## Appendix A History

OF ENGLISH LAW

BY

W. S. HOLDSWORTH, K.C., D.C.E.,

Vinkman fringe-sor of ENGLISH LAW IN THE UNIVERITY OF OXPOIN: FELLOW OF ALL SOULK COLEGER, OVERHRI; IATE FILLOW OF ST. JOIN'S COLING, EXROWN ; FOREIGN ASSOCIATE

OF THE Royal Belgian Academy; FELLOW OF THE BRISH AGADERV

VOLUME V

To say truth, although it is not necessary for counsel to know what the history of a point is, but to know how it was stands resolved, yet it is a wonderful accomplishment, and, without it, a lotter cannot be accounted learned in the text.

Roer North

METHUEN & CO. LTD.

36 ESSEX STREAT. W.G.'

LONDON_Fitness 1-III\_

\_Fers Philishish . .

The Right Honoclinic Friedrich Edwism

EARL OF Birkismand

**SOMETIME Lord high ciancellor of great Britain**

**This work**

**W** **HIS LOIGSIHP's permission**

**HSEECTFULLY HEDUATED**

PLAN OF THE HISTORY

(Vol. 19) BOOK I.--The Judicial System: Introduction. Chap. I. Origins. Chap. II. The Define of the Old Local Counts and the Rise of the New County Courts. Chap. III. The System of Common Law Jurisdiction. Chap. IV. The House of Lords. Chap. V. Th'Chancery. Chap. VI. The Council. Chap. VII. Courts of a Special Jurisdiction. Chap. VIII. The Reconstruction of the Judicial System. (Vol. II.) BOOK II. (+++-to66)--Anglo-Saxon Antiguities: Introduction. Part I. Sources and General Development. Part II. The Rules of Law': SS I The Ranks of the People; SS 2 Criminal Law; SS 3 The Law of Property; SS 4 Family Law; SS 5 Self-help; SS 6 Procedure. BOOK III. (+to66-t485)--The Medieval Common"Law: Introduction. Part I. Sources and General Development: Chap. I. The Intellectual, Political "Legal Ideas of the Middle Ages. Chap. II. The Norman Conquest to Magna Carta. Chap. III. The Region of Henry III. Chap. IV. The Region of Edward I. Chap. V. The Fourteenth and Fifteenth Centuries. (Vol. III.) Part II. The Rules of Law: Chap. I. The Land Law; SS 1 The Real Actions; SS 2 Free Tenure, Unfree Tenure, and Chatters Real; SS 3 The Free Tenures and Their Incidents; SS 4 The Power of Alienation; SS 5 Seisin; SS 6 Estates; SS 7 Incorporated Things; SS 8 Inheritance; SS 9 Curtsey and Dower; SS 10 Unfree Tenure; SS 11 The Term of Years; SS 12 The Modes and Forms of Conveyance; SS 13 Special Customs. Chap. II. Crime and Tort: SS 1 Self-help; SS 2 Treason; SS 3 Benefit of Clergy, and Sanctuary and Abiuration; SS 4 Principal and Accessory; SS 5 Ofences Against the Person; SS 6 Possession and Ownership of Chatels; SS 7 Wrongs to Property; SS 8 The Principles of Liability; SS 9 Lines of Future Development. Chap. III. Contract and Quasi-Contract. Chap. IV. Status: SS 1 The King; SS 1 The King; SS 2 The Incorporate Person; SS 3 The Villains; SS 4 The Infant; SS 5 The Married Woman. Chap. V. Succession to Chatels: SS 1 The Last Will; SS 2 Restrictions on Testation and Intestate Succession; SS 3 The Representation of the Deceased. Chap. VI. Procedure and Pleading: SS 1 The Criminal Law; SS 2 The Civil Law. (Vor. IV.) BOOK IV. (++-to85-to0)--The Common Law and Its Rivals: Introduction. Part I. Sources and General Development: Chap. I. The Sixteenth Century at Home and Abroad. Chap. II. English Law in the Sixteenth and Early Seventeenth Centuries: The Enacted Law. (Vol. V.) Chap. III. English Law in the Sixteenth and Early Seventeenth Centuries: Developments Outside the Sphere of the Common Law--International, Maritime, and Commercial Law. Chap. IV. English Law in the Sixteenth and Early Seventeenth Centuries: Developments Outside the Sphere of the Common Law--Law Administered by the Star Chamber and the Chancery. Chap. V. English Law in the Sixteenth and Early Seventeenth Centuries: The Development of the Common Law. (Vor. VI.) Chap. VI. The Public Law of the Seventeenth Century. Chap. VII. The latter Half of the Seventeenth Century: The Enacted Law. (Vor. VII.) Part II. The Rules of Law. Chap. I. The Land Law; SS 1 The Action of Element; SS 2 Seisin Possession and Ownership; SS 3 Contingent Remainder; SS 4 Executory Interests; SS 5 Powers of Appointment; SS 6 The Rules Against Perpetuities; SS 7 Laudlord and Tennant: SS 8 Coproids; SS 9 Incorporated Things; SS 8 Lo Conveyancing; SS 8 The Unterpretation of Conveyances. Chap. II. Chatels Personal: SS 1 The Action of Trover and Conversion; SS 2 The Ownership and Possession of Chatels; SS 3 Whoses in Action. Chap. III. Contract and Quasi-Contract; SS 1 The Doctrine of Consideration; SS 2 The Invalidity, the Enforcement, and the Discharge of Contract." SS 3 Quasi-Contract. Chap. IV. The Law Merchant. ,I.--Commercial Law: SS 1.1.1.1.1.2.3.4.5.6.7.8.9.9.9.1.1.1.2.6.7.8.9.9.1.1.2.7.8.9.1.

CONTENTS

PAGR

Plan of the History

List of Cases

List of Statutes

BOOK IV (Continued)

The Common Law and its Rivals

PART I (Continued)

sources and GENERAL DEVELOPMENT

Chapter III

English Law in the Sixtenth and Early Seventeenth Centuries$-$ (Continued)

Developments Outside the Sphere of the Common Law

Plan of this and the following chapter

I. The civilians and their activities

. The administrators, lawyers, and judges

. The literature of the civil law

. Some international law books

. The 10-11

. Welwool,borough, and Selden

. The 11-12

. Books on maritime and commercial law

. The 12-15

. Books on ecclesiasticl law

. The 15-16

. Books on legal theory--why written by civilians rather than com-

## Contents

- 1 Idea that there is a distinction between combatants and non-comhatants

- 2 Other topics connected with International Law

- 36-39 Peace is in theory the normal condition

- 4 Means of peacefully settling disputes

- 5 Idea that there is a distinction between combatants and non-comhatants

- 6 Other topics connected with International Law

- 7 Peace is in theory the normal condition

- 8 Means of peacefully settling disputes

- 9 Idea that is as to Balance # power and embassies

- 10 The Necessities of the Territorial State

- 32 \*
  CONTENTS

PAGE
The Gilds and the Mercanzia . . . . . . 69

The Officium Mercanziae . . . . . . 69-70

The Genan Officium Gazarive . . . . . . 70

The Pisun Curia Maris . . . . . . . 70

Barcelona and the Consolato del Mare . . . . . 70-71

Other towny . . . . . 71

Law dependent on mercanii: custon: . . . . 71

Evolution of the law by these organizations . . . . 72-85

Orders issued by these bodies . . . . . 72-73

Treatises securing privileges fee their citizens . . . . 73-75

Reprisals . . . . . . 74

Consules Hospitales . . . . . . 74

Gerns of private international law . . . . . 74-75

Uniformity of commercial statutes--the emendatori . . 75

Wide jurisdiction of these bodies . . . . . 75-70

The law which they applied . . . . . 76-84

The main elements . . . . . . 76-77

P Basilicas and Rhodian sea law . . . . . 77

Influence of the Roman civil law . . . . 77-79

Technical language--the Notaries . . . 78-79

The law of obligations . . . . . 79

Influence of the canon law . . . . . 79-80

On the whole beneficial . . . . . 30-81

Especially on procedure . . . . 81

The Decretal _Sape Contingri_

Its interpretation . . . . . 82-83

Mixed tribanks of merchants and lawvers . . . 83-84

Branches of the law thus evolved . . . . . 84-85

Reception of those ideas by Northern Europe . . . . 85-102

Commercial Law . . . . . . 85-100

The market and market law . . . . . 85-86

Of towns and gilds . . . . . 86-90

Origins--periodic markets . . . . . 86-88

Permanent markets . . . . . 88-90

Fairs and associations of foreign merchants . . . 90-93

The cosmopolitan fairs . . . . . 90-91

Their decay . . . . . 91

Companics of foreign merchants . . . . 92-93

Their influence . . . . . 93

Rcmoval of hindrances to trade . . . . 93

Cause growth of commercial tribanks . . . 93-90

Caus spread of Italian commercial law . . 90-100

The money changers . . . . 96-97

The Societa . . . . . 97

Usury . . . . . 61

Bankruptcy procedure . . . 97-98

Judgments--the _defears des faires_

. 98

Prachases from a non-owner . . . 98-90

Make commercial law cosmopolitan . . . 99-100

Maritime Lor-$\\nu$ . . . . . 100-102

The cod$\\varsigma$ . . . . . . 100-101

Maritime courts . . . . 100-101

Growing simil-ality in rules of law . . . 101-102

The Beginnings of English Co:mercial and Maritime .aw . . 102-154

How foreign doctrine yes received . . . . 102

The Medieval Law Merchant in England . . . 103-129

Commercial Law . . . . . 103-120

" Port," " burth," and market . . . 103-104

The boroughs . . . . . 104-103

The fairs . . . . . 106-113

The piecpowder courts . . . . 106-108
CONTENTS

PAGE
The substantive law

**CONTENTS,** **XIII**

**CHAPTER IV**

English Law in the Sixteenth and Early Seventeenth Centuries-- (Continued)

Developments Outsipe the Sphere of the Common Law--(Continued)

page'

- The Law Administered by the Council and the Star Chamber . 155-214. Their executive and judicial functions . . . . . 155-150. Their effective procedure develops the criminal law . . . . 156. In this work the Star Chamber's most important . . . . 156. The records of the court . . . . . . 157-162. Growth of idea of a " court of record " . . . . . . 157-150. Newer courts denied this status . . . . . . . 159. Coke's views designed to cripple them . . . . . . 159-160. Their small effect in this period . . . . . . . 160-161. Carelessness with which its records were kept . . . . 161-162. Loss of its decrees . . . . . . . . . . . . 162. The reports . . . . . . . . . . . . 162-164. Hazard's collection . . . . . . . . . . 163-164. Other reports . . . . . . . . . . . . . 164. Books about the court . . . . . . . . . . . . . . 104-167. Hudson . . . . . . . . . . . . . . . . . 164. His book . . . . . . . . . . . . . . . 164-166. Lambard's Archcion . . . . . . . . . . . . . . 166-167. Crompton . . . . . . . . . . . . 166-167. Sir Th. Smith and Coke . . . . . . . . . . . . 167. The influence of the court on the development of English law . . . 167-214. Importance of its work in the law of crime and tort . . . 167-168. The influence of the procedure of the Star Chamber . . . 168-167. The civil and canon law--their influence on procedure abroad . . 168. Contrast between English and continental criminal procedure . . 169-167. English procedure needed strengthening . . . . . 169-167. Some continental ideas borrowed . . . . . . 170. The development of continental criminal procedure . . . . 170-176. French development typical . . . . . . 170. Canonical procedure _per investigation_. . . . . 170-172. Introduced into the secular courts . . . . . . 172. Torture . . . . . . . 173. Ordinary and extraordinary cases . . . . . . 173-174. The Ordinances of t498 and 1539 . . . . . 174-175. Why acquiesed in . . . . . . . 175-179. The English procedure . . . . . . . . 176-177. Ncal for reforms . . . . . . . . . . 177. Defects of the jury system . . . . . . . . 17. Little done by the legislature . . . . . . . 177-178. But uncertainty of rules makes developments by the courts possible . . . . . . . . . . 178. The Star Chamber procedure . . . . . . . . . 78-188. Like that of the Chancery . . . . . . . . 178. The Bill . . . . . . . . . . 178-179. The Defence . . . . . . . . . . 179-180. The Interrogatories add${}\_{2}$:ssed to the defendant . . . . . 180. Mannue of taking the examination . . . . . . 181. Further pleadings become obsolete . . . . . . . . 181. Examination of witnesses . . . . . . 181-182. Defects of methods employed . . . . . . . 182-183. But some rules have had a permanent influence . . . . . . . 183. Publication . . .

## Xiv

CONENTS

PAGE

Influence of common law and Star Chamber procedure on one another

Restriction of Star Chamber to non-capital cases

Effects of this

Common law procedure made more harsh

189

This was not impopular

Refusal of bal

Theapreliminary examination

Refusal of counsel to prisoners

**CONTENTS**

PAGE

His work as judge of the Court of Chancery - - - 232-235

Nature of equity in his day -

## Chapter 5 English Law in the Sixteenth and Early Seventeenth Centuries--(Continec!)

The Development of the Common Law

1. The Development of the Common Law

Influences which made for its growth

The Serjeants and the Judges

Change in the position of the Serjeants--formal appointments to

qualify for the Bench

Distinguished legal families

The Universities and the Inns of Court

The 34${}^{\\dagger}$-344

Literury lawvers

Effect on the law

Strength of the Bench in the Tudor period

Routine of the courts seldom affected by unusual events--some

exceptions

Or by the political and religious changes

Change in the seventeenth century owing to the constitutional

conflict

Judges dismissed for political reasons

Other forms of governmental pressure

Occasionally independent--but gradually become less so

Sale of legal pronations

Growing contempt for judges and the law

Law inevitably mixed up with politics in the seventeenth century

Decterioration of the bench

The Renders

Change from the Y.BB to the modern Reports

Characteristics of these reports

Table of the reports of this period

Table of the reports
CONTENTS. $

## Xviii

CONTEENTS

- PAGR

His intellectual characteristics

The character of his works on legal history

411-412

The Condition of the Common Law

The common law as compared with its rivals

412-415

Restatement and development of the mediaval law

Temures and esta:s

Crime and tort

A law of personal property is emerging

Certract

Commercial law

The law of persons

Exactors and administrators

Development of the law of pleading and evidence

419-420

Control over local authorities

Danger to the supremacy of the common law

Danger removed mainly by work and career of Coke

422-423

- Edward Coke, and the Relation of the Common Law to its rivals

The conflict between the common law and its rivals

- 3-424

Importance of Coke's career and literary work

Coke's Career and Character

Coke's Variety Career and Character

**CONTENS**

Coke's Influence on the Development of English Law

Cake's outlook was that of a Tudor statesman .

**XXii**

**LIST "OF CASES**

**D**

**LIST OF CASES**

G

FAGE

Gage's Case

Game v. Hoe

Gardiner v. Ugnall

Garford v. Humble

Gerges v. Chancic

Gerres v. Henton

Gerresy v. Henton

Gilford v. Tripcooney

Godfrey's Case

Godfrey v. Dixon

Golding v. Tuffin

Goodfellow v. Morris

Jackson v. Barrow

Jackson v. Spittal

Jackson v. Barrow

Grecin and Couterell's Case

Jackson v. Barrow

Grecvill v. Bowker

Jackson v. Barrow

Jackson v.

**XXIV**

**LIST OF CASES**

M

- PAGE
- Mackallen v. Tolderick
- M'Pherson v. Daniels
- M'Pherson v.

List of Cases

R

PAGE

Page

Raleigh, Sir Walter, Trial of

463

Ramsay v. Brulson,

140

281, 287

Batcliff's Case

414

Reading (Mayor of) v. Lan'

305

Sibson v. Fletcher

329

Reed v. Prior of Launceston

282

Sidenham v. Courtney

320

Reeve v.${}\_{\\pi}$Harward

321

Sidenham and Worlington's Case

417

Reee Inconsulto, Case de

247, 439

Sedgwick v. Evan

329

Rexet v. Rowe

320

Simons v. Lee

329

R. v. Atkins

.462

Simpson v. Simpson

311

R. v. Berchet

161

Slade's Case

465

R. v. Best

477

Slater's (William) Case

420

R. v. Burdett

119

Smith v. Crokew and Wright

209

R. v. Colborne

321

Smith v. Doughite

319

R. v. Grassley

420

Smith v. Gatewood

369

R. v. Keyn

25
Smith v. Hopton

318

R. v. Marsh

137

Smith v. Stafford

311

R. v. Sherington TaZot

414

Smith v. Watkins

206

R. v. Sorel

414

Somers and Buckley's Case

447

R. v. Taverncr

199

Somerset (Duke of) v. Psyn

282

R. v. Twine

418

South v. West

209

Rigeway's Case

457

Southall v. Peryn

333

Risclen v. Tuffin

306

Southuc's Case

410

Robert v. Harnage

140

Southern v. How

417

Rock v. Guntur

335

Specot's Case

477

Rogers v. Smith

322

Spring v. Upton

305

Rolfe v. Hampden

420

Stace v. Walker

204

Rommey or (Rumncy) v. Garnous

327, 334

Stanbridge v. Hales

336

Rose v. Bartlett

417

Stanhop and Bilith's Case

326

Rose v. Reinolds

326

Stanley v. Brareewell

318

Rooke v. Staples

305

Seward v. Jermyn

305

Rowden v. Marsden

416

Stoit v. Ayloff

311

Rowe v. Billing

317

Stone v. Newman

415

Russell v. Lead

322

Stowel v. Lord Zouch

List of STATUTES

PAGE

Magna Carta 339, 433, 451, 508, 511

32 Henry VIII. c. 14 . . . . . 135

3 F:dward I. c. 23 . . . . 74 34 " c. 23 . . . . 509

25 " c, 6 . . . 508 34, 35 " c. 26 . . . 509

34 " c. 1 (De Tullagio 35 " c. 2 - . . 49 non concedendo) . 508, 510, 511

1 Edward VI. c. 11 . . . 510

1 Edward III. St. 2, c. 5 . . 508 " " c. 12 . . . 509

1 ", " c. 6 . . . 508 13 Elizabeth c. 7 . . 150, 395

25 ", St. 3, c. 7 . . 350 31 " c. 4 . . . 193

27 ", St. 2, c. 17 . . . 35 43 " c. 12 . . 135, 150

", " c. 19 . . 112 1 James I. c. 10 . . . 255

6 Richard II. c. 2 . . . . 118 4 " c. 1 . . . 103

73 " St. 1, c. 5 . . 126 21 " c. 3 . . . 144

74 " c. 6 . . . 270 3 Charles I. c. 1 (The Petition of

75 " c. 11 . . . . 126 Right) 451-454, 508, 510

76 " c. 18 . . . 118 16 " c. 14 . . 508, 510

77 William III. c. 3 . . . 508

77 William III. c. 3 . . . 103

78 Richard III. c. 2 . . . 427 1 Anne c. 9 . . . . . 103

79 George III. c. 113 . . . 341

79 George IV. c. 21 . . 509 41 " c. 79 . . 115

80 " c. 3 . . 477 6 George IV. c. 95 . . . 341

815 " c. 21 . . . 115 6, 7 Victoria c. 90 . . . 115

82 " c. 10 . . 509 18, 19 " c. 41 . . . 206

83 " c. 15 . 127, 109 36, 37 " c. 66 . . . 340

84 " c. 8 . . 509

**BORK IV (Continued)**

(1485-1700)

**THE COMMON LAW AND ITS RIVALS**

## Chapter 1 Sources and General Development (Continued)

### 1.1.1 English Law in the Sixteenth and Early Seventteenth centuries (Continued)

The first one is the \_LAW IN XVTH AND XVITH CENTS.

civil equity1 peculiar to themselves. It follows therefore that the subject falls naturally into three parts :-

(1) Developments directly influenced by the reception of rules _and_ ideas of,the civil law.

(2) The law administered by the Council and Star Chamber.

(3) The equity administered, by the Chancellor.

With the first of these parts I shall deal in this chapter, and with-the second and third in the next.

We have seen that in the last half of the sixteenth century the civilians had become an organized body, and that the spheres of their activity were becoming settled.2 Some of these civilians, either by their professional or their literary work, did much to shape the development of the law. Therefore, by"way of introduction to my account of this development, I shall say something of the lives and works of the most notable of these men.3 I shall then describe the two most important branches of the law developed by these civilians--international law, and commercial and maritime law.

Footnote 1: And as the Chancery had the pretorian power for equity, so the Staf Chamber had the ceronian power for offences under the degree of capital,\*, Bacon, History of the Reign of Henry VII. ; "the Starie chamber, the schoole of England to punishle all fraude and practices, as the Chancery both all rigor and extremeie, the one a bridle, th'other e-a-," Hawarde, Les Reporters etc. 174.

Footnote 2: Except whefe otherwise stated I have relied on the statements in the Dictionary of National Biography, and gn Mr. Leadam's notes upon the lists of judges in the court of Re
Civilians and Their Activities 5 of that library circle which adorned Henry VIII.'s court in the earlier years of his reign.1 He served the king as ambassador, Keeper of the, Privy Seal, and President of the Council of the North; and held successively the sees of London and Durham. Rowland Lee, bishop of Coventry and Lichfield, was another civil servant of a similar type. He took his degree in Laws at Cambridge, and did good service as President of the Council of Wales. Stephen Gardiner, likewise, was a Cambridge doctor of civil and canon law, an ambassador, Lord Chancellor, and bishop of Winchester. Bonner, an Oxford D.C.L., served Henry VIII. as ambassador, before he was promoted to the sees first of Hereford, and then of London; and before he earned the reputation, which Fox has indelibly fastened upon him, of being one of the most active agents in the Marian persecutions. Layton, a Cambridge L.L.D., who became Dean of York, took a leading part in the enquiries which led to the dissolution of the monasteries. In Elizabeth's reign these administrative and diplomatic posts were still held by civilians in orders. The famous Sir Thomas Smith 2 was Dean of Carlisle. Wotton, who had studied the law in Italy, who was secretary of state, privy councillor, and an ambassador who epigramatically described ambassadors,3 with some difficulty escaped a bishop, and held the more congenial posts of Dean of Canterbury and York. ${}^{\\star}$Thomas Wilson, D.C.L., of the University of Ferrara, master of Requests, ambassador, secretary of state, and privy councillor, was Dean of Durham.

Footnote 1: Vol. iv 20-30, 41.

Footnote 2: ${}^{\\star}$ See vol. iv 20-210 for some accounts of his career.

Footnote 3: ${}^{\\star}$ Legatus est vir bonus peregre missus ad mentiendum reipulbice causa "- Law in xvlih and xvlih Cents.

earliest of these lay civilians was Carne, an Oxford D.C.I., who was acting as ambassador at Rome at Elizabeth's Succession, and prudently contrived that the pope should decline to allow him to return. Perhaps the most notable figure in the latter part of the sixteenth and earlier part of the seventeenth century is Dr. Julius Cassar.1, He was the 'son of the naturalized $J$ Italian physician, Caesare Adelmare, who had both Elizabeth and Mary among his patients. #Ic hgld the positions of judge of the Admiralty, paster in Chancery, master of Requests, chancellor of 'the exchequer, privy councillor ,and member of the Court of Star Chamber," master of the rolls, bencher and treasurer of the Inner Temple, and member of Parliament. The industry with which he applied himself to the duties of these various positions is proved by the $f$87 volumes of papers on different subjects which he compiled. Mr. Marsden says " that, " the care with which they have been arranged and indexed with his own hand shows that he was a man of great industry and methodical habits, whilst the importance and variety of their contents indicate that for nearly half a century his advice was sought and relied upon by the Government in matters of foreign policy." Among the most interesting of these papers are his defence of the legal position of the court of Requests,4 and his papers on international questions.5 There is another paper " Concerning the Private Council of the most high and mighty King of Great Britain, France, Scotland and Ireland,"6 containing brief observations on the component parts of the Privy Council and the officers thereof, which has not yet been published. Two other civilians, who were regularly consulted by the government, were Dr. Valentine Dale and Dr. Aubrey.7 Dale was a D.C.I., of Orleans and Oxford and I.L.D. of Cambridge, an advocate of Doctors' Commons, ambassador, member of Parliament, member of the Court of High Commission, and, with Cesar, commissioner to execute the post of Lord High Admiral during the vacancy of that post in 1584-1585. Aubrey was a fellow of All Souls, professor of civil law and D.C.I., of Oxford Civilians and Theiractivities 7

University, Judge advocate for the army in the campaign against St. Quentin, $icar-general to Grindal, chancellor to Whitgitt, a member of the Council of Wales, a master in Chancery, and a master of Requests. Both Dale and Aubrey, with other civilians, were consulted by the government in 1571 as to the case of the bishop of Ross, the ambassador of Mary Queen of Scots, who had been concerned in the plots against Elizabeth's life.1

Footnote 1: Below 45.

Footnote 2: Select Pleas of the Admiralty (S.S.) i, lix, lx ; ibid ii, xi, xii.

Footnote 3: Gardiner, History of England vi 28z-283; see ibid vii 3ro-311 for his regimentment at the action of Charles I, in 1633 in removing a case pending before him as Demoof the Arche as to the position of the communion table.

In the sphere of maritime and commercial law there are a succession of judges of the court of Admiralty, whose work is buried in the records of the court.2 Dr. Lewes,' fellow' of All Souls, first principal of Jesus College, master in Chancery and master of Requests, and member of Parliament, held the post for twenty-five years. He was succeeded by Julius Casar, who held the post during the remainder of Elizabeth's reign. Another distinguished civilian, who held that post and many others in the early part of the seventeenth century, was Sir Henry Marten. In the course of his career he was sent on an embassy to the Palatinate, acted on a commission to compose the differences between the English and Dutch East India Companies, and helped in the Laudian codification of the statutes of Oxford University. Besides being judge of the Admiralty he was also Dean of the Arches, and judge of the Prerogative court--as James I. once told him he was "A mighty monarch in his jurisdiction over land and sea, the living and the dead." What was perhaps more unusual in a civilian, he took a prominent part in the Parliament of 1628, as an advocate of moderate measures. He resisted the Lords' amendments to the l'etition of Right, but he voted against the proposal to ensure the Duke of Buckingham by name.3

Footnote 3: Vol. 1 593, 594; cp. Pollock, Essays ic the La Law in X With and Xviith CENTS.

made on him by Coke and his vindication by James L,1 on the famous occasion in 1608 when Coke maintained the supremacy of the common law.3 Another ecclesiastal lawyer, distinguished as a controversialist, was Dr. Cosin, an L.L.D. of Cambridge, advocate of Doctors' Commons, Dean of the Arches, and vicar-general.

Footnote 1: James told Coke that Crompton was as good a man as he was, "Coke having by way of exception used some speech against Thomas'-prompton," Letter from John Hercy to the Earl of Shrewsbury cited E.H.R. xviii 669; see Senior, Doctors' Commons and the Old Couse of Admiralty 8g.

Footnote 2: Below 430-431.

Footnote 3: Ranke, History of England iii 37-38.

Of those who held the positions of judge advocate general the best known is perhaps the Dutchman Dorislaus.$\\bullet$. He was judge advocate to Charles I. in 1640 ; and to Essex, the commander of the Parliamentary forces, in 1642. He took some part in the trial of Charles I., and thereby earned the hatred of all royalists. Having been sent as envoy to the United Provinces, some Scotch royalists attacked him in his inn and murdered him.3 Arthur Duck also, besides acting as chancellor in two dReceses and as master in Chancery, was king's advocate in the Earl Marshal's court. As we shall see, his fame rests chiefly on his literary work.4

Footnote 4: Below 42-45.

Very many of these civilians, and others besides, acted at some period of their career as masters of Requests and masters in Chancery ; 5 and through them the civil law may have had some influence, if not upon the law administered, at any rate upon the development of the forms of the procedure used in those courts.6 All of them, in their different capacities, helped to define and settle the sphere occupied by the civil law, and the form and application of its rules. We shall now see that their efforts were assisted by the books which were written during this period on most of the departments of the civilians' practice, on the theory of the law, on the relation of the civil law to the common law, and on the history of the civil law.

Footnote 7: That, a large number of the masters in Chancery were at this period civilians it clear from the lists of the masters given by Foss in vols. v and vi of his Lives of the judges; for an account of some of them see below 257-261.

Footnote 8: Vol. ii 28 n. i. below 258.

Footnote 9: A separate dScGenti, hetre science ac developpe en Angleterre," Lys, Les Originesdu Druti International 133.

(2) _The literature of the civil law._ _ _The department of law on which there was the most abundant literature was the new international law. Nys tells us that, in the last years of the sixteenth century, the books of Englishmen took a leading part in the development of the law._ \_Of the works of the two most important writers, Gentili and Zouche, I shall

**Civilians and their activities 9**

**peak at** **length when I come to deal with the history of international law in** \*\*this country.\*\***1** **Here I shall only notice briefly a few of the less important books on this subject.**

**$\\bullet$** **In** 1589 **and** 1591 **appeared two translations of a book entitled** _Instructions sur le faict de la guerre_ **by Raymond de Beccaria of Pavia.** **The first translation was made by Paul Ive and was called** _Instructions for the Warres._ **The second was made by John, Eliot from a French translation of the original, and was called** _Discourse of Law and Single Combat._**2** **In** 1593 **Matthew Sutcliffe produced an original book** **gn the same subject entitled** _The \*\*?practice, Proceedings and Lawes of Arnes._**3** **This Sutcliffe was a Cambridge L.L.D. and one of the clerical civilians. He was a theologian who had conducted controversies with Bellamin Parsons and Garnet, Dean of** **?xeter, the founder and principal of the short-lived theological college of Chelsea to which James I. was a liberal patron, and a member of Doctors' Commons. The book does not, like some of the older works on this subject, enter at length into a proof of the legitimacy of war; but it deals at length with its justifiable causes. It must be waged by the authority of the sovereign, and without unnecessary cruelty. He deals with the treatment of prisoners, the qualities of a general, the recruiting, pay, and discipline of the troops. Fulbecke, a member of Gray's Inn, who wrote a masque, a history, and a volume on Christian ethics, besides some law books of a discursive and original type,4 devoted some chapters of a brief and rambling work, entitled** \_The **?andetes of the Law of Nations,5 to the consideration of certain points connected with the laws of war, leagues, embassies, and the unrighteousness of war against infidels. Richard Bernard, a puritan divine, discussed some points connected with the same subject in a book entitled** \_Bible Battels or the Sacred Art Military.\_6\*\*

Footnote 1: Below 52-55, 58-60.

