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stock of Argan tradition antecedent to the Coming to the solid ground of known distioction of race and tongue between history, we find that our laws have been German and Celt. And if in a given case formed in the main from a stock of Teu. we find that an institution or custom which tonic customs, with some additions of is both Welsh and English is at the same matter, and considerable additions or modtime Scandinavian, Greek, Roman, Sla ifications of form, received directly or vonic, or Hindu, we may be reasonably indirectly from the Roman system. Blackassured that there is nothing more specific stone's statement that the common law is in the matter. Or, if there be a true case doubtless of Saxon parentage has been of survival, it may go back to an origin as confirmed rather than shaken since he little Celtic or even Aryan as it is Ger- wrote, and, as a statement in the most genmanic. Some local usages, it is quite eral form, does not seem capable of amend. possible, may be the relics of a pre-historic ment. Blackstone seems to have imagined society, and of an antiquity now immeas-Anglo-Saxon law much more fully devel. urable, saved by their obscurity through oped than it really was. But this does not the days of Celt, Saxon, and Norman alike. affect the main position. Both the Ger. There is no better protection against the manic and the Romanic elements have stronger band; bracken and lichens are been constituted or reinforced at different untouched by the storm that uproots oak times and from different sources, and we and beech. But this is of no avail to the thus have a large raoge of possibilities to Celtic enthusiast, or rather of worse than which, in the absence of direct proof, we
Those who claim a Celtic origin must attend carefully in every case before for English laws ought to do one of two committing ourselves to a décision. things: prove by distinct historical evi. Taking first the Germanic material of dence that particular Celtic institutions our laws, we begin with the customs and were adopted by the English invaders, or institutions brought in by the English point out similar features in Welsh and conquest of Britain, or, rather, by the English law which cannot be matched series of conquests which led to the foreither in the laws of continental Germany mation of the English kingdom. or in those of other Aryan nations. This is the prime stock; but it by no Neither of these things, to the best of my means accounts for the whole of the Gerknowledge, has ever been effectually done. manic elements. A distinct Scandinavian Indeed, the test last named would be strain came in with the Danish invasions hardly a safe one. For the earliest docu- before the Norman Conquest, and was ments of Welsh law known to exist are so secured by the short period of Danish much later in their present form than the sovereignty. bulk of our Anglo-Saxon documents that, To some extent, though probably to no if a case of specific borrowing could be great extent, the Norman law and practice made out on the face of them, we should of William the Conqueror may be said to need further assurance that the borrowing have included similar matter. The main was not the other way. The favorite importance of the Norman contribution, method of partisans in this kind is, as has bowever, was in other kinds. Much been said, to enumerate coincidences. Anglo-Norman law is Germanic without And by that method the common law could being either Anglo-Saxon or Norse. The with little ado be proved to be Greek, Frankish monarchy, the nearest approach Slavonic, Semitic, or, for aught one knows, to a civilized power that existed in westChinese. One cannot say that no Celtic ero Christendom at the dawn of the Mid. elemeot exists in the common law, for dle Ages, was in many things a pattern for there are no means of proving so general its neighbors, and the state and forms of a negative. But it appears to me that its court were imitated by other dynasties there is no proof or evidence of its exist. according to their means. Archaic law ing in any such appreciable measure as lives so much.in forms and in distinction would make it necessary or proper to be of persons that what some centuries later taken into account in a summary view. would have been mere passing fashion was For example, there are doubtless fit times in the ninth or tenth century potent in and places for coosidering the possibility shaping institutions. Thus we received that Celtic details, assimilated in Gaul by through Normandy a contribution of French feudal law during its growth, may Frankish ideas and customs. It was, inhave passed into England as part of the deed, hardly foreign to us, being of kinNorman-French importation. But I do dred stock, and still not widely removed not think it would be reasonable to con. from the common root of Germanic tradisider it here.
