Apologies I probably should have added my comments separately instead of interspersing them throughout below (still getting used to the wiki). I have a formatted Word document of the Question (in which my comments are in a different color) if anyone wants me to email it to them.

-- TomDixon - 07 Sep 2014

OK so I’m not exactly sure how all this is to work – but I’m in the ‘question team’ so here goes. The lectures last week touched on early English history including Julius Caesar’s forays into England in c. 55BC - and then Claudius’ invasion/conquest proper in 43AD.

Now as a general ‘question’ I wondered whether a new topic on the issue of ‘The influence [or not] of Roman Law on the English Common Law’ was not worth writing about. From my readings there has been much debate about the extent of Roman influence (discussed briefly below). There might then be some (separate?) sub topics (eg) the law of restitution and the jury system on which much has been written including from the Roman perspective (also touched upon below).

Our reading list is a pretty good start – but I found this article particularly useful:

Edward D. Re (1961) - The Roman Contribution to the Common Law - http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1673&context=flr

There is also an article by Lewis A ‘What Marcellus says is against You” (Here - http://books.google.com/books?id=6vWcB-Ihl3UC&pg=PA208&lpg=PA208&dq=birks+roman+law&source=bl&ots=cVq7BGr2DF&sig=i2ZyIiE-UNIlmC442oMsqx-cERU&hl=en&sa=X&ei=bW4MVKSKELHbsAT8n4KgBA&ved=0CDcQ6AEwBDgK#v=onepage&q=birks)

The structure of the article is up to the ‘Answer Group’ obviously – but an issue that arises (by reason of the fact that the Roman occupation was for c. 400 years from the 1st to the 5th Centuries) is that Justinian’s Codex post dates the occupation (Gaius’s Institutes may be the main contemporary source of the corpus juris – see below). So I think there needs to be some discussion about (or a need to distinguish between) the sources, namely:

1. what the relevant Roman law was during the period of occupation; and

2. what relevant Roman law thereafter influenced the English law (as (eg) the Anglo Saxons returned from exile in c. 11th Century from Normandy and of course the Normans would have brought with them Continental law as well).

Just as a starting point, the following (including from our readings) appear to set up the debate:

Plunknett in “Statutes and their Interpretation” at pg xii -

_Only when parliament becomes the power which Sir Thomas Smith, the Elizabethan, describes as "the most high and abso- lute power of the realme of Englande," do English jurists finally adopt the Roman terminology of "written" and "unwritten" laws. To Hale, to Blackstone, who follows him, and to later jurists, the statute law is the English "lex scripta," the common law is the English "lex non scripta." In this use of Roman terms we may see one of the influences of the legal renaissance upon English jurisprudential thought. But this par- ticular Roman influence, like most of the others, touches only the surface of the law; it does not substitute the corpus iuris civilis for the corpus of the year books, the plea and statute rolls, and the books of Coke; it merely decks out the English cases and the English statutes in Roman garb. Maitland has taught us that the Inns of Court, where the year books were read and taught, "saved English law in the age of the Renaissance.”_

Plunknett again in “A concise history of the common law” at pg 262 writes about Bracton who’s thesis was generally that Roman Law had a far greater influence on English Law than (eg) Maitland (referred to above) suggested -

Sir William Holdsworth has observed:

_“We cannot say that all Bracton’s law is English in substance, that the influence of Roman law is merely formal. No doubt there is a body of thoroughly English rules; and Bracton differs at very many points from the Roman texts. But it is clear that he has used Roman terms, Roman maxims, and Roman doctrines to construct upon native foundations a reasonable system out of comparatively meagre authorities. Even when he is dealing with purely English portions of his treatise, and discoursing upon the Assizes, the writs of entry, or the writ of right, Roman illustrations and phrases naturally recur to him. And it is clear that his study of Roman law has led him to discuss problems which, when he wrote, were very far from any actual case argued in the royal courts. Thus he deals with ammio, :poa'firatio, and ronfmio; and ‘ where ’, says Maitland, ‘ in all our countless volumes of reports shall we find any decisions about some questions that Azo has suggested to Bracton? ’ Similarly he deals with many questions relating to obliga- tion and contract, fraud and negligence, about which the common law had as yet no rules. In dealing with these matters he necessarily uses Roman terms and borrows Roman rules. It is, as we shall see, because his treatise has given to English law at least one authority upon many matters which- were outside the routine of the practising lawyer of the thirteenth century that his influence upon the history of English law has been so great. That his treatise deals with such matters is due to the Roman law which it contains.”_

Bracton’s influence has varied greatly from century to century.

