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English Legal Authors Before 1700

Published online by Cambridge University Press:  16 January 2009

H. A. Hollond
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Extract

The following summary is based on notes compiled, like the common place books of old, for personal use. As the Editor was so good as to express the opinion that such a thing would be useful to the readers of this journal I have prepared it for publication.

Type
Research Article
Information
The Cambridge Law Journal , Volume 9 , Issue 3 , November 1947 , pp. 292 - 329
Copyright
Copyright © Cambridge Law Journal and Contributors 1947

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References

1 Maitland's brilliant History of English Law before Eauard 1, with which the name of Pollock is associated, is cited, according to practice, as P. & M.

2 Holdsworth's History of English Law, in twelve volumes, is cited as H. E. L. Part of Holdsworth's, work on the lives and writings of legal authors is reproduced in his Sources and Literature of English Law, Oxford, 1925Google Scholar, and in Some Makers of English Law, Cambridge, 1938.

3 Cited as D. N. B.

4 P. & M. J, 163.

5 Holdsworth's account of Bracton in H. E. L., Vol. II, pp. 232–290, is most valuable. Maitland has written about Bracton in two introductions, the first to Bracton's Note Book, the second to S.S. Vol. 8, Bracton and Azo.

6 P. & M., I, 206.

7 Bracton's Note Book, Vol. I, pp. 1, 8 and 44.

8 Bracton and Azo, pp. xxviii–xxix.

9 (1703) 2 Lord Raymond, 909.

10 The Dissiertatio ad Fletam is an historical account in Latin of English medieval law books, and of the influence of the Roman and canon laws on continental and English legal development. It has been edited and translated by Mr. D. Ogg, Camb. Univ. Press, 1926.

11 F. M. Nichols, 1865. See his Introduction for speculations as to the authorship of the book and a description of its contents.

12 Reports, Part X, Preface. Coke states that Littleton was much helped by Prisot in the preparation of his Tenures.

13 Y.-B. 15 Edw. Il l (R. S.) 392.

14 Y.-B. 33–35 Edw. I (R. S.) 83.

15 H. E. L., II, 550. See too S. S. Vol. 20, p. 196.

16 Camb. Univ. Press.

17 H. E. L., II, 324–326.

18 His authority is a MS. in the Cottonian Library. H. E. L., II, 514.

19 Maitland concludes that the evidence does not justify an ascription of authorship to Andrew Horn, fishmonger and Chamberlain of the City of London, though he is not completely cleared from suspicion.

20 Vol. 7. The editor was W. J. Whittaker, whose personality and gifted talk made him much loved in Cambridge and in Lincoln's Inn.

21 Winfield, 279–286.

22 Extract from Maitland's article on Canon Law, written for Renton's, Encyclopaedia of the Laws of England, 1897Google Scholar, and reprinted in Collected Papers, Vol. III. This article is a descriptive bibliography of the principal literature of the canon law.

23 Dr. Chrimes dismisses as legendary the tradition that Fortescue was an undergraduate at Exeter College, Oxford.

24 Students of this subject should not miss the article published by DrSkeel, Caroline A. J., in Transactions of the B. Hist. Soc., Third Series, Vol. X (1916)Google Scholar.

25 (1942) Camb. Univ. Press.

26 I owe the references to St. Germain and Coke to Skeel, op. cit., pp. 90 and 93. Doctor and Student, Dialogue 2, Cap. 46; Coke's Reports, Part VIII, Preface.

27 For short summaries of this book, and of the others, see Winfield, 315–318.

28 Oxford, 1885.

29 Sources and Literature of English Law, 130–137.

30 (1903) Washington, D. C.

31 For details as to the evidence of authorship, see Winfield, 206–214.

32 Winfield, 205.

33 An English translation was produced in 1915 by an American lady, M.C.Klingelsmith, in 2 vols., published bv Boston Book Co.; Winfield, 214.

34 Winfield, 217–218.

35 Foss, Vol. V, 169, gives the following list: The Office and Authority of Justices of ihe Peace: The Office of Sheriffs, Bailiffs of Liberties, Escheators, Constables, and Coroners: The Diversity of Courts: Of the Surveying of Lands: The Book of Husbandry. But Holdaworth says (H. E. L., IV, 212, note 2) that there seems to be no sufficient ground for attributing The Diversity of Courts to Fitzherbert.

