Coke and Hotman.
[29] Coke, Introductory Letter to Part 10 of the Reports, and Preface to Coke upon Littleton (First Institute). The words of Hotman which moved Coke to wrath will be found in De verbis feudalibus commentarius (F. Hotmani Opera, ed. 1599, vol. II., p. 913) s.v. feodum. Hotman remarks that the English use the word fee (longissime tamen a Langobardici iuris ratione et instituto) to signify ‘praedia omnia quae perpetuo iure tenentur.’ He then adds that Stephanus Pasquerius (the famous Étienne Pasquier) had given him Littleton’s book: ‘ita incondite, absurde et inconcinne scriptum, ut facile appareat verissimum esse quod Polydorus Virgilius in Anglica Historia de iure Anglicano testatus est, stultitiam in eo libro cum malitia et calumniandi studio certare.’ To a foreign ‘feudist’ Littleton’s book would seem absurd enough, because in England the feudum had become the general form in which all land-ownership appeared. Brunner (Deutsche Rechtsgeschichte, vol. II., p. 11) puts this well: ‘Wo jedes Grundeigentum sich in Lehn verwandelt, wird das Lehn, wie die Entwicklung des englischen Rechtes zeigt, schliesslich zum Begriff des Grundeigentums.’
Polydore Virgil.
I have not found in Polydore Virgil’s History anything about Littleton. There is a passage however in lib. IX. (ed. Basil. 1556, p. 154) in which he denounces the unjust laws imposed by William the Conqueror and (so he says) still observed in his own day: ‘Non possum hoc loco non memorare rem tametsi omnibus notam, admiratione tamen longe dignissimam, atque dictu incredibilem: eiusmodi namque leges quae ab omnibus intelligi deberent, erant, ut etiam nunc sunt, Normanica lingua scriptae, quam neque Galli nec Angli recte callebant.’ Among the badges of Norman iniquity is trial by jury, which Polydore cannot find in the laws of Alfred. This Italian historiographer may well be speaking what was felt by many Englishmen in Henry VIII’s day when he holds up to scorn and detestation ‘illud terribile duodecim virorum iudicium.’ Fisher and More were tried by jury.
Alberigo Gentili.
[30] For Gentili see Holland, Inaugural Lecture, 1874, and Dict. Nat. Biog. For his attack on canon law see De nuptiis, lib. I., c. 19. For his quarrel with the ‘elegant’ Frenchmen, see De iuris interpretibus dialogi sex. The defenders of the new learning and the mos Gallicus, as it was called, threw at their adversaries the word ‘barbarian’; the retort of the conservative upholders of the mos Italicus was ‘mere grammarian.’ By expelling such men as the Gentilis, Italy forfeited her pre-eminence in the world of legal study. Nevertheless it is said that both in France and Germany the practical Roman law of the courts was for a long time the law of the ‘Bartolist’ tradition. Esmein (Histoire du droit français, ed. 2, p. 776) says: ‘Cujas exerça sur le développement des théories de droit romain suivies en France une action beaucoup moins puissante que Du Moulin, et la filiation du romaniste Du Moulin n’est pas niable: par la forme comme par le fond, c’est le dernier des grands Bartolistes.’
Marsilianism and Henricianism.
[31] Thomas Starkey, when he was trying to win over Reginald Pole to Henry’s side, wrote thus: ‘Thes thyngs I thynke schal be somewhat in your mynd confermyd by the redyng of Marsilius, whome I take, though he were in style rude, yet to be of grete iugement, and wel to set out thys mater, both by the authoryte of scripture and good reysonys groundyd in phylosophy, and of thys I pray you send me your iugement.’ (Starkey’s England, Early Engl. Text Soc. 1878, p. xxv.) Chapuis (the imperial ambassador at Henry’s court) to Charles V, 3 Jan. 1534 (Letters and Papers of Henry VIII., vol. VII., p. 6): ‘The little pamphlet composed by the Council, which I lately sent to your Majesty, is only a preamble and prologue of others more important which are now being printed. One is called Defensorium Pacis, written in favour of the emperor Loys of Bavaria against apostolic authority. Formerly no one dared read it for fear of being burnt, but now it is translated into English so that all the people may see and understand it.’ William Marshall to Thomas Cromwell (Ibid., p. 178): ‘Whereas you promised to lend me £20 towards the printing of Defensor Pacis, which has been translated this twelve-month, but kept from the press for lack of money, in trust of your offer I have begun to print it. I have made an end of the Gift of Constantine and of Erasmus upon the Creed.’ The ‘Gift of Constantine’ must be the famous treatise of Laurentius Valla. The translation of Marsilius appeared on 27 July, 1535 (Dict. Nat. Biog. s.n. William Marshall). In October twenty-four copies had been distributed among the Carthusians in London (Letters and Papers, vol. IX., p. 171). In 1536 Marshall complained that the book had not sold, though it was the best book in English against the usurped power of the bishop of Rome (Ibid., vol. XI., p. 542). As to Byzantinism, if it be an accident it is a memorable accident that the strongest statement of King Henry’s divinely instituted headship of the church occurs in a statute which enables unordained doctors of the civil (not canon) law to exercise that plenitude of ecclesiastical jurisdiction which God has committed to the king (Stat. 37 Hen. VIII., c. 17).
The Scotch Protestants and Justinian.
[32] Foreign Calendar, 1558-9, p. 8. This seems to mean that the normal and rightful relation of church to state is that which is to be discovered in Justinian’s books. If so, ‘the Protestants of Scotland’ soon afterwards changed their opinions under the teaching of Geneva and claimed for ‘the estate ecclesiastical’ a truly medieval independence.