tion. We must not omit, however, to
count it as a distinct variation. Neither mained continuous in a country where the must we forget that English princes had discontinuity of ecclesiastical affairs is so already been following, in some measure, pointedly marked, and in an age when the same Continental models as the dukes the Church was far more stable and comof Normandy. From the time of Charles pact than any civil institution whatever. the Great onward, the rulers of both Mer- And in point of fact there is no trace of cia and Wessex were in intimate relations the laws or civilization of imperial Rome, with the Frankish kings, and Alfred spent as distinct from the precepts and forms of a considerable part of his youth in the the Roman Church, in our documents of court of Charles the Bald.
the Anglo-Saxon period. Whatever is It is as needless, however, as it would Roman in them is ecclesiastical, The be difficult, to determine the exact share danger of arguing in these matters from of these conditions in fixing the contents mere enumeration of coincidences has aland form of Anglo-Saxon or Anglo-Nor ready been pointed out with reference to man laws. Even if we could determine it the attempt, in our opinion, a substantially accurately, the result would be as imma- similar one, to attribute English laws to terial for the general history of English a Celtic origin. This importation of Ro law as it is immaterial for the general man ecclesiastical rules and technical history of English literature (important training, in other words, of the system though it may be for philology), whether a which in course of time was organized as particular word occurring in Shakespeare, the canon law, was the first and by no and now in commop use, was or was not means the least important of the Roman common when Shakespeare used it. Of. invasions, if we may so call them, in our tentimes it is impossible, in default of Germanic polity. We need not doubt the specific evidence, to decide between the statement that English princes began to probabilities of similar but independent collect their customary laws in writing growth froni a common stock, and of im- after the Roman example made known' to portation or imitation in the particular them by Augustine and his successors.
Somewhat later the intercourse of En. We next have to speak of the Roman, glish princes with the Frankish court or more properly Romanic, elements in the brought in a fresh accession of Continental common law. This is a matter which re- learning and Continental form and pracquires careful distinction. It has been tice, in the hands of clerks indeed, but maintained at various times, and some applicable to secular affairs. times with great ingenuity, that Roman In this way the Roman materials assiminstitutions and forms persisted after ilated or imitated by the Franks easily Britain was abandoned by the Roman found their way into England at a second power, and survived the Teutonic inva- remove. Many, perhaps most, of the sions in such force as to contribute in facts that have been alleged to show the material quantity to the formation of our persistence of Roman institutions in Brit. laws. But there is no real evidence of ain are really of this kind. Such are, for this. Everything which is Roman or Ro- example, the formulas of the Latin charmanized can be accounted for by later ters in the “Codex Diplomaticus." We importation; and we do not find anything should hesitate, in any case, to draw conto show the existence of such elements inclusions as to the ways and habits of the time between the cessation of Roman thought of English country folk in the dominion and the reappearance of Roman ninth or tenth century from the phrases influence in other fornis. All the indica of a courtly scribe, who was as likely as tions, in fact, are the other way. We know not to have had his training on the Conti. that the language and the religion of nent, and quite possibly was not an EnRome were effaced. Roman Christianity glishman at all. But there is no need to had to make its fresh conquest of the English kingdoms almost as if the British
. Qui (Æthelbirht of Kent) inter cetera bona quae Church had never existed. The remnant genti suo consulendo conferebat etiam decreta illi of that Church stood aloof, and it would iudiciorum iuxta exempla Romanorum cum consilio seem that Augustine did not think it en- sapientium constituit, quae conscripta Anglorum ser
mone hactenus habentur et observantur ab ea. (Bede, titled to much conciliation, either by its Hist. Eccl. ii. 5.) But only the form, or rather the merits or by its importance.* It is diffi. fact of formal reduction to writing, is Roman, as any
one may see who will consult the text of Æthelbirhe's cult to believe that civil institutions re. laws. The passages of Aldhelm and others collected
in Savigny, Gesch. des R.R., i. c. 6, $ 135, show at • The story that Augustine offended the Welsh most that, in England as elsewhere, a tincture of RA bishops by not rising to receive them may be accepted man law entered into the studies of the more learned as symbolically if not literally true.
