Part 5

[48] Commines attributes to Louis XI (_circ. an._ 1479) a project of reducing to uniformity all the customs of France. Francis Bacon more than once, when urging his schemes of law reform, referred to Louis’s abortive project (Spedding, _Life and Letters_, VI. 66; VII. 362). Commines’s story is not rejected by modern historians of French law. The official redaction of the various ‘general customs’ (customs of provinces) was commanded in 1453 by the ordinance of Montils-les-Tours. Little, however, was done in this matter until the reigns of Charles VIII and Louis XII. Many customs were redacted about the year 1510: that of Orleans in 1509; that of Paris in 1510. This might be described as a measure of codification: ‘elle fit, des coutumes, de véritables _lois écrites_’ or, as we might say, statute law. (Esmein, _Histoire du droit français_, 746 ff.; Viollet, _Histoire du droit français_, 142 ff.; Planiol, _Droit civil_, I. 12, 16). Then the Estates General at Orleans in 1560 in effect demanded a general code: ‘Nous voulons une foy, une loy, un roy’ said the prolocutor of the clergy. (Dareste, _Hotman_, p. 20.) Both Du Moulin and Hotman recommended codification and apparently thought that the task would not be difficult. (Viollet, _op. cit._, p. 209; Dareste, _op. cit._, p. 21.) Then as to Germany:--‘An die Klagen über die Verwirrung, in welche das Recht durch die scholastische Wissenschaft gerathen ist, knüpft sich seit dem Anfange des 16. Jahrhunderts regelmässig das Verlangen, der Kaiser möge als ein neuer Justinian das gemeine Recht des Reichs zur Einfachheit und Klarheit gesetzlich reformiren.… Das Verlangen nach einer Codification des gemeinen Rechts zieht sich durch das ganze 16. Jahrhundert.’ (Stintzing, _Geschichte der deutschen Rechtswissenschaft_, vol. I., pp. 58-9.) In 1532 after a prolonged effort the Empire actually came by a criminal code, the so-called Carolina (Constitutio Carolina Criminalis; die peinliche Halsgerichtsordnung Karls V.), but its operation was confined by a clause which sanctioned the ever increasing particularism of the various states by saving their ancient customs. (_Ibid._, pp. 621 ff.) Within some of these states or ‘territories’ there was in the sixteenth century a good deal of comprehensive legislation, amounting in some cases to the publication of what we might call codes. A _Landrecht_ (to be contrasted with _Reichsrecht_) was issued by the prince. His legislative action was not always hampered by any assembly of Estates; he desired uniformity within his territory; and the jurists who fashioned his law-book were free to romanize as much as they pleased. The Würtemberg Landrecht of 1555 issued by Duke Christopher, a prince well known to Queen Elizabeth, is one of the chief instances (Stintzing, _op. cit._, vol. I., pp. 537 ff.; Schröder, _Deutsche Rechtsgeschichte_, ed. 3, pp. 886 ff.). The transmission of the cry for codification from Hotman to Leibnitz, and then to the enlightened monarchy of the eighteenth century is traced by Baron, _Franz Hotmans Antitribonian_, Bern, 1888. In Scotland also the Regent Morton (d. 1581) entertained a project of codification. A commission was appointed to prepare a uniform and compendious order of the laws. It seems to be a question among Scotch lawyers how far the book known as _Balfour’s Practicks_ represents the work of the commissioners. See _Dict. Nat. Biog._, vol. XV., p. 317; vol. III., p. 53.

[Sidenote: _The expiration of the Year Books. Decline of law reports._]

[49] The cessation of the Year Books in 1535 at the moment when the Henrician Terror is at its height is dramatically appropriate. A great deal, however, has yet to be done before the relevant facts will be fully known. Mr C. C. Soule’s _Year-Book Bibliography_, printed in _Harvard Law Review_, vol. XIV., p. 557, is of high importance. If by ‘the Year Books’ we mean a series of books that have been printed, then the Year Books become intermittent some time before they cease. The first eleven years of Henry VIII are unrepresented, and there are gaps between years 14 and 18 and between 19 and 26. It remains to be seen whether there are MSS. more complete than the printed series. Then we have on our hands the question raised by what Plowden says in the Preface to his _Commentaries_ touching the existence of official reporters. Plowden says that he began to study the law in 30 Hen. VIII, and that he had heard say that in ancient times there were four reporters paid by the king. His words make it clear that the official reporters, if they ever existed, came to an end some considerable time before 30 Hen. VIII. The question whether they ever existed cannot be raised here. Mr Pike’s investigations have not, so I think, tended to bear out the tale that Plowden had heard; and if the king paid stipends to the reporters, some proof of this should be forthcoming among the financial records. The evidence of Francis Bacon is of later date and looks like a mere repetition of what Plowden said (Bacon, _Amendment of the Law_; Spedding, _Life and Letters_, vol. V., p. 86).

