ELIZABETHAN LEGALISTS

Dissertaiien for the Degree of Ph. D.
Mim'iiefiai‘i STAIE WEVERSITY
RICHARD JAMES TERRiLL
1976

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Elizabethan Legalists.
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ABSTRACT

ELIZABETHAN LEGALISTS

BY

Richard James Terrill

Throughout the fifteenth, sixteenth, and seventeenth
centuries, there emerged in western Europe a new intellectual
climate that enabled philosophical reasoning to transcend
theological speculation. This movement was affected by a
variety of factors. The pressure of significant events on
the status quo, such as the Renaissance and the Reformation,
was a striking influence. The slow deliberate change in
political theories and legal issues brought about by the
rise of the nation states, voyages of discovery, and the
Reception of the Roman law was another. The purpose of
this study is to consider what were the effects of this
change on the legal community of Elizabethan England.

When dealing with Elizabethan legal scholarship,
historians have inevitably, and almost exclusively, concen-
trated on the works of Francis Bacon and Edward Coke.

Bacon and Coke sought to resolve the conflicts that were
plaguing the legal community. Based on their phi1030phical

interests, they reacted in different ways. Bacon

Richard James Terrill
concentrated his efforts on the future by developing a new
approach, a scientific method. Coke looked to the past and
utilized historical precedents to defend the unique position
that the common law held in the commonwealth. These men were
not alone in their concern for the state of the law in
Elizabethan England. Other lawyers were equally conscious
of the changing nature of the intellectual climate. This
concern motivated them to publish their opinions. These are
the lesser known legalists. They were neither part of a
school of legal thought nor the nucleus of a particular party.
They did have three common roots: all lived in the Eliza-
bethan period; all had studied law; and all were concerned
with the law and made a contribution to legal scholarship.

Without invading the rather closed law faculties at the
Inns of Court, the humanist movement was able to have an
indirect but significant impact upon the priorities and
assumptions of the Elizabethan legalists that was reflected
in the choice of their scholarly works. The legalists
realized that the medieval view was no longer applicable
to the present. By their acceptance of this fact, they
sought to resolve the conflicts of their age that had been
created by the decline in the theory of medieval universalism
and by the emergence of the events of the sixteenth century.
Each provided a personal approach and interpretation.
William Lambarde employed the use of history. William

Fulbecke and Thomas Ridley utilized the comparative method.

Richard James Terrill
Alberico Gentili focused his attention on developing a new
field of international law. John Dodderidge examined the
system of legal education.
The Elizabethan legalists responded to the challenge to
examine critically the conflicts created as a result of the
change in the intellectual climate of the sixteenth century

and to reshape the common assumptions of their age.

ELIZABETHAN LEGALISTS

BY

Richard James Terrill

A DISSERTATION

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

Department of History

1976

<:> Copyrighted by

Richard James Terrill

1976

TO

My Bride and Parents

ii

ACKNOWLEDGEMENTS

For guidance and encouragement in writing this dissertation,
I wish to thank my mentor, Professor Marjorie E. Gesner.
Her critical advice has been invaluable throughout my
graduate career. I would also like to thank Professors
William Brazill, Goldwin Smith, and the late Thomas

Bushell for stimulating my interest in English intellectual
history. For reading the manuscript, I wish to thank the
other members of my committee, Professors Donald Lammers,
Josef Konvitz, and Gordon Stewart. Professor Lammers'
editorial comments were particularly helpful. I wish to
thank the College of Arts and Letters of Michigan State
University for making my stay in England possible through
the College Graduate Fellowship Grant. The staffs of the
British Museum, the Senate House Library, the Institute of
Historical Research, the Public Records Office, and the
Michigan State University Library were also helpful and
courteous to me in my research. To Jean Fickes for typing
the final draft and assuring me that all the administrative
paper work was in order, I owe a special thanks. Finally,
my family have been invaluable in their encouragement
throughout my college career.

St. Cloud, Minnesota R.J.T.
August, 1976

TABLE OF CONTENTS

Introduction

1 An Age of Restatement

2 Lambarde and the Use of History

3 Fulbecke, Ridley and the Comparative Method

4 Gentili and the Development of International Law
5 Dodderidge and the Concern for Legal Education

6 Conclusion: Toward the Twilight of Dawn

Bibliographical Essay

iv

34
89
131
161
188
214

220

INTRODUCTION

A number of years ago Professor Franklin L. Baumer
suggested that an effort should be made by intellectual
historians to analyze the relationship between the great
books and minor works of a particular period.1 Although
some attempts have been made to rectify this deficiency in
historical scholarship, there remain numerous areas where
this method has not been applied. A case in point is the
study of English legal history. The marked presence of the
treatises of Bracton, Fortescue, Coke, Blackstone, and
Austin frequently causes one to forget the contributions of
their lesser known contemporaries. The intellectual his-
torian should be attentive to this problem, for his primary
concern is to discover the climate of opinion that exists in
a particular period of history. Presumably, each age has a
climate of opinion or an intellectual dimension that dis-
tinguishes it from any other period. Classical, medieval,
and romantic are terms employed by historians to underline
such distinctions. One's perception of the intellectual
framework, however, becomes short-sighted when it is based

on the ideas of a few men or on the philosophy adopted by a

 

1Franklin L. Baumer, "Intellectual History and Its
Problems," The Journal of Modern History, XXI, (1949),
p. 192.

 

 

2

particular group. They are often viewed as representing
the homogeneity of the age. It is possible, of course,
that a small group does indeed exhibit in their works the
thought patterns, assumptions, and priorities that are
unique to a particular period of history. Nevertheless,
in such circumstances the possibility for the existence of
elasticity in the intellectual framework is left wanting.

The purpose of this study is to improve our understand-
ing of the climate of opinion in Elizabethan England.
Certain restrictions on the scope of the work were
obviously necessary. As a result, this essay focuses on
the legal community of Elizabethan England. Prior to explain-
ing the reasons for choosing this particular period and
discussing the approach employed to the problem, it is
important to clarify briefly what is meant by the term
Elizabethan in the parlance of intellectual history.

The Elizabethan period did not end on March 24, 1603
with the death of the Queen; rather it continued on, much
to the chagrin of some early Stuart enthusiasts. Elizabethan,
for the intellectual historian, connotes an attitude of mind
that existed in the late sixteenth and early seventeenth
centuries.2 Underlying the Elizabethan milieu was a cog-

nisance of and concern for a dying order. This attitude

 

21 am using as my point of reference the fact that some
of Elizabethan England's most eminent literary men produced
some of their more important works after the Queens' death.
Shakespeare's Othello, Macbeth, and King Lear; Jonson's
Volpone and Thg_Alchemist; Donne's "First and Second
Anniversaries;" and some of Bacon's works are examples.

 

 

 

3
was expressed in many ways in poetry, plays, and theological
and phiIOSOphical writings representative of the more signifi-
cant genres. The next chapter is addressed to the reasons
for this attitude deveIOping. It is sufficient here to
point out that this concern for a dying order created a
mood of anxiety and tension. The anxiety was precipitated by
a gradual change throughout the fifteenth, sixteenth, and
seventeenth centuries in the basis of thought. Medieval
thinking, which was dominated by a theological and mythical
approach, was being replaced by a scientific, analytical
method. The mythical versus the analytical approach to think-
ing created a dilemma for many people. They were being asked
to grasp reality in a way that was foreign to them. As a
result, a state of flux developed. Where the medieval cos-
mology had explained man's relationship to his God, nature,
fellow man, and government, there now existed a void of
uncertainty and skepticism. The gradual questioning and final
destruction of the medieval cosmology thus created this feeling
of anxiety and tension.

In England the late sixteenth and early seventeenth cen-
turies act as a bench mark in this shift. The thought
patterns, assumptions, and priorities that developed during
this period were the result of significant events that
occurred at the time. For much of Europe, this was the age
of the Renaissance and Reformation and the beginning of the
scientific revolution and voyages of discovery. These pro-

found events, occurring simultaneously, and the ideas

4
emerging from them signaled the demise of the medieval
world View and commenced to establish what we call the
modern era.

Two concerns influenced my choice for examining the
intellectual climate of Elizabethan England. Although this
period does not suffer from a lack of such scholarship, it
appears that the scope of these works is to a degree limited.3
Obviously the Renaissance, Reformation, and scientific revolu-
tion lend themselves to such studies. Scholars of English
history often cite Thomas More, Thomas Smith, and Richard
Hooker as their representatives. But the studies concerned
with England have curiously neglected the role the legal
community played in formulating the intellectual climate.
Legal scholars have usually concentrated on administrative,
constitutional, procedural, and substantive law. Few attempts,
if any, have been made to study the ideas emerging from
important movements, such as the Renaissance and Reformation,
and to analyze how these ideas influenced the concerns of
and approaches to legal scholarship. Recently, Professor
William Bouwsma has indicated his recognition of this need.4

He points out that historians have been remiss in not

 

3Six of the more important works are J. W. Allen, A
History of Political Thought in the Sixteenth Century,
(London, 1928); Herbert Butterfield, The Origins of Modern
Science, (New York, 1957); Arthur B. Ferguson, The _Art1culate
Citizen and the English Renaissance, (Durham, N. C., 1965);
Harold J. Grimm, The Reformation Era 1500-1650, (New York,
1954); Hiram Hayden, The Counter-Renaissance, (New York, 1950),
and Theodore Spencer, Shakespeare and the Nature of Map,

(New York, 1942).

 

 

 

 

 

 

 

 

4William J. Bouwsma, "Lawyers in Early Modern Culture,"
American Historical Review, LXXVIII, (1973), pp. 303-27.

5

analyzing the contributions certain "occupational groups"
have made in identifying the causes for shifts in attitudes
and values. Lawyers in early modern Europe, he suggests,
invite such analysis. Therefore, in narrowing the sc0pe of
my work the focus was directed to a significant but neglected
"occupational group" that did articulate their concern for
the climate of opinion existing in the Elizabethan
period.5

My second concern, of course, involves analyzing the
relationship between the great books and minor treatises
produced during the age. When dealing with Elizabethan
legal scholarship, historians have inevitably, and almost
exclusively, concentrated on the works of Francis Bacon and
Edward Coke. Both men attempted to cope with the tensions
that were affecting the law. Their personalities, thoughts,
and eventually their published works commanded the attention
of the legal community. Contemporaries of these judicial
scholars attested to this fact, and legal historians, such

as F.W. Maitland, W.S. Holdsworth, and Theodore F.T.

Plucknett, have substantiated this further.

 

5Recently, there have been a few books published that
have dealt with the role of lawyers in Elizabethan society.
These books tend to emphasize their political influence,
however: John Dykstra Eusden, Puritans, Lawyers, and
Politics in Early Seventeenth-Century England, (New Haven,
1958); W.J. Jones, Politics and the Bench the Jud es and
the Origins of the English Civil War, (London, 1971 ;
Brian P. Levack, The Civil La ers in England 1603-1641 A
Political Study, (London, 157;), and—David—Little, Religion,
Order, and Law; A_Study in Pre-Revolutionary England,
(New York, 1969).

 

 

 

 

 

 

 

 

 

 

 

 

 

6

Francis Bacon is a disturbing figure. Energetic in
his search for a new system of knowledge to replace the
discredited medieval approach, he was England's leading
exponent of the inductive empirical method fer understanding
nature, man, and the law. This search for knowledge,
however, was tempered by a practical motivation for power
and money. A philosopher by nature and a lawyer by pro-
fession, Bacon had an insatiable desire to become the premier
statesman of James I. Throughout his life at court, a
succession of equally ambitious men, Rebert Cecil, Robert
Carr, and George Villiers in particular, were persistent
obstacles in the path to Bacon's goal.

Born at York House on January 22, 1561 Francis Bacon
was the son of Nicholas, Queen Elizabeth's Lord Keeper. His
family had long been in the service of the House of Tudor.
His father was a distinguished lawyer, who along with Thomas
Denton and Robert Cary was commissioned by Henry VIII to
propose reforms in the legal education conducted at the Inns
of Court.6 His uncle, William Cecil, was Lord Burghley,
Queen Elizabeth's principal minister until his death in 1598.
And Burghley's son, Robert, held a similar position with
JamsI.

At the age of twelve Francis entered Trinity College,
Cambridge. He left the University two years later without

obtaining a degree and entered Gray's Inn to pursue a career

 

6See Edward Waterhouse, Fortescue Illustratus, (London,
1663): PP. 539-46, or English Historical Documents 1485—1558,

ed. C.H. Williams, (New York, 1967), V, pp. $63-73 for
Nicholas Bacon's Report.

 

 

 

7
in the law. Admitted an utter barrister on June 27, 1582,
Bacon pursued a diversified career as a lawyer, a writer of
philosophy and history, an unsuccessful courtier, and as a
theoretical judicial reformer. After years of wandering in
the political wilderness, he became in quick succession
Solicitor General, Attorney General, a privy councillor,
Lord Keeper, and Chancellor of England. Within six months
of his appointment as Lord Chancellor, Bacon was elevated to
the peerage as Baron Verulam on July 12, 1618, and three
years later he was created Viscount St. Albans.

Having been appointed Chancellor, Bacon realized a life
long ambition of becoming a member of the King's inner
council. Whatever elation the new Chancellor may have felt
over his good fortune was soon diminished. Like all men,
who have climbed to high estate, Bacon had acquired a number
of enemies. A sufficient number of them were members of
Parliament, who proceeded to bring a questionable bribery
charge against him. Finding the charges difficult to answer
and suffering from poor health, he was forced to relinquish
the Great Seal on May 1, 1620, two years and four months
after accepting the position. Tried, convicted, and for a
short time imprisoned, Bacon remained hereafter on the
periphery of the political stage. Until his death on
April 9, 1626 from bronchitis, he devoted much of his time
to his philosophical writings.

With the intellectual mood in the late sixteenth
century in a state of flux, Bacon undertook a quest to find

order in the universe. Heretofore, the medieval theories,

8
that explained the universe and man's place in it, were
replete with metaphysical explanations. This concern for
ultimate abstract principles and primary causes obviously
raised questions that asked why. With the advent of the
scientific revolution, however, physics replaced metaphysics.
Interest gradually shifted from primary questions to
secondary questions. Intellectuals no longer asked why
questions but how questions. Scientists, for instance, were
more concerned about how objects fell than with why they
fell. One approach to answering such secondary questions

was the inductive, empirical method. In The Advancement pf

 

Learning (1605) and especially in The Great Instauration

 

(1620), Bacon supported this method for acquiring knowledge,
that was applicable to all fields of interest. Essential
to Bacon's inductive method was the need to discover the
predictability of natural phenomena through systematic

and scientific analysis. This could be attained by a
thorough inquiry into the particulars of nature. Only by
first gathering empirical data and secondly testing that
information could one make an accurate generalization about

7 Through his inductive method, he

anything, Bacon argued.
believed that man could learn about all areas of inquiry and
that this knowledge would be consistent, certain, and complete.

An example of his insistence on the need for world wide

 

7Francis Bacon, The Great Instauration, in The Works 9:
Francis Bacon, ed. James Spedding, Robert Leslie Ellis, and
Douglas Denton Heath, (Boston, 1890), VIII, pp. 40-43.

 

 

9

collections of natural history was Sylva Sylvarum (1627)

 

published posthumously by Dr. Rawley, Bacon's chaplain.
Bacon's scientific method, therefore, was an attempt to
attain credibility in understanding natural phenomena.

This endeavor to acquire certitude was also apparent
in his legal treatises. The recurring theme in his legal
tracts was the need to refine the laws of England. Bacon
was not a lone voice in this enterprise. Many lawyers felt
the common law was too cumbersome and at times contradictory.
Unfortunately, the political climate was such that a revision
of the laws was highly unlikely. Lawyers, who were members
of Parliament and who were antagonistic toward James, used
the law to curtail the King from implementing his theory of

kingship as it appeared in his treatise, The Trew Law 9f

 

Free Monarchies. Thus, they would have voiced their

 

disapproval at any attempts to change the law. Bacon, however,
was a loyal supporter of the King, and to a large extent he
shared James's views on the place of the Crown in the Consti-
tution. He, therefore, had a practical reason for wanting to
reassess the judicial status quo that was encumbering his
King. He was also a legal scholar who had a firm grasp of
legal principles and the theory of law in general. Bacon

was one of a small group of men in England who had attempted
to analyze the law scientifically. Besides the laws of
England, he had studied continental legal systems. Dis-
enchanted with what was, Bacon sought to formulate what

ought to be.

10
With the exception of the eighth book of The Advancement

9: Learning, Bacon's legal treatises were published post-

 

humously by Dr. Rawley. Despite this fact, Bacon's views on
the need to revise the laws were well known in the legal
community and at Court. In addition to The Advancement pf

Learning, his theory of jurisprudence was explained in two

 

other works: Maxims g: thg_Law_and "A Proposition to His
Majesty Touching the Compiling and Amendment of the Laws of
England."

The Maxims 9: the Law, first published in 1630, was one
of Bacon's early philosophical efforts at proposing a new

approach to law reform. It has been suggested that Bacon

8

had compiled three hundred legal maxims. Only twenty-five

were presented to Queen Elizabeth, however; these have
remained the only maxims extant to this day. The purpose
for such a project and the benefits to be derived from it
were stated in the preface.

I do not find that, by mine own travel (sic),
without the help of authority, I can in any
kind confer so profitable an addition unto
that science, as by collecting the rules
and grounds dispersed throughout the body
of the same laws:...Neither will the use
hereof be only in deciding of doubts, and
helping soundness of judgment, but further
in gracing of argument; in correcting un-
profitable sublety, and reducing the same
to a more sound and substantial sense of
law; in reclaiming vulgar errors, and
generally in the amendment in some measure
of the very nature and complexion of the
whole law.

 

8Paul H. Kocher, "Francis Bacon on the Science of Juris-
prudence," Journal pf the History pf Ideas, XVIII, (1957), p. 5.

 

9Bacon, Works, Maxims of the Law, XIV, pp. 179-80.

ll
Bacon implied that this endeavor would most likely be
utilized by students and professors of the law. Employing
the inductive approach to the laws of England, he formulated
his legal rules. This was a unique and provocative idea,
for each was based on specific legal situations. After each
maxim, cases were cited to support the validity and authen-
ticity of the rule. Thus, the Maxims g: thg_Law_was an
extension of Bacon's use of the inductive, scientific method
in the field of jurisprudence. Moreover, he suggested in
this work that natural or fundamental law could be rationally
induced from positive law. Equating the law of reason with
the law of nature was not unusual in the sixteenth century.
Sir John Fortescue, Thomas Starkey, Christopher St. Germain,
and Sir Thomas Smith has already established this opinion

10 What was new was Bacon's contention that

in their works.
man could understand a superior law through a systematic
analysis of an inferior law.

The ninety-seven aphorisms, that appear in the eighth
book of The Advancement 9; Learning, were another attempt by

Bacon to analyze positive law. In this treatise the emphasis

was placed on the current doctrine of case law. Troubled by

 

10See Sir John Fortescue, On the Governance of England,
ed. Charles Plummer, (London, 1885); E.F. Jacob, gig John
Fortescue and the Law 9: Nature, (Manchester, 1934); Sir
John Fortescue, De Laudibus Legum Anglie, ed. and tr. 5.3.
Chrimes, (London, 1942); Thomas Starkey, A Dialogue Between
Reginald Pole 5 Thomas Lupset, ed. Kathleen M. Burton,
(London, 1948): Christopher St. Germain, Doctor and Student,
16th. ed., (London, 1761), and Sir Thomas Smith, 22 Republica
Anglorum, ed. L. Alston, (London, 1906).

 

 

 

 

 

 

12
the obscurity of the law, he suggested, a method by which
credibility in case law could be attained. The causes for
this obscurity arising were cited as: an excessive compila-
tion of laws both obsolete and relevant, an ambiguity in
their composition, an improper interpretation of laws, and
an inconsistency in judicial pronouncements.11 He proposed
that a new digest of laws be compiled by legislators and
legal scholars. Their efforts should be addressed to
expunging obsolete laws, reducing the number of antinomies,
eliminating redundancy by retaining only the most perfect
laws, removing laws that only raised questions and decided
nothing, and abridging those laws that were too verbose.12
Through this process, Bacon argued, the ambiguity and
obscurity, that created uncertainty in the laws, would be
eliminated. And the element of certainty, which is essential
to just laws, would be realized.

Bacon was particularly concerned with the habit of
employing ancient cases in support of contemporary judicial
decisions. This was a popular practice used by opponents of
the Crown, but it had often been misused. Reliance upon
these ancient cases created confusion in attempting to
grapple with current problems. Bacon maintained, "Examples
are to be used for advice, not for rules and orders. Where-

fore let them be so employed as to turn the authority of

 

11Bacon, Works, The Advancement 9: Learning, IX, p. 326.

121bid., p. 329.

13

the past to the use of the present.u13

He suggested
further that reason and not custom must determine cases.
Caution, therefore, was essential in using old cases to
support current judicial decisions.

The organizational plan for Bacon's new digest of laws
was based on the need for the production of an efficient
digest. He proposed that the common law and statute laws
be placed side by side. This would facilitate making
judicial decisions, for the common and statute laws often
differed in both interpretation and implementation. Emphasis
was also placed on the need to transcribe the laws exactly
as they appeared. Bacon pointed out that it was the authority
of the law that was being drawn upon and that the style,
in which the law was written, was of little concern. There-
fore, if ancient cases were to be cited, authenticity was
essential.

The rationale for the digest and its organizational
plan was thus another example of Bacon employing his inductive
method to implement his legal philosophy. The method for
interpreting the laws in the digest was also characteristic
of the scientific, empirical approach. He suggested that
reports of judgments should be recorded precisely by
reporters who were selected from learned counsellors-at-law.
The object was to prevent judges from possibly distorting
the reports. The reports would appear in chronological order

so that they would be a history of the law. Finally, the

 

13Ibid., p. 320.

l4
commentaries on the laws should be limited to a few authors.
This was suggested because of the number of such commenta-
tors. Few had been authentic, and the multitude of such
books only perplexed the judges.

In 1613, while serving as Attorney General, Bacon
expanded upon his idea for a digest of English laws. This
new effort was entitled "A Proposition to His Majesty Touch-
ing the Compiling and Amendment of the Laws of England."
Bacon reiterated his concern over the "great uncertainties,
and variety of opinions, delays, and evasions" that existed

in the law and in court proceedings.14

At the beginning he
stressed, "what I shall propound is not to the matter of

the laws, but to the manner of their registry, expression,
and tradition: so that it giveth them rather light than any

new nature."15

Citing past and recent history, he invoked
the names of Justinian, Louis XI of France, and Edgar the
Saxon king as men who had refined the laws of their kingdoms.
He also mentioned Henry VIII's appointment of thirty-two
temporal and spiritual commissioners to revise the canon
law after the King's break with the Catholic Church.

Bacon was particularly concerned about the penal laws.

He was of the opinion that many were obsolete, too harsh,

and too numerous. Such inequities, he argued, could have an

 

14Francis Bacon, "A Proposition to His Majesty Touching
the Compiling and Amendment of the Laws of England," in The
Works 9: Lord Bacon, ed. Henry G. Bohn, (London, 1854), I,
p. 667.

15Ibid.

15

adverse effect upon just laws. PeOple would become dis-
respectful of all laws irrespective of their merits. His
opponents, nevertheless, were fearful that a purging of
the laws would remove not only the chaff but also the
wheat. In an attempt to surmount such fears, Bacon re-
emphasized the goal of his project, "The work, which I pro-
pound, tendeth to pruning and grafting of the law, and not
to plowing up and planting it again; for such a remove I
should hold for a perilous innovation."l6

After attempting to refute any objections that he fore-
saw, the Attorney General outlined his plan for compiling
and amending the laws of England. Once again, the use of
his inductive method served as the essential means to this

end. Revising the common law consisted of compiling a book,

pg antiqpitatibus jgris. This involved searching through

 

all the ancient legal records available and organizing the
most important selections in chronological order. "These
are to be used," Bacon suggested, "for reverend precedents,

"17 The common law was to

but not for binding authorities.
be refined by a selective compilation of the Year Books from
Edward I to the present. The guidelines for this selection

process were identical to those preposed in The Advancement
18

 

g: Learning. And the preparation of auxiliary books would

enhance the study and development of the law. These books

 

15Ibid., p. 668.

17Ibid., p. 669.

18Supra., p. 11.

l6

consisted of three types: on legal institutions, on legal
rules, and on legal terms. The digest also involved reform-
ing statute law by clearing the statute books of obsolete
laws, repealing laws of little use, reducing the harsh
penalties of certain statutes, and synthesizing concurrent
laws.19

Thus, a search for certitude in England's laws was
central to Bacon's jurisprudence. The Maxims'gf Egg Lg!

represented his attempt to formulate specific rules for the

laws of England. The ninety-seven aphorisms in The Advance—

 

mggt 2: Learning attempted to clarify the obscurity that
existed in case law. Finally, "A PrOposition" was a plan
to compile and amend the common and statute laws of the
realm into a digest.

Bacon's quest for knowledge of the universe was based
on a search for materialistic knowledge through the inductive,
empirical method. A child of both the Renaissance and
Reformation, which prompted a concern for the humanity and
individuality of mankind, and the scientific revolution,
which was replacing the medieval mythical approach with a
modern scientific method, Bacon became a leading opponent
of metaphysical explanations for natural phenomena. He
advocated a logical use of both human faculties and natural
reason in collecting and analyzing information. Following

this process, general axioms, that were consistent, certain,

 

19Bacon, gp. cit., p. 670.

17
and complete, could be established. By adopting this process,
Francis Bacon became England's leading publicist in separat—
ing philosophical studies from the domain of revealed
theology.

Whether Bacon sincerely believed that his legal reforms
would be adOpted in his lifetime is a matter of speculation.
He was aware of the opposition toward the King in the Commons
and among some of the judges at Westminister. Members of the
Commons, especially the lawyers, questioned the King's pre-
rogative to levy impositions and to grant monopolies.

Common law judges had attempted to restrict the jurisdictional
limits of the King's prerogative courts. Any revision of

the laws of the realm would have to have the approval of
Parliament and the Bench. Bacon, of course, was a practical
man. He may have considered his pr0posals first as a way

of ingratiating himself to his King. Once in a position of
power, he could consider a suitable manner for implementing
his plan. Unfortunately, when he did reach the pinnacle

of judical power as Lord Chancellor, political opposition and
ill health impeded his ability to implement his ideas.

In 1593 Bacon, with the support of Robert Devereux,

Earl of Essex, had sought the position of Attorney General.
Opposition from his uncle, Lord Burghley, and Queen
Elizabeth prevented the appointment, however. Instead of
Bacon, the Queen chose Edward Coke, a successful London
lawyer and the speaker of the House of Commons in 1592-1593.

The eighteenth-century jurist, Sir William Blackstone, viewed

18
Coke as "a man of infinite learning in his profession;"20
while the nineteenth-century historian, Thomas Babington
Macaulay, referred to him as "that narrow-minded, bad-
hearted pedant."21 There exists in these divergent, but not
mutually exclusive, views the complexity of evaluating Coke's
place in English legal history. He was without a doubt the
most controversial jurist of his age. Combining judicial
scholarship with practical court room experience, he matched
wits throughout his career with the theoretical Bacon and
King James I over the legal authority of the Crown. On
the other hand, his quick temper and antagonistic manner,
which he exhibited as a prosecutor and judge, displayed
another side of his character which has adversely affected
many estimates of his career.

Edward Coke was born on February 1, 1552, the only son
among Robert and Winifred Coke's eight children. His father,
who died unexpectedly when Edward was nine, was a barrister
with practices in London and Norfolk. Edward was a pre-
cocious child who entered Trinity College, Cambridge, in
the autumn of 1567. While he was at Cambridge, tragedy once
again struck the Coke family. Edward's mother died leaving
him at seventeen head of the family. After three and one

half years at the University, he journeyed to London to study

 

20Sir William Blackstone, Commentaries 93 the Laws gf
England, (London, 1836), I, p. 71.

 

 

 

21Thomas Babington Macaulay, The Life and Works gf Lord
Macaulay, (London, 1897), VI, p. 157.

 

19

law. There is no record of Coke receiving a university
degree. He entered Clifford's Inn on January 21, 1571, and
a year later he began his studies at the Inner Temple. Coke
was an industrious student and his hard work and judicial
prowess enabled him to complete his legal education in seven
years, one less than the norm. He was called to the bar on
April 20, 1578. The promise that his teachers held for him
was reflected in the status of his sponsors, Father Alvey,
the Chaplain and Master of the Temple, and Sir Thomas Bromley,
Queen Elizabeth's Solicitor General. Further proof of his
superiors' confidence in his abilities was expressed in the
following year, when Coke was appointed a reader at Lyon's
Inn. Such positions were generally held by barristers, who
had established themselves over a ten or twelve year period.

Coke's career is divided into two distant segments with
his appointment as Chief Justice of Common Pleas in 1606
acting as the point of division. Prior to 1606, Coke held
a number of important offices: recorder of Coventry, Norwich,
and London; bencher, reader, and treasurer of the Inner
Temple; speaker of the House of Commons; and Solicitor
General and Attorney General to the Queen. The notice that
he gained as defender of the Crown in the treason trials of
Essex, Raleigh, and the Gunpowder Plot, was obviously instru-'
mental in his appointment to the Bench. James believed that
Coke's previous defence of the Crown would make him a useful
supporter of the royal prerogative. The King's assessment

of the prosecutor's utility in defending the royal will

20
proved incorrect, however. Coke was to become one of the
King's principal antagonists.

On the surface, Coke's change appears illogical and
even unethical. Here was a man who had gained a reputation
as an upholder of the Queen's prerogative and who had prose-
cuted vigorously three important treason trials. No sooner
had he put on the judicial robes than he became the Crown's
leading critic. One need not look too deeply, however, for
the rationale and justification for such a reversal. Stuart
England in many respects was not Tudor England. During
Elizabeth's reign, England was almost constantly under the
threat of attack from continental Catholic powers. The
extraordinary political situation sometimes increased the
use of discretionary power on the part of the Crown. Coke
was cognisant of the ominous political climate, and he accepted
the necessity of occasional legal compromises. No doubt Coke,
like most Englishmen, was also enamored by the personality
of the Queen. She had a shrewd mind like her grandfather,
Henry VII, who had brought stability to England after years
of civil war. She also possessed a temper like her father,
Henry VIII, who broke with the papacy and established a
national church. Both her shrewdness and temperament
enabled her to thwart the continental threat during her
reign. These political successes during her reign merely
increased the endearment the peOple already held for the

House of Tudor.

21

At the time of the accession of the Scottish House of
Stuart, the situation had changed. England was no longer
threatened by the continental powers. Thus, the extra-
ordinary use of discretionary power by the Crown was no
longer viable. England would return, Coke believed, to a
government that ruled within the confines of the common law
as she had done for centuries past. It became evident,
however, around the time of Coke's elevation to the Bench
that James intended to rule England as he had attempted to
rule Scotland. Employing the divine right theory that was
popular on the continent, James saw himself above both the
state and the law. Statements that appeared in his political
tract,.A $52!.EEE 9: Free Monarchies, were indicative of the
King's threat to the common law. He said in his preface to
the reader, "consider rightly that I onely lay downe herein
the trew grounds (of the commonwealth), to teach you the
right-way, without wasting time upon refuting the adver-
saries."22 Using Scotland as his example, he said, "And so
it followes of necessitie, that the Kings were the authors
and makers of the Lawes, and not the Lawes of the Kings."23
Finally, he went on to point out, "a good King, although hee
be above the Law, will subiect and frame his actions thereto,

for examples sake to his subiects, and of his owne freewill,

 

22James I, The Trew Law g: Free Monarchies, in The
WOrkes g: the MOst High and-Mightie Prince,'Iames, ed.
James Montagu, (London, 1616), p. 191.

 

 

 

231bid., p. 201.

22

but not as subiect or bound thereto."24 Neither the tone
nor the content of these statements endeared James to his
subjects as Elizabeth had to hers. Moreover, the small
opposition group in the Commons, that had developed in
Elizabeth's later years, had continued to grow. This group,
which would no longer acquiesce to the wishes of the Privy
Council and the House of Lords, was a vocal element to be
reckoned with. It is from this perspective, in part, that
Coke's apparent reversal must be judged.

Besides the political climate, it is also imperative
to understand Coke's legal philosoPhy. What problems, in
particular, did he consider needed immediate attention? Coke
felt that the foremost legal problem was the conversion from
one constitutional theory to another. The Reformation had
established the constitutional theory of the sovereignty of
the King in Parliament.25 James, however, was espousing a
theory of complete sovereignty for the Crown. Coke was
fearful of the possible implementation of this theory, for
it threatened the one legal principle that he had maintained
consistently throughout his life, that is, the common law
was superior to other types of law in England and essential

to the well being of the commonwealth. In his Institutes, he

 

succinctly summarized his opinion.

 

241bid., p. 203.

25See in particular Statutes of the Realm: 24 Henry VIII,
c. 12 and 25 Henry VIII, c. 21.

23

Here our common Laws are aptly and properly

called the Laws of England, because they are

appropriated to this Kingdome of England as

most apt and fit for the government thereof,

and have no dependency upon any foreine Law

whatsoever, no not upon the Civil or Canon

Law, other then in cases allowed by the

Laws of England.26
This statement reflected the traditionalist insular attitude
of Coke toward the law. And it was understandable why the
King's continental theory threatened his principle. The
constitutional theory that James espoused was in keeping with
the current constitutional trends, while Coke's conservative
position was on reactionary departure; he was deviating
from the sixteenth century norm. But he was not alone, his
fear of the dissolution of the medieval legal universe was
similar to that of another Elizabethan, Richard Hooker.
Whereas Hooker's defense was a metaphysical one, based on
the natural harmony that existed in Elizabethan Anglicanism;
Coke maintained that the medieval constitution exhibited a
stability and consistency that was essential to the rights
and liberties of Englishmen. He attempted, as a judge, to
defend the medieval supremacy of the law over James's
supremacy of the King above the law.

Central to Coke's defense was the dual role played by

the common law and judicial reason. The common law for Coke
was not simply the substantive law of property and contract;

it was the foundation of the constitution; it defined the

respective functions of the King and Parliament; as a result,

 

26Edward Coke, The Second Part 3: the Institutes gf the
Laws g; England, (London, 1669), p. 98.

 

 

24

it was above both King and Parliament. Moreover, the inde-
pendence of the judges was essential to perpetuating the
supremacy of the common law, for they were the guardians of
the law. It was their duty to interpret and explain the law
through the judicial reason they had acquired from years of
study and experience on the Bench. This assertion of the
supremacy of judicial reason was, of course, at cross pur—
poses with James's concept of the supremacy of the King.
And it explains why Coke referred to himself as Chief Justice
of England rather than as Chief Justice of King's Bench.

Coke's Specific method for curtailing the King's power
was his reliance upon judicial precedents. Despite the fact
the Year Books had been compiled throughout the fourteenth,
fifteenth, and early sixteenth centuries, they were not used
as binding authorities. It was not until Coke persistently
utilized the Year Books and his own reports, along with those
of Edmund Plowden and James Dyer, that previous judicial
decisions were employed as authorities for deciding cases.
Throughout his career on the Bench, first as Chief Justice of
Common Pleas (1606-1613) and then as Chief Justice of King's
Bench (1613-1616), Coke relied upon historical precedents in
formulating his judicial decisions. There was a significant
drawback, however, in the Chief Justice's use of this method.
Objectivity was often lacking in the choice of precedents.
Coke would read into the past what he wanted to see. One
reason for his apparent lack of objectivity was that his
opinions were more than just responses to particular points

of law. They also reflected the political suspicion that

25

Coke felt toward James's divine right theory. Coke, after
all, espoused the legalist philosophy of kingship, that is,
law is primary and monarchy is secondary, because monarchy
was derived from law. The law, therefore, placed limitations
on the monarch's authority. James, on the other hand, adopted
the naturalist philOSOphy, that is, monarchy was a natural
institution from which laws had evolved. This philOSOphy
viewed the monarch as the supreme authority in the state
above all laws. The King's divine right theory originated
from and was synonymous with this naturalist philosophy. If
adopted, the King would rule by prerogative power unencumbered
by Parliament, the courts, and the common law. England's
theory of shared political responsibility, the King in
Parliament, would be replaced by the King ruling alone.
Fearful of its adoption in England, as it had been in so many
continental countries, Coke attempted to repudiate the theory
in the manner he knew best, utilizing the ancient common law.

Coke began to annoy the King shortly after his elevation
to the Bench. In Fuller's Case (1607), the Puritan barrister,
Nicholas Fuller was defending two Puritans on a contempt
charge before the Court of High Commission. In the course of
their defense, the indiscreet Fuller insulted the bishops.
He was arrested and charged with schism and heresy. Fuller
applied for a writ of prohibition, arguing that his conduct
as a barrister in a court was a lay matter. For over nine-
teen months the case fluctuated between King's Bench and
High Commission. Coke acted as a mediator between the two

Courts, but in the course of his duties, he clearly sided

26

with the authority of King's Bench. Fuller was eventually
found guilty, fined, and imprisoned. It was a defeat for
Coke and the common law. At issue had been the jurisdictional
question of lay and ecclesiastical courts, a controversy
that had existed for over fifteen years. More specific was
the assertion on the part of the common law courts to issue
writs of prohibition, which prevented ecclesiastical and
civil law courts from hearing certain cases. The issuance of
such writs was becoming a constant nuisance for James, and
Coke's support of them merely increased the King's irritation.
Coke did not wish to abandon the use of either the civil law
or the prerogative courts of England. He maintained that they
had a traditional and legitimate place in the judicial
hierarchy. In the preface to the fourth part of the
Institutes, he clarified his position.

Of Jurisdictions some be Ecclesiastical,

and some Civil or Temporal. Of both these

some be primitive or ordinary without

commission; some derivative or delegate by

commission. Of all these, some be of

record, and some not of record; some to

enquire, hear and determine, some to

enquire only; some guide by one law,

some by another, the bounds of all and

every several Courts being most necessary

to be known. For as the body of man is

best ordered when every particular member

exerciseth his proper duty: so the body

of the Commonwealth is best governed when

every several Court of Justice executeth
his prOper jurisdiction.27

 

27Edward Coke, The Fourth Part 9; the Institutes g: the
Laws 9: England, (London, 1648), preface, unpaginated.

