Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/201

 6, M AIT LAND: THE RENAISSANCE 187 Unquestionably our medieval law was open to humanistic attacks. It was couched partly in bad Latin, partly in worse French. For the business Latin of the middle age there is much to be said. It is a pleasant picture that which we have of Thomas More puzzling the omniscient foreigner by the question " An averia carucae capta in withernamio sunt irreplegiblia." ^^ He asked a practical question in the only Latin in which that question could have been asked with- out distortion. Smith's acute glance saw that withernamium must have something to do with the German wiedernehmen; for among his other pursuits our professor had interested himself in the study of English words.^^ But this business Latin was a pure and elegant language when compared with what served our lawyers as French. Pole and Smith might well call it barbarous ; that it was fast becoming English was its one redeeming feature. You are likely to know what I must not call the classical passage: it comes from the seventeenth century. In all the Epistolae Obscurorum Viro- rum there is nothing better than the report which tells how one of Sir Robert Rede's successors was assaulted by a pris- oner " que puis son condemnation ject un brickbat a le dit justice que narrowly mist." ^^ It is as instructive as it is 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, Frdnkisches Recht und romisches 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 mach- tigen Rechte blicken, welche sie erzeugt hat." '^ Blackstone, Commentaries, vol. iii., p. 149; J. H[oddesdon], Tho. Mori Vita, Lond. 1652, p. 26. "* Smith, Commonwealth, ed. 1601, p. 141: "withernam ... is in plaine Dutch and in our olde Saxon language wyther nempt." 188 b, in the notes added in 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
 * " Pollock, First Book of Jurisprudence, p. 283, from Dyer's Reports,