DUCK'S LIFE AND CAREER

Born and brought up in Devon, Duck first followed a path laid out by his elder brother, Nicholas, entering Exeter College, Oxford, in 1595. By then his brother had left the university without taking a degree; he became a common lawyer at Lincoln's Inn. Arthur made a different choice, and his academic career was not a short one. In this respect it was similar to that of many prominent civilians. He migrated to Hart Hall, proceeding MA in 1602. In 1604 he was elected a fellow of All Souls, taking the BCL in 1607 and the DCL five years later, the second after having completed an extended trip to European centres of learning. He became sub-warden of All Souls in 1610, later writing a life of the college's founder, Archbishop Henry Chichele.Footnote ⁶

Like most English civilians, Duck moved away from academic life even while he retained a toehold in it. In 1614, he was admitted as an advocate at Doctors' Commons in London. Already a favourite of the Bishop of Bath and Wells, Arthur Lake, Duck became his chancellor in 1616. The bishop paid him the compliment of solemnising his marriage with Margaret, daughter of Henry Southworth, a London merchant. It was a happy union, producing nine children, of whom unfortunately only two girls survived to maturity. Margaret's life was itself celebrated in Samuel Clarke's Collection of the Lives of Ten Eminent Divines, published in 1662.Footnote ⁷

Once begun on this sound footing, Duck's career was marked by success, including the accumulation of offices in Church and state. Besides those already mentioned, he served on one of the courts of High Commission, he acted as a commissioner for the Admiralty in Dorset and Middlesex, and he served as visitor for schools and poorhouses in the Diocese of Canterbury. He was also regularly consulted on public questions of moment.

Of course, most of this edifice came tumbling down with the advent of the Civil Wars. The ecclesiastical courts over which he presided ceased to exist in anything but name. Duck was not excluded from all of public life, however. In fact he was made a Master in Chancery in 1645, but even so, it was a time of limited horizons for civilians, and with the assistance of Gerard Langbaine, Provost of Queen's College, Oxford, he turned his attention to the work that was to stand as his great contribution to comparative law and legal history. Duck therefore put to good use what might have been years of enforced idleness.

DUCK'S GREAT WORK

De usu et authoritate iuris civilis is not a huge volume – 478 octavo pages of text, plus a short list of its contents and an index in the pocketbook edition published at Leiden in 1654.Footnote ⁸ By the standards of other civilian treatises from the era, it is quite modest in size. The footnotes to the edition, which are extensive, appear in tiny print and in the highly abbreviated form of citation used at the time. The text itself is divided into two separate books. The first, much shorter than the second, opens by describing the origins, the separate parts and the nature of the corpus iuris civilis. It then adds chapters devoted to post-Justinianic developments – to the feudal law and the libri feodorum, to the contributions of the canon law and finally to a general analysis of legal reasoning and decision-making within the ius commune. All this information was well worth knowing then, just as it remains worth knowing today that the author believed that the Roman law was a permanent gift of God to all peoples.Footnote ⁹ That understanding, not unusual among civil lawyers of the time, opens a window onto their approach to legal problems.

It is the second book, however, that contains Duck's most valuable contribution to legal literature. He followed a regular method, first providing a description of the broad course of legal development in the several European kingdoms, principalities and cities, and then adding examples. The range of the sources from which he drew conclusions in this second book is impressive, even astonishing. He began with Germany, noting that the seat of Roman empire had been translated there.Footnote ¹⁰ He covered the law of the Germans in detail and with a grasp of the relevant literature. To take only one example, in discussing the law and practice of inheritance in cases of intestacy in Saxony, he devoted two subsections to the comparative authority of Saxon and Roman laws as they had been worked out in practice. Here Duck drew upon nine separate learned works, few if any of which will be familiar to modern students of legal history.Footnote ¹¹ They were Johannes Schneidewein (Ointomos), Commentarii in Institutiones (1595), Johannes Sichard, Commentarius ad Codicem (1586), Ernst Cothmann, Consilia et responsa iuris (1609), Dominicus Arumaeus, Discursus academicus ad Auream Bullam (1617), Anton Coler, Sectiones de iure imperii Germanici (1613), Matthias Stephani, Constitutiones publicorum iudiciorum Caroli VI (1616), Albert Krantz, Viri in theologia et iure pontificio celeberrimi … [de] Wandalia (1575), Anon, Ius provinciale ducatus Prussiae (1624), and one more which I have so far been unsuccessful in identifying.Footnote ¹² Particularly noteworthy are the number and breadth of these treatises: it is typical of the learning characteristic of Duck's approach. Further subsections followed – with different though equally learned sources.

