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chancellor of the diocese of Winchester, and vicar-general for Archbishop Abbott. His book, which is dedicated to, and won the approbation of James I., was occasioned, he tells us, by the fact that men "meanly esteemed the Civile and Ecclesiasticall law of this land"; and by the increase of writs of Prohibition which prevented its regular enforcement.1 The first part of the book describes briefly the parts of which the civil and canon law consist. The second part deals with those "few titles" of the civil and canon law which were used in England.2 After dealing very shortly with the civil and criminal jurisdiction of the Admiralty, "matters of forrein treaty," "4 the "ordering of martiall causes," 5" the judgments of ensignes and arms," and "the successions of Princes to places of Honour," he takes up the subject of "the use which the Canon Law hath in this Realm." The third part begins by describing the manner in which the civil and ecclesiastical jurisdiction "is impeached by the common law of this land."9 It then deals with the whole question of tithes at somewhat disproportionate length,10 and goes on to discuss defamation,11 and bastardy.12 In the fourth part various suggestions are made for improving the civil and canon law as administered in England. Among others he proposes some very necessary reforms in the law of executors and intestate succession.13 One weakness of the law which he points out is still unremedied-"By the Law of the Land there is no provision to preserve the state of a prodigal person from spoyle." 14 He brings the work to a close with a chapter on "the necessity of retaining the practise of the Civile and Ecclesiasticall Law in this Land." 15 The book deals mainly with ecclesiastical law. It is learned and clearly expressed; but it is somewhat discursive, and not very well proportioned.

1 Epistle to the Reader.

2"Of those goodly and excellent Titles of the Civile and Canon law, so full of wisdome, so full of variety, so well serving for every moment, and state of the commonwealth, in peace or in warre, as nothing can be more, the Professors thereof have very little use here within this Realm," Pt. II. c. I § I.

3 Pt. II. c. I §§ 2, 3.

6 Ibid § 6.

9 Pt. III. c. I.

12 Ibid § 2.

4 Ibid § 4.

7 Ibid §§ 7, 8.

10 Ibid cc. 2-6.

5 Ibid § 5. 8 Ibid c. 2. 11 Ibid c. 7 § I.

13 Pt. IV. c. 2 § 2; cf. vol. iii 556-558, 591.

14 Pt. IV. c. 2 § 2, p. 384 (ed. 1676)—"By the law of this land, there is no provision to preserve the state of a prodigal person from spoyle, which neither hath regard of time nor end of spending, unless the father provide for this mischief in his will, or by some other good order in his life, but he is suffered to waste and spend his goods till there be nothing left (as though the Prince and Commonwealth had no interest in such a subject to see he did not waste his estate and abuse his goods) whereby many great houses are overthrown; and many children whom the fathers carefully provided for, never leaving raking and scraping all their life time, that their children after them might live in great plenty and abundance, come to great shame and beggary."

15 Pt. IV. c. 3.

Zouche wrote two tracts on this branch of the civilian's practice. One, entitled Descriptio Juris et Judicii Ecclesiastici secundum Canones et Constitutiones Anglicanas,1 is slight in character, but it is a good deal more clearly arranged, and more comprehensive than Ridley's book. The first part deals with different orders of ecclesiastical persons; the second with ecclesiastical property, contracts, and delicts; the third with ecclesiastical courts and punishments; and the fourth with legal proceedings to enforce the various branches of ecclesiastical jurisdiction. The author shows a very competent knowledge of the canon law and the civil law, but he does not deal adequately with the English decisions which defined the relation of the ecclesiastical law to the common law. Zouche's other work, a tract entitled Descriptio Juris et Judicii Sacri ad Quam Leges quae Religionem et Piam Causam respiciunt reperiuntur,2 is pure Roman law. It was perhaps useful to a student beginning the subject because it summarized shortly the basis upon which the law rested; but it can hardly have had any other use.

