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then the case with most of the civilians, his sympathies were with the king; and in 1649 he was deprived of his office of judge of the Admiralty. But he was not deprived of his offices in the university; and in 1654 he served on the commission which tried for murder Don Pantaleone Sa, the brother of the Portuguese ambassador.1 In February, 1661, he was reinstated in his position as judge of the Admiralty, but he died less than a month after. Anthony Wood says of him that he was "an exact artist, a subtile logician, expert historian, and for the knowledge in and practice of the civil law, the chief person of his time, as his works, much esteemed beyond the seas (where several of them are reprinted) partly testify.'

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The number and variety of his writings are astonishing for a man whose employments were so varied. That they were so numerous and so varied is due partly to his industry and partly to his logical and orderly mind. As early as 1629 he had mapped out for himself the whole field of law in his Elementa Jurisprudentia. The object of the law, as he conceived it, was to administer justice. The subject matter of the law was human intercourse, The law therefore could be grouped round the different varieties of human intercourse. Thus we get the intercourse between private persons; between private persons and the sovereign; between persons holding special positions-ecclesiastical, military, and nautical; and, lastly, between sovereign and sovereign. Most of his writings are monographs upon these varieties of human intercourse. Thus we get books upon feudal, ecclesiastical, military, maritime, and international law. these books are as a rule all arranged on a similar plan. He treats first of Jus, or substantive law, under the heads of Status, Dominium, Debitum, and Delictum; and then of Judicium, or adjective law, under the same heads.

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With some of these books I have already dealt; and with his most important book on Jus inter Gentes I shall deal later." Here I need only mention his Elementa Jurisprudentiæ and his books on feudal law.

1 Below 46.

2 Wood, op. cit. iii 511.

3 Elementa Jurisprudentiæ Pt. I. § 2, " Finis vero Jurisprudentiæ est Justitia, quæ est constans et perpetua voluntas jus suum cuique tribuendi."

4 Ibid § 6, "Post Jurisprudentiæ Finem, Subjectum in quo versatur est considerandum. Illud autem est communio humana universa, quæ virtute Jurisprudentiæ sustinetur, quod primum cernitur in Communione privata quæ circa res et negotia singulorum inter privatos, sive ejusdem Principis subditos occurrit. Deinde, in Communione publica, quæ circa res et munera publica inter subditos et Principes suos existit. Tum, in communione speciali, quæ est inter eos qui jure aliquo speciali utantur, utpote municipali, sacro, militari, aut nautico. Et denique in communione generali, quæ inter diversos Principes et Respublicas per Legationes, Fœdera, et Bella exercetur.'

5 Above 12, 14, 16.

6 Below 58-60.

The Elementa Jurisprudentiæ is confessedly based on Roman law. But, because it is comprehensive in its scope, it is wellfitted to give a student beginning law a few general ideas as to the leading principles and divisions which must occur in most systems of law. It is divided into seven parts. The first part contains definitions of jurisprudence and justice, and of jus naturale, jus gentium, and jus civile; and gives the general scheme of the work. The second part contains some generalities about law, persons, things, and acts. The third part deals with private law, and the fourth with public law. The fifth part deals with procedure in general, and the sixth and seventh parts with procedure in private and public law respectively. Throughout parts 3-7 we find the same main lines of division into status, dominium, obligatio, and delict which reappear in almost all his works.

Zouche's two works on feudal law are entitled respectively Descriptio Juris et Judicii feudalis secundum consuetudines Mediolani et Normanniæ pro introductione ad studium jurisprudentiæ Anglicanæ, and Descriptio Juris et Judicii temporalis, secundum consuetudines feudales et Normannicas. The first was published in 1634, and the second in 1636; and the first probably and the second certainly were inspired by Spelman's treatment of "Feuds" in the first edition of his Glossary,1 published in 1626. Maitland has said, "Were an examiner to ask, who introduced the feudal system into England? one very good answer, if properly explained, would be Henry Spelman, and if there followed the question, what was the feudal system? a good answer to that would be an early essay in comparative jurisprudence. Spelman reading continental books saw that English law, for all its insularity, was a member of a great European family, a family between all the members of which there are strong family likenesses. This for Englishmen was a grand and a striking

