Part 2

The importance of certain law schools will be readily conceded, even to one who is in some sort officially bound to believe that law schools may be important. A history of civilization would be miserably imperfect if it took no account of the first new birth of Roman law in the Bologna of Irnerius. Indeed there are who think that no later movement,--not the Renaissance, not the Reformation--draws a stronger line across the annals of mankind than that which is drawn about the year 1100 when a human science won a place beside theology. I suppose that the importance of the school of Bourges would also be conceded. It may be worth our while to remark that the school of Bologna had a precursor in the school of Pavia, and that the law which was the main subject of study in the Pavia of the eleventh century was not Roman law but Lombard law: a body of barbaric statutes that stood on one level with the Anglo-Saxon laws of the same age. This I say, not in order that I may remind you what sort of law it was that Archbishop Lanfranc studied when as a young man he was a shining light in the school of Pavia, but because this body of Lombard law, having once become the subject of systematic study, showed a remarkable vitality in its struggle with Roman jurisprudence. Those Italian doctors of the middle age who claimed for their science the fealty of all mankind might have been forced to admit that all was not well at home. They might call this Lombard law _ius asininum_ and the law of brute beasts, but it lingered on, and indeed I read that it was not utterly driven from the kingdom of Naples until Joseph Bonaparte published the French code. Law schools make tough law[56].

Very rarely do we see elsewhere the academic teaching of any law that is not Roman: imperially or papally Roman. As a matter of course the universities had the two legal faculties, unless, as at Paris, the Pope excluded the legists from an ecclesiastical preserve. The voice of John Wyclif pleading that English law was the law that should be taught in English universities was a voice that for centuries cried in the wilderness. It was 1679 before French law obtained admission into the French universities[57]. It was 1709 before Georg Beyer, a pandectist at Wittenberg, set a precedent for lectures on German law in a German university[58]. It was 1758 before Blackstone began his ever famous course at Oxford. The chair that I cannot fill was not established until the transatlantic Cambridge was setting an example to her elderly mother[59]. But then, throughout the later middle age English law had been academically taught.

No English institutions are more distinctively English than the Inns of Court; of none is the origin more obscure. We are only now coming into possession of the documents whence their history must be gathered, and apparently we shall never know much of their first days[60]. Unchartered, unprivileged, unendowed, without remembered founders, these groups of lawyers formed themselves and in course of time evolved a scheme of legal education: an academic scheme of the medieval sort, oral and disputatious. For good and ill that was a big achievement: a big achievement in the history of some undiscovered continents. We may well doubt whether aught else could have saved English law in the age of the Renaissance. What is distinctive of medieval England is not parliament, for we may everywhere see assemblies of Estates, nor trial by jury, for this was but slowly suppressed in France. But the Inns of Court and the Year Books that were read therein, we shall hardly find their like elsewhere. At all events let us notice that where Littleton and Fortescue lectured, there Robert Rede lectures, Thomas More lectures, Edward Coke lectures, Francis Bacon lectures, and highly technical were the lectures that Francis Bacon gave. Now it would, so I think, be difficult to conceive any scheme better suited to harden and toughen a traditional body of law than one which, while books were still uncommon, compelled every lawyer to take part in legal education and every distinguished lawyer to read public lectures. That was what I meant when I made bold to say that Robert Rede was not only an English judge but ‘what is more’ a reader in English law.

_Deus bone!_ exclaimed Professor Smith in his inaugural lecture, and what excited the learned doctor to this outcry was the skill in disputation shown by the students of English law in their schools at London. He was endeavouring to persuade his hearers that in many ways the study of law would improve their minds. If, he urged, these young men, cut off as they are from all the humanities, can reason thus over their ‘barbaric and semi-gallic laws,’ what might not you, you cultivated scholars do if you studied the Digest and Alciatus and Zasius? And then the professor expressed a hope that he might be able to spend his vacation in the Inns of Court[61]. His heart was in the right place: in a school of living law. Even for the purposes of purely scientific observation the live dog may be better than the dead lion.

