Why solicitors are best equipped to be notaries
The senior partner of Fishers has given the following four talks to about 500 people in 29 countries on the History of Law. Attached is a link plus scripts and Q&A in one bundle to all four talks on this YouTube video.
The latest talk is on the creation of the common law by the deliberate cover up of its Roman origins. If you click on “ Please find links below to the following:”, you will find a transcript of this talk and also written answers to questions. Further if you click on videos, you will find recordings of previous talks Philip and I have given on all 320 jurisdictions in the world generally being based on Roman law; Law and Christianity: How the Romans made the modern world and what changed, the collapse of civilisation in England when the Romans left in 410 AD and the creation of the common law; If you then click on a summary of talk, you will then see a link to the transcripts.I am always interested in any feedback, good or bad. As Benjamin Franklin said. “My critics are my friends who point out my mistakes so I can improve myself.
Having qualified as a solicitor at Allen & Overy, my experience has always been in the commercial world. I then spent eight years in private practice with commercial firms in Hong Kong. While I was in Hong Kong, I became a notary. On returning to the UK, I qualified as a notary here as well.
For the last six years, I have practised as a notary public, to the exclusion of any other legal field, as it is my experience that notary work has now become a specialist area of law where expertise is needed.
To substantiate this point, a notary could be negligent if he did not advise the client on whether or not the document also needed to be legalised, either by an apostille being attached by the Foreign & Commonwealth Office to the document and/or a certificate being attached by the particular country's consulate. For example, US states generally do not require legalising but four major US states do unless it has been waived. The document could be sent back by the receiving party abroad if it needed to be legalised, which is just what the client does not want.
The mandatory consulate requirements for legalising are arcane. China will accept payment by a solicitor's cheque, while Brazil formerly required payment by giro slip, but now requires payment by postal order. The United Arab Emirates requires payment by bankers' draft, while Chile requires payment direct into its bank account at HSBC. And so on, with the requirements regularly changing.
Furthermore, I do not see how anyone, other than an experienced solicitor, can become a notary. However, non-solicitors at the moment can practise as notaries.
A notary usually obtains instructions over the telephone. He has to be able to identify a vast array of documents from what his caller tells him. This is usually at short notice as the witnessing of documents or obtaining of certified copies is often left to the last minute.
The lay client often only has the haziest idea of the nature of the document, but naturally wants you to quote a competitive price before he comes to see you. To carry out this work, a notary needs the familiarity of handling a wide variety of legal documents, which only comes from years of experience as a solicitor.
The role of the notary has not changed since Roman times. It is to ensure that the client either knows what he is signing, or to check that there is no fraud when witnessing a signing or certifying copies of original documents or translations. When a notary witnesses the signing of a document, it is incumbent on him to ensure the document is validly executed, as the notary's seal and signature may be a representation to the whole world that this is so. English law, as the locus regit actum, applies to the execution of the document. This particularly applies to powers of attorney entered into by English companies.
If there are two areas where it is crucial for the notary to know the law, in my view, it is in relation to powers of attorney and bills of lading.
Powers of attorney have a far greater importance in civil law countries than they do in England. Thus, it is vital for the notary to check that the person signing a corporate power of attorney has authority to do so, that the company is a going concern (if relevant) and that the document is validly executed.
Bills of lading come in three sets of originals, so the opportunities for fraud have always been great. To comply with money laundering legislation, some banks require original and copy bills of lading to be notarised as a condition for opening the letter of credit. The unwitting notary who notarises these bills of lading without doing thorough checks, for a few pounds, can literally find himself in prison on a money laundering conviction.
Encouraged by Mary Beard’s advice "that we need more, and more accessible stuff, on Roman law...people get frightened off by the technicalities,” I have given a talk on “Law & Christianity: how the Romans made the modern world and what changed.” You can listen to it on this YouTube video.
Global gross domestic product (“GDP”) or the total value of all goods and services bought and sold in 2019 was probably around US$77 trillion. The world’s money markets turnover the world’s GDP every 14 days. These are part of the billions of contracts entered into every day in the world. Generally speaking, all these contracts are legally binding based on the concepts as set out in Justinian’s Digest of 533 AD and Cicero’s De Legibus written prior to 43 BC as they apply to all 320 legal systems in the world. None are indigenous. The largest securities settlement system in the world holds American traded securities worth over $27 trillion or half of the world’s GDP. Euroclear (a securities settlement system in Brussels) holds securities worth more than one and half times the GDP of all the EU countries. Settlement systems are effectively trusts which derive from the Roman will trust called a fidei commissum. Philip Wood KC, CBE then explains that with the advent of the Industrial Revolution in the 1830’s, the law started to develop from its Roman origins.
