Part 4

[31] Thomas Starkey, when he was trying to win over Reginald Pole to Henry’s side, wrote thus: ‘Thes thyngs I thynke schal be somewhat in your mynd confermyd by the redyng of Marsilius, whome I take, though he were in style rude, yet to be of grete iugement, and wel to set out thys mater, both by the authoryte of scripture and good reysonys groundyd in phylosophy, and of thys I pray you send me your iugement.’ (_Starkey’s England_, Early Engl. Text Soc. 1878, p. xxv.) Chapuis (the imperial ambassador at Henry’s court) to Charles V, 3 Jan. 1534 (_Letters and Papers of Henry VIII._, vol. VII., p. 6): ‘The little pamphlet composed by the Council, which I lately sent to your Majesty, is only a preamble and prologue of others more important which are now being printed. One is called _Defensorium Pacis_, written in favour of the emperor Loys of Bavaria against apostolic authority. Formerly no one dared read it for fear of being burnt, but now it is translated into English so that all the people may see and understand it.’ William Marshall to Thomas Cromwell (_Ibid._, p. 178): ‘Whereas you promised to lend me £20 towards the printing of _Defensor Pacis_, which has been translated this twelve-month, but kept from the press for lack of money, in trust of your offer I have begun to print it. I have made an end of the Gift of Constantine and of Erasmus upon the Creed.’ The ‘Gift of Constantine’ must be the famous treatise of Laurentius Valla. The translation of Marsilius appeared on 27 July, 1535 (_Dict. Nat. Biog._ s.n. William Marshall). In October twenty-four copies had been distributed among the Carthusians in London (_Letters and Papers_, vol. IX., p. 171). In 1536 Marshall complained that the book had not sold, though it was the best book in English against the usurped power of the bishop of Rome (_Ibid._, vol. XI., p. 542). As to Byzantinism, if it be an accident it is a memorable accident that the strongest statement of King Henry’s divinely instituted headship of the church occurs in a statute which enables unordained doctors of the civil (not canon) law to exercise that plenitude of ecclesiastical jurisdiction which God has committed to the king (_Stat._ 37 Hen. VIII., c. 17).

[Sidenote: _The Scotch Protestants and Justinian._]

[32] _Foreign Calendar_, 1558-9, p. 8. This seems to mean that the normal and rightful relation of church to state is that which is to be discovered in Justinian’s books. If so, ‘the Protestants of Scotland’ soon afterwards changed their opinions under the teaching of Geneva and claimed for ‘the estate ecclesiastical’ a truly medieval independence.

[Sidenote: _The Henrician doctors of law. ‘The king’s great matter.’_]

[33] The following facts are taken from the _Dictionary of National Biography_. Cuthbert Tunstall (afterwards bishop of Durham) ‘graduated LL.D. at Padua.’ Stephen Gardiner (afterwards bishop of Winchester) of Trinity Hall, Cambridge, ‘proceeded doctor of the civil law in 1520 and of the canon law in the following year.… In 1524 he was appointed one of Sir Robert Rede’s lecturers in the University.’ Edmund Bonner of Broadgate Hall, Oxford, ‘in 1519 he took on two successive days (12 and 13 June) the degrees of bachelor of civil and of canon law.… On 12 July, 1525, he was admitted doctor of civil law.’ Thomas Thirlby (afterwards bishop of Ely) of Trinity Hall, Cambridge, ‘graduated bachelor of the civil law in 1521 … and proceeded doctor of the civil law in 1528 and doctor of the canon law in 1530.’ Richard Sampson (afterwards bishop of Lichfield) of Trinity Hall, Cambridge, ‘proceeded B.C.L. in 1505. Then he went for six years to Paris and Sens and returning proceeded D.C.L. in 1513.’ John Clerk (afterwards bishop of Bath and Wells, Master of the Rolls), ‘B.A. of Cambridge 1499 and M.A. 1502, studied law and received the doctor’s degree at Bologna.’ Richard Layton (afterwards dean of York) ‘was educated at Cambridge, where he proceeded B.C.L. in 1522 and afterwards LL.D.’ Thomas Legh of King’s College (?), Cambridge, ‘proceeded B.C.L. in 1527 and D.C.L. in 1531.’ Instances of legal degrees obtained in foreign universities are not very uncommon. John Taylor, Master of the Rolls in 1527, ‘graduated doctor of law at some foreign university, being incorporated at Cambridge in 1520 and at Oxford in 1522.’ James Denton, dean of Lichfield, proceeded B.A. in 1489 and M.A. in 1492 at Cambridge. ‘He subsequently studied canon law at Valencia in which faculty he became a doctor of the university there.’ (For an earlier instance, that of Thomas Alcock of Bologna, see _Grace Book A_, Luard Memorial, p. 209. There are other instances in Boase, _Register of the University of Oxford_; consult index under Padua, Bologna, Paris, Orleans, Bourges, Louvain.)