 

 

 

27
Thus, these courts were essential for the perpetuation of
Coke's harmonious medieval constitution. But, he further
indicated that, "if one Court should usurp or incroach upon
another, it would introduce incertainty, subvert Justice, and
bring all things in the end to confusion."28 Coke feared, if
the ecclesiastical and civil courts were not checked by the
common law courts, they would become tools of a King, whose
theory of law threatened English liberty.

Despite this initial setback, the new Chief Justice
continued to defend the authority of the common law. He
questioned the judicial authority of the Councils of Wales
and the North. He also declared, along with eight of his
colleagues, that it was illegal to grant to royal commissions
of inquiry the power of oyer and terminer. Obviously, the
King grew increasingly weary of Coke's opposition. James
thought his Chief Justice was threatening his prerogative
power. Coke disagreed. "Common law hath so admeasured the
prerogatives of the king," he said, "that they should not
take away nor prejudice the inheritance of any: and the
best inheritance that the Subject hath, is the Law of the
Realm."29 He accepted the authority of the King's prerogative
as it was stated in the ancient laws. Such power could be
used only within specific areas, like foreign policy, and

on certain occasions, such as levying war.

 

281bid.

29Coke, The Second Part g£_the Institutes, p. 63.

 

 

28
For ten years James endured the Opposition of Coke. On

November 10, 1616, he finally dismissed him from his position
as Chief Justice of King's Bench. Bacon, who was Attorney
General at the time, summarized the King's reasons for his
action.

His Majesty had noted in him a perpetual

turbulent carriage, first towards the

liberties of his church and the state

ecclesiastical; then towards his pre-

rogative royal, and the branches thereof;

and likewise towards all the settled

jurisdictions of his other courts, the

High Commission, the Star Chamber, the

Chancery, the Provinvial Councils, the

Admiralty, the Duchy, the Court of

Requests, the Commission of Sewers, the

new boroughs of Ireland; in all which

he hath raised troubles and new questions;

and lastly, in that which might concern

the safety of his royal person, by his

expositigg of the laws in case of high

treason.
The last concern, for the King's safety, was a response to
the opinion Coke handed down in the Case of Edmund Peacham
(1615). Peacham was a Puritan sympathizer who had been
imprisoned for insulting the Bishop of Bath and Wells.
During his imprisonment, his house was searched and some notes
were found suggesting the threat of rebellion if new taxes
were imposed. James, who had a neurotic fear of being
assassinated, issued a warrant that transferred Peacham
to the Tower and charged him with high treason. Although
his thoughts were disgraceful, Coke argued, Peacham did not

attempt to harm the King. Coke, therefore, maintained that

 

30Francis Bacon, "Remembrances of His Majesty's Declara-
tive Touching the Lord Coke," in The Letters and the Life 9:
Francis Bacon, ed. James Spedding, (London, 1872), VI, p. 95.

 

29
Peacham was innocent of the treason charge. As a result
of his stand, Coke was subsequently dismissed as Chief
Justice.

Despite his removal from the Bench, Coke continued his
attack upon the excesses of the royal prerogative until his
death on June 9, 1634. Realizing that an independent judic-
iary was impossible so long as the courts were subject to
royal control, Coke shifted his approadh of checking royal
power from the Bench to Parliament. With the support of his
friends in the commons, he renewed his defense of the
supremacy of the common law, and at the age of seventy-eight,
he introduced a bill of liberties that was eventually the
basis for the Petition of Right.

Coke not only distinguished himself as a prosecutor,
judge, and parliamentarian, but he was also a prolific
writer. His scholarship differed in approach, content, and
style from that of Bacon. Bacon was a theorist, who employed
a philosophical approach and a scientific methodology in his
legal treatises. Hence, his writings extended beyond the
purview of the common law. Coke, however, limited his
intellectual scope to the common law, and in the process,
became its leading authority during the Elizabethan period.
His most important contributions were his Reports (1600-1615)

and Institutes (1628-1641).

 

The Reports were a compilation of cases gleaned from the
Year Books, the works of other reporters, and from his own
experience as an advocate and judge. They were arranged in

thirteen parts, with eleven appearing in print between 1600

30
and 1615. Unlike his immediate predecessors, Plowden and
Dyer, Coke did not arrange his cases in chronological order.
Moreover, his lengthy commentary created a problem of dis-
tinguishing his remarks on a particular case from those of
the presiding judge. The lack of an orderly presentation and
his extensive remarks were characteristic of Coke's style.
Nevertheless, the Reports were recognized in his lifetime
as a significant contribution toward clarifying the dis-
jointed common law and as essential reference books for
students and practitioners. Bacon acknowledged this fact
when he said, "had it not been for Sir Edward Coke's Reports,
...the law by this time had been almost like a ship without
ballast."31

Coke's Institutes pf the Laws pf England consisted of

 

four books: a commentary on Littleton's Tenures, Magna
Carta and other medieval statutes, the criminal law, and a
history of courts and their jurisdictions. He stated in the
preface to the first book his purpose for writing this work.

Our hope is, that the young Student, who
heretofore meeting at the first and
wrastling with as difficult termes and
matter, as in many years after, was at the
first discouraged, as many have been, may
be reading these Institutes, have the
difficulty and darknesse both of the Matter,
and of the Termes & words of Art in the
beginnings of his study cheerfully, and
with delight; and therefore I have termed
them institutes, because my desire is,

 

31Bacon, "A Proposition," p. 668.

31

they should institute and instruct

the studious, and guide him in a ready
way to the knowledge of the nationall
Lawes of England.3

The popularity of the Institutes extended beyond the interests

 

of students of the law. The first book was published in 1628.
Because it dealt with the whole range of England's complex
land law, it was obviously popular among the gentry, who had
financial reasons for wanting to understand this difficult and
confusing branch of the common law. Although the second and
third books were completed about the same time as the first,
they were not published until 1641, along with the fourth
book. Written in a style that exemplified the qualities of
a seasoned advocate, books two and three displayed the
historic continuity and supremacy of the common law as Coke
understood it. Political expendiency prevented him from pub-
lishing the books in his lifetime. Despite this fact, Coke's
views on the supremacy of the common law had been well
established during the course of his tempestuous career.
These treatises were a written testament to Coke's position.
Appropriately, they were published just as the parliamentarians,
the allies of Coke, embarked upon that extended campaign to
curb the excesses of royal power, which resulted in civil war.
In times of anxiety, people tend to look forward or
backward in time in hope of satisfying their belief that
things can be or have been better. Aware of the rapidly

changing nature of the insular English society that was

 

32Edward Coke, The First Part of the Institutes of the
Laws of England, (London, 1656), prEface, unpaginated.

 

32

brought about by the influx of new ideas emanating from
various sixteenth century intellectual movements, Bacon and
Coke sought to resolve the conflicts that were plaguing the
legal community. Based on their own philosophical interests,
assumptions, and priorities, they reacted to the problem in
different ways. Bacon concentrated his efforts on the future
by developing a new approach, a scientific method, for
resolving the conflict that he viewed as current in English
legal thought, namely the need to refine the laws of England.
Coke looked to the past and utilized historical precedents
to defend as he saw it, the unique position that the common
law held in the commonwealth against the increased use of royal
prerogative power. The treatises that these men wrote
articulating their respective concerns are considered
classics in English legal scholarship. Furthermore, their
lives have received considerable attention due to their
persistent characters and distinguished careers. Neverthe-
less, they were not alone in their concern for the state of
the law in Elizabethan England. Other lawyers were equally
conscious of the changing nature of the world they lived in.
Like Bacon and Coke, this concern motivated them to publish
their opinions. These men are the lesser known legalists,
whose lives and works have never commanded the attention of
modern legal scholars.

Since this essay is concerned with focusing our attention
on the Elizabethan period and comprehending its intellectual

climate, it is essential to examine the concerns and

33
opinions these men articulated. They were part of the
intellectual framework of the sixteenth century, and their
thought patterns, moods, assumptions, and priorities were a
reflection of that design. The purpose of this study,
therefore, is to examine a group of lesser known legalists.
Our specific concern is addressed to exploring the origins,
nature, and quality of the ideas expressed in their treatises,
and to discover whether these men were either formulators or
products or both of the intellectual milieu of the Elizabethan
.period. Another interest is determining whether or not these
men and their treatises reflect a similarity of purpose and
method with those of Bacon and Coke. Their names were
William Lambarde, William Fulbecke, Thomas Ridley, Alberico
Gentili, and John Dodderidge. They were neither part of a
school of legal thought nor the nucleus of a particular party.
They did have three common roots: all lived in the Elizabethan
period; all had studied law; and all were concerned with the
law and made a contribution to legal scholarship.

Before these men and their works are examined, it is
important to understand the intellectual mood of the period
in which they lived. What were the qualities that marked the
intellectual climate that distinguished this age from any

other period? This is the subject of the first chapter.

1 AN AGE OF RESTATEMENT

The poet John Donne, writing in 1611, seemed to express
the prevailing mood that existed in the late sixteenth and
early seventeenth centuries:

And new Philosophy calls all in doubt,

The Element of fire is quite put out;

The Sun is lost, and th'earth, and no mans wit

Can well direct him where to looks for it.

And freely men confesse that this world's spent,

When in the Planets, and the Firmament

They seeks so many new; then see that this

Is crumbled out againe to his Atomies. l

'Tis all in pieces, all coherence gone;
Donne's sense of anxiety over the changing nature of the
intellectual climate was addressed, in particular, to the
new astronomical theory suggested by Nicholas Copernicus.
Although Copernicus's heliocentric theory of the universe,
2g revolutionibus orbium coelestium, had been published in
1543, it did not receive considerable attention in England
until the last two decades of the sixteenth century.
Scientific theory, however, were not the only ideas that
contributed to the creation of the 'new Philosophy.‘ The
sixteenth century was uniquely rich in the number of events

that produced changes in the intellectual framework. It was

during this century that the Renaissance and Reformation had

 

1John Donne, "An Anatomie of the World," in Complete
Poetry and Selected Prose, ed. John Hayward, (London, 1930),
p. 202.

34

35
a pervasive impact throughout EurOpe. It was also the
period that gave rise to the formation of the nation states
and the Reception of the Roman law. The gradual diffusion
of ideas emanating from these events suggested, indeed, often
imposed a new approach to looking at things. Eventually,
this resulted in the replacement of the medieval world view
with that of a modern one.

When Donne spoke of a lack of coherence, he was lamenting
the dissolution of the medieval world view. Central to this
view was a concern for the redemption and salvation of man.
Everything was somehow connected and intertwined with man's
moral state and his eventual salvation. To this end the
physical and spiritual worlds were depicted as being highly
regulated by God. The existence of God and his role as
creator and overseer of man and the universe were essential
and incontestable articles of faith. In order to make this
faith more credible, medieval scholars attempted to provide
an elaborate and logical rationalization for the existence
of God and the universe he had created. The result was an
intellectual climate characterized by a qualitative view of
nature, a dualistic explanation for spiritual and physical
phenomena, and a pronounced emphasis on the importance of
theological knowledge. Throughout the medieval period these
interrelated features explained the total medieval cosmology.

Theology was essential to this climate, for it was the
basis of medieval authority and the cornerstone of

Christendom. Revelation, dogma, and church doctrines were

36
the sources used to establish medieval assumptions about
authority. The natural law, for instance, that medieval
thinkers believed applied to all men, was considered to be
of divine origin.2 Even the indigenous customs and tradi-
tions, found in the common laws of the various feudal
principalities, were influenced by the preponderance of
theology. And the church, along with the secular authorities,
administered the justice that these local laws provided.
Furthermore, revealed theology was synthesized with the
philosophical views of Aristotle, who was revered through-
out much of the middle ages. The thirteenth century scholastic
philosopher, Thomas Aquinas, was most successful in uniting
the reason of Aristotle with the revelation of the Bible in

two of his works, the Summa contra Gentiles and the Summa

 

Theologica. The widespread acceptance of Thomistic philosophy

 

enhanced further the position of theology within the
intellectual climate.

The attention directed toward understanding the nature
of God and the universe also led to the development of a
dualistic system of reasoning. It was, most likely, an uncon-
scious effort at first that eventually became a conscious
obsession with the scholastic philosophers. This form of

rationalization created a dualistic explanation for all

 

2The thirteenth century English lawyer, Henry de Bracton
defined natural law as "that which nature, that is, God
himself, taught all living things." See George E. Woodbine,
ed., Bracton pp the Laws and Customs pf England, tr. Samuel
Thorne, Cambridge, Mass., 1968), II, p. 26.

 

37

phenomena. It explained the interrelationship of the
physical and spiritual worlds and gave further credence to
the total medieval cosmology. In the study of astronomy,
for instance, the Ptolemaic theory, which placed the earth at
the center of the universe, was widely accepted in the
medieval period. Ptolemy taught that spheres surrounded the
earth with each sphere associated with a particular astronom-
ical fact. Ten of the more important spheres controlled the
moon, the sun, each of the known planets, the stars, the
movement from east to west, and the unknown outer region. The
preponderance of theology in the medieval metaphysic added
a spiritual response to this scientific or physical explanation
of the universe. Through the use of allegory, for example,
the Italian poet, Dante, believed the ten spheres were regu-
lated by a superior intelligence, that is, each of the nine
spheres closest to the earth was controlled by one of the nine
choirs of angels and the last sphere was the domain of God.
Dualistic explanations were not limited to associating
physical reality with spiritual reality, however. Spiritual
reality could be made physical. The most obvious example of
this was the doctrine of the eucharist. Furthermore, the
medieval political and social structure recognized a dual
sovereignty. The Church and the temporal rulers shared
political power and social control, with the church usually
recognized in theory as the superior in this relationship.

Finally, the emphasis placed on the qualitative view of

nature produced a stratified society. Natural law, custom,

38

and tradition were all influential in determining one's
place in society. The medieval theory of society was based
on a hierarchy of estates or classes that had certain functions
and special privileges associated with their place in the
Christian commonwealth. To illustrate, the church hierarchy
consisted of a pOpe, bishops, priests, and the laity, while
its secular counterpart was composed of kings, nobles, and
the common man. Qualitative values were even reflected
in the celestial hierarchy. The nine choirs of angels,
referred to above, possessed varying degrees of perfection.
The most perfect were closest to God, while the least perfect
were closest to man. Like the angels, it was impossible for
man to move upward in the social hierarchy. The feudal
system had clearly defined the extent of one's liberty and
station in life.

By the fifteenth century the medieval climate, which
was dependent upon this theological and mythical form of
reasoning, had become suspect. A series of events, some
interrelated and others seemingly unrelated, created a mood
of doubt. The people associated with these events and the
ideas that evolved from them contributed to the initial
questioning and final dissolution of the medieval climate of
opinion. The rise of the nation states, the Renaissance, the
Reformation, the scientific revolution, and the Reception
of the Roman law were events that in particular influenced

this change in mental atmosphere from medieval to modern.

39
Although there were distinctions in race, language, and

in some cases natural territorial boundaries, medieval
kingdoms lacked a legal and political autonomy that is commonly
ascribed to a state. It is, therefore, an anachronism to
apply the term 'state' to medieval principalities. During
this period, emphasis was placed on the similarities rather
than on the differences of the people of western Christendom,
and this was reflected in the practical application of the
medieval theory of order. Christians acknowledged the univer-
sal supremacy of natural law and of the Catholic church.
These universals, creations of an omnipotent God, provided
the middle ages with a social and Spiritual cohesiveness that
transcended race, language, and natural boundaries. Further-
more, the Holy Roman Emperor, although the title was rapidly
becoming a misnomer, still wielded extensive power and
influence on the continent. Medieval kings, therefore, were
limited in their governing powers by the law, church, and
feudal rights. In discussing the reasons for the existence
of kings, the thirteenth-century English lawyer, Henry de
Bracton, emphasized this quality.

The King, since he is the vicar of God on

earth, must distinguish jus from injuria,

equity from iniquity, that all his subjects

may live uprightly, none injure another, and

by.a just award each be restored to that

wh1ch 1s h1s own.

Thus, the primary obligation of the medieval king was to

administer justice.

 

3Woodbine, pp. cit., p. 305.

40

By the fifteenth century, faith in the medieval theory
of order had been seriously threatened by political, social,
and economic factors. The papacy, which wielded considerable
political and legal influence over the Christian commonwealth,
had been undermined by the Babylonian Captivity (1305-1378)
and the Great Schism (1378-1415). It attempted to reclaim its
lost splendor during the Italian Renaissance, but hOpes of
regaining a hegemony over Europe similar to that of Gregory
VII or Innocent III were mere delusions. Feudalism, the
system of social control which enabled the stratified classes
of medieval EurOpe to function effectively, was also becoming
discredited. The continued existence of baronial wars was
causing havoc in the medieval principalities. The barons,
by the very nature of their social status, were supposed to
assist the king in maintaining order and in administering
justice. Instead, they were often the instigators of much
of the disorder and injustice. Finally, the expansion of
commercial ports in the northern kingdoms to rival those
centered in Italy produced additional negative consequences
for the medieval status quo. People began to move from the
agrarian feudal estates to the non-feudal municipal centers.
The success of the merchants created a wealthy non-feudal
middle class, who petitioned the king to control the unruly
barons from disrupting their successful businesses.

Each of these events had a debilitating effect upon the
practical application of the medieval theory of order.

Many of the political, social, and legal common denominators

41
that had once united Christendom were discredited. This in
turn created a power vacuum. But by the latter half of the
fifteenth century, the political climate fortuitously shifted.
Each of the three major western Eur0pean kingdoms had an
intelligent and shrewd king on its throne. Spain's
Ferdinand of Aragon, France's Louis XI, and England's
Henry VII were able to arrest the baronial upheavals through
a concerted effort to centralize their kingdoms. Through a
process of consolidating the lands of deceased and disin-
herited barons they not only quelled the disorder but also
filled the power void left by the Papacy and the Holy Roman
Emperor. Fortunately, their efforts were augmented in the
early sixteenth century by equally able men, such as
Charles V, Francis I, and Henry VIII. This process of con-
solidation was the foundation for the creation of the nation
states.

The growth of state sovereignty on the continent had
some essential differences from that in England. Continental
states utilized Roman legal theories that appeared in the
Institutes of the Emperor Justinian in 533. These legal
principles, that stressed centralization of authority, had
the effect of legitimatizing the development of a cohesive
state. Moreover, political theorists were develOping new
political ideas based in part on Roman legal principles.
Early in the sixteenth century, for example, Niccolo
Machiavelli played an important role in initiating a change

in political philosophy through the publication of The Prince.

 

42
Having received papal approval, it was first published in
1532 and went through twenty-seven editions in twenty-five
years before the Church condemned the book. Concerned
specifically with the disorders in the Italian city-states,
Machiavelli dismissed the medieval emphasis on the ideal,
on what ought to be, and directed his efforts toward
explaining the political realities of what was. He relied
upon the past, especially Roman history, as his model for
political behavior. By this empirical approach, Machiavelli
concluded that only a forceful monarch could prevent anarchy
and chaos in the state. To accomplish this end, he placed
a greater emphasis on the positive law, the commands of the
law-giver, rather than on the law of nature. The law-giver
or prince, Machiavelli believed, would be the personification
of a strong state. His philosophy differed significantly
from that of medieval political thinkers, for he stressed
the will of the state rather than the will of God.

By the second half of the century a French political
theorist, Jean Bodin, was clarifying further the importance
of authority vested in the state. Like Machiavelli, Bodin
was addressing himself to a particular need that existed
in his country. France was in disarray due to warring
religious sects and political factions. And like Machiavelli,
Bodin believed the state and sovereign were synonymous.

The only true form of sovereignty, he maintained, was when
it was vested in one man who had supreme power over all
unrestrained by law. Bodin differed from Machiavelli,

however, in that his sovereign was bound by the laws of God

43

and nature. But even this restriction was negligible
because the sovereign was answerable only to God for trans-
gressions of the law. Bodin urged that the sovereign be
made supreme to insure peace and order, and he specifically
stated five functions of the sovereign that would bring
this about.

One, and it is the principal one, is

creating the most important magistrates

and defining the office of each one; the

second, proclaiming and annulling laws;

the third, declaring war and peace; the

fourth, receiving final appeal from all

magistrates; the last, the power of life

and death when the law itself leaves no

room for extenuation or grace.
Bodin's contribution to sixteenth century political thought
was his succinct definition of sovereignty. Furthermore,
this definition facilitated the growth of royal absolutism
which was the popular form of sovereignty adopted by the
nation states on the continent.

In England a new territorial state was also developing
but with a difference. Because of its geographical remote-
ness from Rome, medieval England had been left isolated
from many continental influences. As a result, it was able
to evolve an indigenous common law and institutions, such
as Parliament and the law courts, while still remaining a

part of the Christian commonwealth. Even its spiritual

dependence on Rome had been negligible, and when it was

 

4Jean Bodin, Method for the EagyComprehepsion pf
History, tr. Beatrice Reynolds, (New York, 1945), pp. 172-73.
The Method was first published in 1566, for a comprehensive
treatment of Bodin's political philosophy see The Six Books
pf the Republic (1576).

 

44
imposed, it was vigorously challenged. Following the weaken-
ing of papal power and the culmination of the English
baronial upheavals with the Wars of the Roses, the English
monarchs realized consolidation of political power was
imperative in order to meet the needs and demands of the
new age. But there was no desire to abandon completely
the established medieval institutions. Although many had
not worked well during the disorders of the fifteenth century,
they were still functional. Besides, nothing had operated
effectively during this time of crisis. English efforts,
therefore, to consolidate were applied with caution and a
judicious mixture of old and new methods of government.
They supplemented the common law and the medieval institutions
with a strong centralized authority in the person of the king.
Although the Crown was the predominant partner in this arrange-
ment, it lacked the absolute authority that continental
theorists were claiming was necessary.

One of the primary reasons for England developing a
strong centralized government was the demand voiced by the
middle and lower classes to return to a society based on law
and order. The ruling House of Tudor was attuned to this
request. Moreover, since they had been political unknowns
until Henry, Earl of Richmond, became King Henry VII in 1485,
their support was minimal among the nobility. As a result,
they were largely dependent upon the support of other classes,
especially the new wealthy merchant class.

Through the utilization of conciliar government, the

Tudors were able to centralize their power base. The Tudor

45
council consisted primarily of middle-class men from rather
obscure origins who possessed legal, financial, or diplomatic
skills. The council had two functions: it advised the
king and it adjudicated cases. The judicial powers will be
discussed when the Reception of the Roman law is explained.
It is sufficient here to point out that the council utilized
its power to develop jurisdictions in areas not administered
by Parliament or the common law courts. The council's ven-
tures into this area created a number of prerogative courts
for the king and further accelerated the Crown's efforts to
centralized authority. The council also enhanced, on a wider
scale, its function of advising the king on policy matters
(and in implementing approved policy. This was a marked and
fundamental difference from medieval times in the degree to
which the council asserted its authority. The Crown could
now wield sufficient authority over local politics to make
its will prevail. This obviously restricted the power and
control of the barons while augmenting that of the king.
Thus, the medieval notion of local baronial control was being
abandoned for a centrally administered state that could
assure peace and tranquillity throughout the realm.

Medieval methods of governing were not completely dis-
carded, however. It was pointed out earlier that the Tudors
judiciously mixed old and new ideas in establishing their
nation state. Using the council as an administrative unit
of government, but increasing its effectiveness was an
example of this. But the wisdom of this approach was

particularly evident when the Tudors retained and utilized

46

what was by far the most important institution created
during the medieval period, Parliament. Representatives
of the House of Commons were usually members of the middle
class that were sympathetic to Tudor efforts to insure law
and order. In their capacity as representatives of the
people, they could become effective tools for assuring
stability without hampering Tudor efforts to centralize
authority. The most thoroughly documented example of the
Tudors' utilization of Parliament for this end was during
the sessions of the Reformation Parliament.5 The Crown's
efforts to repudiate papal authority and to establish a
national church were overwhelmingly supported by Parliament.
Furthermore, the medieval idea of an international Christian
commonwealth was abandoned and replaced by the notion of
the commonwealth of England that united church and state at
the national level under the headship of the monarch.

Despite the practical successes at consolidating their
authority, the Tudors were not without theories to justify
the abandonment of the medieval theory of order. Yet unlike
some continental theorists, the English neither limited
their tracts to political thought nor did they advance a
theory of absolute authority for the king. Instead, they

retained certain principles of medieval thought and synthesized

 

5See in particular Statutes of the Realm: 23 Henry VIII,
c. 20; 24 Henry VIII, c. 12; 25 Henry VIII, c. 19; 25 Henry
VIII, c. 20; 25 Henry VIII, c. 21; 26 Henry VIII, c. l; 27
Henry VIII, c. 28; 28 Henry VIII, c. 10; 31 Henry VIII, c. 13;
and 31 Henry VIII, c. 14.

47

them with the political, social, and legal realities of
the sixteenth century. Of particular concern during the
first half of the century was the desire on the part of
Henry VIII and his principal minister, Thomas Cromwell, to
popularize the new religious settlement. For example,
Christopher St. Germain, a barrister from the Inner Temple,
addressed himself to clarifying the distribution of authority
within the English church. He maintained that all juris-
dictional powers formerly wielded by the POpe and the English
clergy were now in the possession of the King in Parliament.

The king/ by that he is recognised by the

parliament to be the supreme head under God

upon earth/ of the church of England/ hath

as I take it no newe power given him in any

thing but that like as before that recognision

made/ he had all such power over his subiects

spiritual and temporal as to a king belongeth

by the law of God: so after the said recogni-

sion he had the same power without alteration/

an none other but that.
The duties of the clergy were limited "to minister the sacra-
ments to the people and to preach and teach them how to
please God and keep his commandments."7 St. Germain retained
the medieval notion that the king was under God and the law
while suggesting the modern idea of the supremacy of the
king in Parliament.

In an effort to enunciate the king's supremacy follow-

ing the Reformation and to prevent a foreign invasion in

 

6Christopher St. Germain, "An answers to a letter,"
(London, n.d.), unpaginated.

7Ibid., unpaginated.

48

name Of the religious crusade from the continent, a number
of Tudor pamphleteers popularized the doctrine Of non-
resistance to the king. That the king was God's viceregent
on earth responsible to him for the temporal well-being Of
the people was an established medieval notion. The fact that
an act of Parliament made the king responsible for their
spiritual welfare as well was a new but generally accepted
idea. Nevertheless, there was some potential Opposition to
the king's position as head Of the English church, and the
doctrine Of non-resistance was directed at that opposition.
During Elizabeth's reign, when the threat Of foreign invasion
became a reality with the Spanish Armada and when Opposition
to the Elizabethan religious settlement came from both
Catholics and Puritans, non-resistance proved vital to the
security Of England. Obviously, it also had the effect Of
augmenting the importance Of the monarch's authority.

Although some Of the theorists devoted much of their
time to discussing the nature Of monarchial authority, others
attempted to present a more balanced and realistic assessment
as they understood it. Thomas Starkey, a humanist at the
court of Henry VIII, belongs to this group. He Opposed
those political principles found in the Roman law that
stressed monarchial authority; he believed the people were
the source Of authority not the prince, and he favored a
limited monarchy. He warned in 1538.

it is to the state Of the common weal

to restrain from the prince such high
authority, committing that only to the

49

common counsel of the ream (bid) and
parliament assembled here in our
country. For such prerogative in
power granted tO princes is the
destruction of all laws and policy.

While supporting the idea Of a strong centralized govern-
ment, he believed government action must ultimately rest

with the people, because "laws are made for the people and

for the order of them, and not the people for the laws."9

Writing thirty years later, the English scholar and diplomat,
Sir Thomas Smith, supported Starkey's view with this summation.

the parliament Of Englande, which
representeth and hath the power Of the
whole realme both the head and the bodie.
For everie Englishman is extended to bee
there present, either in person or by
procuration and attornies, Of what pre-
heminence, state, dignitie, or qualitie
soever he be, from the Prince (be he King
or Queene) to the lowest person Of
Englande. And the consent of the
Parliamegfi is taken to be everie mans
consent.

Both Starkey and Smith had recognized the need for a strong
monarch who could prevent disorder within the realm, and if
necessary, thwart any attempts at foreign intervention. Yet
each retained the medieval idea that the king was under the
law, and in this sense, they were referring to the important

role Parliament played as a law-making body.

 

8Thomas Starkey, A Dialogue Between Reginald Pole 5
Thomas Lupset, ed. Kathleen M. Burton,‘(London, 1948), p. 100.

 

 

9Ibid., p. 106.

10Sir Thomas Smith, 23 Republica Anglorum, (1583 ed.),
ed. L. Aston, (London, 1906), p. 106.

 

50

By consolidating authority in the Crown, the Tudors
had built a strong nation state. Yet while the English
theorists supported the Crown's efforts, they actively
stressed that state authority was a shared responsibility.
Tudor England was, as Charles H. McIlwain persuaded us a
number Of years ago, an "organic state."11 Neither individuals
nor institutions were raised above the state or the law. The
Tudors, therefore, had created a nation state, a modern state,
along medieval lines.

Yet it could not be denied that the increased emphasis
on the monarch's authority was a potential if not a real
threat to this notion Of shared responsibility. Certainly,
his centralized government and prerogative powers undermined,
to some extent, the practical application Of the commonwealth
theory Of shared power and authority. By the end Of the
century, parliamentary Opposition had developed regarding
the monarch's authority, because attempts had not been made
to define the extent Of his supremacy or the limits Of his
prerogative power. Despite the Opposition, the majority Of
people did not feel threatened by this ambiguity so long as
the Tudors were on the throne. But the reign Of the last
Tudor, Elizabeth, was Obviously drawing tO a close. The more
astute political Observers were concerned about the conse-
quences, because the most likely candidate to succeed the

Old Queen was the pedantic James Stuart Of Scotland. James

 

11Charles H. McIlwain, The High Court 9: Parliament and
Its Supremacy, (New Haven, 1910), p. 336.

 

 

51
was king Of a country that employed the Roman legal system,
and he was a disciple of the doctrine of royal absolutism
that this law generated. Compounding the problem was the
increased interest by some Englishmen in the political ideas
Of Machiavelli and Bodin. Their political philosophies,
grounded in Roman law, stressed the primacy of the monarch
and the ancillary importance Of the law within the state.

This philosophy was in direct Opposition to the political
philOSOphy that had evolved throughout the century in England.
James Stuart arrived late in 1603 to claim the throne

Of England left vacant upon the death Of Elizabeth. He was
uncompromising from the beginning in his attempt to establish
himself as an absolute monarch above both state and law. The
issue of authority, that the Tudors had left unanswered,

had reached an impasse under the first Stuart. It was to
become the fundamental question that needed answering during
the age, and, as a result, royalist and parliamentary factions
developed over the issue. It has already been pointed out

the extent to which Francis Bacon and Edward Coke played lead-
ing roles in this controversy.12 The legal community in
general was Obviously drawn into the debate. For some lawyers,
who were members Of the House Of Commons, it naturally

aroused their interest and required their attention. Still
others, particularly the English civil lawyers, attempted to

assist in resolving the constitutional dispute with arguments

 

12Supra., pp. 7-16 and 18-30.

52
that they published in the form Of legal treatises. Thus,
the issue Of authority within the evolving nation state

had become a preeminent concern Of the Elizabethan legalists.

The Renaissance, like the rise Of the nation states,
also transcended territorial boundaries. It began in the
Italian city-states during the fourteenth century and
gradually moved northward where it reached its final splendor
in England late in the sixteenth century. A complex hetero-
genous period, the Renaissance does not lend itself to a
simple precise definition because Of the time span, geograph-
ical area, and intermixture Of cultural elements that it
encompassed. It did dominate, however, the intellectual
climate of Europe during this period; it produced a mood
that was highly critical of the medieval world view, but it
did not attempt radically to displace the medieval status
quO. Criticism Of the medieval period was led by a group of
intellectuals known as humanists. It was their philosophy
with its priorities and assumptions that established the .
intellectual mood of the Renaissance, and the widespread
acceptance of their philosophy eventually contributed to the
dissolution of the medieval world view.

Although the Renaissance was a complex period, the
humanist movement did possess three fairly consistent charac-
teristics. The humanists were conscious Of living in a
new age that was represented by their unique efforts at
enhancing a belief in the total value Of man. This differed

significantly from the medieval view with its emphasis on

53

God as creator Of the universe and overseer Of mankind,
and man as the contrite sinner transfixed in his notch by
a static society. Renaissance scholars still believed that
God was the creator and overseer Of the universe, but they
placed a greater faith in and emphasis on man's reason and
personal wisdom to order his own life. For example, the
humanists were particularly concerned with the corruption
that existed in governmental institutions, but they possessed
an Optimistic belief that society could reform itself.
Following their assessment, they set about proposing a highly
utilitarian approach for resolving society's problems.
Reform in education was fundamental to this approach. The
humanists departed from the scholastic method with its
emphasis for theology and proposed a new learning that was
based on a concern for ethics and rhetorical eloquence.
Central to this new learning was the critical study of moral
philosophy, history, and philosogy. The humanists believed
that such an approach to education would produce the
necessary climate that would facilitate reform in government.

Humanism was a broadly based intellectual movement in
which scholars and artists engaged in rediscovering and imita-
ting the ancients Of Greece and Rome. Interest in the
ancient world and its rich intellectual tradition had been
precipitated in part by the fall Of Constantinople. When
the capital Of the eastern empire was seized by the Sultan'
Mohammed II on May 29, 1453, Greek scholars fled to western
Europe, and they brought with them many valuable manuscripts.

The study Of these works provided western scholars with a

54
new perspective Of their classical heritage, a heritage
that had been largely displaced during the advent of the
Christian movement and subsequent establishment of the
Christian commonwealth. Humanists viewed the ancient world
as a dynamic world that could be utilized as a model. It
had completed the cycle of human experience, and it was
also concerned with the temporal life Of man rather than a
celestial after-life. Classical history and philosophy were
especially pOpular in providing the humanists with a sense
Of the classical environment. This reverence for the ancient
past, particularly the writings Of Plato and Cicero, led tO
an intense and sensitive criticism Of the immediate past.
And the static world view Of the scholastic philosophers
was especially singled out for condemnation.

Finally, there were two phases to the Renaissance. It
was first an elitist movement that had close ties with the
universities. Universities were the Obvious centers for
advancing any new intellectual movement. Italian humanists
imparted the new learning to their colleagues in the north
while on visiting professorships. Students became acquainted
with the movement either through these visiting professors or
by attending one of the Italian universities. These students,
in turn, became tutors to the children Of the nobility or
procured positions at court in the service Of the king.

With the rise Of the nation states, monarchs were eager to
employ qualified laymen who could read and write and who

could serve as financial, legal, and diplomatic aides. More-
over, they were also conscious Of the need tO display a degree

Of royal splendor but Of a different sort. Kings could no

55
longer rely solely on their military expertise. That notion
had died with feudalism. The new national monarch had tO
project an image, real or illusory, Of a man who possessed a
diverse educational background and who surrounded himself with
men of similar talents. The intellectual interests Of the
humanists provided that need. Once its pOpularity was
established at court, the new learning began to affect a
larger number Of people, for it spread to the middle class.
This brought about the second phase Of the humanist movement,
a phase that because Of its broadly based popularity tended
tO associate itself with the indigenous institutions,
characteristics, and needs Of each country. Whereas the
elitist phase was international in scope and concentrated
on a desire to imitate the ancients, the second phase was
marked by its nationalism and its exuberance, for it repre-
sented a period of encouraging creativity in all endeavors
as they related to the interests Of particular countries.

As an intellectual movement, the humanists were an
intensely cohesive group united in a common cause, the advance-
ment Of man's understanding of his personal worth and value
to society. This bond was acutely evident in the formation
and application Of their philosophy Of education. Although
they were critical Of the medieval educational approach,
they did not attempt tO displace the medieval trivium and

O I O O 13 O
quadr1v1um w1th a new curriculum. Instead, new ideas were

 

l3The medieval curriculum consisted Of the seven
liberal arts: the trivium - dialectic, grammar, and rhetoric
and the quadrivium - music, arithmetic, geometry, and
astronomy.

56
introduced within the context Of established norms; these
subsequently altered the status quo, which created signifi-
cant ramifications for the educational community throughout
the sixteenth and early seventeenth centuries.

According to the humanists, the medieval educational
process had been unnecessarily long, because the speed and
efficiency with which one could master an art had not been
a serious concern among educators. Moreover, it was
inexpedient from their point Of view, because the scholastic
approach was based on an unsystematic exegetical study Of
texts. The humanists believed a person could master an art
in a shorter period Of time if a system of prescribed guide-

14 The development of a method

lines and rules were devised.
for mastering an art quickly and efficiently became their
credo. Method in the humanistic use of the term did not

mean, however, a sophisticated methodology; it was simply

an elementary outline that would enable a person to master

a body Of knowledge, and it oftentimes explained how this
knowledge could be applied to one's situation in life.

Through the utilization of the printing press, a prolifera-
tion Of method books Of a variety Of types became tremendously
popular throughout the sixteenth century. Two Of the early

and more famous examples Of humanist method books, that were

indicative Of the elitist phase Of their movement, were

 

14Professor Gilbert suggests that this concern for speed
was a result Of a "time-conscious" element that had not
existed in previous ages. See Neal W. Gilbert, Renaissance
Concepts pf Method, (New York, 1960), p. 66.

 

57

Baldassare Castiglione's The Book pf the Courtier (1528)

 

and Sir Thomas Elyot's The Book Named the Governor (1531).

 

Roger Ascham's Schoolmaster (1570), on the other hand, was

 

representative Of the exuberant phase Of the humanist move-
ment in that his book was more universally applicable to
members Of England's various classes. With a rapidly develop-
ing nation state, increasingly dependent upon sophisticated
laymen, the significance Of this philOSOphy enabled society

to reap the benefits Of its educated citizenry sooner.
Furthermore, it enabled a larger portion Of the community

to participate in the educational process. This was Obviously
a new assumption that contributed to undermining the static
social theory of the medieval period.

