THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 RIVERSIDE 
 
 Ex Libris 
 ; C. K. OGDEN
 
 DOCTORS' COMMONS AND THE OLD 
 COURT OF ADMIRALTY
 
 DOCTORS' COMMONS 
 
 AND THE OLD COURT 
 
 OF ADMIRALTY: 
 
 A Short History of the Civilians in England 
 
 BY 
 
 WILLIAM SENIOR 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW 
 
 LONGMANS, GREEN AND CO 
 
 39 PATERNOSTER ROW, LONDON, E.G. 4 
 
 NEW YORK, TORONTO 
 BOMBAY, CALCUTTA AND MADRAS 
 1922
 
 Made in Great Britain
 
 PREFACE 
 
 WHEN a Doctor of Law, duly armed with the 
 rescript of the Archbishop of Canterbury's Vicar- 
 general, sought admission to the College of 
 Advocates at Doctors' Commons, his ceremonial 
 introduction took place first in the Court of 
 Arches before the Dean, and only afterwards in 
 the Court of Admiralty before the Judge 
 assuming, as was not always the case, that the 
 two offices were filled by different persons. In 
 the following pages the precedence thus formally 
 given to the ecclesiastical side of Doctors' Commons 
 has been purposely disregarded. In the first 
 place, the part played by the doctors in foreign 
 affairs, and in the development of maritime law, 
 a field in which the Civilians for a long time showed 
 the common law the way, seems a topic of wider 
 interest than anything they did as Canonists : 
 and secondly, the consideration of the position 
 of the Canon lawyer as to jus commune ecclesiasticum 
 after the Reformation leads straight to the still 
 troubled waters of the controversy whether the 
 Church in England before that period was a national 
 church or only two provinces of the super-national 
 Catholic one. For these reasons, and because the 
 story of a bygone profession needs but a little 
 book, I have dwelt mainly upon the work of the 
 doctors in the maritime courts and in the diplo- 
 matic service of the State. 
 
 W. S.
 
 CONTENTS 
 
 PAGE 
 
 I. ENGLAND AND THE CIVIL LAW. i 
 
 II. THE FIRST ADMIRALTY JUDGES. 14 
 
 III. THE FIFTEENTH CENTURY. 35 
 
 IV. THE RISE OF THE COLLEGE OF ADVO- 
 CATES. 59 
 
 V THE LATTER DAYS OF THE CIVILIANS. 84 
 
 vii
 
 I. ENGLAND AND THE CIVIL LAW 
 
 HERE and there in England are to be found small 
 country churches which are miniature Roman 
 basilicas in plan, and show other traces of an 
 influence that must have travelled hither as far 
 as from Ravenna, that last refuge of the rulers of 
 the Western Empire, or even from the capital city 
 of Justinian itself. To some minds such buildings 
 have a romantic attraction that is lacking in 
 others more purely indigenous. One must not 
 push the parallel too far, but the Romanic traces 
 in English legal institutions have for the historically 
 inclined something of the same glamour. Both, at 
 any rate, recall a singleness of culture that has 
 long vanished from that part of the world which 
 used to be called Christendom. 
 
 Much that awakens this kind of interest con- 
 cerning the Romanic waves of jurisprudence that 
 welled into Britain in early days has been said by 
 the learned authors of " The History of English 
 Law before the Time of Edward the First " ; but 
 the whole story of the influence of the Corpus 
 luris upon the growth of English law throughout 
 its development has yet to be written. An account 
 of the men who from time to time have professed 
 the Roman Law in England, either as teachers or 
 practitioners, even if it were much fuller than the 
 following sketch can claim to be, would not, of 
 course, tell that story, although it might here 
 and there throw sidelights upon the more scientific
 
 2 ENGLAND AND THE CIVIL LAW 
 
 work. Apart from its influence, that is to say, 
 as a separate system, the Roman Law in England 
 came to nothing. We may perhaps claim for the 
 doctors of the civil law in this country something 
 of the interest that attaches itself to those who 
 stand for lost causes. But once, if not twice, they 
 came near to winning. 
 
 There is anyhow the interest of a contest. The 
 historian of the fortunes of the Roman Law in 
 England, when he appears, will first of all be con- 
 cerned with showing " how the full development 
 ' of the national law, and the confidence felt in 
 ** its strength and capacity to stand alone, produced 
 *' an antagonism between it and the Roman Law, 
 "" which drove the latter from Westminster Hall : 
 *' how the Roman Law nevertheless gained ground 
 "' in the ecclesiastical courts, and in the Equity 
 *' system under praetor-chancellors : and finally 
 "' how, at length, the increase of social and com- 
 "" mercial intercourse and the absence of a finished 
 "' national law of obligations led to the Roman Law 
 "'being appealed to as a lus Gentium, whose rich 
 " materials might supply the deficiencies of the 
 "" younger law in such matters." l 
 
 It was, in fact, as the exponents of a common law 
 of nations that the civilians as an organized pro- 
 fession obtained then* footing ; and it will be with 
 the civilian as an admiralty and international 
 lawyer that we shall chiefly have to do. But the 
 earlier centuries must be briefly glanced at, not 
 
 1 Giitenbock, " Bracton and His Relation to the Roman Law." 
 Coxe's trans., p. 14.
 
 ENGLAND AND THE CIVIL LAW 3 
 
 only because they show that the role into which 
 he ultimately settled down was already being 
 marked out for him, but also because they explain 
 how he came to be confined to it. 
 
 The first formal teaching of the Roman Law in 
 England by Master Vacarius was silenced by King 
 Stephen about the year 1151. Not very effectually 
 or permanently maybe ; but John of Salisbury, who 
 chronicles Stephen's veto, does not omit to remind 
 us that England was a country " ubi inveterata 
 consuetudo obtineat." On each occasion afterwards, 
 when there seemed to be a probability of a sub- 
 stantial incursion of the Roman Law into this 
 country the barrier of a home-grown system was 
 strong enough to withstand it The Roman Law 
 might be " divinely reasonable," but it was an 
 outlandish thing. 
 
 The close of the thirteenth century, " the age 
 that witnessed the greatest inroad of written law 
 upon custom and tradition that had occurred since 
 the date of the Capitularies," was the first of these 
 occasions. It was at this time that Edward 
 Plantagenet came to the throne of England, a ruler 
 who, although his title of " the English Justinian " 
 has no reference to the fact that Roman Law was 
 then very much in the air, would perhaps have 
 given it more aptness than it has if the temper of 
 his people had permitted him. He was unques- 
 tionably a born law-giver, and the civilian lawyer 
 was then ever in the train of kings. His father, 
 Henry the Third, had retained in his pay Henry
 
 4 ENGLAND AND THE CIVIL LAW 
 
 of Segusio, the canonist, afterwards known as 
 Hostierisis, because he became Cardinal-bishop of 
 Ostia, but who seems to have been not merely a 
 canonist, but a doctor utriusque iuris of Bologna. 
 Edward's brother-in-law, Alfonzo the Wise of 
 Castile, was attempting to supersede the national 
 customs of his own kingdom by the scientific 
 jurisprudence of Rome : l and Edward himself 
 about the same time snatched away the younger 
 Accursius from his chair of civil law at Bologna to 
 be his councillor much to the chagrin of the local 
 authorities, who valued their professor and seques- 
 trated his property by way of reprisal. Franciscus 
 Accursius was a lesser light than his famous father, 
 the great glossator and pupil of Azo $atre longe 
 obscurior, as Freherus says but he was doubtless 
 as accomplished a legist as Edward could lay hands 
 on. This was in 1275, and Accursius was for 
 several years afterwards " dilectus et fidelis secre- 
 taries noster." Some examples of the kind of work 
 the King found for him may be given. In the same 
 year -he was appointed along with Master William 
 de Corneria, " professor of both laws," and other 
 persons, a King's proctor in the parliament and 
 courts of Philip of France in causes begun between 
 Henry the Third and Louis the late King of France. 1 
 In the following year a commission was issued to 
 him and Nicholas de Stapleton empowering them 
 to inquire and do justice as to the plaint of the 
 Jews of Oxford that the Sheriff had lately com- 
 
 1 Stubbs, " Const. Hist.," II. 199. 
 
 Cal. Patent Rolls. Ed. I. June 8, 1275.
 
 pelled them to pay " certain undue extortions " ; l 
 an appointment also of a quasi-international char- 
 acter, since Jewry was allowed laws and tribunals 
 of its own. About 1278 he appears to have gone 
 as envoy to the Court of Rome, since we find 
 a mandate to certain merchants of Lucca to pay 
 him and his fellows " their reasonable expenses 
 in going, staying and returning thither." z 
 There are circumstances in what we know of 
 the employment of Accursius, attributable to 
 Edward's want of pence, that seem like an 
 augury of the precarious nature, very nearly 
 throughout its length, of the civilian's professional 
 existence in England. The annuity or yearly fee 
 of forty marks that the King granted to the lawyer 
 was at one time no less than five years in arrear. 
 We have on record Edward's belated acknowledge- 
 ment of indebtedness to the merchants of Pistoja, 
 who had been trusting enough to pay these arrears 
 to Accursius for him. 3 But, however the doctors 
 might be treated by princes, the science they 
 professed was in high repute. Just twenty years 
 after Edward's accession comes the great lawsuit 
 for the Crown of Scotland, in which he was not 
 merely arbitrator but judge. The procedure on 
 that occasion appears to have been closely copied 
 from the old Roman Centumvirale ludicium ; * 
 
 1 Cal. Patent Rolls. Ed. I. May 18, 1276. 
 
 Cal. Patent Rolls. Ed. I. Sept. 17, 1278. 
 
 Cal. Patent Rolls. Ed. I. June 15, 1290. 
 
 * See " Brus v. Balliol, 1291-1292 : The Model for Edward I.'s 
 Tribunal," by Geo. Neilson. LL.D., Scottish Hist Rev., Vol. XVI., 
 p. i.
 
 6 ENGLAND AND THE CIVIL LAW 
 
 and amongst the names of the panel of auditors 
 nominated by the King is that of William of 
 Kylkenny, " iuris civilis professor." 1 Edward still 
 does not lack the services of civilians, although by 
 this time Accursius has returned home, and early 
 in the fourteenth century, Master Philip Martel, 
 professor of civil law, becomes prominent amongst 
 the King's clerks. In 1304 this civilian is appointed 
 along with the Constable of Dover Castle to go to 
 Calais and there in conjunction with the two 
 deputies named by the King of France to make 
 inquisition touching depredations at sea committed 
 by the men of Calais and of the Cinque Ports upon 
 one another ; 2 William de Grenefeld, Canon of 
 York and professor of the civil law, had already 
 been sent by Edward to France to settle the terms 
 of a treaty relative to disputes arising out of things 
 done at sea. 3 The line that would lead to the 
 civilian of the seventeenth century, at once am- 
 bassador and Admiralty Court Judge, was already 
 beginning to be traced. 
 
 But as yet, that is to say, up to the middle of 
 the fourteenth century, it is the role of negotiator 
 in foreign affairs that is his most prominent one. 
 We shall in our next section endeavour to explain 
 how, soon afterwards, he came to take his seat in 
 the maritime courts. Before leaving the earlier 
 days of the civilians' employment in England, 
 however, the name of John de Shordych should be 
 
 1 Rymer : " Foedera," i. 766. 
 
 Cal. Patent Rolls. Ed. I. Jan. 28, 1304. 
 
 9 See Preface to " Year Books of Ed. I. Years 30-31," p. xix.
 
 ENGLAND AND THE CIVIL LAW j 
 
 mentioned, because he was an Englishman and, 
 so far as appears, not an ecclesiastic two facts 
 that distinguish him from most of his compeers 
 at this time, who were usually priests or foreigners 
 or both. In 1329 he was appointed along with 
 others to treat with Philip of France ; l and Adam 
 Murimuth has left us an account of his interview 
 with Pope Clement at Avignon in 1343, when sent 
 with letters from the Parliament of England to 
 protest against the holding of English benefices 
 by foreign priests. Murimuth calls him " miles 
 sapiens et iuris professor," and after describing the 
 meeting, which did not lack boldness on John's 
 part, tells us that he hurried away to Bordeaux, 
 " alia negotia domini regis expediturus." * 
 
 But in spite of the constant presence of civilians 
 at the elbow of the English Justinian, the bid of 
 the Roman wisdom for any full and open kind of 
 naturalisation came too late. The national law 
 was already able to stand on its own feet. Since 
 the time of Henry the Second the English customs 
 had been in process of consolidation through the 
 circuits of the itinerant justices. The " Year 
 Books " begin in 1292, showing a plentiful crop of 
 litigation in the courts administering the nascent 
 common law. And yet although this development 
 of a national law was going on, the century and a 
 half which had preceded the death of Edward the 
 First that is to say, the period between the 
 middle of the twelfth and the end of the thirteenth 
 
 1 See Rymer, "Foedera." ii., passim. 
 
 * " Adami Murimuthensis Chronica," Hog., pp. 152, 3.
 
 * ENGLAND AND THE CIVIL LAW 
 
 century, has been styled the Roman epoch of 
 English legal history. 1 That is because it was the 
 period of unacknowledged leavening. Though the 
 title of the great work that Bracton had written 
 about the middle of the thirteenth century is, as 
 all the world knows, " De Legibuset Consuetudinibus 
 Angliae," we meet in it many maxims of the Roman 
 Law which had already become proverbial and 
 appear to be already naturalised in England ; a 
 and not only maxims, for the whole of the doctrines 
 relating to personal actions were based by Bracton 
 upon the Institutes and the Digest. 3 There is no 
 need to discuss Bracton or his book in this place : 
 probably the statement quoted by Wynne 4 that 
 he " was a Doctor of both laws before he came to 
 our bench " means no more than that his reading, 
 as is obvious, had comprised both Digest and 
 Decretals. There does not appear to be any 
 certainty of his academical status. As to his book, 
 " Romanesque in form, English in substance," 5 
 based on English records, yet arranged after Roman 
 models, its method enables us the better to under- 
 stand the statement of Spelman that a " great 
 portion of our Common Law is derived from the 
 Civil Law"; brought into it, he considers "by 
 such of our Reverend Judges and Sages of ancient 
 
 1 By Biener. Gii ten bock, " Bracton and His Relation to the 
 Roman Law," p. 17. 
 
 2 Giitenbock, ibid., p. 48. 
 
 8 Spence, "The Equitable Jurisdiction of the Court of 
 Chancery," Vol. I., p. 224, note. 
 
 4 " Eunomus," Vol. I., p. 77. 
 
 Pollock and Maitland, " Hist, of English Law," i. pp. 207-8. 
 And see the whole chapter on " The Age of Bracton."
 
 ENGLAND AND THE CIVIL LAW g 
 
 time as for Justice and Knowledge sake sought 
 instruction there, when they found no rule at home 
 to guide their judgments by." 1 John de Lexington, 
 a justice in Eyre in 1251, is also in utroque iure 
 Canonico scilicet et civili peritus. One effect of 
 the introduction of Roman elements through 
 the process the result of which is known as 
 judge-made law, would naturally be to take the 
 wind out of the sails of the out-and-out Romanisers: 
 and our present point is that books such as 
 Bracton's, romanesque and English at the same 
 time, also contributed to that end. Whether he 
 shrewdly foresaw it or not, subsequent ages 
 accepted as English law, upon his authority, pass- 
 ages but slightly altered from the "Institutes" of 
 Justinian. 2 The Roman Law was thus removed 
 from being regarded as an open competitor. The 
 point, so far at least as it concerns form, was in 
 fact made by Abraham Fraunce, writing in the 
 sixteenth century, when the comparative merits 
 of the civil law and of the native system came again 
 to be canvassed. In the plea for a greater rap- 
 prochement between scholarship and law which is 
 contained in his Preface to " The Lawyer's Logicke " 
 a plea addressed " To the learned Lawyers of 
 England, especially the gentlemen of Gray's Inn " 
 Fraunce avoids expressly deciding which system 
 is the better but adroitly points out that even if 
 the method of Justinian were as perfect " as some 
 " say it is, then I say we have our Common La we 
 
 1 " Reliquiae." 1723 ed., p. 99. 
 
 * See the judgment of Holt, C. J., in Coggs v. Bernard.
 
 io ENGLAND AND THE CIVIL LAW 
 
 " penned after the self-same methode two hundreth 
 " years agoe by that famous and learned Judge 
 *' Henry de Bracton, skilful in both thease lawes." * 
 There were, moreover, in addition to the de- 
 veloping strength of the national law, two other 
 reasons why at the time of the first Edward the 
 tide of the Roman jurisprudence tended to be 
 pushed back. At the back of the imperial system 
 were maxims of kingly absolutism that even the 
 embryonic constitutional law of that day would not 
 listen to. Bracton in alluding to the Lex Regia 
 had felt constrained to water it down to the point 
 of misrepresentation. We shall hear again of the 
 maxim, Quod principi placuit legis habet vigorem, 
 and the colour it was supposed to give to the activi- 
 ties of the professors of the Roman law in the 
 political field. As to Edward the First, we are 
 told by the chronicler that when in 1299 he declined 
 to confirm the charters unless the words " salvo iure 
 coronae nostrae " were tacked on to them, he was 
 obliged to withdraw from his position, consiliarii 
 regis timentes seditionem populi* The other sub- 
 sidiary reason why the Roman jurisprudence did 
 not at this time make the headway that upon its 
 intrinsic merits might have been expected was the 
 jealousy of the Canonist. By the middle of the 
 thirteenth century the Roman Law had come 
 temporarily under the displeasure of the Church, 
 and it is to be remembered that the great majority 
 of lawyers were still at this date clerks in orders. 
 
 1 Op. cit. Introduction. 
 
 * " Hemingford." Vol. II., p. 183.
 
 ENGLAND AND THE CIVIL LAW it 
 
 The Church had perfected a vast legal system of 
 her own, built, it is true, upon the model of the 
 imperial code, but a system in which Caesar, 
 needless to say, was not placed above the Bishop 
 of Rome. At the date of which we speak the 
 civilian stood between the two fires of the Con- 
 stitution and the Church. It may be added that a 
 little later, by the time of the third Edward, he 
 had, in virtue of this very connexion between the 
 Canon and the Civil Law to share the opprobrium 
 Roman ecclesiastical pretensions had aroused in 
 the English mind. 
 
 The second occasion when, for a short time, 
 Roman Law came near to overwhelming the 
 common law of the realm, happened during the 
 second quarter of the sixteenth century. " The 
 continuity of English legal history," says Maitland, 
 " was seriously threatened." * Of that, however, 
 in its place ; it is enough to say here that after a 
 period, as it were, of arrested development, the 
 common law revived in time to be again strong 
 enough to withstand the innovators. 
 
 Yet the Roman Law came to occupy a small field 
 of its own in England side by side with the common 
 law, by usage and immemorial custom. The pro- 
 ceedings of the military court of the Constable 
 and Marshal, and of the courts of the two Universi- 
 ties were always in the hands of civilians : and if 
 such tribunals were far removed from the main 
 stream of national business, the same can hardly 
 be said of the courts of the admiral, when they 
 
 1 " English Law and the Renaissance," p. 17.
 
 12 ENGLAND AND THE CIVIL LAW 
 
 were established. It was there, amongst domestic 
 institutions, that the civil law had its chief 
 and acknowledged incidence. " Forasmuch as 
 " strangers are not acquainted with our laws," 
 wrote the Council to the English Ambassador in 
 France in the year 1550, " to show them favour, 
 " the King's Highness's progenitors have thought 
 " good to erect and set up a court of matters 
 " chanced upon the seas or out of the realm : in 
 " the which court process is made and justice is 
 " ministered according to the law civil, the which 
 " Court is called the Admiralty Court : where the 
 " said strangers' causes are examined, whether the 
 " controversy be between themselves or against 
 " the King's subjects." 
 
 This was but the application to matters of 
 private international law of the assistance which 
 the Roman Law afforded to the statesman and the 
 publicist in affairs strictly international. We have 
 already noted how from very early times the civilian 
 had employment in this latter sphere. For cen- 
 turies the Roman civil law stood for the Law of 
 Nations. 1 When, at the time of the Common- 
 wealth, Dr. Robert Wiseman put forth a book that 
 has been called the last formal plea on behalf of the 
 civilian's profession, he grounded the whole of his 
 argument for " The Excellency of the Civil Law " 
 upon that aspect of it. 
 
 Such, then, were the provinces in which the 
 civilian openly worked. If we pass by his influence 
 
 1 " Celui qui ecoute le langage du droit remain entend a 
 vrai dire le langage de toutes les nations." Bynkershoek.
 
 ENGLAND AND THE CIVIL LAW 13 
 
 upon the infancy of the national common law, we 
 may say that he appears first in the role of 
 negotiator, sent abroad on behalf of the State. 
 His acquaintance with foreign peoples and the 
 universality of his science made it not unnatural 
 that he should presently annex the Court of 
 Admiralty, as in fact he did, not very long after its 
 establishment. And since the later history of 
 that Court is, to a considerable extent, one of a 
 long and losing battle with the courts of common 
 law for possession of the mercantile litigation of the 
 kingdom, the civilian's province has not been so 
 remote from our general legal history as it would 
 have been had it included only an embryonic 
 Foreign Office.
 
 II. THE FIRST ADMIRALTY 
 JUDGES 
 
 It is a commonplace of English legal history that 
 the proceedings of the ancient Court of Admiralty 
 were regulated by the Civil Law : but the circum- 
 stances in which the civilians made their entry 
 into their maritime heritage have not been very 
 closely investigated. The first point to be con- 
 sidered may be put as follows. In the ecclesias- 
 tical courts, going back (let us say) to Lanfranc 
 of Pavia, the mingling of the Civil and the Canon 
 Law at most, if not quite at all times l had been, 
 as Selden says, " not unlike the union of snakes 
 twisted about Mercury's wand." The civilian 
 ecclesiastic, trained in Italian schools, had there a 
 long-established footing. But the courts of the 
 admirals, military officers, come rather suddenly 
 into existence in the middle of the fourteenth 
 century : suddenly, because fifty years before, in 
 1297 to oe exact, Berwopd J. had remarked to 
 counsel, " De poer de admiralle dont vous parle 
 ne scavomes rienes," and Sir Matthew Hale's com- 
 ment on this dictum is that " it is not to be imagined 
 " that the Judges of the common law should not 
 " have known there was such an admirall juris- 
 " diction if it had been then in use." * Neverthe- 
 less it is well known that before the end of the 
 
 1 Supra, p. 10. 
 
 A Dissertation touching the Jurisdiction of the Common Law 
 and Courts of Admiralty. Cap. 10. Hargrave, M. S., 93.
 
