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Learn Python Programming
Third Edition

An in-depth introduction to the fundamentals of Python

Fabrizio Romano
Heinrich Kruger

BIRMINGHAM—MUMBAI
Learn Python Programming
Third Edition
Copyright © 2021 Packt Publishing

All rights reserved. No part of this book may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means, without the prior written permission of the
publisher, except in the case of brief quotations embedded in critical articles or reviews.
Every effort has been made in the preparation of this book to ensure the accuracy of the
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dealers and distributors, will be held liable for any damages caused or alleged to have
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Packt Publishing has endeavored to provide trademark information about all of the
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However, Packt Publishing cannot guarantee the accuracy of this information.
Producer: Tushar Gupta
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First published: December 2015

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Third edition: October 2021

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Published by Packt Publishing Ltd.

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ISBN 978-1-80181-509-3

www.packt.com
"To Elisa, the love of my lives, and to all those who gift the world their beautiful smiles."

Fabrizio Romano

"To my wife, Debi, without whose love, support, and endless patience I would not have been
able to do this."

Heinrich Kruger
 Contributors

About the authors

Fabrizio Romano was born in Italy in 1975. He holds a master's degree in
Computer Science Engineering from the University of Padova. He's been working
as a professional software developer since 1999. Fabrizio has been part of Sohonet's
Product Team since 2016. In 2020, the Television Academy honored them with an
Emmy Award in Engineering Development for advancing remote collaboration.

I would like to thank everyone at Packt, and the reviewers, who helped us
in making this book a success. I also want to thank Heinrich Kruger and
Tom Viner for joining me in this adventure. My deepest gratitude goes to
my wife-to-be, Elisa, who never made me feel like I was neglecting her, even
though I was. Thank you for your love and support.

Heinrich Kruger was born in South Africa in 1981. He holds a master's degree in
Computer Science from Utrecht University in the Netherlands. He has been working
as a professional software developer since 2014 and has worked alongside Fabrizio
in the Product Team at Sohonet since 2017.

I want to thank Fabrizio for asking me to help him with this book. It's
been a great experience working with you, my friend. I would also like to
thank Tom Viner and Dong-hee Na for their helpful comments, as well as
everyone at Packt who helped us along the way. Most of all, I thank my
wife, Debi, for all her love, encouragement, and support.
About the reviewers
Tom Viner is a principal software developer living in London. He has over 13
years' experience in building web applications and has been using Python and
Django for 10 years. He has special interests in open-source software, web security,
and test-driven development.

I would like to thank Fabrizio Romano and Heinrich Kruger for inviting me
to review this book.

Dong-hee Na is a software engineer and an open-source enthusiast. He works at

Line Corporation as a backend engineer. He has professional experience in machine
learning projects based on Python and C++. As for his open-source work, he focuses
on the compiler and interpreter area, especially for Python-related projects. He has
been a CPython core developer since 2020.
 Table of Contents
Prefacexv
Chapter 1: A Gentle Introduction to Python 1
A proper introduction 3
Enter the Python 5
About Python 5
Portability5
Coherence5
Developer productivity 6
An extensive library 6
Software quality 6
Software integration 6
Satisfaction and enjoyment 7
What are the drawbacks? 7
Who is using Python today? 8
Setting up the environment 8
Python 2 versus Python 3 8
Installing Python 9
Setting up the Python interpreter 10
About virtual environments 11
Your first virtual environment 13
Installing third-party libraries 15
Your friend, the console 16
How to run a Python program 17
Running Python scripts 17
Running the Python interactive shell 18
Running Python as a service 19

[v]
Table of Contents

Running Python as a GUI application 19

How is Python code organized? 20
How do we use modules and packages? 22
Python's execution model 24
Names and namespaces 24
Scopes26
Objects and classes 30
Guidelines for writing good code 33
Python culture 34
A note on IDEs 35
Summary36
Chapter 2: Built-In Data Types 37
Everything is an object 38
Mutable or immutable? That is the question 39
Numbers40
Integers40
Booleans43
Real numbers 44
Complex numbers 46
Fractions and decimals 46
Immutable sequences 48
Strings and bytes 48
Encoding and decoding strings 49
Indexing and slicing strings 50
String formatting 51
Tuples52
Mutable sequences 54
Lists54
Bytearrays57
Set types 59
Mapping types: dictionaries 61
Data types 66
Dates and times 66
The standard library 66
Third-party libraries 71
The collections module 72
namedtuple72
defaultdict74
ChainMap75
Enums76
Final considerations 77
Small value caching 77

[ vi ]
 Table of Contents

How to choose data structures 78

About indexing and slicing 79
About names 81
Summary81
Chapter 3: Conditionals and Iteration 83
Conditional programming 84
A specialized else: elif 85
The ternary operator 87
Looping88
The for loop 89
Iterating over a range 89
Iterating over a sequence 90
Iterators and iterables 91
Iterating over multiple sequences 93
The while loop 95
The break and continue statements 98
A special else clause 100
Assignment expressions 102
Statements and expressions 102
Using the walrus operator 103
A word of warning 104
Putting all this together 105
A prime generator 105
Applying discounts 107
A quick peek at the itertools module 111
Infinite iterators 111
Iterators terminating on the shortest input sequence 112
Combinatoric generators 113
Summary113
Chapter 4: Functions, the Building Blocks of Code 115
Why use functions? 116
Reducing code duplication 117
Splitting a complex task 117
Hiding implementation details 118
Improving readability 119
Improving traceability 120
Scopes and name resolution 121
The global and nonlocal statements 122
Input parameters 124
Argument-passing125

[ vii ]
Table of Contents

Assignment to parameter names  126

Changing a mutable object 126
Passing arguments 128
Positional arguments 128
Keyword arguments 128
Iterable unpacking 129
Dictionary unpacking 129
Combining argument types 130
Defining parameters 131
Optional parameters 132
Variable positional parameters 132
Variable keyword parameters 133
Positional-only parameters 135
Keyword-only parameters 137
Combining input parameters 137
More signature examples 139
Avoid the trap! Mutable defaults 140
Return values 141
Returning multiple values 143
A few useful tips 144
Recursive functions 145
Anonymous functions 146
Function attributes 148
Built-in functions 149
Documenting your code 149
Importing objects 151
Relative imports 153
One final example 153
Summary154
Chapter 5: Comprehensions and Generators 157
The map, zip, and filter functions 159
map159
zip162
filter 163
Comprehensions164
Nested comprehensions 166
Filtering a comprehension 167
Dictionary comprehensions 169
Set comprehensions 170
Generators170
Generator functions 171
Going beyond next 174
The yield from expression 178
[ viii ]
 Table of Contents

Generator expressions 178

Some performance considerations 181
Don't overdo comprehensions and generators 184
Name localization 188
Generation behavior in built-ins 190
One last example 190
Summary192
Chapter 6: OOP, Decorators, and Iterators 195
Decorators195
A decorator factory 202
Object-oriented programming (OOP) 204
The simplest Python class 205
Class and object namespaces 206
Attribute shadowing 207
The self argument 208
Initializing an instance 209
OOP is about code reuse 210
Inheritance and composition 210
Accessing a base class 215
Multiple inheritance 218
Method resolution order 220
Class and static methods 223
Static methods 223
Class methods 225
Private methods and name mangling 227
The property decorator 229
The cached_property decorator 231
Operator overloading 233
Polymorphism – a brief overview 234
Data classes 235
Writing a custom iterator 236
Summary237
Chapter 7: Exceptions and Context Managers 239
Exceptions240
Raising exceptions 242
Defining your own exceptions 242
Tracebacks242
Handling exceptions 243
Not only for errors 248
Context managers 249
Class-based context managers 251