Footnote 2: **Nys, op. cit. 133-134:**

Footnote 3: **Ibid 134-136 ; it was dedicated to Essex; see also Dict. Nat, Biog.; Raleigh also published** \_A Discourse of the Original and Fundamental Cause of Natural, Customary, Voluntary and Necessary War; but as Nys says, ibid 136, "Il me contient rien de fort interessant comme doctrine."\*\*

Footnote 4: **Below 22-24:**

Footnote 5: \*\*The full title is "Th.Pandetes of the law of nations : contayning several disclourses of the questions, ?Law in Myth and Xviith Cents.

therefore the part upon which authority was most abundant. It was the topic on which Gentili wrote his most important book.1 There were, however, one or two books published on other parts of the subject. Gentili wrote on Fimbassies ;2 and in I587 a tract (inspired probably by the case of Mendoza) appeared at Oxford entitled _De Legada et absoluto principe peradjionis reca.3_ Zouche,4 too, as we shall see, has much to say on all questions both of peace,and ,war.4 But, with these exceptions, the only other class of literature on this subject are three books which deal with the English claim to the sovereignty over the four British seas. Two of these books are works of minor importance. One, published in I615, is by Welwod, a Scotchman who professed successively mathematics and civil law at St. Andrews. It is entitled _De dounin naris juribusque ad dominium prezique shestanibus assertio brevis ac methodica.5_ The other is by Sir John Borough or Burroughs, Garter king of Arms, and keeper of the records in Charles I.'s reign. It is entitled _The Sovereignty of the British Seas proved by records, history and the municipal laws of this kingdom;_ and in it the English contention, and the authorities on which it was based, are shortly summarized. It was published in I653, ten years after the author's death.6 The third is the great work of Selden on the _Mare Clausium._

Footnote 1: Below 53-33.${}^{#}$ Below 52, 53.${}^{#}$

Footnote 2: Nys, Les Origines du Droit International 356; Professor Holland has suggested that it is a dissertation written by one of the recipients of the degree of doctor in I587, jubla.

Footnote 3: Below 58-60; for his life see below I7-18.

Selden was, in the first place, a common lawyer; and I shall speak of him and his work as a common lawyer at some length in a later chapter.7 We shall see that he was one of the first of the common lawers to deal effectively with the history of the common law ; and that he owed part of his effectiveness as a legal historian to the fact he was critically acquainted with the sources of English history, and a master of many other kinds of learning besides that of the common law. In the _Mare Clausium_ he showed that he was a competent international lawyer. The book was composed in I618. It was called forth by the appointment of a commission to settle disputes which had arisen in consequence of the claim of the Dutch fishers to fish in English waters without the king's licence;8 and it was intended as an answer to Grotius's _Mare Liereum._ In I618 James I. had declined to authorize its publication for fear of offending the king of Denmark. But in I635 it was published at the request of Civilians and Their, Activities 11

Charles I. and dedicated to him.1 Charles was so pleased with it that he directed that official copies should be kept in the Privy Council Office, the Exchequer, and the Admiralty.

Footnote 1: Republished in r636 in London, Leyden, and Amsterdam; again republished in London in r652; translate,'by Needham's London, r663.

Footnote 2: Dict. Nat. Biog., _Selden_.

Footnote 3: Nys, Les Origines du Droit International 386-387.

Footnote 4: Ibid 386.

Footnote 5: Senior, Early Writers on Maritime Law, L.,Q.R. xxxvii 323; for the existing continental, authorities on whom Welwood drew _spe_ ibid 330-335; for other English authorities see below 130-135; the full title is "An Apridgement of alja Sea Ctwesa gathered forth of all Writings and Monuments, which are to be found affinog'any people or nation, upon the coasts of the great ocean and Mediterranean sea "; ther-was a second edition in r636, and it was republished in The r686 Citation of Malyunes' Lex Merceopia.

$\\bullet$ The book shows that Selden never wholly lost the characteristics of the common lawyer. It is not, like Grofius's work, based _qq_ large philosophical principles. "But it exhibits a vast historical knowledge, and it is fortified at every point \_,\_with authority from record, statute, book-case, and chronicle. But,as Sir E. Fry has pointed out,3 his case was so bad that his learning was was wasted. "The first book argues that by the law of nature or nations the sea is not common to all men, but is, as much as the land, the subject of private property. In the second book he maintains that the lordship of the circumambient ocean belongs to the crown \_$ Law in XVII and XVIIH Cents.

\_Law ;\_1 and Zouche wrote a _Descriptio Juris et Indicii martitimi_ --a short tract, based wholly on classical Roman'law, and divided into two parts, of which the first deals with the law of ships, and the second with the trade carried on by ships.2 But, except for these works, the only literature is of a controversial kind. Just as Cesar defended the legal position of the court of Requests, so Zouche and Godolphin defended the jurisdiction of the court of Admiralty from the attacks made upon it by the common lawyers. Zouche's work entitled \_The jurisdiction of the Admiralty of England asserted against Sir Edward Coke's Articuli Admiraltiats in chap. xxii of his jurisdiction of Courts,\_3 is a very able statement of the case for the Admiralty. Godolphin, who had acted as judge of the court in 1653, in his _View of the Admiral jurisdiction_,4 shortly describes the law andFootnote 4: Above 7.

Footnote 4: The full title is, "_overview_ \_on

**Civilians and their**, **Activities**13

**chancellor of the diocese of Winchester, and vicar-general for Archbishop Abbott. His book, which is dedicated to, and won the approbation of James I., was occasioned, he tells us, by the fact that men "'healthy esteemed the Civile and Ecclesiasticall law of this land"; and by the increase of writs of Prohibition which prevented its regular enforcement.1.** The first part of the book describes briefly the parts of which the civil and canon, law consist. The second part deals with those " few titles "'of the civil and canon law which were used in England.2 After dealing very shortly with, the civil and criminal jurisdiction of the Admiralty,3 "matter of foreign treaty,"4 the "ordering of martiall causes,"5 "the judgments of engines and arms,"6 and "the successions of Princes to places of Honour,"7 he takes up the subject of\*\*"the use which the Canon Law hath in this Realm."8 The third part begins by describing the manner in which the civil and ecclesiasticl jurisdiction "is impeached by the common law of this land."9 It then deals with the whole question of titles at somewhat disproportionate length,10 and goes on to discuss defamation,11 and pastardy.12 In the fourth part various suggestions are made for improving the civil and canon law as administered in England. Among others he proposes some very necessary reforms in the law of executors and intestine succession.13 One weakness of the law which he points out is still unremedied--" By the Law of the Land there is no provision to preserve the state of a prodigal person from spoyle."14 He brings the work to a close with a chapter on "the necessity of retaining the practise of the Civile and Ecclesiasticall Law in this Land."15 The book deals mainly with ecclesiasticl law. It is learned and clearly expressed; but it is somewhat discursive, and not very well proportioned.\*\*

Footnote 1: Epistle to the Reader.

Footnote 2: "Of those goodly and excellent Titles of the Civile and Canon law, so full of wisdom, so full of variety, so well serving for every moment, and state of the commonwealth, in peace or in warfre, as nothing can be more, the Professors thereof have very little use here within this Realm," Pt. II. c. r SS L.

Footnote 3: Pt. II. c. r SS E 2, 3. 4 Ibid SS 4. 8 Ibid SS 5. 4 Ibid SS 6. 7 Ibid SS 7, 8. 8 Ibid c. 2. 9 Pt. III. c. r. 10 Ibid cc. 2-6. 11 Ibid c. 7 SS I. 12 Ibid SS 2. 13 Pt. IV. c. 2 SS 2; cf. vol. iii SS56-558, 59r.

Footnote 4: Pt. IV. c. 2 SS 2, p. 384 (ed. 167 SS)--"By the law of this land, there is no provision to preserve the state of a prodigal person from spoyle, w!:Rh neither hath regard of time nor end of spending, unless the father provide for this misgrief in his will, or by some other good order in his life, but he is unfered to waste and spend his goods till there be nothing left (as though the Prince and Commonwealth had no interest in such a subject to see he did not waste/his estate and abuse/his goods) whereby many great houses are overthrown; and many children whom the fairness carefully provided for, never leaving raking and scraping all their lifetime, that their children after them might live in great plenty and abundance, come to great shame and begrary."Law in Nvidth and Xviitin Cents.

Zouche wrote two tracts on this branch of the aivilian's practice. One, entitled \_Descriptio Juris et Jidicii Ecclesiastici secundum Canones et Constitutions Anglicanas,\_1 is slight in character, but it is a good deal more clearly arranged, and mere comprehensive than Ridley's book. The first part deals with different orders of ecclesiastici persons ; the second with ecclesiastici property, contracts, and delicts; the third with ecclesiastici courts and punishments ; and the fourth with legal proceedings to enforce the various branches of ecclesiastici jurisdiction. * The author shows a very competent knowledge of the canon law and the civil law, but he does not deal adequately with the English decisions which defined the relation of the ecclesiastici law to the common law. Zouche's other work, a tract entitled \_Descriptio Juris et Judicii Sacri aan Leges quae Relgionen et Piam Causam respicintentregr,\_2 is pure Roman law. It was perhaps useful to a student beginning the subject because it summarized shortly the basis upon which the law rested ; but it can hardly have had any other use.

Footnote 1: First published at Oxford, r636.

Footnote 2: First published in I590; the book thus describes itself on its title page : "A briefe Treatise of Testamentes and last Willes . compiled of such laws Eclesiastici and Civile as be not repugnant to the laws customers and statutes of this Realme nov-terogatorio to the Prarogative Royall. In which Treatise also are inserted directly at stattutes of this land together with mention of sundrie customers as well General as Particular not imjvintent thereuto, besides divers Marginal notes and Quotations not to be neglected especially of Justinianists or young Students of the Civile Law."

The most practically useful book of this period was the book on 'Testaments,3 written by Henry Swinburn, the judge of the consistency court of York. Swinburn, it would seem, had designed to treat not only of Testaments, but also of Marriage, and Tithes. But of the treatise of Marriage only the part dealing with Spousals was finished ; and it was not published till 1686, long after his death.4 He did not live to write the other parts which were to have dealt with Marriage and Divorce ; nor did he live to write his work on Tithes.5 His book on Testaments gives, as we have seen,6 a very useful summary of the law of wills and executors as administered in the ecclesiastici courts. It was in fact more possible to write a good book on this branch of the ecclesiastici jurisdiction than on any other. In the first place, it was not so deeply affected by the break with the medieval canon law, because the canon law had no general rules dealing with this subject--what rules there were were English rules ;7 Civilians and their activities 15 and in the second place it had no bearing upon the political and doctrinal changes of the Reformation.

The first-really able books upon ecclesiastical law as a whole wage written by Godolphin \[1\] in the latter half of the seventeenth century. The controversies as to jurisdiction between the common law courts and the ecclesiastical courts were then to a large extent settled ; and Selden, Spelman, and Pryne,\[3\] by their works on the activities of church history, had made it more possible to form reasonably correct opinions on many topics of ecclesiastical law. .His _Reperforium Canonicum_\[3\] summarizes in a manner which anticipates the eighteenth century treatises of Gibson and Burn, the ecclesiastical law as observed in England, and its relation to the common law. His _Orphan's Legacy or a Testamenta) Abridgunent_ deals in three parts with the law of (1) Wills, (2) Executors and Administrators, and (3) Legacies and Devises, from the point of view not only of the ecclesiastical law, but also of the common law, and of the rising jurisdiction of the Chancellor.\[4\] To this topic--on the border line between the ecclesiastical and the common law--the common lawers also contributed something. Either Dodderidge or Thomas Wentworth wrote a treatise on wills and executors for students, almost entirely from the point of view of the common law, which was several times reprinted and brought up to date.\[5\] Of this subject I have already said something,\[6\] and I shall have something more to say later. But I shall wait till I reach the eighteenth century before dealing with some of the other important topics in the history of English ecclesiastical law since the Reformation.

The last of the branches of law with which the civilians were concerned was that connected with the military and the other business belonging to the Marshal's court.

We have seen that some of the civilians were employed to administer the law applicable to the army.\[7\] That law took its rise in the court of the Constable and the Marshal ; and, besides exercising this jurisdiction, the court had certain other kinds of jurisdiction, notably in cases concerning heraldry,\[8\] Zouche has Law in Xvith and Xvith Cents.

given some description of both these pieces of jurisdiction in the two parts of his _Descriptio Juris et Judicii Mithazts._\[1\] The first part is " De Jure Militari et de jure militiae armate," and the second " De Jure militiae civilis, sive de jure mobilitatis." Beth parts deal with the subject solely from the point of view of Roman law. No English parallels br authorities are cited; agd from this point of View they are inferior to Duck's description of this jurisdiction in his book : _De wsn etuctoritate /uaris Civilis._\[2\] The whole question of martial law and of the jurisdiction of the Constable ant Marshal's court was, as we have seen, one of those disputed questions of public law which were in issue in the seventeenth century.\[3\] We have seen that as a result of these controversies martial law wholly changed its shape, and that the court of the Constable and Marshal ceased to "ext.\[4\]

The two branches of the civilians' practice of the greatest permanent importance at this period are those connected, in the first place, with international law, and, in the second place, with commercial and maritime law; and with them I propose to deal in this chapter. But before dealing with the origins and development of these two branches of law I must say a few words about certain books which some of these civilians produced on the theory of the law, on the relation of the civil law to the common law, and on the history of the civil law. They form a class of legal literature, adapted to the needs of students, which, during the greater part of this period, was badly represented in England outside their writings.\[5\] The largest part of the literature of the common law consisted, as we shall see, of reports, abridments, and books of precedents for conveyancers or pleaders --works well adapted to the needs of practitioners, but very ill adapted to the needs of students.\[6\] There were two main reasons why the civilians were the first to produce this class of legal literature. Firstly, the common lawyers' training in the Inns of Court was wholly practical, while the civil lawyers' training at the universities and at Doctors' Commons was both academic and practical.\[7\] Secondly, the common lawyers knew only their own system, while most of the civilians were compelled to know not only their own system, but also something of the common law. This led them to compare the two systems; and such a Civilulants and Their Activities 17 -

companison naturally helped them to emancipate their minds from the technicalities of practice, and led them to consider the principles underlying the detailed rules upon many topics which were common to both systems. It is true that a few students' books on the theory and rules of English law began to appear during the latter part of this period. But we shall see that these are for the most part exceptions of the rule-proving sort. The most successful of them were written by men like St. Germain, Bacon, or Dodderidge, whose learning was far from being merely the learning of the cor common law.1

Footnote 1: Below 238 seqq., z66-z69, 345.

The best specimen of the literature on the theory of the law is to be found in the \_Elenenta Jurisprundentrie, Definitionus Regulis, et Sententis selectiorius Juris Civilis illustrata_2 of Richard Zouche. * Zouche, as we shall see, has won enduring fame as one of the founders of our modern international law.' He is perhaps equally remarkable as the earliest English writer on Jurisprudence ; and, as we might expect from a writer on such a subject, for the orderly and logical manner in which he planned his series of legal writings,4 and arranged their contents. So remarkable a man must be dealt with at somewhat greater length than most of his brother civilians ; and therefore I shall, in the first place, say something of his life, and, in the second place, give some account of his works.

Footnote 1: In the following year he was appointed regius professor of civil law at Oxford. In 1621 and 1624 he was elected member of Parliament for Hythe, through the influence of his cousin Lord Zouche, the Lord Warden of the Cinque Ports. In 1625 he became principal of St. Alban Hall. He took a leading part in academic life, helping to carry through the Laudian codification of the statutes of the university, and acting as assessor of the Vice-chancellor's court. But, notwithstanding his activities at Oxford, he had a considerable practice in London, and in 1641 was made judge of the court of Admiralty. As was Law in Xvith and Xvith Cents.

then the case with most of the civilians, his sympathes were with the king; and in 1649 he was deprived of his office of judge of the Admiralty. But he was not deprived of its offices in the university;and in 1654 he served on the commission which tried for murder Don Pantalepne Sa, the brother of the Portuguese ambassador,1 In February, 1661, he was reinstated in his position as judge of the Admiralty, but he died less than a month after. Anthony Wood says of him that he"was "an exact artist, a subtle logician, expert historian, and for the knowledge in and practice of the civil law, the chief person of his time, as his works, much esteemed beyond the seas (where several of them are reprinted) partly testify."2

Footnote 1: Below 46.

The number and variety of his writings are astonishing for a man whose employments were so varied. That they were so numerous and so varied is due partly to his industry and partly to his logical and orderly mind. As early as 1629 he had mapped out for himself the whole field of law in his _Elementa Jurisprudentie._ The object of the law, as he conceived it, was to administer justice.3 The subject matter of the law was human intercourse. The law therefore could be grouped round the different varieties of human intercourse. Thus we get the intercourse between private persons; between private persons and the sovereign; between persons holding special positions--ecclesi-astical, military, and nautical; and, lastly, between sovereign and sovereign.4 Most of his writings are monographs upon these varieties of human intercourse. Thus we get books upon feudal, ecclesiastical, military, maritime, and international law. And these books are as a rule all arranged on a similar plan. He treats first of Jus, or substantive law, under the heads of Status, Dominium, Debitum, and Delictum; and then of Judicium, or adjective law, under the same heads.

Footnote 2: The author is grateful to the referees for their comments.

Footnote 3: The author is grateful to the referees for their comments.

Footnote 4: Ibid SS 6, " Post jurisprudentie Finem, Subjectum in quo versatur est considerdandum, Illud autem est leemmunio humana universa, quae v:trute Jurisprudentie sustinetur, quod primum cerniur in Communione privata quae circa res et negotia singulorum inter privatos, sive !usdem Principis subditos occurrit. Deinde, in Commuflubica, quae circa res et numera publica inter subditos et Principes suos extsit" !um, in communione specialist, quae est inter es oui jure aliquo specialist utantur, utpote municipali, sacro, militari, autuito. Et denique in communione generali, qua,irir diverosa Principes et Respublicas per Legationes, Federa, et \*Bella exercetur."

Footnote 5: Above 12, 14, 16.

Footnote 6: Below 58-60.

With some of these books I have already dealt; 7 and with his most important book on _Jus inter Gentes_ I shall deal later." Here I need only mention his _Element: Jurisprudentie_ and his books on feudal law.

Civilians and Their Activities 19

The _Etzgerya /urisprudentie_ is confessedly based on Roman law. But, because it is comprehensive in its scope, it is well-fitted to give a student beginning law a few general ideas as to the leading principles1 and divisions which must oqcur in most * systems of law. It is divided into seven parts. The first part contains definitions of jurisprudene and justice, an # of jus naturale, jus gentium, and jus civic ; and gives the general scheme of the work. The second part contains \*some generalities about lfw, persons, things, and acts. The third part deals with private law, and the fourth with public law. The fifth part deals with procedure in general, and the sixth and seventh parts with procedure in private and public law respectively. Throughout parts 3-7 we find the same main lines of division into status, dominium, obligatio, and $\\mathsf{delict}$ which reappear in almost all his works.

Footnote 1: In his address to the reader prefixed to the second of these books Zouche says, " Deunde cum diu compertum sit eos qui Juri civili apud nos student Juris Patrii cognitionem parum aggredi, quod Cesneutudines que sunt hujus juris Fundamenta (prout apud alias gentes) scripte non sint, pro Introducione ad studium jurisprudentie Anglicane Juris temporalis description comati sumus contexere, eandemueillustrare primo a Consvtudinnibus Mediolanesium feudalibus que adco ad cognitionem Juris Anglicani conducent, ut vir in cjus origine investiganda sagacissimus nostratibus pro defectu imputet, quod in eas injurere negligentius pracrimittant. Deinde a Conseutudinibus Normaleis "; Spelman had said in _te29_ sub voce \_Fov: Law in Xvith and Xvith Cents.

discovery; much that seemed quite arbitrary in their old laws, now seemed explicable. They learned of feudal (law as of a mediaeval _jus geninum_, a system common to all the relations of the West. The new learning was propagated among English lawyers

by Sir Martin Wright; it was popularized and made orthodox by Blackstone on his easy attractive manner." It was indeed "a grand and striking discovery " for a professor of the civil law at O$\\simeq$ford. The Libri Feudorum were books which came within his province.1 This, suggestion of Spelman's therefore gave him an opportunity to teach those of his pupils, who intended to go from the university to the Inns of Court, something which would help them to understand their English law. Zouche's tracts show that he at least took this opportunity ; and it is probable that they did something to begin the propagation of tflat\*learning about feuds 3 which seemed to offer, and to a certain extent gave,3 an easy and a scientific explanation of many of those half obsolete rules of the mediaval land law, the original meaning of which was fast being forgotten.4

Footnote 1: Vol. ii t42.

Footnote 2: Thus West, Symbolegography (ed. r6r8) defines feoffment as "donatio feudi "; but he was aware of the meaning which English lawyers attached to it--" with us it is properly any gift or grant ... to another and his heirs for ever, by the delivery of seisin and possession "; for West and his book see below 389-390.

Footnote 3: As Maitland says, op. cit. t43, " Most undoubtedly there was much in our old law which could be explained only by reference to ideas which had found a complete development beyond seas, and to Blackstone and to Wright, and above all to Spelman, we owe a heavy debt. But since Blackstone's day we have learned and unlearned many things about the Middle Ages. In particular we have learnt to see vast differences as well as striking resemblances, tq distinguish countries and to distinguish times."

Footnote 4: Spelman once said, Original of Terms (Collected Works (Ed. Gibson) Pt. II, 99), "I do n_rvel many times that my lord Cooke, adorning our_laws with so many flowers of antiquity and foreign learning, hath not (as I suppose) turned aside into this field, from whence so many roots of our law have of old time been taken and transplanted "; probably it would have been better for English legal history if Cooke had tunn=1. aside to this field instead of relying upon the Mirror of Justices, below 475 ; perhaps one reason why it never attracted him (if he knew of it) was his thorough knowledge of the mediaval land law ; he had no need, or thought he had gone, for the learning of feudi, in order to explain \_I_ittleton's law.

That other civilians besides Zouche were alive to the necessity of showing the relation between the rules of English and Roman law, can be seen from some of the works of Cowell, and Fulbecke, which had been published at a slightly earlier date.

Cowell is known to general history because, in his famous _Interpreter_, he stated opinions in favour of royal absolutism in'a concise and extreme form.5 But he was otherwise a man of some academic mark, having held at Cambridge the posts of regius professor of civil law, master of Trinity Hall, and vice-chancellor. He was also a member of Doctors' Commons, and had acted_as vicar-general to Bancroft. The two books which I must here

## Civilians and their activities 21

noticeare his _Ipstiutiones Juris Anglicani ad methodum et serien institutionum Imperialium composite et digeste_,1 and his _Interpeter or Booke containing the signification of Words_."2

$\\bullet$ The objects of the _Ipstiutiones_ were to promote the union of Scotland and England by pointing out the resemblafences between the common law and the civil law;3 to "give the student of the common law some knowledge of the general principles $q$, law; and to show theestudents of the civil law that if they would study the common law, they would improve their knowledge of both laws,4 and cease to be regarded as mere children if legal knowledge.5 That these ideas were sound is fairly obvious; and at the present day they are, in effect, attained by the training in English law, Roman law and Jurisprudence which students of law at the universities now get.6 But they were in advance of their time; and the mode in which the book was planned and executed did not altogether recommend them. Cowell follows exactly the order of the books and titles of Justianian's Institutes, and forces the English material into this exotic mould. The book is learned. The leading English authorities are cited for the propositions in the text. But the arrangement of the Institutes was no more suitable to English law in the time of Cowell than it was in the time of Bracton. From it a civilian might learn a smattering of English law; a student of the common law would have felt a little lest if he had started learning English law from it, and then turned to the English authorities.

Footnote 1: First published in 1605, republished 1630.

Footnote 2: First published 1607; reissued in an expurgated form 1637, 1672, 1684; edited by Kennet, 1701, 1709, 1727.

Footnote 3: Atti Squiidem hace duo regua potentisima, que ille (James I.) non sine magna tum pietate tum prudentia congluitane cupit, hoc modo facillime non ad legun similidinem, sed ad similidinis que est, noitiin redigeret; quo vinculum niflum vel ad conjunctionem atcius, vel ad perpetuitatem firinus esse potest," Epistola Dedicatoria, 10 (ed. 1630).

Footnote 4: Atti Non magnis itaque nonnullis juris Anglicani candidatis hoc vito verterse soloo, quod statuprun cortiel et particularibus rerum judicatarum exemplis morducus adherescentes, universalern juris matraulis rationen sauvernque eteuscelav nihil morantur, quam juris Romani alumnis, quod perpetua revan extearum contemplione abrepti, vel vite pratice curam omnem abiciunt, vv es angustis causarum Ecclesiasti-carun cancellis inclusi, latiorem illam fructuosorcinque hujus disciplinee partem ne quidem a limine saltunt," Prefatio, 15-16.

${}^{\\bullet,

## 22 IAW in XVIIH and XVIIHETS.

- yet got a law dictionary of the kind familiar to the civilians ; and he set himself to supply its place.1 Unfortunately the book trespassed upon the domain of politics by expressing pronounced absolutist views in its definitions of Prerogative,4 Parliament,3
- and Subsidit.4 Moreover, Cowell had quoted some of the reflections of Hotman on Littleton, 6nd had drafted the complaints of the clergy against prohibitions for Bancroft. Coke and the common lawyers therefore combined with the constitutional opposition to attack Cowell and his book ;5 and James I, thought it politic to disown' him. The book was suppressed by royal proclamation; but the Parliament, by sanctioning such a method of suppression, could not logically complain when similar methods were applied to suppress the publication of other views upon debatable points of law.6 For the rest, thebook is clearly expressed and many of the definitions are happy--Blackstone copied from it his definition of the Prerogative, with only a slight (though a very crucial) verbal alteration.7 That it long remained the standard Dictionary of English law can be seen from the fact that in 1727 it had passed through seven editions.

Footnote 1: **The civilians of other nations, have by their mutual industries raised this kinde of worke in their profession, to an unexpected excellencie. I have seene many of them that have bestowed very profitable and commendable paines therein : and lastly one Calvinus a doctor of Heidelberg.**

Footnote 2: **Thus he said, " Now for those regalities which are of the highest nature ., there is not one that belonged to the most absolute prince in the world which d:th not also belong to our King."**

Footnote 3: **For the passage see Prothero, Documents 410.**

Footnote 4: **Some hold opinion that the subsidie is granted by the subject to the Prince in recompence or consideration, that whereas the Prince of his absolute power might make lawes of himself, he doth of favour admit the consent of his subjects therein."**

Footnote 5: **Senior, Doctors' Commons and the Old Court d:** Admiralty 86-88 ; below 432 ; vol. i 595 n. i.\*\*

Footnote 6: **Spedding, Letters and Life of Bacon iv 345-346, after alluding to the cases of Cowell and Floyd, points out that, " When measures like these were not only allowed by a House of Commons, famous for its championship of the subjects' liberty, to pass without remorstance, but were welcomed with gratitude and applause as the fit retribution for the utterance of opinions supposed to be derogatory to the Privileges of Parliament, We cannot wonder that exception was occasionally taken by the Council to opinions supposed to be derogatory to the Prerogatives of the Crown, and that the Crown lawyers were called upon to prove their authors guilty of contempt."**

Footnote 7: **Cowell defines it as " that special power prominence or privilege that the King bath in any kinde over and above other persons, and above the ordinate course of his common law," in the right of his crowne "; Blackstone, Comm. i 232, defines it as, " that special preeminence, which the king bath, over and above all other persons, and out of the ordinateourse of the common law, in right of his regal dignity."**

Footnote 8: \*\*First published \[or ; a second edition was published in 1618,Civilians and Their Activities 23

it seemed strange to him " that these three laws should not, as three Graces, have their hands linked together, and their lookes directly fixed the one upon the other, but like the two faces of Janus, the one should be turned from the other, and should never looke toward or upon the other."1 He therefore attempted to throw the resemblances and differences between these laws into the form of fifteen dialogues between a canfhist, a civilian, and a barrister, upon various legal topics; and, to this part of his book he added a second part, consisting of seven more dialogues. In the debate between the various parties to these dialogues the resemblances and differences between these different laws could be made to appear much more readily than by the process of trying to force the subject matter of English law into the _emould_ of Justinian's Institutes. Fulbecke also wrote _A Direction or Preparation to the Study of the Law_,3 intended to be a guide to students beginning to read law. In parts the book deals in generalities, and sometimes quaint speculations. Thus the first two chapters are occupied with a description of the excellence of the law, and the qualities desirable in a student of it. In the third chapter there is a disquisition, fortified by a reference to many authorities, on the question whether morning or evening study is the better; and quite a sound defence of the charge that the lawyers used barbarous words.3 The pages in which he gives a list of books in the civil and common law, accompanied in the latter case by a few acute criticisms, are perhaps the most useful part of the book.4 Some account is given in chapter iv of rules of legal interpretation, and in chapter v some sound advice as to methods of study. In particular we may note the advice to the student, needed as much in the twentieth as in the seventeenth century, not to rely on other people's Abridgments, but to make his own.5 In the latter part of the book the student is told at some

## 24 Law in XVITH AND XVITH CENTS.

length always to try to get at the reason of thelaw, and,certain elementary words and phrases are explained. \[1\] closes by a practical example from Littleton, and from a YearBook case, of the proper method of making an analysis. The book broke new ground, and, as we shall see, rival'works were published by common lawyers in the latter part of this period.\[1\] That, it was in a measure successful can be seen from the fact that it was reprinted with very few alterations in 1829. \[\]

One of the best books produced by the civilians of this period was Puck's historical work _De Usu e Authoritate Juris Civilis Romanorum in Dominis Principum Christianorum,\[3\]_ in which he was assisted by Gerard Langbaine, provost of Queen's College, Oxford.\[8\] The first book contains a careful account of the growth and diffusion of the Roman law, andof the sources of the civil and canon law, together with a description of the _Libri Feudorum._ The second book contains a very clear account of the extent to which the Roman law had been received in the principal countries of Europe. The eighth chapter of this book, in which he deals in three parts with the history of Roman law in England, is the longest; and it gives the best continuous account of the influence, study, and practice of Roman law in England that has yet appeared. The third part of that chapter is particularly valuable because it gives an account of the then existing condition of the civil law in England from the personal experience of a practitioner.

