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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..048d273 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #54251 (https://www.gutenberg.org/ebooks/54251) diff --git a/old/54251-0.txt b/old/54251-0.txt deleted file mode 100644 index 2d2c47f..0000000 --- a/old/54251-0.txt +++ /dev/null @@ -1,2553 +0,0 @@ -The Project Gutenberg EBook of English Law and the Renaissance, by -Frederic William Maitland - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: English Law and the Renaissance - The Rede Lecture for 1901 - -Author: Frederic William Maitland - -Release Date: February 27, 2017 [EBook #54251] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK ENGLISH LAW AND THE RENAISSANCE *** - - - - -Produced by Clarity and the Online Distributed Proofreading -Team at http://www.pgdp.net (This file was produced from -images generously made available by The Internet -Archive/Canadian Libraries) - - - - - -Transcriber’s Note: Sidenotes have been moved to immediately before the -footnote to which they refer. - - - - - -English Law and the Renaissance - - London: C. J. CLAY AND SONS, - CAMBRIDGE UNIVERSITY PRESS WAREHOUSE, - AVE MARIA LANE, - AND - STEVENS AND SONS, LTD, - 119 AND 120, CHANCERY LANE. - - [Illustration] - - Glasgow: 50, WELLINGTON STREET. - Leipzig: F. A. BROCKHAUS. - New York: THE MACMILLAN COMPANY. - Bombay: E. SEYMOUR HALE. - - [_All Rights reserved._] - - - - - English Law and the - Renaissance - - (_The Rede Lecture for 1901_) - - with some Notes - - by - - Frederic William Maitland, LL.D., Hon. D.C.L., - of Lincoln’s Inn, Barrister-at-Law, - - Downing Professor of the Laws of England - in the University of Cambridge - - CAMBRIDGE - at the University Press - 1901 - - Cambridge: - PRINTED BY J. AND C. F. CLAY, - AT THE UNIVERSITY PRESS. - - PRINTED IN GREAT BRITAIN - - - - - TO - JAMES BRADLEY THAYER, LL.D. - PROFESSOR OF LAW - AT - HARVARD UNIVERSITY. - - - - -ENGLISH LAW AND THE RENAISSANCE. - - -_Mr Vice-Chancellor and Fellow-Students_: - -Were we to recall to life the good Sir Robert Rede who endowed lecturers -in this university, we might reasonably hope that he would approve -and admire the fruit that in these last years has been borne by his -liberality. And then, as in private duty or private interest bound, -I would have him speak thus: ‘Yes, it is marvellous and more than -marvellous this triumph of the sciences that my modest rent-charge -stimulates you annually to record; nor do I wonder less at what my -lecturers have said of humane letters and the fine arts, of the history -of all times and of my time, of Erasmus whom I remember, and that age of -the Renaissance (as you call it) in which (so you say) I lived. But there -is one matter, one science (for such we accounted it) of which they seem -to have said little or nothing; and it happens to be a matter, a science, -in which I used to take some interest and which I endeavoured to teach. -You have not, I hope, forgotten that I was not only an English judge, -but, what is more, a reader in English law[1].’ - -Six years ago a great master of history, whose untimely death we are -deploring, worked the establishment of the Rede lectures into the -picture that he drew for us of The Early Renaissance in England[2]. He -brought Rede’s name into contact with the names of Fisher and More. -That, no doubt, is the right environment, and this pious founder’s care -for the humanities, for logic and for philosophy natural and moral was -a memorable sign of the times. Nevertheless the fact remains that, had -it not been for his last will and testament, we should hardly have -known Sir Robert except as an English lawyer who throve so well in his -profession that he became Chief Justice of the Common Bench. And the -rest of the acts of Robert Rede--we might say--and the arguments that he -urged and the judgments that he pronounced, are they not written in queer -old French in the Year Books of Henry VII and Henry VIII? Those ancient -law reports are not a place in which we look for humanism or the spirit -of the Renaissance: rather we look there for an amazingly continuous -persistence and development of medieval doctrine. - -Perhaps we should hardly believe if we were told for the first time that -in the reign of James I a man who was the contemporary of Shakespeare -and Bacon, a very able man too and a learned, who left his mark deep -in English history, said, not by way of paradox but in sober earnest, -said repeatedly and advisedly, that a certain thoroughly medieval book -written in decadent colonial French was ‘the most perfect and absolute -work that ever was written in any human science[3].’ Yet this was what -Sir Edward Coke said of a small treatise written by Sir Thomas Littleton, -who, though he did not die until 1481, was assuredly no child of the -Renaissance. - -I know that the names of Coke and Littleton when in conjunction are -fearsome names or tiresome, and in common honesty I am bound to say -that if you stay here you will be wearied. Still I feel that what is -at fault is not my theme. A lecturer worthy of that theme would--I am -sure of it--be able to convince you that there is some human interest, -and especially an interest for English-speaking mankind, in a question -which Coke’s words suggest:--How was it and why was it that in an age -when old creeds of many kinds were crumbling and all knowledge was being -transfigured, in an age which had revolted against its predecessor and -was fully conscious of the revolt, one body of doctrine and a body that -concerns us all remained so intact that Coke could promulgate this -prodigious sentence and challenge the whole world to contradict it[4]? I -have not the power to tell and you to-day have not the time to hear that -story as it should be told. A brief outline of what might be said is all -that will be possible and more than will be tolerable. - -Robert Rede died in January, 1519. Let us remember for a moment where we -stand at that date. The Emperor Maximilian also was dying. Henry VIII -was reigning in England, Francis I in France, Charles I in Spain, Leo X -at Rome. But come we to jurisprudence. Is it beneath the historic muse -to notice that young Mr More, the judge’s son, had lately lectured at -Lincoln’s Inn[5]? Perhaps so. At all events for a while we will speak of -more resonant exploits. We could hardly (so I learn at second-hand) fix a -better date than that of Rede’s death for the second new birth of Roman -law. More’s friend Erasmus had turned his back on England and was by -this time in correspondence with two accomplished jurists, the Italian -Andrea Alciato and the German Ulrich Zäsi. They and the French scholar -Guillaume Budé were publishing books which mark the beginning of a new -era[6]. Humanism was renovating Roman law. The medieval commentators, the -Balduses and Bartoluses, the people whom Hutten and Rabelais[7] could -deride, were in like case with Peter Lombard, Duns Scotus and other -men of the night. Back to the texts! was the cry, and let the light -of literature and history play upon them[8]. The great Frenchmen who -were to do the main part of the work and to make the school of Bourges -illustrious were still young or unborn; Cujas was born in 1522; but -already the advanced guard was on the march and the flourish of trumpets -might be heard[9]. And then in 1520--well, we know what happened in 1520 -at Wittenberg, but perhaps we do not often remember that when the German -friar ceremoniously and contumeliously committed to the flames some -venerated law-books--this, if an event in the history of religion, was -also an event in the history of jurisprudence. A current of new life was -thrilling through one Corpus Juris[10]; the other had been sore stricken, -and, if it escaped from violent death, might perish yet more miserably of -a disease that becomes dangerous at the moment when it is discovered. - -A few years afterwards an enlightened young humanist, of high rank and -marked ability, a man who might live to be pope of Rome or might live to -be king of England, was saying much evil of the sort of law that Rede -had administered and taught; was saying that a wise prince would banish -this barbaric stuff and receive in its stead the civil law of the Romans. -Such, so we learn from one of his friends, was the talk of Reginald Pole, -and a little knowledge of what was happening in foreign countries is -enough to teach us that such talk deserves attention[11]. - -This was the time when Roman law was driving German law out of Germany -or forcing it to conceal itself in humble forms and obscure corners[12]. -If this was the age of the Renaissance and the age of the Reformation, -it was also the age of the ‘Reception.’ I need not say that this -Reception--the reception of Roman law--plays a large part in modern -versions of German history, and by no means only in such as are written -by lawyers. I need not say that it has been judged from many different -points of view, that it has been connected by some with political, by -others with religious and by yet others with economic changes. Nor need -I say that of late years few writers have had a hearty good word for the -Reception. We have all of us been nationalists of late. Cosmopolitanism -can afford to await its turn[13]. - -Then we observe that not long after Pole had been advocating a Reception, -his cousin King Henry, whose word was law supreme in church and state, -prohibited the academic study of one great and ancient body of law--the -canon law[14]--and encouraged the study of another--the civil law--by -the foundation of professorships at Oxford and Cambridge. We observe -also that his choice of a man to fill the chair at Cambridge fell on one -who was eminently qualified to represent in his own person that triad of -the three R’s--Renaissance, Reformation and Reception. We know Professor -Thomas Smith as a humanist, an elegant scholar with advanced opinions -about the pronunciation of Greek. We know the Reverend Thomas Smith as -a decided, if cautious, protestant whose doings are of some interest -to those who study the changeful history of ecclesiastical affairs. -Then we know Dr Thomas Smith as a doctor in law of the university of -Padua, for with praiseworthy zeal when he was appointed professor at -Cambridge he journeyed to the fountain-head for his Roman law and his -legal degree[15]. Also he visited those French universities whence a -new jurisprudence was beginning to spread. He returned to speak to -us in two inaugural lectures of this new jurisprudence: to speak -with enthusiasm of Alciatus and Zasius[16]: to speak hopefully of the -future that lay before this conquering science--the future that lay -before it in an England fortunately ruled by a pious, wise, learned and -munificent Prince. Then in Edward VI’s day Thomas Smith as a Master of -Requests was doing justice in a court whose procedure was described as -being ‘altogether according to the process of summary causes in the -civil law’ and at that moment this Court of Requests and other courts -with a like procedure seemed to have time, reason and popularity upon -their side[17]. Altogether, the Rev. Prof. Dr Sir Thomas Smith, Knt., -M.P., Dean of Carlisle, Provost of Eton, Ambassador to the Court of -France and Secretary of State to Queen Elizabeth was a man of mark in -an age of great events. Had some of those events been other than they -were, we might now be saying of him that he played a prominent part in -Renaissance, Reformation and Reception, and a part characteristic of -that liberal and rational university of which he was professor, public -orator and vice-chancellor[18]. - -Some German historians, as you are aware, have tried to find or to -fashion links that will in some direct and obvious manner connect the -Reformation and the Reception. In one popular version of the tale -protestantism finds a congenial ally in the individualism and capitalism -of the pagan Digest[19]. In truth I take it that the story is complex. -Many currents and cross-currents were flowing in that turbid age. It -so happens that in this country we can connect with the heresiarchal -name of Wyclif a proposal for the introduction of English law, as a -substitute for Roman law, into the schools of Oxford and Cambridge[20]. -On the other hand, the desire for a practical Reception of the civil -law is ascribed to the future cardinal, who in his last days reconciled -England for a moment, not with the Rome of the Digest, but with the Rome -of the Decretals. And by the way we may notice that when the cardinal -was here upon his reconciliatory errand he had for a while as his legal -adviser one of the most learned lawyers of that age, the Spaniard Antonio -Agustin. But we in England take little notice of this famous man, who, so -foreigners assure us now-a-days, began the historical study of the canon -law and knew more about the false Isidore than it was comfortable for him -to know[21]. Our Dr Smith was protestant enough; but his Oxford colleague -Dr John Story showed zeal in the cremation of protestants, helped Alva -(so it is said) to establish the Inquisition in the Netherlands, was -hanged as a traitor at Tyburn in 1571 and beatified as a martyr at Rome -in 1886. Blessed John Story was zealous; but his permanent contribution -to the jurisprudence of his native land was (so far as I am aware) an -early precedent for the imprisonment of a disorderly member by the House -of Commons, and a man may be disorderly without being a jurist[22]. -Ulrich Zäsi went part of the way with Luther; but then stayed behind -with Erasmus[23]. He had once compared the work that he was doing for -the Corpus Juris with the work that Luther was doing for the Bible[24]. -The great Frenchmen answered the religious question in different ways. -One said ‘That has nothing to do with the praetor’s edict.’ His rivals -charged him with a triple apostasy[25]. Three or four of them were stout -huguenots, and we must not forget that Calvin and Beza had both been at -Bourges and had both studied the civil law. Melanchthon also was a warm -admirer of Roman jurisprudence[26]. It is reported that Elizabeth invited -Francis Hotman to Oxford[27]. He was protestant enough, and fierce -enough to exchange letters with a tiger[28]. He is best known to English -law-students as the man who spoke light words of Littleton and thus -attracted Coke’s thunderbolt[29]; but if he thought badly of Littleton, -he thought badly of Tribonian also, and would have been the last man to -preach a Reception. Professor Alberigo Gentili of Oxford, he too was -protestant enough and could rail at the canonists by the hour; but then -he as an Italian had a bitter feud with the French humanizers, and stood -up for the medieval gloss[30]. - -Plainly the story is not simple and we must hurry past it. Still the -perplexity of detail should not obscure the broad truth that there was -pleasant reading in the Byzantine Code for a king who wished to be -monarch in church as well as state: pleasanter reading than could be -found in our ancient English law-books. Surely Erastianism is a bad name -for the theory that King Henry approved: Marsilianism seems better, but -Byzantinism seems best[31]. A time had come when, medieval spectacles -being discarded, men could see with the naked eye what stood in the -Code and Novels of Constantinople. In 1558 on the eve of an explosive -Reformation ‘the Protestants of Scotland,’ craving ‘remedy against the -tyranny of the estate ecclesiastical,’ demanded that the controversy -should be judged by the New Testament, the ancient fathers ‘and the -godly approved laws of Justinian the emperor[32].’ University-bred -jurists, even such as came from an oldish school, were very serviceable -to King Henry in the days of the great divorce case and the subsequent -quarrel with the papacy. Tunstall, Gardiner, Bonner, Sampson and Clerk, -to say nothing of the Leghs and Laytons, were doctors of law and took -their fees in bishoprics and deaneries[33]. Certainly they were more -conspicuous and probably they were much abler men than those who were -sitting in the courts of the common law. With the one exception of -Anthony Fitzherbert, the judges of Henry’s reign are not prominent in our -legal history, and we have little reason for attributing deep knowledge -of any sort of law to such chancellors as Audley, Wriothesley and Rich. I -doubt our common lawyers easily accommodated themselves to ecclesiastical -changes. Some years after Elizabeth’s accession the number of barristers -who were known to the government as ‘papists’ was surprisingly large and -it included the great Plowden[34]. But we must go back to our main theme. - -A Reception there was not to be, nor dare I say that a Reception was -what our Regius Professor or his royal patron desired. As to Smith -himself, it is fairly evident that some time afterwards, when he had -resigned his chair and was Elizabeth’s ambassador at the French court, -he was well content to contrast the public law of England with that of -‘France, Italy, Spain, Germany and all other countries which’ to use his -words ‘do follow the civil law of the Romans compiled by Justinian into -his Pandects and Code[35].’ The little treatise on the Commonwealth of -England which he wrote at Toulouse in 1565--a remarkable feat for he had -no English books at hand[36]--became a classic in the next century, and -certainly did not underrate those traditional, medieval, Germanic and -parliamentary elements which were still to be found in English life and -law under the fifth and last of the Tudors. Nevertheless I think that a -well-equipped lecturer might persuade a leisurely audience to perceive -that in the second quarter of the sixteenth century the continuity of -English legal history was seriously threatened[37]. - -Unquestionably our medieval law was open to humanistic attacks. It was -couched partly in bad Latin, partly in worse French. For the business -Latin of the middle age there is much to be said. It is a pleasant -picture that which we have of Thomas More puzzling the omniscient -foreigner by the question ‘An averia carucae capta in withernamio sunt -irreplegibilia[38].’ He asked a practical question in the only Latin in -which that question could have been asked without distortion. Smith’s -acute glance saw that _withernamium_ must have something to do with the -German _wiedernehmen_; for among his other pursuits our professor had -interested himself in the study of English words[39]. But this business -Latin was a pure and elegant language when compared with what served our -lawyers as French. Pole and Smith might well call it barbarous; that it -was fast becoming English was its one redeeming feature. You are likely -to know what I must not call the classical passage: it comes from the -seventeenth century. In all the _Epistolae Obscurorum Virorum_ there is -nothing better than the report which tells how one of Sir Robert Rede’s -successors was assaulted by a prisoner ‘que puis son condemnation ject un -brickbat a le dit justice que narrowly mist[40].’ It is as instructive -as it is surprising that this jargon should have been written in a -country where Frenchmen had long been regarded as hereditary foes. This -prepares us for the remark that taught law is tough law. But when ‘Dunce’ -had been set in Bocardo (and it was a doctor of the civil law who set -him there[41]), why should the old law books be spared? They also were -barbarous; they also were sufficiently papistical. - -Turning to a more serious aspect of affairs, it would not I think be -difficult to show that the pathway for a Reception was prepared. Not -difficult but perhaps wearisome. At this point it is impossible for us to -forget that the year 1485, if important to students of English history -for other reasons, is lamentably important for this reason, that there -Dr Stubbs laid down his pen. In his power of marshalling legal details -so as to bring to view some living principle or some phase of national -development he has had no rival and no second among Englishmen. Howbeit, -we may think of the subjected church and the humbled baronage, of the -parliament which exists to register the royal edicts, of the English _Lex -Regia_ which gives the force of statute to the king’s proclamations[42], -of the undeniable faults of the common law, of its dilatory methods, -of bribed and perjured juries, of the new courts which grow out of the -King’s Council and adopt a summary procedure devised by legists and -decretists. Might not the Council and the Star Chamber and the Court -of Requests--courts not tied and bound by ancient formalism,--do the -romanizing work that was done in Germany by the Imperial Chamber Court, -the _Reichskammergericht_[43]? This was the time when King Henry’s nephew -James V was establishing a new court in Scotland, a College of Justice, -and Scotland was to be the scene of a Reception[44]. - -It seems fairly certain that, besides all that he effected, Henry had at -times large projects in his mind: a project for a great college of law -(possibly a College of Justice in the Scotch sense), a project for the -reformation of the Inns of Court, which happily were not rich enough to -deserve dissolution[45], also perhaps a project for a civil code as well -as the better known project for a code ecclesiastical. In Edward VI’s -day our Regius and German Professor of Divinity, Dr Martin Butzer, had -heard, so it seems, that such a scheme had been taken in hand, and he -moved in circles that were well informed. He urged the young Josiah to go -forward in the good work; he denounced the barbarism of English law and -(to use Bentham’s word) its incognoscibility[46]. The new ecclesiastical -code, as is generally known, was never enacted; but we know equally well -that the draft is in print. Its admired Latinity is ascribed to Prof. -Smith’s immediate successor, Dr Walter Haddon. I take it that now-a-days -few English clergymen wish that they were living--or should I not say -dying?--under Dr Haddon’s pretty phrases[47]. Codification was in the -air. Both in France and in Germany the cry for a new Justinian was being -raised, and perhaps we may say that only because a new Justinian was not -forthcoming, men endeavoured to make the best that they could of the -old[48]. How bad that best would be Francis Hotman foretold. - -And then we see that in 1535, the year in which More was done to death, -the Year Books come to an end: in other words, the great stream of law -reports that has been flowing for near two centuries and a half, ever -since the days of Edward I, becomes discontinuous and then runs dry. -The exact significance of this ominous event has never yet been duly -explored; but ominous it surely is[49]. Some words that once fell from -Edmund Burke occur to us: ‘To put an end to reports is to put an end to -the law of England[50].’ Then in 1547 just after King Henry’s death a -wail went up from ‘divers students of the common laws.’ The common laws, -they said, were being set aside in favour of ‘the law civil’ insomuch -that the old courts had hardly any business[51]. Ten years later, at the -end of Mary’s reign, we read that the judges had nothing to do but ‘to -look about them,’ and that for the few practitioners in Westminster Hall -there was ‘elbow room enough[52].’ In criminal causes that were of any -political importance an examination by two or three doctors of the civil -law threatened to become a normal part of our procedure[53]. In short, I -am persuaded that in the middle years of the sixteenth century and of the -Tudor age the life of our ancient law was by no means lusty. - -And now we may ask what opposing force, what conservative principle -was there in England? National character, the genius of a people, is -a wonder-working spirit which stands at the beck and call of every -historian. But before we invoke it on the present occasion we might -prudently ask our books whether in the sixteenth century the bulk of -our German cousins inherited an innate bias towards what they would -have called a Welsh jurisprudence. There seems to be plentiful evidence -that the learned _doctores iuris_ who counselled the German princes and -obtained seats in the courts were cordially detested by the multitude. -In modern times they often have to bear much blame for that terrible -revolt which we know as the Peasants’ War[54]. No doubt there were many -differences between England and Germany, between England and France, -between England and Scotland[55]. Let us notice one difference which, -if I am not mistaken, marked off England from the rest of the world. -Medieval England had schools of national law. - -The importance of certain law schools will be readily conceded, even to -one who is in some sort officially bound to believe that law schools may -be important. A history of civilization would be miserably imperfect if -it took no account of the first new birth of Roman law in the Bologna -of Irnerius. Indeed there are who think that no later movement,--not -the Renaissance, not the Reformation--draws a stronger line across the -annals of mankind than that which is drawn about the year 1100 when a -human science won a place beside theology. I suppose that the importance -of the school of Bourges would also be conceded. It may be worth our -while to remark that the school of Bologna had a precursor in the school -of Pavia, and that the law which was the main subject of study in the -Pavia of the eleventh century was not Roman law but Lombard law: a body -of barbaric statutes that stood on one level with the Anglo-Saxon laws -of the same age. This I say, not in order that I may remind you what -sort of law it was that Archbishop Lanfranc studied when as a young man -he was a shining light in the school of Pavia, but because this body of -Lombard law, having once become the subject of systematic study, showed -a remarkable vitality in its struggle with Roman jurisprudence. Those -Italian doctors of the middle age who claimed for their science the -fealty of all mankind might have been forced to admit that all was not -well at home. They might call this Lombard law _ius asininum_ and the -law of brute beasts, but it lingered on, and indeed I read that it was -not utterly driven from the kingdom of Naples until Joseph Bonaparte -published the French code. Law schools make tough law[56]. - -Very rarely do we see elsewhere the academic teaching of any law that -is not Roman: imperially or papally Roman. As a matter of course the -universities had the two legal faculties, unless, as at Paris, the Pope -excluded the legists from an ecclesiastical preserve. The voice of John -Wyclif pleading that English law was the law that should be taught -in English universities was a voice that for centuries cried in the -wilderness. It was 1679 before French law obtained admission into the -French universities[57]. It was 1709 before Georg Beyer, a pandectist -at Wittenberg, set a precedent for lectures on German law in a German -university[58]. It was 1758 before Blackstone began his ever famous -course at Oxford. The chair that I cannot fill was not established -until the transatlantic Cambridge was setting an example to her elderly -mother[59]. But then, throughout the later middle age English law had -been academically taught. - -No English institutions are more distinctively English than the Inns of -Court; of none is the origin more obscure. We are only now coming into -possession of the documents whence their history must be gathered, and -apparently we shall never know much of their first days[60]. Unchartered, -unprivileged, unendowed, without remembered founders, these groups -of lawyers formed themselves and in course of time evolved a scheme -of legal education: an academic scheme of the medieval sort, oral -and disputatious. For good and ill that was a big achievement: a big -achievement in the history of some undiscovered continents. We may well -doubt whether aught else could have saved English law in the age of the -Renaissance. What is distinctive of medieval England is not parliament, -for we may everywhere see assemblies of Estates, nor trial by jury, for -this was but slowly suppressed in France. But the Inns of Court and -the Year Books that were read therein, we shall hardly find their like -elsewhere. At all events let us notice that where Littleton and Fortescue -lectured, there Robert Rede lectures, Thomas More lectures, Edward Coke -lectures, Francis Bacon lectures, and highly technical were the lectures -that Francis Bacon gave. Now it would, so I think, be difficult to -conceive any scheme better suited to harden and toughen a traditional -body of law than one which, while books were still uncommon, compelled -every lawyer to take part in legal education and every distinguished -lawyer to read public lectures. That was what I meant when I made bold to -say that Robert Rede was not only an English judge but ‘what is more’ a -reader in English law. - -_Deus bone!_ exclaimed Professor Smith in his inaugural lecture, and what -excited the learned doctor to this outcry was the skill in disputation -shown by the students of English law in their schools at London. He was -endeavouring to persuade his hearers that in many ways the study of law -would improve their minds. If, he urged, these young men, cut off as -they are from all the humanities, can reason thus over their ‘barbaric -and semi-gallic laws,’ what might not you, you cultivated scholars do if -you studied the Digest and Alciatus and Zasius? And then the professor -expressed a hope that he might be able to spend his vacation in the Inns -of Court[61]. His heart was in the right place: in a school of living -law. Even for the purposes of purely scientific observation the live dog -may be better than the dead lion. - -When the middle of the century is past the signs that English law has a -new lease of life become many. The medieval books poured from the press, -new books were written, the decisions of the courts were more diligently -reported, the lawyers were boasting of the independence and extreme -antiquity of their system[62]. We were having a little Renaissance of -our own: or a gothic revival if you please. The Court of Requests in -which Prof. Smith and Prof. Haddon had done justice was being tried -for its life. Its official defender was, we observe, Italian by blood -and Parisian by degree: Dr Adelmare, known to Englishmen as Sir Julius -Caesar[63]. That wonderful Edward Coke was loose. The medieval tradition -was more than safe in his hands. You may think it pleasant to turn from -this masterful, masterless man to his great rival. It is not very safe -to say what Thomas More did not know, less safe to say what was unknown -to Francis Bacon, but I cannot discover that either of these scholars, -these philosophers, these statesmen, these law reformers, these schemers -of ideal republics, these chancellors of the realm, these law lecturers, -had more than a bowing acquaintance with Roman law. - -If Reginald Pole’s dream had come true, if there had been a -Reception--well, I have not the power to guess and you have not the -time to hear what would have happened; but I think that we should have -had to rewrite a great deal of history. For example, in the seventeenth -century there might have been a struggle between king and parliament, -but it would hardly have been that struggle for the medieval, the -Lancastrian, constitution in which Coke and Selden and Prynne and other -ardent searchers of mouldering records won their right to be known to -school-boys. In 1610 when the conflict was growing warm a book was burnt -by the common hangman: it was written by an able man in whom Cambridge -should take some pride, Dr Cowell, our Regius Professor, and seemed to -confirm the suspicion that Roman law and absolute monarchy went hand in -hand[64]. - -The profit and loss account would be a long affair. I must make no -attempt to state it. If there was the danger of barbarism and stupidity -on the one side, there was the danger of pedantry on the other: the -pedantry that endeavours to appropriate the law of another race and -galvanizes a dead Corpus Juris into a semblance of life. Since the first -of January 1900 the attempt to administer law out of Justinian’s books -has been abandoned in Germany. The so-called ‘Roman-Dutch’ law of certain -outlying parts of the British Empire now stands alone[65], and few, I -imagine, would foretell for it a brilliant future, unless it passes into -the hand of the codifier and frankly ceases to be nominally Roman. Let us -observe, however, that much had been at stake in the little England of -the sixteenth century. - -In 1606 Coke was settling the first charter of Virginia[66]. In 1619 -elected ‘burgesses’ from the various ‘hundreds’ of Virginia were -assembling, and the first-born child of the mother of parliaments saw -the light[67]. Maryland was granted to Lord Baltimore with view of -frankpledge and all that to view of frankpledge doth belong, to have and -to hold in free and common socage as of the castle of Windsor in the -county of Berks, yielding yearly therefor two Indian arrows of those -parts on the Tuesday in Easter week[68]. The port and island of Bombay -in one hemisphere[69], and in another Prince Rupert’s land stretching no -one knew how far into the frozen north were detached members of the manor -of East Greenwich in the county of Kent[70]. Nearly twenty-five hundred -copies of Blackstone’s Commentaries were absorbed by the colonies on the -Atlantic seaboard before they declared their independence. James Kent, -aged fifteen, found a copy, and (to use his own words) was inspired with -awe[71]; John Marshall found a copy in his father’s library[72]; and the -common law went straight to the Pacific[73]. - -A hundred legislatures--little more or less--are now building on that -foundation: on the rock that was not submerged. We will not say this -boastfully. Far from it. Standing at the beginning of a century and in -the first year of Edward VII, thinking of the wide lands which call him -king, thinking of our complex and loosely-knit British Commonwealth, -we cannot look into the future without serious misgivings. If unity of -law--such unity as there has been--disappears, much else that we treasure -will disappear also, and (to speak frankly) unity of law is precarious. -The power of the parliament of the United Kingdom to legislate for the -colonies is fast receding into the ghostly company of legal fictions. -Men of our race have been litigious; the great Ihering admired our -litigiousness[74]; it is one of our more amiable traits; but it seems to -me idle to believe that distant parts of the earth will supply a tribunal -at Westminster with enough work to secure uniformity. The so-called -common law of one colony will swerve from that of another, and both from -that of England. Some colonies will have codes[75]. If English lawyers do -not read Australian reports (and they cannot read everything), Australian -lawyers will not much longer read English reports. - -Still the case is not yet desperate. Heroic things can be done by a -nation which means to do them: as witness the mighty effort of science -and forbearance which in our own time has unified the law of Germany, -and, having handed over the Corpus Juris to the historians, has in -some sort undone the work of the Reception[76]. Some venerable bodies -may understand the needs of the time, or, if I may borrow a famous -phrase, ‘the vocation of our age for jurisprudence and legislation.’ -Our parliament may endeavour to put out work which will be a model for -the British world. It can still set an example where it can no longer -dictate, and at least it might clear away the rubbish that collects -round every body of law. To make law that is worthy of acceptance by -free communities that are not bound to accept it, this would be no mean -ambition. _Nihil aptius, nihil efficacius ad plures provincias sub uno -imperio retinendas et fovendas_[77]. But it is hardly to parliament that -our hopes must turn in the first instance. Certain ancient and honourable -societies, proud of a past that is unique in the history of the world, -may become fully conscious of the heavy weight of responsibility that was -assumed when English law schools saved, but isolated, English law in the -days of the Reception. In that case, the glory of Bourges, the glory of -Bologna, the glory of Harvard may yet be theirs[78]. - - - - -NOTES. - - -[Sidenote: _Sir R. Rede’s lectures._] - -[1] Robert Rede was Autumn Reader at Lincoln’s Inn in 1481, Lent Reader -in 1485: _Black Book of Lincoln’s Inn_, vol. 1., pp. 71, 83. - -[2] Creighton, _The Early Renaissance in England_, Camb. 1895. - -[3] Coke, Introductory Letter to Part 10 of the _Reports_, and Preface to -_First Institute_. - -[Sidenote: _English law and the Renaissance._] - -[4] Sohm, _Fränkisches Recht und römisches Recht_, 1880, p. 77: ‘… -Thatsachen in Folge deren die Renaissance an dem englischen Rechtsleben -so gut wie spurlos vorüberging.’ - -[Sidenote: _Sir T. More’s lectures._] - -[5] Thomas More was Autumn Reader in 1511, Lent Reader in 1515: _Black -Book of Lincoln’s Inn_, vol. 1., pp. 162, 175. - -[Sidenote: _The Renaissance and Roman law. Alciato and Zäsi._] - -[6] Étienne Pasquier, _Recherches sur la France_, IX. 39 (cited by -Dareste, _Essai sur François Hotman_, Paris, 1850, p. 17): ‘Le siècle de -l’an mil cinq cens nous apporta une nouvelle estude de loix qui fut de -faire un mariage de l’estude du droict avec les lettres humaines par un -langage latin net et poly: et trouve trois premiers entrepreneurs de ce -nouveau mesnage, Guillaume Budé, François, enfant de Paris, André Alciat, -Italien Milanois, Udaric Zaze, Alleman né en la ville de Constance.’ -Savigny, _Geschichte des römischen Rechts im Mittelalter_, ed. 2, vol. -VI., p. 421: ‘Nun sind es zwei Männer, welche als Stifter und Führer der -neuen Schule angesehen werden können: Alciat in Italien und Frankreich, -Zasius in Deutschland. Die ersten Schriften, worin die neue Methode -erscheint, fallen in das zweite Decennium des fünfzehnten [_corr._ -sechzehnten] Jahrhunderts.’ - -Andrea Alciato was born at Alzate near Milan in 1492, studied at Pavia -and Bologna, in 1518 was called to teach at Avignon, went to Milan in -1520, to Bourges in 1528, was afterwards at Pavia, Bologna and Ferrara, -died at Pavia in 1550 (Pertile, _Storia del diritto italiano_, ed. 2, -vol. II. (2), p. 428). Ulrich Zäsi was born in 1461, studied at Tübingen -and at Freiburg where he became town-clerk and afterwards professor of -law, died in 1535. See Stintzing, _Ulrich Zasius_, Basel, 1857, where -(pp. 162-216) the intercourse between Erasmus, Zäsi, Alciato and Budé is -described. The early Italian humanists had looked on jurisprudence with -disdain and disgust. See Geiger, _Renaissance und Humanismus_, 1882, pp. -500-503; Voigt, _Die Wiederbelebung des classischen Alterthums_, ed. 3, -vol. II., pp. 477-484. Gradually, so I understand, philologians such -as Budé (d. 1540) began to discover that there was matter interesting -to them in the Corpus Juris, and a few jurists turned towards the -new classical learning. See Tilley, _Humanism under Francis I._, in -_English Historical Review_, vol. XV., pp. 456 ff. In 1520 Zäsi, writing -to Alciato, said ‘All sciences have put off their dirty clothes: only -jurisprudence remains in her rags.’ (Stintzing, _Ulrich Zasius_, p. 107.) - -[Sidenote: _Rabelais and the commentators._] - -[7] Rabelais, _Pantagruel_, liv. II., ch. X.: ‘Sottes et desraisonnables -raisons et ineptes opinions de Accurse, Balde, Bartole, de Castro, de -Imola, Hippolytus, Panorme, Bertachin, Alexander, Curtius et ces autres -vieux mastins, qui jamais n’entendirent la moindre loy des Pandectes, -et n’estoient que gros veaulx de disme, ignorans de tout ce qu’est -necessaire à l’intelligence des loix. Car (comme il est tout certain) ilz -n’avoient cognoissance de langue ny grecque, ny latine, mais seulement -de gothique et barbare.… Davantage, veu que les loix sont extirpées du -milieu de philosophie morale et naturelle, comment l’entendront ces folz, -qui ont par Dieu moins estudié en philosophie que ma mulle. Au regard -des lettres d’humanité et cognoissance des antiquités et histoires ilz -en estoient chargés comme un crapaud de plumes, et en usent comme un -crucifix d’un pifre, dont toutesfois les droits sont tous pleins, et -sans ce ne peuvent estre entenduz.’ W. F. Smith, _Rabelais_, vol. I., p. -257, translates the last sentence thus: ‘With regard to the cultivated -literature and knowledge of antiquities and history, they were as much -provided with those faculties as is a toad with feathers and have as -much use for them as a drunken heretic has for a crucifix.…’ - -[Sidenote: _Back to the texts!_] - -[8] Stintzing, _Geschichte der deutschen Rechtswissenschaft_, vol. I., p. -96: ‘Man wird sich bewusst, dass nicht in der überlieferten Schulweisheit -das Wesen der Wissenschaft stecke; dass es auch hier gelte, dem Rufe des -Humanismus “zurück zu den Quellen!” zu folgen.’ - -[Sidenote: _The French school._] - -[9] The greatest names appear to be those of François Duaren or more -correctly Le Douarin (1509-1559), Jacques Cujas (1522-1590), Hugues -Doneau (Donellus, 1527-1592), François Baudouin (Balduinus, 1520-1573), -François Hotman (1524-1591), Denis Godefroy (1549-1622), Jacques Godefroy -(1587-1652). Besides these there is Charles Du Moulin (Molinaeus, -1500-1566) whose chief work, however, was done upon French customary law, -and who in the study of Roman law represents a conservative tradition. -(Esmein, _Histoire du droit français_, ed. 2, p. 776.) Dareste (_Essai -sur François Hotman_, p. 2) marks the five years 1546-1551 as those in -which ‘nos quatre grands docteurs du seizième siècle’ (Hotman, Baudouin, -Cujas, Doneau) entered on their careers. - -[Sidenote: _New life of the Corpus Juris._] - -[10] Viollet, _Droit civil français_, p. 25: ‘C’est le mouvement -scientifique de la Renaissance qui, semblable à un courant d’électricité, -donne ainsi au vieux droit romain une vie nouvelle. Son autorité -s’accroît par l’action d’une science, pleine de jeunesse et d’ardeur, -d’une science qui, comme toutes les autres branches de l’activité -humaine, s’épanouit et renaît.’ Flach, in _Nouvelle revue historique de -droit_, vol. VII., p. 222: ‘En France Cujas porte à son apogée le renom -de l’école nouvelle. Quelle autre préoccupation cette école pouvait-elle -avoir que de faire revivre le véritable droit de la Rome ancienne, celui -que la pratique avait touché de son souffle impur, celui qu’elle avait -corrompu?’ - -[Sidenote: _Reginald Pole and the Reception. Defects of English law. -Reception of the civil law recommended. Pole and the reform of the land -laws. Starkey’s legal studies._] - -[11] _Starkey’s England_, Early English Text Society, 1878, pp. 192 ff.; -and see _Letters and Papers, Henry VIII._, vol. VIII., pp. 81-84, and -_Ibid._ vol. XII., pt. 1, pp. xxxii-xxxiv. Thomas Starkey was employed -in the endeavour to win Reginald Pole to King Henry’s side in the matter -of the divorce from Catherine and the consequent breach with Rome. The -negotiation failed, but Starkey took the opportunity of laying before -Henry a dialogue which he (Starkey) had composed. The interlocutors in -this dialogue were Pole and the well-known scholar Thomas Lupset, and -Pole was represented as expounding his opinions touching political and -ecclesiastical affairs. How far at all points Starkey fairly represented -Pole’s views may be doubted. Still we have respectable evidence that -Pole had talked in the strain of the following passage, and at any rate -Starkey thought that in King Henry’s eyes he was befriending Pole by -making him speak thus. - -‘Thys ys no dowte but that our law and ordur thereof ys over-confuse. Hyt -ys infynyte, and without ordur or end. Ther ys no stabyl grounde therin, -nor sure stay; but euery one that can coloure reson makyth a stope to -the best law that ys before tyme deuysyd. The suttylty of one sergeant -schal enerte [enerve?] and destroy al the jugementys of many wyse men -before tyme receyuyd. There is no stabyl ground in our commyn law to -leyne vnto. The jugementys of yerys [_i.e._ the Year Books] be infynyte -and ful of much controuersy; and, besyde that, of smal authoryte. The -jugys are not bounden, as I vnderstond, to folow them as a rule, but -aftur theyr owne lyberty they haue authoryte to juge, accordyng as they -are instructyd by the sergeantys, and as the cyrcumstance of the cause -doth them moue. And thys makyth jugementys and processe of our law to -be wythout end and infynyte; thys causyth sutys to be long in decysyon. -Therefor, to remedy thys mater groundly, hyt were necessary, in our law, -to vse the same remedy that Justynyan dyd in the law of the Romaynys, -to bryng thys infynyte processe to certayn endys, to cut away thys long -lawys, and, by the wysdome of some polytyke and wyse men, instytute a -few and bettur lawys and ordynancys. The statutys of kyngys, also, be -ouer-many, euen as the constytutyonys of the emperorys were. Wherefor I -wold wysch that al thes lawys schold be brought into some smal nombur, -and to be wryten also in our mother tong, or els put into the Latyn, to -cause them that studye the cyuyle law of our reame fyrst to begyn of the -Latyn tong, wherin they myght also afturward lerne many thyngys to helpe -thys professyon. Thys ys one thyng necessary to the educatyon of the -nobylyte, the wych only I wold schold be admyttyd to the study of thys -law. Then they myght study also the lawys of the Romaynys, where they -schold see al causys and controuersys decyded by rulys more conuenyent to -the ordur of nature then they be in thys barbarouse tong and Old French, -wych now seruyth to no purpos els. Thys, Mastur Lvpset, ys a grete blote -in our pollycy, to see al our law and commyn dyscyplyne wryten in thys -barbarouse langage, wych, aftur when the youth hath lernyd, seruyth them -to no purpos at al; and, besyde that, to say the truth, many of the lawys -themselfys be also barbarouse and tyrannycal, as you haue before hard. -[Here follows an attack on primogeniture and entail.] The wych al by thys -one remedy schold be amendyd and correct, yf we myght induce the hedys of -our cuntrey to admyt the same: that ys, to receyue the cyuyle law of the -Romaynys, the wych ys now the commyn law almost of al Chrystyan natyonys. -The wych thyng vndowtydly schold be occasyon of infynyte gudness in -the ordur of our reame, the wych I coud schow you manyfestely, but the -thyng hyt selfe ys so open and playn, that hyt nedyth no declaratyon at -al; for who ys so blynd that seth not the grete schame to our natyon, -the grete infamy and rote that remeynyth in vs, to be gouernyd by the -lawys gyuen to vs of such a barbarouse natyon as the Normannys be? Who -ys so fer from rayson that consyderyth not the tyranycal and barbarouse -instytutionys, infynyte ways left here among vs, whych al schold be wypt -away by the receyuyng of thys wych we cal the veray cyuyle law; wych ys -vndowtydly the most auncyent and nobyl monument of the Romaynys prudence -and pollycy, the wych be so wryte wyth such grauyte, that yf Nature -schold herselfe prescrybe partycular meanys wherby mankynd schold obserue -hyr lawys, I thynke sche wold admyt the same: specyally, yf they were, -by a lytyl more wysedome, brought to a lytyl bettur ordur and frame, -wych myght be sone downe and put in effect. And so ther aftur that, yf -the nobylyte were brought vp in thys lawys vndoubtydly our cuntrey wold -schortly be restoryd to as gud cyuylyte as there ys in any other natyon; -ye, and peradventure much bettur also. For though thes lawys wych I haue -so praysyd be commyn among them, yet, bycause the nobylyte ther commynly -dothe not exercyse them in the studys thereof, they be al applyd to lucur -and gayne, bycause the popular men wych are borne in pouerty only doth -exercyse them for the most parte, wych ys a grete ruyne of al gud ordur -and cyuylyte. Wherefor, Master Lvpset, yf we myght bryng thys ij. thyngys -to effecte--that ys to say, to haue the cyuyle law of the Romaynys to -be the commyn law here of Englond with vs; and, secondary, that the -nobylyte in theyr youth schold study commynly therin--I thynk we schold -not nede to seke partycular remedys for such mysordurys as we haue notyd -before; for surely thys same publyke dyscyplyne schold redresse them -lyghtly; ye, and many other mow, the wych we spake not yet of at al.’ - -Lupset thereupon objects that, seeing we have so many years been governed -by our own law, it will be hard to bring this reform to pass. Pole -replies that the goodness of a prince would bring it to pass quickly: -‘the wych I pray God we may onys see.’ - -The Pole of the Dialogue wished to make the power to entail lands a -privilege of the nobility. A project of this kind had been in the air: -perhaps in King Henry’s mind. See _Letters and Papers, Henry VIII._, vol. -IV., pt. 2, p. 2693 (A.D. 1529): ‘Draft bill … proposing to enact that -from 1 Jan. next all entails be annulled and all possessions be held in -fee simple.… The Act is not to affect the estates of noblemen within -the degree of baron.’ This is one of the proposals for restoring the -king’s feudal revenue which lead up to the Statute of Uses: an Act whose -embryonic history has not yet been written, though Dr Stubbs has thrown -out useful hints. (_Seventeen Lectures_, ed. 3, p. 321.) - -When Pole left England in 1532 he went to Avignon where Alciato had -lately been lecturing and became for a short while a pupil of Giovanni -Francesco Ripa (Zimmermann, _Kardinal Pole_, 1893, p. 51), who was both -canonist and legist. Whether at any time Pole made a serious study of -the civil law I do not know. In 1534 Pole and Starkey were together at -Padua; Pole was studying theology, Starkey the civil law. Starkey in a -letter says ‘Francis Curtius is dead, to the grief of those who follow -the doctrine of Bartholus.’ Perhaps we may infer from this that Starkey -was in the camp of the Anti-Bartolists (_Letters and Papers, Henry -VIII._, vol. VII., p. 331). In 1535 he says that he has been studying the -civil law in order to form ‘a better judgment of the politic order and -customs used in our country’ (_Ibid._ vol. VIII., p. 80). - -[Sidenote: _The Reception in Germany._] - -[12] For a general view of the Reception in Germany with many references -to other books, see Schröder, _Deutsche Rechtsgeschichte_, ed. 2, pp. 743 -ff.; ed. 3, pp. 767 ff. - -[Sidenote: _Modern estimates of the Reception._] - -[13] For a moderate defence of the Reception, see Windscheid, -_Pandektenrecht_, ed. 7, vol. I., pp. 23 ff. (§ 10). Ihering appeals -from Nationality to Universality (cosmopolitanism); _Geist des römischen -Rechts_, ed. 5, vol. I., p. 12: ‘So lange die Wissenschaft sich nicht -entschliesst, dem Gedanken der Nationalität den der Universalität als -gleichberechtigten zur Seite zu setzen, wird sie weder im Stande sein -die Welt, in der sie selber lebt, zu begreifen, noch auch die geschehene -Reception des römischen Rechts wissenschaftlich zu rechtfertigen.’ The -following sentences may, I believe, be taken as typical of much that -has been written of late years. Brunner, _Grundzüge der deutschen -Rechtsgeschichte_, 1901, p. 231: ‘Allein was stets Tadel und Vorwurf -hervorrufen wird, ist die Art, wie die Rezeption … durchgeführt wurde. -Ein nationales Unglück war jenes engherzige Ignorieren des deutschen -Rechts, jenes geistlose und rein äusserliche Aufpfropfen römischer -Rechtssätze auf einheimische Verhältnisse, die Unkenntnis des Gegensatzes -zwischen diesen und dem römischen Rechte, welche taub machte gegen die -Wahrheit, dass kein Volk mit der Seele eines anderen zu denken vermag.’ - -[Sidenote: _Public reading of the canon law forbidden._] - -[14] Injunctions of 1535, _Stat. Acad. Cantab._ p. 134: ‘Quare volumus -ut deinceps nulla legatur palam et publice lectio per academiam -vestram totam in iure canonico sive pontificio nec aliquis cuiuscunque -conditionis homo gradum aliquem in studio illius iuris pontificii -suscipiat aut in eodem inposterum promoveatur quovis modo.’ See -Mullinger, _Hist. Univ. Camb._ vol. I., p. 630; Cooper, _Annals of -Cambridge_, vol. I., p. 375; and for Oxford, Ellis, _Original Letters_, -Ser. II., vol. II., p. 60. In September 1535 Legh and Ap Ryce declare -that the canon laws are ‘profligate out of this realm.’ (_Letters and -Papers, Henry VIII._, vol. IX., p. 138.) - -Despite a doubt suggested by Stubbs (_Seventeen Lectures_, ed. 3, p. -368), I cannot believe that the slightest hint of a degree in canon law -lurks at Cambridge in the title ‘Legum Doctor’ (LL.D.): not even ‘a -shadowy presentment of the double honour.’ See E. C. Clark, _Cambridge -Legal Studies_, 1888, pp. 56 ff., where that title is well explained. On -the continent a settled usage contrasted the _doctores legum_ and the -_doctores decretorum_. See e.g. Stintzing, _Geschichte der deutschen -Rechtswissenschaft_, vol. I., p. 25: ‘In Italien hatten die Legisten und -Decretisten verschiedene Schulen gebildet. In Deutschland waren sie zwar -zu einer Facultät vereinigt, bildeten jedoch lange Zeit zwei getrennte -Abtheilungen, von denen jede ihre eigenen akademischen Grade ertheilte. -Neben einander erscheinen die _Doctores Legum_ und _Doctores Decretorum_, -bis seit dem Anfang des 16. Jahrhunderts diese Scheidung schwindet und -die _Doctores utriusque iuris_ immer häufiger und endlich zur Regel -werden.’ - -[Sidenote: _Sir T. Smith._] - -[15] See Mr Pollard’s life of Smith in _Dict. Nat. Biog._ Some important -facts, especially about his ordination, were revealed by J. G. Nichols, -in _Archaeologia_, XXXVIII. 98-127. - -[Sidenote: _Smith and the new jurisprudence._] - -[16] Smith says that when he first became a member of the senate at -Cambridge he bought the Digest and Code and certain works of Alciatus, -Zasius and Ferrarius. (See Mullinger, _History of the University -of Cambridge_, vol. II., p. 130.) Ferrarius is, I suppose, Arnaud -Ferrier, the master of Cujas. Mr Mullinger (p. 126) suggests that the -Spaniard Ludovico Vives while resident at Oxford may have propagated -dissatisfaction with the traditional teaching of Roman law. - -[Sidenote: _The Court of Requests._] - -[17] _Select Cases in the Court of Requests_ (Selden Society), 1898, p. -cxxiii. Mr Leadam’s introduction to this volume contains a great deal of -new and valuable matter concerning this important court. The title of the -‘masters of requests’ seems certainly to come hither from France. Just at -this time there was a good deal of borrowing in these matters: witness -the title of the ‘secretaries of state,’ which, it is said, spreads -outwards from Spain to make the tour of the world. - -[Sidenote: _Smith’s inaugural orations. Diplomacy and the civil law. The -rewards for civilians._] - -[18] Of Smith’s two orations there is a copy in Camb. Univ. Libr. _Baker -MSS._ XXXVII. 394, 414. Mr Mullinger (_Hist. Univ. Cambr._, vol. II., -p. 127) has given an excellent summary. The following passage is that -in which the Professor approaches the question whether in England there -is a career open to the civilian. He has been saying that we ought -not to study merely for the sake of riches. ‘Tamen si qui sint qui -hoc requirant, sunt archiva Londini, sunt pontificia fora, forum est -praefecti quoque classis, in quibus proclamare licet et vocem vendere; -est scriptura; singuli pontifices cancellarios suos habent et officiales -et commissarios, qui propter civilis et pontificii iuris professionem in -hunc locum accipiuntur.’ The orator proceeds to ask whether there is any -youth who ungratefully thinks that proficiency in legal science will not -find an adequate reward. ‘In quo regno aut in cuius regis imperio tam -stulta illum opinio tenebit? In hoccine nobilissimi atque invictissimi -nostri principis Henrici octavi regno, cuius magnificentia in bonas -literas, studiumque in literatos, omnium omnis memoriae principum facta -meritaque superavit, cuius ingentia in academias beneficia, licet nulla -unquam tacebit posteritas, tamen omni celebratione maiora reperientur. -Cum strenue laboraveris et periculum ingenii tui feceris, teque non -lusisse operam sed dignum aliquo operae precio et honore ostenderis, cur -dejicies animum? Cur desperatione conflictabis? Cur de tanto fautore -ingeniorum, tam insigni bonae indolis exploratore, tam potenti Rege, -tam munifico, tam liberali et egregio amatore suorum demisse viliterque -sentias?’ - -There follows much more flattery of the king as a patron of learning of -every kind. ‘Iuris quidem civilis consulti facultas in hac republica -cum ad multos usus pernecessaria est, tum a principe nostro nequaquam -negligi aut levem haberi, vel hoc argumento esse potest, quod tam amplo -planeque regio stipendio et meam hic apud vos mediocritatem et alium -Oxonii disertum ac doctum virum ius hoc civile praelegere profiterique -voluit.’ And the study of the civil law is the high road to diplomatic -service. ‘Ius vero civile sic est commune ut cum ex Anglia discesseris, -nobiles, ignobiles, docti, indocti, sacerdotes etiam ac monachi cum -aliquod specimen eruditionis videri volunt exhibuisse, nihil fere aliud -perstrepunt quam quod ex hoc iure civili et pontificio sit depromptum.’ -The king has wisely employed civilians in his many legations. There -follow compliments paid to Stephen Gardiner, Thomas Thirlby, William -Paget, Thomas Wriothesley, and Thomas Legh. On the whole, the professor -can hold out to his pupils the prospect of diplomatic employment, of -masterships in the chancery (‘sunt archiva Londini’), of practice in the -ecclesiastical courts and the court of admiralty, and besides this they -are to remember that the king is a great patron of learning. I do not see -any hint that knowledge of Roman law will help a man at the bar of the -ordinary English courts. - -For more of the attempt to put new life into the study of Roman law -at Cambridge, see Mullinger, _op. cit._, vol. II., pp. 132 ff. Though -Somerset desired to see a great civil law college which should be a -nursery for diplomatists, the Edwardian or Protestant Reformation of -the church was in one way very unfavourable to the study of the civil -law. Bishoprics and deaneries were thenceforth reserved for divines, and -thus what had been the prizes of his profession were placed beyond the -jurist’s reach. Dr Nicholas Wotton (d. 1567), dean of Canterbury and -York, may be regarded as one of the last specimens of an expiring race. -Men who were not professionally learned, men like Sir Francis Bryan (d. -1550) and Sir Thomas Wyatt (d. 1542), had begun to compete with the -doctors for diplomatic missions and appointments. Also the chancellorship -of the realm had come within the ambition of the common lawyer, and -(though Bishop Goodrich may be one instance to the contrary) the policy -which would commit the great seal to the hands of a prelate was the -policy which would resist or reverse ecclesiastical innovations. Even -the mastership of the rolls, which had been held by doctors of Padua and -Bologna, fell to the common lawyers. Thomas Hannibal, master of the rolls -(1523-1527), must, one would think, have been an Italian, as were the -king’s Latin secretaries Andrea Ammonio and Pietro Vannes. - -[Sidenote: _The heathenry of the Digest._] - -[19] See Janssen, _Geschichte des deutschen Volkes_, vol. I., pp. -471-501, where the cry of ‘heathenry!’ is raised against the civil law. -Janssen’s attempt to praise the canon law as radically Germanic while -blaming the ‘absolutistic’ tendencies of the civil law seems strange. -Was not the canon law, with its pope, _qui omnia iura habet in scrinio -pectoris sui_, absolutistic enough? - -[Sidenote: _Wyclif on English and Roman law. Wyclif and the law of the -emperor. Wyclif and paynim’s law._] - -[20] Wyclif, _Tractatus de officio regis_, Wyclif Society, 1887, pp. -56, 193, 237, 250: ‘Leges regni Anglie excellunt leges imperiales -cum sint pauce respectu earum, quia supra pauca principia relinquunt -residuum epikerie [= ἐπιείκεια] sapientum.… Non credo quod plus viget in -Romana civilitate subtilitas racionis sive iusticia quam in civilitate -Anglicana.… Non pocius est homo clericus sive philosophus in quantum -est doctor civilitatis Romane quam in quantum est iusticiarius iuris -Anglicani.… Unde videtur quod si rex Anglie non permitteret canonistas -vel civilistas ad hoc sustentari de suis elemosinis vel patrimonio -crucifixi ut studeant tales leges … non dubium quin clerus foret utilior -sibi et ad ecclesiasticam promocionem humilior ex noticia civilitatis -proprie quam ex noticia civilitatis duplicis aliene.’ By ‘the patrimony -of the crucified’ Wyclif means ecclesiastical revenues, which some of -the bishops have been using in the endowment of legal studies at the -universities: e.g. Bishop Bateman at Cambridge. - -Wyclif, _Select English Works_, ed. Arnold, vol. III., p. 326: ‘It were -more profit boþe to body and soule þat oure curatis lerneden and tauȝten -many of þe kyngis statutis, þan lawe of þe emperour. For oure peple is -bounden to þe kyngis statutis and not to þe emperours lawe, but in as -moche as it is enclosid in Goddis hestis. Þanne moche tresour and moch -tyme of many hundrid clerkis in unyversite and oþere placis is foule -wastid aboute bookis of þe emperours lawe and studie about hem.… It -semeþ þat curatis schulden raþere lerne and teche þe kyngis statutis, -and namely þe Grete Chartre, þan þe emperours lawe or myche part of the -popis. For men in oure rewme ben bounden to obeche to þe kyng and his -riȝtful lawes and not so to þe emperours; and þei myȝtten wonder wel be -savyd, þouȝ many lawes of þe pope had nevere be spoken, in þis world ne -þe toþere.’ - -Wyclif, _Unprinted English Works_, Early English Text Society, 1880, p. -157: ‘Þe fyue and twentiþe errour: þei chesen newe lawis maad of synful -men and worldly and couetyse prestis and clerkis … for now heþenne mennus -lawis and worldly clerkis statutis ben red in vnyuersitees, and curatis -lernen hem faste wiþ grete desire, studie and cost.… _Ibid._ p. 184: … -lawieris maken process bi sotilte and cauyllacions of lawe cyule, þat is -moche heþene mennus lawe, and not accepten the forme of þe gospel, as -ȝif þe gospel were no so good as paynymes lawe.’ It is interesting to -see Janssen’s denunciation of Roman law as Pagan thus forestalled by the -great heretic, in whose eyes the Decretals were but little, if at all, -better than the Digest. - -[Sidenote: _A. Agustin in England._] - -[21] For Antonio Agustin (born 1517, bishop of Alife 1556, bishop of -Lerida 1561, archbishop of Tarragona 1576, died 1586) see Schulte, -_Geschichte der Quellen und Literatur des canonischen Rechts_, vol. III., -p. 723; Maasen, _Geschichte der Quellen des canonischen Rechts_, vol. I., -pp. xix ff. His stay in England is attested in the _Venetian Calendars_, -1555-6, pp. 20, 24, 32, 34, 56, 166. See also _Ibid._, 1556-7, p. 1335. -See also the funeral oration by And. Schott suffixed to Ant. Augustini -_De emendatione Gratiani dialogorum libri duo_, Par. 1607, p. 320: -‘Iulius tertius P. M. … adeo Antonium dilexit ut et intimis consiliis -adhibuerit, legatumque summa cum auctoritate in Britanniam insulam opibus -florentissimam miserit, cum Rex vere Catholicus Philippus secundus -Mariam reginam, Catholicorum regum Ferdinandi et Isabellae neptem, duxit -uxorem.… Anno 1555 revertit ex Anglia Romam Augustinus.’ Apparently he -was sent, not merely in order that he might congratulate Philip and -Mary, but also that ‘tanquam iurisconsultus legato adesset’ (Schulte, -_op. cit._, p. 724). He is charged by modern historians with not having -spoken plainly all that he knew about the origin of the Pseudo-Isidorian -decretals. England may have contributed a little towards the explosion -of the great forgery by means of books that were lent to the Magdeburg -Centuriators by Queen Elizabeth and Abp. Parker. See _Foreign Calendar_, -1561-2, pp. 117-9. - -[Sidenote: _B. John Story._] - -[22] See Mr Pollard’s life of Story in _Dict. Nat. Biog._ See also -Dyer’s _Reports_, f. 300. On his arraignment for high treason Story -ineffectually pleaded that he had become a subject of the king of Spain. - -[23] See Stintzing, _Ulrich Zasius_, pp. 216 ff. - -[Sidenote: _Zasius and Luther._] - -[24] Ranke, _History of the Reformation in Germany_ (transl. Austin), -vol. II., pp. 97-8. - -[Sidenote: _The French lawyers and the Reformation._] - -[25] The _Nihil hoc ad edictum praetoris!_ is currently ascribed to -Cujas, but the ultimate authority for the story I do not know. See -Brissaud, _Histoire du droit français_, p. 355: ‘La science laïque -déclarait par la bouche d’un de ses plus grands représentants qu’elle -n’était plus l’humble servante de la théologie; elle affirmait sa -sécularisation.’ It seems that Cujas (‘wie beinahe alle Rechtsgelehrten -seiner Zeit’) at first sided with the Reformers, but that he afterwards, -at least outwardly, made his peace with the Catholic church (Spangenberg, -_Jacob Cujas und seine Zeitgenossen_, Leipz. 1822, p. 162; Haag, -_La France protestante_, ed. 2, vol. IV., col. 957-970). Doneau was -a Calvinist; driven from France by Catholics and from Heidelberg by -Lutherans, he went to Leyden and ultimately to Altdorf. Hotman was a -Calvinist, intimately connected with the church of Geneva. Baudouin was -compelled to leave France for Geneva, whence he went to Strassburg and -Heidelberg; but he quarrelled with Calvin and was accused of changing his -religion six times. Charles Du Moulin also had been an exile at Tübingen. -It is said that after a Calvinistic stage he became a Lutheran; on his -death-bed he returned to Catholicism: such at least was the tale told by -Catholics. (See Brodeau, _La vie de Maistre Charles Du Molin_, Paris, -1654; Haag, _La France protestante_, ed. 2, vol. V., col. 783-789.) To -say the least, he had been ‘ultra-gallican.’ (Schulte, _Geschichte der -Quellen des canonischen Rechts_, vol. IV., p. 251.) Of Le Douarin also it -is said ‘il était réformé de cœur’ (_La France protestante_, ed. 2, vol. -V., col. 508). ‘Die grosse Mehrzahl der hervorragenden Juristen bekannte -sich mit grösserer oder geringerer Entschiedenheit zur Partei der -Hugenotten’ (Stintzing, _Geschichte der deutschen Rechtswissenschaft_, -vol. I., p. 372). - -[26] Stintzing, _Geschichte der deutschen Rechtswissenschaft_, vol. I., -p. 284. - -[Sidenote: _Francis Hotman and England._] - -[27] Elizabeth’s invitation to Hotman is mentioned in the _Elogium_ of -him prefixed to his _Opera_ (1599), p. viii, and in Dareste’s essay -(p. 5). His son John spent some time at Oxford. In 1583 John tells his -father that at Oxford he has plenty of time for study ‘quamvis hic miris -modis frigeat iuris civilis studium et mea hac in re opera nemini grata -possit esse in Anglia’ (_Hotomanorum Epistolae_, Amstd., 1620, p. 325). -In 1584 John was consulted along with Alberigo Gentili by the English -government in the Mendoza case (Holland, _Albericus Gentilis_, pp. 14, -15). There is nothing improbable in the story that Francis was offered -a post at Oxford. He must have been well known to Cecil. In 1562 he was -active in bringing Condé into touch with Elizabeth and so in promoting -the expedition to Havre. Condé’s envoy brought to Cecil a letter of -introduction from Hotman (_Foreign Calendar_, 1561-2, p. 601). Baudouin -also at this time was making himself useful to the English government. -(See e.g. _Foreign Calendar_, 1558-9, p. 173; 1561-2, pp. 60, 367, 454, -481, 510.) It has been said that Queen Elizabeth spoke of Charles Du -Moulin as her kinsman (Brodeau, _Vie de C. Du Molin_, p. 4). Whether in -the pedigree of the Boleyns there is any ground for this story I do not -know. See _La France protestante_, ed. 2, vol. V., col. 783. Sir Thomas -Craig, who is an important figure in the history of Scotch law, sat at -the feet of Baudouin, and Edward Henryson, who in 1566 became a lord of -session, had been a professor at Bourges (_Dict. Nat. Biog._). - -[Sidenote: _Francis Hotman and Roman law._] - -[28] The _Epistre adressée au tygre de la France_, a violent invective -against the Cardinal of Lorraine, still finds admirers among students of -French prose. Apparently Hotman would have been the last man to preach -a Reception of Roman law in England. Being keenly alive to the faults -of Justinian’s books, he resisted the further romanization of French -law, demanded a national code, admired the English limited monarchy, -and by his _Franco-Gallia_ made himself in some sort the ancestor of -the ‘Germanists.’ Some of these ‘elegant’ French jurists were so much -imbued with the historical spirit that in their hands the study of Roman -law became the study of an ancient history. The following words cited -and translated by Dareste from Baudouin (_François Hotman_, p. 19) have -a wonderfully modern sound: ‘Ceux qui ont étudié le droit auraient pu -trouver dans l’histoire la solution de bien des difficultés, et ceux -qui ont écrit l’histoire auraient mieux fait d’étudier le développement -des lois et des institutions, que de s’attacher à passer en revue les -armées, à décrire les camps, à raconter les batailles, à compter les -morts.’ ‘_Sine historia caecam esse iurisprudentiam_, disait Baudouin.’ -(Brissaud, _Histoire du droit français_, p. 349). - -[Sidenote: _Coke and Hotman. Polydore Virgil._] - -[29] Coke, Introductory Letter to Part 10 of the _Reports_, and Preface -to Coke upon Littleton (_First Institute_). The words of Hotman which -moved Coke to wrath will be found in _De verbis feudalibus commentarius_ -(F. Hotmani Opera, ed. 1599, vol. II., p. 913) s.v. _feodum_. Hotman -remarks that the English use the word _fee_ (longissime tamen a -Langobardici iuris ratione et instituto) to signify ‘praedia omnia quae -perpetuo iure tenentur.’ He then adds that Stephanus Pasquerius (the -famous Étienne Pasquier) had given him Littleton’s book: ‘ita incondite, -absurde et inconcinne scriptum, ut facile appareat verissimum esse quod -Polydorus Virgilius in Anglica Historia de iure Anglicano testatus est, -stultitiam in eo libro cum malitia et calumniandi studio certare.’ To -a foreign ‘feudist’ Littleton’s book would seem absurd enough, because -in England the _feudum_ had become the general form in which all -land-ownership appeared. Brunner (_Deutsche Rechtsgeschichte_, vol. II., -p. 11) puts this well: ‘Wo jedes Grundeigentum sich in Lehn verwandelt, -wird das Lehn, wie die Entwicklung des englischen Rechtes zeigt, -schliesslich zum Begriff des Grundeigentums.’ - -I have not found in Polydore Virgil’s History anything about Littleton. -There is a passage however in lib. IX. (ed. Basil. 1556, p. 154) in which -he denounces the unjust laws imposed by William the Conqueror and (so he -says) still observed in his own day: ‘Non possum hoc loco non memorare -rem tametsi omnibus notam, admiratione tamen longe dignissimam, atque -dictu incredibilem: eiusmodi namque leges quae ab omnibus intelligi -deberent, erant, ut etiam nunc sunt, Normanica lingua scriptae, quam -neque Galli nec Angli recte callebant.’ Among the badges of Norman -iniquity is trial by jury, which Polydore cannot find in the laws of -Alfred. This Italian historiographer may well be speaking what was felt -by many Englishmen in Henry VIII’s day when he holds up to scorn and -detestation ‘illud terribile duodecim virorum iudicium.’ Fisher and More -were tried by jury. - -[Sidenote: _Alberigo Gentili._] - -[30] For Gentili see Holland, _Inaugural Lecture_, 1874, and _Dict. Nat. -Biog._ For his attack on canon law see _De nuptiis_, lib. I., c. 19. For -his quarrel with the ‘elegant’ Frenchmen, see _De iuris interpretibus -dialogi sex_. The defenders of the new learning and the _mos Gallicus_, -as it was called, threw at their adversaries the word ‘barbarian’; the -retort of the conservative upholders of the _mos Italicus_ was ‘mere -grammarian.’ By expelling such men as the Gentilis, Italy forfeited her -pre-eminence in the world of legal study. Nevertheless it is said that -both in France and Germany the practical Roman law of the courts was for -a long time the law of the ‘Bartolist’ tradition. Esmein (_Histoire du -droit français_, ed. 2, p. 776) says: ‘Cujas exerça sur le développement -des théories de droit romain suivies en France une action beaucoup moins -puissante que Du Moulin, et la filiation du romaniste Du Moulin n’est -pas niable: par la forme comme par le fond, c’est le dernier des grands -Bartolistes.’ - -[Sidenote: _Marsilianism and Henricianism._] - -[31] Thomas Starkey, when he was trying to win over Reginald Pole to -Henry’s side, wrote thus: ‘Thes thyngs I thynke schal be somewhat in -your mynd confermyd by the redyng of Marsilius, whome I take, though he -were in style rude, yet to be of grete iugement, and wel to set out thys -mater, both by the authoryte of scripture and good reysonys groundyd in -phylosophy, and of thys I pray you send me your iugement.’ (_Starkey’s -England_, Early Engl. Text Soc. 1878, p. xxv.) Chapuis (the imperial -ambassador at Henry’s court) to Charles V, 3 Jan. 1534 (_Letters and -Papers of Henry VIII._, vol. VII., p. 6): ‘The little pamphlet composed -by the Council, which I lately sent to your Majesty, is only a preamble -and prologue of others more important which are now being printed. One -is called _Defensorium Pacis_, written in favour of the emperor Loys -of Bavaria against apostolic authority. Formerly no one dared read -it for fear of being burnt, but now it is translated into English so -that all the people may see and understand it.’ William Marshall to -Thomas Cromwell (_Ibid._, p. 178): ‘Whereas you promised to lend me £20 -towards the printing of _Defensor Pacis_, which has been translated this -twelve-month, but kept from the press for lack of money, in trust of -your offer I have begun to print it. I have made an end of the Gift of -Constantine and of Erasmus upon the Creed.’ The ‘Gift of Constantine’ -must be the famous treatise of Laurentius Valla. The translation of -Marsilius appeared on 27 July, 1535 (_Dict. Nat. Biog._ s.n. William -Marshall). In October twenty-four copies had been distributed among the -Carthusians in London (_Letters and Papers_, vol. IX., p. 171). In -1536 Marshall complained that the book had not sold, though it was the -best book in English against the usurped power of the bishop of Rome -(_Ibid._, vol. XI., p. 542). As to Byzantinism, if it be an accident it -is a memorable accident that the strongest statement of King Henry’s -divinely instituted headship of the church occurs in a statute which -enables unordained doctors of the civil (not canon) law to exercise that -plenitude of ecclesiastical jurisdiction which God has committed to the -king (_Stat._ 37 Hen. VIII., c. 17). - -[Sidenote: _The Scotch Protestants and Justinian._] - -[32] _Foreign Calendar_, 1558-9, p. 8. This seems to mean that the -normal and rightful relation of church to state is that which is to be -discovered in Justinian’s books. If so, ‘the Protestants of Scotland’ -soon afterwards changed their opinions under the teaching of Geneva and -claimed for ‘the estate ecclesiastical’ a truly medieval independence. - -[Sidenote: _The Henrician doctors of law. ‘The king’s great matter.’_] - -[33] The following facts are taken from the _Dictionary of National -Biography_. Cuthbert Tunstall (afterwards bishop of Durham) ‘graduated -LL.D. at Padua.’ Stephen Gardiner (afterwards bishop of Winchester) of -Trinity Hall, Cambridge, ‘proceeded doctor of the civil law in 1520 and -of the canon law in the following year.… In 1524 he was appointed one -of Sir Robert Rede’s lecturers in the University.’ Edmund Bonner of -Broadgate Hall, Oxford, ‘in 1519 he took on two successive days (12 and -13 June) the degrees of bachelor of civil and of canon law.… On 12 July, -1525, he was admitted doctor of civil law.’ Thomas Thirlby (afterwards -bishop of Ely) of Trinity Hall, Cambridge, ‘graduated bachelor of the -civil law in 1521 … and proceeded doctor of the civil law in 1528 and -doctor of the canon law in 1530.’ Richard Sampson (afterwards bishop -of Lichfield) of Trinity Hall, Cambridge, ‘proceeded B.C.L. in 1505. -Then he went for six years to Paris and Sens and returning proceeded -D.C.L. in 1513.’ John Clerk (afterwards bishop of Bath and Wells, Master -of the Rolls), ‘B.A. of Cambridge 1499 and M.A. 1502, studied law and -received the doctor’s degree at Bologna.’ Richard Layton (afterwards -dean of York) ‘was educated at Cambridge, where he proceeded B.C.L. in -1522 and afterwards LL.D.’ Thomas Legh of King’s College (?), Cambridge, -‘proceeded B.C.L. in 1527 and D.C.L. in 1531.’ Instances of legal degrees -obtained in foreign universities are not very uncommon. John Taylor, -Master of the Rolls in 1527, ‘graduated doctor of law at some foreign -university, being incorporated at Cambridge in 1520 and at Oxford in -1522.’ James Denton, dean of Lichfield, proceeded B.A. in 1489 and M.A. -in 1492 at Cambridge. ‘He subsequently studied canon law at Valencia -in which faculty he became a doctor of the university there.’ (For an -earlier instance, that of Thomas Alcock of Bologna, see _Grace Book A_, -Luard Memorial, p. 209. There are other instances in Boase, _Register of -the University of Oxford_; consult index under Padua, Bologna, Paris, -Orleans, Bourges, Louvain.) - -That wonderful divorce cause, which shook the world, created a large -demand for the sort of knowledge that the university-bred jurist was -supposed to possess, especially as a great effort was made to obtain -from foreign doctors and universities opinions favourable to the king. -The famous Cambridge ‘Grecian’ Richard Croke was employed in ransacking -Italian libraries for the works of Greek theologians and in taking -council with Hebrew rabbis. In Italy, France and Spain, as well as in -England, almost every canonist of distinction, from the celebrated Philip -Decius downwards, must have made a little money out of that law suit, for -the emperor also wanted opinions. - -[Sidenote: _Papists in the Inns of Court._] - -[34] See the remarkable paper printed in _Calendar of Inner Temple -Records_, vol. I., p. 470; also Mr Inderwick’s preface pp. 1 ff. In 1570 -Lincoln’s Inn had not been exacting the oath of supremacy: _Black Book_, -vol. I., pp. 369-372. See also the lives of Edmund Plowden, William -Rastell and Anthony Browne (the judge) in _Dict. Nat. Biog._: and for -Browne see also _Spanish Calendar_, 1558-67, pp. 369, 640. - -[Sidenote: _Sir T. Smith’s ‘Commonwealth.’_] - -[35] Smith, _Commonwealth of England_, ed. 1601, p. 147: ‘I haue declared -summarily as it were in a chart or map, or as Aristotle termeth it, ὡς ἐν -τύπῳ the forme and maner of gouernment of England, and the policy therof, -and set before your eyes the principall points wherin it doth differ from -the policy or gouernment at this time vsed in France, Italy, Spaine, -Germanie, and all other Countries, which doe follow the ciuill law of -the Romaines, compiled by Iustinian into his pandects and code: not in -that sort as Plato made his commonwealth, or Xenophon his kingdome of -Persia, nor as Sir Thomas More his Vtopia, beeing fained commonwealths, -such as neuer was nor neuer shall be, vaine imaginations, phantasies of -Philosophers to occupie the time, and to exercise their wits: but so as -England standeth, & is gouerned at this day the xxviij. of March. Anno -1565. in the vij. yeare of the raigne and administration thereof by the -most vertuous & noble Queene Elizabeth, daughter to King Henry the eight, -and in the one and fiftieth yeare of mine age, when I was Ambassadour for -her Maiestie, in the Court of Fraunce, the Scepter whereof at that time -the noble Prince and of great hope Charles Maximilian did holde, hauing -then raigned foure yeares.’ - -[Sidenote: _Smith writes without books._] - -[36] Smith to Haddon, 6 Ap. 1565, in G. Haddoni _Orationes_, Lond. 1567, -pp. 302-7: ‘nostrarum legum ne unum quidem librum mecum attuli hic nec -habebam iure consultos quos consulerem.’ He has been telling how he wrote -_The Commonwealth of England_. - -[Sidenote: _Roman law on the Continent._] - -[37] From the time of Bracton to the present day Englishmen have often -allowed themselves phrases which exaggerate the practical prevalence -of Roman law on the continent of Europe. Smith, for instance, who had -been in many parts of northern France and was a learned and observant -man, must have known that (to use Voltaire’s phrase) he often changed -law when he changed horses and that the Estates General had lately been -demanding a unification of the divergent customs (Viollet, _Histoire du -droit civil français_, p. 202; Planiol, _Droit civil_, 1900, vol. I., p. -16). Germans, who know what an attempt to administer Roman law really -means, habitually speak of French law as distinctively un-Roman. Thus -Rudolph Sohm (_Fränkisches Recht und römisches Recht_, Weimar, 1880, p. -76): ‘die Gesetzbücher Napoleons I. zeigen, dass noch heute wenigstens -das Privatrecht und Processrecht Frankreichs ein Abkömmling nicht des -römischen, noch des italienischen, sondern des fränkischen Rechtes ist.’ -So Planiol (_op. cit._, vol. I., p. 26): ‘Deux courants se sont trouvés -en présence lors de l’unification du droit français: l’esprit romain et -les traditions coutumières. Ce sont ces dernières qui l’ont emporté. -Le Code a été rédigé à Paris, en plein pays coutumier; les conseillers -d’État appartenaient en majorité aux provinces septentrionales; le -parlement de Paris avait eu dans l’ancien droit un rôle prépondérant. Il -n’y a donc rien d’étonnant à voir l’esprit des coutumes prédominer dans -le Code; le contraire eût été un non-sens historique.’ Until the other -day it was, I believe, a common remark that the large part of Germany -which stood under the French code either in a translated or untranslated -form--and this part contained about one-sixth of the Empire’s -population--was the part of Germany in which the law was least Roman and -most Germanic. The division of France into two great districts was not -equal: before the acquisition of Elsass from Germany ‘les pays de droit -écrit comprenaient à peine les deux cinquièmes de la France’ (Planiol, -_op. cit._, vol. I., p. 11). See the useful map in Brissaud, _Histoire du -droit français_, p. 152. Even in the south there was much customary law. -A famous sentence in the custumal of Bordeaux placed ‘the written law’ -below ‘natural reason’ (Viollet, _op. cit._, p. 150). Still it is not to -be denied that a slow process of romanization--very different from the -catastrophic Reception in Germany--went on steadily for some five or six -centuries; and a system which as a whole seems very un-Roman to a student -of what became ‘the common law’ of Germany may rightly seem Roman to an -Englishman. Francis Bacon knew that France could not be compendiously -described as a country governed by the civil law. In his speech on the -Union of Laws (Spedding, _Life and Letters_, vol. III., p. 337) he -accurately distinguishes ‘Gascoigne, Languedock, Provence, Dolphinie’ -which are ‘governed by the letter or text of the civil law’ from ‘the -Isle of France, Tourayne, Berry, Anjou and the rest, and most of all -Brittain and Normandy,’ which are ‘governed by customs which amount unto -a municipal law, and use the civil law but only for grounds and to decide -new and rare cases.’ English readers should at least know the doctrine, -strongly advocated in modern Germany, that the private law which was -developed in England by a French-speaking court was just one more French -_coutume_. Sohm, _Fränkisches Recht und römisches Recht_, p. 69: ‘Die -Vorgeschichte des englischen Rechts von heute hat nicht in England, -sondern in Nordfrankreich ihre Heimath … Stolz kann die Lex Salica auf -die zahlreichen und mächtigen Rechte blicken, welche sie erzeugt hat.’ - -[38] Blackstone, _Commentaries_, vol. III., p. 149; J. H[oddesdon], _Tho. -Mori Vita_, Lond. 1652, p. 26. - -[39] Smith, _Commonwealth_, ed. 1601, p. 141: ‘_withernam_ … is in plaine -Dutch and in our olde Saxon language _wyther nempt_.’ - -[Sidenote: _Barbarous language of the law._] - -[40] Pollock, _First Book of Jurisprudence_, p. 283, from Dyer’s -_Reports_, 188 _b_, in the notes added in ed. 1688: ‘Richardson, ch. -Just. de C. Banc. al Assises at Salisbury in Summer 1631. fuit assault -per prisoner la condemne pur felony que puis son condemnation ject un -Brickbat a le dit Justice que narrowly mist, & pur ceo immediately fuit -indictment drawn per Noy envers le prisoner, & son dexter manus ampute -& fix al Gibbet sur que luy mesme immediatment hange in presence de -Court.’ In France the Ordonnance of Villers-Cotterets (1539) decreed -that the judgments of the French courts should be recorded no longer -in Latin but in French. ‘L’utilité de cette innovation … se comprend -assez d’elle-même. On dit qu’un motif d’une autre nature, l’intérêt des -belles-lettres, ne contribua pas moins à y décider le roi [François -I], choqué du latin barbare qu’employaient les tribunaux. Un arrêt -rendu en ces termes: _Dicta curia debotavit et debotat dictum Colinum -de sua demanda_, fut, dit on, ce qui entraîna la suppression du latin -judiciaire.’ Henri Martin, _Histoire de France_, vol. VIII., pp. 272-3; -see also Christie, _Étienne Dolet_, ed. 2, p. 424. - -[Sidenote: _The fate of Duns Scotus._] - -[41] Ellis, _Original Letters_, Ser. II., vol. II., p. 61, Dr Layton to -Cromwell: ‘We have sett Dunce in Bocardo and have utterly banished him -Oxforde for ever, with all his blynd glosses, and is now made a common -servant to evere man, fast nailede up upon posts in all common howses of -easement.’ - -[Sidenote: _The English Lex Regia._] - -[42] _Stat._ 31 Hen. VIII., cap. 8. Already in 1535 Cromwell reports with -joy an opinion obtained from the judges to the effect that in a certain -event the king might issue a proclamation which would be ‘as effective as -any statute’ (_Letters and Papers, Henry VIII._, vol. VIII., p. 411). - -[Sidenote: _Civilians in councils and in courts. Project for a new -court._] - -[43] The story (with which we are familiar in England) of the evolution -of various councils and courts from an ancient _Curia Regis_ seems to -have a close parallel in French history: so close that imitation on one -side or the other may at times be suspected. After the _parlement_ with -its various chambers (which answer to our courts of common law) has -been established, the royal council interferes with judicial matters -in divers ways, and sections of the council become tribunals which -compete with the _parlement_. (See, _e.g._ Esmein, _Histoire du droit -français_, ed. 2, pp. 469 ff., and the pedigree of courts and councils -in Lavisse et Rambaud, _Histoire générale_, vol. IV., p. 143; also the -pedigree in N. Valois, _Le conseil du roi_ (1888), p. 11; and Brissaud, -_Histoire du droit français_, pp. 816 ff.) In Germany the doctors of -civil law made their way first into councils and then into courts. ‘Die -fremdrechtlich geschulten Juristen wurden in Deutschland anfänglich -nur in Verwaltungssachen verwendet. Zur Rechtsprechung gelangten sie -dadurch, dass die Verwaltung diese an sich zog, und zwar zuerst am Hofe -des Königs’ (Brunner, _Grundzüge der deutschen Rechtsgeschichte_, 1901, -p. 227). In the England of Henry VIII’s day there seems no little danger -that _die fremdrechtlich geschulten Juristen_, of whom there are a good -many in the king’s service, will gain the upper hand in the new courts -that have emerged from the council, and will proceed from _Verwaltung_ to -_Rechtsprechung_. There came a time when Dr Tunstall (who got his law at -Padua) was presiding over the Council of the North and Dr Roland Lee over -the Council of the Marches. In 1538 Dr Lee, who was endeavouring to bring -Wales to order, said in a letter to Cromwell, ‘If we should do nothing -but as the common law will, these things so far out of order will never -be redressed’ (_Dict. Nat. Biog._, vol. XXXII., p. 375). - -In 1534 there was a project for the erection of yet another new court. -See _Letters and Papers, Henry VIII._, vol. VII., p. 603: ‘Draft act -of parliament for the more rigid enforcement of previous statutes, -appointing a new court, to consist of six discreet men, of whom three at -least shall be outer barristers in the Inns of Court, who shall be called -justices or conservators of the common weal and sit together in the White -Hall at Westminster or elsewhere, with power to discuss all matters -relating to the common weal and to call before them all persons who have -violated any act of parliament made since the beginning of Henry VIII.’s -reign.’ If only three of these judges need be barristers, what are the -rest to be? - -[44] _Acts of the Parliament of Scotland_, vol. II., p. 335. - -[Sidenote: _Reform of the Inns of Court. The king’s College of Law._] - -[45] See the two papers that are printed by Waterhous, _Fortescutus -Restitutus_, 1663, pp. 539, 543. In one of these Thomas Denton, Nicholas -Bacon and Robert Cary are answering an inquiry addressed to them by Henry -VIII touching the plan of legal education pursued in the Inns of Court. -In this there are some phrases that tell of the revival of learning. The -writers thank Almighty God for giving them a king ‘endued and adorned -himself with all kindes and sortes of good learning as well divine as -prophane’ and one who ‘purposeth to set forward and as it were to revive -the study and perfect knowledge thereof [_i.e._ of good learning], of -long time detested and almost trodden under foot.’ They remark also that -many good and gentle wits have perished ‘chiefly for that most of them -in their tender years, indifferent to receive both good and bad, were so -rooted and seasoned, as it were, in barbarous authors, very enemies to -good learning, that hard it was, yea almost impossible, to reduce them to -goodness.’ - -The other paper contains a project for the king’s College of Law -submitted by the same three writers. This looks like an attempt to obtain -a royally endowed school of English law, and it is curious to observe -that, not English, but good French is to take the place of bad French. -‘The inner barristers shall plead in Latine, and the other barristers -reason in French; and either of them shall do what they can to banish -the corruption of both tongues.’ One learned in French is ‘to teach the -true pronuntiation of the French tongue.’ One of excellent knowledge -in the Latin and Greek tongues is to read ‘some orator or book of -rhetoric, or else some other author which treateth of the government of a -commonwealth, openly to all the company.’ Students of this college are to -be sent abroad to accompany ambassadors, and two students are to act as -historiographers of the realm. Nothing is said of the civil law. On the -whole, this seems to be a conservative proposal emanating from English -barristers for bettering the education of the common lawyer, and thus -rendering unnecessary such a Reception as Pole had proposed. We do not -know that it represents Henry’s thoughts. It was ‘a civil law college’ -that Somerset wished to establish at Cambridge by a fusion of Trinity -Hall and Clare. (See Mullinger, _Hist. Univ. Camb._, vol. II., pp. -134-137.) - -[Sidenote: _Butzer on Henry VIII’s project of Codification._] - -[46] Bucerus, _De regno Christi_, lib. II., cap. 56 (_Scripta Anglica_, -Basil. 1577, p. 148): ‘Passim enim queri bonos viros audio, leges regni -huius decorum [_corr._ de rerum] proprietatibus et commutationibus, de -successionibus in bonis atque aliis huius generis civilibus contractibus -et commerciis, esse perobscuras atque implicatas: adeoque etiam lingua -perscriptas quadam obsoleta ut a nemine queant intelligi, qui non et -eam linguam didicerit et earum legum intelligentiam multo fuerit studio -assecutus: indeque fieri ut plerique eorum qui eas leges aliquo modo -habent cognitas, iurisque magis quam iusticiae sunt consulti, his ipsis -legibus abutantur pro hominum decipulis retibusque pecuniarum. Quo regni -non tolerando incommodo permotum aiunt praestantissimum principem S. -M. T. patrem ut corrigendis, elucidandisque his legibus certos pridem -homines deputarit. Cum autem isti legum designati instauratores, vel -mole operis absterriti, vel aliis impediti abstractique negociis, huic -malo adhuc nullum attulerint remedium, abusioque et perversio legum -indies magis invalescere dicatur, eo certe id erit S. M. T. et maturius -et pertinacius elaborandum quo leges illae quam rectissime ac planissime -extent explicatae.… Quid autem interest nullae existant leges, aut quae -existunt sint civibus ignoratae?’ - -Butzer, as this treatise shows, had some knowledge of the civil law, at -least in the matter of divorce. He seems to think that a code for England -might be so simple an affair that it could be put into rhyme and be sung -by children. (See Mullinger, _Hist. Univ. Camb._, vol. II., p. 238.) - -[Sidenote: _Codification of the ecclesiastical law._] - -[47] Cardwell, _The Reformation of the Ecclesiastical Laws_, Oxf. 1850. -See p. xxvi, where Foxe the martyrologist (1571) testifies to the beauty -of Haddon’s Latin, and then says: ‘Atque equidem lubens optarim, si quid -votis meis proficerem, ut consimili exemplo, nec dissimili etiam oratione -ac stylo, prosiliat nunc aliquis, qui in vernaculis nostris legibus -perpoliendis idem efficiat, quod in ecclesiasticis istis praestitit -clarissimae memoriae hic Haddonus.’ On the question as to the intended -fate of heretics (including both Roman Catholics and Lutherans) under the -_Reformatio Legum_, see Hallam, _Const. Hist._, ed. 1832, vol. I., p. -139; Maitland, _Canon Law in England_, p. 178. - -[Sidenote: _The demand for Codification._] - -[48] Commines attributes to Louis XI (_circ. an._ 1479) a project of -reducing to uniformity all the customs of France. Francis Bacon more -than once, when urging his schemes of law reform, referred to Louis’s -abortive project (Spedding, _Life and Letters_, VI. 66; VII. 362). -Commines’s story is not rejected by modern historians of French law. -The official redaction of the various ‘general customs’ (customs of -provinces) was commanded in 1453 by the ordinance of Montils-les-Tours. -Little, however, was done in this matter until the reigns of Charles -VIII and Louis XII. Many customs were redacted about the year 1510: -that of Orleans in 1509; that of Paris in 1510. This might be described -as a measure of codification: ‘elle fit, des coutumes, de véritables -_lois écrites_’ or, as we might say, statute law. (Esmein, _Histoire -du droit français_, 746 ff.; Viollet, _Histoire du droit français_, -142 ff.; Planiol, _Droit civil_, I. 12, 16). Then the Estates General -at Orleans in 1560 in effect demanded a general code: ‘Nous voulons -une foy, une loy, un roy’ said the prolocutor of the clergy. (Dareste, -_Hotman_, p. 20.) Both Du Moulin and Hotman recommended codification and -apparently thought that the task would not be difficult. (Viollet, _op. -cit._, p. 209; Dareste, _op. cit._, p. 21.) Then as to Germany:--‘An die -Klagen über die Verwirrung, in welche das Recht durch die scholastische -Wissenschaft gerathen ist, knüpft sich seit dem Anfange des 16. -Jahrhunderts regelmässig das Verlangen, der Kaiser möge als ein neuer -Justinian das gemeine Recht des Reichs zur Einfachheit und Klarheit -gesetzlich reformiren.… Das Verlangen nach einer Codification des -gemeinen Rechts zieht sich durch das ganze 16. Jahrhundert.’ (Stintzing, -_Geschichte der deutschen Rechtswissenschaft_, vol. I., pp. 58-9.) In -1532 after a prolonged effort the Empire actually came by a criminal -code, the so-called Carolina (Constitutio Carolina Criminalis; die -peinliche Halsgerichtsordnung Karls V.), but its operation was confined -by a clause which sanctioned the ever increasing particularism of the -various states by saving their ancient customs. (_Ibid._, pp. 621 ff.) -Within some of these states or ‘territories’ there was in the sixteenth -century a good deal of comprehensive legislation, amounting in some cases -to the publication of what we might call codes. A _Landrecht_ (to be -contrasted with _Reichsrecht_) was issued by the prince. His legislative -action was not always hampered by any assembly of Estates; he desired -uniformity within his territory; and the jurists who fashioned his -law-book were free to romanize as much as they pleased. The Würtemberg -Landrecht of 1555 issued by Duke Christopher, a prince well known to -Queen Elizabeth, is one of the chief instances (Stintzing, _op. cit._, -vol. I., pp. 537 ff.; Schröder, _Deutsche Rechtsgeschichte_, ed. 3, -pp. 886 ff.). The transmission of the cry for codification from Hotman -to Leibnitz, and then to the enlightened monarchy of the eighteenth -century is traced by Baron, _Franz Hotmans Antitribonian_, Bern, 1888. -In Scotland also the Regent Morton (d. 1581) entertained a project -of codification. A commission was appointed to prepare a uniform and -compendious order of the laws. It seems to be a question among Scotch -lawyers how far the book known as _Balfour’s Practicks_ represents the -work of the commissioners. See _Dict. Nat. Biog._, vol. XV., p. 317; vol. -III., p. 53. - -[Sidenote: _The expiration of the Year Books. Decline of law reports._] - -[49] The cessation of the Year Books in 1535 at the moment when the -Henrician Terror is at its height is dramatically appropriate. A great -deal, however, has yet to be done before the relevant facts will be fully -known. Mr C. C. Soule’s _Year-Book Bibliography_, printed in _Harvard -Law Review_, vol. XIV., p. 557, is of high importance. If by ‘the Year -Books’ we mean a series of books that have been printed, then the Year -Books become intermittent some time before they cease. The first eleven -years of Henry VIII are unrepresented, and there are gaps between years -14 and 18 and between 19 and 26. It remains to be seen whether there are -MSS. more complete than the printed series. Then we have on our hands the -question raised by what Plowden says in the Preface to his _Commentaries_ -touching the existence of official reporters. Plowden says that he began -to study the law in 30 Hen. VIII, and that he had heard say that in -ancient times there were four reporters paid by the king. His words make -it clear that the official reporters, if they ever existed, came to an -end some considerable time before 30 Hen. VIII. The question whether they -ever existed cannot be raised here. Mr Pike’s investigations have not, -so I think, tended to bear out the tale that Plowden had heard; and if -the king paid stipends to the reporters, some proof of this should be -forthcoming among the financial records. The evidence of Francis Bacon -is of later date and looks like a mere repetition of what Plowden said -(Bacon, _Amendment of the Law_; Spedding, _Life and Letters_, vol. V., p. -86). - -But, be all this as it may, the fact seems clear that the ancient -practice of law reporting passed through a grave crisis in the sixteenth -century. We know the reign of Edward IV and even that of Edward II better -than we know that of Edward VI. The zeal with which Tottell from 1553 -onwards was printing old reports makes the dearth of modern reports the -more apparent. Then Plowden expressly says that he reported ‘for my -private instruction only,’ and Dyer’s Reports (which comprise some cases -too early to have been reported by him) were posthumously published. The -total mass of matter from the first half of the century that we obtain -under the names of Broke, Benloe, Dalison, Keilwey, Moore and Anderson -is by no means large, and in many cases its quality will not bear -comparison with that of the Year Books of Edward IV. (J. W. Wallace, _The -Reporters_, ed. 4, Boston, 1882, is an invaluable guide; see also V. V. -Veeder, _The English Reports_, in _Harvard Law Review_, vol. XV., p. 1.) - -[Sidenote: _Burke on law reports._] - -[50] Burke, _Report from Committee appointed to inspect the Lords’ -Journals_: ‘To give judgment privately is to put an end to reports; and -to put an end to reports is to put an end to the law of England.’ - -[Sidenote: _The Students’ petition in 1547. Incroachment of the civil -law. Civilians as judges. Common law and the Pilgrimage of Grace._] - -[51] _Acts of the Privy Council_, 1547-1550, pp. 48-50. Petition of -divers students of the common laws to the Lord Protector and the -Privy Council: ‘Pleasith it your honorable Lordships to call to your -remembrance that whereas the Imperial Crowne of this realme of Inglande -and the hole estate of the same have been alwayes from the beginning a -Reame Imperial, having a lawe of itself called the Commen Lawes of the -realme of Inglande, by which Lawe the Kinges of the same have as Imperial -Governours thereof ruled and governed the people and subjectes in suche -sorte as the like thereof hath nat been seen in any other.… So it is, -if it like your good Lordships, that now of late this Commen Lawes of -this realme, partely by Injunctions, aswel before verdictes, jugementes -and execucions as after, and partly by writtes of Sub Pena issuing owte -of the Kinges Courte of Chauncery, hath nat been only stayed of their -directe course, but also many times altrid and violated by reason of -Decrees made in the saide Courte of Chauncery, most grounded upon the -lawe civile and apon matter depending in the conscience and discrecion -of the hearers thereof, who being Civilians and nat lerned in the Comen -Lawes, setting aside the saide Commen Lawes, determyne the waighty causes -of this realme according either to the saide Lawe Civile or to their -owne conscience; which Lawe Civile is to the subjectes of this realme -unknowne, and they nat bounden ne inheritable to the same lawe, and -which Jugementes and Decrees grownded apon conscience ar nat grounded ne -made apon any rule certeine or lawe written.… And for a more amplyfyeng -and inlarging of the jurisdiction of the saide Courte of Chauncery and -derogacion of the saide Comen Lawes there is of late a Commission made -contrary to the saide Commen Lawes unto certaine persones, the more part -whereof be Civilians nat learned in the saide Lawes of this realme, -autorising them to heare and determyne all matters and cawses exhibited -into the saide Courte of Chauncery, by occasion whereof the matters there -do daily more and more increase, insomuch as very fewe matters be now -depending at the Comen Lawes.… And by reason thereof there hath of late -growne such a discourage unto the studentes of the saide Commen Lawes, -and the said Commen Lawes have been of late so little estemed and had in -experience, that fewe have or do regarde to take paynes of the profownde -and sincere knolege of the same Lawe, by reason whereof there ar now very -few, and it is to be doubted that within fewe yeares there shall nat be -sufficient of lerned men within this realme to serve the king in that -facultie. It therfore may please your honorable Lordships to make suche -speady reformacion in the premisses as unto your Lordships shall seem -moste mete and convenient.’ - -This petition led to the disgrace and punishment of the chancellor, the -Earl of Southampton (Wriothesley), for having issued a commission without -warrant and without consulting his fellow-executors of King Henry’s -will. With Somerset’s motives for thrusting Southampton aside we are -not concerned. (See Pollard, _England under the Protector Somerset_, pp. -31-33.) That he had any desire to protect the common lawyers we must not -assume; but the petition itself deserves attention. The commissioners -to whom Southampton had delegated judicial powers were Robert Southwell -(master of the rolls), John Tregonwell, John Oliver, and Anthony -Bellasyse (masters of chancery). Tregonwell, Oliver and Bellasyse were -all doctors of the civil law (_Dict. Nat. Biog._). - -In 1536 during the Pilgrimage of Grace one of the demands of the catholic -insurgents was ‘that the common laws may have place as was used at -the beginning of the reign and that no injunctions be granted unless -the matter has been determined in chancery.’ This comes at the end of -a long reactionary programme, which desires the restoration of the -monasteries, of the papal supremacy and so forth: also the repeal of the -statute ‘That no man shall not will his lands’ [Statute of Uses]. The -heretical bishops [Cranmer and his like] are to be burnt; Cromwell is -‘to have condign punishment.’ Also ‘a man is to be saved by his book,’ -_i.e._ there is to be no infringement of the benefit of clergy. The -heresies to be suppressed are those of ‘Luther, Wyclif, Husse, Malangton, -Elicampadus [Oecolampadius], Bucerus, Confessa Germaniae [Augsburg -Confession], Apolugia Malanctons, the works of Tyndall, of Barnys, of -Marshall, Raskell [Rastell, the printer of law books], Seynt Germayne -[author of Doctor and Student] and such other heresies of Anibaptist.’ -As I understand the protest against injunctions, it means that the -chancery may interfere with an action at common law, only if that action -is opening a question already decided in the chancery. It will be seen -that in 1536 the cause of ‘the common laws’ finds itself in very queer -company: illiterate, monkish and papistical company, which apparently has -made a man of ‘Anibaptist.’ (For this important manifesto, see _Letters -and Papers, Henry VIII._, vol. XI., pp. 506-507.) - -[Sidenote: _Elbow-room in the courts of law._] - -[52] Stow, _Annals_, ed. 1615, p. 631: ‘This yeere (1557) in Michaelmas -terme men might have seene in Westminster hall at the Kinges bench barre -not two men of law before the iustices; there was but one named Fostar, -who looked about and had nothing to doe, the iudges looking about them. -In the common place [Court of Common Pleas] no moe sergeants but one, -which was sergeant Bouloise [Bendlowes?], who looked about him, there was -elbow roome enough, which made the lawyers complaine of their iniuries -in that terme.’ In 1536 John Rastell the lawyer and printer of law books -complains to Cromwell that in both capacities he is in a bad way: he used -to print from two to three hundred reams every year but now prints not a -hundred reams in two years; he used to make forty marks a year by the law -and now does not make forty shillings (Ellis, _Original Letters_, Ser. -III., vol. II., p. 309). On such stories as these little stress is laid; -but until the judicial records of the Tudor reigns are statistically -examined, scraps of information may be useful. - -[Sidenote: _Examination by civilians in criminal cases._] - -[53] For an instance see the examination of a servant of the Abbot of -Sawley by Drs Layton, Legh and Petre (_Letters and Papers, Henry VIII._, -vol. XII., pt. 1, p. 231). - -[Sidenote: _The doctors of law and the Peasants’ War._] - -[54] As to the evil done to the peasants in Germany by the Reception -of Roman law, see Egelhaaf, _Deutsche Geschichte_ (_Zeitalter -der Reformation_), vol. I., pp. 544 ff.; Lamprecht, _Deutsche -Geschichte_, vol. V., pp. 99 ff. Dr Brunner (_Grundzüge der deutschen -Rechtsgeschichte_, 1901, p. 216) has lately said that Roman jurisprudence -‘auch wenn sie nicht geradezu bauernfeindlich war, doch kein Verständnis -besass für die Mannigfaltigkeit der bäuerlichen Besitzformen des -deutschen Rechtes.’ One of the revolutionary programmes proposed an -exclusion of all doctors of civil or canon law from the courts and -councils of the princes. See Egelhaaf, _op. cit._, pp. 499, 598. The -following is a pretty little tale:--‘So geschah es wirklich einmal zu -Frauenfeld im Thurgau, wo die Schöffen einen Doctor aus Constanz, der -sich für die Entscheidung eines Erbschaftsstreites auf Bartolus und -Baldus berufen wollte, zur Thüre hinauswarfen mit den Worten: “Hört ihr, -Doctor, wir Eidgenossen fragen nicht nach dem Bartele und Baldele. Wir -haben sonderbare Landbräuche und Rechte. Naus mit euch, Doctor, naus mit -euch!” Und habe, heisst es in dem Berichte weiter, der gute Doctor müssen -abtreten, und sie Amtleute haben sich einer Urtel verglichen, den Doctor -wieder eingefordert und ein Urtel geben wider den Bartele und Baldele -und wider den Doctor von Constanz.’ (Janssen, _Geschichte des deutschen -Volkes_, vol. I., p. 490.) It is a serious question what would have -become of our English copyholders if in the sixteenth century Roman law -had been received. The practical jurisprudence of this age seems to have -been kinder to the French than to the German peasant; perhaps because it -was less Roman in France than in Germany. See E. Levasseur in Lavisse -et Rambaud, _Histoire générale_, vol. IV., p. 188: ‘Des jurisconsultes -commencèrent à considérer l’inféodation comme une aliénation et le colon -censitaire comme le véritable propriétaire de la terre sur laquelle le -seigneur n’aurait possédé qu’un droit _éminent_.’ The true Romanist, I -take it, can know but one _dominium_, and is likely to give that one to -the lord. - -[Sidenote: _England and Germany. The Reception in Scotland._] - -[55] As regards Germany, the theoretical continuance of the Roman empire -is not to be forgotten, but its influence on the practical Reception of -Roman law may be overrated. In the age of the Reception Roman law came to -the aid, not of imperialism, but of particularism. Then it is true that -English law was inoculated in the thirteenth century when Bracton copied -from Azo of Bologna. The effect of this is well stated by Dr Brunner -in the inaugural address delivered by him as rector of the University -of Berlin (_Der Antheil des deutschen Rechtes an der Entwicklung der -Universitäten_, Berlin, 1896, p. 15): ‘In England und Frankreich, wo -die Aufnahme römischer Rechtsgedanken früher erfolgte, hat diese nach -Art einer prophylactischen Impfung gewirkt und das mit ihnen gesättigte -nationale Recht widerstandsfähig gemacht gegen zerstörende Infectionen.’ -As to the Roman law in Bracton, I may be allowed to refer to _Bracton -and Azo_, Selden Society, 1895: in the introduction to that volume I -have ventured to controvert some sentences that were written by Sir -H. Maine. Bracton became important for a second time in the sixteenth -century when (1569) his book was printed, for it helped Coke to arrange -his ideas, as any one may see who looks at the margin of Coke’s books. -The medieval chancery has often been accused of romanizing. Its procedure -was suggested by a summary procedure that had been devised by decretists -and legists: the general aim of that scheme was the utmost simplicity and -rapidity. (Contrast this summary procedure as revealed by _Select Cases -in Chancery_, ed. Baildon, and _Select Cases in the Court of Requests_, -ed. Leadam, with the solemn procedure of the civil law exemplified by -_Select Cases in the Court of Admiralty_, ed. Marsden: these three -books are published by the Selden Society.) On the other hand, no proof -has been given that in the middle age the chancery introduced any -substantive law of Roman origin. At a later time when it began to steal -work (suits for legacies and the like) from the ecclesiastical courts, it -naturally borrowed the rules by which those matters had theretofore been -governed. - -A full history of the Reception in Scotland seems to be a desideratum. -But see Goudy, _Fate of Roman Law_ (Inaugural Lecture), 1894; also J. M. -Irvine, _Roman Law_ in _Green’s Encyclopædia of the Law of Scotland_. -Whether at any time the Reception in Scotland ran the length that it ran -in Germany may be doubted; but the influence exercised by English example -since 1603 would deserve the historian’s consideration. Even if this -influence went no further than the establishment of the habit of finding -‘authority’ in decided cases, it would be of great importance. Where such -a habit is established in practice and sanctioned by theory, any return -to the pure text, such as that which was preached in Germany by ‘the -historical school,’ would be impossible. Also it may be suggested that -the Roman law which played upon the law of Scotland in the seventeenth -and eighteenth centuries was not always very Roman, but was strongly -dashed with ‘Natural Law.’ For instance, if in Scotland the firm of -partners is a ‘legal person,’ this is not due to the influence of Roman -law as it is now understood by famous expositors, or as it was understood -in the middle ages. Also (to take another example) it seems impossible -to get the Scotch ‘trust’ out of Roman law by any fair process. The -suggestion that it is ‘a contract made up of the two nominate contracts -of deposit and mandate’ seems a desperate effort to romanize what is not -Roman. - -[Sidenote: _The persistence of Lombard law._] - -[56] Pertile, _Storia del diritto italiano_, ed. 2, vol. II. (2), p. -69: ‘Laonde può dirsi che l’abrogazione definitiva ed espressa della -legislazione longobardica nel regno di Napoli non abbia avuto luogo se -non al principio del nostro secolo, sotto Giuseppe Bonaparte, al momento -in cui vennero publicati colà i codici francesi.’ On p. 65 will be found -some of the opprobrious phrases that the civilians applied to Lombard -law: ‘nec meretur ius Lombardorum lex appellari sed faex’: ‘non sine -ratione dominus Andreas de Isernia vocat leges illas ius asininum.’ - -[Sidenote: _French law in the universities._] - -[57] Esmein, _Histoire du droit français_, ed. 2, p. 757: ‘C’est -seulement en 1679 que l’enseignement du droit français reçut une place -bien modeste dans les universités.’ Viollet, _Histoire du droit civil -français_, p. 217: ‘Lorsqu’en 1679, Louis XIV. érigea à la faculté -de Paris une chaire de droit français et une chaire de droit romain, -le premier professeur de droit français, Fr. de Launay, commenta les -_Institutes_ de Loisel, qui prirent ainsi une situation quasi-officielle -à côté des _Institutes_ de Justinien.’ Brissaud, _Histoire du droit -français_, p. 237: ‘Le latin avait été jusque-là la langue de l’école. Le -premier professeur en droit français à Paris, de Launay, fit son cours en -langue française.’ - -[Sidenote: _German law in the universities._] - -[58] Siegel, _Deutsche Rechtsgeschichte_, ed. 3, p. 152: ‘Den ersten -und zugleich entscheidenden Schritt in dieser Richtung that Georg -Beyer, welcher… zunächst durch einen Zufall veranlasst wurde, an der -Wittenberger Universität, wohin er als Pandektist berufen worden war, -1707 eine Vorlesung über das _ius germanicum_ anzukündigen und zu halten.’ - -[Sidenote: _Professorships in America._] - -[59] Thayer, _The Teaching of English Law at Universities_ in _Harvard -Law Review_, vol. IX., p. 171: ‘Blackstone’s example was immediately -followed here.… In 1779 … a chair of law was founded in Virginia -at William and Mary College … and in the same year Isaac Royall of -Massachusetts, then a resident in London, made his will, giving property -to Harvard College for establishing there that professorship of law which -still bears his name.’ The Royall professorship was actually founded in -1815 (_Officers and Graduates of Harvard_, 1900, p. 24). At Cambridge -(England) the Downing professorship was founded in 1800. - -[Sidenote: _The Inns of Court._] - -[60] See _Records of the Honorable Society of Lincoln’s Inn_, 1896 ff.; -_Calendar of the Records of the Inner Temple_, 1896. The records of -Gray’s Inn are, so I understand, to be published. See also Philip A. -Smith, _History of Education for the English Bar_, 1860; Joseph Walton, -_Early History of Legal Studies in England_, 1900, read at a meeting -of the American Bar Association in 1899. In foreign countries there -were gilds or fraternities of lawyers. Thus in Paris the _avocats_ -and _procureurs_ about the middle of the fourteenth century formed a -fraternity of St Nicholas: ‘dont le chef porte le bâton ou bannière -(de là le nom de bâtonnier)’: Brissaud, _Histoire du droit français_, -p. 898. But, though a certain care for the education of apprentices -was a natural function of the medieval craft-gild, I cannot find that -elsewhere than in England fraternities of legal practitioners took upon -themselves to educate students and to give what in effect were degrees, -and degrees which admitted to practice in the courts. R. Delachenal, -_Histoire des avocats au parlement de Paris_ (Paris, 1885), says that, -though not proved, it is probable that already in the fourteenth and -fifteenth centuries the _avocat_ had to be either _licencié en lois_ -or _licencié en décret_: in other words, a legal degree given by an -university was necessary for the intending practitioner. As regards the -England of the same age two interesting questions might be asked. Was -there any considerable number of doctors or bachelors of law who were not -clergymen? Had the English judge or the English barrister usually been at -an university? I am inclined to think that a negative answer should be -given to the first question and perhaps to the second also. Apparently -Littleton (to take one example) is not claimed by Oxford or Cambridge. - -[Sidenote: _Sir T. Smith and the Inns of Court._] - -[61] Smith, _Inaugural Oration_, MS. Baker, XXXVII. 409 (Camb. Univ. -Lib.): ‘… At vero nostrates, et Londinenses iurisconsulti, quibuscum -disputare, cum ruri sim et extra academiam, non illibenter soleo, qui -barbaras tantum et semigallicas nostras leges inspexerint, homines -ab omnibus suis humanioribus disciplinis et hac academiae nostrae -instructione semotissimi, etiam cum quid e philosophia, theologiave -depromptum in quaestione ponatur, Deus bone! quam apte, quamque explicate -singula resumunt, quanta cum facilitate et copia, quantaque cum gratia -et venustate, vel confirmant sua, vel refellunt aliena! Certe nec -dialecticae vim multum in eis desideres, nec eloquentiae splendorem. -Eorum oratio est Anglicana quidem, sed non sordida, non inquinata, non -trivialis, gravis nonnunquam et copiosa, saepe urbana et faceta, non -destituta similitudinum et exemplorum copia, lenis et aequabilis, et -pleno velut alveo fluens, nusquam impedita. Quae res tantam mihi eorum -hominum admirationem concitavit, ut aliquandiu vehementer optarim, -secessionem aliquam ab ista academia facere et Londinum concedere, ut -eos in suis ipsis scholis ac circulis disputantes audirem, quod an sim -facturus aliquando, cum feriae longae, et quasi solenne iusticium, -nostris praelectionibus indicatur, haud equidem pro certo affirmaverim.’ - -[Sidenote: _Multiplication of English law books._] - -[62] Soule, _Year Book Bibliography_, in _Harvard Law Review_, vol. -XIV., p. 564: ‘In 1553 the field of Year-Book publication was entered by -Richard Tottell, who for thirty-eight years occupied it so fully as to -admit no rival. There are about 225 known editions of separate Years or -groups of Years which bear his imprint or can be surely attributed to -his press.… He is pre-eminently _the_ publisher of Year Books, and he -so completely put them ‘in print’ and so cheapened their price that he -evidently made them a popular and profitable literature.’ - -In 1550 an English lawyer’s library of printed books might apparently -have comprised (besides some Statutes and Year Books) Littleton’s -Tenures, The Old Tenures, Statham’s Abridgement, Fitzherbert’s -Abridgement, Liber Intrationum, The Old Natura Brevium, perhaps a -Registrum Brevium (if that book, printed in 1531, was published before -1553), Institutions or principal grounds etc. [1544], Carta feodi -simplicis, [Phaer’s] New book of presidentes, Diversite de courts, Novae -Narrationes, Articuli ad novas narrationes, Modus tenendi curiam baronis, -Modus tenendi unum hundredum, Fitzherbert’s Justice of the Peace, -Perkins’s Profitable Book, Britton, Doctor and Student. A great part -of what was put into print was of medieval origin and had been current -in manuscript. In 1600 the following might have been added: Glanvill, -Bracton, Fitzherbert’s Natura Brevium, Broke’s Abridgement, Broke’s New -Cases, Rastell’s Entries, Staundford’s Prerogative and Pleas of the -Crown, Crompton’s Justice of the Peace, Crompton’s Authority of Courts, -West’s Symbolæography, Theloall’s Digest, Smith’s Commonwealth, Lambard’s -Archaionomia and Eirenarcha, Fulbecke’s Direction or Preparative to the -Study of the Law [1600], Plowden’s Commentaries, Dyer’s Reports and the -first volume of Coke’s Reports [1600]. This represents a great advance. -Already Fulbecke in his curious book (which was reprinted as still useful -in 1829) attempts a review of English legal literature: a critical -estimate of Dyer, Plowden, Staundford, Perkins and other writers. -Lambard’s revelation of the Anglo-Saxon laws was not unimportant, for a -basis was thus laid for national boasts; and, but for the publication of -Glanvill, Bracton and Britton, the work that was done by Coke would have -been impossible. - -Were any books about Roman law printed in England before 1600, except a -few of Gentili’s? - -[Sidenote: _The Court of Requests._] - -[63] See Mr Leadam’s Introduction to _Select Pleas in the Court of -Requests_ (Seld. Soc.) and _Dict. Nat. Biog._ s.n. Caesar, Sir Julius. - -[Sidenote: _Cowell’s ‘Interpreter.’_] - -[64] See Gardiner, _Hist. England_, 1603-1642, vol. II., pp. 66-68; E. -C. Clark, _Cambridge Legal Studies_, pp. 74-75. Cowell’s _Institutiones_ -(less known than the _Interpreter_) are an attempt, ‘in the main very -able,’ so Dr Clark says, to bring English materials under Roman rubrics. -It is a book which might have played a part in a Reception; but it came -too late. - -[Sidenote: _Roman-Dutch law._] - -[65] There can now be few, if any, countries outside the British Empire -in which a rule of law is enforced because it is (or is deemed to be) a -rule of Roman law. See _Galliers_ v. _Rycroft_ [1901] A. C. 130, for a -recent discussion before the Judicial Committee (on an appeal from Natal) -of the import of a passage in the Digest. Are there many lands in which -so much respect would be paid by a tribunal and for practical purposes to -a response of Papinian’s? I think not. - -[Sidenote: _First Charter of Virginia._] - -[66] Macdonald, _Select Charters_, 1899, p. 1: ‘The first draft of the -charter … was probably drawn by Sir John Popham … but the final form was -the work of Sir Edward Coke, attorney general, and Sir John Dodderidge, -solicitor general.’ - -[Sidenote: _First Assembly in Virginia._] - -[67] Doyle, _The English in America_, vol. I., p. 211: ‘On the 30th of -July, 1619, the first Assembly met in the little church at Jamestown. A -full report of its proceedings still exists in the English Record Office -(_Colonial Papers_, July 30, 1619).’ An abstract is printed in _Calendar -of State Papers, Colonial_, 1574-1660, p. 22. - -[Sidenote: _The tenure of Maryland._] - -[68] Charter of Maryland, 1632, Macdonald, _Select Charters_, p. 53. In -1620 the grant to the Council of New England (_Ibid._, p. 23) referred -to the manor of East Greenwich and reserved by way of rent a fifth part -of the ore of gold and silver. The grant of Carolina (_Ibid._, p. 121) -reserved a rent of twenty marks and a fourth of the ore. The grant of -New Netherlands to the duke of York (_Ibid._, p. 136) reserved a rent of -forty beaver skins, if demanded. The grant of Pennsylvania to William -Penn speaks of the Castle of Windsor and reserves two beaver skins and -a fifth of the gold and silver ore (_Ibid._, p. 185). Georgia was holden -as of the honour of Hampton Court in the county of Middlesex at a rent of -four shillings for every hundred acres that should be settled (_Ibid._, -p. 242). - -[Sidenote: _The tenure of Bombay._] - -[69] Charter of 1669 printed among _Charters granted to the East India -Company_ (no date or publisher’s name): ‘to be holden of us, our heirs -and successors as of the manor of East Greenwich in the county of Kent, -in free and common soccage and not in capite nor by knight’s service, -yielding and paying therefor to us, our heirs and successors at the -Custom House, London, the rent or sum of ten pounds of lawful money of -England in gold on the thirtieth day of September yearly for ever.’ - -[Sidenote: _The tenure of Prince Rupert’s land._] - -[70] Charter of 1670 incorporating the Hudson’s Bay Company, printed by -Beckles Wilson, _The Great Company_, vol. II., pp. 318, 327: ‘yielding -and paying yearly to us … two elks and two black beavers, whensoever and -as often as we our heirs and successors shall happen to enter into the -said countries, territories and regions hereby granted.’ - -[Sidenote: _Kent and Blackstone._] - -[71] Thayer, _The Teaching of English Law at Universities_ in _Harvard -Law Review_, vol. IX., p. 170: ‘“I retired to a country village,” -Chancellor Kent tells us in speaking of the breaking up of Yale College -by the war, where he was a student in 1779, “and, finding Blackstone’s -Commentaries, I read the four volumes.… The work inspired me at the -age of fifteen with awe, and I fondly determined to be a lawyer.” … -“There is abundant evidence,” if we may rely upon the authority of Dr -Hammond, whose language I quote, “of the immediate absorption of nearly -twenty-five hundred copies of the Commentaries in the thirteen colonies -before the Declaration of Independence.”’ - -[Sidenote: _Marshall and Blackstone._] - -[72] Thayer, _John Marshall_, 1901, p. 6: ‘When Marshall was about -eighteen years old he began to study Blackstone.… He seems to have found -a copy of Blackstone in his father’s house.… Just now the first American -edition was out (Philadelphia, 1771-2), in which the list of subscribers, -headed by the name of “John Adams, barrister at law, Boston,” had also -that of “Captain Thomas Marshall, Clerk of Dunmore County.”’ - -[Sidenote: _Roman law in America._] - -[73] It may be interesting to notice that in 1856, and perhaps even -in 1871, Sir H. Maine believed that the Code of Louisiana (‘of all -republications of Roman law the one which appears to us the clearest, the -fullest, the most philosophical and the best adapted to the exigencies -of modern society’) had a grand destiny before it in the United States. -‘Now it is this code, and not the Common Law of England which the newest -American States are taking for the substratum of their laws.… The -Roman law is, therefore, fast becoming the lingua franca of universal -jurisprudence.’ (Maine, _Roman Law and Legal Education_, 1856, reprinted -in _Village Communities_, ed. 3, pp. 360-1.) Nowadays this hope or -fear of a Reception of Roman law in the United States seems, so I am -given to understand, quite unfounded. See e.g. J. F. Dillon, _Laws and -Jurisprudence of England and America_, 1894, p. 155: ‘the common law [in -distinction from the Roman or civil law] is the basis of the laws of -every State and Territory of the Union, with comparatively unimportant -and gradually waning exceptions.’ - -[Sidenote: _Ihering and the litigious Englishman._] - -[74] Ihering, _Der Kampf um’s Recht_, ed. 10, pp. 45, 69: ‘Ich habe -bereits oben das Beispiel des kampflustigen Engländers angeführt, und ich -kann hier nur wiederholen, was ich dort gesagt: in dem Gulden, um den er -hartnäckig streitet, steckt die politische Entwicklung Englands. Einem -Volke, bei dem es allgemeine Uebung ist, dass Jeder auch im Kleinen und -Kleinsten sein Recht tapfer behauptet, wird Niemand wagen, das Höchste, -was es hat, zu entreissen, und es ist daher kein Zufall, dass dasselbe -Volk des Alterthums, welches im Innern die höchste politische Entwicklung -und nach Aussen hin die grösste Kraftentfaltung aufzuweisen hat, das -römische, zugleich das ausgebildetste Privatrecht besass.’ - -[Sidenote: _Codes in English Colonies._] - -[75] Thus in particular Queensland in 1899 enacted a criminal code of -707 sections. See _Journal of the Society of Comparative Legislation_, -New Ser., vol. VI., pp. 555-560: ‘The precedents utilised in framing the -Code were the [in England abortive] draft English codes of 1879 and 1880, -the Italian Penal Code of 1888, and the Penal Code of the State of New -York.’ See also Ilbert, _Legislative Methods_, p. 155. - -[Sidenote: _German Civil Code._] - -[76] Some information in English about the new German code will be -found in articles by Mr E. Schuster, _Law Quarterly Review_, vol. -XII., p. 17, and _Journal of the Society of Comparative Legislation_, -Old Series, vol. I., p. 191. Despite the careful exclusion of almost -all words derived from the Latin (except _Hypothek_, which happens to -be Greek), the new law book may look Roman to an Englishman; but then -it does not look Roman to Germans. The following sentences are taken -from a speech delivered in the Reichstag (Mugdan, _Materialien zum -bürgerlichen Gesetzbuch_, vol. I., pp. 876-7): ‘In dieser Beziehung ist -vor Allem der Vorwurf gegen den Entwurf erhoben, er enthalte materiell -kein deutsches Recht.… Selten ist ein Vorwurf unbegründeter gewesen.… -Das Sachenrecht ist von A bis Z durchaus deutsches Recht.… Was dann den -Begriff des Besitzes betrifft, von der ganzen römischen Besitztheorie ist -nichts übrig geblieben.… Der allgemeine Theil des Obligationenrechtes -ist natürlich römischen Ursprunges.… Kommen wir aber zu den einzelnen -speziellen Rechtsgeschäften, so treffen wir auch da sofort wieder -deutsches Recht.… Auch das Familienrecht ist durchaus deutschrechtlich.… -Dann ist das Erbrecht durch und durch deutschrechtlichen Ursprunges.…’ -The supposition that codification means romanization is baseless; it may -mean deromanization. But the great lesson to be learnt by Englishmen from -the German Code is that a democratically elected assembly, which is for -many purposes divided into bitterly contending fractions, can be induced -to show a wonderful forbearance when uniformity of law is to be attained. - -[Sidenote: _Unity of law._] - -[77] Molinaeus (Charles Du Moulin), _Oratio de concordia et unione -consuetudinum Franciae_, in _Opera_ (1681), vol. II., p. 691: ‘Mihi -quoque videtur nihil aptius, nihil efficacius ad plures provincias -sub eodem imperio retinendas et fovendas, nec fortius nec honestius -vinculum quam communio et conformitas eorundem morum legumve utilium et -aequabilium.’ - -[Sidenote: _The school at Harvard._] - -[78] The name of Harvard is here mentioned without prejudice to the just -claims of any other American university; but the _Harvard Law Review_, -edited by a committee of students, is a journal of which any school might -be proud. - -CAMBRIDGE: PRINTED BY J. & C. F. 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You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: English Law and the Renaissance - The Rede Lecture for 1901 - -Author: Frederic William Maitland - -Release Date: February 27, 2017 [EBook #54251] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK ENGLISH LAW AND THE RENAISSANCE *** - - - - -Produced by Clarity and the Online Distributed Proofreading -Team at http://www.pgdp.net (This file was produced from -images generously made available by The Internet -Archive/Canadian Libraries) - - - - - - -</pre> - - -<h1>English Law and the -Renaissance</h1> - -<p class="titlepage">London: C. J. CLAY <span class="smcapuc">AND</span> SONS,<br /> -CAMBRIDGE UNIVERSITY PRESS WAREHOUSE,<br /> -AVE MARIA LANE,<br /> -<span class="smaller">AND</span><br /> -<span class="smcap">STEVENS AND SONS, Ltd</span>,<br /> -<span class="smaller">119 AND 120,</span> CHANCERY LANE.</p> - -<div class="figcenter" style="width: 150px;"> -<img src="images/c-u-p.jpg" width="150" height="150" alt="Crest of Cambridge University Press" /> -</div> - -<p class="center">Glasgow: 50, WELLINGTON STREET.<br /> -Leipzig: F. A. BROCKHAUS.<br /> -New York: THE MACMILLAN COMPANY.<br /> -Bombay: E. SEYMOUR HALE.</p> - -<p class="titlepage smaller">[<i>All Rights reserved.</i>]</p> - -<hr /> - -<p class="titlepage larger">English Law and the<br /> -Renaissance</p> - -<p class="center larger">(<i>The Rede Lecture for 1901</i>)</p> - -<p class="titlepage">with some Notes</p> - -<p class="titlepage">by<br /> -<span class="larger">Frederic William Maitland, <span class="smaller">LL.D., Hon. D.C.L.,</span></span><br /> -of Lincoln’s Inn, Barrister-at-Law,</p> - -<p class="center">Downing Professor of the Laws of England<br /> -in the University of Cambridge</p> - -<p class="titlepage"><span class="smcap">Cambridge</span><br /> -at the University Press<br /> -1901</p> - -<p class="titlepage smaller">Cambridge:<br /> -PRINTED BY J. AND C. F. CLAY,<br /> -AT THE UNIVERSITY PRESS.</p> - -<p class="titlepage smaller">PRINTED IN GREAT BRITAIN</p> - -<hr /> - -<p class="center">TO<br /> -<span class="larger">JAMES BRADLEY THAYER, LL.D.</span><br /> -PROFESSOR OF LAW<br /> -<span class="smaller">AT</span><br /> -HARVARD UNIVERSITY.</p> - -<hr /> - -<p><span class="pagenum"><a name="Page_1" id="Page_1">[1]</a></span></p> - -<h2>ENGLISH LAW -AND THE RENAISSANCE.</h2> - -<p class="noindent"><i>Mr Vice-Chancellor and Fellow-Students</i>:</p> - -<p>Were we to recall to life the good Sir -Robert Rede who endowed lecturers in this -university, we might reasonably hope that he -would approve and admire the fruit that in -these last years has been borne by his liberality. -And then, as in private duty or private interest -bound, I would have him speak thus: ‘Yes, it -is marvellous and more than marvellous this -triumph of the sciences that my modest rent-charge -stimulates you annually to record; nor do -I wonder less at what my lecturers have said of -humane letters and the fine arts, of the history -of all times and of my time, of Erasmus whom<span class="pagenum"><a name="Page_2" id="Page_2">[2]</a></span> -I remember, and that age of the Renaissance -(as you call it) in which (so you say) I lived. -But there is one matter, one science (for such -we accounted it) of which they seem to have -said little or nothing; and it happens to be a -matter, a science, in which I used to take some -interest and which I endeavoured to teach. You -have not, I hope, forgotten that I was not only -an English judge, but, what is more, a reader -in English law<a href="#note1" id="anchor1" class="fnanchor">[1]</a>.’</p> - -<p>Six years ago a great master of history, -whose untimely death we are deploring, worked -the establishment of the Rede lectures into -the picture that he drew for us of The Early -Renaissance in England<a href="#note2" id="anchor2" class="fnanchor">[2]</a>. He brought Rede’s -name into contact with the names of Fisher and -More. That, no doubt, is the right environment, -and this pious founder’s care for the humanities, -for logic and for philosophy natural and moral -was a memorable sign of the times. Nevertheless -the fact remains that, had it not been for -his last will and testament, we should hardly<span class="pagenum"><a name="Page_3" id="Page_3">[3]</a></span> -have known Sir Robert except as an English -lawyer who throve so well in his profession that -he became Chief Justice of the Common Bench. -And the rest of the acts of Robert Rede—we -might say—and the arguments that he urged -and the judgments that he pronounced, are they -not written in queer old French in the Year -Books of Henry VII and Henry VIII? Those -ancient law reports are not a place in which -we look for humanism or the spirit of the -Renaissance: rather we look there for an -amazingly continuous persistence and development -of medieval doctrine.</p> - -<p>Perhaps we should hardly believe if we were -told for the first time that in the reign of -James I a man who was the contemporary of -Shakespeare and Bacon, a very able man too -and a learned, who left his mark deep in English -history, said, not by way of paradox but in sober -earnest, said repeatedly and advisedly, that a -certain thoroughly medieval book written in -decadent colonial French was ‘the most perfect<span class="pagenum"><a name="Page_4" id="Page_4">[4]</a></span> -and absolute work that ever was written in -any human science<a href="#note3" id="anchor3" class="fnanchor">[3]</a>.’ Yet this was what Sir -Edward Coke said of a small treatise written -by Sir Thomas Littleton, who, though he did -not die until 1481, was assuredly no child of -the Renaissance.</p> - -<p>I know that the names of Coke and Littleton -when in conjunction are fearsome names or tiresome, -and in common honesty I am bound to -say that if you stay here you will be wearied. -Still I feel that what is at fault is not my theme. -A lecturer worthy of that theme would—I am -sure of it—be able to convince you that there is -some human interest, and especially an interest -for English-speaking mankind, in a question -which Coke’s words suggest:—How was it and -why was it that in an age when old creeds of -many kinds were crumbling and all knowledge -was being transfigured, in an age which had -revolted against its predecessor and was fully -conscious of the revolt, one body of doctrine -and a body that concerns us all remained so<span class="pagenum"><a name="Page_5" id="Page_5">[5]</a></span> -intact that Coke could promulgate this prodigious -sentence and challenge the whole world -to contradict it<a href="#note4" id="anchor4" class="fnanchor">[4]</a>? I have not the power to tell -and you to-day have not the time to hear that -story as it should be told. A brief outline of -what might be said is all that will be possible -and more than will be tolerable.</p> - -<p>Robert Rede died in January, 1519. Let us -remember for a moment where we stand at that -date. The Emperor Maximilian also was dying. -Henry VIII was reigning in England, Francis I -in France, Charles I in Spain, Leo X at Rome. -But come we to jurisprudence. Is it beneath -the historic muse to notice that young Mr More, -the judge’s son, had lately lectured at Lincoln’s -Inn<a href="#note5" id="anchor5" class="fnanchor">[5]</a>? Perhaps so. At all events for a while -we will speak of more resonant exploits. We -could hardly (so I learn at second-hand) fix a -better date than that of Rede’s death for the -second new birth of Roman law. More’s friend -Erasmus had turned his back on England and -was by this time in correspondence with two<span class="pagenum"><a name="Page_6" id="Page_6">[6]</a></span> -accomplished jurists, the Italian Andrea Alciato -and the German Ulrich Zäsi. They and the -French scholar Guillaume Budé were publishing -books which mark the beginning of a new era<a href="#note6" id="anchor6" class="fnanchor">[6]</a>. -Humanism was renovating Roman law. The -medieval commentators, the Balduses and Bartoluses, -the people whom Hutten and Rabelais<a href="#note7" id="anchor7" class="fnanchor">[7]</a> -could deride, were in like case with Peter -Lombard, Duns Scotus and other men of the -night. Back to the texts! was the cry, and let -the light of literature and history play upon -them<a href="#note8" id="anchor8" class="fnanchor">[8]</a>. The great Frenchmen who were to do -the main part of the work and to make the -school of Bourges illustrious were still young or -unborn; Cujas was born in 1522; but already -the advanced guard was on the march and the -flourish of trumpets might be heard<a href="#note9" id="anchor9" class="fnanchor">[9]</a>. And -then in 1520—well, we know what happened -in 1520 at Wittenberg, but perhaps we do not -often remember that when the German friar -ceremoniously and contumeliously committed -to the flames some venerated law-books—this,<span class="pagenum"><a name="Page_7" id="Page_7">[7]</a></span> -if an event in the history of religion, was also -an event in the history of jurisprudence. A -current of new life was thrilling through one -Corpus Juris<a href="#note10" id="anchor10" class="fnanchor">[10]</a>; the other had been sore stricken, -and, if it escaped from violent death, might -perish yet more miserably of a disease that -becomes dangerous at the moment when it is -discovered.</p> - -<p>A few years afterwards an enlightened young -humanist, of high rank and marked ability, a -man who might live to be pope of Rome or -might live to be king of England, was saying -much evil of the sort of law that Rede had -administered and taught; was saying that a -wise prince would banish this barbaric stuff -and receive in its stead the civil law of the -Romans. Such, so we learn from one of his -friends, was the talk of Reginald Pole, and a -little knowledge of what was happening in -foreign countries is enough to teach us that -such talk deserves attention<a href="#note11" id="anchor11" class="fnanchor">[11]</a>.</p> - -<p>This was the time when Roman law was<span class="pagenum"><a name="Page_8" id="Page_8">[8]</a></span> -driving German law out of Germany or forcing -it to conceal itself in humble forms and obscure -corners<a href="#note12" id="anchor12" class="fnanchor">[12]</a>. If this was the age of the Renaissance -and the age of the Reformation, it was also the -age of the ‘Reception.’ I need not say that this -Reception—the reception of Roman law—plays -a large part in modern versions of German -history, and by no means only in such as are -written by lawyers. I need not say that it -has been judged from many different points of -view, that it has been connected by some with -political, by others with religious and by yet -others with economic changes. Nor need I say -that of late years few writers have had a hearty -good word for the Reception. We have all of -us been nationalists of late. Cosmopolitanism -can afford to await its turn<a href="#note13" id="anchor13" class="fnanchor">[13]</a>.</p> - -<p>Then we observe that not long after Pole -had been advocating a Reception, his cousin -King Henry, whose word was law supreme in -church and state, prohibited the academic study -of one great and ancient body of law—the canon<span class="pagenum"><a name="Page_9" id="Page_9">[9]</a></span> -law<a href="#note14" id="anchor14" class="fnanchor">[14]</a>—and encouraged the study of another—the -civil law—by the foundation of professorships -at Oxford and Cambridge. We observe -also that his choice of a man to fill the chair -at Cambridge fell on one who was eminently -qualified to represent in his own person that -triad of the three R’s—Renaissance, Reformation -and Reception. We know Professor Thomas -Smith as a humanist, an elegant scholar with -advanced opinions about the pronunciation of -Greek. We know the Reverend Thomas Smith -as a decided, if cautious, protestant whose doings -are of some interest to those who study the -changeful history of ecclesiastical affairs. Then -we know Dr Thomas Smith as a doctor in law -of the university of Padua, for with praiseworthy -zeal when he was appointed professor at -Cambridge he journeyed to the fountain-head -for his Roman law and his legal degree<a href="#note15" id="anchor15" class="fnanchor">[15]</a>. Also -he visited those French universities whence a -new jurisprudence was beginning to spread. -He returned to speak to us in two inaugural<span class="pagenum"><a name="Page_10" id="Page_10">[10]</a></span> -lectures of this new jurisprudence: to speak -with enthusiasm of Alciatus and Zasius<a href="#note16" id="anchor16" class="fnanchor">[16]</a>: to -speak hopefully of the future that lay before -this conquering science—the future that lay -before it in an England fortunately ruled by a -pious, wise, learned and munificent Prince. Then -in Edward VI’s day Thomas Smith as a Master -of Requests was doing justice in a court whose -procedure was described as being ‘altogether -according to the process of summary causes in -the civil law’ and at that moment this Court of -Requests and other courts with a like procedure -seemed to have time, reason and popularity -upon their side<a href="#note17" id="anchor17" class="fnanchor">[17]</a>. Altogether, the Rev. Prof. -Dr Sir Thomas Smith, Knt., M.P., Dean of -Carlisle, Provost of Eton, Ambassador to the -Court of France and Secretary of State to -Queen Elizabeth was a man of mark in an -age of great events. Had some of those events -been other than they were, we might now be -saying of him that he played a prominent part -in Renaissance, Reformation and Reception,<span class="pagenum"><a name="Page_11" id="Page_11">[11]</a></span> -and a part characteristic of that liberal and -rational university of which he was professor, -public orator and vice-chancellor<a href="#note18" id="anchor18" class="fnanchor">[18]</a>.