INTERFERENCE OF ROMAN LAW ON THE COMMON LAW AND EQUITY IN SIXTEENTH CENTURY
Roman law was first to demonstrate its influence on English Law due to the activities of the Court of Star Chamber in the 16th century. Its counterparts, the Court of Chancery, the Court of Requests and the King's Council, also influenced Roman law. The restrictions in the area of Common Law and the defects of its process made this intervention necessary. Criminal Law and Constitutional Law were impacted due to their close connection to The Court of Star Chamber. In the field of Criminal Law, the Court of Star Chamber brought in numerous ideas from Roman law. Laws of Libel, Perjury, Conspiracy, Forgery and efforts to perpetrate crimes were laws that were primarily created through the Court of Star Chamber. Court of Star Chamber. The practice of conducting an initial examination of those accused was commonplace, and the use of torture was permitted in cases where Council was deemed appropriate to investigate details. In the area of Constitutional Law, it tended to establish a concept of the legal relationship between and between the Crown and its representatives with the laws. In the Common Law of the Middle Ages, every ruler and all subjects were under the rule of law.
However, there was no effort to override all of Common Law completely. In addition, the Court of Chancery was also adding significant additions to various areas of Private Law. The influence upon the development of Roman Law and Canon Law is evident in the substantive law and the adjectival law in how it was interpreted in the period. The procedure used by the Court of Chancery was derived from Canon Law, and the Dialogue of the Doctor and the Student is a clear indication of how the minds of the people who were creating the concept of equity in the fifteenth and 16th centuries were guided by the thought and the philosophy of John Gerson (leading exponent of school doctrines during the 16th century within Civil Law). The Chancellors in the 15th century were ready to grant relief to the abstract principles of justice. The Chancery changed Private Law utilising continental concepts. Council, as well as Star Chamber, modified Public Law through continental concepts. Chancery adopted a lot of Public Law. However, it was not an actual law, though the Chancery introduced fresh concepts. English Legal System did not provide a very favourable acceptance of Civil Law rules and principles. The following two reasons were the reason for this:
- Council and Star Chamber were courted with semi-judicial nature. Political ideologies and legal considerations influenced them. It was only natural that Continental political views would influence them. Chancery became a pure judiciary court by the 16th century. Law was likely influenced by lawyers who practised in the court and were educated in law, specifically within Inns of Court. Lawyers who practised in Chancery were those who had been educated to practice Common Law. The reign of Henry VIII saw Sir Thomas More, made the Chancellor.
- The position attributed by the legal histories of the 15th and 16th centuries to the principle of conscience or equity made it impossible for the rules laid out by the Chancery to be provocative to Common Law. In the Middle Ages, all Courts of Law would have claimed to be able to govern both the law and equity. At the time of Bracton and, later, the King's Courts were able to conduct justice in equity. However, the law was now more likely to be based on the commands of the Sovereign, and there was less room to modify it through equitable principles. Perhaps the increased respect accorded to the legitimacy of ruled cases was among the factors that led to the removal of the notion of equity in and out of the Common Law. In the medieval period, it was believed that the universe was governed by the law of God and the Law of Nature and that any human laws that were contrary to them were valid. The "Doctor and the Student" repeatedly emphasises the reality that the laws of the State, regardless of whether it was Common or Civil Law, are the basis of equity. So, neither "Doctor and Student nor Coke thought of equity's rules as an independent element in the laws of England. Civil treaties and Canon Law written in England were less significant than understanding the Common Law upon which rules of equity or conscience had to be based. Equity was a kind of gloss written around the English Code, which at every turn implied that there was Common Law.
CONSEQUENCES OF RECEPTION of ROMAN LAW in ENGLAND
Ihering stated: "Three times Rome has given law across the globe, and three times has she served as the bond of unification between different peoples. The first was through the unification of the State when Romans stood at the peak of their power. The second reason is the Church's unity following the Roman Empire's collapse. Thirdly, through the unification of Law and the reception in Roman Law of Middle Ages." The results of this kind of reception were profound, like the following:
- The Theory of Natural Law, Jus gentium that medieval canonists and civilians were able to develop from Roman Jurisconsults, replaced the doctrine of the Holy Roman Empire as the basis for international intercourse. England played a significant role in this.
- The country has influenced the political debate in the present day, e.g., the relationship between State and Church, etc. England has left a legacy of similar influences but with a very distinct substance. The legal and political ideas of Englishmen were based on medieval concepts that were based on Common Law and not of Bartolists.
- This is the application of fundamentals that are a part of Civil and Canon Laws to the legal requirements of the modern State that will earlier or later grant countries across Europe the desire for a nationwide law as well as the technical skills and expertise needed to create it.
We could see influences from the continent on these Maritime and Commercial Laws administered by the Court of Admiralty, that these continental ideas helped the heads of government by restoring supremacy in law by encouraging the development of Equity and Equity Chancery as well as Star Chamber. Despite competing against foreign influences, the early Common Law remained firm on its foundations. It is evident it is true that English Law has been fortunate in its interaction with Roman law. In various periods of English history, this interaction has greatly assisted the evolution of English Law. It is generally accepted that the European States are divided into two groups. First, in the states with legal systems that were largely Romanised, the reception took on the form of evolution. In the second category, states with legal systems comprised of a collection of ancient customary rules, the reception took the style of revolution. However, England and English law cannot be brought into either of the two groups. England received a degree of acceptance from Roman Law in the twelfth and thirteenth centuries. But the direct impact on the law of Roman Law on English Law ended at the close of the thirteenth century. There was no acceptance through revolution. In the time of Bracton, Roman Law taught the founders of Common Law how to establish a coherent legal system. In the sixteenth century, it helped bring English Law sufficient for the needs of the modern-day government. In the eighteenth century, Roman Law helped Lord Mansfield establish the modern English law called Mercantile Law. When we compare England with other nations, there is a distinct feature unique to England. It was assimilated and naturalised with its help. Our completely independent system is, just as its predecessor, the Roman Law itself, has been slowly and continually shaped through the evolution of old rules and the development of new rules to meet the changing needs of civilisation and ever-growing empire."
