it seemed strange to him "that these three laws should not, as three Graces, have their hands linked together, and their lookes directly fixed the one upon the other, but like the two faces of Janus, the one should be turned from the other, and should never looke toward or upon the other." 1 He therefore attempted to throw the resemblances and differences between these laws into the form of fifteen dialogues between a canonist, a civilian, and a barrister, upon various legal topics; and, to this part of his book he added a second part, consisting of seven more dialogues. In the debate between the various parties to these dialogues the resemblances and differences between these different laws could be made to appear much more readily than by the process of trying to force the subject matter of English law into the mould of Justinian's Institutes. Fulbecke also wrote A Direction or Preparation to the Study of the Law,2 intended to be a guide to students beginning to read law. In parts the book deals in generalities, and sometimes quaint speculations. Thus the first two chapters are occupied with a description of the excellence of the law, and the qualities desirable in a student of it. In the third chapter there is a disquisition, fortified by a reference to many authorities, on the question whether morning or evening study is the better; and quite a sound defence of the charge that the lawyers used barbarous words. The pages in which he gives a list of books in the civil and common law, accompanied in the latter case by a few acute criticisms, are perhaps the most useful part of the book.* Some account is given in chapter iv of rules of legal interpretation, and in chapter v some sound advice as to methods of study. In particular we may note the advice to the student, needed as much in the twentieth as in the seventeenth century, not to rely on other people's Abridgments, but to make his own.5 In the latter part of the book the student is told at some

1 Preface to the Reader.

2 First published 1600, and re-published in 1620.

3 The following passage at f. 21 (b) illustrates his style-" the words of the law may be compared to certain images called Sileni Alcibiadis whose outward feature was deformed and ugly, but within they were full of jewels and precious stones: so the words of the law, though they be rude in sound, yet are they pregnant in sense."

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4ff. 266-29; the authorities recommended in Roman law are, besides the Texts, Bartolus, Baldus, Paulus de Crasto, Decius, Alciat, Zasius, Budaeus, Duaren, Cujas, Hotoman, Donellus, and Gentili; for his panegyric of Gentili's work see below 52-53; the authorities recommended in English law are the Y.BB. Plowden, Dyer, Bracton, Britton, Glanvil, Fortescue, Littleton, Fitzherbert, Brooke, Perkins, Staunford, Rastell, Theolall, Lambard, and Crompton.

5 f. 44 (a), "Neither is it safe to trust to other men's Abridgments, which are little available to such as have read a little; but that which we by our own sweat and labour do gain, we do firmly retain. And I am persuaded there hath never been any learned in the law, and judicial, who hath not made a collection of his own, though he hath not neglected the Abridgments of others."

length always to try to get at the reason of the law, and certain elementary words and phrases are explained. It closes by a practical example from Littleton, and from a Year Book case, of the proper method of making an analysis. The book broke new ground, and, as we shall see, rival works were published by common lawyers in the latter part of this period.1 That it was in a measure successful can be seen from the fact that it was reprinted with very few alterations in 1829.

One of the best books produced by the civilians of this period was Duck's historical work De Usu et Authoritate Juris Civilis Romanorum in Dominiis Principum Christianorum,2 in which he was assisted by Gerard Langbaine, provost of Queen's College, Oxford.3 The first book contains a careful account of the growth and diffusion of the Roman law, and of the sources of the civil and canon law, together with a description of the Libri Feudorum. The second book contains a very clear account of the extent to which the Roman law had been received in the principal countries of Europe. The eighth chapter of this book, in which he deals in three parts with the history of Roman law in England, is the longest; and it gives the best continuous account of the influence, study, and practice of Roman law in England that has yet appeared. The third part of that chapter is particularly valuable because it gives an account of the then existing condition of the civil law in England from the personal experience of a practitioner.