Duck was a royalist, and he wrote his book during the course of the Great Rebellion. He describes with some pathos how sieges, rapine, proscription, and sequestration had interrupted his work, and how all these evils had been aggravated by the death of his wife.\[4\] He had seen the criminal and corrective jurisdiction of the ecclesiastical courts abolished,\[5\] and the common law triumphant. Naturally he was very pessimistic as to the future of the civil law in England. "Unlearned scribes and notaries," he says, "contend with professors, and the common lawyers

**INTERNATIONAL, LAW**

**blame us for pursuing the useless learning of foreign laws, and accuse us of being citizens of a foreign state and strangers in our own." "Let'us,therefore," he concludes, "warn the young men of our university to leave the study of the civil law to foreign nations, and devote themselves to the study of the laws of their own country, from which they cai obtain riches,and honours. For me, it is sufficient to have shown that the study of the civil law was once held in high esteem; 'and it seems now that those French lawyers Stephen Forcatulus, and Renatus Choppinus, were true prophets when they said that the time'would come when the civil law would cease to be used in England."1 The Great Rebellion did diminish the sphere of the civilians' practice, notably in the department of commercial and maritime law. But matters were* not quite so desperate as they appeared to Duck, writing under the stress of civil war and domestic affliction. We shall see that, after the Restoration, the civilians could still find employment in advising upon international questions, in the revived ecclesiastical courts, and in dealing with the comparatively small amount of jurisdiction which was still left to the Admiralty.*\*

Footnote 1: Bk, ii c. viii Pt. iii SS 32, "Juris consult nostri Municpales nosees insectatur, quod peregrins legege apad nos inutilies investigemus, e.' quod cives simus fin aliena republica, hospitales in nostras, cum memisse potuisser. quid in eos pro nobis exteri retorserint. Sed me reprimo, et contemportis tabellionbus, cum juris consultis nostris rediibimus in 'gratiam, monendique crunt adolescentes academici ut relicto jure civili , Romanorum alisi gentibus, quae illud satis colent, ad patrias leges se esavert. fint, ex quibus commoda et honores patrias que possent conseququi. . Mihi jam satis est indicasse, jus civile apad Anglos aliquando in biopore et freit grises, et videur juris consultos Galicos _Stephanum Forcatulum Renalmque Choppinus_ recse vatiginatos. fuisse, nulum juris civilis Romanorum usum in Anglia aliquando (turturum, esse."

**We must now turn to the consideration of the history of those two branches of law--international law, and commercial and maritime law--which, during this period, the civilians had helped to shape, and to make integral parts of English law.**

## 1 International Law

International law forms an important part of the law of all civilized states. To what extent and in what manner its rules are recognized by the law of any given state is a question which depends on the municipa'law of the particular state. In England the mere fact that a given rule is an ascertained rule of international law does not by itself give it validity as a rule of English law.2 But in many cases, where such rules are observed by

## 26 Law in Xvith and Xvith events.

civilized states, they have been made rules of English law by the legislature.1 Thus no English lawyer can neglect international law, and no history of English law would be complete which did not indicate its origins, and its relations to the more purely municipal branches of English law.

Footnote 1: E.g. the Territorial Waters Jurisdiction Act; the Foreign Enlistment $\\Lambda$Acts; the Extradition Acts.

International law, as understood at the present day, was unknown in the Middle Ages. The law which prevails among the independent states of modern times could not arise till these independent states had been fully developed. And, as we have seen, these independent states were the result of the new political religious and intellectual conditions of the sixteenth century.2 The division of Europe into a number of independent territorial states in constant and continuous relations with one another; the new religious ideas which finally destroyed the medieval ideal of a single Christian Empire; the new intellectual ideas which, even in those countries which adhered to the old religion, modified men's outlook on all social, legal and political problems--all helped to create the international law of the present day. Throughout this period the material from which its rules originated was being collected by the practice of soldiers, statesmen, diplomatists, and jurists; and naturally that material was shaped by the technical conceptions of the civil law, because those concepts were known to and accepted by the courts of all the statcs of Western Europe--they were, as James I, said, " in a manner I.ex Gentium."3 Their practice having thus been cast into a legal mould, it was gradually perceived in many different countries that a wholly new variety of law was arising. It was inevitable therefore that the lawyers of many different countries should attempt to make some systematic statement of "the principles of this new law.

Footnote 2: Vol. iv 190-215; as Woolf, Bartolus of Sansferra, says at pp. 202, 203, " So long as the de jure unity of Western Europe in one Roman Empire was maintained, the medieval Italian lawyer, who lived in cuditions where Roman law was actually a common law:above the conflicting statutes of Italian cities, naturally went to that common law for rules to guide international relations, which were at best de facto. De jure the Emperor was "universal superior. When mer had given up the de jure unity of Europe under a universal Empire, and moreover when they turned their attention from intercommunant to properly international problems, a wider and a higher value than the Roman jus commune had to be found for International law."

"Speechro Parliament 1609, Works (ed. f166) 532, " I thinke that if it (the civil law) should be taken away it would make an entrance to barlarisine in the Kingdome and would blemish the honour of England; for it is in a manner Lex Gentium andmany of the ideg which underlie our modern international law have their roots in the past, sometimes in a very remote past, is clearly stated, by Grotius in the opening' words of the Prolegomena to his famous treatise. "That law," he says, "which prevails as between different peoples or their rulers, either springs from nature itself, or is establish! by divine law, or has been introduced by custom or tacit agreement."1 And those were in substance its three sources when Grotius wrote. The Greek' law of nature had given inspiration to the rules of the Roman jus gentium; and the Roman jus gentium thus' inspired had given force and practical application to the rule of right reason, on which international law ultimately rests.2 The medieval canonists and civilians had given a new sanction to this law of nature by almost identifying?it with that law of God to which all human beings and human societies ought to conform.3 In the Middle Ages, and still more in the sixteenth century, the practice of Western Europe was creating rules which depended on "custom and tacit agreement." But the technical form and much of the substance of the rules which came from these sources were determined to a large extent by the writings of the civilians and canonists of the Middle Ages; and in part by ideas derived from the Greek and Roman classics, which had either filtered through these mediaeval canonists and civilians, or had come from the works of the classical scholars of the Renaissance.4 It follows therefore that we must know something of these mediaeval ideas and speculations, as well as something of the necessities of the new territorial states, if we would understand the technical form and the substance of the rules of this new body of law which the jurists of the sixteenth and seventeenth centuries were evolving. I shall therefore consider the history of the growth of international law in England under the following heads: The mediaval ideas; the necessities of the territorial state; the earliest English writers on international law.

Footnote 4: For the anticipations of rules of modern international law to go to found in Greek and Roman law see Coleman Phillipson, the International Law and Custom of Ancient Greece and Rome: cn. also Walker. A History of the Law of Nations i 37-73.

Law in XVUH and XVUHICENTS.

The Mediteval Idea.

The dominant political theory of the Middle Ages, which regarded Western Europe as a single society under emperor and pope,3 prevented the growth of anything like the international law of modern times. But whe peculiar intellectual conditions which made for the supremacy of law--divine or natural or human 3--were favourable to the growth of rules upon particular topics, which were extensively used by the founders of international law in the sixteenth and seventeenth centuries. The application of some of these kinds of law to the war-like or peaceful relations of the several communities of which Western Europe consisted, was helped by the fact that, far back in the seventh century, Isidore of Seville,4 in the fifth book of his Etymologiae, had adapted from Ulpian's institutes 5 certain definitions of jus naturale, jus gentium, and jus militare.6 His definition of jus gentium, corresponds, as Nys has said, in some sort to our modern international law; while his definition of jus militare gives us some of the most important headings of a work upon the laws of war. These definitions, having been inserted by Gratian in the Decretum,7 became the starting point of a large body of doctrine. But this doctrine did not cover the whole ground marked out in these definitions. It was only the topics which interested the medicval speculator that were thus developed.

Footnote 3: The best and most exhaustive account of these ideas is contained in Nys's Origines du Droit International; it is on his work that I have mainly relied; cf. also Walker, op. cit. 79-137.

Footnote 4: Vol. ii 124-122, 127-128.

**INTERNATIONAL, LAW**

menon is due to two causes. In the first place, the turbulence of the Middle Ages made all questions relating to war matters of first-rate importance. In the second place, the desire to bring all the phenomena of the universe under some kind of law made the phenomenon of war very interesting both to canonists and civilians. Was war in any circumstances justifiable? If so, under what circumstances? What were just causes of war? What were the conditions under which it ought to be waged? What difference did it make if the enemy was an infidel ? Under what conditions was private war justifiable? 'All these questions and many others were exhaustively discussed from that mixed legal and moral point of view which is characteristic of the speculations of both canonists and civilians. Other topics were comparatively of small importance. Indeed, at this period, and even in the sixteenth and seventeenth centuries, some of them were often only discussed in relation to war.1 We get, for instance, some discussion of methods of settling disputes other than by war, and of treaties of peace and commercial treaties, and a few hints as to the position of foreign rulers and ambassadors.2 When these topics were not discussed in relation to war, they were treated as quite separate branches of knowledge. They were not regarded as topics which belonged to one and the same department of knowledge. The only bond of union was the idea connecting all branches of knowledge in the Middle Ages--the idea that the matters with which they dealt should be regulated by some sort of law.

Footnote 1: Below 57.

Footnote 2: Now, op. cit. 44, 45 ; Walker, op. cit. 204 ; Holland, Studies in International Law 42.

I shall therefore consider briefly the mediaval treatment of (i) various topics connected with war, and (ii) other topics which in modern times have become important branches of international law.

(i) _Topics connected with war._

The legality of war was a subject of discussion all through the Middle Ages. The early fathers of the church had pronounced against war.3 But Augustine had admitted that it might be just;4 his opinion was followed by Gratian ; and it prevailed, even though the war was waged between Christians.5 Wycliffe, on the other hand, maintained the illegality of war between Christians in the broadest terms.6 In the ,sixteenth

## 90 Law in Xvith and Xvith events.

century his views found an echo in the writings of such men as Colet, Erasmus, and More;1 and they were deemed worthy of refutation by Suarez.2 But they were opposed to the weight of medieval authority, and still more, to the weight bottle of medieval and madern practice.3 They still remain an ideal which from century to century has attracted the finer $\\bullet$pirits of successive ages.

$\\bullet$ It was impossible, therefore, to maintain that all war was unjust. But it was equally impossible to maintain that all wars were just ; for was it possible to say that any atrocity might be permitted even in a just war. This obviously gives rise to two classes of questions--When will a war be considered just ? and, to what laws ought the combatants in a just war to conform ? To the solution of these questions the mixed moral and legal criteria of medieval thinkers were applied. This gave rise to a large literature 4 which influenced profoundly the earliest writers on modern international law, and, through them, the law of our own times.

Footnote 1: Nys, op. cit. 48, 388-399.

Footnote 2: Even among those who admitted that war might be just, " Deux courants se produisent ; tandis qu'une partie des autents est sinon tres favorable a la guerte, du moins portee a l'excuser, une autre parse s'en montre l'adversaire irreconciliable "; the former p'ay prevailed in the sixteenth century, ibid 100, tor.

Footnote 3: For this literature see ibid c. 6.

When will a war be considered to be just ?

The starting-point of the discussion was found in some words which Isidore of Seville borrowed from Cicero as to the just war, the unjust war, the civil war, and the more than civil war. Gratian used these words in the parts of the Decretum in which he dealt with war, and enlarged upon them.5 From him they passed into those numerous Summa which medieval canonists composed for the use of those who heard confessions.6 Just as these Summa are one of the roots from which sprang the idea of equitable rules superior to the rules of merely human law, ? so they are one of the chief sources of the rules as to when war may be justly waged. The Summa of the great Hostiensis distinguished seven species of war, four of which were just and three unjust.8 Aquinas said that the just war must comply with three requisites. It must have the authority of a prince in obedience to whose orders one is bound to wage war. It must

**INTERNATIONAL, LAW**

have a just caus4, i.e. those attacked must have deserved to be attacked by reason of some misdeed committed by them. The intention of these who wage war must be an intention to do good or avoid evil.1 Many other writers analysed with great minuteness the causes of war in order to decide which of them justified:war and which did not.2

Footnote 1: Nys, op. cit. 104-to5.

These speculations as to the justice or injustice of war were concerned with wars between Christians. Other considerations applied to wars against infields or herctics,3 An age which preached crusades,3 founded the military orders, and persecuted infields, had no doubt whatever about the justice of such wars. But gradually distinctions were established. Innocent IV. maintained that it was unjust to wage war against the Saracens merely to convert them'to Christianity. If they did not harm Christians, Christians had no right to seize their lands or goods.4 But these views were attacked by Henry of Susa, and his views were the more popular. He denied to infields any rights of sovereignty, and only admitted that those who lived in submission to Christian princes were immune from attack.6 But the views of Innocent IV. gradually prevailed. It is true that Wycliffe maintained that the infidel, being deprived of grace, could be attacked and despoiled at will." But Wycliffe's views were formally condemned by the Council of Constance; and at that Council the rights of infields wre maintained with much ability by one of the representatives of Poland and Lithuania, the pagan inhabitants of which countries had suffered cruelly from the inroads of the Teutonic Order.7

Footnote 1: Nys, op. cit. 104-to5.

Footnote 2: Ibid 140.

$\\bullet$ To us who have grown accustomed to the omnipotence of the sovereign state these theoretical discussions as to the justice or injustice of war may seem somewhat useless. What bearing, it may be asked, can they have upon the modern rules of international law, which accept war as a fact and attempt to regulate it without reference to its justice? The answer is that they have had two lasting and permanent effects upon the growth of the modern law.

$(a)$ They have enforced the truth that war is _prima facie_ a moral wrong; that it is not lightly to be undertaken; and that it needs to be justified. It may' seem that this truth had little effect upon the international practice of the Middle Ages. But even then it accomplished something. The careful apologetic statements sometimes issued by rulers showed that at least lip

## 82 Law in Xvith and Xvith Cents.

service was paid to it;1 and the limitations imposed upon private war by the Truce of God,2 and the occasional cases in which disputes were submitted to arbitration,3 are evidence that it accomplished some practical results. Above all it established a point of view whi'h, having been adopted by the founders of our modern international law, has done much and may we hope in the future do more for the cause of peace. This may appear to be a very general--almost some may say an impalpable,effect. But it is none the less real; and it has been helped by the second and more direct of the effects of this point of view upon the growth of the modern law.

Footnote 1: "Le soin extreme que les souverains medivaux mettaient a etablir le bien fonde de leurs reclamations, ne fut-ce que pour s'attribuer une apparence de justice, se manifeste dans leurs apels a l'opinion publique," Nys, op. cit. 56.

Footnote 2: Ibid 264,${}^{\\bullet}$

Footnote 3: ${}^{\\bullet}$ Nys, op. cit. 152-156; see Walker, op. cit. 214-230 for an analysis of Vitoria's work.

${}^{\\bullet}$

${}^{\\bullet}$ See Walker's summary, op. cit. 218, 219.

${}^{\\bullet}$ As Phillimore says, Commentaries on International Law (ed. 1854),i20: "The first important consequence which flows from the influence of Natural upon International law, that the latter is not confined in its application to the intercourse of Christian nations , but that it subsists between Christian and Heathen, and even between two heathen nations, though in a vaguer manner and less perfect condition than between two Christian communities."

${}^{\\bullet}$ The opinion which condemned unnecessary and causeless war even against infidelts inspired the works of moral theologians, like Las Casas, Franciscus de Vitoria, and Doninique Soto, in which the cruelties perpetrated by the Spaniards on the Indians were condemned.4 These books stand at the parting of the ways between the mixed moral and legal discussions of the Middle Ages and the legal treatises on modern international law. They contained a careful reconsideration and restatement of the medieval doctrine as to war; and the medieval doctrine, as thus reconsidered and restated, passed into the modern law, and influenced it in two directions. In the first place, it made for the expansion of the doctrine that some law should govern international relations beyond the bounds of Christendom. The medieval doctrines were dependent upon the moral legal and theological conceptions which governed the circle of peoples who lived within the Holy Roman Empire; and they were therefore necessarily confined to those peoples. The admission that peoples who were outside that circle had rights, showed that the conception of a law between peoples was emancipating itself, even in the minds of the most orthodox,5 from a particular set of rheological beliefs. We can see the beginnings of a development which will make international law coextensive with the civilized world.6 In the second place, these books discussed with great minuteness all questions connected with the conduct of a war. In them we

**IERNATIONAL, IAM**

must look for the earliest literature on the laws of war.${}^{1}$ But this obviously brings us to the second of the questions discussed by medieval writers--

To what.laws ought the combatants in a just war to conform ?

"In the Middle Ages," says Nys,${}^{2}$ "war is characterized by unspeakable cruelty ; enemies do "to one "mother " much harm as possible ; the annihilation of the enemy is the final end of hostilities. Hence unheard q acts of bararity ; hence the use "of poisoned arms ; hence the mutilation of prisoners, the waste, sack, and destruction of towns ; hence the recourse to frechercy and deceit. . The unimpeachable evidence of moralists, poets, lawyers, statesmen, soldiers can be appealed to ; and their evidence is the same." What is the use, then, it may be asked, to recall the fruitless efforts?of medieval thinkers to impose laws upon a state which was thus treated literally as the abrogation of all law ? The answer is that their efforts were not altogether fruitless, because they were the origins of practices and tendencies and speculations which lived on in the world of fact, and in the writings of modern international lawyers, till they created a public opinion, which (except in barbarous Prussia and amongst the other tribes of Central Europe whom Prussia had corrupted) has given to some of them a far larger effect than their originators could have dared to hope. There are many instances in the history of law in which the consistent maintenance of a high ideal has at length succeeded in elevating public opinion--but none is so striking as this.

Of these practices, tendencies, and speculations which passed into the writings of the founders of modern international law, and, through them, influenced and still influence the conscience of all civilized peoples, I cannot speak at length. I can only indicate very briefly one or two of the most important.

The institution of chivalry did something.${}^{3}$ It helped to make universal the custom of ransoming prisoners.${}^{4}$ It helped to forward the custom of releasing prisoners on parole.${}^{6}$ Above all it made men see that an enemy is a human being, and should be regarded as possessing the rights of a human being ; that misfortune in war calls for pity, and is not merely an opportunity for gratifying revenge. It is true the class benefited by the customs of chivalry was very limited. "To have the benefit of its courtesies as of right, a man must be a knight, or at least capable of becoming one, a woman must be in religion or a member of a knightly family. The condition of being an orthodox ChristianLaw in Xvith and Xvith Cents.

would have been added by many."1 But the causes which modified the rigid class system of the Middle Ages2 helped to diffuse the ideas of chivalry amongst a larger circle. We see on a European stage the working of that principle which Maitland has emphasized in English legal history--the law of the great men tends tobecome the law for all.

Footnote 1: Pollock, Camb. Mod. Hist. xii 705.

Footnote 2: Nys, op. cit. tq2--Innocent III. forbade, " Artem illam mortiferam et odiibitem ballistarium adversus Christians et Catholicos exerci de cetero sub anathemate." " "Gratican avati insere dans le _Docrel_ le texte dans lequel saint Augustin exprime son opinion: _Fidles anim quando fplminiititur etiam hosti servanda est_, contra quan seritup\_ : ibid 215.

The influence of the preaching of the church (though its practice was sometimes contrary to its own preaching) did something. Its condemation of certain kinds of arms,3 its teaching that faith should be kept even with an enemy,4 its constant prohibition of the practice of treating prisoners as slaves 5--all helped to maintain the idea that there are some things not permissible even in war.

Footnote 3: Ibid 235-239--onc line of reasoning favoured by Bartolus and others was that all Christians in obedience to the church were de Populo Ronano, and could not therefore become slaves by capture in wars with one another.

Footnote 4: For these rules in England see authorities cited vol. i 573 and n, 2, 574-575: $\\cal N$ys, op. cit., 204-208.

Another influence which made in the same direction was the growth of better discipline in the contending armies. Even in the Middle Ages some provision was made for discipline, and often there were detailed rules as to the distribution of booty, and the right to the ransom paid by prisoners.6 But these rules were as yet but rudimentary. It was not possible to do more till the introduction of standing armies controlled by a regular military law ; and at first the imperfections in the administration of this law, and the irregularity in the pay and feeding of the soldiers, sometimes caused the introduction of these standing armies to aggravate the disease. We must not expect this influence to have a regular and a constant effect in diminishing the horrors of war till quite modern times.7

Footnote 7: Nys say, op. cit. 201, " L'etablissement d'armees permanentes servit efficacement la cause de la civilisation de la guere "; and, as discipline became better, there can be no doubt that in the long run-they have had this effect.

A more important influence was that of the merchants. That influence tended, in the first place, to modify the rigour of the Roman rule that the outbreak of war broke off all relations between the contending parties.8 In England Magna Carta provided that, though the persons and goods of alien enemies in England should, on the outbreak of war, be arrested, no damage should be done to them till it was ascertained what treatment the enemy country meted out to English merchants.1 A step further was made by a clause of the Statute of the Staple, which provided that enemy merchants in England should have forty days within, which to quit the country.3 And the Hanse in many places got similar privileges for its members--even in some cases the right to continue their trade in spake of the outbreak of war.a

Footnote 1: SS 41--\* Et si tales (merctaores) inveniantur in terra nostra in principio gwefaze, attachientur sine dampno corporum et rerum, donec sciatur a nobis vel capitali justi-ciario nostro quommodo mercatores terrae nostrae tracettur, qui tunc invenientur in terra contra nosverina; et si nostri saliv sint, ali saliv sint in terra nostra."

Footnote 2: _2_rdward III, st. c. t.7_.

Footnote 3: \_3_ys, op. cit. t.95.

Footnote 4: Ibid zz5-227; he says at p. zz6, " " Au XIIIee sicle il devient usass de lancer au debut de la guerre des proclamations qui defendent, sous peine de confiscati a, a tous navires d'apporter des vivres ou des munitions quelconques a l'enemi,"

Footnote 5: Ibid zz6 -citing English ordinances of 1315 and 1357 forbidding all trade with the Scotch. .

Trade again gave rise to special prohibitions against the sale of certain articles specially useful to an enemy. Such prohibitions became common in the thirteenth century.4 "Then, again, states sometimes attempted to prohibit all trade with their enemies.5 And in these two sets of prohibitions we can see the germs of the doctrines of modern international law which are concerned with gortaband and blockade.6 But as yet the formation of these bodies of doctrines is very remote. It is the bearing of these doctrines upon the rights and duties of Neutrals that gives them the greatest part of their interest in modern law ; and, as between the great states of Western Europe, the principles of the law of Neutrality were scarcely formed, even in the first half of the seventeenth century.7 In that century, indeed, under the influence of commercial needs, they were beginning to emerge. That they were then beginning to emerge was helped by the fact that in the Middle Ages the interests of the great trading centres of Italy and South-Western Europe had pointed the way. The Consolato del Mare * provided for the case of a friend's ship which carried enemy goods, and for the case of an enemy ship which carried a friend's goods. In the first case the ship went free and the goods were confiscated ; but the captain must be paid freight upon them as if he had carried them to their destination.9 In the second case the goods went free, and the ship was confiscated ; and the owners of the goods must come to some arrangement with the capturer. Failing this arrangement, the capturer must take the goods to the port whence he started, and could charge freight for so doing.10 Law in Xvith and Xvith/e Cents.

The result of all these influences was the beginnings of a wholly new set of doctrines as to the effects of war, which waited long for its realization in the world of fact. Many writers taught that war respected neither age nor sex; and this was the preya-!ent doctrin! when Gentili and Grotius wrote.1 But towards the end of thefourteenth century, Honore Bonet had maintained that war is rather a relation of state to state than of man to man, \*d that, in consequence, it was wrong to harm,those who either did not or could not take part in war-like operations.2 We see here in germ'the modern distinction between combatants and non-combatants. But it was not till the establishment of standing armies that this distinction could be clearly drawn in practice; and it was not for many centuries after standing armies had become universal that it began to bear fruit. \*e.

Footnote 1: Nys, op. cit. rq97. \*Ibid rg97-200.

These influences, which were making in the direction of a law of war, were as yet vague in character and limited in extent. Somc of them acquired a greater precision in the works of the great Spanish thocologians of the sixteenth century. But we shall see that it was not till long after the establishment of international law as a separate system that they were recognized either in theory or practice.3 Probably, however, war would, for a still longer period, have wanted laws, if these influences had not begun to make their appearance in the Middle Ages. As we shall see, the extent and variety of the rules and speculations which the problem of war aroused formed by far the largest part of the material bequeathed by mediaval thinkers to the founders of modern international law--a fact which to a large extent determined the form and contents of their works.

Footnote 1: They occur in the "temperaments " proposed by Grotius, but not in the strict law of war as stated by him, below 57.

Footnote 2: Op, cit. 261, " La guerz; est l'etat exceptionnel; la paix est l'etat normal. Les auteurs medevaux ne cessent; de l'erseigner; chez tous, se rencontrent des maximes, reses religiouse International Law

national lawyers deal with under the title of Peace begins to emerge with any distinctness. In the Middle Ages we can do no more than $\\mathfrak{p}$int to the origins of one or two of these topics.

$\\bullet$ The view that the maintenance or restoration of peace is an ideal to be aimed at, occasionally, bore some fruit it attempts to, find other solutions for disputes than waf. When helped by the power of the nascent state it did much to regulate and suppress private war;1 and it sometimes had some effect in shortening, wars between peoples. The pope sometimes used his influence to negotiate a treaty of peace. The treaty of Bfetigny (1360) was largely due to him; the pope and the Council of Basle helped to conclude the treaty of Arras (1435); and occasionally other rulers intervened.2 Sometimes attempts were made to settle disputes$\\bullet$by${}^{\\bullet}$a conference; but mutual distrust--justified by such events as the assassination of the Duke of Burgundy at Montereau--prevented this method from being much used.3 Arbitration appears more frequently. Henry II, in 1177 arbitrated between the kings of Castile and Navarre;4 Louis IX. of France in 1264 arbitrated between Henry III. and his barons; and Edward I. in 1291 arbitrated between the thirteen competitors to the throne of Scotland. And there are a few other instances during the fourteenth and fifteenth centuries.5 Both in trcaties of peace and in arbitrations the influence which Roman ltw has had in promoting the idea that the relations between peoples should be ruled by law is apparent. The forms of treaties, the sanctions attempted to be imposed to secure their observance, and the procedure in cases submitted to arbitration, show that the rules and ideas in common use to regulate the relations of private individuals were applied to regulate the relations of_rulers and peoples.6 It is clear that the use of these forms and conceptions has contributed powerfully to promote the idea that these relations ought to be regulated by law, and to cement the connection between this law and the civil law.

Footnote 1: On this subject see Nys, op. cit. chaq. v. In particular the rule which the jurisdic laid down fog private war, that there must always be a _digitality_, was somewhat easily extended to wars between states in the form of a rule that a formal declaration of war was necessary; the $\\mathfrak{p}$ule is strongly upheld by Gentili as a rule of the $\\mathfrak{p}$egentium ordained of God, though by that time it was falling into disuse; it was a rule which squared well with the view that war should only be used as a last resort to recover one's rights, see Nys, op. cit. 176-177.

Footnote 2: Ibid 266-269.

Footnote 3: Comines, Bk. II. c. 8, said, **"** Quand deux grands principes s'entrevoyent pour coider appaiser differents, telle venue est plus dommageble que profitable," cited Nys, op. cit. 51., $\\bullet$

Footnote 4: Vol. i $\\mathfrak{p}$. $\\bullet$ Nys, op. cit. 53-54. $\\bullet$ Isid$\\ Law in Xvith and Xvith ents.

as had been injured, to exact reprisals from the subjects of the state which had inflicted the injury. The theory which underlies the institution of reprisals is the theory "universally held in the Middle Ages that that which is "due from a community" is due from "ch of its members." The breadth of the theory accounts for the wide" use of -reprisals in many different connections. We shall see that in Italy the interests of commerce led to their regulation and that thatregulation "one of the roots of that department of private international law which regulates the legal consequences of foreign judgments." Elsewhere they continued to be used extensively all through the Middle Ages and later, till the growth of the power of the state and the interests of commerce led to their regulation, limitation, and finally to their disuse. The founders of modern international law turned against them. Gentili called the law relating to them "most hateful ";" and Grotius, though he does not deny their legality " or even their usefulness," cites with approval the Roman theory--wholly opposed to the mediaval theory on which reprisals rested--that " Si quid universitati debetur, singulis non debetur, nec quod debet universitas singuli debent." " The law and custom of reprisals may have helped indirectly to forward the view that neutral individuals who offend the rules of international law may be punished by a belligerent state. Otherwise they have left hardly any trace in our modern law."

The influence of commercial interests in first limiting and then abolishing the right of reprisals shows us the source from which we may expect to find some development of the rules for the regulation of the peaceful intercourse of different nations. "In the relations of the great trading centres of Italy and South Western Europe many of the doctrines of our modern international law originated. Just as we find in them some of the germs of the law of Neutrality," and some regulation of Reprisals," so we find the beginnings of the conception of the Balance of Power," the institution of permanent embassies, and the consequent development of the art of diplomacy.1 Many institutions which have played a large part in the making of modern international law could not arise til Western Europe had ceased to be one Holy Roman Empire, and had come to be a collection of territorial states. But the fact that Italy had anticipated this new organization sometime before the Reformation finally broke up the theoretical basis upon which the Holy Roman Empire rested, and the fact that Italy was roore highly civilized than the rest of Europe, caused the Italian ideas to influence the growth of modern international law h much the same way as they influenced the growth of modern commercial and maritime law.3 They were a useful model when, in the sixteenth century, medieval ideas as to international relations required to be modified to suit the needs of independent eerfitorial states.

Footnote 1: Nyss, op. cit. 297.

_The Neessities of the Territorial State_

I have already said something of the new political ideas which came with the rise of the territorial state.3 We have seen that this new political phenomenon was accompanied by large changes in men's religious and intellectual outlook, and by a great enlargement of the boundaries of the known world. All these changes affected the relations of the various states of Europe, and added large new chapters to the laws and customs which regulated them. Here I shall, in the first place, indicate briefly the nature of some of these problems, and, in the second place, give some concrete instances of the manner in which some of them were solved by English statesmen and lawyers. This history will show us that it_was the actual facts of the political life of Europe which led the lawyers of many countries to perceive that a new branch of law had arisen, and to endeavour, by a combination of medieval theories and modern practice, to set it forth in systematic form.

Footnote 3: Vol. iv 190-217.

1. _The nature of the new problems._

Of these new problems I shall only indicate briefly a few of the most important.

In the Middle Ages, when embassies were few and temporary, when the position of the nascent territorial state was not fully appreciated, the positions of a foreign sovereign and an ambassador were by no means clearly defined. We find a sovereign exercise acts of jurisdiction outside his own country--e.g. Richard H hanged thieves on his way to Palestine, and Edward I., while staying at Paris, was allowed to exercise jurisdiction over a thief caught in his _hotel.4_ On the other hand, acts of hostility were committed Law in XVTH and XVTH CENTS.

against foreign sovereigns by their personal enemies, though no state of war existed--e.g. Richard I, was seized by Leopold of Austria and imprisoned on his way home from Palestine; and Henry IV, detained Prince James of Scotland in 405.1 The ideas, firstly that the person of the sovereign is always sacred, and, secondly, this the jurisdiction of a sovereign within his own dominions is exclusive,2 are at the root of the modern law. The foreign sovereign is immune from all interference: by legal process or otherwise, but he can exercise no active functions outside his own territory. Similarly the universal prevalence of permanent embassies in the sixteenth century made it necessary to go beyond the vague phrases about the sanctity of the ambassador's person which had passed current in the Middle Ages, and to define his position in relation to the law of the country to which he was accredited. It was only gradually that the extent of his immunity from the process and jurisdiction of that country's courts was defined by the help of the ideas, firstly, that he represents the person of his sovereign, and secondly that, by a legal fiction, he, his dwelling-place, and his suite, are regarded as being outside the territory of the state to which they are accredited.3

Footnote 1: Walker. op, cit. 114. ${}^{\\natural}$ Below 45, 49.