An interesting point to note is that Scottish law appears to have developed as a separate stream – with a far heavier Roman influence - yet Scotland/Caledonia was never fully conquered by the Romans. See for example “Slavery and the Roman Law of Evidence in Eighteenth-Century Scotland” by John W Cairns (http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199206551.001.0001/acprof-9780199206551-chapter-33)-

This chapter focuses on slavery, which was a recognized part of Roman society, and discusses the problems which it caused in the very different social conditions of 18th-century Scotland. The pursuer in a divorce action wished to call a slave from the Caribbean to give evidence of his wife's adultery. The ensuing legal debate about the competence of a slave to give evidence is analysed and it is shown how the very fact that Scots law did not recognize or regulate slavery led to uncertainty and potential confusion.

See also from page 72 of this book re Roman Law and Scottish Cases (http://books.google.com/books?id=n_KAvAjkEbsC&pg=PA69&lpg=PA69&dq=slavery+law+evidence+scotland+cairns&source=bl&ots=Gjwx6AFvLi&sig=XETEng-VyzfkkYlZAhnJ5pw44bA&hl=en&sa=X&ei=t28MVMbsNcS1sQTs4YGADw&ved=0CDMQ6AEwAw#v=onepage&q=slavery%20law%20evidence%20scotland%20cairns&f=false).

Some extracts from our readings which may be of some interest/good subtopics. Baker in his “Introduction to English Legal History” discusses how, notwithstanding that by Elizabethan times there was an identifiable autochthonal common law, the Admiralty jurisdiction “was watched by the common-law judges with that jealousy and suspicion which they bestowed on all jurisdictions tainted with Romanism” (at page 123):-

The Court of the Lord High Admiral of England appeared at the same period as its terrestrial counterpart, to deal with matters arising on the high seas. It was not restricted to causes connected with naval warfare, and was much resorted to by merchants. Like its sister court, it encroached in its early days upon the common law and had to be restrained by statute from hearing matters arising within the realm, whether or not they concerned the sea.-"' The court was presided over by a judge of the Admiralty, usually a doctor of law, and proceeded according to the Civil law, under which process could issue against ships and goods as well as against persons. The law which it applied was based on the jus gentium, or universal law of the sea, which was derived from the ancient Rhodian sea law and the 'customs of Oleron’.

Another of our readings, EP Thompson ‘Whigs and Hunters’, also contains a discussion of slavery/serfdom which was touched upon in the classes last week -

_Productive relations themselves are, in part, only meaningful in terms of their definitions at law: the serf, the free labourer; the cottager with common rights, the inhabitant without; the unfree proletarian, the picket conscious of his rights; the landless labourer who may still sue his employer for assault. And if the actuality of the law’s operation in class-divided societies has, again and again, fallen short of its own rhetoric of equity, yet the notion of the rule of law is itself an unqualified good. This cultural achievement — the attainment towards a universal value — found one origin in Roman jurisprudence. The uncodified English common law offered an alternative notation of law, in some ways more flexible and unprincipled — and therefore more pliant to the ‘common sense’ of the ruling class — in other ways more available as a medium through which social conflict could find expression, especially where the sense of ‘natural justice’ of the jury could make itself felt. Since this tradition came to its maturity in eighteenth-century England, its claims should command the historian’s interest. And since some part of the inheritance from this cultural moment may still be found, within greatly changed contexts, within the United States or India or certain African countries, it is important to re-examine the pretensions of the imperialist donor._

As to property rights – see Maitland in his article on the Domesday book at p 224 -