</p> - -<p>Some German historians, as you are aware, -have tried to find or to fashion links that will -in some direct and obvious manner connect the -Reformation and the Reception. In one popular -version of the tale protestantism finds a congenial -ally in the individualism and capitalism of the -pagan Digest<a href="#note19" id="anchor19" class="fnanchor">[19]</a>. In truth I take it that the story -is complex. Many currents and cross-currents -were flowing in that turbid age. It so happens -that in this country we can connect with the -heresiarchal name of Wyclif a proposal for the -introduction of English law, as a substitute for -Roman law, into the schools of Oxford and -Cambridge<a href="#note20" id="anchor20" class="fnanchor">[20]</a>. On the other hand, the desire for -a practical Reception of the civil law is ascribed -to the future cardinal, who in his last days -reconciled England for a moment, not with the -Rome of the Digest, but with the Rome of the -Decretals. And by the way we may notice<span class="pagenum"><a name="Page_12" id="Page_12">[12]</a></span> -that when the cardinal was here upon his -reconciliatory errand he had for a while as his -legal adviser one of the most learned lawyers of -that age, the Spaniard Antonio Agustin. But -we in England take little notice of this famous -man, who, so foreigners assure us now-a-days, -began the historical study of the canon law and -knew more about the false Isidore than it was -comfortable for him to know<a href="#note21" id="anchor21" class="fnanchor">[21]</a>. Our Dr Smith -was protestant enough; but his Oxford colleague -Dr John Story showed zeal in the -cremation of protestants, helped Alva (so it is -said) to establish the Inquisition in the Netherlands, -was hanged as a traitor at Tyburn in -1571 and beatified as a martyr at Rome in -1886. Blessed John Story was zealous; but -his permanent contribution to the jurisprudence -of his native land was (so far as I am aware) -an early precedent for the imprisonment of a -disorderly member by the House of Commons, -and a man may be disorderly without being a -jurist<a href="#note22" id="anchor22" class="fnanchor">[22]</a>. Ulrich Zäsi went part of the way with<span class="pagenum"><a name="Page_13" id="Page_13">[13]</a></span> -Luther; but then stayed behind with Erasmus<a href="#note23" id="anchor23" class="fnanchor">[23]</a>. -He had once compared the work that he was -doing for the Corpus Juris with the work that -Luther was doing for the Bible<a href="#note24" id="anchor24" class="fnanchor">[24]</a>. The great -Frenchmen answered the religious question in -different ways. One said ‘That has nothing to -do with the praetor’s edict.’ His rivals charged -him with a triple apostasy<a href="#note25" id="anchor25" class="fnanchor">[25]</a>. Three or four of -them were stout huguenots, and we must not -forget that Calvin and Beza had both been at -Bourges and had both studied the civil law. -Melanchthon also was a warm admirer of Roman -jurisprudence<a href="#note26" id="anchor26" class="fnanchor">[26]</a>. It is reported that Elizabeth -invited Francis Hotman to Oxford<a href="#note27" id="anchor27" class="fnanchor">[27]</a>. He was -protestant enough, and fierce enough to exchange -letters with a tiger<a href="#note28" id="anchor28" class="fnanchor">[28]</a>. He is best known -to English law-students as the man who spoke -light words of Littleton and thus attracted -Coke’s thunderbolt<a href="#note29" id="anchor29" class="fnanchor">[29]</a>; but if he thought badly -of Littleton, he thought badly of Tribonian -also, and would have been the last man to -preach a Reception. Professor Alberigo Gentili<span class="pagenum"><a name="Page_14" id="Page_14">[14]</a></span> -of Oxford, he too was protestant enough and -could rail at the canonists by the hour; but -then he as an Italian had a bitter feud with -the French humanizers, and stood up for the -medieval gloss<a href="#note30" id="anchor30" class="fnanchor">[30]</a>.</p> - -<p>Plainly the story is not simple and we must -hurry past it. Still the perplexity of detail -should not obscure the broad truth that there -was pleasant reading in the Byzantine Code for -a king who wished to be monarch in church as -well as state: pleasanter reading than could -be found in our ancient English law-books. -Surely Erastianism is a bad name for the theory -that King Henry approved: Marsilianism seems -better, but Byzantinism seems best<a href="#note31" id="anchor31" class="fnanchor">[31]</a>. A time -had come when, medieval spectacles being discarded, -men could see with the naked eye what -stood in the Code and Novels of Constantinople. -In 1558 on the eve of an explosive Reformation -‘the Protestants of Scotland,’ craving ‘remedy -against the tyranny of the estate ecclesiastical,’ -demanded that the controversy should be judged<span class="pagenum"><a name="Page_15" id="Page_15">[15]</a></span> -by the New Testament, the ancient fathers ‘and -the godly approved laws of Justinian the emperor<a href="#note32" id="anchor32" class="fnanchor">[32]</a>.’ -University-bred jurists, even such as -came from an oldish school, were very serviceable -to King Henry in the days of the great -divorce case and the subsequent quarrel with -the papacy. Tunstall, Gardiner, Bonner, Sampson -and Clerk, to say nothing of the Leghs and -Laytons, were doctors of law and took their fees -in bishoprics and deaneries<a href="#note33" id="anchor33" class="fnanchor">[33]</a>. Certainly they -were more conspicuous and probably they were -much abler men than those who were sitting in -the courts of the common law. With the one -exception of Anthony Fitzherbert, the judges -of Henry’s reign are not prominent in our legal -history, and we have little reason for attributing -deep knowledge of any sort of law to such -chancellors as Audley, Wriothesley and Rich. -I doubt our common lawyers easily accommodated -themselves to ecclesiastical changes. -Some years after Elizabeth’s accession the -number of barristers who were known to the<span class="pagenum"><a name="Page_16" id="Page_16">[16]</a></span> -government as ‘papists’ was surprisingly large -and it included the great Plowden<a href="#note34" id="anchor34" class="fnanchor">[34]</a>. But we -must go back to our main theme.</p> - -<p>A Reception there was not to be, nor dare -I say that a Reception was what our Regius -Professor or his royal patron desired. As to -Smith himself, it is fairly evident that some -time afterwards, when he had resigned his chair -and was Elizabeth’s ambassador at the French -court, he was well content to contrast the public -law of England with that of ‘France, Italy, -Spain, Germany and all other countries which’ -to use his words ‘do follow the civil law of the -Romans compiled by Justinian into his Pandects -and Code<a href="#note35" id="anchor35" class="fnanchor">[35]</a>.’ The little treatise on the Commonwealth -of England which he wrote at Toulouse -in 1565—a remarkable feat for he had no English -books at hand<a href="#note36" id="anchor36" class="fnanchor">[36]</a>—became a classic in the next -century, and certainly did not underrate those -traditional, medieval, Germanic and parliamentary -elements which were still to be found in -English life and law under the fifth and last of<span class="pagenum"><a name="Page_17" id="Page_17">[17]</a></span> -the Tudors. Nevertheless I think that a well-equipped -lecturer might persuade a leisurely -audience to perceive that in the second quarter -of the sixteenth century the continuity of English -legal history was seriously threatened<a href="#note37" id="anchor37" class="fnanchor">[37]</a>.</p> - -<p>Unquestionably our medieval law was open -to humanistic attacks. It was couched partly -in bad Latin, partly in worse French. For the -business Latin of the middle age there is much -to be said. It is a pleasant picture that which -we have of Thomas More puzzling the omniscient -foreigner by the question ‘An averia -carucae capta in withernamio sunt irreplegibilia<a href="#note38" id="anchor38" class="fnanchor">[38]</a>.’ -He asked a practical question in the -only Latin in which that question could have -been asked without distortion. Smith’s acute -glance saw that <i>withernamium</i> must have something -to do with the German <i lang="de">wiedernehmen</i>; -for among his other pursuits our professor had -interested himself in the study of English -words<a href="#note39" id="anchor39" class="fnanchor">[39]</a>. But this business Latin was a pure -and elegant language when compared with what<span class="pagenum"><a name="Page_18" id="Page_18">[18]</a></span> -served our lawyers as French. Pole and Smith -might well call it barbarous; that it was fast -becoming English was its one redeeming feature. -You are likely to know what I must not call the -classical passage: it comes from the seventeenth -century. In all the <cite lang="la">Epistolae Obscurorum Virorum</cite> -there is nothing better than the report -which tells how one of Sir Robert Rede’s -successors was assaulted by a prisoner ‘que -puis son condemnation ject un brickbat a le dit -justice que narrowly mist<a href="#note40" id="anchor40" class="fnanchor">[40]</a>.’ It is as instructive -as it is surprising that this jargon should have -been written in a country where Frenchmen had -long been regarded as hereditary foes. This -prepares us for the remark that taught law is -tough law. But when ‘Dunce’ had been set in -Bocardo (and it was a doctor of the civil law -who set him there<a href="#note41" id="anchor41" class="fnanchor">[41]</a>), why should the old law -books be spared? They also were barbarous; -they also were sufficiently papistical.</p> - -<p>Turning to a more serious aspect of affairs, -it would not I think be difficult to show that<span class="pagenum"><a name="Page_19" id="Page_19">[19]</a></span> -the pathway for a Reception was prepared. -Not difficult but perhaps wearisome. At this -point it is impossible for us to forget that the -year 1485, if important to students of English -history for other reasons, is lamentably important -for this reason, that there Dr Stubbs laid -down his pen. In his power of marshalling -legal details so as to bring to view some living -principle or some phase of national development -he has had no rival and no second among -Englishmen. Howbeit, we may think of the -subjected church and the humbled baronage, of -the parliament which exists to register the royal -edicts, of the English <cite lang="la">Lex Regia</cite> which gives the -force of statute to the king’s proclamations<a href="#note42" id="anchor42" class="fnanchor">[42]</a>, of -the undeniable faults of the common law, of its -dilatory methods, of bribed and perjured juries, -of the new courts which grow out of the King’s -Council and adopt a summary procedure devised -by legists and decretists. Might not the Council -and the Star Chamber and the Court of Requests—courts -not tied and bound by ancient<span class="pagenum"><a name="Page_20" id="Page_20">[20]</a></span> -formalism,—do the romanizing work that was -done in Germany by the Imperial Chamber -Court, the <cite lang="de">Reichskammergericht</cite><a href="#note43" id="anchor43" class="fnanchor">[43]</a>? This was the -time when King Henry’s nephew James V was -establishing a new court in Scotland, a College -of Justice, and Scotland was to be the scene of -a Reception<a href="#note44" id="anchor44" class="fnanchor">[44]</a>.</p> - -<p>It seems fairly certain that, besides all that -he effected, Henry had at times large projects -in his mind: a project for a great college of -law (possibly a College of Justice in the Scotch -sense), a project for the reformation of the Inns -of Court, which happily were not rich enough to -deserve dissolution<a href="#note45" id="anchor45" class="fnanchor">[45]</a>, also perhaps a project for -a civil code as well as the better known project -for a code ecclesiastical. In Edward VI’s day -our Regius and German Professor of Divinity, -Dr Martin Butzer, had heard, so it seems, that -such a scheme had been taken in hand, and he -moved in circles that were well informed. He -urged the young Josiah to go forward in the -good work; he denounced the barbarism of<span class="pagenum"><a name="Page_21" id="Page_21">[21]</a></span> -English law and (to use Bentham’s word) its -incognoscibility<a href="#note46" id="anchor46" class="fnanchor">[46]</a>. The new ecclesiastical code, -as is generally known, was never enacted; but -we know equally well that the draft is in print. -Its admired Latinity is ascribed to Prof. Smith’s -immediate successor, Dr Walter Haddon. I -take it that now-a-days few English clergymen -wish that they were living—or should I not say -dying?—under Dr Haddon’s pretty phrases<a href="#note47" id="anchor47" class="fnanchor">[47]</a>. -Codification was in the air. Both in France -and in Germany the cry for a new Justinian was -being raised, and perhaps we may say that only -because a new Justinian was not forthcoming, -men endeavoured to make the best that they -could of the old<a href="#note48" id="anchor48" class="fnanchor">[48]</a>. How bad that best would -be Francis Hotman foretold.</p> - -<p>And then we see that in 1535, the year in -which More was done to death, the Year Books -come to an end: in other words, the great -stream of law reports that has been flowing for -near two centuries and a half, ever since the -days of Edward I, becomes discontinuous and<span class="pagenum"><a name="Page_22" id="Page_22">[22]</a></span> -then runs dry. The exact significance of this -ominous event has never yet been duly explored; -but ominous it surely is<a href="#note49" id="anchor49" class="fnanchor">[49]</a>. Some words -that once fell from Edmund Burke occur to us: -‘To put an end to reports is to put an end to -the law of England<a href="#note50" id="anchor50" class="fnanchor">[50]</a>.’ Then in 1547 just after -King Henry’s death a wail went up from ‘divers -students of the common laws.’ The common -laws, they said, were being set aside in favour -of ‘the law civil’ insomuch that the old courts -had hardly any business<a href="#note51" id="anchor51" class="fnanchor">[51]</a>. Ten years later, at -the end of Mary’s reign, we read that the judges -had nothing to do but ‘to look about them,’ and -that for the few practitioners in Westminster -Hall there was ‘elbow room enough<a href="#note52" id="anchor52" class="fnanchor">[52]</a>.’ In -criminal causes that were of any political importance -an examination by two or three doctors -of the civil law threatened to become a normal -part of our procedure<a href="#note53" id="anchor53" class="fnanchor">[53]</a>. In short, I am persuaded -that in the middle years of the sixteenth -century and of the Tudor age the life of our -ancient law was by no means lusty.</p> - -<p><span class="pagenum"><a name="Page_23" id="Page_23">[23]</a></span></p> - -<p>And now we may ask what opposing force, -what conservative principle was there in England? -National character, the genius of a -people, is a wonder-working spirit which stands -at the beck and call of every historian. But -before we invoke it on the present occasion we -might prudently ask our books whether in the -sixteenth century the bulk of our German -cousins inherited an innate bias towards what -they would have called a Welsh jurisprudence. -There seems to be plentiful evidence that the -learned <i lang="la">doctores iuris</i> who counselled the German -princes and obtained seats in the courts were -cordially detested by the multitude. In modern -times they often have to bear much blame for -that terrible revolt which we know as the -Peasants’ War<a href="#note54" id="anchor54" class="fnanchor">[54]</a>. No doubt there were many -differences between England and Germany, between -England and France, between England -and Scotland<a href="#note55" id="anchor55" class="fnanchor">[55]</a>. Let us notice one difference -which, if I am not mistaken, marked off England -from the rest of the world. Medieval England -had schools of national law.</p> - -<p><span class="pagenum"><a name="Page_24" id="Page_24">[24]</a></span></p> - -<p>The importance of certain law schools will -be readily conceded, even to one who is in -some sort officially bound to believe that law -schools may be important. A history of civilization -would be miserably imperfect if it took -no account of the first new birth of Roman law -in the Bologna of Irnerius. Indeed there are -who think that no later movement,—not the -Renaissance, not the Reformation—draws a -stronger line across the annals of mankind than -that which is drawn about the year 1100 when -a human science won a place beside theology. -I suppose that the importance of the school of -Bourges would also be conceded. It may be -worth our while to remark that the school of -Bologna had a precursor in the school of Pavia, -and that the law which was the main subject of -study in the Pavia of the eleventh century was -not Roman law but Lombard law: a body of -barbaric statutes that stood on one level with -the Anglo-Saxon laws of the same age. This -I say, not in order that I may remind you what -sort of law it was that Archbishop Lanfranc<span class="pagenum"><a name="Page_25" id="Page_25">[25]</a></span> -studied when as a young man he was a shining -light in the school of Pavia, but because this -body of Lombard law, having once become the -subject of systematic study, showed a remarkable -vitality in its struggle with Roman jurisprudence. -Those Italian doctors of the middle age who -claimed for their science the fealty of all mankind -might have been forced to admit that all -was not well at home. They might call this -Lombard law <i lang="la">ius asininum</i> and the law of brute -beasts, but it lingered on, and indeed I read -that it was not utterly driven from the kingdom -of Naples until Joseph Bonaparte published the -French code. Law schools make tough law<a href="#note56" id="anchor56" class="fnanchor">[56]</a>.</p> - -<p>Very rarely do we see elsewhere the academic -teaching of any law that is not Roman: imperially -or papally Roman. As a matter of course -the universities had the two legal faculties, -unless, as at Paris, the Pope excluded the legists -from an ecclesiastical preserve. The voice of -John Wyclif pleading that English law was the -law that should be taught in English universities<span class="pagenum"><a name="Page_26" id="Page_26">[26]</a></span> -was a voice that for centuries cried in the -wilderness. It was 1679 before French law obtained -admission into the French universities<a href="#note57" id="anchor57" class="fnanchor">[57]</a>. -It was 1709 before Georg Beyer, a pandectist -at Wittenberg, set a precedent for lectures on -German law in a German university<a href="#note58" id="anchor58" class="fnanchor">[58]</a>. It was -1758 before Blackstone began his ever famous -course at Oxford. The chair that I cannot -fill was not established until the transatlantic -Cambridge was setting an example to her elderly -mother<a href="#note59" id="anchor59" class="fnanchor">[59]</a>. But then, throughout the later middle -age English law had been academically taught.</p> - -<p>No English institutions are more distinctively -English than the Inns of Court; of none -is the origin more obscure. We are only now -coming into possession of the documents whence -their history must be gathered, and apparently -we shall never know much of their first days<a href="#note60" id="anchor60" class="fnanchor">[60]</a>. -Unchartered, unprivileged, unendowed, without -remembered founders, these groups of lawyers -formed themselves and in course of time evolved -a scheme of legal education: an academic scheme<span class="pagenum"><a name="Page_27" id="Page_27">[27]</a></span> -of the medieval sort, oral and disputatious. For -good and ill that was a big achievement: a big -achievement in the history of some undiscovered -continents. We may well doubt whether aught -else could have saved English law in the age -of the Renaissance. What is distinctive of -medieval England is not parliament, for we may -everywhere see assemblies of Estates, nor trial -by jury, for this was but slowly suppressed in -France. But the Inns of Court and the Year -Books that were read therein, we shall hardly -find their like elsewhere. At all events let -us notice that where Littleton and Fortescue -lectured, there Robert Rede lectures, Thomas -More lectures, Edward Coke lectures, Francis -Bacon lectures, and highly technical were the -lectures that Francis Bacon gave. Now it would, -so I think, be difficult to conceive any scheme -better suited to harden and toughen a traditional -body of law than one which, while books were -still uncommon, compelled every lawyer to take -part in legal education and every distinguished<span class="pagenum"><a name="Page_28" id="Page_28">[28]</a></span> -lawyer to read public lectures. That was what -I meant when I made bold to say that Robert -Rede was not only an English judge but ‘what -is more’ a reader in English law.</p> - -<p><i lang="la">Deus bone!</i> exclaimed Professor Smith in his -inaugural lecture, and what excited the learned -doctor to this outcry was the skill in disputation -shown by the students of English law in their -schools at London. He was endeavouring to -persuade his hearers that in many ways the -study of law would improve their minds. If, -he urged, these young men, cut off as they are -from all the humanities, can reason thus over -their ‘barbaric and semi-gallic laws,’ what might -not you, you cultivated scholars do if you -studied the Digest and Alciatus and Zasius? -And then the professor expressed a hope that -he might be able to spend his vacation in the -Inns of Court<a href="#note61" id="anchor61" class="fnanchor">[61]</a>. His heart was in the right -place: in a school of living law. Even for the -purposes of purely scientific observation the live -dog may be better than the dead lion.</p> - -<p><span class="pagenum"><a name="Page_29" id="Page_29">[29]</a></span></p> - -<p>When the middle of the century is past the -signs that English law has a new lease of life -become many. The medieval books poured -from the press, new books were written, the -decisions of the courts were more diligently -reported, the lawyers were boasting of the independence -and extreme antiquity of their system<a href="#note62" id="anchor62" class="fnanchor">[62]</a>. -We were having a little Renaissance of our -own: or a gothic revival if you please. The -Court of Requests in which Prof. Smith and -Prof. Haddon had done justice was being tried -for its life. Its official defender was, we observe, -Italian by blood and Parisian by degree: -Dr Adelmare, known to Englishmen as Sir -Julius Caesar<a href="#note63" id="anchor63" class="fnanchor">[63]</a>. That wonderful Edward Coke -was loose. The medieval tradition was more -than safe in his hands. You may think it -pleasant to turn from this masterful, masterless -man to his great rival. It is not very safe to -say what Thomas More did not know, less safe -to say what was unknown to Francis Bacon, but -I cannot discover that either of these scholars,<span class="pagenum"><a name="Page_30" id="Page_30">[30]</a></span> -these philosophers, these statesmen, these law -reformers, these schemers of ideal republics, -these chancellors of the realm, these law lecturers, -had more than a bowing acquaintance -with Roman law.</p> - -<p>If Reginald Pole’s dream had come true, if -there had been a Reception—well, I have not -the power to guess and you have not the time -to hear what would have happened; but I think -that we should have had to rewrite a great deal -of history. For example, in the seventeenth -century there might have been a struggle between -king and parliament, but it would hardly -have been that struggle for the medieval, the -Lancastrian, constitution in which Coke and -Selden and Prynne and other ardent searchers -of mouldering records won their right to be -known to school-boys. In 1610 when the conflict -was growing warm a book was burnt by the -common hangman: it was written by an able -man in whom Cambridge should take some -pride, Dr Cowell, our Regius Professor, and<span class="pagenum"><a name="Page_31" id="Page_31">[31]</a></span> -seemed to confirm the suspicion that Roman -law and absolute monarchy went hand in hand<a href="#note64" id="anchor64" class="fnanchor">[64]</a>.</p> - -<p>The profit and loss account would be a long -affair. I must make no attempt to state it. If -there was the danger of barbarism and stupidity -on the one side, there was the danger of pedantry -on the other: the pedantry that endeavours to -appropriate the law of another race and galvanizes -a dead Corpus Juris into a semblance of -life. Since the first of January 1900 the attempt -to administer law out of Justinian’s books has -been abandoned in Germany. The so-called -‘Roman-Dutch’ law of certain outlying parts -of the British Empire now stands alone<a href="#note65" id="anchor65" class="fnanchor">[65]</a>, and -few, I imagine, would foretell for it a brilliant -future, unless it passes into the hand of the -codifier and frankly ceases to be nominally -Roman. Let us observe, however, that much -had been at stake in the little England of the -sixteenth century.</p> - -<p>In 1606 Coke was settling the first charter of -Virginia<a href="#note66" id="anchor66" class="fnanchor">[66]</a>. In 1619 elected ‘burgesses’ from the<span class="pagenum"><a name="Page_32" id="Page_32">[32]</a></span> -various ‘hundreds’ of Virginia were assembling, -and the first-born child of the mother of parliaments -saw the light<a href="#note67" id="anchor67" class="fnanchor">[67]</a>. Maryland was granted -to Lord Baltimore with view of frankpledge and -all that to view of frankpledge doth belong, to -have and to hold in free and common socage as -of the castle of Windsor in the county of Berks, -yielding yearly therefor two Indian arrows of -those parts on the Tuesday in Easter week<a href="#note68" id="anchor68" class="fnanchor">[68]</a>. -The port and island of Bombay in one hemisphere<a href="#note69" id="anchor69" class="fnanchor">[69]</a>, -and in another Prince Rupert’s land -stretching no one knew how far into the frozen -north were detached members of the manor of -East Greenwich in the county of Kent<a href="#note70" id="anchor70" class="fnanchor">[70]</a>. Nearly -twenty-five hundred copies of Blackstone’s Commentaries -were absorbed by the colonies on the -Atlantic seaboard before they declared their -independence. James Kent, aged fifteen, found -a copy, and (to use his own words) was inspired -with awe<a href="#note71" id="anchor71" class="fnanchor">[71]</a>; John Marshall found a copy in his -father’s library<a href="#note72" id="anchor72" class="fnanchor">[72]</a>; and the common law went -straight to the Pacific<a href="#note73" id="anchor73" class="fnanchor">[73]</a>.</p> - -<p><span class="pagenum"><a name="Page_33" id="Page_33">[33]</a></span></p> - -<p>A hundred legislatures—little more or less—are -now building on that foundation: on the -rock that was not submerged. We will not say -this boastfully. Far from it. Standing at the -beginning of a century and in the first year of -Edward VII, thinking of the wide lands which -call him king, thinking of our complex and -loosely-knit British Commonwealth, we cannot -look into the future without serious misgivings. -If unity of law—such unity as there has been—disappears, -much else that we treasure will disappear -also, and (to speak frankly) unity of law -is precarious. The power of the parliament of -the United Kingdom to legislate for the colonies -is fast receding into the ghostly company of legal -fictions. Men of our race have been litigious; -the great Ihering admired our litigiousness<a href="#note74" id="anchor74" class="fnanchor">[74]</a>; it -is one of our more amiable traits; but it seems -to me idle to believe that distant parts of the -earth will supply a tribunal at Westminster -with enough work to secure uniformity. The -so-called common law of one colony will swerve<span class="pagenum"><a name="Page_34" id="Page_34">[34]</a></span> -from that of another, and both from that of -England. Some colonies will have codes<a href="#note75" id="anchor75" class="fnanchor">[75]</a>. If -English lawyers do not read Australian reports -(and they cannot read everything), Australian -lawyers will not much longer read English -reports.</p> - -<p>Still the case is not yet desperate. Heroic -things can be done by a nation which means to -do them: as witness the mighty effort of science -and forbearance which in our own time has -unified the law of Germany, and, having handed -over the Corpus Juris to the historians, has in -some sort undone the work of the Reception<a href="#note76" id="anchor76" class="fnanchor">[76]</a>. -Some venerable bodies may understand the -needs of the time, or, if I may borrow a famous -phrase, ‘the vocation of our age for jurisprudence -and legislation.’ Our parliament may -endeavour to put out work which will be a -model for the British world. It can still set -an example where it can no longer dictate, and -at least it might clear away the rubbish that -collects round every body of law. To make<span class="pagenum"><a name="Page_35" id="Page_35">[35]</a></span> -law that is worthy of acceptance by free communities -that are not bound to accept it, this -would be no mean ambition. <i lang="la">Nihil aptius, nihil -efficacius ad plures provincias sub uno imperio -retinendas et fovendas</i><a href="#note77" id="anchor77" class="fnanchor">[77]</a>. But it is hardly to -parliament that our hopes must turn in the -first instance. Certain ancient and honourable -societies, proud of a past that is unique in the -history of the world, may become fully conscious -of the heavy weight of responsibility that was -assumed when English law schools saved, but -isolated, English law in the days of the Reception. -In that case, the glory of Bourges, the -glory of Bologna, the glory of Harvard may -yet be theirs<a href="#note78" id="anchor78" class="fnanchor">[78]</a>.</p> - -<p><span class="pagenum"><a name="Page_36" id="Page_36">[36]</a></span></p> - -<hr /> - -<p><span class="pagenum"><a name="Page_37" id="Page_37">[37]</a></span></p> - -<div class="notes"> - -<h2>NOTES.</h2> - -<div class="sidenote">Sir R. Rede’s lectures.</div> - -<p id="note1"><span class="label"><a href="#anchor1">[1]</a></span> Robert Rede was Autumn Reader at Lincoln’s -Inn in 1481, Lent Reader in 1485: <cite>Black Book of -Lincoln’s Inn</cite>, vol. 1., pp. 71, 83.</p> - -<p id="note2"><span class="label"><a href="#anchor2">[2]</a></span> Creighton, <cite>The Early Renaissance in England</cite>, -Camb. 1895.</p> - -<p id="note3"><span class="label"><a href="#anchor3">[3]</a></span> Coke, Introductory Letter to Part 10 of the -<cite>Reports</cite>, and Preface to <cite>First Institute</cite>.</p> - -<div class="sidenote">English law and the Renaissance.</div> - -<p id="note4"><span class="label"><a href="#anchor4">[4]</a></span> Sohm, <cite lang="de">Fränkisches Recht und römisches Recht</cite>, -1880, p. 77: ‘<span lang="de">… Thatsachen in Folge deren die Renaissance -an dem englischen Rechtsleben so gut -wie spurlos vorüberging.</span>’</p> - -<div class="sidenote">Sir T. More’s lectures.</div> - -<p id="note5"><span class="label"><a href="#anchor5">[5]</a></span> Thomas More was Autumn Reader in 1511, -Lent Reader in 1515: <cite>Black Book of Lincoln’s Inn</cite>, -vol. 1., pp. 162, 175.</p> - -<div class="sidenote">The Renaissance and Roman law.</div> - -<p id="note6"><span class="label"><a href="#anchor6">[6]</a></span> Étienne Pasquier, <cite lang="fr">Recherches sur la France</cite>, -<span class="smcapuc">IX</span>. 39 (cited by Dareste, <cite lang="fr">Essai sur François -Hotman</cite>, Paris, 1850, p. 17): ‘<span lang="fr">Le siècle de l’an -mil cinq cens nous apporta une nouvelle estude de -loix qui fut de faire un mariage de l’estude du -droict avec les lettres humaines par un langage<span class="pagenum"><a name="Page_38" id="Page_38">[38]</a></span> -latin net et poly: et trouve trois premiers entrepreneurs -de ce nouveau mesnage, Guillaume Budé, -François, enfant de Paris, André Alciat, Italien -Milanois, Udaric Zaze, Alleman né en la ville de -Constance.</span>’ Savigny, <cite lang="de">Geschichte des römischen -Rechts im Mittelalter</cite>, ed. 2, vol. <span class="smcapuc">VI</span>., p. 421: ‘<span lang="de">Nun -sind es zwei Männer, welche als Stifter und Führer -der neuen Schule angesehen werden können: Alciat -in Italien und Frankreich, Zasius in Deutschland. -Die ersten Schriften, worin die neue Methode -erscheint, fallen in das zweite Decennium des -fünfzehnten [<i>corr.</i> sechzehnten] Jahrhunderts.</span>’</p> - -<div class="sidenote">Alciato and Zäsi.</div> - -<p>Andrea Alciato was born at Alzate near Milan -in 1492, studied at Pavia and Bologna, in 1518 was -called to teach at Avignon, went to Milan in 1520, -to Bourges in 1528, was afterwards at Pavia, -Bologna and Ferrara, died at Pavia in 1550 -(Pertile, <cite lang="it">Storia del diritto italiano</cite>, ed. 2, vol. <span class="smcapuc">II.</span> (2), -p. 428). Ulrich Zäsi was born in 1461, studied at -Tübingen and at Freiburg where he became town-clerk -and afterwards professor of law, died in 1535. -See Stintzing, <cite>Ulrich Zasius</cite>, Basel, 1857, where -(pp. 162-216) the intercourse between Erasmus, -Zäsi, Alciato and Budé is described. The early -Italian humanists had looked on jurisprudence -with disdain and disgust. See Geiger, <cite lang="de">Renaissance -und Humanismus</cite>, 1882, pp. 500-503; Voigt, <cite lang="de">Die -Wiederbelebung des classischen Alterthums</cite>, ed. 3, -vol. <span class="smcapuc">II.</span>, pp. 477-484. Gradually, so I understand, -philologians such as Budé (d. 1540) began to discover -that there was matter interesting to them in<span class="pagenum"><a name="Page_39" id="Page_39">[39]</a></span> -the Corpus Juris, and a few jurists turned towards -the new classical learning. See Tilley, <cite>Humanism -under Francis I.</cite>, in <cite>English Historical Review</cite>, -vol. <span class="smcapuc">XV.</span>, pp. 456 ff. In 1520 Zäsi, writing to -Alciato, said ‘All sciences have put off their dirty -clothes: only jurisprudence remains in her rags.’ -(Stintzing, <cite>Ulrich Zasius</cite>, p. 107.)</p> - -<div class="sidenote">Rabelais and the commentators.</div> - -<p id="note7"><span class="label"><a href="#anchor7">[7]</a></span> Rabelais, <cite>Pantagruel</cite>, liv. <span class="smcapuc">II.</span>, ch. <span class="smcapuc">X.</span>: ‘<span lang="fr">Sottes -et desraisonnables raisons et ineptes opinions de -Accurse, Balde, Bartole, de Castro, de Imola, Hippolytus, -Panorme, Bertachin, Alexander, Curtius et -ces autres vieux mastins, qui jamais n’entendirent -la moindre loy des Pandectes, et n’estoient que -gros veaulx de disme, ignorans de tout ce qu’est -necessaire à l’intelligence des loix. Car (comme -il est tout certain) ilz n’avoient cognoissance de -langue ny grecque, ny latine, mais seulement de -gothique et barbare.… Davantage, veu que les loix -sont extirpées du milieu de philosophie morale et -naturelle, comment l’entendront ces folz, qui ont -par Dieu moins estudié en philosophie que ma -mulle. Au regard des lettres d’humanité et cognoissance -des antiquités et histoires ilz en estoient -chargés comme un crapaud de plumes, et en usent -comme un crucifix d’un pifre, dont toutesfois les -droits sont tous pleins, et sans ce ne peuvent estre -entenduz.</span>’ W. F. Smith, <cite>Rabelais</cite>, vol. <span class="smcapuc">I.</span>, p. 257, -translates the last sentence thus: ‘With regard to -the cultivated literature and knowledge of antiquities -and history, they were as much provided with those<span class="pagenum"><a name="Page_40" id="Page_40">[40]</a></span> -faculties as is a toad with feathers and have as -much use for them as a drunken heretic has for a -crucifix.…’</p> - -<div class="sidenote">Back to the texts!</div> - -<p id="note8"><span class="label"><a href="#anchor8">[8]</a></span> Stintzing, <cite lang="de">Geschichte der deutschen Rechtswissenschaft</cite>, -vol. <span class="smcapuc">I.</span>, p. 96: ‘<span lang="de">Man wird sich bewusst, dass -nicht in der überlieferten Schulweisheit das Wesen -der Wissenschaft stecke; dass es auch hier gelte, -dem Rufe des Humanismus “zurück zu den Quellen!” -zu folgen.</span>’</p> - -<div class="sidenote">The French school.