A Small Reception in Westminster

The following post features an essay by 2023 UA Law graduate, Marshal Trigg, who is currently a nonprofit attorney in Washington, D.C.

Among legal historians there is a long-standing controversy over whether (or how much) of Roman law was “received” into the Common Law. Marshal Trigg’s “A Small Reception” surveys the development of Roman Law and Canon Law in the middle ages, and shows the influence of the Roman legal concepts on such innovations as Henry II’s “Assize of Novel Disseisin” and also on the works of such English jurists as Ranulf de Glanvill (d. 1190) and Henri de Bracton (1210-1268). By the 14th century, elements of Roman law had taken root in English law, notably in the development of the Court of Chancery. Chancery, in turn, was a feature of English law that was transplanted successfully to the new world.  Alabama’s Chancery Courts, for instance, were active into the twentieth century (Alabama Code of 1907, §§ 3042 ff.). That alone makes the history of “reception” part of our own legal heritage.

A Small Reception in Westminster

by Marshal Trigg

  1. Introduction

Civil law and common law jurisdictions differ in many important respects. A chief difference is the matter of inheritance: where civil law descends ultimately from the Roman legal tradition, common law is plainly derived from English tradition. Where the other nations of Europe received the Roman law, England went its own way. Still, scholars have long debated the question of a possible “reception” of Roman law in England. The question itself requires some unpacking: what constitutes “reception,” or “Roman,” or even “law”? For the purposes of this discussion, each of these terms will be considered in a broad sense. Thus, “reception” will be discussed as a matter of degree of influence, “Roman” will span the range from original Roman texts to later derivative sources such as the canon law, and “law” will encompass an expansive sweep of legal society, principles, and pedagogy. Once these definitions are applied and appropriate inquiries are conducted, it becomes clear that England underwent a reception of its own.

Goethe supposedly compared the Roman civil law to a duck: “Sometimes it is visible, swimming prominently on the surface of the water; at other times it is hidden, diving amid the depths. But always it is there.”[1] Yet if all Romans are ducks, not all ducks are Roman, and one occasionally might find a strange cryptid bobbing along the Thames. Here then, we must call on the mighty taxonomizing powers of the legal historian.

  1. Early Antecedents

Perhaps any discussion of an English reception of Rome should take care not to elide the fact that Britain, at one point in its antique past, was quite literally subject to Roman jurisdiction as an imperial province.[2] Far from some forgotten, far-flung outpost, the island was studded with prestigious Roman courts and officials, and Roman jurists of the second and third century A.D. discussed British cases.[3] Could this early acquaintance have sown the germ of a distinctly Latin legal mode surviving the subsequent displacement via Anglo-Saxon dominion? Certainly, these Germanic settlers left no Roman institution unrazed.[4] It is possible yet that the Germanic newcomers absorbed certain Roman customs and thinking from the native British. The scant written laws from the early Saxon period would seem to discourage examination, though scholars have attempted it.[5]

However, this level of speculative inference strains the bounds of our inquiry. It is enough to say that Rome made its second contact with Britain in 597 when Pope Gregory I sent St. Augustine (“the second of that name who attained to ecclesiastical celebrity”) to reintroduce Christianity to its population.[6] Consequently, the Kentish king Æthelberht and ten thousand of his subjects adopted the Roman religion.[7] In the Venerable Bede’s telling, Æthelberht shortly after set in writing the first Kentish law code juxta exempla Romanorum (“according to the Roman mode”).[8] This may appear at first a confusing observation, as the code betrayed little direct Roman influence and in truth evinced a great deal of Frankish influence instead.[9] Rather, the very fact of providing a written legal code signified in itself a dramatic step toward Romano-Christian enlightenment.[10]

Even so, a proper Romanist would find much lacking in the brief Kentish law code. A representative example is reproduced below:

