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A HISTORY OF ENGLISH LAW
SOURCES AND GENERAL DEVELOPMENT (Continued)
ENGLISH LAW IN THE SIXTEENTH AND EARLY SEVENTEENTH CENTURIES (Continued)
DEVELOPMENTS OUTSIDE THE SPHERE OF THE COMMON LAW
E have seen that the large changes which took place during this period on all sides of the national life caused important developments in the composition and jurisdiction of the courts and councils which administered branches of law outside the sphere of the common law. The work of the Council and the Star Chamber, the court of Admiralty, and the court of Chancery, was increased and therefore specialized;1 and the amount of work to be done made it necessary to create subordinate branches of the Council in Wales and the North, and a court of Requests to assist the court of Chancery. All these courts contributed their quota to the development of various parts of English law. Sometimes they merely helped towards a better administration of common law rules; but more often they created rules of law which either anticipated and inspired later developments of the common law, or introduced new ideas, sometimes wholly opposed to established common law doctrines, into the English legal system. It is with these new developments and new ideas that I shall deal in this and the following chapter.
We have seen that certain of these new developments and new ideas were strongly influenced by the civil law, as administered in continental states. On the other hand, neither the Council nor the Chancery administered purely civil or purely common law rules. Rather, they administered a criminal and
1 Vol. i 409-411, 497-502, 546-547, 549-556.
4 Vol. iv 238, 272-283, 285-287.
civil equity peculiar to themselves. It follows therefore that the subject falls naturally into three parts:
(1) Developments directly influenced by the reception of rules and ideas of the civil law.
(2) The law administered by the Council and Star Chamber. (3) The equity administered by the Chancellor.
With the first of these parts I shall deal in this chapter, and with the second and third in the next.
We have seen that in the last half of the sixteenth century the civilians had become an organized body, and that the spheres of their activity were becoming settled.2 Some of these civilians, either by their professional or their literary work, did much to shape the development of the law. Therefore, by way of introduction to my account of this development, I shall say something of the lives and works of the most notable of these men." I shall then describe the two most important branches of the law developed by these civilians-international law, and commercial and maritime law.
THE CIVILIANS AND THEIR ACTIVITIES
In the first place, I must notice a series of administrators, lawyers, and judges; and, in the second place, a number of writers on the various branches of law which fell within the sphere of the civilians' practice, 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.
(1) The administrators, lawyers, and judges.
During the whole of this period many of the civilians played a great part in public life in many different spheres.
In the earlier part of the period the old school of civil servants, who, being in orders, could be rewarded from the revenues of the church, was still predominant. One of them was Cuthbert Tunstall, doctor of Laws of Padua, and a member
"And as the Chancery had the pretorian power for equity, so the Star Chamber had the censorian power for offences under the degree of capital," Bacon, History of the Reign of Henry VII.; "the Starre chamber, the schoole of Englande to punishe all fraude and practices, as the Chancery doth all rigor and extremetie, the one a bridle, th'other a spurre," Hawarde, Les Reportes etc. 174.
2 Vol. iv 235-238.
3 Except where otherwise stated I have relied on the statements in the Dictionary of National Biography, and on Mr. Leadam's notes upon the lists of judges in the court of Requests, Select Cases in the Court of Requests (S.S.) cx-cxxiv.
4 Vol. i 587; vol. ii 226-230, 318-319.
of that literary circle which adorned Henry VIII.'s court in the earlier years of his reign.1 He served the king as ambassador, Keeper of the Privy Seal, and President of the Council of the North; and held successively the sees of London and Durham. Rowland Lee, bishop of Coventry and Lichfield, was another civil servant of a similar type. He took his degree in Laws at Cambridge, and did good service as President of the Council of Wales. Stephen Gardiner, likewise, was a Cambridge doctor of civil and canon law, an ambassador, Lord Chancellor, and bishop of Winchester. Bonner, an Oxford D.C.L., served Henry VIII. as ambassador, before he was promoted to the sees first of Hereford, and then of London; and before he earned the reputation, which Fox has indelibly fastened upon him, of being one of the most active agents in the Marian persecutions. Layton, a Cambridge LL.D., who became Dean of York, took a leading part in the enquiries which led to the dissolution of the monasteries. In Elizabeth's reign these administrative and diplomatic posts were still held by civilians in orders. The famous Sir Thomas Smith was Dean of Carlisle. Wotton, who had studied the law in Italy, who was secretary of state, privy councillor, and an ambassador who epigrammatically described ambassadors, with some difficulty escaped a bishopric, and held the more congenial posts of Dean of Canterbury and York. Thomas Wilson, D.C.L. of the University of Ferrara, master of Requests, ambassador, secretary of state, and privy councillor, was Dean of Durham.
About the middle of the sixteenth century a race of lay civilians was arising, who did the work of their ecclesiastical predecessors. As ambassadors, as international lawyers, as judges of the court of Admiralty, as bishops' chancellors and judges in the ecclesiastical courts, as masters of Requests and masters in Chancery, sometimes as judges advocate to the military forces-they filled a large administrative sphere. Some of them were foreigners, others, who were Englishmen, had been trained in civil law at a foreign university. But, at the latter part of this period, they were mainly Englishmen, who had learned their civil law at Oxford or Cambridge, and had become members of Doctors' Commons. To give a detailed list of these men would be both tedious and useless. I shall only mention briefly a few names famous in the different spheres of their activity. In the sphere of international law and diplomacy one of the
1 Vol. iv 29-30, 41. 2 See vol. iv 209-210 for some account of his career. 3" Legatus est vir bonus peregre missus ad mentiendum reipublicæ causa "-an epigram which called forth an attack by Scioppus; but it had in it a substantial element of truth, see Nys, Les Origines du Droit International 335.
'See Maitland, English Law and the Renaissance 62-63 n. 33.