The humanists also made some specific and significant
contributions toward enhancing the value of education.
Throughout the Renaissance, they claimed the pursuit Of
eloquence in writing and speaking was essential. The exten-
sive appeal to classical literature as a model to be imitated
helped to foster this view. The ancients had shown a concern
for and sought solutions to problems found in the city-state
by utilizing ethics, moral philosophy, and rhetoric. This
differed significantly from the scholastic philosophers who
had emphasized a deep concern for spiritual questions, at
the expense Of social problems, and who exhibited a pre-
occupation with theology, metaphysics, and syllogistic
reasoning. Belief in the necessity tO pursue eloquence had

led the humanists originally to propose reforms in education,

58
and rhetorical skills were especially emphasized. The
Ciceronian orator was resurrected and refubished as the
Renaissance ideal. Uniting a mastery Of eloquence, the
humanists maintained, with practical human experience would
enable the Renaissance orator tO lead men toward civic
responsibility, thus improving the quality of life in the
Renaissance state.

Because Of the interest in rhetoric, a number Of
humanists were encouraged to devote their scholarly pursuits
to philological studies. These efforts were also precipi-
tated by the humanist desire to study critically the class-
ical sources for which they had such a high regard. In the
late medieval period, scholars had been in the habit Of
producing numerous commentaries or interpretations Of the
ancient texts. This resulted in a preoccupation by students
and scholars alike with comparative studies of the various
commentaries and detracted from a critical reading Of the
actual texts. Highly critical of this approach, the human-
ists urged a return to the study Of the original sources.
Obviously, philology was considered a useful tool in this
endeavor.

The humanists also encouraged the reading and writing
Of history as an important educational pursuit. If experience
was as vital an attribute Of a Renaissance orator as the
humanists claimed, then history could certainly illuminate
an important part Of life's experiences. As a result, a

significant selection Of humanist writings was devoted to

59
historical scholarship. During the Italian Renaissance,
court and city historiographers were common as were his-
torians Of famous ruling families. These historians were
either educated in or acquainted with the humanist philos0phy,
and their histories were characterized by the humanist
influence. For instance, the preponderance Of a mythical
element, commonly associated with classical and medieval
histories, was considerably reduced, and the theological
rationale, an Obvious component of medieval histories, was
usually avoided. Instead, documentary evidence was utilized
and stressed to support various contentions about the past.
A significant characteristic of classical histories, that
was retained, was the use of ficticious speeches as a vehicle
to praise, blame, or eulogize. These were employed, no
doubt, because they were viewed as an important learning
device that would lead men to civic responsibility. This
was, after all, one of the primary aims of the humanists.

The humanist philosophy Of education affected not only
the seven liberal arts but it also had important consequences
for some Of the established disciplines, such as philOSOphy,
theology, and law. Most fittingly, the humanist movement had
a considerable impact upon sixteenth century legal communi-
ties, since many Of the more distinguished humanists were
either notaries or members Of the legal profession:

Coluccio Salutati, Leonardo Bruni, and Lorenzo Valla in
Italy; Guillaume Bude, Etienne Pasquier, and Jean Bodin in

France; and Thomas More and Thomas Wilson in England, to

60
name a few. There was, at least, one Obvious reason for
this. Beyond the priesthood there were few professions,
other than the legal profession, that required an extended
formal education. Since humanism had its origins in the
universities, members Of the legal profession were bound to
have some association with it. There were, however, differ-
ences regarding the impact that humanism had on continental
legal communities compared with the legal community in
England.

On the continent, it was not uncommon during the
medieval period for law schools to develop within or out of
schools Of rhetoric. The University Of Bologna, the most
famous center for legal education in medieval Europe, had
evolved in just this way. Prior to the advent Of the law
schools, orators had Often represented clients in courts Of
law. Thus, there was a natural affinity between the study
of law and the study Of rhetoric that the humanists were
quick to stress and to capitalize on. A final reason for
the humanist involvement in continental law schools was their
active concern over the choice Of a textbook. The schools

had adopted the Corpus Juris Romanorum as the standard text

 

for the study Of civil law. Standardization was also a
common practice in other disciplines. Theology stressed

the importance Of the Church Fathers and the Bible, and
medicine focused on the significance of Galen and Hippocrates.

The commanding weight attached to the Corpus Juris as the

 

authoritative source led medieval legal scholars to write

615
numerous commentaries about this text. Since the Italian
law schools were in the forefront of this endeavor, this
type Of legal scholarship was commonly referred to as
mos italicus. As was pointed out earlier, the humanists were
Opposed to such exegetical interpretative essays as this
educational format generated, because they were unsystematic
and detracted from a critical study Of the sources. Their

Opposition to the mos italicus was reflected in the impact

 

the humanists had on continental jurisprudence. Once they
had gained entry into the law faculties, they developed and

introduced a new approach called mos gallicus, because it

 

was primarily the achievement Of French humanists. This
method explicitly stressed the need to utilize both philo-
logical and historical approaches for a systematic examina-
tion Of legal sources. This resulted in the humanist
method having a direct and significant consequence for the
study of the civil law across Renaissance Europe.

Whereas the humanist philosophy took a direct and some-
what commanding rOle in the continental law schools, the
response in England was indirect and rather subtle. Civil
law was practiced in England, but its influence was limited
to ecclesiastical and prerogative courts. Furthermore, civil
lawyers had to Obtain their training on the continent. The
common law, on the other hand, was the principle law of
England; it was indigenous to England and had been rapidly
developing since the twelfth century. The common law

courts at Westminster were the sole domain Of the common law

62
lawyers. These men did not receive their legal education
at the universities. Instead, they were instructed at one
of the four Inns Of Court--the Inner Temple, Middle Temple,
Gray's Inn, and Lincoln's Inn. Legal education at the Inns
consisted of learning by example and practice. Since there
had been no attempt to codify the common law, it was
extremely disjointed and complex, and there was no single

text, like the Corpus Juris, that law students could turn to

 

for a standardized training in the law. Also by the early
sixteenth century, few treatises had been written to elaborate
significant portions Of the law. Therefore, students attended
readings or lectures, listened to mOOtings by advanced
students, and Observed the legal arguments presented in the
courts. When they became advanced students they tOO would
participate in the moots, and once adept at this, they were
called to the bar.

Towards the end of the sixteenth century, however, a
gradual change occurred that affected the educational method
at the Inns and also the kinds Of treatises produced by
legal scholars. Both changes had a significant but subtle
relationship with the English humanist movement, which
reached its zenith during the early years Of Queen Elizabeth's
reign. The increased use Of the printing press throughout
the century had led to an expanded body of printed legal
literature that was readily available tO the law students.
This had important consequences for the Inns as students

began to rely more upon these printed treatises and less

63

upon the method of aural learning. The numerous sixteenth-
century editions of Thomas Littleton's Treatise on Tenures
(1481) were illustrative of this fact. In addition to legal
treatises, auxiliary books were written, with some specific—
ally designed for use among lawyers and law students. It
was generally in this manner that the humanists were able

to affect the common law community. One of the earliest and
more important books in this auxiliary category was Thomas

Wilson's The Arte g: Rhetorique (1553). It was the first

 

 

rhetoric book published in the English language. Wilson,
who was a humanist and doctor of civil law, had been a
fellow at King's College, Cambridge, where he was associated
with such English humanists as John Cheke, Thomas Smith,

and Roger Ascham. Throughout his book, which went through
eight editions in thirty-two years, Wilson stressed the
importance of rhetorical skills to his readers, and his
primary illustrations usually focused on the need for lawyers
to have a command of rhetorical eloquence when pleading in
court. No doubt part of the book's success was directly
attributable to the Elizabethan legal community, which was
becoming much more sophisticated due to the humanist
influence.

This leads to another significant fact that helped to
augment a change in legal education and scholarship.
Throughout the late sixteenth century, there was an increase
in the number of young men attending Oxford and Cambridge,

either for a few years or until they received a degree,

64
before they entered one of the Inns. While attending the
universities, these men were a captive audience to the
humanist philosophy of education and their concern for a
greater utilization of rhetorical eloquence, philological
criticism, and historical studies. Thomas Wilson was an
early example of this; Francis Bacon's preoccupation with
codifying English law reflected his interest in philological
criticism, and Edward Coke's attraction to history, to
support his contentions about the common law, was represen-
tative of the acknowledged importance of historical studies.
Through this association with the humanists, England's
future legal scholars were directed into unique areas of
scholarship, that heretofore had been left untapped. Thus,
without invading the rather closed law faculties at the Inns
of Court, the humanists were able to have an indirect but
significant impact upon the priorities and assumptions of the
Elizabethan legalists that was reflected in the choice of

their scholarly works.

The sense of urgency to reform the status quo was not
limited to the humanist movement, however, Juxtaposed to
those Renaissance intellectuals, who were concerned about
the dignity of man, was another group of reformers, who
were equally concerned about the dignity of God. Although
the goals of the Reformation thinkers were dissimilar from
those of the humanists, they, nevertheless, utilized the
humanist method. They employed philological techniques and

historical studies in an effort to return to a simpler

65
form of Christianity that was based on the gospel of Jesus
and was devoid of the excessive material trappings of the
church centered in Rome. Like the Renaissance, the Reforma-
tion had a pervasive impact on European society, and it
ultimately affected more people because of the nature of
the issues that it addressed itself to. "The Reformation
Era,..., was above all else an age of religious faith,"
Harold Grimm argued so persuasively, "when what people
believed had a significant bearing upon political, economic,
and social theories and upon literary and artistic

expression."15

What created this mood of religious reform
was, once again, the highly critical appraisal of the med-
ieval framework. This included doubts about established
doctrinal pronouncements, the effects of clerical abuses on
the spiritual consciousness of people, and the commanding
presence of the papacy in the administrative hierarchy of
the church. The sixteenth century, therefore, was dominated
intellectually by two psychological points of reference:
the secular mentality of the Renaissance and the spiritual
mentality of the Reformation.

The Reformation created a spirit of ideological confron-
tation that lasted for over one hundred and fifty years.

Initially, the values and philosophy of the medieval church

were questioned and judged to be no longer viable. Truth

 

15Harold J. Grimm, The Reformation Era 1500-1650, (New
York, 1954), p. 569.

 

66
was being espoused in a new manner, based not on any
empirical research, but rather in the form of a new ideOIOgy.
Central to this conflict were two issues: theology and
morality, that dominated the early period of the Reformation
and continued to influence the direction of the confronta-
tion between Catholics and Protestants throughout the
Reformation era.

Early in the sixteenth century a growing number of
religious thinkers had serious doubts about some of the
church's doctrines, in particular, the belief in transsub—
stantiation, the necessity of an ordained priesthood, and
the practice of auricular confession and infant baptism.
Doubting the credibility of such established practices and
beliefs had a profound effect upon the religious faith of
peOple, because it was suddenly being suggested that their
relationship to God was somehow different from what they had
been taught. The new theology qualified the mythical quality
that had dominated medieval theology for so long and created
feelings of doubt and uncertainty for people. What tempered
some of their feelings of doubt was the fact that the Refor—
mation was also concerned with the moral abuses of the
church, such as indulgences, simony, pluralism, and nepotism.
The laity and lower clergy had been critical of such trans-
gressions for a long time, and within the broad context of
religious reforms, these abuses were finally being arrested.

In addition to the theological and moral issues raised

during the Reformation, there was also a political factor

‘67
that had serious consequences for the legal profession.
During the medieval period that most elementary of political
assumptions had been a belief in the theocratic polity of
the papacy. The papacy maintained that it had supreme
authority in spiritual and temporal matters of espousing the

doctrine of plenitudo potestatis or the fullness of power.

 

Despite the existence of two types of magistrates, sacredo-
Eigm and regnum, this doctrine enabled the spiritual
authority in theory to dominate the temporal. From the
medieval point of view, this was in keeping with the law of
nature. Religion influenced everything including custom,
which along with revelation, was the major source of
medieval law.

Criticism of the papacy's legal hegemony over Christen-
dom had been a frequently bitter and long standing issue
throughout the medieval period. One of the leading pre-
Reformation critics had been Marsilius of Padua (1270-1342).

In his Defensor pacis, which was compiled in 1342 and con-

 

demned by the church in 1362, Marsilius attempted to put an
end to the papacy's unfounded assertions of authority and
to contend that the course of all legal authority rested
ultimately with the people and should be administered by
the secular rulers. He said,

it is indeed to be wondered why any
bishop or priest, whoever he he, assumes
for himself greater or other authority
than that which Christ or his apostles
wanted to have in this world. For they,
in the guise of servants, were judged
by the secular rulers. But their
successors, the priests, not only refuse

68

to be subject to the rulers, contrary

to the example and command of Christ

and of the apostles, but they even claim
to be superior to the supreme rulers16
and powers in coercive jurisdiction.

Marsilius was particularly critical of the doctrine of pleni-

tudo potestatis, which he claimed was fallacious and with

 

which "the Roman bishops have contaminated and, if one may
say so, destroyed the whole mystical body of Christ."17
Citing the New Testament, he argued that the church, at
least with respect to secular matters, did not have suzerainty
over the state and was, therefore, subject to the secular
rulers. Instead of acquiescing in revelation, the pOpe and
bishops had allowed "their insatiable appetite for temporal
things" to distort their true purpose; as a result, "they
have set themselves up as rulers and legislators, in order
to reduce kings and peoples to intolerable and disgraceful
slavery to themselves."18
Marsilius's thoughtful criticism of the papacy's
extensive involvement in secular politics and its extended
jurisdictional limits went unheeded at first. But with the
advent of the Reformation, there was a renewed interest in

his treatise, because most reformers did not limit their

criticism of the church to theological matters. For example,

 

16Marsilius of Padua, The Defender of Peace, tr. Alan
Gewrith, (New York, 1967), p. 168.

 

17Ibid., p. 321.

13Ibid., p. 340.

69
although Martin Luther was primarily concerned with salva-
tion, his theological assumptions also threatened the
temporal powers of the church. He stressed quietism in
religion and acquiesced to the worldly authority of the
temporal magistrates. While never really developing a
theory of the state, Luther was quite certain about what the
state did not need. Like Marsilius, he opposed ecclesiasti-
cal interference into secular affairs. Regarding the
temporal authority of the papacy, he was adamant, "the pope
should let temporal lords rule land and people, while he

himself preaches and prays."19

The German princes, both
Catholic and Protestant, seemed to be in agreement with
Luther on this issue.

Luther was also critical of the amount of man-made law;
he would have preferred to rely solely upon scriptures and
the common sense of people. While conceding the necessity
for some law, he remained unequivocally opposed to the need
for the canon law and the ecclesiastical courts. He pointed
out,

Even if there were much of value in the
canon law, it would still be wise to let
it perish, because the pOpe claims to
have all the canon laws ensconced in

the chambers of his heart. Henceforth,

therefore, to study it is a mere waste
of time and a self-deception. To-day,

 

19Martin Luther, "An Appeal to the Ruling Class of
German Nationality As to the Amelioration of the State
of Christendom," in Reformation Writin s of Martin Luther,
tr. Bertram Lee Woolf, (New York, 1553;, I? p. 151.

 

 

70

the canon law does not consist of what

is written in books, but in the arbi-

trary choices preferred by the pOpe

and his lick-spittles.20
Luther's condemnation of canon law and ecclesiastical juris-
dictions was not unlike that of other religious reformers.

In England there was also a growing opposition to the

jurisdical impositions of the church. At Court Henry VIII
was incensed with Cardinals Wolsey's and Campeggio's fail-
ure to have his marriage to Catherine of Aragon annulled
through a special ecclesiastical commission. In the city
of London the people could point to the infamous court of
their bishop, Richard Fitzjames, and his handling of the
case of Richard Hunne.21 Moreover, criticism of the church's
moral stature and theological doctrines had been apparent

for sometime. The memorable clerical characters in

Geoffrey Chaucer's Canterbury Tales (ca. 1387) were evidence

 

of this. And John Wycliffe's anticipation of Luther by
his vehement rejection of transubstantiation and the need
for an ordained priesthood was indictive of the long
standing doctrinal disputes.

Nevertheless, throughout Henry VIII's reign the English
church remained doctrinally conservative. It was only after

his death that theological nuances were borrowed from

 

201bid., p. 186.

21For a concise description of the particulars of the
Hunne case see A.G. Dickens, The English Reformation, (New

 

 

71
Luther, Zwingli, and Calvin. What was unique during his
reign was the eXpeditious manner in which the English crown
absorbed en masse the political, legal, administrative,

financial, and doctrinal powers of the medieval church by

22

act of Parliament. Through the legislative process, the

church, which had once united all the principalities of
EurOpe into the Christian commonwealth, was reduced in
England to an auxillary role in the commonwealth of England.
Both pope and clergy were stripped of their spiritual and
temporal powers. And the king, in consultation with the
clergy, was to determine doctrine.

All Decrees and Ordinances, which according
to God's Word, and Christ's Gospel, by the
King's Advice and Confirmation by his Letters
Patents, shall be made and ordained by the
Archbishops, Bishops, and Doctors appointed,
or to be appointed, in and upon the Matter
of Christian Religion and Christian Faith,
and the lawful Rites, Ceremonies and Obser-
vations of the same, shall be in every Point
thereof believed, obeyed and performed to all
Intents and Purposes, upon the Pains therein
comprised.

Five years later it was clearly stated in another act that
the king had always been head of the English church and
had the power "to exercise all other manner of Juridictions,

«24

commonly called Ecclesiastical Jurisdiction. Henry VIII,

therefore, used the English high court of Parliament and

 

22Supra., p. 45.

2332 Henry VIII, c. 26.

2437 Henry VIII, c. 17.

72

English statute law to rid his kingdom of the papal
ecclesiastical courts and the papal canon law. Under the
reign of his son, Edward VI, the English church moved
toward a doctrinal form of protestantism, and his daughter,
Elizabeth I, established the Anglican faith which resisted
the extreme demands of her Catholic and Puritan subjects.

To some extent the rise of the nation states and the
humanist movement had already undermined the political
stature and legal influence of the church. Attacks by
religious reformers on theological and moral grounds
threatened further the church's authority. The total
impact of these attacks was obviously destroying the Roman
church's pervasive influence across Europe and dissolving
the framework that had once justified its prominent place
in medieval society. As a result of the dissolution of the
papacy's power, religion increased in spirituality while
the state expanded its power base. Territorial rulers gained
the allegiance of the people in political and legal areas
formerly held by the church. Gradually, secularized stan—
dards in politics and law replaced religious standards. The
legal profession was to benefit immensely from this shift.
Lawyers became for the early modern era what priests had
been for the medieval period, guardians of ethics and
morality and apologists of the established order.

Compared with the events and ideas discussed thus far,
the development of international law and the advent of

the scientific revolution did not dominate the intellectual

73

mood of the sixteenth century. Nevertheless, they did
begin to affect the climate of opinion towards the end of
the century, and both were to have serious consequences for
the law throughout the seventeenth century. A brief examina-
tion, therefore, of the implications they brought to the
dissolution of the medieval synthesis is in order.

Christianity contributed an ideal framework by which
international peace and universal brotherhood could be a
goal. The church's canon law supplied the code of inter-
national conduct among the principalities of the Christian
commonwealth. But the decline in papal power brought with
it the passing of medieval universalism. Europe was left
with a diversity of states that lacked a law of nations.
Thus, the development of international law was intricately
related to the demise of the Christian commonwealth, the
rise of the nation states, and the impact of the Reformation.

In the fifteenth century, there was an increased need
to practice the art of statecraft because of the prevalence
of dynastic disputes, the emergence of strong monarchies,
and the growth of foreign trade. They turned to Italy
and the city-states for a model where the fine art of
diplomacy was a fact and necessity of life. Here the issues
of embassies and rules of war had already been formalized
at some length. In France, Bernard du Rosier, the provost
and future archbishOp of Toulouse, had even written a

method book, Short Treatise About Ambassadors (1436). It

 

was a handbook for diplomats in which titles were explained;

74
diplomatic powers and instructions were discussed; and the
solemnity of diplomatic procedure was described. These
concerns suggest the level of SOphistication among diplomats
that remained fairly constant until the middle of the
sixteenth century.

By the second half of the century, however, two addi-
tional problems developed which complicated the art of
diplomacy further. One was the extension of European
dominance over new territories due to the voyages of explor—
ation. At issue was the acquisition and jurisdictional
rights of this new found property and the treatment of
heathen natives by the Christian conquerors. The other
problem, and the more serious of the two, was the rejection
of the church centered in Rome. This had left the nation
states facing one another without a universally acceptable
arbiter. Furthermore, up until now, wars had been dynastic
power disputes, but with the Reformation they became wars
of ideology. These conflicts, based on theological
absolutes, tended to undermine established diplomatic
procedures.

The state of potential and real lawlessness, due to
the compromising effects of the Reformation on the art of
diplomacy, became the particular concern of theologians,
canon lawyers, and civil lawyers. Towards the end of the
sixteenth century, they began to outline basic principles
for resolving the problems plaguing international relations.

The old issues of embassies and rules of war were re-examined,

‘75
and solutions to new problems, such as immunities and nego-
tiations, were offered. These suggestions appeared in
lengthy treatises, often entitled the laws of war. In
the forefront of this endeavor were the civil lawyers in
the northern protestant countries.25 Within this group,
the Elizabethan legalists made a significant contribution
toward resolving the conflicts and tensions and in establish-
ing a body of internationally recognized law.

The impetus for establishing rules in order to resolve
international disputes had been largely dependent on the
great issues confronting sixteenth century men, that is, the
changing nature of political and religious thought. The
scientific revolution, on the other hand, was of a more
independent origin. Although the Renaissance and Reforma-
tion had questioned inherited authority and this did pro-
vide ideal conditions for questioning the Ptolemaic cosmos
and the theocentric notions of Christianity, the sixteenth-
century scientists, nonetheless, tended to be disinterested
observers. Unlike the humanists and religious reformers,
they were not conscious of creating a revolution in science.

The sixteenth century treated Copernicus's heliocentric

 

25W.S. Holdsworth maintained, "We should naturally
expect that the principles of this new body of law would
take their modern shape in the writings of men who belonged
to the reformed religion. It was easier for them to see
eye to eye with the new political and intellectual condi-
tions which have given them birth. And this is the case."
See W.S. Holdsworth, A History of English Law, (London,
1937), V, p. 51.

 

76
theory as just that, another theory, that was taught along-
side Ptolemy in the universities. So long as humanism
dominated the intellectual community, the century would
remain not overly receptive to science because of the
humanists' own indifference to it. By the late sixteenth
and early seventeenth centuries, as the humanists' influence
waned and the church's authority diminished, people feared
the implications of scientific investigation. With Brahe,
Kepler, and Galileo attempting to verify the heliocentric
theory, the churches, for the first time, began to persecute
scientific opinion. They were fearful that the last
elements of the medieval design, the Ptolemaic cosmos
and the theocentric idea, would also be discredited. These
were elements that had been left untouched during the
intellectual turmoil of the sixteenth century, because they
were believed to be true, even by the most persuasive
critics of the medieval view.

Thus, the interest in science was a revolutionary
movement of sorts, because it too questioned inherited_
authority. The scientific method was based on mathematical
testing and the gathering of empirical proofs that would pro-
vide some certainty for scientific truth. This suggested,
for the first time, the modern notion that knowledge was a
progressive experience and overthrew the medieval idea
that it was static. The effects of this method were
minimal for the late sixteenth century legal community.

During the seventeenth century, however, the impact was

77
significant. The search for absolute truth in intellectual
endeavors was abandoned. In the field of jurisprudence,
lawyers began to examine the credibility of witnesses and

search for truth beyond a reasonable doubt.26

The final event that so profoundly affected the
intellectual mood of the sixteenth century was the Reception
of the Roman law. It, of all the events discussed thus
far, had the most immediate and significant impact on the
legal communities of EurOpe. Once again, the issue at
hand was the inadequacy of the status quo, in this case
the existing legal systems, to cope with the changing needs
and demands of the age. Although the Renaissance, Reforma-
tion, and rise of the nation states were, to some extent,
causal factors that helped to produce the Reception, the
state of medieval law was such that a Reception of some
kind, independent of these events, seemed inevitable.

Medieval law on the continent had been a mixture of
three legal systems: Roman, canon, and Germanic, along
with countless enactments indigenous to various municipal
centers and feudal principalities. By the sixteenth
century, the civil law of Rome had superseded the other
systems in pre-eminence. The reasons for this are rooted

in the nature of the changing political climate.

 

26One of the most recent and perceptive studies of
law and science in the early modern period is Barbara J.
Shapiro, "Law and Science in Seventeenth-Century England,"
Stanford Law Review, XXI, (1969). PP. 727-66.

 

78

During the twelfth century the Law School of Bologna
introduced into the western empire the Roman law of
Justinian. The purpose was to extract the approximate
meaning of the Justinian texts and to incorporate them
into medieval legal practice. The School did not succeed,
however, in its original endeavor. Instead, the scholars
became preoccupied with writing comments that concentrated
on grammatical and analytical criticism. These comments
were called glosses because of the manner in which the
criticisms were compiled. Absent from them was a consider-
ation of the philological, historical, and literary origins
of the texts. In spite of that, the texts were explained
to some extent and adOpted in part to meet the needs of
the age.

By the fourteenth century a new school, the Post-
Glossators, had developed in reaction to the Glossators.
Founded in France by Jacques de Revigny, a professor at
Toulouse, the School was popularized by the Italians,
Bartolus de Sassoferrato and Baldus de Ubaldis. The Post-
Glossators employed the dialectical method of the scholas-
tic philosophers in their attempt to glean a corpus of legal
doctrine from Justinian's texts, the glosses, and medieval
sources of law. They wrote lengthy treatises on the
sources, and were particularly adept at synthesizing the
various laws in order to contrive new legal rules.
Bartolus, the foremost Post-Glossator, was especially
interested in joining the best of the canon and civil laws

into one ideal system of civil law.

79
The existence of the Glossator and Post-Glossator

Schools, which employed the mos italicus previously mentioned,

 

indicates that a Reception of Roman law was not something
new or unique to the principalities of Europe. Yet des-
pite the previous Receptions, the European states were
still governed by multiple legal systems. To illustrate,
France had at least four systems within its boundaries:

pays g2 droit ecrit, pays d3 coutume, canon, and municipal

 

laws. With the development of separate territorial states,
however, the need for a single system of law became
particularly acute. In h0pe of establishing a single legal
system, Charles VII ordered the compilation of the laws of
France by the ordinance of Montils-les-Tours (1453). Other
monarchs across Europe expressed a similar interest, and
they relied upon the Roman civil law of Justinian as the
basis of their new system and the method of the Bartolists
for implementing it.

While the Bartolist tradition continued into the six-
teenth century, another school of continental legalists
developed as a result of the Renaissance and humanist move-
ment. This School's most famous representatives were
Guillaume Bude and Jacques Cujas of France, Andrea Alciati
of Italy, and Ulrich Zasius of Germany. These men, who
wanted to apply the humanist new learning to the study of

civil law, were advocates of the mos gallicus. They

 

believed the Post-Glossators, like the scholastic philosophers,

were too pedantic in their scholarship. They were also

80
critical of both the Glossators and Post-Glossators'
failure to utilize historical studies and philological
techniques in their work. Their concern was to correct the
errors: analytical, grammatical, historical, and philolog-
ical of the previous schools, and to bring to the national
codes that were being compiled throughout the century the
true meaning and polished language of Justinian's laws. For
the most part, their efforts were successful in raising new
standards in legal scholarship and in facilitating the work
of codification.

The Reception, however, had a broader significance than
the introduction and refinement of the Roman civil law and
its subsequent codification by the territorial states of
Europe. The adaptation of the civil law also had administra-
tive and political consequences for these states. It has
already been pointed out that the civil law stressed
centralized authority and generated political theories of
royal absolutism. Furthermore, the Reception caused a
jurisdictional shift in the power of existing courts of law.
This occurred when the king's council, while acting as a
court, encroached upon the jurisdictions of the ordinary
courts. This was necessary, from the monarch's point of
View, because the ordinary courts were staffed by judges
who had inherited their positions and were irremovable from
office. Any dispute between these judges and the Crown
would have raised serious doubts about the monarch's

position of authority within his state. The sixteenth-

81
century Reception, therefore, must be viewed as not just
the introduction of Roman civil law at the expense of
rival legal systems, but also as the source from which
the monarchs of the nation states were able to justify their
centralized authority and to establish a political theory
based on royal absolutism.

In light of the chaotic state of medieval law and the
previous receptions of Roman legal principles, the sixteenth-
century Reception on the continent appeared inevitable.

But in England, the Reception caused considerable consterna-
tion among some common law lawyers. They were fearful of

the impact that this foreign legal system would impose upon
the common law and the effect it would have on their live-
lihood.27

England had experienced Roman law receptions before.
Prior to the twelfth century the ecclesiastical courts of
England used Roman law, and the introduction to charters and
wills was of Roman origin. The revival in the study of
Justinian's laws during the twelfth century was also

received in England, but it did not affect the substantive

 

27For a time, there was considerable debate over the
extensiveness of the Reception in sixteenth-century England.
Some of the more salient views are found in: F.W. Maitland,
English Law and the Renaissance, (London, 1901); Paul
Vinogradoff, Roman Law in_Medieval Europe, (London, 1929);
Theodore F.T. Plucknett, A_ConEise History of the Common
Lag, (Rochester, 1936); W.S. Holdsworth, A History of
English Law, IV and V, (London, 1937); Stuart E. Prall,
"The Development of Equity in Tudor England," American
Journal of Legal History, VIII, (1964), pp. 1-19; and
W.J. Jones, The Elizabethan Court of Chancery, (London,
1967).

 

 

 

 

 

 

 

 

 

 

82
rules of the common law. Instead, Roman principles were
adapted to the particular needs of the common law. W.S.
Holdsworth considered Henry de Bracton, the thirteenth-
century judge and ecclesiastic, as an important source for
determining how Roman law influenced English common law.

Citing Bracton's famous treatise, De Legibus gt Consuetudini-

 

bus Regni Angliae (ca. 1258), Holdsworth discovered: traces
of the glossators' dialectical method, the utilization of
Roman principles to resolve problems in the law of property,
and the use of Roman illustrations and phraseology.28 In
contrast with the continental Reception, the use of Roman
legal principles was limited and subtle. What had ultimately
prevented an unlimited reception was England's insular
character and pride in its common law.

During the sixteenth-century Reception, the English
common law was not threatened with extinction as was the
case of the customary laws found on the continent. But
its supremacy was endangered. It has already been observed
that the Tudors relied upon the council, both as an advisory
body and as a law court, to solidify their power base. As
a court, the council develOped jurisdictions, especially
during Henry VII's and Henry VIII's reigns, in areas not
administered by the common law courts. This action created

and revised a number of prerogative courts: Chancery,

Star Chamber, Admiralty, Requests, and High Commission, for

 

28Holdsworth, A History, II, pp. 271-86.

83
the king which accelerated the Crown's efforts at establish-

ing a centralized authority.29

Some common law lawyers felt
threatened by these prerogative courts because: the admin-
istrative principles were based upon the civil law, which
suggested notions of Roman imperialism; they were superseding
the common law courts in jurisdictional areas of constitu-
tional, criminal, and commercial law; they were providing
quick and efficient justice that reduced the number of cases
heard in the common law courts; and they employed civilians,
civil lawyers, as officers of the court. The lawyers' con-
cern was enhanced further when Henry VIII encouraged the study
of civil law and went so far as to establish regius pro-
fessorships in civil law at Oxford and Cambridge. These
actions were viewed by some as a serious invasion of the
common law jurisdictions and as a potential threat to the
livelihood of the common law lawyers.

Despite the Tudors' extensive use of prerogative courts
and the magnification of the Crown's authority through these

courts, fears of a Reception similar to that experienced on

the continent were totally unfounded. Obviously, the Tudors

 

29Chancery, an equity court, and Star Chamber, a court
used to repress the powerful barons, had already been in
existence, but they increased and clarified their jurisdic-
tions. The Admiralty Court was revived after having
suffered a decline in the fifteenth century. The Court of
Requests, an equity court for the poor, was created around
1493. And the Court of High Commission, formally called
this by 1570 but in existence since Henry VIII's break with
Rome, was an ecclesiastical commission created as a result
of the dissolution of the canon law courts.

84
did have much to gain personally by espousing a theory of
royal supremacy, but so did the welfare and stability of
the commonwealth of England. The baronial upheavals were
curtailed; the papal position of influence was overthrown;
and an efficient system of justice which the common law was
unable to provide totally was assured. Yet one of the most
consistent traits of the Tudors was the scrupulous observance
of the letter of the law, especially in regard to constitu-
tional questions. This was particularly evident throughout
the Reformation era, when the legislative features of
Parliament were utilized to the utmost. Therefore, while
supporting the theory of royal supremacy, the Tudors also
acknowledged and accepted a constitution that was dependent
upon the common law.

Moreover, it has already been shown that the issue of
the Tudor supremacy within the state was largely qualified
by theorists who pointed out the Crown's dependence on the
law. The perpetuation of this medieval notion was due in
part to the pOpular appeal throughout the sixteenth century
for the writings of Sir John Fortescue, the fifteenth-century
Chief Justice of King's Bench under Henry VI.30 Fortescue
maintained,

the king of England is not able to change

the laws of his kingdom at pleasure, for he
rules his people with a government not

 

30In his works Fortescue often discussed the wisdom of
the English legal system over that of the civil law. He
wrote: 22 Natura Legis Naturae (1461-63), The Governance
9: England (ca. 1470), and De Laudibus Legum Angliae (1471).

 

 

 

85

only regal but also political. If he

were to preside over them with a power

entirely regal, he would be able to change

the laws of his realm,...this is the sort

of dominion which the civil laws indicate

when they state that What pleased the

prince has the force of 1aw....But the

case is far otherwise with the king ruling

his people politically, because he is not

able himself to change the laws without

the assent of his subjects.
The view was expressed continually in the works of such
Henrician apologists as Thomas Starkey, Christopher St.
Germain, and Richard Morison and by Elizabethan theorists
Thomas Smith and Richard Hooker.

Finally, during the course of the century, a number of
factors occurred that gradually produced an improvement in
the status of the common law. First until Thomas More
assumed the position of Lord Chancellor, the premier legal
officer in the realm, the office was generally held by an
ecclesiastic. These men were often trained in the civil
law. Despite their lack of formal training in the common
law, these ecclesiastical Chancellors did understand and
appreciate the common law, especially as it related to the
church. But starting with More, there was an almost
unbroken line of common law lawyers who occupied the position
of Lord Chancellor. Second, the lawlessness of the fifteenth
century had been considerably reduced during the course of

the sixteenth century. As a result, petitions of redress

to the Chancery and Star Chamber courts began to diminish.

 

31Fortescue, De Laudibus, p. 25.

 

86
Third, the Crown made a concerted effort to police the
oppressive local courts. The success of this action
brought about a decline in the issuance of writs of
certiorari and habeas corpus to remove cases from these
courts. Fourth, the common law was adapted to the needs of
the age. It became more efficient at exercising its
criminal jurisdictions, and it also developed an effective
law of contract. Fifth, the common law and Admiralty courts
worked out a compromise that enabled them to share the
merchantile litigation. And sixth, throughout the sixteenth
century an increasing number of common lawyers participated
in the work of the prerogative courts.

By the end of Elizabeth's reign, the judges and lawyers
had at least reached an understanding in theory of the
need to develop a unified court system. Yet they lacked a
program for the practical application of the theory. As a
result, the problem of the prerogative courts remained and
became closely linked to the fundamental question that
needed answering during the age, that is, the limits of
the Crown's prerogative power. Once again, the Elizabethan
legalists were active participants in the debate.

Since the medieval design no longer offered acceptable
explanations to the questions that needed answering, a
search had commenced to establish a new framework. The
rise of the nation states, the Renaissance, the Reformation,
the scientific revolution, and the Reception of the Roman
law were the more prominent responses to that search. The

fact that these events upset the traditional way of looking

87
at such basic factors as politics, education, religion,
science, and law attests to the unsettling mood that developed
during the course of the sixteenth and early seventeenth
centuries. They also explain why the century was so
uncommonly rich in the quality and quantity of ideas produced.
Each response proved to be a significant factor that ushered
in what Basil Willey called "a general demand for restatement,"
that is, the "wish to live and to act according to a

"32 Because of the nature of the shift

different formula.

from a theological and mythical world view to a scientific

and empirical perspective and because the search raised such

fundamental questions about the nature of God, man, and

the universe, the response produced was one of serious

doubt and anguished tensions. There were people in England

and on the continent who continued to believe in the total

medieval framework or at least parts of it. Many, as yet,

were unconvinced of the credibility of the new ideas. They

were comfortable with the old and had no intention of

abandoning the traditions that they had accepted for so long.
Initially, England was one of the more reluctant

countries of Europe to reject the medieval framework,

because many of its indigenous medieval institutions had

continued to work well. Partially because of its geographical

remoteness to the rest of Europe, England could choose to

reject or accept ideas emanating from the continent. The

 

32Basil Willey, The Seventeenth—Century Background,
(Harmondsworth, 1972). p. 11.

 

88

Channel acted as a buffer that produced a more conservative
response to new ideas. In light of this fact, it is not
too surprising to find the English only becoming totally
involved in the search for a new framework late in the six-
teenth and early seventeenth centuries.

As the dissolution of the medieval synthesis became
more apparent towards the end of the sixteenth century, a
response was elicited from the English intellectual
community. Since the legal system in England was such an
important source of order for the society, it was inevitable
that the lawyers would actively engage in responding to the
Aconflicts and tensions affecting them. The Elizabethan
legalists and their works were early examples of this
response. They were important for the interests that they
generated in legal scholarship. How were these men both
products and formulators of the intellectual milieu? What
were their philosophical interests? What were the origins,
nature, and quality of the ideas expressed in their treatises?
The answers to these questions begin to explain the manner
in which the Elizabethan legalists were a part of the age

of restatement.