  • 10: If someone lies with one of the king’s female slaves, he shall pay as compensation 50 shillings.
  • 11: If she is a corn-grinding slave, he shall pay as compensation 25 shillings. If she be of the third rank 12 shillings.[11]

Thus, the much-vaunted Code of Æthelberht could fairly be described as something like a glorified penal code resting on the vast edifice of an unwritten customary law.[12] Nevertheless, it was an important beginning. In the following centuries, the study of Roman law would be nurtured in cathedral schools like that of York.[13]

Around the year 900, Alfred the Great, King of the Anglo-Saxons, assembled many old English laws and roughly synthesized them into a Mosaic framework.[14] In a prologue, Alfred asserted a continuity bridging international church canons and secular English law: “[M]any synods assembled throughout the world… Then in many synods they ordained the penalty for many human misdeeds, and in many synod-books wrote here one regulation, there another.”[15] If the legal orientation of the developing English kingdoms had been grossly Teutonic and provincial up to this point, here it was becoming Christian and, however slightly, cosmopolitan, i.e., moving toward romanitas.

III. Of Normans and Romans

The triumph of the Normans in the Battle of Hastings in 1066 represented in many respects a significant point of departure in the English realm, not the least of these being the centralizing tendencies of Norman administration. Among many reforms, William the Conqueror wrested the ecclesiastical causes from the old Saxon hundred courts and assigned jurisdiction instead to the “canones of the catholic church” to be administered by the decidedly romish ecclesiastical courts.[16] Centralized royal courts were soon established,[17] and these courts were generally staffed by men possessing a clerical background and a grasp of Latin.[18]

Near the same time, in the latter half of the eleventh century, interesting developments were brewing on the Continent. In 1054, the Christian church was beset by a schism between its Roman and Byzantine centers.[19] Subsequently, the Western church elected to substantially aggrandize the political and legal powers of the Vatican, resulting ultimately in “the first modern Western legal system”.[20] Prior to the late eleventh century, “law” did not yet exist as a distinct body of jurisprudence plainly distinguishable from prevailing customs and institutions.[21] This state of affairs was overturned rapidly in the late eleventh and early twelfth centuries, significantly as a response to Pope Gregory VII’s, assertion of papal supremacy in 1075.[22] By his declaration of legal supremacy over all of Christendom, the path to a universal system of law was laid.[23] Thus the Roman Catholic Church embarked on an ambitious project to systematize its canon law as a set of ordered principles, spurring the creation of the first law schools in western Europe.[24]

Lacking much in the way of satisfactory materials, these schools drew substantially on the freshly rediscovered Digest of Justinian, the compiled laws of that sixth-century Eastern Roman emperor.[25] Knowledge of Roman law had already been available, but the Digest was set apart from other sources by virtue of being a comprehensive statement of the law.[26] Still, the bare text of the Digest did not expressly establish a general theory of law or politics.

Emperor Justinian and his court.
Emperor Justinian and his court

It was the task of the glossators, those juristic assimilators of the old Roman law, to pore over the ancient laws while extracting widely applicable principles.[27] It was in this way that the new law schools set out to reconstruct the science of the Roman law. The same sort of exegesis would come to be applied to the canon law, drawing on sources ranging from Roman law, church canons, papal curia materials, biblical scripture, and contemporary theologians.[28]

Canon law came into its own with the publication of Gratian’s Decretum near 1140, an authoritative collection of canon law compiled and glossed with the intent of reconciling apparent contradictions.[29] By the middle of the twelfth century, law students and teachers were divided into two groups, canonists, who focused their studies chiefly on the canon law, and civilians, who erred more strongly on the side of the Roman civil law.[30] Roman law, not being the positive law of any institution in medieval Europe, was often referred to as “the handmaiden of canon law”.[31] The two disciplines would remain closely connected, as civil law became “theologized” and canon law became “Romanized”.[32] This developing romano-canonical jurisprudence would come to be known as the ius commune, or “common law” of Europe.[33]

