embodied in or superseded by statute. Of the jurisprudence of the Court of Chancery Sir Henry Maine1 says "The early ecclesiastical chancellors contributed to it, from the Canon Law, many of the principles which lie deepest in its structure. The Roman Law, more fertile than the Canon Law in rules applicable to secular disputes, was not seldom resorted to by a later generation of Chancery judges, amid whose recorded dicta we often find entire texts from the Corpus Juris Civilis imbedded, with their terms unaltered, though their origin is never acknowledged. Still more recently, and particularly at the middle and during the latter half of the eighteenth century, the mixed systems of jurisprudence and morals constructed by the publicists of the Low Countries appear to have been studied by English lawyers, and from the chancellorship of Lord Talbot to the commencement of Lord Eldon's chancellorship these works had considerable effect on the rulings of the Court of Chancery." Although it is fairly clear that in the Courts of Common Law in the mediæval period there has been no systematic recourse to the Roman authorities, it is probable that many of the older judges had an empirical acquaintance with some of the material of the Corpus Juris, and this may be affirmed with some confidence of many of the judges of the Tudor and early Stuart periods. Whether their knowledge of Roman Law was derived from a study of the original sources, or gathered indirectly through the canonists or works in the nature of compendia, may be a matter on which it would be rash to venture an opinion. But if they did not go so far as petere fontes, they certainly have not disdained sectari rivulos. It would not be difficult to cite examples of maxims of Roman origin which have passed into the currency of the Common Law either in the original or a modified 1 Ancient Law, P. 44.

form. In particular, the title of the Digest De diversis regulis juris antiqui (50. 17) has been very largely appropriated. "Nemo plus iuris ad alium transferre potest, quam ipse haberet (50. 17. 54); Imperitia culpae adnumeratur (ib. 132); Cum par delictum est duorum semper oneratur petitor et melior habetur possessoris causa (ib. 154); Impossibilium nulla obligatio est (ib. 185); Jure naturae aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem (ib. 206); Res iudicata pro veritate accipitur (ib. 207); all these are rules culled at random from this title which will be familiar to any student of the Common Law. They might easily be multiplied.

The almost complete victory of the case system in English jurisprudence renders the task of estimating the past and present influence of Roman Law and other factors on English Law one of great difficulty. Once a rule has passed into the form of precedent, the reference is to the decision and not to the basis of the decision. The predominance of the principle stare decisis, established from the earliest period in the practice of the Courts of Common Law, was accepted in the 17th century by the Chancellors, and in the course of the 18th century by the Ecclesiastical and Admiralty Courts. Consequently the difficulty of ascertaining the original foundation of any particular doctrine in English Courts may be said generally to be in direct ratio to the antiquity of the series of authoritative reports.

In modern times, the development of a clearer perception of the judicial function and a more critical attitude in relation to precedent has led the judges, at any rate in the Appellate Courts, to a more searching examination of the foundations on which precedents rest. Many examples can be given of this tendency. For instance, Lord Justice Fry in Cochrane v. Moore1 discusses the doctrine that

1 (1890) 25 Q.B.D. at p. 71.

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embodied in or superseded by statute. Of the jurisprudence of the Court of Chancery Sir Henry Maine1 says "The early ecclesiastical chancellors contributed to it, from the Canon Law, many of the principles which lie deepest in its structure. The Roman Law, more fertile than the Canon Law in rules applicable to secular disputes, was not seldom resorted to by a later generation of Chancery judges, amid whose recorded dicta we often find entire texts from the Corpus Juris Civilis imbedded, with their terms unaltered, though their origin is never acknowledged. Still more recently, and particularly at the middle and during the latter half of the eighteenth century, the mixed systems of jurisprudence and morals constructed by the publicists of the Low Countries appear to have been studied by English lawyers, and from the chancellorship of Lord Talbot to the commencement of Lord Eldon's chancellorship these works had considerable effect on the rulings of the Court of Chancery." Although it is fairly clear that in the Courts of Common Law in the mediæval period there has been no systematic recourse to the Roman authorities, it is probable that many of the older judges had an empirical acquaintance with some of the material of the Corpus Juris, and this may be affirmed with some confidence of many of the judges of the Tudor and early Stuart periods. Whether their knowledge of Roman Law was derived from a study of the original sources, or gathered indirectly through the canonists or works in the nature of compendia, may be a matter on which it would be rash to venture an opinion. But if they did not go so far as petere fontes, they certainly have not disdained sectari rivulos. It would not be difficult to cite examples of maxims of Roman origin which have passed into the currency of the Common Law either in the original or a modified

1 Ancient Law, P. 44.

form. In particular, the title of the Digest De diversis regulis juris antiqui (50. 17) has been very largely appropriated. "Nemo plus iuris ad alium transferre potest, quam ipse haberet (50. 17. 54); Imperitia culpae adnumeratur (ib. 132); Cum par delictum est duorum semper oneratur petitor et melior habetur possessoris causa (ib. 154); Impossibilium nulla obligatio est (ib. 185); Jure naturae aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem (ib. 206); Res iudicata pro veritate accipitur (ib. 207); all these are rules culled at random from this title which will be familiar to any student of the Common Law. They might easily be multiplied.

The almost complete victory of the case system in English jurisprudence renders the task of estimating the past and present influence of Roman Law and other factors on English Law one of great difficulty. Once a rule has passed into the form of precedent, the reference is to the decision and not to the basis of the decision. The predominance of the principle stare decisis, established from the earliest period in the practice of the Courts of Common Law, was accepted in the 17th century by the Chancellors, and in the course of the 18th century by the Ecclesiastical and Admiralty Courts. Consequently the difficulty of ascertaining the original foundation of any particular doctrine in English Courts may be said generally to be in direct ratio to the antiquity of the series of authoritative reports.

In modern times, the development of a clearer perception of the judicial function and a more critical attitude in relation to precedent has led the judges, at any rate in the Appellate Courts, to a more searching examination of the foundations on which precedents rest. Many examples can be given of this tendency. For instance, Lord Justice Fry in Cochrane v. Moore1 discusses the doctrine that

1 (1890) 25 Q.B.D. at p. 71.

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property may pass on a contract of sale before delivery, and states that it appears to be comparatively modern. He goes on to say "It may, as has been suggested, owe its origin to a doctrine of the Civil Law that the property was at the risk of the purchaser before it passed from the vendor; but at any rate the point was thought open to argument as late as Elizabeth's reign." Again, Lord Haldane, in Kreglinger's Case1, traces the origins of the equitable doctrine of clogs on the equity of redemption in cases of mortgage. In this way doctrines of Roman Law may often come up for discussion in English Courts.

But apart from these cases in which reference may be made incidentally to Roman sources in the discussion of the rational basis of some particular doctrine, the Roman Law or its offspring may come directly into argument in our Courts at the present day in three classes of cases :—

Where there is no statutory authority and no precedent applicable and it is necessary to decide a case on principle. This class of case is what Tindal C.J. refers to in Acton v. Blundell in a passage which has become the locus classicus on the subject:—

"The Roman Law forms no rule, binding in itself upon the subject 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 at which we have arrived, if it proves to be supported by that law, the fruits 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."

Acton v. Blundell was the earliest of the line of cases in the reports in which the question of the

1 Kreglinger v. New Patagonia Meat and Cold Storage Co. [1914] A.C. 25.

2 (1843) 12 M. and W. 324, at p. 353.