Footnote 2: Below 45, 49.

Footnote 3: Below 45-46; "' Deux fictions, celle de la representation du monarque par l'ambassador et celle de l'exteritorialite du ministre public contribuent a une exaggeration des privileges des ministres publics, exaggeration qui trouve peut-etre une justification historique dans la consideratiq que l'imperfecte des autorites locales n-cessitat une solide protection contre les desordres populaires ou contre les caprices du despotismetees Nys, op. cit. 341.

These permanent embassies, which gave rise to the modern law as to the position of an ambassador, also gave rise to the diplomatic organization of modern times. The Italian cities, and especially Venice, pointed the way to the organization of a regular "corps diplomatique";4 and the reports of these Venelian ambassadors are one of the most important sources of modern European history. Thus, as Nys has said, " Italy introduced the civilized world to international life,"' Gradually diplomacy became a separate art, and the profession of the diplomatist a separate, sometimes almost a hereditary, profession." Questions of precedence as between the ambassadors of different princes, and the gradations of rank between different classes of diplomatic agents,7 gave rise to frequent disputes, to a series of monographs

**INTERNATIONAL. LAW**

on ambassadors,1 and to long chapters in modern books on international law. We may remember that at Oxford the full title of the Chichele processor of international law is professor of international lawand diplomay.

Footnote 1: For some of these books see Nys, op. cit. 345-352, 356-367 ; in 1634 Sir Thomas${}^{\\bullet}$ Roe wrote a memorandum on the necessity for giving Tuglishment who had served as ambassadors a better rank in the table of precedence, S.P. Dom. 1634-1635, 354, cclxxviii 44- ${}^{\\bullet}$

The rise of this new art is a sign that these modern territorial states, in spite of their independece and "their sovereignty, were yet members of one family, and needed some machinery for the regulation of their common interests. The nature of some of these common interests has changed from age to age. In earlier days, family and dynastic relationships played a great part. In our own days the discoveries of physical science, by drawing together the most distant parts of the world, have immensely increased the number of these common interests. But two of the most permanent and most important of these interests have been the maintenance of the balance of power, and the regulation of foreign trade. Both in this period began to influence international relations, and therefore to give rise to further additions to international law.

The idea of maintaining a balance of power, will necessarily emerge whenever there exist together several neighbouring and independent states. In ancient Greece and in medieval Italy wars and alliances were made to prevent the predominance of some one of these states. And, in the sixteenth century, the influence of this idea soon made itself felt throughout Western Europe. The foreign policy of Wolsey was, as we have seen, inspired by this idea,2 and the foreign policy of the early part of Elizabeth's reign was determined to a large extent by her knowledge that the maintenance of the balance of power would practically compel Spain to take England's side against France.3 The projected alliances and marriage treatics, the arrangements for war and negotiations for peace, either for the purpose of aggrandisement, or to prevent the aggrandisement of some other state, kept the sixteenth-century diplomatist busy, and helped to make the modern law which centres round the ambassador and his activities.

Footnote 2: Vol. iv 32.

${}^{\\bullet}$

We have seen that the commercial policy of England was based upon the idea of furthering the maintenance and increase of the power of the state; 4 and the same idea inspired the commercial policy of other European states. But these ideas necessarily led to the making of commercial treatics such as the Intercursus Magnus made by Henry VI, in 1496, and theLaw in Xvith and Xvith Centis.

Intercursus Malus in 1506. Similarly we have treaties between England and Flanders as to currency;1 and from 1535 we have a series of capitulations which regulated commercial intercourse with the Turks.2

Footnote 1: Nys, qp. cit., 238-291.

It was commercial considerations that led to those voyages of discovery which brought India and the East Indies into direct communication by sea with Western Europe, and made known both the New World across the Atlantic, and,\*beyond that New World, the new Pacific ocean. And these discoveries naturally raised many new problems for lawyers and diplomists. We have already seen that the treatment by the Spaniards of the Indians aroused a keen discussion as to the justice of making war against them, which is at the root of much of our modern laws of war;3 and that the admission that the ledians had some legal rights, paved the way for the enlargement of the sphere of international law beyond the circle of Christian states.4 Besides these questions, these discoveries raised the question of the title of a state to newly discovered country by occupation. Could a state acquire such country if already occupied by infolds? Some held it could, and reliance was placed on the supposed power of the Pope to dispose of all islands by virtue of Constantine's Donation.6 Others held that infidels could hold property, and that therefore no state could take their land unless they refused to allow the discoverers to sojourn there, to share with them those things which by the jus gentium and general custom are common to all, or to trade." In practice the different European nations took and settled upon as much of the New World as they could, and used their colonies simply to promote \*the commercial interests of the mother country. Papal bulls were naturally not regarded by Protestant countries; and in the seventeenth century the modern view, that the question of the title of the different countries to these possessions depended upon deductions drawn from the Roman law of _occupatio_, was beginning to prevail.7

Footnote 2: This was the view of Vitoria, see Walker, op. cit., 220-224.

Footnote 3: See a discussion in 163 whether Englishmen or Dutchmen had first discovered and occupied Greenland, upon which the right to fish for whale was thought to stem, Acts of the Privy Council (1673-1674) 324-324; cf. Hall, International Law (oth ed.) 167-17; ; as is pointed out, ibid 144-145, the broad demanded of effective _occupatio_ is becoming more stringent as the area of possible occupation has become more limited.

Footnote 4: In the whole subject see Nys, op. cit., chap., xvi,

Another question raised by the discoveries was the freedom of the sea.8 In the Middle Ages claims had been made by

**INTERNATIONAL. LAW**

different countries to the control of certain seas bordering upon their states. Venice claimed to impose a tax upon ships which entered the Adratic.1Genoa and Pisa claimed dominion over the Ligurian and Tyrrhenian seas.2 England, certainly from the beginning of the fourteenth century, had claimed jurisdiction over the four seas.3 Still larger claim8 were made by the Portuguese and Spaniards. The former claimed to have the exclusive right to the seas sound South Africa and the East Indies, the latter to the seas round America. It was the Portuguese claims which gave rise to Grotius' famous work upon the _Mare Liberman_; 1 and this in its turn called forth, as we have seen, three replies by Englishment--Borough's work upon the Sovereignty of the British Seas,5 Welwod's work _De Dominio Maris_,6 and the more famous work of Selden--the _Mare Clansum_.7

Footnote 1: Nys, op. cit. 379. ${}^{\\dagger}$Ibid 38o; Hall, International Law \[40-142\].

Footnote 2: A gloss on Bracton's text, printed by Maitland from the Cambridge MS, dd. vii Go, which comes from the end of the reign of Edward I. or the beginning of the reign of Edward II., runs as follows :-${}^{\\star}$E tenota de prima parte quod in Anglia minus curatar de jure naturali quam in aliqua regione de mundo quia Rex Angllie vocatur dominus matrium propter potestatem suam quam habet in augirs," Bracton and Azo (S.S.) iz5; for the Fasciculus de superioriatric maris of Edward III.'s reign in which this claim is made, see vol. i 544 ; below 47.

Footnote 3: Nys, op. cit. 382-383. ${}^{\\ddagger}$Abovero. ${}^{\\ddagger}$Abovero. ${}^{\\dagger}$Abovero. ${}^{\\dagger}$Abovero ${}^{\\ddagger}$Below 47-49.

The increase in the number and permanence of the peaceful relations between states, the growth of a permanent machinery for the discussion of their differences, and the consequent evolution of a number of legal rules as to the working of this machinery and as to the principles applicable to settle these differences, naturally tended to bring into prominence the department of International law which concerns Peace. It became clear that the importance of the law which regulated the peaceful relations of $states was as great as the importance of the law which regulated their relations in time of war. But this in its turn tended to give rise to an altogether new department in International law--the department of Neutrality. In the seventeenth century it gradually became clear that, if war was raging between any two states, those states which took no part in the war had peculiar rights against, and owed peculiar duties to, the states at war with one another.

The status of $,$Neutrality was unknown in the Middle Ages, and was ill-defined in the sixteenth century.8 Even in Grotius' work it takes no large place. In fact it was not till the latter part of the seventeenth century that the leading principles of the modern law began to be ascertained. The reason for its slcw growth must probably be sought in the disturbing influence ofLaw in Xwith and Kvizhn'cents.

the wars of religion. The foreign policy of the state was often not in accord with the religious views of large sections of its subjects ; and this made for interferences in the domestic dissensions and the foreign wars of other states with which there was nominally peace. Englishmen in the reign of James I. were ready enough to take a hand in the Thirty Years War, and soldiers were enlisted in the Protestant interest.1 Again, states were sometimes nominally at peace, but each was ready to assist the enemies of the other. This was the position of England and Spain right down to 1588. It was not till the wars of religion were over that differences between states came to be based solely upon divergent national interests. It was not till then that the states of Peace, War, and Neutrality could clearly emerge and give rise to distinct sets of rules.

Footnote 1: Below 49.

In these various ways the necessities of the territorial state had set a number of new problems to statesmen and lawyers. A few concrete instances, taken from English history, will show us that the solution of these problems was giving rise to a number of new applications of old rules, to many entirely new rules, and to some new theories and speculations.

(ii) _Some concrete instances from English history of the problems set by the necessities of the territorial state._

Wc have seen that the maintenance of the study of the civil law was grounded mainly upon the necessity of educating men who could advise the government in international difficulties.2 Though these difficulties occasionally came before the common lawyers when they touched on English law,3 they were generally matters which concerned the Council, and depended upon4 the rules which, all over Europe, the civilians were applying to their solution. The manner in which the Council used the advice of the civilians to help them in these difficulties has been so clearly described by Nys that I shall copy his words.4 He says : " A perusal of the volumes of the Calendar qf State Papers establishes that, before the period when international law was greatly developed, the English government was convinced of the necessity of juridical study and advice upon international questions ; we can see that it knew perfectly how to utilize the talents of its agents. #Among the memorials which they drew up," some take the form of truly academic dissertations, as for example the reply of Valentine Dale on the subject of ancient and modern wars begun illegally and without just cause ; 5 others are quite technical, such as the opinion as to those who assist pirates;' others again have an intense practical bearing on the facts of the day, as the examination which the same learned civilian made, on the instructions of Burghaley, of the book in which Don Antonio had maintained his rights to the throne of Portugal, which were disputed by Philip II. In his reply to Burghaley Dale adds a?note of the treatise of Bartolus _De Dipartiatibus_, on the subject of the position of a prince outside his own dqninitions."2

Footnote 2: The author is grateful to the anonymous referee for his constructive comments on the manuscript.

Footnote 3: The author is grateful to the anonymous referee for his constructive comments on the manuscript.

Footnote 4: The author is grateful to the anonymous referee for his constructive comments on the manuscript.

Footnote 5: The author is grateful to the anonymous referee for his constructive comments on the manuscript.

The last-mentioned subject was a matter of very practical importance to the English government while Mary Queen of Scots was in England. As against the legality of her detention by Elizabeth she contended that a foreign sovereign was wholly immune from any territorial jurisdiction;3 and this is the view which has previtei.4 Elizabeth, on the other hand, contended that she was within her right in detaining her in custody as this step was necessary for her own safety.5 And later, she defended her right to try her on the undoubtedly valid grounds that, having been deposed, she was no longer a sovereign; and that, being in England, she was subject to English law.6

Footnote 5: The author is grateful to the anonymous referee for his constructive comments on the manuscript.

Footnote 6: The author is grateful to the anonymous referee for his constructive comments on the manuscript.

The position of an ambassador and his suite gave rise to many debatable questions. According to the views of the civilians consulted in the case of the Bishop of Ross, an ambassador who attempted to raise rebellion forfeited his privileges;7 and Coke and others seem to have thought that the commission by an ambassador of " any crime which is contra jus gentium as treason felony adultery " entailed forfeiture of his privileges.8 But the opinion now established that an ambassador in such a case should be simply ordered to leave the country was advocated by Gentili and Hotman in the case of Mendoza, and was followed by the government.9 Similarly it would appear from I.AW in XV,ith and Kvitth Cernis.

Coke, and also from writels on international law, that the immunity of the ambassador from civil suits was by no means fully established.1 In 1590-1591 a Dutch enoy, who claimed to be "a public person," complained to the Council that he had been arrested at the suit of Gerrard de Malynes; and the Council referred the matter to Drs. Aubrey and Cesar for enquiry.2 The privileges belonging to the Ambassador's residence were sometimes, according to our modern ideas, unduly curtailed. Thus Philip II. once denied the English ambassador the right te use the service of the Church of England in his house.3 Sometimes they were unduly extended--as when Sully tried and condemned to death a member of his suite who had killed an Englishman in a brawl.4 That a member of the ambassador's suite was, by English law, amenable to the local criminal jurisdiction was settled in 1654 in the case of Don Pantaleone Sa who, though the brother and a member of the suite of the Portuguese ambassador, was tried and executed for murder.5

Footnote 1: Coke, Fourth Instit. 153, says, " And so of contracts that be good jure gentium he must answer here "; Zouche, juris et Judicii Fecialis Explication, Pt. 2 SS 4, says, " De omni contractu quem tempero Legationis initi" Legatum judicium subire debere censet," and he vouches Gentii ; cf. Nys, op. cit. 341; but Giroius, De Jure Belli et Pacis, Bk. ii r8. g, took the opposite view, which has prevailed; for the analogous case of the foreign sovereign see above 45 n. 4."

Footnote 2: Dasent x30.

Footnote 3: Ibid r83; Giroius said, op. cit., Bk. ii r8. g, " Ipse autem legatus an jurisdictionem habeat in, familiarium suam. ex concession pendet ejus apud quem agit. Illud em juris gentium non cst."

Footnote 4: Pitt-Cobbet, I.cading Cases on International Law (and Ed.) 114; Giroius had said, op. cit. Bk. ii r8. s, "'si quid comites gravius deliquerint postulari a legato portirt au cos detat."

Footnote 5: Nicolas vii 47-48 (1540); Dasent i r62, 220 (1545); ii 373 (1549-1550); iv 178 (1552), 289 (1553); vii 357 (1570); xvi 475 (1588).

Footnote 6: Nicolas vii 18, S6, 131(1540); 308-309, 3178 (1547); Dasent i r67, 275 (1545); iv 390 (1553-1554); v 98 (1554-1555); vii 348 (1567); 392 (1570); xi 343, 347 (1579); 3714(1579)-580).

The number of questions which arose in this period as to the rights and privileges of ambassadors illustrates the important place which these permanent emphasis were taking in the political life of the period. Their presence was in fact very necessary to adjust the minor differences which were always arising out of the constant intercourse between the various states of Europe. There are very many instances in the Council records in which the ambassador of some foreign power brought to the notice of the government some case of the ill-treatment or oppression of a subject of his own state;6 and conversely, there are many cases in which representations were made to "the ambassador of a foreign power by whom an English subject had been oppressed.7 Very many of these complaints were made by English and foreign merchants.' Sometimes they arose out of the grant of reprisals, which was still a method used to force a foreign state td, give ledress.1 But it is clear that the newer method of diplomatic representation, and the action taken in consequence of it, was doing much to render unnecessary this barbarous method of obtaining satisfaction.

Footnote 1: Dasent i iov, ro8, riz (1543); viii 4, 5 (1570-1571); above 38.

In England, as abroad, it was the growth of foreign trade which gave to all, questions connected with sovereignty of the seas an international importance. On the one hand, England resisted the claims of the Spaniard to prevent all other nations from trading in the New World, and insisted that they had no right to countries which they had not substantially occupied.2 On the other hand, she rigidly asserted her rights to the sovereignty of the four British seas. The omission of a foreign ship to strike his flag and lower his topsoil was regarded as an act which justified firing on the offender--as Philip II. found when he came to marry Queen Mary.3 The Dutch were the supporters of the _Mare Liberum_. Their refusal at the beginning of the seventeenth century to recognize the English claims, and, in particular, their refusal to obey the royal proclamations which attempted to confine the right of fishing off the British coasts to British subjects, led to much negotiation and to threats of war.4

Footnote 2: See Walker, op. cit. r6i, citing Camden, Elizabeth ii ir6.

Footnote 3: Ibid 163-164.

Footnote 4: Ibid 167;169; Welwod in his book De Dominio Maris (1615) distinguished between the distinct claims to freedom of navigation and freedom of fishing, Nys, Rev. de Droit International xvii 77.

Footnote 5: Above 45 n. l.

Footnote 6: Dasent xv 339 (1587-1588); xvii 398-407 (1589); xvii 8, r7, 10, 27 (1589). For some discussions in r656 with the Swedish ambassador as to what goods could be declared contraband, see Whitelocke, Memorialis iv 243-246.

Similarly it was the importance of the interests of traders which led to the beginnings of a definite law of Neutrality. And, this being the case, it is only natural that that part of the law which is concerned with the relations of the neutral individual to the belligerent state was the first to attain clear definition. We have seen that in r640 Sir H. Marten gave an opinion to the house of Lords as to the right to capture enemy goods in English ships.6 The liability of a neutral ship for the carriage of contraband 6 or the analogues of contraband,7 the right of the crown to the delinquent ship and goods,8 the immunity of a neutral ships carrying goods belonging to neutrals other than

### Law in Xvith and Xvith Events.

contraband,1 were matters which were frequently before the Council. A letter of the Council, in i58),2 to the commissioners for dealing with ships taken on the coast of Portugal, shows that some principles as to the law of contraband were beginning to emerge. The goods in these ships, say the Council, 4 we conceive to be of three kindes, the first being of the nature of munition and yvetoell are by her Majestie's order to be arrested in respect bothe of the unlawfullnes of the note to relieve her Majestie's enemies with suche warlyke furnitures, as also for the admonition and prohibition made to the inhabitants of the said Townes aforehand not to convey into the contreys and dominions of the Spanish Kinge . anie comodytes of those kindes whereby her enemies might be armed and strengthened to invade her Realmes and Dominiones . The second being meere merchaundizs, and of suche nature as may nether fecde nor arme her said enemies, her Majestie is pleased to forbear to stay them, and to leave them to the use of the proprietaries . The thirde and last kinde is suche as althoughe yt be mere merchandize, yet in case the proprieties thereof shallbc found to appertaine to any Spagniard or Portugegall, her pleasure is that yt be held as lawfull prize,3 to be taken and employed to the use of her Majestie, and of such as have adventured in the late voyage."

Footnote 1: Dasent i 230, 250 (r545); xvi 415 (r583); xvii 398-401 (r589); xviii 19 (r589).

Footnote 2: Ibid xviii 29-33.

Footnote 3: Free ships did not make free goods; and in r656 the government expressly declined to admit this principle, Whitelocke Memorials iv z13;

Footnote 4: Dasent xv iz8-9(r583)--the usage was found to bethat, "All merchantes strangers had from time to time been reeceived within the Isles of Jersey and Gamesy in safetie, free from arrests both of their lives, shippes and goods ; and touching the expediciene, for that the public benefit that both the Crownes of England and Fraunce did receive in time of hostillite or unkindness by continuing the said lsles in a kind of Neutralitic to serve for a place of common vent for both the said localizes was sufficient knowing, it seemed great reason that, (suchvesonisederacions continuing still) their priviledges grounded upon the same should likewise be still maintained and continued."

But the part of the law of Neutrality which is concerned with the rights and duties of the neutral state to the belligerent state was still very obscure. It is true that the condition of Neutrality was recognized in fact. In i587 some French ships had been arrested at one of the ports of the Channel Isles. The local authorities claimed that the Isles had always been regarded as neutral ground. The government were inclined to consent to the policy " of continuyngc the said Isles in a kind of neutralitie to serve for a place of common vent for both the said Realmes "; and the ships were ordered to be released if the French consented to follow a similar coarse.4 It is true also that an effort was sometimes made to give effect to neutral rights and duties. In i604 James I. forbade all belligerent violence in the

**INTERNATIONAL LAW**

British\*seas; \[1\] In 1572, I573, and I577 Elizabeth prohibited the levy of troops for service in countries with which England was at peace; \[2\] and in 1605 the court of King's Bench and the civilians differed on the question whether property taken by a Dutchman from a Spaniard and brought to England could be claimed by the Spaniard.\[3\] But practice was not in accord with theory. In 1605 the Dutch and Spanish fleets fought in Dover harbour; \[4\] and though, \[5\] Englishmen cried shame when Charles I. lent men-of-war to his French brother-in-law for the subjection of the Huguenots, they thought it no harm that regiment after regiment of their fellow-country when enlisted by the royal authority, or at least by the royal permission, for the service of the Dutch against the Spaniards, with whom England was nominally # peace; that Elizabeth received Havre as the price of assistance granted to the revolted French Protestants; or that 6000 Scots under the marquis of Hamilton fought for German Protestantism against the Emperor.\[5\] Probably it is the unsatisfactory state of international practice that accounts for the fact that we find a good deal more information about Neutrality in the actual diplomatic intercourse of the period than in the books.

The growth of the idea of the sovereignty of the territorial state over all persons within its borders gradually settled the question of the liability of a foreigner for breaches of the local criminal law. He was liable because he owed a temporary allegiance to the government of the country in which he was resident.\[6\] On the other hand, it was generally held in England \[7\] and other European countries \[8\] that he could not be made liable to the local criminal law for offences committed abroad. Nor was there, apart from special treaty, any obligation to extradite him. Certain earlier treaties provided that the contracting parties should not give shelter to the enemies of the other; \[9\] but as Nys has said, they contemplated expulsion as a police measure, and not the beginning of a criminal proceeding.\[10\] It is very rarelyLaw in Xvith and Vitiitii Centis.

that these treaties had reference to any other than political crimes.1 But there are instances of applications for extradition made by foreign sovereigns which were acceded to.2 The idea was growing up that such criminals should not go unpunished; and Gratius maintained that a state shot'd either give up the criminal or punish him.3 This view was acted on by the States-General of the Netherlands when they issued an order for the arrest of the rcgicides who had taken refuge on their territory.4 According to English law, a natural born subject could not get rid of the tic of allegiance.5 Therefore if such a subject had broken the law of England and was brought within the jurisdiction of the English courts, he could be tried and punished. This was settled in the case of Dr. Story who was kidnapped in the Netherlands, brought to England, and tried and executed for treason. His case is another illustration of the manner in which religious fanaticism produced irregularities in international practice. It is clear that his capture was a gross violation of the rights of the King of Spain.6

Footnote 1: Nys can only cite one, concluded between Charles V. and the count of Savoy, ribid 275.

Footnote 2: Nicolas vii 147 (1547); Dasent iii 407 (1551); Acts of the Privy Council (1613-164), 44(--examinations ordered in connection with a fugitive criminal from France; see N.P. Dom, 1640-1641, 378, ccccxxv rog for some notes as to the precedents on this matter.

Footnote 3: De l'are Belli et Pacis, Bk, ii 21. 4, "Cum vero non soleant civ'tates permitre et vitiats altern armata inter fines suo pecnic expetenda nomine veniat, neque id expedati, sequtur civitas apud quam degit quil cege est cc npertus, alterum facere debent, aut ut ipsa interpellata pro meritc puniat nocentem, aut ut eum permitat arbitrio interpellantis. Hoc enim illud est dedere, quod in histotiis sepissime $c$ occ'urrit."

Footnote 4: Nys, op. cit, 276-277.

Footnote 5: Calvin's Case (160), 7 Co. Rep. 25a ; contrary to the opinion of Zouche, Juris et Judicii I'ecialis, Pt. II, SS 2. 12; he also held the generally received view that a man-could eot at the same time be the citizen of two states, ibid Pt, II- SS 2. 13.

These instances of international discussions and controversies show that, in England as elsewhere, a new branch of law had arisen. It was obviously necessary that it should receive some systematic treatment; and many jurists in different countries came forward to supply this need. In the books of the English writers on this subject we can find some of the earliest statements of modern international law. With some of these books I must now deal.

_The Earliest English IVriters on International Law_

The characteristic feature of modern international law is that it is the law which regulates the relations _between nations._ It is _jus inter gentes._ It is exactly this characteristic feature which emerged clearly in the sixteenth century. The earliest writer

**NTENATIONALI LAW**

to emphasize **i** was Francis de Vitoria--"Quod naturalis ratio inter ounces gertes constituuit vocatur jus gentium."1 But the idea was too obvious to be missed; and it appears in other writers. Hooker brought it out with great clearness;2 and, though it was not emphasized, it was recognized by Griotius,3 and waB adopted and elaborated by Zouche.4 From him it has passed to all successive writers who treat of or touch upon the subject.5$\\bullet$

Footnote 1: N', s, op. cit, 8; Les Fonfacteurs du Droit International, by various writers, 7, 329.

Footnote 2: "Besides that law which simply concerneth men as men, and that which belonged unto them as they are men linked with others in some form of politic society, there is a third kind of law which touched all such several bodies politic, so far forth as one of them hath public commerce with mother," Ecel. Pol. i no SS r2, cited Pol. Lock, Camb. Med. Hist. xii 709; and cf, vol. iv zzt4.

Footnote 3: Above 27 n. 1.

Footnote 4: Juris et Judicii Fecialis sive Juris inter Gentes et Quaestionum de eodemi excli- catio, Pt. I SS r, " Quod inter principes vel populos divensarum gentium commuter intercedit, cum ex hoc jure, ut refert ciam juris consultus (Giaus), gentes discrete sunt, regna conidia, commercial instituta, et denique bella introducta. Quod est pos-teterions generis, jus inter gentes, placet appellate, quod apud Romanos, speciali nomine Jus I'eciale." It was Bentham who coined the modern term " International Law."

Footnote 5: See e.g. the definition of Hobbes, Leviathan (rst ed.) r85.

Footnote 6: Above 44-45.

The recognition in the sixteenth century, of this, distinguishing characteristic of international law is typical of its growth. Among many nations the birth of this new body of law had gained recognition; and many lawyers before Griotius had begun to treat systematically of various parts of it. The English nation was not behind land in this work. We have seen that the English civilians were always called upon to advise the government upon international questions;7 and that some of them had begun to write treatises upon several topics connected with it.8 Two of them--Alberico Gentili and Richard Zouche--have written books which have helped to make the modern law; and therefore of them and of their works I must say something.

Footnote 8: Londateurs du Droit International l44.

We should naturally expect that the principles of this new body of law would take their modern shape in the writings of men who belonged to the reformed religion. It was easier for thehn to see eye to eye with the new political and intellectual conditions which had given them birth. And this is the case. For, although the writings of famous theologians and lawyers of the Spanish nation contributed to the formation of the modern lawoof war, it is in the writings of men who came from England and Holland that modern international law as a whole first took shape. A cardinal of the Roman Church complained that Griotius's book gave too little space to the prerogatives of the pope, and his book was placed upon the Index.9Law in Xvith and Kyivlin'cents.

Alberico Gentili wrote before, and Richard Z'ouche wrote after Grotius. A comparison of their work will illustrate both the debt of international law to the school of English civilians, and the position of the man who by general consent h.s been rightly regarded as the founder of the modern law.

Alberico Gentili **i** was educated at the University of Perugia. It was a famous legal university, and could boast of having had Bartolus and Baldus among its pupils. It wtis natural therefore that Gentili should be an upholder of the Bartolists as against the school of the Renaissance jurists.2 H& took the degree of Doctor in 1572; and till 1579 followed the profession of the law. In 1579 he and his father, having become Protestants, left Italy and found a refuge at Camiola in Austria. But Gentili did not stay there long. In 1580 he came to England. He was brought to the notice of Leicester, the chancellor of Oxford University, and, through his influence, was incorporated doctor of civil law in that university. He taught for several colleges, the earliest of which was St. John's,3 and produced many books. That he had gained considerable reputation is clear from the fact that in 1584 he and John Hotman were consulted by the government as to the proper course to pursue in the case of Mendoza, the Spanish ambassador, who had been implicated in the plots against Elizabeth. One of the results of the attention which he gave to this subject was the production of his book _De Legationibus.4_ In 1586 he left England for Wittenberg; but in 1587 he was recalled to Oxford, and made Regius Professor of civil law. It was while he held this office that he published his most famous book--the _De Jure Belli.5_ In 1605 he was employed as advocate to the Spanish embassy. At that time England was a neutral in the war which was still going on between Spain and the Netherlands. The results of his experience in that office were the _Advocationis Hispanice duo Ivori_ which were published after his death. They are "a very important and interesting collection of notes of cases involving the rights of belligerents 'and neutrals."6 Gentili died in London, June 19, 1608.

Footnote 3: This account of Gentili is taken from Holland, Studies in International Law 1-30; cf. Les Fondat:urs du Droit International 39-45; Phillipson, Journal Soc. Comp. Leg., xii 52-80,

Footnote 4: For a summary of this work see Les Fondateurs du Droit International 69-74; Nyss, op. cit. 350-352.

Footnote 5: Edited by ProfessorHollapol in 1877, and published by the Clarendon Press; myreferences are to the pages of this edition.

His work was appreciated by his contemporaries. Fulbecke described him as a man "who by his great industrie hathe quickened the deade bodie of the Civil law written, by the annu

## 10.1 Introduction

The \_DeLaw in XVTH and XVITH CENTS.

war as " publicorum armorum"justa contentious "1" 1"

**INTERNATIONAL${}\_{4}$ 1.AW**

because,he had the philosophic gifts which Gentili lacked. These gifts guarded him from'stating as law rules which went beyond the practices and observances of the nations, and thus enabled him both to put the ascertained law upon a firm footing, and to make suggestions for reforms in such a manner that they won a ready acceptance.1

Footnote 1: Les Fondieures du Droit International 89.

A history of English law is not the place to enter into a detailed account of Grotius and his work. But since much international law is part of English law, and since Grotius has influenced the whole course of the development of that law, it is necessary to summarize very briefly the causes and nature of his influence.2

Footnote 2: I have made great use of Professor J. Isadevant's able account of Grotius in Les Fondateurs du Droit International 1rts-267; also of Mr. Walker's analisis and estimate of his book in his History of the Law of Nations i 278-337. Grotius's book was translated into English in r554, Nys, Le droit Romain, le droit des Giens, etc. 89-90.

