Frederic William Maitland

“ That wonderful Edward Coke was loose. The medieval tradition was more than safe in his hands. You may think it pleasant to turn from this masterful, masterless man to his great rival. It is not very safe to say what Thomas More did not know, less safe to say what was unknown to Francis Bacon, but I cannot discover that either of these scholars, [30] these philosophers, these statesmen, these law reformers, these schemers of ideal republics, these chancellors of the realm, these law lecturers, had more than a bowing acquaintance with Roman law. ”

“ But it is hardly to parliament that our hopes must turn in the first instance. Certain ancient and honourable societies, proud of a past that is unique in the history of the world, may become fully conscious of the heavy weight of responsibility that was assumed when English law schools saved, but isolated, English law in the days of the Reception. In that case, the glory of Bourges, the glory of Bologna, the glory of Harvard may yet be theirs [78] . ”

“ A history of civilization would be miserably imperfect if it took no account of the first new birth of Roman law in the Bologna of Irnerius. Indeed there are who think that no later movement,—not the Renaissance, not the Reformation—draws a stronger line across the annals of mankind than that which is drawn about the year 1100 when a human science won a place beside theology. I suppose that the importance of the school of Bourges would also be conceded. ”

“ Still it is not to be denied that a slow process of romanization—very different from the catastrophic Reception in Germany—went on steadily for some five or six centuries; and a system which as a whole seems very un-Roman to a student of what became ‘the common law’ of Germany may rightly seem Roman to an Englishman. Francis Bacon knew that France could not be compendiously described as a country governed by the civil law. ”

“ Nor need I say that of late years few writers have had a hearty good word for the Reception. We have all of us been nationalists of late. Cosmopolitanism can afford to await its turn [13] .
Then we observe that not long after Pole had been advocating a Reception, his cousin King Henry, whose word was law supreme in church and state, prohibited the academic study of one great and ancient body of law—the canon [9] law [14] —and encouraged the study of another—the civil law—by the foundation of professorships at Oxford and Cambridge. ”

“ When the middle of the century is past the signs that English law has a new lease of life become many. The medieval books poured from the press, new books were written, the decisions of the courts were more diligently reported, the lawyers were boasting of the independence and extreme antiquity of their system [62] . We were having a little Renaissance of our own: or a gothic revival if you please. The Court of Requests in which Prof. Smith and Prof. Haddon had done justice was being tried for its life. ”

“ In truth I take it that the story is complex. Many currents and cross-currents were flowing in that turbid age. It so happens that in this country we can connect with the heresiarchal name of Wyclif a proposal for the introduction of English law, as a substitute for Roman law, into the schools of Oxford and Cambridge [20] . On the other hand, the desire for a practical Reception of the civil law is ascribed to the future cardinal, who in his last days reconciled England for a moment, not with the Rome of the Digest, but with the Rome of the Decretals. ”

“ If, he urged, these young men, cut off as they are from all the humanities, can reason thus over their ‘barbaric and semi-gallic laws,’ what might not you, you cultivated scholars do if you studied the Digest and Alciatus and Zasius? And then the professor expressed a hope that he might be able to spend his vacation in the Inns of Court [61] . His heart was in the right place: in a school of living law. Even for the purposes of purely scientific observation the live dog may be better than the dead lion. ”

“ National character, the genius of a people, is a wonder-working spirit which stands at the beck and call of every historian. But before we invoke it on the present occasion we might prudently ask our books whether in the sixteenth century the bulk of our German cousins inherited an innate bias towards what they would have called a Welsh jurisprudence. ”

“ At all events for a while we will speak of more resonant exploits. We could hardly (so I learn at second-hand) fix a better date than that of Rede’s death for the second new birth of Roman law. More’s friend Erasmus had turned his back on England and was by this time in correspondence with two [6] accomplished jurists, the Italian Andrea Alciato and the German Ulrich Zäsi. They and the French scholar Guillaume Budé were publishing books which mark the beginning of a new era [6] . Humanism was renovating Roman law. ”