[ ix ]
Table of Contents

Generator-based context managers 253

Summary255
Chapter 8: Files and Data Persistence 257
Working with files and directories 258
Opening files 258
Using a context manager to open a file 260
Reading and writing to a file 260
Reading and writing in binary mode 261
Protecting against overwriting an existing file 262
Checking for file and directory existence 263
Manipulating files and directories 263
Manipulating pathnames 266
Temporary files and directories 267
Directory content 268
File and directory compression 269
Data interchange formats 270
Working with JSON 271
Custom encoding/decoding with JSON 273
I/O, streams, and requests 278
Using an in-memory stream 278
Making HTTP requests 279
Persisting data on disk 282
Serializing data with pickle 283
Saving data with shelve 285
Saving data to a database 286
Summary293
Chapter 9: Cryptography and Tokens 295
The need for cryptography 295
Useful guidelines 296
Hashlib296
HMAC300
Secrets301
Random numbers 301
Token generation 302
Digest comparison 304
JSON Web Tokens 304
Registered claims 307
Time-related claims 308
Authentication-related claims 309
Using asymmetric (public key) algorithms 311
Useful references 312
Summary313
[x]
 Table of Contents

Chapter 10: Testing 315

Testing your application 316
The anatomy of a test 318
Testing guidelines 319
Unit testing  320
Writing a unit test 321
Mock objects and patching 323
Assertions323
Testing a CSV generator 323
Boundaries and granularity 333
Testing the export function 334
Final considerations 337
Test-driven development 339
Summary341
Chapter 11: Debugging and Profiling 343
Debugging techniques 344
Debugging with print 344
Debugging with a custom function 345
Using the Python debugger 347
Inspecting logs 350
Other techniques 353
Reading tracebacks 354
Assertions354
Where to find information 355
Troubleshooting guidelines 355
Where to inspect 355
Using tests to debug 356
Monitoring356
Profiling Python 357
When to profile 360
Measuring execution time 361
Summary362
Chapter 12: GUIs and Scripting 365
First approach: scripting 368
The imports 368
Parsing arguments 369
The business logic 371
Second approach: a GUI application 375
The imports 378
The layout logic 378
The business logic 382
Fetching the web page 383

[ xi ]
Table of Contents

Saving the images 385

Alerting the user 388
How can we improve the application? 389
Where do we go from here? 390
The turtle module 391
wxPython, Kivy, and PyQt 391
The principle of least astonishment 391
Threading considerations 392
Summary392
Chapter 13: Data Science in Brief 393
IPython and Jupyter Notebook 394
Using Anaconda 397
Starting a Notebook 397
Dealing with data 398
Setting up the Notebook 398
Preparing the data 399
Cleaning the data 403
Creating the DataFrame 405
Unpacking the campaign name 408
Unpacking the user data 409
Cleaning everything up 413
Saving the DataFrame to a file 414
Visualizing the results 415
Where do we go from here? 422
Summary423
Chapter 14: Introduction to API Development 425
What is the Web? 426
How does the Web work? 426
Response status codes 428
Type hinting: An overview 428
Why type hinting? 430
Type hinting in a nutshell 431
APIs: An introduction 433
What is an API? 434
What is the purpose of an API? 434
API protocols 435
API data-exchange formats 436
The railway API 436
Modeling the database 438
Main setup and configuration 444
Adding settings 445