 THE FIRST ADMIRALTY JUDGES 15 
 
 fourteenth century the courts of the admirals were 
 beginning to exceed their jurisdiction, and were 
 duly reproved by two statutes of Richard the 
 Second in 1389 and 1391. The courts, however, 
 with which they meddled and whose business they 
 in time absorbed, did not administer the Civil Law, 
 although a remote and unclaimed Roman ancestry 
 may have belonged to some part of the matters with 
 which they dealt. Yet in the middle of the six- 
 teenth century, as we have seen, it is stated that 
 " process is made and justice is ministered in the 
 Admiralty Court according to the law civil " : 
 and when Villandry, the French Envoy to Edward 
 the Sixth, said that the King his master wished 
 that an agreement were made between the ordin- 
 ances of England and France in marine affairs, 
 he could be told " that our ordinances were nothing 
 but the Civil Law and certain very old additions 
 " of the Realm." Selden, in his turn, has amplified 
 " this answer. " In the Court of Admiralty," he 
 wrote, " what occurs under the Titles Ad legem 
 " Rhodiam de iactu, de nautico foenore, de usuris 
 " nauticis, de cxercitoria actione, and other matters 
 " belonging to Marine Affairs, are usually handled 
 " according to the Justinian Law and expressly 
 " taken from the Code of that Emperor and from 
 " Interpreters upon it. But yet in such a manner 
 " that the Oleronian Laws likewise or the Marine 
 " Customs so called may, as is practised by other 
 " Nations, be blended with it and be allowed to
 
 16 THE FIRST ADMIRALTY JUDGES 
 
 " have the greatest Authority there." * The pass- 
 age is here quoted at length because, like the 
 earlier one, it distinguishes the old marine custo- 
 mary law from the Roman element. The same 
 distinction had been drawn earlier still in the 
 fifteenth century when, as if the latter were con- 
 sidered novel, we find it laid down that the lieu- 
 tenants or judges of the admiral shall " only mix 
 the law civil with the law maritime where it may be 
 equitable." 2 If we are to consider the rather 
 elementary twenty-five or twenty-six articles, of 
 which the more ancient versions of " the Oleronian 
 Laws " consist, as representing the bulk of the 
 marine customary law it seems probable that there 
 would often arise a need of something to fill up the 
 gaps. The Roman law had been a " Promptuary," 
 to use a word of Selden's, for the shapers of the 
 common law in Bracton's day ; in the development 
 of the law maritime it was not only prompter 
 but openly played a part, though nominally the 
 part might be but a subsidiary one. About what 
 date, then, did " the Justinian Law " openly seat 
 itself, so to speak, side by side with the old " Marine 
 Customs " ? 
 
 The early history of the Admiralty Court is 
 admittedly obscure. We do not know the year 
 of its beginning. The best authority only tells 
 us that its origin can be traced " with tolerable 
 certainty " to between 1340 and 1357, and that it 
 was instituted to deal with piracy or " spoil " claims 
 
 1 The Dissertation of John Selden, annexed to Fleta, p. 220. 
 'Mitchell, " Early History of Law Merchant (1904)," P- 77
 
 THE FIRST ADMIRALTY JUDGES 17 
 
 made by and against foreign sovereigns. 1 Its 
 earlier records are lost, but when we get them about 
 the year 1530 the Court is already seised of suits 
 concerning freight, average, sales of ships, and 
 goods, and other mercantile matters, which then, 
 form the larger part of its business. 2 It is enough 
 however, for our present purpose to know that 
 there were usually two or three admirals, each of 
 them with courts and deputies sitting therein, 
 from about the middle of the fourteenth century 
 until the first years of the next. Precisely when 
 the Court of Admiralty became one and indivisible 
 need not at present concern us. Both the re- 
 straining statutes of Richard, already mentioned, 
 speak of the admirals and their deputies in the 
 plural throughout. Coke says that of ancient time 
 there were several admirals because the wisdom 
 of those days would not trust one man with so- 
 great a charge ; but the extent of England's coast- 
 line has also to be considered. At any rate, in 
 1406, there is still an Admiral of the North and 
 another Admiral of the West, and also mention of 
 a " sub-admiral from the Thames to the south and 
 west of England," who was, like the others, pro- 
 vided with a lieutenant or deputy and everything 
 handsome about him. 8 
 
 It is with these lieutenants, holding " sessions 
 within divers places of this realm " and " encroach- 
 
 1 Marsden, " Select Pleas in the Court of Admiralty." I., 
 p. bcvii. 
 
 * Carter, " Hist, of English Legal Institutions," 4th ed. (1910), 
 p. 278. 
 
 3 Cal. of Patent Rolls. July 23, 1406.
 
 i8 THE FIRST ADMIRALTY JUDGES 
 
 ing to them divers jurisdictions " J that we have 
 here to do. They were the first Admiralty judges. 
 It is all very well for the " Black Book of the 
 Admiralty " to begin with the counsel of perfection 
 " when one is made Admiral he must first 
 " ordaine and substitute for his lieutenants, de- 
 " puties, and other officers under him, some of the 
 " most loyall, wise, and discreete persons in the 
 " maritime law and auncient customes of the seas 
 " which hee can anywhere find, to the end that by 
 " the helpe of God and their good and just govern- 
 " ment the office may be executed to the honour 
 " and good of the realme." Stubbs has noted 
 " the apocryphal character of all the early records 
 of the Admiralty." 2 The first deputies appointed 
 by the Admirals of Edward the Third's reign appear 
 to have been soldiers, and as an example of their 
 good and just government let us take the complaint 
 of the men of Scarborough in 1376. The burgesses 
 allege that by charters of the King's progenitors 
 and his own confirmation it had been granted to 
 them to improve the wastes within the town ; that 
 there was a waste called " Sandes," lying between 
 their town and the quay, which they and their 
 ancestors had for the most part built upon ; that 
 they held their market and fair on the remainder 
 and had " been accustomed to make executions of 
 " debts trespasses andother contracts there by the 
 41 bailiffs and ministers of the town " ; and that 
 they were " now newly prevented " from making 
 
 J 13 Rich. II., st. I. c. 5, and 15 Rich. II., st. 2, c. 3. 
 2 " Constitutional History," Vol. II., p. 289.
 
 THE FIRST ADMIRALTY JUDGES 19 
 
 such executions by the admiral's lieutenants, who 
 asserted that the waste should pertain to the King. 1 
 It is evident that Sandes was the spot where the 
 Law Merchant and the Rolls of Oleron would be 
 upon occasion appealed to ; and one does not see 
 why the admiral's lieutenants should have tried to 
 dispossess the burgesses of it unless they were 
 anxious to suppress Scarborough's quay-side court 
 altogether. In that case the instruction to en- 
 croach on the jurisdiction of the seaports was being 
 bettered. 
 
 At the risk of going over ground already well 
 known, a word or two must be said here about the 
 local maritime courts administering a customary 
 law to passing merchants and mariners which were 
 being harassed by the admirals. They are thought 
 with good reason to have been copies on a smaller 
 scale of those Courts of the Sea which are known 
 to have existed in the mercantile cities of the 
 Mediterranean at the beginning of the twelfth 
 century. 2 The date of their establishment in 
 England must be considerably earlier than those 
 ascribed to the written custumals of certain seaport 
 boroughs, which in a few cases have been preserved, 
 and which contain versions of that body of medieval 
 maritime law known as the Rolls of Oleron. Such 
 collections are the Domesday of Ipswich, which 
 belongs to the early fourteenth century, but recites 
 how a " false common clerk of the town " had 
 carried off an older book going back to the reign 
 
 1 Cal. Patent Rolls. May 13, 1376. 
 
 Twiss, " Black Book of the Admiralty," Vol. II., p. ix.
 
 20 THE FIRST ADMIRALTY JUDGES 
 
 of John, the " Oak Book " of Southampton, dating 
 from about 1300, and the " Liber Memorandorum " 
 and the " Liber Horn " in the Guildhall of London, 
 which are ascribed to the earlier years of Edward 
 the Third. When the Laws of Oleron first had 
 authority in English seaports is uncertain, 1 but 
 there is no doubt that they were the recognized 
 code in matters within their scope in the courts of 
 the boroughs long before those of the admirals 
 came into being. So much is clear, not only from 
 the antiquity of the manuscripts containing them 
 and compiled in English towns for convenience of 
 reference, but from a case of Pilk v. Venore before 
 the mayor and bailiffs of Bristol in 1351, in which 
 the authority of the " lex de Oleron " is assumed. 
 Both plaintiff and defendant pleaded it, saying 
 " talis est "; and the judgment was certified to the 
 Chancellor as based upon the lex et consuetudo de 
 Oleron* It is to be noted also that the seaport 
 courts were lay tribunals : the record of Pilk v. 
 Venore describes it as having been tried " in plena 
 " curia cor am maiore et ballivis et aliis probis 
 " hominibus villae et magistris et marinariis." 
 
 Now although Sir Travers Twiss finds in portions 
 of the consuetudinary law of the sea, as it has come 
 down to us in various collections of maritime 
 customs, the laws of Oleron amongst the number, 
 certain points of resemblance to provisions in the 
 Roman civil law, 3 we may be sure that the good men 
 
 1 As to this, see certain speculations in an article by Miss 
 G. F. Ward, Eng. Hist. Rev., July, 1918. 
 
 "Transcribed by Prynne, "Animadversions," 117. 
 8 " Law of Nations " (1861 ed.) Vol. I., p. 244 et seq.
 
 THE FIRST ADMIRALTY JUDGES 21 
 
 of the town who dispensed justice on the quays of 
 Ipswich and Bristol in the fourteenth century were 
 unconscious of any connexion with the Digest. 
 They knew that the law they administered was 
 not the common law of England, though recognized 
 and allowed ; and they were acquainted with the 
 pie-powder courts of the fairs administering the law 
 merchant, which was not common law either. 
 Fair-ground, market, and quayside were all one 
 at Scarborough, as we have seen. The kinship 
 between the law maritime and the law merchant, 
 quaintly described by Malynes at a much later 
 time " even as the roundness of the Globe of 
 " the world is composed of the Earth and Waters, 
 " so the body of Lex Mercatoria is made and 
 " framed of the Merchants' Customs and the Sea 
 " Laws, which are involved together as the Seas 
 " and the Earth " 1 was a reality even when in 
 the fourteenth century the bailiffs of Scarborough 
 and Bristol dealt with them. But it followed that 
 the law laid down by those worthies could not fail 
 sometimes to be what would now be called private 
 international law. Venore, the defendant in the 
 Bristol case cited above, was a master-mariner of 
 Bayonne. Fifty years earlier we find amongst the 
 names of the suitors in the Fair Court of St. Ives 
 those of merchants from Lou vain, Rouen, St. 
 Trond, Germany and Florence. 2 
 
 Of the influence of the medieval fairs, continental 
 and English, it has been said that " like the Church 
 
 1 " Consuetude et Lex Mercatoria " (1686). Preface. 
 
 * " Rolls of the Fair Court of St. Ives " (Selden Society).
 
 22 THE FIRST ADMIRALTY JUDGES 
 
 " on the religious side, the free fairs on the commer- 
 " cial side evoked and cherished the international 
 " spirit." * We ought to be able to say not less 
 (assuming the truth of this statement) about the 
 effect of the intercourse regulated by the courts of 
 the English seaports, but there are difficulties in 
 the way. For example, the preamble to the 
 statute, 9 Edward III., cap. I (1335) shows that the 
 seaports in particular did not share the King's 
 liking for the foreign merchant, a fact not to be 
 wondered at since, unlike the King, they did not 
 get much out of him. We read of " people of 
 " cities, boroughs, ports of the sea, and other places 
 " which in long time past have not suffered, nor 
 " yet will suffer Merchant Strangers," and so forth. 
 In 1349 we near th a * two Spanish ships have been 
 seized in the port of Plymouth, not by ordinary 
 depredators, but " by the bailiffs of that town tor 
 " trespasses done by Spaniards against the men 
 " of that town." * The merchants and masters of 
 the ships complain to the Council, and the King 
 appoints a sergeant-at-arms to release the vessels 
 from arrest, and to bring them to London : public 
 warning is to be given that all persons wishing to 
 complain against the said merchants and masters 
 are to be before the Council by the Feast of the 
 Ascension at the latest to prosecute their plaints. 
 The authorities of the town of Plymouth were 
 apparently extending the old idea of the " collective 
 
 1 Art., " Fairs," Enc. Brit. 
 
 *Cal. Patent Rolls. April 24, 1349.
 
 liability " l of gild or borough to the entire Spanish 
 nation, or at least the mercantile part of it. From 
 this account it seems probable that the courts of 
 the sea-boroughs, however useful locally, could not 
 always be trusted to " cherish the international 
 spirit." Where the matter is municipal, so to 
 speak, as regards the parties, the neighbours are 
 helpful. In 1385 three men of Bristol City quarrel 
 with a ship-master of Tenby : the commission 
 appointed to investigate the case includes the names 
 of several persons belonging to Bristol, and a writ 
 of aid for them is directed to the mayor and bailiffs 
 of the town. 2 But, as a Chancellor of near a 
 century later said in a case of a foreign suitor, the 
 law merchant is " ley universal par tout le monde le 
 ley de Nature." 3 As soon as it was discerned that 
 the law merchant and the law maritime, which, as 
 we have seen, were practically identical, had this 
 aspect of ius gentium, the little local courts of the 
 seaports, manned by bailiffs and " ministers " of 
 the town, may well have seemed inadequate for 
 their duties. How soon this happened one cannot 
 say ; but the reign of Edward the Third, when 
 the admirals' courts appear, was a period of in- 
 creasing foreign commerce, of transition from 
 medieval to modern ideas, and a little blending of 
 Praetorian equity with Oleronian law may already 
 have been seen to have something to recommend 
 
 See Pollock and Maitland, " Hist, of English Law." Vol. I., 
 pp. 682, 683. 
 
 ' Cal. Patent Rolls. Dec. 7, 1385, and Jan. 3. 1386. 
 " Year Book," 13 Edw. IV., 9.
 
 24 
 
 it. The lawyer learned in the Civil Law was best 
 fitted to effect this. 
 
 Having suggested that possibly the old quay-side 
 tribunals of the ports were already lagging behind 
 the times, let us return to the courts of the admirals, 
 newly set up. Where in the Patent Rolls an early 
 deputy or judge has a description of his calling 
 appended to his name it is not such as would lead 
 us to suppose that he could improve upon the 
 justice of the borough courts, either in the way in- 
 dicated or any other. About 1347 a " king's 
 yeoman," Philip de Witton, is " supplying the 
 place of " the Admiral of the West. 1 He certifies 
 that a ship belonging to Thomas Cok of Fawy is 
 forfeited to the King for robbery committed upon 
 the sea by the men therein, and the King gives it to 
 Peter Foulk of Winchelsea " in compensation for 
 " a ship of his which the King for certain causes 
 " lately caused to be sunk in the port of Caleys." 
 One would like to have been told more of the part 
 that Foulk's ship had played in the operations 
 against Calais, taken by the English in this year, 
 but what more immediately concerns us is to note 
 that the admiral's deputy is here exercising as 
 much an administrative function as a judicial 
 one, and if the office were at first so regarded it 
 would account for the appointment of deputies 
 without any particular legal training. But be that 
 as it may, Andrew de Guldeford, the lieutenant of 
 Ralph Spigurnell, warden of the Cinque Ports and 
 admiral in 1366, is described as a " king's sergeant- 
 
 1 Cal. Patent Rolls. Feb. 21, 1347.
 
 THE FIRST ADMIRALTY JUDGES 25 
 
 at-arms." l And in 1371 we have Walter Hanley, 
 " sergeant-at-arms," sitting as lieutenant of Robert 
 de Assheton, admiral of the King's fleet from the 
 Thames towards the west, on information that 
 evil-doers have attacked three ships of the mer- 
 chants of Portyngale of the King's amity. 2 He has 
 Richard de Lyouns, a London merchant, associated 
 with him, probably as assessor in a case concerning 
 merchant shipping, and following the ancient usage 
 in the constitution of the seaport courts. But 
 about 1390 the deputy of the admiral of the west 
 is a knight of the name of Nicholas Clifton who 
 plays his part alone. One Swanland appeals 
 against his decision in the matter of a bond made 
 " far inland and nowhere near the sea coast, in 
 " respect of which the appellant alleges that the 
 " said Nicholas has no jurisdiction, and moreover 
 " has pronounced sentence without citing him or 
 " giving him notice." 3 After this one is not sur- 
 prised to find two other appeals from the knight's 
 sentences recorded in 1391. This was the year in 
 which the second statute of Richard, forbidding 
 the encroachments of the admirals' deputies, was 
 passed ; and the irregularities committed by the 
 court of the Earl of Huntingdon, admiral in the 
 south and west, are supposed largely to have 
 
 1 Cal. Patent Rolls. Jan. 30, 1366. "Note that in later times 
 the Steward of the Lord Warden's court was regularly described 
 as ' senescallus eruditus ' ; this court had Chancery as well as 
 Admiralty jurisdiction down to the eighteenth century, and the 
 steward, as the judge's delegate, had a position much like that 
 of a Master in Chancery." Sir F. Pollock, Bart., K.C. 
 
 Cal. Patent Rolls. Dec. 3. 1371. 
 
 "Cal. Patent Rolls. Dec. 12, 1390.
 
 26 THE FIRST ADMIRALTY JUDGES 
 
 contributed to the need for it. During the previous 
 year this nobleman had run foul of the City of 
 London, and we have him complaining that the 
 mayor and sheriffs had done " divers duresses, 
 " grievances, disobediences or rebellions, and pre- 
 " judices to the office and court of admiralty and 
 " procured them to be done." 1 If such was the 
 tone adopted towards London, whose chief magis- 
 trate could ask Edward the Third to dinner, the 
 lesser ports may well have been alarmed. Be- 
 tween the admiralties themselves there is also 
 evidence of conflict ; it is complained in 1401 that 
 the lieutenant of the admiral of the west, Thomas 
 Rameston, has upset a judgment previously ob- 
 tained before the deputies of the Earl of Worcester, 
 admiral of England. 2 Nor was it the admirals 
 alone who endeavoured to convey (in Pistol's 
 phrase) other people's Jurisdictions : only nine years 
 after the passing of the statute, 27 Edward III., 
 establishing the Mayor of the Staple, he has to be 
 reminded that the common law is not within his 
 province. 3 The suitors, actual or potential, must 
 have been sorely puzzled. In 1393 or thereabouts, 
 John Copyn, master of the Gabriel of St. Osyth, 
 sued two merchants for the freight on a cargo of 
 wine brought by him from Bordeaux to Gadenesse 
 in Essex. He alleged that he had sued them first 
 at common law and afterwards in the Admiralty 
 Court of the north without remedy before he tried 
 
 Cal. Patent Rolls. Jan. 24, 1390. 
 * Ibid. June 14, 1401. 
 36 Edw. III., cap. 7.
 
 THE FIRST ADMIRALTY JUDGES 27 
 
 the court of the Constable and Marshal, " who said 
 they had no jurisdiction." l As the wine is not 
 stated to have been in the nature of military stores, 
 it is not clear why this determined mariner thought 
 of the Constable and Marshal ; but it is refreshing 
 to find that on this occasion at least they recognized 
 their limitations. Later on, in 1409, this court is 
 accused, in common with those of the admirals, 
 of taking cognizance " des choses triables par le 
 Commune ley." * 
 
 There existed then at this time between the 
 various jurisdictions having within their purview 
 the foreign merchant and contracts made outside 
 the realm a state of conflict and unintelligibleness 
 much in need of regulation. The new courts of the 
 admirals, with a sergeant-at-arms as judge, and a 
 tendency to regard a plea to the jurisdiction as a 
 " rebellion " were probably even less satisfactory 
 than the tribunals presided over by the seaport 
 bailiff, not always to be trusted to do right to a 
 " despoiled " foreign plaintiff. 3 It is submitted 
 that between the truculence of the one and the 
 parochialism of the other (and some evidence has 
 been given of both) the civil lawyers found within 
 their own field an opportunity of which in a few 
 years they took advantage. There is reason for 
 thinking that the procedure of the gradually 
 evolved principal court of Admiralty, which was 
 certainly sitting in Southwark by 1410 * underwent 
 
 1 Cal. Patent Rolls. Nov. 25, 1393. 
 Rolls of Parliament, II Hen. IV. 
 
 See the Stat. 2 Hen. V., cap. 6, establishing Conservators of 
 the Truces. 
 
 4 Rolls of Parliament, 2. Hen. IV., c. 61.
 
 28 THE FIRST ADMIRALTY JUDGES 
 
 regulation about the year 1406 ; and it is significant 
 that about this time, namely, in 1408, we meet in 
 the Patent Rolls with the name of Master Henry 
 Bole, Doctor of Laws, whom Prynne sets down first 
 in his list of judges of the Court of Admiralty 
 with an interval, it may be added, of seventy years 
 before he can find a second one. It has, it is true, 
 been pointed out that except as a diplomatist, a 
 chancery clerk, or a teacher, the civilian could find 
 little to do in England, and that the Court of 
 Admiralty, even when it came into existence, could 
 not afford employment for many practitioners. 1 
 But the local sessions of the admirals, existing even 
 after the principal court had been set up, would 
 and did make an opening for some of them as 
 deputies. The subject-matter of the cases coming 
 before the admiral's courts was within the civilian 
 chancery-clerk's sphere : " spoil " and piracy cases, 
 to deal with which the Court of Admiralty was 
 originally instituted, as well as cases arising out of 
 the Law Merchant which the Court of Admiralty 
 soon took upon itself to decide, had long been 
 matters of appeal to the Chancellor. There is, 
 moreover, direct evidence that in the year 1404 
 certain doctors of the civil law were called in to 
 assist at the hearing in the Chancery of a suit 
 which had been transferred thither by a writ of 
 supersedeas from the admiralty court of the West 
 on the petition of one of the parties. 2 It is always 
 
 1 Pollock and Maitland, " Hist, of English Law," Chap. V. 
 
 2 Close Rolls, 5 Hen. IV., Part i, m. 3. The material part of 
 the record (which was kindly communicated to me by Mr. 
 W. H. B. Bird at the suggestion of Mr. R. G. Marsden) is as
 
 THE FIRST ADMIRALTY JUDGES 29 
 
 the lawyer learned in a law that is not national 
 whose advice is sought in such matters : the 
 unknown author of that part of the " Black Book 
 of the Admiralty," which is called Or do ludiciorum or 
 Praxis Curiae Adtniralitatis, is supposed to have 
 been a civilian of the University of Bologna. It 
 is material, moreover, to remember that as far 
 back as 1339, Edward the Third had referred to 
 three ecclesiastics (in whom a knowledge of the 
 civil law might be presumed) for advice as to the 
 laws proper to be enforced in maritime matters j 
 they were Adam Murimuth, Official of the Court of 
 Canterbury, Richard de Chadderly, Dean of the 
 Arches, and Henry de Eddesworth, Canon of St. 
 Paul's, and in this circumstance Sir Travers Twiss 
 sees an omen of coming events. 1 There was, how- 
 ever, nothing very new in the mere allocation of 
 sea-affairs to churchmen : Edward the First's 
 employment of William de Grenefeld, Canon of 
 York, in the matter of a marine treaty, has already 
 been mentioned. 2 Even before his time they had 
 employment in the sphere of naval administration, 
 though hardly in this case in virtue of purely legal 
 attainments. We read of William Wrotham, 
 Archdeacon of Taunton, being Keeper of the King's 
 Ships in the time of John, and of Friar Thomas of 
 the Temple occupying a similar position under 
 
 follows : " videbatur iusticiariis et servientibus ad legem ac aliis 
 peritis de concilia in Cancellaria existentibus , necnon quibusdam 
 iuris civilis doctoribus qui ibidem de mandato (Regis) venerunt 
 materiam in dicta peticione contentam in Cancellaria de iure 
 discuti seu terminari non debere." 
 
