earliest of these lay civilians was Carne, an Oxford D.C.L., who was acting as ambassador at Rome at Elizabeth's succession, and prudently contrived that the pope should decline to allow him to return. Perhaps the most notable figure in the latter part of the sixteenth and earlier part of the seventeenth century is Dr. Julius Cæsar.1 He was the son of the naturalized Italian physician, Cæsare Adelmare, who had both Elizabeth and Mary among his patients. He held the positions of judge of the Admiralty, master in Chancery, master of Requests, chancellor of the exchequer, privy councillor and member of the Court of Star Chamber,2 master of the rolls, bencher and treasurer of the Inner Temple, and member of Parliament. The industry with which he applied himself to the duties of these various positions is proved by the 187 volumes of papers on different subjects which he compiled. Mr. Marsden says that, "the care with which they have been arranged and indexed with his own hand shows that he was a man of great industry and methodical habits, whilst the importance and variety of their contents indicate that for nearly half a century his advice was sought and relied upon by the Government in matters of foreign policy." Among the most interesting of these papers are his defence of the legal position of the court of Requests, and his papers on international questions. There is another paper "Concerning the Private Council of the most high and mighty King of Great Britain, France, Scotland and Ireland,” containing brief observations on the component parts of the Privy Council and the officers thereof, which has not yet been published. Two other civilians, who were regularly consulted by the government, were Dr. Valentine Dale and Dr. Aubrey. Dale was a D.C.L. of Orleans and Oxford and LL.D. of Cambridge, an advocate of Doctors' Commons, ambassador, member of Parliament, member of the Court of High Commission, and, with Cæsar, commissioner to execute the post of Lord High Admiral during the vacancy of that post in 1584-1585. Aubrey was a fellow of All Souls, professor of civil law and D.C.L. of Oxford

1 See Leadam's Introd. to Select Cases in the Court of Requests (S.S.) xxii-xlvi; Marsden, Select Pleas of the Admiralty (S.S.) ii, xii; Foss, Lives of the Judges vi 266-272; see ibid vi 102-104, and 272-277 for the lives of his father and son.

2 Hawarde, Les Reportes etc. 327 notes that he took his seat in the Star Chamber for the first time on October 14, 1607.

3 Op. cit. xii.

4 Summarized in Select Cases in the Court of Requests (S.S.) xxii-xxxii.

"Nys, Les Manuscrits de Sir Julius Cæsar, Rev. de Droit International xix 461; Le droit Romain, le droit des Gens etc. 82, 83.

6S.P. Dom. 1625-1626, 138, viii 77.

7 Nys, Les Origines du Droit International 354-356; Le droit Romain, le droit des Gens etc. 56, 57; Monro, Acta Cancellaria 11 n.

University, judge advocate for the army in the campaign against St. Quentin, vicar-general to Grindal, chancellor to Whitgift, a member of the Council of Wales, a master in Chancery, and a master of Requests. Both Dale and Aubrey, with other civilians, were consulted by the government in 1571 as to the case of the bishop of Ross, the ambassador of Mary Queen of Scots, who had been concerned in the plots against Elizabeth's life.1

In the sphere of maritime and commercial law there are a succession of judges of the court of Admiralty, whose work is buried in the records of the court.2 Dr. Lewes, fellow of All Souls, first principal of Jesus College, master in Chancery and master of Requests, and member of Parliament, held the post for twentyfive years. He was succeeded by Julius Cæsar, who held the post during the remainder of Elizabeth's reign. Another distinguished civilian, who held that post and many others in the early part of the seventeenth century, was Sir Henry Marten. In the course of his career he was sent on an embassy to the Palatinate, acted on a commission to compose the differences between the English and Dutch East India Companies, and helped in the Laudian codification of the statutes of Oxford University. Besides being judge of the Admiralty he was also Dean of the Arches, and judge of the Prærogative court-as James I. once told him he was "A mighty monarch in his jurisdiction over land and sea, the living and the dead." What was perhaps more unusual in a civilian, he took a prominent part in the Parliament of 1628, as an advocate of moderate measures. He resisted the Lords' amendments to the Petition of Right, but he voted against the proposal to censure the Duke of Buckingham by name.3