be content with hesitation when we know | tical courts after the Norman Conquest, * that the framers of Anglo-Saxon charters which was openly Roman. Other special had only to copy, with the necessary vari: jurisdictions were developed from time to ations, the style of the Continental for- time, in which the Roman methods pre. mularies which were already as abundant vailed. The greatest and most permanent and elaborate as any modern conveyancer of these, both in its actual constitution could wish. A weighty question indeed and in its effect on English jurisprudence is raised by the Continental materials on as a whole, was the Court of Chancery. their own ground, namely, what proportion Doubt is still possible, within a of Germanic and Franco-Gallic usages is siderable range, as to the origin of the of Roman origin, and how far those parts substantive law which the chancellors adwhich are Roman are to be ascribed to a ministered for something more than four continuous life of Roman institutions and centuries under the name of equity, as a habits in the outlying parts of the Roman system distinct from the common law; Empire in Europe, and especially in Gaul. but no doubt can be fairly entertained that Joteresting as these problems are, they certain parts of the system, the rules as concern Continental rather than English to legacies, for example, were derived scholars, and French scholars most of all. from Rome through the ecclesiastical A line of illustrious Frenchmea from courts. And certainly the canon law in Guérard to Fustel de Coulanges have made which the earlier chancellors had received the ioquiry their own. It is not one, at their training was the model on which they all events, to be pursued within my present formed their procedure.t Here, if anyscope.
where, is the true triumph of Rome on A further importation of more sudden English ground, and, except in a small and masterful fashion came with the Nor- minority of the United States, over the man Conquest. Not only had the Nor-whole field of the common law. In some maos learnt to speak a Romance tongue, points of procedure our latest rules have but the dukes of Normandy had adopted been brought back (though doubtless the official machinery of Frankish govern- without any set purpose to that effect) ment, including, of course, whatever Ro much nearer to principles of the civil law man elements had been taken up by the which had been disregarded or obscured Franks. Here, again, a remoter field of in the modern practice of courts of equity. inquiry lies open, on which we do not The law merchant added to the common adventure ourselves. It is enough to say law, after long remaining outside it, ele. at present, that institutions which have ments of a cosmopolitan character which nowadays the most homely and English it would be difficult to trace with accuracy appearance may nevertheless be ultimately to their ultimate sources. Inasmuch as connected, through the customs of Nor- the Mediterranean ports were the great mandy, with the system of government centres of trade in the Middle Ages, and elaborated in the latter centuries of the the Italians the leading mercantile peoRoman Empire.
ple, we may fairly set down those elements The fact that in law this kind of Ro- as being in a general way Romance rather manic influence operated almost wholly in than Teutonic; but it is doubtful whether matters of procedure does not make it the anything of ancient Roman tradition can less important, for procedure is the life of be deemed to survive in them. Some of archaic law. But this, it scarce need be the points which we find accepted in the remarked, is a very different matter from maritime law of the Middle Ages had the persistence of unadulterated Roman been accepted, as being well established elements. It may be possible to trace a by custom, in the classical Roman law. chain of slender but unbroken links from We can only say that in such a case the the court of our William or Henry to that of declared rule and the living usage would Diocletian or Constantine. Such a chain, confirm one another. Down to the seven. however, is in no way strengthened by the teenth century the customs of merchants well-attested fact that Papinian was once were treated as a kind of personal law.I at York, as it would in no way be weak. ened if that fact could be discredited.
• There seems to be no evidence of a settied ecclesiAt a later time, under the immediate astical procedure earlier. Cf. Stubbs, Lectures on influence of ecclesiastical learning and mission on Ecclesiastical Courts, 1883, pp. 22-24.
Canon Law, p. 8, and in Appendix to Report of Comjurisdiction, other Roman contributions † See C. C. Langdell, Summary of Equity Pleading, were made in a different and compara.
Cambridge, Mass., 1877..
* This view may be said to survive in those Contitively direct way. This does not refer nental states which have separate commercial codes only to the organization of the ecclesias. I and commercial tribunals.