That wonderful divorce cause, which shook the world, created a large demand for the sort of knowledge that the university-bred jurist was supposed to possess, especially as a great effort was made to obtain from foreign doctors and universities opinions favourable to the king. The famous Cambridge ‘Grecian’ Richard Croke was employed in ransacking Italian libraries for the works of Greek theologians and in taking council with Hebrew rabbis. In Italy, France and Spain, as well as in England, almost every canonist of distinction, from the celebrated Philip Decius downwards, must have made a little money out of that law suit, for the emperor also wanted opinions.

[Sidenote: _Papists in the Inns of Court._]

[34] See the remarkable paper printed in _Calendar of Inner Temple Records_, vol. I., p. 470; also Mr Inderwick’s preface pp. 1 ff. In 1570 Lincoln’s Inn had not been exacting the oath of supremacy: _Black Book_, vol. I., pp. 369-372. See also the lives of Edmund Plowden, William Rastell and Anthony Browne (the judge) in _Dict. Nat. Biog._: and for Browne see also _Spanish Calendar_, 1558-67, pp. 369, 640.

[Sidenote: _Sir T. Smith’s ‘Commonwealth.’_]

[35] Smith, _Commonwealth of England_, ed. 1601, p. 147: ‘I haue declared summarily as it were in a chart or map, or as Aristotle termeth it, ὡς ἐν τύπῳ the forme and maner of gouernment of England, and the policy therof, and set before your eyes the principall points wherin it doth differ from the policy or gouernment at this time vsed in France, Italy, Spaine, Germanie, and all other Countries, which doe follow the ciuill law of the Romaines, compiled by Iustinian into his pandects and code: not in that sort as Plato made his commonwealth, or Xenophon his kingdome of Persia, nor as Sir Thomas More his Vtopia, beeing fained commonwealths, such as neuer was nor neuer shall be, vaine imaginations, phantasies of Philosophers to occupie the time, and to exercise their wits: but so as England standeth, & is gouerned at this day the xxviij. of March. Anno 1565. in the vij. yeare of the raigne and administration thereof by the most vertuous & noble Queene Elizabeth, daughter to King Henry the eight, and in the one and fiftieth yeare of mine age, when I was Ambassadour for her Maiestie, in the Court of Fraunce, the Scepter whereof at that time the noble Prince and of great hope Charles Maximilian did holde, hauing then raigned foure yeares.’

[Sidenote: _Smith writes without books._]

[36] Smith to Haddon, 6 Ap. 1565, in G. Haddoni _Orationes_, Lond. 1567, pp. 302-7: ‘nostrarum legum ne unum quidem librum mecum attuli hic nec habebam iure consultos quos consulerem.’ He has been telling how he wrote _The Commonwealth of England_.

[Sidenote: _Roman law on the Continent._]