 1 " Black Book," Vol. II., p. xlii. 
 
 1 Supra, p. 6.
 
 30 THE FIRST ADMIRALTY JUDGES 
 
 Henry the Third. 1 But the reliance of Edward the 
 Third upon the judges of the ecclesiastical courts 
 in London for advice on the law of the sea is un- 
 doubtedly a landmark, having regard to the sub- 
 sequent settlement of the civilians under the shadow 
 of St. Paul's Cathedral, the ultimate holding of the 
 Arches and the Admiralty Courts in the same Hall, 
 and the fact that as late as the year 1840 the Dean 
 of the Arches was by statute empowered to sit 
 for the Judge of the High Court of Admiralty. 2 
 
 But to return to our period : there were signs of 
 a fresh stirring of the Roman Law in England 
 during the latter half of the fourteenth century. 
 The Study of the Civil Law had outgrown the dis- 
 favour with which the Church had at one time 
 regarded it. 8 It was in Edward the Third's reign 
 that the Chancellor began in his administration 
 of Equity to resort to the Corpus luris or to the 
 Roman elements in the Canon Law, for the elucida- 
 tion of principles. 4 In 1350 Trinity Hall had been 
 founded by the lawyer-bishop, William Bateman, 
 exclusively for the furtherance of the study of the 
 Civil and the Canon Laws : it was afterwards, as 
 we shall see, to have something to do not only 
 with the teaching of the civil law but with the 
 practising civilian lawyer. The fulminations of 
 John Wyclif against the Roman Law in the year 
 
 1 " Black Book," Vol. II., p. xlii : as to Friar Thomas, see 
 Nicolas, " Hist. Royal Navy," Vol. I., p. 221. 
 
 2 3 & 4 Viet., cap. 65, s. i. 
 
 Clark, "Cambridge Legal Studies," p. 41. 
 4 Goudy, " Fate of Roman Law North and South of the 
 Tweed," p. 15.
 
 THE FIRST ADMIRALTY JUDGES 31 
 
 1378 may also be taken as proof of the existence 
 of a revived interest in it. Without going so far 
 as to say that at the epoch with which we are 
 concerned the legal legacy of Rome (like certain 
 art treasures from the Acropolis at a much later 
 day) attained the doubtful dignity of an English 
 party question, we know that Richard the Second's 
 fondness for it caused the barons in Parliament to 
 declare that this realm of England had never 
 been and should never be ruled or governed by the 
 civil law. 1 It seems a fair inference from these 
 facts that an increase in the number and activity 
 of the civilians was contemporary with them. 
 
 At all events, we have Master William Menesse, 
 clerk, licentiate in laws, sitting as deputy or judge 
 for the admiral in the West as early as 1391.* 
 There are a few instances of knightly deputies 
 afterwards, but, so far as added descriptions enable 
 us to judge, one or even two clerics were usually 
 their colleagues. And in 1403 there is Master 
 Simon Sydenham, Doctor of Laws, sitting alone 
 as Lieutenant and Commissary of the Admiral of 
 the North ; s in 1406 Master Thomas Felde, 
 Doctor of Laws, described as " late commissary of 
 " Henry, Lord of Beaumont, late sub-admiral in 
 " the south and west," * and in 1408 there is Dr. 
 Bole, already mentioned, Prynne's first judge, who 
 is described in the Patent Rolls as Lieutenant of 
 
 1 Blackstone's " Commentaries " : (1765). Introduction, 
 p. 19- 
 
 *Cal. Patent Rolls. June 20, 1391. 
 Ibid. Mar. i, 1403. 
 Ibid. July 23, 1406.
 
 32 THE FIRST ADMIRALTY JUDGES 
 
 Thomas Beaufort, knight, Admiral of England and 
 Ireland. It would not be difficult, if it were worth 
 while, partly to fill up from this source the long gap 
 in Prynne's list between Bole and one William Lacy, 
 LL.B., judge in 1483 ; but it is enough to say here 
 that from early in the fifteenth century the civilian 
 lawyer appears completely to have ousted the 
 " chivaler " and sergeant-at-arms from the Admir- 
 alty judgment-seats, and to be nearly as frequently 
 appealed from. The statute of Henry the Fifth, 
 in 1414, whereby " two learned men in the law " 
 were always to be associated with the conservator 
 of the truces in the seaports, does not say which 
 law ; but it may have marked the exit of the un- 
 assisted and unlearned official. And the first 
 quarter of the century is but just gone when the 
 existence of a body of advocates practising in the 
 Admiralty Courts is indicated by the record of a 
 suit in 1430, before the admiral's deputy " in the 
 parts of Norfolk and Suffolk." * The defendant 
 " could not find a counsel there, and the admiral 
 " accordingly revoked the case to his principal court 
 "at Southwark near London, where counsel are in 
 " plenty, commanding his lieutenants or deputies in 
 " the said parts to proceed no further in the matter." 
 The principal court was still located at Horton's 
 Quay in Southwark in the time of Henry the Eighth, 
 afterwards moving to the church of St. Margaret- 
 at-hill in the same parish. Something of the way 
 in which the local courts like that in the parts of 
 Norfolk and Suffolk were co-ordinated with it may 
 
 1 Cal. Patent Rolls. July 18 1430.
 
 THE FIRST ADMIRALTY JUDGES 33 
 
 be surmised from the use of the word " revoked," 
 which seems to imply that causes originally in- 
 stituted in the principal court were sent down to 
 the country deputies for trial. In the year 1410 
 the Commons had complained of people being 
 summoned by the officers of the admiral " a Loun- 
 dres a le key de William Horton, Suthwerke " ; l 
 and in 1422 there is mention of a court of the 
 admiral " held in turn at the towns of Dertemouth. 
 Plymouth, and Kyngesbrygge." * If the deputies 
 went small local circuits like this it throws fresh 
 light upon the well-known anxiety of the boroughs 
 to obtain grants of exemption from the jurisdiction 
 of the admiral. But the most interesting fact that 
 emerges from the record of the Norfolk case is 
 that the Admiralty side of what afterwards became 
 the College of Advocates was apparently ready for 
 business by the year 1430. It may not have been 
 a very numerous body. It is said that the doctors 
 even when the college was established, only 
 numbered sixteen or seventeen in 1585, and forty- 
 four in 1694 : 3 but if the record just cited is to be 
 believed there were already " plenty " under Henry 
 the Sixth for the purpose of giving counsel. 
 
 How completely admiralty cases were regarded 
 as the province of the civilians and canonists by 
 the time the first quarter of the fifteenth century 
 had passed may be gathered from the form of the 
 commissions then issued to hear appeals from the 
 
 I 
 
 1 Rolls of Parliament. 2 Hen. IV.. s. 61. 
 
 1 Cal. Patent Rolls. June 25, 1422. 
 
 3 Thornbury, " Old and New London," Vol. I., p. 286.
 
 34 THE FIRST ADMIRALTY JUDGES 
 
 admirals' deputies. There is one in 1429 to the 
 famous canonist, William Lyndwode, therein de- 
 scribed as a doctor of both laws, to Master John 
 Lynfeld, bachelor in laws, and Master Senobius 
 Nofire, doctor of decrees, together with two alder- 
 men of London, to hear an appeal against a decision 
 given by Doctor John Gentil, the lieutenant of the 
 Admiral : but it goes on, " and to any two or more 
 of them," always including either Lyndwode, or 
 Lynfeld or Noffre, so that the lay members of the 
 commission could never act by themselves. 1 Other 
 commissions of about the same date contain the 
 same precaution. The civil lawyer was now fully 
 seised of his maritime demesne. 
 
 1 Cal. Patent Rolls. Sept. 18, 1429.
 
 III. THE FIFTEENTH CENTURY 
 
 The successors of the learned persons just men- 
 tioned had established themselves in London on 
 something like a collegiate foundation a small 
 legal profession apart from the ordinary one 
 before the death of Henry the Seventh in 1509. 
 The section of our story that is mainly concerned 
 with the sixteenth century may be anticipated so 
 far as to say that the records of what was in later 
 times styled " The College of Doctors of Law 
 exercent in the Ecclesiastical and Admiralty 
 Courts " go back to the year 1511. But the way 
 was being prepared for it long before. It is difficult 
 not to associate the gradual emergence of this 
 institution to full and formal establishment with 
 currents of thought and culture that had begun 
 to flow during the fifteenth century. Moreover, 
 although admiralty and international law were but 
 a part of the business of these practitioners it was 
 within that province especially that those currents 
 would seem to have helped the civilians on their 
 course. There were political reasons also when, 
 later, we come to the time of Henry the Eighth, 
 even reasons of ecclesiastical polity 1 why the 
 underlying principles of the civilians' science would 
 meet with the temporary approval of statesmen. 
 It will therefore not be out of place to refer to some 
 
 1 See Maitland, " Canon Law in England "(1898), p. 92, et seq. 
 35
 
 36 THE FIFTEENTH CENTURY 
 
 of the more characteristic tendencies of the age, 
 though such reference must needs be both brief 
 and superficial. 
 
 We learnt in our youth from the pages of Green's 
 " Short History " that when the lawyers of the 
 Long Parliament turned back to look for prece- 
 dents of constitutional liberty they found that the 
 hundred years or so between the accession of 
 Edward IV. and the time of Elizabeth yielded 
 nothing to their purpose. This is the period to 
 which the fifteenth century led up, and which it 
 partly overlaps. It was also a time of increasing 
 foreign commerce, of much advancement of learning, 
 and at its close coincided with a golden era of 
 literary accomplishment. It may perhaps be said 
 in palliation of that century's political short- 
 comings, which, however, appear not to have been 
 incompatible with progress in other directions, that 
 when a nation, or the more reputable and far-seeing 
 part of it, is faced by danger of anarchy it is apt to 
 welcome law and order howsoever provided. In 
 England in the middle of the fifteenth century the 
 old feudal basis of society was being shattered ; 
 and freedom had aforetime been won by the sword 
 of that very Baronage which was exhausting itself 
 in the Wars of the Roses. In the middle of the 
 fifteenth century the Church, in the presence of 
 Lollardry and Socialism, had ceased to be a great 
 political power ; and the Church in older days 
 had been the protector of the tradition of freedom. 1 
 It would be fantastic to suppose that many con- 
 
 1 Green, op. cit., Chap. VI., Sect. iii.
 
 THE FIFTEENTH CENTURY 37 
 
 temporary minds, even when confronted by cracks 
 in the edifice of state so apparent, turned wistfully 
 towards the coherence and permanence of the legal 
 system of imperial Rome, with its un-English spirit. 
 Yet if the above-mentioned changes paved the 
 way, as we are told they did, for the absolutism 
 of the Tudors, they would hardly dishearten the 
 professed exponents of a code that contained the 
 terse and convenient maxim, " Quod principi 
 placuit legis habet vigor em " 1 a phrase which Sir 
 John Fortescue thrice quotes in his book in praise 
 of the laws of England and always in order to show 
 that no such principle of autocracy had any place 
 in them. This text from Justinian's " Institutes " 
 was a terrible and long lived bte noire. 
 
 The foreign trade of the country, moreover, was 
 rapidly passing out of the hands of Hanseatic and 
 Florentine merchants into those of Englishmen ; 
 and the commercial classes demanded for their own 
 ends above all things security and order. They 
 desired, in particular, a uniform law, and they 
 found it or the civilians found it for them 
 in the Corpus luris : 2 " I us lustiniani prae- 
 scriptum libris, non civitatis tantum est, sed et 
 gentium et naturae : et aptatum sic est ad naturam 
 universum, ut imperio extincto, ipsum ius diu 
 
 1 " A maxim to which Glanvill had done lip-service before the 
 Common Law found its own feet. Tudor statecraft bettered 
 the instruction by reading " princeps " as the King in Parliament 
 and working a practical despotism in strictly legal form. For- 
 tescue, however, would probably have dissented from the 
 doctrine of parliamentary omnipotence expounded by Sir Thomas 
 Smith and now orthodox." SirF. Pollock, Bart, K.C. 
 
 8 Adams, " Civilisation during the Middle Ages," p. 449.
 
 38 THE FIFTEENTH CENTURY 
 
 sepultum surrexerit tamen, et in omnes se effuderit 
 gentes humanas " it was thus that Albericus 
 Gentilis wrote of it in the sixteenth century. 1 We 
 may perhaps add that at the beginning of the 
 fifteenth the obsequies of the Roman Empire were 
 so far incomplete that its ghost still occasionally 
 walked. It is hard to say to what extent, if at all, 
 that august shade influenced practical men ; but 
 it is on record that when the Emperor Sigismund 
 landed at Dover in 1416 several nobles, including 
 Duke Humphrey of Gloucester, a great patron of 
 bookish folk, rode into the water to inquire whether 
 he claimed to exercise authority or jurisdiction in 
 England. It is also said that a century later 
 Cuthbert Tunstall had to assure Henry VIII. that 
 he was no subject of the Empire, but an independent 
 sovereign. 2 It may be that some of the doctors of 
 civil law of our period, behind the practical applica- 
 tion of their science to international affairs, still 
 cherished the theory of a supreme central authority; 
 that sheet-anchor, so to speak, which, ever since 
 the Reformation created the independent modern 
 State 3 and upset Imperial and Papal applecart 
 alike, has been lacking to international lawyers. 
 " It was," says Bryce, " the Roman Empire and 
 " the Church taken together which first created 
 " the idea of a law common to all subjects and, later, 
 
 1 De Jur. Bell., Lib. I., cap. 3. 
 
 8 Dyer and Hassall, " Modern Europe," Vol. I., p. 23. "The 
 claim was, of course, much older in both England and France : 
 witness the title " Basileus " used here before the Norman 
 Conquest." SirF. Pollock, Bart, KC. 
 
 a " The supreme achievement of the Reformation is the modern 
 State." Figgis, " Camb. Mod. Hist.," Vol. III., p. 736.
 
 THE FIFTEENTH CENTURY 39 
 
 " to all Christians, a law embodying rights enforce- 
 " able in the courts of every civilised country." l 
 There may even have been a few men in England at 
 the beginning of the fifteenth century who were in 
 sympathy with Petrarch's words to the Roman 
 people in the middle of the fourteenth : " Was there 
 " ever such peace, such tranquillity, such justice 
 "... when was ever the State so wisely guided, 
 " as in the time when the world had obtained one 
 " head, and that head Rome ? " If so, they were 
 probably amongst the students of the Civil Law. 
 We allude in passing to this afterglow of Rome's 
 departed greatness only because it is still discernible 
 in the thought of the age. Doubtless both the 
 prestige and the usefulness of the Corpus luris were 
 already derived much more from those qualities 
 which Gentilis describes in the passage cited thaa 
 from a retrospect more or less sentimental. 
 
 We cannot "say that the fact of there being no 
 longer any central political authority behind the 
 law " et gentium et naturae " which could be 
 gathered by the civilians out of their Roman books 
 accounts for English merchants at this period 
 bestirring themselves in an effort to bring about 
 some sort of law and order upon the sea. But the 
 measures taken in England at this time to that end 
 chiefly directed to an increase of what is now 
 called sea-power are not unrelated to our subject 
 inasmuch as such alternative remedy as might lie 
 in an appeal to law and reason rested, when and sc* 
 far as it was possible to apply it, in the hands of the 
 
 1 "Studies in History and Jurisprudence," Vol. II., p. 130.
 
 40 THE FIFTEENTH CENTURY 
 
 doctors of the civil law, either as diplomatists or as 
 admiralty judges. It is evident, however, that the 
 practical men of the fifteenth century had no great 
 faith in law unbacked by force : nor does their 
 want of enough force to put down the disorder at 
 sea that characterised their time impeach the 
 commonsense of their theory. If the law of 
 nations and of nature did not work very well upon 
 the high seas it was clearly expedient in any inter- 
 national difference, public or private, which might 
 arise thereon to ensure as far as possible that your 
 side should be the stronger. The alternative is 
 probably inherent in the nature of things. It is 
 possible that a more minute investigation into the 
 origins of maritime jurisdiction would show that 
 the imperfect sanction of ius naturae had a good 
 deal to do with the well-known assertions of 
 dominion over large tracts of salt water by parti- 
 cular sovereigns and states in medieval and even 
 later times. Incidentally we might point to the 
 antithesis of ius naturale and sea-power made as 
 far back as the early years of the fourteenth century 
 by a commentator on Bracton, whose gloss testifies, 
 as Professor Maitland pointed out, to a very early 
 claim on the part of the King of England to a 
 lordship of the sea x " Et nota de prima parte," 
 he wrote, " quod in Anglia minus curatur de iure 
 " naturali quam in aliqua regione de mundo quia 
 11 Rex Angliae vocatur dominus marium propter 
 41 potestatem suam quam habet in aquis." The note 
 certainly testifies to the claim : but one may also 
 
 1 Bracton and Azo. (Selden Society, 1895), P- I2 5-
 
 THE FIFTEENTH CENTURY 41 
 
 see in it something perhaps of the jurist's regret at 
 the supersession of " natural " law by national 
 power. To revert to the fifteenth century, how- 
 ever, there is no doubt about the opinion of the 
 author of " The Libel of English Policie, exhorting 
 " all England to keepe the sea and namely the 
 " narrowe sea," a rhymed tract which is ascribed to 
 a date between 1426 and 1437.* He is a thorough- 
 going nationalist ; he has nothing whatever to 
 say about the Law of Nature, but when once he 
 passes away from purely commercial topics, a good 
 deal about Edward the Third, his gold noble with 
 the ship on it, the naval victory off Sluys, and the 
 " great shippes " of Henry the Fifth. His doctrine 
 is that 
 
 " The ende of battaile is peace sikerly 
 And power causeth peace finally," 
 and he sees in an England strong upon the sea " an 
 endly or finall processe of peace by authoritie," 
 which and here the poet steps in is to culminate 
 in every nation cultivating unity of spirit in the 
 bond of peace, conformably to the admonition of the 
 Apostle. It were easy to raise a smile at the good 
 man's optimism ; but at least he recognizes the 
 crucial necessity of a policeman, and the quaint 
 project of an International Navy had not been 
 thought of in his day. There have been much 
 later occasions when the strength of the British 
 Navy has come near to fulfilling the role he imagined 
 for it, and that not upon the " narrowe sea " alone. 
 But in truth the author of " De Politia Conserva* 
 
 1 Printed in Hakluyt's " Principal Navigations."
 
 42 THE FIFTEENTH CENTURY 
 
 tiva Mans " was thinking principally of England's 
 particular interests, and already in 1415 the 
 Commons in speaking of the Navy had placed on 
 record their opinion that " la dit Naveye est la 
 griendre substance du bien, profit & prosperitee du 
 vostre dit Roialme," 1 words which, as has been re- 
 marked, anticipate by nearly 250 years those of 
 the preamble to the Naval Discipline Act of 1661, 
 and still have a close paraphrase in the Statute 
 Book. 
 
 Measures showing a recognition of the importance 
 of sea-power to commerce and of both to the 
 Kingdom had already been taken. The growing 
 merchant class in 1406, the same year in which 
 the procedure of the Admiralty Court is supposed 
 to have been regulated anew, were bent upon 
 looking after the security of the trade-routes them- 
 selves : and accordingly an enactment of that year 
 placed the safeguard of the sea in the hands of the 
 merchants, mariners and shipowners of England 
 from the first of May to the Feast of St. Michael 
 next-ensuing, and thence for the space of one year. 1 
 The ordinance contains some interesting provisions 
 as to the ways and means of the scheme which 
 must not now detain us : that it was temporary and 
 experimental does not detract from its interest 
 as a symptom. But the merchants, as Sir Michael 
 Foster significantly puts it, were soon " eased of a 
 " service they were found to be very unequal to, 
 " their admirals' commissions dropped and the 
 
 1 Rolls of Parliament, 3 Hen. V. 
 
 2 Rolls of Parliament, 7 & 8 Hen. IV.
 
 THE FIFTEENTH CENTURY 43 
 
 " whole direction of the marine returned to its 
 " proper channel." l Another extraordinary effort 
 to establish order at sea was made some fifty years 
 later in the reign of Henry the Sixth, and had no 
 more success than that of the merchants and ship- 
 owners in 1406. This time the Earls of Salisbury and 
 Oxford and other nobles took upon themselves the 
 keeping of the sea from April, 1454, for a term of 
 three years, " they to have for the said cause the 
 " subsidie of tonnage and poundage granted unto us 
 " at our last parlement " and, in addition, a sum of 
 2,000 marks " by way of rewarde." * Yet in spite 
 of all efforts to secure " peace by authentic '* 
 piracy continued to flourish : during the latter half 
 of the fifteenth century, English, French, Spanish, 
 Portuguese, Genoese, Venetian, Flemish and 
 German corsairs preyed upon the shipping of all 
 countries indiscriminately. 3 It will be apparent 
 from the facts adduced in the course of what may 
 have seemed a digression that the need of admiralty 
 courts to deal with piracy and " spoil " cases was 
 not less at the end of the fifteenth century than it 
 had been in the time of Edward the Third, who first 
 established them for that purpose 150 years before : 
 and the civil lawyers who had annexed those courts 
 had probably no lack of plaints with which to deal. 
 The reign of Henry the Fifth, at the beginning of 
 which the Commons had stated their pious opinion 
 of the King's Navy, was indeed marked by the 
 
 1 " Reports," 2nd Ed., p. 168. 
 
