1 made on him by Coke and his vindication by James I., on the famous occasion in 1608 when Coke maintained the supremacy of the common law.2 Another ecclesiastical lawyer, distinguished as a controversialist, was Dr. Cosin, an LL.D. of Cambridge, advocate of Doctors' Commons, Dean of the Arches, and vicargeneral. Of those who held the positions of judge advocate general the best known is perhaps the Dutchman Dorislaus. He was judge advocate to Charles I. in 1640; and to Essex, the commander of the Parliamentary forces, in 1642. He took some part in the trial of Charles I., and thereby earned the hatred of all royalists. Having been sent as envoy to the United Provinces, some Scotch royalists attacked him in his inn and murdered him. Arthur Duck also, besides acting as chancellor in two dicceses and as master in Chancery, was king's advocate in the Earl Marshal's court. As we shall see, his fame rests chiefly on his literary work.4 5 Very many of these civilians, and others besides, acted at some period of their career as masters of Requests and masters in Chancery; and through them the civil law may have had some influence, if not upon the law administered, at any rate upon the development of the forms of the procedure used in those courts. All of them, in their different capacities, helped to define and settle the sphere occupied by the civil law, and the form and application of its rules. We shall now see that their efforts were assisted by the books which were written during this period on most of the departments of the civilians' practice, on the theory of the law, on the relation of the civil law to the common law, and on the history of the civil law. (2) The literature of the civil law. 7 The department of law on which there was the most abundant literature was the new international law. Nys tells us that, in the last years of the sixteenth century, the books of Englishmen took a leading part in the development of the law. Of the works of the two most important writers, Gentili and Zouche, I shall 1 James told Coke that Crompton was as good a man as he was, "Coke having by way of exception used some speech against Thomas Crompton," Letter from John Hercy to the Earl of Shrewsbury cited E.H.R. xviii 669; see Senior, Doctors' Commons and the Old Court of Admiralty 89. 2 Below 430-431. 4 Below 24-25. 3 Ranke, History of England iii 37-38. 5 That a large number of the masters in Chancery were at this period civilians is clear from the lists of the masters given by Foss in vols. v and vi of his Lives of the Judges; for an account of some of them see below 257-261. 6 Vol. ii 228 n. 5; below 258. 7" A partir de Gentil, notre science se développe en Angleterre," Nys, Les Origines du Droit International 133. 1 speak at length when I come to deal with the history of international law in this country. Here I shall only notice briefly a few of the less important books on this subject. In 1589 and 1591 appeared two translations of a book entitled Instructions sur le faict de la guerre by Raymond de Beccaria of Pavia. The first translation was made by Paul Ive and was called Instructions for the Warres. The second was made by John Eliot from a French translation of the original, and was called Discourse of Law and Single Combat.2 In 1593 Matthew Sutcliffe produced an original book on the same subject entitled The Practice, Proceedings and Lawes of Armes. This Sutcliffe was a Cambridge LL.D. and one of the clerical civilians. He was a theologian who had conducted controversies with Bellarmin Parsons and Garnet, Dean of Exeter, the founder and principal of the shortlived theological college of Chelsea to which James I. was a liberal patron, and a member of Doctors' Commons. The book does not, like some of the older works on this subject, enter at length into a proof of the legitimacy of war; but it deals at length with its justifiable causes. It must be waged by the authority of the sovereign, and without unnecessary cruelty. He deals with the treatment of prisoners, the qualities of a general, the recruiting, pay, and discipline of the troops. Fulbecke, a member of Gray's Inn, who wrote a masque, a history, and a volume on Christian ethics, besides some law books of a discursive and original type,1 devoted some chapters of a brief and rambling work, entitled The Pandectes of the Law of Nations,5 to the consideration of certain points connected with the laws of war, leagues, embassies, and the unrighteousness of war against infidels. Richard Bernard, a puritan divine, discussed some points connected with the same subject in a book entitled Bible Battels or the Sacred Art Military. All these books are concerned chiefly with the law of war. It was, as we shall see, the oldest part of international law, and 1 Below 52-55, 58-60. 2 Nys, op. cit. 133-134.. 