2 LAMBARDE AND THE USE OF HISTORY

"It is not accidental," J.H. Plumb wrote a few years
ago, "that great social crises, when secular authority or
ancient beliefs are torn in conflict, bring forth a huge
spate of historical writing and, indeed, historical contro-
versy."1 Plumb was referring specifically to the sixteenth
century and the proliferation of historical treatises that
it generated. At that time, there was a recognition among
humanists that history had a didactic value. It could
teach moral and ethical lessons, and it commemorated past
and present political achievements. History, like ethics
and rhetoric, was a significant component employed to
familiarize and to advance man's understanding of his own
personal worth and value to society. Although the humanists
were unable to establish history as a part of the academic
curriculum, they were quite successful at associating the
study of the past with life in the present. Referring
specifically to the Elizabethan age Louis Wright indicated
that ”the vast influence of historical reading upon the
rank and file of Tudor and Stuart society cannot be measured,

but clearly it was a potent factor in the intellectual

 

l

J.H. Plumb, The Death of the Past, (London, 1969),
p. 40.

 

89

9O

2 With the rise of the nation

progress of the citizenry."
states, history was also utilized to augment feelings of
nationalism. Furthermore, the advent of the Reformation
produced another reason for wanting to understand the past
better. Protestant and Catholic reformers endeavored to go
beyond or behind established beliefs and to trace their
origins based on historical sources.

Indeed, there were substantial reasons for the age
being as historically minded as it was. And the legal pro-
fession across Europe was to play a significant role in
cultivating an appreciation for history and contributing
to historical scholarship.3 One obvious reason for this
course of conduct was that lawyers represented the largest
secular learned profession in European society. Their educa-
tional experience fostered an interest in reading history.
Julian H. Franklin has pointed out that "it was very
seriously assumed that the reading of historians was the
ideal form of political and moral education.... A complete
familiarity with universal history was now regarded as a

fundamental obligation of the educated man."4 Increasingly,

 

2Louis B. Wright, Middle-Class Culture i3 Elizabethan
England, (Ithaca, 1958), p. 3371

 

 

3Bouwsma, "Lawyers in Early Modern Culture," pp. 303-27.
His reference to recent scholarship on this topic is
particularly important.

4Julian H. Franklin, Jean Bodin and the Sixteenth-Century
Revolution ig the Methodology 9f Law and History, (New York,
1963), p. 30

 

91

the close affinity between legal and historical scholar-
ship was made evident. On the continent, the Reception
of the Roman law caused some lawyers to devote much of their
time and energies to historical research. They were par-
ticularly interested in discovering the origins of laws and
judicial institutions. They were also concerned with
identifying and differentiating between the judicial con-
tributions of classical Rome and those pre-feudal and feudal
legal developments indigenous to each country. Furthermore,
the emphasis placed on case law also generated a significant
interest to know something about the past in England.5

One of the least appreciated, perhaps, of the Elizabethan
legal historians was William Lambarde. He was the senior
member of a group of scholars, among them William Camden,
Henry Spelman, and John Selden, who addressed themselves
to the study of English legal history. Lambarde was born
on October 18, 1536, in London. Like the other Elizabethan
legalists discussed in this study, Lambarde came from a

6

middle-class family. His father, John, was a draper who

 

5R.J. Schoeck pointed out that two-thirds of the forty-
three members of the Elizabethan Society of Antiquarians
were also members of the Inns of Court. See R.J. Schoeck,
"Early Anglo-Saxon Studies and Legal Scholarship in the
Renaissance," Studies ig_the Renaissance, V, (1958), p. 104.

 

6In order to avoid getting embroiled in a controversy
over what constitutes membership in the middle class, I refer
the reader to J.H. Hexter's use of Claude Seyssel's defini-
tion: "estat moyen - merchants, financiers, industrialists,
the town rich, the bourgeoisie." See Hexter's chapter 'Myth
of the Middle Class in Tudor England,‘ in his Reappraisals
£2_History, (New York, 1961): P. 75.

 

92

became a master of the Draper's Company; he also was an
alderman and sheriff for the city of London. William's
career differed from the other legalists discussed in this
paper in that he lived and worked within the confines of
the Tudor age. Moreover, his life paralleled closely that of
Elizabeth. He was born three years after the Queen, during
a crucial period in England, for Henry VIII and Thomas
Cromwell were in the midst of reforming the English church,
and he predeceased Elizabeth by two years. The formative
years of each occurred as England attempted to cope with
and adapt to the changes brought on by the Renaissance,
Reformation, and rise of the nation state. England was at
the crossroads of leaving the medieval age and entering the
early stages of the modern era. Because of these facts,
Lambarde's career and works represented a significant
phase in the development of English historical scholarship.

Nothing is known of William's education before his
admittance to Lincoln's Inn in April of 1556. Conyers
Read, however, indicated that "in view of his scholarly
achievements it is hard to believe that he was not a
University man, but there is no record of him either at

Oxford or Cambridge."7 Since he was the eldest son,

 

7Conyers Read, "William Lambarde's 'Ephemeris," 1580-
1588," Huntington Library Quarterly, XV, (1952). p. 124.
More recently Wilbur Dunkel has attempted to support Read's
contention when he pointed out that "matriculation for a
degree was only essential for a position in the church or in
an educational institution. In these years university
authorities actually complained that many young scholars in
residence had not registered for the degree." See Dunkel,
William Lambarde, Elizabethan Jurist 1536-1601, (New
Brunswick, 1965), p. 19.

 

 

93
William inherited, upon the death of his father in 1554, the
family manor of Westcombe in Greenwich, Kent. This circum—
stance was a common reason for a young man interrupting his
university studies, for it was necessary that he assume the
responsibilities of the family's finances. Moreover, this
situation was also a common motive for a young heir enter-
ing one of the Inns of Court, for a legal education would
prove invaluable to a landowner.

It took Lambarde eleven years to complete his legal
training, an unusually long period, since the average was
about eight. His acquisition of the manor, however, pro-
vided him with a financial security that made him less
dependent on pursuing a legal career for a livelihood and
enabled him to cultivate his scholarly interests. No doubt,
prior to the commencement of his legal training, Lambarde
had develOped an inquisitiveness toward history, for in
addition to his legal studies, he possessed a lively curiosity
for antiquarian research. This interest was developed and
fortified through his association with Laurence Nowell, the
famous antiquarian.

Lambarde first met Nowell at Lincoln's Inn, where he
was occupying the rooms of his brother, Robert, who was
studying law. Laurence, a Protestant divine, had sought
seclusion at the Inn from Queen Mary's religious persecutions.
Nowell was a member of a group of scholars, educated in the
humanist tradition, who were interested in recovering the
ancient rules and traditions of Britain. His particular

interest was the collection and translation of Anglo-Saxon

94
manuscripts. Wood referred to Nowell as "a most diligent
searcher into venerable antiquity, a right learned clerk
also in the Saxon language, and was one of the first that
recalled the study thereof."8 The leader of this group of
scholars, Matthew Parker, who was also in seclusion at this
time and who was to become Queen Elizabeth's first Archbishop
of Canterbury, specialized in the study of the early church
leaders of Britain.

Apparently, it was Lambarde's facility with Latin that
first attracted Nowell to the young law student, for he
taught Lambarde Anglo-Saxon and encouraged him to study the
ancient manuscripts of Britain, while continuing his legal
training. During these early years, Lambarde's service to
Nowell was not unlike that of a research assistant. This
initial association was rather brief, however. Nowell found
it necessary to flee to Germany as Mary stepped up her
attacks on English Protestants.

While Nowell was out of the country, Lambarde devoted
his energies to his legal studies. He also had more time
to cultivate the friendship of his peers. Given the few
thumb-nail sketches of Lambarde in later years, this proved
to be not too difficult a task. He was the type of person
who attracted people to him. Sir Julius Caesar, master of

the Court of Requests, called him "a gentlemen of great

 

8Anthony A. Wood, Athenae oxonienses, ed. Philip
Bliss, (London, 1813), I, p. 426.

 

95
learning and sincerity."9 And the historian, William Camden,
referred to Lambarde as a man "eminent for learning and

"10 During his stay at Lincoln's Inn, Lambarde had

piety.
the good fortune to develop lasting friendships with John
Puckering and Thomas Egerton. As a matter of fact,
Puckering and Lambarde were called to the bar on the same
day, June 15, 1567. Unlike Lambarde, Puckering and Egerton
were interested in pursuing careers in the central govern-
ment. At the time Lambarde had no idea how successful his
two friends would be. Both were to become Lord Keeper and
Egerton attained the position of Lord Chancellor. Toward
the end of Lambarde's career, Puckering and Egerton were

to play influential roles in obtaining significant positions
for him.

With the accession of Elizabeth as Queen, Protestant
Englishmen began to return to their country, and Laurence
Nowell was among them. Throughout the 15605, Nowell, stayed
at the home of William Cecil, Elizabeth's chief minister
during much of her reign. Cecil, who was also a collector
of manuscripts and a friend of Matthew Parker, became
Nowell's patron. No doubt Parker, the new Archbishop of
Canterbury, introduced Nowell to Cecil. There is another

connection here, however. Cecil at the time was Master of

 

91.8. Leadam, Select Cases in the Court of Requests
1497-1569, (London, 1898), XII, p. xxv.

 

 

 

 

 

10John Nichols, Bibliotheca To- ra-hica Britannica
1780-1790, (London, n.d.), I, p. 495.

 

96

the Court of Wards, and Nowell's brother, Robert, was then
Attorney General for the Court.

Upon his return to England, Nowell renewed his associa-
tion with Lambarde at a time when there was a good deal of
interest in Anglo-Saxon studies, particularly among Cecil,
Parker, and their associates. Lambarde had already developed
lasting friendships with Puckering and Egerton, men destined
for responsible positions of authority during the waning
years of Elizabeth's reign. Presently, he would have an
opportunity to associate with men who actually would assist
in shaping the Elizabethan age. Both Nowell and Lambarde
quickly rediscovered their friendship for each other and
their mutual scholarly interests. Nowell continued to teach
Lambarde Anglo-Saxon and to make transcriptions of Saxon
manuscripts. But Lambarde added a new dimension. He
encouraged his teacher to transcribe old English laws.
Nowell did so and gave them to Lambarde before returning to
the continent. After first adding a parallel Latin trans-
lation, Lambarde had the laws published in 1568. It was

his first publication and was entitled Archaionomia. The

 

significance of the Archaionomia will be discussed later.

 

What is important at this time is an understanding of Nowell's
contribution to historical research, particularly his

humanist perception of the utility of history. This recogni-
tion will not only go a long way toward explaining the mode

of Nowell's contribution, but it will also clarify further

the observation that Lambarde's career and works represented

a significant phase in English historical scholarship.

97
Nowell's great achievement has been clouded, because

he neither published nor completed the work on his own

11

manuscript collections. The publication of the Archaionomia,

 

a work that must be credited as much if not more to Nowell
than to Lambarde, illustrates this point. Nevertheless,
three explanations stand out for Nowell's rather unorthodox
career as a scholar. First, it has already been pointed

out that Nowell was a Protestant divine. Upon his return

to England, he was awarded a number of church livings.
Obviously, these occupied some of his time, especially during
those critical years of transforming the church in England
from a Catholic back to a Protestant denomination. Moreover,
a great deal of work was necessary in formulating, adopting,
and implementing what eventually became known as the

Elizabethan church settlement.12

Nowell was a participant
in those proceedings and in future convocations of religious
leaders. Thus, Nowell found it necessary to defer his
scholarly interests in favor of his duties as a Protestant
minister.

Secondly, Nowell may be regarded as a transitional

figure within the humanist movement. He studied logic and

grammar at Cambridge and Oxford during the late 15303 and

 

11See Robin Flower, "Laurence Nowell and the Discovery
of England in Tudor Times," Proceedings gf the British
Academy, XXI, (1935), p. 59 and F.J. Levy, Tudor Historical
Though , (San Marino, 1967), pp. 136-37.

 

 

 

12See Statutes of the Realm: 1 Elizabeth I, c. 1 and
1 Elizabeth I, c. 2.

98
early 15405, and he graduated B.A. and M.A. from those
institutions respectively. Nowell, therefore, was a product
of the elitist phase of the humanist movement prevalent in
England at that time. This phase possessed a number of
distinct characteristics: it was international in scope;
it concentrated on a desire to imitate the ancients; it
had close ties with the universities; and it attracted dis-
interested scholars. Men affected by this tradition were
inclined to be involved in scholarly research for the better-
ment of themselves and in the interests of a small circle
of friends. Yet, Nowell was also a catalyst in the develop-
ment of the exuberant phase of the movement in England.
This phase brought the new learning of the humanists to a
larger number of people within the middle class, and it was
associated with popularizing the humanist precepts with the
indigenous institutions, characteristics, and needs of
each country. His work with Anglo-Saxon laws and his
influence on Lambarde exemplified this view of Nowell as
an innovator. But Nowell's own scholarly interests and his
clerical duties reduced the amount of time and opportunity
that he could devote to the exuberant phase of the movement.
As a result, he remained in the background encouraging
others.

Thirdly, it is imperative to understand the humanist
philOSOphy of history. The use and type of histories that
this philosoPhy elicited during the elitist and exuberant
phase of the movement not only clarifies further Nowell's

position but also Lambarde's approach to historical

99
scholarship. In order to place this philosophy in its
proper perspective, however, it is important to consider
briefly the medieval position.

Like almost everything else that the humanists attempted
to accomplish, their philosophy of history was highly
critical of medieval historical scholarship. The medieval
view of history was based on a linear concept that incorporated
a good deal of theological speculation. It dealt with events
that started with creation and continued on to the last
judgement. Both past and future were represented in the
medieval historical design. Actually, this view was a record
of God's orchestrated work. Miracles, therefore, were
considered credible explanations or casual factors in the
turn of events. This view of history was obviously unaccept-
able to the humanists. Their purpose was to enhance the
value of man; to make him less dependent on God, the over-
seer; and more independent to direct his own life. As long
as history was considered a record of God's work replete
with mythical events, it could not be utilized as an element
in the humanist design. Furthermore, unless the historical
perspective was changed, it would have encumbered the
humanist aim.

It is not surprising that the Renaissance humanists
turned to the ancients of Greece and Rome, of whom they were
so fond, in search of a theory of history. From the classical
period, the humanists revived and adopted a cyclical theory.

This was a dynamic view of history. Its perspective was

100
dependent upon time, place, and circumstance. And the human
condition, which the humanists wanted so badly to improve,
was presented with its limitations. History became, as
Donald Kelley has pointed out, "the centerpiece of the

"13 As a matter of fact, it replaced the

humanist world view.
medieval qualitative view of nature. Just as the medieval
hierarchy provided conceptual limitations, the humanist use
of history furnished a new perspective for conceptualization.
The utility of history, as an alternative to the
medieval hierarchy, became increasingly evident, because the
perspective attained was based, in part, on recorded knowl-
edge. Humanists had begun to employ critical standards of
documentation which made their work more credible. But
the early humanist histories were not devoid of medieval
characteristics. The church, having dominated historical
writing throughout the middle ages, did not readily
relinquish its hold. Myth in the name of faith was still
evident in some late fifteenth and early sixteenth-century
histories. Furthermore, the humanist reliance on the
classical model also explained the continued presence of
myth, but it assumed a secular quality. Guicciardini, for
instance, considered by many as the first modern historian,
relied upon chance or fortune to explain the outcome of some

events, as did Machiavelli. Such terms as chance and fortune

 

13Donald R. Kelley, Foundations g: Modern Historical
Scholarship. (New York, 1970), p. 21.

 

101
were actually secular forms of Divine Providence. Thomas

More's History 9f King Richard the Third was another case

 

in point. Myth pervaded his sketch of the Yorkist king.
The presence of myth in More's work illustrated the English
humanist's reliance on the classical model, expecially that
of Tacitus.l4

The reason the humanists relied upon classical models
goes back to their desire to imitate the ancients' prose
style. For the early humanists, history had the potential
of becoming an effective rhetorical tool. It was considered
a valuable guide to the present, because it illuminated a
significant part of life's past experiences. In order to
benefit more fully from these didactic qualities, history
was subject to classical models. Thus during the elitist
phase, the quality of the prose was even more important to
the humanists than the credibility of the sources. Further-
more, the desire on the part of the humanists to establish
a simple logical method for studying any body of knowledge
also affected their approach to the writing of history.
Their method involved moving from the most general to the
more specific. As a result, they applied principles of
classification and division when organizing historical
studies.

Humanists of the elitist phase, therefore, formulated

the Renaissance theory of history. It was the humanists of

 

14Thomas More, The History of King Richard the Third,
in The Complete Works of St. Thomas More, ed. Richard S.
Sylvester, (New Haven, 1963), II, pp. lxxxiv-xcvii.

 

 

 

 

102
the exuberant phase, however, who developed the specific
kinds of histories employed. Their approach and interpre-
tations were affected in large part by the advent of the
Reformation and the rise of the nation states. Although
the upheavals of the Reformation and the development of the
nation states were separate causal factors, they both pro-
duced bitter national rivalries. This was to lead to the
creation of the sixteenth-century cult for the authority of
tradition. Tradition had been an important characteristic
in the medieval period, but during the sixteenth century it
acquired a new object, that of a national consciousness.
Obviously, history could be utilized effectively in the
development of the spirit of nationalism. PeOple were eager
to understand their past. As a result, local histories became
quite popular. Historical themes were employed in litera-
ture and utilized on the stage. Cognizant of the public
interest and their own particular specializations, the
humanists no longer wanted merely to chronicle events. They
became vitally concerned with discovering the causes and
effects of historical events. They still believed, however,
that God was the ultimate cause, but emphasis was placed on
discovering the temporal ancillary causes. As a result,
the selection of sources was considered of paramount
importance. Antiquarian and geneological research flourished,
and philological studies, another humanist endeavor, were
found to be a significant indicator of historical change.

Moreover, ancient and contemporary histories were translated

103

and printed for public consumption. Each of these forms
enhanced the nationalistic spirit and lent itself to the
cult for the authority of tradition. With this change in
the application of history, the quality of historical
materials employed gradually improved during the sixteenth
century. Scholars insisted upon the use of original docu-
ments. This was to produce a marked change for the better
in the credibility of histories by the end of the sixteenth
century.

Although history was not an academic discipline, it
did affect various branches of knowledge taught at the
universities. Legal studies, in particular, were influenced
by historical scholarship. This development occurred as a
result of the humanist interest in philological research.
To them philology was singularly important, because it
was considered an essential instrument in the humanist pur-
suit of eloquence. They had been highly critical of the
medieval scholastic adulteration of the Latin language as
the humanists attempted to return to a purer form of
classical Latin. In the process, the study of Latin led to
an analysis of various vernaculars. Moreover, these compari-
sons were extended to include law as well as language, since
the genesis of each was grounded in custom and both reflected
a unifying element in culture.

The philologists were quick to differentiate between
Roman and medieval law. For instance, they found

Justinian's Institutes contained rules indigenous to the

 

104

needs of Rome. It was also discovered that much of the
classical legal wisdom was inaccurately transcribed.
Renaissance philologists blamed the scholastics and their
pedantic exegesis of the text for the chaotic state of
Justinian's code. Furthermore, the interest generated by
the philologists to study Roman law and legal institutions
created a desire to examine the individual legal systems of
various European countries. Distinctions were drawn
between indigenous feudal institutions and the universalist
tradition of Rome. Part of this comparative research focused
on the origins and traditions of the law.

Three of the early proponents for studying the history
of law were the Italians Lorenzo Valla and Andrea Alciati
and the Frenchman Guillaume Bude. Alciati is credited with
the application of humanism to legal study and history in
France by emphasizing the close relationship between history
and law. It was in France, with the development of the mgg
gallicus school, that law and history were first systematically

studied. The mos gallicus school opposed the narrow scholas-

 

tic method of logically dissecting the sources and condemned
their failure to apply an historical perspective. Jean
Bodin agreed with Alciati and those advocates of the mgg
gallicus school when he wrote in the dedication to his

Method for the Easy Comprehension gf History (1566),

 

Indeed, in history the best part of
universal law lies hidden; and what

is of great weight and importance

for the best appraisal of legislation--

105

the custom of the peoples, and the

beginnings, growth, conditions, changes,

and decline of all states--are obtained

from it.15
Bodin's Method was the most significant book written on the
utility of history in the sixteenth century. His comment
keynoted the shift in legal humanism that occurred during
the second half of the century. As legal and institutional
history became increasingly important in France, a new kind
of publication appeared that reflected this change. It
focused on an historical analysis of legal institutions.

English historical scholarship was affected by these

humanist interests, but the changes were gradual, because
England's geographical remoteness to the rest of Europe had
produced a provincial attitude toward new ideas. The
Henrician Reformation had been an exception to this rule,
and even it was doctrinally a conservative response compared
to continental reform movements. Nevertheless, devotion to
the state, particularly during Elizabeth's reign, fostered
a patriotic purpose for a new approach to historical studies.
The Reformation not only produced another rationale for
the utility of history, but it also made available, through
the dissolution of the monasteries, manuscripts long for-
gotten for use among historians and antiquarians. Moreover,

the common law tradition had a profound impact on the English

view of history. Nowhere was England's continuity with the

 

lsBodin, Method, (New York, 1945): P. 8.

106

past more in evidence than with the common law. Common
law lawyers used antiquity to justify their legal system.
Yet this tradition could and did have an adverse effect,
because it perpetuated the isolationist attitude toward
continental ideas, which was not always beneficial.

Laurence Nowell had played a significant role in
developing techniques for historical research during the
elitist phase of the humanist movement in England. His avid
collection of manuscripts, his devotion to transcribing
them, and his encouragement of others to pursue historical
studies demonstrated his importance. Nowell, along with
his pupil, William Lambarde, was a pioneer in the use and

development of historical research in England.16

They were
among that group of scholars in the mid-sixteenth century
that Donald Kelley has referred to as "laboring in relatively
obscure and technical fields of scholarship."17

All of Lambarde's works could be classified as pioneer-
ing efforts. He published both scholarly treatises and
practical manuals, many of which touched on some aspect of
the Elizabethan criminal justice system. His first two

treatises, in particular, reflected his scholarly pursuits

in obscure and technical fields. The Archaionomia (1568)

 

 

16Lambarde was given extensive use of Nowell's library.
The following manuscripts offer a partial list of those
materials that the young scholar had access to: Cotton
MSS., Vitellius E.V.; Cotton MSS., Vespasian Avi; and
Cotton MSS., Domitian A. viii.

17Kelley, Historical Scholarship, p. 13.

 

107
was an edition of Anglo-Saxon laws, customs, and
ecclesiastical laws. Lambarde acknowledged in the dedica-
tion his debt to Laurence Nowell, Dean of Litchfield;
Matthew Parker, Archbishop of Canterbury; and Sir William
Cordell, the future Governor of Lincoln's Inn. Each had
made a significant contribution to the work. For Lambarde,
this was "the first fruits both of his legal and Saxon
studies."18 Moreover, it was the first treatise of its kind,
containing on one page the Saxon transcription and on the
opposite page a Latin translation. This compilation of
English legal documents was useful for lawyers and interested
clergy. It was also recommended to law students as an
important work, tracing a little known aspect of their legal
tradition.

The Archaionomia possessed characteristics of both the

 

elitist and exuberant phases of the humanist movement. The
emphasis placed on philological and antiquarian research was

a quality inherent in the elitist phase. Yet the work was
addressed to a uniquely indigenous aspect of English.history,
and it was pOpular among those interested in perpetuating

the cult for the authority of tradition. Both the pro~
vincialism and popularity of the treatise were characteristics
of the exuberant phase. The utility of the Archaionomia
escalated further during the early seventeenth century.

It was used as a precedent book by common law lawyers in

 

18Nichols, Bibliotheca, I, p. 495.

 

108
their constitutional arguments with the first two Stuart
kings.

After completing his legal studies in 1567, Lambarde
returned to his manor in Kent to take up permanent residence.
At this time, the interest in local histories, which had
been quite popular for a number of years on the continent,
was attracting the attention of England's educated citizenry.
Lambarde began almost immediately to turn his attention to
this type of scholarship. He collected notes on the county
of Kent with the intention of producing an antiquarian and
topographical study of it. This endeavor would be the
beginning of a much larger work that was to include all the
counties of England. It was also another example of
Lambarde's willingness to grapple with an obscure and
technical area of scholarly research.

The manuscript was completed in 1570 and published in

1576 under the title, A Perambulation gf Kent. Lambarde was,

 

once again, a pioneer, for the treatise was the first county
history of its kind. But it was more than a history.
Employing archaelogy, custom, geography, and law, Lambarde
traced the activities in Kent from Roman times to the present.
The history, government, and significant buildings of each
town and village were discussed. Although the Perambulation
was a product of the exuberant phase of history writing in
England, Lambarde's emphasis on the etymology of place names
illustrated the lingering impact that Laurence Nowell and

the elitist phase had on his scholarly apprenticeship.

109
Lambarde's plan to produce a complete study of England
was short-lived, however. He discovered that a young antiquary
and historian was already at the advanced stage of preparing
a comprehensive work similar to his own. The young man was

William Camden and his treatise, Britannia, was a much more

 

extensive treatment of the materials than Lambarde had
intended. Although Lambarde was discouraged by the news, he
offered Camden the use of his papers. And in a letter to the
young scholar, he announced his intention to abandon his own
project.

In reading of these your painful Topographies,
I have been contrarily affected: one way
taking singular delight and pleasure in the
perusing of them; another way by sorrowing
that I may not now, as I wanted, dwell in the
meditation of the same things that you are
occupied withal. And yet I must confess, that
the delectation which I reaped by your Labours,
recompensed the grief that I conceived of mine
own bereaving from the like: notwithstanding
that in time passed I have preferred the
reading of Antiquities beforelgny sort of
study that ever I frequented.

The letter reaffirms the estimation of Lambarde by his con-
temporaries, when they referred to him as being a benevolent,
modest, and learned man.

Following the completion of the Perambulation, Lambarde

 

married Jane Multon. She died three years later. Bereaved
by his loss, Lambarde applied himself to community service

within the county of Kent by founding a hospital for the poor

 

19Thomas Smith, Gulielmi Camdeni Epistolae, (London,
1691), p. 28.

 

110

of Greenwich. The need for such institutions was acute
throughout England. Monasteries had provided this service
to the community for centuries, but with their dissolution
under Henry VIII, a void was created. It was obvious to
Lambarde that a new agency would have to assume this responsi-
bility. Construction began in 1575 and people were admitted
on October 1, 1576. The hospital was called "The College of
the Poor of Queen Elizabeth", and it is believed "to have been
the first hospital founded by a protestant."20

In 1572 The Society of Antiquaries had been founded in
London. Matthew Parker was the patron of this group of
scholars who were interested in researching the language,
law, and customs of England. Lambarde, who had already
established himself as a Saxon scholar, became an active
participant in the Society's proceedings. The group also
included Henry Spelman, Robert Cotton, William Camden, and
John Selden. Cotton's enormous collection of manuscripts and
books served as the Society's library. The group met to
discuss their individual research projects. Collectively,
they were attempting to document England's past and to
eliminate the mythical characteristics that appeared in
medieval histories.

On February 9, 1579, Lambarde was honored by his Inn

when he was made an associate of the bench. Praised for his

 

(zoNichols, 9p. cit., pp. 498-99.

111
service to the country and the fellows of Lincoln's Inn,
the council pointed out in their order that Lambarde would
continue to make even greater contributions and perform

21 The spirit of

significant services for the commonwealth.
the proclamation was quickly realized when Lambarde was
appointed a justice of the peace for Kent in August 1579.
Since the first Tudor, the Crown had relied increasingly upon
local justices to maintain law and order in the counties and
serve as the administrative arm at the local level. Lambarde,
therefore, was assuming an important position of authority.
And it is not surprising to find him, once again, becoming
innovative in his new office. Lambarde brought to the posi-
tion a thorough understanding of the law and a compassionate
feeling for the human condition. With the support of the
other justices in Kent, he had a House of Correction built,
where criminals could be rehabilitated by learning skills that
would make them productive and self—sufficient citizens.
Displaying his usual singleness of purpose, Lambarde
immersed himself in his work as a justice of the peace. He
quickly discovered, however, that the office lacked standard-

ized procedures. Moreover, the manuals that had been written

to guide the justices in their duties had become dated as a

 

21William Dugdale, The History and Antiquities 9f 3A3
Four Inns of Court and of the Nine Inns of Chancer , (London,
1780). p. 148 or J. Douglas Walker and WTP. Baildon, 3AA
Records 9: the Honorable Society 9: Lincoln's Inn 1422-1586,
The Black Books, (London, 897), I, p. 412.

 

 

 

 

112

22 Lambarde decided to write

result of changes in statutes.
a new tract that would update these procedures. The

Eirenarcha, a handbook for justices, was published in 1581,
23

 

and the first printing was quickly sold out. Lambarde
traced the history of the office first. But the largest
portion of the book was devoted to explaining, by definition
and example, the various types of criminal offences and
penalties that a justice would have to oversee. It also
identified the non-legal responsibilities of a justice in his

county.

The Eirenarcha was the first of three practical manuals

 

that Lambarde produced. In 1582 he wrote "The Duties of Con-
stables, Borsholders, Tythingmen, and such other lowe minis-
ters of the peace." This usually appeared as an addendum to

the Eirenarcha. Finally, he published in 1583 a treatise on

 

the "Office of Churchwardens, of Surveyors for amending the
Highways." Each manual served as a useful guide for men who
often lacked a formal education. Furthermore, the frequency
with which these tracts were published during the sixteenth
and seventeenth centuries was a testimony to the utility of

each.24

 

22William Lambarde, Eirenarcha gr 9f the Office 9: the
Justice gf Peace, in foure Bookes, (London, 1599), p. l.

 

 

23The Eirenarcha was reprinted in 1582, 1588, 1591, 1592,
1594, 1599, 1602, 1610, 1614, and 1619.

 

24Conyers Read, ed., Bibliography gf British History,
Tudor Period 1495-1603, 2nd. ed., (London, 1959). PP. 110
and 112.

 

 

 

113

On October 28, 1583 Lambarde married a second time. His
wife was a young, wealthy, widow, Sylvestria Dalison. They
decided to reside at her spacious palace of Halling which
she, as sole heir, had inherited from her father, Robert Dean.
This marriage was almost as brief as Lambarde's first one.

Yet in four years they produced four children: a son, Multon;
a daughter, Margaret; and twin sons, Fane and Gore. The

twins were born late in August 1587. Sylvestria suffered
from complications, however, and died on September 1.

In spite of his additional parental responsibilities,
Lambarde does not appear to have reduced his professional
activities. He continued his work as a justice of the peace
and participated in the meetings of the Society of Antiquaries.
Moreover, he completed his research on another treatise that
was to be his last, and possibly his most important, scholarly
publication. Like his other works, Lambarde gave it an angli—
cized Greek title, Archeion. He mentioned in the dedication
that he had been at work for some time compiling materials

for the treatise. The Archeion gr, A Discourse upon the High

 

Courts 9: Justice ig England was a historical survey of the
English court system as it existed in the Elizabethan period.
Although the work had been completed in 1591, it was not
published until 1635. Nevertheless, manuscript copies were
readily available so that members of the legal profession and

interested historians and antiquarians were already familiar

114
with the work prior to its publication.25

The Epistle dedicatory of the Archeion suggested a minor
but rather interesting feature that had political overtones.
The work was dedicated to Sir Robert Cecil, the son of Lord
Burghley, Queen Elizabeth's long time advisor. This may have
been done out of respect for Burghley, who was attempting to
advance his son's chances of succeeding him as principal
advisor to the Queen. Cecil, however, did not sponsor the
Archeion. In fact it is not known if he read the book let
alone concurred with its contents. No doubt, Cecil's failure
to sponsor the work prevented its publication in Lambarde's
lifetime.

Furthermore, it was pointed out earlier that historical
works were utilized to enhance a spirit of nationalism during
the sixteenth century. This pride in the homeland was in its
ascendancy during the Elizabethan period, and it had inter-
national repercussions. The papacy, Spain, and to a lesser
extent France, had threatened to invade England and dethrone
Elizabeth for her failure to retain Queen Mary's religious
policy. Lambarde in the dedication of the Archeion, dated
October 21, 1591, managed to express his xenophobic temper
toward these threats. Only three years had passed since the

English had defeated the Spanish Armada. Subsequently,

 

25William Lambarde, Archeion, ed. Charles H. McIlwain
and Paul L. Ward, (Cambridge, Mass., 1957), p. 147 and Wilbur
Dunkel, William Lambarde, Elizabethan Jurist, 1536-1601,
(New Brunswick, 1965): P. 140.

 

 

 

 

115
various forms of literature had celebrated the event. In
reference to Burghley in the dedication as Nestor, the Greek
leader in the Trojan Wars who was known for his wisdom, was
obviously a recognition of the elder Cecil's skill at direct-
ing the Spanish defeat. Also Lambarde's comparison of Robert
Cecil to Atlas, the titan, implied that he anticipated the
young Cecil assuming the weighty responsibilities that his
father had held for so many years.

Lambarde's displeasure with papal threats was also subtly
evident in the body of the Archeion. He mentioned early in
the work that the courts of England were divided into three
categories: ecclesiastical, civil, and mixed. He briefly
described the ecclesiastical courts, but did not attempt an
indepth study of any of them. Lambarde explained,

for as much as the description of these

Ecclesiasticall Courts pertaineth to

another Learning, I meane to the Civill

and Canon Lawes (by which they be governed;)

and for that they doe not peculigrly (as

the rest) belong to our Nation.
The ecclesiastical courts, for good or ill, had an important
place in the history of the English judiciary. Lambarde
was too knowledgeable a lawyer and historian to dismiss them
so lightly. No doubt, this snub was fostered by the fact
that the ecclesiastical courts relied upon canon law that
had its origins in Rome. Both the law and symbolically the

city had excommunicated his Queen and had been a constant

source of threatening reprisals for his country.

 

26Lambarde, gp. cit., p. 14.

116

In its own time, the Archeion was significant because it was

 

the first treatise written that was devoted solely to the his-
torical study of the English court system. Its style and
overall readability suggest that it was designed not just

for lawyers and scholars but also for the reading public.
Conyers Read had indicated that it was "the best contemporary
account of the English courts of Justice."27 Moreover, the
work was completed and distributed in manuscript form at a
time when common law lawyers were beginning to question the
authority of the newer prerogative courts and councils. For
the past two hundred years, particularly during the Tudor
period, the prerogative courts were developed and utilized

as judicial agencies providing quick and efficient justice.28
Some common lawyers, no doubt the mediocre ones, feared that
these courts would impinge upon their livelihood. In one
sense, therefore, the Archeion appeared to be a rebuttal to
these lawyers' protestations. Obviously, Conyers Read believed
this to be the case, for he contended that "Lambarde treated

his whole subject rather as an advocate than as a historian."29

 

27Conyers Read, ed., William Lambarde and Local Govern-
ment, (Ithaca, 1962), p. 56.

 

28The efficiency of these courts has been questioned.
See Thomas G. Barnes, "Due Process and Slow Process in the
Late Elizabethan-Early Stuart Star Chamber," American Journal
of Legal History, VI, (1962), pp. 221-49 and 315446; and

W.J. Jones, The Elizabethan Court gf Chancery, (London, 1967).

 

 

29Read, "Lambarde's 'Ephemeris'," Huntington Library
Quarterly, XV, (1952), p. 128.

 

117
The tone of the work was overwhelmingly one of an apology for
the prerogative courts, particularly the Court of Star Chamber.
In the large section devoted to the Court, Lambarde's

objective was to dispel the common assumption that the

Star Chamber was first created by Henry VII's statute.3o He

was also attempting to refute the notion that the Court had

extended its jurisdiction beyond the statute.31 Lambarde

was the first scholar to address himself to these issues.32

No doubt, this explains why the section on the Star Chamber
occupied such a disproportionate amount of space, in a treatise
that was supposed to be a study of all the high courts of
justice in England.

At the beginning of the section on Star Chamber, Lambarde
offered his own judicious observation as to the need for such
a court.

Within this Realme of England, the most
part of Causes in complaint are and ought
to be referred to the ordinairie processe
& solemne handling of Common Law, and
regular distribution of Justice; yet have
there alwayes arisen, and there will con-
tinually, from time to time grow some rare

matters, meet (for just reason) to be
reserved to a higher hand, and to be left

 

3OSee Statutes of the Realm: 3 Henry VII, c. l.

31Cora Scofield, A Study gf the Court gf Star Chamber,
(New York, 1969), p. 10.

 

 

32Other contemporaries of his who were to follow him in
this endeavor and who were to concur with him were: William
Hudson, A Treatise 92 the court 9: star chamber, ca. 1620,
ed. F. Hargrave, Collectanea Juridica, II, (London, 1792);
and Edward Coke, The Fourth Part gf the Institutes 9f E29
Laws gf England, (London, 1648).

 

 

 

 

 

118

to the aide of absolutg Power, and
irregular Authoritie.3

Lambarde then proceeded to support his pragmatic reasoning
with some examples, all of them being criminal causes, for
the existence of Star Chamber. His "extraordinary reasons"
focused on bribery, perjury, and corruption. Although private
citizens could be taken before the court for such crimes,
Lambarde found that the majority of cases involved public
officials. He viewed the Star Chamber as being "fruitful

or beneficiall to the Common good," for it would "checke

the insolencies and outrages of...men that be great by their
places, and Authoritie."34 Thus, the author considered the
Court's primary function as that of overseeing and arresting
any improprieties by public officials. Yet underlying his
entire treatment of the Star Chamber was Lambarde's desire
that it be used moderately and only when the common law was
unable to hear and determine the case.

Next the author set out to prove that the origins of
the Star Chamber preceded Henry VII's statute in spirit if
not in name. Relying upon historical precedent, Lambarde
cited the treatises of Britton and Bracton to establish a
theoretical justification for his argument. Britton commented
that King Edward I maintained,

Wee will (saith the King) that our owne
Jurisdiction be above all the Jurisdiction

 

33Lambarde, Archeion, p. 48.

34Ibid., p. 51.