Duck was a royalist, and he wrote his book during the course of the Great Rebellion. He describes with some pathos how sieges, rapine, proscription, and sequestration had interrupted his work, and how all these evils had been aggravated by the death of his wife. He had seen the criminal and corrective jurisdiction of the ecclesiastical courts abolished,5 and the common law triumphant. Naturally he was very pessimistic as to the future of the civil law in England. "Unlearned scribes and notaries," he says, "contend with professors, and the common lawyers

1 Vol. vi c. 8.

2 The dedication is dated 1648, and the book was first published in 1653; it was translated by J. Beaver in 1724.

3 Wood, Athenæ Oxoniensis (Ed. by Bliss 1817) iii 258, says that in this book "Dr. Gerard Langbaine's labours were so much that he deserved the name of coauthor."

4" Porro Lectoris mihi benignitatem conciliabit, quod hæc scripserim in furore Belli Civilis, ubi leges minimum locum habent, et quod has cogitationes meas descripserim sæpius perturbatas vel ex Civitatum in quibus commoratus sum obsidione, vel ex rapinis, proscriptionibus, sequestrationibus, confiscationibusque prædiorum et bonorum meorum; et quod inter hæc infortunia præ reliquis omnibus me afflixerit mors carrissimæ uxoris meæ Margareta Southworthiæ, feminæ sanctissimæ, prudentissimæ, modestissimæ conjugisque incomparabilis," Conclusio operis,

5 16 Charles I. c. II; vol. i 431, 611.

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blame us for pursuing the useless learning of foreign laws, and accuse us of being citizens of a foreign state and strangers in our own. "Let us therefore," he concludes, "warn the young men of our university to leave the study of the civil law to foreign nations, and devote themselves to the study of the laws of their own country, from which they can obtain riches and honours. For me, it is sufficient to have shown that the study of the civil law was once held in high esteem; and it seems now that those French lawyers Stephen Forcatulus, and Renatus Choppinus, were true prophets when they said that the time would come when the civil law would cease to be used in England." The Great Rebellion did diminish the sphere of the civilians' practice, notably in the department of commercial and maritime law. But matters were not quite so desperate as they appeared to Duck, writing under the stress of civil war and domestic affliction. We shall see that, after the Restoration, the civilians could still find employment in advising upon international questions, in the revived ecclesiastical courts, and in dealing with the comparatively small amount of jurisdiction which was still left to the Admiralty.

We must now turn to the consideration of the history of those two branches of law-international law, and commercial and maritime law-which, during this period, the civilians had helped to shape, and to make integral parts of English law.



International law forms an important part of the law of all civilized states. To what extent and in what manner its rules are recognized by the law of any given state is a question which depends on the municipal law of the particular state. In England the mere fact that a given rule is an ascertained rule of international law does not by itself give it validity as a rule of English law. But in many cases, where such rules are observed by

1 Bk. ii c. viii Pt. iii § 32, "Juris consulti nostri Muncipales nos insectantur, quod peregrinas leges apud nos inutiles investigemus, et quod cives simus in aliena republica, hospites in nostra, cum meminisse potuissent quid in eos pro nobis exteri retorserint. Sed me reprimo, et contemptis tabellionibus, cum juris consultis nostris redibimus in gratiam, monendique erunt adolescentes academici ut relicto jure civili Romanorum aliis gentibus, quae illud satis colent, ad patrias leges se convertant, ex quibus commoda et honores patriæ suæ possint consequi. Mihi jam satis est indicasse, jus civile apud Anglos aliquando in honore et pretii fuisse, et videtur juris consultos Gallicos Stephanum Forcatulum Renatumque Choppinum recte vaticinatos fuisse, nullum juris civilis Romanorum usum in Anglia aliquando futurum esse.'

2 R. v. Keyn (1876) 2 Ex. Div. 63.

civilized states, they have been made rules of English law by the legislature.1 Thus no English lawyer can neglect international law, and no history of English law would be complete which did not indicate its origins, and its relations to the more purely municipal branches of English law.