At the battle of the Milvian Bridge in 312 AD, to woo Rome’s Christians, Constantine had the Chi Rho painted on his legions’ shields. Chi Rho are the first two letters of Christ in the Greek Alphabet (i.e. Chi Rho in the Greek Alphabet is X with a P down the middle). Emperor Constantine’s support for the Christians did not end here. At the Council of Nicaea in 325 AD, Constantine settled the split in the Church by stating that God, the father and God, the son was one person. The holy ghost was recognised as part of the trinity but questions about this were left to be resolved at the Council of Constantinople in 381 AD convened by Emperor Theodosius. Christ was now alive everyday. Christianity became a world religion until the 1850’s when it started to go out of fashion.
Over 160 people in 22 countries have listened live to this talk with a further 500 registered to listen to the recording. The recording has my transcript attached to it and my answers in the Q&A session.
The Influence of Roman law on European (particularly English) law By J. A. Fisher.
Roughly 2/3rds of the world live under a civil law system and 1/3rd under the English common law system. To put it another way, of the 320 or so jurisdictions in the moder n world, at least 280 stem from one of these ideologies to a greater or lesser extent. As a rule of thumb, for mer English colonies have a common law legal system and all other countries have a civil law legal system. A definition of common law is judge made law. Historically, this is the great dividing line between civil and common law. In a civil law system with a law code, all law must come from legislation .
1. Why was Roman law abandoned when the Romans left Britannia (England & Wales up to Hadrian's Wall) in 409 AD?
2. How did Roman law come back to Western Europe, and in particular England, in the 12th Century?
3. Why were the origins of Roman law concepts in English law covered up?
1. The Roman occupation of Britain in 43 AD to the expulsion of the Romans in 409 AD. Prior to the Roman Conquest of Britain in 43 AD, Roman law was well developed, for example the 450 BC law code of the Twelve Tables hammered into bronze, as there was no paper during the whole of Roman civilization. The Romans kept the former Celtic tribal boundaries but changed them into Civitates (provinces) and established an administrative centre or Civitas in each Civitates. There were Basilicas (Town Halls where the local curia met doubling up as Law Courts) in every Civitas or Public Town which were similar to mini Pompeii's In 77 AD. Vespasian appointed a Legatus Juridicus or Law Officer as a deputy to the Governor, Agricola, to oversee the setting up of a national legal system in Britannia. By 400 AD Britannia was as Romanized as any other Roman province and very prosperousmore than a dozen Public Towns with baths, fora, basilica, curia, theatres, amphitheatres, etc- and more than a hundred small towns. The population is considered to be about 3 m.
2. The expulsion of the Romans in 409 AD to St. Augustine's mission to Britain in 597 AD. In 409 AD, the few remaining Roman administrators were expelled from Britannia, according to Zosimus writing in Constantinople 100 years later. Civilization lingered on but just after 430 AD, it collapsed in Britannia and shortly afterwards (but less severe) in the rest of Western Europe. This included the complete collapse of the money economy and the abandonment of the cities in Britannia and Western Europe. Civilization collapsed in the Eastern Roman Empire at the end of the 6th Century. This collapse resulted in a huge decrease in education and knowledge. Roman law was simply too complex and clever for barbarian societies to understand. It was abandoned. Further, like the common law today, it was not user friendly at the time. There was no written Roman Code but the law was to be found in thousands of jurists' opinions.
By 597 AD when St Augustine came to England, nothing remained even in memory of Roman Britannia. Contrast the position in Gaul. For over 100 years, 10,000's of Germans served in the Roman legions and at least one became emperor. Large chunks of land in Gaul were handed over amicably by treaty to the barbarians. Unlike in Britannia, possibly because the Western German barbarians admired Roman civilization-they just wanted to be in charge, they were much more assimilated to the Roman way of life. Examples of this are that French and Spanish are based on Latin. Visigoth, Burgundian and other European law codes (called "Vulgar Roman law") were inÁuenced by Roman law in a way in which the Anglo-Saxon legal codes were not. Due to this historical memory, continental legal systems were much more receptive to the reintroduction of Roman law than England in the 12th Century.