Many Englishmen in the twelfth century were happy to make the trek to Bologna or Paris to receive an education in canon or civil law.[34] In the traditional telling, it was a Bolognese teacher named Vacarius who introduced the new glossatorial learning to England in his lectures at the University of Oxford in the late 1140s. That approach to legal study fell upon suspicion in the later twentieth century, however, in large part because of shallow documentation and because the curriculum at Oxford was dominated by the liberal arts until the 1180s.[35] It is certain in any case that Vacarius taught civil law somewhere in England, and that the introduction of “foreign law and foreign lawyers” greatly offended King Stephen.[36] Proscriptions soon followed, but they did not last long.[37] The latter half of this century saw these “foreign laws” take hold in English universities, and at the same time beheld the rise of its own national common law under Henry II.[38] Ample opportunity existed for the learned law of the universities to cast its shadow over English courts in the twelfth century, but the extent to which it occurred is uncertain.[39] Henry II was fond of staffing the royal judiciary with church prelates, many of whom additionally presided over the ecclesiastical courts.[40] Most of these men were lay clerics and would not likely have undergone advanced training in the romano-canonical law; however, even a passing acquaintance with the new continental jurisprudence would likely have made a significant impression.[41] One of those justiciars was Ranulf de Glanvill, an ecclesiastic himself who purportedly authored “A Treatise on the Laws and Customs of the Kingdom of England” which appeared in the late twelfth century.[42]

Glanvill’s seminal work was “more of a manual of procedure and practice than a treatise on law”.[43] In any case, it was the most successful statement of English law to date. Unlike prior contenders – wont to jumble law with various code with little attention to organization – Glanvill brought a clarity of focus to the law that was sharpened by the new juristic style.[44] Adopting the romano-canonical method, Glanvill systematically tackled the various writs, remedies, and procedures of the nascent common law, and set them into a comprehensive, scientific schema.[45] The author additionally commanded a broad knowledge of Roman terminology, procedure, and substantive law, and stated that the English law commanded the same dignity as the Roman leges.[46] Of particular interest to scholars is Glanville’s treatment of the assize of novel disseisin, and especially the distinction between proprietary and possessory actions.[47] Several decades later, this distinction would be built upon by Bracton’s foundational treatise.[48]

The period between Glanvill and Bracton saw vast advances in the development of the common law, “in variety of writ, in the breadth of subject-matter, and skill in draftsmanship.”[49] Bracton, like Ganvill, was an ecclesiastic who presided for a period as Chief Justiciar of England.[50] His treatise surpassed even Glanvill’s impressive work: “not a mere treatise on practice, but an exposition of the law itself – the first of its kind in England”.[51] Bracton also borrowed much more liberally from the Roman law, modeling his treatise after the Institutes of Justinian[52] and extracting most of its law of personal property.[53] Importantly, Bracton carefully integrated Roman law and English law such that “Roman law no longer appears as a stranger, nor as a merely tolerated element of the law, but as one which in rank and origin is equal to the Common law.”[54]

It should be noted that Bracton’s writings were in many aspects aspirational more than representational. By his own admission he wrote with a purpose to emphasize what he regarded as sound legal doctrines at the expense of contemporary ideas he disliked.[55] Thus, the influence of Roman law upon Bracton’s work does not necessarily say much about the influence of that law on the common law as a whole. By the same token, collection of cases complied by Bracton do not necessarily reflect the state of English law during Bracton’s day. Still, Bracton’s treatise was highly respected, and occasionally his recommendations were borrowed even centuries later.[56] As noted previously, he continued Glanvill’s distinction between proprietary and possessory actions. This warrants a general discussion of the assize of novel disseisin.

