Read Online Greece, Rome, and the Bill of Rights by Susan Ford Wiltshire - Free Book Online Page B
Authors: Susan Ford Wiltshire
Ads: Link
interfere with the development of English law along the lines that had been established by the courts from the time of Henry II.
9
Roman law with its attendant principles of natural law had been brought into England through the Church, whose clerics were the first justiciars of English law. An Italian named Vacarius taught Roman civil law and canon law at Oxford in the middle of the twelfth century and was enormously popular. Robert N. Wilkin holds the minority view that Roman law had a greater impact on the law of Britain than on that of the Continent:
It [Roman law] was so completely accepted in England that Englishmen thought it their own. It never was foreign after the twelfth or early part of the thirteenth century. It had an extensive influence on Bracton and through him on Coke. While we think of Coke as particularly a champion of the common law, his basic principles were the same as those of the Roman law and natural law. Through their acceptance into the common law of England natural-law principles became a part of the constitutional history of England. 10
Others take a more measured view of the impact of Roman civil law on English common law. Paul Vinogradoff holds that while it exercised a very great influence during the critical period in the twelfth and thirteenth centuries, when the foundations of the common law were
page_55
Page 55
being laid, civil law did not become a constituent element of English common law acknowledged and enforced by the courts.
11 Whatever the degree of impact, the situation was that the legal advisers to the Crown ordinarily combined a knowledge of Roman legal theory with practical experience of English realities. 12
Hans Julius Wolff agrees that England was the major exception to Roman law as the law truly "common to all" but suggests that even there Roman law could supply the rules needed to fill the gaps of national law. He traces the scholarly interest in Roman law back to Lanfranc, the chancellor of William the Conqueror and archbishop of Canterbury, who had studied with the pre-Glossator legists in Italy at Pavia. 13
The study of Roman civil law in England progressed so far that the Church came to feel threatened by what it saw as the spread of secular learning. Two papal bulls, one by Honorius III in 1219 and another by Innocent IV in 1254, were directed against the teaching of Roman law in Paris and in "neighboring countries," including England. In 1234 Henry III forbade the teaching of civil law in London. In spite of these prohibitions, however, the teaching of Roman civil law was never entirely discontinued in the major centers of learning in England.
One of the most important English contributions to Roman law was Bracton's Laws and Customs of England , especially his discussions of ius civile and ius gentium . Even here, however, the influence of Roman law is found not in quotations from the Digest or the Code , but rather in maxims, many of which had come into England through the medium of canon law. The real measure of the extent of that influence lies in the development of juridical ideas, and here the Roman influence on English doctrine is considerable. 14 The old English Books with their grants of private property exempted from folkright are also Roman imports brought in through the Church in conjunction with the kings. The impact of these importations was to alter the earlier tribal custom of land tenure in England by substituting forms of Roman property law. 15
page_56
Page 56
Magna Carta
A major advance in constitutional development in England came in the early thirteenth century with the signing of Magna Carta. With this event, what formerly had been private law and custom deriving from personal relations became written and public. As mere subjects with no power, King John's barons could not restrain God's appointed monarch. The barons, however, were not only subjects; they were also barons, and in that role they shared comparable power with the king,
9
Roman law with its attendant principles of natural law had been brought into England through the Church, whose clerics were the first justiciars of English law. An Italian named Vacarius taught Roman civil law and canon law at Oxford in the middle of the twelfth century and was enormously popular. Robert N. Wilkin holds the minority view that Roman law had a greater impact on the law of Britain than on that of the Continent:
It [Roman law] was so completely accepted in England that Englishmen thought it their own. It never was foreign after the twelfth or early part of the thirteenth century. It had an extensive influence on Bracton and through him on Coke. While we think of Coke as particularly a champion of the common law, his basic principles were the same as those of the Roman law and natural law. Through their acceptance into the common law of England natural-law principles became a part of the constitutional history of England. 10
Others take a more measured view of the impact of Roman civil law on English common law. Paul Vinogradoff holds that while it exercised a very great influence during the critical period in the twelfth and thirteenth centuries, when the foundations of the common law were
page_55
Page 55
being laid, civil law did not become a constituent element of English common law acknowledged and enforced by the courts.
11 Whatever the degree of impact, the situation was that the legal advisers to the Crown ordinarily combined a knowledge of Roman legal theory with practical experience of English realities. 12
Hans Julius Wolff agrees that England was the major exception to Roman law as the law truly "common to all" but suggests that even there Roman law could supply the rules needed to fill the gaps of national law. He traces the scholarly interest in Roman law back to Lanfranc, the chancellor of William the Conqueror and archbishop of Canterbury, who had studied with the pre-Glossator legists in Italy at Pavia. 13
The study of Roman civil law in England progressed so far that the Church came to feel threatened by what it saw as the spread of secular learning. Two papal bulls, one by Honorius III in 1219 and another by Innocent IV in 1254, were directed against the teaching of Roman law in Paris and in "neighboring countries," including England. In 1234 Henry III forbade the teaching of civil law in London. In spite of these prohibitions, however, the teaching of Roman civil law was never entirely discontinued in the major centers of learning in England.
One of the most important English contributions to Roman law was Bracton's Laws and Customs of England , especially his discussions of ius civile and ius gentium . Even here, however, the influence of Roman law is found not in quotations from the Digest or the Code , but rather in maxims, many of which had come into England through the medium of canon law. The real measure of the extent of that influence lies in the development of juridical ideas, and here the Roman influence on English doctrine is considerable. 14 The old English Books with their grants of private property exempted from folkright are also Roman imports brought in through the Church in conjunction with the kings. The impact of these importations was to alter the earlier tribal custom of land tenure in England by substituting forms of Roman property law. 15
page_56
Page 56
Magna Carta
A major advance in constitutional development in England came in the early thirteenth century with the signing of Magna Carta. With this event, what formerly had been private law and custom deriving from personal relations became written and public. As mere subjects with no power, King John's barons could not restrain God's appointed monarch. The barons, however, were not only subjects; they were also barons, and in that role they shared comparable power with the king,
Similar Books