I doubt the North German and Danish Anglo Saxons knew much about Roman civilization when they invaded Britannia in the 5th Century. There was about 200 years of intermittent fighting between the Anglo-Saxons and the British (but no genocide) with no land handed over amicably by treaty. This may account for the severity of the collapse of Roman civilization in Britannia and the birth of "Englishness". The result was that English is not based on Latin. However, it would still have been possible for the English legal system to be based on Roman law, as all countries from where the Anglo-Saxons came from, have a civil law system.
3. Justinian's Digest Between 529-534 AD in the Eastern Roman Empire in Constantinople, Justinian produced in Latin the Corpus Iuris Civilis (Body of Civil law) on papyrus comprising Justinian's Digest, the Institutes (student textbook), Codex (Imperial Enactments) & later Novels (Imperial enactments from 534 AD).
By far the most important was the Digest. Justinian's jurists distilled (and discarded where superÁuous or repetitive) 1,000 years of Roman law contained in jurists' opinions by reducing them from 1,500 (about 30 times the size of the Bible) to 50 books. Even after this, the Digest was still 1.5 times the size of the bible. The Digest contains statements of principle and actual and theoretical case studies in which jurists work through legal concepts, fairly similar to a standard English legal textbook. The Digest is like the leading English textbooks on the law of Contract, Tort, Land and Succession (including Trusts) all rolled into one. These are the four core subjects which, with Criminal law, make up our law.
If the computer had been invented 2,000 years earlier, Roman law could have adequately coped with computer law-indeed many of the principles are still used today in computer law. The "Vulgar" law codes were far too simple to cope with (say) computer law.
Roman law had the concept of Fideicommissa (Trusts) but a trust created only by will and not during the settlor's lifetime. The fiduciarius is similar to the trustee in English law. So the word "fiduciary" as in the fiduciary relationship between the trustee and beneficiary which is the cornerstone of the law of trusts, clearly comes from "fiduciarius" and can be found in Justinian's Digest.
4. St. Augustine's mission in 597 AD to the Norman Conquest in 1066 AD In 597 AD St Augustine came to England. From then onwards, the church started to acquire land, often by gift, during the lifetime or on the death of the transferor, eventually owning a quarter of all arable land in England after the Norman Conquest.
To show good legal title to land, the concept of the deed which came from Roman law (and can be found in the Vulgar law codes), was re-introduced to England. From the end 6th CAD to the 11th C AD, Justinian's Digest and the rest of Corpus Iuris Civilis were lost in Western Europe so customary law took over for 500 years. As can be imagined with lawyers, after Justinian's Digest was rediscovered, there were constant arguments as to whether customary or Roman law applied, particularly where there were gaps.
5. Discovery of Justinian's D igest The Reception (i.e. the receiving back in Western Europe) of Roman law started to take place from the time a 6th Century copy of Justinian's Digest was discovered in about 1070. It is now in Florence.
This copy was either produced after Italy was recaptured by Justinian in the 6th Century or was brought over by scholars from Constantinople, Áeeing from the Turks. The same applies to the three other parts of the Corpus Iuris Civilis. Generally speaking, all the world's civil law and Roman law concepts in the common law ultimately come from the Florence Digest. A copy was "glossed" or annotated by the glossators at Bologna University with a glossed full version appearing around 1100. As F.W. Maitland said "but for the Digest, Roman law could never have reconquered the world".
6. The Common law incorporates certain Roman law concepts Roger Vacarius (circa 1120-1200), a student at the Bologna law school, came to England in 1143 and brought with him, later supplementing, from Bologna, the whole of the Corpus Iuris Civilis.
A history of Oxford University, written in 1773, states "the n o v e l t y " o f [ Va c a r i u s ' ] lectures from 1149 onwards "drew many to hear him" and their popularity were so great that he produced the Liber Pauperum which became a leading textbook at Oxford. The Liber Pauperum is a ninevolume summary of the Digest and the Imperial Enactments. A nearly complete manuscript of this work is to be found in the library at Worcester Cathedral.
The 1773 history also provides a clue as to why Roman law is not a source of English law when it states:-
"The study of civil law [introduced by Vacarius] advanced so fast that [some] lodged their complaints to the king; alleging, amongst other reasons, that it was an innovation, .... that it was very unfitfor the English constitution or genius.
Yet some eminent lawyers are recorded about this time amongst whom... [the] attorney general says of him "He [Vacarius] was a great honour to the age he lived in, whether one looks at his religion or learning."
Thus there was a big argument between those in the elite who wanted English law to be based on Roman law following Justinian's Digest and those who wanted a totally unique law based on cases. English law and "Englishness" were already very precocious and did not like Roman law because it was foreign.
