Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers January 1981 Legal Ideology and Incorporation I: The nE glish Civilian Writers, 1523-1607 Daniel R. Coquillette Boston College Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Legal Ethics and Professional Responsibility Commons, and the Legal History Commons Recommended Citation Daniel R. Coquillette. "Legal Ideology and Incorporation I: The nE glish Civilian Writers, 1523-1607." Boston University Law Review 61, (1981): 1-89. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. VOLUME 61 NUMBER 1 JANUARY 1981 BOSTON UNIVERSITY LAW REVIEW LEGAL IDEOLOGY AND INCORPORATION I: THE ENGLISH CIVILIAN WRITERS, 1523-1607t DANIEL R. COQUILLETTE* "And sure I am that no man can either bring over those bookes of late written (which I have seene) from Rome or Romanists, or read them, and justifie them, or deliver them over to any other with a liking and allowance of the same (as the author's end and desire is they should) but they runne into desperate dangers and downefals .... These bookes have glorious and goodly titles, which promise directions for the conscience, and remedies for the soul, but there is mors in olla: They are like to Apothecaries boxes... whose titles promise remedies, but the boxes themselves containe poyson." Sir Edward Coke "A strange justice that is bounded by a river! Truth on this side of the Pyrenees, error on the other side." 2 Blaise Pascal This Article initiates a three-part series entitled Legal Ideology and In- corporation. In this series, Mr. Coquillette demonstrates that, although England has fostered a strong common law system, significant intellectual work was done in England during the sixteenth and seventeenth centuries by students of the civil law systems dominant on the Continent. Mr. Coquillette traces the development of the juristic works of these English civilians, and examines the civilians' intellectual influence on the English common law. It t © 1980 by Daniel R. Coquillette. Earlier versions of this Article were presented on October 4, 1977 to a Cornell Law School faculty symposium and on December 18, 1979 to the Faculty Legal History Dinner at the Harvard Law School. I am particu- larly grateful to Professor Harold Berman of the Harvard Law School for his encour- agement of the first version of this paper, and to Professor John P. Dawson of the Harvard Law School and the Boston University School of Law, Professor Charles Donahue of the Harvard Law School, and Professor John Leubsdorf of the Boston University School of Law for their invaluable assistance. Remaining errors are my own. * Lecturer in Law, Harvard Law School; Member, Massachusetts Bar. A.B., Williams College, 1966; B.A. (Juris.), Oxford University, 1969; J.D., Harvard Law School, 1971. Coke, Preface to 7 Coke Rep. (8th page, unpaginated) (London 1608). 2 B. PASCAL, PNSEES 101 (W. Trotter trans. 1941) (1st ed. Paris 1670). 1 BOSTON UNIVERSITY LAW REVIEW [Vol. 61: 1 is his central thesis that the English civilianjurists never intended to achieve a direct "incorporation" of civil law doctrines into the common law. Rather, their lasting achievement has been the significant influence that their ideas about law-their "legal ideology"--have exercised on leading common lawyers. Mr. Coquillette divides the development of English civilianjurisprudence into three periods. The first period, which is the subject of this Article, includes the years from the publication of ChristopherSt. German's seminal Doctor and Student in 1523 to the storm of protest from common lawyers following the publication of John Cowell's highly controversial The In- terpreter in 1607. During this significant period, English civilian writing tended to promote synthesis and accommodation with the common law, and formed a pioneering venture in comparative law, a remarkable ideological effort that rewards study for its own sake. The second Article in this series, Sir Thomas Ridley, Charles Molloy, and the Literary Battle for the Law Merchant, 1607-1676, which will appear in the March 1981 issue of the Boston University Law Review, discusses the second period of English civilian juristic development. This period includes the years from the publication of the civilian Sir Thomas Ridley's major work, A View of the Civile and Ecclessiastical Law in 1607 to the publication of the common lawyer Charles Molloy's great Treatise of Affairs Maritime and of Commerce in 1676. During this period, the common lawyers, initially led by Coke, mounted increasingjurisdictional and political attacks on the civilians and