ing every kind of fraud and mala fides. The summary jurisdiction of the interdict was also reproduced in the "injunction."

The court of Chivalry is treated as still existing by Fortescue in Henry VI.'s reign, and has never been abolished; though when the office of the Lord High Constable (joint president of it with the Earl Marshal) became forfeited through the attainder of the Duke of Buckingham in the reign of Henry VIII., the office was deemed too influential to be entrusted to a subject. Cardinal Wolsey desired to fill it, but was thwarted by Sir Thomas More. The statute Henry IV. c. 14 contains a provision, the effect of which is to prevent the determination of any matter in the court of Chivalry which could be tried at common law. The proper function of the court was to try cases which arose in other countries. It belonged especially to the time when the English Crown had large continental possessions. Then, in Edward III.'s reign, a fiction was devised to make matters arising abroad cognizable by a jury from an English county. Then, again, in Henry VIII.'s reign, a statute was passed to facilitate the trial of treasons committed beyond sea. "Its later business" (says Sir Matthew Hale) "was to adjust the rights of armorial ensigns, bearings, crests, supporters, pensions, and also rights of place and precedence, subject to any royal patent or act of Parliament. Blackstone says. of the court of Chivalry or court Military that "the proceedings were by petition in a summary way; and the trial was not by jury, but by witnesses or by combat, and this was an appeal to the sovereign in person." There is no doubt that the extra-territorial jurisdiction this court exercised explains the grounds of the preference for civil law over common law procedure.

For similar reasons the high court of Admiralty (except so far as its procedure has been recently regulated and modified by statute) has always proceeded by methods more akin to the civil procedure of Justinian's time than to the jury-trial known to the common law. It is said (Amos' "Fortescue," p. 114) that the first extant case in

our law relating to marine jurisdiction is in the time of Edward I.; but the judicial power of the admiral does not appear to have excited the attention of the legislature until the reign of Rich. II., when the statute (13 Rich. II., stat. I. cap. 5) directed that the "admiral" and his deputy should not meddle with anything save such as are done upon the sea. Not only is the procedure in the court of Admiralty, and especially in courts of Prize, still a close transcript of the mode of trial pursued under Justinian's later legislation, but the high court of Admiralty has always held itself entitled to recognize the validity of such bodies of law as the Rhodian law (of which clauses are preserved in the Digest) and the laws of Oleron recognized by the chief naval countries in the Middle Ages. Luders, in his tract on the laws of Oleron, notices a petition of the Commons in the reign of Henry IV. against the encroaching jurisdiction of the Admiralty courts, and they enumerate among their grievances "que les ditz admiralles usent leur leyes tant foulement per la ley de Oleron et anciens leyes de la mer." They pray that they may be confined in their trial of matters of contract to such only as arose upon the sea.

It is needless to say that the Ecclesiastical courts and the University courts have preserved more faithfully than any others the procedure and traditions of imperial Rome. This has been due to the influence of the Canon law and to the foreign education of those who have presided in them. It was the like civil law education of the advocates who pleaded in the courts of Admiralty and in the Ecclesiastical courts, which curiously combined them together under the presidency of the same judge and in the same chamber. They have been alike, too, in the prejudice their procedure has excited at the hands of the common law judges and practitioners (see Amos' notes to Fortescue," p. 114); and in the perennial struggle they have maintained with the common law courts of Westminster Hall. Nolumus leges Angliæ mutari was not an outcry of primitive conservatism, but a public repudia

"

See Luders' Tract.

tion of Canon law or Civil law rules as applicable to succession and marriage.