[37] From the time of Bracton to the present day Englishmen have often allowed themselves phrases which exaggerate the practical prevalence of Roman law on the continent of Europe. Smith, for instance, who had been in many parts of northern France and was a learned and observant man, must have known that (to use Voltaire’s phrase) he often changed law when he changed horses and that the Estates General had lately been demanding a unification of the divergent customs (Viollet, _Histoire du droit civil français_, p. 202; Planiol, _Droit civil_, 1900, vol. I., p. 16). Germans, who know what an attempt to administer Roman law really means, habitually speak of French law as distinctively un-Roman. Thus Rudolph Sohm (_Fränkisches Recht und römisches Recht_, Weimar, 1880, p. 76): ‘die Gesetzbücher Napoleons I. zeigen, dass noch heute wenigstens das Privatrecht und Processrecht Frankreichs ein Abkömmling nicht des römischen, noch des italienischen, sondern des fränkischen Rechtes ist.’ So Planiol (_op. cit._, vol. I., p. 26): ‘Deux courants se sont trouvés en présence lors de l’unification du droit français: l’esprit romain et les traditions coutumières. Ce sont ces dernières qui l’ont emporté. Le Code a été rédigé à Paris, en plein pays coutumier; les conseillers d’État appartenaient en majorité aux provinces septentrionales; le parlement de Paris avait eu dans l’ancien droit un rôle prépondérant. Il n’y a donc rien d’étonnant à voir l’esprit des coutumes prédominer dans le Code; le contraire eût été un non-sens historique.’ Until the other day it was, I believe, a common remark that the large part of Germany which stood under the French code either in a translated or untranslated form--and this part contained about one-sixth of the Empire’s population--was the part of Germany in which the law was least Roman and most Germanic. The division of France into two great districts was not equal: before the acquisition of Elsass from Germany ‘les pays de droit écrit comprenaient à peine les deux cinquièmes de la France’ (Planiol, _op. cit._, vol. I., p. 11). See the useful map in Brissaud, _Histoire du droit français_, p. 152. Even in the south there was much customary law. A famous sentence in the custumal of Bordeaux placed ‘the written law’ below ‘natural reason’ (Viollet, _op. cit._, p. 150). Still it is not to be denied that a slow process of romanization--very different from the catastrophic Reception in Germany--went on steadily for some five or six centuries; and a system which as a whole seems very un-Roman to a student of what became ‘the common law’ of Germany may rightly seem Roman to an Englishman. Francis Bacon knew that France could not be compendiously described as a country governed by the civil law. In his speech on the Union of Laws (Spedding, _Life and Letters_, vol. III., p. 337) he accurately distinguishes ‘Gascoigne, Languedock, Provence, Dolphinie’ which are ‘governed by the letter or text of the civil law’ from ‘the Isle of France, Tourayne, Berry, Anjou and the rest, and most of all Brittain and Normandy,’ which are ‘governed by customs which amount unto a municipal law, and use the civil law but only for grounds and to decide new and rare cases.’ English readers should at least know the doctrine, strongly advocated in modern Germany, that the private law which was developed in England by a French-speaking court was just one more French _coutume_. Sohm, _Fränkisches Recht und römisches Recht_, p. 69: ‘Die Vorgeschichte des englischen Rechts von heute hat nicht in England, sondern in Nordfrankreich ihre Heimath … Stolz kann die Lex Salica auf die zahlreichen und mächtigen Rechte blicken, welche sie erzeugt hat.’

[38] Blackstone, _Commentaries_, vol. III., p. 149; J. H[oddesdon], _Tho. Mori Vita_, Lond. 1652, p. 26.

[39] Smith, _Commonwealth_, ed. 1601, p. 141: ‘_withernam_ … is in plaine Dutch and in our olde Saxon language _wyther nempt_.’

[Sidenote: _Barbarous language of the law._]

[40] Pollock, _First Book of Jurisprudence_, p. 283, from Dyer’s _Reports_, 188 _b_, in the notes added in ed. 1688: ‘Richardson, ch. Just. de C. Banc. al Assises at Salisbury in Summer 1631. fuit assault per prisoner la condemne pur felony que puis son condemnation ject un Brickbat a le dit Justice que narrowly mist, & pur ceo immediately fuit indictment drawn per Noy envers le prisoner, & son dexter manus ampute & fix al Gibbet sur que luy mesme immediatment hange in presence de Court.’ In France the Ordonnance of Villers-Cotterets (1539) decreed that the judgments of the French courts should be recorded no longer in Latin but in French. ‘L’utilité de cette innovation … se comprend assez d’elle-même. On dit qu’un motif d’une autre nature, l’intérêt des belles-lettres, ne contribua pas moins à y décider le roi [François I], choqué du latin barbare qu’employaient les tribunaux. Un arrêt rendu en ces termes: _Dicta curia debotavit et debotat dictum Colinum de sua demanda_, fut, dit on, ce qui entraîna la suppression du latin judiciaire.’ Henri Martin, _Histoire de France_, vol. VIII., pp. 272-3; see also Christie, _Étienne Dolet_, ed. 2, p. 424.