But, be all this as it may, the fact seems clear that the ancient practice of law reporting passed through a grave crisis in the sixteenth century. We know the reign of Edward IV and even that of Edward II better than we know that of Edward VI. The zeal with which Tottell from 1553 onwards was printing old reports makes the dearth of modern reports the more apparent. Then Plowden expressly says that he reported ‘for my private instruction only,’ and Dyer’s Reports (which comprise some cases too early to have been reported by him) were posthumously published. The total mass of matter from the first half of the century that we obtain under the names of Broke, Benloe, Dalison, Keilwey, Moore and Anderson is by no means large, and in many cases its quality will not bear comparison with that of the Year Books of Edward IV. (J. W. Wallace, _The Reporters_, ed. 4, Boston, 1882, is an invaluable guide; see also V. V. Veeder, _The English Reports_, in _Harvard Law Review_, vol. XV., p. 1.)

[Sidenote: _Burke on law reports._]

[50] Burke, _Report from Committee appointed to inspect the Lords’ Journals_: ‘To give judgment privately is to put an end to reports; and to put an end to reports is to put an end to the law of England.’

[Sidenote: _The Students’ petition in 1547. Incroachment of the civil law. Civilians as judges. Common law and the Pilgrimage of Grace._]

[51] _Acts of the Privy Council_, 1547-1550, pp. 48-50. Petition of divers students of the common laws to the Lord Protector and the Privy Council: ‘Pleasith it your honorable Lordships to call to your remembrance that whereas the Imperial Crowne of this realme of Inglande and the hole estate of the same have been alwayes from the beginning a Reame Imperial, having a lawe of itself called the Commen Lawes of the realme of Inglande, by which Lawe the Kinges of the same have as Imperial Governours thereof ruled and governed the people and subjectes in suche sorte as the like thereof hath nat been seen in any other.… So it is, if it like your good Lordships, that now of late this Commen Lawes of this realme, partely by Injunctions, aswel before verdictes, jugementes and execucions as after, and partly by writtes of Sub Pena issuing owte of the Kinges Courte of Chauncery, hath nat been only stayed of their directe course, but also many times altrid and violated by reason of Decrees made in the saide Courte of Chauncery, most grounded upon the lawe civile and apon matter depending in the conscience and discrecion of the hearers thereof, who being Civilians and nat lerned in the Comen Lawes, setting aside the saide Commen Lawes, determyne the waighty causes of this realme according either to the saide Lawe Civile or to their owne conscience; which Lawe Civile is to the subjectes of this realme unknowne, and they nat bounden ne inheritable to the same lawe, and which Jugementes and Decrees grownded apon conscience ar nat grounded ne made apon any rule certeine or lawe written.… And for a more amplyfyeng and inlarging of the jurisdiction of the saide Courte of Chauncery and derogacion of the saide Comen Lawes there is of late a Commission made contrary to the saide Commen Lawes unto certaine persones, the more part whereof be Civilians nat learned in the saide Lawes of this realme, autorising them to heare and determyne all matters and cawses exhibited into the saide Courte of Chauncery, by occasion whereof the matters there do daily more and more increase, insomuch as very fewe matters be now depending at the Comen Lawes.… And by reason thereof there hath of late growne such a discourage unto the studentes of the saide Commen Lawes, and the said Commen Lawes have been of late so little estemed and had in experience, that fewe have or do regarde to take paynes of the profownde and sincere knolege of the same Lawe, by reason whereof there ar now very few, and it is to be doubted that within fewe yeares there shall nat be sufficient of lerned men within this realme to serve the king in that facultie. It therfore may please your honorable Lordships to make suche speady reformacion in the premisses as unto your Lordships shall seem moste mete and convenient.’

