Bentham, Ward, Mackintosh, Mr. Manning, Mr. Reddie, Mr. Wildman, and Mr. Bowyer.

Private International Law (jus gentium) has greatly flourished, thanks to the transfusion of Hertius, Huberus, Rodenburghius, Voet, and other Latin authors, into the well-arranged and carefully-reasoned works of Story, Wächter, Savigny, and Felix; of the first and the last of these authors we have but lately deplored the death.

It will be seen that I have been compelled to omit the mention of many authors, whom I have consulted, whose names will be found below in the catalogue of authorities, and to whom I owe a debt of much gratitude.

HISTORY OF INTERNATIONAL JURISPRUDENCE IN

ENGLAND.

It remains only to invite attention to a subject which, however little known, is not without interest to the historian, the jurist, and the statesman, namely, the existence in England of a distinct Bar for the cultivation of International Jurisprudence (o).

It cannot be denied that the Common Law of England has hitherto been, to a certain extent, like the territory in which it prevails, of an insulated and peculiar character. It must be acknowledged that it has borrowed less than any other State in Christendom from the jurisprudence of ancient and modern Rome. The fountains of wisdom, experience, and written reason, at which the European continent in former

(0) The following sketch, with slight alterations, has appeared in a letter from the author to Mr. Gladstone, published in 1848.

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and America in later times have so largely drunk, were passed by in England with a hasty and scanty draught. The Gothic conquerors of continental Europe fell by degrees and from a variety of causes under the dominion of the laws of the vanquished. Capta ferum victorem cepit" was eminently true of the restoration of the Civil Law during the middle ages in every country, but our own; and yet, for more than three centuries, England had been governed by the Civil Law. It is a very remarkable fact, that, from the reign of Claudius to that of Honorius (a period of about 360 years), her judgment-seats had been filled by some of the most eminent of those lawyers (p) whose opinions were afterwards incorporated into the Justinian compilations. But all germs of such jurisprudence would have perished with every other trace of civility under the rude incursions of Saxons and Danes, had not the tribunals of the clergy afforded them shelter from the storm (q). Occasionally, too, some maxims of the Roman Law, admitted either from their intrinsic merit, or through the influence of the clergy, enriched the then meagre system of English law. The Norman invasion was attended with a memorable change in the constitution as it then existed. The Bishop and the Sheriff had heretofore sat together in the Court of Justice, administering with equal jurisdiction the law upon temporal and spiritual offences; by the charter of William the Conqueror, the Eccle

(p) Papinian, Paulus, and Ulpian. Vide Duck, De Usu ac Autor. Juris Romani, 1. ii. c. 8, pars secunda, s. 7.

(q) Blackstone, vol. iv. 410; Preface by Dr. Burn, to his Ecclesiastical Law; Millar's Historical View of the English Government, vol. iii.; Burke's Fragment of the History of England.

siastical was separated from the Civil Court. This division has continued (with the exception of a temporary reunion in the reign of Henry I.) till the present period; the Ecclesiastical tribunal deciding, according to the rules and practice of the Civil and Canon Law, generally, on all matters relating to the Church, to the spiritual discipline of the laity, and, among other questions of a mixed nature, upon two of the most important kind, namely, the contract of marriage and the disposition of personal property after death (r). It is not necessary to dwell on the original reasons for assigning these mixed subjects to the jurisdiction of the Spiritual Courts. It was an arrangement at the time almost universally prevalent in Christendom.

The Ecclesiastical Courts, however, were not the only tribunals in which the Roman law was administered. In the High Court of Admiralty (s) (established about the time of Edward I.) and in the Courts of the Lord High Constable and the Earl Marshal (the Courts of Honour and Chivalry), the mode of proceeding was regulated by the same code.

The Courts of Equity also borrowed largely, and for a long time almost exclusively, from the same jurisprudence. Almost every Lord High Chancellor from Beckett to Wolsey-that is, from the Conquest to the Reformation-was an ecclesiastic; and it was a matter of course, that, like every eminent ecclesiastic of those days, he should be well skilled in the Civil

(r) Burn's Preface, xvii. Lyndwood's Provinciale, pp. 96-7, 261, 316 (ed. 1679, Oxford).

(s) Blackstone, vol. iii. p. 68; Millar's English Government, vol. xi. p. 338.

and Canon Law. Indeed, it was chiefly because they were deeply versed in this jurisprudence, though partly, no doubt, because their general attainments were far superior to those of the lay nobility, that the dignitaries of the Church were usually (t) employed in the foreign negotiations of this period (u). Nor can it be denied by the most zealous admirer of our municipal law that, during the period which elapsed from the reign of Stephen to Edward I., the Judges of Westminster Hall had frequent recourse to the Justinian Code; for in truth the writings of Fleta contain many literal transcripts of passages taken from the Digest and the Institutes (x).

Lastly, in the Courts of the two Universities the same system prevailed. Universities, which are not the least remarkable institutions of Christendom, had indeed originally been founded for the express purpose of teaching this science, and even in this country, where the feudal law so largely prevailed, had succeeded in kindling into a flame the precious spark which the schools of the cloisters and the

(t) Hurd's Dialogues, Moral and Political, vol. ii. p. 183; Duck De Usu, &c., Juris Civilis, p. 364.

(u) By the Statutes of York Cathedral express provision is made for the absence of the Dean when employed beyond seas in the service of the State. The Bishop of Bristol, who was also Lord Privy Seal, was one of the negotiators of the Treaty of Utrecht; the last instance, I believe, of the kind.

(x) Millar, p. 325; Preface to Halifax's Civil Law; Mackintosh's Law of Nature and Nations, p. 52; Lord Holt, 12 Mod. Rep. p. 482: "Inasmuch as the laws of all nations are doubtless raised out of the ruins of the Civil Law, as all Governments are sprung out of the ruins of the Roman Empire, it must be owned that the principles of our law are borrowed out of the Civil Law, therefore grounded upon the same reason in many things."

learning of the clergy had preserved from total extinction (y).

I pass now to the epoch of the Reformation. On the Continent, where the Civil Law was the basis of all municipal codes, the study of this science was scarcely, if at all, affected by this memorable event. In England it was otherwise. The professors of the Civil and the Canon Law belonged chiefly to the Ecclesiastical Courts, and were associated in the minds of the people partly with the exactions (≈) of Empson and Dudley in the preceding reign, and partly with the authority of the Pope. Severe blows were dealt at the former, which were aimed solely at the latter system.

"The books of Civil and Canon Law were set "aside to be devoured with worms as savouring too "much of Popery," says the learned Ayliffe in his history of the University of Oxford during the Visitation of 1547 (a). And Wood (b), after stating "That as for other parts of learning at Oxford, a "fair progress was made in them," observes, "The "Civil and Canon Laws were almost extinct, and "few or none there were that took degrees in them, "occasioned merely by the decay of the Church and power of the Bishops."

แ

(y) See Lyndwood's Life, Biog. Brit. Dedication; Ridley's View of Civil and Ecclesiastical Law, p. 118; Zouche's Preface to his Treatise on the Punishment of Ambassadors, &c., to Henry, Marquis of Dorchester; et vide infra.

(2) Empson and Dudley justified their extortions by citations from the Civil Law. See Hurd's Dialogues, Moral and Political, vol. ii. p. 211, though they contain a very superficial and very imperfect sketch of the fortunes of the Civil Law in England.

(a) Ayliffe's Oxford, vol. i. p. 188.

(b) Wood's Hist. and Antiquities of the University of Oxford, vol. ii. b. i. s. lxxix. (ed. Gutch).