You have to call it the English genius because those arguing for a case based law won but compromisedbyborrowingthose principles from Roman law which they liked whilst surreptitiously covering up their origins. The result is that by developing certain cases and ignoring others, judges can find a practical solution to a problem very quickly. This would not be possible with a rigid principles based law founded in legislation. It has made English law the envy of the world and has been of enormous benefit to business. Our self-confidence is quite staggering. We are the only country in the world to refuse to accept a user friendly comprehensive civil law code. However, much of English law's architecture has been strongly inÁuenced by Roman law. The four core subjects of English private/ Roman law from Gaius' 161 AD Institutes; the concepts of contract and conveyance for the transfer of legal title in land and goods and contract and assignment for the transfer of legal title in intangible assets. Recent work in devising a European law of contract found no real problems in reconciling common and civil laws of contract except for the conÁict between the principles of caveat emptor and good faith. Roman delict is similar to our torts.
Peter Stein's summary cannot be bettered when he says "Roger Vacarius' legacy was the conception of the civil law as a universal jurisprudence whose ideas underlay all systems of law."
7. Trusts in equity, not common law In 12th Century AD the concept of the inter vivos trust was created in England. The Crusades certainly played their part in that, before a knight departed, fearing he would not come back alive, he transferred his property to another person to provide for his relations. When he did come back, sometimes the person did not transfer the property back to him but relied on common law legal title. The knights petitioned the king who gave the problem to the Lord Chancellor to sort out. So the Lord Chancellor's court, the Chancery Court, held that in accordance with equity, the person with common law title held the property on trust for the knight based on a fiduciary relationship.
Today, 90% of trusts in America are commercial. Just about all the shares and bonds traded on American exchanges-$37 trillion, about half the world's GDP- are held in trust.
8. Unjust Enrichment Just like we experienced the greed from globalization, so did the Romans with the huge expansion of their empire. The Romans had devised the principle of unjust enrichment which again we borrowed. The Romans and ourselves should have developed the principle of unjust enrichment so as to claw back the ill gotten wealth based on fictitious profits which the bankers paid themselves. At the moment, the principle is too restrictive to allow this claw back though the challenges in retrospectively breaking a valid contract are formidable.
9. The Napoleonic Code 1804 In 1804 the Napoleonic Code was established and was followed by written law codes in all other civil law countries except for Scotland, South Africa and a few others. The significance of a code is that it resolves the continuous conÁict as to whether an alleged legal principle has been "received back from Roman law" or whether customary law prevails. No court can refer to an authority earlier than the date of a code. Thus in France, Justinian's Digest cannot be referred to in court though it can be in Scotland.
Following the French Revolution in 1789 and anarchy, Napoleon wished to re-establish French law on a sound basis and on one which was not founded on absolute authority as with the over thrown monarchy. The solution. Civil law based on Republican Roman law.
10. Limitation on the in uence of Roman law on English law The big difference between common and civil law systems is land law. We can also see that many principles of Roman law could never be introduced into English law. An example of this is the need for a notary to "authenticate documents." Once a document is authentic-ated, it is hard for a civil law court to challenge the formalities of the execution of the document because the notary must exercise his duties independently as, in effect, a public official.
Everything militates against the adoption of the concept of authentication into English law. It is so obviously foreign as is the role of the notary; it ousts the scrutiny of our common law courts and as such "it was very unfitfor the English constitution or genius."
11. Donoghue v Stevenson In Donoghue v Stevenson (1932), Mrs Donoghue appealed to the House of Lords as the final court of appeal for, inter alia, Scotland. Lord MacMillan, the senior Scottish judge, wrote a draft judgment which referred to the Lex Aquilia of 286 BC and cases in Scots law based on Roman law in finding in favour of Mrs Donoghue. We have a copy of this draft judgment. However, Lord Atkins, as chairman of the bench, asked him to rewrite it, deleting all references to Roman law, as he wanted to establish a tort which would apply through out all common law jurisdictions and not just Scotland. Instead, he artificially changed a passage from the bible about loving your neighbour into a duty of care towards your neighbour.
Does anyone dispute that Roman law is the 8th and greatest wonder of the Ancient World? .
An abridged version of a talk given to Cambridge University by J. A. Fisher on 13 November 2017.