This petition led to the disgrace and punishment of the chancellor, the Earl of Southampton (Wriothesley), for having issued a commission without warrant and without consulting his fellow-executors of King Henry’s will. With Somerset’s motives for thrusting Southampton aside we are not concerned. (See Pollard, _England under the Protector Somerset_, pp. 31-33.) That he had any desire to protect the common lawyers we must not assume; but the petition itself deserves attention. The commissioners to whom Southampton had delegated judicial powers were Robert Southwell (master of the rolls), John Tregonwell, John Oliver, and Anthony Bellasyse (masters of chancery). Tregonwell, Oliver and Bellasyse were all doctors of the civil law (_Dict. Nat. Biog._).

In 1536 during the Pilgrimage of Grace one of the demands of the catholic insurgents was ‘that the common laws may have place as was used at the beginning of the reign and that no injunctions be granted unless the matter has been determined in chancery.’ This comes at the end of a long reactionary programme, which desires the restoration of the monasteries, of the papal supremacy and so forth: also the repeal of the statute ‘That no man shall not will his lands’ [Statute of Uses]. The heretical bishops [Cranmer and his like] are to be burnt; Cromwell is ‘to have condign punishment.’ Also ‘a man is to be saved by his book,’ _i.e._ there is to be no infringement of the benefit of clergy. The heresies to be suppressed are those of ‘Luther, Wyclif, Husse, Malangton, Elicampadus [Oecolampadius], Bucerus, Confessa Germaniae [Augsburg Confession], Apolugia Malanctons, the works of Tyndall, of Barnys, of Marshall, Raskell [Rastell, the printer of law books], Seynt Germayne [author of Doctor and Student] and such other heresies of Anibaptist.’ As I understand the protest against injunctions, it means that the chancery may interfere with an action at common law, only if that action is opening a question already decided in the chancery. It will be seen that in 1536 the cause of ‘the common laws’ finds itself in very queer company: illiterate, monkish and papistical company, which apparently has made a man of ‘Anibaptist.’ (For this important manifesto, see _Letters and Papers, Henry VIII._, vol. XI., pp. 506-507.)

[Sidenote: _Elbow-room in the courts of law._]

[52] Stow, _Annals_, ed. 1615, p. 631: ‘This yeere (1557) in Michaelmas terme men might have seene in Westminster hall at the Kinges bench barre not two men of law before the iustices; there was but one named Fostar, who looked about and had nothing to doe, the iudges looking about them. In the common place [Court of Common Pleas] no moe sergeants but one, which was sergeant Bouloise [Bendlowes?], who looked about him, there was elbow roome enough, which made the lawyers complaine of their iniuries in that terme.’ In 1536 John Rastell the lawyer and printer of law books complains to Cromwell that in both capacities he is in a bad way: he used to print from two to three hundred reams every year but now prints not a hundred reams in two years; he used to make forty marks a year by the law and now does not make forty shillings (Ellis, _Original Letters_, Ser. III., vol. II., p. 309). On such stories as these little stress is laid; but until the judicial records of the Tudor reigns are statistically examined, scraps of information may be useful.

[Sidenote: _Examination by civilians in criminal cases._]

[53] For an instance see the examination of a servant of the Abbot of Sawley by Drs Layton, Legh and Petre (_Letters and Papers, Henry VIII._, vol. XII., pt. 1, p. 231).

[Sidenote: _The doctors of law and the Peasants’ War._]

