causarum figuris.

¹⁴ 12 M. &W. at 353.              ¹⁵ Cf. n. 4.

¹⁶       It has been pointed out to me (by Reuven Yaron) that this argumentative formulation is not restricted to the Common law but is to be found within other legal traditions. For my present purposes, however, nothing turns on this. It may even be, though I doubt it, that some such phrase formed part of the stock in trade of Roman advocates. What is relevant is that it left no trace in the written Roman texts.

¹⁷       Whitaker v. Wisbey (1852) 12 C.B. 44 at 48. is much room for discussion about the extent of penetration of Roman ideas. They are to be found much more in the field of Obligations than outside it - the common use of the notion ‘Obligations’ in the Common law rather than the combination ‘Contract and Tort’ is a relatively recent departure which may illustrate the continuing intellectual interaction between the two traditions.¹⁸ However, some would seek to minimise the extent of influence from Roman law, arguing that the divisions to be found in both systems are in some sense natural and intrinsic to the subject-matter. This is a difficult problem to resolve, but it must be at the very least suggestive that around 1600, when the Common law was moving from a remedy-based system in which procedure was dominant in lawyers’ minds towards a system in which substantive rules of law were consciously decided in court by judges, we can observe the emergence of a class of institutional writings designed to help organise this new learning.

The second sub-theme, therefore, is the intellectual history of this species of institutional writing in the Common law which stretches from Cowell around 1600 to Blackstone in the 1750s.

¹⁸       See, for example, A. Tettenborn, An Introduction to the Law of Obligations (London, 1984).

¹⁹       See S. E. Thome, Readings and Moots in the Inns of Court in the 15th century, vol. I, Selden Society vol. 71 (London, 1954) and P. Brand, ‘Courtroom and Schoolroom: The Education of Lawyers in England Prior to 1400’ (1987) 60 Bulletin of the Institute of Historical Research 147. less scope for general reflexion or the borrowing of Roman ideas. Where opportunities occurred, Roman solutions were not ignored.^[416]

From around 1600 the situation changed. In what can be recognised as the advent of legal humanism in England there began to appear works designed to introduce and explain the Common law to beginners. These required a structure more rigorous than the alphabetical arrangement of the practitioner’s vademecum. As we shall note, those which ignored this need were markedly less successful. The first such works were authored by those who were at least part-time academics rather than Common law practitioners and were probably aimed at a scholarly rather than an intending practitioners’ market. It has to be remembered that well into the nineteenth century the main avenue for study of the Common law was by attendance as an apprentice in chambers and in court, not at the univer­sity or any school of law. The late eighteenth-century law reports still allude to remarks being made by judges ‘for the sake of the students’ attending the court for instruction in their discipline. When in 1774 a rare type of process by writ of right for land came on for trial in the King’s Bench the court ordered that ‘the galleries of the Court be open for the admission of students of the inns of Court’ and took special care that the door-keeper of the court did not take advantage of the demand for seats to extract improper fees.^[417]

The first English institutional writer of the early modern period, Cowell, was in fact a civilian and teacher of Roman law in Cambridge; his work was really an attempt to place Common law decisions in juxta­position to passages drawn from Justinian’s Institutes.^[418] Written in Latin and by an author whose political views were at marked variance with those of the majority of Common lawyers, the work, although clearly popular with students at the universities for whom it was in all likelihood intended, was not of great importance for the practice of the Common law. Cowell took little account of the actual structure of the Common law system. It is instructive to compare the near contemporary applications of the Roman institutional model to Canon law by Lancelotti and to French law by Coquille, both of whom make serious efforts to mould their model to the needs of the subject-matter, even to the extent of escaping from the Roman framework altogether.^[419]

Cowell had a contemporary, Fulbecke, who has been somewhat over­looked, largely because he wrote for a rather humbler market.^[420] He had been a pupil of Gentili at Oxford, and his little introduction to the study of law, published in English in 1599, made one or two attempts at classification which show familiarity with both the method and the substance of the Institutes. His sevenfold analysis of things, made a little more confusing by some poor proof reading, proceeds as follows: ‘1. Absolute or qualified title; 2. Joint or several ownership; 3. servitudes; 4. wild animals; 5. occupatio pro derelicto·, 6. treasure trove; 7. res sacra'.^[421]

