304 



{I) The most striking illustration of this fact is furnished by the treatise of Bracton, 

 with reference to which Sir Henry Maine mal<es the following observation : " That an 

 English writer of the time of Henry III should have been able to put off on his country- 

 men as a compendium of pure Englith law a treatise of which the entire form and a 

 third of the contents were directly borrowed from the corpus juriK, and that he should 

 have ventured on this experiment in a country where the systematic study of the Roman 

 law was formally proscribed, will always be among the most hopeless enigmas in the 

 history of jurisprudence " (Maine's Ancient Law, Chap. iv). It must, indeed, be hope- 

 less to reconcile this fact with Mr. Maine's, or rather, Austin's and Bentham's theory of 

 the law ; but, in the light of the true theory, there is nothing in it to surprise us. It was 

 the function of the judges to administer justice, and tlieir duty, at least, in the then con- 

 dition of the law, to seek the principles of justice where they could best find them, 

 namely, in the Roman law. " What is good sense in one age must be good sense, all 

 circumstances remaining, in another, and pure, unsophisticated reason is the same in 

 Italy and in England, in the mind of a Papinian and of a Blackstone" (Sir William 

 Jones' Bailments, Introduction). 



"To have neglected to tabe advantage of the assistance which was then offered would 

 have argued a high degree of presumption, or gross and culpable ignorance ; neither of 

 which is to be imputed to the founders of our system of jurisprudence" (1 Spence's Eq. 

 Jur., 123). 



(m) For a fuller account of the influence of the Roman upon the Engli.sh law, see ob- 

 servations of Spence, 1 Eq. Jur., pp. lOS, 109, 122-124, 131, 132, 224, 2:«, 235, 285, 286, 346, 

 347. Mr. Markby, in his late work. Elements of Law, takes a different view, but in this 

 he is clearly wrong. 