When the middle of the century is past the signs that English law has a new lease of life become many. The medieval books poured from the press, new books were written, the decisions of the courts were more diligently reported, the lawyers were boasting of the independence and extreme antiquity of their system[62]. We were having a little Renaissance of our own: or a gothic revival if you please. The Court of Requests in which Prof. Smith and Prof. Haddon had done justice was being tried for its life. Its official defender was, we observe, Italian by blood and Parisian by degree: Dr Adelmare, known to Englishmen as Sir Julius Caesar[63]. That wonderful Edward Coke was loose. The medieval tradition was more than safe in his hands. You may think it pleasant to turn from this masterful, masterless man to his great rival. It is not very safe to say what Thomas More did not know, less safe to say what was unknown to Francis Bacon, but I cannot discover that either of these scholars, these philosophers, these statesmen, these law reformers, these schemers of ideal republics, these chancellors of the realm, these law lecturers, had more than a bowing acquaintance with Roman law.

If Reginald Pole’s dream had come true, if there had been a Reception--well, I have not the power to guess and you have not the time to hear what would have happened; but I think that we should have had to rewrite a great deal of history. For example, in the seventeenth century there might have been a struggle between king and parliament, but it would hardly have been that struggle for the medieval, the Lancastrian, constitution in which Coke and Selden and Prynne and other ardent searchers of mouldering records won their right to be known to school-boys. In 1610 when the conflict was growing warm a book was burnt by the common hangman: it was written by an able man in whom Cambridge should take some pride, Dr Cowell, our Regius Professor, and seemed to confirm the suspicion that Roman law and absolute monarchy went hand in hand[64].

The profit and loss account would be a long affair. I must make no attempt to state it. If there was the danger of barbarism and stupidity on the one side, there was the danger of pedantry on the other: the pedantry that endeavours to appropriate the law of another race and galvanizes a dead Corpus Juris into a semblance of life. Since the first of January 1900 the attempt to administer law out of Justinian’s books has been abandoned in Germany. The so-called ‘Roman-Dutch’ law of certain outlying parts of the British Empire now stands alone[65], and few, I imagine, would foretell for it a brilliant future, unless it passes into the hand of the codifier and frankly ceases to be nominally Roman. Let us observe, however, that much had been at stake in the little England of the sixteenth century.

In 1606 Coke was settling the first charter of Virginia[66]. In 1619 elected ‘burgesses’ from the various ‘hundreds’ of Virginia were assembling, and the first-born child of the mother of parliaments saw the light[67]. Maryland was granted to Lord Baltimore with view of frankpledge and all that to view of frankpledge doth belong, to have and to hold in free and common socage as of the castle of Windsor in the county of Berks, yielding yearly therefor two Indian arrows of those parts on the Tuesday in Easter week[68]. The port and island of Bombay in one hemisphere[69], and in another Prince Rupert’s land stretching no one knew how far into the frozen north were detached members of the manor of East Greenwich in the county of Kent[70]. Nearly twenty-five hundred copies of Blackstone’s Commentaries were absorbed by the colonies on the Atlantic seaboard before they declared their independence. James Kent, aged fifteen, found a copy, and (to use his own words) was inspired with awe[71]; John Marshall found a copy in his father’s library[72]; and the common law went straight to the Pacific[73].

A hundred legislatures--little more or less--are now building on that foundation: on the rock that was not submerged. We will not say this boastfully. Far from it. Standing at the beginning of a century and in the first year of Edward VII, thinking of the wide lands which call him king, thinking of our complex and loosely-knit British Commonwealth, we cannot look into the future without serious misgivings. If unity of law--such unity as there has been--disappears, much else that we treasure will disappear also, and (to speak frankly) unity of law is precarious. The power of the parliament of the United Kingdom to legislate for the colonies is fast receding into the ghostly company of legal fictions. Men of our race have been litigious; the great Ihering admired our litigiousness[74]; it is one of our more amiable traits; but it seems to me idle to believe that distant parts of the earth will supply a tribunal at Westminster with enough work to secure uniformity. The so-called common law of one colony will swerve from that of another, and both from that of England. Some colonies will have codes[75]. If English lawyers do not read Australian reports (and they cannot read everything), Australian lawyers will not much longer read English reports.

Still the case is not yet desperate. Heroic things can be done by a nation which means to do them: as witness the mighty effort of science and forbearance which in our own time has unified the law of Germany, and, having handed over the Corpus Juris to the historians, has in some sort undone the work of the Reception[76]. Some venerable bodies may understand the needs of the time, or, if I may borrow a famous phrase, ‘the vocation of our age for jurisprudence and legislation.’ Our parliament may endeavour to put out work which will be a model for the British world. It can still set an example where it can no longer dictate, and at least it might clear away the rubbish that collects round every body of law. To make law that is worthy of acceptance by free communities that are not bound to accept it, this would be no mean ambition. _Nihil aptius, nihil efficacius ad plures provincias sub uno imperio retinendas et fovendas_[77]. But it is hardly to parliament that our hopes must turn in the first instance. Certain ancient and honourable societies, proud of a past that is unique in the history of the world, may become fully conscious of the heavy weight of responsibility that was assumed when English law schools saved, but isolated, English law in the days of the Reception. In that case, the glory of Bourges, the glory of Bologna, the glory of Harvard may yet be theirs[78].