The king caused them to be administered Chief Justice Holt sought his reasons in as between merchants (especially foreign Bracton, but in a passage copied by him, ers) by the chancellor. They were like as Holt must have known, from the In. wise administered by various local courts, stitutes ” of Justinian. There was nothing and it is probable that such trading con. specially Roman, however, in the conclu. panies as those of the Hanse towns had sion itself; and, in fact, Holt's colleagues their private courts of arbitration. Only arrived at it upon consideration of purely in the seventeenth century did the custom English authorities. In a very few mod: of merchants claim recognition in the ern cases the analogy of Roman law king's ordinary courts; only in the eigh-|(more exactly speaking, the opinions of teenth was it admitted as an integral part Roman lawyers of the classical period) of the general law. First it was a system has been expressly relied on in deciding a apart from the common law, not only in point on which English decisions afforded substance but in jurisdiction. Then it no guidance. I cannot recall more than was a matter of fact that could be noticed one clear example of this. by the king's courts, but still matter to be As to the use made of Roman materials proved by the testimony of merchants, as by Bracton and others in the thirteenth foreign laws and particular customs have century, the extent and significance of it still to be proved by some one versed in can be appreciated only in connection with them. At length it was embodied in the the detailed history of the national develcommon law, and having once been ac-lopment of the common law. But it may cepted, was removed from the region of be provisionally stated that the influence disputable testimony. Traces of this of Roman learning on English lawyers original exotic character may still be noted outside ecclesiastical courts was at its by careful students even in the modern highest a thing rather of form than of law. Meanwhile there has long ceased to matter. No attempt was made to oust be a uniform mercantile law of nations, English rules of law from any ground that and if there be any living analogy to the was already covered. Bracton, however old_law merchant, it is in the endeavors freely he uses Roman law for ornament or of English and American jurisprudence, supplement, does not scruple to contradict within the last few generations, to main. it flatly when an adverse English doctrine tain something like a constant agreement is in possession. After the thirteentb in the development of legal principles century Roman influence, whatever it affecting the commercial intercourse of had been, steadily declined ; and the ReBritish and American citizens.
naissance, coinciding as it did with the It remains to ask ourselves to what Reformation, operated in England only to extent Roman law has been at any time confirm the insularity of our legal system. deliberately adopted or imitated in this The study of Roman law at the univercountry by judicial or legislative authority. sities has, again, a history of its own. There has been very little indeed of such All that concerns us at present is to note following in the reign of secular legisla. that after the twelfth century this study tion. Justinian's rule of intestate suc- was divorced from the study and practice cession was virtually made the English of the ordinary law of the land. In fact, rule, as regards personal property, by the the latter mediæval theory, as we find it Statute of Distributions of Charles II. in Fortescue, was that the Inns of Court This, however, was in a department which were a kind of special university for the had formerly belonged to ecclesiastical study of the common law. The "state jurisdiction, and in all probability the and degree " of serjeant-at-law seems to Statute gave a definite sanction to what have been intended to answer to the de. had already been common practice, though gree of doctor,* and some of the ceresubject to be varied by local customs. Šo mooies formerly used on the creation of a far as the customs that were superseded serjeant were identical with those estab. partly by the Statute of Distributions, and lished in the law faculties of Paris or partly by still later acts of Parliament, Bologna. But there was no sort of alliwere of Teutonic origin, the state of mod- ance or exchange of ideas between comern law may count as a Roman victory. mon lawyers and civilians; it was rather Judges and text-writers, on the other hand, have been indebted to the Romans and
* So Fortescue, "De Laudibus Legum Angliæ," c, their commentators for a good deal of 50: Licet gradus huiusmodi (doctoratus) in legibus illustration and ornament, and sometimes Angliæ minime conferantur, datur tamen in illis, nefor no trifling amount of method and lito minus celebris aut sollennis, qui gradus servientis ad
dum gradus sed et status quidem, gradu doctoratus non erary framework. In one celebrated case legem appellatur.