The cases of France and England have been chosen for the purpose of historically exhibiting, on the one hand, the largest influence of Roman law on modern law; and, on the other hand, the most restricted influence. For the present purpose it has not been thought necessary to dwell upon some topics relating to the fresh development of Roman law in modern Europe which are of the highest historical interest. To such an inquiry would belong an account of the progress of Roman law in the States into which the Holy Roman Empire became gradually dissolved, such especially as Holland, Switzerland, and modern Germany. The influence of Roman law in Holland is especially memorable from the great text-book composed by Grotius in the year A.D. 1620, and which has been translated into English for the use of practitioners in those British Colonies,-such as Ceylon, the Cape, and British Guiana,-in which the laws of Holland and Roman law still have some force. The work is styled "Introduction to Dutch Jurisprudence," and in arrangement, terminology, and legal notions, follows closely the system of Justinian's Institutes as amplified by the Digest. The work was composed during the imprisonment of its author in the castle of Louvestein, after Barneveldt's execution. Van der Keessel, who, at the close of the last century, published his "Theses" as a supplement to Grotius, and in elucidation of controverted points of law, says that "it contains, in the smallest space, the greatest quantity of matter, digested in a method most accurate, and most clear and explanatory; for by referring, on every occasion, to the laws of Nature and to civil institutions, it exhibits the admirable harmony and analogy of laws, and presents a model deserving the attention and study of every professor of jurisprudence."

In the same way, the indirect influence of the univers

*

By Charles Herbert. John Van Voorst, 1845.

ality of the European law of nations, the incessant use of it, and the systematic treatises referred by such men as Balthazar Ayala, Albericus Gentilis, Grotius, and Puffendorf, have had the most distinct influence on the preservation of the memory of Roman law. So soon as the moral and political ideas, which lay at the root of the Law of Nations, became matter of distinct legal consciousness, the language in which they were cast, and the language of treatises and diplomacy, was the language of Roman law. The Latin, French, Italian, and Spanish tongues all tended to preserve the ancient law terms with much of their ancient meanings, and at this day Roman law language is the recognized instrument of communication for purposes of legal international transactions. reference to Grotius "De Jure belli et pacis," and a comparison of it with the most modern treatises, is sufficient to establish the permanence of the Roman law as an international legal language. Sir Henry S. Maine, in his essay on Roman law in the "Cambridge Essays," pointed out the political disadvantage which English diplomacy has sometimes suffered from the ignorance of Roman law.

§ 5.-Recent Codification on Principles of the Roman Law.

(1) Codification in Germany.

(2) Codification in France and on the continent of Europe and in Egypt.

(3) Codification in America.

(1) CODIFICATION IN GERMANY.

In tracing the progress of Roman law down to the present times, and in estimating the amount of its present influence, it is necessary to take into account the large number of modern codes which have been constructed on the lines supplied by Justinian's compilations, and which have largely incorporated, and so republished, the ideas, prin

ciples, and terminology of Roman law. Without dwelling on all the codes of this nature, of which it is said the Danish (dated 1680),* and the Swedish (dated 1734), are some of the oldest-the Prussian code of Frederick the Great, the French codes, and the code of the State of Louisiana, deserve especial mention and some description.

The code of Frederick the Great, published in 1751, has about it much of the grandiloquence of Justinian, and assumes to be based on certain and reasonable principles. having for their foundation Roman law. But, says the king (introduction, § 10), "We have got rid of the subtleties of the Roman laws and all that was not applicable to the constitution of our States." Advocates are forbidden henceforward (part i., bk. i., Tit. iii., § 5) to cite the authority of Roman law, or that of any doctor whatever; and judges are forbidden to have any regard to it in their decisions. Nevertheless, the memories and notions of Roman law reappear at every point in the body of the code. Women, it is said (part ii., bk. i., Tit. iv., § 3) are to have the benefit of the Senatus consultum Velleianum, which instantly introduced, as a necessity, a mass of Roman law learning. The patria potestas, as founded on a legal marriage; the tutela and curatela, adoption and arrogatio; marriage and dower; are all conceived in the form known to Roman law, and proceed on an assumed understanding of its principles. The Prussian Landrecht and the code of the German Empire have since, under the influences of the very erudite German law school, amplified these principles in all their modern applications; and as these codes, so far from being influenced by the Code Napoléon, have rather resented even an analogical approach to it, they furnish an independent testimony to the modern vitality of Roman law.

* See Bentham's Complete "Body of Legislation," ch. xxxi.