NOTES.

[Sidenote: _Sir R. Rede’s lectures._]

[1] Robert Rede was Autumn Reader at Lincoln’s Inn in 1481, Lent Reader in 1485: _Black Book of Lincoln’s Inn_, vol. 1., pp. 71, 83.

[2] Creighton, _The Early Renaissance in England_, Camb. 1895.

[3] Coke, Introductory Letter to Part 10 of the _Reports_, and Preface to _First Institute_.

[Sidenote: _English law and the Renaissance._]

[4] Sohm, _Fränkisches Recht und römisches Recht_, 1880, p. 77: ‘… Thatsachen in Folge deren die Renaissance an dem englischen Rechtsleben so gut wie spurlos vorüberging.’

[Sidenote: _Sir T. More’s lectures._]

[5] Thomas More was Autumn Reader in 1511, Lent Reader in 1515: _Black Book of Lincoln’s Inn_, vol. 1., pp. 162, 175.

[Sidenote: _The Renaissance and Roman law. Alciato and Zäsi._]

[6] Étienne Pasquier, _Recherches sur la France_, IX. 39 (cited by Dareste, _Essai sur François Hotman_, Paris, 1850, p. 17): ‘Le siècle de l’an mil cinq cens nous apporta une nouvelle estude de loix qui fut de faire un mariage de l’estude du droict avec les lettres humaines par un langage latin net et poly: et trouve trois premiers entrepreneurs de ce nouveau mesnage, Guillaume Budé, François, enfant de Paris, André Alciat, Italien Milanois, Udaric Zaze, Alleman né en la ville de Constance.’ Savigny, _Geschichte des römischen Rechts im Mittelalter_, ed. 2, vol. VI., p. 421: ‘Nun sind es zwei Männer, welche als Stifter und Führer der neuen Schule angesehen werden können: Alciat in Italien und Frankreich, Zasius in Deutschland. Die ersten Schriften, worin die neue Methode erscheint, fallen in das zweite Decennium des fünfzehnten [_corr._ sechzehnten] Jahrhunderts.’

Andrea Alciato was born at Alzate near Milan in 1492, studied at Pavia and Bologna, in 1518 was called to teach at Avignon, went to Milan in 1520, to Bourges in 1528, was afterwards at Pavia, Bologna and Ferrara, died at Pavia in 1550 (Pertile, _Storia del diritto italiano_, ed. 2, vol. II. (2), p. 428). Ulrich Zäsi was born in 1461, studied at Tübingen and at Freiburg where he became town-clerk and afterwards professor of law, died in 1535. See Stintzing, _Ulrich Zasius_, Basel, 1857, where (pp. 162-216) the intercourse between Erasmus, Zäsi, Alciato and Budé is described. The early Italian humanists had looked on jurisprudence with disdain and disgust. See Geiger, _Renaissance und Humanismus_, 1882, pp. 500-503; Voigt, _Die Wiederbelebung des classischen Alterthums_, ed. 3, vol. II., pp. 477-484. Gradually, so I understand, philologians such as Budé (d. 1540) began to discover that there was matter interesting to them in the Corpus Juris, and a few jurists turned towards the new classical learning. See Tilley, _Humanism under Francis I._, in _English Historical Review_, vol. XV., pp. 456 ff. In 1520 Zäsi, writing to Alciato, said ‘All sciences have put off their dirty clothes: only jurisprudence remains in her rags.’ (Stintzing, _Ulrich Zasius_, p. 107.)