 * Stevenson, " Papers temp. Henry VI.," Vol. II, ," pp. 493-4. 
 
 1 Marsden, " Select Pleas in the Court of Admiralty, ' p. Ivi.
 
 44 THE FIFTEENTH CENTURY 
 
 promulgation of regulations in virtue of which 
 Stubbs does not hesitate to call that sovereign " the 
 " founder of our military, international and maritime 
 "laws " x : and we may be pretty sure that in the 
 framing of them the professors of the Civil Law 
 would be consulted, following the precedent, 
 already alluded to, set by Edward the Third. The 
 Statute of Truces in the second year of Henry's 
 reign was passed with the object of regulating mari- 
 time warfare by forbidding all acts of violence on 
 the main sea without the authority of the King, 
 and by requiring captors of ships to bring their 
 prizes into port for adjudication. 2 It was found 
 to have gone a little too far, and to have made the 
 King's subjects afraid of attacking the King's real 
 enemies ; it was followed in the fourth year of the 
 reign by a statute authorizing the issue of letters of 
 marque and reprisal under the Great Seal. 3 Be- 
 sides these efforts to regulate the proceedings of 
 his lieges at sea Henry built a Navy, and possessed 
 in the year 1417 six great ships, eight barges and 
 ten balingers. 4 There is also to his credit the 
 Ordinances of War drawn up in 1419, a more 
 elaborate and, for the times, a more enlightened 
 code of military law than had previously appeared. 5 
 We may here again assume with some certainty 
 the assistance of the civil lawyers. The laws of 
 
 1 " Constitutional History," Vol. III., p. 77. 
 
 2 2 Hen. V., cap. 6. 
 
 3 4 Hen. V. cap. 7. 
 
 4 Nicolas, " Agincourt," App., p. 21. The "barges" were 
 rigged with one mast like the ships and carried guns. 
 
 5 Printed in their earliest English form in Twiss, " Black Book 
 of the Admiralty," Vol. I., App., p. 459.
 
 THE FIFTEENTH CENTURY 45 
 
 war had always been one of their special subjects, 
 and the Court of the Constable and Marshal which 
 administered them regulated its proceedings by 
 the civil law. Concerning this now obsolete court 
 little need be added to the account of it that 
 Blackstone gives. The Court of Chivalry was a 
 military court or court of honour when held before 
 the Earl Marshal only ; it was also a criminal 
 court when held before the Lord High Constable of 
 England jointly with the Earl Marshal, and then 
 it had jurisdiction over pleas of life and member 
 arising in matters of arms and deeds of war as well 
 out of the realm as within it. 1 But the passage in 
 which Serjeant Hawkins notices it may be cited, 
 since it throws considerable light on the limited use 
 of the civil law in England. The Court of the Con- 
 stable and Marshal, he says, " ought to follow its 
 " own Customs and Usages so far as they go, and 
 " in cases omitted the Rule of the Civil Law." We 
 have here an exact analogy to the supplementing 
 of the Sea customs in the admiralty courts : the 
 " customs and usages " of the Court of Chivalry 
 were at the same time gradually embodied in such 
 Ordinances as that just mentioned which Henry 
 the Fifth promulgated, or were set forth in books 
 like the " De Studio Militari " of Nicholas Upton, 
 Bachelor both of Civil and Canon Law, who wrote 
 in the first half of the fifteenth century, and " The 
 Practice, proceedings and lawes of armes " which 
 Matthew Sutcliffe, Dean of Exeter and an advocate 
 at Doctors' Commons, brought out at the end of 
 1 " Commentaries." (1765) Book IV. Chap. XIX, p. 264.
 
 46 THE FIFTEENTH CENTURY 
 
 the sixteenth. Hawkins proceeds : " And yet the 
 " Judges of the Common Law take notice of the 
 " jurisdicton of this Court, and give credit to a 
 " certificate of its Judges for the trial of an issue 
 " concerning its Proceedings : for the Civil Law 
 " is as much the Law of the Land, in such Cases 
 " wherein it has been always used, as the Common 
 " Law is in others." 1 As showing further that 
 the law military was one of the civilians' special 
 provinces a reference may be made to John Feme's 
 description of a trial by combat before the Court 
 of the Constable and Marshal, in his " Blazon of 
 Gentrie," published in 1586. At the feet of the 
 judges on such an occasion he tells us " shal be 
 " placed a competent number of auncient and 
 " experienced Knights, with the King of Heraldes, 
 " and one Doctor or more of the Civill Lawes, to 
 " assist the Court in advise concerning the lawes 
 " of battaile and combat if anye thing of dimcultie 
 " should then happen." * An antiquated regula- 
 tion, even when Feme wrote : but still, when in 
 1631 the Court of the Constable and Marshal was 
 revived ad hoc for the trial of an appeal of treason 
 committed out of the realm (by the temporary 
 appointment of the Earl of Lindsay as Lord High 
 Constable) the civilians duly made their appear- 
 ance : Dr. Dethick was registrar, Dr. Duck appeared 
 as the King's Advocate, and Dr. Eden was of 
 counsel for the appellee. 8 As to the court of 
 chivalry held before the Earl Marshal only, it was 
 
 1 2 Hawk., P. C., cap. 4, sect. ii. 
 
 1 Op. cit., p. 324. * Rea v. Ramsay, 3. St. Tr., p. 483
 
 THE FIFTEENTH CENTURY 47 
 
 voted a grievance by the House of Commons in 
 1640 ; and the criminal court of the Constable and 
 Marshal had long been obsolescent because it could 
 not be constituted without the Constable an 
 office never regularly filled up after Henry the 
 Eighth's time. Nevertheless we shall find the 
 doctors of the civil law still giving active assistance 
 in administering the laws, not of private but of 
 public war, in the reign of Charles the Second. 1 
 
 In endeavouring to estimate the reinforcement 
 that the position of the English civilians probably 
 received before the middle of the fifteenth century 
 had passed one should not leave out of account 
 their intercourse with Italy, the original home of 
 the study they professed. There was Thomas 
 Beckington, for instance, afterwards Bishop of 
 Wells. He was the judge of the Arches Court in 
 1423, and sat upon several commissions to hear and 
 determine Admiralty appeals between 1428 and 
 1443.* It is of interest to note that in the year 
 J 433 an appeal in a collision case wherein a ship 
 called le Antony of London had been injured came 
 before Beckington and other commissioners. 3 
 Beckington is described in one of these appoint- 
 ments in 1439 as doctor of laws and decrees. His 
 correspondence with learned men in Rome is still 
 extant, and Rome from the time of Nicholas V. to 
 that of Leo X. 4 had again become the world's 
 centre. There were other Englishmen who were 
 
 1 Infra, p. 102. 
 
 1 Cal. Patent Rolls, passim. 
 
 Cal. Patent Rolls. Oct. 20, 1433. 
 
 * 1447-1513. Beckington died in 1465.
 
 4 8 
 
 not only in touch with the scholars of the Renais- 
 sance through the post, but had resided for years 
 in Italian centres of learning before holding high 
 office at home. Such an one was William Grey, 
 afterwards Bishop of Ely, appointed by Henry VI 
 his proctor at the Roman Curia. Twenty years 
 later, in 1449, he became Lord High Treasurer. 
 John Tiptoft, Earl of Worcester, must also be men- 
 tioned because he learnt more in Italy than English- 
 men approved of, and learnt it in the domain of 
 law. Tiptoft had attended lectures at Venice, 
 Padua, Florence, and Rome before he came to 
 preside in the Court of the Lord High Constable 
 from 1462 to 1467. When in 1470 he met with the 
 fate to which he had condemned many others and 
 was beheaded on Tower Hill, we are told by his 
 biographer, the Florentine bookseller, Bisticci, 
 that the mob cried out that he deserved to die 
 because he had brought into England the law of 
 Padua law padowe, as Warkworth has it. The 
 civil law, as we have seen, might properly be drawn 
 upon in the Court of the High Constable, but the 
 Earl, no doubt, combined great cruelty with his 
 foreign learning. He was an early example of the 
 Italianate Englishman, who was described a little 
 later, when the type became more common, as a 
 devil incarnate. But the story illustrates the con- 
 temporary English bias against imported methods 
 of judicature, even if the mob attributed to culture 
 what was really due to heartlessness. There is a 
 wide difference, of course, between Tiptoft's judicial 
 butcheries and the application of foreign law maxims
 
 THE FIFTEENTH CENTURY 49 
 
 by the civilians to matters already admitted to 
 appertain to their sphere ; and yet some adroitness 
 on the part of the doctors of the civil law in England 
 may have been necessary in order to avoid awaken- 
 ing what Pardessus, a propos of the admiralty 
 courts, has called " I'espece de repugnance que les 
 Anglais ont, en general, pour I' usage du droit 
 remain." 1 
 
 It is remarkable that the Roman law does not 
 seem to have been as much as mentioned at West- 
 minster. The allusions by Parliament to the courts 
 exercising a maritime jurisdiction in the early part 
 of the fifteenth century give no hint of any foreign 
 tincture in their procedure. " Solonc ce qe la Ley 
 6- Custume du Meer demaundent." " After the 
 old custom and law on the main sea used " are 
 the phrases we read. 2 And when the Commons in 
 1413 petitioned that the decision of a case involving 
 points of international law which had occurred at 
 sea might be committed by the King to his Court 
 of Admiralty, it was " pur estre la determine, dis- 
 " cusse < ajugge solonq la ley, bons & droiturelx 
 " usagez 6- custumez de dit Court." 8 Cruelty by a 
 master to a mariner is alleged in 1445 to be "contra- 
 leges maritimas et statutum de Oleron. ' ' We are a long 
 way yet from the admission made in Edward VI. 's 
 reign (diplomatically and to a foreigner, it should 
 be owned) that English maritime legal practice 
 was nothing but the civil law together with certain 
 customs of the realm. Still, as a matter of legal 
 
 1 Lois Maritimes. Vol. IV., p. 197. 
 
 2 Rolls of Parliament, 7*8 Hen. IV. ; 2 Hen. V., cap. 6. 
 8 Rolls of Parliament, I Hen. V. 
 

 
 50 THE FIFTEENTH CENTURY 
 
 history, it has perhaps hardly been enough em- 
 phasised that in admiralty and international 
 matters, through the various influences to which 
 allusion has been made, the tide was during the 
 fifteenth century strongly setting in from the 
 southward. 
 
 One feature of the case that the Commons, as 
 above mentioned, asked to have referred to the 
 Court of Admiralty may be pointed out as seeming 
 to afford evidence of this tendency. The facts 
 have been recorded in some detail, and are inter- 
 esting not only as providing a strangely modern 
 picture of nautical procedure in the exercise of the 
 right of visit and search, but also because they show 
 that the prize law under which an English com- 
 mander acted at this date was that of the Mediter- 
 ranean Consolat del Mar. The " statutum de 
 Oleron" the old maritime common law of North- 
 Western Europe, the code, as we have seen, of the 
 English maritime courts, does not concern itself 
 with such high matters as prize of war : but it is 
 none the less significant to find principles which 
 are laid down in the more elaborate code of the 
 south adopted when the occasion arose by an 
 English officer, because it looks as if they must 
 already have received the approval of the authori- 
 ties at home. Sir H. Nicolas describes a similar 
 instance of the exercise of the right of searching 
 neutral vessels, which occurred in 1442, and which 
 he culls from Beckington's Journal of his Mission 
 to the Count of Armagnac, as an " important his- 
 torical fact." The historical importance in both
 
 THE FIFTEENTH CENTURY 51 
 
 cases consists in the adoption in practice by the 
 English of Mediterranean law. The " Consolat del 
 Mar " was printed at Barcelona before the end of 
 the century ; a fact which implies a considerable 
 antecedent demand for copies. 
 
 Eight ships belonging to English merchants, 
 being at Bordeaux in the way of trade, were 
 requisitioned by order of the Duke of Clarence for 
 the purpose of bringing back to England from that 
 port a number of soldiers and other persons. For 
 the good and substantial guard and governance of 
 the said people, ships, and effects, as the record 
 puts it, one John Colvyle, Knight, was made 
 Captain and Governor for the voyage. As the 
 eight ships were proceeding peaceably on their 
 way they met near Belle Isle with two " Hulks of 
 Pruse," bound for La Rochelle, laden with wines 
 and other merchandise. In order to ascertain 
 whether these vessels and their cargoes were going 
 to the King's enemies Colvyle dispatched to them 
 a boat with one of his esquires and two master- 
 mariners of his fleet, commanding the masters and 
 merchants on board the strangers to produce their 
 charters of affreightment, and informing them, 
 moreover, that any goods of the enemy must be 
 delivered up to Colvyle, he agreeing to pay the 
 freight in respect of them (" lour fen eit gree & paie- 
 ment pur la freit d'icell "). The hulks' people 
 would not answer ; but the next day, according to 
 the story told, they suddenly became warlike and 
 made an attack on Colvyle's ships and killed some 
 of his company. Thereupon Colvyle captured the
 
 52 THE FIFTEENTH CENTURY 
 
 hulks, and brought them with their cargoes into 
 Poole and Southampton. The questions the de- 
 cision of which was sought were whether or not on 
 the facts stated the two hulks of Pruse ought to be 
 forfeited as well as the goods in them, and secondly, 
 whether or not the owners of the eight requisitioned 
 merchant ships were entitled to both as good and 
 lawful prize (" sount dignez d' avoir icelles Hulks 
 6- Merchandisez "). As to the first point, if the 
 cargoes of the Prussian vessels were in fact enemy 
 property they were clearly within Chapter CCXXXI 
 of the " Consolat del Mar " ; as to the second, one 
 may remember that even down to Armada times 
 requisitioned merchantmen formed the bulk of the 
 national fighting navy. 
 
 It is doubtful whether the other prize-law prin- 
 ciple of the Consolat that neutral goods should go 
 free in enemy ships (subject as therein mentioned) 
 was ever the accepted English policy, 1 but the fact 
 of a statute being passed in 1442 expressly repudiat- 
 ing it * may be evidence that there was a likelihood 
 about that time of its adoption by English 
 admiralty courts. 
 
 Appeals from the Admiralty Courts were to the 
 King in Chancery, and were heard by special com- 
 missioners, " iudices delegati," appointed upon each 
 occasion, who were invariably civilians. 3 This 
 practice was copied into the statute of Henry the 
 Eighth which put a stop to appeals to Rome from 
 
 1 Westlake, " International Law," Part II., p 124. 
 
 *zo Hen. VI., cap. i. 
 
 3 Marsden, " Select Pleas." Vol. I., p. Ixxix.
 
 THE FIFTEENTH CENTURY 53 
 
 the ecclesiastical courts * and accounts for the name 
 of the Court of Delegates, the appellate tribunal for 
 ecclesiastical matters, until its jurisdiction was 
 transferred to the Privy Council in 1832. In the 
 fifteenth century appeals in admiralty cases to the 
 commissioners delegated to try them seem to have 
 protracted the litigation for a long time. That in 
 the collision case of le Antony of London is first 
 mentioned in 1433, though how long before that 
 the suit had commenced we are unable to say ; 
 in 1437, however, exactly four years afterwards, 
 another commission is appointed to determine it. 8 
 And there began some time prior to the year 1441, 
 before Richard Mannyng, the Lieutenant of the 
 Admiral, a suit between John Wauton, a fishmonger 
 of London, and one Robert Chapman, vaguely de- 
 scribed as of the county of York, about a cargo of 
 salt. Both parties appealed from Mannyng's 
 sentence, and the matter was only terminated in 
 1444 by the outlawry of Wauton at the suit of 
 somebody else upon a plea of debt. The original 
 judgment for 220, which he had obtained against 
 Chapman, and which he deemed insufficient, had 
 not yet been executed, owing, it may be, partly 
 to Chapman's dexterity in getting two successive 
 commissions appointed to hear his side of the 
 question. Wauton's judgment-debt being forfeit 
 to the Crown on his outlawry, we are informed that 
 the King hearing " that the recovery of the sum 
 " proceeded against conscience, pardoned Robert 
 
 1 See 25 Hen. VIII., cap. 19, sect. iv. 
 Cal. Patent Rolls. Oct. 16, 1437.
 
 54 THE FIFTEENTH CENTURY 
 
 " the said sum and granted to him the same." l 
 With these records before us the custom of the 
 admiralty courts of first instance to sit by the 
 water-side in order to facilitate the dispatch of 
 maritime business has a certain irony. But then 
 it had other uses. There is mention of an excuse 
 put forward in those days by a not very con- 
 vincing person who had been cited before a local 
 admiralty court and had failed to appear there. 
 He pleaded that instead of its being "kept" upon 
 the quay it had, against all precedent, retired into 
 the interior of the town, and that therefore he was 
 unable to find it. 
 
 A closer interest of the Crown in the Admiralty 
 Court towards the end of the century is shown by 
 the grant during pleasure in 1482 to the King's 
 servant Robert Rydon of " the office of King's 
 " promoter of all causes, criminal and civil or 
 " concerning crimes of lese majestie, before the 
 " King's judges of the constableship and Ad- 
 " miralty of England with all accustomed profits 
 " and 20 marks yearly from the receipt of the 
 " Exchequer." In the year following the same 
 office is granted for life to Master William Buller, 
 notary, at the like salary. 2 In the next year, 1484, 
 Rydon is appointed along with William Lacy, 
 bachelor in laws, already chief judge in the ad- 
 miralty court, and others, a commissary-general in 
 the office of the Admiralty of England, with power 
 to try cases both civil and criminal : and the 
 
 1 Cal. Patent Rolls. Oct. 30, 1441 ; Jan. 26, 1442 ; Feb. 4 
 1444. 
 *Ibid. Oct. 23, 1482 i Dec. 10, 1483.
 
 THE FIFTEENTH CENTURY 55 
 
 Commissaries are to engage a notary " to write out 
 all that they do." * It is unfortunate that the 
 writings of this notary are lost, because no record 
 of any other appointment similar to that of these 
 Commissaries is forthcoming. It indicates, as Mr. 
 Marsden has pointed out, that the High Court of 
 Admiralty was not even yet an efficient tribunal, 
 since the " commissaries-general " must have been 
 intended to exercise some of the functions of its 
 Judge. 2 And in fact Rydon is styled " ludex 
 Admiralitatis " in a record of a case before the Court 
 of Requests in the year 1495. 
 
 The Court of Requests, which had started by 
 being a Committee of the Council " the poor 
 man's court of equity " is a description of its orig- 
 inal function was also captured by the civilians, 
 probably before the end of the fifteenth century. 3 
 At any rate, amongst the lawyers who sat as 
 Masters of Requests during the sixteenth will be 
 found the names of all the most prominent civilians 
 of the time. They include those of Christopher 
 Middleton, John Tregonwell, William Cooke, David 
 Lewis and Valentine Dale, each of them at some 
 time also Judge in the Court of Admiralty, like 
 their successor in both capacities Sir Julius Caesar, 
 who published in 1597 a book upon " The Ancient 
 State, Authoritie and Proceedings of the Court of 
 Requests." Its procedure, he informs us, was 
 
 Cal. Patent Rolls. April 8, 1484. 
 
 * " The Vice-Admirals of the Coast," Eng. Hist. Rev., XXII.. 
 p. 471. 
 
 3 Carter, " History of English Legal Institutions," 4th Ed., 
 p. 170.
 
 56 THE FIFTEENTH CENTURY 
 
 *' altogether according to the process of summary 
 causes in the civil law." It also had an admiralty 
 jurisdiction well established in Henry the Seventh's 
 time which was delegated to it from the Council. 
 Caesar gives in the work alluded to a few records 
 of " admirall causes " in the Court of Requests, as 
 well as of certain cases he quaintly terms " ultra- 
 marine," because they came from Calais or the 
 Channel Islands. The facts related in one or two 
 of the admiralty cases, which nearly all belong to 
 the last years of the fifteenth century and so come 
 within the scope of this section, may be here trans- 
 scribed as showing the character of the civilians' 
 practice in admiralty at this period. We have no 
 records of the Admiralty Court proper until some 
 thirty years later : and these, at any rate, show the 
 extent to which depredations at sea and the remedy 
 by way of reprisal still occupied the attention of 
 judges who dealt with maritime affairs. In March, 
 1495, there is a mandate to the bailiffs of Wey- 
 mouth to do right to Jaques le Maiore in the matter 
 of the restitution of his ship. In April of the same 
 year a Dane who had been detained on suspicion 
 of piracy is released after swearing on the holy 
 Evangelists that he will not afterwards molest any 
 of the King's subjects pro causd suae incarcem- 
 tionis. On the same day John Whale of Winchelsea 
 is granted a licence to take " in aliqua parte marts, 
 navem seu naves de Denmarke ", and to bring them 
 into port and retain them until satisfaction is made 
 to him for the value of certain merchandise of his, 
 per inhabitantes de Denmarke minus juste captarum
 
 THE FIFTEENTH CENTURY 57 
 
 el detentarum. Whale seems to have been a man of 
 action : for only four days later comes the record 
 of a decree assuring to him the possession of a ship 
 he has arrested, " quae navis venit ex partibus 
 Denmarkiae," but subject to his giving bail to the 
 Judge of the Admiralty Court to account for the 
 ship or its value, such value to be determined by 
 the appraisement of four indifferent persons. It 
 may be, of course, as the date of Whale's exploit is 
 not stated, that his licence to stop Danish ships 
 was designed to give him an ex post facto justifica- 
 tion of it : we cannot tell. In March of 1496 a 
 Spanish merchant, one Martin Gavelino, brings a 
 charge of plundering a ship called La Mary, " in 
 periculo infra le Goodwine sandes in mari," against 
 a large number of defendants hailing from Dover, 
 Kingsdown, Sandwich, Deal, Walmer, and Saint 
 Margaret's ; these gentry, however, succeed in 
 persuading the court that they were really salving 
 Martin's merchandise and claim to be rewarded for 
 their pains. The evidence upon which the Court 
 decided that the animus of the defendants was 
 innocent and even praiseworthy is not given ; 
 we can only remark that in such cases it is still 
 occasionally ambiguous. An award for salvage 
 is made ; but Gavelino is to be given an oppor- 
 tunity of bringing further proof of spoliation if he 
 can get it. As the whole district seems to have 
 been involved, we imagine this to have been un- 
 likely. These cases supplement what may be 
 gathered from certain of the " Paston Letters," 
 ascribed to the year 1491, as to the state of things
 
 58 THE FIFTEENTH CENTURY 
 
 at sea in the last decade of the fifteenth century. 
 The Lord High Admiral seems to have been then 
 kept fairly busy with reports of disorder and dis- 
 putes involving questions of international law. 
 We learn that the King of Denmark has complained 
 to Henry VII. of robbery and extortion by English 
 fishermen in Iceland : certain " men of warre," 
 believed to be Danes, are upon the coast of England 
 committing robberies, probably by way of reprisal : 
 " certayne Corvers of Holand and Selond " are 
 alleged to have been molested by an English ship- 
 master, and the Admiral is holding the owner of 
 the English ship to bail. 1 
 
 There would seem then to have been no lack of 
 employment at this time for civilians who were in- 
 clined to specialize in maritime and international 
 questions. Perhaps it may appear also from what 
 we have noted of the fifteenth century that some 
 of the difficulties that underlie the maintenance of 
 a reign of international law difficulties to which 
 an age of supposed progress lately awoke with a 
 shock are really of quite respectable antiquity. 
 Eadem sunt omnia semper. 
 