_“This leads to a remark which concerns us more deeply. As and us re- regards the legal ideas in which feudalism is expressed a general question may be raised. If we approach them from the stand- point of modern law, if we approach them from the standpoint of the classical Roman law, they are confused ideas. In particular no clear line is drawn between public and private law. Ownership is dominium \ but governmental power, jurisdictional power, these also are dominium. Office is property ; taxes are rents ; governmental relationships arise ex contractu. Then within the province of private law the ideas are few ; these few have hard work to do ; their outlines are blurred. One dominium rises above another dominium, one seisin over another seisin. Efforts after precision made in comparatively recent times by romanizing lawyers serve only to show how vague was the subject-matter with which they had to deal. They would give the lord a dominium directum, the vassal a dominium utile; but then, when there has been further subinfeudation, this vassal will have a dominium utile as regards the lord paramount, but a dominium directum as regards the sub-vassal. So again, as we shall see hereafter, the gift of land shades off into the ' loan ' of land, the ' loan ' into the gift. The question then occurs whether we are right in applying to this state of things such a word as 'confusion,' a word which implies that things that once were distinct have wrongfully or unfortunately been mixed up with each other, a word which implies error or retrogression._

The most famous common law case in Australian legal history is called Mabo and concerned the question of whether indigenous peoples had native title rights over crown lands. The High Court had to undertake an exegesis of the origins of English property rights, such that they might apply to a dominion of the Crown (being the English settlement (termed ‘conquest’) of Australia). There is an extract below which may be of some use on the feudal basis of land ownership (ie, the Doctrine of Tenure (and Estates)) in England following the Norman Conquest: see at [48].

The Thompson extract above touched upon the Jury System. The 1961 article by Edward Re referred to at the outset has this passage: -

The most notable legal contributions of the reign of Henry II, the centralization of the judicial structure, the introduction of the "inquest" or "recognition," and the "writ," are treated in Glanvill's treatise. Since it consists of a commentary upon the writs and the forms of action, it has the earmarks of a modern manual on procedure and practice. Glanvill's borrowing of the canon law rules on the competence of witnesses- which he adopted as challenges to jurors-has fortified the belief of scholars that the jury system is of Roman origin. Although there was formerly some doubt, the verdict of scholars is now clear that trial by jury, which dates from the inquest of "recognitors" or jurors of Henry II, is not of Anglo-Saxon but of Frankish or Continental origin.1"8 Like- wise Henry II's assize of novel disseisin, so important in English legal development, was borrowed from the canon law, which developed the procedure from the Roman actions. Pollock and Maitland remind us that "the most famous words of Magna Carta will enshrine the formula '1' 9 of the novel disseisin.

Henry II, who rid himself of ‘that turbulent priest’ Thomas [a] Becket and was granted lordship over Ireland by the Catholic Pope Adrian IV (ie, Nicholas Breakspear - the only English Pope to date) undertook major legal reforms which were documented in the Tractatus of Ranulf de Glanvill (referred to above). So it would I think be interesting to spend some time on that particular reform (ie the Jury system) and that source - as Henry II’s influences at this time could have been manifold (as, other than his relationship with the Church of Rome, he controlled large parts of France as well - which may accord with the suggestion above that there were Frankish/Continental origins involved).

The other area which I suggest could make a good subtopic is the Law of Restitution (property and jury systems also being touched upon above).

If you have a look at pages 4 - 5 of this article on The Roman Division of Wrongs: A New Hypothesis (http://www.romanlegaltradition.org/contents/2009/RLT5-DESCHEEMAEKER.PDF) - there is a discussion of the state of the roman law at a time fairly near the beginning of the Roman Occupation of Britain. Relevantly, on page 5, Gaius is said to have recognized a type of obligation based on mistaken payment – which was not said to arise in contract per se.

There are some good articles on this topic (eg - Swain, Warren --- "Unjust Enrichment and the Role of Legal History in England and Australia" [2013] UNSWLawJl? 41; (2013) 36(3) University of New South Wales Law Journal 1030 - http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLawJl/2013/41.html) including by a scholar called Peter Birks (eg, Peter Birks, ‘Comparative Unjust Enrichment’ in Peter Birks and Arianna Pretto (eds), Themes in Comparative Law: In Honour of Bernard Rudden (Oxford University Press, 2002) 137; Peter Birks, ‘Failure of Consideration and its Place on the Map’ (2002) 2 Oxford University Commonwealth Law Journal 1, 13.).

