ROMAN LAW HISTORICAL SCIENCES 295 



of text-writers or the mouth of judges into the bed-rock of common 

 law or equity doctrine? 



Sir H. Maine thought this had taken place on a very large scale at 

 an early stage in English law through Bracton's borrowing from 

 the Italian civilian Azo, and he accused the English judge of having 

 made up a third of his treatise out of Roman law and having palmed 

 it all off as English. But this charge will scarcely hold, since Pro- 

 fessor Maitland has shown that Azo has supplied only one fifteenth 

 and the Corpus luris only one fortieth of Bracton's material. 1 The 

 fact is that unmistakable instances of the importation of a Roman 

 rule into an English text or an English decision are very hard to find. 

 Sir Frederick Pollock has found only one, and Professor Maitland 

 has mentioned another; 2 and where such explorers have been over 

 the ground, the treasure still unfound must indeed be insigni- 

 ficant. But there may be smuggling as well as regular importation 

 of legal ideas. And this sort of smuggling may, as in the case of 

 literary plagiarism, be partly unconscious and therefore all the 

 harder to trace. A good instance of the difficulty of ascertaining 

 whence any given rule in English law was derived is the conflict 

 of high authorities respecting the origin of the exceptional liability of 

 common carriers. On this point Sir William Brett and Mr. Justice 

 Story are opposed to Lord Cockburn and Mr. Justice Holmes; the 

 two former holding that the rule of liability was adopted from the 

 Roman law, while the two latter think that it was not. 3 



The relation between Roman and English law is probably closer 

 than we think or than we shall ever be able to prove, because 

 it was, so to speak, illicit. This is explained in the De Laudibus 

 Legum Angliae of Chancellor Fortescue. When the Prince asks why 

 his ancestors had failed to introduce the civil law into England, 

 Fortescue replies that the English regarded it as an instrument of 

 tyranny. The same feeling was displayed more than a century after 

 Fortescue in the violent attack made by Parliament on Co well's 

 Interpreter, a book which undertook to point out the resemblance 

 between Roman and English law. Clearly, therefore, if an English- 

 man borrowed from the civil law, he was not likely to admit the debt. 

 "For obvious reasons," as Mr. Bryce has said, "the Chancellors and 

 Masters of the Rolls did not talk about Nature, they referred 

 rather to the law of God and to Reason. But the ideas were Roman, 

 drawn either from the Canon Law, or directly from the Digest and 

 the Institutes." 4 If we wish an indirect proof of this statement 



1 Maitland, Bracton and Azo (Selden Soc.) introd. 



2 Pollock, Nature of Jurisprudence, p. 326. Maitland, note to Canon Law in 

 tlie. Church of England. 



3 Sir W. Brett in Nugent v. Smith, L. R. 1 C. P. D., pp. 28-30; Lord Cockburn 

 in same volume, pp. 428-30; O. W. Holmes, Jr., Common Law, p. 181. 



4 Bryce, Studies in History and Jurisprudence, p. 599. 