</div> - -<p id="note9"><span class="label"><a href="#anchor9">[9]</a></span> The greatest names appear to be those of -François Duaren or more correctly Le Douarin -(1509-1559), Jacques Cujas (1522-1590), Hugues -Doneau (Donellus, 1527-1592), François Baudouin -(Balduinus, 1520-1573), François Hotman (1524-1591), -Denis Godefroy (1549-1622), Jacques Godefroy -(1587-1652). Besides these there is Charles Du -Moulin (Molinaeus, 1500-1566) whose chief work, -however, was done upon French customary law, -and who in the study of Roman law represents a -conservative tradition. (Esmein, <cite lang="fr">Histoire du droit -français</cite>, ed. 2, p. 776.) Dareste (<cite lang="fr">Essai sur François -Hotman</cite>, p. 2) marks the five years 1546-1551 as -those in which ‘<span lang="fr">nos quatre grands docteurs du -seizième siècle</span>’ (Hotman, Baudouin, Cujas, Doneau) -entered on their careers.</p> - -<div class="sidenote">New life of the Corpus Juris.</div> - -<p id="note10"><span class="label"><a href="#anchor10">[10]</a></span> Viollet, <cite lang="fr">Droit civil français</cite>, p. 25: ‘<span lang="fr">C’est le -mouvement scientifique de la Renaissance qui, -semblable à un courant d’électricité, donne ainsi -au vieux droit romain une vie nouvelle. Son -autorité s’accroît par l’action d’une science, pleine<span class="pagenum"><a name="Page_41" id="Page_41">[41]</a></span> -de jeunesse et d’ardeur, d’une science qui, comme -toutes les autres branches de l’activité humaine, -s’épanouit et renaît.</span>’ Flach, in <cite lang="fr">Nouvelle revue -historique de droit</cite>, vol. <span class="smcapuc">VII.</span>, p. 222: ‘<span lang="fr">En France -Cujas porte à son apogée le renom de l’école -nouvelle. Quelle autre préoccupation cette école -pouvait-elle avoir que de faire revivre le véritable -droit de la Rome ancienne, celui que la pratique -avait touché de son souffle impur, celui qu’elle -avait corrompu?</span>’</p> - -<div class="sidenote">Reginald Pole and the Reception.</div> - -<p id="note11"><span class="label"><a href="#anchor11">[11]</a></span> <cite>Starkey’s England</cite>, Early English Text Society, -1878, pp. 192 ff.; and see <cite>Letters and Papers, -Henry VIII.</cite>, vol. <span class="smcapuc">VIII.</span>, pp. 81-84, and <cite>Ibid.</cite> vol. -<span class="smcapuc">XII.</span>, pt. 1, pp. xxxii-xxxiv. Thomas Starkey was -employed in the endeavour to win Reginald Pole -to King Henry’s side in the matter of the divorce -from Catherine and the consequent breach with -Rome. The negotiation failed, but Starkey took -the opportunity of laying before Henry a dialogue -which he (Starkey) had composed. The interlocutors -in this dialogue were Pole and the well-known -scholar Thomas Lupset, and Pole was -represented as expounding his opinions touching -political and ecclesiastical affairs. How far at all -points Starkey fairly represented Pole’s views may -be doubted. Still we have respectable evidence -that Pole had talked in the strain of the following -passage, and at any rate Starkey thought that in -King Henry’s eyes he was befriending Pole by -making him speak thus.</p> - -<p><span class="pagenum"><a name="Page_42" id="Page_42">[42]</a></span></p> - -<div class="sidenote">Defects of English law.</div> - -<p>‘Thys ys no dowte but that our law and ordur -thereof ys over-confuse. Hyt ys infynyte, and -without ordur or end. Ther ys no stabyl grounde -therin, nor sure stay; but euery one that can coloure -reson makyth a stope to the best law that ys before -tyme deuysyd. The suttylty of one sergeant schal -enerte [enerve?] and destroy al the jugementys -of many wyse men before tyme receyuyd. There -is no stabyl ground in our commyn law to leyne -vnto. The jugementys of yerys [<i>i.e.</i> the Year -Books] be infynyte and ful of much controuersy; -and, besyde that, of smal authoryte. The jugys -are not bounden, as I vnderstond, to folow them as -a rule, but aftur theyr owne lyberty they haue -authoryte to juge, accordyng as they are instructyd -by the sergeantys, and as the cyrcumstance of the -cause doth them moue. And thys makyth jugementys -and processe of our law to be wythout -end and infynyte; thys causyth sutys to be long -in decysyon. Therefor, to remedy thys mater -groundly, hyt were necessary, in our law, to vse -the same remedy that Justynyan dyd in the law of -the Romaynys, to bryng thys infynyte processe to -certayn endys, to cut away thys long lawys, and, -by the wysdome of some polytyke and wyse men, -instytute a few and bettur lawys and ordynancys. -The statutys of kyngys, also, be ouer-many, euen -as the constytutyonys of the emperorys were. -Wherefor I wold wysch that al thes lawys schold -be brought into some smal nombur, and to be -wryten also in our mother tong, or els put into the<span class="pagenum"><a name="Page_43" id="Page_43">[43]</a></span> -Latyn, to cause them that studye the cyuyle law of -our reame fyrst to begyn of the Latyn tong, wherin -they myght also afturward lerne many thyngys -to helpe thys professyon. Thys ys one thyng -necessary to the educatyon of the nobylyte, the -wych only I wold schold be admyttyd to the study -of thys law. Then they myght study also the lawys -of the Romaynys, where they schold see al causys -and controuersys decyded by rulys more conuenyent -to the ordur of nature then they be in -thys barbarouse tong and Old French, wych now -seruyth to no purpos els. Thys, Mastur Lvpset, ys -a grete blote in our pollycy, to see al our law and -commyn dyscyplyne wryten in thys barbarouse -langage, wych, aftur when the youth hath lernyd, -seruyth them to no purpos at al; and, besyde that, -to say the truth, many of the lawys themselfys be -also barbarouse and tyrannycal, as you haue before -hard. [Here follows an attack on primogeniture -and entail.]</p> - -<div class="sidenote">Reception of the civil law recommended.</div> - -<p>The wych al by thys one remedy -schold be amendyd and correct, yf we myght -induce the hedys of our cuntrey to admyt the -same: that ys, to receyue the cyuyle law of the -Romaynys, the wych ys now the commyn law -almost of al Chrystyan natyonys. The wych thyng -vndowtydly schold be occasyon of infynyte gudness -in the ordur of our reame, the wych I coud schow -you manyfestely, but the thyng hyt selfe ys so open -and playn, that hyt nedyth no declaratyon at al; -for who ys so blynd that seth not the grete schame -to our natyon, the grete infamy and rote that<span class="pagenum"><a name="Page_44" id="Page_44">[44]</a></span> -remeynyth in vs, to be gouernyd by the lawys -gyuen to vs of such a barbarouse natyon as the -Normannys be? Who ys so fer from rayson that -consyderyth not the tyranycal and barbarouse instytutionys, -infynyte ways left here among vs, -whych al schold be wypt away by the receyuyng -of thys wych we cal the veray cyuyle law; wych ys -vndowtydly the most auncyent and nobyl monument -of the Romaynys prudence and pollycy, the -wych be so wryte wyth such grauyte, that yf Nature -schold herselfe prescrybe partycular meanys wherby -mankynd schold obserue hyr lawys, I thynke -sche wold admyt the same: specyally, yf they were, -by a lytyl more wysedome, brought to a lytyl bettur -ordur and frame, wych myght be sone downe and -put in effect. And so ther aftur that, yf the nobylyte -were brought vp in thys lawys vndoubtydly -our cuntrey wold schortly be restoryd to as gud -cyuylyte as there ys in any other natyon; ye, and -peradventure much bettur also. For though thes -lawys wych I haue so praysyd be commyn among -them, yet, bycause the nobylyte ther commynly -dothe not exercyse them in the studys thereof, they -be al applyd to lucur and gayne, bycause the -popular men wych are borne in pouerty only doth -exercyse them for the most parte, wych ys a grete -ruyne of al gud ordur and cyuylyte. Wherefor, -Master Lvpset, yf we myght bryng thys ij. thyngys -to effecte—that ys to say, to haue the cyuyle law -of the Romaynys to be the commyn law here of -Englond with vs; and, secondary, that the nobylyte<span class="pagenum"><a name="Page_45" id="Page_45">[45]</a></span> -in theyr youth schold study commynly therin—I -thynk we schold not nede to seke partycular -remedys for such mysordurys as we haue notyd -before; for surely thys same publyke dyscyplyne -schold redresse them lyghtly; ye, and many other -mow, the wych we spake not yet of at al.’</p> - -<p>Lupset thereupon objects that, seeing we have so -many years been governed by our own law, it will -be hard to bring this reform to pass. Pole replies -that the goodness of a prince would bring it to pass -quickly: ‘the wych I pray God we may onys see.’</p> - -<div class="sidenote">Pole and the reform of the land laws.</div> - -<p>The Pole of the Dialogue wished to make the -power to entail lands a privilege of the nobility. -A project of this kind had been in the air: perhaps -in King Henry’s mind. See <cite>Letters and Papers, -Henry VIII.</cite>, vol. <span class="smcapuc">IV.</span>, pt. 2, p. 2693 (<span class="smcapuc">A.D.</span> 1529): -‘Draft bill … proposing to enact that from 1 Jan. -next all entails be annulled and all possessions be -held in fee simple.… The Act is not to affect the -estates of noblemen within the degree of baron.’ -This is one of the proposals for restoring the king’s -feudal revenue which lead up to the Statute of -Uses: an Act whose embryonic history has not yet -been written, though Dr Stubbs has thrown out -useful hints. (<cite>Seventeen Lectures</cite>, ed. 3, p. 321.)</p> - -<div class="sidenote">Starkey’s legal studies.</div> - -<p>When Pole left England in 1532 he went to -Avignon where Alciato had lately been lecturing -and became for a short while a pupil of Giovanni -Francesco Ripa (Zimmermann, <cite lang="de">Kardinal Pole</cite>, -1893, p. 51), who was both canonist and legist. -Whether at any time Pole made a serious study of<span class="pagenum"><a name="Page_46" id="Page_46">[46]</a></span> -the civil law I do not know. In 1534 Pole and -Starkey were together at Padua; Pole was studying -theology, Starkey the civil law. Starkey in a letter -says ‘Francis Curtius is dead, to the grief of those -who follow the doctrine of Bartholus.’ Perhaps we -may infer from this that Starkey was in the -camp of the Anti-Bartolists (<cite>Letters and Papers, -Henry VIII.</cite>, vol. <span class="smcapuc">VII.</span>, p. 331). In 1535 he says -that he has been studying the civil law in order to -form ‘a better judgment of the politic order and -customs used in our country’ (<cite>Ibid.</cite> vol. <span class="smcapuc">VIII.</span>, -p. 80).</p> - -<div class="sidenote">The Reception in Germany.</div> - -<p id="note12"><span class="label"><a href="#anchor12">[12]</a></span> For a general view of the Reception in Germany -with many references to other books, see Schröder, -<cite lang="de">Deutsche Rechtsgeschichte</cite>, ed. 2, pp. 743 ff.; ed. 3, -pp. 767 ff.</p> - -<div class="sidenote">Modern estimates of the Reception.</div> - -<p id="note13"><span class="label"><a href="#anchor13">[13]</a></span> For a moderate defence of the Reception, see -Windscheid, <cite lang="de">Pandektenrecht</cite>, ed. 7, vol. <span class="smcapuc">I.</span>, pp. 23 ff. -(§ 10). Ihering appeals from Nationality to Universality -(cosmopolitanism); <cite lang="de">Geist des römischen -Rechts</cite>, ed. 5, vol. <span class="smcapuc">I.</span>, p. 12: ‘<span lang="de">So lange die Wissenschaft -sich nicht entschliesst, dem Gedanken der -Nationalität den der Universalität als gleichberechtigten -zur Seite zu setzen, wird sie weder im -Stande sein die Welt, in der sie selber lebt, zu -begreifen, noch auch die geschehene Reception des -römischen Rechts wissenschaftlich zu rechtfertigen.</span>’ -The following sentences may, I believe, be taken -as typical of much that has been written of late<span class="pagenum"><a name="Page_47" id="Page_47">[47]</a></span> -years. Brunner, <cite lang="de">Grundzüge der deutschen Rechtsgeschichte</cite>, -1901, p. 231: ‘<span lang="de">Allein was stets Tadel -und Vorwurf hervorrufen wird, ist die Art, wie die -Rezeption … durchgeführt wurde. Ein nationales -Unglück war jenes engherzige Ignorieren des -deutschen Rechts, jenes geistlose und rein äusserliche -Aufpfropfen römischer Rechtssätze auf -einheimische Verhältnisse, die Unkenntnis des -Gegensatzes zwischen diesen und dem römischen -Rechte, welche taub machte gegen die Wahrheit, -dass kein Volk mit der Seele eines anderen zu -denken vermag.</span>’</p> - -<div class="sidenote">Public reading of the canon law forbidden.</div> - -<p id="note14"><span class="label"><a href="#anchor14">[14]</a></span> Injunctions of 1535, <cite>Stat. Acad. Cantab.</cite> p. 134: -‘<span lang="la">Quare volumus ut deinceps nulla legatur palam et -publice lectio per academiam vestram totam in -iure canonico sive pontificio nec aliquis cuiuscunque -conditionis homo gradum aliquem in studio illius -iuris pontificii suscipiat aut in eodem inposterum -promoveatur quovis modo.</span>’ See Mullinger, <cite>Hist. -Univ. Camb.</cite> vol. <span class="smcapuc">I.</span>, p. 630; Cooper, <cite>Annals of -Cambridge</cite>, vol. <span class="smcapuc">I.</span>, p. 375; and for Oxford, Ellis, -<cite>Original Letters</cite>, Ser. II., vol. <span class="smcapuc">II.</span>, p. 60. In -September 1535 Legh and Ap Ryce declare that -the canon laws are ‘profligate out of this realm.’ -(<cite>Letters and Papers, Henry VIII.</cite>, vol. <span class="smcapuc">IX.</span>, p. 138.)</p> - -<p>Despite a doubt suggested by Stubbs (<cite>Seventeen -Lectures</cite>, ed. 3, p. 368), I cannot believe that the -slightest hint of a degree in canon law lurks at -Cambridge in the title ‘<span lang="la">Legum Doctor</span>’ (LL.D.): -not even ‘a shadowy presentment of the double<span class="pagenum"><a name="Page_48" id="Page_48">[48]</a></span> -honour.’ See E. C. Clark, <cite>Cambridge Legal Studies</cite>, -1888, pp. 56 ff., where that title is well explained. -On the continent a settled usage contrasted -the <i lang="la">doctores legum</i> and the <i lang="la">doctores decretorum</i>. -See e.g. Stintzing, <cite lang="de">Geschichte der deutschen Rechtswissenschaft</cite>, -vol. <span class="smcapuc">I.</span>, p. 25: ‘<span lang="de">In Italien hatten die -Legisten und Decretisten verschiedene Schulen -gebildet. In Deutschland waren sie zwar zu einer -Facultät vereinigt, bildeten jedoch lange Zeit zwei -getrennte Abtheilungen, von denen jede ihre eigenen -akademischen Grade ertheilte. Neben einander -erscheinen die <i lang="la">Doctores Legum</i> und <i lang="la">Doctores Decretorum</i>, -bis seit dem Anfang des 16. Jahrhunderts -diese Scheidung schwindet und die <i lang="la">Doctores utriusque -iuris</i> immer häufiger und endlich zur Regel -werden.</span>’</p> - -<div class="sidenote">Sir T. Smith.</div> - -<p id="note15"><span class="label"><a href="#anchor15">[15]</a></span> See Mr Pollard’s life of Smith in <cite>Dict. Nat. -Biog.</cite> Some important facts, especially about his -ordination, were revealed by J. G. Nichols, in -<cite>Archaeologia</cite>, <span class="smcapuc">XXXVIII.</span> 98-127.</p> - -<div class="sidenote">Smith and the new jurisprudence.</div> - -<p id="note16"><span class="label"><a href="#anchor16">[16]</a></span> Smith says that when he first became a member -of the senate at Cambridge he bought the Digest -and Code and certain works of Alciatus, Zasius -and Ferrarius. (See Mullinger, <cite>History of the -University of Cambridge</cite>, vol. <span class="smcapuc">II.</span>, p. 130.) Ferrarius -is, I suppose, Arnaud Ferrier, the master of -Cujas. Mr Mullinger (p. 126) suggests that the -Spaniard Ludovico Vives while resident at Oxford -may have propagated dissatisfaction with the traditional -teaching of Roman law.</p> - -<p><span class="pagenum"><a name="Page_49" id="Page_49">[49]</a></span></p> - -<div class="sidenote">The Court of Requests.</div> - -<p id="note17"><span class="label"><a href="#anchor17">[17]</a></span> <cite>Select Cases in the Court of Requests</cite> (Selden -Society), 1898, p. cxxiii. Mr Leadam’s introduction -to this volume contains a great deal of new and -valuable matter concerning this important court. -The title of the ‘masters of requests’ seems -certainly to come hither from France. Just at this -time there was a good deal of borrowing in these -matters: witness the title of the ‘secretaries of -state,’ which, it is said, spreads outwards from -Spain to make the tour of the world.</p> - -<div class="sidenote">Smith’s inaugural orations.</div> - -<p id="note18"><span class="label"><a href="#anchor18">[18]</a></span> Of Smith’s two orations there is a copy in -Camb. Univ. Libr. <cite>Baker MSS.</cite> <span class="smcapuc">XXXVII.</span> 394, 414. -Mr Mullinger (<cite>Hist. Univ. Cambr.</cite>, vol. <span class="smcapuc">II.</span>, p. 127) -has given an excellent summary. The following -passage is that in which the Professor approaches -the question whether in England there is a career -open to the civilian. He has been saying that we -ought not to study merely for the sake of riches. -‘<span lang="la">Tamen si qui sint qui hoc requirant, sunt archiva -Londini, sunt pontificia fora, forum est praefecti -quoque classis, in quibus proclamare licet et vocem -vendere; est scriptura; singuli pontifices cancellarios -suos habent et officiales et commissarios, qui propter -civilis et pontificii iuris professionem in hunc locum -accipiuntur.</span>’ The orator proceeds to ask whether -there is any youth who ungratefully thinks that -proficiency in legal science will not find an adequate -reward. ‘<span lang="la">In quo regno aut in cuius regis imperio -tam stulta illum opinio tenebit? In hoccine nobilissimi -atque invictissimi nostri principis Henrici<span class="pagenum"><a name="Page_50" id="Page_50">[50]</a></span> -octavi regno, cuius magnificentia in bonas literas, -studiumque in literatos, omnium omnis memoriae -principum facta meritaque superavit, cuius ingentia -in academias beneficia, licet nulla unquam tacebit -posteritas, tamen omni celebratione maiora reperientur. -Cum strenue laboraveris et periculum -ingenii tui feceris, teque non lusisse operam sed -dignum aliquo operae precio et honore ostenderis, -cur dejicies animum? Cur desperatione conflictabis? -Cur de tanto fautore ingeniorum, tam insigni bonae -indolis exploratore, tam potenti Rege, tam munifico, -tam liberali et egregio amatore suorum demisse -viliterque sentias?</span>’</p> - -<div class="sidenote">Diplomacy and the civil law.</div> - -<p>There follows much more flattery of the king as -a patron of learning of every kind. ‘<span lang="la">Iuris quidem -civilis consulti facultas in hac republica cum ad -multos usus pernecessaria est, tum a principe -nostro nequaquam negligi aut levem haberi, vel hoc -argumento esse potest, quod tam amplo planeque -regio stipendio et meam hic apud vos mediocritatem -et alium Oxonii disertum ac doctum virum ius hoc -civile praelegere profiterique voluit.</span>’ And the study -of the civil law is the high road to diplomatic service. -‘<span lang="la">Ius vero civile sic est commune ut cum ex Anglia -discesseris, nobiles, ignobiles, docti, indocti, sacerdotes -etiam ac monachi cum aliquod specimen -eruditionis videri volunt exhibuisse, nihil fere aliud -perstrepunt quam quod ex hoc iure civili et pontificio -sit depromptum.</span>’</p> - -<div class="sidenote">The rewards for civilians.</div> - -<p>The king has wisely -employed civilians in his many legations. There -follow compliments paid to Stephen Gardiner,<span class="pagenum"><a name="Page_51" id="Page_51">[51]</a></span> -Thomas Thirlby, William Paget, Thomas Wriothesley, -and Thomas Legh. On the whole, the -professor can hold out to his pupils the prospect of -diplomatic employment, of masterships in the -chancery (‘<span lang="la">sunt archiva Londini</span>’), of practice in -the ecclesiastical courts and the court of admiralty, -and besides this they are to remember that the -king is a great patron of learning. I do not see -any hint that knowledge of Roman law will help a -man at the bar of the ordinary English courts.</p> - -<p>For more of the attempt to put new life into the -study of Roman law at Cambridge, see Mullinger, -<cite>op. cit.</cite>, vol. <span class="smcapuc">II.</span>, pp. 132 ff. Though Somerset -desired to see a great civil law college which -should be a nursery for diplomatists, the Edwardian -or Protestant Reformation of the church was in -one way very unfavourable to the study of the -civil law. Bishoprics and deaneries were thenceforth -reserved for divines, and thus what had been -the prizes of his profession were placed beyond the -jurist’s reach. Dr Nicholas Wotton (d. 1567), dean -of Canterbury and York, may be regarded as one -of the last specimens of an expiring race. Men -who were not professionally learned, men like -Sir Francis Bryan (d. 1550) and Sir Thomas Wyatt -(d. 1542), had begun to compete with the doctors -for diplomatic missions and appointments. Also -the chancellorship of the realm had come within -the ambition of the common lawyer, and (though -Bishop Goodrich may be one instance to the -contrary) the policy which would commit the great<span class="pagenum"><a name="Page_52" id="Page_52">[52]</a></span> -seal to the hands of a prelate was the policy which -would resist or reverse ecclesiastical innovations. -Even the mastership of the rolls, which had been -held by doctors of Padua and Bologna, fell to -the common lawyers. Thomas Hannibal, master -of the rolls (1523-1527), must, one would think, -have been an Italian, as were the king’s Latin -secretaries Andrea Ammonio and Pietro Vannes.</p> - -<div class="sidenote">The heathenry of the Digest.</div> - -<p id="note19"><span class="label"><a href="#anchor19">[19]</a></span> See Janssen, <cite lang="de">Geschichte des deutschen Volkes</cite>, -vol. <span class="smcapuc">I.</span>, pp. 471-501, where the cry of ‘heathenry!’ -is raised against the civil law. Janssen’s attempt -to praise the canon law as radically Germanic -while blaming the ‘absolutistic’ tendencies of the -civil law seems strange. Was not the canon law, -with its pope, <i lang="la">qui omnia iura habet in scrinio -pectoris sui</i>, absolutistic enough?</p> - -<div class="sidenote">Wyclif on English and Roman law.</div> - -<p id="note20"><span class="label"><a href="#anchor20">[20]</a></span> Wyclif, <cite lang="la">Tractatus de officio regis</cite>, Wyclif -Society, 1887, pp. 56, 193, 237, 250: ‘<span lang="la">Leges regni -Anglie excellunt leges imperiales cum sint pauce -respectu earum, quia supra pauca principia relinquunt -residuum epikerie [= <span lang="el">ἐπιείκεια</span>] sapientum.… -Non credo quod plus viget in Romana civilitate -subtilitas racionis sive iusticia quam in civilitate -Anglicana.… Non pocius est homo clericus sive -philosophus in quantum est doctor civilitatis Romane -quam in quantum est iusticiarius iuris Anglicani.… -Unde videtur quod si rex Anglie non -permitteret canonistas vel civilistas ad hoc sustentari -de suis elemosinis vel patrimonio crucifixi<span class="pagenum"><a name="Page_53" id="Page_53">[53]</a></span> -ut studeant tales leges … non dubium quin clerus -foret utilior sibi et ad ecclesiasticam promocionem -humilior ex noticia civilitatis proprie quam ex -noticia civilitatis duplicis aliene.</span>’ By ‘the patrimony -of the crucified’ Wyclif means ecclesiastical -revenues, which some of the bishops have been -using in the endowment of legal studies at the -universities: e.g. Bishop Bateman at Cambridge.</p> - -<div class="sidenote">Wyclif and the law of the emperor.</div> - -<p>Wyclif, <cite>Select English Works</cite>, ed. Arnold, vol. -<span class="smcapuc">III.</span>, p. 326: ‘It were more profit boþe to body and -soule þat oure curatis lerneden and tauȝten many of -þe kyngis statutis, þan lawe of þe emperour. For -oure peple is bounden to þe kyngis statutis and not -to þe emperours lawe, but in as moche as it is -enclosid in Goddis hestis. Þanne moche tresour -and moch tyme of many hundrid clerkis in unyversite -and oþere placis is foule wastid aboute bookis -of þe emperours lawe and studie about hem.… It -semeþ þat curatis schulden raþere lerne and teche -þe kyngis statutis, and namely þe Grete Chartre, -þan þe emperours lawe or myche part of the popis. -For men in oure rewme ben bounden to obeche to -þe kyng and his riȝtful lawes and not so to þe -emperours; and þei myȝtten wonder wel be savyd, -þouȝ many lawes of þe pope had nevere be spoken, -in þis world ne þe toþere.’</p> - -<div class="sidenote">Wyclif and paynim’s law.</div> - -<p>Wyclif, <cite>Unprinted English Works</cite>, Early English -Text Society, 1880, p. 157: ‘Þe fyue and twentiþe -errour: þei chesen newe lawis maad of synful men -and worldly and couetyse prestis and clerkis … for -now heþenne mennus lawis and worldly clerkis<span class="pagenum"><a name="Page_54" id="Page_54">[54]</a></span> -statutis ben red in vnyuersitees, and curatis lernen -hem faste wiþ grete desire, studie and cost.… <cite>Ibid.</cite> -p. 184: … lawieris maken process bi sotilte and -cauyllacions of lawe cyule, þat is moche heþene -mennus lawe, and not accepten the forme of þe -gospel, as ȝif þe gospel were no so good as paynymes -lawe.’ It is interesting to see Janssen’s denunciation -of Roman law as Pagan thus forestalled by the -great heretic, in whose eyes the Decretals were but -little, if at all, better than the Digest.</p> - -<div class="sidenote">A. Agustin in England.</div> - -<p id="note21"><span class="label"><a href="#anchor21">[21]</a></span> For Antonio Agustin (born 1517, bishop of -Alife 1556, bishop of Lerida 1561, archbishop of -Tarragona 1576, died 1586) see Schulte, <cite lang="de">Geschichte -der Quellen und Literatur des canonischen Rechts</cite>, -vol. <span class="smcapuc">III.</span>, p. 723; Maasen, <cite lang="de">Geschichte der Quellen -des canonischen Rechts</cite>, vol. <span class="smcapuc">I.</span>, pp. xix ff. His stay -in England is attested in the <cite>Venetian Calendars</cite>, -1555-6, pp. 20, 24, 32, 34, 56, 166. See also <cite>Ibid.</cite>, -1556-7, p. 1335. See also the funeral oration by -And. Schott suffixed to Ant. Augustini <cite lang="la">De emendatione -Gratiani dialogorum libri duo</cite>, Par. 1607, -p. 320: ‘<span lang="la">Iulius tertius P. M. … adeo Antonium -dilexit ut et intimis consiliis adhibuerit, legatumque -summa cum auctoritate in Britanniam insulam opibus -florentissimam miserit, cum Rex vere Catholicus -Philippus secundus Mariam reginam, Catholicorum -regum Ferdinandi et Isabellae neptem, duxit uxorem.… -Anno 1555 revertit ex Anglia Romam Augustinus.</span>’ -Apparently he was sent, not merely in order that he -might congratulate Philip and Mary, but also that<span class="pagenum"><a name="Page_55" id="Page_55">[55]</a></span> -‘<span lang="la">tanquam iurisconsultus legato adesset</span>’ (Schulte, -<cite>op. cit.</cite>, p. 724). He is charged by modern historians -with not having spoken plainly all that he knew -about the origin of the Pseudo-Isidorian decretals. -England may have contributed a little towards the -explosion of the great forgery by means of books -that were lent to the Magdeburg Centuriators by -Queen Elizabeth and Abp. Parker. See <cite>Foreign -Calendar</cite>, 1561-2, pp. 117-9.</p> - -<div class="sidenote">B. John Story.</div> - -<p id="note22"><span class="label"><a href="#anchor22">[22]</a></span> See Mr Pollard’s life of Story in <cite>Dict. Nat. -Biog.</cite> See also Dyer’s <cite>Reports</cite>, f. 300. On his -arraignment for high treason Story ineffectually -pleaded that he had become a subject of the king -of Spain.</p> - -<p id="note23"><span class="label"><a href="#anchor23">[23]</a></span> See Stintzing, <cite>Ulrich Zasius</cite>, pp. 216 ff.</p> - -<div class="sidenote">Zasius and Luther.</div> - -<p id="note24"><span class="label"><a href="#anchor24">[24]</a></span> Ranke, <cite>History of the Reformation in Germany</cite> -(transl. Austin), vol. <span class="smcapuc">II.</span>, pp. 97-8.</p> - -<div class="sidenote">The French lawyers and the Reformation.</div> - -<p id="note25"><span class="label"><a href="#anchor25">[25]</a></span> The <i lang="la">Nihil hoc ad edictum praetoris!</i> is -currently ascribed to Cujas, but the ultimate -authority for the story I do not know. See -Brissaud, <cite lang="fr">Histoire du droit français</cite>, p. 355: ‘<span lang="fr">La -science laïque déclarait par la bouche d’un de -ses plus grands représentants qu’elle n’était plus -l’humble servante de la théologie; elle affirmait sa -sécularisation.</span>’ It seems that Cujas (‘<span lang="de">wie beinahe -alle Rechtsgelehrten seiner Zeit</span>’) at first sided with -the Reformers, but that he afterwards, at least -outwardly, made his peace with the Catholic church -(Spangenberg, <cite lang="de">Jacob Cujas und seine Zeitgenossen</cite>,<span class="pagenum"><a name="Page_56" id="Page_56">[56]</a></span> -Leipz. 1822, p. 162; Haag, <cite lang="fr">La France protestante</cite>, -ed. 2, vol. <span class="smcapuc">IV.</span>, col. 957-970). Doneau was a -Calvinist; driven from France by Catholics and -from Heidelberg by Lutherans, he went to Leyden -and ultimately to Altdorf. Hotman was a Calvinist, -intimately connected with the church of Geneva. -Baudouin was compelled to leave France for -Geneva, whence he went to Strassburg and Heidelberg; -but he quarrelled with Calvin and was -accused of changing his religion six times. Charles -Du Moulin also had been an exile at Tübingen. -It is said that after a Calvinistic stage he became -a Lutheran; on his death-bed he returned to -Catholicism: such at least was the tale told by -Catholics. (See Brodeau, <cite lang="fr">La vie de Maistre Charles -Du Molin</cite>, Paris, 1654; Haag, <cite lang="fr">La France protestante</cite>, -ed. 2, vol. <span class="smcapuc">V.</span>, col. 783-789.) To say the least, -he had been ‘ultra-gallican.’ (Schulte, <cite lang="de">Geschichte -der Quellen des canonischen Rechts</cite>, vol. <span class="smcapuc">IV.</span>, p. 251.) -Of Le Douarin also it is said ‘<span lang="fr">il était réformé de -cœur</span>’ (<cite lang="fr">La France protestante</cite>, ed. 2, vol. <span class="smcapuc">V.</span>, col. 508). -‘<span lang="de">Die grosse Mehrzahl der hervorragenden Juristen -bekannte sich mit grösserer oder geringerer Entschiedenheit -zur Partei der Hugenotten</span>’ (Stintzing, -<cite lang="de">Geschichte der deutschen Rechtswissenschaft</cite>, vol. <span class="smcapuc">I.</span>, -p. 372).</p> - -<p id="note26"><span class="label"><a href="#anchor26">[26]</a></span> Stintzing, <cite lang="de">Geschichte der deutschen Rechtswissenschaft</cite>, -vol. <span class="smcapuc">I.</span>, p. 284.</p> - -<div class="sidenote">Francis Hotman and England.</div> - -<p id="note27"><span class="label"><a href="#anchor27">[27]</a></span> Elizabeth’s invitation to Hotman is mentioned -in the <cite lang="la">Elogium</cite> of him prefixed to his <cite lang="la">Opera</cite> (1599),<span class="pagenum"><a name="Page_57" id="Page_57">[57]</a></span> -p. viii, and in Dareste’s essay (p. 5). His son John -spent some time at Oxford. In 1583 John tells his -father that at Oxford he has plenty of time for -study ‘<span lang="la">quamvis hic miris modis frigeat iuris civilis -studium et mea hac in re opera nemini grata possit -esse in Anglia</span>’ (<cite lang="la">Hotomanorum Epistolae</cite>, Amstd., -1620, p. 325). In 1584 John was consulted along -with Alberigo Gentili by the English government -in the Mendoza case (Holland, <cite lang="la">Albericus Gentilis</cite>, -pp. 14, 15). There is nothing improbable in the -story that Francis was offered a post at Oxford. -He must have been well known to Cecil. In 1562 -he was active in bringing Condé into touch with -Elizabeth and so in promoting the expedition to -Havre. Condé’s envoy brought to Cecil a letter -of introduction from Hotman (<cite>Foreign Calendar</cite>, -1561-2, p. 601). Baudouin also at this time was -making himself useful to the English government. -(See e.g. <cite>Foreign Calendar</cite>, 1558-9, p. 173; 1561-2, -pp. 60, 367, 454, 481, 510.) It has been said that -Queen Elizabeth spoke of Charles Du Moulin as -her kinsman (Brodeau, <cite lang="fr">Vie de C. Du Molin</cite>, p. 4). -Whether in the pedigree of the Boleyns there is -any ground for this story I do not know. See <cite lang="fr">La -France protestante</cite>, ed. 2, vol. <span class="smcapuc">V.</span>, col. 783. Sir -Thomas Craig, who is an important figure in the -history of Scotch law, sat at the feet of Baudouin, -and Edward Henryson, who in 1566 became a lord -of session, had been a professor at Bourges (<cite>Dict. -Nat. Biog.</cite>).</p> - -<p><span class="pagenum"><a name="Page_58" id="Page_58">[58]</a></span></p> - -<div class="sidenote">Francis Hotman and Roman law.</div> - -<p id="note28"><span class="label"><a href="#anchor28">[28]</a></span> The <cite lang="fr">Epistre adressée au tygre de la France</cite>, a -violent invective against the Cardinal of Lorraine, -still finds admirers among students of French prose. -Apparently Hotman would have been the last man -to preach a Reception of Roman law in England. -Being keenly alive to the faults of Justinian’s books, -he resisted the further romanization of French law, -demanded a national code, admired the English -limited monarchy, and by his <cite lang="fr">Franco-Gallia</cite> made -himself in some sort the ancestor of the ‘Germanists.’ -Some of these ‘elegant’ French jurists were -so much imbued with the historical spirit that in -their hands the study of Roman law became the -study of an ancient history. The following words -cited and translated by Dareste from Baudouin -(<cite lang="fr">François Hotman</cite>, p. 19) have a wonderfully -modern sound: ‘<span lang="fr">Ceux qui ont étudié le droit -auraient pu trouver dans l’histoire la solution de -bien des difficultés, et ceux qui ont écrit l’histoire -auraient mieux fait d’étudier le développement des -lois et des institutions, que de s’attacher à passer -en revue les armées, à décrire les camps, à raconter -les batailles, à compter les morts.’ ‘<i lang="la">Sine historia -caecam esse iurisprudentiam</i>, disait Baudouin.</span>’ -(Brissaud, <cite lang="fr">Histoire du droit français</cite>, p. 349).</p> - -<div class="sidenote">Coke and Hotman.</div> - -<p id="note29"><span class="label"><a href="#anchor29">[29]</a></span> Coke, Introductory Letter to Part 10 of the -<cite>Reports</cite>, and Preface to Coke upon Littleton (<cite>First -Institute</cite>). The words of Hotman which moved -Coke to wrath will be found in <cite lang="la">De verbis feudalibus -commentarius</cite> (F. Hotmani Opera, ed. 1599, vol. <span class="smcapuc">II.</span>,<span class="pagenum"><a name="Page_59" id="Page_59">[59]</a></span> -p. 913) s.v. <i lang="la">feodum</i>. Hotman remarks that the -English use the word <em>fee</em> (<span lang="la">longissime tamen a -Langobardici iuris ratione et instituto</span>) to signify -‘<span lang="la">praedia omnia quae perpetuo iure tenentur</span>.’ He -then adds that Stephanus Pasquerius (the famous -Étienne Pasquier) had given him Littleton’s book: -‘<span lang="la">ita incondite, absurde et inconcinne scriptum, ut -facile appareat verissimum esse quod Polydorus -Virgilius in Anglica Historia de iure Anglicano -testatus est, stultitiam in eo libro cum malitia et -calumniandi studio certare.</span>’ To a foreign ‘feudist’ -Littleton’s book would seem absurd enough, because -in England the <i lang="la">feudum</i> had become the general -form in which all land-ownership appeared. Brunner -(<cite lang="de">Deutsche Rechtsgeschichte</cite>, vol. <span class="smcapuc">II.</span>, p. 11) puts -this well: ‘<span lang="de">Wo jedes Grundeigentum sich in Lehn -verwandelt, wird das Lehn, wie die Entwicklung -des englischen Rechtes zeigt, schliesslich zum -Begriff des Grundeigentums.</span>’</p> - -<div class="sidenote">Polydore Virgil.</div> - -<p>I have not found in Polydore Virgil’s History -anything about Littleton. There is a passage -however in lib. <span class="smcapuc">IX.</span> (ed. Basil. 1556, p. 154) in -which he denounces the unjust laws imposed by -William the Conqueror and (so he says) still -observed in his own day: ‘<span lang="la">Non possum hoc loco -non memorare rem tametsi omnibus notam, admiratione -tamen longe dignissimam, atque dictu -incredibilem: eiusmodi namque leges quae ab -omnibus intelligi deberent, erant, ut etiam nunc -sunt, Normanica lingua scriptae, quam neque Galli -nec Angli recte callebant.