Equity,12 while the one English author who has devoted an entire treatise to this general subject states his conclusion regarding Bracton as follows:

English Law was reduced to order on a Roman framework, furnished with many Roman terms, its gaps filled up with actual Roman matter, so long as this was not inconsistent with English Law.

To him English law is undoubtedly indebted for an extensive Roman terminology which survives to the present day.13

Thus, says an eminent English legal scholar:

Partly through the early law-writers, much more through the Chancellor's jurisdiction, and partly, perhaps in an increasing degree, through intercourse with other nations and through literary and professional training, the Roman law has materially helped, and is still helping, to form our rules for the business of life.11

I will close this examination of the experts by calling two Americans.

12

13

"The evidence, both internal and historical," says Pomeroy15 "is conclusive that the common law of England, in the earliest formative period, was much indebted to the Roman jurisprudence which enters so largely into the judicial systems of all the western nations of the European continent. Besides the proof furnished by the law itself, several important facts connected with the external history of its primitive

"There is scarcely a principle of law incorporated in the treatise of Bracton, that has survived to our times, which may not be traced to the Roman Law. Bracton's direct references plainly do not comprise nearly the whole of what he adopted immediately from the Corpus Juris." Spence, Equitable Jurisdiction of the Court of Chancery, I, 132.

Scrutton, Influence of Roman Law on the Law of England (Cambridge, 1885), 120, 121.

"Roby, Introduction to Justinian, XV.

Equity Jurisprudence (3d Ed.), I, sec. 14, citing Guterbock Braceton and His Relation With the Roman Law (Coxe's Trans.) p. 24.

stages point to this conclusion. The clergy, who pos-
sessed all the learning of the times, were students of
the Roman law. The earliest justices of the common-
law courts, as well as the chancellors, were generally
taken from the higher orders of ecclesiastics; and on
all occasions where it was necessary for them to legis-
late in the decision of particular cases, to create new
rules for relations hitherto undetermined, they nat-
urally had recourse to the code with which they were
familiar, borrowed many of its doctrines, and adopted
them as the ground of their judgments. Nor was a
knowledge of the Roman law confined to the courts;
its study became a part of what would now be called
the higher education.
A considerable portion
of doctrines, and even of the terms in which its rules
are stated, is taken directly from standard treatises
of the day upon the Roman jurisprudence."

"The basis of Anglo-American law-if not its predominant element"-observes Dr. Sherman,16 "is the Civil Law of Rome."

II.

But in order to arrive at correct results in our inquiry let us not rely entirely upon the general conclusions of others, however well qualified. Let us determine, if possible, by a brief analysis of the Anglo-American legal system itself, how far it is indebted to Roman sources. We may survey that system under the following heads: (1) Persons; (2) Contracts; (3) Property (4) Crimes; (5) Procedure.

(1) In the law of Persons let us consider first that of Marriage. Here we find the rules prescribed in Justinian's Institutes1 mainly reproduced in the modern law. Even Justinian's definition18 of marriage would not be far out of the way in any common law jurisdiction. So the restrictions arising from relationship, non-age, etc., are almost identical. And the mode and grounds of annulling a mar

16

Roman Law in the Modern World (2nd Ed. 1922), I, 9. 17 Lib. I, tit. IX, X.

15 "Nuptiae autem sive matrimonium, est, viri et mulieris conjunctio, individuam vitae consetudinem continens." Id. IX (1).

riage at Rome were the same as those in England, because the latter adopted the Canon Law, which, as regards these matters, coincided with the Roman.

"A striking case of Roman influence," observes Mr. Justice Scrutton,19 "is to be seen in the prohibition of donations from husband to wife during coverture."

And Sherman20 sees in the repudiation of

"the feudal common law ideal that husband and wife
are one
simply the reenactment of the doc-
trine of Rome law was to the freedom of married
women."

In the law of parent and child we are indebted to the Roman law for the very important, not to say humane, expedients of legitimation"1 and adoption22 so far as we have them.