[Sidenote: _Rabelais and the commentators._]

[7] Rabelais, _Pantagruel_, liv. II., ch. X.: ‘Sottes et desraisonnables raisons et ineptes opinions de Accurse, Balde, Bartole, de Castro, de Imola, Hippolytus, Panorme, Bertachin, Alexander, Curtius et ces autres vieux mastins, qui jamais n’entendirent la moindre loy des Pandectes, et n’estoient que gros veaulx de disme, ignorans de tout ce qu’est necessaire à l’intelligence des loix. Car (comme il est tout certain) ilz n’avoient cognoissance de langue ny grecque, ny latine, mais seulement de gothique et barbare.… Davantage, veu que les loix sont extirpées du milieu de philosophie morale et naturelle, comment l’entendront ces folz, qui ont par Dieu moins estudié en philosophie que ma mulle. Au regard des lettres d’humanité et cognoissance des antiquités et histoires ilz en estoient chargés comme un crapaud de plumes, et en usent comme un crucifix d’un pifre, dont toutesfois les droits sont tous pleins, et sans ce ne peuvent estre entenduz.’ W. F. Smith, _Rabelais_, vol. I., p. 257, translates the last sentence thus: ‘With regard to the cultivated literature and knowledge of antiquities and history, they were as much provided with those faculties as is a toad with feathers and have as much use for them as a drunken heretic has for a crucifix.…’

[Sidenote: _Back to the texts!_]

[8] Stintzing, _Geschichte der deutschen Rechtswissenschaft_, vol. I., p. 96: ‘Man wird sich bewusst, dass nicht in der überlieferten Schulweisheit das Wesen der Wissenschaft stecke; dass es auch hier gelte, dem Rufe des Humanismus “zurück zu den Quellen!” zu folgen.’

[Sidenote: _The French school._]

[9] The greatest names appear to be those of François Duaren or more correctly Le Douarin (1509-1559), Jacques Cujas (1522-1590), Hugues Doneau (Donellus, 1527-1592), François Baudouin (Balduinus, 1520-1573), François Hotman (1524-1591), Denis Godefroy (1549-1622), Jacques Godefroy (1587-1652). Besides these there is Charles Du Moulin (Molinaeus, 1500-1566) whose chief work, however, was done upon French customary law, and who in the study of Roman law represents a conservative tradition. (Esmein, _Histoire du droit français_, ed. 2, p. 776.) Dareste (_Essai sur François Hotman_, p. 2) marks the five years 1546-1551 as those in which ‘nos quatre grands docteurs du seizième siècle’ (Hotman, Baudouin, Cujas, Doneau) entered on their careers.

[Sidenote: _New life of the Corpus Juris._]

[10] Viollet, _Droit civil français_, p. 25: ‘C’est le mouvement scientifique de la Renaissance qui, semblable à un courant d’électricité, donne ainsi au vieux droit romain une vie nouvelle. Son autorité s’accroît par l’action d’une science, pleine de jeunesse et d’ardeur, d’une science qui, comme toutes les autres branches de l’activité humaine, s’épanouit et renaît.’ Flach, in _Nouvelle revue historique de droit_, vol. VII., p. 222: ‘En France Cujas porte à son apogée le renom de l’école nouvelle. Quelle autre préoccupation cette école pouvait-elle avoir que de faire revivre le véritable droit de la Rome ancienne, celui que la pratique avait touché de son souffle impur, celui qu’elle avait corrompu?’

[Sidenote: _Reginald Pole and the Reception. Defects of English law. Reception of the civil law recommended. Pole and the reform of the land laws. Starkey’s legal studies._]

[11] _Starkey’s England_, Early English Text Society, 1878, pp. 192 ff.; and see _Letters and Papers, Henry VIII._, vol. VIII., pp. 81-84, and _Ibid._ vol. XII., pt. 1, pp. xxxii-xxxiv. Thomas Starkey was employed in the endeavour to win Reginald Pole to King Henry’s side in the matter of the divorce from Catherine and the consequent breach with Rome. The negotiation failed, but Starkey took the opportunity of laying before Henry a dialogue which he (Starkey) had composed. The interlocutors in this dialogue were Pole and the well-known scholar Thomas Lupset, and Pole was represented as expounding his opinions touching political and ecclesiastical affairs. How far at all points Starkey fairly represented Pole’s views may be doubted. Still we have respectable evidence that Pole had talked in the strain of the following passage, and at any rate Starkey thought that in King Henry’s eyes he was befriending Pole by making him speak thus.

