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notice are his Institutiones Juris Anglicani ad methodum et seriem institutionum Imperialium compositæ et digesta, 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; 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. 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.
* 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 reikelav 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.1 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 refiections 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; 5 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
"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."
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.'
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.
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.
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.
ff. 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.
5f. 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. 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, 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.
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."1 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." 9 R. v. Keyn (1876) 2 Ex. Div. 63.