What did Duck use the information in these references to accomplish? Roughly speaking, they allowed him to investigate the German legal development we now call ‘the Reception’ of Roman law. As Duck portrayed it, ‘Reception’ was far from a mechanical process and it was not accomplished at a stroke. He recounted, for example, both its successes and the resistance to it in Saxony. The old law still governed many questions of succession. As the passage from Schneidewein's commentary on the Institutes cited by Duck described it, the requirement of Saxon law that a nephew be of the blood of an intestate in order to inherit from him had been retained in contemporary practice. By contrast, on the subject of inheritance by illegitimate children, the Roman law had won out. Here he recorded that ‘Saxon law’ had been superseded. Because of its ‘wickedness’, it had been displaced by the ius commune.Footnote ¹³ Tellingly, Duck noted that even in many of the situations where the Saxon law had been retained, it was being interpreted according to principles drawn from the learned laws. This process of interpretation meant a great deal in fact. Some of the cities in northern Germany had all but abandoned the letter of their old laws by means of applying rules of interpretation drawn from civilian traditions.Footnote ¹⁴ The picture was not uniform, however: there was variety and many areas had gone only part-way in the process of ‘Reception’. Duck dealt with both.

Something of the same patience with diversity animated Duck's treatment of the law applied to Italian cities and principalities, the subject that followed. Here he was faced with a mass of statutes, consilia and decisiones, and other works of local praxis. He mastered this literature, drawing upon it selectively to describe the laws of Rome, Venice, Florence, Milan, Lucca, Genoa, Urbino and Mantua,Footnote ¹⁵ and also larger areas such as Piedmont, Savoy and the kingdom of Naples. Duck tells us that in all these places the strength of the ius commune had been tested and sometimes overtaken by the enactment of local statutes. Unlike Germany, the starting point in Italy had been the inherited Roman law, but it too had been subject to change. In describing the resulting situation, Duck again had a mass of literature at his disposal – for example, the Decreta seu statuta vetera Sabaudiae ducum et Pedemontii principum (1586) by Giovanni Nevizzano, the various descriptive works by Pierre d'Avity (1573–1635) and many legal works such as the one devoted to practice in the Milanese courts compiled by Giulio Cesare Ruginelli (d 1628).Footnote ¹⁶

By the time that Duck was writing, the production of such works – perfectly suited for the interests of a comparative lawyer – had grown to the point where one or more of them existed for almost every legal centre in Europe. They contained a kind of balance between municipal law and the ius commune, and Duck assessed the relative importance of both in each geographical area he discussed. His principal theme throughout, however, was the enduring strength of the civilian heritage shared by virtually all European cities and provinces. Local statutes were rightly interpreted according to principles found within Roman law; if a city's statutes punished an action without qualification, for example, they would nonetheless be read to require malicious intent in accordance with requirements supplied by the ius commune.Footnote ¹⁷ Italy was not the sea of undifferentiated Romanism we sometimes imagine it to have been, but its many parts were united by the common heritage of Roman law that it was Duck's aim to describe.

Duck's discussion of French law followed.Footnote ¹⁸ As he described its history, the reign of Roman law there had been impeded by several obstacles: the French kings' traditional insistence that they were sovereign in their realm, the division of the kingdom into the pays de droit écrit and the pays des coutumes, and the lasting prestige of the Salic law. These forces never meant, however, that Roman law was confined to a small corner of French legal life. Even in the north, it had influenced customary law; parts of that law were in fact of Roman origin; Roman law supplied the relevant law where the customs were silent or ambiguous, and it had inspired royal interventions to improve the administration of justice throughout the realm. The French law of restitution, for example, had arisen from royal and professorial efforts – a product ultimately of the ius commune.Footnote ¹⁹ ‘And thus’, Duck concluded, ‘the Roman law became the Gallic law’.Footnote ²⁰ It is probably superfluous to add that his treatment of this subject was based upon a full (and fully referenced) familiarity with the works of French jurists, the finding of which requires an effort for modern readers. To support the conclusion just stated, for instance, he cited Bernard Automne, Conference du droit françois avec le droit romain (1629), Étienne Pasquier, Les Recherches de la France (1596), and Guillaume Ranchin, Variae lectiones (1597).

A note such as this one can only illustrate a few of the details; it cannot do justice to the scope of Duck's research into the history of European legal systems and it does not reach most English developments. It must be enough to add only that the chapters that followed took up the laws of Spain, Portugal, England, Ireland, Scotland, Poland, Sweden and Denmark, and Bohemia. To all of them he applied the same method that he had used for the more familiar lands of western Europe. In all of them, he mined the relevant local legal literature. Who would have supposed that an English lawyer in 1650 should have interested himself in the details of the laws of Poland or of the Commune of Genoa? But Duck did, and he had a fair selection of works on the subject upon which to draw.Footnote ²¹

The entry for Dr Duck in the Oxford DNB rightly praises the De usu iuris civilis as Duck's ‘great work’. The entry's coverage of the book's contents is quite brief, however – at least in comparison with its treatment of the various offices that Duck held – and it ends rather blandly by describing the book as ‘based on the best authorities’. That statement is true enough, but it does not convey either the magnitude of Duck's accomplishment or the amplitude of his learning.