119

of our Realme;...We have power to yeeld
(or cause to yeeld) such Judgements as doe
appertaine (without other Processe) where-
soever 3§e know the right truth, as
Judges.

Also Bracton believed,

As it is inseparably annexed to the Office
of a King, to be the Judge of his people,
and as he cannot any longer remaine King
indeed, than he shall be readie to deliver
Judgement and Justice unto them,...if that
power and authoritie which they have, may
not enjoy her free course and passage, then
must the King either exercise his pre-
eminent and royal Jurisdiction, or else
must the injuriously afflicted be deprived
of that helpe and remedie, which both the
Ordinance of God, the Dutie of a Kingly
Judge, and the common law of Nature and
Reason doe afford unto him.3

To support Britton and Bracton's theories, Lambarde para-
phrased a number of statutes and cases where the King and
his council had heard cases not unlike those presented to

the Star Chamber.37

The thrust of Lambarde's argument was,
that although the council of men hearing these cases may not
have sat in the starred chamber or been referred to as the
Court of Star Chamber, the judicial procedure now familiar

to the Star Chamber had existed in the medieval period. Once
again, Lambarde stressed the moderate use of such proceedings
in deference to the common law.

Having explained the existence of the court prior to

Henry VII's statute, Lambarde then cited and analyzed the

 

351bid., p. 57.

361bid.. pp. 66-67.

37Ibid.. pp. 68-69 and 73-76.

120
statute for any possible changes. He discovered two things.
First, the place where the court would sit, the process by
which a case would be heard, and the judicial members that
would constitute the court being in session were more clearly

38 Second, he found that the statute merely clarified,

defined.
and in some instances, expanded the judicial authority of the
Court to include: maintenance, champartie, giving of liveries,
embracerie, offences in the making of pannels, untrue returns
by sheriffs, taking of money by jurors, and riots, routs,

39 Lambarde cautioned the reader

and rebellious assemblies.
not to assume that the statute had in any way limited the
Court's jurisdiction, however. He indicated,

those Honourable Judges are not tyed

(as I said) to the prescript Paines

of those Statutes: but may (as the

Case shall offer to their grave Con—

siderations) eyther alter, encrease, 40

or otherwise qualifie any of the same.
Lambarde, therefore, was refuting the notion that the Court
was exceeding its jurisdiction beyond the statute. Actually,
his argument was that Henry VII's statute was not intended to
limit the Court's work, but rather to clarify its procedures,
personnel, and expand its authority.

Finally, Lambarde concluded his discussion of the Court

by attempting to reassure the common law lawyers that the

 

38Ibid., p. 92.

39Ibid., p. 89.

4°Ibid., p. 115.

121

Star Chamber served only to support the work of the other
courts of law. He said,

this most noble and praise-worthy Court;

the beames of whose bright Justice,...doe

blaze and spread themselves as farre as

this Realme is long, or wide: and by the

influence of whose super-eminent Authoritie,

all other Courts of Law, and Justice, that wee

have, are both the more surely supported, and

the more evenly kept, and managed. 1
His closing statement sounded like a man pleading with his
colleagues not to upset the delicate judicial balance between
the common law and the prerogative courts. This statement
lends further credence to Conyers Read's observation that
the author presented his material as an advocate. Lambarde's
concern over the future use of the prerogative courts, particu-

larly Star Chamber, may well have been his primary reason for

undertaking the research and writing of the Archeion.

 

Although the author's reason for writing the Archeion
was obviously important, of particular significance is the
treatise's value as a document of sixteenth century intellectual
history. How did Lambarde employ history to realize his
objective? What were the priorities and assumptions that
he brought to his work? Finally, was Lambarde an innovative
contributor to legal studies? The answers to these questions
should aid in the assessment of the Archeion's significance
and of Lambarde's contribution to the intellectual climate

of the Elizabethan period.

 

4lIbid.. p. 116.

122
Lambarde had been an innovator throughout his career.
He had founded "The College of the Poor" and had supported

the construction of a House of Correction. A Perambulation

 

g: Aggg was the first county history of its kind. His manuals
for minor officials within the Elizabethan criminal justice
system were extremely useful. Like the endeavors that pre-
ceded it, the Archeion was also a unique contribution. It
was the first treatise written examining the history of the
English courts. Yet it also illustrated the fact that
Lambarde was a product of his intellectual experience,

because the work was one of the earliest applications of the
humanist method for writing history that appeared during the
exuberant phase of that movement in England.

Throughout their movement, the humanists had sought to
establish a method of learning that was lucid, eloquent, and
credible. Each of these characteristics translated into some-
thing more specific, however, when applied to their historical
methodology. Lucidity was concerned with basic organizational
techniques, the classification and division of topics in a
treatise. Lambarde applied these techniques to the Archeion.
For instance, after first briefly discussing the origins of
laws, courts, and the king's role in the administration of
justice, he then divided the courts into three categories:
ecclesiastical, lay, and mixed. The ecclesiastical courts
were examined summarily. The lay courts were discussed next,
in the order of their frequency of use. Following the
discussion of the common law courts--Queen's Bench, Exchequer,

and Common Pleas--, Lambarde turned his attention to the

123
prerogative courts. Of particular interest, as was illus-
trated above, were the courts of Chancery and Star Chamber.
Finally, the author concluded with an examination of Parlia-
ment's role as a law maker.

Eloquence in speaking and writing was also a goal of
the humanist philosophy. In order to achieve this desired
end, philological studies became an integral component in
this pursuit. Although historians were concerned with an
eloquent prose style, during the exuberant phase, philolog-
ical techniques were concerned more with analyzing the
origins and meaning of significant historical terms.
Lambarde's association with Laurence Nowell made him particu-
larly adept at tracing the origins of legal terms, because
of his proficiency with Anglo-Saxon. He dealt with the
etymology of important titles, among them chancellor,
admiral, constable as well as the significant judicial
agencies, such as court, parliament, and star chamber.

Of utmost importance was the humanist desire to employ
critical standards of documentation, which made their works
more credible. This concern for the credibility of sources
became increasingly significant during the exuberant phase.
Historians were obviously among the leading proponents for
utilizing documents in their works. Once again, Lambarde's
role was prominent. His combined efforts with Nowell in

the publication of the Archaionomia had provided legal

 

scholars with a useful document book. But it was Lambarde's

use of a variety of sources in the Archeion that was his

124
most notable application of the humanist method to assure
the credibility of a work.

Lambarde utilized the writings of Caesar, Cicero,
Tacitus, and the Bible; authorities frequently cited in
humanist works during the elitist phase. But he relied
especially on the works of Bracton and Britton, men often
referred to in English legal treatises, and to a lesser extent
the Venerable Bede, Ranulf Glanville, Matthew Paris, Polydore
Vergil, and Lorenzo Valla. Reference to these writers
indicated the author's familiarity with past and recent
authorities of England's court system and history. Although
the writers listed above lent credibility to the work, it
was Lambarde's extensive use of original documents that was
most impressive. Throughout the Archeion, he quoted or para-
phrased statutes, cases, or court entry books to support
his contention about the origin or jurisdiction of a judicial
agency. This extensive search to provide authentic and
credible facts to support his hypotheses illustrated con-
clusively Lambarde's adOption and application of the humanist
methodology for writing history.

Although the author's primary objective had been to
dispel the common law lawyers' fear of the prerogative
courts' jurisdiction, a more general theme pervaded the
Archeion, which was the issue of authority. Defining the
extent of the monarch's supremacy and the limits of his
prerogative power was the fundamental question that needed

answering in England during the late sixteenth and early

125
42
seventeenth centuries. Lambarde approached this issue
by examining the judicial institutions of England. Like
most early modern and all medieval writers, he presumed
that the power and ability to judge men, in the name of
authority, was decreed by God, ”the chiefe Justice of the

World."43

Having identified the source of all authority,
Lambarde turned his attention to the original need for it.
He pointed out that authority was necessary even in the
beginning, when only a few families existed. "The Elder
(or Father of the Family) exercised authoritie over his
Meyney, and did distribute Reward and Paine amongst them

44 What was evident here and

after his owne discretion."
throughout the text was the author's acknowledged support
for the naturalist philosophy of kingship.

The naturalist philosophy put forth the view that the
monarchy was a natural institution from which laws evolved.
The monarch, therefore, was the supreme authority in the
state above all laws. Counter to this view was the legalist
philosophy. This theory maintained that the law could place
limitations on a monarch's authority. Hence, law was primary

and monarchy was secondary. During much of the Elizabethan

period, neither philosophy was argued to its extreme limits,

 

42Supra., p. 81.

43Lambarde, gp. cit., pp. 141-42.

44Ibid., pp. 9-10.

126

because the Tudors had always utilized their prerogative
powers within a legal framework. These philosophies were
to become particularly significant during the reigns of
the early Stuart kings, however. James I adopted a strict
interpretation of the naturalist theory in his bitter
confrontation with Edward Coke. Coke, on the other hand,
espoused the legalist philosophy.

Yet during the closing years of Elizabeth's reign, when
the limits of the monarch's authority were just beginning
to be debated, lawyers and parliamentarians began to side
in varying degrees with one of these theories. Lambarde was
a disciple of the naturalist philosophy. In the Archeion,
he focused on one aspect of this debate, the historical
development of common law and prerogative courts, to
illustrate the authority of the monarch. Relying heavily
on Britton and Bracton, Lambarde pointed out that as Vicar
of God on earth, "the King ought onely to be the Judge of
his people."45 Courts developed because as the population
grew wickedness increased. One person could no longer handle

46

the suits. The king, therefore, found it necessary to

distribute "his Charge into sundry portions, because he
alone is not sufficient to heare and determine all complaints

of his people."47

 

45Ibid., p. 56.

46Ibid., p. 11.
47Ibid., p. 57.

127

Lambarde maintained that the courts of law and equity
were developed before the Norman Conquest by the Anglo-Saxon
kings. Since the principal duty of the kingly office was
to deliver justice to his people, all other courts were off-
shoots of the King's High Court. They were like "so many
branches sprung out of that one Tree, or streames derived
from the same Spring and Fountaine."48 Lambarde was speaking
here primarily of the common law courts. Later he indicated
that, if these common law courts were unable to apply a
legal remedy, the king could create additional courts, that
is the prerogative courts, by exercising "his pre-eminent
and royal Jurisdiction,...,which both the Ordinance of God,
and Dutie of a Kingly Judge, and the common law of Nature
and Reason doe afford unto him."49

In view of the important role that historical works
played in the Elizabethan period, Lambarde's contribution
was evident. The fact that the Archeion was the first
treatise of its kind to trace the history of the English
court system was significant enough. Yet the basis on which
to assess Lambarde, as a historian, and his work, as an
important part of the historical literature of the period,
rested on three additional points. First, the author

addressed himself to a critical issue that was being debated

 

48Ibid., p. 18.

49Ibid., p. 67.

128

in the late Elizabethan period, the source of authority
within the realm. Utilizing his historical survey of the
courts, he attempted to lend support to the naturalist
philosophy that the monarch possessed supreme authority in
the state. Second, and closely related to the first, Lambarde
vigorously defended the need for the existence of the pre-
rogative courts. This occurred at a time when these courts
were being criticized by a sizeable number of common law
lawyers. Finally, the author's application of the humanist
methodology for writing history was notable. Lambarde
applied the organizational techniques of classifying and
dividing his work into specific topics. He utilized philosophy
to discover and analyze the historic origins of significant
legal terms. And he employed critical standards of documen-
tation, which enhanced the credibility of his work.

Following the completion of the Archeion, Lambarde, who
was now fifty-six, married Margaret Reader, a widow, on
April 13, 1592. He had established himself as an eclectic
scholar, who possessed a significant understanding of the
history, administration, and documents pertaining to the
English legal system. Most men would have considered retiring
or at least reducing their work load after having accomplished
so much. Recognition of Lambarde's talents had been bestowed
earlier by antiquarians, historians, and legal scholars, but
now the administrators of the central government were to
acknowledge their gratitude. His old friend from Lincoln's

Inn Sir John Puckering, who was the Lord Keeper, appointed

129

him a Master of Chancery on June 22, 1592. No doubt,
Lambarde's knowledge of the Court of Chancery exhibited in
the Archeion led to his appointment. On May 26, 1597 he was
made Master of the Rolls by the newly appointed Lord Keeper,
Sir Thomas Egerton. It has been suggested that Lambarde's
versatility with legal scholarship was to influence Egerton's
approach to reforms in the Chancery.50

Lambarde's final recognition came from the Queen her-
self. Elizabeth desired that an index be made of the records
in the Tower of London. There was no person, other than
Lambarde, who could accomplish this arduous task competently
and conscientiously. On January 21, 1601, the Queen named
him Keeper of the Rolls in the Tower. He completed his work

on the index and was granted an audience with the Queen to

present her with the book entitled Pandecta Rotulorum. The

 

meeting took place in the Queen's privy chamber at Greenwich
on August 4, 1601. Lambarde's own account was that the aging
Elizabeth refused to have him kneel before her during the
presentation of the manuscript. She talked to him for a
short time and then,

being called away to prayer, she put the

book in her bosom, having forbidden me from

the first to the last to fall upon my knee

before her; concluding "Farewell, good and
honest Lambarde!"51

 

50Jones, The Elizabethan Chancery, pp. 111-12.

 

51Nichols, Bibliotheca, I, pp. 525-26.

 

130
The author returned to his manor at Westcombe follow-
ing this momentous event in his career. Two weeks later,
on August 19, he died and was buried in the Greenwich
Church. John Nichols, writing two hundred years after the

author's death, said of him:

His disposition was benevolent, his mind
judicious and elegant, his learning solid
and deep; and he devoted himself to the
service of his country, in the profession
and station which he filled, with
unremitted zeal and labour. It is just,

it is useful, to preserve the remembrance
of such a man, and o assign to him his due
portion of praise.

Such an epitaph fittingly described William Lambarde's

contribution to the intellectual tradition of England.

 

52Ibid., p. 494.

3 FULBECKE, RIDLEY AND THE COMPARATIVE METHOD

In The Laws (357-247 B.C.), Plato wrote,

The next step necessary is that these

people should come together and choose

out some members of each clan who, after

a survey of the legal usages of all the

clans, shall notify publicly to the tribal

leaders and chiefs which of those usages

please them besf, and shall recommend

their adoption.
The comparative approach to the study of government and law
is an ancient one. Not since the classical period was the
interest in this method so significant to legalists as in
the sixteenth century. As has been pointed out the impact
of the Renaissance, the Reformation, the Reception of the
Roman law, and the rise of the nation states had created an
age of restatement. Central to this period was the need to
redefine and clarify the issue of authority, for it had
become obscure with the demise of medieval Christendom.
The changes brought about by this re-examination of authority
were to affect the law and the legal institutions of various
European countries. One of the more important processes
employed to resolve this conflict was the comparative
method.

Utilization of the comparative method in legal studies

was not something that had been completely dormant during

 

lPlato, Laws, ed. R.G. Bury. (New York, 1926), I, p. 183.

131

132
the medieval period. Continental scholars had been in the
habit of producing numerous commentaries or interpretations
of ancient legal texts. This resulted in a preoccupation
by students and scholars alike with comparative studies of
the various commentaries. In England Sir John Fortescue
drew comparisons between the English and French governments

in his Ag Laudibus Legum Anglie (1471). He also differen-

 

tiated between the civil and common laws. Fortescue pointed
out,

All the kinds of the law of England are now

plain to you. You will be able to estimate

their merits by your own wisdom, and by

comparison with other laws; and when you

find none in the world so excellent, you

will be bound to confess that they are

not only good, but as good as you could wish.2
Hence, the interest in the comparative method was already
established and recognized both on the continent and in
England before the sixteenth century.

Yet, it was not until the sixteenth century that the
comparative method became such a valuable tool among scholars
in general and legalists in particular. The united
Christendom of the medieval period had been largely dis-
credited by this time. The power vacuum left by the papacy
was being supplemented by the development of the nation
states. Kings were consolidating their power base and

centralizing their authority within their kingdoms. In

order to create a cohesive state effectively, monarchs were

 

2Fortescue, Ag Laudibus, p. 41.

 

133
relying more on the positive laws of their individual king-
doms rather than on the natural law, that had limited the
authority of their medieval predecessors.3 Moreover, the
Reformation had enabled the territorial rulers to gain the
allegiance of the people in political and legal areas formerly
controlled by the church.4 In Protestant countries, the
papal authority was repudiated. Church and state were being
united at the national level.

The process by which sixteenth-century monarchs and
legalists put greater emphasis on positive law rather than
natural law was part of the Reception of the Roman law.
During the medieval period, natural law was the premier type
of law, because it was considered to be of divine origin.

It applied to all men. Other types of medieval law consisted
of a mixture from three legal systems: Roman, canon, and
Germanic, combined with countless enactments indigenous to
the various feudal principalities. But throughout the
fifteenth century, monarchs across Europe expressed an
interest in establishing a single legal system as they

moved toward centralizing their kingdoms. They relied
considerably on Bartolus de Sassoferrato's work. He had
endeavored to synthesize the canon law and Justinian's
Institutes into one ideal system of civil law. Although the

natural law was not discarded, nevertheless, by the sixteenth

 

3Supra., pp. 40-42.

4Supra., pp. 61-69.

134

century the civil law of Rome had superseded the other legal
systems in importance. It had become a significant
division of the universal law of Christian Europe.

The rise of the nation states, the Reformation, and
the Reception of the Roman law were important factors in
fostering and enhancing the position of the civil law.
It was the humanists of the Renaissance, however, who were
to examine the utility of this legal system. Actually, they
were critical of Bartolus and his followers for their failure
to employ historical studies and philological techniques.
Lawyers of the humanist movement researched the origins
of laws and legal institutions, while philologists made
distinctions between Roman and medieval law. The emphasis
placed on the study of history, along with comparative
analyses, was to lead to "a concept of comparative juris-
prudence that was to have great significance" during the
second half of the sixteenth century.5

It was the French humanists who made the most important
contributions to comparative jurisprudence. During the
medieval period France was governed by at least four legal

systems: pays g3 droit ecrit, pays gg coutume, canon, and

 

municipal laws. Throughout the high middle ages the authority
of the Roman law increased in France. Acceptance of this
law was undermined, however, with Charles VII's order to

compile and to establish a single legal system for the

 

5Gilbert, Renaissance Concepts, p. 80.

 

135

country.6 This order, along with the work of the Bartolists,
prevented "the Roman law from achieving the status of a
common law for France."7

The dualism of the French law, that is the Roman law
of Justinian and the indigenous laws of France, prompted
comparative historical studies. One of the early proponents
for utilizing history in the reform of the law was Francois

Baudouin. In his 23 institutione historiae universae

 

(1561), he argued that the study of history and jurisprudence

8

should be fused into a single volume. Six years later,

Francois Hotman was suggesting in his Antitribonianus (1567)

 

that, in addition to an historical approach, a comparative

9 What was

method should be employed in the study of law.
being discovered in Baudouin and Hotman's research was that
the Roman law was often not applicable to the French exper-
ience. Since Roman law had changed with the circumstances
of Roman history, these French legalists were beginning to
question and to reject the common assumption that the
principles of Roman law should be accepted automatically
over the customary law of France.

The foremost French theorist of the comparative method

during this period was Jean Bodin. Trained in the humanist

 

6Supra., p. 75.

7Franklin, Jean Bodin, p. 37.

 

81bid., p. 46.

91bid., p. 58.

136
tradition at the Law School of Toulouse, he addressed him—
self to this issue in two of his works: Juris universi

distributio (ca. 1559) and in the preface to the Methodus

 

(1566). In the Juris universi distributio, he argued that

 

the continental legalists had failed to develop a system of
law, because they had relied too much upon the Roman civil
law.10 The civil law was a legal system of a particular
state, Bodin pointed out. Since Rome had a history unique
unto itself, the development of its law would reflect the
anomalies of that history. Therefore, the Roman civil law
could not be taken in its totality as a basis for a new legal
system. Bodin suggested an alternative approach, however.
Legalists should compile the public law, private law,
legislation, edicts, and customs of the famous commonwealths.ll
Once collected and compared, the best precepts could be
arranged under sub-headings. Such a corpus would then form
the basis of a new legal system.

Having based his system of comparative jurisprudence on
the study of universal history, Jean Bodin was recognized as
the leading advocate of the comparative method. His works

were read by intellectuals across Europe. In England his

comparative method was to be utilized by one group of scholars

 

10Jean Bodin, Juris universi distributio, in Oeuvres
Philosthiqges g3 Jean Bodin, ed. Pierre Mesnand, (Paris,
1951), V, p. 71.

 

 

llIbid., pp. 72-73.

137
in particular, the civilians. These men were educated in
the Roman civil law, either at a continental university or
at Oxford or Cambridge.

The English civilians were employed by the government
in a variety of circumstances. Since the nation states on
the continent were adopting many of the precepts of the civil
law, English monarchs utilized the civilians' expertise in
this law as permanent ambassadors, on diplomatic missions,
and in the field of international law. Moreover, with the
increase in international trade, the English Court of
Admiralty practised civil law. There was also a need for
civilians in the English prerogative courts. These courts
were created to handle cases where the common law lacked an
adequate and effective remedy. As a result, civil law pro—
cedures were used. Civilians were invaluable in the Star
Chamber, Court of Chancery, Court of Requests, the Council
of Wales, and the Council in the North, though they did not
dominate these courts completely. Lawyers trained in common
law were also employed in them. Finally, when Henry VIII
made his break with Rome, the canon law ceased to be practised
in the ecclesiastical courts.12 In fact, it was no longer
taught at the English universities. Because of the close
affinity between the canon and civil laws, the civilians
became advocates and judges in the English ecclesiastical
courts. They also served as Chancellors to the English

bish0ps.

 

12See Statutes of the Realm: 24 Henry VIII, c. 12.

138

Toward the end of the sixteenth century, the civilians
were coming under increased criticism from the common lawyers.
There were at least four reasons for the rise of this
opposition. First, the humanist revolution in the writing
of history had fostered a rather biased view of England's
national heritage. Common lawyers presumed that their law
was immemorial and that the civil law really had no place
in their legal system. This insular attitude was to receive
"its classic formulation soon after 1600 from Sir Edward
Coke."13

Second, there was a concern among common lawyers over
the number of civilians employed in the prerogative courts.14
Traditionally, both civilians and common lawyers were used
in these courts. During the first forty years of Elizabeth's
reign, the Queen had appointed twenty civilians as opposed
to only two common lawyers to fill mastership vacancies in
the Court of Chancery.15 In the Court of Requests, Elizabeth
raised the number of masters from two to four. Prior to

this change, masterships were awarded to one civilian and

one common lawyer. But after the increase in the number of

 

13J.G.A. Pocock, The Ancient Constitution and the Feudal
Law, (London, 1957), p. 31.

 

14Brian Levack has discovered some rather interesting
statistics regarding the civilians. Between 1603-1641 there
were approximately 200 civilians in England compared to
about 2,000 common lawyers. Of that 200, only forty-one
monopolized the practise of the civil law in the courts,
and then only twelve to fifteen dominated the practise at
a time. See Levack, The Civil Lawyers, pp. 3 and 21-22.

 

151bid., p. 62.

139
positions, the notion of equal representation broke down.
Civilians controlled a majority. When the Queen died, three
of the four masterships were held by civilians.16

Third, the common lawyers had another reason for dis-
trusting the civilians when James I ascended to the English
throne. James had lived most of his life in Scotland, a
country that utilized the civil law. As a result, he
advocated retaining the use of the civil law in England
over the protestations of the common lawyers. Because of the
King's favorable view toward the civilians, they, in turn,
were presumed to support his political philosophy. James's
divine right theory of kingship was considered by many common
lawyers to be a threat to the basic political and legal
philosophy governing England.17 This only increased the
anomosity toward the civilians.

Finally, as judges in the ecclesiastical courts, the
civilians enforced the King's policy of maintaining a strict
religious orthodoxy, especially against the Puritans.
Naturally, the Puritans opposed the civilians on this issue.
And as they gradually gained representation in the House of
Commons, they joined the common lawyers in voicing their
antagonism toward the civilians.

The civilians were threatened by both the misinformed
common lawyers and by the intolerant Puritans. Their educa-

tion, however, had provided them with a better understanding

 

16Ibid., p. 61.

17Supra., pp. 19-24.

140

of the historic evolution of the law than that possessed

by most common law lawyers. Not only had they studied the
history of Rome and its laws, but they also knew a good deal
about the development of the English common law. This was
essential in order for them to function effectively in the
prerogative courts. With their livelihoods at stake, some
of them wrote treatises defending the use of the civil law
in England. Their knowledge of both legal systems enabled
them to make comparisons in their treatises. Two civilians,
who employed the comparative method, were William Fulbecke
and Thomas Ridley. Both attempted in their works to place

the use of the civil law in its proper perspective.

Except for a few biographical facts, William Fulbecke's
life is something of a mystery. He was born in the city of
Lincoln, where his father, Thomas, was mayor. When William
was seventeen, he matriculated at Oxford and graduated on
October 25, 1581, from Christ Church. Fulbecke remained
at Oxford and was associated with Gloucester Hall, where
he received his master's degree in May 1584.

The following November, William, who was now twenty-four,
journeyed to London and entered Staple Inn, one of the

18

Chancery Inns that was associated with Gray's Inn. Seven

years later, having completed his studies at Gray's Inn,

 

18Before attending one of the four Inns of Court, a law
student usually spent some time at one of the Chancery Inns.
These junior Inns had specific associations with one of the
four senior Inns: New and Strand with Middle Temple;
Cliffords, Lyons, and Clements with Inner Temple; Thavies
and Furnivals with Lincoln's; and Staple and Barnards with
Gray's.

141

Fulbecke was called to the bar. It is believed that he
then went to the continent, where the degree of doctor of
civil law was conferred on him, though Anthony Wood indicated
that ”at what place, or by whom, I cannot yet find."19
Usually, when an English civilian received his doctorate
in civil law at one of the continental universities, he was
subsequently incorporated at either Oxford or Cambridge.
This was not the case with Fulbecke. Thus, there is some
doubt whether he actually possessed the degree. It has also
been suggested by Bishop Kennet, that Fulbecke took orders
on May 25, 1603, and became vicar of Waldershere in Kent.20
Finally, scholars are generally of the opinion that Fulbecke
died in 1603.

Although Fulbecke spent most of his adult life preparing
himself for various professional careers: as a common
lawyers, as a civilian, and then as a vicar, he was also a

prolific writer. Within three years, he had published five

books. His best known work, A Direction gr Preparation 39

 

the Study gf the Law (1600), was a method book for the

 

. . 21
beginning common law student. Two other works were Ag

Historical Collection (1601) and The Pandectes g: the Law

 

 

 

lgWood, Athenae, I, pp. 726-27.

2OIbId.

21The significance of this work will be discussed in
chapter five.

142
9: Nations (1602).22 Neither of these works was widely
read, however. Yet the subject matter of these treatises,
one dealing with ancient Roman history and the other examin-
ing international law, support the contention that Fulbecke
probably had studied the civil law, even if there was not
adequate evidence to support the view that he had received
the doctorate. Englishmen were simply not in the habit
of writing books on both of these tOpics without training
as civilians. Another clue to his status as a civilian
was the kind of treatise, cited in A Direction, that Fulbecke

felt a law student should consult.23

 

Fulbecke has been viewed as "a neglected, but ingenious
. 24 . . . . .
writer." Part of his ingenuity must be ascribed to his

two-volume work, A Parallele gr Conference 9: the Civill Law,

 

 

 

 

the Canon Law, and the Common Law 9: this Realme g: England.

 

These volumes were published in 1601 and 1602, and they lend
further credence to Fulbecke's education in the civil law.
Given his probable professional training, there were few

people better suited for the task that he had set for himself.

 

22The complete titles of these works are: An Historical
Collection of the Continual Factions, Tumults, and Massacres
of the Romans and Italians during the space of one hundred
and twentie yeares next before the Peaceable*Emp1re of
Augustus Caesar,...beginning where the Historie of T. —Livius
doth end, and ending where Cornelius Tacitus doth begin;
and The Pandectes of the Law of Nations, contayning severall
discourses of the g_e§Eions...of law, wherein the nations
of the world _doe consent and accord.

 

 

 

 

 

 

 

 

23See chapter four of William Fulbecke, A Direction or
Preparation to the Study of the Law, (London, -16007.

 

 

 

24J.G. Marvin, Legal Bibliography: (Philadelphia, 1847),
p. 325.

143
Fulbecke's purpose, as stated in the extended title
to his work, was to show "wherein the agreement and dis-
agreement of these three Lawes, and the causes and reasons
of the said agreement and disagreement, are opened and
. 5 . . . . .
d1scussed."2 In his Epistle dedicatory to John Whitglft,
the Archbishop of Canterbury, Fulbecke pointed out his beliefe
that "the common lawe cannot otherwise be divided from these
. 2
twaine then the flower from the roote and stalke." 6 Yet,
in his introduction to the reader he conceded,
It seemed straunge unto me, that these
three lawes, should not as the three
Graces have their hands linked together,
and their lookes directly fixed the
one upon the other, but like the two
faces of Janus, the one should be turned
from the other, & should never looke
toward, or upon the other: and weighing
with my selfe, that these lawes are the
sinewes of a state, the Sciences of govern-
ment, & the artes of a commonweale, I have
seriously & often wished that some joynt
discourse might Be made of these three
excellent Lawes.
Having recognized the growing discontent among the practioners
of the common, civil, and canon laws, Fulbecke attempted to
illustrate the similarities and differences.
Like most scholars educated in the humanist tradition,
Fulbecke respected the intellectual contributions of the

ancients of Greece and Rome. Since the humanists were in the

 

25William Fulbecke, A Parallele gr Conference 9: the
Civill Law, the Canon Law, and the Common Law 9: this Realme
9: England, (London, 1601), title page.

 

 

 

 

 

 

 

26 . . . ..
Ibid., introduction to the reader, p. 11.

27Ibid., p. iii.

144
habit of copying the classical style and methodology, it
was not surprising to find Fulbecke expressing his reverence
for them by adopting and employing the Socratic dialogue

in his A Parallele gr Conference.28 Just as Plato's dialogues

 

 

were utilized as a vehicle for explaining a philosophy,
Fulbecke, found the form of dialogues particularly suited to
his needs.

The settling for the dialogues was the house of
Nomomathes, a wealthy Englishman, who was "a great favourer
of learning, and desireous by all meanes to increase &

"29 Fulbecke likened Nomomathes to Cosimo and

advance it.
Lorenzo de Medici of Florence, who were patrons of such well
known scholars as Marsilio Ficino and Giovanni Pico della
Mirandola. Nomomathes was particularly interested in the
law. As a result, he was the patron of three jurists who
resided at his home. They were Canonologus, a canon lawyer;
Codicgnostes, a doctor of the civil law; and Anglonomophylax,
a barrister of the English common law.

Prior to commencing the dialogues, the author provided
the reader with his interpretation of the origins of these

three laws. "The Canon lawe is more auncient,..., and of

. . 3 . .
greater continuance," he said. 0 From Christ and his

 

28Fulbecke's treatise was published in two books. The
first published in 1601 contained fifteen dialogues. The
second appeared to be an addendum to the first; it contained
seven dialogues and was published separately but under the
same title in 1602.

29Fulbecke, gp. cit., introduction to the dialogues, p. ii.

30Ibid., introduction to the reader, p. vii.

145
apostles down through the bishops of the church, canon law
has been presented to and approved of by emperors and kings.
Fulbecke cited Justinian, Constantine, Henry VIII, and even
Elizabeth as monarchs accepting the authority of the canon
law. The origins of the civil law, he pointed out, were to
be found in ancient Rome, because this law was actually the
law of Rome. Finally, the common law was identified as the
law indigenous to England. Fulbecke indicated that the
common law had been changed through conquest, but that the
alterations occurred by consent through reason rather than
from the command of the new sovereign.31
Fulbecke's interpretation of the history of the common

law, his use of the law of reason, and his view of sovereignty
are of interest here. Seventy years earlier, Thomas Starkey
had espoused the view that William the Conqueror brought the

32 English scholars,

common law to England during his invasion.
educated during the first half of the century, either accepted
Starkey's interpretation or at least conceded that the common
law had been influenced by some continental legal principles.

During the second half of the century, as the exuberant

phase of the humanist movement fostered a more nationalistic

and at times xenophobic interpretation of the past, scholars

began to write about the homogeneity of the common law.

 

31Ibid., p. ix.

32Starkey,A Dialogue, p. 110.

146

33 Fulbecke, however,

Edward Coke epitomized this view.
offered a more moderate opinion in this debate. Although

he recognized that the Conqueror added some of the customs
of Normandy to the common law, he maintained, 'our greatest
law makers were Ina, Alfred, Edmund, Edgar, Canute, and
Edward the Confessor.‘34 To him the common law had already
been established during the Anglo-Saxon period.

Of particular interest was the author's emphasis on the
law of reason and its relationship to the common law.
Throughout the sixteenth century, the law of reason had been
gradually replacing the medieval notion of the law of
nature. The law of nature was influenced by Christian
principles and was considered a higher authority. The law
of reason, on the other hand, was influenced by the humanist
movement. Like the law of nature, it was considered a laW*
of a higher authority, but it possessed a more secular
quality. Curiously, Fulbecke appeared to equate the common
law with the law of reason, for he gave the common law an
independent status that even the sovereign could not
transgress.

The final point gleaned from the author's prefatory
remarks was his view of sovereignty. Sixteenth-century
English political theorists from Starkey to Sir Thomas

Smith had espoused the view that the sovereign's authority

 

33Supra., pp. 18-25.

34Fulbecke, gp. cit., p. ix.

 

) II Ill-tn.ll I .x .I

147

35 Smith even

was a shared responsibility with the people.
discussed parliament's role as did another Elizabethan
theorist, Richard Hooker. Increasingly, it was assumed
during the Elizabethan period that parliament was the agency
that prevented arbitrary power from resting with the Crown.
Fulbecke, however, avoided all mention of parliament's role.
Rather he considered the common law, and its proximity to
the law of reason, as being the essential authority that
prevented the Crown from establishing unlimited prerogative.
What Fulbecke appeared to be doing in his introduction
of these controversial issues was suggesting a need for
compromise. No doubt, he realized the issue of authority
was a critical problem that would probably escalate further
upon the death of the Queen. His comments were an idealistic
attempt to please the various groups concerned. He took
political ideas from men of such opposing views as Sir John
Fortescue and Jean Bodin and integrated them into a theory

of authority.36

He attempted to check the power of the
monarch further, not by emphasizing parliament's role, but
rather by giving the common law an independent status and
associating it with the law of reason. Finally, he

resolved the debate over the origins of the common law by

 

35Supra., pp. 47-48.

36Fortescue stressed that the king was under the law.
See his Ag Laudibus, p. 25. Bodin, however, argued that the
sovereign was answerable only to God. See his Method,
pp. 201 and 282-90.

148

offering a moderate opinion. Overwhelmingly, the mood of
compromise, created in the introduction, was carried over
into the dialogues.

Actually, Fulbecke's dialogues were both a success and
a failure. They were a success, because he did manage to
show that these legal systems, although unrelated in origin,
possessed many similarities. The dialogues devoted to explain-
ing contracts, tenancy, legacies, theft and burglary, lend-
ing, bailment, wrongs, trespasses, unlawful assemblies, and
debts indicated a general agreement on the part of
Codicgnostes and Anglonomophylax. In fact, the only notice-
able differences found throughout the dialogues were in mak-
ing distinctions of homicide and manslaughter and in the
severity of sentencing.37

It should be noted that Canonologus played only a minor
role throughout the dialogues. This was probably a direct
result of the fact that the project to codify English
ecclesiastical law had failed and that students were dis-
couraged from studying the canon law, another example, no
doubt, of Fulbecke's willingness to prevent discord.

The author did display a thorough familiarity with the
sources. In his discussion of the civil law, Fulbecke either
quoted or referred the reader to Aristotle, Cicero, Horace,

Justinian, Plato, Plutarch, Polybius, and Vergil, along with

 

37The civil law recognized two categories: homicide
and manslaughter. The common law had three categories:
homicide, murder, and manslaughter. In regard to the severity
of sentencing, the civil law tended to be more extreme, ban-
ishment and execution were frequent forms of punishment.

149
contemporary writers like Bartolus, Bodin, and Gentili. When
he explained the common law, the author relied frequently on
statutes and cases. But he also cited the works of Bracton,
Britton, Coke, Finch, Fitzherbert, Glanville, Littleton,
and Staunford.

Fulbecke had employed a method that complemented his
subject matter and made it an instructive work. Yet, the
book was in one sense a failure. Its failure was not the
fault of the author. Time was the culprit more than anything
else. Although his work dealt with a significant issue, the
use of the civil law, Fulbecke composed and published his
book during a period of compromise and restraint. English-
men knew their Queen would not live much longer. Instead
of pushing the critical issue about the use of the civil
law, many common lawyers preferred to wait, out of respect
for her and the House of Tudor, and confront the new monarch
with their grievances. Fulbecke was party to this view and
his work reflected this mood. Certainly, Nomomathes's
epilogue expressed that spirit.

I praie you therefore let us still
converse together under one roofe...

that if God doe still vouchsafe the
Moone-diall of this darksome life, with
the reflexe of his intellectual illumined

influence, this triple-wheeled clocke may

still be kept in motion, by the divine
agilitie of his Law-favouring spirit.3

 

38William Fulbecke, The Second Part of the Parallele,
or Conference Of the Civill Law, the Canon Law, and the
Common Law of this Realme- of England (London, 1602). p. 74.

 

 

 

 

 

 

150

But the conversational form of the dialogues encouraged
participation that could lead to a controversial debate.
This was Plato's reason for using this method, to show con-
flict within society. Moreover, the dramatic effect gained
from this encounter increased the utility of the technique.
Given the mood of the common law lawyers and the Puritans dur-
ing the first half of the seventeenth century, Fulbecke, like
Plato, could have displayed more dramatically the seriousness
of the conflict. No doubt had he lived to publish or

republish A Parallele gr Conference a few years later, when

 

 

Dr. Cowell's Interpreter raised such a controversy, Fulbecke's

 

work could have had a more significant impact. But he was
writing during a period of compromise and restraint. As a
result, Fulbecke's treatise tended to present the subject in
a rather superficial and at times a deceptively harmonious

manner .

