352 HISTORY OF COMMON LAW 



the 900 's (though this does not directly concern our own history). 

 For Norman law, the work of Esmein, Flach, Brissaud, Viollet, 

 Beaune, Tardif , and Glasson, with a few others, makes possible the 

 most necessary comparisons. The connections may be observed by 

 tracing the topics, one by one, in those writers and in Pollock and 

 Maitland's history. What is lacking is merely a detailed analysis, to 

 be made from this special point of view. 



(2) The Roman law influence was never much more than indirect. 

 That is, there was never a deliberate receptio or adoption (as in 

 Germany from Italian jurists in the 1400's-1500's, or in Japan from 

 the French and German codes, in the 1800's, or in the Rhine provinces 

 from the French code in the 1800's). The revival of the continental 

 study of Roman law was then as yet too recent; and there were 

 other reasons. What happened was a certain large inspiration of form 

 and method, through the minds of the clerical judges and advisers, 

 administering the customary law during the 1100's and 1200's. 

 Thereafter, the only direct adoption consisted in the casual intrusion 

 of scraps of rules or analogies or phrases, here and there, into the 

 already definite and homogeneous body of English law. This much is 

 established by the researches of Pollock and Maitland and Scrutton. 

 A few details only remain to be explored. 



(3) The canon law was a much more large and likely element of 

 mixture. It could and did come in by two avenues, (a) In the first 

 place, the knowledge and practice of the king's clerical justiciars and 

 advisers from 1100 to 1300 affected the form and method of English 

 law. The crude customary English law was thus (in the words of 

 Pollock and Maitland) rationalized by the canon law. A little, but 

 not much, was directly borrowed. This part of the influence is known 

 with some fullness. (&) In the next place, there continued for several 

 centuries after the definite constitution of the courts (4) King's 

 Bench, Exchequer, Common Pleas, Courts Baron, and the like (in 

 which the customary law was distinctively English) , several import- 

 ant courts in which either the substantive law, or the procedure, or 

 both, or a part of either, was professedly based on the canon law; 

 the courts of the Church, of Chancery, of Requests, of the Star 

 Chamber, and of the Admiralty represented almost a majority of 

 English courts, not only in number, but also in quantity and im- 

 portance of judicial business. By the 1500's and early 1600's there 

 was a keen rivalry, of which the ultimate issue really hung for a time 

 in the balance. Professor Maitland's essay on the " Renaissance of 

 English Law " has made it clear how narrow was the escape of the 

 common law. Although the canon law system did lose the upper 

 hand, and the courts which it dominated were one by one abolished 

 or amalgamated, still its methods and its substance were in large 

 part preserved in the field of law where they had developed in these 