“ Men of our race have been litigious; the great Ihering admired our litigiousness [74] ; it is one of our more amiable traits; but it seems to me idle to believe that distant parts of the earth will supply a tribunal at Westminster with enough work to secure uniformity. The so-called common law of one colony will swerve [34] from that of another, and both from that of England. Some colonies will have codes [75] . If English lawyers do not read Australian reports (and they cannot read everything) , Australian lawyers will not much longer read English reports. ”

“ This I say, not in order that I may remind you what sort of law it was that Archbishop Lanfranc [25] studied when as a young man he was a shining light in the school of Pavia, but because this body of Lombard law, having once become the subject of systematic study, showed a remarkable vitality in its struggle with Roman jurisprudence. Those Italian doctors of the middle age who claimed for their science the fealty of all mankind might have been forced to admit that all was not well at home. ”

“ There follows much more flattery of the king as a patron of learning of every kind. ‘Iuris quidem civilis consulti facultas in hac republica cum ad multos usus pernecessaria est, tum a principe nostro nequaquam negligi aut levem haberi, vel hoc argumento esse potest, quod tam amplo planeque regio stipendio et meam hic apud vos mediocritatem et alium Oxonii disertum ac doctum virum ius hoc civile praelegere profiterique voluit.’ And the study of the civil law is the high road to diplomatic service. ”

“ Had some of those events been other than they were, we might now be saying of him that he played a prominent part in Renaissance, Reformation and Reception, [11] and a part characteristic of that liberal and rational university of which he was professor, public orator and vice-chancellor [18] .
Some German historians, as you are aware, have tried to find or to fashion links that will in some direct and obvious manner connect the Reformation and the Reception. In one popular version of the tale protestantism finds a congenial ally in the individualism and capitalism of the pagan Digest [19] . ”

“ And the rest of the acts of Robert Rede—we might say—and the arguments that he urged and the judgments that he pronounced, are they not written in queer old French in the Year Books of Henry VII and Henry VIII? Those ancient law reports are not a place in which we look for humanism or the spirit of the Renaissance: rather we look there for an amazingly continuous persistence and development of medieval doctrine. ”

“ As regards Germany, the theoretical continuance of the Roman empire is not to be forgotten, but its influence on the practical Reception of Roman law may be overrated. In the age of the Reception Roman law came to the aid, not of imperialism, but of particularism. Then it is true that English law was inoculated in the thirteenth century when Bracton copied from Azo of Bologna. ”

“ What is distinctive of medieval England is not parliament, for we may everywhere see assemblies of Estates, nor trial by jury, for this was but slowly suppressed in France. But the Inns of Court and the Year Books that were read therein, we shall hardly find their like elsewhere. At all events let us notice that where Littleton and Fortescue lectured, there Robert Rede lectures, Thomas More lectures, Edward Coke lectures, Francis Bacon lectures, and highly technical were the lectures that Francis Bacon gave. ”

“ Smith’s immediate successor, Dr Walter Haddon. I take it that now-a-days few English clergymen wish that they were living—or should I not say dying?—under Dr Haddon’s pretty phrases [47] . Codification was in the air. Both in France and in Germany the cry for a new Justinian was being raised, and perhaps we may say that only because a new Justinian was not forthcoming, men endeavoured to make the best that they could of the old [48] . How bad that best would be Francis Hotman foretold. ”

“ On the whole, the professor can hold out to his pupils the prospect of diplomatic employment, of masterships in the chancery (‘sunt archiva Londini’) , of practice in the ecclesiastical courts and the court of admiralty, and besides this they are to remember that the king is a great patron of learning. I do not see any hint that knowledge of Roman law will help a man at the bar of the ordinary English courts.
For more of the attempt to put new life into the study of Roman law at Cambridge, see Mullinger, op. cit., vol. ”