[ xii ]
Other documents randomly have
different content
ordination, were revealed by J. G. Nichols, in Archaeologia, xxxviii.
98-127.
[16]
Smith and the Smith says that when he first became a
new member of the senate at Cambridge he bought the
jurisprudence.
Digest and Code and certain works of Alciatus,
Zasius and Ferrarius. (See Mullinger, History of the University of
Cambridge, vol. ii., p. 130.) Ferrarius is, I suppose, Arnaud Ferrier,
the master of Cujas. Mr Mullinger (p. 126) suggests that the
Spaniard Ludovico Vives while resident at Oxford may have
propagated dissatisfaction with the traditional teaching of Roman
law.
[17]
The Court of Select Cases in the Court of Requests
Requests. (Selden Society), 1898, p. cxxiii. Mr Leadam’s
introduction to this volume contains a great deal of
new and valuable matter concerning this important court. The title of
the ‘masters of requests’ seems certainly to come hither from
France. Just at this time there was a good deal of borrowing in these
matters: witness the title of the ‘secretaries of state,’ which, it is
said, spreads outwards from Spain to make the tour of the world.
[18]
Smith’s inaugural Of Smith’s two orations there is a copy in
orations. Camb. Univ. Libr. Baker MSS. xxxvii. 394, 414. Mr
Mullinger (Hist. Univ. Cambr., vol. ii., p. 127) has
given an excellent summary. The following passage is that in which
the Professor approaches the question whether in England there is a
career open to the civilian. He has been saying that we ought not to
study merely for the sake of riches. ‘Tamen si qui sint qui hoc
requirant, sunt archiva Londini, sunt pontificia fora, forum est
praefecti quoque classis, in quibus proclamare licet et vocem
vendere; est scriptura; singuli pontifices cancellarios suos habent et
officiales et commissarios, qui propter civilis et pontificii iuris
professionem in hunc locum accipiuntur.’ The orator proceeds to ask
whether there is any youth who ungratefully thinks that proficiency
in legal science will not find an adequate reward. ‘In quo regno aut
in cuius regis imperio tam stulta illum opinio tenebit? In hoccine
nobilissimi atque invictissimi nostri principis Henrici octavi regno,
cuius magnificentia in bonas literas, studiumque in literatos, omnium
omnis memoriae principum facta meritaque superavit, cuius ingentia
in academias beneficia, licet nulla unquam tacebit posteritas, tamen
omni celebratione maiora reperientur. Cum strenue laboraveris et
periculum ingenii tui feceris, teque non lusisse operam sed dignum
aliquo operae precio et honore ostenderis, cur dejicies animum? Cur
desperatione conflictabis? Cur de tanto fautore ingeniorum, tam
insigni bonae indolis exploratore, tam potenti Rege, tam munifico,
tam liberali et egregio amatore suorum demisse viliterque sentias?’
Diplomacy and There follows much more flattery of the king as a
the civil law. patron of learning of every kind. ‘Iuris quidem
civilis consulti facultas in hac republica cum ad
multos usus pernecessaria est, tum a principe nostro nequaquam
negligi aut levem haberi, vel hoc argumento esse potest, quod tam
amplo planeque regio stipendio et meam hic apud vos mediocritatem
et alium Oxonii disertum ac doctum virum ius hoc civile praelegere
profiterique voluit.’ And the study of the civil law is the high road to
diplomatic service. ‘Ius vero civile sic est commune ut cum ex Anglia
discesseris, nobiles, ignobiles, docti, indocti, sacerdotes etiam ac
monachi cum aliquod specimen eruditionis videri volunt exhibuisse,
nihil fere aliud perstrepunt quam quod ex hoc iure civili et pontificio
sit depromptum.’
The rewards for The king has wisely employed civilians in his
civilians. many legations. There follow compliments paid to
Stephen Gardiner, Thomas Thirlby, William Paget,
Thomas Wriothesley, and Thomas Legh. On the whole, the professor
can hold out to his pupils the prospect of diplomatic employment, of
masterships in the chancery (‘sunt archiva Londini’), of practice in
the ecclesiastical courts and the court of admiralty, and besides this
they are to remember that the king is a great patron of learning. I
do not see any hint that knowledge of Roman law will help a man at
the bar of the ordinary English courts.
 For more of the attempt to put new life into the study of Roman
law at Cambridge, see Mullinger, op. cit., vol. ii., pp. 132 ff. Though
Somerset desired to see a great civil law college which should be a
nursery for diplomatists, the Edwardian or Protestant Reformation of
the church was in one way very unfavourable to the study of the civil
law. Bishoprics and deaneries were thenceforth reserved for divines,
and thus what had been the prizes of his profession were placed
beyond the jurist’s reach. Dr Nicholas Wotton (d. 1567), dean of
Canterbury and York, may be regarded as one of the last specimens
of an expiring race. Men who were not professionally learned, men
like Sir Francis Bryan (d. 1550) and Sir Thomas Wyatt (d. 1542), had
begun to compete with the doctors for diplomatic missions and
appointments. Also the chancellorship of the realm had come within
the ambition of the common lawyer, and (though Bishop Goodrich
may be one instance to the contrary) the policy which would commit
the great seal to the hands of a prelate was the policy which would
resist or reverse ecclesiastical innovations. Even the mastership of
the rolls, which had been held by doctors of Padua and Bologna, fell
to the common lawyers. Thomas Hannibal, master of the rolls (1523-
1527), must, one would think, have been an Italian, as were the
king’s Latin secretaries Andrea Ammonio and Pietro Vannes.
[19]
The heathenry of See Janssen, Geschichte des deutschen
the Digest. Volkes, vol. i., pp. 471-501, where the cry of
‘heathenry!’ is raised against the civil law. Janssen’s
attempt to praise the canon law as radically Germanic while blaming
the ‘absolutistic’ tendencies of the civil law seems strange. Was not
the canon law, with its pope, qui omnia iura habet in scrinio pectoris
sui, absolutistic enough?
[20]
Wyclif on English Wyclif, Tractatus de officio regis, Wyclif
and Roman law. Society, 1887, pp. 56, 193, 237, 250: ‘Leges regni
Anglie excellunt leges imperiales cum sint pauce
respectu earum, quia supra pauca principia relinquunt residuum
epikerie [= ἐπιείκεια] sapientum.… Non credo quod plus viget in
Romana civilitate subtilitas racionis sive iusticia quam in civilitate
Anglicana.… Non pocius est homo clericus sive philosophus in
quantum est doctor civilitatis Romane quam in quantum est
iusticiarius iuris Anglicani.… Unde videtur quod si rex Anglie non
permitteret canonistas vel civilistas ad hoc sustentari de suis
elemosinis vel patrimonio crucifixi ut studeant tales leges … non
dubium quin clerus foret utilior sibi et ad ecclesiasticam
promocionem humilior ex noticia civilitatis proprie quam ex noticia
civilitatis duplicis aliene.’ By ‘the patrimony of the crucified’ Wyclif
means ecclesiastical revenues, which some of the bishops have been
using in the endowment of legal studies at the universities: e.g.
Bishop Bateman at Cambridge.
Wyclif and the law Wyclif, Select English Works, ed. Arnold, vol. iii.,
of the emperor. p. 326: ‘It were more profit boþe to body and soule
þat oure curatis lerneden and tauȝten many of þe
kyngis statutis, þan lawe of þe emperour. For oure peple is bounden
to þe kyngis statutis and not to þe emperours lawe, but in as moche
as it is enclosid in Goddis hestis. Þanne moche tresour and moch
tyme of many hundrid clerkis in unyversite and oþere placis is foule
wastid aboute bookis of þe emperours lawe and studie about hem.…
It semeþ þat curatis schulden raþere lerne and teche þe kyngis
statutis, and namely þe Grete Chartre, þan þe emperours lawe or
myche part of the popis. For men in oure rewme ben bounden to
obeche to þe kyng and his riȝtful lawes and not so to þe emperours;
and þei myȝtten wonder wel be savyd, þouȝ many lawes of þe pope
had nevere be spoken, in þis world ne þe toþere.’
Wyclif and Wyclif, Unprinted English Works, Early English
paynim’s law. Text Society, 1880, p. 157: ‘Þe fyue and twentiþe
errour: þei chesen newe lawis maad of synful men
and worldly and couetyse prestis and clerkis … for now heþenne
mennus lawis and worldly clerkis statutis ben red in vnyuersitees,
and curatis lernen hem faste wiþ grete desire, studie and cost.…
Ibid. p. 184: … lawieris maken process bi sotilte and cauyllacions of
lawe cyule, þat is moche heþene mennus lawe, and not accepten the
forme of þe gospel, as ȝif þe gospel were no so good as paynymes
lawe.’ It is interesting to see Janssen’s denunciation of Roman law as
Pagan thus forestalled by the great heretic, in whose eyes the
Decretals were but little, if at all, better than the Digest.
[21]
A. Agustin in For Antonio Agustin (born 1517, bishop of
England. Alife 1556, bishop of Lerida 1561, archbishop of
Tarragona 1576, died 1586) see Schulte,
Geschichte der Quellen und Literatur des canonischen Rechts, vol.
iii., p. 723; Maasen, Geschichte der Quellen des canonischen Rechts,
vol. i., pp. xix ff. His stay in England is attested in the Venetian
Calendars, 1555-6, pp. 20, 24, 32, 34, 56, 166. See also Ibid., 1556-
7, p. 1335. See also the funeral oration by And. Schott suffixed to
Ant. Augustini De emendatione Gratiani dialogorum libri duo, Par.
1607, p. 320: ‘Iulius tertius P. M. … adeo Antonium dilexit ut et
intimis consiliis adhibuerit, legatumque summa cum auctoritate in
Britanniam insulam opibus florentissimam miserit, cum Rex vere
Catholicus Philippus secundus Mariam reginam, Catholicorum regum
Ferdinandi et Isabellae neptem, duxit uxorem.… Anno 1555 revertit
ex Anglia Romam Augustinus.’ Apparently he was sent, not merely in
order that he might congratulate Philip and Mary, but also that
‘tanquam iurisconsultus legato adesset’ (Schulte, op. cit., p. 724). He
is charged by modern historians with not having spoken plainly all
that he knew about the origin of the Pseudo-Isidorian decretals.
England may have contributed a little towards the explosion of the
great forgery by means of books that were lent to the Magdeburg
Centuriators by Queen Elizabeth and Abp. Parker. See Foreign
Calendar, 1561-2, pp. 117-9.
[22]
B. John Story. See Mr Pollard’s life of Story in Dict. Nat.
Biog. See also Dyer’s Reports, f. 300. On his
arraignment for high treason Story ineffectually pleaded that he had
become a subject of the king of Spain.
[23]
See Stintzing, Ulrich Zasius, pp. 216 ff.
[24]
Zasius and Luther. Ranke, History of the Reformation in
Germany (transl. Austin), vol. ii., pp. 97-8.
 [25]
The French The Nihil hoc ad edictum praetoris! is
lawyers and the currently ascribed to Cujas, but the ultimate
Reformation.
authority for the story I do not know. See Brissaud,
Histoire du droit français, p. 355: ‘La science laïque déclarait par la
bouche d’un de ses plus grands représentants qu’elle n’était plus
l’humble servante de la théologie; elle affirmait sa sécularisation.’ It
seems that Cujas (‘wie beinahe alle Rechtsgelehrten seiner Zeit’) at
first sided with the Reformers, but that he afterwards, at least
outwardly, made his peace with the Catholic church (Spangenberg,
Jacob Cujas und seine Zeitgenossen, Leipz. 1822, p. 162; Haag, La
France protestante, ed. 2, vol. iv., col. 957-970). Doneau was a
Calvinist; driven from France by Catholics and from Heidelberg by
Lutherans, he went to Leyden and ultimately to Altdorf. Hotman was
a Calvinist, intimately connected with the church of Geneva.
Baudouin was compelled to leave France for Geneva, whence he
went to Strassburg and Heidelberg; but he quarrelled with Calvin
and was accused of changing his religion six times. Charles Du
Moulin also had been an exile at Tübingen. It is said that after a
Calvinistic stage he became a Lutheran; on his death-bed he
returned to Catholicism: such at least was the tale told by Catholics.
(See Brodeau, La vie de Maistre Charles Du Molin, Paris, 1654;
Haag, La France protestante, ed. 2, vol. v., col. 783-789.) To say the
least, he had been ‘ultra-gallican.’ (Schulte, Geschichte der Quellen
des canonischen Rechts, vol. iv., p. 251.) Of Le Douarin also it is said
‘il était réformé de cœur’ (La France protestante, ed. 2, vol. v., col.
508). ‘Die grosse Mehrzahl der hervorragenden Juristen bekannte
sich mit grösserer oder geringerer Entschiedenheit zur Partei der
Hugenotten’ (Stintzing, Geschichte der deutschen
Rechtswissenschaft, vol. i., p. 372).
[26]
Stintzing, Geschichte der deutschen Rechtswissenschaft, vol.
i., p. 284.