36 The first was Statham: the second, the Year-Books of Assizes Abridged, 1509 or 1610, possibly by Sir William Callow, J.; the fourth, Brooke, Winfield, 200–237.

37 Cowley, pp. xlvii, xlviii.

38 Hale recommended it as one of the first books for students. Preface to Rolle's Abridgment.

39 In a paper read at the Berlin Historical Congress, and printed in the L. Q. R., October, 1908. It is in Vol. II of Vinogradoff's Collected Papers, p. 180.

40 Quoted, Vinegisdoff, p. 192.

41 A mistake for opieikeicm.

42 In his cemmentary on Bocks X, XI, XII of Justinian's Code. See Ullmann, , diuel ldea of Law, 1946, p. 41Google Scholar.

43 Some Makers of English Law, 95–99.

44 Bishop Thomas Goodrich, Dec. 1551–Aug. 1553; Bishop Stephen Gardiner, Aug. 1553–Nov. 1555; Archbishop Nicholas Heath, Jan. 1566–Nov. 1558; Bishop John. Williams, July 1621–Nov. 1625.

45 H. E. L., II, 222–224; Some Makers of English Law, 99.

46 From the Life of More by his son-in-law Roper: quoted H. E. L., V, 341–342.

47 More was canonized by the Roman Catholic Church about 400 years after his execution.

48 Chambers' Thomas More, 140.

49 D. N. B.

50 See Cowley's Introduction.

51 There is much information about the Rastells, father and son, in Early Tudor Drama, by A. W. Reed, and in Thomas More, by R. W. Chambers.

52 William Fulbeck, Direction to the Study of the Laws, 27, 28, quoted Winfield, 233.

53 H. E. L., II, 345.

54 H. E. L., V, 394.

55 A biography of Smith was written by John Strype, 1643–1737. There is a life in the D. N. B. by A. F. Pollard, and an account of Smith' academic career in Mutlinger's History of the University of Cambridge.

56 Appendix A in Alston's edition, 1906.

57 Pp. viii–xi.

58 Published in the year of its delivery, 1901, by the Camb. Univ. Press. Reprinted in Vol. I of Select Essays in Anglo-American Legal History, 1907.

59 Reginald Pole, 1500–1558, Cardinal 1536, Archbishop of Canterbury 1556–1558

60 H. E. L., V, 372. Veeder, The English Reports, Harvard L. R. Vol. 15. pp. 1–24, and Essays in Anglo-American Legal History, Vol. II, pp. 128–130.

61 John Hacket in his life of Williams, 1693, says: ‘These notes I have seen, but are lost, as it is to be feared, in unlucky and devouring times.’ Quoted H. E. L., V, 235, n. 2.

62 H.E.L., V, 231–235, 271–273, 478.

63 Lord Campbell gives some account of this case in his Lives of the Lord Chancellors.

64 1 Chancery Reports. 1–16.

65 1942, Huntington Library, San Marino, California.

66 L. Q. R., July, 1944.

67 H. E. L., V, 423–493. It is surprising, in view of the dramatic character of Coke's life that no standard biography of him has been writte. A popular biography, written by Hastings Lyon and Herman Block of the New York bar, was published by Houghton Mifflin Co., U.S.A. in 1929. Unfortunately it gives no references.

68 ProfessorPlucknett, has accounted for the irregular distribution of Coke'materin'. in The Genesis Coke's Reports Cornell Law Quarterly, 02. 1942Google Scholar.

69 H. E. L., V, 467.

70 Hargrave was a great friend of Lord Tburlow and devilled for him. His fine collection of legal MSS. is in the British Museum. He published a number of writings by deceased lawyers in Law Tracts and in Collectanea Juridica.

71 Butler, was a real property lawyer of the highest eminence, who was the first Roman Catholic to be called to the bar in pursuance of the Catholic Belief Act, 1791Google Scholar.

72 Maitland, Collected Papers, III, 453.

73 Garland v. Jekyll, 2 Bingham, 296. William Draper Best, 1767–1845, was C.J.C.P., 1824–1829; Cr. Baron Wynford on Retirement.

74 Coke was never a peer. A number of eminent judges used by custom to be referred to by their surnames with the prefix Lord. E.g., Bacon was often called Lord Bacon though his titles were Baron Verulam, and Viscount St. Albans. And Sir John Holt, C.J.K.B., 1689–1710. was often called Lord Holt.