The reason why the publication in 1625 of the _De Jure Belti et Pacis_ marks the beginning of modern international law is to be sought firstly in the character of Grotius's intellectual training, and secondly in the character of his mind.

_Grotius' intellectual training._--(i) He was a trained lawyer. With him, as with Gentili, the concepts of the civil law supplied the cement which enabled him to bind together under recognized principles the phenomena of international relations. This is apparent if we look at his account of the manner in which sovereignty can be acquired or alienated,3 or of the manner in which treaties ought to be interpreted.4 (ii) He was a master of the scholastic method to which the lawyers of that age were accustomed. This leads him "to make an infinite number of divisions, and to examine successively under different points of view the questions of which he treats,"' The characteristics which often make his book tedious to a modern reader helped to increase its authority among the readers of his own time. (iii) He was also a master of the humanist learning which the lawyers of the Renaissance had used to correct the errors of the school of the commentators. He could use the classical historians and the classical philosophers to supply him with instances, and to support his theories.6 (iv) He was a Protestant. That meant that, like Gentili, he was emancipated from the older political and theological ideas, and was able to look fairly at the political and theological phenomena of his day.7 And he was a more tolerant Protestant than Gentili,8Law in Xvith and Xvith Cents.

He was prepared to extend the boundaries of international law beyond the circle of Christian states. Christian states indeed were more closely bound together by ties of kinship; but none the less the infields had rights, and no human law forbade the formation of an alliance with them.1

_The character of his mind._--Grotius had both a sympathetic and a constructive mind. He was capable of appreciating the strong points in the views of his predecessors;and his appreciation kept him within the circle of ideas which could be understood by his confteporaries. Most of his theories could be illustrated from older books; but he was able so to combine what he had borrowed that he gave to his borrowings a wholly new meaning.2 Thus he based his theory of the law which governed the relations of states upon so skilful a combination of natural law, divine law, and established custom, that it won a universal acceptance. As Sir F. Pollock has said,3 "'Scholars and philosophers would for the most part accept the law of nature; divines, and especially Protestants (many of whom regarded natural law with suspicion), expected Scriptural warrant; public men would insist on being assured that the author who called for their attention was walking on the ground of practical affairs, and not merely setting up his own opinions as an universal standard." It was only a learned man with this kind of sympathetic and constructive mind who could succeed in establishing international law on a basis which "learned men would deem sound and men of the world would not think fantastic."4

Footnote 1: Grotius, De Jure Belli et Pacis, Bk. ii 15. 8, " De federibus frequens est drestio, licite-ne inenantur cum his qui a vera religione alieni sunt; que res in jure natura dubitationem non habet. Nam id jus ita omnibus hominibus commune est, ut religionis discrimen non admittat. Sed de jure divino quaeritur ex quo hanc quastionen tractant, non theologi tantum, ged et juris consultourn non-null."2 Les Podateurs du Droit International 204-265, " Son merite propre est d'avoir fait le synthese des elements fourmis par ses precursurs. On a pu dire que le De Jure est coma, e la derniere forme des travaux anterieurs. Ceux ci peuyent disparatite: le traite de Grotius sauve, ou n'aura presque rien perdu. Que si l'on pretend qu'il resterait bien peu a Girotius si ses predeceseurs s'avisient de lui reclamer ce qu'il leur doit, cela nous touc peu. Grotius s'est vraiement appropri ce qu'il a tire de ses predeceseurs. Son oeuvre a donne a des solutions deja presentes anterieurement une forme nouculle en les reenferman dans un systeme: en les condensant, notre auteur a pu etre considere comme l'expression unique de la doctrine de son temps."4

Footnote 2: The word $\\mu$ is a

## 6 The main results

The main results of this thesis are the following:

- The first part of the thesis is the first part of the thesis, and the second part of the thesis is the first part of the thesis.
- The second part of the thesis is the first part of the thesis.

### 58 law in XVTH and XVTH events.

authoritative form the results of development made by a series of predecessors, and produced works which were the starting-point of new developments. Grotius summed up in authoritative form the works of many predecessors, and his work has been and is the starting-point of modern international law. But in one respect his work is greater than the work of any of those to whom I have compared him. His success in putting the law governing the relations of states upon a philosophical basis which satisfied his contemporaries, emancipated that law from its bondage to theology, and distinguished it from ethics. In other words, he did more than found a new method of treating old law ; he founded a wholly new branch of law. Within thirty-six years after its publication (1661) a chair was created at the University of Heidelberg to expound the doctrines of the modern international law which he had created.1

Footnote 1: Les Fondateurs du Droit International 267.

Before this date the work of Zouche--the second of our famous English international lawyers--had shown clearly that international law had become a separate body of law, and an integral part of the law of civilized states.

Of Zouche's life and works, and of the character of his mind, I have already spoken.2 The work which has given him enduring fame is that in which we are now interested. It is entitled _Juris et Judici Fecialis sive furis inter Gentes, et Questionnaire de Foteem Explainatio_, and it was published at Oxford in 1650. His later tract entitled _Solutio Questions veteris et novea, sive de Legati delinquentis judice competente dissertatio_,3 which was called forth by the case of Don Pantaleone Sa, also deals with one of the problems connected with the same branch of law.

Footnote 2: Above 17-18.

Zouche's work on " Jus inter Gentes" is divided, like Very many of his other books, into two parts. The first and shorter part deals with Jus inter gentes, and states the leading principles of the law applicable, first to Peace and then to War, under his usual heads of Status, Dominium, Debitum and Delictum.4 The second and longer part deals with Judicium inter gentes, and discusses particular cases under the same divisions.

Footnote 3: Published at Oxford in 1657.

Footnote 4: Above 18.

The division of the law under the heads of Status, Dominium, Debitum, and Delictum is not the most happy for a book on international law.5 But the plan of distributing the subject matter of the law into the two parts of Jus and Judicium, though not one to be commended at the present day, was more defensible in Zouche's day, when international law was young. In the first place, it clearly set before the reader the kind of cases inwhich there was a doubt, and gave some indication of how that doubt should be resolved. In the second place, it kept legal speculation in touch with actual modern facts. The same tendency to base the law on the positive practice of modern nations, which appears in Gentili's work, appears even more markedly in that of Zouche ;1 and, as we might expect from his training in the common law, most markedly of all in the work of Selden.2 And Zouche could pursue this method more safely than Gentili, because Grotius had given to international law a settled position upon a philosophical basis satisfactory to the age in which he wrote. Thus both Zouche and Gentili foreshadow the school of English international lawyers which bases international law on the positive usages of nations, rather than upon a series of deductiohs from the a priori principles of a supposed law of nature. No doubt, as I have said, some such a priori basis was very necessary in the infancy of international law. It was still necessary when Zouche wrote. But it tends to become less necessary as the contents of the positive usages become more extensive and detailed. The methods and outlook of these two earliest English writers foreshadow the methods and outlook of most international lawyers in modern times.

Footnote 1: "Clez Uentius etchez z seiden, chez Zouch surtout c est. . Teienent praticen qu'on va voir predominer. L'ecole internationale anglaise fut en cffett eminemment pratique," Les Fondateurs du Droit International 327-328.

Footnote 2: Above io-11. ${}^{\\text{a}}$ Les Fondateurs du Droit International 329-4 See Journal Soc. Comp. Leg. ix 353- ${}^{\\text{b}}$ Ibid 322.

Zouche was a disciple both of Gentili and of Grotius. His books contained a critical summary of their results, and popularized their work in England and Scotland.3 He helped to make the new international law a part of English law ; and his works have more than a merely insular fame.4 This was due to three very considerable merits which they possess. In the first place, in his book international law appeared for the first time in a compact and orderly form.6 In the second place, he so clearly defined it, that no one for the future could be under any misapprehension as to its scope.6 In the third place, he originated the modern division of the subject into Peace and War.7 In his book the tradition, inherited from the medieval books, of grouping the whole subject round,the laws of War was finally abandoned. He was followed by a succession of civilians who, by the opinions which they gave to the government, helped to develop the principles which he had stated and explained.8 But it was not till the last century that an English writer produced a treatise Iaw in Xvith and Xvith Gents.

on international law so comprehensive and so influential as that of Zouche.

We must now turn to the topic of commercial and maritime law. It is connected in some of its aspects with International law ; and at the beginning of this period it was influenced by the civil law, and, to a large extent, was administered by the civil lawyers. But it was far more closely connected with the common law than international law then was or ever has been ; and at the end of this period, there were clear signs that the common lawyers were succeeding in their attempts to out the civilians from their control over it.

## 3 Commercial and Martimk Law

The broad outlines of our modern system of commercial and maritime law begin to emerge at this period. Though the origins of some of its rules must be sought in the collections of customs which made up the commercial and maritime law of the Germanic nations in the Middle Ages, the origins of most of its leading principles must be sought in the rules which, from a basis of Roman law, were being evolved in the great trading centres of southern Europe to meet the new needs of an expanding trade. In this section I shall endeavour to explain the way in which these principles either were received into or inspired additions to or alterations of the rules of English law.

In tracing the history of the courts which, at different periods, have administered the commercial and maritime law of this country,1 I have necessarily touched upon some of the leading features of these two branches of the Law Merchant. Their most striking and most permanent feature was, as we have seen,2 their international or, as I should prefer${}\_{\\bullet}$to call it, their cosmo-rolitan character. In the Middle Ages this feature is not peculiar to the Law Merchant. The universality of the civil and canon law, the universality of the political religious and ethical theories which their exponents assumed, and the broad similarities in the actual conditions of life which prevailed throughout Western Europe, give to many branches of medieval law this cosmopolitan character.3 If we look at the legal rules which

## 6.1 Commercial and Maritime Law

determined suh matters as the position in the state held by the great feudatoris, the various kinds of tenure, or the condition of the labouring classes, we can see that they share this character with the Law Merchant. No doubt there are broad differences between the laws upon these topics which prevailed in the various countries of Europe, just as there, were broad differences in their political conditions. But it is well to remember that the rules of the Law Merchant were not the same all over Europe. One set of maritime customs prevailed in the northern countries of Europe, another in the Mediterranean towns and scaports; \[1\] and there were small varieties in the commercial and maritime laws of the different states in both these parts of Europe.\[3\] Why then have the cosmopolitan characteristics of the Law Merchant always seemed to lawpers of many different ages and countries to be its most striking feature?

It seems to me that the cosmopolitan features of the Law Merchant, though existing alike in medieval and in modern times, are rather a modern than a medieval peculiarity. I very much doubt whether these features would have seemed peculiar to a medieval merchant or lawyer. The merchants were simply one of the many sharply defined classes of medieval society; \[3\] and the customs of all these classes possessed cosmopolitan characteristics similar in kind if less in extent; while the civil atd canon law possessed them in a far higher degree. But to get legibus audiantur. Quum transmarini negotiators inter se causam habent, nullus de sedibus nostris eos audire prasumat, nisi tantum modo suis legibus audiantur apud telonarios suos "; this idea of a personal law may have had some influence in earlier days upon the manner in which commercial usages spread over Europe; but it was mainly the influences mentioned in the text which are at the root of the cosmopolitan character of the Law Merchant of to-day; as Goldschmidt, op. cit., and Huvelin, I'ssai Historique sur le droit des Marches et des Foires 384, 385, point out, this passage does not refer to judges elected by the merchants; these telonari were royal officials appointed to collect the dues payable, Huvelin, op. cit. 389 n. z.

\[1\] Vol. i 527-528; below too.

\[2\] Mitchell, The Law Merchant r-94 and authorities cited s n. r; as Mr. Mitchell says, at p. g, though \[4\] Everywhere the leading principles and the most important rules were the same, or tended to become the same," yet that, " each country, it may almost be said each town, had its own variety of Law Merchant," all being, however, " varieties of the same species"; thus we often find that cases are to be decided " secundum consuetuindem curiez," see the Breve Pisani Communis (r286) i. c. 33; Statuta Pisani (F.d. Bonaini) i 89, 90; the Breve Consultum Curie Mercatorum (1305) SS 82, ibid iii 59, 60. The Statuta Commins Boniuz (1250) cited Goldschmidt, op. cit. 173 n. g,g, direct " quod jus fori et mercati redatur secundum consuetuindem fori sive mercati"; Straccha, De Mercatura (ed. 1553) kg, talking o the contract of hire says, " Contagrus a consuetuindem et loci interpretation" recipient "; the Munimenta Gildhalbe {R.S.} II. i 266 speaks of the " usus et consuetudines feriaram et villarum mercatorarium "; the Red Book of Bristol 62 notes that the methods of dealing with absent defendants are very various, so that, " pullus omnino processum legis mercatoriae in ea parte sicre nec cognosce poteri." The " Breve"-a"000-ment we frequently meet with in collections of Italian laws--was a short manual containing the oath of the Magistrate and his duties, Pardessus, Collection des Lois Maritimes y 557: generally each Art had its Breve.

\[3\] Vol. ii404-466; vol. iii 450-458; vol. iv 402.

Law in Xvith and Xvith Cents.

the merchant or lawyer of modern times, accustomed to separate states and separate systems of law, the retention of these features was and is a peculiar feature ; and, therefore, modern lawyers from the seventeenth century onwardshave noted $\\hat{\\bf w}$; as the post distinctive feature of that law1 Why then, we must ask, were the cosmopolitan features of the Law Merchant retatified and even emphasized at a time when other branches of law were losing their cosmopolitan character? $\\bullet$

Footnote 1: The earliest statement comes from 1473 ; in Y.B. r3 L.J. V. Pasch, pl. 5 the chancellor said the case should be decided "; secundum legis naturan qu'est appell par ascunse ly Marchant, que est ley universal per tout le mode "; but it is from the earlier part of the seventeenth century that this characteristic is most insisted on ; see Gentili, De Jure Belli, Bk. i c. i (Holland's Ed. pfl 7, 8), " Et hace gentijn juris (mercatos) non sane neglexerint, quac valde ad ipso spetaverint, et ad commerca ipsoorum. Sumt scilicet juris gentium commerca. Et sic itaque notum de popuis omnibus casse potuit ; " Malynes, Lex Mercatoria 2, " Lex Mercatoria in the fundamentals of it is nothing else but (as Cicero defineth true and just law) _Recla ratio_, _natura congruus, diffusa in unnes, conslta, semplitrana_. Howbeit somo do attribute this definition into jus gentium or the law of Nations. But, the matter being truly examined, we shall find it more naturally and properly belonged to the Law Merchant ; " Davis, Impositions (ed. 1656) c. 3, " The Law Merchant, as it is a part of the Law of Nature and Nations, is universal and one and the same in all countries in the world "; Zouche, jurisdiction of the Admiralty Assert, Assert. I, gives Davis and says that it is clear from his words that, " the causes concerning merchants are not now to be decided by the peculiar and ordinary laws of every country, but by the general law of nature and nations "; if we do not get in the books of continental writers like Straccha, Marquardus, or Ansaldus such clear statements of the cosmopolitan character of the Law Merchant it is because, as the authorities themselves are slow, they took it for granted.

In the first place, any sort of trade means travel, and trade carried on by sea means travel over large distances. Men of different countries meet on common businesses and under similar conditions. The business of carriage by land or by water, the business of exchange, present similar problems and generate similar rules. On the other hand, the organization and the activities of the more stationary classes of society tend to develop small differences which gradually crystallize into very different rules of law ; and the growing separation between nations, which necessarily accompanied the rise of the modern territorial state, tended to strengthen these differences.

In the second place, the lawlessness of medieval life necessitated the formation of unions of traders in gills or corporations. These corporations combined to obtain from the ruling powers--

## Commercial and maritime law 63

from king or **f**udatory--the privileges which they needed to enable them to **c**onduct their trade. When they met to trade in fairs or markets, they got a special protection against lawlessness, and a special set of judicial privileges, which enabled a speedy justice to be administered to all who frequented the fair or market.\*\*

**If they were settled bodies carrying on trade in some defined place they got special privileges to regulate the affairs of their trade.**

\*\*No?**doult many other classes of men got their peculiar franchises and privileges in the Middle Ages--notably the landowners great and small. But their franchises and privileges were often used as a means to assert a **turbulent** independence of all authority. They were the great impediments to the establishment of a settled order and a uniform law; and as soon as a strong central government arose, they went down before it. But the merchants were the natural allics of efficient government; and conversely such a government was naturally inclined to show favour to men who increased the wealth of the country, and from whom a large revenue could be drawn. Thus the growth of the power of the state, which was fatal to many franchises and privileges, was favourable to the growth of the franchises and privileges possessed by the merchants. They were allowed to create and to develop their own commercial and industrial organizations, and their own machinery of justice.**

**It is obvious that these liberties increased the existing tendencies to evolve similar rules to govern similar mercantile transactions.**

**In the third place, the influence of the Italian cities was more marked and more permanent in the departments of commercial and maritime law than in any other branch of law. This is due firstly to the fact that, all through the** **Middle Ages, Italy was the centre not only of the legal but also of the commercial life of Europe; and secondly to the fact that in Italy a unique system for the settlement of mercantile disputes had been devised, which gave due weight at once to the exigencies of commerce, and to the establishment of technical legal rules based upon the facts of commercial life. We shall see** **\[**4**\]** **that for these reasons, theItalian solutions of the commercial and maritime problems to which a highly organized system of industry and commerce give rise, and the Italian machinery for applying these solutions to concrete questions, have had a direct and enduring influence upon the law afd the institutions of many European states. From the thirteenth century onwards these Italian influences were directly affecting all the countries both of Eastern and Western Europe.**

\*\*The settlements of Italian merchants in manyLaw in Xviti and Xviti-Cents.

countrics in Europe,1 and their presence at the great fairs 2 familiarized the nations of Europe with their commercial methods, their commercial organization, and their commercial law ; and when, in the sixteenth century, the new geographical, political, and religious conditions created new centres of commerce, the reception of the Italian methods and organization &nd law, already begun, was completed.3

Footnote 1: Below 95, 113.

Footnote 3: Vol. iv 244-246; below 729 seqq.

The development of commerce and industry, and the importtion from Italy of legal principles adequate to rule this development, proceeded oh similar lines in all the countries of Western Europe. This movement was not directly affected by religious and dynastic wars, and the clashing of the new independent states into which Europe was now definitely divided ; for though religion and politics find it necessary to concern themselves with commerce, commerce is not directly concerned with either.5

Footnote 4: Below 77-85.

Footnote 5: Vol. iv 243; below 77-85.

Footnote 6: Vol. iv 269-79.

Footnote 7: Vol. iv 269-79.

Footnote 8: Vol. iv 243; below 77-85.

Footnote 9: Vol. iv 269-79.

Footnote 10: 269-370.

Footnote 11: Below 95, 113.

Footnote 12: Below 92.

Footnote 13: Vol. iv 244-245; below 729 seqq.

Footnote 14: Below 77-85.

Footnote 15: Vol. iv 243; below 77-85.

Footnote 16: Vol. iv 269-79.

Footnote 17: Vol. iv 269-79.

Footnote 18: Below 92.

Footnote 19: Below 92.

Footnote 20: 269-370.

Footnote 21: Below 92.

Footnote 22: Below 92.

Footnote 23: Vol. iv 244-246; below 729 seqq.

Footnote 24: Below 77-85.

Footnote 25: Vol. iv 243; below 77-85.

Footnote 26: Vol. iv 269-79.

Footnote 27: Vol. iv 269-79.

Footnote 28: Below 92.

Footnote 29: Vol. iv 279-85.

Footnote 20: 269-370.

Footnote 21: Below 92.

Footnote 22: Below 92.

Footnote 23: Vol. iv 244-245.

Footnote 24: Below 77-85.

Footnote 25: Vol. iv 243; below 77-85.

Footnote 26: Vol. iv 269-79.

Footnote 27: Vol. iv 269-79.

Footnote 28: Below 92.

Footnote 29: Vol. iv 279-85.

Footnote 29: Vol. iv 280-370.

Footnote 20: 269-370.

Footnote 21: Below 92.

Footnote 23: Vol. iv 243-245.

Footnote 24: Below 77-85.

Footnote 25: Vol. iv 243-245.

Footnote 26: Vol. iv 243-245.

Footnote 27: Vol. iv 243-245.

Footnote 28: Below 77-85.

Footnote 29: Vol. iv 243-245.

Footnote 20: 269-370.

Footnote 21: Below 92.

Footnote 22: Below 92.

Footnote 23: Vol. iv 243-245.

Footnote 24: Below 77-85.

Footnote 25: Vol. iv 243-245.

Footnote 26: Vol. iv 243-245.

Footnote 27: Vol. iv 243-245.

Footnote 28: Below 77-85.

Footnote 29: Vol. iv 243-245.

Footnote 20: 269-370.

Footnote 21: Below 92.

Footnote 23: Vol. iv 243-245.

Footnote 25: Vol. iv 243-245.

Footnote 26: Vol. iv 243-245.

Footnote 27: Vol. iv 243-245.

Footnote 28: Below 77-85.

Footnote 29: Vol. iv 243-245.

Footnote 20: 269-370.

Footnote 21: Below 92.

Footnote 22: Below 92.

Footnote 23: Vol. iv 243-245.

Footnote 24: Below 77-85.

Footnote 25: Vol. iv 243-245.

Footnote 26: Vol. iv 243-245.

Footnote 27: Vol. iv 243-245.

Footnote 28: Below 77-85.

Footnote 29: Vol. iv 243-245.

Footnote 20: 269-3 Fatalian Law Merchant

received the technical rules and ideas of the Roman law.It was not so easily acclimatized in England, because England had never received these technical rules and ideas to anything like the same extent.1 In \*England therefore the reception of these rules and ideas was slower and more difficult. But though this has led to the growth of considerable differences in the mode of the development and in the ultimate form of the rules themselves, they were received in England; and therefore, in England as elsewhere, it is to them that we must look for the origins of our modern commercial and maritime law.

Footnote 1: Vol. 17, 228-239, 235-289; below 151-154.

The manner in which these branches of English law have originated, and the peculiarities in their development, determine the manner in which we must trace their history. I shall relate it under the following heads: Firstly, the Italian Law Merchant and its reception 'throughout Europe in the sixteenth century; and secondly, the beginnings of English commercial and maritime law.

The Italian Law Merchant and its Reception throughout Europe in the Sixteenth Century

The Romans possessed no separate system of mercantile tribunals and mercantile law.2 The ordinary law and the ordinary judicial tribunals sufficed both for traders and for non-traders, because both the law itself and the procedure of the tribunals had been gradually adapted to the needs of commerce,3 and because the peace maintained by the Roman Emperors gave to traders an ample security.4 Thus the commercial and maritime law of Rome must be sought in many different parts of the Corpus Juris.5 Such topics for instance as sale, hire, bankruptcy, agency, or shipping, are not grouped by themselves, but form simply a part of the ordinary law. To the English lawyer this may not appear to be strange. But in point of fact it is strange, for the English and the Roman systems are perhaps the only two systems in the world which have developed their commercial and maritime law as part of their ordinary law. On the Continent these bodies of law have been developed by a separate set of tribunals, and at Law in Xvith and Xvith CENTS.

The _explanation_ of this phenomenon must be found in the manner in which the commercial law of modern Europe has grown up.

In the dark days which followed the fall of the Roman Empire commerce did not wholly cease,2 but the calling of the mere.ants became adventurous, and their profits precarious. In order to obtain some sort of security they followed, as M. Morel has pointed out,3 two sets of expedients. Either they got control of the government, or they allied themselves with royal power and obtained franchises and privileges which enabled them to carry on their trade. The first was the course pursued by the merchants of the Italian cities ; and their example was soon followed by certain towns in the Spanish Peninsula and in the South of France. The second was the course pursued over the greater part of France, in Germany, in Holland and the Netherlands, and in England. In both cases the result was that a separate commercial and maritime law, based primarily on mercantile usage, gradually emerged, and expanded to meet the needs of an expanding trade.

Footnote 2: In Italy, however, special commercial tribunals were suppressed in 1888, and commercial cases are now heard by the judges of the ordinary courts, Desjardins, op. ci\* 155.

Footnote 3: Huvelin, Essai Historique sur le droit des Marches et des Foieres 143, 144.

Footnote 4: On picn es tribunaux sont clus par les marchands eux memes (c'est la conception f Me

**Abstract**

The \_local_Law in Xvith and Xvith events.

_Constitution._

By the end of the eleventh century a large number of the Italian towns had obtained their independence ; and the merchants who inhabited them had got a free hand to organize"their government after their own fashion.1 Generally we find at the i.ead of the government _consules de communi_ assisted by a small council. These consuls absorbed all the powers of the older rulers--at Genoa and Pisa, for instance, they were the direct successors of the counts.2 In spite of domestic dissensio, the result of this independence was a great development of commerce and industry.3 In its train, capital, banks, and all the financial organization which the existence of banks implies, began to make their appearance;4 and with the growth of the prosperity and size of the town a more complex organization of government became necessary. In I 154 we first hear at Milan of _consules macroarm.5_ When first they made their appearance they acted as the deputies of the _consules de communi_, and, in this capacity, they performed various political administrative and judicial duties.6 In the exercise of these duties they acted as state officials. But they fulfilled also other duties in another capacity. They were at the head of the numerous gilds or arts into which the merchants were divided ;7 and these gilds or arts assumed, in Italy as elsewhere, wide powers to issue regulations as to the conduct of their members, and to decide their legal disputes.8 Thus the _consules macroarm_ exercised large powers over trade and a jurisdiction in commercial cases. These powers and this jurisdiction were not at first exercised by them in their capacity as officials of the city ;9 they

## 6 Trialan law merchant

were limited to the members of their own gild;1 and the city courts therefore exercised ordinary jurisdiction in commercial cases.2 During the fourteenth century these powers and this jurisdiction became gradually more extensive. They became a recognized department of the civic constitution, and their courts were recognized as a part of the judicial machinery of the state. It followed that their enactments upon commercial matters became part of the law of the city, and that the jurisdiction of their courts excluded that of the ordinary courts.

Footnote 1: "Privee, contractuelle, corporative telle nous apparait primitivement la juridiction de l'Art," Morel, op. cit. 38 ; Mitchell, op. cit. 47, 42.

Footnote 2: Ibid 42 ; thus the Statutes of the Calimals Art threatened with severe penalties any member who resorted to the ordinary courts, ibid 42 n, r; it follows that the ordinary courts had this jurisdiction; in 7233 the Pisan curia maris was forbidden to interfere with cases that belonged to the curia legis, ibid 46.

The process by which the _consules mercatorum_ attained this position in the various Italian towns was very similar, and it was somewhat as follows:3 The various gilds were very jealous of their powers. They compelled their members by severe penalties to obey their orders and to submit to their jurisdiction.4 Sometimes they even compelled foreign merchants residing in the city and trading with their members to promise to submit to their authority, which promise came in time to be implied from the fact of residence.5 But the gild, being a voluntary association, was powerless if a contumacious person acquiesced in expulsion. This defect was remedied by a closer alliance between the various gilds. They agreed to exclude certain classes of commercially undesirable persons ;6 and finally they united in an amalgamated society of gilds which was called the _Mercancia_. The executive body of this amalgamated society--the _Offician Mercancia_--generally consisted of the _consules mercatorum_, who were at the head of its various component gilds.7 During the course of the fourteenth century an increasing number of cases were submitted by the civic authorities to the arbitration of this body;8 it was finally recognized by them as an organ of the StateLaw in Xvith and Xvith Cents.

Government;1 the ordinary courts were forbidden to interfere with it;2 and its orders, its regulations, and its judgments were therefore binding upon all the members of the state and upon foreigners resident therein.3

Footnote 1: Mitchell, op. cit. 43 n. 1, citing a statute of Brescia of 1429; for Genoa see Leges Genvenes, Mon. Hist. Pat. xviii col. 538, statutes of 1403-1408; at Genoa, as at Brescia, they could decide questions of their own competence, Leges Genvenes col. 542, Stat. Merc. of Brescia 1429, cited Mitchell, op. cit. 44 n. 1.

Footnote 2: Ibid 43 n. 1, citing statutes of Mantua of 1450, and of Brescia of 1429; Leges Genvenes col. 538.

Footnote 3: See ibid 619-62o for rules as to jurisdiction where foreigners were parties; for similar rules in other towns see Mitchell, op. cit. 44, 45.

Footnote 4: So called because it was appointed to look alter Caffa, its trading centre in the Black Sea, the natives of which were known as Chazares; it assumed jurisdiction/ver navigation generally; when Genoa lost these colonies these duties were turned over to the Officium Mercanziac, Pardessus, op. cit. iv 421-424, 432, 434; for the rules governing it see Leges Genvenes cols, 741-795.

Footnote 4: For the Breve Curie Maris of 1305 see Bonaini, Statuti Pisani iii 351-415.

Footnote 5: Mitchell, op. cit. 45-50, 56-64; cf. Valroger, op. cit. 43-57, 194-205; the leading work is that of Schaube, Das Consultat des MeCeres in Pisa; it was the executive body of the Ordo Maris, which was originally a private league of defence against pirates; it came to look after all maritime matters, and evertually developed into an organ of the state.

The evolution of the bodies which made and administer card maritime law was very similar. Genoa had its _Officium Ghazarie_,4 and Pisa its \_Curia Maris; 6 and, in the course of the fourteenth and fifteenth centuries, most of the seaport towns of Italy had acquired bodies of maritime law administered by special maritime consuls. It is the Pisan _Curia Maris_ which is the earliest of these bodies to possess judicial as well as administrative functions; and, historically, it is the most important, because it was the type and model of the maritime courts of the kingdom of Aragon, and therefore of the city of Barcelona.6 At Barcelona this maritime court became a general commercial court;7 and it developed the famous body of laws known as the Consolato del Mare.8 This body of law, in spite of grave defects in its arrangements and composition,9 has perhaps had a larger influence on the maritime law of Europe than the similar bodies of law

# Italian law merchant

developed by the Italian seaports. This extensive influence of the Consolato del Mare is due partly to its fullness--it embodies ideas taken from many cognate sources; ; partly perhaps to the commanding position of the Spanish monarchy in the sixteenth and early seventeenth centuries.

It is not only in the Spanish seaport towns that we can trace the influence of the Italian institutions. Their influence was equally great upon Marseilles, and the neighbouring trading centres of Montpellier, Nimes, and Narbonne.\[3\] In all these towns commerce and industry were organized in a similar manner; and all possessed consuls who administered commercial law to the merchants. The crusades led to the establishment of intimate commercial relations between these trading centres and the Italian cities on the one hand, and the eastern ports of the Mediterranean on the other. Their consuls were established in these ports;\[4\] and, in the Latin kingdom of Jerusalem, separate commercial and maritime courts were established to decide the cases of the merchants of all nations who resorted there.\[5\]

In the earlier medieval period, when the powers of the gilds were restricted to their own members, their commercial jurisdiction necessarily depended on the personal status of the litigant quite as much as upon the nature of the question at issue. But, when these amalgamated societies of merchants became recognized as an integral part of the constitution of their several states their competence came to depend solely upon the nature of the question at issue. They necessarily assumed jurisdiction over all questions commercial, irrespective of the status of the parties; and thus there was evolved the wholly new conception of a separate commercial and maritime law depending mainly on mercantile custom and usage.\[Law in Xvith and Xvith Cents.