The career of Sir Thomas Ridley differed in one inter-
esting respect from the other Elizabethan legalists discussed
in this study: he composed only one treatise, A_yigg 9: Egg
Civile and Ecclesiastical Law (1607). The work was signifi-
cant not only as an apologia for the practise of the civil
and ecclesiastical laws in England, but also because it was

published in the same year as Dr. John Cowell's Interpreter.

 

Cowell's work created an almost instant fervor among common

law lawyers and had to be supressed by royal proclamation.

151

Ridley's book, on the other hand, met with moderate
success.39

Thomas Ridley was born in Ely around 1550. Little
is known of his life, as was the case with Fulbecke. Ridley
was the second son of Thomas Ridley of Brewling, Shropshire.
Young Thomas entered Eton College in 1565. While at Eton,
William Day, the provost of the College and the future
BishOp of Winchester, recognized the young man's potential-
and offered to become his patron. Through Day's assistance,
Ridley was able to continue his studies at King's College,
Cambridge, where he graduated B.A. in 1570. Thomas received
his M.A. four years later and then commenced, with Day's
encouragement, the study of the civil law. Using his influ-
ence as provost, Day had Ridley appointed headmaster at
Eton, while he continued his legal studies. In 1583, Thomas
was awarded the doctorate in civil law from Cambridge.

During the early 15805, it was not unfashionable to hold
a doctorate in the civil law, as was the case during the
first half of the seventeenth century. In addition to the
degree, Ridley also had the good fortune to cultivate
friendships within the ecclesiastical community. This was
invaluable, for it was through the bishops that a young
civilian usually received his first professional position.

Day was certainly an ardent supporter until his death in

 

39AView g: the Civile and Ecclesiastical Law-appeared
in four editions during the seventeenth century. First in
London, 1607; the second in Oxford, 1634; the third in Oxford,
1676; and the fourth in London, 1684.

152
1596. Then George Abbot, the future Archbishop of Canter-
bury, began to promote Ridley's advancement.

Ridley married Margaret Boleyn, the daughter of William,
who was believed to be a distant relative of the family of
Anne Boleyn. They had three children: Anne, Elizabeth,
and Thomas. In 1585 Ridley received a warrant from the
ArchbishOp of Canterbury for admission to the Doctors'
Commons.4o He was to gain full admission in 1590. Through-
out the 15905 Thomas held positions that befitted his rank
as a doctor of the civil law. He became a master in the
Court of Chancery and chancellor to the BishOp of Winchester.
Much later, he was to become vicar-general to the ArchbishOp
of Canterbury, George Abbot. He was also knighted at
Greenwich on June 24, 1619 for his service to the Crown.
Finally, Ridley died on January 23, 1628, the same year that
Charles I acquiesed to the Petition of Right.41 He was
buried at St. Benet's Church in London, the parish in
which the house of the Doctors' Commons was located.

Like Fulbecke's treatise, Ridley's work was designed to
show the common law lawyers how needless their protestations

were concerning the use of the civil and canon laws. But

 

40The Doctors' Commons was a professional society
formed by and for the civilians. It promoted the education
of young civilians in the art of pleading cases in the
courts of law. It also assisted their members in finding
suitable employment with the prerogative courts, the govern-
ment, or the ecclesiastical community.

41The Petition of Right represented the point at which
Parliament began to curb the prerogative authority of the
King. That authority, in many ways, had protected the
positions of the English civilians.

153

unlike Fulbecke, his treatise, A View gf the Civile and

 

Ecclesiastical Law, compared only the use of these two laws.
It was assumed that the reader possessed a reasonable
command of the common law. Ridley stated his specific purpose
for writing his book in the Epistle dedicatory to King James.

I have thought good,...,to set out the whole

sums of both the Lawes to the view of the

people, that they may see there is more

worth in those for whom I speake, than

was by many conceived to be: so that the

profession of the Ecclesiasticall and

Civile Law may appeare to the world, neither

to be idle nor unfit for the State; so far

as it hath pleased the Royall predecessors

of your Highnesse to give entertainment unto

it,4gnd your Maiestie your selfe to admit of

it.
He also implored the King to protect the use of these laws
in England, not only for the good of the civilians' pro-
fessional status, but also for improving the administration
of justice in the commonwealth.

The work was more than an apologia, however. It was

an instructive manual, written in a style similar to a
command paper or government report. Ridley first described
the sources of the civil and canon laws. Next, he discussed
how these laws had been utilized in England. The author then
explained how the administration of the civil and canon laws
was impeded by the common law lawyers. Finally, suggestions

were offered for improving the use of these laws in England.

 

42Thomas Ridley, A View g; the Civile and Ecclesiastical
Law, (London, 1607), p. 2.

 

154
The author's premise was,

That every well order (ed) Commonwealth

stands on two parts principally, the

publicke part, which consisteth of the

Prince and people, and the Ecclesiasticall

part, which standeth in Sacris & Sacerdotibus

...neither can the one of these be wanting,

but the other will bee ruinated and brought

to defolation.43
Thus, in order to assure an orderly and reasonably governed
commonwealth, the monarch was dependent upon laws that ruled
the outward man and those that provided instruction for the
inward man. The civil and canon laws, Ridley argued,
completely provided this need for most nations with the
exception of England.

Although these two legal systems were not utilized as
frequently as on the continent, they did serve, nonetheless,
important functions in the administration of justice in
England. The civil law was employed in cases of equity.
Ridley pointed out that the English ”so much admire the
equitie thereof, that they interpret their owne lawes

"44 In particular, the Court of Chancery and the

thereby.
Court of Requests were dependent on the civil law.

Ridley readily admitted that the canon law was highly
suspect throughout the realm, for it contained "many grosse

and superstitious matters used in the time of Papistrie, as

of the Masse, and such other like triumperie." But he went

 

43Ibid., pp. 224-25.

44Ibid., p. 3.

155
on to point out that "there are in it beside, many things
of great wisdome, and even those matters of superstition
themselves, being in a generalitie, well applied to the true
service of God."45 The author cited the composition of
parliament and reminded the reader of the utility of its
ecclesiastical members. He went on to stress the need to
retain another ecclesiastical authority, the use of the canon
law, for this authority was as important for maintaining
the dignity of the Crown as was the temporal power.

In spite of the wisdom, variety, and utility found in
the civil and canon laws, Ridley was deeply concerned about
the future of these two legal systems in England. "The
Professors thereof," he said, "have very little use here
within this Realme.n46 Besides Oxford and Cambridge, where
these laws were practised with a larger degree of freedom,
the civil and canon laws had only limited jurisdiction. In
addition to equity cases, he said, the use of the civil
law was divided into two categories. The ordinary cases
dealt with maritime law, commerce, and piracy. The extra-
ordinary cases involved foreign treaties, martial causes,
and challenges of honor. The canon law, on the other hand,
was employed in areas involving wills, legacies, and tithes.

Even though the jurisdiction of the civil and canon
laws were limited, the common lawyers attempted to curb

451518., p. 66.

46Ibid., p. 78.

156

their use. Praemunire and prohibitions were the means
often employed. Praemunire was designed to prevent cases
from being appealed above the archbishop of Canterbury's
court or outside England. Two statutes had been addressed
to this problem during the fourteenth century.47 Originally,
it was an attempt to curb appealing cases to Rome. During
the early seventeenth century, however, praemunire was
utilized to stop proceedings in the Court of High Commission.
High Commission was the court of first instance for the
administration of the ecclesiastical jurisdiction of the
Crown. It was also a court of appeal for other ecclesiastical
courts. The writ of prohibition had existed from hearing
cases where the law court had proper jurisdiction.48

Finally, Fidley concluded with some recommendations
for retaining the use of the civil and canon laws for the
benefit of the commonwealth. Actually, he was requesting
that the common law lawyers restore those jurisdictions
that had been curtailed through praemunire and prohibitions.
In matters of equity, Ridley argued that the civilians
"might seeme best able for their skill in these tytles

(of which no other law hath the like) to assist the Lord

 

47See Statutes of the Realm: 27 Edward III, c. 1 and
16 Richard II, c. 5.

48For an example of the use of the writ or prohibition
in the seventeenth century, supra., p. 24.

157

"49 Also the use of

Chancellor in matters of conscience.
the civilians in international law, commerce, and admiralty
should be retained, since the common law lacked a prOper
remedy for dealing with such cases.

The subjects of the realm would also benefit from the
retention of the ecclesiastical law. This law, he maintained,
would protect pe0ple against the penalties of illegitimacy
and from executors absconding with benefits from wills. It
would also safeguard rightful inheritances, legacies, and
bequests. These were areas in which the common law had been
noticeably weak. Holdsworth pointed out that Ridley had
proposed "some very necessary reforms in the law of
executors and intestate succession."50

Ridley concluded his study of the civil and canon law by
indicating his reverence for the common law. He pointed out
that the purpose of his treatise was not "to derogate from
the credit of that Law, under which I was borne," since he
revered it "as a necessarie Law for this state." Yet he was
saddened "to see two such Noble Sciences as the Civille and

"51 He maintained

Ecclesiasticall law are so to be disgraced.
that both were beneficial to the administration of justice in

the commonwealth. And he believed that their absence would

 

49Ridley, pp. cit., p. 228.

50Holdsworth, A History, V, p. 13.

51Ridley, 92. cit., p. 229.

158
weaken the state by depriving it of the wisdom of the
civilians.

Like most sixteenth-century civilians educated in
England, Ridley not only displayed a thorough understanding
of the civil law and its sources, but he also possessed an
excellent command of the common law and its primary materials.
In his treatise, he explained the contents of the four books

that constituted the civil law: Digest, Code, Institutes,

 

and Feuds. He also described the Decrees and Decretals, the

 

two principal parts of the canon law. Throughout his work,
Ridley cited English statutes and cases from Plowden's
Reports to bolster his defense of the civil and canon laws.
And he enhanced his arguments further with his utilization
of such authorities as Glanville and Bracton. Finally, the
author's humanist education at Cambridge was also evident
in his use of Aristotle, Cicero, Herodotus, Homer, Pliny,
and Plutarch. References to more recent authorities, such
as Baldus, Bartolus, Bodin, and Guicciardini were also
significant.

Earlier, it was pointed out that Ridley's work was
important, because it was published in the same year as
Dr. Cowell's Interpreter. John Cowell was Regius Professor
of Civil Law at Cambridge. In 1607 he published the
Interpreter, a glossary of legal terms that encompassed the
civil, ecclesiastical, and common laws. No doubt, he was
attempting to mediate between the civil and common law

factions as Fulbecke and Ridley had done. In his work,

159

however, he defined the terms king, parliament, prerogative,
and subsidy in a manner that supported and enhanced the
absolutist political claims of King James. Parliamentarians
were incensed by Cowell's royalist interpretations and
demanded that he be punished. The King did not accede to
their requests; however, he did have the book suppressed by
royal proclamation on March 25, 1610.52

Cowell's confrontation with the parliamentarians is
usually cited to illustrate the rivalry between the civilians
and the common law lawyers. Unfortunately, this episode
has been an exaggeration, a misrepresentation of the approach
that many members of the civilian community employed to
resolve their conflict with the common law lawyers. As
Chrimes pointed out, Cowell "fell a victim to his own honest

"53 Unlike Cowell, who

but impolitic zeal for definition.
had been a scholar all of his life, most civilians were in
the employ of the central government or the church
hierarchy. A5 a result, they were very conscious of the
political climate and the implications that could be drawn
from their treatises. They realized that they had to

defend themselves against the exaggerated protestations of

the common law lawyers and the vitriolic attacks of the

 

52An excellent study of the controversy surrounding
Dr. Cowell is found in S.B. Chrimes, "The Constitutional
Ideas of Dr. John Cowell," English Historical Review, LXIV,
(1949): PP. 461-83.

 

53Ibid., p. 482.

160
Puritans. But the politically astute civilians had used a
degree of discretion and restraint in their defense of their
legal system.

The treatises of William Fulbecke and Sir Thomas Ridley
represented this approach. Both had addressed themselves to
the continued use of the civil and canon laws in England.
This issue was a significant part of the larger question that
needed answering during this period, that is, a clarification
of the issue of where authority rested in the realm. By
utilizing the comparative method, Fulbecke and Ridley attempted
to resolve the issue, at least, as it pertained to the civil
and canon laws. Through their compromising techniques and
emphasis on restraint, they may have gained a modicum of

success for the civilians in England.

4 GENTILI AND THE DEVELOPMENT OF INTERNATIONAL LAW

While he was exiled in Paris, Hugo Grotius published

pg Jure Belli 3g Pacis Libri Tres (1625). This work helped

 

 

to establish international law as a new branch of juristic
study. "Up to the present time," Grotius argued, ”no one
has treated it in a comprehensive and systematic manner."1
Although the concept for such a corpus of law had been
recognized during the medieval period, the old principles had
become largely discredited due to the new ideas emanating
from the Renaissance and the Reformation and from the impact
of the rise of the nation states and the voyages of dis-
covery. Grotius systematized the principles governing inter-
national law by synthesizing the philosophies expressed in
natural law, divine law, and established custom. The
result was that his theory "won universal acceptance."2 In
1661 the first chair of international law was created at the
University of Heidelberg. Until the second half of the
nineteenth century, Grotius was considered the undisputed
father of international law.

The Reformation, more than any other event, provided

the need for a re-evaluation of international law. Disputes

 

1Hugo Grotius, Qg_Jure Belli gg_Pacis Libri Tres, tr.
Francis W. Kelsey, (Indianapolis, 1925), p. 9.

 

 

2Holdsworth, A History, V, p. 56.
161

162

over religious ideology were often the root cause of many
wars during this period. In fact, Grotius had been imprisoned
in his native Holland for supporting religious toleration.
He later escaped into France where he wrote and published his
famous treatise. The author's purpose was to explain that
law functions even in time of war. He also defined the
specific rights and duties of nations not only in war but
also in peace. And he distinguished just wars from unjust
wars.

Two distinct achievements by Grotius in the field of
international law have been cited by modern scholars.
Garrett Mattingly pointed out that Grotius was "the first
person to see, or to make it clear that he saw,...the hetero-
geneous, pluralistic international society of western Europe.
That was what the future was going to be like."3 The old
authorities, the universal empire and the universal church,
had diminished in power. Henceforth, the nation states of
Europe would be free, equal, and have no temporal or
spiritual overlord. Concurring with Mattingly, but empha-
sizing a different point, was Charl Friedrich's estimation
that "the decisive achievement of Grotius was to separate

natural law from its Christian and theological basis as it

 

3Garrett Mattingly, "International Diplomacy and
International Law," in The New Cambridge Modern History,
III, The Counter-Reformatiop and Price Revolution,
(Cambridge, 1968): pp. 169-70.

163

had been understood in the Middle Ages."4 Grotius maintained
that although natural law conformed to divine law, it
existed independently from revelation. Natural law was the
rule of right reason established by God. It was through
this law that man learned to distinguish just from unjust
acts. But neither the Bible nor divine laws were necessary
for understanding it. By separating natural law from its
religious bonds, Grotius offered a secular interpretation
for the freedom and equality of man. This view was extended
and applied to the individual nation states, where the
absence of a superior power was emphasized.5

Although he claimed originality in his treatise, Grotius
offered no new rules. The elements of international law had
already been formulated by his predecessors. While at the
University of Leyden, Hugo was influenced by the humanist
tradition, and as a result, classical writers such as
Aristotle, Cicero, Homer, Josephus, Justin, Livy, Tacitus,
and Thucydides were used extensively in his work as were the
Corpus ggpig Civilis and the Coppus Aggig Canonici. Thomas
Aquinas, perhaps the leading medieval advocate of inter-
national law, was frequently cited. But Grotius's more

recent predecessors were of particular importance to him,

 

4Carl J. Friedrich, The Philospphy‘g§_Law ip_Historical
Perspective, (Chicago, 1958), p. 65.

 

 

5For a more complete interpretation of Grotius's
conceptualization of natural law see James Brown Scott's
introduction to Grotius, pp, cit., pp. xxx-xxxii.

164
for they had also been intimately affected by events of the
sixteenth century. Among these scholars were the Spaniards
Franciscus de Victoria, Balthazar de Ayala, and Francisco
Suarez, and the Italians Pierino Belli and Alberico Gentili.
Notwithstanding his Italian birth and education, Alberico

Gentili deserves recognition in the annals of English legal
thought. He spent most of his adult life in Elizabethan
England, and his career as a legalist was certainly affected
by his experiences there. Grotius acknowledged his debt to
Gentili. He had read two of his works, pg Jure Belli Libri
Tres and Advocatio Hispanica, while he was in prison.6 But
it was not until the nineteenth century that Gentili's con-
tribution to international law was fittingly recognized. In
an inaugural lecture delivered at All Souls College on
November 7, 1874, Thomas Erskine Holland said,

I am by no means concerned to place

Gentilis on a level with his undeniably

greater follower; or to say that his

writings do not exhibit, in some degree,

the faults with which they have been

charged. My object has been merely to

call attention to a much forgotten

reputation; and to remind you that the

first step towards making International

Law what it is, was taken, not by Grotius,

but by the Perugian refugee, the adgpted

son of Oxford, Alberticus Gentilis.

Since that lecture, Gentili's significant contributions to

international law have been examined and recognized by

 

61bid., p. 22.

7Thomas Erskine Holland, An Inaugural-Lecture pg
Albericus Gentilis, (London, 1874): p. 35}

 

165
other scholars.8 And Hugo Grotius no longer held the un-
disputed title as the father of international law.

Alberico Gentili was born on January 14, 1552, at San
Genesio. He was the eldest of Matteo and Lucrezia's seven
children. Members of the Gentili family had long distinguished
themselves in law and medicine. Matteo was a physician in
the town. Alberico chose to prepare for a career in the law.
He attended the University of Perugia, one of the foremost
law schools in Italy, and on September 22, 1572, he attained
the degree of doctor of civil law. Part of the University's
reputation for excellence in this area was due to the work
of Bartolus de Sassoferrato and Baldus de Ubaldis, both
former faculty members and both leaders of the Post-Glossator
School.9 Unfortunately, training in the mos italicus pre-
cluded Gentili from gaining an appreciation for the signifi-
cant contributions of the humanist method. Both philological
techniques and historical studies, popular at other law
schools, were excluded from the curriculum at Perugia.

Having completed his legal education, Gentili moved to

Ascoli where his father had established a medical practice in

 

De Grotius, (Bruxelles,—1882), Ernest Nys, Les Origens du
Droit International, (Bruxelles, 1894), Coleman Phillipson,
Great Jurists of the World, (Boston, 1914), Gezina Hermina
Johanna Van Der —Molen, Alberico Gentili and the Development
of International Law, (Amsterdam, 1937), and Giorgio DeI
Vecchio, 'The Posthumous Fate of Alberico Gentili," Egg
American Journal g; International Law, (1956), pp. 664-67.

 

 

9Supra., pp. 7-273.

166

1571. Two months later Alberico was appointed praetor, a
position that combined the duties of mayor and judge. In
1575 he returned to San Genesio with his father. There he
practiced law and was entrusted with revising the town
statutes. Gentili's future appeared bright until he was
forced to flee his native land, accompanied by his father and
younger brother. Matteo, Alberico, and Scipio Gentili were
members of a Protestant community. But by the late 15705 the
Inquisition was successfully destroying these little groups
and causing their members to leave the country. For a short
time Alberico stayed with his father and brother at Tubingen.
In 1580, Alberico Gentili, having refused professorships at
Heidelberg and Tubingen, journeyed to England in hope of
beginning a new career. He was to gain fame as a professor
of civil law and a scholar in the field of international law.

Before discussing Gentili's contribution to the develOp-
ment of a theory of international law, it is important to
discuss briefly how this concept was Viewed prior to the
events of the sixteenth century. During the medieval period,
the term international law did not exist. Legalists recognized
fOur basic types of law.10 Each contributed to the formation
of a theory of international law. As Holland pointed out,
"the science (pf international law] has come down to us by

no unbroken course from one remote fountain-head, but is the

 

10Jus naturale - what nature had taught all living
things, lgg gentium - law used among civilized peoples,
jus Civile - the law of a particular state, and jus divinum -
the law of the Church.

 

 

 

167

result of the recent convergence of many independent

rivulets of thought."11

 

 

Jus naturale and jus gentium were the two prominent
components in elaborating a theory of international law.

Jus naturale was most significant in offering a natural

 

system of ethics, that was distinct but not separate from
revealed ethics. It embodied the fundamental harmony that
existed between human and Christian values. It served as a
universal criterion for measuring just and unjust acts.
Thomas Aquinas was the leading medieval proponent of this
theory. He wrote,

Since all things subject to divine
providence are ruled and measured

by the eternal law, as was stated

above, it is evident that all things
partake in some way in the eternal

law, in so far as, namely, from its
being imprinted on them, they derive
their respective inclinations to their
proper acts and ends. Now among all
others, the rational creature is subject
to divine providence in a more excellent
way, in so far as it itself partakes of
a share of providence, by being provident
both for itself and for others. There-
fore it has a share of the eternal reason,
whereby it has a natural inclination to
its proper act and end; and this parti-
cipation of the eternal law in the
rational creature is called the

natural law. Hence the Psalmist,

after saying (P5. iv. 6): Offer up the
sacrifice of justice, as though someone
asked what the works of justice are,
adds: Many say, Who showeth us good
things? in answer to which question he

 

11Thomas Erskine Holland, Studies ip-International Law,
(London, 1898): p. 40.

 

168

says: The light of Thy countenance,

O Lord, is signed upon us. He thus
implies that the light of natural
reason, whereby we discern what is

good and what is evil, which is the
function of the natural law, is

nothing else than an imprint on us

of the divine light. It is therefore
evident that the natural law is nothing
else than the rational creature's parti-
cipation of the eternal law.

Thus, man's reason, his rational nature, provided a universal
basis of morality. By this standard, political and social
institutions could be evaluated and judged. Jus naturale
could be a guide to the perfectibility of man, a guide
that was dependent on reason and revelation.

Throughout the medieval period, some theorists continued

to grapple with the speculative nature of jps naturale

 

and its application to 195 gentium. Others addressed them-

 

selves to the practical issues of the law of war. This

aspect had been the oldest concern among writers of inter-
national law. Since the theorists were all Catholic and
often ecclesiastics or lawyers, they developed their arguments

from the Bible, Church Fathers, jus divinium and jus civile.

 

 

There was a theological basis for each precept. The ideas
discussed included the solemnity of declaring war and the
formalities of making treatises. Such diverse topics as
punishments for desertion, army organization, distinctions
in military rank and pay, and military discipline were also

emphasized. Theorists had raised and discussed a number of

 

12Thomas Aquinas, Summa Theologica, in Basic Writings
pf §aint Thomag Aquinas, ed. Anton C. Pegis, (New York,
1945), II, p. 750.

 

 

169
questions that dealt with belligerent relations, but failed
to establish international law as a separate science. They
only integrated jus naturale, theology, and secular laws
into western Christian ethics and morality.

Christianity had offered an ideal framework for achieving
international peace and universal brotherhood. By the
fifteenth century, the foundation of this framework was
seriously undermined, and by the sixteenth century, it had
been considerably weakened. The decline in the power of the
Papacy and of the empire had threatened medieval universalism.13
The demise of these traditional authorities created a number
of new and interrelated problems.

As a result of the rise of the nation states, each
claiming to be equal and autonomous, there was no longer a
universally acceptable agent to enforce international rules
or mediate international disputes. "Curiously enough," as
Roland Bainton pointed out, "nationalism, which overcame
disunity at the bottom of medieval society, destroyed unity
at the top."14 The treaty of Cateau-Cambresis (April, 1559)
illustrated this observation best. The representatives of
Spain, France, and England decided the fate of Italy without
the presence of a representative of the Papacy. This never
would have been seriously considered during the preceding

centuries.

 

13Supra., pp. 36-38.

14Roland H. Bainton, "Changing Ideas and Ideals in the
Sixteenth Century," Journal 9: Modern History, VIII, (1936),
p. 431.

 

170

The Reformation also subverted the medieval idea that
Christendom was united in opposing the unbelievers and pagans
in a hostile world. During the early years of the sixteenth
century, wars within Europe had been caused by dynastic
disputes related to the formation of the nation states, and
in the second half of the century, were concerned with con-
flicts over religious ideology. Attempts at diplomatic nego-
tiations were rendered impossible. The conflicts, based on
theological absolutes, hampered established diplomatic
procedures.

There were also new problems created by the voyages of
discovery. What legal principles should be applied by
Europeans in their dealings with natives? What of the politi-
cal and legal questions surrounding the acquisition of
territories in the newly discovered portions of the world
and of the jurisdictional limits on the high seas? Theoretical
doctrines had been based on moral, legal, and theological
concepts that were common to the people of Christendom.

There was a realization that these doctrines had to be
reconsidered in light of discoveries beyond the realm of
Christendom. The notion of the unity of the human race was
more important and it became a leading issue. By admitting
that the Indians had rights, the people of Europe extended
the sphere of international law outside that closed coterie
of European states. And old idea that religion was a legal
justification for declaring war on infidels was questioned

and subsequently condemned as an unnecessary cruelty.

171
The final problem concerned ambassadors, that branch of
international law that Mattingly called "the international

”15 Resident ambassadors were an Italian

law of diplomacy.
creation. No doubt, Francesco Sforza, the Duke of Milan,
instituted the practice among the secular princes of Europe.16
Permanent embassies develOped because of the complexity of
international relations which increasingly involved commercial
considerations as well as the traditional political issues.
By 1500, there was a growing need to explain the ambassador's
role, since most western European countries had adopted
resident embassies. Rules regulating the status and behavior
of diplomats were some of the issues that had to be resolved.
Western European legalists were gradually becoming aware
of the problems associated with international law. Medieval
concepts were no longer functional in the handling of many
of these critical issues. Some of the specific rules involv-
ing laws of war had ceased to be reasonable ordinances. A
small group of writers recognized the need to change the
status quo by reshaping some concepts, discarding others,
and creating new ones. Three schools of theorists emerged.
Although these groups were grappling with the same problem,
each possessed distinct characteristics and made certain
basic assumptions that affected its contributions toward

changing the theory of international law.

 

15Garrett Mattingly, RenaissanCe Diplomac , (Baltimore,
1964), p. 18.

 

16Francois L. Ganshof, The Middle Ages A_Histogy pf
International Relations, (New York, 1970): P. 293.

 

 

172
Representatives of the first group were the Italian
Pierino Belli (1502-1575) and the Spaniard Balthazar Ayala
(1548-1584). These were Catholics who had studied law at
Perugia and Louvain respectively, had served as military
judges, and had written treatises dealing with the laws of

war. Belli's pg Ag.Militari 22 g; Bello Tractatus appeared

 

 

in 1563. His purpose was to explain the just cause of war,
and how a war is declared and a peace is concluded.17 He
devoted considerable attention to the treatment of prisoners,
military enemies, and the enemy civilian populace. His

ideas were based on Roman law and on the opinions of the

Church Fathers. He cited both ancient and modern history

to support these ideas. Ayala wrote 22 Jure gp_Officiis

 

Bellicis g3 Disciplina Militaria Libri III (1581). His

 

 

approach was similar to Belli's except that he was even more

diffuse.18

Both writers lacked a singleness of purpose, for
they retained many of the diverse and extraneous questions
that were found in the writings of the medieval theorists.
But they also continued to rely upon the theological
rationale.

The significant contribution of these two was the

utilization of recent history to illustrate their ideas.

Their education in the Bartolist tradition attached

 

17Pierini Belli, 23 Ag Militari et g2 Bello Tractatus,
tr. Herbert c. Nutting: (Oxford, 1936?? II, p. v.

 

 

18Balthazar Ayala, pg Jure gE-Officiis Bellicis pp
Disciplina Militari Libri III, ed. John Westlake and tr.
John Pawley Bate, (Washington, 1912), II, pp. i-ix.

 

173
considerable importance to the use of recent precedents and
authorities. This was particularly useful in the field of
international law, where more current illustrations could
enhance the credibility of the espoused theory.

The second school of theorists, who addressed themselves
to the problems of international law, was represented by the
Spaniards Franciscus de Victoria (1480-1546) and Franciscc
Suarez (1548-1617). Victoria was a Dominican friar and a
professor of moral theology; Suarez was a Jesuit and a pro-
fessor of theology and philosophy. Victoria composed two

works: pg Indis and 23 Jure Belli. Both appeared in his

 

Relectiones Theologicae XII published posthumously in 1565.

 

Actually, these treatises were lectures that he had delivered
in 1532.

pg Apg£§_was Victoria's principal contribution to a new
theory of international law. In it, he condemned the Spanish
atrocities that had been perpetrated against the Indians in
the Americas. He began by offering an apologia for his dis-
cussion of such matters by maintaining that all controversies
fall within the purview of theologians. He asserted that
barbarians were not controlled by EurOpean laws, but were by
divine laws. Obviously, theologians were better versed than

jurists for such a discussion.19

 

19Franciscus de Victoria, pg Indis ES 22 Jure Belli
Relectiones, ed. Ernest Nys and tr. John Pawley Bate,
(Washington, 1917), pp. 116-20.

 

174
Victoria was particularly adamant about repudiating
the popular medieval notion that Christians had the right
to punish idolatry. He pointed out,

War is no argument for the truth of the
Christian faith. Therefore the Indians
can not be induced by war to believe, but
rather to feign belief and reception of
the Christian faiah, which is monstrous
and a sacrilege.

The idea that international law should extend beyond the
realm of Christendom to include unbelievers, who also had
rights, was Victoria's most significant and innovative con-

21

tribution. He rejected the medieval notion of jus gentium,

 

that the legal community was limited to Christendom, and

maintained that it existed for all states, jur inter'gentes,
d.22

 

and encompassed the entire worl The author did retain,
however, many of the medieval doctrines pertaining to the
laws of war and many of the old moral, legal, and theological
arguments.

Whereas Victoria presented a practical case of the
Indians for enlarging the theory of international law,
Francisco Suarez offered the theoretical rationale to support

it. Suarez, therefore, complemented Victoria's point of view.

He did this when he published Qg_Legibus, §g_De0'Legislatore

 

(1612). The author indicated that the old notion of jus

 

2°Ibid., p. 145.

211bid., p. 127.

22Ibid., pp. 151-56.

175
gentium was based on Roman jurisprudence and that "it is a
body of laws which individual states or kingdoms observe

"23 But the law of nations had

within their own borders.
another interpretation independent from the first. Suarez
explained, "this is the law which all the various peoples
and nations ought to observe in their relations with each
other."24

Suarez maintained that the latter definition was more
applicable to the needs of the nation states. "The human
race," he wrote, "always preserves a certain unity, not only
as a species, but also a moral and political unity enjoined
by the natural precept...which applied to all, even to
strangers of every nation."25 Although the sovereign states
possessed their autonomy, they, nevertheless, were all
members of a universal society, an international community.
Besides, he continued, "states when standing alone are never
so self-sufficient that they do not require some mutual

assistance, association, and intercourse, at times for their

26 . .
own greater welfare and advantage." Suarez env151oned a

 

23Francisco Suarez, 23 Legibus, Ag‘Deo Legislatore,
in Selections from Three Works gi'Francisco'Suarez, Ed.
Gwladys L. Williams EE.El-r (Oxford, 19447, II, p. 347.

 

 

24Ibid.

251bid., p. 348.

261bid., p. 349.

176
unity among the many independent nation states. The unity
was based on a foundation that was reasonable, natural, and
moral.
The significant contribution of this group was their
clarification of a definition for international law. Both
a practical and a theoretical explanation were presented for

jus inter gentes. But these theorists were still dependent

 

on the theological bonds developed by their Church during
the medieval period.

Until the second half of the sixteenth century, Italian
and Spanish theorists, who were Catholic ecclesiastics and
military judges, dominated the discussion on the laws of war.
They failed, however, to make distinctions between theological
principles and judicial rules. By the second half of the
century, another group of legalists concerned with inter-
national law had emerged, the Protestant theorists. Both
Alberico Gentili and Hugo Grotius were leaders in this school,
and both had suffered exile from their native lands because
of their religious convictions. Their major contribution to
the field of international law was the systemization of the
law to meet the needs of the new age.

Gentili was educated in the Bartolist tradition at the
University of Perugia. During the fourteenth and fifteenth
centuries, the Bartolists had undertaken the task of
systematizing the texts of the Roman law and blending them
with the canon and customary laws. Gentili had been

thoroughly trained in the nuances of Roman law and was

177
familiar with the systematic approach to the study of
jurisprudence. He brought these important abilities to
England. Both were to affect his method of examining and
contributing to a new theory of international law.

Although the young exile was unknown in England, he
received a friendly welcome upon his arrival late in 1580.
The fact that he had been a victim of the Roman Inquisition
made him an attractive immigrant. Gentili found support
immediately from Battista Castiglioni, the Italian tutor
to the Queen; Tobie Matthew, the Vice-Chancellor of Oxford;
and from Robert Dudley, Earl of Leicester and Chancellor of
Oxford. Early in December of 1580, Alberico journeyed to
Oxford where he was provided with money and lodgings at the
New Inn Hall. On March 6, 1581, he was incorporated at
Oxford and became a professor at St. John's College.

Apparently, Gentili's facility with the civil law was
immediately recognized. In November 1584, the Spanish
ambassador, Bernardino de Mendoza, was implicated in the
Throckmorton plot to liberate Mary, Queen of Scots, and to
dethrone Queen Elizabeth.27 Since a theory of diplomatic
immunity for ambassadors in civil and criminal actions had
been developed by civilians during the medieval period,
Elizabeth's council requested the advice of two civil

lawyers, before pronouncing a sentence on Mendoza. The

 

27For a concise summary of the Throckmorton plot see
J.B. Black, The Reign of Elizabeth'1558-1603, (Oxford, 1959),
pp. 360-64.

 

 

178

opinion of Gentili and that of the French jurist, Jean Hotman,
were solicited. Both men empathized with the council's
desire to punish the ambassador severely, but they concurred
in their opinions that Mendoza was covered by diplomatic
immunity. They suggested that the ambassador's recall be
demanded and that a complaint be lodged with Philip II of
Spain. The council accepted the decision of Gentili and
Hotman, and they expelled Mendoza on January 9, 1585.

Throughout the sixteenth century, the status of ambassa-
dors and the privileges of embassies had been undefined.
Scholars and students had not been concerned with this issue.
Gentili's participation in the Mendoza affair prompted him
to examine the status of ambassadors further. He was particu-
larly interested in explaining what their status ought to be.
In the annual summer disputations at Oxford, Gentili made
this the topic of his presentation. He expanded upon these

ideas further and published them in De Legationibus (1585).

 

It was Gentili's initial work in a tri-part effort that
dealt with the concept of international law.

22 Legationibus consisted of three books. The first
book traced briefly the historical development of the various
types of embassies. Gentili was of the Opinion that ambassa-
dors probably were utilized before the time of Moses, but
that the current use of envoys undoubtedly emanated from the
Papacy. The popes had established embassies throughout

Europe. As a result, European princes tended to imitate

179

the practice in order to safeguard their interests.28

The second and most important book explained the priv-
ileges and immunities of an ambassador. It was here that
Gentili offered an explanation for his Opinion in the Mendoza
case, for he stressed the legal status of envoys. He wrote,
“in dealing with an ambassador who is a spy, I do not believe
that severity can be carried beyond the point of refusing to
admit him, or if he has been admitted, of expelling him."29
He went on to say that an envoy "can be tried only under

30 Thus, ambassadors could not be

international law."
indicted for offenses cited in the civil and criminal codes
of a country. An embassy was subject only to the jurisdic-
tion of international law. The author did concede, however,
that ambassadors guilty of such offences could be "punished
with great severity by their own nations," once they had
been surrendered to them.31

Gentili utilized the theory of jus naturale, when he

 

explained the development of jus gentium. He maintained

 

that "international law is based on natural principles which

have been implanted in all by nature, and which are so well

 

28Alberico Gentili, Qg'Legationibus'Libri Tres, tr.
Gordon J. Laing, (New York, 1924), II, pp. 52-53.

 

29Ibid., p. 65.

3°Ibid., p. 97.

31Ibid., p. 98.

180
known that they need neither argument nor art to establish
2 . . .
them."3 He did not offer a precise definition of natural

law; he simply assumed its existence. Gentili did retain

the medieval association between jus-naturale and jus gentium,

 

 

but he had de-emphasized the significance of theological
doctrines. This precluded any claims by the Papacy of being
an universal intermediary. This view was typical of Protes-
tant writers, who were shifting the emphasis to the law of
nature and away from the idea of a united Christendom that
was no longer viable, in spite of the Council of Trent.

The third book discussed the qualifications that an envoy
should possess. Gentili recalled that he had overheard Sir
Francis Walsingham explain these necessary traits. They
included neatness in appearance, superiority in intellect,
eloquence in speaking, and capacity as a dignified and prudent
observer. The author also offered his own estimate of the
perfect ambassador. "The perfect ambassador," he wrote, "is
one who can accomplish efficiently the business and duties
which have been assigned to him or which he himself has
recognized the necessity of undertaking."33 Gentili pointed
out that these qualities had in his opinion been exhibited in

only one man, Sir Philip Sidney, to whom he had dedicated

the treatise.

 

32Ibid., p. 111.

33Ibid., p. 198.

181

Gentili's study was not a complete treatment of the
topic, but it did surpass all previous discussions on
ambassadors. The separation of the moral qualities of envoys
from their legal status had never been undertaken before.
Gentili was the first legalist to examine systematically
a perplexing, but often ignored, branch of international law.

Gentili continued to teach at St. John's College, but
was disappointed not to have secured an independent chair
at Oxford. In the autumn of 1586 he left the University
and travelled to Wittenberg. At the time, he had no intention
of returning to England. He had come to Germany to seek a more
permanent academic position and to be closer to his brother,
Scipio. But in November of the same year, Griffin Lloyd, the
Regius Professor of civil law at Oxford, died. Through the
influence of Walsingham and Leicester, Gentili was offered
the post. He returned to Oxford immediately to accept this
prestigious appointment. Two years later he married Hester
de Peigni, a French Huguenot refugee.