  1. Novel Disseisin

The precise provenance and concept of seisin are somewhat shrouded in obscurity, but it corresponds at least roughly to possession. [57] Where a tenant was dispossessed of his lands by his lord (or by anyone else), that tenant was disseised. This was offensive to the peace of the kingdom wherever someone has been disseised without process of law. Before the age of Glanvill, this was occasionally corrected by royal intervention on essentially an ad hoc basis, by way of criminal inquest or similar proceedings.[58] It was the assize of novel disseisin (literally, “proceeding on a recent ejectment”)[59] that transformed the remedy into a private cause of action and elevated it into a systematic national campaign.[60] Per Glanvill, a person disseised unlawfully within the statute of limitations could apply for a royal order to the sheriff to impanel a jury of twelve to determine whether seisin should be restored to the plaintiff.[61] These actions were swift and efficient, in large part because they did not attempt to dispose of the matter of the title.[62] This was the difference between pleading on seisin and pleading on right.[63]

For seisin and right, Glanvill’s manual respectively substituted the Roman legal terms possession (possession) and proprietas (ownership). This was arguably a provocative gesture in a medieval kingdom lacking a strong grounding in either concept. Ideas of ownership were especially fraught in the context of feudal land tenures, where all English subjects “held” land either directly or indirectly of the king. “Possession” was not without its difficulties either, though the extent of the problem is directly proportionate to the relation between possession and seisin, an unresolved controversy. Per Maitland, seisin was simply the Germanic term for possession. This view was challenged by Milsom, who understood seisin strictly in the context of the feudal relationship: “A lord ‘seised’ his tenant of his land; thus ‘seisin’ originally denoted the condition of having been seised by a lord.”[64] Whatever the original connotation of seisin, or the intentions behind the assize, the designers of the assize “cast it in the form of an action good against all the world”.[65] This, along with the concept of proprietary title, was further compounded by Glanvill in the twelfth century, and cemented by Bracton in the thirteenth: “By the end of the thirteenth century, there is no doubt that the tenement of a feudal tenant, ‘seised in his demesne as of fee,’ as the phrase goes, was his property. It is not at all clear that it would have been his property at the beginning of the century.[66]

Maitland additionally suggested that the assize of novel disseisin grew out of the romano-canonical actio spolii, but this is highly unlikely for chronological reasons.[67] The symmetry is nevertheless interesting. Actio spolii (“action of spoliation”) was a glossatorial innovation growing out of canon redintegrada (“rule of restitution”), the latter of which was set forth in the mid-twelfth century in the authoritative canonical treatise Decretum Gratiani. Drawing from two papal epistles regarding spoliation (dispossession) of bishops charged with a crime, Gratian extracted the principle that everyone is entitled to judicial restitution of anything taken wrongfully. This rule, the canon redintegrada, amounted to an affirmative defense for the accused (exception spolii), but later glosses read into this rule the private cause of action, the actio spolii. Through no apparent causal dynamic exists between the actio spolii and novel disseisin, the parallel development may have carried the effect of mutual reinforcement. In any case, it can be difficult to determine where one of the two systems ends, so to speak, and the other begins. As Hunter cautions, “At every step it is necessary to bear in mind the vital distinction between the analogy of two systems and the derivation of one from the other.”[68]

  1. Chronology and Countervailing Factors

Seeking to undo the anarchy of King Stephen before him, Henry II began his sweeping reforms with the Assize of Clarendon in 1166.[69] It was likely around this point that Gratian’s Decretum was first taught in England,[70] and by this time copies of the Digest were stored in the cathedral libraries.[71] By the 1180’s, the philosopher Daniel of Morley complained that “the liberal arts were being abandoned in England in favor of Roman law”.[72] Whatever barriers existed between the common law and the ius commune were very permeable at this juncture.[73] Van Caenegem describes the twelfth century as “one of these epochs when everything was questioned and any number of new roads might be taken with effects which would last for centuries.”[74]

