Chapter II: Part 2

[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._]