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 yourmynd 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 calledDefensorium 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 ofDefensor 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).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.The Henrician doctors of law.[33]The following facts are taken from theDictionary 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, seeGrace 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.)‘The king’s great matter.’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.Papists in the Inns of Court.[34]See the remarkable paper printed inCalendar 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) inDict. Nat. Biog.: and for Browne see alsoSpanish Calendar, 1558-67, pp. 369, 640.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 τύπῳthe 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.’Smith writes without books.[36]Smith to Haddon, 6 Ap. 1565, in G. HaddoniOrationes, 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 wroteThe Commonwealth of England.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 andwas 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 partof 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 Frenchcoutume. 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 languagewyther nempt.’Barbarous language of the law.[40]Pollock,First Book of Jurisprudence, p. 283, from Dyer’sReports, 188b, 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 contribuapas 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.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.’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).Civilians in councils and in courts.[43]The story (with which we are familiar in England) of the evolution of various councils and courts from an ancientCuria Regisseems to have a close parallel in French history: so close that imitation on one side or the other may at times be suspected. After theparlementwith its various chambers (which answer to our courts of common law) has been established, the royal council interferes with judicial matters in divers ways, andsections of the council become tribunals which compete with theparlement. (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 thatdie 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 fromVerwaltungtoRechtsprechung. 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).Project for a new court.In 1534 there was a project for the erection ofyet another new court. SeeLetters 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.Reform of the Inns of Court.[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 underfoot.’ 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 king’s College of Law.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 civillaw 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.)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.)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 theReformatio Legum, see Hallam,Const. Hist., ed. 1832, vol.I., p. 139; Maitland,Canon Law in England, p. 178.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 commandedin 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 véritableslois 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 HalsgerichtsordnungKarls 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. ALandrecht(to be contrasted withReichsrecht) 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 asBalfour’s Practicksrepresents the work of the commissioners. SeeDict. Nat. Biog., vol.XV., p. 317; vol.III., p. 53.The expiration of the Year Books.[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’sYear-Book Bibliography, printed inHarvard 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 hisCommentariestouching 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).Decline of law reports.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, inHarvard Law Review, vol.XV., p. 1.)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.’The Students’ petition in 1547.[51]Acts of the Privy Council, 1547-1550, pp. 48-50. Petition of divers students of the commonlaws 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 anyrule certeine or lawe written.…Incroachment of the civil law.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.’Civilians as judges.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’smotives 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.).Common law and the Pilgrimage of Grace.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, seeLetters and Papers, Henry VIII., vol.XI., pp. 506-507.)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.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).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. Nausmit 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 droitéminent.’ The true Romanist, I take it, can know but onedominium, and is likely to give that one to the lord.England and Germany.[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 effectof 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 toBracton 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 bySelect Cases in Chancery, ed. Baildon, andSelect Cases in the Court of Requests, ed. Leadam, with the solemn procedure of the civil law exemplified bySelect 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 chanceryintroduced 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.
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 yourmynd 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 calledDefensorium 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 ofDefensor 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).
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.
The Henrician doctors of law.
[33]The following facts are taken from theDictionary 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, seeGrace 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.)
‘The king’s great matter.’
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.
Papists in the Inns of Court.
[34]See the remarkable paper printed inCalendar 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) inDict. Nat. Biog.: and for Browne see alsoSpanish Calendar, 1558-67, pp. 369, 640.
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 τύπῳthe 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.’
Smith writes without books.
[36]Smith to Haddon, 6 Ap. 1565, in G. HaddoniOrationes, 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 wroteThe Commonwealth of England.
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 andwas 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 partof 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 Frenchcoutume. 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 languagewyther nempt.’
Barbarous language of the law.
[40]Pollock,First Book of Jurisprudence, p. 283, from Dyer’sReports, 188b, 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 contribuapas 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.
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.’
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).
Civilians in councils and in courts.
[43]The story (with which we are familiar in England) of the evolution of various councils and courts from an ancientCuria Regisseems to have a close parallel in French history: so close that imitation on one side or the other may at times be suspected. After theparlementwith its various chambers (which answer to our courts of common law) has been established, the royal council interferes with judicial matters in divers ways, andsections of the council become tribunals which compete with theparlement. (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 thatdie 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 fromVerwaltungtoRechtsprechung. 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).
Project for a new court.
In 1534 there was a project for the erection ofyet another new court. SeeLetters 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.
Reform of the Inns of Court.
[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 underfoot.’ 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 king’s College of Law.
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 civillaw 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.)
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.)
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 theReformatio Legum, see Hallam,Const. Hist., ed. 1832, vol.I., p. 139; Maitland,Canon Law in England, p. 178.
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 commandedin 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 véritableslois 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 HalsgerichtsordnungKarls 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. ALandrecht(to be contrasted withReichsrecht) 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 asBalfour’s Practicksrepresents the work of the commissioners. SeeDict. Nat. Biog., vol.XV., p. 317; vol.III., p. 53.
The expiration of the Year Books.
[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’sYear-Book Bibliography, printed inHarvard 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 hisCommentariestouching 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).
Decline of law reports.
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, inHarvard Law Review, vol.XV., p. 1.)
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.’
The Students’ petition in 1547.
[51]Acts of the Privy Council, 1547-1550, pp. 48-50. Petition of divers students of the commonlaws 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 anyrule certeine or lawe written.…
Incroachment of the civil law.
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.’
Civilians as judges.
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’smotives 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.).
Common law and the Pilgrimage of Grace.
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, seeLetters and Papers, Henry VIII., vol.XI., pp. 506-507.)
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.
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).
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. Nausmit 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 droitéminent.’ The true Romanist, I take it, can know but onedominium, and is likely to give that one to the lord.
England and Germany.
[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 effectof 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 toBracton 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 bySelect Cases in Chancery, ed. Baildon, andSelect Cases in the Court of Requests, ed. Leadam, with the solemn procedure of the civil law exemplified bySelect 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 chanceryintroduced 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.