</span>’ Among the badges of<span class="pagenum"><a name="Page_60" id="Page_60">[60]</a></span> -Norman iniquity is trial by jury, which Polydore -cannot find in the laws of Alfred. This Italian -historiographer may well be speaking what was -felt by many Englishmen in Henry VIII’s day -when he holds up to scorn and detestation ‘<span lang="la">illud -terribile duodecim virorum iudicium.</span>’ Fisher and -More were tried by jury.</p> - -<div class="sidenote">Alberigo Gentili.</div> - -<p id="note30"><span class="label"><a href="#anchor30">[30]</a></span> For Gentili see Holland, <cite>Inaugural Lecture</cite>, -1874, and <cite>Dict. Nat. Biog.</cite> For his attack on canon -law see <cite lang="la">De nuptiis</cite>, lib. <span class="smcapuc">I.</span>, c. 19. For his quarrel -with the ‘elegant’ Frenchmen, see <cite lang="la">De iuris interpretibus -dialogi sex</cite>. The defenders of the new learning -and the <i lang="la">mos Gallicus</i>, as it was called, threw at their -adversaries the word ‘barbarian’; the retort of the -conservative upholders of the <i lang="la">mos Italicus</i> was -‘mere grammarian.’ By expelling such men as -the Gentilis, Italy forfeited her pre-eminence in -the world of legal study. Nevertheless it is said -that both in France and Germany the practical -Roman law of the courts was for a long time the -law of the ‘Bartolist’ tradition. Esmein (<cite lang="fr">Histoire -du droit français</cite>, ed. 2, p. 776) says: ‘<span lang="fr">Cujas exerça -sur le développement des théories de droit romain -suivies en France une action beaucoup moins -puissante que Du Moulin, et la filiation du romaniste -Du Moulin n’est pas niable: par la forme comme -par le fond, c’est le dernier des grands Bartolistes.</span>’</p> - -<div class="sidenote">Marsilianism and Henricianism.</div> - -<p id="note31"><span class="label"><a href="#anchor31">[31]</a></span> Thomas Starkey, when he was trying to win -over Reginald Pole to Henry’s side, wrote thus: -‘Thes thyngs I thynke schal be somewhat in your<span class="pagenum"><a name="Page_61" id="Page_61">[61]</a></span> -mynd confermyd by the redyng of Marsilius, whome -I take, though he were in style rude, yet to be of -grete iugement, and wel to set out thys mater, both -by the authoryte of scripture and good reysonys -groundyd in phylosophy, and of thys I pray you -send me your iugement.’ (<cite>Starkey’s England</cite>, Early -Engl. Text Soc. 1878, p. xxv.) Chapuis (the imperial -ambassador at Henry’s court) to Charles V, 3 Jan. -1534 (<cite>Letters and Papers of Henry VIII.</cite>, vol. <span class="smcapuc">VII.</span>, -p. 6): ‘The little pamphlet composed by the -Council, which I lately sent to your Majesty, is -only a preamble and prologue of others more important -which are now being printed. One is -called <cite lang="la">Defensorium Pacis</cite>, written in favour of -the emperor Loys of Bavaria against apostolic -authority. Formerly no one dared read it for fear -of being burnt, but now it is translated into English -so that all the people may see and understand it.’ -William Marshall to Thomas Cromwell (<cite>Ibid.</cite>, -p. 178): ‘Whereas you promised to lend me £20 -towards the printing of <cite lang="la">Defensor Pacis</cite>, which has -been translated this twelve-month, but kept from -the press for lack of money, in trust of your offer I -have begun to print it. I have made an end of the -Gift of Constantine and of Erasmus upon the Creed.’ -The ‘Gift of Constantine’ must be the famous -treatise of Laurentius Valla. The translation of -Marsilius appeared on 27 July, 1535 (<cite>Dict. Nat. -Biog.</cite> s.n. William Marshall). In October twenty-four -copies had been distributed among the Carthusians -in London (<cite>Letters and Papers</cite>, vol. <span class="smcapuc">IX.</span>,<span class="pagenum"><a name="Page_62" id="Page_62">[62]</a></span> -p. 171). In 1536 Marshall complained that the -book had not sold, though it was the best book in -English against the usurped power of the bishop of -Rome (<cite>Ibid.</cite>, vol. <span class="smcapuc">XI.</span>, p. 542). As to Byzantinism, -if it be an accident it is a memorable accident that -the strongest statement of King Henry’s divinely -instituted headship of the church occurs in a statute -which enables unordained doctors of the civil (not -canon) law to exercise that plenitude of ecclesiastical -jurisdiction which God has committed to the king -(<cite>Stat.</cite> 37 Hen. VIII., c. 17).</p> - -<div class="sidenote">The Scotch Protestants and Justinian.</div> - -<p id="note32"><span class="label"><a href="#anchor32">[32]</a></span> <cite>Foreign Calendar</cite>, 1558-9, p. 8. This seems -to mean that the normal and rightful relation of -church to state is that which is to be discovered in -Justinian’s books. If so, ‘the Protestants of Scotland’ -soon afterwards changed their opinions under -the teaching of Geneva and claimed for ‘the estate -ecclesiastical’ a truly medieval independence.</p> - -<div class="sidenote">The Henrician doctors of law.</div> - -<p id="note33"><span class="label"><a href="#anchor33">[33]</a></span> The following facts are taken from the <cite>Dictionary -of National Biography</cite>. Cuthbert Tunstall -(afterwards bishop of Durham) ‘graduated LL.D. at -Padua.’ Stephen Gardiner (afterwards bishop of -Winchester) of Trinity Hall, Cambridge, ‘proceeded -doctor of the civil law in 1520 and of the canon -law in the following year.… In 1524 he was appointed -one of Sir Robert Rede’s lecturers in the University.’ -Edmund Bonner of Broadgate Hall, Oxford, ‘in 1519 -he took on two successive days (12 and 13 June) the -degrees of bachelor of civil and of canon law.… On -12 July, 1525, he was admitted doctor of civil law.’<span class="pagenum"><a name="Page_63" id="Page_63">[63]</a></span> -Thomas Thirlby (afterwards bishop of Ely) of -Trinity Hall, Cambridge, ‘graduated bachelor of -the civil law in 1521 … and proceeded doctor of the -civil law in 1528 and doctor of the canon law in -1530.’ Richard Sampson (afterwards bishop of -Lichfield) of Trinity Hall, Cambridge, ‘proceeded -B.C.L. in 1505. Then he went for six years to -Paris and Sens and returning proceeded D.C.L. -in 1513.’ John Clerk (afterwards bishop of Bath -and Wells, Master of the Rolls), ‘B.A. of Cambridge -1499 and M.A. 1502, studied law and received the -doctor’s degree at Bologna.’ Richard Layton (afterwards -dean of York) ‘was educated at Cambridge, -where he proceeded B.C.L. in 1522 and afterwards -LL.D.’ Thomas Legh of King’s College (?), Cambridge, -‘proceeded B.C.L. in 1527 and D.C.L. in -1531.’ Instances of legal degrees obtained in foreign -universities are not very uncommon. John Taylor, -Master of the Rolls in 1527, ‘graduated doctor of -law at some foreign university, being incorporated -at Cambridge in 1520 and at Oxford in 1522.’ -James Denton, dean of Lichfield, proceeded B.A. -in 1489 and M.A. in 1492 at Cambridge. ‘He -subsequently studied canon law at Valencia in -which faculty he became a doctor of the university -there.’ (For an earlier instance, that of Thomas -Alcock of Bologna, see <cite>Grace Book A</cite>, Luard -Memorial, p. 209. There are other instances in -Boase, <cite>Register of the University of Oxford</cite>; consult -index under Padua, Bologna, Paris, Orleans, -Bourges, Louvain.)</p> - -<p><span class="pagenum"><a name="Page_64" id="Page_64">[64]</a></span></p> - -<div class="sidenote">‘The king’s great matter.’</div> - -<p>That wonderful divorce cause, which shook the -world, created a large demand for the sort of knowledge -that the university-bred jurist was supposed -to possess, especially as a great effort was made -to obtain from foreign doctors and universities -opinions favourable to the king. The famous Cambridge -‘Grecian’ Richard Croke was employed in -ransacking Italian libraries for the works of Greek -theologians and in taking council with Hebrew -rabbis. In Italy, France and Spain, as well as in -England, almost every canonist of distinction, from -the celebrated Philip Decius downwards, must have -made a little money out of that law suit, for the -emperor also wanted opinions.</p> - -<div class="sidenote">Papists in the Inns of Court.</div> - -<p id="note34"><span class="label"><a href="#anchor34">[34]</a></span> See the remarkable paper printed in <cite>Calendar -of Inner Temple Records</cite>, vol. <span class="smcapuc">I.</span>, p. 470; also -Mr Inderwick’s preface pp. 1 ff. In 1570 Lincoln’s -Inn had not been exacting the oath of supremacy: -<cite>Black Book</cite>, vol. <span class="smcapuc">I.</span>, pp. 369-372. See also the -lives of Edmund Plowden, William Rastell and -Anthony Browne (the judge) in <cite>Dict. Nat. Biog.</cite>: -and for Browne see also <cite>Spanish Calendar</cite>, 1558-67, -pp. 369, 640.</p> - -<div class="sidenote">Sir T. Smith’s ‘Commonwealth.’</div> - -<p id="note35"><span class="label"><a href="#anchor35">[35]</a></span> Smith, <cite>Commonwealth of England</cite>, ed. 1601, -p. 147: ‘I haue declared summarily as it were in a -chart or map, or as Aristotle termeth it, <span lang="el">ὡς ἐν τύπῳ</span> -the forme and maner of gouernment of England, -and the policy therof, and set before your eyes the -principall points wherin it doth differ from the policy -or gouernment at this time vsed in France, Italy,<span class="pagenum"><a name="Page_65" id="Page_65">[65]</a></span> -Spaine, Germanie, and all other Countries, which -doe follow the ciuill law of the Romaines, compiled -by Iustinian into his pandects and code: not in that -sort as Plato made his commonwealth, or Xenophon -his kingdome of Persia, nor as Sir Thomas More -his Vtopia, beeing fained commonwealths, such as -neuer was nor neuer shall be, vaine imaginations, -phantasies of Philosophers to occupie the time, and -to exercise their wits: but so as England standeth, -& is gouerned at this day the xxviij. of March. -Anno 1565. in the vij. yeare of the raigne and -administration thereof by the most vertuous & -noble Queene Elizabeth, daughter to King Henry -the eight, and in the one and fiftieth yeare of mine -age, when I was Ambassadour for her Maiestie, in -the Court of Fraunce, the Scepter whereof at that -time the noble Prince and of great hope Charles -Maximilian did holde, hauing then raigned foure -yeares.’</p> - -<div class="sidenote">Smith writes without books.</div> - -<p id="note36"><span class="label"><a href="#anchor36">[36]</a></span> Smith to Haddon, 6 Ap. 1565, in G. Haddoni -<cite lang="la">Orationes</cite>, Lond. 1567, pp. 302-7: ‘<span lang="la">nostrarum -legum ne unum quidem librum mecum attuli hic -nec habebam iure consultos quos consulerem.</span>’ He -has been telling how he wrote <cite>The Commonwealth -of England</cite>.</p> - -<div class="sidenote">Roman law on the Continent.</div> - -<p id="note37"><span class="label"><a href="#anchor37">[37]</a></span> From the time of Bracton to the present day -Englishmen have often allowed themselves phrases -which exaggerate the practical prevalence of Roman -law on the continent of Europe. Smith, for instance, -who had been in many parts of northern France and<span class="pagenum"><a name="Page_66" id="Page_66">[66]</a></span> -was a learned and observant man, must have known -that (to use Voltaire’s phrase) he often changed -law when he changed horses and that the Estates -General had lately been demanding a unification of -the divergent customs (Viollet, <cite lang="fr">Histoire du droit -civil français</cite>, p. 202; Planiol, <cite lang="fr">Droit civil</cite>, 1900, -vol. <span class="smcapuc">I.</span>, p. 16). Germans, who know what an attempt -to administer Roman law really means, habitually -speak of French law as distinctively un-Roman. -Thus Rudolph Sohm (<cite lang="de">Fränkisches Recht und -römisches Recht</cite>, Weimar, 1880, p. 76): ‘<span lang="de">die Gesetzbücher -Napoleons I. zeigen, dass noch heute -wenigstens das Privatrecht und Processrecht Frankreichs -ein Abkömmling nicht des römischen, noch -des italienischen, sondern des fränkischen Rechtes -ist.</span>’ So Planiol (<cite>op. cit.</cite>, vol. <span class="smcapuc">I.</span>, p. 26): ‘<span lang="fr">Deux -courants se sont trouvés en présence lors de l’unification -du droit français: l’esprit romain et les -traditions coutumières. Ce sont ces dernières qui -l’ont emporté. Le Code a été rédigé à Paris, en -plein pays coutumier; les conseillers d’État appartenaient -en majorité aux provinces septentrionales; -le parlement de Paris avait eu dans l’ancien droit -un rôle prépondérant. Il n’y a donc rien d’étonnant -à voir l’esprit des coutumes prédominer dans le -Code; le contraire eût été un non-sens historique.</span>’ -Until the other day it was, I believe, a common -remark that the large part of Germany which stood -under the French code either in a translated or -untranslated form—and this part contained about -one-sixth of the Empire’s population—was the part<span class="pagenum"><a name="Page_67" id="Page_67">[67]</a></span> -of Germany in which the law was least Roman and -most Germanic. The division of France into two -great districts was not equal: before the acquisition -of Elsass from Germany ‘<span lang="fr">les pays de droit écrit -comprenaient à peine les deux cinquièmes de la -France</span>’ (Planiol, <cite>op. cit.</cite>, vol. <span class="smcapuc">I.</span>, p. 11). See the -useful map in Brissaud, <cite lang="fr">Histoire du droit français</cite>, -p. 152. Even in the south there was much customary -law. A famous sentence in the custumal of -Bordeaux placed ‘the written law’ below ‘natural -reason’ (Viollet, <cite>op. cit.</cite>, p. 150). Still it is not to -be denied that a slow process of romanization—very -different from the catastrophic Reception in -Germany—went on steadily for some five or six -centuries; and a system which as a whole seems -very un-Roman to a student of what became ‘the -common law’ of Germany may rightly seem Roman -to an Englishman. Francis Bacon knew that France -could not be compendiously described as a country -governed by the civil law. In his speech on the -Union of Laws (Spedding, <cite>Life and Letters</cite>, vol. <span class="smcapuc">III.</span>, -p. 337) he accurately distinguishes ‘Gascoigne, -Languedock, Provence, Dolphinie’ which are -‘governed by the letter or text of the civil law’ -from ‘the Isle of France, Tourayne, Berry, Anjou -and the rest, and most of all Brittain and Normandy,’ -which are ‘governed by customs which -amount unto a municipal law, and use the civil law -but only for grounds and to decide new and rare -cases.’ English readers should at least know the -doctrine, strongly advocated in modern Germany,<span class="pagenum"><a name="Page_68" id="Page_68">[68]</a></span> -that the private law which was developed in England -by a French-speaking court was just one more -French <i lang="fr">coutume</i>. Sohm, <cite lang="de">Fränkisches Recht und -römisches Recht</cite>, p. 69: ‘<span lang="de">Die Vorgeschichte des -englischen Rechts von heute hat nicht in England, -sondern in Nordfrankreich ihre Heimath … Stolz -kann die Lex Salica auf die zahlreichen und mächtigen -Rechte blicken, welche sie erzeugt hat.</span>’</p> - -<p id="note38"><span class="label"><a href="#anchor38">[38]</a></span> Blackstone, <cite>Commentaries</cite>, vol. <span class="smcapuc">III.</span>, p. 149; -J. H[oddesdon], <cite lang="la">Tho. Mori Vita</cite>, Lond. 1652, p. 26.</p> - -<p id="note39"><span class="label"><a href="#anchor39">[39]</a></span> Smith, <cite>Commonwealth</cite>, ed. 1601, p. 141: -‘<em>withernam</em> … is in plaine Dutch and in our olde -Saxon language <em>wyther nempt</em>.’</p> - -<div class="sidenote">Barbarous language of the law.</div> - -<p id="note40"><span class="label"><a href="#anchor40">[40]</a></span> Pollock, <cite>First Book of Jurisprudence</cite>, p. 283, -from Dyer’s <cite>Reports</cite>, 188 <i>b</i>, in the notes added in -ed. 1688: ‘<span lang="fr">Richardson, ch. Just. de C. Banc. al -Assises at Salisbury in Summer 1631. fuit assault -per prisoner la condemne pur felony que puis son -condemnation ject un Brickbat a le dit Justice que -narrowly mist, & pur ceo immediately fuit indictment -drawn per Noy envers le prisoner, & son -dexter manus ampute & fix al Gibbet sur que luy -mesme immediatment hange in presence de Court.</span>’ -In France the Ordonnance of Villers-Cotterets -(1539) decreed that the judgments of the French -courts should be recorded no longer in Latin but in -French. ‘<span lang="fr">L’utilité de cette innovation … se comprend -assez d’elle-même. On dit qu’un motif d’une -autre nature, l’intérêt des belles-lettres, ne contribua<span class="pagenum"><a name="Page_69" id="Page_69">[69]</a></span> -pas moins à y décider le roi [François I], choqué -du latin barbare qu’employaient les tribunaux. Un -arrêt rendu en ces termes: <i lang="la">Dicta curia debotavit et -debotat dictum Colinum de sua demanda</i>, fut, dit on, -ce qui entraîna la suppression du latin judiciaire.</span>’ -Henri Martin, <cite lang="fr">Histoire de France</cite>, vol. <span class="smcapuc">VIII.</span>, pp. -272-3; see also Christie, <cite lang="fr">Étienne Dolet</cite>, ed. 2, -p. 424.</p> - -<div class="sidenote">The fate of Duns Scotus.</div> - -<p id="note41"><span class="label"><a href="#anchor41">[41]</a></span> Ellis, <cite>Original Letters</cite>, Ser. II., vol. <span class="smcapuc">II.</span>, p. 61, -Dr Layton to Cromwell: ‘We have sett Dunce in -Bocardo and have utterly banished him Oxforde for -ever, with all his blynd glosses, and is now made a -common servant to evere man, fast nailede up upon -posts in all common howses of easement.’</p> - -<div class="sidenote">The English Lex Regia.</div> - -<p id="note42"><span class="label"><a href="#anchor42">[42]</a></span> <cite>Stat.</cite> 31 Hen. VIII., cap. 8. Already in 1535 -Cromwell reports with joy an opinion obtained from -the judges to the effect that in a certain event the -king might issue a proclamation which would be -‘as effective as any statute’ (<cite>Letters and Papers, -Henry VIII.</cite>, vol. <span class="smcapuc">VIII.</span>, p. 411).</p> - -<div class="sidenote">Civilians in councils and in courts.</div> - -<p id="note43"><span class="label"><a href="#anchor43">[43]</a></span> The story (with which we are familiar in -England) of the evolution of various councils and -courts from an ancient <i lang="la">Curia Regis</i> seems to have -a close parallel in French history: so close that -imitation on one side or the other may at times be -suspected. After the <i lang="fr">parlement</i> with its various -chambers (which answer to our courts of common -law) has been established, the royal council interferes -with judicial matters in divers ways, and<span class="pagenum"><a name="Page_70" id="Page_70">[70]</a></span> -sections of the council become tribunals which -compete with the <i lang="fr">parlement</i>. (See, <i>e.g.</i> Esmein, -<cite lang="fr">Histoire du droit français</cite>, ed. 2, pp. 469 ff., and -the pedigree of courts and councils in Lavisse et -Rambaud, <cite lang="fr">Histoire générale</cite>, vol. <span class="smcapuc">IV.</span>, p. 143; also -the pedigree in N. Valois, <cite lang="fr">Le conseil du roi</cite> (1888), -p. 11; and Brissaud, <cite lang="fr">Histoire du droit français</cite>, -pp. 816 ff.) In Germany the doctors of civil law -made their way first into councils and then into -courts. ‘<span lang="de">Die fremdrechtlich geschulten Juristen -wurden in Deutschland anfänglich nur in Verwaltungssachen -verwendet. Zur Rechtsprechung -gelangten sie dadurch, dass die Verwaltung diese -an sich zog, und zwar zuerst am Hofe des Königs</span>’ -(Brunner, <cite lang="de">Grundzüge der deutschen Rechtsgeschichte</cite>, -1901, p. 227). In the England of Henry VIII’s day -there seems no little danger that <i lang="de">die fremdrechtlich -geschulten Juristen</i>, of whom there are a good many -in the king’s service, will gain the upper hand in -the new courts that have emerged from the council, -and will proceed from <i lang="de">Verwaltung</i> to <i lang="de">Rechtsprechung</i>. -There came a time when Dr Tunstall -(who got his law at Padua) was presiding over the -Council of the North and Dr Roland Lee over the -Council of the Marches. In 1538 Dr Lee, who was -endeavouring to bring Wales to order, said in a -letter to Cromwell, ‘If we should do nothing but -as the common law will, these things so far out of -order will never be redressed’ (<cite>Dict. Nat. Biog.</cite>, -vol. <span class="smcapuc">XXXII.</span>, p. 375).</p> - -<div class="sidenote">Project for a new court.</div> - -<p>In 1534 there was a project for the erection of<span class="pagenum"><a name="Page_71" id="Page_71">[71]</a></span> -yet another new court. See <cite>Letters and Papers, -Henry VIII.</cite>, vol. <span class="smcapuc">VII.</span>, p. 603: ‘Draft act of parliament -for the more rigid enforcement of previous -statutes, appointing a new court, to consist of six -discreet men, of whom three at least shall be outer -barristers in the Inns of Court, who shall be called -justices or conservators of the common weal and -sit together in the White Hall at Westminster or -elsewhere, with power to discuss all matters relating -to the common weal and to call before them all -persons who have violated any act of parliament -made since the beginning of Henry VIII.’s reign.’ -If only three of these judges need be barristers, -what are the rest to be?</p> - -<p id="note44"><span class="label"><a href="#anchor44">[44]</a></span> <cite>Acts of the Parliament of Scotland</cite>, vol. <span class="smcapuc">II.</span>, -p. 335.</p> - -<div class="sidenote">Reform of the Inns of Court.</div> - -<p id="note45"><span class="label"><a href="#anchor45">[45]</a></span> See the two papers that are printed by Waterhous, -<cite lang="la">Fortescutus Restitutus</cite>, 1663, pp. 539, 543. -In one of these Thomas Denton, Nicholas Bacon -and Robert Cary are answering an inquiry addressed -to them by Henry VIII touching the plan -of legal education pursued in the Inns of Court. -In this there are some phrases that tell of the -revival of learning. The writers thank Almighty -God for giving them a king ‘endued and adorned -himself with all kindes and sortes of good learning -as well divine as prophane’ and one who ‘purposeth -to set forward and as it were to revive the study -and perfect knowledge thereof [<i>i.e.</i> of good learning], -of long time detested and almost trodden under<span class="pagenum"><a name="Page_72" id="Page_72">[72]</a></span> -foot.’ They remark also that many good and -gentle wits have perished ‘chiefly for that most -of them in their tender years, indifferent to receive -both good and bad, were so rooted and seasoned, -as it were, in barbarous authors, very enemies to -good learning, that hard it was, yea almost impossible, -to reduce them to goodness.’</p> - -<div class="sidenote">The king’s College of Law.</div> - -<p>The other paper contains a project for the king’s -College of Law submitted by the same three writers. -This looks like an attempt to obtain a royally -endowed school of English law, and it is curious to -observe that, not English, but good French is to -take the place of bad French. ‘The inner barristers -shall plead in Latine, and the other barristers reason -in French; and either of them shall do what they -can to banish the corruption of both tongues.’ One -learned in French is ‘to teach the true pronuntiation -of the French tongue.’ One of excellent knowledge -in the Latin and Greek tongues is to read ‘some -orator or book of rhetoric, or else some other author -which treateth of the government of a commonwealth, -openly to all the company.’ Students of -this college are to be sent abroad to accompany -ambassadors, and two students are to act as historiographers -of the realm. Nothing is said of -the civil law. On the whole, this seems to be -a conservative proposal emanating from English -barristers for bettering the education of the common -lawyer, and thus rendering unnecessary such a -Reception as Pole had proposed. We do not know -that it represents Henry’s thoughts. It was ‘a civil<span class="pagenum"><a name="Page_73" id="Page_73">[73]</a></span> -law college’ that Somerset wished to establish at -Cambridge by a fusion of Trinity Hall and Clare. -(See Mullinger, <cite>Hist. Univ. Camb.</cite>, vol. <span class="smcapuc">II.</span>, pp. -134-137.)</p> - -<div class="sidenote">Butzer on Henry VIII’s project of Codification.</div> - -<p id="note46"><span class="label"><a href="#anchor46">[46]</a></span> Bucerus, <cite lang="la">De regno Christi</cite>, lib. <span class="smcapuc">II.</span>, cap. 56 -(<cite lang="la">Scripta Anglica</cite>, Basil. 1577, p. 148): ‘<span lang="la">Passim enim -queri bonos viros audio, leges regni huius decorum -[<i>corr.</i> de rerum] proprietatibus et commutationibus, -de successionibus in bonis atque aliis huius generis -civilibus contractibus et commerciis, esse perobscuras -atque implicatas: adeoque etiam lingua -perscriptas quadam obsoleta ut a nemine queant -intelligi, qui non et eam linguam didicerit et earum -legum intelligentiam multo fuerit studio assecutus: -indeque fieri ut plerique eorum qui eas leges aliquo -modo habent cognitas, iurisque magis quam iusticiae -sunt consulti, his ipsis legibus abutantur pro -hominum decipulis retibusque pecuniarum. Quo -regni non tolerando incommodo permotum aiunt -praestantissimum principem S. M. T. patrem ut -corrigendis, elucidandisque his legibus certos pridem -homines deputarit. Cum autem isti legum designati -instauratores, vel mole operis absterriti, vel aliis -impediti abstractique negociis, huic malo adhuc -nullum attulerint remedium, abusioque et perversio -legum indies magis invalescere dicatur, eo certe id -erit S. M. T. et maturius et pertinacius elaborandum -quo leges illae quam rectissime ac planissime extent -explicatae.… Quid autem interest nullae existant -leges, aut quae existunt sint civibus ignoratae?</span>’ -</p> - -<p><span class="pagenum"><a name="Page_74" id="Page_74">[74]</a></span></p> - -<p>Butzer, as this treatise shows, had some knowledge -of the civil law, at least in the matter of -divorce. He seems to think that a code for England -might be so simple an affair that it could be put -into rhyme and be sung by children. (See Mullinger, -<cite>Hist. Univ. Camb.</cite>, vol. <span class="smcapuc">II.</span>, p. 238.)</p> - -<div class="sidenote">Codification of the ecclesiastical law.</div> - -<p id="note47"><span class="label"><a href="#anchor47">[47]</a></span> Cardwell, <cite>The Reformation of the Ecclesiastical -Laws</cite>, Oxf. 1850. See p. xxvi, where Foxe the martyrologist -(1571) testifies to the beauty of Haddon’s -Latin, and then says: ‘<span lang="la">Atque equidem lubens -optarim, si quid votis meis proficerem, ut consimili -exemplo, nec dissimili etiam oratione ac stylo, prosiliat -nunc aliquis, qui in vernaculis nostris legibus -perpoliendis idem efficiat, quod in ecclesiasticis -istis praestitit clarissimae memoriae hic Haddonus.</span>’ -On the question as to the intended fate of heretics -(including both Roman Catholics and Lutherans) -under the <i lang="la">Reformatio Legum</i>, see Hallam, <cite>Const. -Hist.</cite>, ed. 1832, vol. <span class="smcapuc">I.</span>, p. 139; Maitland, <cite>Canon -Law in England</cite>, p. 178.</p> - -<div class="sidenote">The demand for Codification.</div> - -<p id="note48"><span class="label"><a href="#anchor48">[48]</a></span> Commines attributes to Louis XI (<i lang="la">circ. an.</i> -1479) a project of reducing to uniformity all the -customs of France. Francis Bacon more than -once, when urging his schemes of law reform, referred -to Louis’s abortive project (Spedding, <cite>Life -and Letters</cite>, <span class="smcapuc">VI.</span> 66; <span class="smcapuc">VII.</span> 362). Commines’s story -is not rejected by modern historians of French -law. The official redaction of the various ‘general -customs’ (customs of provinces) was commanded<span class="pagenum"><a name="Page_75" id="Page_75">[75]</a></span> -in 1453 by the ordinance of Montils-les-Tours. -Little, however, was done in this matter until the -reigns of Charles VIII and Louis XII. Many -customs were redacted about the year 1510: that -of Orleans in 1509; that of Paris in 1510. This -might be described as a measure of codification: -‘<span lang="fr">elle fit, des coutumes, de véritables <em>lois écrites</em></span>’ or, -as we might say, statute law. (Esmein, <cite lang="fr">Histoire -du droit français</cite>, 746 ff.; Viollet, <cite lang="fr">Histoire du droit -français</cite>, 142 ff.; Planiol, <cite lang="fr">Droit civil</cite>, <span class="smcapuc">I.</span> 12, 16). Then -the Estates General at Orleans in 1560 in effect -demanded a general code: ‘<span lang="fr">Nous voulons une foy, -une loy, un roy</span>’ said the prolocutor of the clergy. -(Dareste, <cite>Hotman</cite>, p. 20.) Both Du Moulin and -Hotman recommended codification and apparently -thought that the task would not be difficult. -(Viollet, <cite>op. cit.</cite>, p. 209; Dareste, <cite>op. cit.</cite>, p. 21.) -Then as to Germany:—‘<span lang="de">An die Klagen über die -Verwirrung, in welche das Recht durch die scholastische -Wissenschaft gerathen ist, knüpft sich -seit dem Anfange des 16. Jahrhunderts regelmässig -das Verlangen, der Kaiser möge als ein neuer -Justinian das gemeine Recht des Reichs zur Einfachheit -und Klarheit gesetzlich reformiren.… Das -Verlangen nach einer Codification des gemeinen -Rechts zieht sich durch das ganze 16. Jahrhundert.</span>’ -(Stintzing, <cite lang="de">Geschichte der deutschen Rechtswissenschaft</cite>, -vol. <span class="smcapuc">I.</span>, pp. 58-9.) In 1532 after a prolonged -effort the Empire actually came by a criminal -code, the so-called Carolina (<span lang="de"><span lang="la">Constitutio Carolina -Criminalis</span>; die peinliche Halsgerichtsordnung<span class="pagenum"><a name="Page_76" id="Page_76">[76]</a></span> -Karls V.</span>), but its operation was confined by a -clause which sanctioned the ever increasing particularism -of the various states by saving their -ancient customs. (<cite>Ibid.</cite>, pp. 621 ff.) Within some -of these states or ‘territories’ there was in the -sixteenth century a good deal of comprehensive -legislation, amounting in some cases to the publication -of what we might call codes. A <i lang="de">Landrecht</i> -(to be contrasted with <i lang="de">Reichsrecht</i>) was issued by -the prince. His legislative action was not always -hampered by any assembly of Estates; he desired -uniformity within his territory; and the jurists who -fashioned his law-book were free to romanize as -much as they pleased. The Würtemberg Landrecht -of 1555 issued by Duke Christopher, a prince -well known to Queen Elizabeth, is one of the chief -instances (Stintzing, <cite>op. cit.</cite>, vol. <span class="smcapuc">I.</span>, pp. 537 ff.; -Schröder, <cite lang="de">Deutsche Rechtsgeschichte</cite>, ed. 3, pp. -886 ff.). The transmission of the cry for codification -from Hotman to Leibnitz, and then to the -enlightened monarchy of the eighteenth century is -traced by Baron, <cite>Franz Hotmans Antitribonian</cite>, -Bern, 1888. In Scotland also the Regent Morton -(d. 1581) entertained a project of codification. A -commission was appointed to prepare a uniform -and compendious order of the laws. It seems to -be a question among Scotch lawyers how far the -book known as <cite>Balfour’s Practicks</cite> represents the -work of the commissioners. See <cite>Dict. Nat. Biog.</cite>, -vol. <span class="smcapuc">XV.</span>, p. 317; vol. <span class="smcapuc">III.</span>, p. 53.</p> - -<p><span class="pagenum"><a name="Page_77" id="Page_77">[77]</a></span></p> - -<div class="sidenote">The expiration of the Year Books.</div> - -<p id="note49"><span class="label"><a href="#anchor49">[49]</a></span> The cessation of the Year Books in 1535 at -the moment when the Henrician Terror is at its -height is dramatically appropriate. A great deal, -however, has yet to be done before the relevant -facts will be fully known. Mr C. C. Soule’s -<cite>Year-Book Bibliography</cite>, printed in <cite>Harvard Law -Review</cite>, vol. <span class="smcapuc">XIV.</span>, p. 557, is of high importance. -If by ‘the Year Books’ we mean a series of books -that have been printed, then the Year Books become -intermittent some time before they cease. -The first eleven years of Henry VIII are unrepresented, -and there are gaps between years 14 -and 18 and between 19 and 26. It remains to be -seen whether there are MSS. more complete than -the printed series. Then we have on our hands -the question raised by what Plowden says in the -Preface to his <cite>Commentaries</cite> touching the existence -of official reporters. Plowden says that he began -to study the law in 30 Hen. VIII, and that he had -heard say that in ancient times there were four -reporters paid by the king. His words make it -clear that the official reporters, if they ever existed, -came to an end some considerable time before -30 Hen. VIII. The question whether they ever -existed cannot be raised here. Mr Pike’s investigations -have not, so I think, tended to bear out the -tale that Plowden had heard; and if the king paid -stipends to the reporters, some proof of this should -be forthcoming among the financial records. The -evidence of Francis Bacon is of later date and -looks like a mere repetition of what Plowden said<span class="pagenum"><a name="Page_78" id="Page_78">[78]</a></span> -(Bacon, <cite>Amendment of the Law</cite>; Spedding, <cite>Life -and Letters</cite>, vol. <span class="smcapuc">V.</span>, p. 86).</p> - -<div class="sidenote">Decline of law reports.</div> - -<p>But, be all this as it may, the fact seems clear -that the ancient practice of law reporting passed -through a grave crisis in the sixteenth century. -We know the reign of Edward IV and even that -of Edward II better than we know that of -Edward VI. The zeal with which Tottell from -1553 onwards was printing old reports makes the -dearth of modern reports the more apparent. Then -Plowden expressly says that he reported ‘for my -private instruction only,’ and Dyer’s Reports (which -comprise some cases too early to have been reported -by him) were posthumously published. The -total mass of matter from the first half of the -century that we obtain under the names of Broke, -Benloe, Dalison, Keilwey, Moore and Anderson is -by no means large, and in many cases its quality -will not bear comparison with that of the Year -Books of Edward IV. (J. W. Wallace, <cite>The Reporters</cite>, -ed. 4, Boston, 1882, is an invaluable guide; -see also V. V. Veeder, <cite>The English Reports</cite>, in -<cite>Harvard Law Review</cite>, vol. <span class="smcapuc">XV.</span>, p. 1.)</p> - -<div class="sidenote">Burke on law reports.</div> - -<p id="note50"><span class="label"><a href="#anchor50">[50]</a></span> Burke, <cite>Report from Committee appointed to -inspect the Lords’ Journals</cite>: ‘To give judgment -privately is to put an end to reports; and to put -an end to reports is to put an end to the law of -England.’</p> - -<div class="sidenote">The Students’ petition in 1547.</div> - -<p id="note51"><span class="label"><a href="#anchor51">[51]</a></span> <cite>Acts of the Privy Council</cite>, 1547-1550, pp. 48-50. -Petition of divers students of the common<span class="pagenum"><a name="Page_79" id="Page_79">[79]</a></span> -laws to the Lord Protector and the Privy Council: -‘Pleasith it your honorable Lordships to call to -your remembrance that whereas the Imperial -Crowne of this realme of Inglande and the hole -estate of the same have been alwayes from the -beginning a Reame Imperial, having a lawe of -itself called the Commen Lawes of the realme of -Inglande, by which Lawe the Kinges of the same -have as Imperial Governours thereof ruled and -governed the people and subjectes in suche sorte -as the like thereof hath nat been seen in any -other.