ROMAN LAW IN ENGLAND BEFORE NORMAN CONQUEST
"There is no evidence," said Maitland, "of the laws and the jurisprudence from Imperial Rome as distinct from the precepts and practices from the Roman Church in the earliest Anglo-Saxon documents. Whatever is contained in them is ecclesiastical." In the five hundred years of the fifth century, Rome's arm Rome was weak enough in its reach into England. After the English Conquest of Britain, the laws of Rome disappeared in the same way that its language, as well as her faith, were destroyed by the English people. Legal historians are convinced that, by the 6th century, all Roman institutions had vanished in England apart from a few fragments from the Romano-British Churches and that Britain was slipping into barbarism. In the beginning, before the arrival of the Saxons, the Southern region of Britain was part belonging to the Roman Empire. This is why a few Romano-British churches were evident in England. In the seventh century, the middle Pope Gregory VII invited a Greek monk named the Archbishop of Canterbury to oversee the Anglo-Saxon churches. The Greek monk is Theodore of Tarsus, who was from Rome. In the past, churchmen were the sole lawyers and Church doctrine was influenced by Roman views. In addition, this is the known truth that during the Shire moot and the folkmoot, Anglo-Saxon bishops sat, and the bishops determined all the ecclesiastical or civil controversies. This is what the Codes of the English Kings and these Charters, the sole source of Anglo-Saxon legal history, show". To keep their pride, Anglo-Saxon rulers may refuse to adopt Roman law in its current form. However, they certainly took advantage of Roman law disguised in version.
PERIOD STARTING FROM NORMAN CONQUEST TO THIRTEENTH CURRENCY
Following the Norman Conquest, an Italian, Lanfranc, was famous as the right-hand man to William the Conqueror. W. Senior said: "The nature of Lanfranc who was a master of Lombard Law, Roman Law and Canon Law, and who was able to master English Law so thoroughly that he was able to carry all of it even when the discussion was about sake and sake and soke, is sure to raise the ire of those who locate the source of to the English Law of the twelfth century." The Law School of Pavia, the place to which Lanfranc certainly belonged, was during his time busy in the systematisation of the old Lombardic Laws, which resembled, in essence, the Doomsdays from Anglo-Saxon England. Becket studied law at Bologna, and in 1143, he travelled to Rome along with Archbishop Theobald for an assignment to Pope, and they made contact with Vacarius, who later became the first official instructor in the field of Roman Civil Law in England. Archbishop Theobald, before 1149, on the advice of Thomas Becket, invited Vacarius, a Lombard lawyer, to lecture about Roman laws in England. He was a teacher of Roman laws for English undergraduates at Oxford. English litigants, if they were wise and wealthy, could avail the services of the top Italian Advocates. The influence was sufficient from the middle of the 12th century until the middle of the thirteenth century. There were some great maxims, as well as a few other precise rules were adopted. However, the thing borrowed directly from Roman Law was logic, technique, and spirit instead of matter. At a relatively late time, some Roman rules were incorporated into the traditions and customs of London". In Glanville’s Treatise, written during the reign of Henry II, the impact of the effects of Roman Law on the laws of England is easily studied. In a sense, the whole book is founded on Roman understandings. Glanville’s treatise indicates that Roman Law has provided a method of reasoning on legal issues and the ability to establish a technical form and language that allowed specific and general regulations to evolve from a myriad of undefined practices. Beginning in the mid-point of the thirteenth century, we have a more extensive and superior publication than Glanville’s. Its writer was Bracton. Bracton was an ecclesiast, and for a long time, he was one of the justices of the King. He was an expert in the field of Italian Jurisprudence. Bracton had meticulously compiled hundreds of decisions from the long rolls of the court and employed them as his authority. He explains that the doctrine of Precedent was referred to in older Roman Law as 'Responsa Prudentium; however, the emphasis differed to a small degree. The opinions of English legal historians diverge in the amount of Bracton's obligation in Roman Law. Maine considered that the entire format and three-quarters of the treatise's content were derived from Roman Law. However, Reeves believed that even though the terms and principles were derived from Roman Law, the actual principles borrowed wouldn't be able to fill three pages. Maitland believed that although Roman Law's influence was marked in specific parts of the first seventy-seven folios, it does not mean that the rules of Roman Law were made to alter or replace laws that were a part of English Law. "Bracton's obligation towards Roman Law is larger than what Maitland believed" is the view of Holdsworth. It is now acknowledged that Bracton's Treatise contains several words and phrases and certain Doctrines of Roman Law. "Bracton's knowledge of the legal theories and his opinions on the law generally, about duties and rights and procedure and procedure, etc., were affected from Roman Law." Roman studies filled in the gaps and offered suggestions for changes only. It was the only time in history that law, including the Common Law, was directly affected by the system of foreign Romans. However, we will see that Roman Law never had this vast influence, as the judges of the King's Courts no longer were individuals who had been educated about both the Civil and Canon Laws. From the time of Bracton onwards, Roman Law exercised only the slightest influence upon the English Common Law, and such influence was mostly through opposition rather than attraction. A lot of Romanism was absorbed into English Law at this early period that, in the future, it came under various attacks and was accepted even into the critical time in the 16th century.