Ilbert, expositions of the new Indian Civil Procedure Code by Sir Lewis Tupper, and of the German statute on cheques by Dr. Ernest Schuster, an article on conflict of laws within the British Empire by Prof. Harrison Moore, and the judgments in a Ceylon case, shortly to come before the Judicial Committee, on the vexed question of nudum pactum in Roman-Dutch law, wherein the Supreme Court of Ceylon has refused to import the English doctrine of consideration.

It seems convenient to repeat in a conspicuous place that it is not desirable to send MS. on approval without previous communication with the Editor, except in very special circumstances; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. so sent.

373

REASON AND CONSCIENCE IN SIXTEENTH-CENTURY JURISPRUDENCE1.

THE

HE revival of European culture in the fifteenth and sixteenth centuries marks one of those critical epochs in history when all the possessions of mankind seem to be thrown into the crucible to be melted and cast into new shapes, when men feel the soil under their feet giving way, and yet rejoice in the hope of a bright future. The political and legal fabric of feudalism, the authority of the mediaeval Church, the comprehensive system of scholastic philosophy, were found equally wanting, and modern thought made its way in all spheres of life. Legal studies and legal institutions were not exempted from the effects of the general commotion. In Germany and in Scotland the law of the learned thrust national customs into the background for a long time. In Italy and in France a revision of the studies on which the law of the learned was based was started by humanistic lawyers-Alciat, Budée, and their followers. In England the imposing edifice of Common Law, a structure testifying in no less degree than Gothic cathedrals to the power of the mediaeval mind, was menaced by daring reformers ranged under the banner of equity.' There was talk of codification, of reception, of rationalizing the laws of England in accordance with the example of other civilized countries, under the guidance of a broadminded, constructive statesmanship 2. Very curious evidence of this process of fermentation in the domain of English Law is supplied by two treatises of a lawyer of the Inner Temple, Christopher St. Germain. They were published as Dialogues between a Doctor of Divinity and a Student of the Laws of England in 1523 and in 15303, and evidently hit the mark. The cardinal question of the opposition between the Common Law Courts and Chancery called forth a lively discussion; the first Dialogue, originally published in Latin, had to be translated into English, the whole book was reprinted over and over again, quoted as an authority by Brooke and Coke, often referred to by Blackstone, by Spence, and by most modern authors who have written on

1 A paper read at the Berlin Historical Congress, August, 1908.

2 Maitland, English Law and the Renaissance, 41 ff.

3 As to the publication of the first dialogue in 1523 we have to rely on the testimony of W. Herbert. No copies of that edition are known to exist. Cf. Dictionary of National Biography, art. St. Germain. I have used the Latin tract in Rastell's edition of 1528.

early English Equity. Not that the writer impresses one especially by personal acumen or literary perfection, but he is evidently quite at home in the legal learning of the Courts, and very well read in the philosophical and jurisprudential writings of his time. His scheme of putting before his readers in a kind of living opposition the ideas of an English lawyer and of a theologian versed in Canon Law was more than a passing happy thought, and it was carried out with considerable skill. One can hardly do better, in order to realize the conflict of legal ideas in the reigns of the early Tudors, than to study these tracts with some attention.

Before speaking of the contents I should like to mention that I have mostly gone back to the Latin version of the first Dialogue instead of referring to the English translation, as is currently done by modern writers. The recasting of the text for the English version by St. Germain may have been an improvement in some respects: it got rid of lengthy disquisitions and references and added a few developments on points of English Law. And yet, if we wish to understand how St. Germain came by his theoretical views, most valuable hints are supplied by the Latin version of the first Dialogue, as it puts clearly before us the elements of the author's learning and the threads which connect him with his predecessors.

A point which is made especially clear by the study of the first Dialogue in the Latin edition is that St. Germain started in the same way from scholastic philosophy and Canon Law as Bracton started from Roman Law in his time. Both writers wanted scientific distinctions and terms in order to tackle problems of English legal practice, and both began with a kind of reception of general notions which, however, was gradually modified by the treatment of concrete cases and questions. Azo was the interpreter of Civil Law for the thirteenth-century lawyer, John Gerson was the leading exponent of School doctrines for the sixteenth-century jurist. Stray references to the latter may be found even in the revised English text of St. Germain1, but a comparison with the Latin Dialogue shows that, on nearly all occasions when theories had to be exposed, sentences and quotations were borrowed wholesale from Gerson's writings. A reader of the English version might be led, for instance, to assume that the reference to the philosopher's-that is, Aristotle's teaching as to meíкeta (equity), testifies to a direct study of the Greek thinker's work. But the words of St. Germain are merely a repetition of some sentences in Gerson's Regulae morales,

1e. g. Dial. i. 3; ii. 55. In a dialogue between Salem and Bizance, treating of religious matters, St. Germain takes care to explain why the famous clerke John Gerson did write in Latin.'

and, quaintly enough, in the Latin edition the term nieίkela appears in a garbled form suggested by Gerson's text, namely, epikeia1. 'A Iove principium': St. Germain's doctor naturally starts with a summary of the teaching on the Law eternal (Lex aeterna), the basis of the order of the Universe provided in God's mind, which, according to Gerson's nominalistic view, is established rather by the will than by the reason of the Creator. As the Latin text informs us: Lex eterna a Iohanne Gersone in descriptionibus terminorum ad theologiam utilium describitur sic: lex eterna est divina voluntas ordinativa rerum a sua arte producibilium sive productarum quoad operationes, et motus, et fines singularum3.'