at the same time attempted to co-opt civilian methodology in those vital, growing fields in which the civilians had exhibited particular expertise, most notably the law merchant. In response, the civilians became defensive in theirjuristic attitudes. Instead of continuing previous attempts to synthesize civil and common law, they began to try to isolate and main- tain whatever pockets of influence they had already established. The critical struggle was in important part literary and intellectual, and it centered on the traditionalcivilian strongholds of the internationallaw merchant and the Admiralty jurisdiction. The forthcoming third Article in this series, The Restoration Civilians and Their Influence, 1629-1685, discusses the third period of English civilian juristic development. This period essentially includes the years during and after the Commonwealth. By then, the common lawyers were succeeding in their attacks, leaving civilian scholars, such as Godolphin, Duck, Wiseman, Zouche, Exton, and Leoline Jenkins, with what could have been an increas- ingly narrow and specialized role in the English legal system. Mr. Coquil- lette argues that although the doctrinal work of later English civilian writers may be relatively better known than the work of their intellectualforebears, the most important contribution of these and earlier civilian writers to Anglo-American law lies in their influence, direct and indirect, on such leading common lawyers as Bacon, Selden, Hale, Holt, Mansfield, and Bentham. 1981] EARLY ENGLISH CIVILIAN WRITERS 3 TABLE OF CONTENTS: PART I I. INTRODUCTION ............................................. 3 II. THE ENGLISH CIVILIANS ................................... 11 A. THE INSTITUTIONAL AND EDUCATIONAL SETTING: DOC- TORS' COMMONS AND THE ANCIENT UNIVERSITIES ..... 11 B. THE ENGLISH CIVILIANS AS SPECIALIST LEGAL PRAC- TITIONERS: THE "CIVILIAN MONOPOLIES" .............. 19 C. THE ENGLISH CIVILIANS AS JURISTS: THE "BARTOLIST CAUSE" ..............................22 1. THE PROPER SOURCE OF LAW: THE IUs Gentium AND IUs Naturale ............... 22 2. THE Aequitas Mercatoria AND CONFLICT OF LAW DOCTRINE ................ 24 3. THE IUS Inter Gentes: PUBLIC INTERNATIONAL LAW ..................... 25 4. THE Ratio Scripta AND THE FLAWS OF THE COMMON LAW ................ 27 5. RELATIONS WITH THE CROWN: Quod Principi Placuit ........................... 29 6. BARTOLISM ........................................ 31 III. THE ENGLISH CIVILIAN WRITERS (1523-1607) ............. 35 A. THE IMPORTANCE OF THE ENGLISH CIVILIAN LITERA- TU RE .............................................. 35 B. THE FIRST ADVOCATES: THE EARLY CIVILIAN WRITERS ........................ 37 1. THE DOCTOR AND STUDENT: CHRISTOPHER ST. GERMAN (1457-1539) ........... 39 2. THE ENGLISH HUMANIST: SIR THOMAS SMITH (1513-1577) .................. 49 3. THE REFUGEE: ALBERICO GENTILI (1552-1608) ................... 54 4. THE "BARTOLIST BEE": WILLIAM FULBECKE (1560-1603) .................. 63 5. THE "INTERPRETER": JOHN COWELL (1554-1611) ....................... 71 IV. CONCLUSION: THE CONTRIBUTION OF THE EARLY CIVILIAN WRITERS ................................87 I. INTRODUCTION Two years ago, a group of Russian jurists visited Boston as part of the exchanges made possible by the Prague Accords. It was their first trip out of Russia. They had prepared certain lines of questions, hoping to surmount both the language and cultural barriers. I was part of a small group of nervous American lawyers assigned to be BOSTON UNIVERSITY LAW REVIEW [Vol. 61: 1 their guides. The initial questions of the Russians all concerned what they hoped would be our common bond as lawyers and jurists, namely, our university programs in Roman and foreign legal systems, comparison of our legal procedures with those of Roman and other civil law systems, and our notions of ius gentium and universal principles of law. Owing to our narrow professional training as common lawyers, it was most difficult for us to respond in any meaningful way. There is danger in a limited, provincial view of what a lawyer should know, and what legal principles can do. This danger was a basic concern of the early English specialists in civil and Roman law, the so-called English "civilians." These English civilians were dedicated to legal science as a transnational force and as a critical source of principles of universal applica- tion. Harold Berman has emphasized that "the growth of nationalism in mod- ern times has made inroads into the transnational character of Western legal education and the links between law