[54] As to the evil done to the peasants in Germany by the Reception of Roman law, see Egelhaaf, _Deutsche Geschichte_ (_Zeitalter der Reformation_), vol. I., pp. 544 ff.; Lamprecht, _Deutsche Geschichte_, vol. V., pp. 99 ff. Dr Brunner (_Grundzüge der deutschen Rechtsgeschichte_, 1901, p. 216) has lately said that Roman jurisprudence ‘auch wenn sie nicht geradezu bauernfeindlich war, doch kein Verständnis besass für die Mannigfaltigkeit der bäuerlichen Besitzformen des deutschen Rechtes.’ One of the revolutionary programmes proposed an exclusion of all doctors of civil or canon law from the courts and councils of the princes. See Egelhaaf, _op. cit._, pp. 499, 598. The following is a pretty little tale:--‘So geschah es wirklich einmal zu Frauenfeld im Thurgau, wo die Schöffen einen Doctor aus Constanz, der sich für die Entscheidung eines Erbschaftsstreites auf Bartolus und Baldus berufen wollte, zur Thüre hinauswarfen mit den Worten: “Hört ihr, Doctor, wir Eidgenossen fragen nicht nach dem Bartele und Baldele. Wir haben sonderbare Landbräuche und Rechte. Naus mit euch, Doctor, naus mit euch!” Und habe, heisst es in dem Berichte weiter, der gute Doctor müssen abtreten, und sie Amtleute haben sich einer Urtel verglichen, den Doctor wieder eingefordert und ein Urtel geben wider den Bartele und Baldele und wider den Doctor von Constanz.’ (Janssen, _Geschichte des deutschen Volkes_, vol. I., p. 490.) It is a serious question what would have become of our English copyholders if in the sixteenth century Roman law had been received. The practical jurisprudence of this age seems to have been kinder to the French than to the German peasant; perhaps because it was less Roman in France than in Germany. See E. Levasseur in Lavisse et Rambaud, _Histoire générale_, vol. IV., p. 188: ‘Des jurisconsultes commencèrent à considérer l’inféodation comme une aliénation et le colon censitaire comme le véritable propriétaire de la terre sur laquelle le seigneur n’aurait possédé qu’un droit _éminent_.’ The true Romanist, I take it, can know but one _dominium_, and is likely to give that one to the lord.

[Sidenote: _England and Germany. The Reception in Scotland._]

[55] As regards Germany, the theoretical continuance of the Roman empire is not to be forgotten, but its influence on the practical Reception of Roman law may be overrated. In the age of the Reception Roman law came to the aid, not of imperialism, but of particularism. Then it is true that English law was inoculated in the thirteenth century when Bracton copied from Azo of Bologna. The effect of this is well stated by Dr Brunner in the inaugural address delivered by him as rector of the University of Berlin (_Der Antheil des deutschen Rechtes an der Entwicklung der Universitäten_, Berlin, 1896, p. 15): ‘In England und Frankreich, wo die Aufnahme römischer Rechtsgedanken früher erfolgte, hat diese nach Art einer prophylactischen Impfung gewirkt und das mit ihnen gesättigte nationale Recht widerstandsfähig gemacht gegen zerstörende Infectionen.’ As to the Roman law in Bracton, I may be allowed to refer to _Bracton and Azo_, Selden Society, 1895: in the introduction to that volume I have ventured to controvert some sentences that were written by Sir H. Maine. Bracton became important for a second time in the sixteenth century when (1569) his book was printed, for it helped Coke to arrange his ideas, as any one may see who looks at the margin of Coke’s books. The medieval chancery has often been accused of romanizing. Its procedure was suggested by a summary procedure that had been devised by decretists and legists: the general aim of that scheme was the utmost simplicity and rapidity. (Contrast this summary procedure as revealed by _Select Cases in Chancery_, ed. Baildon, and _Select Cases in the Court of Requests_, ed. Leadam, with the solemn procedure of the civil law exemplified by _Select Cases in the Court of Admiralty_, ed. Marsden: these three books are published by the Selden Society.) On the other hand, no proof has been given that in the middle age the chancery introduced any substantive law of Roman origin. At a later time when it began to steal work (suits for legacies and the like) from the ecclesiastical courts, it naturally borrowed the rules by which those matters had theretofore been governed.

A full history of the Reception in Scotland seems to be a desideratum. But see Goudy, _Fate of Roman Law_ (Inaugural Lecture), 1894; also J. M. Irvine, _Roman Law_ in _Green’s Encyclopædia of the Law of Scotland_. Whether at any time the Reception in Scotland ran the length that it ran in Germany may be doubted; but the influence exercised by English example since 1603 would deserve the historian’s consideration. Even if this influence went no further than the establishment of the habit of finding ‘authority’ in decided cases, it would be of great importance. Where such a habit is established in practice and sanctioned by theory, any return to the pure text, such as that which was preached in Germany by ‘the historical school,’ would be impossible. Also it may be suggested that the Roman law which played upon the law of Scotland in the seventeenth and eighteenth centuries was not always very Roman, but was strongly dashed with ‘Natural Law.’ For instance, if in Scotland the firm of partners is a ‘legal person,’ this is not due to the influence of Roman law as it is now understood by famous expositors, or as it was understood in the middle ages. Also (to take another example) it seems impossible to get the Scotch ‘trust’ out of Roman law by any fair process. The suggestion that it is ‘a contract made up of the two nominate contracts of deposit and mandate’ seems a desperate effort to romanize what is not Roman.