“ The cessation of the Year Books in 1535 at the moment when the Henrician Terror is at its height is dramatically appropriate. A great deal, however, has yet to be done before the relevant facts will be fully known. Mr C. C. Soule’s Year-Book Bibliography, printed in Harvard Law Review, vol. XIV., p. 557, is of high importance. If by ‘the Year Books’ we mean a series of books that have been printed, then the Year Books become intermittent some time before they cease. The first eleven years of Henry VIII are unrepresented, and there are gaps between years 14 and 18 and between 19 and 26. ”

“ It was 1709 before Georg Beyer, a pandectist at Wittenberg, set a precedent for lectures on German law in a German university [58] . It was 1758 before Blackstone began his ever famous course at Oxford. The chair that I cannot fill was not established until the transatlantic Cambridge was setting an example to her elderly mother [59] . But then, throughout the later middle age English law had been academically taught.
No English institutions are more distinctively English than the Inns of Court; of none is the origin more obscure. ”

“ Blessed John Story was zealous; but his permanent contribution to the jurisprudence of his native land was (so far as I am aware) an early precedent for the imprisonment of a disorderly member by the House of Commons, and a man may be disorderly without being a jurist [22] . Ulrich Zäsi went part of the way with [13] Luther; but then stayed behind with Erasmus [23] . ”

“ A project of this kind had been in the air: perhaps in King Henry’s mind. See Letters and Papers, Henry VIII., vol. IV., pt. 2, p. 2693 (A.D. 1529) : ‘Draft bill ... proposing to enact that from 1 Jan. next all entails be annulled and all possessions be held in fee simple.... The Act is not to affect the estates of noblemen within the degree of baron.’ This is one of the proposals for restoring the king’s feudal revenue which lead up to the Statute of Uses: an Act whose embryonic history has not yet been written, though Dr Stubbs has thrown out useful hints. ”

“ I doubt our common lawyers easily accommodated themselves to ecclesiastical changes. Some years after Elizabeth’s accession the number of barristers who were known to the [16] government as ‘papists’ was surprisingly large and it included the great Plowden [34] . But we must go back to our main theme.
A Reception there was not to be, nor dare I say that a Reception was what our Regius Professor or his royal patron desired. ”

“ Voigt, Die Wiederbelebung des classischen Alterthums, ed. 3, vol. II., pp. 477-484. Gradually, so I understand, philologians such as Budé (d. 1540) began to discover that there was matter interesting to them in [39] the Corpus Juris, and a few jurists turned towards the new classical learning. See Tilley, Humanism under Francis I., in English Historical Review, vol. XV., pp. 456 ff. In 1520 Zäsi, writing to Alciato, said ‘All sciences have put off their dirty clothes: only jurisprudence remains in her rags.’ (Stintzing, Ulrich Zasius, p. 107.) ”

“ Even the mastership of the rolls, which had been held by doctors of Padua and Bologna, fell to the common lawyers. Thomas Hannibal, master of the rolls (1523-1527) , must, one would think, have been an Italian, as were the king’s Latin secretaries Andrea Ammonio and Pietro Vannes.
The heathenry of the Digest. [19] See Janssen, Geschichte des deutschen Volkes, vol. I., pp. 471-501, where the cry of ‘heathenry!’ is raised against the civil law. Janssen’s attempt to praise the canon law as radically Germanic while blaming the ‘absolutistic’ tendencies of the civil law seems strange. ”

“ Melanchthon also was a warm admirer of Roman jurisprudence [26] . It is reported that Elizabeth invited Francis Hotman to Oxford [27] . He was protestant enough, and fierce enough to exchange letters with a tiger [28] . He is best known to English law-students as the man who spoke light words of Littleton and thus attracted Coke’s thunderbolt [29] ; but if he thought badly of Littleton, he thought badly of Tribonian also, and would have been the last man to preach a Reception. Professor Alberigo Gentili [14] of Oxford, he too was protestant enough and could rail at the canonists by the hour ”