Collapse: How civilization and law in England chose to fail and then succeed
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When Allen & Overy asked for ideas for the virtual alumni week due to covid cancelling the normal in person gatherings, I thought it would be appropriate to suggest a talk on how civilization and law in England chose to fail and then succeed. I called it “Collapse” so as to be the third in a trilogy of theses on the collapse of civilizations. Jared Diamond in “Collapse: How Societies Choose to Fail or Succeed”, looks at 5 past societies which have collapsed of which the best known would be the Maya of Central America and identifies 5 factors that contributed to all 5 collapses.
Eric Cline in “1177 BC: When Civilization Collapsed” looks at the collapse of dozens of bronze age civilizations from Italy to Egypt and from the Hittites in Anatolia to Assyria and Babylonia in modern day Iraq-Troy of Iliad fame was just one of the Hittite societies to collapse in about 1180 BC. It is generally considered that what is set out in the Iliad of the Trojan wars is all made up. As an aside, my view is that Troy was destroyed by the Sea People but there is no evidence to support this though the Sea People were utterly defeated in two great sea and land battles in the Nile delta by Ramses III in 1177 BC.
Eric Cline identifies fairly similar factors to Jared Diamond for the reasons for these collapses and goes on to say that almost all civilisations eventually collapse. The one factor that all Diamond’s and Cline’s societal collapses have in common is the collapse of central authority. I would suggest that we have the collapse of central authority in England in spades in the 20 years from 410 AD. Similarly in spades, just as Jared Diamond has said, this collapse could have been avoided. We chose to fail… but later the English chose to succeed.
Of course, the collapse of the Roman Empire is well known. In the last 20 years, with the enormous increase in knowledge from archeology, the collapse of civilisation in England after 410 AD is, I would suggest, generally accepted. However, there is a curious blackhole in classicists’ and historians’ knowledge of the history of law. This is because in my view you have to be an experienced solicitor or barrister to understand the history of the common law and then you have to have a good working knowledge of Roman law-which as it happens you should get as an English notary public. Classicists’ and historians’ simply do not have this working knowledge and therefore they are not interested in the history of law.
To me, it was fitting that I gave the forerunner of this talk to St John’s College, Cambridge as the two greatest legal historians, Frederick Maitland and Peter Stein, were both Cambridge University dons. Both have stated that without Justinian’s Digest (which is the cornerstone of my talk) the common law would be radically different. To the common law, we can add world law because generally speaking, all 321 jurisdictions in the world are based on Justinian’s Digest. None are indigenous. Philip Wood will be taking the story of world law up from where I leave it in what is really a two-part talk.
The reason why I thought it appropriate to have this talk now is not only because A&O is a global law firm but also it is not too far-fetched to think that but for global governments’ responses to the Covid pandemic, civilisation could have collapsed. Similarly, in 2008 with the sub-prime crisis, but for world governments’ responses, civilisation could have collapsed then. We chose to succeed.
In “The Fall of the Priests and the Rise of the Lawyers”, Philip Wood explains that for 1,500 years religion kept Western Civilisation together. When religion went out fashion from 1850’s onwards, law kept societies together. I have been astonished (as has Jonathan Sumption) at the extent the government has used the law (which has been obeyed) to keep civilisation together in the Covid crisis. We will never know whether or not civilisation would have collapsed in the Covid crisis if governments had not stepped in, and whether or not law would have stopped this. So, this talk is very appropriate now.
Generally, the world is divided into two great legal systems. Civil law based on Roman law and common law based on English law. Roughly 2/3rds of the world live under a civil law system and 1/3rd under the English common law system. As a rule of thumb, former English colonies have a common law legal system and all other countries have a civil law legal system. This was never pre-ordained and was the result of choices. This story is in three acts. From 509 BC to 410 AD; from 411 AD to 1154; and from 1154 to the present day.
Act I.
With the invasion of England, soon to be Britannia, in 43 AD, the Romans not only brought with them their law but also civilization. Celtic England consisted of settlements in the low lands and oppida or hill forts. With the Roman invasion came cities. Civilization is derived from the Latin “civitas” or city. So, with the foundation of cities, society moved to a services economy. There were all manner of services from blacksmiths to publicans to leisure activities such as bath houses and athletic activities, the theatre and gladiators in the amphitheatre and chariot racing in the hippodrome-all of which required tickets. With services, you had to have a money economy-barter would not work. For services, you had to have a legal system. People would not provide services on credit unless they knew they would be paid and if the debtor did not pay then they could get judgement against him and make him bankrupt.
