was thought to govern kingdoms as well as individuals. The subsequent notion of a natural law of nations would probably never have obtained the acceptance it did, if it had not been preceded by their application of the Roman law to public as well as private matters. It seems absurd to us now to treat of the affairs of nations as regulated by the titles of the Pandects and the Code intended to govern the private business of Roman citizens; but it was a useful step in the first development of international law. (As to their method, see Heineccius, Praef. ad Jus Nat. et Gentium, pp. 12–14, in Opp. tom. 1.) Opposition to the Roman law. English writers, at least from the time of Selden, in seeking to account for the assumed opposition in England to the civil law, have laid stress chiefly on the contents of the Roman law books, and especially on the maxims that the will of the prince is law, and that the prince himself is above the law; while they have overlooked, or at least passed with slight attention, the connection of the revived Roman law with the imperial power of the German kaiser, and the claims of the latter to universal dominion. Traces of both considerations are to be found in the contemporary literature; and perhaps in the strictly legal part of it the former preponderates, or at any rate, lies more plainly on the surface. Selden (ad Fletam, cap. 3, 22, 466) has drawn attention particularly to Bracton's treatment of the lex regia (lib. 3 de actionibus, cap. 9, 23, fol. 107; Twiss' ed. vol. 2, pp. 172-176), as proof of its influence. But perhaps the same passage might be used to show that this objection was not an insurmountable one in English eyes; that the interpre tation in which the early civilians were so skillful might render all such passages consistent with common-law maxims. The other consideration is clearly visible in the history of the twelfth and thirteenth centuries, and is not entirely absent from the law books. We hear just enough of it to be sure that it existed, and operated on English minds. Naturally, we must go outside of England to learn the probable effect and extent of that operation. The islanders would make light of the emperor's claims, either to dominion over christendom, or to connection with the authors of the Roman law. It is in their constant and gratuitous assertion of the full sovereignty of the English crown, the independence of all foreign jurisdiction or dominion, that we find most reason to suspect that they did not consider this independence beyond all controversy in theory, whatever might be the practical fact. On the continent, certainly, these questions were answered very differently. Mr. Bryce has made the claims of the Holy Roman Empire so familiar to English readers, that I need not waste time in showing the emperor's claims to universal dominion. It is as certain that during all this period the emperors, at least from the time of Henry V., husband of the English Maud, mother of our Henry II., claimed the Roman law as peculiarly their law, so that its prevalence was everywhere a mark of their supremacy, and also that they as the successors of Justinian and of Charlemagne had the exclusive right to add to or modify it. "Fredericus deeming the right of assembling a council as belonging to him, after the precedent of the ancient emperors, such as Justinian, Theodosius, and Charles." (Radw. de gestis Fred. I., 2, 54.) Both he and Frederic II. inserted their own constitutions in the corpus authenticorum, where they are still to be seen. Why should not Barbarossa emit novels as well as the Illyrian? Their example was followed at least as late as the reign of our Henry VII., within a single generation of the great reformation. In 1495, Maximilian (father of Charles V.) recited and renewed Nov. 77 of the C. J. C., "because the emperor Justinian, our predecessor in the empire, hath ordained," etc. Duck's work is full of the same claims of the emperors. (See especially, lib. 1, cap. 2, % 6, p. 32.) However little may have been said of these claims in English contemporary books, they must have been well known to English statesmen. Can there be any doubt that they were taken into account as a reason for not adopting the civil law as the law of England, even if any party of Englishmen can be supposed to have seriously contemplated such a thing at any time while such claims were made respecting it? The specific charges of such attempts made against Pole and Wolsey I do not consider evidence of any such plan. There is some trace of a special excitement of popular feeling on this subject in the reign of Edward II., when that king found it necessary or politic to forbid imperial notaries the exercise of their office in England, "because the realm is entirely free from all subjection to the emperor." "Publique notaries made by the emperor claimed de jure to exercise their office here in England, but because it was against the dignity of a supreme king, they were prohibited by the king's writ." (Rot. Claus. 