"It seems probable," says Mr. Williams in his learned treatise23 "that the jurisdiction of the Chancery Division of the High Court of Justice over infants is derived directly from the Praetor's jurisdiction." Mr. Spence24 had long previously noted that in such matters the Corpus Juris "has been occasionally consulted, if not resorted to as an authority." Mr. Justice Scrutton25 says:

A part of English law which can in all probability be traced back in a joint growth from Roman and German originals is the gradual development of the liability of a man for the acts of his children, servants, or agents, as to which I can only refer to Mr. Holmes'

19 Influence of Roman Law on Law of England, 80. Cf. Kenny, Effects of Marriage on Property, 45, 75, 110, 111; Breton v. Woolven, L. R., 17 Ch. Div. 416; Spanish Civil Code, arts 1334 et seq.

20

Roman Law in the Modern World (2nd Ed. 1922), I, 9.

" Gray, C. J., in Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321.

* Institutes of Justinian Illustrated by English Law (2nd Ed. 1893), 36. Cf. Phillimore, Private Law of the Romans, 293-6, 303. "Equity Jurisdiction of the High Court of Chancery, I, 606 et seq. "Influence of the Roman Law on the Law of England, 193.

interesting work.

The work referred to contains this positive statement:

So far as concerns the influence of the Roman law upon our own, especially the Roman law of master and servant, the evidence of it is to be found in every book which has been written for the last five hundred years. It has been stated already that we still repeat the reasoning of the Roman lawyers, empty as it is, to the present day.26

As to artificial persons it has recently been declared:

The jurisprudence of every modern civilized State contains the fundamental principles of the Roman law of private corporations. Their familiarity is but proof positive of their survival since Justinian to the present time. Every system of modern corporation law is indeed modern Roman law. Really, all that modern law has done is to enlarge the superstructure and add to the details.27

(2) Coming now to contracts we find it everywhere conceded that "the idea of 'earnest,' was taken from the civil law."28 Thus the rule29 that a party who fails to proceed with his contract forfeits earnest money which he had deposited was first positively stated in terms of the

26

27

28

'Holmes, Common Law, 18.

Sherman, Roman Law in the Modern World (2nd Ed. 1922), II, 132, 133.

Chapman, C. J., in Howe v. Hayward, 108 Mass. 54, 11 Am. Rep. 306, citing Guterbock, Bracton and his Relation to the Roman Law (Phil. 1866).

This appears now to have expanded into the doctrine that (in the language of Nelson, J., in Hansborough v. Peck, 5 Wall. (U. S.) 506, 18 L. ed. 523), "the party who has advanced money, or done an act in part performance of the agreement, and then stops short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done. Green v. Green, 9 Cow. 46; Ketchum v. Evertson, 13 Johns 364; Leonard v. Morgan, 6 Gray 412; Haynes v. Hart, 42 Barb. 58."

English law by Bracton, who, in turn, follows Justinian.30 There is not, indeed, such general agreement regarding our indebtedness to Roman sources for the law of bailment. But in 1703 a case31 was decided which was deemed of sufficient importance to justify its inclusion among the first collection of leading English cases whose learned editor pronounces it "one of the most celebrated ever decided in Westminster Hall," and of which Mr. Schouler says: "If any case deserves to be styled a leading one it is this; for Bailments as a recognized topic of our common law here historically began." Lord Chief Justice Holt there said:

In order to show the grounds upon which a man should be charged with goods put into his custody, I must show the several sorts of bailments. And there are six sorts of bailments. The first sort of bailment is, a bare naked bailment of goods, delivered by one man to another to keep for the use of the bailor; and this I call a depositum, and it is that sort of bailment which is mentioned in Southcote's case. The second sort is, when goods or chattels that are useful are lent to a friend gratis, to be used by him; and this is called commodatum, because the thing is to be restored in specie. The third sort is, when goods are left with the bailee to be used by him for hire; this is called locatio et conductio, and the lender is called locator, and the borrower conductor. The fourth sort is, when goods or chattels are delivered to another as a pawn, to be a security to him for money borrowed of him by the bailor; and this is called in Latin, vadium, and in English, a pawn or a pledge. The fifth sort is, when goods or chattels are delivered to be carried or something is to be done about them for a reward to be paid by the person who delivers them to the bailees, who is to do the thing about them. The sixth sort is, when there is a delivery of goods or chattels to some

"Howe v. Smith, L. R. 27 Sh. Div. 102 (1884); Scrutton, Influence of Roman Law on the Law of England, 93.

"Coggs v. Bernard, 2 Ld. Raym. 909, 1 Smith's Leading Cas. (8th Am. ed.), Pt. I, 369.

* Id. 382.

Bailments (3rd ed.), sec. 10.