[27]
Francis Hotman Elizabeth’s invitation to Hotman is mentioned
and England. in the Elogium of him prefixed to his Opera (1599),
p. viii, and in Dareste’s essay (p. 5). His son John
spent some time at Oxford. In 1583 John tells his father that at
Oxford he has plenty of time for study ‘quamvis hic miris modis
frigeat iuris civilis studium et mea hac in re opera nemini grata possit
esse in Anglia’ (Hotomanorum Epistolae, Amstd., 1620, p. 325). In
1584 John was consulted along with Alberigo Gentili by the English
government in the Mendoza case (Holland, Albericus Gentilis, pp. 14,
15). There is nothing improbable in the story that Francis was
offered a post at Oxford. He must have been well known to Cecil. In
1562 he was active in bringing Condé into touch with Elizabeth and
so in promoting the expedition to Havre. Condé’s envoy brought to
Cecil a letter of introduction from Hotman (Foreign Calendar, 1561-
2, p. 601). Baudouin also at this time was making himself useful to
the English government. (See e.g. Foreign Calendar, 1558-9, p. 173;
1561-2, pp. 60, 367, 454, 481, 510.) It has been said that Queen
Elizabeth spoke of Charles Du Moulin as her kinsman (Brodeau, Vie
de C. Du Molin, p. 4). Whether in the pedigree of the Boleyns there
is any ground for this story I do not know. See La France
protestante, ed. 2, vol. v., col. 783. Sir Thomas Craig, who is an
important figure in the history of Scotch law, sat at the feet of
Baudouin, and Edward Henryson, who in 1566 became a lord of
session, had been a professor at Bourges (Dict. Nat. Biog.).
[28]
Francis Hotman The Epistre adressée au tygre de la France, a
and Roman law. violent invective against the Cardinal of Lorraine,
still finds admirers among students of French
prose. Apparently Hotman would have been the last man to preach a
Reception of Roman law in England. Being keenly alive to the faults
of Justinian’s books, he resisted the further romanization of French
law, demanded a national code, admired the English limited
monarchy, and by his Franco-Gallia made himself in some sort the
ancestor of the ‘Germanists.’ Some of these ‘elegant’ French jurists
were so much imbued with the historical spirit that in their hands the
study of Roman law became the study of an ancient history. The
following words cited and translated by Dareste from Baudouin
(François Hotman, p. 19) have a wonderfully modern sound: ‘Ceux
qui ont étudié le droit auraient pu trouver dans l’histoire la solution
de bien des difficultés, et ceux qui ont écrit l’histoire auraient mieux
fait d’étudier le développement des lois et des institutions, que de
s’attacher à passer en revue les armées, à décrire les camps, à
raconter les batailles, à compter les morts.’ ‘Sine historia caecam
esse iurisprudentiam, disait Baudouin.’ (Brissaud, Histoire du droit
français, p. 349).
[29]
Coke and Coke, Introductory Letter to Part 10 of the
Hotman. 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.
[30]
Alberigo Gentili. 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.’
[31]
Marsilianism and Thomas Starkey, when he was trying to win
Henricianism. 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).
[32]
The Scotch Foreign Calendar, 1558-9, p. 8. This seems
Protestants and to mean that the normal and rightful relation of
Justinian.
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.
[33]
The Henrician The following facts are taken from the
doctors of law. Dictionary of National Biography. Cuthbert Tunstall
(afterwards bishop of Durham) ‘graduated LL.D. at
Padua.’ Stephen Gardiner (afterwards bishop of Winchester) of
Trinity Hall, Cambridge, ‘proceeded doctor of the civil law in 1520
and of the canon law in the following year.… In 1524 he was
appointed one of Sir Robert Rede’s lecturers in the University.’
Edmund Bonner of Broadgate Hall, Oxford, ‘in 1519 he took on two
successive days (12 and 13 June) the degrees of bachelor of civil
and of canon law.… On 12 July, 1525, he was admitted doctor of civil
law.’ Thomas Thirlby (afterwards bishop of Ely) of Trinity Hall,
Cambridge, ‘graduated bachelor of the civil law in 1521 … and
proceeded doctor of the civil law in 1528 and doctor of the canon
law in 1530.’ Richard Sampson (afterwards bishop of Lichfield) of
Trinity Hall, Cambridge, ‘proceeded B.C.L. in 1505. Then he went for
six years to Paris and Sens and returning proceeded D.C.L. in 1513.’
John Clerk (afterwards bishop of Bath and Wells, Master of the
Rolls), ‘B.A. of Cambridge 1499 and M.A. 1502, studied law and
received the doctor’s degree at Bologna.’ Richard Layton (afterwards
dean of York) ‘was educated at Cambridge, where he proceeded
B.C.L. in 1522 and afterwards LL.D.’ Thomas Legh of King’s College
(?), Cambridge, ‘proceeded B.C.L. in 1527 and D.C.L. in 1531.’
Instances of legal degrees obtained in foreign universities are not
very uncommon. John Taylor, Master of the Rolls in 1527, ‘graduated
doctor of law at some foreign university, being incorporated at
Cambridge in 1520 and at Oxford in 1522.’ James Denton, dean of
Lichfield, proceeded B.A. in 1489 and M.A. in 1492 at Cambridge.
‘He subsequently studied canon law at Valencia in which faculty he
became a doctor of the university there.’ (For an earlier instance,
that of Thomas Alcock of Bologna, see Grace Book A, Luard
Memorial, p. 209. There are other instances in Boase, Register of the
University of Oxford; consult index under Padua, Bologna, Paris,
Orleans, Bourges, Louvain.)
‘The king’s great That wonderful divorce cause, which shook the
matter.’ world, created a large demand for the sort of
knowledge that the university-bred jurist was
supposed to possess, especially as a great effort was made to obtain
from foreign doctors and universities opinions favourable to the king.
The famous Cambridge ‘Grecian’ Richard Croke was employed in
ransacking Italian libraries for the works of Greek theologians and in
taking council with Hebrew rabbis. In Italy, France and Spain, as well
as in England, almost every canonist of distinction, from the
celebrated Philip Decius downwards, must have made a little money
out of that law suit, for the emperor also wanted opinions.
[34]
Papists in the Inns See the remarkable paper printed in
of Court. Calendar of Inner Temple Records, vol. i., p. 470;
also Mr Inderwick’s preface pp. 1 ff. In 1570
Lincoln’s Inn had not been exacting the oath of supremacy: Black
Book, vol. i., pp. 369-372. See also the lives of Edmund Plowden,
William Rastell and Anthony Browne (the judge) in Dict. Nat. Biog.:
and for Browne see also Spanish Calendar, 1558-67, pp. 369, 640.
[35]
Sir T. Smith’s Smith, Commonwealth of England, ed. 1601,
‘Commonwealth.’ p. 147: ‘I haue declared summarily as it were in a
chart or map, or as Aristotle termeth it, ὡς ἐν τύπῳ
the forme and maner of gouernment of England, and the policy
therof, and set before your eyes the principall points wherin it doth
differ from the policy or gouernment at this time vsed in France,
Italy, Spaine, Germanie, and all other Countries, which doe follow
the ciuill law of the Romaines, compiled by Iustinian into his
pandects and code: not in that sort as Plato made his
commonwealth, or Xenophon his kingdome of Persia, nor as Sir
Thomas More his Vtopia, beeing fained commonwealths, such as