In the sphere of ecclesiastical law a notable name is that of Haddon, regius professor of civil law at Cambridge, one of that brilliant company of Cambridge humanists, and principally responsible for drawing up the abortive Reformatio Legum Ecclesiasticarum." He also held the posts of judge of the Prærogative court, and master of Requests, and was employed upon a negotiation at Bruges in reference to commercial matters. Sir Thomas Crompton, the chancellor to the bishop of London, vicargeneral to the Archbishop of Canterbury, and judge of the Admiralty, was given a transient notoriety by reason of the attack

1 Below 45.

2 Select Pleas of the Admiralty (S.S.) i, lix, lx; ibid ii, xi, xii.

3 Gardiner, History of England vi 282-283; see ibid vii 310-311 for his resentment at the action of Charles I. in 1633 in removing a case pending before him as Dean of the Arches as to the position of the communion table.

4 Vol. iv 43

[blocks in formation]

made on him by Coke and his vindication by James I., on the famous occasion in 1608 when Coke maintained the supremacy of the common law. Another ecclesiastical lawyer, distinguished as a controversialist, was Dr. Cosin, an LL.D. of Cambridge, advocate of Doctors' Commons, Dean of the Arches, and vicargeneral.

Of those who held the positions of judge advocate general the best known is perhaps the Dutchman Dorislaus. He was judge advocate to Charles I. in 1640; and to Essex, the commander of the Parliamentary forces, in 1642. He took some part in the trial of Charles I., and thereby earned the hatred of all royalists. Having been sent as envoy to the United Provinces, some Scotch royalists attacked him in his inn and murdered him. Arthur Duck also, besides acting as chancellor in two dicceses and as master in Chancery, was king's advocate in the Earl Marshal's court. As we shall see, his fame rests chiefly on his literary work.1



Very many of these civilians, and others besides, acted at some period of their career as masters of Requests and masters in Chancery; and through them the civil law may have had some influence, if not upon the law administered, at any rate upon the development of the forms of the procedure used in those courts. All of them, in their different capacities, helped to define and settle the sphere occupied by the civil law, and the form and application of its rules. We shall now see that their efforts were assisted by the books which were written during this period on most of the departments 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.

(2) The literature of the civil law.

The department of law on which there was the most abundant literature was the new international law. Nys tells us that, in the last years of the sixteenth century, the books of Englishmen took a leading part in the development of the law. Of the works of the two most important writers, Gentili and Zouche, I shall

'James told Coke that Crompton was as good a man as he was, "Coke having by way of exception used some speech against Thomas Crompton," Letter from John Hercy to the Earl of Shrewsbury cited E.H.R. xviii 669; see Senior, Doctors' Commons and the Old Court of Admiralty 89.

2 Below 430-431.

4 Below 24-25.

3 Ranke, History of England iii 37-38.

That a large number of the masters in Chancery were at this period civilians is clear from the lists of the masters given by Foss in vols. v and vi of his Lives of the Judges; for an account of some of them see below 257-261.

Vol. ii 228 n. 5; below 258.

"A partir de Gentil, notre science se développe en Angleterre," Nys, Les Origines du Droit International 133.

speak at length when I come to deal with the history of international law in this country.1 Here I shall only notice briefly a few of the less important books on this subject.


In 1589 and 1591 appeared two translations of a book entitled Instructions sur le faict de la guerre by Raymond de Beccaria of Pavia. The first translation was made by Paul Ive and was called Instructions for the Warres. The second was made by John Eliot from a French translation of the original, and was called Discourse of Law and Single Combat. In 1593 Matthew Sutcliffe produced an original book on the same subject entitled The Practice, Proceedings and Lawes of Armes. This Sutcliffe was a Cambridge LL.D. and one of the clerical civilians. He was a theologian who had conducted controversies with Bellarmin Parsons and Garnet, Dean of Exeter, the founder and principal of the shortlived theological college of Chelsea to which James I. was a liberal patron, and a member of Doctors' Commons. The book does not, like some of the older works on this subject, enter at length into a proof of the legitimacy of war; but it deals at length with its justifiable causes. It must be waged by the authority of the sovereign, and without unnecessary cruelty. He deals with the treatment of prisoners, the qualities of a general, the recruiting, pay, and discipline of the troops. Fulbecke, a member of Gray's Inn, who wrote a masque, a history, and a volume on Christian ethics, besides some law books of a discursive and original type,* devoted some chapters of a brief and rambling work, entitled The Pandectes of the Law of Nations," to the consideration of certain points connected with the laws of war, leagues, embassies, and the unrighteousness of war against infidels. Richard Bernard, a puritan divine, discussed some points connected with the same subject in a book entitled Bible Battels or the Sacred Art Military.