1In his address to the reader prefixed to the second of these books Zouche says, "Deinde cum diu compertum sit eos qui Juri civili apud nos student Juris Patrii cognitionem parum aggredi, quod Consuetudines quæ sunt hujus juris Fundamenta (prout apud alias gentes) scriptæ non sint, pro Introductione ad studium Jurisprudentiæ Anglicana Juris temporalis descriptionem conati sumus contexere, eandemque illustrare primo a Consuetudinibus Mediolanensium feudalibus quæ adeo ad cognitionem Juris Anglicani conducunt, ut vir in ejus origine investiganda sagacissimus nostratibus pro defectu imputet, quod in eas inquirere negligentius prætermittant. Deinde a Consuetudinibus Normanicis "; Spelman had said in 1629 sub voce Feodum, "Feodorum nostrorum origo et antiqua scientia e jure feudali (jurisconsultis nostris nimium incognito) expetenda sunt"; his later work, written in 1639, on "The Original Growth, Propagation and Condition of Feuds and Tenure by Knight Service in England," Collected Works (Ed. Gibson) Pt. II. 1-46, was written to meet some exceptions which had been taken to this view in the Case of Tenures argued before the Irish Judges; from this controversy we can date the beginning of the historical problem, still not settled, as to the extent to which English constitutions can be traced back continuously to the Anglo-Saxon period; for Spelman's influence on English law and history see below 404.

2 Constitutional History 142.

discovery; much that seemed quite arbitrary in their old laws, now seemed explicable. They learned of feudal law as of a mediæval jus gentium, a system common to all the nations of the West. The new learning was propagated among English lawyers by Sir Martin Wright; it was popularized and made orthodox by Blackstone in his easy attractive manner." It was indeed "a grand and striking discovery" for a professor of the civil law at Oxford. The Libri Feudorum were books which came within his province.1 This suggestion of Spelman's therefore gave him an opportunity to teach those of his pupils, who intended to go from the university to the Inns of Court, something which would help them to understand their English law. Zouche's tracts show that he at least took this opportunity; and it is probable that they did something to begin the propagation of that learning about feuds which seemed to offer, and to a certain extent gave,3 an easy and a scientific explanation of many of those half obsolete rules of the medieval land law, the original meaning of which was fast being forgotten.1

2

That other civilians besides Zouche were alive to the necessity of showing the relation between the rules of English and Roman law, can be seen from some of the works of Cowell, and Fulbecke, which had been published at a slightly earlier date.

Cowell is known to general history because, in his famous Interpreter, he stated opinions in favour of royal absolutism in a concise and extreme form.5 But he was otherwise a man of some academic mark, having held at Cambridge the posts of regius professor of civil law, master of Trinity Hall, and vice-chancellor. He was also a member of Doctors' Commons, and had acted as vicar-general to Bancroft. The two books which I must here.

1 Vol. ii 142.

2 Thus West, Symboleography (ed. 1618) defines feoffment as "donatio feudi "; but he was aware of the meaning which English lawyers attached to it-" with us it is properly any gift or grant .. to another and his heirs for ever, by the delivery of seisin and possession"; for West and his book see below 389-390.

3 As Maitland says, op. cit. 143, "Most undoubtedly there was much in our old law which could be explained only by reference to ideas which had found a completer development beyond seas, and to Blackstone and to Wright, and above all to Spelman, we owe a heavy debt. But since Blackstone's day we have learned and unlearned many things about the Middle Ages. In particular we have learnt to see vast differences as well as striking resemblances, to distinguish countries and to distinguish times.'

* Spelman once said, Original of Terms (Collected Works (Ed. Gibson) Pt. II. 99), "I do marvel many times that my lord Cooke, adorning our laws with so many flowers of antiquity and foreign learning, hath not (as I suppose) turned aside into this field, from whence so many roots of our law have of old time been taken and transplanted"; probably it would have been better for English legal history if Coke had turned aside to this field instead of relying upon the Mirror of Justices, below 475; perhaps one reason why it never attracted him (if he knew of it) was his thorough knowledge of the mediaval land law; he had no need, or thought he had none, for the learning of feuds, in order to explain Littleton's law.

5 Gardiner, History of England ii 66-68.

notice are his Institutiones Juris Anglicani ad methodum et seriem institutionum Imperialium compositæ et digestæ,1 and his Interpreter or Booke containing the signification of Words.”2

The objects of the Institutiones were to promote the union of Scotland and England by pointing out the resemblances between the common law and the civil law;3 to give the student of the common law some knowledge of the general principles of law; and to show the students of the civil law that if they would study the common law, they would improve their knowledge of both laws, and cease to be regarded as mere children in legal knowledge.5 That these ideas were sound is fairly obvious; and at the present day they are, in effect, attained by the training in English law, Roman law and Jurisprudence which students of law at the universities now get. But they were in advance of their time; and the mode in which the book was planned and executed did not altogether recommend them. Cowell follows exactly the order of the books and titles of Justinian's Institutes, and forces the English material into this exotic mould. The book is learned. The leading English authorities are cited for the propositions in the text. But the arrangement of the Institutes was no more suitable to English law in the time of Cowell than it was in the time of Bracton. From it a civilian might learn a smattering of English law; a student of the common law would have felt a little lost if he had started learning English law from it, and then turned to the English authorities.