75 Vol. I, 116.

76 Vol. II, 205.

77 Many lives of Bacon have been written. The two most recent are by Charles Williams (1932) and Mary Sturt (1932). The classic life is that by James Spedding (1808–1881)published with Bacon's letters in 7 vols. (1861–1874). Spedding (with B. I., Ellis and D. D. Heath) also edited the works of Bacon in 7 vols. (1857–1859).

78 Bertrand Russell, History of Western Philosophy.

79 H. E. L., V. 394–398. This was a double reading delivered in the Lent Vacation, 1600. We have only a part of it which was first published in 1642: republished with commentary in 1804 by Bowe.

80 Holdsworth's very interesting account of Bacon's views on the re-statement of the law is given in H. E. L., V, 486–489. It is unfortunately out of place, at the end of his account of Coke's writings.

81 H. E. L., V, 398, 498–499. The book of Maxims is in Vol. VII of Spedding's ed. 309–387, with an account of the circumstances of its publication. Bacon states in the preface that he had collected 300 maxims, but that ‘I thought it good, before I brought them all into form, to publish some few.’

82 The second part was the Novum Organum, 1620, a guide to the interpretation of nature. Bacon sketched out a scheme of further parts of the Instauratio Magna, but the filling in of the sketches was very fragmentary. The New Atlantis, written in English and published after his death, was a description of a country in which his principles of scientific inquiry should be recognized.

83 I give here a paraphrased translation of Aphorism 6.

84 H. E. L., V, 250. For a description of the principal subject-matter of the aphorisms, see pp. 248–250.

85 Holdsworth, in H. E. L., V, 253, states the principal topics dealt with in the orders. The text of the orders of 1619 is given in Bacon's Works, Spedding's ed. VII, 759–774, and in Sanders, Chancery Orders I, 109–122. The text of the 1620 orders is in Sanders, I, 129–131.

86 H. E. L., V, 131–135.

87 H. E. L., V, 17–20, 58–60.

88 H. E. L., 407–412. Two articles by Professor Hazeltine in Harvard Law Review, xxiv, 105, 205.

89 H. E. L., V, 375–378.

90 H. E. L., VI, 574–595. The standard life is that by Gilbert Burnet (1643–1715), Bishop of Salisbury, author of History of his own Times. There is a short account in the Ist Earl of Birkenhead's Fourteen English Judges.

91 H. E. L., VI, 537, 552, 605. Holdsworth quotes from Davidson's Precedents the statement that ' no one holds a more conspicuous station in the annals of conveyancing.

92 H. E. L., V, 391–392, 397.

93 H. E. L., VI, 606. One of the books was on the subject of actions on the case for slander, the others covered a wider field.

94 The word ‘assurance’ is an old-fashioned synonym of ‘conveyance.’

95 In H. E. L., VI, 563–571, Holdsworth quotes freely from the Lives of the Norths, I, 293–296, and III, 90–93.

96 H. E. L., VI, 571.

97 Williams', Edward Vaughan son, Roland, (1838–1916), became a High Court judge in 1890, and a Lord Justice of Appeal in 1897; the latter's son, Roland, became a K.C. in 1913Google Scholar.

98 In the fifth edition, John Patteson, afterwards (1830–1852) a judge of the K.B., collaborated.

99 Holdsworth gives accounts of him; shortly in Some Makers of English Law, 216–222, and fully in H. E. L., XII, 646–661. ProfessorDavies, Llewellyn has also written about him in two papers: Transactions of the Grotius Society, XXI, 149, and British Year Book of International Law, 1934, 21Google Scholar.

100 By Wheaton, Henry (1785–1848), American lawyer, author of Elements of International Law (1836)Google Scholar.

101 The other two are William Scott, Lord Stowell (1745–1836), and Dr. Stephen Lushington (1782–1873).

102 H. E. L., VI, 494, 619. The best known edition of the Lives of the Norths is that of 1826; there is an edition of 1890, with the autobiography.

103 H. E. L., XII, 361–362, XI, 304–305; Winfleld, 325–326.

104 Commentaries, III, 268–269.

105 The admission registers of the Middle Temple record that a Richard Francis was admitted 30th June, 1719, and was called 15th May, 1724. He is described as son and heir of John Francis, Sac. Theol. Doc., Dublin.