In short, the law of unjust enrichment and restitution in common law countries is said to trace its origins to the decision in Moses v Macferlan 1760] EngR? 713; (1760) 2 Burr 1005 [97 ER 676] per Lord Mansfield. There is a debate about the influence of the Roman Law on the outcome of this seminal case.

Mansfield LJ arguably injected into the action for money had and received the Roman notion of a contract ‘quasi ex contract’ (this is discussed in the Descheemaeker article above) when he stated (at 97 ER 676 at page 678) –

If the defendant be under an obligation, from the ties of natural justice, to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff’s case, as it were upon a contract (‘quasi ex contractu’ as the Roman law expresses it). This species of assumpsit (‘for money had and received to the plaintiff’s use’) lies in numberless instances, for money the defendant has received from a third person; which he claims title to, in opposition to the plaintiff’s right; and which he had, by law, authority to receive from such third person.

OK so that is my ‘Question/Questions’ – It is an interesting area and seemingly a real division of views as to whether there really is a significant interest – admiralty, property/feudalism, the jury system, and unjust enrichment are all areas that can be explored - so good luck!

Regards

Tom Dixon

Extract from Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992) from [48] -

_The feudal basis of the proposition of absolute Crown ownership

1. The land law of England is based on the doctrine of tenure. In English legal theory, every parcel of land in England is held either mediately or immediately of the King who is the Lord Paramount; the term "tenure" is used to signify the relationship between tenant and lord (80) Attorney-General of Ontario v. Mercer (1883) LR 8 App Cas 767, at pp 771-772, not the relationship between tenant and land. The characteristic of feudalism "is not tenere terram, but tenere terram de X" (81) Pollock and Maitland, The History of English Law, 2nd ed. (1898, reprinted 1952), vol.1, p 234n. It is implicit in the relationship of tenure that both lord and tenant have an interest in the land: "The King had 'dominium directum', the subject 'dominium utile'" (82) ibid., p 773; Co Litt 16. Absent a "dominium directum" in the Crown, there would be no foundation for a tenure arising on the making of a grant of land. When the Crown acquired territory outside England which was to be subject to the common law, there was a natural assumption that the doctrine of tenure should be the basis of the land law. Perhaps the assumption did not have to be made. After all, as Holdsworth observed (83) op cit, vol.ii, p 199, the universal application of the doctrine of tenure is a purely English phenomenon. And Pollock and Maitland may be correct in saying (84) op cit, vol.2, p 236; accord: Holdsworth, op cit, vol.ii, (1923), p 75 fn.8 that the notion of universal tenure "perhaps was possible only in a conquered country". In Scotland, the King was not Paramount Lord of all land: some allodial lands remained in the Orkney and Shetland Islands, though most land that had been held allodially became subject to feudal tenure (85) Bell, Lectures on Conveyancing, (Edinburgh, 1867), vol.1, ch I, pp 531-532; Stair, The Institutions of the Law of Scotland, 4th ed. (1826), pp 219, 222; Craigie, Scottish Law of Conveyancing, (Edinburgh, 1899), pp 27-28; Lord Advocate v. Balfour (1907) SC 1360, at p 1368-1369. However, the English view favoured a universal application of the doctrine of tenure (86) Pollock and Maitland, op cit, pp 232-233: " Every acre of English soil and every proprietary right therein have been brought within the compass of a single formula, which may be expressed thus: - Z tenet terram illam de ... domino Rege. The king himself holds land which is in every sense his own; no one else has any proprietary right in it; but if we leave out of account this royal demesne, then every acre of land is 'held of' the king. The person whom we may call its owner, the person who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep all others off it, holds the land of the king either immediately or mediately."
2. It is arguable that universality of tenure is a rule depending on English history and that the rule is not reasonably applicable to the Australian colonies. The origin of the rule is to be found in a traditional belief that, at some time after the Norman Conquest, the King either owned beneficially and granted, or otherwise became the Paramount Lord of, all land in the Kingdom (87) Bacon's Abridgement, 6th ed. (1807), vol.V, "Prerogative", B,1. According to Digby's History of the Law of Real Property (88) (1897), p 34 William I succeeded to all rights over land held by the Anglo-Saxon kings; he acquired by operation of law the land of those who had resisted his conquest and a vast quantity of land was deemed to have been forfeited or surrendered to William and regranted by him. He may have become the proprietor of all land in England so that no allodial land remained. Or it may be, as Blackstone asserts, that in England, as in France, the allodial estates were surrendered into the king's hands and were granted back as feuds, the only difference being that in France the change "was effected gradually, by the