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. 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.3 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.*

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.5 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.

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

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

4 Vol. i 576-578.

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

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

7 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 Jurisprudentiæ, Definitionibus, Regulis, et Sententiis selectioribus Juris Civilis illustrata of Richard Zouche. Zouche, as we shall see, has won enduring fame as one of the founders of our modern international law." 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.

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.

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

As was

2 First published at Oxford, 1629.

• 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

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.""

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.


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 Jurisprudentia 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." 6 Below 58-60.

5 Above 12, 14, 16.

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 Anglicana, 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,' 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, 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

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. 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.

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 medieval 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.

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