The Evolution of the Law.

If we would understand the nature of this separate commercial and maritime law created by these organized bodies of merchants, we must glance briefly at the various ways in which they built up its different parts.

(i) In the first place, these bodies issued numerous and detailed orders to ensure the proper conduct of various branches of commerce and industry. Their power in this direction was wide. It was admitted that it extended even to negativity or altering a rule of the civil law.1 But it was subject to certain conditions. In the first place, an order must not directly contravene a law made by the civic authorities.2 In the second place, it must be just and reasonable.3 In the third place, it must relate to matters mercantile.4 No doubt also particular towns might impose special conditions.5 But these three general conditions, laid down by the lawyers of the fourteenth and fifteenth centuries, were a generalization from the usual practice of the Italian towns of this period; and, through the works of the sixteenth and seventeenth century writers on commercial and maritime law, they passed into the general law of Western Europe.6

Footnote 1: Straccha, De Mercatura 250b-Is an enactment valid, " Quod contra scriorturas mercatorum non posit objici exception prescriptions ?" " Et probat valere cum possit aliter quam jus commune decrevit statuere.,"

Footnote 2: Leges Genvenses, Mon. Hist, Pat. xviii cols. 536, 817; cf, Straccha, op, cit. r?ob, " Nauticam consuetudinem pracipue spectandum esse dum modo legi non adversetur, hoc est a lege non reprobert."

Footnote 3: Ibid 250b cites liddas as saying, " non possit decermere quod naturaliter et evidente sit injustum; " and at p. 451b he gives examples--" Delendum et illud statuut quod vetat opus abu unco captum ab alio perfici posse absque consensus cjus qui inchoaverit; et ille lex improbanda est que certas tantum personas artem aliquam, seu exercium facere juhet, reliquos vero vetat."

Footnote 4: Ibid 248, " Sed hace intelligenda sunt, ut statucre possint in his in quibus jurisdiction habent, pertinentibusque ad mercaturam et ipsoso mercatores, non autem in his que remoats sunt ab oorum officius et professica, exempli loco si super hereditabus decermerent."

Footnote 5: Thus at Bergamo-Gild Statutes c. xxx cited Mitchell, op, cit. 31 n. 3--the statutes of the gild were to have the same force " ac si faction ferent per Consilium Generale Comminus 'Pergami' and sometimes they were expressly allowed to override the ordinary law, Mitchell, op. cit. 34 33, citing Lattes, Il Diritto Commerciale nella \_L_egislazione Statuarie 75 n. ro.

Footnote 6: Thus Marquardus, Tractatus Politico-Juridicus de Jure Mercatorum et Commerciale (ed. 1662) Bk. iii c, ii SS 1, allows them very large powers, " Primo igitur dubitandum non est quin Collegia Mercatorum approbata, singulares leges, consuetudinces, ordinationes, et statuta specialia et singularia, etiam sine superioris confirmation, conderc, sibique jus proprium contra statuta generalia illus Civitatis facere possint."

Footnote 7: Leges Genvenses, Mon. Hist. Pat. xviii col, 725--regulations as to the College of Judges.

Footnote 8: Ibid col. 570--rules as to payment of Bills of Exchange.

Footnote 9: Ibid col. 544; 545, 656-658.

Footnote 10: Ibid col. 62a.

Subject to these conditions these powers were extensively used. The qualifications of practising lawyers,7 the businesses of bill-broking,8 banking,9 and pawn-broking,10 the equipment,

## 7.1 Italian law merchant

licensing, loading, and registry of ships, the nature and variety of papers which trading ships must carry,1 the business of underwriting 2--occupy a large space in the statutes of the Italian towns. Besides, there are detailed rules for the conduct of all the different wholesale and retail trades, carried on in the town;3 and some of these rules are very similar to the rules made by other towns in Europe--in Italy, as elsewhere, the law intervened to secure honest and&skilled workmanship, reasonable prices, and fair wages.4 But the greater volume and the more elaborate organization of trades gave rise to elaborate regulations upon such matters as shipping, banking, insurance, and bills of exchange, some of which do not appear in England till quite modern times.

Footnote 1: Leges Genvenses cols. 638-639; 7:41-795--the rules as to the Oficium Gazaria ; cf. Calendar of State Papers (Venetian) i _lxi-lxivii_ for the Flanders voyages undertaken by the Venetains, and the elaborate supervision exercised by the Council over all the details of these expeditions.

Footnote 2: Ibid cols. 572, 643-644.

Footnote 3: Statuit Pisani (Ed. Bonaini) iii rz3--Breve spetiariorum; rz5--Breve, cappcl-lariorum; rz8--Breve metroum; r33--Breve arts speculariorum; r36--Breve satorum; cf. Leges Genvenses cols. 669-730.

Footnote 4: Vol. ii 468-469; vol. iv 324:324.

Footnote 5: Vol. i 543 n. 7; vol. ii 304; Huvelin, Essai Historique sur le droit des Marches et Foires 41-443; Morel, op. cit. 44-48; Mitchell, op. cit. rz1-724; Goldschmidt, op. cit. rz1, rz2; Mas Latrie, Le droit de narque ou droit de repressailles au moyen ae, Bibliotheque de l'Ecole des Chartres 6e serie II. 529 seqq., IV. 294 seqq.; for an English case of 1418 turning on this right of repressals_see Select Case before, the Council (S.S.

Law in Xviith and Xviith Cents.

Italy this principle was known as the right of reprisals.1 Obviously the remedy which it provided was clumsy, and open to grave abuses. In England, as between English merchants, it had been abolished by a statute of 9275.2 What Edward I.'s statute did for England was \_e_ffected for Italy in the thircenth and early fourteenth centuries by negotiations conducted by the officials of the _Mercansia_ of the leading towns. The _Mercansia_ undertook to render the right unneessary by giving legal redress for the wrongs inflicted on or suffered by foreigners, as well as for the wrongs inflicted on or suffered by their own citizens.3

Footnote 1: Thus in the Leges Genvenses col. 539 the Officium Mercanziere is directed always to take legal advice before a grant of reprisals is made.

Footnote 2: 1:dward I. c. 23; below 93, 98 n. 2.

Footnote 3: Morel, op, cit. 47, 48; cf, the profusions of the Florentine Statute della Mercanziere of 412, cited Mitchell, op. cit. x23, to the effect that, " Treaties be made with any land or community of Tuscancy or elsewhere as might seem good to the five@uncillors \[of the Mercanziere that, as between the commune of Florence and the said communes, reprisals cannot and shall not be granted or concedceded for any cause, save in case of robbery only."

The working of these treaties was helped materially by the institution of the _consules hospites_ who, from the latter part of the thirteenth century, were appointed in the trading centres of the Mediterranean, to look after the interests of the foreign merchants resorting to them.4 These consuls were appointed from among the citizens of the state in which they exercised their functions. Originally they acted as the hosts, the defenders, and the judges of their respective communities of traders.5 But, as commerce increased, they necessarily ceased to be literally the hosts of the merchants whom they represented; and, as the law administered in these trading centres became uniform and applicable to foreigners and citizens alike, their judicial functions lost their importance. Thus they came to occupy the position assigned to them by our modern international law of advisers and assistants to the citizens of the nation whom they represented.6

Footnote 4: Schaube, La Proxenie au moyen age, Revue de Droit International (1896) 525-556; they must not be confused with the _consules missi_ and the _consules eleti_, below 92 and n, 4; cf. Calendar of State Papers (Venetian) i 12, 13ii,

Footnote 5: Schaube, op, cit. 529.

Footnote 6: Ibid 532-533, 54?.

Footnote 7: See **g**. Leges Genvenses, **S**ton. Hist. Pat xviii cols, 619, 620.

Footnote 8: Below 92, 150.

The result of these developments was the evolution of a number of rules for deciding cases in which a foreign element existed,7 which are at the root of our modern systems of Private International law. In the sixteenth century these rules, evolved principally in the Italian towns, were directly instrumental in inducing other European states to abandon the custom of reprisals,8 to appoint consuls to look after the interests of their citizens in foreign states,9 and to adopt some of the Italian rules for the decision of cases in which a foreign person or a foreign transaction was involved.

(iii) In the third place, the close relations which thus existed between the bodies in the various towns which controlled commerce and industry, enabled the towns to create gradually, from the similar yet separate customs of their mercantile and maritime courts, a uniform body of mercantile and maritime statutes. It was obviously important to the trader that the mercantile law of neighbouring cities, between which intimate commercial relations existed, should be as far as possible identical. How to produce this identity was a problem which in the Middle Ages faced the Italian towns, as to-day it faces the various United States of America. The problem was solved by the appointment in different towns, sometimes permanently sometimes periodically, of officials called _emendatori_ or _statuarii_.1 Their duties, as M. Morel says, were to examine the practical results effected by the customs or statutes of the neighbouring towns, and to adapt those which worked well for the use of their own town. The result is that the Italian statutes on commercial and maritime matters became gradually more detailed and more identical. The Italian I.Law Merchant became both a comprehensive and a uniform body of law; and this fact accounts for the ease and completeness with which it was received all over Europe in the sixteenth century.2

Footnote 1: Morel, op. cit. 78, 79 ; cf. Ashburner, op. cit. cxxi, cxxi; Mr. Ashburner at pp. cvix-cxx gives a list of some of the most important with their dates; for another list see Goldschmidt, op. cit. 167, 168.

Footnote 2: "La comparaison des statuts des villes lombardes, Monza, Milan, Cemone, Brescia, Bergame, ne laisse aucun doute a cet egard. Quand on passe successivement en reveu les compliations locales de ces villes, on n'a pas de peine a constater quatelles contientent des chapitres absolument identiques quant a la forme et quant au fond. Le plagliat est d'autant plus manifeste quil s'etend quateloitosigneme_aux, erreurs," Morel, op. cit, 78-79 ; cf. Ashburner, op. cit, cxfv, cxxv.

The success of this legislation was largely due to the fact that it had behind it the practical experience of the commercial courts. To use English terms, it was largely codified case law; and_we know from our own experience that the most useful and workable legislation turned out by Parliament is legislation of this kind. This brings us to the fourth, and, from the point of view of the development of commercial law, the most important sphere of the activity of these bodies--their judicial functions.

(iv) The jurisdiction which these bodies acquired over commercial and maritime affairs was very wide. At Genoa, at the beginning of the fourteenth century, the _Officinn Mercanzie_ had power to decide " all the differences, lawsuits, questions, and cases which arose between citizens of Genoa in relation to

## 76 Law in Xvith and Xvith'cents.

trade."1The powers of the _Officium Gasarti_ over all matters relating to maritime law were equally wide. It decided all questions between shipowners and their crews, and between shipowners and merchants; all questions turning_upon damage to cargo, and jettison; and all matters dependent upon\_,\_arising out of, accessory to, or connected with the foregoing.2At Pisa the jurisdiction of the _Curia Maris_ was quite as extensive;3 and in addition the _curia artis lane_,"the consubs of the seven arts, and the captain and consubs of the Sardinian ports, had also a large jurisdiction over matters which fell within their respective spheres.4 That matters were similarly organized in the other Italian towns is clear from the fact that Bartolus could state as a general rule that "consubs elected by the college of Merchants have ordinary jurisdiction."5Straccha, Marquardus," and Ansaldus7 regard the possession of such jurisdiction as the most usual privilege belonging to the merchants of a state.

Footnote 1: Legcs Genvenses, Mon. Hist. Pat. xviii col. 537, " Omnes et singula$ differencias lites questiones et causae que inter mercatores lanuenses orientur causa mercandi."

Footnote 2: Ibid cols. 742, 743, " Questiones vero et causae que veruntur seu verti possuntur inter patronym vel marinarium sive fidejussoremorum, . sive inter patronym et mercatorem, occasione rerum positarum vel oneratarum in navigio, ct emendationis, vel damui que vel quod patertur pro dissipatione diminutione vel mancamento \<\<erum et mercatorem pradictarum, sive occasione nauil vej tacit vel project . ac in et circa dependentia emcgrentia accessoria et connexa pracdictis . audiant cognoscant declarent diffiniant corrigant et emendent."

Footnote 3: Black Book of the Admiralty (R.S.) iv. 473-475, " The consubs determine all questions which concern freight, damage to cargo laden on board ship, mariners' wages, partnerships in shipbuilding, sales of ships, jettison, commissions entrusted to masters or to mariners, debts contracted by the master who has borrowed money for the wants or necessities of his vessel, promises m/dle by a master to a merchant, or by a merchant to a master, goods found on the open sea or on the beach, the fitting out of ships galleys or other vessels, and gencrally all other contracts which are set forth in the Customs of the Sea."

4: Statuit Pisani (Id. Bonaini) i pp. 83, go--The l'reve Pisani Communis of 1286; iii pp. 351-445--The Breve Curia Maris of 1305; ii pp. 863-889--The Breve Artis Fabroum of 1305; iii pp. 651-741--The Breve dell'Arte della Lana. There are similar\_,\_derves for many other Arts.

5: Cited by Straccha, op. cit. 260; he adds, 260b, " Non propteteza ordinarium \[judicum\] jurisdiction adempta censetur quinimo et ipsi mercatores et consules ordinarius judicibus subjicuntur."

6: Or, Et. Bki, iii c. ii g g t cited above 72 n. 6; Ibid Bki, iii c. vi. SS 54.

7: De Commercio et Mercatura, Discursus Generalis (ed. r@8) SSS 47-44 (p. 631)--Solet etiam inter privilegia Mercatura recenseri, quod corum stylo stari oporteat, ita ut hic preavalere debeat dispositioni Juris Communis, . Et ob id jure merito quando trictatus de legibus pubfcum commercium concernentibus, adjiberi soleat votum-judicium mercatourp."

**FNALIAN LAW MERCHANT** **77**

sources both of commercial and maritime law were the rules made by these courts to meet the new needs and the new problems set by an expanding commerce carried on under medieval conditions. These rules were the basis of those maritime and commoseial statutes of the Italian cities and the ports of Southern Europe, which have exercised so great an influence on the commercial law of Western Europe.

Mr. Ashburner has pointed out that in the earlier maritime statutes there is a constant reference to "usus" and "consuetudo"; and he justly thinks that the authorities "clearly point to the existence, if not of a general sea custom for the whole Mediterranean, at least of a custom extending beyond the jurisdiction of the individual state." 1 The detailed comparison which he makes between the provisions of the civil law, the Basilicas, and the Rhodian sea law on the one side, and the provisions of the Italian statutes of the twelfth and thirteenth centuries on the other, illustrates the manner in which the elaborate Italian codes of maritime law were built up upon the basis of the law of Justinian and the Eastern Empire.2 Sometimes the provisions of the Roman law were retained. But more often they were varied in all directions ; and a large superstructure of detailed rules, evidently suggested by the concrete problems which came before the maritime courts, gradually superseded the original basis3. If we said that the Roman rules had been turned to modern uses we should not perhaps be saying anything historically incorrect ; but we should be exaggerating the importance of the historical basis. These Italian maritime courts, were doing for maritime law what the English common law courts were doing for the English common law. They were building up from a basis of medieval maritime custom and Roman law a wholly new system of maritime law.

Footnote 1: The Rhodian Sea Law coxii-cxxv.

Footnote 2: Ibid cxxixix-cxxiii; as M. Lefort says, Bensa, Histoire du contrat d'Assit.Nuce au moyen a (traduit par Valery), Introd. viii n. r, " 11 faut noter, d'ailleurs, que les principes du droit commercial recueillis par les Romains et conserves au lligeste, principalement sous le titre De Le Rhodia de jactu, ont precede toute la legislation commercial d'Italie. On doit admettre ... que cette partie de la loi romaine etait des mieux connues et des plus appliquees au moyen a pusiqu'on trouve bon nombre de manuscrits des onzieme et douzieme siccles qui ne contiennent que ce titre, detache du revee du corps des lois, pour l'utilite des navigateurs et de cozzmezas.,Law in Xyith and Xyitii-Cents.

that which it conferred upon many other branches of law by supplying it with a concise technical language. This service was conferred mainly through the profession of the Notaries; and since the work of this profession has had a very permanent influence upon commercial law I must say a few word, about it.1 The term "Notary" meant originally a scribe who used "notae"--in other words, a shorthand writer.2 These scribes were employed under the Roman Empire by the Tabelliones. These tabelliones either held a public position as clerks to the provincial"or municipal magistrates, and iff that case they both attended to the non-contentious business of the courts and drafted documents; or they were employed solely by private clients in the latter capacity. In either case these documents drawn up by them had greater weight than documents drawn up by a private person. They were _instrumenta publica confecta_. But they were not entitled to the full status of _instrumenta publica_ till registered in court.3 In the earlier mediaval period similar officials called notaries, attached to the courts of pope, emperor, and counts palatine, make their appearance; and it came to be thought that all notaries must be officers of a court, and therefore appointed by pope, emperor, or count.4 Thus there arose a class of notaries who had been given a definite status by papal or imperial authority. The fact that they thus acted under official sanction, the fact that they were officers of a court, tended to invest the documents drawn by them with greater sanctity. In the course of the twelfth and thirteenth centuries these documents not only attained to the dignity of _instrumenta publica_, they also gained executive force, i.e. they could be enforced like judgments of the court.5 Thus it happened that almost all medieval documents of any importance were drawn by them.5 Obviously in the trading centres of Europe the preparation of commercial documents must have formed the largest part of their work; and a very cursory glance at any collection of these documents will

## 7 Italian law merchant

show the"large extent of the influence which they exercised upon commercial law. It was similar in kind to the influence which the English conveyancers have exercised upon the English land law.1 They "made the common forms used in the trading centres of Southern Europe, and when the law used in these centres spread over the rest of Europe, these common forms came with it, and are the basis of the documents which Merchants all over the world are "sing to-day.2

Footnote 1: Vol. iii zr8-2r9.

In the second place, the part of the civil law which specially influenced the growth of the Italian commercial law "was, as we might expect, the law of obligations. It is not too much to say that the fullness and logical exactness of this part of the civil law has made it one of the most important of the bases of modern commercial law. The classification of contractual obligations to be found in the Corpus Juris, and the minuteness with which the rights and liabilities of the parties are analysed ; the discussion of the general nature of contractual obligations; the many matters relating to their operation and the causes of their invalidity which are grouped round the Stipulatio; the analysis of delictual obligations, and especially of such topics as dolus and culpa--made up a body of law which could deal adequately with very many of the new commercial problems of the time. In the fourteenth and fifteenth centuries the treatment by the glossators of the topics of the new commercial law is generally to be found in their comments on the titles of Code and Digest which deal with obligations contractual or delictual ; and in the seventeenth century a considerable section of the great treatise of Marquardus is grouped round the leading heads into which the Roman contract system falls.4

Footnote 2: See e.g. the charter party made at Pisa in zr63 which is cited by Ashburner, op, cit. clxxix-clxxxi ; we may remember that the terms "insurance " and "policy " come from Italy, and that, "up to recent times all policies began with the words, " In the name of God Amen1' imitating the cust=mary old Italian commencement " Dio la salvi, Amen1. The pions phrase is no more known to the underwriters of the present day. Stil every policy. ... finishes with a sentence in use for upwards of three centuries, ' And it is agreed by us, the insurers, that this writing or failure of assurance shall be of as much force and effect as the surest writing or policy of assurance made in Lombard Street.' The Lombards are gone, but Lombard Street still lives at Lloyds,' Martin, History of Lloyds, 31, 32; see below z38 n. 5, 739, 743.

The influence of the canon law was different from that of the civil law, but not less extensive. The civil law influenced mainly the technical development of the law. The canon law influenced mainly the substance of the law, and the machineryLaw in XVITH AND XVITH CENTS.

by which it was applied. The reason why the canon "law was able to exert this influence upon the development of commercial law rests at bottom upon the manner in which the Canon law put into legal form the religious and " moral ideas, which, at this period, coloured the economic thought of all the nations of Western Europe.1 It is true that the precocious political and commercial development of the Italian cities caused these religious and moral ideas to be subordinated, at an earlier date than elsewhere, to the desire to increase the wealth and power of the state.2 But Italy, "like the " rest of Europe, felt these influences ; and therefore the rules of the canon law, in which they were elaborated in legal form, necessarily had a wide and varied influence on the substance of the law.

Footnote 1: Vol. ii 468-469; vol. iv 316-319.

Of the nature and extent of that influence it is difficult to speak summarily ; and it would be a long and difficult task to appraise accurately the extent to which the canon law retarded, and the extent to which it assisted at different times and in different places, the development of commercial law.3 On the whole it is probable that its influence was beneficial. In earlier days when commerce was in its infancy it helped to keep the peace and protect the persons of the merchants ;4 and in later days, when commerce was becoming organized, it helped to guarantee the sanctity of mercantile transactions.5 No doubt the necessity of evading its stern prohibition of usury made the developments of certain branches of the law tortuous and complicated. But there is reason to think that the effects of this prohibition have been exaggerated ; and we shall see that it did not in fact impede commercial development so greatly as is sometimes supposed.6 On the other hand the canonist's view that faith should be kept,7 in whatever form the promise

## 11 TAIIAN IAW MERCHANT

was expressed, helped forward the development of forms of commercial contract which were quite unknown to the civil law;1 it assisted the legislature to deal adequately with the new forms of fraud and sharp practice rendered possible by a more elaborate organization of commerce;2 and thus it contributed to enforce those high standards of good faith and fair dealing which are the very life of trade. These were considerable services. But to my mind the most considerable of the services rendered by the canon law was the assistance it gave to the establishment of a workable system of procedure in commercial cases. It was the most considerable of its services, because it enabled a definition of the spheres of the lawyers and the traders to be arrived at, which allowed legal effect to be given to new commercial usages, and yet maintained a due regard for legal principles. This settlement of the respective spheres of the lawyers and the merchants I regard as one of the main causes of success of the Italian commercial and maritime tribunals in evolving a system of commercial and maritime law. I must therefore say a few words as to the manner in which it was arrived at, and as to its terms.

Footnote 1: The contract of Insurance, Pt. II, c, 4-III, is a striking illustration ; as Marquardus says, Bk, ii c, xiii SS 4, it was hardly discussed at all by the lawyers before Straccha; equally striking are the rules as to assignability and negotiability of obligations, Pt. II, c. 4 I, SS 2; thus Marquardus says, Bk, ii c, xv SS 6, " In hac emin ex praxi et stylo quotiiano observatur, aequc creditorem ac debitorn, sine expressia stipuliano delegare posse; et per delegation en't creditorem vice creditors, ut debitorn vice debitorn, ex natura correlativorum constituui posse "; though, as he pointed out, ibid SSS 9 and ro, a liability cannot be transferred without the creditor's consent, a right can be transferred without the debtor's consent, " cum ejus non intersit cui solvat"; cf. ibid SS 17, "' Nos autem de delegatione per assignationem, transportationepern, vel inductionen, ur mercatores l'oquuntr, faca; quo in passu delegans seu transcribens camulom delegaro acceptanti, alla rectractione mandati aut alo quovis modulo prejudicare non potest "; cf. Pardessus, op., cit. y 421, as to the obvious necessity of adding to the provisions of the civil and canon law.

${}^{\\rm x}$ Thus Straccha, op. cit. 4-56, cites the opinions of Baldus and other jurists as to the various questions which arise as to property in merchants' marks, and the liability which arises if one merchant fraudulently uses another's marks. $\\bullet$

${}^{\\rm x}$ Morel, ${\\mathfrak{sp}}$, cit. 58 seqq.; Mitchell, op. cit. 12-16 and references thereof ; Goldschmidt, op. cit. 174 n. 766.

$\\bullet$ VOL, V.--6Law in Xvith and Xvitith Cents.

of procedure rigid enough to 'be workable.1 Clement V. in 1306 attempted to solve the problem by the Decretal _Saepe contingit._\[3\] It frequently happens, runs the Decretal, that we direct cases to be heard " simpliciter et de plano 'ac sinc strepitu ac figura judici." The meaning to be attached to these expresions is much controverted ; and so, to remove doubts, we decree that a judge, directed to hear a case in this way, shall not exact a libellus, shall not demand a litis cottestatio, shall be able to sit on holidays, shall remove all occasions for delays, and shall cut short litigation as much as he can, by refusing dilatory and vain defences and appeals, and by repressing both the disputes of advocates and procurators, and the needless number of witnesses. He must not, however, abridge the suit to such an extent that it cannot be fairly stated and defended. There must be a proper citation, and oaths that the proceedings are in good faith and that the truth will be spoken must be taken. Positions 3 can be used unless the parties agree to exclude them ; and the judge may question the parties whether requested by them or not, when it appears to him to be equitable. Parties must be cited to hear a definitive judgment, and it must be in writing. But the other formalities used in giving judgment may be omitted.

Footnote 1: Vol. ii 25r.

The words of this Decretal were elaborately and sympathetically expounded by the jurists of the succeeding centuries.4 They interpreted them as authorizing, not only such modifications in

## 11 TALAN LAV MERCHANT

1 The "TheLaw in Xvith and Xvith Cents.

lawyers it was thought should be employed to settle points of law, and not to argue matters of fact, and to put a good face on a bad case.1 The danger of such a set of rules is of course that each case will be decided on its own facts according to the individual views of the judges, and that no legal principles will be evolved. But, if we may judge from the books produced by the writers of the sixteenth aad seventeenth centuries, this danger was successfully avoided.2 The merchants had, it would seem, taken the advice given to them by Straccha, and had not thought themselves more equitable than the law.3 When, in the sixteenth century, the Italian system of commercial courts was introduced into other countries, this danger was considerably less. The practice of those courts had given rise to bodies of law which were generalized and explained by the legal writers of the sixteenth, seventeenth, and eighteenth centuries. The mercantile tribunals had therefore fixed laws to guide them ; and even the lawyers admitted that they could do a more speedy and a better justice in mercantile cases than the regular tribunals.4

Footnote 1: "L'intervention des avocats donnuit lieu devant les tribunaux civils a des discussions et a des chicanes aussi interninables que steriles, qui entrainaient naturellement des pertes de temps et d'argerent. Afin d'eviter cet abus, le droit de representation devant les tribunaux de commerce fut strictement limit," Morel, op. cit. 62.

Footnote 2: We have seen, above 83 n, 6, that it was admitted at Genoa that there were certain cases which could best be decided by the lawyers; and it is clear from Straccha's book that they were frequently consulted; thus at p. reer he mentions, "Bajdus nostter qui in jure nostro propter ingenii acumen et frequentes discertations foresnes primum lo cumbiten, " aut certe post Bartolum; " cf, also ibid p. 233.

Footnote 3: Op, cit. 235, " Consultant tataque mercatores in dicontis sentientis (ubi causae expostant) jurisdicons bonosque viros. Vetus est emin illud, nc sutor ultra crepidam, et felices essent arts de ilc illis soli artificey judicarent. Et se legegisa elementores aut avoiores ne putent; " at p. 285b he cites Baldus as saying, " Nos sequi zequitatem rationi conjunctam, non imaginariam et nostri capitis."

Footnote 4: Marquardus, op. cit, Bk. iii SS c. vi SS 54, writing De judicibus et consultus Mercedurur, says what they ought to be appointed ou all "empora" todecolele cases equitably and without legal technicalities.

In these various ways therefore the Italian cities laid the foundations of our modern commercial and maritime law, and evolved the pattern of the commercial and maritime tribunals which have prevailed over the greater part of western Europe. To them we must look for the origins of the idea of a negotiable instrument and for the elaboration of many of the leading principles of our modern law on this topic. Similarly they elaborated the law as to banking and as to commercial partnerships both of the limited and unlimited variety ; while the exigencies of commerce compelled them to lead the way in the development of a bankruptcy law, and in the introduction of modifications of the law prohibiting usury. In the department of maritime law they cases is given which " spectant quam plurimum ad juristas utpote questiones de principabilibus juris apicibus descendentes," and cannot therefore be sent to arbitration; presumably in these cases the assistance of the lawyers would be invoked.

${}^{1}$ "L'intervention des avocats donnuit lieu devant les tribunaux civils a des discussions et a des chicanes aussi interninables que steriles, qui entrainaient naturellement des pertes de temps et d'argerent. Afin d'evitet cet abus, le droit de representation devant les tribunaux de commerce fut strictement limit," Morel, op. cit. 62.

${}^{2}$ We have seen, above 83 n, 6, that it was admitted at Genoa that there were certain cases which could best be decided by the lawyers; and it is clear from Straccha's book that they were frequently consulted; thus at p. reer he mentions, "Bajdus nostter qui in jure nostro propter ingenii acumen et frequentes discertations foresnes primum lo cumbiten, aut certe post Bartolum; " cf, also ibid p. 233.

${}^{3}$ Op, cit. 235, " Consultant tataque mercatores in dicontis sentis (ubi causae expostant) jurisdicons bonosque viros. Vetus est emin illud, nc sutor ultra crepidam, et felices essent arts de ilc illis soli artificey judicarent. Et se legegisa elementores aut avoiores ne putent; " at p. 285b he cites Baldus as saying, " Nos sequi zequitatem rationi conjunctam, non imaginariam et nostri capitis."

${}^{4}$ Marquardus, op. cit, Bk. iii SS c. vi SS 54, writing De judicibus et consultus Mercedurur, says what they ought to be appointed ou all "empora" todecolele cases equitably and without legal technicalities.

**TIALIAN LAW MERCHANT 85**

made elaborate rules as to the capacity, loading, condition, and equipment of the ship; as to the legal position and legal relations of the various parties to a maritime adventure--shipowner, merchant, captain, and crew; and as to maritime partnerships. The various legal possibilities which might arise out of the contract of carriage by sea were very fully worked out; and this involved a treatment of such subjects as the results of loss from pirates, fire, or wrack--"the three normal maritime dangers"--maritime loans, average, jettison, contribution, collision and salvage.1 Last but2 not least it was in relation to maritime law that the conception of an insurance first appeared.4

Footnote 1: Mr. Ashburner, in his introduction to The Rhodian Sea Law pp. cxxx-cexciii, has given an admirable account of the manner in which the Italian cities built up a maritime law to suit mediaeval needs, and of the principal doctrines of that law.

Footnote 2: Pt. II, c. 4 III.

Footnote 3: Above 63.