The status of the civil law at Oxford and Cambridge had
declined during the middle of the sixteenth century. But
with Gentili's appointment as Regius Professor, there appeared
to be a renewed interest in this branch of law.34 William

Fulbecke remarked that Gentili's "great industrie hath

 

34Ernest Nys pointed out in his introduction to De
Legationibus that during Gentili's period as Regius professor
(1587-1608) the University created sixty bachelors in law
and twenty-four doctors in law. 'Ibid., p. 27.

 

182

‘ quickned the dead bodie (of) the Civil Law."35 During his
professorship, Gentili continued to emphasize the study of
international law and to raise it to a status independent of
the civil and canon laws. This study led to the publication

of his most important treatise, De Jure Belli-Libri Tres.

 

 

It was published in 1598, and was the first attempt made as
a systematic study of the law of war.

His purpose was to explain that international law was a
broad area that dealt with a number of issues. He had already
examined the art of diplomacy, one branch of international
law, in his 23 Legationibus. Now he was going to examine the

law of war, another subdivision. In 23 Jure Belli, the author

 

addressed himself to two issues. The first was to inquire
under what conditions a war could be justly undertaken,
conducted, and terminated. The second demonstrated that
international law was a separate area of study and was not
the concern of civilians, moralists, or theologians, but
was of international jurists.

Gentili defined war as "a just and public contest of
arms."36 War, therefore, was comprised of three essential
elements: a public contest between sovereigns, a utiliza-
tion of the force of arms, and the necessity to conduct

hostilities in a just manner. By defining war in this manner,

 

35Fulbecke, A Direction, p. 26.

 

36Alberico Gentili, De Jure Belli Libri Tres, tr. John
C. Rolfe, (Oxford, 1933), II, p. 12.

 

183
Gentili rejected the possibility of justified private war-
fare, a frequent topic in medieval treatises.

The major thrust of the author's argument centered on
whether or not the contest was just. He maintained that men
could go to war for two reasons: self-defence or to gain
what had been denied that "Nature herself has bestowed upon
mankind."37 He also argued that a state must inform its
enemy of the intention to declare war.38 During the course
of the war, just conduct must also be maintained. Captives

should not be slain.39

40

Those that surrender should be spared

death. Women, children, and old peOple should not suffer

41

reprisals. In concluding a war, the victor had the right

to inflict a just penalty. But he should not randomly destroy

42 Rather he "should recover

cities or kill enemy leaders.
the expense of the war and compensation for the losses which

he has suffered."43

 

37Ibid., p. 58.

381bid., p. 131.

39Ibid.. pp. 208-15.

4°1bid.. pp. 216-30.

41Ibid., pp. 251-60.

421bid.. pp. 315-27.

431bid., p. 293.

184
Gentili was offering the most comprehensive analysis of
the law of war that had been published to date. He was not
only concerned with questions of war, but he also displayed
a sensitivity to the problems of securing an equitable peace.
His entire approach liberated the laws of war from the
extraneous discussions of military ranks, discipline, and

tactics.44

Furthermore, he rescued the study of international
law from domination by Catholic theology and Roman law. He
admitted that "international law is a portion of the divine

45 He also acknowledged that Roman law "is not wholly

law."
unlike the law of nature or that of nations."46 Yet Gentili
maintained that international law involved the day to day
practical relationships between states. And although
Catholic theology provided general ideas pertaining to
equity, much of its doctrine was no longer relevant to the
multiplicity of religious beliefs. Gentili, therefore,
adopted from the Roman law and Catholic theology the princi-
ples that were still useful, but he successfully shifted the
authority to a civil base.

The facility with which he shifted the authority was due

to his recognition of the importance of history. In the 22

Legationibus, he said, "our wisdom is nothing else than the

 

observation of results, and knowledge of the present and

prescience of the future are drawn from the past as from a

 

44Supra., pp. 158-60.

45Gentili, op. cit., pp. 7—8.
46Ibid., p. 17.

185

47

fountain head.” In fact, he pointed out that "history

has one advantage over all other sciences: it provides us

48 Gentili applied this

with both theory and practice."
philosophy of history to the 2g Jure Belli.~ He collected
facts from recent and ancient history, and he examined con-
temporary phenomena. From these observations, he adopted his
general principles for international law.

The specific use of historical sources in the 2g Eggs
Belli was also significant in light of his training as a
Bartolist. The Bartolists had frequently criticized the
humanists' use of ancient sources, while neglecting more
recent authorities. Gentili cited contemporary jurists and
historians, such as Bertachinus, Emilio, Giovio, Guicciardini,
and Maynus. Yet as Mattingly indicated Gentili utilized
classical authorities in the 22 Legationibus and the 22 £253_

49 He apparently was influenced

Belli_by almost twenty to one.
to some extent by his humanist colleagues at Oxford, for the
sources frequently cited--Aristotle, Augustine, Cicero,
Jerome, Livy, Plato, Plutarch, Tacitus, and Thucydides--were
authorities popular among humanists.

Gentili moved to London in 1600 to practice law. Spain

and the Netherlands were at war. Since England was a neutral

nation, many cases of belligerency were heard in the English

 

47Gentili, 25 Legationibus, II, p. 153.

481bid., p. 155.

49Mattingly, Renaissance Diplomacy, p. 249.

186

Court of Admiralty. Gentili was asked by Pedro de Zuniga,
the Spanish ambassador to England, to represent Spain's
interests. No doubt, his stand in the Mendoza case influenced
his appointment. Gentili kept his notes from those years
when he was an advocate for Spain. When he died on June 19,
1608, his brother, Scipio, inherited his papers. He had the
notes published under the title Hispanicae Advocationis~L£§£i
Egg in 1613. This was a record of the practical application
of the theory presented in Qg.gg£§i§glli. And it represented
the third part of Gentili's effort to establish international
law was a separate branch of law.

Anthony Wood referred to Gentili as "the most noted and
famous civilian, and the grand ornament of the university in

his time."50

Indeed, the exile from San Genesio had made a
significant contribution to enhancing the reputation of
Oxford through his systematized study of international law.
He examined the art of diplomacy and the role of the ambassa-
dor. He offered a comprehensive analysis of the law of war.
And he left a legacy of authentic cases that were applicable
to his ideas on war. Gentili was the most important inter-
national legalist of the sixteenth century. His practical
application of its principles prepared the way for Grotius.
Grotius's work, on the other hand, was not bound as closely
to the times as Gentili's had been. By synthesizing the

50WOOd, Athenae, II, p. 90.

187
precepts of his predecessors, particularly Gentili, Grotius
transcended his age with a philosophy of international law

that won for it universal acceptance.

5 DODDERIDGE AND THE CONCERN FOR LEGAL EDUCATION

The traditional system of educating common law lawyers
declined during the sixteenth century.1 The primary cause
for the decline has been identified as the extensive use of
the printing press. The neglect of the mooting exercises
at the Inns of Court, the legal institutions of learning,
has usually been cited as the significant effect of the
‘decline. With the introduction of printed books, legal lit-
erature was more accessible to the students and teachers.2
Students felt that they could avoid participating in the

lengthy process of readings, moots, and other aural learning

exercises that had become the traditional method of studying

 

1W.S. Holdsworth maintained that the decline started in
the sixteenth century. See W.S. Holdsworth, ”The Disappear-
ance of the Educational System of the Inns of Court,”
University gf_Pennsylvania Law Review, LXIX, (1920—21), pp.
201-22. Kenneth Charlton, on the other hand, cited evidence
of decline late in the fifteenth century. See Kenneth
Charlton, ”Liberal Education and the Inns of Court in the
Sixteenth Century,” British Journal of Educational Studies,
Ix, (1960), pp. 25- 3

 

2Some of the most useful literature printed was: the
Nautra Brevium (1496), a collection of precedents and writs
that appeared in seventeen French and eleven English editions
before 1600: La novel natura brevium (1534) of Anthony Fitz-
herbert that went through at least eight editions in the six-
teenth century: the Old Abridgement, a collection of statute
law, produced by John Lettou and William de Machlinia in the
early 14808: the Magnum Abbreviamentum (1528) by John Rastell
which was later jointly published with Robert Redman in a
number of English editions: the Year Books, regal yearly case
gatherings, were published in the 14808: and the Re orts,
private collections of cases with commentary, the most amous
of which were by Edmund Plowden (1571) and James Dyer (1585).

188

 

 

189

the common law. The teachers were also concerned about
time, but for a different reason. The hours spent in prepar-
ing to teach minimized the time that they could allot to
their private practice. Since the teachers were selected
from among the best lawyers, but not paid for their services,
they stood to lose a great deal of money in an age that was
considered highly litigious. Nevertheless, none was so
arrogant as to refuse an opportunity to read. Sir George
Buck pointed out that,

Readers...are called by the king out

of those houses of court to plead, serve

his highness at the Bars of his high

courts of the King's Bench, of the

Common Pleas, of the Exchequer, and

also of the Chancery, and Star-Chamber,

and other courts.
Reading the law was obviously an important means to advance
one's career.

Despite the decline in the educational system, the Inns
experienced a phenomenal increase in attendance during the
second half of the sixteenth century.4 There were several
factors that prompted this rise: a growth in population; a
prosperous gentry, merchant, and yeoman class due to agri-
cultural production, industrial development, and mercantile

expansion: and the increased use by government of men who

were trained in the law. No doubt, Sir Thomas Elyot's famous

 

3Sir George Buck, The Thirde Universitie-gf‘England, in
John Stow, The Annales, (London, 1615), p. 975.

4Wilfred R. Prest, The Inns of Court Under Elizabeth I

and the Early Stuarts, (London, 1972), p. 6.

190

treatise, The Book Named the Governor (1531), which was

 

published at least nine times during the sixteenth century,
had a significant impact on what many middleclass fathers
wanted for their sons. Elyot stated,

I think verily if children were brought

up as I have written, and continually

were retained in the right study of very

philosophy until they passed the age of

twenty-one years, and then set to the laws

of this realm...undoubted1y they should

become men of so excellent wisdom that

throughout all the world should be found
in no common weal more noble councellors.

5
Furthermore, Sir Thomas Wilson pointed out at the end of the
century that the sons of yeomen were not satisfied with
their future station in life on the land. He indicated that
these young men desired to become gentlemen. In order to
achieve that, Wilson indicated that a young man "must skipp
into his velvett breches and silken dublett and, getting to
be admitted into some Inn of Court or Chancery."6 Each of
these factors suggests that the time was right, the money
available, and the diverse needs and interests apparent for
an increase in the number of men pursuing an education in
England, especially one that would lead to a career in the
law.

The traditional method of learning the law was based

largely on the student's own personal initiative and

 

5Sir Thomas Elyot, The Book Named the Governor, ed. S.B.
Lehmbergp (London, 1962): PP. 52-53.

 

6Sir Thomas Wilson, ”The State of England Anno Dom. 1600,"
ed. F.J. Fisher, Camden Miscellany, XVI, (1936). P. 19.

 

191

proficiency. Since the Inns were only "nominally institu-
tions of learning but were clearly not institutions for
teaching," the increase in the enrollment and the decline
in the quality of the learning exercises posed a serious
problem for the future of legal education in England.7
Some guidance was imperative for assisting the law students
in considering the complexities of the common law.8 During
the late sixteenth and early seventeenth centuries, attempts
were made to provide assistance in the form of a method
book. The idea for such a book had originated with the
humanist movement. The goal was to provide an elementary
outline that would enable a person to master an art rapidly.
During the early years of the humanist movement, the elitist
phase, method books were directed at improving the qualities
deemed necessary for a Renaissance prince or nobleman. When
the exuberant phase of the movement became prominent, method
books were produced for the diverse and indigenous needs of
larger groups of people. Moreover, they were also being
adapted in the universities and utilized by the advanced
disciplines such as philosophy, medicine, and law. It was
most fitting that this type of educational tool was employed
to enhance the student's grasp of the legal principles

found in the common law.

 

7J.H. Baker, An Introduction to English Legal History,
(London, 1971): p. 76.

 

 

8It should be remembered that the common law lacked
a comprehensive textbook similar to that of Justinian's
Institutes.

192
Sir John Dodderidge, a justice of King's Bench, wrote

a method book entitled The English Lawyer (1631). It was

 

one of the last method books published during the age,
and was particularly important in light of what was to
happen to the Inns as centers of learning. Before assess-

ing the utility of The English Lawyer, however, it is

 

important to consider the educational philOSOphy that
produced such a book.

The humanists had developed a philosophy of education
that was inspired by the writings of the ancient Greeks
and Romans. Their concern was that society should reform
itself and thereby enable a greater number of people to
attain a higher quality of life. They felt that reform
could be achieved if the moral and ethical qualities of
individuals were improved, and they utilized rhetoric as a
vehicle for persuading and encouraging people to seek this
higher ideal. The humanists were particularly interested
in strengthening the individual's potential for achieving
an eclectic education. They prided themselves on having
already accomplished this goal within their own group.
They believed that through a responsiveness to ethics and
an appreciation for education, a synergistic effect could
be achieved in society. People could reach a common wisdom
that would benefit them first as individuals and collectively
as members of the Christian commonwealth. But in order to
achieve this desired end, a systematic method was needed

whereby people would have the desire to learn. The

193
adoption of this approach to education was a rejection of
the scholastic use of exegesis.

During the Renaissance, the concept of method was
divided into two categories, artistic and scientific.9 Both
concepts were derived from the philosophies of Plato and
Aristotle. Among Plato's works, the Phaedrus was usually
singled out for edification. Of particular interest was
Plato's method of discussing and analyzing concepts. He
classified sub-divisions by definition, and he identified
specific causes through demonstration.10 Aristotle's
contribution was his dialectic, the analysis of concepts

11 Humanists who

by logic or methodological discussion.
were interested in an artistic method were attracted to
Aristotle's Topics: while those intellectuals who were

concerned with science cited his Posterior Analytics.

 

Plato's and Aristotle's works did not offer any easy
approach to learning. But the humanists were disposed to
a number of precepts found in them. As a result, they
synthesized the ideas of the two philosophers and produced
their own methodology.

The humanist method standardized rules so that an art

or science was presented in a concise manner. The plan

 

9For a comprehensive treatment of the issue of method
during the Renaissance see Gilbert, Renaissance Cencgpts.

 

10Plato, Phaedrus, ed. Harold N. Fowler, (Cambridge,
Mass., 1960), pp. 531-71.

11Gilbert, op. cit., pp. 9-10.

194

stressed starting with the most general principles and then
moving to the more particular. Since humanism was a cultural
and literary movement, its members felt a special affinity
towards artistic endeavors.

As the humanists gained more converts, assumed more
faculty positions in the universities, and influenced the
methodology employed in the curriculum, a reaction developed
against their movement. The opposition consisted of philos-
ophers and scientists who rejected the humanist ideal of
the simple communicability of knowledge. They believed in
a more traditional method based on the need to develop
strict criteria and demonstrative proofs. Their aim was to
produce science or knowledge, and they readily admitted
that their method was not intended to simplify the learning
process for students or for the general public.

Towards the latter half of the sixteenth century, a
debate developed over the issue of method. It was one of
the first philosophical debates of the century that was
independent from and devoid of theological implications.

The controversy focused on the rival interpretations on
method gleaned from the ancient philosOphical sources.
Among the participants were Peter Ramus, Jacopo Zabarella,
Everard Digby, and Bartholomew Keckermann. These names
suggest the international concern that the issue had
generated.

The humanists also affected the teaching of law. This

was particularly evident on the continent where the study

195
of rhetoric and law had a long and close association. During
the twelfth century, for example, the University of Bologna's
famous law school had evolved out of its school of rhetoric.
As early as Petrarch, Renaissance intellectuals were stress-
ing the close affinity between rhetoric and law. Moreover,
humanists often cited the comparisons that Cicero had made
in his 23 Oratore between the study of rhetoric and law.
Another concern of the humanists was their emphasis on
philological studies. This helped to establish a new system
for revamping the traditional techniques of commentary on
legal texts. Finally, the humanists' desire to reduce
learning to a simple method was reflected in the books
produced to assist young law students. Johannes Jacobus.

Canis's De methodo studendi in utrogue jure (1476) and

 

Matthaeus Gribaldus's 23 methodo as ratione studendi libri

 

Eggg (1541) were two examples of this new genre.

The English common law lawyers were also affected by
the humanist philOSOphy of education, but the approach was
external and the effect indirect. Because the Inns of
Court were separate from the universities, the humanists
were unable to make a direct impact on the highly technical
study of law or to invade the closed faculty. The Inns
were, as F.W. Maitland explained years ago, "associations
of lawyers which had about them a good deal of the club,

something of the college, something of the trade union."12

 

12F.W. Maitland, Selected Historical Essays,-(London,
1957): pp. 125-26.

 

196

Therefore, whatever effect humanism.was to have was
bound to be subtle and indirect.

During the reigns of Henry VIII and Edward VI, the
humanists had encouraged the nobility and wealthy gentry
to read for university degrees, thus enabling them to
become gentlemen in fact as well as in name. By Elizabeth's
reign there was a rapid rise in university enrollments as
an interest in humanist ideals spread to larger numbers of
the gentry, yeoman, and merchant classes. Education had
become, as Louis Wright tells us, the "goal desired of the
generality of men."13 It was during this increase in enroll-
ments that the humanist philosoPhy was adapted to the
liberal arts curriculum. At about this time and due to the
pOpular trend of pursuing a university education, the kind
of student entering the Inns of Court changed. Many were
matriculating with either a degree-in-hand or at least a
few years of university study to their credit. Some of
these young men, having been a captive audience to the
humanist philosophy, were to retain aspects of this philoso-
phy long after the decline of humanism as a movement. The
intellectual concerns of Francis Bacon and Edward Coke,
discussed earlier, were a reflection of that impact.14
Furthermore, when the effectiveness of the learning

exercises at the Inns began to decline, some lawyers adapted

 

 

13Wright, Middle-Class Culture, p. 17.

14Supra., pp. 7-16 and 18-29.

197
the idea of the method book as an aid for improving the
common law system of education.

The earliest attempt at improving the professional
qualifications of English lawyers was Thomas Wilson's
(1525-1581) The A£§g_g£_Rhetorique-(1553). Wilson was a
doctor of civil law, who had attended Eton and was a fellow
of King's College, Cambridge. While he was at Cambridge
and later during the period of the Marian exile, Wilson
was associated with a number of English humanists, such
as John Cheke, Thomas Hoby, Roger Ascham, and John Ponet.
He served Queen Elizabeth as a privy councillor, ambassador,
and secretary of state.

Wilson was a product of the early elitist phase of the
humanist movement in England, and his scholarly activities
reflected that background. The universal tone and scope

of the The Arte of Rhetorique,-the first treatise on

 

rhetoric written in English, was typical of the elitist
phase. Wilson had been concerned with the manner in which
the scholastics had employed the Aristotelian dialectic in
their works at the expense of grammar and logic. He
addressed his book to all the professions that were dependent
on rhetorical skills. The work was divided into three parts.
The first dealt with a basic introduction to the subject.
What is an orator? What is rhetoric? And what is its
purpose? The second part was an analysis of the proper
manner of disposition, and third was concerned with

elocution. Wilson's debt to Cicero was obvious and also

198
typical of a humanist scholar. He employed the Ciceronian
pattern of rhetoric: invention, arrangement, style, memory,
and delivery. But he anglicized the precepts by using
English cultural and historical illustrations.

A significant portion of Wilson's treatise was devoted
to the legal profession. Because he was a lawyer, he offered
a number of legal analogies that emphasized the close rela-
tionship between rhetoric and law. Although the book was
presented from the point of view of a civilian, Wilson
displayed a familiarity with the common law and expressed
a marked respect for it. But because he was a civil
lawyer, he was not equipped to deal with many of the nuances
of the common law. One should not forget that the primary
aim of the treatise was to explain the utility of rhetorical
skills. In spite of its popularity, therefore, it could
only be of marginal assistance to the common law lawyers.15

In 1600, William Fulbecke, a graduate of Oxford and

a member of Gray's Inn, published A_Direction-9£ Preparative

 

 

32 the Study g£_th§_gawg; This book exemplified the
characteristics inherent in the exuberant phase of the
humanist movement, because it was addressed to a particular
group of people who were studying a technical subject.

It was not concerned with developing the qualities of the

universal Renaissance man as had been the case during the

 

15The Arte g; Rhetorigue-was published in 1553, 1560,
1562, 1565, 1567, 15 0, , and 1585.

199

elitist phase of the movement. Although the treatise
was a rather cursory introduction to the subject, it
merits consideration, because it was probably the first
method book produced specifically for common law students.
It was not only a useful guide for these students, but it
was also helpful for the civilians for whom it was also
essential to have an understanding of the common law.

Fulbecke eulogized the virtues of law in the first
chapter and explained the desired qualities of a law student
in the next. These included a fear of God, eloquence in
speaking, judicious opinions, and the possession of a mild
manner.16 He then defended the common law against the
charge that it was barbarous. This criticism had its ori-
gins in the humanist movement. Continental humanists wanted
to limit the Latin vocabulary to words found in Cicero's
writings. This was an expression of their admiration for
him, and their attempt to purify the language corrupted
during the medieval period. Some English purists had
suggested that the common law vocabulary, in particular,
needed reform. Fulbecke argued that the legal terms may
"be rude in sound, yet are they pregnant in sense."17 He
feared the meaning of the law would be distorted if tampered

with by philologist and grammarians. The author also

 

16Fulbecke, A Direction, pp. 10-16.

 

17Ibid., p. 21.

200

offered a bibliographical essay and presented a glossary
of elementary legal words and phrases.

In spite of his earlier criticism of the humanists'
efforts to reform the common law vocabulary, Fulbecke did
not reject their philosophy entirely. He was a product of
his age, one that had sought a middle ground between old
and new ideas, and of his Oxford education which was
influenced by the humanists. Fulbecke stressed the
importance of rhetorical skills and urged students to
practice their elocution. He also acknowledged the utility
of method: "Surely Methode is so convenient a thing in
the studie of the Lawe, that without it neither can the
understanding be well taught, nor the memorie well directed."18
Although he was aware of the method controversy that had
become a serious issue during his years at Oxford, Fulbecke
neither adopted a humanistic view nor a traditionalist
approach to method. Instead, he synthesized ideas gleaned
from Plato and Aristotle that he thought would facilitate
the study of law.19

Fulbecke's contribution was significant simply because
he was one of the first lawyers to write a method book
applicable to the needs of common law students. Yet

Fulbecke's book was too superficial. Law students needed

a more SOphisticated method book. Another Elizabethan,

 

18Ibid., p. 83.

19Ibid., pp. 81-84.

201

John Dodderidge, attempted to meet that need with The English

 

Lawyer .

John Dodderidge was born in 1555, the son of Richard,
a merchant from Barnstaple, Devon. John attended Exeter
College, Oxford, and graduated a bachelor of arts on
February 16, 1576. He read law at the Middle Temple and was
called to the bar on February 10, 1585. Fuller intimated
that Dodderidge was a versatile scholar, for ”it is hard to
say whether he was better artist, divine, civil, or common

lawyer."20

His active and diversified career was, indeed,
marked with honor and distinction.

In 1586, Dodderidge joined Henry Spelman, Robert Cotton,
and William Camden in establishing the Society of Antiquaries,
a group interested in historical studies. Dodderidge was
apparently active in the Society throughout his life and
produced three pieces of scholarship. He wrote two short
unpublished treatises: ”Of the Dimensions of the Land of

England," and "A Consideration of the Office and Duty of the

Heralds in England,” and his History of Wales, Cornwall, and

 

Chester was published posthumously in 1630. Dodderidge also
sat for his native Barnstaple in the Parliament of 1588-1589
and later as a representative of Horsham, Sussex from 1603-
1611. But it was his career in the law that gained for him

success and recognition.

 

20Thomas Fuller, The Histogy of the Worthies of England,
(London, 1840), I, p. 412.

202

The officers of his Inn, the Middle Temple, selected
Dodderidge in 1593 and again in 1602 to deliver lectures at
the New Inn.21 His lectures on church livings were later
published under the heading, A|Compleat Parson (1630). He
was also appointed in 1603 Lent reader at the Middle Temple.
This honor was usually reserved for those lawyers who had
been identified as candidates for the Bench. Dodderidge
increased his chances of becoming a judge further when he
received the degree of serjeant-at-law on January 20, 1604.
The serjeant's degree was the common law equivalent to a
doctor of civil law, and as a mark of distinction, it almost
assured a person's advancement in the legal profession.

After he received the degree, Dodderidge was appointed
serjeant to Henry, Prince of Wales. He held this post for
only nine months when he was named Solicitor General on
October 29, 1604. The high point of his tenure in office

came when he argued the famous post nati issue before the
22

 

House of Commons. Dodderidge was asked to resign the
office on June 25, 1607, to allow Francis Bacon, the King's
favorite, to assume the position. Dodderidge's accommodating
manner brought him a knighthood and the promise of

appointment to the next vacancy on the Court of King's

 

21$upra., p. 131.

22For a concise summary of the tnati issue see
Godfrey Davies, The Early Stuarts 1653?1660, (London,
1959) I PP. 8-100—

203

Bench. He waited five years before the King could fulfill
his promise. Yet on November 15, 1612, Dodderidge was
created a justice of King's Bench succeeding Sir Christopher
Yelverton. In February of the following year, he was awarded
a master's degree from his alma mater in appreciation of his
legal services rendered on behalf of the University. Foss
tells us the "degree was conferred upon him in (a) dis-

23 The

tinguished manner" at the hall of Serjeant's Inn.
chancellor, two proctors, and five academicians from Oxford
were in attendance.

Dodderidge brought to the Bench a different perspective
on the role of the judiciary from that espoused by Edward
Coke. Coke, who joined Dodderidge on the King's Bench as
its Chief Justice in 1613, sought to establish the principle
of an independent judiciary which would be the guardian of
the common law, thus averting the threat of the King ruling
above law. Dodderidge, however, supported the traditional
theory that judges held their office under the Crown and
at the pleasure of the sovereign. Although he never
addressed himself to this issue in written or oral arguments,
his actions suggest two possible reasons for maintaining
the status quo. He realized that the Crown, as the leading
employer of lawyers, could dismiss at will obstinate judges.

Having worked so hard to achieve this prestigious position,

 

23Edward Foss, The Judges of England, (London, 1857),
VI, pp. 307-08.

204

Dodderidge, at fifty-eight, had no intention of terminating
his career on the Bench. The majority of judges tended to
agree with him. This does not mean, however, that he placed
his own personal interests ahead of the welfare of the
commonwealth. The few evaluative statements that we have
of his character would repudiate that possibility. Sir
George Croke, Dodderidge's successor on King's Bench, called
him a "learned and grave judge."24 Bacon likened his
judicial arguments to that of "a good archer,...,he shootes
a fayre compasse."25 And Fuller remarked, "His soul con-
sisted of two essentials, ability and integrity, holding
the soule of Justice with so steady a hand, that neither
love nor lucre, fear or flattery, could bow him on either
side."26 The other reason for Dodderidge's position may
well have been his awareness that the parliamentarians, who
wanted to curtail the King's prerogative power, might
have substituted their own controls. As he understood it,
the extremist element in Parliament would have the means
of undermining the effectiveness of the legal system, more
than any monarch.

Because of his views on the judiciary, Dodderidge

accommodated the King's wishes whenever they did not

 

24Sir Harebotle Grimstone, ed. The Reports 9: Sr. George
Croke Knight, (London, 1657), unpaginated.

 

 

25John Bruce, ed. Diagy 9: John Manningham, (London,
1868), p. 62.

 

26Fuller, 22° cit., p. 412.

205

contravene the law. During the course of Peacham's Case
(1615), for instance, James wanted his Attorney General,
Francis Bacon, to conduct a poll among the judges regarding

27

their opinions in the case. Chief Justice Coke argued that

such a request was against established custom. Dodderidge,
on the other hand, was ”very ready to give opinion in secret."28
Another example of his accommodating manner occurred during
the summer of 1623, when the possibility of Prince Charles's
marriage to the Catholic Spanish Infanta posed a serious
problem due to England's recusancy laws. ”Justice Dodderidge,"
wrote Walter Yonge in his diary, "saith he thought they should
find out a way by law to dispense with the statute against
recussancy."29
The decision in Darnel's Case (1627) created the greatest
furor among the King's opponents.30 Five men refused to con-
tribute to a forced loan and were imprisoned. They applied
for a writ of habeas corpus in order to have the case pre-
sented before the Court of King's Bench. They also maintained
that they should be released on bail, since they were impri-

soned without the authorities showing cause. The Attorney

General thought otherwise. Because the law was so obscure

 

27For a brief description of the case Supra., pp. 26-27.
28Bacon, Letters, XII, pp. 100-01.

29George Roberts, ed. Diagy 9: Walter Yonge, (London,
1848), p. 69.

 

30Davies, 92. cit., pp. 38-40.

206
on this point, the judges postponed hearing the case.
Meanwhile, the men remained in prison, until the king
released them early in 1628. In the same year King Charles
called for parliamentary elections. The major issues during
the campaign were those generated from Darnel's Case. The
parliamentarians argued that the judges had endorsed forced
loans and indefinite periods of imprisonment. In April the
Justices were brought before the newly assembled House of
Commons to explain their actions. Dodderidge, now old and
infirm, presented his answer on April 21.

It is no more fit for a Judge to decline
to give an account of his doings, than

for a Christian of his faith, God knoweth,
I have endeavoured always to keep a good
conscience; for a troubled one, who can
bear? The kingdom holds of none but God,
and Judgments do not pass privately in
chambers, but publicly in court, where
every one may hear, which causeth judgment
to be given with maturity. Your lordships
have heard the particulars delivered by my
brethern, how that counsel being assigned
to those four Gentlemen, in the latter end
of Michaelmas Term their cause received
hearing; and upon consideration of the
Statutes and records, we found some of
them to be according to the good old law
of Magna Carta; but we thought, that they
did not come so close to this case, as
that bail should be thereupon presently
granted...I have now sat in this court
fifteen years, and I should know some-
thing; surely, if I had gone in a mill so
long, some dust would cleave to my cloaths.
I am old, and have one foot in the grave,
therefore I will look to the better part,
as near as I can. But 'omni habere in
memoria, et in nullo errari, divinum
potius est quam humanum.

 

31William Cobbett, Cobbett' 3 Complete Collection of
State Trials, (London, 1809), II, p. 163.

 

 

207

Dodderidge, wearied by the ordeal, returned to his home
near Egham and died on September 13 at the age of seventy-
three. He was buried in Our Lady's Chapel at Exeter
Cathedral. He must have realized during the spring proceed-
ings that the England he understood was passing away. He
was left among a group of anxious men who wanted to trans-
form the government into something alien to his thinking.

Although Dodderidge was married three times, he had no
children. His nephew, John Dodderidge, discovered his

uncle's manuscripts and published them. The English Lawyer
32

 

 

was one of these works. It was probably the last and most
effective method book produced for English law students. It
was written sometime during the 16205 and reflected the
author's appreciation of the humanist philosophy of educa-
tion. Dodderidge not only showed an ability to synthesize
the wisdom of the ancients, English legal writers, and
humanists, but he also brought to the work the experience
of a practising lawyer and the reputation of a distinguished
judge. These factors underlined the treatise's significance
and its contribution to legal education.

Dodderidge had attended university when the humanist
philosophy was in its ascendancy. His book demonstrated
a man educated beyond the purview of the common law and

underscored his appreciation of the humanists. He pointed

out that,

 

32The English Lawyer was published in 1631. The second
half of the treatise, entitled "Methodus studendi" was pub-
lished separately in 1629 under the title, "The Lawyer's
Light."

 

 

208

Since the materiall subject of the Law is

so ample (as indeed it is) containing all

things that may be controverted. The study

of the Lawes then must of necessity stretch

out her hand, and crave to be holpen agg

assisted almost of all other Sciences.
Dodderidge encouraged law students to synthesize the knowl-
edge acquired in their liberal arts curriculum and in their
common law readings with their practical experiences and
personal observations in the courts.

In the first four chapters of his book, he stressed the
importance of rhetorical skills. He did not separate the
qualities of a good orator into the five divisions of Cicero
as Wilson had. This was not unusual for many Renaissance
writers of rhetoric tended to adapt the number of principles
to fit their particular needs, while still acknowledging
their debt to Cicero. Dodderidge identified three qualities.
He maintained a lawyer must possess a sharpness and dexterity
of wit, because he would have to be able to refer to laws at
a moment's notice. He said,

It behooveth the Lawyer with a quicke
conceit to comprehend the cause of his
Client once opened, throughly to under-
stand the drifts of his Adversaries reasons
at the first urged, readily both to invent,
and fitly to apply his provided proofes

and arguments to the point in question: all
which are the effects of an excellent wit,

and with the which we doe so much desaie
our learned Lawyer should be adorned.

 

33John Dodderidge, The English Lawyer, (London, 1631),
p. 35.

 

341bid.. p. 5.

209

A sound memory was also essential. Although this was a
quality obviously recognized by lawyers, Dodderidge emphasized
the ability to organize logically and commit to memory one's
thoughts. He cited Plato, Aristotle, Augustine, Bracton,
and others to support this contention. His use of a diversity
of sources reflected the breadth and depth of his own study.
The final attribute that the student should cultivate was
an eloquent delivery. According to Dodderidge it should be
dignified, discrete, without affectation, and agreeable to
the matter at hand.35

The humanist attempts to purify the Latin language were
also acknowledged and supported by Dodderidge. He was
critical of the manner in which the medieval legal writers
had corrupted the language. He praised the efforts of the
legal humanists: Alciati, Bude, and Cujas for purifying

the civil law by their criticism of the mos italicus.

 

Dodderidge urged the common law students to study the
language, because many significant pieces of legislation
and important legal treatises were written in Latin. He
specifically mentioned the laws of Edward the Confessor,
Magna Carta, the Statutes of Merton, Westminister, and
Gloucester and the treatises of Glanville, Fleta, Bracton,

36

and Fortescue. But he cautioned the students against

becoming too eloquent at the expense of distorting the true

 

35Ibid., pp. 24-25.

36Ibid., pp. 40-44.

210

meaning of the law: "for what profiteth a Golden key, if
it cannot open, and what hurt is it to use a wodden key, if
it will open, when there is no other end of both, but to
open that which was shut."37
Furthermore, Dodderidge urged the students to apply the

art of logic to their study of the laws of England. He
maintained,

To obtaine the knowledge of any Science

two things are required, first, the certaine

dependency and coherence of the parts of the

matter to bee knowne, and secondly, the

aptnesse of the instrument whereby we doe

apprehend and know the same...§3ese things

doth Logicke minister unto us.
The laws of England were not always coherent; they were con-
clusions drawn from the law of nature or principles based on
custom and reason. Yet they lacked a systematized compila-
tion similar to the civil law. Logic, Dodderidge argued,
would facilitate the study of the law, because, it "teacheth
a man to collect the Axiomes, principles, grounds and rules
observed in that Art which he studieth, and being so collected

aptly to dispose the same."39

He cited many classical
authors, among them Plato, Aristotle, and Cicero, to endorse
his contention to the utility of logic. Moreover, logic
would improve and strengthen one's arguments in a court of

law, for it would teach the correct manner of arranging an

 

37Ibid., p. 54.
331bid., p. 64.

39Ibid., p. 62.

211

argument through the definition and division of parts. It
would also assist in resolving imperfect arguments.
Dodderidge spent a considerable amount of time in citing
examples of land, criminal, and constitutional law on how
this could be achieved.40
In the last section of his book, entitled "Methodus

studendi," Dodderidge presented some guidelines whereby the
student could employ a method for collecting propositions
and thus facilitate the study of the law. He criticized
past practices when he pointed out,

To adhere therfore and wholly to respect

particular cases, without any observation

of the generall Rules and Reasons, and to

change the memory with infinite singulari-

ties, is utterly to confound the same; a

labour of unspeakable toyle, & wherin we

shall never free us from confusion: but

engender in our selves, that wrong

opinions which many have (amisse) enter-

tained, that Ehere is nothing certaine

in our Lawes. 1
His criticism of the disorganized state of the law was
similar to Bacon's. But, unlike Bacon, Dodderidge did not
propose establishing a commission to reform the law.42
Rather he urged the student to compile a common place book.
This was not a new idea. Although students had been

encouraged for years to compile observations on cases

studied or heard in court, now they tended to rely upon the

 

4°Ibid.. pp. 107-43.

411bid., pp. 259-60.

42Supra., p. 11.

212
published Reports of Plowden and Dyer. Dodderidge considered
the common place book as an instrument for compiling princi—
ples deduced from the common law. This would not only
assist the student in understanding the law by refining
complex cases to short and lucid statements, but it would
also serve the individual as a useful reference manual once
he was in practice.

The English Lawyer was similar to the method books that

 

precede it, for it lacked originality. It was another attempt
to glean from the classical sources ideas on method. In
fact, a resolution of the method controversy was not forth-
coming until the middle of the seventeenth century when
interest in scientific investigation became significant.
Nevertheless, it was a useful treatise. Dodderidge
recognized the utility of the humanist philosophy of educa-
tion and was able successfully to modify and apply it to
the needs of the English law student. He offered the
students a more sophisticated introduction than had been
previously written for the study of the common law. It was
published at a time when the need for such a book was
particularly apparent. Its utility became even more
obvious with the outbreak of civil war. Between 1642 and
1647, the Inns of Court were closed. Although attempts
were made after the war to open them, the support was less
than enthusiastic. Students had begun to study law on an

individual basis with accommodating lawyers. They also

213

read law books and attended court proceedings.43 Since
the individual was left largely to his own resources, the
need for such a guide became particularly acute.

Dodderidge's The English Layyer helped to fill that need.

 

 

43This system of learning the law was retained until
the 18303.

6 CONCLUSION: TOWARD THE TWILIGHT OF DAWN

By the early eighteenth century, Alexander Pope offered
a new perspective of man's relationship to God, the universe,
and society in his philosophic poem, "Essay on Man" (1732-34).
He wrote, .