Still, the continental school was young, and its procedure underdeveloped. To shore up his rapidly expanding royal justice system, Henry II would be forced to find other guiding lights.[75] By the time Europe realized the full impact of the romano-canonical law over a century after its inception, England already advanced a substantially developed jurisprudence and administration of laws.[76] The earliest march of the European reception was slow in part because it happened before the rise of the commentators (the successors to the glossators), who “made reception easier by meeting the customary law halfway”.[77] It was the commentators who, in the fourteenth century, synthesized Roman law with various legal systems and jurisdictions across Europe.[78] Much of the need for romano-canonical law on the continent revolved around harmonizing disparate local customs; however, this imperative was less urgent in England. The common law certainly borrowed from customary law, but its chief early accomplishment was to make most cases removeable from the old local courts to the royal courts. Consequently, it was relatively simple to ignore the tangle of contradictory customs, which typically withered away.[79] The consolidating tendencies of the common law system obviated the need for the unification under romano-canonical law.

Additionally, England at this time was the most thoroughly feudalized country in Europe, “the only territory where all of the land was held in feudal tenure”.[80] It followed naturally that feudal principles would determine much of the organizing rules of society, with comparatively little help from other legal traditions. Watson noted that the most feudal regions of France, Normandy and Brittany, had received little of the Roman law by the time of the French Revolution. In contrast, Friesland was far less feudal at the onset of the revolution, with more land held allodially, and its law was far more Romanized.

Finally, unlike any other country in Europe, the national law of England was taught academically since medieval times in the Inns of Court.[81] As Maitland noted, “it would… be difficult to conceive any scheme better suited to harden and toughen a traditional body of law than one which, while books were still uncommon, compelled every lawyer to take part in legal education and every distinguished lawyer to read public lectures.”[82] Naturally, the common law tradition quickly became a revered institution in the English legal profession.

For these reasons, England was not ripe for a significant reception such as what took place on the continent. Perhaps the Romanesque doctrines imported by Glanvill and Bracton also ironically immunized their laws against a more dramatic reception.

  1. A Smaller Reception

There were opportunities yet for a more limited reception of Roman law. The chancery court is a notable example. The chancery, administrated by the chancellor, began as the administrative arm of the royal judicial system, responsible for assigning common law writs to plaintiffs.[83] By the thirteenth century, the barons were challenging the issuance of “extraordinary” writs by chancery, demanding the constriction of remedies to familiar precedent.[84] The Chancellor, being uniquely qualified to frame new types of writs, played an important role in the response of the common law to a developing English society.[85] With the expansion of the royal docket, more cases were delegated to the chancery over time until the fourteenth century when the chancery court was established as an independent equitable jurisdiction headquartered in Westminster Hall.[86]

“Equity” is a term whose context demands to be unraveled. Prior to the late fourteenth century, all royal courts were essentially courts of equity, devising writs according to equitable principles.[87] It is not altogether unlikely that the original writs of Henry II were modeled on Roman formulae, “the law familiar to the then ecclesiastical English judges”.[88]As these procedures eventually crystalized and settled into stasis, chancellors sought to supplement the common law with equity.[89] Scholars disagree on how these equitable principles were derived, however. Jenks argues that the Roman import was mostly limited to vague maxims already agreed upon by all decent citizens, e.g., “once a mortgage, always a mortgage”.[90] However, Justice Joseph Story states that courts of equity act on principles “familiarly recognized by the Roman law, and in the jurisprudence of those nations which derive their law from that most extensive source.”[91] Emphasizing the law of partnership, and referring his learned reader to, inter alia, the Digest and a commentary on the Institutes, he explains that “unexpected coincidences… are everywhere to be found, while the differences are comparatively few.”[92] Story additionally observes that a principal channel of these doctrines can be found in international maritime law.[93]

The treatment of agency in the Institutes does in fact bear a strong resemblance to Anglo-American doctrine. “An agent ought not to exceed the terms of his commission.”[94] The effect of violating this maxim is that the agent “will not be able to sue [the principal] on the agency,” likely meaning that the agent may not sue the principal for breach related to the agency, nor may he transfer liability incurred by the agent outside the scope of his commission.[95] The following title on quasi-contractual obligations yields some oddly familiar findings as well. For instance, a person who gratuitously undertakes the management of another’s business is potentially subject to related liability notwithstanding the absence of commissioned agency.[96] Though our courts may prefer terms like “reasonable reliance” to justify this operation of law[97], the text simply cites “the general convenience”.[98] In any matter, the same animating principle is clearly present. Given these striking similarities, it is hard to agree with Mr. Jenks that the influence of Roman law may be reduced near-exclusively to agreeable cant about fairness.