Contemporary sceptics of Romanist influence on the Common law have a champion in Coke. A leading lawyer and judge, and contemporary of Cowell and Fulbecke, Coke was of the opinion that ‘For bringing the Com. Laws into a better Method, I doubt much of the Fruit of that Labour.’^[422] His own attempt at a comprehensive treatise in four books, surely jestingly entitled respectively the First, Second, Third and Fourth Part of the Institutes of the Laws of England, illustrates the serendipity of the Common law at its most extravagant.^[423] The work, or really works, for it is not a whole, owes nothing to Justinian beyond the title. Coke may well have been right to doubt the possibility of reducing the Common law of his day to method. Bentham was to criticise Blackstone, almost two centuries later, for having ignored the fact that the actualities of the legal system were at odds with Blackstone’s description of it, and there are still to be found in law schools in England those who vehemently deny the relevance of theoretical studies of the law.^[424]

It should be noted that there was a quite independent tradition of institutional writing on English law starting with the work of Henry Finch in 1613. Finch’s work, called Nomotechnia but written in the obsolescent French dialect of the Common lawyers, is in four books in the published version, but there exists an early draft (c. 1586) in only two books.^[425] Moreover the content of the books does not follow an overtly Justi- nianic pattern, for though book I starts with the Law of Nature, it does not proceed to Persons. Books II and III deal with what Finch identi­fied as the two parts of the Common law, Property and Crime (the latter subsuming private wrongs) and book IV with Courts and pro­cedure. All in all, though a case could be made for some indirect Roman influence on the published four-book format, it seems best to conclude with Prest that Finch’s largest debt was to the Ramist methodological tradition.

These first attempts to institutionalise the Common law in the seven­teenth century did not achieve overmuch. This may have been because the need for method was as yet not pressing. Until the Civil Wars of the mid seventeenth century there remained an effective legal educational system at the Inns of Court.^[426] Only in the early years of the eighteenth century did it become apparent that in the absence of a programme of lectures or readings in the Inns, mere attendance in court and in chambers, however important in matters of detail, was inadequate to generate an overall and theoretical model of the Common law sufficient to support change and development. The first attempt to meet this need was that of Thomas Wood, whose An Institute of the Laws of England^[427]' was well known until eclipsed by Blackstone in mid-century.

When Blackstone started to lecture at Oxford in 1753 he chose to teach the Common law only because he had been disappointed of election to the chair of Roman law.^[428] He claimed to have adopted as his model Hale’s Analysis of the Law,^[429] which was in turn based upon the Justinianic model. Book I of Blackstone’s Commentaries^[430] deals with the law of Persons, Book II Things (i.e. land law) and books III and IV Private and Public Wrongs (essentially procedure and crime). The structure in four books is institutional, as is, broadly, the order of treatment, making allowances for the relatively undeveloped law relating to obligations and the overwhelming importance of the land law. As Lobban has recently observed, ‘the Commentaries were not a treatise on legal reasoning but a summary of the law’,^[431] and he might have added ‘written cupidae legum iuventutf ^[432]

IV

By the beginning of the nineteenth century it could be said that Roman law had played two roles in the life of the Common law. Substantively it had been utilised to help resolve particular problems where there was no Common law authority and, more subtly, it had influenced those areas of law which the Common law shared with or took over from the ecclesi­astical jurisdictions. As far as theory was concerned, the Roman institutional scheme had been influential since at least the 1600s, though not until the time of Wood and Blackstone was this of much relevance for the general ordering of understandings of the Common law.

Why was there a turn away from Roman law in the mid nineteenth century? Beginning in the late eighteenth century there was a slow emer­gence of practical treatises on areas of the Common law hitherto unsyste­matised except in institutional works.^[433] These owed nothing to the Roman tradition. It is notorious that the modern Common law lacks an institutional tradition. No one writes books on the Law of England in fewer than fifty volumes. As far as practical influence is concerned it may not be entirely irrelevant that by legislation in 1857 the old non-Common law jurisdictions were effectively abolished, their control over such matters as marriage, testamentary succession and maritime or Admiralty matters passing to the Common lawyers.^[434] Although they continued to operate broadly within the framework of the old law, it was inevitable that in time Common lawyers would approximate solutions in these areas to those found in the Common law generally. More significantly the demise of the old Civil law tradition in which the practitioners of the old jurisdictions had been expert removed from the acquaintance of the Common lawyers those with a detailed and practical knowledge of law based upon Roman texts. Before 1843 the Civil lawyers are frequently and directly involved by name in Common law litigation.

After the mid nineteenth century, although there was, paradoxically, a growth in the number of Common lawyers exposed to Roman law in the course of their legal education,^{[435] [436]} there was no longer any opportunity to experience Roman law in action. The study of Roman law, although it was to flourish at times in England as an academic legal discipline, was no longer to have direct effects upon the practice of the Common law or its understanding.