4

In the treatment of the second stage of legal generalities, namely, of natural law, we begin to notice national peculiarities. St. Germain's exposition closely corresponds in the main to scholastic patterns laid down by St. Thomas and expounded on several occasions by Gerson. The law of nature may be taken in a wider and in a narrower sense. It is either the law of living beings, and the consequences of the well-known definition of Ulpian are drawn in the Latin text, or else-and this is the really important meaning-it is the conception of law of reasonable creatures, particularly of human beings. It is through the light of his own reason that man is made to participate in the eternal law formulated by the reason of God".

1 Regulae morales (Opera, ii. f.): 'aequitas quam nominat philosophus epikeiam praeponderat iuris rigori. Est autem aequitas iustitia pensatis omnibus circumstanciis particularibus dulcore misericordiae temperata. Hoc intellexit qui dixit. "Ipsae autem leges cupiunt ut iure regantur." Et sapiens "Noli esse iustus nimis, alioquin summa iustitia summa iniustitia fit."' Cf. Latin dialogue, and Engl. version, i. 16. There are several instances of similar quotations from the 'philosopher' in the Latin text.

Cf. Gierke, Iohannes Althusius, 272.

The English version keeps the substance of the doctrine, but states it in a less scientific form, omitting the scholastic definition and one of Gerson's references to St. Augustine.

Summa Theologiae, ii. 1, qu. 71, 6, 5; 91, 94. Cf. Gierke, Political Theories of the Middle Ages, transl. by Maitland, 172. Gerson was a nominalist and a follower of Occam, but his eclectic teaching supplied St. Germain with the elements of the Thomistic doctrine.

Latin Dialogue, f. 7: 'Genus etiam suum conseruant, pullosque et fetus ex instinctu naturae nutriunt et contraria sui esse ex natura timent. Et secundum Iohannem Gerson lex naturalis animalium est lex illa quam habet quodlibet animal non impeditum nec indispositum.'

f. 8: Lex vero naturae specialiter considerata respicit solum ad creaturam rationalem humanam ad ymaginem Dei creatam que a quibusdam etiam dicitur ius gentium. Nam inter omnes gentes servari debet tam inter iudeos et gentiles quam Christianos. Et hec est lex illa que inter peritos legis Anglie vocatur lex rationis. Quam etiam ratio naturalis constituit inter omnes homines, ita quod ad illam observandam inest instinctus communis omnibus hominibus. Et secundum Iohannem Gerson est signum naturaliter habitum notificativum recte rationis divine volentis creaturam rationalem humanam teneri seu ligari ad aliquod agendum vel non agendum pro consecutione finis sui naturalis qui est felicitas humana, seu monastica, seu yconomica, seu politica. Et sic lex rationis nihil aliud est quam participatio vel notio legis eterne in creatura rationali ei

Let us note a characteristic difference in terminology between the two versions of St. Germain's first Dialogue. The Latin tract has a fuller heading for the second chapter than the English editions de lege rationis que inter doctores uocatur lex naturae rationalis creature siue ius gentium.' The last words are omitted in the English version and there is good cause for that, because, as it is explained in the fifth chapter, the ius gentium corresponds in truth only to two subdivisions of the law of reason, namely, to what is called the law of reason primary, prohibiting murder, perjury, deceit, allowing resistance to unjust power, and to the law of secondary reason taken in general, which sanctions property, contracts, &c. A third subdivision, which St. Germain calls the law of reason secondary particular, does not fit into the frame of the ius gentium, as understood by Roman jurisconsults and by the mediaeval jurists who followed them. The teaching as to that subdivision calls forth significant adjuncts on the part of our lawyer. In order to substantiate his view on the matter he has to leave the domain of scholastic generalities and to take examples from actual English rules, corresponding to what would be classified as ius civile in an analysis of Roman law. He cites, to begin with, the taking of distress, e. g. if a lord to whom his tenant fails to pay rent or to render service impounds animals belonging to the tenant in a pound overt, an enclosure known to the public, or if a landowner finds his neighbour's animals trespassing on his land. Doubtful points arise from this procedure: who is responsible for the feeding of the arrested animals and who has to bear the risk if they come to grief while impounded? The Student of the laws of England lets this question be decided by his interlocutor, the Doctor of Divinity, who comes successfully out of the trial. It is evident, he says, that the imprisoned beasts have to be fed by their owner and not by the person who has distrained, and it follows that, should they die, it is the owner of the animals that has to bear the loss he should not have given occasion for distress. The Doctor of Divinity is made to solve the problem 1, because, according to the author's views, it is a problem of reasoning and therefore of reason2. That is why he does not mention it under the heading of positive (human) law, as one might have expected, but under that of law of reason secondary particular. The Latin text adds the remark that as the case can be treated on the strength of a reason

revelate per lumen naturalis rationis, per quod habet naturalem inclinationem ad debitum actum et finem.' Cf. Gerson, Opera, ii. 191, 202.

The doctrine as expounded by St. Germain in i. 5 and ii. 27 tallies exactly with pronouncements made by the judges, Y. B. 9 E. IV. p. 2; 5 H. VII. 9; 21 H. VII. 39.

2 Cf. Pollock, Expansion of Common Law, 109 ff.