… So it is, if it like your good Lordships, that -now of late this Commen Lawes of this realme, -partely by Injunctions, aswel before verdictes, jugementes -and execucions as after, and partly by -writtes of Sub Pena issuing owte of the Kinges -Courte of Chauncery, hath nat been only stayed -of their directe course, but also many times altrid -and violated by reason of Decrees made in the -saide Courte of Chauncery, most grounded upon -the lawe civile and apon matter depending in the -conscience and discrecion of the hearers thereof, -who being Civilians and nat lerned in the Comen -Lawes, setting aside the saide Commen Lawes, -determyne the waighty causes of this realme according -either to the saide Lawe Civile or to their -owne conscience; which Lawe Civile is to the -subjectes of this realme unknowne, and they nat -bounden ne inheritable to the same lawe, and -which Jugementes and Decrees grownded apon -conscience ar nat grounded ne made apon any<span class="pagenum"><a name="Page_80" id="Page_80">[80]</a></span> -rule certeine or lawe written.…</p> - -<div class="sidenote">Incroachment of the civil law.</div> - -<p>And for a more -amplyfyeng and inlarging of the jurisdiction of the -saide Courte of Chauncery and derogacion of the -saide Comen Lawes there is of late a Commission -made contrary to the saide Commen Lawes unto -certaine persones, the more part whereof be -Civilians nat learned in the saide Lawes of this -realme, autorising them to heare and determyne -all matters and cawses exhibited into the saide -Courte of Chauncery, by occasion whereof the -matters there do daily more and more increase, -insomuch as very fewe matters be now depending -at the Comen Lawes.… And by reason thereof -there hath of late growne such a discourage unto -the studentes of the saide Commen Lawes, and -the said Commen Lawes have been of late so -little estemed and had in experience, that fewe -have or do regarde to take paynes of the profownde -and sincere knolege of the same Lawe, by -reason whereof there ar now very few, and it is to -be doubted that within fewe yeares there shall nat -be sufficient of lerned men within this realme to -serve the king in that facultie. It therfore may -please your honorable Lordships to make suche -speady reformacion in the premisses as unto your -Lordships shall seem moste mete and convenient.’</p> - -<div class="sidenote">Civilians as judges.</div> - -<p>This petition led to the disgrace and punishment -of the chancellor, the Earl of Southampton -(Wriothesley), for having issued a commission -without warrant and without consulting his fellow-executors -of King Henry’s will. With Somerset’s<span class="pagenum"><a name="Page_81" id="Page_81">[81]</a></span> -motives for thrusting Southampton aside we are -not concerned. (See Pollard, <cite>England under the -Protector Somerset</cite>, pp. 31-33.) That he had any -desire to protect the common lawyers we must not -assume; but the petition itself deserves attention. -The commissioners to whom Southampton had -delegated judicial powers were Robert Southwell -(master of the rolls), John Tregonwell, John Oliver, -and Anthony Bellasyse (masters of chancery). -Tregonwell, Oliver and Bellasyse were all doctors -of the civil law (<cite>Dict. Nat. Biog.</cite>).</p> - -<div class="sidenote">Common law and the Pilgrimage of Grace.</div> - -<p>In 1536 during the Pilgrimage of Grace one of -the demands of the catholic insurgents was ‘that -the common laws may have place as was used at -the beginning of the reign and that no injunctions -be granted unless the matter has been determined -in chancery.’ This comes at the end of a long -reactionary programme, which desires the restoration -of the monasteries, of the papal supremacy -and so forth: also the repeal of the statute ‘That -no man shall not will his lands’ [Statute of Uses]. -The heretical bishops [Cranmer and his like] are -to be burnt; Cromwell is ‘to have condign punishment.’ -Also ‘a man is to be saved by his book,’ -<i>i.e.</i> there is to be no infringement of the benefit of -clergy. The heresies to be suppressed are those of -‘Luther, Wyclif, Husse, Malangton, Elicampadus -[Oecolampadius], Bucerus, Confessa Germaniae -[Augsburg Confession], Apolugia Malanctons, the -works of Tyndall, of Barnys, of Marshall, Raskell -[Rastell, the printer of law books], Seynt Germayne<span class="pagenum"><a name="Page_82" id="Page_82">[82]</a></span> -[author of Doctor and Student] and such other -heresies of Anibaptist.’ As I understand the -protest against injunctions, it means that the -chancery may interfere with an action at common -law, only if that action is opening a question -already decided in the chancery. It will be seen -that in 1536 the cause of ‘the common laws’ finds -itself in very queer company: illiterate, monkish -and papistical company, which apparently has -made a man of ‘Anibaptist.’ (For this important -manifesto, see <cite>Letters and Papers, Henry VIII.</cite>, -vol. <span class="smcapuc">XI.</span>, pp. 506-507.)</p> - -<div class="sidenote">Elbow-room in the courts of law.</div> - -<p id="note52"><span class="label"><a href="#anchor52">[52]</a></span> Stow, <cite>Annals</cite>, ed. 1615, p. 631: ‘This yeere -(1557) in Michaelmas terme men might have seene -in Westminster hall at the Kinges bench barre not -two men of law before the iustices; there was but -one named Fostar, who looked about and had -nothing to doe, the iudges looking about them. In -the common place [Court of Common Pleas] no -moe sergeants but one, which was sergeant Bouloise -[Bendlowes?], who looked about him, there was -elbow roome enough, which made the lawyers -complaine of their iniuries in that terme.’ In 1536 -John Rastell the lawyer and printer of law books -complains to Cromwell that in both capacities he is -in a bad way: he used to print from two to three -hundred reams every year but now prints not a -hundred reams in two years; he used to make -forty marks a year by the law and now does not -make forty shillings (Ellis, <cite>Original Letters</cite>, Ser.<span class="pagenum"><a name="Page_83" id="Page_83">[83]</a></span> -III., vol. <span class="smcapuc">II.</span>, p. 309). On such stories as these -little stress is laid; but until the judicial records -of the Tudor reigns are statistically examined, -scraps of information may be useful.</p> - -<div class="sidenote">Examination by civilians in criminal cases.</div> - -<p id="note53"><span class="label"><a href="#anchor53">[53]</a></span> For an instance see the examination of a -servant of the Abbot of Sawley by Drs Layton, -Legh and Petre (<cite>Letters and Papers, Henry VIII.</cite>, -vol. <span class="smcapuc">XII.</span>, pt. 1, p. 231).</p> - -<div class="sidenote">The doctors of law and the Peasants’ War.</div> - -<p id="note54"><span class="label"><a href="#anchor54">[54]</a></span> As to the evil done to the peasants in Germany -by the Reception of Roman law, see Egelhaaf, -<cite lang="de">Deutsche Geschichte</cite> (<cite lang="de">Zeitalter der Reformation</cite>), -vol. <span class="smcapuc">I.</span>, pp. 544 ff.; Lamprecht, <cite lang="de">Deutsche Geschichte</cite>, -vol. <span class="smcapuc">V.</span>, pp. 99 ff. Dr Brunner (<cite lang="de">Grundzüge der -deutschen Rechtsgeschichte</cite>, 1901, p. 216) has lately -said that Roman jurisprudence ‘<span lang="de">auch wenn sie -nicht geradezu bauernfeindlich war, doch kein -Verständnis besass für die Mannigfaltigkeit der -bäuerlichen Besitzformen des deutschen Rechtes.</span>’ -One of the revolutionary programmes proposed an -exclusion of all doctors of civil or canon law from -the courts and councils of the princes. See -Egelhaaf, <cite>op. cit.</cite>, pp. 499, 598. The following is a -pretty little tale:—‘<span lang="de">So geschah es wirklich einmal -zu Frauenfeld im Thurgau, wo die Schöffen einen -Doctor aus Constanz, der sich für die Entscheidung -eines Erbschaftsstreites auf Bartolus und Baldus -berufen wollte, zur Thüre hinauswarfen mit den -Worten: “Hört ihr, Doctor, wir Eidgenossen -fragen nicht nach dem Bartele und Baldele. Wir -haben sonderbare Landbräuche und Rechte. Naus<span class="pagenum"><a name="Page_84" id="Page_84">[84]</a></span> -mit euch, Doctor, naus mit euch!” Und habe, -heisst es in dem Berichte weiter, der gute Doctor -müssen abtreten, und sie Amtleute haben sich -einer Urtel verglichen, den Doctor wieder eingefordert -und ein Urtel geben wider den Bartele -und Baldele und wider den Doctor von Constanz.</span>’ -(Janssen, <cite lang="de">Geschichte des deutschen Volkes</cite>, vol. <span class="smcapuc">I.</span>, -p. 490.) It is a serious question what would have -become of our English copyholders if in the -sixteenth century Roman law had been received. -The practical jurisprudence of this age seems to -have been kinder to the French than to the German -peasant; perhaps because it was less Roman in -France than in Germany. See E. Levasseur in -Lavisse et Rambaud, <cite lang="fr">Histoire générale</cite>, vol. <span class="smcapuc">IV.</span>, -p. 188: ‘<span lang="fr">Des jurisconsultes commencèrent à considérer -l’inféodation comme une aliénation et le -colon censitaire comme le véritable propriétaire de -la terre sur laquelle le seigneur n’aurait possédé -qu’un droit <em>éminent</em>.</span>’ The true Romanist, I take -it, can know but one <i lang="la">dominium</i>, and is likely to give -that one to the lord.</p> - -<div class="sidenote">England and Germany.</div> - -<p id="note55"><span class="label"><a href="#anchor55">[55]</a></span> As regards Germany, the theoretical continuance -of the Roman empire is not to be forgotten, but its -influence on the practical Reception of Roman law -may be overrated. In the age of the Reception -Roman law came to the aid, not of imperialism, but -of particularism. Then it is true that English law -was inoculated in the thirteenth century when -Bracton copied from Azo of Bologna. The effect<span class="pagenum"><a name="Page_85" id="Page_85">[85]</a></span> -of this is well stated by Dr Brunner in the inaugural -address delivered by him as rector of the University -of Berlin (<cite lang="de">Der Antheil des deutschen Rechtes an der -Entwicklung der Universitäten</cite>, Berlin, 1896, p. 15): -‘<span lang="de">In England und Frankreich, wo die Aufnahme -römischer Rechtsgedanken früher erfolgte, hat -diese nach Art einer prophylactischen Impfung -gewirkt und das mit ihnen gesättigte nationale -Recht widerstandsfähig gemacht gegen zerstörende -Infectionen.</span>’ As to the Roman law in Bracton, -I may be allowed to refer to <cite>Bracton and Azo</cite>, -Selden Society, 1895: in the introduction to that -volume I have ventured to controvert some sentences -that were written by Sir H. Maine. Bracton -became important for a second time in the sixteenth -century when (1569) his book was printed, for -it helped Coke to arrange his ideas, as any one may -see who looks at the margin of Coke’s books. The -medieval chancery has often been accused of -romanizing. Its procedure was suggested by a -summary procedure that had been devised by -decretists and legists: the general aim of that -scheme was the utmost simplicity and rapidity. -(Contrast this summary procedure as revealed by -<cite>Select Cases in Chancery</cite>, ed. Baildon, and <cite>Select -Cases in the Court of Requests</cite>, ed. Leadam, with -the solemn procedure of the civil law exemplified -by <cite>Select Cases in the Court of Admiralty</cite>, ed. -Marsden: these three books are published by the -Selden Society.) On the other hand, no proof has -been given that in the middle age the chancery<span class="pagenum"><a name="Page_86" id="Page_86">[86]</a></span> -introduced any substantive law of Roman origin. -At a later time when it began to steal work (suits -for legacies and the like) from the ecclesiastical -courts, it naturally borrowed the rules by which -those matters had theretofore been governed.</p> - -<div class="sidenote">The Reception in Scotland.</div> - -<p>A full history of the Reception in Scotland -seems to be a desideratum. But see Goudy, <cite>Fate -of Roman Law</cite> (Inaugural Lecture), 1894; also -J. M. Irvine, <cite>Roman Law</cite> in <cite>Green’s Encyclopædia -of the Law of Scotland</cite>. Whether at any time -the Reception in Scotland ran the length that it -ran in Germany may be doubted; but the influence -exercised by English example since 1603 would -deserve the historian’s consideration. Even if this -influence went no further than the establishment -of the habit of finding ‘authority’ in decided cases, -it would be of great importance. Where such a -habit is established in practice and sanctioned by -theory, any return to the pure text, such as that -which was preached in Germany by ‘the historical -school,’ would be impossible. Also it may be -suggested that the Roman law which played -upon the law of Scotland in the seventeenth and -eighteenth centuries was not always very Roman, -but was strongly dashed with ‘Natural Law.’ For -instance, if in Scotland the firm of partners is a -‘legal person,’ this is not due to the influence of -Roman law as it is now understood by famous -expositors, or as it was understood in the middle -ages. Also (to take another example) it seems -impossible to get the Scotch ‘trust’ out of Roman<span class="pagenum"><a name="Page_87" id="Page_87">[87]</a></span> -law by any fair process. The suggestion that it is -‘a contract made up of the two nominate contracts -of deposit and mandate’ seems a desperate effort -to romanize what is not Roman.</p> - -<div class="sidenote">The persistence of Lombard law.</div> - -<p id="note56"><span class="label"><a href="#anchor56">[56]</a></span> Pertile, <cite lang="it">Storia del diritto italiano</cite>, ed. 2, vol. -<span class="smcapuc">II.</span> (2), p. 69: ‘<span lang="it">Laonde può dirsi che l’abrogazione -definitiva ed espressa della legislazione longobardica -nel regno di Napoli non abbia avuto luogo se non -al principio del nostro secolo, sotto Giuseppe -Bonaparte, al momento in cui vennero publicati -colà i codici francesi.</span>’ On p. 65 will be found some -of the opprobrious phrases that the civilians applied -to Lombard law: <span lang="la">‘nec meretur ius Lombardorum -lex appellari sed faex’: ‘non sine ratione dominus -Andreas de Isernia vocat leges illas ius asininum.’</span></p> - -<div class="sidenote">French law in the universities.</div> - -<p id="note57"><span class="label"><a href="#anchor57">[57]</a></span> Esmein, <cite lang="fr">Histoire du droit français</cite>, ed. 2, -p. 757: ‘<span lang="fr">C’est seulement en 1679 que l’enseignement -du droit français reçut une place bien modeste -dans les universités.</span>’ Viollet, <cite lang="fr">Histoire du droit civil -français</cite>, p. 217: ‘<span lang="fr">Lorsqu’en 1679, Louis XIV. érigea -à la faculté de Paris une chaire de droit français et -une chaire de droit romain, le premier professeur -de droit français, Fr. de Launay, commenta les -<em>Institutes</em> de Loisel, qui prirent ainsi une situation -quasi-officielle à côté des <em>Institutes</em> de Justinien.</span>’ -Brissaud, <cite lang="fr">Histoire du droit français</cite>, p. 237: ‘<span lang="fr">Le -latin avait été jusque-là la langue de l’école. Le -premier professeur en droit français à Paris, de -Launay, fit son cours en langue française.</span>’</p> - -<p><span class="pagenum"><a name="Page_88" id="Page_88">[88]</a></span></p> - -<div class="sidenote">German law in the universities.</div> - -<p id="note58"><span class="label"><a href="#anchor58">[58]</a></span> Siegel, <cite lang="de">Deutsche Rechtsgeschichte</cite>, ed. 3, p. 152: -‘<span lang="de">Den ersten und zugleich entscheidenden Schritt in -dieser Richtung that Georg Beyer, welcher… -zunächst durch einen Zufall veranlasst wurde, an -der Wittenberger Universität, wohin er als Pandektist -berufen worden war, 1707 eine Vorlesung -über das <i lang="la">ius germanicum</i> anzukündigen und zu -halten.</span>’</p> - -<div class="sidenote">Professorships in America.</div> - -<p id="note59"><span class="label"><a href="#anchor59">[59]</a></span> Thayer, <cite>The Teaching of English Law at -Universities</cite> in <cite>Harvard Law Review</cite>, vol. <span class="smcapuc">IX.</span>, p. -171: ‘Blackstone’s example was immediately followed -here.… In 1779 … a chair of law was founded in -Virginia at William and Mary College … and in the -same year Isaac Royall of Massachusetts, then a -resident in London, made his will, giving property -to Harvard College for establishing there that -professorship of law which still bears his name.’ -The Royall professorship was actually founded in -1815 (<cite>Officers and Graduates of Harvard</cite>, 1900, -p. 24). At Cambridge (England) the Downing -professorship was founded in 1800.</p> - -<div class="sidenote">The Inns of Court.</div> - -<p id="note60"><span class="label"><a href="#anchor60">[60]</a></span> See <cite>Records of the Honorable Society of -Lincoln’s Inn</cite>, 1896 ff.; <cite>Calendar of the Records of -the Inner Temple</cite>, 1896. The records of Gray’s Inn -are, so I understand, to be published. See also -Philip A. Smith, <cite>History of Education for the -English Bar</cite>, 1860; Joseph Walton, <cite>Early History -of Legal Studies in England</cite>, 1900, read at a -meeting of the American Bar Association in 1899. -In foreign countries there were gilds or fraternities<span class="pagenum"><a name="Page_89" id="Page_89">[89]</a></span> -of lawyers. Thus in Paris the <i lang="fr">avocats</i> and <i lang="fr">procureurs</i> -about the middle of the fourteenth century -formed a fraternity of St Nicholas: ‘<span lang="fr">dont le chef -porte le bâton ou bannière (de là le nom de bâtonnier)</span>’: -Brissaud, <cite lang="fr">Histoire du droit français</cite>, p. 898. -But, though a certain care for the education of -apprentices was a natural function of the medieval -craft-gild, I cannot find that elsewhere than in -England fraternities of legal practitioners took upon -themselves to educate students and to give what in -effect were degrees, and degrees which admitted to -practice in the courts. R. Delachenal, <cite lang="fr">Histoire des -avocats au parlement de Paris</cite> (Paris, 1885), says -that, though not proved, it is probable that already -in the fourteenth and fifteenth centuries the <i lang="fr">avocat</i> -had to be either <i lang="fr">licencié en lois</i> or <i lang="fr">licencié en décret</i>: -in other words, a legal degree given by an university -was necessary for the intending practitioner. As -regards the England of the same age two interesting -questions might be asked. Was there any considerable -number of doctors or bachelors of law -who were not clergymen? Had the English judge -or the English barrister usually been at an university? -I am inclined to think that a negative answer -should be given to the first question and perhaps -to the second also. Apparently Littleton (to take -one example) is not claimed by Oxford or Cambridge.</p> - -<div class="sidenote">Sir T. Smith and the Inns of Court.</div> - -<p id="note61"><span class="label"><a href="#anchor61">[61]</a></span> Smith, <cite>Inaugural Oration</cite>, <span class="smcapuc">MS.</span> Baker, <span class="smcapuc">XXXVII.</span> -409 (Camb. Univ. Lib.): ‘<span lang="la">… At vero nostrates,<span class="pagenum"><a name="Page_90" id="Page_90">[90]</a></span> -et Londinenses iurisconsulti, quibuscum disputare, -cum ruri sim et extra academiam, non illibenter -soleo, qui barbaras tantum et semigallicas nostras -leges inspexerint, homines ab omnibus suis humanioribus -disciplinis et hac academiae nostrae instructione -semotissimi, etiam cum quid e philosophia, -theologiave depromptum in quaestione ponatur, -Deus bone! quam apte, quamque explicate singula -resumunt, quanta cum facilitate et copia, quantaque -cum gratia et venustate, vel confirmant sua, vel -refellunt aliena! Certe nec dialecticae vim multum -in eis desideres, nec eloquentiae splendorem. Eorum -oratio est Anglicana quidem, sed non sordida, non -inquinata, non trivialis, gravis nonnunquam et -copiosa, saepe urbana et faceta, non destituta -similitudinum et exemplorum copia, lenis et aequabilis, -et pleno velut alveo fluens, nusquam impedita. -Quae res tantam mihi eorum hominum admirationem -concitavit, ut aliquandiu vehementer optarim, -secessionem aliquam ab ista academia facere et -Londinum concedere, ut eos in suis ipsis scholis -ac circulis disputantes audirem, quod an sim facturus -aliquando, cum feriae longae, et quasi solenne iusticium, -nostris praelectionibus indicatur, haud equidem -pro certo affirmaverim.</span>’</p> - -<div class="sidenote">Multiplication of English law books.</div> - -<p id="note62"><span class="label"><a href="#anchor62">[62]</a></span> Soule, <cite>Year Book Bibliography</cite>, in <cite>Harvard -Law Review</cite>, vol. <span class="smcapuc">XIV.</span>, p. 564: ‘In 1553 the field -of Year-Book publication was entered by Richard -Tottell, who for thirty-eight years occupied it so -fully as to admit no rival. There are about 225<span class="pagenum"><a name="Page_91" id="Page_91">[91]</a></span> -known editions of separate Years or groups of -Years which bear his imprint or can be surely -attributed to his press.… He is pre-eminently <em>the</em> -publisher of Year Books, and he so completely put -them ‘in print’ and so cheapened their price that -he evidently made them a popular and profitable -literature.’</p> - -<p>In 1550 an English lawyer’s library of printed -books might apparently have comprised (besides -some Statutes and Year Books) Littleton’s Tenures, -The Old Tenures, Statham’s Abridgement, Fitzherbert’s -Abridgement, Liber Intrationum, The Old -Natura Brevium, perhaps a Registrum Brevium (if -that book, printed in 1531, was published before -1553), Institutions or principal grounds etc. [1544], -Carta feodi simplicis, [Phaer’s] New book of presidentes, -Diversite de courts, Novae Narrationes, -Articuli ad novas narrationes, Modus tenendi curiam -baronis, Modus tenendi unum hundredum, Fitzherbert’s -Justice of the Peace, Perkins’s Profitable -Book, Britton, Doctor and Student. A great part -of what was put into print was of medieval origin -and had been current in manuscript. In 1600 the -following might have been added: Glanvill, Bracton, -Fitzherbert’s Natura Brevium, Broke’s Abridgement, -Broke’s New Cases, Rastell’s Entries, Staundford’s -Prerogative and Pleas of the Crown, Crompton’s -Justice of the Peace, Crompton’s Authority of -Courts, West’s Symbolæography, Theloall’s Digest, -Smith’s Commonwealth, Lambard’s Archaionomia -and Eirenarcha, Fulbecke’s Direction or Preparative<span class="pagenum"><a name="Page_92" id="Page_92">[92]</a></span> -to the Study of the Law [1600], Plowden’s -Commentaries, Dyer’s Reports and the first volume -of Coke’s Reports [1600]. This represents a -great advance. Already Fulbecke in his curious -book (which was reprinted as still useful in 1829) -attempts a review of English legal literature: -a critical estimate of Dyer, Plowden, Staundford, -Perkins and other writers. Lambard’s revelation of -the Anglo-Saxon laws was not unimportant, for a -basis was thus laid for national boasts; and, but for -the publication of Glanvill, Bracton and Britton, -the work that was done by Coke would have been -impossible.</p> - -<p>Were any books about Roman law printed in -England before 1600, except a few of Gentili’s?</p> - -<div class="sidenote">The Court of Requests.</div> - -<p id="note63"><span class="label"><a href="#anchor63">[63]</a></span> See Mr Leadam’s Introduction to <cite>Select Pleas -in the Court of Requests</cite> (Seld. Soc.) and <cite>Dict. Nat. -Biog.</cite> s.n. Caesar, Sir Julius.</p> - -<div class="sidenote">Cowell’s ‘Interpreter.’</div> - -<p id="note64"><span class="label"><a href="#anchor64">[64]</a></span> See Gardiner, <cite>Hist. England</cite>, 1603-1642, -vol. <span class="smcapuc">II.</span>, pp. 66-68; E. C. Clark, <cite>Cambridge Legal -Studies</cite>, pp. 74-75. Cowell’s <cite>Institutiones</cite> (less -known than the <cite>Interpreter</cite>) are an attempt, ‘in the -main very able,’ so Dr Clark says, to bring English -materials under Roman rubrics. It is a book which -might have played a part in a Reception; but it -came too late.</p> - -<div class="sidenote">Roman-Dutch law.</div> - -<p id="note65"><span class="label"><a href="#anchor65">[65]</a></span> There can now be few, if any, countries outside -the British Empire in which a rule of law is enforced -because it is (or is deemed to be) a rule of Roman<span class="pagenum"><a name="Page_93" id="Page_93">[93]</a></span> -law. See <cite>Galliers <span class="norm">v.</span> Rycroft</cite> [1901] A. C. 130, for a -recent discussion before the Judicial Committee (on -an appeal from Natal) of the import of a passage -in the Digest. Are there many lands in which so -much respect would be paid by a tribunal and for -practical purposes to a response of Papinian’s? I -think not.</p> - -<div class="sidenote">First Charter of Virginia.</div> - -<p id="note66"><span class="label"><a href="#anchor66">[66]</a></span> Macdonald, <cite>Select Charters</cite>, 1899, p. 1: ‘The -first draft of the charter … was probably drawn by -Sir John Popham … but the final form was the work -of Sir Edward Coke, attorney general, and Sir John -Dodderidge, solicitor general.’</p> - -<div class="sidenote">First Assembly in Virginia.</div> - -<p id="note67"><span class="label"><a href="#anchor67">[67]</a></span> Doyle, <cite>The English in America</cite>, vol. <span class="smcapuc">I.</span>, p. 211: -‘On the 30th of July, 1619, the first Assembly met -in the little church at Jamestown. A full report of -its proceedings still exists in the English Record -Office (<cite>Colonial Papers</cite>, July 30, 1619).’ An abstract -is printed in <cite>Calendar of State Papers, Colonial</cite>, -1574-1660, p. 22.</p> - -<div class="sidenote">The tenure of Maryland.</div> - -<p id="note68"><span class="label"><a href="#anchor68">[68]</a></span> Charter of Maryland, 1632, Macdonald, <cite>Select -Charters</cite>, p. 53. In 1620 the grant to the Council -of New England (<cite>Ibid.</cite>, p. 23) referred to the manor -of East Greenwich and reserved by way of rent a -fifth part of the ore of gold and silver. The grant -of Carolina (<cite>Ibid.</cite>, p. 121) reserved a rent of twenty -marks and a fourth of the ore. The grant of -New Netherlands to the duke of York (<cite>Ibid.</cite>, p. 136) -reserved a rent of forty beaver skins, if demanded. -The grant of Pennsylvania to William Penn speaks<span class="pagenum"><a name="Page_94" id="Page_94">[94]</a></span> -of the Castle of Windsor and reserves two beaver -skins and a fifth of the gold and silver ore (<cite>Ibid.</cite>, -p. 185). Georgia was holden as of the honour of -Hampton Court in the county of Middlesex at a -rent of four shillings for every hundred acres that -should be settled (<cite>Ibid.</cite>, p. 242).</p> - -<div class="sidenote">The tenure of Bombay.</div> - -<p id="note69"><span class="label"><a href="#anchor69">[69]</a></span> Charter of 1669 printed among <cite>Charters granted -to the East India Company</cite> (no date or publisher’s -name): ‘to be holden of us, our heirs and successors -as of the manor of East Greenwich in the county of -Kent, in free and common soccage and not in capite -nor by knight’s service, yielding and paying therefor -to us, our heirs and successors at the Custom House, -London, the rent or sum of ten pounds of lawful -money of England in gold on the thirtieth day of -September yearly for ever.’</p> - -<div class="sidenote">The tenure of Prince Rupert’s land.</div> - -<p id="note70"><span class="label"><a href="#anchor70">[70]</a></span> Charter of 1670 incorporating the Hudson’s -Bay Company, printed by Beckles Wilson, <cite>The -Great Company</cite>, vol. <span class="smcapuc">II.</span>, pp. 318, 327: ‘yielding -and paying yearly to us … two elks and two black -beavers, whensoever and as often as we our heirs -and successors shall happen to enter into the said -countries, territories and regions hereby granted.’</p> - -<div class="sidenote">Kent and Blackstone.</div> - -<p id="note71"><span class="label"><a href="#anchor71">[71]</a></span> Thayer, <cite>The Teaching of English Law at -Universities</cite> in <cite>Harvard Law Review</cite>, vol. <span class="smcapuc">IX.</span>, -p. 170: ‘“I retired to a country village,” Chancellor -Kent tells us in speaking of the breaking up of Yale -College by the war, where he was a student in 1779, -“and, finding Blackstone’s Commentaries, I read the<span class="pagenum"><a name="Page_95" id="Page_95">[95]</a></span> -four volumes.… The work inspired me at the age of -fifteen with awe, and I fondly determined to be a -lawyer.” … “There is abundant evidence,” if we may -rely upon the authority of Dr Hammond, whose -language I quote, “of the immediate absorption of -nearly twenty-five hundred copies of the Commentaries -in the thirteen colonies before the Declaration -of Independence.”’</p> - -<div class="sidenote">Marshall and Blackstone.</div> - -<p id="note72"><span class="label"><a href="#anchor72">[72]</a></span> Thayer, <cite>John Marshall</cite>, 1901, p. 6: ‘When -Marshall was about eighteen years old he began -to study Blackstone.… He seems to have found a -copy of Blackstone in his father’s house.… Just now -the first American edition was out (Philadelphia, -1771-2), in which the list of subscribers, headed -by the name of “John Adams, barrister at law, -Boston,” had also that of “Captain Thomas -Marshall, Clerk of Dunmore County.”’</p> - -<div class="sidenote">Roman law in America.</div> - -<p id="note73"><span class="label"><a href="#anchor73">[73]</a></span> It may be interesting to notice that in 1856, -and perhaps even in 1871, Sir H. Maine believed -that the Code of Louisiana (‘of all republications -of Roman law the one which appears to us the -clearest, the fullest, the most philosophical and the -best adapted to the exigencies of modern society’) -had a grand destiny before it in the United States. -‘Now it is this code, and not the Common Law of -England which the newest American States are -taking for the substratum of their laws.… The -Roman law is, therefore, fast becoming the lingua -franca of universal jurisprudence.’ (Maine, <cite>Roman -Law and Legal Education</cite>, 1856, reprinted in <cite>Village<span class="pagenum"><a name="Page_96" id="Page_96">[96]</a></span> -Communities</cite>, ed. 3, pp. 360-1.) Nowadays this hope -or fear of a Reception of Roman law in the United -States seems, so I am given to understand, quite -unfounded. See e.g. J. F. Dillon, <cite>Laws and Jurisprudence -of England and America</cite>, 1894, p. 155: -‘the common law [in distinction from the Roman -or civil law] is the basis of the laws of every State -and Territory of the Union, with comparatively -unimportant and gradually waning exceptions.’</p> - -<div class="sidenote">Ihering and the litigious Englishman.</div> - -<p id="note74"><span class="label"><a href="#anchor74">[74]</a></span> Ihering, <cite lang="de">Der Kampf um’s Recht</cite>, ed. 10, pp. -45, 69: ‘<span lang="de">Ich habe bereits oben das Beispiel des -kampflustigen Engländers angeführt, und ich kann -hier nur wiederholen, was ich dort gesagt: in dem -Gulden, um den er hartnäckig streitet, steckt die -politische Entwicklung Englands. Einem Volke, -bei dem es allgemeine Uebung ist, dass Jeder -auch im Kleinen und Kleinsten sein Recht tapfer -behauptet, wird Niemand wagen, das Höchste, was -es hat, zu entreissen, und es ist daher kein Zufall, -dass dasselbe Volk des Alterthums, welches im -Innern die höchste politische Entwicklung und -nach Aussen hin die grösste Kraftentfaltung aufzuweisen -hat, das römische, zugleich das ausgebildetste -Privatrecht besass.</span>’</p> - -<div class="sidenote">Codes in English Colonies.</div> - -<p id="note75"><span class="label"><a href="#anchor75">[75]</a></span> Thus in particular Queensland in 1899 enacted -a criminal code of 707 sections. See <cite>Journal of the -Society of Comparative Legislation</cite>, New Ser., vol. -<span class="smcapuc">VI.</span>, pp. 555-560: ‘The precedents utilised in framing -the Code were the [in England abortive] draft -English codes of 1879 and 1880, the Italian Penal<span class="pagenum"><a name="Page_97" id="Page_97">[97]</a></span> -Code of 1888, and the Penal Code of the State of -New York.’ See also Ilbert, <cite>Legislative Methods</cite>, -p. 155.</p> - -<div class="sidenote">German Civil Code.</div> - -<p id="note76"><span class="label"><a href="#anchor76">[76]</a></span> Some information in English about the new -German code will be found in articles by Mr E. -Schuster, <cite>Law Quarterly Review</cite>, vol. <span class="smcapuc">XII.</span>, p. 17, -and <cite>Journal of the Society of Comparative Legislation</cite>, -Old Series, vol. <span class="smcapuc">I.</span>, p. 191. Despite the careful -exclusion of almost all words derived from the Latin -(except <i>Hypothek</i>, which happens to be Greek), the -new law book may look Roman to an Englishman; -but then it does not look Roman to Germans. The -following sentences are taken from a speech delivered -in the Reichstag (Mugdan, <cite lang="de">Materialien zum -bürgerlichen Gesetzbuch</cite>, vol. <span class="smcapuc">I.</span>, pp. 876-7): ‘<span lang="de">In -dieser Beziehung ist vor Allem der Vorwurf gegen -den Entwurf erhoben, er enthalte materiell kein -deutsches Recht.… Selten ist ein Vorwurf unbegründeter -gewesen.… Das Sachenrecht ist von A -bis Z durchaus deutsches Recht.… Was dann den -Begriff des Besitzes betrifft, von der ganzen römischen -Besitztheorie ist nichts übrig geblieben.… -Der allgemeine Theil des Obligationenrechtes ist -natürlich römischen Ursprunges.… Kommen wir -aber zu den einzelnen speziellen Rechtsgeschäften, -so treffen wir auch da sofort wieder deutsches -Recht.… Auch das Familienrecht ist durchaus -deutschrechtlich.… Dann ist das Erbrecht durch -und durch deutschrechtlichen Ursprunges.…</span>’ The -supposition that codification means romanization<span class="pagenum"><a name="Page_98" id="Page_98">[98]</a></span> -is baseless; it may mean deromanization. But the -great lesson to be learnt by Englishmen from the -German Code is that a democratically elected -assembly, which is for many purposes divided into -bitterly contending fractions, can be induced to -show a wonderful forbearance when uniformity of -law is to be attained.</p> - -<div class="sidenote">Unity of law.</div> - -<p id="note77"><span class="label"><a href="#anchor77">[77]</a></span> Molinaeus (Charles Du Moulin), <cite lang="la">Oratio de -concordia et unione consuetudinum Franciae</cite>, in -<cite lang="la">Opera</cite> (1681), vol. <span class="smcapuc">II.</span>, p. 691: ‘<span lang="la">Mihi quoque videtur -nihil aptius, nihil efficacius ad plures provincias -sub eodem imperio retinendas et fovendas, nec -fortius nec honestius vinculum quam communio -et conformitas eorundem morum legumve utilium -et aequabilium.</span>’</p> - -<div class="sidenote">The school at Harvard.</div> - -<p id="note78"><span class="label"><a href="#anchor78">[78]</a></span> The name of Harvard is here mentioned -without prejudice to the just claims of any other -American university; but the <cite>Harvard Law Review</cite>, -edited by a committee of students, is a -journal of which any school might be proud.</p> - -</div> - -<p class="titlepage">CAMBRIDGE: PRINTED BY J. & C. F. CLAY, AT THE UNIVERSITY PRESS.</p> - - - - - - - - -<pre> - - - - - -End of the Project Gutenberg EBook of English Law and the Renaissance, by -Frederic William Maitland - -*** END OF THIS PROJECT GUTENBERG EBOOK ENGLISH LAW AND THE RENAISSANCE *** - -***** This file should be named 54251-h.htm or 54251-h.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/4/2/5/54251/ - -Produced by Clarity and the Online Distributed Proofreading -Team at http://www.pgdp.net (This file was produced from -images generously made available by The Internet -Archive/Canadian Libraries) - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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