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Charles I. and dedicated to him. Charles was so pleased with it that he directed that official copies should be kept in the Privy f 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, 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."
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.
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, 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 Merchantmaritime and commercial-was written not by a lawyer, but by the merchant Gerard Malynes. 6
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.
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.
3 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, "σvvyopos 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.
"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.
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. After dealing very shortly with the civil and criminal jurisdiction of the Admiralty, "matters of forrein treaty," the "ordering of martiall causes,"5 "the judgments of ensignes and arms,' » 6 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," 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.
2 Pt. II. c. I §§ 2, 3.
❝ Ibid § 6.
9 Pt. III. c. I.
4 Ibid § 4.
10 Ibid cc. 2-6.
5 Ibid § 5.
12 Ibid § 2. 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."
18 Pt. IV. c. 2 § 2; cf. vol. iii 556-558, 591.
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.
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.1 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. 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, it was not so deeply affected by the break with the mediaval 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.
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."
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.
5 Preface to the Treatise on Spousals. 7 Vol. i 629; vol. iii 553 n. 8, 554.
6 Vol. iii chap. v.
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,2 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 Canonicum3 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." 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.
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.
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 EcclesiasticalLaw of this Realm consistent with Temporal," it was first published in 1678, and republished in 1680 and 1687.
*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.