[Sidenote: _The persistence of Lombard law._]

[56] Pertile, _Storia del diritto italiano_, ed. 2, vol. II. (2), p. 69: ‘Laonde può dirsi che l’abrogazione definitiva ed espressa della legislazione longobardica nel regno di Napoli non abbia avuto luogo se non al principio del nostro secolo, sotto Giuseppe Bonaparte, al momento in cui vennero publicati colà i codici francesi.’ On p. 65 will be found some of the opprobrious phrases that the civilians applied to Lombard law: ‘nec meretur ius Lombardorum lex appellari sed faex’: ‘non sine ratione dominus Andreas de Isernia vocat leges illas ius asininum.’

[Sidenote: _French law in the universities._]

[57] Esmein, _Histoire du droit français_, ed. 2, p. 757: ‘C’est seulement en 1679 que l’enseignement du droit français reçut une place bien modeste dans les universités.’ Viollet, _Histoire du droit civil français_, p. 217: ‘Lorsqu’en 1679, Louis XIV. érigea à la faculté de Paris une chaire de droit français et une chaire de droit romain, le premier professeur de droit français, Fr. de Launay, commenta les _Institutes_ de Loisel, qui prirent ainsi une situation quasi-officielle à côté des _Institutes_ de Justinien.’ Brissaud, _Histoire du droit français_, p. 237: ‘Le latin avait été jusque-là la langue de l’école. Le premier professeur en droit français à Paris, de Launay, fit son cours en langue française.’

[Sidenote: _German law in the universities._]

[58] Siegel, _Deutsche Rechtsgeschichte_, ed. 3, p. 152: ‘Den ersten und zugleich entscheidenden Schritt in dieser Richtung that Georg Beyer, welcher… zunächst durch einen Zufall veranlasst wurde, an der Wittenberger Universität, wohin er als Pandektist berufen worden war, 1707 eine Vorlesung über das _ius germanicum_ anzukündigen und zu halten.’

[Sidenote: _Professorships in America._]

[59] Thayer, _The Teaching of English Law at Universities_ in _Harvard Law Review_, vol. IX., p. 171: ‘Blackstone’s example was immediately followed here.… In 1779 … a chair of law was founded in Virginia at William and Mary College … and in the same year Isaac Royall of Massachusetts, then a resident in London, made his will, giving property to Harvard College for establishing there that professorship of law which still bears his name.’ The Royall professorship was actually founded in 1815 (_Officers and Graduates of Harvard_, 1900, p. 24). At Cambridge (England) the Downing professorship was founded in 1800.

[Sidenote: _The Inns of Court._]

[60] See _Records of the Honorable Society of Lincoln’s Inn_, 1896 ff.; _Calendar of the Records of the Inner Temple_, 1896. The records of Gray’s Inn are, so I understand, to be published. See also Philip A. Smith, _History of Education for the English Bar_, 1860; Joseph Walton, _Early History of Legal Studies in England_, 1900, read at a meeting of the American Bar Association in 1899. In foreign countries there were gilds or fraternities of lawyers. Thus in Paris the _avocats_ and _procureurs_ about the middle of the fourteenth century formed a fraternity of St Nicholas: ‘dont le chef porte le bâton ou bannière (de là le nom de bâtonnier)’: Brissaud, _Histoire du droit français_, p. 898. But, though a certain care for the education of apprentices was a natural function of the medieval craft-gild, I cannot find that elsewhere than in England fraternities of legal practitioners took upon themselves to educate students and to give what in effect were degrees, and degrees which admitted to practice in the courts. R. Delachenal, _Histoire des avocats au parlement de Paris_ (Paris, 1885), says that, though not proved, it is probable that already in the fourteenth and fifteenth centuries the _avocat_ had to be either _licencié en lois_ or _licencié en décret_: in other words, a legal degree given by an university was necessary for the intending practitioner. As regards the England of the same age two interesting questions might be asked. Was there any considerable number of doctors or bachelors of law who were not clergymen? Had the English judge or the English barrister usually been at an university? I am inclined to think that a negative answer should be given to the first question and perhaps to the second also. Apparently Littleton (to take one example) is not claimed by Oxford or Cambridge.

[Sidenote: _Sir T. Smith and the Inns of Court._]