 1 Gairdner, Ed. Vol, VI. Letters, 1046, 1047, 1049-51.
 
 IV. THE RISE OF THE COLLEGE OF 
 ADVOCATES 
 
 We have already seen how it came about that 
 the civilians had been able to establish themselves in 
 the Admirals' courts ; it was considered that in 
 the storehouse of the Roman Law principles might 
 be found for the settlement of disputes to which 
 the common law with its merely territorial in- 
 cidence was technically inapplicable. It has also 
 been noticed that since the civil and the canon 
 laws were more or less co-extensive with Christen- 
 dom, the learned in them had always been 
 diplomatists, sent to argue with the foreigner. 
 Civilian judge and state-envoy are, at the beginning 
 of the sixteenth century, almost the same thing. 
 John Clerk, a doctor of law of Bologna, and judge 
 in the Court of Star Chamber, is ambassador to 
 Rome in 1521, Master of the Rolls in 1522, and 
 again ambassador to France in 1526. The Robert 
 Rydon, already mentioned, who was made a 
 commissary-general in the office of the Admiralty of 
 England in 1484, is appointed in 1499, when he is 
 described as Clerk of the Council and " Vice- 
 Admiral of England," to be a plenipotentiary for 
 the conclusion of peace with James of Scotland. 1 
 1 Cal. Patent Rolls. May 10, 1499. 
 59
 
 60 THE COLLEGE OF ADVOCATES 
 
 The civilian not only concludes treaties, but assists 
 judicially to carry them out. Christopher Middle- 
 ton, Bachelor of Laws, who some seven years 
 earlier had become the judge or deputy of the 
 Admiral, was appointed in 1519, along with Cuthbert 
 Tunstall, Master of the Rolls himself a graduate 
 in laws of Padua, the fountain-head of Roman Law 
 at this time to hear and determine all civil causes 
 between the King's subjects and those of Francis I., 
 in accordance with the treaty between the two 
 sovereigns of the 4th October, I5I8. 1 The end of 
 Henry the Seventh's reign had coincided roughly 
 with the change in international usage when the 
 despatch of diplomatic envoys for special occasions 
 began to be superseded by the permanent residence 
 of ambassadors at foreign courts. The professors 
 of the civil law were equally marked out for service 
 under the new conditions. One need only instance 
 the activities of the worldly-wise Dr. Nicholas 
 Wotton, " iuris ecclesiastici et civilis professor," as 
 he was officially described in 1536, who contrived 
 to be employed both as envoy and ambassador 
 during the four reigns of Henry, Edward, Mary, 
 and Elizabeth, despite the various policies at home 
 of those successive sovereigns. It may be recalled 
 that his nephew, Sir Henry Wotton, is the reputed 
 author of the jest, " Legatus est vir bonus, peregre 
 missus ad mentiendum Reipublicae causa," and 
 perhaps a good man placed in such times might 
 reasonably consider his own interest to be on 
 
 1 " Letters and Papers " Hen. VIII., Vol. III., p. 89 ; Rymer. 
 "Foedera." Vol. XIII. 700.
 
 THE COLLEGE OF ADVOCATES 61 
 
 occasion identical with the commonwealth's. 
 There are, indeed, other examples of the adroitness 
 of the doctors in trimming their sails to the veering 
 winds of doctrine. Tunstall himself was somewhat 
 of a time-server, or, to put it another way, he dis- 
 played an " invincible moderation." We hear 
 that Dr. Tregonwell is plucked from the Admiralty 
 Court and the Arches by Henry the Eighth as the 
 very man to be employed about the business of 
 the Divorce and in the matter of the Dissolution of 
 the Monasteries ; yet he seems to have been still 
 favoured after Mary had come to the throne. 
 Almost the last employment in Mary's reign of Dr. 
 Harvey, of whom we shall hear more, was his 
 endeavour to rehabilitate Cardinal Pole in the 
 Pope's favour ; nevertheless he is Dean of the 
 Arches under Elizabeth, and ten years after her 
 accession, albeit suspected of an affection for the 
 old religion, is prominent enough to take a leading 
 part in establishing the advocates in their college 
 in Knightrider Street. It may be charitably sup- 
 posed that the doctors were of the same detached 
 mind with their French contemporary and colleague, 
 Cujas, who, when taken to task for his indifference 
 to current controversies, is said to have replied, 
 " Nihil hoc ad edictum praetoris." But, at any 
 rate, we may surmise that the practising civilian 
 of Tudor times had perforce to be more than merely 
 book-learned. That, no doubt, he was : nor must 
 we omit, in order to complete our outline of his 
 province, to mention his purely legal work in 
 chambers. Five civilians were consulted in the
 
 62 THE COLLEGE OF ADVOCATES 
 
 case of the Bishop of Ross, envoy of Mary Stuart ; 
 and Dr. Valentine Dale's historical report to 
 Burghley, " Notes on wars in ancient and modern 
 times which have been commenced unlawfully or 
 without sufficient cause " may be here alluded to, 
 even if it has not entirely settled the questions with 
 which it deals. 
 
 It was due to the long previous monopoly by the 
 civilians of such employments as we have mentioned 
 that their College, when started early in the six- 
 teenth century, became what it was during the 
 two centuries following. We may from this point 
 with more aptness confine ourselves to the doctors 
 of civil law, though many of them were still, like 
 Wotton, doctors utriusque iuris, because the scope 
 and prestige of the canon law were henceforward 
 much restricted by the action of Henry the Eighth. 
 If the doctors had been merely canonists and had 
 subsided after the Reformation into a body of 
 practitioners in the ecclesiastical courts of the 
 English state church, it is hardly conceivable that 
 Doctors' Commons would have produced jurists 
 like Duck and Zouche, the " second Founder of 
 the Law of Nations," or judges like Jenkins and 
 Stowell, or that, as happened more than once 
 during the eighteenth century, certain of its mem- 
 bers would have been invited to assist the Court of 
 King's Bench by argument before it. 1 Incident- 
 ally it may be stated that Dr. Thomas Oughton 
 
 1 See Le Caux v. Eden. 2 Doug., p. 594, note : Rous v. 
 Hassard, cited 2 Doug., p. 602, and Anthon v . Fisher, 3 Doug., 
 p. 166. The practice was again made use of in 1845. Vide 
 infra, p. 107.
 
 THE COLLEGE OF ADVOCATES 63 
 
 in his " Ordo ludiciorum " written in 1728, says 
 that on such occasions the doctors as a mark of 
 distinction were always admitted within the bar 
 " intra Cancellos in Foro (honoris gratia) semper 
 admittuntur." 
 
 The housing of this association of civil lawyers 
 in London was, as already stated, roughly contem- 
 porary with the highwater mark of the threatened 
 incursion of Roman Law into England in good 
 earnest ; and some attempt must be made to show 
 how far that movement went before we pass on 
 to merely topographical details. The last are of 
 interest chiefly as showing how closely the neigh- 
 bourhood in which the College took root was 
 associated with the Latin-using, cosmopolitan 
 republic of letters to which the revival of learning 
 had given birth, and also (perhaps as a corollary) 
 with the international courtesies of the time. The 
 house in Knightrider Street in which the civilians 
 ultimately settled was that of William Blount, 
 fourth Lord Mount joy, the patron and benefactor 
 of Erasmus on his first visit to England. Thomas 
 Linacre had first gathered the College of Physicians 
 together in his house in the same street in the year 
 1518. As to the reception of foreign notables, it 
 is said that when the Emperor Charles V. came to 
 London in 1522 his suite were lodged in, amongst 
 other places, Doctors' Commons itself. It was to 
 the houses round about St. Paul's Church, too, that 
 in 1559 the French Ambassadors, de Montmorency 
 and de Vielleville, were escorted by the nobility of 
 the English Court, and " found their lodgings
 
 64 THE COLLEGE OF ADVOCATES 
 
 excellently provided with convenient rooms and 
 provisions for making good cheer." * 
 
 Diplomacy and the administration of justice in 
 matters arising on or beyond the four seas had 
 already been for ages the occupation of the civilian : 
 but his influence within the realm was again waxing 
 great. We have remarked that the need for strong 
 government that followed upon the anarchy of the 
 Wars of the Roses tended to reinforce the prestige 
 of the Roman wisdom in the view of those who 
 counselled the Crown. The democratic common 
 law inevitably received a check ; in the words of 
 Professor Nys " la domination du droit national 
 parut menacde." 
 
 The threatened " reception " of the Roman Law 
 in England in the early part of the sixteenth century 
 and the reasons why in this country, unlike France, 
 Scotland and Germany, the movement never got 
 beyond a threat, were sketched with equal charm 
 and learning by the late Professor Maitland in his 
 Rede Lecture on " English Law and the Renais- 
 sance." He says it is not a simple story ; and 
 certainly if one tries to discover the orientation, so 
 to speak, of the two camps favouring respectively 
 the English common law and the Roman civil law 
 with the great parties of the time, one is met at 
 once by puzzling cross-currents. Upon the whole, 
 it seems that to have been in favour of the intro- 
 duction of the civil law was, as Maitland in another 
 place puts it, a mark " of enlightenment and some- 
 times of advanced Protestantism, for your common 
 
 * Cal. S.P. Venetian, Vol. VII., p. 16.
 
 THE COLLEGE OF ADVOCATES 65 
 
 lawyer was apt to be medievally and even popishly 
 inclined." * It was one of the demands of the 
 Catholic insurgents during the Pilgrimage of Grace 
 " that the common law may have place as was used 
 at the beginning of the reign " ; on the other hand, 
 it was Reginald Cardinal Pole, who never ceased 
 trying to heal the breach between Henry and the 
 Vatican, who recommended that the civil law of 
 the Romans should become the common law of 
 England. 2 So that it would be probably true to 
 say that the civil law appealed to the enlightened 
 rather than to the populace. It is also to be borne 
 in mind that Henry had been exalting the civil law 
 at the Universities. It is even said that he lent 
 the light of his presence to the law lectures of Vives 
 at Oxford in 1523 and took Catherine with him.* 
 Professor Maitland has pointed out that the theory 
 of Church and State which the civilian found in 
 his books exactly suited Henry's ecclesiastical 
 policy. He certainly suppressed at the same time 
 the study of the ancient canon law. " King 
 " Henry," says Fuller, " stung with the dilatory 
 " pleas of the canonists at Rome in point of his 
 " marriage, did in revenge destroy their whole hive 
 " throughout his Universities." But there was 
 more in it than pique : the suppression of the 
 canonist connoted the rise of the civilian. " The 
 
 1 " Collected Papers," Vol. III., p. 78. 
 
 2 Starkey's " Dialogue between Pole and Lupset," Early 
 English Text Society. 
 
 Jortin's " Life of Erasmus." Vol. I., p. 207. Vives was 
 incorporated D.C.L. in 1523, but the subject of his lectures and 
 the fact of Henry's attendance are alike doubtful.
 
 66 THE COLLEGE OF ADVOCATES 
 
 41 most superbly Erastian of all Henry's grandiose 
 " preambles," says Maitland, " introduces a 
 " statute that benefits the doctors of the civil law. 
 " They would not be ungrateful." 1 What would 
 appear to have been the effect of Henry's 
 manoeuvres is curious. There was a close con- 
 nexion, exemplified in " Doctors' Commons " itself, 
 between the ecclesiastical courts administering 
 canon law and the admiral's court proceeding 
 according to civil law. It is noteworthy that 
 Henry's action in Church matters was contempo- 
 rary with an assertion by the Admiral of a juris- 
 diction in maritime and commercial affairs more 
 extensive than he had ever ventured upon before. 
 The legislation of Richard the Second, safeguarding 
 the rights of the common law, is scouted by the 
 patent granted to Henry Duke of Richmond, 
 Lord High Admiral in 1525, which confers a wide 
 jurisdiction, " aliquibus statutis, actubus, ordina- 
 lionibus sive restrictionibus in contrarium non 
 obstantibus." * Again, Henry's suppression of the 
 smaller monasteries led to insurrections in the 
 North of England, in consequence of which the 
 Council of the North was set up at York in 1537 
 with a criminal jurisdiction in Yorkshire and four 
 other counties as to riots, conspiracies and acts of 
 violence ; and there seems always to have been a 
 sprinkling of doctors of the civil law amongst its 
 members from that time until its abolition in 1641. 3 
 
 1 " Canon Law in England," p. 92. See 37 Hen. 8, c. 17. 
 ' Marsdcn, " Select Pleas in the Court of Admiralty," Vol. I., 
 pp. Ivii., Iviii. 
 
 See Drake, " Eboracum " (1736), p. 368.
 
 THE COLLEGE OF ADVOCATES 67 
 
 The Council was always obnoxious to the common 
 lawyers; and the local justices, on one or two 
 occasions at least, resented its interference. 1 
 Cuthbert Tunstall was its President in 1538. 
 
 The position which the civilians had attained by 
 the time of the first Tudors was watched with no 
 little jealousy by the ordinary lawyer. It was the 
 complaint in 1546 of " divers studentes of the 
 Commen Lawes of this realme " against a further 
 invasion of -the Court of Chancery by the civilians 
 which gave to the Protector Somerset his oppor- 
 tunity to get rid of his rival the Earl of South- 
 ampton, Lord High Chancellor. In times past the 
 influence of the civilian and canonist had not been 
 unknown in that Court, nor was Somerset wanting 
 in appreciation of the usefulness (as the world 
 then went) of the Roman Law to the State, as he 
 abundantly showed only two or three years later. 
 But the Chancellor had made a slip in issuing a 
 commission without warrant from the Council to 
 certain persons to hear cases in Chancery, and after 
 the judges had been consulted as to his fault he 
 was deprived of the Seal. The fact that three 
 of the four persons named in the commission were 
 civilians was not the offence before the Council, 
 though it dominates the complaint of the common 
 lawyers, whose language is sufficiently instructive 
 to warrant a transcription of a part of it. 
 
 " Pleasith it your honorable Lordships," they 
 begin, " to call to your remembrance that whereas 
 
 1 See " The Yorkshire Archaeological and Topographical 
 Association." Record Series. Vol. III.
 
 " the Imperial Growne of this realme of Inglande 
 " and the hole estate of the same have been alwayes 
 " from the beginning a Reame (sic) Imperial having 
 " a la we of itself called the Commen Lawes ..." 
 This adroit use of the word " imperial " is note- 
 worthy ; Henry the Eighth had affected the style 
 to show his independence of alien jurisdictions, 
 and it marks what the students were afraid of. 
 They go on to complain " that now of late this 
 " Commen Lawes of this realme, partely by In- 
 " junctions, aswel before verdictes, jugementes and 
 " execucions as after, and partly by Writtes of 
 " Sub Pena issuing owte of the Kinge's Courte 
 " of Chauncery, hath not been only stayed of their 
 " directe course but also many tymes altrid and 
 " violated by reason of Decrees made in the saide 
 " Court of Chauncery, moste grounded upon the 
 " La we Civile, and upon matter depending in the 
 " conscience and discretion of the hearers thereof, 
 " who, being Civilians and not lerned in the 
 " Commen Lawes, setting aside the saide Commen 
 " Lawes, determyne the waighty causes of this 
 " realme according either to the said Lawe Civile 
 " or to their owne conscience ; which Lawe Civile 
 " is to the subjects of this realme unknown. ..." 
 Then follows the immediate grievance ; " there is 
 " of late a Commission made contrary to the said 
 " Commen Lawes unto certain persones the more 
 " parte whereof be Civilians not learned in the 
 " saide Lawes of this realme, autorising them to 
 " heare and determyne all matters and cawses 
 " exhibited into the saide Courte of Chauncery, by
 
 THE COLLEGE OF ADVOCATES 69 
 
 " occasion whereof the matters there do daily more 
 " and more encrease . . . and by reason thereof 
 " there hath of late growne such a discorage unto 
 " the students of the said Commen Lawes, and the 
 " saide Commen Lawes have been of late so little 
 " estemed and had in experience, that fewe have 
 " or do regarde to take paynes of the profownde 
 " and sincere knolege of the same Lawe, by reason 
 " whereof there are now very fewe, and it is to be 
 " doubted that within fewe yeares there shall not 
 " be sufficient of lerned men within this realme to 
 " serve the King in that facultie." l Apparently 
 the civilian drew business, and if the concluding 
 words of this wail from the Inns of Court are to be 
 taken seriously, the common law was in a bad way, 
 as we have the authority of Maitland for thinking 
 it was. " In all directions," he says, speaking of it 
 under Henry VIII., "its province was being 
 " narrowed by the new courts, the Star Chamber, 
 " the Court of Requests, the Council of the North, 
 " and so forth. There comes a moment when the 
 " stream of law reports which has been flowing 
 " ever since the time of Edward I. seems to be on 
 " the very point of running dry. Reginald Pole, 
 " the highly educated young man, who is not far 
 " from the throne, is saying that the time has come 
 " for Roman Law : every well-intentioned nation 
 " is adopting it. The Protector Somerset is 
 " keenly interested in getting a great civil law 
 " college founded at Cambridge." a 
 
 1 " Acts of the Privy Council," N.S. Vol. II., p. 48. 
 * " Collected Papers," Vol. III., p. 78.
 
 70 THE COLLEGE OF ADVOCATES 
 
 The proposal to found a civil law college at 
 Cambridge was put forward in 1549. It was to be 
 called " Edward's College," and there is tacked on 
 to this project, apparently as something separate, 
 " a college of civilians to attend on the Council." * 
 As regards Cambridge, there had that year been a 
 visitation under Somerset's auspices the avowed 
 object of which was to convert certain fellowships 
 for the study of divinity into nests for civilians, and 
 when Bishop Ridley told the Protector that to 
 diminish the number of divines went against his 
 conscience, Somerset reminded him how necessary 
 the study of the Civil Law was " to all Treaties 
 " with Foreign Princes and strangers, and how few 
 " there be at this present to the King's Majesty's 
 " service therein." a So that only some three years 
 after the students of the Inns of Court had com- 
 plained to the Council that the inroads of the civil 
 lawyers tended to bring about a shortage of practi- 
 tioners at common law we find the Protector thus 
 lamenting the lack of civilians for the diplomatic 
 service. The fact would seem to bear the con- 
 struction that the latter were finding ample employ- 
 ment in the domestic courts Chancery, Star 
 Chamber, Requests, Faculties, and so forth. As 
 regards the presence of the civilians in the Court 
 of Chancery, and elsewhere, the evidence of Sir 
 Thomas Smith, writing, as he himself tells us, in 
 the year 1565, is significant. In his work " De 
 Republica Anglorum," he describes the Chancellor 
 
 1 S.P. Dom. (1547-1580), May, 1549. 
 * Burnet, Vol. II., Part 2, p. 222.
 
 THE COLLEGE OF ADVOCATES 71 
 
 sitting on the left-hand side of Westminster Hall, 
 " accompany ed with the master of the Routes . . . 
 " and certain men learned in the civill lawe called 
 " Masters of the Chancerie in latine they may be 
 " called Assessors." A few pages further on, after 
 alluding to the courts set up by Henry the Eighth, 
 " the one for the marches of Wales at Ludlow or 
 " elsewhere, another for the north parts of England 
 " at Yorke, where be many causes determined," he 
 adds that " these two courtes doe heare matters 
 " before them, part after the common law of 
 " Englande and part after the fashion of the 
 "Chancerie," which he has just said included a 
 civilian element. 1 
 
 The usefulness of the civilian in foreign affairs 
 was a matter of course with the Tudor statesman ; 
 at a later date Bacon, though, as he says, he was of 
 the common law himself, did not fail to impress it 
 upon the future Duke of Buckingham. " I am so 
 " much a lover of Truth and of learning and of my 
 " Native Country," he wrote, " that I do heartily 
 " persuade that the Professors of that Law called 
 " Civilians (because the Civil Law is their guide) 
 " should not be discountenanced nor discouraged, 
 " else whensoever we shall have ought to do with 
 " any Foreign King or State, we shall be at a 
 " miserable loss for want of learned men in that 
 " profession." * To pass from the general to the 
 particular, it may be that a fillip was given to> 
 
 1 Op. cit., pp. 52, 65, 66. 
 
 * " Mysteries of State and Government in Letters of Illustrious 
 Persons " (1691), p. 41.
 
 72 THE COLLEGE OF ADVOCATES 
 
 Somerset's desire to have civilians at his elbow by 
 the dissatisfaction the French Ambassador was 
 expressing in 1550 with the English arrangements 
 lor trying the cases of mutual depredations at sea. 
 The Council had already pointed out in a letter to 
 Sir John Mason, the English Ambassador in France, 
 that no higher court administering the civil law 
 existed in England than the Admiralty Court, for 
 which reason the cases in question had been assigned 
 to it. 1 But the French Ambassador was not satis- 
 fied with its dignity ; he marvelled when admitted 
 to the presence of the Council why they had made 
 their judges inferior to the Admiralty, when the 
 French had made theirs of the Parliament above 
 the Admiralty ; and besides, there was an appeal 
 from the Admiralty Court, a circumstance incon- 
 sistent with the hearing of claims summane et de 
 piano* Talk like this may have made the idea of a 
 higher tribunal administering the civil law seem 
 worth considering. Incidentally it is to be noted 
 that it is assumed by both sides that the civil law 
 alone affords a basis for the settlement of such 
 international differences as the nations choose to 
 submit to the arbitrament of jurists, " In Us quae 
 " sola ratio commendat a iure Romano ad ius 
 " gentium tuta sit collectio." * 
 
 The founder of the College appears to have been 
 Dr. Richard Bodewell or Blodwell, who was Dean 
 
 * As mentioned, supra, p. 12, the international function of the 
 Admiralty Court was lucidly explained in this letter. It is 
 set out by Froude, " Hist of England," IV., p. 540, note. 
 
 " Acts of the Privy Council," N.S., Vol. III., pp. 163, 164. 
 