106 Principles of Equity by Edmund Henry Turner Snell was first published in 1868. The editor of the 22nd edition, 1939, was H. Gibson Rivington.

107 A Festschrift in honour of Henry Bond, William Warwick Buckland, and Courtney Stanhope Kenny. My sketch is almost entirely based on Professor Pound's article, ‘On certain maxims of Equity’.

108 I Cases in Chancery (1660–1688), 97.

109 Joseph Story, 1779–1845, was Associate Justice of the U.S. Supreme Court, 1811–1845, and Professor of Law in the University of Harvard, 1829–1845.

110 I Cases in Chancery, 202.

111 Dering v. Earl of Winchilsea, I Cox Equity, 318, at p. 319.

112 Hixon v. Wytham, I Cases in Chanoery, 248. Lord Nottingham's name when at the bar was Heneage Finch.

113 P. 690.

114 Smith v. Clay, 1767, 3 Brown's Chancery Reports, note on p. 638.

115 Digest, 50, 117, 128.

116 Oxwith v. Plummer, 1708, Gilbert, 13, 15.

117 Co. Lit., 197 b.

118 6 Coke's Reports, 58 b.

119 1703, 2 Lord Raymond, at p. 953. SirHolt, John was C.T.K.B., 1689–1710Google Scholar.

120 They are:—It is equity that he should make satisfaction which received the benefit; I t is equity that he should have satisfaction which sustained the loss; Eq1uity relieves against accidents; Equity prevents mischief; Equity prevents multiplicity of suits; Equity will net suffer a double satisfaction to be taken; Equity suffers not advantage to be taken of a penalty or forfeiture, when compensation can be made.

121 See Professor Pound's interesting account of these three maxims, pp. 269–273.

122 Dialogue I, Chs. 19, 20, 25; Dialogue II, Ch. 15.

123 Digest, 50, 17, 98.

124 Guidot v. Guidot, 1745, 3 Atkyns, at p. 256.

125 Toler v. Carteret, 1705, 2 Vernon, 493; aequitas agit in personam.

126 P. 426.

127 P. 276.

128 Neither of the lists in H. E. L., XII, and the D. N. B. is complete. The number of publications is about twenty, mostly legal.

129 iii, 149–150; quoted in D.N.B.

130 P. xci.

131 H. E. L., XII, 191–192, 222–237.

132 H. E. L., XII, 140–141. While C.B. of the Exchequer in Ireland he and the other members of his court were imprisoned because they had obeyed orders of the English H.L. conflicting with those of the Irish H.L. Ib., p. 140.

133 H. E. L., XII, 355, 366–671, 186–188.

134 H. E. L., XII, 352, 182–183.

135 H. E. L., XII, 169–170.

136 H. E. L., XII, 168; Winfield, 245; Cowley, lxiv.

137 H. E. L., XII, 169, 393, 172.

138 Cowley, lxiii. Ruffhead (1723–1769) produced a well-known edition of the Statutes.

139 There were at least seven American editions in the nineteenth century, the last in 1876.

140 —Holdsworth has told briefly the curious story of the printing and publishing of Viner's Abridgment in H. E. L., XII, 164–168, and has written more fully in L.Q.R., XXXIX, 20–23, 35–36. There is also an account of the subject by Strickland Gibson in Vol. II of the Proceedings and Papers of the Oxford Bibliographical Society.

141 In that year a member of Lincoln's Inn, possibly Robert Kelham, published a concordance of Abridgments, ‘chiefly calculated to facilitate the references to the General Abridgment of Law and equity by Charles Viner, Esq.’

142 Note to Co. Lit. 9a.

143 P. 245.

144 H. E. L., XII, 332–334, 328–329, 612–613.

145 H. E. L. XII, 135–137.

146 Yorke, Philip (1690–1764), C.J.K.B. 1733–1737Google Scholar; L.C. 1737–1756; cr. Baron Hardwieke 1733; cr. Earl 1764.

147 The Hon. William Murray (1705–93), yr. son of Viscount Stormont; C.J.K.B 1756–1788; cr. Baron Mansfield 1756; cr. Earl 1776.

148 Churchill, Charles (1731–1764), Rosciad, 9th ed., p. 13Google Scholar.

149 History of the Criminal Law (1833) Vol. II, 213Google Scholar. The passage is quoted in full in H. E. L., XII, 137.