Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/227

 7. SCRUTTON: ROMAN LAW INFLUENCE 213 of the supremacy of the Courts of Common Law. Hale clearly states the relative position of Common, Civil, and Canon Laws, defining the limits of the two latter, and the source of their authority. Lastly Blackstone, following Hale, recognizes the Roman origin of parts of our Law, in- cluding the passages in Bracton, and while he recognizes it, adopts them. Perception of the Roman elements in Bracton leads to a discussion as to his authority in the law, which results in his being generally accepted as binding, if no contrary decisions or customs can be produced. And while the English Courts recognize no authority in the Roman Law, as such, they are yet ready to listen to citations from it in all cases where Eng- lish authorities cannot be found in point, or where the prin- ciples of the English and Roman Laws appear to be similar. Thus in Acton v. Blundell (1843),^ where the question was as to rights in a subterranean water course, the Digest was fully cited and commented on by counsel, Maule, J. interven- ing with the remark, " it appears to me that what Marcellus says is against you." Tindal, C. J., in delivering judgment, said " The Roman Law forms no rule binding in itself upon the subjects of these realms; but in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion to which we have come, if it proves to be supported by that law, the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries in Europe. The authority of one at least of the learned Roman lawyers ap- pears decisive upon the point in favour of the defendants." The authority of Roman Law in the Common Law Courts cannot be put higher than this, or be better expressed than in these words. ^. Roman Law in the Chancery While the judges of the Common Law Courts after the fourteenth century recognized no authority in the Civil Law, » 12 M. and W. 324, 353 ; see Warren's Law Studies, 732, note, for an account of the inner history of the case by one of the counsel engaged. V