3 Ed. II., m. 6, Selden says, 13 Ed. II.; Coke's 4th Inst. cap. 74, p. 342; Selden ad Fletam, cap. 9, 22; Duck, p. 375.) There are remarkable recognitions of the emperor's authority over all christendom, in the Mirror and Fleta, the significance of which is by no means lessened by the fact that they are not found in all manuscripts or editions, having evidently been omitted or changed (if not at some time inserted) for their bearing on this question. Selden's edition of Fleta, and the very careful and critical edition of the same by Clark (extending unfortunately only to the first book), both read in lib. 1, c. 5, 24, "in temporals the emperor, under whom are princes and kings," for the full force of which it is necessary to compare the parallel passage in Bracton, lib. 1, c. 8, § 2. In Houard's edition of Fleta (Coutumes Anglo-Nor mandes III., 5), this is changed to read as it does in Bracton where emperors and kings are put on a level and the nobles sub eis. To the same effect with Fleta is the Mirror, ch. 4, 23. "That power God gave to Moses, and that power they have now, who hold his place upon the earth, as the pope and the emperor, and under them the king now hath power in his realm." Eng. trans. p. 177, ed. 1768. (But in the French of Houard's edition, tom. 4, p. 639, this reads, "Sicome l'Apostle, l'Empereur, et seul tient ores le Roy cette poiar en son Realme," an entirely different sense.) These passages deserve study in connection with the fate of the Roman law in England. The authority of the civil law can hardly at any period have been confounded with that of the lex terræ. It was not a new law that the subjects of Henry II. supposed to be enforced upon them. They knew as well as we know to-day that the corpus juris civilis had no binding force in England: it never entered into the head of the most servile clerk under Theobald's or Becket's influence that he could rely upon a rescript of Justinian to dispute the will of the king of England. But the law then as now, and even more than now, was not merely a few rules formulated by royal authority. It was the whole system of rights and duties in which every Christian man found himself placed by the very facts of birth and baptism. The customs of England constituted a large part of it, but the customs of England were binding on him only because they were a part of the civil order in which he found himself placed. His conscience was as fully awake, as fully recognized as that of the most speculative jurist of to-day. It was probably even more so, because it found its motives and sanctions in the field of daily life, and to an extent that we to-day can hardly realize. God and his commands were to him no abstraction, no deduction from a course of scientific reasoning. He was a monarch ruling him, through a vicar or deputy-whose throne was indeed at Rome a few hundred miles further off than Henry, but no less upon this earth, surrounded by all that could appeal to the most limited sense of earthly power. The moral law was not a mere speculation in which men could indulge at their leisure, or which they could neglect if they were too busy, or not of sufficient capacity to understand the reasoning of the scholars. It was a system of duties enforced by the priest every time he went to confession, or mass, or baptized a child, or buried a relative, as truly as it was by the magistrate in the lay courts. He could not help trying to understand the grounds upon which his penance or absolution depended. These grounds he would find in the foreign compilations, whether of canon or of civil law. The effort to understand runs naturally into the effort to criticise and then to apply. Thus, in the minds of the people lay the feelings which were developed into theories by the learned, and which may possibly have led Bracton and others to give the foreign law a scientific authority, a position, as "written reason," higher than that which the courts and the people ultimately awarded it. (7) The Abbot of Torum's Case, page 22, note o. It is undoubtedly a rash undertaking to question a conclusion drawn by Selden, and approved by Blackstone upon any point of early law. But the Abbot of Torum's Case has been so often quoted, and has had so much influence on the popular view of the Roman law in England, that it is worth while to point out the misapprehensions on which Selden's interpretation of it rests. That interpretation supposes the court to have shown a contemptuous ignorance of the civil law, and it has probably done more to convince modern readers of the assured fact of a bitter strife between civilians and common lawyers, than many pages of sober argument would have done. Selden (ad Fletam c. 8, p. |