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difficulties in determining a course such as shall at once maintain the principle of patents, and free inventive talent and productive industry from the shackles it is seen to forge, and the wrong it is seen to inflict?
ART. X.-THE ROMAN ELEMENT IN ENGLAND.
A Neglected Fact in English History. By HENRY CHARLES COOTE, F.S.A. London: Bell and Daldy. 1864.
N our last Number we remarked with some severity on the publication of a work, which, beyond a general design to exalt the Roman civil law at the expense of our own jurisprudence, appeared to us to have no practical object, and which was in our opinion a very uncalled for display of questionable learning. We, of course, regarded the work in question from the point of view presented by the author, and which exhibited a certain degree of contrast between some of the more salient doctrines of the Roman system and the modern development of the law of England. Mr. Phillimore, the author of the work referred to, would, if we understand him, incorporate the Pandects in our StatuteBook bodily, hoping in that way to inaugurate a system of juridical training by which, instead of "Wrights, Norths, Wedderburnes, and Eldons," we might expect to have “De Thous, Hôpitals, Molès, and Lamoignons,” and, in the result, and as a consummation devoutly to be wished, at once destroy the servility of the Bar and the tyrannical privileges of the attorneys! But here is a book the object of which is to rescue "a neglected fact" in our history, and which demonstrates to us very plainly that the evils and barbarism which so grieve Mr. Phillimore's ingenuous spirit
are more deeply rooted, and have come upon us more sadly, than even he had imagined; for if Mr. Coote is to be believed we are the barbarians and vulgarians Mr. Phillimore so pleasantly describes us to be, not for the want of, but in spite of, the possession and influence among us of Roman law and of Roman institutions; and that is a fact which has been neglected by historians and literati, and in particular most shamefully neglected by our uncompromising censor, Mr. Phillimore. It is a mistake, Mr. Coote tells us, by his remote and quaint research, that we were Germanic in our original existence as a nation. On the contrary, everything about us at the period of which he speaks, and that was worthy of being noted as evidence of our civilisation, was Roman-we were Roman socially, Roman municipally, Roman legally. Indeed, if our worthy and industrious author, Mr. Coote, had lived and studied in 1253, it might be doubted whether the statute of Merton would ever have been passed, and at least he might have been able to have held his own with the old barons. The position taken may be received incredulously. by many, and some may not like to be told that such was the effect to any extent of the Roman occupation of our island. But if not approved by our genuine John Bulls, Lord Palmerston may possibly feel interested when he is told, as we all are, by Mr. Coote, that "the Anglo-Saxon thegn " (gentleman)," in the peculiarities of his position, is no other than the provincial landholder and gentleman, the possessor and the civis Romanus." Yes, notwithstanding the recent debate, and all our political and patriotic reclamation, John Bull is neither Saxon nor German, but a veritable civis Romanus! And there are many other synthetic pleasantries in the work which might be developed in a manner not more amusing than instructive. It is, of course, chiefly as bearing on the early history of our law that we are concerned with it; but the author's thoughts have worked themselves out in such a manner as to make it exceedingly difficult to separate the strictly legal from the other portions of the book. As a con
tribution to our libraries we are obliged to say that the book is distinguished by many defects, so much so that we fear none but the most persistent student and resolute antiquarian would care to encounter its exposition. And not to speak of the material inconveniences of being without an index, or even table of contents, it is unmarked by points or positions in its argument. In reading and considering its 180 pages, the mind from beginning to end finds no resting-place, but is fatigued by one continuous uninterrupted stream of remote tradition and pristine lore, which tradition and lore are not generally stated in a manner calculated to attract the attention of the intellect. Our author would have done his work better if its arrangement had been characterised by divisions or chapters, which would have been in themselves inductively complete, historical, and argumentative theses; the matter, too, of the work should have been summarised more clearly and logically.