The Interpreter is a very much more useful book. Cowell had been obliged, for the purpose of his Institutiones, to consider the meaning of the principal technical terms of English Law, and he had added to that book a glossary of obscure words. He had seen, as he tells us in the preface, that the common law had not

1 First published in 1605, republished 1630.

2 First published 1607; reissued in an expurgated form 1637, 1672, 1684; edited by Kennet, 1701, 1709, 1727.

"Siquidem hæc duo regna potentissima, quæ ille (James I.) non sine magna tum pietate tum prudentia conglutinare cupit, hoc modo facillime non ad legum similitudinem, sed ad similitudinis quæ est, notitiam redigeret: quo vinculum nullum vel ad conjunctionem arctius, vel ad perpetuitatem firmius esse potest," Epistola Dedicatoria, 10 (ed. 1630).

"Non magis itaque nonnullis juris Anglicani candidatis hoc vitio vertere soleo, quod statutorum cortici et particularibus rerum judicatarum exemplis mordicus adhærescentes, universalem juris naturalis rationem suavemque èrieikelav nihil morantur, quam juris Romani alumnis, quod perpetua rerum exterarum contemplatione abrepti, vel vitæ pratica curam omnem abiiciunt, vel angustis causarum Ecclesiasticarum cancellis inclusi, latiorem illam fructuosioremque hujus disciplinæ partem ne quidem a limine salutant," Præfatio, 15-16.

5" In nostra Republica, non dico hospites et peregrini, sed plane infantes maneamus," ibid 13.

"The attempt well deserved success, and might have anticipated the reforms of two centuries later in the university study of law," E, C. Clark, Cambridge Legal Studies 74-75.

yet got a law dictionary of the kind familiar to the civilians; and he set himself to supply its place. Unfortunately the book trespassed upon the domain of politics by expressing pronounced absolutist views in its definitions of Prerogative,2 Parliament,3 and Subsidie. Moreover, Cowell had quoted some of the reflections of Hotman on Littleton, and had drafted the complaints of the clergy against prohibitions for Bancroft. Coke and the common lawyers therefore combined with the constitutional opposition to attack Cowell and his book; and James I. thought it politic to disown him. The book was suppressed by royal proclamation; but the Parliament, by sanctioning such a method of suppression, could not logically complain when similar methods were applied to suppress the publication of other views upon debatable points of law." For the rest, the book is clearly expressed and many of the definitions are happy-Blackstone copied from it his definition of the Prerogative, with only a slight (though a very crucial) verbal alteration. That it long remained the standard Dictionary of English law can be seen from the fact that in 1727 it had passed through seven editions.

Fulbecke is a diffuse and sometimes a quaint writer, who liked to introduce illustrations and digressions from his very miscellaneous reading. But his Parallele or Conference of the Civil law the Canon law and the Common Law of this Realme of England is more instructive than Cowell's Institutiones, because its method is more suited to the subject. Fulbecke tells us that

1"The civilians of other nations, have by their mutuall industries raised this kinde of worke in their profession, to an unexpected excellencie. I have seene many of them that have bestowed very profitable and commendable paines therein: and lastly one Calvinus a doctor of Heidelberge."

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2 Thus he said, "Now for those regalities which are of the highest nature there is not one that belonged to the most absolute prince in the world which doth not also belong to our King."

3 For the passage see Prothero, Documents 410.

4" Some hold opinion that the subsidie is granted by the subject to the Prince in recompence or consideration, that whereas the Prince of his absolute power might make lawes of himself, he doth of favour admit the consent of his subjects therein."

5 Senior, Doctors' Commons and the Old Court of Admiralty 86-88; below 432; vol. i 595 n. I.

Spedding, Letters and Life of Bacon iv 345-346, after alluding to the cases of Cowell and Floyd, points out that, " When measures like these were not only allowed by a House of Commons, famous for its championship of the subjects' liberty, to pass without remonstrance, but were welcomed with gratitude and applause as the fit retribution for the utterance of opinions supposed to be derogatory to the Privileges of Parliament, we cannot wonder that exception was occasionally taken by the Council to opinions supposed to be derogatory to the Prærogatives of the Crown, and that the Crown lawyers were called upon to prove their authors guilty of contempt.'

7 Cowell defines it as "that especiall power preeminence or privilege that the King hath in any kinde over and above other persons, and above the ordinarie course of his common law, in the right of his crowne '; Blackstone, Comm. i 232, defines it as, "that special preeminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity."

8 First published 1601; a second edition was published in 1618,

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