Roman borrowings in England were also not unique to chancery. Lord Mansfield, eighteenth-century Chief Justice of the King’s Bench and “the father of modern Mercantile law”, was such a great admirer of the civil law as to invite attacks upon his reputation. One such searing accusation read: “In contempt or ignorance of the Common law of England, you have made it your study to introduce into the Court where you preside, maxims of jurisprudence unknow to Englishmen. The Roman code, the law of nations, and the opinions of foreign civilians, are your perpetual theme.”[99] As Scrutton explains, Lord Mansfield had no intention to ever substitute Roman law for common law, but rather to glean in the former as a store of principles for interpreting novel cases.[100] However, this is exactly what the ius commune entails: deriving from authoritative principles, based principally on Roman law, in the absence of local law.[101] It never truly left England, and this is evidenced by the long-running tenure of civil law courts governing specific subject matter such as ecclesiastical and admiralty law.[102] The civilian profession in England only fell into obsolescence in the nineteenth century once its classical domains were “thrown open to the ordinary Bar,” at which point its doctrines were imported into the common law.[103]

It was additionally Lord Mansfield who presciently denounced the state of affairs by which equity remained the sole preserve of the Court of Chancery, declaring that “justice should be done in accordance with law in all courts of law.”[104] This is at one with the romano-canonical principle that “the precepts of laws should be admitted only if they tally with equity.”[105] This once controversial view was finally vindicated by an act of Parliament in 1876 granting equitable powers to common law courts.[106] Though restrained at this point by centuries of precedent, it was in some sense a return to form for the common law, which began with great leaps and bounds in the age of Henry II.

VII. Conclusion

Ultimately, it was England’s precociously developed national law which kept Rome at bay. For the canonists and their secular fellow travelers, the Roman law was a gap filler, and it was sheerly by virtue of a fewer number of interstices that England averted a continental-style reception of Justinian. However, it appears without question that England borrowed substantially from the ius commune of romano-canonical doctrine. If we consider “reception” more as a matter of degree than binary proposition, then we must indeed agree that a reception occurred in England, albeit in a smaller way.

[1] Peter Stein, Lecture, “Roman Law and English Jurisprudence Yesterday and Today” at 3 (1969) (citing J.P. Eckerman, Conversations with Goethe 313, trans. Oxenford (Everyman Ed., 1935)).

[2] Charles P. Sherman, Romanization of English Law, 23 Y.L.J. 318 (1914).

[3] Id.; see Anthony R. Birley, The Fasti of Roman Britain 214 (1981) (citing Dig. 40.2.5) (discussing the matter of a will belonging to a Romano-British official whose son “had died before attaining the age for inheritance.”).

[4] Ralph V. Turner, Roman Law in England before the Time of Bracton, 15 J. British Studies 1, 15, (1975).

[5] See generally Thomas Edward Scrutton. Influence of the Roman Law on the Law of England, Part 1 (1885) (discussing, e.g., the origins of the manorial system).

[6] George Spence, The Equitable Jurisdiction of the Court of Chancery; Comprising its Rise, Progress, and Final Establishment 7 (1846).

[7] Id.

[8] Sherman, supra note 2, at 319.

[9] Barbara Yorke, Kings and Kingdoms of Early Angelo-Saxon England 41 (1990).

[10] Id.

[11] Code of Æthelberht §§ 10-11.