The Romans kept the Celtic tribal boundaries but changed them into Civitates (counties) and established an administrative centre or Civitas in each Civitates. So, for example, the tribal boundaries of the Iceni were kept and Norwich became the administrative centre. As far as this talk is concerned, there were Basilicas (Town Hall and Law courts) in every Public Town which were like mini-Pompeii’s.
London did not exist in 43 AD but within 20 years was a flourishing port with its own civil court. When Bucklersbury House (where as young solicitors we used to sometimes have lunch) was knocked down in 2010 to make way for the Bloomberg Building, 405 Roman writing tablets were discovered. The writing stylus had gone through the beeswax and scratched the wood. Using MRI scans, the Latin on these tablets has been translated. One of the tablets sets out pre-trial directions of a judge in a contract dispute. Another sets out a sale of goods contract executed on 8 January 57 AD.
Rome was a litigious society. So great was the demand for law in Britannia that even as early as 77 AD-just 34 years after the invasion-, Emperor Vespasian appointed a Legatus Juridicus or Law Officer as a deputy to the Governor, Agricola. Caesar in The Gallic Wars recounts that when he was not fighting, he was hearing legal cases.
The story of Roman law starts in 509 BC with the rape of Lucrezia by Tarquinius. Legend has it that the Romans were so outraged by this droit de seigneur for which Tarquinius could not be prosecuted that they overthrew their monarchy and founded a Republic. They vowed never again to have kings who were replaced by two consuls elected yearly. In the Middle Ages, judges were appointed and dismissed by the kings. Thus, unlike with a common law system, even today in a civil law system, judges cannot make law. This is the big divide between civil and common law systems. A definition of common law is judge made law or law based on previously decided cases.
In a civil law system, all law is made by parliament or its equivalent. This was no more vividly shown than in 450 BC when the Romans passed the Twelve Tables, etched in bronze, which became the bedrock of Roman law. By 450 BC, the plebians were fed up with the way the patricians in the Senate were governing. The Republic had a bicameral or two chamber legislature consisting of popular assemblies, the senate and the consuls. Whilst the speaker of the popular assemblies was a senator and all legislation had to be introduced by him, all law had to originate and be passed by the popular assemblies before it went to the Senate. Manydemocracies today have of course adopted the bicameral legislative system.
Turning back to the Twelve Tables, you cannot have law without a system of bringing a defendant to trial-jurisdiction-, court procedure and the execution of judgments. These are all dealt with in tables I & II of the Twelve Tables whilst table VIII deals with the torts (delicts) of personal injury and damage to property. Unless a court judgment can be enforced, you do not have a legal system. Judgments would only have moral authority. This is why international law today is chiefly just a moral code. So here you have an example of not only the bedrock of all legal systems but also of many systems of democratic government in the world today.
By 400 AD Britannia was as Romanized as any other Roman province and very prosperous- dozens of public towns with baths, fora, basilica, curia (town council), theatres, amphitheatres etc- and more than a hundred small towns. The population was considered to be about 3 m. Then came the collapse of Roman civilization-the abandonment of the cities, the collapse of the money economy and the abandonment of Roman law. Most severe in England, less severe in Gaul and less severe still in the East.
The economic stimulus for Roman civilization was the bullion paid to the legions and auxiliary troops. In 410 AD the last bullion was shipped to England from the Roman mint in Trier, Germany. Prior to then the legions were being withdrawn from Britannia, starting in 401 AD and then Governor Constantine took the remaining legions to the continent in his disastrous bid to become emperor in 407 AD.
In the 4th Century, the ability to pay and levy tax and the security provided by the army (on which the bulk of the tax was spent) were in rough equilibrium. 90% of the population lived on the land and sold their surplus produce to the towns which enabled the money economy to exist and tax to be paid. As Rome was a military state, spending on the army and by the soldiers stimulated the economy. Any disturbance would jeopardise the entire system. This is what happened in the first decade of the 5th Century.
England was impregnable in view of the country’s natural defences as an island. There were dozens of strongly fortified walled cities, and forts and lookouts all along the “Saxon shore” from the Isle of Wight to Newcastle. The interior lines of England were superb. All weather roads and a postal service allowed reserves to be called up quickly from garrison towns, commerce to continue and the army to be fed and re-supplied.
Alexander around 330 BC in his march from Greece to Afghanistan and India had the finest army the world had ever seen and regularly called up reinforcements from Macedonia. He took a siege train with him to take walled cities but only ever had to take 2 walled citiesGaza and Tyre- and these were long drawn out, bloody affairs. The rest of the cities he took had mud walls. He financed his army by plundering the treasuries of the fabulously rich Persian empire and forced the conquered lands to pay taxes to him.