Notwithstanding, however, these and other rather repellent qualities of the book, we have risen from its perusal with feelings of great respect for its author. The expression
neglected fact" may indeed suggest the idea of a hobby, but if the subject of the book be of that character, Mr. Coote's hobby is one of those which do not detract from, but add to the esteem with which he may otherwise be regarded. He is evidently a man of considerable attainments and historical learning, and if he has not the faculty of clear logical statement, his capacity for laborious and persevering industry in studious acquisition shows that he has a mind which can perceive and grasp its purpose with great tenacity. And no doubt the learned matter with which every page of the book may be said to be replete, is from its remotely antiquated, and not very accessible, character, exceedingly difficult of treatment. The following extract from the preface gives a pretty faithful idea of the author's purpose.
Of the elements which compose the English nationality the most obvious is attributable to a Germanic stock,
But however clearly this element may exhibit itself, the specific source to which it is truly to be ascribed has been unaccountably misunderstood and mis-stated. For it has been commonly agreed, both at home and abroad, to find the required ascription in a theory that Englishmen (on the Germanic side at least) are the descendants of the immigrants of the fifth and sixth centuries solely.
Of this prevalent theory it is to be observed, that it involves the extermination of the provincial Britons as a condition sine quâ non, and makes a tabula rasa of Roman Britain.
But such an assumption is attended with this great difficulty,it is entirely irreconcilable with the leading phenomena displayed in the political, social and legal condition of England, as it is found during the period of the Anglo-Saxon régime.
The phenomena which Anglo-Saxons exhibit are these:
They are divided into the two classes of the privileged and the unprivileged, distinctions which the philosophy of history has demonstrated to contain within themselves the fact, that a nationality from without has mastered another and a native nationality, which survives in a subject condition.
In the next place, this general society of masters and subjects is steeped in Roman institutions and observances.
No part of its life is free from these impressions, which dominate alike the thane and the churl.
The master holds his land and the servant occupies and tills it in unhesitating submission to rules and conditions which the law of the Empire had inculcated and enforced.
The master condescends to Roman taxation in order to maintain in their pristine state the bridges and causeways of Rome, and the warlike defences of those municipia which the Eternal City had founded in Britain.
In the civil, as in the territorial law, the Roman element prevails. The Roman civitates continue in life and action, and the burgesses still follow and obey the lex municipalis.
The civilisation and art of the country are high in degree and Roman in haracter.
The Imperial coinage virtually survives.
Roman words of art and manufacture, of weight and measure, of commerce, of law, of civilised amusement, of common and general
nomenclature, spring from the lips of the Anglo-Saxon in the utterances of his daily life.
Pure doctrinal Christianity, such as existed before the fall of Imperial paganism, is traceable in the land before the Roman monk has nerved himself to his task of pious ambition.
All this and more of Roman stamp and derivation are parcel of the organisation of the country.
Respecting the Anglo-Saxon, or to speak more correctly, the Anglo-Saxon immigrant, he had never belonged to Rome, but had belonged to unromanised and primitive Germany :
"In a word, barbarism was his sole inheritance and endowment," and we are not "to attribute to him the source and origin of the Roman usages of England."
These of course are to be attributed to the Romano-Britain, and beyond him to the pure Roman. The other, that is the German, is
An ill-considered theory, which need occasion no regret in the mind of an Englishman. The theory itself is not only untrue as a fact, but is also disparaging to the national pedigree.
It post-dates the English origines, and dries up the springs of our early history, the merits and interest of which are by this supposition lavished upon a race of strangers. It disentitles a large proportion of the Britons of Imperial Rome to the sympathies of the present race of Englishmen. It asserts that the arts and civilisation which the Mistress of the World imposed upon her subjects and pupils have conferred no derivative benefit upon ourselves, between whom and the Eternal City it leaves a gap without connexion or transition. Provincial Britain becomes a lost nation, and four centuries of historical associations, with their momentous consequences, are divorced from our annals.
And he further observes:—
In excuse for the superficial old theory which has been so long and so unhesitatingly received, it must be admitted that there are difficulties attending the treatment and solution of this interesting question; these difficulties having reference to the paucity and