[Sidenote: _The fate of Duns Scotus._]

[41] Ellis, _Original Letters_, Ser. II., vol. II., p. 61, Dr Layton to Cromwell: ‘We have sett Dunce in Bocardo and have utterly banished him Oxforde for ever, with all his blynd glosses, and is now made a common servant to evere man, fast nailede up upon posts in all common howses of easement.’

[Sidenote: _The English Lex Regia._]

[42] _Stat._ 31 Hen. VIII., cap. 8. Already in 1535 Cromwell reports with joy an opinion obtained from the judges to the effect that in a certain event the king might issue a proclamation which would be ‘as effective as any statute’ (_Letters and Papers, Henry VIII._, vol. VIII., p. 411).

[Sidenote: _Civilians in councils and in courts. Project for a new court._]

[43] The story (with which we are familiar in England) of the evolution of various councils and courts from an ancient _Curia Regis_ seems to have a close parallel in French history: so close that imitation on one side or the other may at times be suspected. After the _parlement_ with its various chambers (which answer to our courts of common law) has been established, the royal council interferes with judicial matters in divers ways, and sections of the council become tribunals which compete with the _parlement_. (See, _e.g._ Esmein, _Histoire du droit français_, ed. 2, pp. 469 ff., and the pedigree of courts and councils in Lavisse et Rambaud, _Histoire générale_, vol. IV., p. 143; also the pedigree in N. Valois, _Le conseil du roi_ (1888), p. 11; and Brissaud, _Histoire du droit français_, pp. 816 ff.) In Germany the doctors of civil law made their way first into councils and then into courts. ‘Die fremdrechtlich geschulten Juristen wurden in Deutschland anfänglich nur in Verwaltungssachen verwendet. Zur Rechtsprechung gelangten sie dadurch, dass die Verwaltung diese an sich zog, und zwar zuerst am Hofe des Königs’ (Brunner, _Grundzüge der deutschen Rechtsgeschichte_, 1901, p. 227). In the England of Henry VIII’s day there seems no little danger that _die fremdrechtlich geschulten Juristen_, of whom there are a good many in the king’s service, will gain the upper hand in the new courts that have emerged from the council, and will proceed from _Verwaltung_ to _Rechtsprechung_. There came a time when Dr Tunstall (who got his law at Padua) was presiding over the Council of the North and Dr Roland Lee over the Council of the Marches. In 1538 Dr Lee, who was endeavouring to bring Wales to order, said in a letter to Cromwell, ‘If we should do nothing but as the common law will, these things so far out of order will never be redressed’ (_Dict. Nat. Biog._, vol. XXXII., p. 375).

In 1534 there was a project for the erection of yet another new court. See _Letters and Papers, Henry VIII._, vol. VII., p. 603: ‘Draft act of parliament for the more rigid enforcement of previous statutes, appointing a new court, to consist of six discreet men, of whom three at least shall be outer barristers in the Inns of Court, who shall be called justices or conservators of the common weal and sit together in the White Hall at Westminster or elsewhere, with power to discuss all matters relating to the common weal and to call before them all persons who have violated any act of parliament made since the beginning of Henry VIII.’s reign.’ If only three of these judges need be barristers, what are the rest to be?

[44] _Acts of the Parliament of Scotland_, vol. II., p. 335.

[Sidenote: _Reform of the Inns of Court. The king’s College of Law._]

[45] See the two papers that are printed by Waterhous, _Fortescutus Restitutus_, 1663, pp. 539, 543. In one of these Thomas Denton, Nicholas Bacon and Robert Cary are answering an inquiry addressed to them by Henry VIII touching the plan of legal education pursued in the Inns of Court. In this there are some phrases that tell of the revival of learning. The writers thank Almighty God for giving them a king ‘endued and adorned himself with all kindes and sortes of good learning as well divine as prophane’ and one who ‘purposeth to set forward and as it were to revive the study and perfect knowledge thereof [_i.e._ of good learning], of long time detested and almost trodden under foot.’ They remark also that many good and gentle wits have perished ‘chiefly for that most of them in their tender years, indifferent to receive both good and bad, were so rooted and seasoned, as it were, in barbarous authors, very enemies to good learning, that hard it was, yea almost impossible, to reduce them to goodness.’