The Saxons had nothing like this. They neither had the organisation nor the economic capacity even to feed, let alone resupply, expeditionary armies. They had no economic capacity to wage a sustained war. Their forces were tiny, just raiding parties. Their lines of communications were impossible over the North Sea. No way could the Saxons take walled cities-siege towers with battering rams would have been needed. An example can be seen at Masada in Israel today. To take King Herod’s fortified palace, the Romans pushed a siege tower containing a battering ram up the ramp to the walls. It was the only way to do take a walled, strongly defended fort.
As so often in history, the out of control egos of the political elite, lead to catastrophe. Governor Constantine should easily have been able to replace the Roman legions with British legions and pay for them because Britannia was a rich country. If he could not do this, then the local leaders in the Curias’ of the Civitates could have done so. The money economy of the cities and Roman law could have continued in a successor state based on the Roman model. None of this happened. There was a complete failure of leadership. Central authority collapsed with England splitting into the 7 kingdoms. In 1086, 600 years later as recorded in the Doomsday Book, the population was less than in Roman times.
This defeat by the Saxons could so easily have been avoided. If so, our history would have been totally different. The Dark Ages would not have happened, we would have had a civil law system based on Roman law and President Trump would have been tweeting in Bretonsimilar to the Celtic language of Brittonic, predominant in Roman Britain. As it was, the cities were abandoned, the gates left open and the Saxons just walked in. It still took a small band of Saxon warriors about 200 years to conquer the whole of England. We chose to fail.
Act II.
By 597 AD when St Augustine came to England, nothing remained even in memory of Roman Britannia. However, out of collapse, came a brand new civilization, the English, with their own language first evidenced in Ethelbert’s Legal Code circa 600 AD, totally different from Brittonic and with the self-confidence to do things their own way.
From St Augustine’s time onwards, the church started to acquire land, often by gift, during the lifetime or on the death of the transferor, eventually owning a quarter of all arable land in England after the Norman Conquest. The one thing the church wanted, was to hang onto its’s wealth. Roman law had been forgotten in Europe but in its place came the primitive legal codes such as the Visigoth, Burgundian and other European law codes (called “Vulgar Roman law”). Thus, the concept of wills and codicils and the deed from Roman law, was reintroduced to England and can be found in the Vulgar law codes. The hallmark of a deed even today is that it must be “signed, sealed and delivered” when legal title is transferred or conveyed to the new owner. The word “delivery” is very odd in this context. It must come from the Roman conveyance of traditio where by tradition, legal title was transferred by delivery. To make sure it had the evidence of its ownership of land, the church was the depository for all legal documents.
Meanwhile, in early 6th Century Constantinople, Justinian called the “Great” because he believed he was God’s representative on earth, became emperor. But for one stroke of genius, he was an appalling man and a complete failure. The Vandals in North Africa and the Goths in Italy were not barbarians at all but perfectly civilised people for the times. Justinian’s attempt to reconquer North Africa and Italy commanded by Belisarius lead to an enormous loss of life, huge destruction and financially impoverished the Empire in the East, making in vulnerable to Persian attack. In Count Belisarius there was a military general of the same ilk as Marlborough, Wellington or Montgomery. Justinian was so jealous of his success that he blinded him which led to an early death.
Between 529-534 AD, Justinian produced in Latin the Corpus Iuris Civilis (Body of Civil law) on papyrus comprising Justinian’s Digest, the Institutes (student textbook), the Codex (Imperial Enactments) & later the Novels (Imperial enactments from 534 AD). By far the most important was the Digest. Justinian’s jurists copied and pasted 1,000 years of Roman law contained in jurists’ opinions by reducing them from 1,500 (about 30 times the size of the Bible) to 50 books. Even after this, the Digest was still 1.5 times the size of the bible. The Digest contains statements of principle and thousands of actual and theoretical case studies in which jurists work through legal concepts, fairly similar to a standard English legal textbook. It took the jurists just three years to put together the Digest, compared with the Savile Report with all our modern technology which took 10 years. The Corpus Iuris Civilis contains the whole of Roman law if only because Justinian ordered all other legal sources to be destroyed.
From the end 6th C AD to the 11th C AD, Justinian’s Digest and the rest of Corpus Iuris Civilis were lost so customary law took over for 500 years which in England included feudal law. In about 1070, a 6th Century copy of the Digest was found in Amalfi, Italy. Shortly afterwards, all the 3 other parts of the Corpus Iuris Civilis were found. This papyrus copy of the Digest is now in Florence. Generally speaking, all 321 of the world’s legal systems are based on this one copy of the Digest. There has never remotely been in the history of the world any legal code which has equalled the Digest.