[12] “It is clear that as a code of law the document is utterly inadequate, and presupposes a vast mass of custom regulating the ordinary relations of life” Scrutton, supra note 5, at 4-5.

[13] Sherman, supra note, 2, at 319.

[14] Scrutton, supra note 5 at 5-6.

[15] Code of Alfred, Prologue §§ 49.7-49.8.

[16] Frederick Pollock & Frederic William Maitland, The History of English Law, Vol. I, 100, 124 (1895); Sherman supra note 2, at 321-22.

[17] The functions of the old Anglo-Saxon courts were eventually absorbed completely into the Norman royal courts. Pollock & Maitland, supra note 2, at 321-22.

[18] Sherman, supra note 2, at 321-22.

[19] Harold J. Berman, Law and Revolution: The Formation of the Western Tradition 2 (1983).

[20] Id.

[21] Id. at 50.

[22] Id. at 50, 86-87.

[23] Compare to the era immediately prior when Western clergy were much more beholden to secular authorities. Id. at 88.

[24] Id. at 86.

[25] Berman, supra note 19, at 121-22.

[26] Peter Stein, roman Law in European History 44 (1999)

[27] Berman, supra note 19, at 289.

[28] Id.

[29] Stein, supra note 26 at 49.

[30] James A. Brundage, Canonists vs Civilians, 71 The Jurist 316, 318 (2011).

[31] Berman, supra note 19, at 215.

[32] Id. at 333.

[33] Sherman, supra note 2, at 324; see generally Charles Donahue, Jr., Ius Commune, Canon Law, and Common Law in England 66 Tul. L. Rev. 1745 (1992).

[34] David J. Seipp, Bracton, the Year Books, and the “Transformation of Elementary Legal Ideas” in the Early Common Law, 7 L. History Rev. 1989 175, 180 (1989).

[35] Peter Stein & Francis de Zulueta, The Teaching of Roman Law in England around 1200, at xxii-xxiii, xxvi (1990). It was in fact the rapid growth of the ecclesiastical courts that led to the teaching of law at Oxford. See James McConica et al., The History of the University of Oxford: The Early Oxford Schools 12 (1984).

[36] Id. at xxvi-xxvii.

[37] Sherman, supra note 2, at 322. Accounts are somewhat vague, but it appears likely that King Stephen banned the teaching of Roman law in England. Additionally, Vacarius may have been exiled from the country during theis period. See McConica et al., supra note 35, at 10.

[38] Id. at 324; Stein & de Zulueta, supra note 35, at xxii.

[39] R.C. van Caenegem, Royal Writs in England from the Conquest to Glanvill 370-71 (1959).

[40] Id.

[41] Pollock & Maitland, supra note 16, at 133-134.

[42] Sherman, supra note 2, at 325. In truth there lies some uncertainty as to the authorship of the treatise known as Glanvill. It may have been written by one of his clerks. See Turner, supra note 4, at 15 (1975). For ease of convenience, this discussion will continue referring to the author simply as “Glanvill”.

[43] Sherman, supra note 2, at 325.

[44] Caenegem, supra note 39, at 376-77; R.C. Van Caenegem, The Birth of the English Common Law 1 (1988).

[45] Caenegem, supra note 44, at 33.

[46] See Caenegem, supra note 39, at 379-86; Arthur R. Hogue, Origins of the Common Law 191 (Liberty Fund 1986) (1966).

[47] See id. at 386-90.

[48] Donahue, supra note 33, at 4-5. As with Glanvill, authorship is uncertain, but the author will be referred to as Bracton.

[49] T.F.T. Plucknett, The Relations between Roman Law and English Common Law down to the Sixteenth Century, 3 U. Toronto L.J. 24, 35-36 (1939).

[50] Shermsn, supra note 2, at 326.

[51] Id.

[52] The Institutes is something like a brief textbook of the Justinian law. Stein, supra note 24.

[53] Sherman, supra note 2, at 326.

