296 HISTORY OF ROMAN LAW 



for direct proof is not yet forthcoming, we have only to read a few 

 pages of Story's Equity Jurisprudence, or of his treatises on Partner- 

 ship or on Bailments, in all of which he quotes from the Institutes 

 and Digest, often in the text, still oftener in the notes. We can 

 scarcely avoid the conviction that the parallels which he constantly 

 draws between Roman and English rules are more than accidental. 

 This problem has not yet been fully worked out, and probably 

 cannot be, till the early records of the English Ecclesiastical Courts 

 are published and studied. But the results hitherto attained show 

 that the borrowing of Roman principles was carried out in England, 

 not by wholesale, but in small and haphazard installments. In early 

 English law it is admitted that possessio influenced the conception 

 of seizin, and laesa maiestas that of treason. 1 At a later day the 

 Court of Chancery was similarly influenced in dealing with mortgages 

 and with uses and trusts, while in the construction of documents 

 and wills it naturally followed the Ecclesiastical Courts, and borrowed 

 its rules from the fiftieth book of the Digest. 2 Blackstone rightly 

 ascribed to Roman sources the practice of hotchpot and the rules 

 for the distribution of personalty. 



It is interesting to note how this affected the great lawyers of the 

 seventeenth century. Sir Edward Coke was as far as possible from 

 being an enthusiastic civilian, yet even in his work may be found 

 traces of Roman influence, though possibly he was not aware of it. 

 For instance, he gives the rule, " Nullus commodum capere potest de 

 iniuria sua propria," which is merely a slightly altered form of the 

 Digest's "Nemo ex suo delicto meliorem suarri condicionem facere 

 potest." 3 In another place he quotes from Bracton the rule on 

 testamentary ambiguity, " Benigne interpretari et secundum id quod 

 credibile est cogitatum." Here, though his language is different, his 

 use of Marcellus's phrase " benigna interpretatio " seems to confirm 

 the Roman origin of the rule. 4 The same may be said of the 

 somewhat longer statement given by Coke of the rule "ratihabitio 

 mandate comparatur." 5 Turning to Coke's great adversary, we 

 find in his work also distinct traces of the civil law, though it has 

 been said that Bacon had only a "bowing acquaintance" with it. 

 In his lectures on uses, for instance, he draws a comparison between 

 the use and the fidei commissio, and in his short essays on legal 

 maxims he supports at least two rules by citations from Roman 

 sources. 6 To one rule which he has stated he adds: "These be 

 the very words of the civil law." More extracts of this same kind 

 could be collected from other English law-writers of the seventeenth 

 century; and after making due allowance for the hostile attitude 



1 Pollock & Maitland, History of English Law, vol. n, pp. 46 and 503. 



2 Scrutton, Roman Law and the Law of England, p. 157. 



3 Coke, Inst. 148b. 4 Coke 7ns/. 36a. Dig. 34, 5, 24. 



6 Coke, Inst. 207a; Dig. 46, 3, 12, 4. ' Bacon, Maxims, Reg. 3 and 11. 



