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Title: English Law and the Renaissance - The Rede Lecture for 1901
Author: Maitland, Frederic William
Language: English
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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. CLAY, AT THE UNIVERSITY PRESS.
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