 * Bynkershoek, " Quaest. luris. Publici," c. 3.
 
 THE COLLEGE OF ADVOCATES 73 
 
 of the Arches in 1511. The eighteenth century 
 antiquary, Dr. Andrew Ducarel, himself a civilian, 
 who contemplated publishing an account of 
 Doctors' Commons and made a collection of notes 
 to that end, says that at the beginning of the 
 Register of Members which goes back to that year, 
 Bodewell is described as " huius collegii primus 
 presidens," and he credits him with forming the 
 original plan of association. 1 This may well have 
 been so ; but an evident allusion to the College in 
 a letter which Andrea Ammonio, Latin Secretary 
 to Henry VIII., addressed to Erasmus in 1511, 
 points to its being already well known by that time, 
 and therefore its foundation may be probably dated 
 a few years earlier. Ammonio is discussing the 
 subject of a suitable lodging in London for his 
 friend Erasmus. He dismisses the monastery where 
 he himself is living as out of the question, and then 
 adds : " Circa aedem Pauli collegium est, ut nosti, 
 " quorundam doctorum quos aiunt laute vivere, ego 
 " puto in cloaca habitare" Ammonio's contempt 
 for the Residential amenities of the College does not 
 concern us so much as his revelation that the doctors 
 were already reputed to live there in some style, 
 and that Erasmus had heard of the confraternity. 
 It must therefore have been in existence for some 
 little time before this letter was written. The 
 name of Doctors' Commons it acquired before 1535, 
 
 1 The MS., which is dated 1753, now belongs to the Incor- 
 porated Law Society. 
 
 * " Desiderii Erasmi Epistolae," cxxviii. Wolsey is said to 
 have planned the building of a fitting college in London for the 
 doctors.
 
 74 
 
 as appears by a letter written from the College in 
 that year by the Dean of the Arches to Thomas 
 Cromwell. 1 We know from other sources that the 
 first home of the doctors in Paternoster Row was 
 not very commodious as compared with their sub- 
 sequent one in Knightrider Street, provided for 
 them in 1568 by Dr. Henry Harvey, Master of 
 Trinity Hall and Dean of the Arches. Sir George 
 Buck, Master of the Revels under James the First, 
 published in 1615 " The Third Universitie of 
 " England, or a Treatise of the Foundations of all 
 " the Colledges . . . within and about this most 
 " famous cittie of London ; " and in dealing with " the 
 " Colledge of Civilians called Doctors' Commons," he 
 tells us that before it came into the street so long 
 associated with it the civilians were lodged in 
 Paternoster Row " in a meaner and lesser and less 
 " convenient house which was sometime a house for 
 ' ' a prebendarie. ' ' In Buck's day and long afterwards 
 this house was a tavern known by the sign of the 
 Queen's Head. Buck, moreover, claims to have 
 been acquainted with Dr. Harvey, who obtained 
 the lease of Mount joy Place or House for the 
 civilians ; "a reverend, learned and good man," 
 he says, " whom I being a young scholler knew." 
 Harvey will be found described in many books as 
 the founder of the College. It adopted his coat of 
 arms and placed them in its dining hall with the 
 inscription, " Huius Societatis Stator." The claim 
 of Dr. Bode well to be its originator seems to have 
 been overlooked. He, however, belonged to the 
 
 1 " Letters and Papers," Hen. VIII., Vol. IX., p. 181.
 
 THE COLLEGE OF ADVOCATES 75 
 
 earlier era of the less convenient house ; and it 
 may be that, having come into possession of Mount- 
 joy Place, the doctors, like other people who get on 
 in the world, discreetly forgot their humbler 
 address. 
 
 For Mount joy House, the erstwhile town resid- 
 ence of the Blounts, William and Charles, fourth 
 and fifth Lords Mount joy, the friends of Erasmus 
 and other scholars, had been called by Roger 
 Ascham " domicilium Musarum." Not even that 
 tenancy, however, saved the place from having 
 fallen into decay by the middle of the century. 
 Perhaps the fact that Charles, who died in 1545, had 
 already diminished his patrimony, had something 
 to do with the disrepair of the building ; at any 
 rate, according to Ducarel, Dr. Harvey obtained a 
 lease of the premises, dated the 2nd February, 
 1567-8, from the Dean and Chapter of St. Paul's 
 to the Master, Fellows and Scholars of Trinity 
 Hall, Cambridge, "to be rebuilt by them for the 
 use of the Advocates and Doctors of the Arches," 
 for the residue of an existing term and a further 
 one of ninety-nine years. In view of this arrange- 
 ment it is not surprising that there were subsequent 
 squabbles between the civilians and the lessees as 
 to the right to grant chambers in the building. 
 The advocates were not themselves incorporated 
 until June 22nd, 1767, on which date they obtained 
 a charter and subsequently acquired the freehold. 
 
 Mr. Maiden, the learned historian of Trinity Hall, 
 claims that Dr. Harvey made of Doctors' Commons
 
 76 THE COLLEGE OF ADVOCATES 
 
 an off-shoot of that college. 1 Harvey, we are told, 
 " was not content with establishing the position 
 " of his college in Cambridge. If it were to be 
 " worthy of its place as a training school for 
 " Civilians and Canonists, whose sphere of action 
 " extended into diplomacy and politics, or whose 
 " judicial abilities might be utilized in the Admir- 
 " alty Courts or in Diocesan Courts all over Eng- 
 " land, it must have some connexion with the 
 " world of London " ; and he adds with a natural 
 pride " no other College in Oxford or Cambridge 
 " ever attempted, I believe, to establish a society 
 " in London, as a voluntary college for the carrying 
 " out in practice in the great world of those studies 
 " which the College professed in the academic life." 
 Mr. Maiden admits, however, that the organisation 
 of Doctors' Commons had already been begun 
 before Dr. Harvey took the matter up, and that in 
 a subsequent age the offspring quarrelled at great 
 length with its foster-mother at Cambridge. Into 
 the history of that litigation we need not go. 
 
 The advocates, from towards the close of Eliza- 
 beth's reign became a body composed entirely of 
 laymen and continued ever afterwards so consti- 
 tuted. This statement has been contradicted, 
 apparently because it was misunderstood to apply 
 to all civilians and not merely to civilians practising 
 as lawyers : there was never, of course, anything 
 to prevent a person holding a degree in the Civil 
 Law becoming a clergyman. But an attempt made 
 in 1807 t compel the Dean of the Arches to admit 
 
 1 " Trinity Hall " (College Histories Series), p. 103, et seq.
 
 77 
 
 a clergyman, Dr. Highmore, into the society of 
 Doctors' Commons was unsuccessful. 1 This was 
 a hard case, for the candidate, though in deacon's 
 orders, had dropped the clerical profession pre- 
 viously to going up to Cambridge for the special 
 purpose of qualifying himself for practice at 
 Doctors' Commons by taking a Doctor's degree. 
 
 Though the college of the English civilians was 
 thus fully established under Elizabeth, the courts 
 afterwards associated with Doctors' Commons were 
 not at once held there. The Arches still sat in 
 St. Mary-le-Bow ; the Court of Admiralty in 
 South wark. The days when the doctors would 
 appear in their own college hall in scarlet robes 
 before the Dean, and, less resplendent in black gowns 
 before the Judge of the Admiralty, only came when 
 a new Doctors' Commons arose after the Fire of 
 London. It may be, however, of some interest to 
 note as marking the close connexion of the college 
 with the Universities, that in the Court of Arches 
 the advocates wore the hoods appropriate to their 
 degrees at Oxford or Cambridge " and all round, 
 black velvet caps." Even the proctors wore hoods 
 in this court, those of their degrees, if graduates ; 
 a hood " lined with lamb's skin " if they were not." 
 Membership as an advocate was strictly confined 
 
 1 The King v . The Archbishop of Canterbury (Highmore 's 
 Case), 8 East, 213. 
 
 2 See Chamberlayne, " Angliae Notitia," as to the seventeenth 
 century ; and Floyer, " The Proctor's Practice," as to the 
 eighteenth.
 
 78 THE COLLEGE OF ADVOCATES 
 
 at a later date to graduates of the two Universities : 
 one John Hawkesworth, upon whom in the 
 eighteenth century a Lambeth degree of LL.D. had 
 been conferred, in vain sought admission. 1 
 
 A peculiarity of the college, which for com- 
 parative purposes perhaps deserves further 
 investigation, was that its members were surro- 
 gates of the Judge of the Admiralty Court, and 
 could lawfully act for him in his absence. 2 Sir 
 Travers Twiss, in stating this, goes a long way back 
 for a parallel, to the fourteenth-century " Order of 
 the Courts of the Consuls of the Sea " at Valencia, 
 where it was the practice both of the Consuls and 
 of the Appeal Judge to delegate their offices to 
 members of the Guild of Navigators in a case of 
 necessity. It is, at any rate, certain that the 
 Judge of the Admiralty Court often sat by deputy 
 in Henry the Eighth's time ; Dr. Husse is sitting 
 for Dr. Tregonwell in 1536, Dr. Trevor for Dr. 
 Husse in 1542, and Dr. Jeffery for Dr. Leyson in 
 I547. 8 Mr. Marsden says the deputy received his 
 appointment from the Admiral; and a manuscript 
 list of the Judges of the Admiralty Court amongst 
 Sir Julius Caesar's papers in the British Museum 
 has a note that in the time of Dr. Lewis (1558-1584) 
 the Queen joined several Doctors in commission 
 with him for his assistants in piracy cases. 4 Such 
 appointments seem unnecessary if Sir Travers 
 
 1 Irving, " Introduction to the Study of the Civil Law," citing 
 Kenrick's Poems (1768), p. 168. 
 
 1 " Black Book of the Admiralty," Vol. IV., p. 459. 
 
 * " Select Pleas in the Court of Admiralty." Vol. I. p. Ix. 
 
 Add. MSS., 30222.
 
 THE COLLEGE OF ADVOCATES 79 
 
 Twiss is to be taken literally : but possibly his 
 statement indicates the theory only. On the other 
 hand, Dr. Lewis has left it on record that he prac- 
 tised as an advocate for five or six years after he 
 became Judge in 1558, " so as to make a competent 
 living thereby " ; and apparently Sir William Petre 
 and Dr. Wotton were qualified to sit for him when 
 he had a brief, for he complains that when they 
 began to withdraw themselves from the Court he 
 was compelled to attend to his judicial duties and 
 forego his advocacy. 1 
 
 We may wind up our survey of the doctors in 
 Tudor times with a pleasant fact or two, touching 
 their collegiate habits, derived from their own 
 records. Every day in term time a portion of the 
 Holy Scriptures was read in the Latin tongue 
 during dinner : and in 1575, at Burghley's sugges- 
 tion, the privilege was granted to the Society of 
 importing wine free of duty for the use of their 
 common table. It is gratifying to find from an 
 examination of the dates given that it was five 
 years before this economic advantage accrued to 
 the College of Advocates that they excluded their 
 merely honorary members (who had become too 
 numerous) from their commons.* That the 
 sequence of events is not otherwise redounds to 
 the credit both of the honorary members and of the 
 College. 
 
 1 Stow, " Survey of London," 1753 ed.. Vol. I., Book I., Chap. 
 XII. S.P. Dom. Eliz., Vol. CVI., 60. 
 
 * Oughton, " Ordo ludiciorum," Chap. I. " De Hospitio 
 Dominorum Advocatorum."
 
 80 THE COLLEGE OF ADVOCATES 
 
 There is not wanting evidence, however, that 
 the professional prospects of the civilians which 
 seemed to be a-ripening under Edward the Sixth 
 were nipped in the bud whilst yet Elizabeth reigned. 
 When the middle of the century was past the 
 common law began to pick itself up. The second 
 dedication of Richard Crompton's book on the 
 Jurisdiction of Courts, published in 1594, shows, 
 for example, at once a pride in the common law 
 and esprit de corps amongst its practitioners " As 
 " touts mes Companions del Middle Temple 
 " Richard Crompton desire Vencrease de science in 
 " les Comon leyes de cet Realme." Coke has re- 
 corded with a sneer and evident satisfaction the 
 decline at this period of those " divers under- 
 courts to hear complaints by bill of poor people " 
 which owed their origin to Cardinal Wolsey and 
 were manned by civilians and canonists. " One," 
 he says, " kept in Whitehall, the other before the 
 " King's Almoner Dr. Stokesley, a man that had 
 " more learning than discretion to be a judge : 
 " a third sat in the Lord Treasurer's Chamber be- 
 " side the Star Chamber, and the fourth at the 
 " Rolls in the afternoon. These Courts were 
 " greatly haunted for a time . . . but then every 
 " man was weary of them and resorted to the 
 " common law." * As regards the civilians in the 
 Admiralty Court there is the pathetic complaint 
 of the judge, Dr. Lewis, as to the state of business 
 there, a reference to which has already been made. 
 He has no fixed salary : his share of the goods and 
 1 " Reports," Part 3., Preface.
 
 THE COLLEGE OF ADVOCATES 81 
 
 chattels of attainted pirates is gone, for the Admiral 
 has transferred the right thereto to the Crown : 
 worse still, the Queen's Bench has " terrified " the 
 suitors by prohibitions grounded on specious 
 fictions : and finally, the Queen has granted to the 
 Company of Merchants trading with Spain and 
 Portugal, upon whose business the Court of Admir- 
 alty " stood chiefly," a right to hear and determine 
 their own litigation. Already in 1558 there had 
 been a case where London merchants had been 
 deemed the fittest arbitrators in a commercial 
 dispute, over the heads, so to speak, of both the 
 Chief Justice of the Queen's Bench and the Judge 
 of the Admiralty Court. In this suit of Wynthrop 
 v. Combes the first-named judge had issued an 
 attachment against the judge in Admiralty for 
 intermeddling in his jurisdiction : both dignatories 
 were heard before the Council, who endeavoured to 
 arrange a modus vivendi ; but ultimately the Council 
 sent a letter to Alderman Marten and four other 
 London merchants authorising them to call Wyn- 
 tropp and Combes before them and " to hear and 
 determine all matters of controversy between 
 them." 1 And in or about the year 1570 we find 
 the Lord Mayor and Sheriffs of London (either 
 moved by the result of such a case as the foregoing 
 or by the success of the fiction practised in the 
 Common Law Courts alleging the good ship Tiger 
 to have arrived in Cheapside) 2 trying their hands 
 
 1 " Acts of the Privy Council," N.S. Vol. VII., p. 62. 
 1 See Ridley's " View of the Civil Law " 1676 ed., p. 172.
 
 S2 THE COLLEGE OF ADVOCATES 
 
 at stealing a march upon the jurisdiction of the 
 Admiralty Court : in this instance, however, the 
 usurpers are reproved by the Queen and com- 
 manded to intermeddle in no such matters. 1 But it 
 is worth, notice in connexion with the City's 
 tendencies that in the constitution of the court set 
 up by statute in 1601 for dealing with causes 
 arising out of policies of assurance, " eight grave 
 and discreet merchants " were added to three 
 civilians, including the Judge of the Admiralty 
 Court, and three common lawyers, including the 
 Recorder. 2 This Act of Parliament seems to have 
 long rankled in the minds of the civilians. Dr. 
 Robert Wiseman reverts to it in the plea on behalf 
 of the civilians' profession he put forward in 1656, 
 and sadly points to the small number of the learned 
 appointed to the tribunal devised to carry it out 
 compared with this intolerable deal of merchants. 
 " Let them keep within their own sphere," he 
 observes, and proceeds to draw a fancy picture of 
 merchants rashly promoted to dispense justice in 
 the Court of Admiralty, where he is sure they would 
 not be fair to their employe's the mariners. 3 Nor was 
 it alone in the mercantile field that the frost 
 attacked the activities of the doctors of the civil 
 law. The celebrated Dr. Duck, writing in the next 
 generation, has recorded with a bitter humour 
 that " in the latter end of her (Elizabeth's) reign, 
 " her chief Ministers chose rather to use an Amanu- 
 
 1 S.P. Dom. May 20, 1570. 
 
 8 43 Eliz., cap. 12. 
 
 * " The Excellency of the Civil Law," p. 148.
 
 THE COLLEGE OF ADVOCATES 83 
 
 " ensis in transcribing Leagues and Contracts than 
 " the Assistance of skilful Civilians . . . having, 
 " perhaps, fallen upon that ancient caution in 
 " relation to wills, ' A testamento dolus malus et 
 " iuris consultus dbesto.' " 1 
 
 1 " Use and Authority of the Civil Law in England." 1724 ed., 
 p. xxxviii.
 
 V. THE LATTER DAYS OF THE 
 CIVILIANS 
 
 James the First brought with him from Scotland 
 a liking for the Civil Law. He said that "if it 
 should be taken away it would make an Entry 
 into Barbarism," meaning that there would be 
 no international law left. 1 Much might be written 
 on the text of this antithesis, not without very 
 modern illustrations : but in truth James was only 
 emphasising the international aspect of the Roman 
 law in order to allay the fears of those who saw him 
 favouring its professors within the realm. It may 
 be, however, that the civilians in England read 
 into such royal pronouncements a possibility of a 
 new era for them. In 1607 Sir Thomas Ridley 
 dedicated to James his " View of the Civil Law," a 
 work designed to show the needlessness of the. 
 common lawyer's jealousy. We have already met 
 with more than one symptom of that antagonism, 
 notably in the complaint of the students of the 
 Inns of Court in Edward the Sixth's time touching 
 the encroachments of the civilian practitioners. 
 In the fifty years between then and the accession 
 of James, time had done much to diminish the causes 
 
 1 Wynne's " Life of Jenkins," i, p. Ixxxiv. 
 84
 
 THE LATTER DAYS 85 
 
 of the common lawyer's anxiety : broadminded 
 men thought the rivalry a mere schism that ought 
 to be cured. Dr. John Cowell, Master of Trinity 
 Hall and Regius Professor of the Civil Law at 
 Cambridge, in the " Institutiones luris Anglicani," 
 which he published in 1605, had deplored the 
 inveteratae simultates, quas iam diu legum Angli- 
 carum professores et iuris impemtorii in hoc regno 
 invicem exercuerunt : and his design two years 
 later, in putting forth the law-dictionary called 
 " The Interpreter," a book of which we shall have 
 more to say, seems largely to have been to mediate 
 between the two professions by exhibiting the 
 common elements in their respective studies. The 
 versatile William Fulbecke of Gray's Inn, in his 
 " Parallele of the Civill Law, the Canon Law and 
 the Common Law," published in 1601, had taken 
 much the same line, so that it may be said that in 
 the early years of the seventeenth century an olive 
 branch was held up on either side. " It seemed 
 " strange unto me," wrote Fulbecke, " that these 
 " three laws 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." 
 
 Unfortunately a comprehensive idealism such a 
 Fulbecke's stood no chance when Coke came upon 
 the scene. There was again added to what, on the 
 surface at least, had been only a professional rivalry, 
 the rancour of politics. It chanced that in the 
 year 1607 Dr. Cowell had been inspired by the
 
 86 THE LATTER DAYS 
 
 example of one Calvinus of Heidelburg to compile 
 his famous " Interpreter." It was certainly a 
 book in which the supporters of kingly absolutism 
 might find a text or two to their taste, although to 
 read its modest preface one can hardly imagine 
 that any motive other than a desire for academic 
 fame had prompted its production. " My true 
 " ende," declared the author, " is the advancement 
 " of knowledge : I shall think my paines sufficiently 
 " recompensed if they may be found but worthy 
 " to stirre up one learned man to amend mine 
 " errours." The learned man who was stirred up 
 to amend the doctor's errors, though in a sense very 
 different from his expectation, was the Chief 
 Justice of the Common Pleas, Sir Edward Coke. 
 
 A considerable period elapsed before this hap- 
 pened an interval not without its significance. 
 Meanwhile in 1609 had occurred the well-known 
 wordy encounters between the King and Coke 
 touching the Royal Prerogative, wherein the Chief 
 Justice may not have come off with such flying 
 colours as the posthumous Part XII. of his Reports 
 would lead us to suppose. 1 There are circum- 
 stances in the story of the prosecution of Cowell 
 and the suppression of his book (ostensibly at the 
 instigation of the Parliament on constitutional 
 grounds) from which it might be argued that Coke, 
 who was undoubtedly at the back of those pro- 
 ceedings, made the Professor into a kind of whipping- 
 boy for his Majesty. The old contest between 
 
 1 See Eng. Hist. Rev., Vol. XVIII., p. 664, " James I. and Sir 
 Edward Coke," by Roland G. Usher.
 
 THE LATTER DAYS 87 
 
 common lawyer and civilian was linked by Coke 
 with controversies of much wider import, though 
 ostensibly it remained one as to the excellence of 
 their respective systems and the proper boundaries 
 of their practice. Dr. Cowell, somewhat gratuit- 
 ously, it is true, had included in " The Interpreter " 
 a quotation from the French civilian, Hotman, re- 
 flecting in severe terms upon Littleton's " Tenures." 
 The Frenchman had dared to describe Littleton's 
 work Coke's Littleton as incondite, absurde et in- 
 continue scriptum. " It is a desperate and 
 " dangerous matter," we read in one of Coke's 
 prefaces to The Reports, " for civilians and 
 " canonists (I speak what I know and not without 
 " just cause) to write either of the common laws 
 " of England which they profess not, or against 
 " them which they know not." When we read the 
 Proclamation suppressing Dr. Cowell's " Inter- 
 preter " in 1610 and find one of the grounds for the 
 action taken is stated to be " speaking irreverently 
 " of the Common Law of England and the works 
 " of some of the most famous and ancient Judges 
 " therein," we with difficulty resist the conclusion 
 that Cowell's attack at secondhand upon Coke's 
 idol weighed with his lordship not much less than 
 the Professor's unconstitutional theory of Kingship. 
 There was another reason besides " The Inter- 
 preter " why the downfall of Dr. Cowell would be 
 acceptable to the Chief Justice as involving in- 
 directly in its censure other more highly placed 
 persons. Cowell had been the draughtsman of the 
 Articuli Cleri for his patron the Archbishop
 
 88 THE LATTER DAYS 
 
 Bancroft, in furtherance of that prelate's struggle 
 for a wider ecclesiastical jurisdiction in despite of 
 the common law : and, moreover, it was the 
 Archbishop who had egged on James in his quaint 
 desire to sit as judge in the King's Bench. Coke 
 successfully thwarted that particular ambition : 
 but in passing we may note that according to the 
 Venetian Ambassador, writing home to his govern- 
 ment in August, 1609, James came one day into 
 the High Court of Admiralty " at the reading of 
 " the cases, and to the amazement of everyone, 
 " summed up the evidence of all the witnesses." 
 In view of Coke's prohibition and his dislike both 
 of the Admiralty Court and of the civilians who 
 practised before it, there is a peculiar piquancy in 
 this escapade of the British Solomon. As to " The 
 Interpreter " itself, as soon as Parliament was 
 moved to take exception to it, nearly three years 
 after its publication, James professed to repudiate 
 its author. He had already learnedly explained 
 his notion of the scope of the civil law within the 
 realm in a speech to the Houses. 1 That he really 
 was prepared to protect the civilians so far as he 
 could appears from an episode that occurred 
 during the previous year. The King was dis- 
 cussing with the Judges the complaints of the 
 doctors practising in admiralty as to the curtail- 
 ment of their business by writs of prohibition. 
 These complaints, with the answers of the Judges 
 thereto, were afterwards set out by Coke in the 
 
 1 Wilson, " Life and Reign of King James the First " (1653), 
 P- 47-
 
 THE LATTER DAYS 89 
 
 Fourth Part of his Institutes, 1 the replies 
 forming the argument from the common law side, 
 supported by many supposed authorities : but as 
 Mr. Justice Buller remarked in the eighteenth 
 century, " that part of Coke's work has been 
 " always received with great caution and frequently 
 " contradicted." " He " says Buller, " seems to have 
 " entertained not only a jealousy of, but an enmity 
 " against, that (the admiralty) jurisdiction." 2 What 
 is related of Coke's behaviour at the meeting when 
 these Articuli Admiralitatis were being discussed, 
 bears out, if the chronicler may be believed, the 
 conclusion that Buller had arrived at regarding 
 Coke's dislike of the civilian merely as such. He 
 appears upon this occasion to have attacked Sir 
 Thomas Crompton, the successor of Dale in the 
 Admiralty judgeship, for no other assignable reason 
 than that he was a person of eminence in his profes- 
 sion. The Lord Chief Justice provoked James to retort 
 that Crompton was as good a man as he. 3 Cromp- 
 ton is described in the State Papers of the time as 
 a man of great learning in the civil law. 4 He had 
 been Advocate-General under Elizabeth and was 
 Chancellor of the diocese of London and Member 
 for Oxford : but, " in truth," as Buller adds in 
 the case already cited, " my Lord Coke could not 
 bear anything connected with the Civil Law." 
 In such an atmosphere did the civilian lawyers in 
 
 1 " Institutes," IV., p. 135. 
 