Know then thyself, presume not God to scan,
The proper study of mankind is man.

Placed on this isthmus of a middle state,

A being darkly wise, and rudely great:

With too much knowledge for the sceptic side,
With too much weakness for the stoic's pride,
He hangs between: in doubt to act, or rest;
In doubt to deem himself a god, or beast:
Born but to die, and reasoning but to err;
Alike in ignorance, his reason such,

Whether he thinks too little, or too much:
Chaos of Thought and Passion, all confused:
Still be himself abused or disabused;

Created half to rise, and half to fall;

Great lord of all things, yet a prey to all;
Sole judge of truth, in endless error hurl'd:
The glory, jest, and riddle of the world!1

Pope was living in a new intellectual climate that emerged
as a result of the seventeenth century scientific revolution.
This revolution, more than any other single movement, trans-
formed the climate of opinion from a medieval view to a
modern one. Physics replaced metaphysics. Philosophy was
dominated by scientific analysis and reason rather than myth

and revelation.

 

1Alexander Pope, "Essay on Man," in Collected Poems,
ed. Bonamy Dobree, (London, 1956). PP. 189-90.

 

214

215

The emergence of this new intellectual climate was
affected by a variety of factors. The pressure of signifi-
cant events on the status quo, such as the Renaissance and
Reformation, was a striking influence. The slow deliberate
change in political theories and legal issues brought about
by the rise of the nation states, voyages of discovery, and
the Reception of the Roman law was another. The re-examina-
tion and reshaping of common assumptions about God, the
universe, man, and society also inspired a new point of view.
Throughout the sixteenth century, the humanist movement
encouraged this subtle significant trend that enabled philo-
sophical reasoning to transcend theological speculation.

The Elizabethan legalists were both products and
creators of the humanist movement. They realized that the
medieval view was no longer applicable to the present. By
their acceptance of this fact, the legalists sought to
resolve the conflicts of their age that had been created
by the decline in the theory of medieval universalism and
by the emergence of the events of the sixteenth century.
Their search for a new beginning led to an exploration of
the use of history and the comparative method, the opening
of a new field of international law, and the examination
of the condition of their educational system. Each pro-
vided a personal approach and interpretation. Although
they varied from one another, the legalists did address
themselves to the same question, a resolution of the issue

of authority.

216

Obviously, authority suggests a variety of meanings
and the principles of authority are dependent on the kind
of authority being considered. In the case of the
Elizabethan legalists, they tended to focus on issues that
political and legal authority generated. They were con-
cerned with the practical consequences that resulted from
the changing intellectual climate. Lambarde, Fulbecke, and
Ridley attempted to make distinctions between the spheres of
influence found in the common and civil laws. Their attention
was directed to the practical application of these laws and
the courts that administered them. Dodderidge was interested
in a different type of authority, a conceptual form, an.
ideal. His concern involved assuring the primacy of the
common law by improving its educational process. Gentili
focused his attention on a broader interpretation of
authority that was not limited to England. He was concerned
with developing an action model for a system of inter-
national law. Although they were not always original in
their efforts, the legalists did attempt to be creative
and display a degree of sensitivity to their particular
issue.

”In a transitional period such as the Renaissance,"
Neal Gilbert suggested, "historians like to look for figures
who can be called either 'modern' or 'reactionary' (in this

case, 'medieval') and tend to neglect those who genuinely

217

belong to the transition period."2 Gilbert's perceptive
observation explains, perhaps, in part why the Elizabethan
legalists have not received the attention of modern scholars.
Each was concerned with the immediacy of a particular issue
that was critical to him at the moment. Lambarde's treatise
was designed to explain the historic evolution of the common
and prerogative courts. The delicate balance of judicial
authority that existed between them was a significant issue
during the late sixteenth century. Fulbecke and Ridley
offered logical explanations for the retention of the civil
law. This system of jurisprudence had come increasingly
under attack from the common law lawyers and the Puritans
during the early years of the seventeenth century. Gentili
focused his attention on systematizing international law
that had become essential due to the development of autonomous
nation states. Dodderidge composed a method book for common
law students to facilitate their comprehenSion of the law.
This was important as the system of legal education declined
at the Inns of Court during the sixteenth century and
disappeared altogether as a result of the civil war in the
seventeenth century.

Edward Coke belongs to this "transitional period" too.

He was concerned for the state of the common law in the

 

2Gilbert, Renaissance Concepts, p. xxiii.

218
commonwealth because of the King's increased use of his
royal prerogative power. More than any other person dis-
cussed in this study, Francis Bacon deserves the title,
"modern". He concentrated his efforts on developing a new
approach that would refine the laws of England. And his
method would be useful beyond the period for which it had
been originally developed.

A comparison of the purpose and method of the lesser
legalists with those of Bacon-and Coke offers some interest-
ing distinctions. Coke relied on the past to explain and
defend the unique position of the common law. His method
was dependent on historical precedents found in the common
law, statutes of the realm, and histories of England.
Lambarde, Fulbecke, and Ridley employed a similar approach,
for they utilized historical sources extensively. Unlike
the others, Lambarde avoided involving himself in the major

3 This was partly due to his

political issues of the day.
scholarly training during the elitist phase of the humanist
movement. Also his career as a justice of the peace

directed his attention to local political issues. Fulbecke,

Ridley, and Coke were motivated in part by specific politi-

cal issues of the time. Dodderidge's approach was an

 

3The only time Lambarde involved himself in a signifi-
cant political issue of the central government was during
a parliamentary speech on November 8, 1566 over the
succession question. See Simonds D' Ewes, The Journals of
all the Parliaments During the Reign of Queen Elizabeth _both
of Eh%_House of Lords and House of Commens, (London, 1682),
p. 12

 

 

 

 

219

obvious adaption of humanist ideas on method. His purpose
was not unlike Coke's, for his goal was to maintain and
assure a vigorous common law. Yet the politics of
Dodderidge's judicial stance were opposite to those of the
famous Chief Justice. Gentili's interest in system was
similar to Bacon's. He collected facts by examining
phenomena and then arrived at general rules or conclusions.
Although Gentili did not articulate his views on the role
of the civil law in England, he probably would have sided
with the Opinions of Fulbecke, Ridley, Dodderidge, and Bacon.

The Elizabethan legalists had begun to examine critically
the conflicts of authority that had been created as a result
of the change in the intellectual climate of the sixteenth
century. They were among that group of men who responded
to the challenge to re-examine and reshape the common
assumptions of their age. J.B. Bury referred to this group
of thinkers as men "living in an intellectual twilight...the

twilight of dawn."4

Through their insistence on re-examining
the past, the Elizabethan legalists contributed to the for-

mation of a process that led to the scientific revolution.

 

 

4J.B. Bury, The Idea of Pr [ress; An Inquiry into Its
Origins and Growth, (London, I§§o$, p. §§.

 

BIBLIOGRAPHICAL ESSAY

BIBLIOGRAPHICAL ESSAY

This essay is designed to acquaint the student with a
critical appraisal of the sources and studies essential to

an examination of the Elizabethan legalists.
Bacon

The best edition of Bacon's works is The Works of Francis

 

Bacon, edited by James Spedding, Robert Leslie Ellis, and
Douglas Denton Heath, 15 vols. (Boston, 1882) and The Letters

and Life of Francis Bacon, edited by James Spedding, 7 vols.

 

 

(London, 1872).

S.R. Gardiner's article in the Dictionary of National

 

 

Biography is important for identifying biographical sources
on Bacon. W.S. Holdsworth, "Francis Bacon's Decisions,"

Law QuarterlyReview, XLIX, (1933), pp. 61-69 examines his

 

 

ideas on equity. Leonard F. Dean, "Sir Francis Bacon's

Theory of Civil-History-Writing," Journal of English Literary

 

History, VIII, (1941), pp. 161-83 is a study of his scattered
notions about a theory of history which the author claims

has been a neglected aspect of Bacon's thought. Paul H. Kocher,
"Francis Bacon on the Science of Jurisprudence," Journal of

the History 9: Ideas, XVIII, (1957), pp. 3-26 is very useful

 

in considering his proposals to codify English law. The

most provocative study of Bacon's thought is Fulton H.

220

221

Anderson, Francis Bacon His Career and His Thought (New York,

 

1962).

Coke

Coke's views on the common law are found in his Institutes

 

g; the Laws g; England, 4 pts. (London, 1628-1644). His
Reports, 13 pts. (London, 1600-1615) were edited by George
Wilson in 1777 and appeared in 7 volumes.

G.P. MacDonell's article in the Dictionary 9f National

 

 

Biography should be consulted. The best biography of his

career, however, is Catherine Drinker Bowen, The Lion and the

 

Throne The Life and Times 2£.§i£ Edward Cgkg (Boston, 1956).
Henri Levy-Ullmann, The English Legal Tradition (London, 1935)
is also useful. Theodore F.T. Plucknett, ”The Genesis of
Coke's Reports," Cornell Law Review, XXVII, (1942), pp. 190-
213 contrasts Coke's and Plowden's methods and purposes for

reporting cases. S.B. Thorne, Sir Edward Coke, 1552-1952

 

 

 

(London, 1957) points out the significant develOpment of the
law throughout the sixteenth century and Coke's role during
this critical period. Originally, this was a Selden Society

lecture presented in 1952.
Lambarde

Although Lambarde was a prolific writer, his works have
never been compiled into a standard collection. The
Archaionomia gr Apxaionomia sive depriscis anglorum legibus

libri seromone Anglico (London, 1568) appeared in only one

 

II! III ill-Iii;

222

edition. A Perambulation 9: Kent (London, 1576) was re-

 

published in 1596, 1656, and 1826. The Eirenarcha: gr the

 

office 9; the justice 2; peace (London, 1581) was reissued

 

thirteen times between 1582-1620. The Duties g: Constables,

 

 

Borsholders, Tythingmen, and such other lowe ministers g: the
peace (London, 1582) appeared in eight editions during the
sixteenth century and ten editions during the seventeenth

century. It is often bound with the Eirenarcha. Lambarde's

 

rather obscure work, The Seuerall Offices 9: churchministers

 

 

and Churchwardens, and ouerseers for the poore, surueighours

 

 

g: the highwayes, and distributors g: the prouision against
noysome fowle and vermin was added to the 1610 edition of

The Duties gf_Constables. The Archeion gr, 3 Discourse upon

 

 

 

the High Courts gnyustice in England (London, 1635) was
completed in 1591. Two editions appeared in 1635 with Thomas
Lambarde's edition generally recognized as the authoritative
one. This edition was recently republished by Harvard
University Press in 1957 edited by Charles H. McIlwain and
Paul L. Ward.

Gordon Goodwin's article in the Dictionary 9; National

 

Biography is helpful for identifying additional source
materials. The only biography of Lambarde is William Dunkel,

William Lambarde, Elizabethan Jurist 1536-1601 (New Brunswick,

 

 

1965). Unfortunately, it is a rather superficial effort.
Conyers Read, "William Lambard's 'Ephemeris', 1580-1588,"
Huntington Library Quarterly, XV, (1952), pp. 123-58 dis-

cusses Lambarde's work as a justice of the peace. William

223

Lambarde and Local Government, edited by Conyers Read

 

 

(Ithaca, 1962) examines Lambarde's works and his significance
to the intellectual community. Paul L. Ward, "William

Lambarde's Collections on Chancery," Harvard Library

 

Bulletin, VII (1953). PP. 271-98 discusses this little pub-
licized aspect of his scholarship. R.J. Schoeck, "Early
Anglo-Saxon Studies and Legal Scholarship in the Renaissance,"

Studies ip the Renaissance, V, (1958), pp. 102-10 sees the

 

importance of the role of the Society of Antiquaries and
Lambarde's in shaping the intellectual life of legal

scholarship.
Fulbecke

Fulbecke wrote three significant treatises. A Direction

 

gr Preparative pg the Study 9: the Lawe (London, 1600) was

 

 

 

republished in 1620. T.H. Stirling then edited the work in

1829. A Parallele gr Conference 9: the Civill Law, the

 

 

Canon Law, and the Common Law pf this Realme pf England

 

 

 

(London, 1601) was expanded and published in the following

year as The Second Part pf the Parallele, gr Conference g:

 

 

the Civill Law, the Canon Law, and the Common Law 9; this

 

 

Realme pf England (London, 1602). The first part was re-
published in 1618. Fulbecke also wrote two minor works Ag

Historical Collection pf the Continual Factions, Tumults, and

 

Massacres pf the Romans and Italians during the space pf one
hundred and twentie yeares next before the Peaceable Empire
g£_Augustus Caesar,...beginning where the Historie pf T.

Livius doth end, and ending where Cornelius Tacitus doth

224

begin (London, 1601); and The Pandectes pf the Law of

 

Nations, contayning severall discourses pf the qgestiones...g£

 

 

 

 

law, wherein the nations 9; the world doe consent and accord

 

 

(London, 1602).
The only article that examines Fulbecke's career is

Francis Watt's work in the Dictionary 9: National Biography.

 

Ridley

Ridley wrote only one treatise, A_View pf the Civile and

Ecclesiastical Law (London, 1607). Three other editions were

 

produced in 1634, 1676, and 1684. The best edition is the
original.

W.A.J. Archbold's article in the Dictionary pf National

 

Biography is helpful in highlighting Ridley's very active
career. David Lloyd, The Statesmen and Favourites 9: England
Since the Reformation (London, 1665) is also useful. Roland G.

Usher, The Reconstruction g£_the English Church, 2 vols.

 

(New York, 1910) offers some facts about Ridley as a legal
representative for the ecclesiastical hierarchy. And

Christopher Hill, Economic Problems g; the Church (London,

 

 

1956) discusses briefly Ridley's role as a defender of the

Anglican church.
Gentili

Gentili's major works have all been republished in The
Classics of International Law series under the general

editor, James Brown Scott. 22 Legationibus Libri Tres,

 

translated by Gordon J. Laing, 2 vols. (New York, 1924)

225
appeared with an important introduction by Ernest Nys.
29 Legationibus was published on three previous occasions in

1585, 1594, and 1607. 23 Jure Belli Libri Tres, translated

 

by John C. Rolfe, 2 vols. (Oxford, 1933) included a provoca-
tive introduction by Coleman Phillipson. 22 Jure was
originally published in 1598. It was then published in 1877

edited by T.E. Holland. The Hispanicae Advocationis Libri

 

 

ng_was translated by Frank Frost Abbott, 2 vols. (New York,
1921).

Thomas Erskine Holland was largely responsible for point-
ing out Gentili's contribution to international law. Holland
wrote the article for the Dictionary 9: National Biography.
The lecture on Gentili that he delivered at Oxford was pub-

lished Ag Inaugural Lecture gp_Alberico Gentilis (London,

 

1874). He compared Gentili with his contemporaries in

Studies ip_International Law (London, 1898). Each of these

 

works should be consulted. Ernest Nys, Lg Qrgip 22 L3 Guerre
25 Les Precurseurs 23 Grotius (Bruxelles, 1882) and his

Egg Origins gg Qrgip International (Bruxelles, 1894) are
useful in examining Gentili's career. Much of what Nys has
to say about Gentili has been modified and translated in his

introduction to the 23 Legationibus cited above. Coleman

Phillipson, The Great Jurists g; the World (Boston, 1914)

 

 

offers an important analysis of Gentili. Many of Phillipson's
comments also appear in his introduction to the 23 Jure.

Gezina Hermina Johanna Van Der Molen, Alberico Gentili and

 

the Development g: International Law (Amsterdam, 1937) is

 

especially helpful in analyzing Gentili's minor works.

226
Finally, Garrett Mattingly, Renaissance Diplomacy (Baltimore,
1955) is a good overview of the issue of international
relations in the sixteenth century. And Francois L. Ganshof,

The Middle Ages A History gr International Relations (New

 

York, 1970) may also be useful.
Dodderidge

Dodderidge's The English Lawyer (London, 1631) was pub-

lished only once. His History Q; the Ancient and Moderne

 

Estates Q: the Principalitygr Wales, Dutchy gr Cornwall,
and Earldom gr Chester (London, 1630) was republished in 1714.

J.M. Rigg's article in the Dictionary gr National

 

Biography is the only available narrative of Dodderidge's
life. Some additional facts about his career can be gleaned
from the Diary 9r Walter Yonge, edited by George Roberts

(London, 1868) and the Diary 9: John Manningham, edited by

 

John Bruce (London, 1868). Dodderidge's reply to the habeas

corpus issue is available in William Cobbett, Cobbett's

 

Complete Collections gr State Trials, vol. 2 (London, 1809).

 

Also a brief description of The English Lawyer is found in

J.G. Marvin, Legal Bibliography (Philadelphia, 1847).
Contemporaries

Materials dealing with the contemporaries of the
Elizabethan legalists should also be considered. Both
treatises and secondary studies are available.

Thomas Wilson, The Arte gr Rhetorique, edited by

 

Robert W. Bowers (Gainesville, 1962) is a facsimile of the

227
1553 edition. The 1560 edition of the §£E§.2§ Rhetorique,
edited by G.H. Mair (London, 1909) is the best edition and
Mair's introduction is useful. Thomas Wilson's other work,

The Rule gr Reason, conteinyng the Arte gr_L9gigue (London,

 

 

1551) should be consulted.
Robin Flower, "Laurence Nowell and the Discovery of

England in Tudor Times," Proceedings Q: the British Academy,

 

 

 

XXI, (1935), pp. 47-73 is important for Nowell's influence on
Lambarde. There are a number of editions of Richard Hooker,

gr the Lawes gr Ecclesiasticall Politie. E.T. Davies, The

 

 

Political Ideas gr Richard Hooker (London, 1948) is perceptive

in analyzing Hooker's ideas. Sir Julius Caesar, The Ancient

 

State, Authorite, and Proceedings Q; the Court grngguests

 

 

(London, 1597) examines one of the controversial prerogative
courts. Leadam in his introduction to Select Cases EE'EEE
QQEEE.2£ Requests 1497-1569, edited by 1.8. Leadam (London,
1898) discusses Caesar's role in the court and the issue of

prerogative. John Cowell, The Interpreter (Cambridge, 1607)

 

should be consulted in any study of the civilians in England
and the issue of the prerogative. S.B. Chrimes, "The Consti-

tutional Ideas of Dr. John Cowell," English Historical Review,

 

 

LXIV, (1949), pp. 461-83 is a provocative examination of
Cowell. Another important English civilian was Arthur Duck.

He wrote 22 Usu g Authoritate Juris Civiles Romanorum, £2

 

 

Dominis Principum Christianorum (London, 1653). This was
translated by John Beaver in 1714.

Sir Thomas Smith, 22 Republica Anglorum, edited by L.

 

Alston (London, 1906) and his A Discourse Q: the Commonwealth

 

 

 

228

o£_This Realm 9: England, edited by Mary Dewar (Charlottes-

 

ville, 1969) are also helpful in studying the Elizabethan
period. Two works are useful in evaluating Smith's signifi-

cance. Mary Dewar, Sir Thomas Smith A Tudor Intellectual

 

gr Office (London, 1964) and George L. Mosse, "Change and
Continuity in the Tudor Constitution," Speculum, XXII, (1947),
pp. 18-28.

Henry Spelman's works have appeared in The English Works

 

gr Sir Henry Spelman, K2- and The Posthumous Works gr Sir

 

Henry Spelman, edited by Edmund Gibson (London, 1723).
F.M. Powicke, "Sir Henry Spelman and the 'Concilia',"

Proceedings 9r_the British Academy, XVI, (1930), PP. 345-79

 

 

discusses Spelman's place among the historians of the six-

teenth century. Spelman is also examined in English Historical

 

Scholarship r2 the Sixteenth and Seventeenth Centuries, edited

by Levi Fox (London, 1956). Jean Bodin, Method for the

 

Easy Comprehension gr History, translated by Beatrice Reynolds
(New York, 1945) explains his philosophy of history. Oeuvres

PhiIOSOphigues Q2 Jean Bodin, translated by Pierre Mesnand,

 

vol. 5 (Paris, 1951) should also be consulted.
Elizabethan intellectual history

Humanism was the most significant intellectual movement
of the sixteenth century. A few works have focused on the
contributions of the English humanists. Douglas Bush, Egg
Renaissance and English Humanism (Toronto, 1939) stressed the
medieval origins and christian elements of early humanism

and the application of these qualities to public life.

229

James K. McConica, English Humanists and Reformation

 

 

Politics Under Henry VIII and Edward 2; (Oxford, 1965) is
a useful companion volume to Bush's work. Arthur B.

Ferguson, The Articulate Citizen and the English Renaissance

 

 

(Durham, N.C., 1965) examines the humanists' contributions

to secular thought. Louis B. Wright, Middle-Class Culture

 

i2 Elizabethan England (Ithaca, 1958) is important for its

 

analysis of the intellectual background of the common people

in the Elizabethan age. Foster Watson, The English Grammar

 

Schools rg 1660 Their Curriculum and Practice (London, 1908)

 

was helpful in explaining the Renaissance influence in early
modern education.

A well accepted thesis is that Englishmen borrowed ideas
from the continent. Three early works are addressed to
illustrate this fact. Lewis Einstein's two works, Egg

Italian Renaissance lg England (New York, 1902) and Tudor

 

 

Ideals (New York, 1921) and Sidney Lee, The French Renaissance

 

i2 England (London, 1910).

The humanists made a significant contribution to a new
theory of history. One of the more provocative articles on
this topic is Myron P. Gilmore's, "Freedom and Determinism in
Renaissance Historians," Studies $2 the Renaissance, III,
(1956): PP. 49-60. This was followed by his equally important
work, Humanists and Jurists Six Studies rg the Renaissance

(Cambridge, Mass., 1963). Also of particular interest are

 

 

Leonard F. Dean, "Tudor Theories of History Writing," The

University gr Michigan Contributions 12 Modern Philosophy,

 

 

 

no. 1, (April, 1947): pp. 1-24; Wallace K. Ferguson, The

230

Renaissance i2 Historical Thought (Boston, 1948); and

 

 

Beatrice Reynolds, "Shifting Currents in Historical Criticisms,”

Journal gr the History_gr Ideas, XIV, (1953), pp. 471-92.

 

May McKisack, Medieval Historyrg the Tudor Age (Oxford,

 

1971) is one of the more recent books published on early
modern historiography. George Huppert, The Idea gr Perfect

History (Urbana, 1970) and Donald R. Kelley, Foundations gr

 

Modern Historical Scholarship (New York, 1970) point out the

 

significance of French historical thought in the sixteenth
century. Both see an interest in and willingness to examine
the past on its own terms, especially classical antiquity.

F.J. Levy, Tudor Historical Scholarship (San Marino, 1967)

 

stresses the significant impact of French historians on English
history writing and is very useful. Julian H. Franklin,

Jean Bodin and the Sixteenth-Century Revolution 32 the

 

Methodology gr Law and History (New York, 1963) identifies

 

 

Bodin's influence in England while F. Smith Fussner, The

Historical Revolution English Historical Writigg and Thought

 

1580-1640 (London, 1962) is excellent for its examination of

 

the relationship between legal and historical scholarship.
Three rather distinctive studies on sixteenth century
history writing are William R. Trimble, "Early Tudor
Historiography, 1485-1548," Journal gr the History gr lgggg,
XI, (1950), pp. 30-41. He saw indigenous changes, unaffected
by the continent, in early Tudor history writing. G. Wylie
Sypher, "Similarities Between the Scientific and the His-
torical Revolutions at the End of the Renaissance," Journal

gr the History gr Ideas, XXVI, (1965). PP. 353-68 pointed

 

231
out the significance of the scientific method on historical

scholarship. David Little, Religion, Order, and Law A

 

Study £2 Pre-Revolution England (New York, 1969) stressed the

 

impact of the Reformation on lawyers' attitudes to the past.
His treatment of Coke is of particular interest.

Humanists also made contributions to Renaissance educa-
tion and politics by their concern for rhetoric. The best work

on this topic is Neal W. Gilbert, Renaissance Concepts gr

 

 

Method (New York, 1960). Wilbur Samuel Howell, Logic and

 

Rhetoric i2 England, 1500-1700 (New York, 1961) and Jerrold

 

 

 

E. Seigel, Rhetoric and Philosophy lg Renaissance Humanism

 

 

The Union gr Eloqgence and Wisdom, Petrarch E2 Valla

 

 

(Princeton, 1968) are also worthwhile examining. R.J.
Schoeck, "Rhetoric and Law in Sixteenth-Century England,"

Studies £2 PhiloSOphy, L, (1953), pp. 110-27 was especially

 

helpful in understanding Thomas Wilson's role.

Elizabethan legal history

The best study of English legal history is still W.S.

Holdsworth, A History gr English Law, 16 vols. (London, 1922-

 

1966). Volume two is important for its treatment of Roman
law in medieval England. The fourth volume in particular
discusses the Reception of Roman law while the fifth volume
emphasizes the development of equity and international law in
the sixteenth century. Finally, part of the sixth volume is
useful for its comments on the prerogative issue and the

early Stuarts. For a good concise survey, Sir David

232

Lindsay Keir, The Constitutional Historygr Modern Britain,

 

 

8th. ed. (New York, 1966) covers the Tudor period.
Students should also familiarize themselves with some of
the older single volume surveys of English legal history.

Among these are Frederic W. Maitland, The Constitutional

 

 

History gr England (London, 1909); Edward Jenks, A Short

History gr English Law (London, 1912); Theodore F.T.

 

Plucknett, A Concise Historygr the Common Law (Rochester,

 

 

N.Y., 1936); Harold Potter, AA Historical Introduction E2

 

 

English Law and Its Institutions (London, 1948); and W.J.V.

 

Windeyer, Lectures gr Legal History (Australia, 1949). Each

 

is significant for identifying the legal writers of the late
sixteenth and early seventeenth centuries.

There are a number of excellent works that examines the
constitutional problems that arose between the Crown and

Parliament during this period. S.B. Chrimes, English Consti—

 

tutional Ideas rg the Fifteenth Century (London, 1936) is

 

 

useful for background material. Carl J. Friedrich, Tradition

 

and Authority (London, 1972) is helpful for its theoretical

 

examination of the constitutional questions of Crown and
Parliament in the late sixteenth and early seventeenth

centuries. Charles H. McIlwain's two studies, Constitutional-

 

ism Ancient and Modern (Ithaca, 1947) and The High Court gr

 

 

Parliament and Its Supremacy (New Haven, 1910) are standard

 

 

works that should be consulted. George L. Mosse, The

-Struggle for Sovereignty i2_England (E. Lansing, 1950) is

 

perceptive in its examination of the ideas of the law of

nature and the law of reason. J.G.A. Pocock, The Ancient

 

233
Constitution and the Feudal Law A Study gr English Historical

 

 

Thought $2 the Seventeenth Century (London, 1957) offers

 

some excellent analysis of the common law in the late
Elizabethan period. His treatment of Coke is especially

useful. Finally, Francis D. Wormuth, The Royal Prerogative

 

1603-1649 (Ithaca, 1939) discusses the conflict between the

 

Stuarts and Parliament over the concept of royal prerogative.
The problem of prerogative courts produced a critical
issue in the sixteenth century. The Court of Star Chamber

and the Court of Chancery were particularly important. Cora

 

Scofield, A Study gr the Court gr Star Chamber (New York,

 

1900) is still the standard work despite its age. Recently,
Thomas G. Barnes has examined the Star Chamber in "Star

Chamber Mythology," American Journal gr Legal History, V,

 

 

(1962), pp. 1-11 and "Due Process and Slow Process in the

Late Elizabethan-Early Stuart Star Chamber," American Journal

 

gr Legal History, VI, (1962): PP. 221-49 and pp. 315-46.

 

W.J. Jones, The Elizabethan Court gr Chancery (London, 1967)
is a thoroughly researched and invaluable study of the
Chancery.

While on the topic of prerogative courts, the student
should be familiar with the literature on the Roman law in

England. Thomas E. Scrutton, The Influence gr the Roman

 

 

Law gr the Law gr England (London, 1885) is one of the oldest
works on this topic. Scrutton does not see any influence
before the time of Glandville and Bracton. Frederic W.

Maitland, English Law and the Renaissance (London, 1901)

 

offered an interesting argument. He maintained that the

 

 

 

 

 

234

common law was seriously threatened by the civil law of the
continent. The leading cause for this was the Renaissance
and in particular the humanist movement. Since Maitland,
scholars have succeeded in modifying considerably his thesis.

William Senior, Doctors' Commons and the Old Court gr

 

 

 

Admiralty: A Short History gr the Civilians 12 England

 

 

 

(London, 1922) is a good survey of the leading theoreticians
of the civil law in England. Sir Paul Vinogradoff, Roman

Law i2 Medieval England, 2nd. ed. (London, 1929) should be

 

consulted. Myron P. Gilmore, Argument from Roman Law i2
Political Thogght 1200-1600 (Cambridge, Mass., 1941) is also

a more recent study. Charles Ogilvie, The King's Government

 

and the Common Law 1471-1641 (Oxford, 1958) is extremely use-
ful in its consideration of the conflict between the common
law and the civil law lawyers. And Brian P. Levack, The

Civil Lawyers 22 England 1603-1641; A political stugy

 

 

(Oxford, 1973) examines the civilians and their fate during

the political turmoil of the early seventeenth century.
There is one article that is devoted solely to inter-

national law of the Elizabethan period, E.R. Cheyney,

"International Law Under Queen Elizabeth," English Historical

 

Review, XX, (1905), pp. 659-72. The author discusses the
international political climate and mentions some of the
international legalists, Grotius, Hotman, and Gentili.

The student will not be hard pressed to find materials
on the system of legal education in England. Three works
are invaluable for a consideration of the Inns during the

Tudor period. Nichols Bacon's Report indicated the quality

235

of education at the Inns at the close of Henry VIII's reign.

The Report can be found in Edward Waterhouse, Fortescue

 

Illustratus (London, 1663), pp. 539-46. Sir George Buck,

 

"The Thirde Universitie of England," in John Stow, The Annales

 

(London, 1615), pp. 956-88 explains the close relationship
between the Common law and the Chancery Inns. William Dugdale,

The History and Antiquities gr the Four Inns gr Court and gr

 

 

the Nine Inns gr Chancery (London, 1780) offers a critical
appraisal of the administration of the Inns.

Recent scholarship on the Inns of Court has focused on
the decline of the educational system. W.S. Holdsworth, "The
Disappearance of the Educational System of the Inns of Court,"
University gr Pennsylvania Law Review, LXIX, (1920-1921), pp.
201-22 identifies three reasons for the decline: the
invention of the printing press, the lack of interest among
students to attend the traditional learning exercises, and
the failure of the teachers to adhere to the old system.

Other useful articles on this theme are Anton-Hermann Chroust,
"Beginning, Flourishing and Decline of the Inns of Court:
The Consolidation of the English Legal Profession After 1400,"
Vanderbilt Law Review, X, (1956). PP. 79-123; Kenneth Charlton,
"Liberal Education and the Inns of Court in the Sixteenth

Century," British Journal gr Educational Studies, IX, (1960),

 

pp. 25-38; and Wilfrid Prest's two articles, ”The Learning

Exercises at the Inns of Court 1540-1640," The Journal gr the

 

Society gr Public Teachers gr Law, IX, n.s.(l967), pp. 301-13
and "Legal Education of the Gentry at the Inns of Court,

1560-1640,“ Past and Present, no. 38, (1967), pp. 20-39.

 

236
Through the years alumni of the various Inns have
written some rather informative but superficial surveys in
praise of their particular Inns. Among these works are: J.
Bruce Williamson, The History gr the Temple, London (London,

1925); Hugh H.L. Bellot, The Inner and Middle Temple Legal,

 

Literary, and Historic Associations (London, 1902); George
Godwin, The Middle Temple The Society and Fellowship (London,
1946); and William R. Douthwaite, Grayfs Inn Its History A
Associations (London, 1886). Each is helpful in identifying
the significant contributions of its members.

There has been some important research in recent years
examining general educational trends in the Tudor period.
Mark H. Curtis, Oxford and Cambridge i2 Transition 1558-1642
(London, 1959); Lawrence Stone, "The Educational Revolution
in England 1560-1640," Past and Present, no. 28, (1964),

pp. 41-80; Kenneth Charlton, Education £2 Renaissance England

 

 

(London, 1965); and Joan Simon, Education and Society i2 nggr
England (London, 1966) should be consulted. The works of
Charlton and Simon are especially useful for the legal
historian.

A few scholars have addressed themselves to the study of
lawyers and their significance to society. The following
articles are essential for understanding the status of the
profession in its cultural milieu: Theodore F.T. Plucknett,
"The Place of the Legal Profession in the History of English
Law," Law QuarterlyReview, XLVIII, (1932), pp. 328-40; E.W.

Ives, "The Reputation of the Common Lawyers in English Society

237

1450-1550,“ University gr Birmingham Historical Journal,

 

VII, (1960), pp. 130-61; and William J. Bouwsma, "Lawyers

in Early Modern Culture," American Historical Review,

 

LXXVIII, (1973), pp. 303-27.

Finally, three works should be consulted for a discussion
of the impact of sixteenth century events on the philosophy
of law. Sir Paul Vinogradoff, ”Reason and Conscience in

Sixteenth-Century Jurisprudence," Law Quarterly Review, XXIV,

 

(1908), pp. 373-84 examines equity. Arthur Goodhart, English
Contributions rg the Philosgphy gr Ag! (New York, 1949) com-
pares the abstract continental approach to the English prac-
tical method of developing a theory of law. The most
important work of this type is Carl Joachim Friedrich, Thg
Philosophygr Ag! $2 Historical Perspective (Chicago, 1958).
His discussion of the significance of religion in molding

legal philosophy is very provocative.
General studies

Two works serve as a good introduction to English legal

history of the medieval period J.E.A. Jolliffe, The Constitu-

 

tional History gr Medieval England, 4th. ed. (New York, 1961)

and Bryce Lyon, A Constitutional and Legal History gr Medieval

 

England (New York, 1960). Gaines Post, Studies i2 Medieval
Legal Thought (Princeton, 1964) and Walter Ullmann, Th3
Medieval Idea gr Ag!_A§ Represented by Agggg Ag Agggg (London,
1946) are important introductions to the study of continental
legal thought of the middle ages. R.F. Wright, Medieval

Internationalism (London, 1930) should also be consulted.

238

Johan Huizinga, The Waning gr the Middle Ages (Garden City,

 

 

1949) is especially useful for capturing the mood of the late
medieval period.

A good deal of scholarship is readily available on the
Renaissance. The student should examine carefully Jacob

Burckhardt, The Civilization gr the Renaissance i2 Italy, 2

 

 

vols. (New York, 1929). Hans Baron, The Crisis gr the Early

 

 

Italian Renaissance (Princeton, 1966) and Myron P. Gilmore,

 

The World gr_Humanism 1453-1517 (New York, 1952) are sound

 

 

perceptive studies. Paul Oskar Kristeller is one of the more
prolific writers on the Renaissance. His works include:

Renaissance Concepts gr_Man and Other Essays (New York, 1972);

 

 

Renaissance Essays, edited with Philip P. Wiener (New York,

 

1968); Renaissance Thought The Classic, Scholastic, and

 

 

Humanistic Strains (New York, 1961); and Renaissance Thought

 

 

1; Papers gr Humanism and the Arts (New York, 1965). Frederico

 

Chabod, Machiavelli and the Renaissance (New York, 1965) is a
perceptive analysis of the political theorist and the period.

Lauro Martines, Lawyers and Statescraft 13 Renaissance Florence

 

 

 

(Princeton, 1968) is also good. Ernest Cassier, The Individual

 

and the Cosmos £2 Renaissance Philosgphy is one of the most

 

 

provocative studies of Renaissance thought and is essential
reading. Two works that examine the English Renaissance are

Hiram Hayden, The Counter-Renaissance (New York, 1950) and

 

Theodore Spencer, Shakespeare and the Nature gr Man (New

 

York, 1942). Both are as significant in analyzing Renaissance

thought as Cassier's work.

239
The Reformation also lends itself to extensive
scholarly research. Among the works that should be considered

are: M.M. Knappen, Tudor Puritanism (Chicago, 1939);

 

 

 

Roland Bainton, The Reformation gr the Sixteenth Century

(Boston, 1952); Harold J. Grimm, The Reformation Era 1500-1650

 

(New York, 1954); and A.G. Dickens, The Counter-Reformation

 

(New York, 1969).
Two works stand out as perceptive introductions for
discussing science in the early modern period. They are

Edwin A. Burtt, The Metgphysical Foundations gr Modern

 

Physical Science (London, 1932) and Herbert Butterfield,

The Origins gr Modern Science (New York, 1957).

 

 

There is a large corpus of scholarship on sixteenth
century political theory. Some stressed the importance of
lawyers and their contributions of legal ideas in resolving
the political conflicts of the age. Some of these works are:

John Neville Figgis, The Divine Right gr Kings (London, 1914);

 

and his, Studies gr Political Thought From Gerson E2 Grotius

 

1414-1625 (London, 1916); J.W. Allen, A History gr Political

 

Thought $2 the Sixteenth Century (London, 1928); Franklin Le
Van Baumer, The Early Tudor Theory gr Kingship (New Haven,

1940); ChristOpher Morris, Political Thought 32 England

 

Tyndale rg Hooker (London, 1953); and Carl J. Friedrich,

Constitutional Reason gr State (Providence, 1957).
Bibliographies

There are three bibliographies that are essential to any

study of the Elizabethan period. The standard Tudor

240
bibliography is the BibliOgraphy gr British History, EEQQE
Period, 1485-1603, edited by Conyers Read, 2nd. ed. (Oxford,
1959). A more recent bibliographical handbook is Tudor England

1485-1603, compiled by Mortimer Levine (Cambridge, 1968).

 

The standard bibliography for the Stuart period is the

Bibliographygr British History, Stuart Period, 1603-1714,

 

edited by Godfrey Davies and Mary Frear Keeler, 2nd. ed.

(Oxford, 1970). Also the Dictionarygr National Biography,
63 vols. (London, 1885-1900) is invaluable not only for its
biographical sketches but also for citing additional source

materials on each legalist.