ROMANISATION OF ENGLISH LAW -- juxta exempla romanorum

Speranza

Roman law makes rapid strides in BRITANNIA during the second and third centuries A. D., as is attested by the writings of the Roman jurists:

JAVOLENUS

and

ULPIAN

Both Javolenus and ULPIAN discuss cases arising in BRITANNIA.

YORK was the seat -- for THREE YEARS -- of the TWO HIGHEST ROMAN TRIBUNALS, with PAPINIANUS, the prince of Roman jurisconsults, as Chief Justice, and ULPIAN AND PAULUS as associate justices.

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In 603, A. D., ETHELBERT, king of Kent, set in writing the laws of the kingdom of Kent "according to the Roman mode" -- juxta exempla romanorum -- as Bede has it.

Roman law was studied at York (ALCUIN: "illos juridical curvait cote polire"), since there was no Oxford then.

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King Alfred visited Rome in his youth and was impressed. His later legislation is Roman-inspired.

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CANUTE too had visited Rome, and he was personally acquainted with the Roman emperor.

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Pollock and Maitland, in History of English law, note that Edward the Confessor's most trustworthy manuscript contains quite a few fragments of Roman law.

William the Conqueror's prime minister was LANFRANCO, an Italian.

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LANFRANCO had studied law at Pavia.

Roman law is the source of English common law.

The Bologna revival of Roman law reached England in the twelfth century.

Not long after the school of the GLOSSATORS was inaugurated at Bologna, the Lombard VACARIO came over to England in 1149.

VACARIO was appointed professor of law at Oxford.

He lectured on Roman law.

He wrote an abbreviation of Justinian's code for the use of students who "are", in his words, "too poor to obtain copies of the originals."

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Because VACARIO's book was for the poors,  students of law at Oxford were called, for a long time,
pauperistae.

The title of Vacario's book is:

LIBER EX VNIVERSO ENVCLEATO IVRIS EXCEPVS & PAVPERIBVS PRÆSERTIM DESTINATVS

---- It sold pretty well at Blackwell's.

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In the thirteenth century, Roman law was taught at Cambridge.

This is what we call "The Roman Epoch of English law" --or Romanisation, as I prefer.

Roman law authorities were cited as PRACTICALLY CONCLUSIVE.

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One law:

"where no time is set for the performance of a promise, performance can be demanded AT ONCE"
Digest of GIUSTINIANO, Book 50, Title 17, section 14.

Grice:

"I promise to go to London."
"When"
"I won't say"
"That means: NOW".

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Then there was the influence of the CONSOLATE DEL MARE into English naval laws (Laws of Oleron, perfected in the eighteenth-century by Lord Mansfield).

Admirals are asked to swear to judge according to the laws of Oleron.

--- they forbid piracy, for example.

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The very phrase, "Common Law" is a translation from Roman law, "JUS COMMUNE".

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Trial by jury seems to imitate certain features of Roman law procedure.

The root is the JUDICES, or persons selected by the praetor in Roman law to determine the facts in legal controversies.

The first book on English law was written in LATIN:

TRACTATVS DE LEGIBVS & CONSVETVDINIBVS REGNI ANGLIÆ

It is pretty amusing!

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It is not too theoretical or philosophical, but why should it be?

What about the inventor of the MAGNA CHARTA.

Surely he invented from whatever he remembered of Roman civilization as created by Roman law.

At this very time, there was discovered in Italy a splendid manuscript of GIUSTINIANO's Digest, which caused the Bologna revival of Roman law study which spread over all western Europe. The thing is now preserved in the Medicean Library in FIRENZE.

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The first scientific English jurist was surely well acquainted with Roman law, as per his Oxford education.

Bracton wrote in Latin:

DE LEGIBVS & CONSUETVDINIBVS ANGLIÆ

It is a better work than Glanville's. It is more theoretical -- a veritable exposition of law.

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It testifies to the influence of Roman law.

Bracton's importation of Roman law was extensive.

He followed as a model the plan of the Institutes of GIUSTINIANO.

He also shows great familiarity with the OTHER parts of GIUSTINIANO's "CORPUS JURIS".

One of Bracton's reference is

Azo, SUMMA.

Azo was an Italian glossator .

Bracton attempts to build up English law from Roman law.

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He extracted from Giustiniano's Institutes all its law of personal property.

Thornton later abridged Bracton and called his work "SUMMA" -- a technical term of the Italian glossators.

The jurist FLETA imports into English law still more Roman law.

And then there's Britton's SUMMA, again so titled in imitation of the Italian glossators.

Most of the basic principles of English law of Admiralty, Wills, Successions, Obligations, Contracts, Easements, Liens, Mortgages, Adverse Possession, Corporations, Judgements, and Evidence, come from the survival or revival of Roman law.

The fundamental conceptions of Habeas Corpus and Trial by Jury as well as many principles of the Law of Torts are of Roman origin.

Even the phrase, "Every man's house is his castle" is of Roman origin.

It is first found in the era of the Roman Republic, when the barbarians in Britain or Germany had no houses worthy of the name: Digest 2, 4, 18, expressly prohibits forcing a man from his house to drag him to court, thus re-affirming Cicero's statement of the same prohibition.

English law statutes resemble in form the Constitutions of the Roman emperors.

English law reported cases resemble the Responsa Prudentium as contained in the Digest.



REFERENCES

Ortolan, History of Roman law.
COLQUHOUN, Roman law.
Hunter, Roman law.
Scrutton, Roman law in England.