All these books are concerned chiefly with the law of war. It was, as we shall see, the oldest part of international law, and 2 Nys, op. cit. 133-134.

1 Below 52-55, 58-60. Ibid 134-136; it was dedicated to Essex; see also Dict. Nat. Biog.; Raleigh also published A Discourse of the Original and Fundamental Cause of Natural, Customary, Voluntary and Necessary War; but as Nys says, ibid 136, "Il ne contient rien de fort intéressant comme doctrine."

* Below 22-24.

The full title is "The Pandectes of the law of nations: contayning severall discourses of the questions, points, and matters of law, wherein the nations of the world doe consent and accord"; it was published in 1602; the chapters in which questions of international law are touched on are vii-of the law and justice of arms, of leagues and embassages, and denouncing of warre, of truce, of safe-conduct, captives, hostages, stratagems, and conquests according to the law of nations; xii-that the rules of warre and the law of nations are not to be observed and kept with Pyrates, Rebels, Robbers, Traytors, Revoltes, and Usurpers; xiii-that by the law and practice of Nations, warre is not to be maintained against Infidels onely because they are Infidels.

* Journal Soc. Comp. Leg. ix 297: the book was published in 1629.
7 Below 28-29.

therefore the part upon which authority was most abundant.
It was the topic on which Gentili wrote his most important
book.1 There were, however, one or two books published on
other parts of the subject. Gentili wrote on Embassies; and in
1587 a tract (inspired probably by the case of Mendoza) appeared
at Oxford entitled De Legato et absoluto principe perduellionis
reo. Zouche, too, as we shall see, has much to say on all
questions both of peace and war. But, with these exceptions,
the only other class of literature on this subject are three books
which deal with the English claim to the sovereignty over the four
British seas. Two of these books are works of minor importance.
One, published in 1615, is by Welwod, a Scotchman who pro-
fessed successively mathematics and civil law at St. Andrews.
It is entitled De dominio maris juribusque ad dominium præcipue
spectantibus assertio brevis ac methodica. The other is by Sir
John Borough or Burroughs, Garter king of Arms, and keeper
of the records in Charles I.'s reign. It is entitled The Sovereignty
of the British Seas proved by records, history and the municipal
laws of this kingdom; and in it the English contention, and the
authorities on which it was based, are shortly summarized. It
was published in 1653, ten years after the author's death.
third is the great work of Selden on the Mare Clausum.


Selden was, in the first place, a common lawyer; and I shall speak of him and his work as a common lawyer at some length in a later chapter. We shall see that he was one of the first of the common lawyers to deal effectively with the history of the common law; and that he owed part of his effectiveness as a legal historian to the fact he was critically acquainted with the sources of English history, and a master of many other kinds of learning besides that of the common law. In the Mare Clausum he showed that he was a competent international lawyer. The book was composed in 1618. It was called forth by the appointment of a commission to settle disputes which had arisen in consequence of the claim of the Dutch fishers to fish in English waters without the king's licence; and it was intended as an answer to Grotius's Mare Liberum. In 1618 James I. had declined to authorize its publication for fear of offending the king of Denmark. But in 1635 it was published at the request of

1 Below 53-55.


2 Below 52, 53.

3 Nys, Les Origines du Droit International 356; Professor Holland has suggested that it is a dissertation written by one of the recipients of the degree of doctor in 1587, ibid.

4 Below 58-60; for his life see below 17-18.

5 Nys, op. cit. 385.

6 Ibid 385; it is printed in the 1686 edition of Malynes, Lex Mercatoria. 8 Below 47.

7 Below 407-412.

[ocr errors]
« VorigeDoorgaan »