# Useful Links to Roman Law Materials. 2.1.355 Roman Law and Society, Useful Links to Roman Law Materials., Ancient Law. Latin. Canonical: https://interlinea.aeterna-institute.org/library/latin/roman-law-and-society/useful-links-to-roman-law-materials/2.1.355 But to describe the influence of Equity on Ownership would be to write its history down to our own days. I have alluded to it principally because several esteemed contemporary writers have thought that in the Roman severance of Equitable from Legal property we have the clue to that difference in the conception of Ownership, which apparently distinguishes the law of the middle ages from the law of the Roman Empire. The leading characteristic of the feudal conception is its recognition of a double proprietorship, the superior ownership of the lord of the fief co-existing with the inferior property or estate of the tenant. Now this duplication of proprietary right looks, it is urged, extremely like a generalized form of the Roman distribution of rights over property into Quiritarian or legal, and to use a word of late origin) Bonitarian or equitable. Gaius himself observes upon the splitting of dominion into two parts as a singularity of Roman law, and expressly contrasts it with the entire or allodial ownership to which other nations were accustomed. Justinian, it is true, re-consolidated dominion into one, but then it was the partially reformed system of the Western Empire, and not Justinian's jurisprudence, with which the barbarians were in contact during so many centuries. While they remained poised on the edge of the Empire, it may well be that they learned this distinction, which afterwards bore remarkable fruit. In favor of this theory, it must at all events be admitted that the element of Roman law in the various bodies of barbarian custom has been very imperfectly examined. The erroneous or insufficient theories which have served to explain Feudalism resemble each other in their tendency to draw off attention from this particular ingredient in its texture. The older investigators, who have been mostly followed in this country, attached an exclusive importance to the circumstances of the turbulent period during which the Feudal system grew to maturity; and in later times a new source of error has been added to those already existing, in that pride of nationality which has led German writers to exaggerate the completeness of the social fabric which their forefathers had built up before their appearance in the Roman world. One or two English inquirers who looked in the right quarter for the foundations of the feudal system, failed nevertheless to conduct their investigations to any satisfactory result, either from searching too exclusively for analogies in the compilations of Justinian, or from confining their attention to the compendia of Roman law which are found appended to some of the extant barbarian codes. But, if Roman jurisprudence had any influence on the barbarous societies, it had probably produced the greatest part of its effects before the legislation of Justinian, and before the preparation of these compendia. It was not the reformed and purified jurisprudence of Justinian, but the undigested system which prevailed in the Western Empire, and which the Eastern Corpus Juris never succeeded in displacing, that I conceive to have clothed with flesh and muscle the scanty skeleton of barbarous usage. The change must be supposed to have taken place before the Germanic tribes had distinctly appropriated, as conqueror, any portion of the Roman dominions, and therefore long before Germanic monarchs had ordered breviaries of Roman law to be drawn up for the use of their Roman subjects. The necessity for some such hypothesis will be felt by everybody who can appreciate the difference between archaic and developed law. Rude as are the Leges Barbarorum which remain to us, they are not rude enough to satisfy the theory of their purely barbarous origin; nor have we any reason for believing that we have received, in written records, more than a fraction of the fixed rules which were practiced among themselves by the members of the conquering tribes. If we can once persuade ourselves that a considerable element of debased Roman law already existed in the barbarian systems, we shall have done something to remove a grave difficulty. The German law of the conquerors and the Roman law of their subjects would not have combined if they had not possessed more affinity for each other than refined jurisprudence has usually for the customs of savages. It is extremely likely that the codes of the barbarians, archaic as they seem, are only a compound of true primitive usage with half-understood Roman rules, and that it was the foreign ingredient which enabled them to coalesce with a Roman jurisprudence that had already receded somewhat from the comparative finish which it had acquired under the Western Emperors. --- Roman Law and Society, Useful Links to Roman Law Materials.. Text: The Latin Library (thelatinlibrary.com), used with permission. Changes: HTML markup removed and the text divided into reading sections by Interlinea. License: Used with permission (https://www.thelatinlibrary.com/about.html). Source: http://thelatinlibrary.com/law/links.html.