‘Thys ys no dowte but that our law and ordur thereof ys over-confuse. Hyt ys infynyte, and without ordur or end. Ther ys no stabyl grounde therin, nor sure stay; but euery one that can coloure reson makyth a stope to the best law that ys before tyme deuysyd. The suttylty of one sergeant schal enerte [enerve?] and destroy al the jugementys of many wyse men before tyme receyuyd. There is no stabyl ground in our commyn law to leyne vnto. The jugementys of yerys [_i.e._ the Year Books] be infynyte and ful of much controuersy; and, besyde that, of smal authoryte. The jugys are not bounden, as I vnderstond, to folow them as a rule, but aftur theyr owne lyberty they haue authoryte to juge, accordyng as they are instructyd by the sergeantys, and as the cyrcumstance of the cause doth them moue. And thys makyth jugementys and processe of our law to be wythout end and infynyte; thys causyth sutys to be long in decysyon. Therefor, to remedy thys mater groundly, hyt were necessary, in our law, to vse the same remedy that Justynyan dyd in the law of the Romaynys, to bryng thys infynyte processe to certayn endys, to cut away thys long lawys, and, by the wysdome of some polytyke and wyse men, instytute a few and bettur lawys and ordynancys. The statutys of kyngys, also, be ouer-many, euen as the constytutyonys of the emperorys were. Wherefor I wold wysch that al thes lawys schold be brought into some smal nombur, and to be wryten also in our mother tong, or els put into the Latyn, to cause them that studye the cyuyle law of our reame fyrst to begyn of the Latyn tong, wherin they myght also afturward lerne many thyngys to helpe thys professyon. Thys ys one thyng necessary to the educatyon of the nobylyte, the wych only I wold schold be admyttyd to the study of thys law. Then they myght study also the lawys of the Romaynys, where they schold see al causys and controuersys decyded by rulys more conuenyent to the ordur of nature then they be in thys barbarouse tong and Old French, wych now seruyth to no purpos els. Thys, Mastur Lvpset, ys a grete blote in our pollycy, to see al our law and commyn dyscyplyne wryten in thys barbarouse langage, wych, aftur when the youth hath lernyd, seruyth them to no purpos at al; and, besyde that, to say the truth, many of the lawys themselfys be also barbarouse and tyrannycal, as you haue before hard. [Here follows an attack on primogeniture and entail.] The wych al by thys one remedy schold be amendyd and correct, yf we myght induce the hedys of our cuntrey to admyt the same: that ys, to receyue the cyuyle law of the Romaynys, the wych ys now the commyn law almost of al Chrystyan natyonys. The wych thyng vndowtydly schold be occasyon of infynyte gudness in the ordur of our reame, the wych I coud schow you manyfestely, but the thyng hyt selfe ys so open and playn, that hyt nedyth no declaratyon at al; for who ys so blynd that seth not the grete schame to our natyon, the grete infamy and rote that remeynyth in vs, to be gouernyd by the lawys gyuen to vs of such a barbarouse natyon as the Normannys be? Who ys so fer from rayson that consyderyth not the tyranycal and barbarouse instytutionys, infynyte ways left here among vs, whych al schold be wypt away by the receyuyng of thys wych we cal the veray cyuyle law; wych ys vndowtydly the most auncyent and nobyl monument of the Romaynys prudence and pollycy, the wych be so wryte wyth such grauyte, that yf Nature schold herselfe prescrybe partycular meanys wherby mankynd schold obserue hyr lawys, I thynke sche wold admyt the same: specyally, yf they were, by a lytyl more wysedome, brought to a lytyl bettur ordur and frame, wych myght be sone downe and put in effect. And so ther aftur that, yf the nobylyte were brought vp in thys lawys vndoubtydly our cuntrey wold schortly be restoryd to as gud cyuylyte as there ys in any other natyon; ye, and peradventure much bettur also. For though thes lawys wych I haue so praysyd be commyn among them, yet, bycause the nobylyte ther commynly dothe not exercyse them in the studys thereof, they be al applyd to lucur and gayne, bycause the popular men wych are borne in pouerty only doth exercyse them for the most parte, wych ys a grete ruyne of al gud ordur and cyuylyte. Wherefor, Master Lvpset, yf we myght bryng thys ij. thyngys to effecte--that ys to say, to haue the cyuyle law of the Romaynys to be the commyn law here of Englond with vs; and, secondary, that the nobylyte in theyr youth schold study commynly therin--I thynk we schold not nede to seke partycular remedys for such mysordurys as we haue notyd before; for surely thys same publyke dyscyplyne schold redresse them lyghtly; ye, and many other mow, the wych we spake not yet of at al.’

Lupset thereupon objects that, seeing we have so many years been governed by our own law, it will be hard to bring this reform to pass. Pole replies that the goodness of a prince would bring it to pass quickly: ‘the wych I pray God we may onys see.’