neuer was nor neuer shall be, vaine imaginations, phantasies of
Philosophers to occupie the time, and to exercise their wits: but so
as England standeth, & is gouerned at this day the xxviij. of March.
Anno 1565. in the vij. yeare of the raigne and administration thereof
by the most vertuous & noble Queene Elizabeth, daughter to King
Henry the eight, and in the one and fiftieth yeare of mine age, when
I was Ambassadour for her Maiestie, in the Court of Fraunce, the
Scepter whereof at that time the noble Prince and of great hope
Charles Maximilian did holde, hauing then raigned foure yeares.’
[36]
Smith writes Smith to Haddon, 6 Ap. 1565, in G. Haddoni
without books. Orationes, Lond. 1567, pp. 302-7: ‘nostrarum
legum ne unum quidem librum mecum attuli hic
nec habebam iure consultos quos consulerem.’ He has been telling
how he wrote The Commonwealth of England.
 [37]
Roman law on the From the time of Bracton to the present day
Continent. Englishmen have often allowed themselves phrases
which exaggerate the practical prevalence of
Roman law on the continent of Europe. Smith, for instance, who had
been in many parts of northern France and was a learned and
observant man, must have known that (to use Voltaire’s phrase) he
often changed law when he changed horses and that the Estates
General had lately been demanding a unification of the divergent
customs (Viollet, Histoire du droit civil français, p. 202; Planiol, Droit
civil, 1900, vol. i., p. 16). Germans, who know what an attempt to
administer Roman law really means, habitually speak of French law
as distinctively un-Roman. Thus Rudolph Sohm (Fränkisches Recht
und römisches Recht, Weimar, 1880, p. 76): ‘die Gesetzbücher
Napoleons I. zeigen, dass noch heute wenigstens das Privatrecht
und Processrecht Frankreichs ein Abkömmling nicht des römischen,
noch des italienischen, sondern des fränkischen Rechtes ist.’ So
Planiol (op. cit., vol. i., p. 26): ‘Deux courants se sont trouvés en
présence lors de l’unification du droit français: l’esprit romain et les
traditions coutumières. Ce sont ces dernières qui l’ont emporté. Le
Code a été rédigé à Paris, en plein pays coutumier; les conseillers
d’État appartenaient en majorité aux provinces septentrionales; le
parlement de Paris avait eu dans l’ancien droit un rôle prépondérant.
Il n’y a donc rien d’étonnant à voir l’esprit des coutumes prédominer
dans le Code; le contraire eût été un non-sens historique.’ Until the
other day it was, I believe, a common remark that the large part of
Germany which stood under the French code either in a translated or
untranslated form—and this part contained about one-sixth of the
Empire’s population—was the part of Germany in which the law was
least Roman and most Germanic. The division of France into two
great districts was not equal: before the acquisition of Elsass from
Germany ‘les pays de droit écrit comprenaient à peine les deux
cinquièmes de la France’ (Planiol, op. cit., vol. i., p. 11). See the
useful map in Brissaud, Histoire du droit français, p. 152. Even in the
south there was much customary law. A famous sentence in the
custumal of Bordeaux placed ‘the written law’ below ‘natural reason’
(Viollet, op. cit., p. 150). Still it is not to be denied that a slow
process of romanization—very different from the catastrophic
Reception in Germany—went on steadily for some five or six
centuries; and a system which as a whole seems very un-Roman to
a student of what became ‘the common law’ of Germany may rightly
seem Roman to an Englishman. Francis Bacon knew that France
could not be compendiously described as a country governed by the
civil law. In his speech on the Union of Laws (Spedding, Life and
Letters, vol. iii., p. 337) he accurately distinguishes ‘Gascoigne,
Languedock, Provence, Dolphinie’ which are ‘governed by the letter
or text of the civil law’ from ‘the Isle of France, Tourayne, Berry,
Anjou and the rest, and most of all Brittain and Normandy,’ which
are ‘governed by customs which amount unto a municipal law, and
use the civil law but only for grounds and to decide new and rare
cases.’ English readers should at least know the doctrine, strongly
advocated in modern Germany, that the private law which was
developed in England by a French-speaking court was just one more
French coutume. Sohm, Fränkisches Recht und römisches Recht, p.
69: ‘Die Vorgeschichte des englischen Rechts von heute hat nicht in
England, sondern in Nordfrankreich ihre Heimath … Stolz kann die
Lex Salica auf die zahlreichen und mächtigen Rechte blicken, welche
sie erzeugt hat.’
[38]
Blackstone, Commentaries, vol. iii., p. 149; J. H[oddesdon],
Tho. Mori Vita, Lond. 1652, p. 26.
[39]
Smith, Commonwealth, ed. 1601, p. 141: ‘withernam … is in
plaine Dutch and in our olde Saxon language wyther nempt.’
[40]
Barbarous Pollock, First Book of Jurisprudence, p. 283,
language of the from Dyer’s Reports, 188 b, in the notes added in
law.
ed. 1688: ‘Richardson, ch. Just. de C. Banc. al
Assises at Salisbury in Summer 1631. fuit assault per prisoner la
condemne pur felony que puis son condemnation ject un Brickbat a
le dit Justice que narrowly mist, & pur ceo immediately fuit
indictment drawn per Noy envers le prisoner, & son dexter manus
ampute & fix al Gibbet sur que luy mesme immediatment hange in
presence de Court.’ In France the Ordonnance of Villers-Cotterets
(1539) decreed that the judgments of the French courts should be
recorded no longer in Latin but in French. ‘L’utilité de cette
innovation … se comprend assez d’elle-même. On dit qu’un motif
d’une autre nature, l’intérêt des belles-lettres, ne contribua pas
moins à y décider le roi [François I], choqué du latin barbare
qu’employaient les tribunaux. Un arrêt rendu en ces termes: Dicta
curia debotavit et debotat dictum Colinum de sua demanda, fut, dit
on, ce qui entraîna la suppression du latin judiciaire.’ Henri Martin,
Histoire de France, vol. viii., pp. 272-3; see also Christie, Étienne
Dolet, ed. 2, p. 424.
[41]
The fate of Duns Ellis, Original Letters, Ser. II., vol. ii., p. 61,
Scotus. Dr Layton to Cromwell: ‘We have sett Dunce in
Bocardo and have utterly banished him Oxforde for
ever, with all his blynd glosses, and is now made a common servant
to evere man, fast nailede up upon posts in all common howses of
easement.’
[42]
The English Lex Stat. 31 Hen. VIII., cap. 8. Already in 1535
Regia. Cromwell reports with joy an opinion obtained from
the judges to the effect that in a certain event the
king might issue a proclamation which would be ‘as effective as any
statute’ (Letters and Papers, Henry VIII., vol. viii., p. 411).
[43]
Civilians in The story (with which we are familiar in
councils and in England) of the evolution of various councils and
courts.
courts from an ancient Curia Regis seems to have a
close parallel in French history: so close that imitation on one side or
the other may at times be suspected. After the parlement with its
various chambers (which answer to our courts of common law) has
been established, the royal council interferes with judicial matters in
divers ways, and sections of the council become tribunals which
compete with the parlement. (See, e.g. Esmein, Histoire du droit
français, ed. 2, pp. 469 ff., and the pedigree of courts and councils in
Lavisse et Rambaud, Histoire générale, vol. iv., p. 143; also the