The other paper contains a project for the king’s College of Law submitted by the same three writers. This looks like an attempt to obtain a royally endowed school of English law, and it is curious to observe that, not English, but good French is to take the place of bad French. ‘The inner barristers shall plead in Latine, and the other barristers reason in French; and either of them shall do what they can to banish the corruption of both tongues.’ One learned in French is ‘to teach the true pronuntiation of the French tongue.’ One of excellent knowledge in the Latin and Greek tongues is to read ‘some orator or book of rhetoric, or else some other author which treateth of the government of a commonwealth, openly to all the company.’ Students of this college are to be sent abroad to accompany ambassadors, and two students are to act as historiographers of the realm. Nothing is said of the civil law. On the whole, this seems to be a conservative proposal emanating from English barristers for bettering the education of the common lawyer, and thus rendering unnecessary such a Reception as Pole had proposed. We do not know that it represents Henry’s thoughts. It was ‘a civil law college’ that Somerset wished to establish at Cambridge by a fusion of Trinity Hall and Clare. (See Mullinger, _Hist. Univ. Camb._, vol. II., pp. 134-137.)

[Sidenote: _Butzer on Henry VIII’s project of Codification._]

[46] Bucerus, _De regno Christi_, lib. II., cap. 56 (_Scripta Anglica_, Basil. 1577, p. 148): ‘Passim enim queri bonos viros audio, leges regni huius decorum [_corr._ de rerum] proprietatibus et commutationibus, de successionibus in bonis atque aliis huius generis civilibus contractibus et commerciis, esse perobscuras atque implicatas: adeoque etiam lingua perscriptas quadam obsoleta ut a nemine queant intelligi, qui non et eam linguam didicerit et earum legum intelligentiam multo fuerit studio assecutus: indeque fieri ut plerique eorum qui eas leges aliquo modo habent cognitas, iurisque magis quam iusticiae sunt consulti, his ipsis legibus abutantur pro hominum decipulis retibusque pecuniarum. Quo regni non tolerando incommodo permotum aiunt praestantissimum principem S. M. T. patrem ut corrigendis, elucidandisque his legibus certos pridem homines deputarit. Cum autem isti legum designati instauratores, vel mole operis absterriti, vel aliis impediti abstractique negociis, huic malo adhuc nullum attulerint remedium, abusioque et perversio legum indies magis invalescere dicatur, eo certe id erit S. M. T. et maturius et pertinacius elaborandum quo leges illae quam rectissime ac planissime extent explicatae.… Quid autem interest nullae existant leges, aut quae existunt sint civibus ignoratae?’

Butzer, as this treatise shows, had some knowledge of the civil law, at least in the matter of divorce. He seems to think that a code for England might be so simple an affair that it could be put into rhyme and be sung by children. (See Mullinger, _Hist. Univ. Camb._, vol. II., p. 238.)

[Sidenote: _Codification of the ecclesiastical law._]

[47] Cardwell, _The Reformation of the Ecclesiastical Laws_, Oxf. 1850. See p. xxvi, where Foxe the martyrologist (1571) testifies to the beauty of Haddon’s Latin, and then says: ‘Atque equidem lubens optarim, si quid votis meis proficerem, ut consimili exemplo, nec dissimili etiam oratione ac stylo, prosiliat nunc aliquis, qui in vernaculis nostris legibus perpoliendis idem efficiat, quod in ecclesiasticis istis praestitit clarissimae memoriae hic Haddonus.’ On the question as to the intended fate of heretics (including both Roman Catholics and Lutherans) under the _Reformatio Legum_, see Hallam, _Const. Hist._, ed. 1832, vol. I., p. 139; Maitland, _Canon Law in England_, p. 178.

[Sidenote: _The demand for Codification._]