Act III.
It is no coincidence that this copy of the Digest was found when the world started becoming cleverer again with the start of the Renaissance. The importance of the Digest was immediately recognised. It was “glossed” or annotated by the law school at Bologna University and the “Reception” or receiving back of Roman law swept through Europe and started to sweep through England from 1140’s. However, England had a new precocious civilization. It was going to do things its own way. In 1154, a fierce debate took place as to whether or not England should follow the “Reception” or have its own unique legal system based on cases. Shortly before this, the Church had won a big court case over land against King Stephen’s brother. It did not help the “Receptionists’” cause that the Church had brought over from Bologna University, the great legal scholar, Roger Vicarius (1120-1200), as part of their legal team. The Receptionists lost; we have a common law system which has been to our inestimable benefit because it allows the law to be changed quickly. We chose to succeed.
The self-confidence of the English is quite staggering. We are the only country in the world to refuse to accept a readymade comprehensive civil law code which took 1,000 years to create by the Romans and was in a user-friendly form first in Justinian’s Digest and then in the Napoleonic Code. The common law is very none user friendly because it is to be found in 100,000’s of cases.
However, lawyers have a natural liking for precedents and did not want to reinvent the wheel. Whilst Roman law can never be a source of English law, from the 12th Century onwards judges introduced it through the back door so we have the best of both the common law and civil law legal systems. Throughout his long life, Roger Vicarius stayed in England, wrote the “Liber Pauperum” a “glossed” or annotated compendium of the Digest and the Codex (Justinian’s updated Theodosian Code) written on parchment in nine volumes which became very popular at Oxford and Cambridge. An almost complete copy is in Worcester Cathedral library.
In the 12th Century, French and Latin vied with vernacular English as the language of the elite. However, by Chaucer's time in the mid 1300’s, vernacular Middle English was well established. On the other hand, for hundreds of years after the Conquest, serious matters in England were written about in Latin. Shakespeare read Livy and Ovid. In 1605, of the 2,000 books in the Bodleian Library in Oxford, only 58 were in English. So, there would have been no problem in reading copies of Justinian’s Digest or Vicarius’ Liber Pauperum
Of English private law, trusts come from the Roman will trust as does the concept of unjust enrichment which, to cover up its origins, we changed to the tort of money had and received. We have a copy of Lord MacMillan’s, the Scottish Law Lord’s, draft judgment in Donoghue v Stevenson (1933) which is based exclusively on Roman delict. In order to have a principle applicable throughout the common law world, Lord Atkins asked Lord MacMillan to delete all references to delict and changed the concept in the bible that you should love your neighbour to you should have a duty of care to your neighbour.
Recent work in devising a European law of contract found no real problems in reconciling common and civil laws of contract except for the conflict between the principles of caveat emptor and good faith. Land law comes chiefly from feudal law though dominant and servient tenements e.g., a right of way, adverse possession and usufruct etc are concepts from Roman law. Societies’ views on crime and criminology have changed hugely in the last 1,500 years but Latin concepts abound.
As a postscript, imagine a legal world without paper. The IP of papermaking by using wood pulp was invented by the Chinese certainly by 100 BC and possibly as early as 200 BC and paper came down the Silk Road into the Roman Empire. However, the Chinese kept the IP of papermaking secret and it proved extraordinary difficult for what are now the Central Asian Republics to steal it, for the IP to go down the Silk Road and for the Arabs to introduce it to Europe with the Moorish invasion of Spain. It took over 1,500 years for the IP of papermaking to come to England with the first papermaking mill being opened in England in 1495. This quickly had revolutionary consequences with the invention of the printing press, Tyndale’s bible in English and the Reformation but that is a topic for another occasion.
To conclude, in my view, Roman law has had by far the most influence of all Rome’s achievements. For understandable but not acceptable reasons, there is a curious blind spot in classicists’ and medieval historians’ ignoring it. It is the 8th and greatest wonder of the Ancient World. I hope you have enjoyed listening to this talk as much as I have enjoyed giving it.
J.A.Fisher
10/09/2021
If you are interested in:
1. The History of World law; and
2. Generally speaking all 320 legal systems in the world are based on Roman law; and
3. Law (particularly Commercial law) is crucial to civilisation
you may be interested in the talk by Philip Wood and myself, which you can find here