pedigree in N. Valois, Le conseil du roi (1888), p. 11; and Brissaud,
Histoire du droit français, pp. 816 ff.) In Germany the doctors of civil
law made their way first into councils and then into courts. ‘Die
fremdrechtlich geschulten Juristen wurden in Deutschland anfänglich
nur in Verwaltungssachen verwendet. Zur Rechtsprechung gelangten
sie dadurch, dass die Verwaltung diese an sich zog, und zwar zuerst
am Hofe des Königs’ (Brunner, Grundzüge der deutschen
Rechtsgeschichte, 1901, p. 227). In the England of Henry VIII’s day
there seems no little danger that die fremdrechtlich geschulten
Juristen, of whom there are a good many in the king’s service, will
gain the upper hand in the new courts that have emerged from the
council, and will proceed from Verwaltung to Rechtsprechung. There
came a time when Dr Tunstall (who got his law at Padua) was
presiding over the Council of the North and Dr Roland Lee over the
Council of the Marches. In 1538 Dr Lee, who was endeavouring to
bring Wales to order, said in a letter to Cromwell, ‘If we should do
nothing but as the common law will, these things so far out of order
will never be redressed’ (Dict. Nat. Biog., vol. xxxii., p. 375).
Project for a new In 1534 there was a project for the erection of
court. yet another new court. See Letters and Papers,
Henry VIII., vol. vii., p. 603: ‘Draft act of
parliament for the more rigid enforcement of previous statutes,
appointing a new court, to consist of six discreet men, of whom
three at least shall be outer barristers in the Inns of Court, who shall
be called justices or conservators of the common weal and sit
together in the White Hall at Westminster or elsewhere, with power
to discuss all matters relating to the common weal and to call before
them all persons who have violated any act of parliament made
since the beginning of Henry VIII.’s reign.’ If only three of these
judges need be barristers, what are the rest to be?
[44]
Acts of the Parliament of Scotland, vol. ii., p. 335.
[45]
Reform of the See the two papers that are printed by
Inns of Court.Waterhous, Fortescutus Restitutus, 1663, pp. 539,
543. In one of these Thomas Denton, Nicholas
Bacon and Robert Cary are answering an inquiry addressed to them
by Henry VIII touching the plan of legal education pursued in the
Inns of Court. In this there are some phrases that tell of the revival
of learning. The writers thank Almighty God for giving them a king
‘endued and adorned himself with all kindes and sortes of good
learning as well divine as prophane’ and one who ‘purposeth to set
forward and as it were to revive the study and perfect knowledge
thereof [i.e. of good learning], of long time detested and almost
trodden under foot.’ They remark also that many good and gentle
wits have perished ‘chiefly for that most of them in their tender
years, indifferent to receive both good and bad, were so rooted and
seasoned, as it were, in barbarous authors, very enemies to good
learning, that hard it was, yea almost impossible, to reduce them to
goodness.’
The king’s College The other paper contains a project for the king’s
of Law. College of Law submitted by the same three
writers. This looks like an attempt to obtain a
royally endowed school of English law, and it is curious to observe
that, not English, but good French is to take the place of bad French.
‘The inner barristers shall plead in Latine, and the other barristers
reason in French; and either of them shall do what they can to
banish the corruption of both tongues.’ One learned in French is ‘to
teach the true pronuntiation of the French tongue.’ One of excellent
knowledge in the Latin and Greek tongues is to read ‘some orator or
book of rhetoric, or else some other author which treateth of the
government of a commonwealth, openly to all the company.’
Students of this college are to be sent abroad to accompany
ambassadors, and two students are to act as historiographers of the
realm. Nothing is said of the civil law. On the whole, this seems to
be a conservative proposal emanating from English barristers for
bettering the education of the common lawyer, and thus rendering
unnecessary such a Reception as Pole had proposed. We do not
know that it represents Henry’s thoughts. It was ‘a civil law college’
that Somerset wished to establish at Cambridge by a fusion of Trinity
Hall and Clare. (See Mullinger, Hist. Univ. Camb., vol. ii., pp. 134-
137.)
 [46]
Butzer on Henry Bucerus, De regno Christi, lib. ii., cap. 56
VIII’s project of (Scripta Anglica, Basil. 1577, p. 148): ‘Passim enim
Codification.
queri bonos viros audio, leges regni huius decorum
[corr. de rerum] proprietatibus et commutationibus, de
successionibus in bonis atque aliis huius generis civilibus
contractibus et commerciis, esse perobscuras atque implicatas:
adeoque etiam lingua perscriptas quadam obsoleta ut a nemine
queant intelligi, qui non et eam linguam didicerit et earum legum
intelligentiam multo fuerit studio assecutus: indeque fieri ut plerique
eorum qui eas leges aliquo modo habent cognitas, iurisque magis
quam iusticiae sunt consulti, his ipsis legibus abutantur pro hominum
decipulis retibusque pecuniarum. Quo regni non tolerando
incommodo permotum aiunt praestantissimum principem S. M. T.
patrem ut corrigendis, elucidandisque his legibus certos pridem
homines deputarit. Cum autem isti legum designati instauratores, vel
mole operis absterriti, vel aliis impediti abstractique negociis, huic
malo adhuc nullum attulerint remedium, abusioque et perversio
legum indies magis invalescere dicatur, eo certe id erit S. M. T. et
maturius et pertinacius elaborandum quo leges illae quam rectissime
ac planissime extent explicatae.… Quid autem interest nullae
existant leges, aut quae existunt sint civibus ignoratae?’
Butzer, as this treatise shows, had some knowledge of the civil
law, at least in the matter of divorce. He seems to think that a code
for England might be so simple an affair that it could be put into
rhyme and be sung by children. (See Mullinger, Hist. Univ. Camb.,
vol. ii., p. 238.)
[47]
Codification of the Cardwell, The Reformation of the
ecclesiastical law. Ecclesiastical Laws, Oxf. 1850. See p. xxvi, where
Foxe the martyrologist (1571) testifies to the
beauty of Haddon’s Latin, and then says: ‘Atque equidem lubens
optarim, si quid votis meis proficerem, ut consimili exemplo, nec
dissimili etiam oratione ac stylo, prosiliat nunc aliquis, qui in
vernaculis nostris legibus perpoliendis idem efficiat, quod in
ecclesiasticis istis praestitit clarissimae memoriae hic Haddonus.’ On
the question as to the intended fate of heretics (including both
Roman Catholics and Lutherans) under the Reformatio Legum, see
Hallam, Const. Hist., ed. 1832, vol. i., p. 139; Maitland, Canon Law
in England, p. 178.
[48]
The demand for Commines attributes to Louis XI (circ. an.
Codification. 1479) a project of reducing to uniformity all the
customs of France. Francis Bacon more than once,
when urging his schemes of law reform, referred to Louis’s abortive
project (Spedding, Life and Letters, vi. 66; vii. 362). Commines’s
story is not rejected by modern historians of French law. The official
redaction of the various ‘general customs’ (customs of provinces)
was commanded in 1453 by the ordinance of Montils-les-Tours.