International law, as understood at the present day, was unknown in the Middle Ages. The law which prevails among the independent states of modern times could not arise till these independent states had been fully developed. And, as we have seen, these independent states were the result of the new political religious and intellectual conditions of the sixteenth century.2 The division of Europe into a number of independent territorial states in constant and continuous relations with one another; the new religious ideas which finally destroyed the mediæval ideal of a single Christian Empire; the new intellectual ideas which, even in those countries which adhered to the old religion, modified men's outlook on all social, legal and political problems—all helped to create the international law of the present day. Throughout this period the material from which its rules originated was being collected by the practice of soldiers, statesmen, diplomatists, and jurists; and naturally that material was shaped by the technical conceptions of the civil law, because those concepts were known to and accepted by the courts of all the states of Western Europe-they were, as James I. said, “in a manner Lex Gentium." Their practice having thus been cast into a legal mould, it was gradually perceived in many different countries that a wholly new variety of law was arising. It was inevitable therefore that the lawyers of many different countries should attempt to make some systematic statement of the principles of this new law.

The existence of and the relations between the independent states of Europe were the immediate causes of the growth of international law as we know it to-day. But the fact that

1E.g. the Territorial Waters Jurisdiction Act; the Foreign Enlistment Acts; the Extradition Acts.

2 Vol. iv 190-215; as Woolf, Bartolus of Sansferrato, says at pp. 202, 203, "So long as the de jure unity of Western Europe in one Roman Empire was maintained, the mediæval Italian lawyer, who lived in conditions where Roman law was actually a common law above the conflicting statutes of Italian cities, naturally went to that common law for rules to guide international relations, which were at best de facto. De jure the Emperor was universal superior. . . . When men had given up the de jure unity of Europe under a universal Empire, and moreover when they turned their attention from intercommunal to properly international problems, a wider and a higher basis than the Roman jus commune had to be found for International law."

3 Speech to Parliament 1609, Works (ed. 1616) 532, “I thinke that if it (the civil law) should be taken away it would make an entrance to barbarisme in the Kingdome and would blemish the honour of England; for it is in a manner Lex Gentium and maintaineth intercourse with all foreign nations."

many of the ideas which underlie our modern international law have their roots in the past, sometimes in a very remote past, is clearly stated by Grotius in the opening words of the Prolegomena to his famous treatise. "That law," he says, "which prevails as between different peoples or their rulers, either springs from nature itself, or is established by divine law, or has been introduced by custom or tacit agreement." And those were in substance its three sources when Grotius wrote. The Greek law of nature had given inspiration to the rules of the Roman jus gentium; and the Roman jus gentium thus inspired had given force and practical application to the rule of right reason, on which international law ultimately rests.2 The medieval canonists and civilians had given a new sanction to this law of nature by almost identifying it with that law of God to which all human beings and human societies ought to conform.3 In the Middle Ages, and still more in the sixteenth century, the practice of Western Europe was creating rules which depended on "custom and tacit agreement." But the technical form and much of the substance of the rules which came from these sources were determined to a large extent by the writings of the civilians and canonists of the Middle Ages; and in part by ideas derived from the Greek and Roman classics, which had either filtered through these mediæval canonists and civilians, or had come from the works of the classical scholars of the Renaissance. It follows therefore that we must know something of these mediæval ideas and speculations, as well as something of the necessities of the new territorial states, if we would understand the technical form and the substance of the rules of this new body of law which the jurists of the sixteenth and seventeenth centuries were evolving. I shall therefore consider the history of the growth of international law in England under the following heads: The mediæval ideas; the necessities of the territorial state; the earliest English writers on international law.


'Jus illud, quod inter populos plures aut populorum rectores intercedit, sive ab ipsa natura profectum, aut divinis constitutum legibus, sive moribus et pacto tacito introductum."

2 Pollock, Camb. Mod. Hist. xii 703-" The law of nature. is the Greek appeal to an ideal rule justifying itself by reason, and the law of nations, in this earlier sense, is the practical Roman recognition of a working standard in the general use of civilized mankind. Both elements were necessary; jus naturale without jus gentium would be an unbodied spirit, jus gentium without jus naturale would be a soulless body."

3 Vol. ii App. ii; vol. iv 279-282.

For the anticipations of rules of modern international law to be found in Greek and Roman law see Coleman Phillipson, the International Law and Custom of Ancient Greece and Rome; cp. also Walker, A History of the Law of Nations i 37-73.

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