3

The most practically useful book of this period was the book on Testaments, written by Henry Swinburn, the judge of the consistory court of York. Swinburn, it would seem, had designed to treat not only of Testaments, but also of Marriage, and Tithes. But of the treatise of Marriage only the part dealing with Spousals was finished; and it was not published till 1686, long after his death. He did not live to write the other parts which were to have dealt with Marriage and Divorce; nor did he live to write his work on Tithes.5 His book on Testaments gives, as we have seen, a very useful summary of the law of wills and executors as administered in the ecclesiastical courts. It was in fact more possible to write a good book on this branch of the ecclesiastical jurisdiction than on any other. In the first place,

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it was not so deeply affected by the break with the mediæval canon law, because the canon law had no general rules dealing with this subject-what rules there were were English rules; 7

1 First published at Oxford, 1636.

2 First published at Oxford, 1640.

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3 First published in 1590; the book thus describes itself on its title page: "A briefe Treatise of Testamentes and last Willes compiled of such lawes Ecclesiasticall and Civile as be not repugnant to the lawes customes and statutes of this Realme nor derogatorie to the Prærogative Royall. In which Treatise also are inserted divers statutes of this land together with mention of sundrie customes as well General as Particular not impertinent thereunto, besides divers Marginall notes and Quotations not to be neglected especially of Justinianists or young Students of the Civile Law."

4 The book is entitled, "A Treatise of Spousals or Matrimonial Contracts, wherein all the questions relating to that subject are ingeniously debated and resolved"; it consists of eighteen sections. 6 Vol. iii chap. v.

5 Preface to the Treatise on Spousals. 7 Vol. i 629; vol. iii 553 n. 8, 554.

and in the second place it had no bearing upon the political and doctrinal changes of the Reformation.

The first really able books upon ecclesiastical law as a whole were written by Godolphin1 in the latter half of the seventeenth century. The controversies as to jurisdiction between the common law courts and the ecclesiastical courts were then to a large extent settled; and Selden, Spelman, and Prynne, by their works on the antiquities of church history, had made it more possible to form reasonably correct opinions on many topics of ecclesiastical law. His Repertorium Canonicum summarizes in a manner which anticipates the eighteenth century treatises of Gibson and Burn, the ecclesiastical law as observed in England, and its relation to the common law. His Orphan's Legacy or a Testamentary Abridgment deals in three parts with the law of (1) Wills, (2) Executors and Administrators, and (3) Legacies and Devises, from the point of view not only of the ecclesiastical law, but also of the common law, and of the rising jurisdiction of the Chancellor. To this topic-on the border line between the ecclesiastical and the common law-the common lawyers also contributed something. Either Dodderidge or Thomas Wentworth wrote a treatise on wills and executors for students, almost entirely from the point of view of the common law, which was several times reprinted and brought up to date.5 Of this subject I have already said something, and I shall have something more to say later. But I shall wait till I reach the eighteenth century before dealing with some of the other important topics in the history of English ecclesiastical law since the Reformation.

6

The last of the branches of law with which the civilians were concerned was that connected with the military and the other business belonging to the Marshal's court.

7

We have seen that some of the civilians were employed to administer the law applicable to the army. That law took its rise in the court of the Constable and the Marshal; and, besides exercising this jurisdiction, the court had certain other kinds of jurisdiction, notably in cases concerning heraldry. Zouche has

1 Above 12.

2 For the work of these men see below 404, 405-412.

3 The full title is " Repertorium Canonicum, or an Abridgment of the Ecclesiastical Law of this Realm consistent with Temporal," it was first published in 1678, and republished in 1680 and 1687.

4 First published in 1674, republished in 1677, 1685, 1701.

5"The Office and Duty of Executors, or a treatise of Wills and Executors directed to Testators in the choice of their Executors and contrivance of their wills" (1641); the preface justifies the publication of the treatise in English, and explains that it is written for students; for Dodderidge see below 345, 391-392, 394. 8 Vol. i 573-580.