 * In Smart v. Wolff (1789), 3 T.R. at p. 348. 
 
 * Lodge, " Illustrations of English History," Vol. III., p. 364. 
 4 S.P. Dom. Addenda, James I. May 29, 1608.
 
 90 THE LATTER DAYS 
 
 England begin the seventeenth century. To show 
 something of the share that James and Coke 
 between them had in creating it enables us the 
 better to understand the civilian's position forty 
 years later. 
 
 With this introduction it may be said that as a 
 body the lawyers at Doctors' Commons were pas- 
 sively rather than actively involved in the political 
 strife of the succeeding reign. The strife itself 
 was inevitable. The Tudors had wielded powers 
 greater than those possessed by any former English 
 sovereigns. In their time the powers had been 
 necessary, but in the next age the prerogative of 
 the Crown, no longer employed in strengthening 
 and maintaining the national unity, needed to be 
 curtailed. It was in a somewhat similar fashion 
 that the Court of Star Chamber, the name of which 
 became a byword, had started by being a useful 
 and beneficent tribunal. The process by which 
 the checking of the prerogative was accomplished, 
 through civil war and the experiment of a republic 
 resting upon the power of the Puritan sword, has 
 been described by many historians according to 
 their several predilections, and needs no further 
 comment. But it may be mentioned that it had 
 been during the Tudor period that the civilians in 
 England had, so to speak, attained their majority, 
 and that it was probably only natural that they 
 would be exposed to the prejudice of the popular 
 party when it in turn grew up. As professors of 
 the Roman Law they were associated with an 
 imperialistic system. They were all advocates in
 
 THE LATTER DAYS 91 
 
 the Court of Arches, and in the seventeenth 
 century the Bishops were regarded as the heads of 
 an institution that was necessarily in alliance with 
 the King. These facts would be reason good 
 enough for popular suspicion. The ill-omened 
 maxim, Quod placuit principi, was still upon 
 occasion dragged from its seclusion as a testimony 
 against those in whose books it lurked, although 
 what was pleasing to the Prince was by no means 
 always pleasing to individual civilians. Charles' 
 order, for example, that goods taken out of French 
 prizes should be sold without waiting for the 
 sentence of the Admiralty Court was keenly re- 
 sented by Sir Henry Marten the judge. As regards 
 the civilians and the Church, they were sometimes 
 far from seeing eye to eye with Laud in matters of 
 ecclesiastical jurisdiction. But undoubtedly marks 
 of the royal favour were bestowed upon them 
 by the first two Stuarts, less, as it seems, in response 
 to any seeking than because the Crown took the 
 support of their profession for granted. Under 
 Elizabeth they had been addressed officially as 
 " Her Majesty's right trusty friends " : the assump- 
 tion was still made. In 1634 the College of Advo- 
 cates was expressly exempted from the ship-money 
 tax imposed upon the City, and it appears from a 
 letter written by Secretary Windebank to Sir 
 Henry Marten that the King specially notified his 
 departure for York " for the defence of this King- 
 dom " not only to the Judge of the Admiralty 
 Court but to the whole Society of Doctors' 
 Commons. " You are to think," Marten is told.
 
 92 THE LATTER DAYS 
 
 " of come considerable assistance." l He was, as 
 already stated, quite capable of taking an inde- 
 pendent view of Charles' proceedings, but efforts to 
 " nobble " learned bodies in the interest of some 
 particular policy of state are not even yet unknown. 
 Mr. Maiden, in his history of Trinity Hall, is in- 
 clined to wonder that the doctors did not receive 
 a charter of incorporation from either James I. 
 or Charles I. The fact that the existing corpora- 
 tion of Trinity Hall was already in possession of 
 Doctors' Commons as lessees might partly explain 
 the omission, but there is a further and quite 
 different reason in the various " politics " of the 
 doctors themselves. When the civil war came we 
 find some of them on both sides. The eminent 
 Dr. Duck was a close adherent of Charles, who, 
 when a prisoner in the Isle of Wight, would fain 
 have obtained his advice in negotiating with the 
 Parliament. The successor of Sir Henry Marten 
 in the Admiralty Court, Dr. Richard Zouche, 
 though a royalist in the war, was enough in favour 
 with Cromwell to be included in the commission 8 
 appointed to try the case of Don Pantaleon Sa in 
 1653, though he had before then been deprived of 
 his judgeship. On the other hand, Dr. Godolphin 
 appointed with others to fill the place of Zouche, 
 was on the Puritan side, and the name of Dr. Isaac 
 Dorislaus, on whose behalf Cromwell wrote to 
 Trinity Hall to secure the succession to Duck's 
 
 1 S.P. Dom. Feb. 12, 1638/9. 
 
 * This special commission of oyer and terminer included, besides 
 Zouche, two or three other civilians. It sat in Westminster Hall. 
 Cobbett's " State Trials," Vol. V.
 
 THE LATTER DAYS 93 
 
 chambers for him, is amongst those of the regicides. 
 A Dutchman, though as Fuller puts it, " very much 
 Anglized in language and behaviour," Dorislaus 
 was a republican who had previously given offence 
 to the Court by a lecture delivered from the Chair 
 of History at Cambridge. 1 Not all the doctors, 
 then, were upholders of a Byzantine theory of the 
 State. 
 
 Leaving the threadbare controversies of that 
 time, we may now gather from scattered entries 
 in the State Papers something of the professional 
 life of the lawyers at Doctors' Commons during 
 the first half of the seventeenth century. We ought 
 not to omit all reference to the appearance of 
 Albericus Gentilis in the Admiralty Court as the 
 standing advocate on behalf of the Spanish Em- 
 bassy, from 1605 until his death in 1608 : although 
 it seems that Gentilis was never admitted a member 
 of the College of Advocates. His notes of cases 
 made during that employment were published by 
 his brother Scipio in 1613 under the title of 
 " Hispanicae Advocationis, in quo tractatu diversae 
 quaestiones maritimae perlustruntur et deciduntur. 
 Libri duo." Probtffely Gentilis, as Professor of 
 Civil Law at Oxford and a member of Gray's Inn 
 was accounted an honorary member of Doctors' 
 Commons. 
 
 Much business was soon afterwards being trans- 
 acted there, both in the Dining Hall, and in 
 chambers. In 1629 the King having referred 
 
 1 Fuller's " Hist, of the University of Cambridge " (1840 ed.) 
 P- 313.
 
 94 THE LATTER DAYS 
 
 a petition to Sir Henry Marten, he " appoints 
 the morrow at 3 of the clock at his chambers " 
 for examination of its truth and settling the 
 matter in difference ; 1 and other instances might 
 be given. In 1635/6 twenty-eight civilians 
 practically the whole college are consulted upon 
 a point of prize law. A vessel laden with tobacco 
 had been captured by a Dunkirker and condemned 
 in the prize-court at Dunkirk and afterwards on 
 appeal at Brussels on the ground that tobacco was 
 victuals. The " Doctors of the Civil Law, Judges 
 and Advocates of the Court of Arches," as they are 
 styled in the reference, report that in their opinion 
 these sentences are neither justified by the Law 
 of Nations nor by the treaty of 1630 between 
 England and Spain. 2 In July, 1636, Dr. Duck 
 advises as to the Archbishop's right of visitation 
 of the Universities. 3 In the following February a 
 petition to Laud is referred to Duck and Sir John 
 Lambe, who appoint a day to hear the cause in 
 the Dining Room. 4 There is frequent mention 
 during the next few years of the use of the Dining 
 Room as a court. The College would seem to 
 have taken its vacation early : on the I4th July, 
 1636, Duck writes to Lambe that " all of Doctors' 
 Commons are out of town." A good deal of pre- 
 liminary work is sent to the doctors in ecclesiastical 
 cases. Lambe is enjoined by the Archbishop to 
 
 1 S.P. Dom. May 19, 1629. 
 
 2 S.P. Dom. Feb. 3, 1635/6. 
 
 8 S.P. Dom. July, 1636, passim. 
 
 4 S.P. Dom. Feb. 23, 1636/7.
 
 THE LATTER DAYS 95 
 
 patch up a matrimonial difference " in a peaceable 
 manner if he can or else that the husband answer 
 in the High Commission." * In June, 1638, the 
 case of Mr. Pinson, accused of " inconformity " 
 to the Church of England, because (inter alia) his 
 wife had gone to be churched without a veil, is sent 
 for hearing in the Dining Room before Sir John 
 Lambe and Sir Charles Caesar. 2 The latter was 
 the son of Sir Julius, and is described by a con- 
 temporary observer as a " woodcock " and a " very 
 ass." 3 His remarks upon the behaviour of Mrs. 
 Pinson, who had contumaciously placed a table- 
 napkin upon her head when the parson pointed out 
 her omission, have unfortunately not been re- 
 corded. In 1640 the petition of a printer to Bishop 
 Juxon touching the re-printing of the book, " Re- 
 formatio Legum Ecclesiasticarum," by unlicensed 
 persons, is sent to Lambe " to settle the difference, 
 or certify where he conceives the right to be." 4 
 These extracts will suffice to show the variety of 
 the business disposed of at this time by the civilians 
 at Doctors' Commons. The Court of Admiralty, 
 though it also was manned by them, was not yet 
 held there. 
 
 Some effort appears to have been made in the 
 reign of Charles the First to find places for the 
 civilian lawyer in the provinces. Wiseman, writing 
 about 1656, says, " If we look back no further than 
 
 1 S.P. Dom. Mar. 17, 1637/8. 
 
 2 S.P. Dom. June n, 1638. 
 
 S.P. Dom. Mar. 28, 1639. 
 
 * S.P. Dom. June 27, 1640.
 
 96 THE LATTER DAYS 
 
 " twenty years we shall remember the Civil Law 
 " did so far spread itself up and down this nation 
 " that there was not any one county which had 
 " not some part of the government thereof managed 
 " and exercised by one or more of that profession." 1 
 It is to be remembered that he was engaged in 
 making out a case for the Civil Law : he makes 
 this assertion the ground for observing that it was 
 " naturalized " and " not to be reputed or looked 
 upon by us a stranger any longer." When we do 
 look back twenty years from 1656 we find that 
 there was an Order of a Committee of both Houses 
 in 1635 whereby the judge of a Vice-Admiral of 
 the Coast was to be a discreet and learned man in 
 the civil law dwelling or resorting within the circuit 
 of his office, or, for want of a civilian, one learned 
 in the common laws. It also appears from a 
 charter of 1640 granted to the town of Southampton 
 that a civil lawyer " might " be added to the Mayor 
 and Recorder sitting as judges in the admiralty 
 court of local jurisdiction. But even if civilian 
 deputies were appointed in all the nineteen dis- 
 tricts which boasted Vice-Admirals and even if all 
 the other boroughs having, like Southampton, a 
 local admiralty there were less than twenty such 
 towns chose to bring in a civilian to help them, 
 it would not have amounted to very much. It is 
 difficult, however, to see to what else Wiseman was 
 alluding when he speaks of civilians exercising 
 their profession in every county if not to such 
 provisions on their behalf as we have mentioned : 
 
 1 " The Excellency of the Civil Law," p. 180.
 
 THE LATTER DAYS 97 
 
 and it is to be noted that he speaks in the past 
 tense as though the civilians' ubiquity, if indeed 
 it was ever established, had been shortlived. 
 
 Cromwell kept a tight hand upon the College. 
 His polite letter to Trinity Hall, written within 
 two days of the royalist Doctor Duck's decease, 
 with the object of securing for the republican 
 Dorislaus the dead man's chambers at Doctors' 
 Commons, has another significance besides that of 
 showing that the lettings were controlled from 
 Cambridge. As to the Admiralty Court, it went in 
 fear of the Council of State : but as, about the same 
 time, the Chief Justice of the King's Bench had to 
 choose between resigning his seat and forfeiting his 
 independence, there is nothing surprising in the 
 subservience of the lesser court. There are several 
 letters from the Admiralty Judges seeking the 
 instructions of the Council as to the decision of 
 causes before them. They write to Cromwell from 
 Doctors' Commons in 1654, " we have long waited 
 " an order on the case of Palache on a report to the 
 " Council, and his proctor pressing for judgment we 
 " remind you thereof and certify that if we receive 
 " no order to the contrary we shall let the case go 
 " to hearing." * This attitude was further secured 
 by the appointment of judges in admiralty some- 
 times for a few months only. Dr. Godolphin, Dr. 
 Clark, and a barrister named Cocke, are appointed 
 by an Act of July 30th, 1653, until March 25th, 
 1654, " an d n longer." Godolphin and Cocke are 
 again appointed on May igth, 1659, until June 
 
 1 S.P. Dom. Dec. 5, 1654. See also ibid. Oct. 27, 1653.
 
 98 THE LATTER DAYS 
 
 3oth, 1659, " and no longer " : and again on July 
 igth until the following December. The mention 
 of Cocke reminds us that the ancient monopoly 
 of the civilians is being encroached upon : although 
 a common lawyer he was not only made an admir- 
 alty judge but sat also in the Prerogative Court. 1 
 In 1649 one Stevens, a member of the House of 
 Commons and a common lawyer, was made a judge 
 in Admiralty : "for which place," says Whitelock, 
 " he was not very fit." 2 This leavening of Doctors' 
 Commons was probably meant to be disciplinary : 
 but, as we know, times of unrest are ever the oppor- 
 tunity of the unqualified. 
 
 On the other hand, the jurisdiction of the 
 Admiralty Court was settled by various Acts and 
 Ordinances during the Interregnum, and the inter- 
 ference of the common law courts by way of pro- 
 hibition was for the time being staved off. Mr. 
 Marsden tells us the business of the Court increased 
 during this period, and that probably the reason 
 why the attack of the common lawyers began 
 afresh after the Restoration was " the disfavour 
 which then attached to all the doings of the 
 Commonwealth, including the recent settlement of 
 Admiralty jurisdiction." 3 
 
 There can be little doubt that with the passing 
 away of the Star Chamber, the Court of Requests 
 and other tribunals of Tudor origin, the Court of 
 Admiralty, which for historical reasons had always 
 been the most natural field for the civilians' prac- 
 
 1 Coote's " Civilians." 
 
 * " Memorials," p. 405. 
 
 3 " Select Pleas," Vol. II., p. Ixxix.
 
 THE LATTER DAYS 99 
 
 tice, became their mainstay. It is clear from the 
 manner in which the famous argument of Sir 
 Leoline Jenkins, on behalf of the Bill before the 
 Lords in 1660 to ascertain the jurisdiction of the 
 Admiralty, diverges into a plea for the usefulness 
 of the civilians' profession, that he considered the 
 continuance of the latter closely if not chiefly bound 
 up with the business of the Admiralty Court. The 
 Bill, which embodied the provisions of a Common- 
 wealth Ordinance of 1648, was thrown out by 
 Parliament : and with the growth of commercial 
 law at Westminster under such a judge as Holt 
 towards the end of the century the Court was 
 bound to diminish in importance. Even with the 
 ecclesiastical business thrown in, the civilian had 
 difficulty in maintaining his footing. " Although " 
 says Fuller, writing in the year 1655, " the civilians 
 " kept canon law in commendam with their own 
 " profession, yet both twisted together are scarce 
 " strong enough (especially in our own sad days) 
 " to draw to them a liberal livelihood." * Things 
 were no better after 1660. 
 
 The Restoration was followed by two national 
 calamities, both of which affected the home of the 
 civilians. In 1665 came the Plague, which was 
 particularly bad in the neighbourhood of Doctors' 
 Commons. 2 In September of that year, in con- 
 sequence of this epidemic, the King addressed a 
 letter to the Mayor and Aldermen of Oxford re- 
 questing them to give " a free and fair reception " 
 
 1 " Hist, of the University of Cambridge " (1840 ed.), p. 225. 
 Z S.P. Dom. Nov.? 1665.
 
 ioo THE LATTER DAYS 
 
 to the judges and other officers of the Admiralty 
 Court, now ordered to be kept in the Common Hall 
 of that city. 1 It had lately been held in part of 
 the disused Church of St. Margaret-at-Hill in the 
 borough of South wark. 2 At Oxford, according to 
 some authorities, it sat in the Hall of Jesus College, 
 of which the Judge, Sir Leoline Jenkins, was a 
 Fellow ; but as its excursion thither extended 
 only to a few months it does not greatly matter 
 whether the municipality or the university gave 
 it house-room. It is of somewhat more interest to 
 know that the Court of Admiralty moved into 
 Doctors' Commons early in 1666 for the first time 
 in its history, and was thenceforth to be held in 
 the Hall of that building, as appears from a warrant 
 to Jenkins dated in January. 8 
 
 Unfortunately the Hall and the rest of the orig- 
 inal Doctors' Commons perished in the Great Fire 
 of the following September. The civilians, again 
 exiled, then held their courts at Exeter House in 
 the Strand until 1672, by which time their college 
 had been rebuilt * and in February, 1673, we find 
 " the Society of Doctors' Commons " petitioning 
 that their ancient freedoms and immunities might 
 be preserved and confirmed to them. 5 Sir Leoline 
 Jenkins was instrumental at this time in procuring 
 their freedom from several taxes and assessments 
 
 1 S.P. Dom. Sept. 15, 1665. 
 
 2 Pepys' "Diary," Mar. 17, 1663. 
 
 * S.P. Dom. Jan. 25, 1666. Coote (" Civilians ") is mis- 
 leading on this point. 
 
 * Coote's " Civilians." 
 
 * S.P. Dom. Feb. i, 1673. " Entry Book," 37, p. 54.
 
 101 
 
 which his biographer says had been unduly laid 
 on them by the Court of Aldermen ; and after- 
 wards, in 1682, when Secretary of State, he ob- 
 tained for them " exemption from all Ward and 
 " Parish Offices, in the same manner as Serjeants, 
 " Council (sic) and Attorneys of the King's 
 " Temporal Courts." * 
 
 The college then re-erected was that which the 
 civilians inhabited until the end. Something of its 
 architectural aspect may be gleaned from a drawing 
 of its " Great Quadrangle," made when the building 
 was on the eve of demolition in the last century, 
 which is preserved in the London Museum. 
 Judging by this, its appearance differed little from 
 still existing seventeenth-century aggregations of 
 chambers in the Temple and elsewhere. The 
 larger quadrangle was entered by an archway from 
 Knightrider Street, and opposite to this entrance 
 was another archway leading into a second quad- 
 rangle and a garden. The building included, 
 besides the houses in which the advocates resided 
 or had chambers, the Common Hall and Dining 
 Room, of which we have already heard, and a 
 Library. 2 The Library, which was over the 
 Dining Room, has been called " spacious and well 
 stocked." 8 Every bishop at his consecration was 
 supposed to subscribe a sum for the purchase of 
 books, and there were other benefactors. The 
 books were dispersed in 1861. 
 
 1 Wynne's " Life of Jenkins," Vol. I., p. liii. 
 1 See " Doctors' Commons : Its Courts and Registries," by 
 G. J. Foster (1868), p. 5. 
 8 Noorthouck's " Hist, of London " (1773), p. 584.
 
 102 THE LATTER DAYS 
 
 Great Britain found herself at war again with 
 Holland in 1672, and early in the following year 
 two spies named Zas and Arton were caught in 
 England. The commission to try them included, 
 besides Colonel John Russell and ten other military 
 officers, four doctors of the civil law, of whom 
 Jenkins was one. It had been drafted by Sir 
 Robert Wiseman, the Advocate-General, and Sir 
 Walter Walker, D.C.L., and approved by the King. 
 Military law was, of course, from old time within 
 the civilians' province : but the inquisitorial mode 
 of trial here proposed to be adopted is not without 
 interest. The commission, which is dated February 
 24th, 1673, recites that Zas and Arton are charged 
 with coming over to act as spies, and empowers the 
 judges " by such just and lawful means and even 
 " by pains to be inflicted, if otherwise he or they 
 "refuse (so as the said pains be not extended to 
 " the laming disjointing or dismembering of his 
 " or their bodies) to compel them to answer to 
 " such interrogatories for discovering the design 
 " they came over about ... as may be exhibited 
 " by Sir R. Wiseman and Sir W. Walker, the King's 
 " Counsel, and to pass sentence upon them, pro- 
 " vided that no sentence of death be put in execu- 
 " tion without the King's further order." 1 It has 
 been suggested that there was a sinister connexion 
 between the use of torture in England in order to 
 obtain evidence and the civil law. The practice, 
 though unknown to the common law, was never- 
 
 1 S.P. Dom. Oct., i672-Feb., 1673, pp. 557, 605.
 
 THE LATTER DAYS 103 
 
 theless long established in the administration of the 
 ordinary criminal law, and the presence of a civilian 
 at an examination by " pains to be inflicted " 
 seems to have been considered necessary, probably 
 in order that the rules prescribed by the civil law 
 should be duly observed. 1 The case just mentioned 
 did not arise in the course of the ordinary criminal 
 law : but it is of somewhat later date than the 
 period which, according to Mr. Jardine, saw the 
 end of torture in England, and the management of 
 the examination was evidently in the hands of the 
 two civilians named. 
 