consent of private persons; (the change) was done at once, all over England, by the common consent of the nation" (89) Commentaries, Bk II, ch.4, pp 50-51. But, whatever the fact, it is the fiction of royal grants that underlies the English rule. Blackstone says (90) ibid that - "it became a fundamental maxim, and necessary principle (though in reality a mere fiction) of our English tenures, 'that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has, mediately or immediately, been derived 'as a gift from him, to be held upon feodal services.' For this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their new polity, though the fact was indeed far otherwise". It is not surprising that the fiction that land granted by the Crown had been beneficially owned by the Crown was translated to the colonies and that Crown grants should be seen as the foundation of the doctrine of tenure which is an essential principle of our land law. It is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed.
3. Accepting the doctrine of tenure, it was an essential postulate that the Crown have such a title to land as would invest the Sovereign with the character of Paramount Lord in respect of a tenure created by grant and would attract the incidents appropriate to the tenure, especially the Crown's right to escheat (91) Wright, Introduction to the Law of Tenures, 4th ed. (1792), p 5. The Crown was invested with the character of Paramount Lord in the colonies by attributing to the Crown a title, adapted from feudal theory, that was called a radical, ultimate or final title: see, for example, Amodu Tijani v. Secretary, Southern Nigeria (92) (1921) 2 AC 399, at pp 403, 404, 407; Nireaha Tamaki v. Baker (93) (1901) AC 561, at p 580; cf. Administration of Papua and New Guinea v. Daera Guba (94) (1973) 130 CLR 353, at pp 396-397. The Crown was treated as having the radical title to all the land in the territory over which the Crown acquired sovereignty. The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty. As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign's beneficial demesne.
4. By attributing to the Crown a radical title to all land within a territory over which the Crown has assumed sovereignty, the common law enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown's demesne. The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown's purposes. But it is not a corollary of the Crown's acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants. If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen C.J. in Attorney-General v. Brown (95) See pp 13-14 above; (1847) 1 Legge, at pp 317-318: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant.
5. After the conquest of Ireland, it was held in The Case of Tanistry (96) (1608) Davis 28 (80 ER 516); 4th ed. Dublin (1762) English translation 78, at pp 110-111 that the Crown was not in actual possession of the land by virtue of the conquest and that - "a royal monarch (who) hath made a new conquest of a realm, although in fact he hath the lordship paramount of all the lands within such realm, so that these are all held of him, mediate vel immediate, and he hath also the possession of all the lands which he willeth actually to seise and retain in his own hands for his profit or pleasure, and may also by his grants distribute such portions as he pleaseth ... yet ... if such conqueror receiveth any of the natives or antient inhabitants into his protection and avoweth them for his subjects, and permitteth them to continue their possessions and to remain in his peace and allegiance, their heirs shall be adjudged in by good title without grant or confirmation of the conqueror, and shall enjoy their lands according to the rules of the law which the conqueror hath allowed or established, if they will submit themselves to it, and hold their lands according to the rules of it, and not otherwise." Similarly, after the conquest of Wales, in Witrong and Blany (97) (1674) 3 Keb.401, at p 402 [1685] EngR? 4051; [1685] EngR? 4051; (84 ER 789, at p 789) and see McNeil? , op cit, p 174 it was held that the inhabitants who had been left in possession of land needed no new grant to support their possession under the common law and they held their interests of the King without a new conveyance. In these cases, the courts were speaking of converting the surviving interests into an estate of a kind familiar to the common law, but there is no reason why the common law should not recognize novel interests in land which, not depending on Crown grant, are different from common law tenures. In Amodu Tijani (98) (1921) 2 AC, at p 403 Viscount Haldane, speaking for the Privy Council, referred to the variable nature of native title to land capable of recognition by the common law: "There is a tendency, operating at times unconsciously, to render (native) title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely. As a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with. A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the Sovereign where that exists. In such cases the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached. But this estate is qualified by a right of beneficial user which may not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from the intrusion of the mere analogy of English jurisprudence."_

Tom Dixon tjd2132