[54] Karl Guterbock, Bracton and his Relation to the Roman Law: A Contribution to the History of the Roman law in the Middle Ages 48 (1866).

[55] Plucknett, supra note 49, at 37.

[56] Id. at 44.

[57] See generally Frederic William Maitland, The Mystery of Seisin, 2 L.Q. Rev. 481 (1886).

[58] Caenegem, supra note 39, at 270.

[59] Donald W. Sutherland, The Assize of Novel Disseisin 1 (1973).

[60] Caenegem, supra note 44, at 42.

[61] Caenegem, supra note 39, at 262.

[62] Id. at 262-63.

[63] Id. at n. 4 and accompanying text.

[64] Joshua C. Tate, Ownership and Possession in the Early Common Law, 48 Am J. Legal Hist. 280, 282 (2006).

[65] Sutherland, supra note 59, at 31.

[66] Donahue, supra note 33, at 8.

[67] Berman, supra note 19, at 454-56 (explaining that action spolii developed after the assize of novel disseisin).

[68] W.A. Hunter, A Systematic and Historical Exposition of Roman Law in the Order of a Code 108 (1903).

[69] Caenegem, supra note 39, at 278; Turner, supra note 4, at 21.

[70] James A. Brundage, Medieval Origins of the Legal Profession 110 (2008).

[71] Turner, supra note 4, at 8.

[72] Stein, De Zulueta, supra note 35, at xxxiv.

[73] Richard H. Helmholz, Magna Carta and the ius commune, 66 U. Chi. L Rev. 297, 306 (1999).

[74] Caenegem, supra note 39, at 270.

[75] Turner, supra note 4, at 21.

[76] Caenegem, supra note 39, at 379.

[77] Plucknett, supra note 49, at 50. It was the commentators who, in the fourteenth century, synthesized the Roman law with various legal systems and jurisdictions across Europe.

[78] David B. Goldman, Globalisation and the Western Legal Tradition 117 (2007).

[79] Id. at 48.

[80] Alan Watson, The Evolution of Law Continued, 5 L. Hist. Rev. 537, 562-66 (1987).

[81] Frederic William Maitland, Lecture, “English Law and the Renaissance” (1901).

[82] Id.

[83] Hogue, supra note 41, at 166-67.

[84] Id. at 167, 172.

[85] Id. at 173.

[86] Id. at 175.

[87] Id. at 176, 187

[88] Sherman, supra note 2, at 323-25

[89] “The conservatism of the fourteenth century was a self-correcting mechanism of the growth of the prior century.” Cases Concerning Equity and the Courts of Equity 1550-1660, at xxi (W.H. Bryson ed., Selden Society 2001). In the same way, the equity of the chancery courts can be conceived of as a correction to this correction. See also Hogue, supra note 83, at 176.

[90] Edward Jenks, English Civil Law, 30 Harv. L. Rev. 1, 17 (1926).

[91] Joseph Story, Commentaries on Equity Jurisprudence vol. I § 682 (1836).

[92] Id.

[93] Joseph Story, Commentaries on the Law of Partnership, at vii (1841).

[94] J. Inst. 3.26.8.

[95] Id.

[96] Id. at 3.27.1

[97] Actions like this premised on non-commissioned work may be grounded in either tort or contract. See 4 Williston on Copntracts, Gratuitous undertakings, in general, § 8:1 (4th ed.).

[98] See id.

[99] Scrutton, supra note 5, at 180.

[100] Id.

[101] Donahue, suora note 33, at 1.

[102] William Senior, Doctors’ Commons and the Old Court of Admiralty: A Short History of the Civilians in England 110 (1922).

[103] Id.

[104] Edmund Heward, Lord Mansfield 170 (1979).

[105] Paul Vinogradoff, Roman Law in Medieval Europe 38 (2015) (citing Summa Trecensis, I, 14 §§ 6,7).

[106] John Maxcy Zane, The Story of the Law 192 (1927).