Some of these branches of commercial and maritime law were, as we shall see, introduced into England in the sixteenth and early seventeenth centuries; and in the second Part of this Book I shall sketch briefly the history of their technical development. But, in order that we may understand the way in which they were introduced into our law, and the manner in which they were subsequently developed, it is necessary first to say something of their gradual reception in the trading centres of northern Europe.

_(2) 'The reception by the cities and states of Northern Europe of the Italian ideas._

We have seen that we must look to the franchises conceded to the merchants for the beginnings of the commercial law of the cities and states of Northern Europe.3 On the other hand for the beginnings of their maritime law we must look to the customs observed in the principal seaport towns.4 Both these allied branches of the Law Merchant were influenced in the sixteenth century by the rules which had been evolved in the great trading centres of southern Europe; and both therefore tended to become parts of one cosmopolitan system. But seeing that the mode of their development was somewhat different, and seeing that in some countries they continued to be administered by different tribunals, I must deal separately with the history of their growth.

Footnote 3: Vol. 527-528; below too.

_Commercial Law._

For the origins of the commercial law of the cities and states of Northern Europe we must look to the franchises and privileges given to those who held and to those who resorted to a market. Thence originated a market and a market law which constituted an important, perhaps the most important element, whichLaw in Xvith and Xvith Cents.

differentiated the town from the other communities of the land. Round these periodic markets a permanent trade grew up, and with it, gilds of merchants and traders. But this trade was at first an essentially domestic trade. In the thirteenth and fourteenth centuries the growth of foreign trade led to the establishment of international fairs, possessing privileges which enabled their courts to apply to all the merchants who traded there the more complicated rules which this larger trades:lemanded. Many of these rules were necessarily borrowed from the great trading centres of the south from which the principal merchants came. Sometimes also leagues and associations of merchants were allowed to settle in the various states of Northern Europe ; and their commercial dealings were necessarily regulated by the laws applicable to this larger trade. Thus the rules made in the great centres of commerce began to be known in the northern as well as in the southern countries of Europe. But as yet they stood apart from the ordinary law of the nascent state--they were applicable only or chiefly to dealings in the periodic fairs, or to the business of the companies of foreign merchants who had been permitted to acquire a commercial domicile. In the sixteenth century these rules became part of the ordinary law of the state. The change of trade routes caused by the geographical discoveries ruined many of the great mediaval fairs ; and the establishment of efficient government and improved means of communication rendered the establishment of new fairs unnecessary. At the same time privileged settlements of foreigners ceased to be permitted, since they were opposed both to the political and to the economic interests of the territorial state.1 The new companies formed for trade and colonization were composed of the subjects of the state.2 Each country had in its chief trading centres permanent fairs, the transactions of which were governed by a body of law which was derived partly from the market law developed in its towns, but chiefly from the rules observed in the periodic fairs in or the trading centres of the south of Europe. Therefore in dealing with this subject we must consider the influence (1) of the market law of town and gild ; and (2) of the fairs and the associations of foreign merchants.

Footnote 1: Vol. iv 333; below 173.

Footnote 2: Vol. iv 319-320, 333.

(1) The market law of town and gild.

In the disturbed period which followed the fall of the Roman Empire the periodic markets were the sole seats of commerce ;3 and church and state combined both to recognize that a special

## 7 Ideal Law Merchant

p Peace blonged to these markets, and to give them a special protection, which tended to differentiate their government and their law from that of the country at large.\[1\] The church considered that it was bound specially to protect the poor and feeble ; and this protection supplemented the special peace given by the king to the travelling merchant.\[2\] The church, again, tried to make men keep faith, and to insist upon testing the validity of commercial transactions by its qwn moral views ; and the attempt to achieve these things has, as we have seen, had a lasting effect upon the history of commercial law.\[3\] Kinga and enperors for a consideration made themselves the protectors of the merchants.\[4\] They encouraged the formation of markets, the peace of which was specially guaranteed. Special rules were made to facilitate their conduct, and to ensure the fulfilment of the transactions there entered into. When, as often happened, monasteries were granted the right to hold a market these two influences, ecclesiastical and lay, were exercised concurrently.\[5\] Seeing that the monasteries were often centres of production, the privilege of holding a market was particularly valuable to them. It enabled them to take the tolls of the market;\[6\] and other rights soon followed--the right to hold a court, to coin money, to exclude the royal officials.\[7\] All these privileges came to be summed up under the term " ban royal."\[8\] Other large landowners soon acquired similar privileges ; and, as the central power decayed, this privilege of holding or creating a market was so extensively granted to or assumed by the feudal mobility that it was regarded as belonging to all lords holding a barony.\[9\] In France it was not till the royal powerI.AW in XVTH and XVTH CENTs.

began, in the course of the thirteenth century, to encroach upon the powers of the feudal nobility, that the privilege of creating a market came to be regarded as an exclusively royal prerogative.1 To these markets all commerce was as far as possible restricted, because this restriction facilitated the preservation of order, the collection of tolls, and the safety of the merchants.2 Thus the market formed a liberty in wfich a justice, different from that of the ordinary courts, was administered as and when it was needed.3

Footnote 1: Huvelin, op, cit. r85-r87;

Footnote 2: "I y eut ainsi a cote des _tria placita legitium_ du droit communn, une justice extraordinaire du marche qui 'exerca selon les besoins du moment. La justice du marche est une justice particuliere.

elle ext independante de toute autre justice pendant le temps du marche," ibid r93-194.

Footnote 3: "Vol. i x38-149.

Footnote 4: Esmein, op, cit. 337-332.

Footnote 4: Esmein, op, cit. 338-340; Huvelin, \_G_p. cit. 212.

Footnote 5: Esmein, op, cit. 335-338.

Footnote 8: Op, cit. 218; "Les moots _cires, lunpcuses_, _mercalores_ sont employes comme syndromes par les certains et par les recueils juridiques. La meme assimilation est faite entre les mots _civilas_ et _villa frovais_: en effet la _civilas_ n'est qu'une _villa_ qui a le droit du marche," ibid 220.

Footnote 9: Ibid z21-228.

In the course of the eleventh and twelfth centuries society was growing more settled ; and, in the course of the twelfth and thirteenth centuries, we can see the growth of towns which, having acquired from the king or lord franchises of many varied kinds, fell apart from other communities.4 We have seen that in England the origins of the boroughs are vtry various ;5 and the same variety is apparent on the continent.6 But in most, perhaps in all cases, the town was the seat of a market. The traders who resorted to it were generally organized in gilds ; and thus the way was prepared for the formation of a more permanent seat of commerce.7 "The traders," as M. Huvelin has said, "become burgesses and the market becomes a town."8 The temporary peace of the market becomes the permanent peace of the town,9 and, similarly the court and the law of the market become a part of the permanent organization and the permanent law of the town. The resemblances between the market organization and the market law on the one hand, and the town organization and the town law on the other, show that this was in many cases the line of development. Thus : (_a_) in certain markets we see a body of _scahini_ named by the lord of the market to assist him or his deputy in administering justice.10 Similarly most towns had a council of _jurati_ or _pares_ or _scahini_, at first nominated by the lord, but generally in later days elected, with possessed a certain jurisdiction. This council came to

**TIAIAN I.AW MERCHANT**

**consist of** merchants who represented the various **gilds** ; and they formed the beginnings of a commercial court.1 ($\\hat{b}$) The right to seize a debtor's property without the judgment of a court was forbidden to those who were under the p peace of the market ; and we see a similar rule in favour of the burgesses of those towns which had originated from a market.2 ($c$) The violation of the peace both of the market and of the town was punished by a double fine.3 ($d$) Though the competence of the court of the town differed from the competence of the court of the market, in that it was a permanent and not a periodic court, and in that it sometimes acquired jurisdiction over the land on which the town was built, it resembled the market court in that it was in early days confined to contracts made and delicts committed within its geographical limits.4 ($e$) Both the law of the market and the law of the trading burgesses who inhabited the town paid no regard to the status of the litigants--they applied to noble free and serf alike.5

Footnote 1: Huvelin, op. cit. 234-236, 397 ; Esmein, op. cit. 349 ; Morel, op. cit. 97, says, " I.e droit de marche a ctc l'embryou du droit commercial allemand; c'est a l'occasion des affaires du marche que les negociants ont commence a prendre part a l'administration de la justice et si, au xiiie et au xive siecle, on les a juges esignes d'entrer au conseil de ville et de remplir les fonctions d'echevin, c'est qu'ils avaiient precedement montre leur sagesse et leur habilet dans le poste moins releve de magistrat des foieres."

Footnote 2: Huvelin, op. cit. 49, 450 ; see the charter of Soissons (cited ibid at p. 450), " Infra civitatis Sue-sionensis firmittates, alter alteri recte secundum suam ojunionen auxilibatur, et nullatenus patientur quod aliquis alicui eorum aliquid auferat. . . vcl quidlibet de rebus espiat."

Footnote 3: Ibid 227.

Footnote 4: Ibid 237-237; but later, and probably under the influence of the great international fairs this restriction disappeared, ibid 414 ; cp. vol. i 536 and n. i114 ;in England the older restriction was restored by a statute of i477 vol. i 539.

Footnote 5: Huvelin, op. cit. 228-237.

Footnote 6: Thus Huvelin, op. cit. 173, points out that grants of market rights were given to Spires in 969, to Strasburg in 982, to Worms in 979, to Cologne in 973, and to Mayence in 975.

7: Dans la ville, il y a place non seulement pour le droit municipal (_jus fori_), mais encore pour le droit domanial, le droit ecclesiastique, le droit royal. Laeille n'est pas habitee seukment par des bourrebis." ibid 220.

**TIAIAN I.AW MERCHANT**

**consist of** merchants who represented the various **gilds** ; and they formed the beginnings of a commercial court.1 ($\\hat{b}$) The right to seize a debtor's property without the judgment of a court was forbidden to those who were under the p peace of the market ; and we see a similar rule in favour of the burgesses of those towns which had originated from a market.2 ($c$) The violation of the peace both of the market and of the town was punished by a double fine.3 ($d$) Though the competence of the court of the town differed from the competence of the court of the market, in that it was a permanent and not a periodic court, and in that it sometimes acquired jurisdiction over the land on which the town was built, it resembled the market court in that it was in early days confined to contracts made and delicts committed within its geographical limits.4 ($e$) Both the law of the market and the law of the trading burgesses who inhabited the town paid no regard to the status of the litigants--they applied to noble free and serf alike.5

Footnote 1: Huvelin, op. cit. 234-236, 397 ; Esmein, op. cit. 349 ; Morel, op. cit. 97, says, " I.e droit de marche a ctc l'embryou du droit commercial allemand; c'est a l'occasion des affaires du marche que les negociants ont commence a prendre part a l'administration de la justice et si, au xiiie et au xive siecle, on les a juges esignes d'entrer au conseil de ville et de remplir les fonctions d'echevin, c'est qu'ils avaiient precedement montre leur sagesse et leur habilet dans le poste moins releve de magistrat des foieres."

Footnote 2: Huvelin, op. cit. 49, 450 ; see the charter of Soissons (cited ibid at p. 450), " Infra civitatis Sue-sionensis firmittates, alter alteri recte secundum suam ojunionen auxilibatur, et nullatenus patientur quod aliquis alicui eorum aliquid auferat. . . v

## 90 Law in XVITH AND XVITH'CERTTS.

It is true that there are resemblances between these constitutions, due sometimes to direct borrowing,2 sometimes to similarity of circumstances under which the town obtained its franchises ; and this led to broad similarities in the law applicable to commercial transactions. For all that, the law was the law of a particular town or of a particular group of towns. There was nothing especially cosmopolitan about it.3 It was not till the growth of the great international fairs, and the rise of the settlements of privileged associations of foreign merchants, that we can discern the beginnings of that cosmopolitan Law Merchant with which we are familiar.

Footnote 2: "La marche neest plus un organime autonome, c'est un membre d'un organime superieur dont il depend," Huvelin, op. cit. 241.

(2) The fairs and the associations of foreign merchants.

Certain of the older markets had developed into towns and had become the centres of the permanent trade of a district. The growth of an international commerce during the twelfth and thirteenth centuries caused others to become large fairs of a type very different to that of the older markets. M. Huvelin has very clearly summed up the reasons for this development.4 He says :--" when the superstitious fears of the year 1000 had passed away, when the invasions of strange tribes had ceased, when the definite establishment of feudalism had assured at least a relative security, a security which the church helped to render more stable--there was everywhere a renaissance of art, of thought, of business, and of society. The world took courage and commerce again began to flourish. . . A decisive impulse was given by the crusades. From them we must date the habit of distant travel. It is they which opened the trade routes of the East, and thus created new markets for a cosmopolitan commerce. The Italians, enriched by foreign wommerce, travelled over France, fairs were established on all sides, and great mercantile associations were formed. Owing to this series of peculiar

## 7.1 Triatan law merchant

circumstances the fairs attained a degree of prosperity which they had never attained before or since."

The chief of these fairs were established on the trade routes which ran from the north to the south of Europe.1 It is for this reason that some of the most important of them are found in Champagne.2 and in Flanders.3 Somewhat later we get great fairs in some of the German towns.4 A little earlier we get a series of important fairs in Italy--but, as M. Huvelin has said, Italy attained a commercial civilization too highly advanced to preserve for long me form of a periodic trade. The true Italian fairs are the fairs of France and especially the fairs of Champagne."5 The fairs of Champagne began to decline during the fourteenth century, partly from political and partly from economic causes. The acquisition of Champagne by the French king involved it in the French wars of this century; and the heavy duties imposed by the king frightened away the merchants.6 The trade between Flanders and Italy began to be conducted either by sea or along the Rhine valley;;7 and in the fifteenth and sixteenth centuries the fairs of Lyons began to take the place of the fairs of Champagne, because Lyons was a more convenient port for French foreign trade.8 Other fairs which had an international importance in the fifteenth and sixteenth centuries were the fairs of Geneva9 and Besancon;10 and in Germany the fairs of Leipsic, Frankfort on the Main, and Cologne.11 But already the age of fairs was passing. International commerce was becoming fixed permanently at certain centres; and in the course of the seventeenth century the international fairs became chiefly places where the bankers met to settle the payments for transactions concluded elsewhere. They had become fot so much fairs as the clearing houses of Western Europe.13Law in X-YYTH AND X-YTHTH-CETKS.

But, though the great international fairs had passed away, their effects upon the growth of a uniform commercial law were permanent. In the fairs of Champagne merchants from all the countries of Western Europe met--many companies of Italians, merchants from all the cities of France and Flanders, Provencals, Jews, Englishmen, Scotchmen, Germans, Savoyards, and Spaniards.1 In the fairs of Flanders, likewise, there were representatives both from the northern kingdoms, from the south of Europe, and from the East.2 The men of all these different nations met and conducted their business funder the same protection and the same law;3 and, as that law developed to meet the new needs of this international commerce, the more finished legal conceptions of southern Europe inevitably exercised a constantly increasing influence upon the fibre primitive laws of the nations of northern Europe. That influence was exercised the more effectually because the companies of foreign merchants, either at these fairs or in their more permanent settlements, obtained in many cases the privilege of governing themselves and their transactions by their own laws. Thus the Italian Merchants, by treaty with Philip the Hardy, obtained in 1279, the right to nominate for themselves a captain, rector, and consuls.4 The l'rovencal Merchants formed the " Societas et communitas mercatorum de Francia," the chief of which was nominated by the consuls of Montpellier.6 The German merchants had their hansgraves, who decided their disputes while on their travels and during the fairs;7 and the Hanscatic league got from the sovereigns of the various states of northern Europe in which they settled privileges, more or less extensive, of deciding their disputes by their own judges and their own laws.7 This meant that, both in the fairs and wherever these associations of merchants settled, a uniform commercial law was to a large extent made and administered by the merchants for themselves.8 Therefore the rules of law and the modes of administering it which were best suited to international trade could easily be

**FIAIAN LAW MERCHANT**

adopted ; and that obviously led to the speedy absorption of the legal machinery and the rules of law which had originated in those parts of Europe which were commercially and legally the most advance. Thus the international commerce of the great fairs, and the activities of these privileged bodies of foreign merchants in the fairs and elsewhere, worked together to develop the commercial law of modern, Europe. We can see their effects in three different directions--(i) in the removal of hindrances to trade imposed by national laws; (ii) in the arise of commercial tribunals modelled on the Italian plan ; and (iii) in the spread of the Italian doctrines of commercial law.

(i) In order to attract merchants to the great fairs the state was prepared to forgo"certain burdensome rights which, though profitable to itself, obviously hindered trade. Thus, the right of reprisals was suspended in respect of debts incurred or wrongs committed in the fairs.1 The state abandoned, in favour of merchants coming to the fairs, the right of seizing the goods of a deceased foreigner (_droit d'anbaine_).2 In some fairs the prohibition against usury was suspended in respect of transactions there entered into, provided that the interest charged did not exceed a certain rate.3 In many cases the merchants attending the fair could not be arrested during the fair for wrongs done or debts incurred outside the fair.4 The last mentioned franchise became an anachronism with the growth of a more settled order ;5 but the other privileges were gradually extended until they finally swallowed up the rules of law to which they had once been exceptions.

Footnote 1: Huelin, op. cit. 442-443.

Footnote 2: Iud 443-445 ; in the treaty made in r294 between the captain of the merchants of Italy frequenting the fairs of Claaampagne, and Otto count of Salins (cited ibid 441), it is provided that, "Si aliquis isotrum mercatorum objetir in terra et jurisdictione NORTS ... nos bona ipsus consigni facicums, et red:di ejus nunito yel socio de quibus constitiert aut unito universitatis dictorum mercatorum aut capitanei, quam cito postulatum fuerit a nohis vel ballivo nostro. ... Sed ille qui bona receperit voluntatem defuncti exequatur;" as Pardess, op. cit. ili _clxxviii_, says, " On ne peat nier les services ...importans que rendient dans le Nord la grande essociation anseatique, et dans le reste de l'Europe les compagnies moins celebres ... des commercans italiens," in respect of the removal of many kinds of burdensome exaction.

3: Ibid 439-440; a royal ordinance of i331 fixed the limit for the fairs of Chanapagne at r5 p.c.

Footnote 3: Ibid 445-45r; at p. 4+7 the charter of Aix la Chapelle of t66 is cited to the effect that, "Nulls mercator vel quilbet alia persona in his nundinis mercatoru in causa duct pro debito solvendo vel alio quiblet negotio quod ante unudinas perpetarum facutum fuerit; sed s, undominis aliquid merream facium fuerit, in nundinis secundum justician emendetur;"

5: Ibid 451-454Law in Xvith and Xvith 'Cents.

adequ commercial law.1But in northern Europe the privileges of the merchants depended upon a grant or grants made by king or lord.3 These grants resulted in the formation of a franchise of fair or market in which the merchants were governed by a special law. But the administration of the law has always been a profitable thing ; and therefore the grantee of the franchise naturally kept it in his own hands. It was therefore the lord of the fair or market, and not the merchants who resorted to it, who was the judge of the court ; and the assessers of the court were chosen by him. We have seen that when the periodic market developed into a permanent town these assessors developed in many cases into a permanent court of merchants.3

Footnote

**ITALIAN LAW MERCHANT** **95**

by the clashing jurisdiction and c**d**mplicated procedure of the ordinary courts1 caused this jurisdiction to prevail in spite of the opposition of those courts. In 1549 an exchange, and a consular court staffed by judges elected by the merchants, were established at Toulouse.2 In 1563 L'HopitaP established similar courts at Paris;3 and in 1576 they were established in the principal towns and the capitals of the provinces, in which an extensive trade was carried on.4 In Germany the preponderating influence of the merchants in the government of some of the principal towns had led to the beginnings of a commercial jurisdiction; and the ordinary courts and the law which they administered were adapted to the needs of commerce.5 But the Reception of Roman law in many cases superseded the ordinary law, and led the ordinary courts to become the preserves of the lawyers, who naturally adopted the technical and complicated procedure of the civil law.6 This did not suit the merchants. They had recourse, sometimes to the extra-ordinaria cognitio of the Burghermaster,7 sometimes to special tribunals of arbitration.8 In 1508 Nurcchburg was enabled by imperial grant to set up a commercial court of merchants for merchants;9 and later in the century other towns which, like Nurechburg, possessed large fairs got similar privileges.10 But the German development was slower than the French. It was not possible in Germany, as it was in France, to make sweeping and general changes by legislative ordinance. Leipsc obtained a commercial court in 1682; and by that time the type of German commercial court was fixed. The influence of the towns and the influence of the international fairs had combined to produce this result.

Footnote 10: Ibid r12-II5. -

Footnote 11: Morel, op. cit. 189-r92; Henry II.'s edict of 1551 cited at pp. 191-r92 states that the length and technicalities of the process of the ordinary courts was so great, "De sorte que la pluspart de nos subjects delaisans et abandonmans leur forme et maniere de vivre avec leurs arts , ... employment le temps de leur vie a la poursuite d'un procez, sans en pouvoir voir la fin, et consument leurs meilleurs ans, avec leur biens, facultez et substances, en chose si serve et si libierale qu'est cette occupation comme chacun scait "; besides there were the delays caused by the conflicting jurisdiction of various courts. * Ibid r92. * Ibid r92. * Ibid r105-202; cf. Glasson, Les Juges et Consuls des Marchands, Nouv. \_Rey.\_Hist. (1897) 5-13. * Morel, op. cit. 203, "Dans les principales villes et capitales des provinces esquelles il y avuit grand train et trafic de marchandises." * Ibid 97-r0. * Ibid r05-r0. * Ibid r06-r09. * Ibid r09-III; as M. Morel points out we may suspect that this reform was directly inspired by the example of the cities of &ombardy, between which and the towns of lower Germany there &ere intimate commeficial relation:\*Law in Xvith and Xvith Cents.

between the lawyers and the merchants were different in different places.1 But they all had this essential feature in common--the merchants were part of the court. Moreover, in most cases, the part which the lawyers were allowed to take, either as advocates or judges, was restricted;2 and in all cases--both in the courts of the fairs and in the courts of the great cities--the procedure was short and summary. All over Europe it is described in the same terms as it is described in the Italian city statutes--it is _de plano ao sine figura et longo strepitu jridicn3_

Footnote 1: Morel, op. cit. 212-213, " Durant tout le Moyen Age, en Italie, pas de juridiction commercialo o les juristes ne fussent melanges aux negociants. Des Marchands et rien que de marchands pour juger les marchands, tel est au contraire le principe fondamental que les ordonnances francais suivent avec une rigueur de plus en plus accentue a mesure qu'on rapproche de Me

## 97 Italian Law Merchant

their dealings in money naturally led them to develop a banking business.\[1\] The establishment of such a business led to the evolution of Bills of Exchange and other negotiable instruments, which facilitated the payment of debts without the need for transporting coin.\[2\] The presence of these changers and bankers at the fairs made it a convenient practice to make debts of many kinds payable at the fairs.\[8\] The fairs thus became the clearing houses of Europe; \[4\] and, as we have seen, it was this function of the fairs which has had the longest life.\[5\] The Italian influence upon these branches of the law is particularly direct, since the business of dealing in money or its substitutes was chiefly in the hands of the Italians.\[6\] Thus, through the fairs, the Italian doctrines as to banking, negotiable paper, and international exchanges, were diffused throughout Europe, and became the foundation of its commercial mechanism.

Secondly, the Italian doctrines as to the unlimited liability of the members of a societas for the acts and transactions of one of its members, though the member was not specially authorized, was recognized in the fairs; and through them they passed into the commercial law of Europe. This principle gradually supplanted both the Roman and the Germanic rules which did not admit such a liability.\[7\]

Thirdly, we have seen that the prohibition of usury was relaxed in favour of those who traded at fairs provided that the rate of interest did not exceed a certain sum,\[8\] and that the Italian cities found it necessary to make similar modifications of this prohibition.\[9\] We shall see that, from the sixteenth century onwards, usury laws on these lines were adopted by the commercial cities and states of Europe.\[10\]

Fourthly, the fairs of Champagne recognized a procedure against defaulting debtors at the fairs, which recalled the provisions of some of the Italian city statutes, and foreshadowed a modern bankruptcy procedure. It enabled, in the first place, the debtor to be arrested and his good seized; and in the second place, it distributed his assets rateably among all the creditors whose debts had been contracted at the fair.\[11\] Other creditors only came in after the fair crediters had been satisfied.\[12\] Provision was made for compositions with creditors.\[13\] Other fairs applied a like set of rules; and, at a later period, their exampleLaw in Xvith and Xvith Cents.

helped many countries to substitute a rational law of bankruptcy for primitive rules as to execution for debt which were wholly unsuited to the needs of merchants.1

Footnote 1: Huvelin, op. cit. 495-498; below 135-136, 137, 139, 150; Pt. II, c. 4 I. SS 6.

Fifthly, the judgments given in the courts of the fairs had an international force. If the courts of any particular country refused to recognize them, the merchants of that country were forbidden to come to the fairs (_defense des foires_)--an expedient which generally succeeded in securing the co-operation of the national courts.2 Just as in the rules made by the Italian cities for the decision of questions in which a foreign element is present we can see the germs of some of the rules of private international law,3 so in this rule we can perhaps see one of the causes which has led to the growth of that department of private international law which is concerned with the validity of foreign judgments.

Sixthly, the rules laid down by the fair courts as to purchases from a non-owner have had large effects direct and indirect upon our modern commercial law. In these rules, originating in commercial necessity, and developed by the canonists' views as to the importance of good faith, we can see the growth of a set of doctrines which have not only modified the older rules as to an owner's rights to recover his chattels, but have also added to our commercial law one of its most important chapters.

Footnote 2: Ibid 426-434; the international validity claimed for the judgments of the fairs of Champagne is illustrated by a correspondence in 1299-1300 between the Guardians of these Faits and the Lord Mayor of London, printed by C. Walt c. d., Fairs Past and Present 250-260; the Lord Mayor had taken upon himself to examine the facts on wifteen the judgment was based; the Guardians of the Fairs in 1300 explained that this was irregular because " the cognisance of what relates to fairs belongs to no judge, but to us only "; and that if the mayor made default they must " inhibit the land and fairs of Champagne and Brie to all your subjects and their goods," at p. 257 ; cf. H.R. xxxvii 247.

Footnote 3: Above 74-75.

Footnote 4: Vol. ii 79-80; vol. iii 319-322, 324-327, 336-337 ; cf. Huvelin, op. cit. 456-457-80, 81,51,52,53,54,55,56,60,70,81,57,58,59,82,59,83,58,59,84,85,86,87,88,89,80,82,83,58,84,86,88,89,81,82,84,85,87,88,89,82,85,86,89,83,87,88,89,84,88,85,89,86,87,88,89,88,89,80,83,89,80,84,89,85,86,87,88,89,88,89,80,85,89,86,89,87,88,89,88,89,81,83,89,82,89,83,84,85,86,87,88,89,88,89,80,89,81,84,89,82,85,86,89,87,88,89,88,89,80,89,81,85,89,82,86,89,88,89,82,87,88,89,83,89,80,84,89,85,86,89,87,88,89,88,89,89,80,89,81,86,89,82,89,83,84,85,87,88,89,86,89,87,88,89,88,89,89,80,89,82,89,80,89,83,88,89,81,84,89,85,89,86,87,88,89,88,89,89,80,89,82,89,83,84,85,89,86,87,88,89,88,89,89,80,89,81,89,82,89,83,84,85,89,86,87,88,89,89,82,89,84,89,85,89,86,89,87,88,89,88,89,89,80,89,81,89,82,89,83,84,85,89,86,89,87,88,89,89,88,89,80,89,81,89,82,89,84,85,89,86,89,87,88,89,89,88,89,80,89,81,89,82,89,83,84,85,89,86,89,87,88,89,89,88,89,80,89,

## 7 TALIAN LAW MERCHANT 199

England the same influence led to extensions of the scope of the older personal actions with the same results.1 But before this modification had taken place in continental states an exception in favour of the purchaser in a market had been established.2 This exception seems in France to have passed through two stages. At first the purchaser's title to the goods was secure; but later he was bound to restore if he were re-imbursed the price which he had paid.3 Later still a further condition was added. The canonist view of the importance of good faith, which did so much for the development of commercial contracts,4 led to the adoption of the rule that it was only the bona fide purchaser in a market who could claim this privilege.5 Hence we get the rule, either in the form that the former owner cannot recover at all from the bona fide purchaser, or in the form that he can only recover if he is willing to pay the price which the bona fide purchaser has paid. This rule formed an exception both to the old rules which allowed an owner who had involuntarily lost possession to recover from any third person, and to the new rules which allowed him to recover when he had voluntarily parted with possession.9 This exception in favour of bona fide purchasers in a market still forms part of modern codes of commercial law;;7 and it is perhaps the earliest illustration of that recognition of the claims of the bona fide purchaser, which the exigencies of a highly organized commercial system have compelled the law to concede.8

Footnote 1: Vol. iii 339-341, 347-349.

Footnote 2: Huvelin, up. cit. 460; Mitchell, op. cit. 97, 98.

Footnote 3: Huvelin, op. cit. 460; 461.

Footnote 4: 1 Ibid 463-464.

Footnote 5: 1Cf. Mitchell, op. cit. 102; below 105 n, n.

Footnote 6: 1A very cursory inspection of the books of Marquardus or Ansaldus will show this; two of the earliest of these writers were Straccha, and Pedro Santerna Lusiterna, whose works were printed in 1556, Desjardins, op. cit. 104, 108; they are cited by all their successors; thus Marquardus ii 13.4 fees to them as the founder of insurance law.

In these various ways we can trace the influence of the law administered in these international fairs upon the growth of our modern law. A similar influence was exercised by the associations of foreign merchants who settled in the various European states. They familiarized the merchants of those states with the legal doctrines I have just described; and these influences tended to give to the commercial law of Europe its modern cosmopolitan character. The books of the writers of the seventeenth century show that Italian, Flemish, French, and Spanish authors could be cited by the writer of any nation to illustrate or to prove the doctrines which he was expounding.9 Far more truly than in

## 100 Law in Xvith and Xvith Cents.

the Middle Ages the commercial law of Western Europe had become a jus gentium which "'apud omnes populos peraeque custoditur."

We shall now see that the growth bf international commerce was producing a similar degree of uniformity in the principles of the closely allied topic of maritime law.

_Maritime Law._

$\\epsilon$.