Little, however, was done in this matter until the reigns of Charles
VIII and Louis XII. Many customs were redacted about the year
1510: that of Orleans in 1509; that of Paris in 1510. This might be
described as a measure of codification: ‘elle fit, des coutumes, de
véritables lois écrites’ or, as we might say, statute law. (Esmein,
Histoire du droit français, 746 ff.; Viollet, Histoire du droit français,
142 ff.; Planiol, Droit civil, i. 12, 16). Then the Estates General at
Orleans in 1560 in effect demanded a general code: ‘Nous voulons
une foy, une loy, un roy’ said the prolocutor of the clergy. (Dareste,
Hotman, p. 20.) Both Du Moulin and Hotman recommended
codification and apparently thought that the task would not be
difficult. (Viollet, op. cit., p. 209; Dareste, op. cit., p. 21.) Then as to
Germany:—‘An die Klagen über die Verwirrung, in welche das Recht
durch die scholastische Wissenschaft gerathen ist, knüpft sich seit
dem Anfange des 16. Jahrhunderts regelmässig das Verlangen, der
Kaiser möge als ein neuer Justinian das gemeine Recht des Reichs
zur Einfachheit und Klarheit gesetzlich reformiren.… Das Verlangen
nach einer Codification des gemeinen Rechts zieht sich durch das
ganze 16. Jahrhundert.’ (Stintzing, Geschichte der deutschen
Rechtswissenschaft, vol. i., pp. 58-9.) In 1532 after a prolonged
effort the Empire actually came by a criminal code, the so-called
Carolina (Constitutio Carolina Criminalis; die peinliche
Halsgerichtsordnung Karls V.), but its operation was confined by a
clause which sanctioned the ever increasing particularism of the
various states by saving their ancient customs. (Ibid., pp. 621 ff.)
Within some of these states or ‘territories’ there was in the sixteenth
century a good deal of comprehensive legislation, amounting in
some cases to the publication of what we might call codes. A
Landrecht (to be contrasted with Reichsrecht) was issued by the
prince. His legislative action was not always hampered by any
assembly of Estates; he desired uniformity within his territory; and
the jurists who fashioned his law-book were free to romanize as
much as they pleased. The Würtemberg Landrecht of 1555 issued by
Duke Christopher, a prince well known to Queen Elizabeth, is one of
the chief instances (Stintzing, op. cit., vol. i., pp. 537 ff.; Schröder,
Deutsche Rechtsgeschichte, ed. 3, pp. 886 ff.). The transmission of
the cry for codification from Hotman to Leibnitz, and then to the
enlightened monarchy of the eighteenth century is traced by Baron,
Franz Hotmans Antitribonian, Bern, 1888. In Scotland also the
Regent Morton (d. 1581) entertained a project of codification. A
commission was appointed to prepare a uniform and compendious
order of the laws. It seems to be a question among Scotch lawyers
how far the book known as Balfour’s Practicks represents the work
of the commissioners. See Dict. Nat. Biog., vol. xv., p. 317; vol. iii.,
p. 53.
[49]
The expiration of The cessation of the Year Books in 1535 at
the Year Books. the moment when the Henrician Terror is at its
height is dramatically appropriate. A great deal,
however, has yet to be done before the relevant facts will be fully
known. Mr C. C. Soule’s Year-Book Bibliography, printed in Harvard
Law Review, vol. xiv., p. 557, is of high importance. If by ‘the Year
Books’ we mean a series of books that have been printed, then the
Year Books become intermittent some time before they cease. The
first eleven years of Henry VIII are unrepresented, and there are
gaps between years 14 and 18 and between 19 and 26. It remains
to be seen whether there are MSS. more complete than the printed
series. Then we have on our hands the question raised by what
Plowden says in the Preface to his Commentaries touching the
existence of official reporters. Plowden says that he began to study
the law in 30 Hen. VIII, and that he had heard say that in ancient
times there were four reporters paid by the king. His words make it
clear that the official reporters, if they ever existed, came to an end
some considerable time before 30 Hen. VIII. The question whether
they ever existed cannot be raised here. Mr Pike’s investigations
have not, so I think, tended to bear out the tale that Plowden had
heard; and if the king paid stipends to the reporters, some proof of
this should be forthcoming among the financial records. The
evidence of Francis Bacon is of later date and looks like a mere
repetition of what Plowden said (Bacon, Amendment of the Law;
Spedding, Life and Letters, vol. v., p. 86).
Decline of law But, be all this as it may, the fact seems clear
reports. that the ancient practice of law reporting passed
through a grave crisis in the sixteenth century. We
know the reign of Edward IV and even that of Edward II better than
we know that of Edward VI. The zeal with which Tottell from 1553
onwards was printing old reports makes the dearth of modern
reports the more apparent. Then Plowden expressly says that he
reported ‘for my private instruction only,’ and Dyer’s Reports (which
comprise some cases too early to have been reported by him) were
posthumously published. The total mass of matter from the first half
of the century that we obtain under the names of Broke, Benloe,
Dalison, Keilwey, Moore and Anderson is by no means large, and in
many cases its quality will not bear comparison with that of the Year
Books of Edward IV. (J. W. Wallace, The Reporters, ed. 4, Boston,
1882, is an invaluable guide; see also V. V. Veeder, The English
Reports, in Harvard Law Review, vol. xv., p. 1.)
[50]
Burke on law Burke, Report from Committee appointed to
reports. inspect the Lords’ Journals: ‘To give judgment
privately is to put an end to reports; and to put an
end to reports is to put an end to the law of England.’
[51]
The Students’ Acts of the Privy Council, 1547-1550, pp. 48-
petition in 1547. 50. Petition of divers students of the common laws
to the Lord Protector and the Privy Council: ‘Pleasith it your
honorable Lordships to call to your remembrance that whereas the
Imperial Crowne of this realme of Inglande and the hole estate of
the same have been alwayes from the beginning a Reame Imperial,
having a lawe of itself called the Commen Lawes of the realme of
Inglande, by which Lawe the Kinges of the same have as Imperial
Governours thereof ruled and governed the people and subjectes in
suche sorte as the like thereof hath nat been seen in any other.… So
it is, if it like your good Lordships, that now of late this Commen
Lawes of this realme, partely by Injunctions, aswel before verdictes,
jugementes and execucions as after, and partly by writtes of Sub
Pena issuing owte of the Kinges Courte of Chauncery, hath nat been
only stayed of their directe course, but also many times altrid and
violated by reason of Decrees made in the saide Courte of
Chauncery, most grounded upon the lawe civile and apon matter
depending in the conscience and discrecion of the hearers thereof,
who being Civilians and nat lerned in the Comen Lawes, setting
aside the saide Commen Lawes, determyne the waighty causes of
this realme according either to the saide Lawe Civile or to their owne
conscience; which Lawe Civile is to the subjectes of this realme
unknowne, and they nat bounden ne inheritable to the same lawe,
and which Jugementes and Decrees grownded apon conscience ar