3 Ibid 134-136; it was dedicated to Essex; see also Dict. Nat. Biog.; Raleigh also published A Discourse of the Original and Fundamental Cause of Natural, Customary, Voluntary and Necessary War; but as Nys says, ibid 136, "Il ne contient rien de fort intéressant comme doctrine." 4 Below 22-24. 5 The full title is "The Pandectes of the law of nations: contayning severall discourses of the questions, points, and matters of law, wherein the nations of the world doe consent and accord"; it was published in 1602; the chapters in which questions of international law are touched on are vii-of the law and justice of arms, of leagues and embassages, and denouncing of warre, of truce, of safe-conduct, captives, hostages, stratagems, and conquests according to the law of nations; xii-that the rules of warre and the law of nations are not to be observed and kept with Pyrates, Rebels, Robbers, Traytors, Revoltes, and Usurpers; xiii-that by the law and practice of Nations, warre is not to be maintained against Infidels onely because they are Infidels, 6 Journal Soc. Comp. Leg. ix 297: the book was published in 1629. therefore the part upon which authority was most abundant. It was the topic on which Gentili wrote his most important book. There were, however, one or two books published on other parts of the subject. Gentili wrote on Embassies;2 and in 1587 a tract (inspired probably by the case of Mendoza) appeared at Oxford entitled De Legato et absoluto principe perduellionis reo.3 Zouche, too, as we shall see, has much to say on all questions both of peace and war. But, with these exceptions, the only other class of literature on this subject are three books which deal with the English claim to the sovereignty over the four British seas. Two of these books are works of minor importance. One, published in 1615, is by Welwod, a Scotchman who professed successively mathematics and civil law at St. Andrews. It is entitled De dominio maris juribusque ad dominium præcipue spectantibus assertio brevis ac methodica. The other is by Sir John Borough or Burroughs, Garter king of Arms, and keeper of the records in Charles I.'s reign. It is entitled The Sovereignty of the British Seas proved by records, history and the municipal laws of this kingdom; and in it the English contention, and the authorities on which it was based, are shortly summarized. It was published in 1653, ten years after the author's death. third is the great work of Selden on the Mare Clausum. 5 The Selden was, in the first place, a common lawyer; and I shall speak of him and his work as a common lawyer at some length in a later chapter. We shall see that he was one of the first of the common lawyers to deal effectively with the history of the common law; and that he owed part of his effectiveness as a legal historian to the fact he was critically acquainted with the sources of English history, and a master of many other kinds of learning besides that of the common law. In the Mare Clausum he showed that he was a competent international lawyer. The book was composed in 1618. It was called forth by the appointment of a commission to settle disputes which had arisen in consequence of the claim of the Dutch fishers to fish in English waters without the king's licence; and it was intended as an answer to Grotius's Mare Liberum. In 1618 James I. had declined to authorize its publication for fear of offending the king of Denmark. But in 1635 it was published at the request of 1 Below 53-55. 8 2 Below 52, 53. 3 Nys, Les Origines du Droit International 356; Professor Holland has suggested that it is a dissertation written by one of the recipients of the degree of doctor in 1587, ibid. 5 4 Below 58-60; for his life see below 17-18. 6 Ibid 385; it is printed in the 1686 edition of Malynes, Lex Mercatoria. 7 Below 407-412. 8 Below 47. Charles I. and dedicated to him.1 Charles was so pleased with it that he directed that official copies should be kept in the Privy Council Office, the Exchequer, and the Admiralty. The book shows that Selden never wholly lost the characteristics of the common lawyer. It is not, like Grotius's work, based on large philosophical principles. But it exhibits a vast historical knowledge, and it is fortified at every point with authority from record, statute, book-case, and chronicle. But, as Sir E. Fry has pointed out,2 his case was so bad that his learning was wasted. "The first book argues that by the law of nature or nations the sea is not common to all men, but is, as much as the land, the subject of private property. In the second book he maintains that the lordship of the circumambient ocean belongs to the crown of Great Britain as an indivisible and perpetual appendage. This claim has long since been abandoned." But for the time, Selden triumphed. The States General did not dare to publish the reply of Graswinckel; and when, in 1652, that reply was published, in answer to a claim put forward by the Genoese to the sovereignty of the Ligurian sea, he made the mistake of alleging that Selden's motive in writing his book was to procure his liberation from prison by pleasing the king. As Nys has said, the case of Grotius, though better than that of Selden, was contrary to the economic ideas of the day. "The maxim Cujus regio ejus commercium governed commercial policy, just as the maxim Cujus regio ejus religio governed religious policy." 