Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/223

 7. SCRUTTON: ROMAN LAW INFLUENCE 209 law. In his Prooemium to the Second Institute, he observes: " Upon the text of the Civil law there be so many glosses and interpretations, and again upon those so many commentaries, and all these written by doctors of equal degree and authority, and therein so many diversities of opinion as they do rather increase than resolve doubts and uncertainties, and the pro- fessors of that noble science say that it is like a sea of waves ; " and with this he contrasts the certainty of the Common law ; " Statio bene fida peritis.^' This opinion does not hinder him from occasionally re- ferring to the Civil law, though not with great accuracy. He comments with approval on Littleton's statement that the English law is contrary to the Civil law in which partus sequitur ventrem, saying, " true it is, for by that law " (stating the law), " both of which cases are contrarie to the Law of England." ^ He makes the curious assertion that, " in prohibiting the lineal ascent in inheritance, the Common law is assisted with the law of the Twelve Tables," ^ which seems entirely inaccurate. He notes the differences in the laws as to guardianship, already alluded to,^ and says that the law of England is contrary to the Civil law, which " est quasi agnum lupo committere ad devorandum; " yet he cites the very rule of the Civil law, " qui sentit commodum debet et onus sentire," in support of the position that the owners of private chapels should repair them.^ Lord Macclesfield strongly disapproved of the English rule, deeming it " to have prevailed in- barbarous times, and a cruel and barbarous presumption." ^ Coke cites very largely from Bracton, and some of the passages are those directly derived from Roman sources ; * as far as I can find, he only expressly refers to the Corpus M. 122, b, 123. M. 11, a. »i. 88, b. Blackstone, i. 461. •e.g. Bracton's Roman def. of actio (Coke, ii. 39, Br. 98, b) ; the division of actions into real, personal, mixed (C. ii. 21, 286; Br. f. 101, b) ; on monsters (C. i. 7, b; Br. f. 5); de ventro inspiciendo (C. i. 8, b; Br. ff. 69-71); on treasure trove (C. iii. 132; Br. f. 10, 119, b) ; also cf. C. i. 36, a. with Br. ff. 33, b, 34.
 * Coke, ii. 489.
 * 2 P. Wms. 264, 9 Mod. 142. Hargreaves' notes, 63.