 The Revolution of 1688 found the civilians 
 divided in their opinions, as the Civil War had done. 
 When Dr. William Oldys, the Admiralty Advocate, 
 was deprived of his office in 1693 for refusing to 
 prosecute as pirates persons holding letters of 
 marque from James the Second, Dr. Littleton was 
 quite ready to take his place. When Oldys was 
 examined as to his reasons by a Committee of the 
 Privy Council, Dr. Pinfold concurred in his opinion, 
 whilst Littleton's contention that the King by his 
 abdication had ceased to have power to grant such 
 commissions was supported by Dr. Matthew Tindal, 
 who wrote a pamphlet setting forth the whole 
 controversy. 2 
 
 1 Jardine, " A Reading on the Use of Torture in the Criminal 
 Law of England " (1837), p. 64. 
 
 2 " An essay concerning the Laws of Nations and the Rights of 
 Sovereigns, with an account of what was said at the Council 
 Board by the Civilians upon the question whether their Majesties* 
 subjects taken at sea, acting by the late King's commission, might 
 not be looked upon as pirates. With reflections upon the 
 arguments of Sir T. P. and Dr. Ol . . ." 1694.
 
 104 THE LATTER DAYS 
 
 From the date of the rebuilding after the Fire, 
 the College of Advocates had still nearly 200 years 
 of institutional life : but even before the close of 
 the seventeenth century there are signs that the 
 profession of the civil law is tending to become an 
 anachronism. The lamentations of Dr. Lewis 
 under Elizabeth, of Dr. Duck under Charles the 
 First, and the testimony of Fuller in his day, as to 
 the waning employments and emoluments of the 
 civil lawyers, are repeated in the year 1695 by 
 another writer who calls himself Solon Secundus. 
 " The Civil Law is in vogue with the Dutch," he 
 complains, " and indeed with the greatest part of 
 " Europe, England excepted, where 'tis run down 
 " and our Common Law advanced above it : 
 " t'other is cramped and scrubbed and whipt into 
 " a corner, and impeded mightily in its Progress 
 *' and Practice." l The date at which this last 
 vox clamantis is raised seems to show a curious in- 
 advertence on the part of its owner as to the trend 
 of English affairs. There had been a period not a 
 particularly short one round about the beginning 
 of the seventeenth century when the admiralty 
 lawyers at Doctors' Commons had been ahead of 
 the Common Law Courts in the development of 
 commercial law, but the latter had by now caught 
 them up. From the time of Lord Chief Justice 
 Holt the general mercantile business of the country 
 had tended more and more to be absorbed by the 
 ordinary courts of law, which, without admitting 
 
 1 " Solon Secundus : or Some Defects in the English Laws," 
 p. 17.
 
 THE LATTER DAYS 105 
 
 it, would take a leaf or two out of the civilians' 
 Roman book, and draw upon both the " law of 
 nature " and what Selden had called the " Jus- 
 tinian " law for guidance. There is already dis- 
 cernible that rapprochement between the Court of 
 King's Bench and the Civil Law (where it can be 
 serviceable) that had become a matter of course by 
 the time of Mansfield a century later : and it is 
 important to notice it inasmuch as the more 
 perfect it became the less need there would be for 
 the separate professional existence of the civilian, 
 so far as mercantile law was concerned. 
 
 But the " cornering " of the civilian, if we may 
 adopt the phrase of Solon Secundus, was not only 
 effected through the inevitable advance of the 
 common law in mercantile matters. Even the 
 sacred province of the public Law of Nations, once 
 his undisputed monopoly, he had now to share with 
 the Judges and the Law Officers of the Crown. An 
 opinion as to the power of the Crown to affect by 
 treaty the right of English subjects to claim their 
 goods out of prizes brought into England by a 
 foreign captor, given in 1689, is signed by Holt, 
 by Pollexfen J., and the Attorney and Solicitor- 
 General, as well as by Sir Charles Hedges, the 
 Judge of the Admiralty Court and Doctor Pinfold. 1 
 This practice is well established by the middle of 
 the next century. An opinion taken in 1744 as to 
 the power of the Crown to distribute prizes between 
 Dutch and English joint-captors is signed not only 
 
 1 " Law and Custom of the Sea " (Navy Records Society). 
 Vol. II., p. 124.
 
 106 THE LATTER DAYS 
 
 by two civilians, Doctor Paul and Doctor Strahan, 
 but by Sir Dudley Ryder and Sir William Murray, 
 afterwards Lord Mansfield. 1 The famous " reponse 
 sans rfylique " to the King of Prussia in 1753, 
 arising out of the matter of the Silesian Loan, 
 dealt, as is well known, with the nature and extent 
 of the jurisdiction over the ships and cargoes of 
 neutrals, a topic purely of international law. It 
 is signed by two civilians, Sir George Lee, Dean of 
 the Arches, and Doctor Paul, Advocate-General, but 
 also by Ryder, the Attorney, and Sir William 
 Murray, the Solicitor-General. Sir Robert Philli- 
 more says that this document was largely the work 
 of Lee : on the other hand, we are told in the 
 Preface to Hay and Marriot's Reports that the 
 future Lord Mansfield, " from the place of his birth 
 " had a predilection for the imperial or civil law " 
 and " took to himself the principal merit of this 
 " performance." However this may be, it is clear 
 that the civilians had ceased to be the sole authori- 
 ties ; the times were indeed changed since the 
 question of the Spanish Ambassador's conduct had 
 been referred by Elizabeth's Government to the 
 exclusive judgment of the civilians, Albericus 
 Gentilis and Francis Hotman, and since "the 
 Doctors of the Civil Law " in Knightrider Street 
 had been consulted en bloc as to contraband of war 
 in the reign of Charles the First. Mansfield's 
 " predilection " brought him, in 1770, under the 
 lash of Junius : " you have made it your study to 
 " introduce into the court where you preside 
 
 1 " Law and Custom of the Sea," Vol. II. p. 307.
 
 THE LATTER DAYS 107 
 
 " maxims of jurisprudence unknown to English- 
 " men ; the Roman code, the law of nations, the 
 " opinions of foreign civilians are your perpetual 
 " theme." r Other instances of the breadth of 
 the Lord Chief Justice's outlook may incidentally 
 be mentioned because, as we have already surmised, 
 it must in time have helped to level the barriers 
 that had once separated the lawyers at Doctors' 
 Commons from the rest of the legal profession. 
 Both he and Lord Chancellor Camden sought in- 
 struction from the former upon nice questions in- 
 volving testamentary law 2 and in 1782 Lord 
 Mansfield brought the civilians, Dr. Wynne and 
 Dr. Scott, into the King's Bench in order that he 
 might be assisted by their arguments upon the 
 validity of ransom-bills given at sea ; following 
 therein, it is true, a precedent set by Lord Chief 
 Justice Lee some thirty years previously. 3 We may 
 add that this procedure was followed as late as the 
 year 1845, when the case of Regina v. Serva (also 
 known as The Felicidade] involving a question of 
 criminal jurisdiction upon the high seas, was re- 
 argued by Admiralty lawyers from Doctors' 
 Commons before thirteen of the judges in the hall 
 of Serjeant's Inn, after it had come before the Court 
 for Crown Cases Reserved in the ordinary course at 
 Westminster. 4 It is difficult to say now what ele- 
 ments of inconvenience and even invidiousness may 
 have attached themselves to this arrangement, but 
 
 1 Letter No. xli. 
 
 a Dr. J. Phillimore, " Dedication to Lee's Reports," p. xiv. 
 
 3 For the names of these cases, vide supra, p. 62. 
 
 * Times, Nov. 17 and Dec. 4, 1845.
 
 io8 THE LATTER DAYS 
 
 if such there were, they were clearly to be traced 
 to the continued detachment of the College of 
 Advocates. 
 
 Employment as a diplomatic envoy, for which, as 
 we have seen, the civilian and canonist had once 
 been eminently marked out, forsook them after 
 the seventeenth century. The eighteenth saw the 
 rise of the Diplomatic Service in the modern sense. 
 Sir Leoline Jenkins was abroad " on the King's 
 service " in 1673, when, owing to the resignation of 
 the Duke of York as Lord High Admiral in conse- 
 quence of the Test Act, the office of Admiralty 
 Court Judge, which Jenkins held, became vacant : 
 we gather this from the record of his re-appoint- 
 ment, with Wiseman to act as his deputy in his 
 absence. 1 He is again abroad in 1676 at the 
 Congress of Nymwegen : but this appears to be 
 very nearly the last instance of a foreign mission 
 undertaken by a member of Doctors' Commons. 
 At home the civilians still had occasionally a 
 share in treaty-making : Sir John Cooke, Dean of 
 the Arches in Anne's reign, was one of the Com- 
 missioners for the Treaty of Union with Scotland, 
 and the doctors helped in the framing of the Treaty 
 of Utrecht in 1713. 
 
 The High Court of Admiralty remained, as yet, 
 in the exclusive possession of the civilians, and in 
 virtue of it they enjoyed, late in the eighteenth 
 century, what Professor Maitland has called " a 
 short St. Martin's summer." Between whiles, in 
 
 1 S.P. Dom. June 23, 1673.
 
 THE LATTER DAYS 109 
 
 the middle of that century, we shall find the pro- 
 cedure of the Admiralty Court employed at great 
 length about such matters of naval discipline as the 
 due correction of a master mariner for not striking 
 his topsail in the presence of a King's ship : though 
 in fairness it should be added that the real offence 
 which this formal charge covered was the more 
 important delinquency, at the period of the Seven 
 Years' War, of not assisting the press-gang. 1 When 
 at length, as Maitland puts it, " the British Fleet 
 came to the civilians' rescue," by providing prize- 
 cases for adjudication in the Admiralty Court it 
 happened that there was a great judge there : 
 and the structure of maritime international law 
 that Lord Stowell built up during the nine-and- 
 twenty years he sat in that Court is in modern 
 times the civilians' " chief contribution to the 
 jurisprudence of the world." 2 
 
 The great increase in shipping in the nineteenth 
 century gave to the Admiralty Court a new im- 
 portance as a tribunal dealing with technical ques- 
 tions of seamanship : the coming of the steam-ship 
 in the 'forties provided it with a plentiful crop of 
 collision cases. Its jurisdiction was enlarged in 
 1840 and again in 1861. But all this had nothing 
 to do with the Civil Law or with the professors 
 thereof as such. On the ecclesiastical side the 
 civilians still kept the testamentary and matri- 
 
 1 " Cases and Opinions," 1758-1774. Burrell's Admiralty 
 Reports, p. 367. 
 
 * Maitland, " Canon Law in England," p. 94. As to Lord 
 Stowell's judicial work see the " Life," by E. S. Roscoe (1916).
 
 no THE LATTER DAYS 
 
 monial business of the country at Doctors' 
 Commons until 1857, and its retention there was 
 not for its good. Dickens, writing in 1849, did 
 not leave it doubtful that in his opinion the " lazy 
 old nook near St. Paul's Churchyard " might well 
 have ceased to exercise those functions a consider- 
 able time before it did. In 1857, however, power 
 was given by Parliament to the civilians to sell 
 their real and personal estate and surrender their 
 charter, upon which surrender " the said Corpora- 
 " tion shall be dissolved and shall cease to exist for 
 " all purposes whatsoever " ; * and thus encouraged, 
 the doctors at last put an end to their corporate 
 existence. It is said that thereupon the rooks, 
 which some held to embody the spirits of departed 
 civilians, forthwith forsook the trees in the college 
 garden. In the following year the right of audience 
 in the Court of Admiralty, the advocates' last 
 preserve of importance, was thrown open to the 
 ordinary Bar. 
 
 The association of the doctors of law practising 
 in the Ecclesiastical and Admiralty Courts, whose 
 college figures as Doctors' Commons in the annals 
 of London for more than three centuries thus 
 passed away for ever. It was launched as an in- 
 formal corporation at a time when the Roman 
 Civil Law was making its highest bid for influence 
 and adoption in this country a period which 
 coincides and is not unconnected with the 
 " enlightened absolutism " 2 of the House of Tudor ; 
 
 1 20 & 21 Viet. cap. 77, ss. 116, 117. 
 
 * Busch, " England under the Tudors," I. pp. 291-304.
 
 THE LATTER DAYS in 
 
 and perhaps it never quite forgot the circumstances 
 of its incubation. At any rate these, no less than 
 its exotic learning, would have sufficed to save it 
 from ever becoming a popular institution ; but it 
 was guilty in addition of the fault of living too long. 
 Men who lag superfluous upon any stage are apt 
 to dim the fame they deservedly won in their prime; 
 and so it is also with bodies aggregate. The name 
 of Doctors' Commons, whence came for the service 
 of the State a succession of ambassadors, and more 
 than one jurist with a European reputation, 
 acquired during the nineteenth century associa- 
 tions that probably now link in most minds solely 
 with David Copperfield's articles of clerkship and 
 the matrimonial misadventure of the elder Mr. 
 Weller. But if it outlived by many years its 
 raison d'etre it had once upon a time owned a valid 
 one. The civilians' " contribution to the juris- 
 prudence of the world," made in the shape of that 
 fabric of Prize Law which Lord Sto well's judgments 
 fashioned during the Napoleonic Wars, is not quite 
 their sole title to remembrance. Long before that 
 they had been concerned, not unsuccessfully, with 
 the foundation and the building up of a common law 
 of nations in maritime and mercantile matters. 
 We are told in Wynne's " Life of Sir Leoline 
 Jenkins " that " even those who presided in the 
 " Seats of foreign Judicatures in some cases applied 
 41 to him to know how the like point had been ruled 
 " in the Admiralty here, and his Sentences were 
 " often exemplified and obtained as Presidents
 
 H2 THE LATTER DAYS 
 
 there." 1 And, indeed, during its long existence the 
 College of Advocates had given corporate ex- 
 pression in England to that scholarly fraternity 
 with the jurists of other nations which it is not 
 even now undesirable to foster. 
 
 1 Op. cit. Vol. I., p. xiii.
 
 INDEX 
 
 Accursius, Franciscus, 4, seq. 
 
 Admiralty Court, Civil Law in, 
 14, 15 ; Bill of 1660 to settle 
 jurisdiction of, 99 ; Early 
 history of, 16 seq ; Extended 
 jurisdiction under Hen. VIII., 
 60 ; International character 
 of, 12 ; under Common- 
 wealth, 98 ; where held, 
 27. 32, 33. 77- ioo 
 
 Alfonzo the Wise, 4 
 
 Ammonio, Andrea, 73 
 
 B 
 
 Bacon, Lord, 71 
 Bancroft, Archbishop, 87 
 Bateman, William, 30 
 Beckington, Thomas, 47 
 Berwood, J., 14 
 Bodewell, Dr. Richard, 72 
 Bole, Dr. Henry, 28, 31 
 Bracton, 8, 9, 10 
 Buck, Sir George, 74 
 Buller, Mr. Justice, 89 
 Buller, William, 54 
 Burghley, Lord, 62, 79 
 
 Caesar, Sir Charles, 95 
 
 Caesar, Sir Julius, 55, 78 
 
 Chadderly, Richard de, 29 
 
 Charles the First, 91, 92 
 
 Civilians, before the Court of 
 King's Bench, 62, 63, 107 ; 
 their aloofness from con- 
 troversies under the Tudors, 
 60, 61 
 
 Clark, Dr., 97 
 
 Clerk, Dr. John, 59 
 
 Cocke, Mr., 97 
 
 Coke, Sir Edward, 80, 85, seq. 
 Common Law, complaint of 
 students of, 67, seq. ; its 
 
 S'ovince narrowed under 
 enry VIII., 69 ; recovery 
 
 of, under Elizabeth, 80 
 Consolat del Mar, 50, seq. 
 Cooke, Sir John, 108 
 Cooke, William, 55 
 Corneria, William de, 4 
 Council of the North, 66, 69, 71 
 Court of Arches, 77 
 Court of Chancery, 28, 70 
 Court of Constable and Marshal, 
 
 II, 27, 45, seq., 48 
 Court of Delegates, 53 
 Court of Requests, 55, 69 
 Court of Star Chamber, 69 
 Court of Warden of Cinque 
 
 Ports, 25 note 
 
 Court of Welsh Marches, 71 
 Courts of Universities, n 
 Cowell, Dr. John, 85 seq. 
 Crompton, Sir Thomas, 89 
 Cromwell, Oliver, 97 
 Cromwell, Thomas, 74 
 Cujas, 61 
 Custumals, 19 
 
 Dale, Dr. Valentine, 55, 62 
 
 Dethick, Dr., 46 
 
 Doctors' Commons, topogra- 
 phical aspects of, 63, 73, 74, 
 101 
 
 Dorislaus, Dr. Isaac, 92, seq. 
 
 Ducarel, Dr. Andrew, 73, 75 
 
 Duck, Dr. Arthur, 46, 62, 82, 
 92, 94. 97
 
 INDEX 
 
 Eddesworth, Henry de, 29 
 Eden, Dr., 46 
 
 Edward the First, 3 seq., 10 
 Edward the Third, II, 22, 29, 41 
 Empire, tradition of Roman, 38, 
 
 seq. 
 Erasmus, 73, 75 
 
 Felde, Dr. Thomas, 31 
 Felicidade, case of the, 107 
 Fortescue, Sir John, 37 
 Fraunce, Abraham, 9 
 Fulbecke, William, 85 
 Fuller, Thomas, 99 
 
 G 
 
 Gentil, Dr. John, 34 
 Gentilis, Albericus, 38, 93, 106 
 Godolphin, Dr. John, 92, 97 
 Grey, William, Bishop of Ely, 
 
 48 
 Grenefeld, William de, 6, 29 
 
 H 
 
 Hale, Sir Matthew, 14 
 Harvey, Dr. Henry, 61, 74 
 Hedges, Sir Charles, 105 
 Henry the Third, 3 
 Henry the Fifth, 43 seq. 
 Henry the Eighth, 65 seq., 71 
 Highmore's Case, 77 
 Holt, Lord Chief Justice, 99, 
 
 104, 105 
 Hostiensis, 4 
 
 Hotman, Francis, 87, 106 
 Husse, Dr., 78 
 
 James the First, 84 seq. 
 
 Jeffry, Dr., 78 
 
 Jenkins, Sir Leoline, 100, 108, 
 
 in 
 John of Salisbury, 3 
 
 K 
 
 Kylkenny, William of, 6 
 
 Lacy, William, 32, 54 
 
 Lambe, Sir John, 94 seq. 
 
 Law Merchant, 19, 21, 23 
 
 Lee, Sir George, 106 
 
 Lee, Sir William, 107 
 
 Lewis, Dr. David, 55, 78, 79, 80 
 
 Lexington, John de, 9 
 
 Leyson, Dr. Griffith, 78 
 
 " Libel of English Policie," The, 
 
 4i 
 
 Littleton, Dr., 103 
 Lyndwode, Dr. William, 34 
 Lynfeld, John, 34 
 
 M 
 
 Malynes, Gerald, 21 
 Mannyng, Richard, 53 
 Mansfield, Lord, 105, 106, 107 
 Martel, Philip, 6 
 Marten, Sir Henry, 91, 92, 94 
 Mason, Sir John, 72 
 Menesse, William, 31 
 Middleton, Christopher, 55, 60 
 Murimuth, Adam de, 29 
 
 N 
 Noffre, Senobius, 34 
 
 O 
 
 Oldys, Dr. William, 103 
 Oleron, Laws of, 15, 16, 19, 20, 
 
 50 
 Ordinances of War of Henry the 
 
 Fifth, 44 
 Oughton, Dr. Thomas, 62 
 
 Paston Letters, 57 
 Paul, Dr., 106 
 Pilk v. Venore, case of, 
 Pinfold, Dr., 103, 105 
 Piracy, 16, 43, 56 seq. 
 Pole, Cardinal, 61, 65, 69 
 Pollexfen, Mr. Justice, 105 
 
 R 
 
 Reg. v. Serva, case of, 107
 
 INDEX 
 
 Ridley, Sir Thomas, 84 
 
 Roman Law, English dislike of, 
 31, 49; influence of, 8 seq. ; 
 threatened reception of, under 
 Edward the Sixth, 64 seq. ; 
 use of in Admiralty Court 
 ignored by Parliament, 49 
 
 Sa, Don Pantaleon, case of, 92 
 Safeguard of the sea, 42 seq. 
 Scott, Dr. William, 107. See 
 
 Stowell. 
 
 Seapower, 39, seq. 
 Shordych, Sir John de, 6 
 " Solon Secundus," 104 
 Somerset, the Protector, 67, 69, 
 
 70 
 
 Smith, Sir Thomas, 70 
 Stevens, Mr., 97 
 Stokesley, Dr., 80 
 Stowell, Lord, 62, 109 
 Strahan, Dr. William, 106 
 Sutcliffe, Dr. Matthew, 45 
 Sydenham, Dr. Simon, 31 
 
 Thomas of the Temple, Friar, 29 
 Tindal, Dr. Matthew, 103 
 
 Tiptoft, John, Earl of Worcester, 
 
 48 
 
 Torture, to obtain evidence, 102 
 Tregonwell, Sir John, 55, 61 
 Trevor, Dr., 78 
 Trinity Hall, Cambridge, 30, 
 
 75. 76 
 
 Tunstall, Cuthbert, 38, 60, 61, 
 67 
 
 Vacarius, 3 
 Vives, 65 
 
 W 
 
 Walker, Sir Walter, 102 
 Wiseman, Dr. Robert, 12, 82, 
 
 95, 102, 108 
 Wotton, Sir Henry, 60 
 Wotton, Dr. Nicholas, 60 
 Wrotham, William, 29 
 Wyclif, John, 30 
 Wynne, Sir William, 107 
 Wyntropp v. Combes, case of, 81 
 
 Year Books, 7 
 
 Zouche, Dr. Richard, 62, 92 
 
 Printed by Fox, JONES & Co., Kemp Hall Press, 
 High Street, Oxford.
 
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