4 3 On maritime and commercial law very few books were written by the civilians. Welwod, professor of the civil law in the University of St. Andrews, published in 1590 the Sea Law of Scotland; and from this book, which he calls, "a weake piece of labour," grew his "Abridgement of all Sea Lawes,"—a clear and useful summary of maritime law. It was published in 1613; and from it Malynes borrowed largely without acknowledgement. There is a little information about Admiralty jurisdiction in Ridley's View of the Civile and Ecclesiasticall 1 Republished in 1636 in London, Leyden, and Amsterdam; again republished in London in 1652; translated by Needham, London, 1663. 2 Dict. Nat. Biog., Selden. 3 Nys, Les Origines du Droit International 386-387. 4 Ibid 386. Senior, Early Writers on Maritime Law, L.Q.R. xxxvii 323; for the existing continental authorities on whom Welwod drew see ibid 330-335; for other English authorities see below 130-135; the full title is "An Abridgement of all Sea Lawes; gathered forth of all Writings and Monuments, which are to be found among any people or nation, upon the coasts of the great ocean and Mediterranean sea"; there was a second edition in 1636, and it was republished in the 1686 edition of Malynes' Lex Mercatoria. Law;1 and Zouche wrote a Descriptio Juris et Judicii maritimi -a short tract, based wholly on classical Roman law, and divided into two parts, of which the first deals with the law of ships, and the second with the trade carried on by ships. But, except for these works, the only literature is of a controversial kind. Just as Cæsar defended the legal position of the court of Requests, so Zouche and Godolphin defended the jurisdiction of the court of Admiralty from the attacks made upon it by the common lawyers. Zouche's work entitled The Jurisdiction of the Admiralty of England asserted against Sir Edward Coke's Articuli Admiralitatis in chap. xxii of his Jurisdiction of Courts,3 is a very able statement of the case for the Admiralty. Godolphin, who had acted as judge of the court in 1653, in his View of the Admiral Jurisdiction, shortly describes the law and procedure of the court; but the book is mainly occupied with a defence of its claims to the various species of jurisdiction which had been denied to it by the common lawyers. We shall see that the great work of this period on the whole of the Law Merchant— maritime and commercial-was written not by a lawyer, but by the merchant Gerard Malynes.6 7 5 During the earlier part of this period no great books were written on ecclesiastical law. Political events are a sufficient explanation of this fact. The study of the canon law was in every way discouraged. The project of making a codification of English ecclesiastical law had failed. The law which the ecclesiastical courts were expected to administer was so much of the medieval canon law as was applicable to the new situation ; and, in their efforts to administer it, they were hampered at almost every turn by the writs of prohibition issued by the common law courts. 9 One of the earliest books on this subject is Sir Thomas Ridley's View of the Civile and Ecclesiasticall Law. Ridley was a Cambridge D.D., an Oxford D.C.L., and an advocate of Doctors' Commons. He had held the post of master in Chancery, 1 Pt. II. c. I §§ 2, 3; Pt. III. c. 1 § 3; for this work see below 12-13. 2 First published at Oxford in 1640. First published in London 1663 after the author's death by Dr. Baldwyn; also published in the 1686 edition of Malynes' Lex Mercatoria. The full title is, "ovvnyopos laλaoons, a view of the Admiral Jurisdiction, wherein the most material points concerning the Jurisdiction are fairly and submissively discussed, as also Divers of the Laws, Customs, Rights, and Privileges of the High Admiral of England by Ancient Records and other arguments of law asserted"; it was first published in 1661, and republished in 1685. Spelman also wrote A Tract of the Admiralty Jurisdiction and the Officers thereof, Collected Works (Ed. Gibson) Pt. II. 217-232. 5 of the thirteen chapters of the book chaps. 5-11 and 13 deal with these points. 6 Below 131-135. 7 Vol. iv 228, 232. 8 Above 7. 9 The book was first published in 1607, and other editions appeared in 1634, 1676, and 1684. |