nat grounded ne made apon any rule certeine or lawe written.…
Incroachment of And for a more amplyfyeng and inlarging of the
the civil law. jurisdiction of the saide Courte of Chauncery and
derogacion of the saide Comen Lawes there is of
late a Commission made contrary to the saide Commen Lawes unto
certaine persones, the more part whereof be Civilians nat learned in
the saide Lawes of this realme, autorising them to heare and
determyne all matters and cawses exhibited into the saide Courte of
Chauncery, by occasion whereof the matters there do daily more and
more increase, insomuch as very fewe matters be now depending at
the Comen Lawes.… And by reason thereof there hath of late
growne such a discourage unto the studentes of the saide Commen
Lawes, and the said Commen Lawes have been of late so little
estemed and had in experience, that fewe have or do regarde to
take paynes of the profownde and sincere knolege of the same
Lawe, by reason whereof there ar now very few, and it is to be
doubted that within fewe yeares there shall nat be sufficient of
lerned men within this realme to serve the king in that facultie. It
therfore may please your honorable Lordships to make suche speady
reformacion in the premisses as unto your Lordships shall seem
moste mete and convenient.’
Civilians as This petition led to the disgrace and punishment
judges. of the chancellor, the Earl of Southampton
(Wriothesley), for having issued a commission
without warrant and without consulting his fellow-executors of King
Henry’s will. With Somerset’s motives for thrusting Southampton
aside we are not concerned. (See Pollard, England under the
Protector Somerset, pp. 31-33.) That he had any desire to protect
the common lawyers we must not assume; but the petition itself
deserves attention. The commissioners to whom Southampton had
delegated judicial powers were Robert Southwell (master of the
rolls), John Tregonwell, John Oliver, and Anthony Bellasyse (masters
of chancery). Tregonwell, Oliver and Bellasyse were all doctors of the
civil law (Dict. Nat. Biog.).
Common law and In 1536 during the Pilgrimage of Grace one of
the Pilgrimage ofthe demands of the catholic insurgents was ‘that
Grace.
the common laws may have place as was used at
the beginning of the reign and that no injunctions be granted unless
the matter has been determined in chancery.’ This comes at the end
of a long reactionary programme, which desires the restoration of
the monasteries, of the papal supremacy and so forth: also the
repeal of the statute ‘That no man shall not will his lands’ [Statute of
Uses]. The heretical bishops [Cranmer and his like] are to be burnt;
Cromwell is ‘to have condign punishment.’ Also ‘a man is to be saved
by his book,’ i.e. there is to be no infringement of the benefit of
clergy. The heresies to be suppressed are those of ‘Luther, Wyclif,
Husse, Malangton, Elicampadus [Oecolampadius], Bucerus, Confessa
Germaniae [Augsburg Confession], Apolugia Malanctons, the works
of Tyndall, of Barnys, of Marshall, Raskell [Rastell, the printer of law
books], Seynt Germayne [author of Doctor and Student] and such
other heresies of Anibaptist.’ As I understand the protest against
injunctions, it means that the chancery may interfere with an action
at common law, only if that action is opening a question already
decided in the chancery. It will be seen that in 1536 the cause of
‘the common laws’ finds itself in very queer company: illiterate,
monkish and papistical company, which apparently has made a man
of ‘Anibaptist.’ (For this important manifesto, see Letters and Papers,
Henry VIII., vol. xi., pp. 506-507.)
[52]
Elbow-room in the Stow, Annals, ed. 1615, p. 631: ‘This yeere
courts of law. (1557) in Michaelmas terme men might have seene
in Westminster hall at the Kinges bench barre not
two men of law before the iustices; there was but one named Fostar,
who looked about and had nothing to doe, the iudges looking about
them. In the common place [Court of Common Pleas] no moe
sergeants but one, which was sergeant Bouloise [Bendlowes?], who
looked about him, there was elbow roome enough, which made the
lawyers complaine of their iniuries in that terme.’ In 1536 John
Rastell the lawyer and printer of law books complains to Cromwell
that in both capacities he is in a bad way: he used to print from two
to three hundred reams every year but now prints not a hundred
reams in two years; he used to make forty marks a year by the law
and now does not make forty shillings (Ellis, Original Letters, Ser.
III., vol. ii., p. 309). On such stories as these little stress is laid; but
until the judicial records of the Tudor reigns are statistically
examined, scraps of information may be useful.
[53]
Examination by For an instance see the examination of a
civilians in servant of the Abbot of Sawley by Drs Layton, Legh
criminal cases.
and Petre (Letters and Papers, Henry VIII., vol. xii.,
pt. 1, p. 231).
[54]
The doctors of As to the evil done to the peasants in
law and the Germany by the Reception of Roman law, see
Peasants’ War.
Egelhaaf, Deutsche Geschichte (Zeitalter der
Reformation), vol. i., pp. 544 ff.; Lamprecht, Deutsche Geschichte,
vol. v., pp. 99 ff. Dr Brunner (Grundzüge der deutschen
Rechtsgeschichte, 1901, p. 216) has lately said that Roman
jurisprudence ‘auch wenn sie nicht geradezu bauernfeindlich war,
doch kein Verständnis besass für die Mannigfaltigkeit der bäuerlichen
Besitzformen des deutschen Rechtes.’ One of the revolutionary
programmes proposed an exclusion of all doctors of civil or canon
law from the courts and councils of the princes. See Egelhaaf, op.
cit., pp. 499, 598. The following is a pretty little tale:—‘So geschah
es wirklich einmal zu Frauenfeld im Thurgau, wo die Schöffen einen
Doctor aus Constanz, der sich für die Entscheidung eines
Erbschaftsstreites auf Bartolus und Baldus berufen wollte, zur Thüre
hinauswarfen mit den Worten: “Hört ihr, Doctor, wir Eidgenossen
fragen nicht nach dem Bartele und Baldele. Wir haben sonderbare
Landbräuche und Rechte. Naus mit euch, Doctor, naus mit euch!”
Und habe, heisst es in dem Berichte weiter, der gute Doctor müssen
abtreten, und sie Amtleute haben sich einer Urtel verglichen, den
Doctor wieder eingefordert und ein Urtel geben wider den Bartele
und Baldele und wider den Doctor von Constanz.’ (Janssen,
Geschichte des deutschen Volkes, vol. i., p. 490.) It is a serious
question what would have become of our English copyholders if in
the sixteenth century Roman law had been received. The practical
jurisprudence of this age seems to have been kinder to the French
than to the German peasant; perhaps because it was less Roman in
France than in Germany. See E. Levasseur in Lavisse et Rambaud,
Histoire générale, vol. iv., p. 188: ‘Des jurisconsultes commencèrent
à considérer l’inféodation comme une aliénation et le colon censitaire
comme le véritable propriétaire de la terre sur laquelle le seigneur
n’aurait possédé qu’un droit éminent.’ The true Romanist, I take it,
can know but one dominium, and is likely to give that one to the
lord.
[55]
England and As regards Germany, the theoretical
Germany. continuance of the Roman empire is not to be
forgotten, but its influence on the practical
Reception of Roman law may be overrated. In the age of the