260 HISTORY OF LAW 



recognizing an alien jurisdiction. The question as to the fundamental 

 relations between the two systems for historical purposes comes to 

 this, whether the common law was developed into an independent 

 system of jurisprudence influenced, as it may have been at some 

 stages of its history, by the learning of the civil law, but on the 

 whole substantially indigenous, or whether, on the other hand, 

 there was no systematic jurisprudence in England save as the con- 

 ception of general law, and the principles in accordance with which 

 a system was constructed, were borrowed from civil law sources. 



No citation of authority is necessary to support the proposition 

 that English jurists have almost universally denied any funda- 

 Common mental derivative connection between the common law 

 Law not anc j the civil law. They are united in the assertion that 

 from Civil the systematic jurisprudence in England has been de- 

 Law, veloped from sources and impulses peculiar to the English 

 people. And the contention of those who would have us believe 

 that the common law as a system is fundamentally an outgrowth of 

 the civil law resolves itself into a claim that authors such as Coke, 

 Hale, and Blackstone, who have expounded the common law system 

 and explained its development from Anglo-Saxon sources under 

 impulses peculiar to it, have been so blinded by prejudice and pro- 

 vincialism that they have failed to see or to admit the truth. 



The historical facts on which the advocates of the claim of the 

 Historical civil ^ aw to be the real foundation for jurisprudence 

 Facts. m England rest their case may be briefly grouped as 



follows : 



(1) The Roman law prevailed in England during the period ante- 

 dating the Anglo-Saxon invasion while Britain was a province of 

 Roman tne Roman Empire; that is, from A. D. 43 to, say, about 

 Law in the beginning of the fifth century when the Roman 

 Britain. legions were withdrawn, and all assertion of Roman 

 power in Britain was abandoned. It appears that during this period 

 Papinian, who afterwards became at Rome one of the great com- 

 mentators of the civil law, administered justice at York as pro- 

 vincial praetor. But first it must be suggested that the Corpus Juris 

 had not yet been compiled, and that Roman law had not reached 

 that definite form which enabled it at the close of the Middle Ages 

 to extend itself over Europe as the only known body of systematic 

 law. Again it is to be remembered that in the countries of Northern 

 Europe which were at the same time under Roman dominion the 

 civil law did not become established as the foundation of jurispru- 

 dence until a much later period. And finally and conclusively, there 

 is not the slightest evidence that the laws and institutions which 

 prevailed among the Britons in England during the Roman occupa- 

 tion and as a result of that occupation had any effect on the laws 