a point of etiquette for each to profess that because I have walked along it so ignorance of the other's learning. Under often, it is perfectly easy if you are not Edward VI, an attempt was made to add inclined to be giddy, — and when you get a course of English law to the studies of to the end, you feel quite far out at sea ; Cambridge doctors, but it does not appear for, looking straight ahead across the that anything came of it. Serious work in water, it is easy to forget the land behind the law schools of both universities has you, and see only the Scotch islands lying been revived, and made to include English blue and distan on the horizon. There as well as Roman law, within our own is the Mull of Cantyre, backed like a memories. Save so far as the civilian whale, and Sanda, and Ailsa Craig, a round training of Oxford or Cambridge contrib- pincushion island — sailors call it “Paduted to the qualification possessed by the dy's milestone;" and on a clear day the officers of the Court of Chancery in its peaks of Jura rise sharply serrated in the earlier days, the academic study of Roman distance. Altogether Carrigmor is about law bas not had any sensible part in the as good a place as you could find to take general growth of English jurisprudence. a comprehensive survey of two countries, It is yet full early to forecast what part Ireland and Scotland. the revived law schools of the universities That is just what I was doing one mornmay be able to take in forming the genering last October. Such a sparkle as there ations of our lawyers to come. It is still was on the water ! and such a sparkle in more difficult to say when or how the the air ! and the sound of the little waves loos of Court will again be, as they once far below came whispering up, and the were, and as for several years they have cliff was warmed with sunshine. Down made renewed professions of intending to in the cave an old woman was gatherbe, a true centre of legal education as well ing heaps of seaweed together on the as of legal business. For the present the shingle. I knew her; it was Mauriade only way of seeing for oneself that English M«Veagh Moyad MacVay, if you want law can be taught in a systematic and to pronounce it rightly. After a very long efficient manner as well as other branches spell of work, and having gathered up of learning, is to go and see it in America. three good heaps of sea tangle and weed, There is no reason to doubt that plenty of she seemed “to become aware of her life is left in the common law; but if we back," and stood up straight to rest it. cliog much longer to the Inns of Court Consequently she caught sight of a little tradition, a tradition which has not even speck on the cliff above her, which was I ; the merit of antiquity, that the training of whereupon she waved with both arms perlawyers comes by nature, our children are sistently, till I saw she wanted me to not unlikely to see the intellectual centre come down to her; and I did, though it of our legal system pass from the eastern was the wrong side of the cliff for home. to the western shores of the Atlantic, and “The top o' the morning to ye, Miss the people of our own colonies pay more O'Nale! and what brings ye to the top of regard io the judgments of the Supreme Carrigmor at all? Is that for the likes o' Court of the United States than to those you to be goin' to? Can ye never rest of the House of Lords. If I have wan-asy at home ?" dered from the tracks of the past to spec- Not on a morning like this, Mauriade. ulate on the future, the digression is less The cliff is as safe as a house. Is that all than it seems. Man's control of the future you've fetched me down for ?'” is very little; experience shows more and “It is not, then. What were ye doin' more that he cannot hope to increase it there, at all?" without learoing the lessons of the past. “Looking at you, Mauriade, and think
ing how nice you looked in that red petticoat, and your bare ankles, you know."
"Ah now, is it after my ankles ye'll
be ? an' tellin' me ye could see them from From Blackwood's Magazine,
yonder ? Don't be makin' fun at an ould BORN ON HALLOW E'EN.
woman. Sure it's looking out to sea ye THERE is a cliff we call Carrigmor on were.” the other side of the bay. I do not know “ So I was, Mauriade; expecting my exactly how high it is by number of feet; ship to come in, and high time for her I was always bad at figures and measure.
too!" meots; but it is like a great red-brown “ Ah now, Miss Moira, is it foolin' me wall, running out to sea, and the top is again ye are? I tell ye 'tis no place for ilat, and three or four feet wide. I know you to be standin' and lookin' out to sea