6 Vol. iii chap. v.

7 Above 8.

given some description of both these pieces of jurisdiction in the two parts of his Descriptio Juris et Judicii Militaris. The first part is "De Jure Militari et de jure militiæ armatæ," and the second "De Jure militiæ civilis, sive de jure nobilitatis." Both parts deal with the subject solely from the point of view of Roman law. No English parallels or authorities are cited; and from this point of view they are inferior to Duck's description of this jurisdiction in his book: De usu et auctoritate Juris Civilis.2 The whole question of martial law and of the jurisdiction of the Constable and Marshal's court was, as we have seen, one of those disputed questions of public law which were in issue in the seventeenth century. We have seen that as a result of these controversies martial law wholly changed its shape, and that the court of the Constable and Marshal ceased to exist.1

3

The two branches of the civilians' practice of the greatest permanent importance at this period are those connected, in the first place, with international law, and, in the second place, with commercial and maritime law; and with them I propose to deal in this chapter. But before dealing with the origins and development of these two branches of law I must say a few words about certain books which some of these civilians produced 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. They form a class of legal literature, adapted to the needs of students, which, during the greater part of this period, was badly represented in England outside their writings." The largest part of the literature of the common law consisted, as we shall see, of reports, abridgments, and books of precedents for conveyancers or pleaders -works well adapted to the needs of practitioners, but very ill adapted to the needs of students. There were two main reasons why the civilians were the first to produce this class of legal literature. Firstly, the common lawyers' training in the Inns of Court was wholly practical, while the civil lawyers' training at the universities and at Doctors' Commons was both academic and practical. Secondly, the common lawyers knew only their own system, while most of the civilians were compelled to know not only their own system, but also something of the common law. This led them to compare the two systems; and such a

1 First published at Oxford in 1640.

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2 Bk. ii c. viii Pt. III. §§ xiii-xxii; for this book see below 24.

3 Vol. i 576; vol. vi chap. vi.

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4 Vol. i 576-578.

5 This fact is noted in the Preface to Wentworth's Executors.

6 Below 355-412 for the literature of the common law during this period.

Spelman once said that the common lawyers "were all for profitt and lucrando pane, taking what they find at market without enquiry whence it came," Original of Terms, Collected Works (Ed. Gibson) Pt. II. 99.

comparison naturally helped them to emancipate their minds from the technicalities of practice, and led them to consider the principles underlying the detailed rules upon many topics which were common to both systems. It is true that a few students' books on the theory and rules of English law began to appear during the latter part of this period. But we shall see that these are for the most part exceptions of the rule-proving sort. The most successful of them were written by men like St. Germain, Bacon, or Dodderidge, whose learning was far from being merely the learning of the common law.1

The best specimen of the literature on the theory of the law is to be found in the Elementa Jurisprudentia, Definitionibus, Regulis, et Sententiis selectioribus Juris Civilis illustrata2 of Richard Zouche. Zouche, as we shall see, has won enduring fame as one of the founders of our modern international law.3 He is perhaps equally remarkable as the earliest English writer on Jurisprudence; and, as we might expect from a writer on such a subject, for the orderly and logical manner in which he planned his series of legal writings, and arranged their contents. So remarkable a man must be dealt with at somewhat greater length than most of his brother civilians; and therefore I shall, in the first place, say something of his life, and, in the second place, give some account of his works.

5

4

Richard Zouche was born in 1589, and was educated at Winchester and New College, Oxford. He was admitted as an advocate of Doctors' Commons in 1618, and took the degree of D.C.L. in 1619. In the following year he was appointed regius professor of civil law at Oxford. In 1621 and 1624 he was elected member of Parliament for Hythe, through the influence of his cousin Lord Zouche, the Lord Warden of the Cinque Ports. In 1625 he became principal of St. Alban Hall. He took a leading part in academic life, helping to carry through the Laudian codification of the statutes of the university, and acting as assessor of the Vice-chancellor's court. But, notwithstanding his activities at Oxford, he had a considerable practice in London, and in 1641 was made judge of the court of Admiralty. As was

1 Below 238 seqq., 266-269, 345. 3 Below 58-60.

2 First published at Oxford, 1629.

4 Professor Holland has given us a useful catalogue of his writings in the Introd., pp. vii-ix, to Zouche's work on "Jus inter Gentes" which he has edited for the series of Classics of International Law.

I have taken my account of Zouche from Professor Holland's Introd, to the edition of Zouche's work on international law above mentioned; vol. i of this edition consists of a reproduction of the first edition (1650), and vol. ii of an excellent translation by Professor Brierly; cf. also Les Fondateurs du Droit International 269-330; Phillipson, Journal Soc. Comp. Leg. ix 281 seqq.; Wood, Athenæ Oxonienses (Ed. Bliss, 1817) iii 510-514.

VOL. V.-2

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