About 1135, or a little earlier, the code of Justinian was translated into French, and by the 13th century many French translations had been made of the Digest, the Institutes and the Code. By the 12th century ecclesiastical coun cils had begun to forbid ecclesiastics to study the secular law (Rheims 1131; the Lateran 1139; Tours 1162). This ecclesiastical inhibi tion served somewhat to check the study of the civil law at Paris — then as now the chief uni versity town of Europe—and was favorable to the continued predominance of Bologna as the seat and centre of civil law study, to the growth of the Montpellier School and to the establish ment of new schools, the chief of which were at Toulouse and at Orleans. All these great schools in France— except Paris—and the numerous schools that sprung up in the suc ceeding centuries, taught the civil law on the basis of the Justinian text. After the spread of the scientific study of Justinian's works from Bologna to Montpellier and other parts of France, the Justinian law in the 12th and 13th centuries gradually replaced the ante-Justinian, as being the more perfect form of the Roman law. In 1250 France was still divided under two laws; in the south (pays de droit ecrit) the Roman law obtained, modified by local cus toms; in the north (pays de cositume) local cus toms prevailed, slightly modified by Roman law, which, however, was taught in the northern schools and left numerous traces'in the legal works of the period. A Dutch school of jurists arose toward the end of the 16th century at the University of Leyden. So, too, in Germany some was made in the study of the Justinian law. Like the jurists of other coun tries, those of Germany were impressed by the superiority of the Roman law to their native law, both in form and substance, and their admiration induced them by degrees to put it forward in practice. The influence of the Bologna revival extended into Spain, where a crude codification was effected as early as 1263, called Sicte Partidas, but not generally adopted throughout the kingdom until about the reign of Alonzo XI in 1348. The Roman law worked its way into Scotland by way of France. From the close alliance that so long subsisted with France, Scotland, besides borrowing many of its institutions from that country, also "im ported a large portion of Roman jurisprudence to make up the deficiencies of a municipal law, long crude and imperfect, and which had made little progress as a national system till some time after the establishment of the Court of Session in 1532 by James V, after the model of the Parliament of Paris. . . . Properly speaking, the teaching of the civil law com menced in Scotland at the Reformation in 1560"; after which date, as well as before it, the more ambitious students of the civil law also availed themselves of the best professional teaching of the continental universities. °In Scotland a knowledge of the Roman law has always been regarded as the best introduction to the study of the municipal law. ... All the best writers on the law of Scotland, such as Stair, Bank ton, Erskine and Bell, were able civilians; and though they have not produced separate trea tises on the subject, their works abound with admirable illustrations of the Roman law, evincing great learning and research, and a familiar acquaintance with the writings of the continental jurists." (Mackenzie, 'Studies in Roman Law,) 40-41).
The influence of Roman law on the English common law has been very differently esti mated by different writers. Mr. Stubbs stands at one pole of the controversy with his eyes shut, saying, "England has inherited no portion of the Roman legislation except in the form of scientific orprofessional axioms, introduced at a late period, and through the ecclesiastical or scholastic or international university studies. Her common law is, to a far greater extent than is commonly recognized, based on usages anterior to the influx of feudality,— that is on strictly primitive custom." (Stubbs, 'Const.
Hist. of England? I, 10, § 8). This is perfectly insular and manifestly untrue. The other and sounder view as here taken is presented in Reeves' 'History of the English Law,' follow ing Guizot and Mackintosh, and more recently an equally enlightened view has been taken by Pollock & Maitland in their 'History of Eng lish Law.' The definite traces of Roman law surviving the Roman domination of the island are exceedingly slight. Selden states that die Roman law wholly disappeared in England until it was reintroduced from Bologna in the 12th century. A little before the middle of the 12th century, Vacarius, a Lombard, went over to England with Archbishop Theobald and lec tured on the civil law at Oxford with suc cess. Even Stubbs admits that before the end of the reign of Henry II the procedure of the Roman civil law had become well known by the English Canonists. Henry of Bracton was the first really scientific commentator on the law of England, and the greater and more important part of his work is little more than a transcript of the Roman law. He shows everywhere close familiarity with the Corpus Juris. The Novels are not quoted, but the Institutes are referred to, and there are many quotations from the Digest and the Code, while a very large number of passages are incor porated bodily into the text itself and into the tissue of the author's commentary without any statement as to their source. From Bracton and Glanvill to Pollock & Maitland, the pre dominating influence of the Roman law in Eng lish jurisprudence is everywhere traceable and evident. "The English system of equity and the ecclesiastical law have been formed more or less extensively on the Roman law or on the Roman through the Canon law.* (Mackenzie, 'Studies in Roman Law,) 40).
Both in England and in Germany the influ ence of the Roman law was resisted and its predominance looked upon with disfavor, but it nevertheless made its way pari passu with advancing civilization in each country, becom ing in fact and effect the substantial corpus Juris of the one country directly and of the other indirectly. Many causes combined to open the way both in Germany and in England for the practical application of Roman law. Among them, especially in England, were the impulse given by the universities and the Oxford School of Civil Law, the recognition of the Roman law in the clerical courts, whose jurisdiction ex tended over a class of civil matters, and the personal influence of the higher judges, who mostly belonged to the clergy, and were there fore versed in the Roman law. Above all, how ever, was the necessity of supplying the de fects of the common law, which had become manifest from the growth of trade, the increase of intercourse and the greater importance of movable property; for the common law had expended its best energies in the completion of the legal constitution of the feudal system, and had showed no tendency toward creating an original commercial law. To these causes must also be added the scientific superiority of the foreign law, with its completeness, over the domestic law, with its want of .theoretical de velopment. Even at an earlier period it is not improbable that the Roman law had been used as an assistant and complementary authority in the Curia Regis, upon which court it was incumbent to instruct the inferior judges in regard to the law in doubtful and omitted cases. A legal principle enunciated by that court had authority beyond the particular case in which it was laid down, and became, by means of its actual use, part of the jus non scriptum, con suetudinarium. As Roman legal matter obtained reception, although the written sources of the Roman law were not at all received as having a legislative authority, Bracton properly included the former among the leges et consuetudines Anglia.. (Prof. Dr. Giiterbock, (Henricus de Bracton,' etc., translated by Brinton Coxe, 60-62).