The early history of maritime law is somewhat different from the early history of commercial law. In most of the European countries which possessed seaports and a coasting trade the customs of the sea were codified from an early date, and these customs applied to a group of ports. We have seen that the Consolato del Mare, the laws of Oleron, the laws of Wisby, and the laws of Lubeck formed a series of codes which governed all the various maritime states of Europe.${}^{1}$ Thus in the earlier Middle Ages maritime law was more cosmopolitan in its character than commercial law. There was more variety between the customs of towns in different parts of Europe than between the customs prevailing in the different seaports. This is due to two sets of causes. In the first place, the problems which a body of maritime law must solve are in all ages very similar. Some of the topics dealt with in the laws of Oleron appear in most of the other codes. The duties of the mariners, the power of the master, jettison, contribution, average, salvage, collision, loading, freight --are topics which must occur so soon as any sort of sea borne trade arises. Moreover the conditions under which this trade was carried on were stable as well as similar. " Between the ninth and the thirteenth centuries," says Mr. Ashburner, writing in 1909, "there was probably less change in the conditions of commerce and navigation than there has been in the last twenty-five years."${}^{2}$ In the second place, sea borne trade means communication between places comparatively distant, and geographical conditions limit the number of these places. These facts tend to produce a similarity of rule because it is easy for one port to imitate the customs of another port. They tend also to make a codified set of rules convenient because they enable the foreign merchant to understand his legal position.

But, though there are these differences between 'the maritime and the commercial law of the Middle Ages, the intimate connection between these two branches of law has caused the manner in which they were administered, and the manner in which their rules were developed, to be very similar.

We have seen that in the trading centres of the south of

## 17 TALIAN LAW MERCHANT 101

Europe the mode in which maritime law was administered was similar to the mode in which commercial law was administered.1 At Barcelona the prud'hommes of the sea administered maritime law, just as the prud'hommes of the merchants administered commercial law ; and in the Flemish ports, and other ports in northern Europe, this method of administering the law was followed.3 But this method was not followed so universally in maritime as in commercial law. 4n France, just as in England, jurisdiction over maritime cases was vested in a court of Admiralty ; and in France as in England this division of functions produced conflicts of jurisdiction.3 In France the Admiralty and the commercial consular courts often differed as to their competency to exercise jurisdiction, just as in England the Admiralty and the common law courts differed. But the results of the conflict were very different in the two countries. While in England the Admiralty was deprived of practically all its jurisdiction over commercial cases,4 in France it retained an exclusive jurisdiction over all those commercial cases which involved carriage by sea.5

Footnote 1: Above 70-71.

Footnote 2: Maynes, Lex Mercatoria Pt. III, chap. xvi,

Footnote 3: Pardessus, op. cit. iv 226-227.

Footnote 4: Vol. i 553-558.

Footnote 5: Pardessus, op. cit. iv 327--the ordonance of r68i, after enumerating a long list of matters which fell under the jurisdiction of the court of Admiralty, ends by giving it jurisdiction, "generalement de tous contrats concernans confmerce de la mer, non obstantant toutes sousmissions et privileges au contraie."

But this difference in the mode in which maritime law was administered did not prevent a growing similarity in the principles of that law. We have seen that the commercial activities of the trading centres of the south of Europe caused the growth of elaborate bodies of maritime law.6 These bodies of law contained minute regulations upon topics which were either but scantily treated or were not treated at all in the codes of northern Europe. The contract of marine insurance is as we shall see a striking example.7 It was inevitable that these bodies of law shquld be used in the sixteenth century by the seaports which, owing to the trade with the Indies and America, had taken the place of the seaports of the Mediterranean.8 It is true that, in the case of those branches of maritime law which touched upon international questions, the nations differed. Selden advocated a mare clausum and Grotius a mare liberum,9 But, in the caseLaw in XVith and XVith Cests.

of the much larger body of rules of maritime law which touched upon commercial questions, the growing similarity between the commercial laws of the various states of Europe intensified the similarity which already existed between their maritime codes. In the case of maritime as in the case of commercial law the 'treatises of the European jurists possessed an authority which was international.

In these various ways principles and rules of commercial and maritime law, which had originated in the Italian cities and the trading centres of the south of Europe, were received by many other states, and became the basis of their commercial and maritime law. But it is time to return from our wanderings in foreign lands, and with the help of the information we have gained to examine the effect of these widespread changes and developments upon our English law.

_The Beginnings of English Commercial and Maritime Law_

The origins of some of the doctrines of English commercial and maritime law can be traced back to the Middle Ages ; but by far the larger part of our modern commercial and maritime law is due to the reception of continental doctrines in the sixteenth and seventeenth centuries. In the case of commercial law this reception was effected partly by the legislature, partly by the Council, and partly by the various courts of law which had jurisdiction in mercantile cases--the Admiralty, the Chancey, the Star Chamber, and the courts of common law. Through these various agencies many new legal doctrines, familiar in the trading centres of Europe, became part of English law, and began to be developed on native lines by the English courts. In the case of maritime law this reception was effected mainly through the court of Admiralty. This court was well established in the sixteenth century, and had already begun to lay the foundations of English maritime law.1 But naturally its importance and the sphere of its jurisdiction were enlarged by the commercial expansion of the latter part of the sixteenth century.2 It too began to apply some of those doctrines, both of maritime and commercial law, which had been evolved in foreign lands, and to incorporate them into English law. $\\bullet$

Footnote 1: Vol. i 552-559.

The history of the technical development of some of the most important of these doctrines of commercial and maritime law I shall relate in the second Part of this Book. In this chapter I shall describe shortly the medieval beginnings of English commercial and maritime law ; the agencies by means of which the

## 107 Medieval. Law Merchant 103

continental doctrines were received into our law during this period; and the characteristic peculiarities arising from the manner of their reception, which begin to appear in our commercial and maritime law during this period, and become more fully developed in the next. My division of the subject will therefore be as follows: (1) The "Medieval I.aw Merchant in England ; (2) The reception of the foreign doctrines of commercial and maritime law; and (3) The peculiarities in the development of English commercial and maritime law.

(1) _The Medieval Law Merchant in England._

_Commercial Law._

In England, as our the Continent,1 the need for providing a special protection for the merchant and for trade led the legislators of the ninth and tenth centuries to confine trade to definite centres. In Saxon times we meet with laws which, if they did not confine trade to the "'burh" or "'port," made it a risky business for the purchaser to buy elsewhere, in case the goods turned out to have been stolen.4 This limitation of trade to special places which were specially protected, naturally led in England, as elsewhere, to the growth of permanent centres of commerce.3 It was only in these "ports" or "'burhs" that moey could be coined;4 and the market which arose under this special protection was one of the causes which gave to the borough community features which distinguished it from the other communities which made up the English state.5 "The general logic of the process," says Maitland," " we take to have been this: the king's _burh_ enjoys a special peace: even the men who are going to or coming from it are under royal protection: therefore within its walls men can meet together to buy and sell in safety: also laws which are directed against theft command that men shall not buy and sell elsewhere: thus a market is established: traders begin to build booths round the market-place and to live in the borough." In England as abroad the king expected to be compensated for the special privileges there enjoyed. The traders must pay toll; and this right to toll104 Law in XVITH AND XVITH, CENTS.

is one of those franchises which were so freely granted by the Anglo-Saxon kings.1 Thus," in England as abroad, the right to hold these markets, and even the right to confer the privileges of a burh upon a community, passed \_into the hands of the great landowners ;2 and they were not generally recognized as belonging solely to the crown till after the Quo Warranto inquiries of Edward I.'s reign.3

Footnote 1: The word

## 10.1 Model law merchant

**105**

\*\*chaser of stolen goods ; \[1\] but these borough rules, except in the city of London, did not become a permanent part of English law. It was only upon an honest purchaser in market or fair,\[5\] that the common law conferred any such privilege ; and by Edward IV.'s reign the Lonon privilege had come to be based on the assumption that all shops in the city of London were market overt for sales effected by the shopkeepers.\[3\] This privilege has, from the end of the sixteenth, century, been strictly limited to sales in the shop by the shopkeeper of the articles in which he deals.\[4\] It does not apply to sales not in the shop, or so sales to the shopkeeper ;\[5\] and it only applies to bona fide purchasers.\[6\] Neither in borough nor in fair does there appear to have been any liability for the deficient quality of goods sold, except by virtue of an express warranty.\[7\]

But though commercial needs sometimes influenced the jurisdiction and procedure of the borough courts, and inspired certain of the rules of law laid down by them, commercial law does not, as Miss Bateson has pointed out, hold a large place in the borough custumals. "Merchant law," she says," appears in these codes as only a subsection, chiefly interesting to the clerk of the borough court for the forms of its piepowder court, its rapid procedure, its arrangements for the foreigner, and the trader travelling from place to place. That our custumals have so little to tell of the rules of hosting and brokerage, of the beginnings of the negotiable instrument, or the responsibilities of partnership, of rules concerning the delivery of goods, of owners'Law in Xvith and xvith. Cents.

risk, of negligence, of covenant or account, seem to show that if market law could once claim 4 big share in the making of borough law, the large commerce of a later time was sending its stock of legal ideas into another channel." $\\bullet$ It is therefore to the piepowder courts of the fairs, and to the courts of the staple, rather than to the courts of the boroughs, that we must look, if we would trace the development of commercial law in England in the Middle Ages.

(ii) I have already spoken of the court of piepowder which was incident to the franchise of fair. We${}^{t}$ have seen that this court was held both for those fairs which belonged to particular lords, and for the fairs which were held by the boroughs.1 Many records of these piepowder courts exist; and it would seem that the existence of these records is peculiar to ${}^{\\bullet}$ England. The records of the great continental fairs, if they ever existed, have not come down to us.2 Gross has published a selection of these records; and Maitland has published some of the records of the fair court of the Abbot of Ramsey held at St. Ives in Huntingdonshire.3 These are the only records yet published; but we get some further information, both as to the character of the court and as to the law there administered, from the custumals of some of the boroughs,4 and from the unique treatise on the Law Merchant contained in the Red Book of Bristol.5

Footnote 1: Vol. i 537-538.

Footnote 2: (jross, Select Cases on the Law Merchant (S.S.) i xxvi; and cf. the authorities cited xva, xxvi.

It is clear from these authorities that these piepowder courts were of the same general type as the fair courts of the Continent.6 I have already described their leading characteristics.7 Here. I must note some of the peculiarities of the law therein administered.

Footnote 3: Select Pleas in Manorial Courts (S.S.) i xva, xvi.

Footnote 4: See the numinenta Gildhalle (R.S.); and the two volumes of Borough Customs (S.S.).

Footnote 6: Vol. i 529, 539.

Footnote 7: Vol. i 535-540.

Footnote 8: Above SS1-83, 96.

Footnote 9: (Gross, Select Cases on the Law Merchant (S.S.) i xxvi; and cf. the authorities cited xva, xxvi.

The idea that the law must be administered speedily, and summarily, which is common to all medieval commercial courts throughout Europe,8 took practical shape in many relaxations of the ordinary rules of procedure. " Pleas were begun without a writ, formalities were assuaged, few essoins were allowed, and an answer to the summons was expected within a day, often indeed within an hour. Pleas were adjournted from hour to hour and from day to day. If the defendant failed to appear when summoned, his goods were attached forthwith, appraised, and sold."9 In London an attempt was made to restrict appeals in

## 10 Medical Law Merchant 107

order that vexatious delays might be avoided ;1 and the emancipation of these courts from the ordinary technicalities of procedure sometimes gave rise to developments which were in advance of the contemporary rules followed by the courts of common law. The general rule that the party, plaitiff or defendant, who failed to prove his claim or plea, paid the costs;2 the communications maintained between the courts of different fairs, whether in England or abroad;and the respect paid to the judgments of their courts3--are good illustrations. But perhaps the most interesting of these developments is the manner in which in certain places the plaintiff's secta was developing into a body of witnesses who were examined by the court in a very modern fashion.4

Footnote 1: A _not_ the court of the claim of

### Law in Xvith and Xvitit Cents.

the trial had not quite assumed its modern aspect. If the members of the secta stuck to their tale and convinced the court the plaintiff won his case.1 The defendant could not call rebutting evidence. All he could do was to accuse the plaintiff's witnesses of perjury; and _to_ succeed on this charge he must produce at least two more. witnesses than the plaintiff.2 Thus we sec the law at the interesting stage in which the old ideas of proof, though they still prevailed; were fast${}^{\\mbox{\\small\\sf e}}$being developed into something approaching the modern conception of a trial by a court which finds the facts in accordance with the sworn evidence produced before it. It was not till the sixteenth century that the common law trial by a judge and jury definitely reached this stage.3 It is certainly instructive to see \_j_hat, even in the trial by compurgation, there were possibilities of a development, which, if it had continued, might have ended in the final evolution of a rational procedure.

Footnote 1: I did not mention the possibility that the court had not been fully understood.

If we turn from adjective to substantive law we can see that the commercial character of these tribunals similarly affected the nature of the law which they administered. No doubt a considerable number of the entries on the records of the fair courts are taken up with recording the presentments of the juries charged with bringing to justice those who had offended against the peace and order of the fair. Many of these entries do not differ from the presentments of similar juries in the boroughs and leets of the country at large.4 But such presentments as those proximam curiam ad ducendum et probandum, et defendenti ad audicendum probaciones queretis ..., nisi forte sectam suam ad il'man curiam adducxerat paratam; quod si fecrit statim admitantur et examinent : que examinatie sic fiat "; each witness is sworn separately to speak he truth ; " Et tunc examinent per sensescallum Curie in aperta audiencia parcium et totius curiae et irrouletur ipisius probacio . et ita post modum successive examinentur et jurentur omnes adducti quilibet per se separatin. Et si Senescallus et curia suspicionem habeat quod hujusmodi adducti sint locati vel subornati ad dicendum falsum tunc nullus corum audiat alternis examen "; cf. Red Book of Bristol i 79, 80.

Footnote 1: I did 65, " Et si demonstrationu sam probare poteri cum tribus testis tubostis et fide dignis et sufficientibus, tum recuperet secundum quod probaverit, nisi forte defendens offerat et novam secuitatem inveniat ad convincendum querentem in forma qua subsequitur."

Footnote 2: Ibid 79, 80, "' Queratur a defendente antequam judicium reddatur si aliquid pro se habeat vel dicere sciat quarce secundum probaciones illas ad judicium proedi non debeat. In qua casu est ordatum quod defendens ille in sua propria persona tunc sit ibi et offerat se paratandum reprobandum et convincendum quentem sen petentem est sectam ese perjurons :" the proper forms as to finding security and the like having been complied with, " Tunc uterque potest adducere, scilicet querens (sc. defendens) ad convincedum, et defendens (sc. queerens) ad enforciandum, primam sectam suam productam. Fit ille cujus probacio extunc melior et verior compperta sit habeat judicium pro se ..., ita tamen quod convicio sive atnitcta pro nullo habeatur nisi ipse qui convictus est excedat eum qui convincendus est in numero per duos testes ad minus."

3: V/a, i 334-336; vol, iii 648-649; vol, iv 516-578; Pt, II, c. 7 8 1.

4: V/ol, ii359-391.

## 10.1 Mechanical Law Merchant

which relate to forestalling,1 selling out of the fair, selling without making a proper display of one's goods,2 or using false measures,3 are naturally prominent. No doubt, too, a certain number of entries relate to ordinary torts--theft, assault, trespass and so forth. But here again some of these cases illustrate the commercial character of the fair. There is an action in tort for impeding a sale;4 and other notable examples are to be found in actions for defamation whereby the plaintiff has suffered in his trade and credit.5 By far the most important of these entries, however, relate to commercial contracts; and it is assumed that the litigation concerning these contracts will be conducted in accordance with a law merchant made and administered by the merchants native and foreign who come to the fair.6 The king had promised the foreign merchants in 1303 that their disputes should be speedily settled by such a law;7 and, considering the large number of various cities represented at the fair of St. Ives,8 and doubtless at other important fairs, it will be clear that it was only a law, from which national technicalities were as far as possible eliminated that would suffice for their needs. If we could understand the nature of this law administered in the English fair courts we must glance rapidly at some of the cases recorded on their rolls.

Footnote 1: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 2: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 3: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 4: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 5: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 6: The author is grateful to the anonymous referee for the support of the National Science Foundation.

As we might expect, cases turning upon the contract of sale are the most numerous. The contract was generally made by the agreement of the parties evidenced by the gift of a God's penny or earnest money.9 The mode by which it was enforcedLaw in XVIIth and XVIIth CENTS.

was the action of debt in which compurgation played a large part. But we have seen that this primitive procedure was rendered more rational by the power of the court to examine witnesses ; and that the case was sometimes decided in quite a modern fashion according to the impression made on the court by the evidence thus given:1 We can see too that certain rules relating to the incidents of this contract, which were afterwards incorporated into the common law, were beiffy evolved. Damages for the defective quality of the goods sold could only be got if seller had warranted their quality ;2 and similarly damages could be got if the goods had been warranted equal to sample and had failed to come up to the sample.3 As in the later common law, the failure to fulfil such warranties was regarded as a species of fraud.4 There seems to be no evidence as to whether a purchaser from a seller who was a non-owner could get damages if he were evicted. Judging from the analogy of the law as to defective quality, and from the later common law as to liability for defective title,5 it is probable that he could not, in the absence of an express warranty. There is more evidence as to the rights of the true owner against the purchaser of his goods ; but it is conflicting. It would seem that, though, in the interests of commerce, both borough and fair courts were inclined to protect the purchaser,6 no certain rule had as yet been involved. At any rate, in 1332, it appears that proof of the plea of purchase in market overt, though it was generally recognized as a defence against a charge of theft, did not necessarily secure the purchaser's title.7 In England, as on the Continent, the customs on this matter were very various.8 Eventually, as we have seen, English law decided to admit that the proof of such a plca gave a good Medieval law merchant 111 title to a bona fide purchaser in market overt. This conclusion had been substantially reached before 1473, and was settled law by i596.1 With the limitation upon this privilege which results from a successful criminal prosecution,2 and with the peculiar rules relating to the sale of horses,3 I have already dealt.

Footnote 1: Above ro5 n. 4; before 1473 the doctrine had made its appearance in the Y.BB. See Y.Bl. 9 Hy. VI. Mich. pl. 28 p. 45 _per_ Paston ; 33 Hy. VI. Hil. pl. 15; 35 Hy. VI. Mich. pl. 33 pp. 28-29 _fer_ Halitoff and Prisot _arg_.

Footnote 2: Vol. iv SS22. 3 Ibid.

Footnote 3: Ibid 64. 6 Ibid 77, 78. 7 Ibid 75.

Footnote 4: Ibid 39, +0.

Footnote 5: Ibid 96, 97; cf. Select Pleas in Manorial Courts (S.S.) i55, 156 a case which gives a curious sidigitent on the professional habits of the day--"not only does a professional advocate sue for his fees, but he makes it a ground of complaint against his employer that he has been debarred of getting m snev out of the other ' ' 'no one seems to be surprised at this." \*

Another contract which sometimes appears on the rolls is the contract of partnership. Generally they are quite simple cases. Two merchants have agreed to join in the hire of a booth for the fair and one has ejected the other.4 Goods have been handed over to a fellow merchant to exchange for other goods, and he will not hand over their equivalent.5 But one case heard in i300 at St. Ives raises an interesting point of law which has often come before the"courts in modern times.6 In this case the plaintiff sued on an agreement to trade in Scotland, on the terms that he was to have one-third of the profits and his partner two-thirds, and that the losses were to be shared in the same proportion. He admitted the receipt of 6os. from the defendant, which, with money of his own, was to be the partnership capital; and alleged that, when the business had resulted in a profit he had paid over his partner's share of the profits, but now that the business had resulted in a loss his partner would not pay his share of the losses; but had demanded his 6os, as a debt, and had compelled him to hand over certain property as security for it. The defendant succeeded in showing that there never had been any contract of partnership, but merely a loan by him to the plaintiff to enable him to carry on his business.

Footnote 4: For these rules see \*3. iii SS82-387.

The commercial character of the litigation in the fair courts is also illustrated by the actions to which the employment of brokers gave rise. There are actions by brokers for their fees,7 and there are actions on contracts made through them." Counsel were treated like other agents, and sued for their fees and expenses.9 We have seen too that among merchants both the contractual and delictual liability of masters for the acts of their apprentices and servants was somewhat larger than the liability imposed by the rules of the medieval common law.10 The master as well as the servant or aprentice was liable to pay and

### Law in Xvith and Xvith Cents.

**able to sue for goods which had come to the master's hands through his servants or apprentices, even though he had not authorized their acquisition ;1 and in some places he might also be liable for certain of their misdeeds though committed without his authority.2 The special rules of this kind relating to mercantile agency were, as 'we have seen, recognized by the statute of the staple.3 Other mercantile contracts which appear on the rolls are contracts of suretyship--there are actions by paying suveties against the principal debt$\\alpha$,4 and by creditors against sureties ; 5 contracts of deposit,6 of loan,7 of carriage,8 and for personal services of various kinds.9**

Footnote 1: Red Book of Bristol i 66-67, cited vol. ii 387 n. ro; it must be proved that the relationship of master and servant existed at the time of the acquisition ; if this were proved, the subsequent death or dismissal of the servant did not affect the right to sue ; cf. Liber Albus (R.S.) 286 for a similar rule in London.

Footnote 2: The Waterford rule as to appretices (1300) was that "Every citizen ought to answer fcr his apprentices' wrongdoing and damage, made by day or night and at all times, as he would for his son if he were of age," Igorough Custo,as (S.S.) i 222.

Footnote 3: 27 Edward III, st. a c. r9; vol. iii 387.

Footnote 4: Gross, op. cit. 6. & Ibid 26, 101-To2. & Ibid 21-22. & Ibid 41, 107. & Ibid 43. & Ibid 43. & Ibid 13. & Ibid 13. & 59, 60--personal service during the fair; 22--service of delivering parcels ; 57:58--employment as baker; 83--sailing a boat and other services.

Footnote 10: Ibid 36-37. & Ibid 100. &

Footnote 11: Vol. i 539-540 ; as Mr. Gross says, op. cit. xvii, " "the documentary material regarding the activity of piepowder or fair courts . .

## 11 Model. I.aw merchant 113

owing to the absorption of its jurisdiction by the central courts \[1\]. Unlike the fair courts of the Continent \[3\], our English fair courts made no permanent contribution to the growth of special commercial courts \[4\], and took n$ large share in the development of a system of commercial law. The reasons for this difference between England and the Continent were (i) economic, and (ii) legal.

(i) We have seen that all 'through the Middle Ages England was economically ia a backward state of development \[3\]. The production and export of raw material, and the import of foreign manufactured commodities, were the outstanding features of its foreign trade. And this foreign trade was to a very large extent in the hands of foreign merchants. We read in the Venetian Calendar \[4\] how in 1287 "Thomas Lauredano sent to England by Nicoleto Basadona about 10,000 lbs. of sugar and about 1,000 lbs. of candy, and four livres tournois gross, in money amounting to 3,580 livres. Nicoleto sold the goods in London, and went to St. Botolph's (Boston), where he invested the money in wool, which he shipped on board two coggos for Flanders." These foreign merchants lived very much to themselves. The Venetians and the Hanse, for instance, had their own factories in London. They naturally preferred to settle their own disputes, and attempted fairly successfully to prevent their own country-men'from appealing to any jurisdiction except that of their own consuls \[5\], No doubt English merchants had some share in the export trade of the country. But this trade was confined to the staple towns, and cases connected therewith were determined for the most part by the special courts of the staple \[6\]. The result was that the great bulk of the cases which came before the courts of our English fairs and boroughs were concerned with the smaller transactions of internal trade. Naturally these economic facts reacted upon the law administered in their courts.

(ii) The impression which the published records of our fair

## 114 Law in Xvith and Xvith $\\cdot$Cents.

courts leaves upon me is that they were courts which dealt for the most part with petty transactions, and that consequently, the law there administered had not much chance to develop. The forms of action, the procedure, and the rules of law possess the same primitive characteristics as marked the business in other local courts. Compurgation meets us at every turn. There is no clear line between tort and contract. The proprietary character of a debt and of the action of debt is sometimes very pronounced.1 It is true that we sometimes re:d of "scripta obligatoria" which bound their makers to pay the person named therein or his certain attorney, or the bearer;3 and we shall see that on the Continent "scripta obligatoria" of this kind were one of the germs from which the negotiable instrument was subsequently developed.3 But the process of development has not gone far in this country. Thus the powers of the "certain attorney" are limited: he cannot plead "non est factum" to a release under seal alleged to have been made by the payee.4 It is true that in London we can read much about the regulation of brokers and their evasions of the usury laws.5 But what Miss Bateson has said of the law administered in the boroughs 6 is generally true of the law administered in the fairs. Neither in our fair nor in our borough records do we read much of the beginnings of those legal doctrines of our modern commercial law which were beginning to spread from Italy and south-western Europe to the great fairs of France and the trading cities of the Netherlands.

Footnote 1: In the twelfth century custumal of Okehampton, Borough Customs (S.S.) i x33, we read "Si quis _debitum_ alicnjus burgensis _asportzocrit_, burgensis catala asportzocrit\_, burgensis catala asportzocrit\_ in burgo suo capiant "; this is of course an early custumal, but even at the beginning of the fourteenth century Debt and Detinue were not clearly distinct, cf. Gross, op. cit. 99, 103; cf. above too n. 4 for another instance.

Footnote 2: Select Pleas in Manorial Courts (S.S.) i 52, "Scriptum obligatorium inter jisos contercum portanti solvisse debureurente\*; Gross, op. cit. 62, a promise to pay " domino,"Willemo vel suo certo attornato deferentii scriptu obligatorium "; 65, 66, 67--! per litteram obligatorium solvere predicto Johanni vel suo certo numcio litterarm obligatorium deferentii "; 86-87--a promise to pay to the plaintiff " vel suo certo attornato."

Footnote 3: Pt. II. c. d. l. SS 2.

Footnote 4: Gross, op. cit. 66-67.

Footnote 5: Munimenta Gibllalze (R.S.) i 368-373, 394-402; similarly in the sixteenth century they were often in league with thieves, and assisted to dispose of stolen property, Aydelotte, luziabethan Rogues and Vagabonds 97-98.

Footnote 6: Above 105-106.

7: P. and M. i 197; for the potarial system abroad see above 78-79.

8: As instances cited by Brooke, The Office and Practice of a Notary of England (ed., 1901) II-3.

## 111 Medieval Law Merchant'

soleminity.1 And though the fact that he was an imperial or a papal official occasionally led English kings from patriotic or interested motives to refuse to allow him to exercise his office,2 he was never permanently excluded. But he was never needed, and therefore was never recognized by the medieval common law. I cannot but think that if Englishmen had had much need to use the commercial instruments which these notaries drew, if these instruments had come with any frequency before the courts, we should have seen a similar class arising in England. That no such class arose in the Middle Ages poifts, I think, to the fact that the larger commerce was mainly in foreign hands, and that the litigation arising from it did not trouble the English courts. And the fact that in the fifteenth and sixteenth centuries, when England began to take her own foreign trade into her own hands, a new commercial sphere of work opened to the notary, renders this hypothesis the more probable. Laymen as well as ecclesiastics began to fill the office. They began to be employed in England, as they were employed abroad, to draw up many different kinds of documents ; and to this day all notaries are members of the Scriveners Company.3 But though notaries thus came to be used in England, they never attained the same position in English law as that which they attained abroad.4 Like much else that is peculiar to English law, the reason must be sought in the characteristics of the common law in the Middle Ages, and in its history during the sixteenth and seventeenth centuries. The backward economic condition of England in the Middle Ages, and the insularity of the common law, were the reasons why that common law never needed, and therefore never recognized, an official of the civil or canon law. The Reformation of the sixteenth century, and the victory of the common law over its rivals in the seventeenth century, reduced the civil and ecclesiastic law to a subordinate position ; and the officials recognized by them naturally shared their fate.

Footnote 1: Thus we find notaries among the persons deputed to give Richard II. notice of his deposition and to receive his resignation, R.P. iii +16, cited Brooke, op. cit. r3.

Footnote 2: See two writs of 13 Edward II, cited: $\\mathcal{Y}$ Prynne in his preface to his Animadver-sions on Coke's Fourth Institute, according to which imperial notaries we't forbidden to exercise their (Office in England--to allow them, it was said, implied some sort of subjecting to the emperor ; ibid at pp. 58, 59 he cites the case of John de Roerme who, 3 Edward III., was imprisoned by the Barons of the F.xchequer, because, with a view to questioning subsequently the proceedings in an ecclesiastical court, he brought a papal notary into the court of Exchequer to record the proceedings in a plea between himself and a parson.

Footnote 3: Brooke, op. cit. r4, r5. Their later history is uneventful. At the Reformation the king assumed the papal power to appoint notaries, and vested it in the Court of the Faculties which was under the control of the Archbishop of Ca:Nebury, 25 Henry VIII, c. z1; that body stiff appoints, but the office is regulated chiefly by C:Ne statures 41 George III., 79, and 6, 7 Victoria c. c'm .

The economic position of England in the Middle Ages had

### Law in Xvith and Xvith Cents.

thus prevented our boroughs and fairs from doing much for the development of our commercial law during this period. For reasons which we must now explain they were unable, in the sixteenth century, to assume jurisdiction over that, larger commerce in which Englishmen then began to take an active part.

We have seen that the outstanding feature of English legal history in the Middle Ages was the presence of an expanding common law which was gradually 'and quickly absorbing the smaller local jurisdictions.1 Since the courts of fair and borough had never acquired a jurisdiction over foreign trade, and had never therefore had a chance to develop the legal doctrines necessary to govern the more complicated transactions of such a trade, they succumbed, like the other local jurisdictions, to the encroachments of the common law. In the course of the sixteenth century the common law courts had assumed jurisdiction over the larger number of cases connected with the internal trade of the country ;2 and the new principles of contractual 3 and delictual 4 liability which they were developing rendered the law which they administered quite adequate to deal with these cases. Cases connected with foreign transactions were, as we have seen, outside the scope of the common law courts in the earlier part of the medieval period.6 If a contract were made abroad no jury could come from the foreign place to find the facts. But these cases rarely came before the courts of boroughs or fairs. When they arose they often involved considerations of mixed law and diplomacy. Naturally therefore they came before the Council or the Chancery. Thus in Edward I.'s reign the Lord Mayor of London said that he could not grant a request to enforce a judgment of the fairs of Champagne, in which the " defense des foires," had been threatened, without a reference to the king and Council ;6 and in the Venetian Calendar questions which arose between English and Venetian merchants were generally referred to the same tribunal.7 In Edward IV.'s reign the chancellor considered that, because cases concerning merchant strangers were outside

## 11 Model. Law Merchant

the scope of the common law, they were therefore subject to his equitable jurisdiction.1

Footnote 1: Y.B. 13 Ed., IV, Pasch. pl. 5, "C'est suit est pris par un marchant alien, que est venus per safe conduit icy, et il n'est tenus de suer solonques ley del terre, a tarier le trial de six homnes, et autres solenpenties del ley de terre, mes doit suer icy, et sera determine solonque ley de nature, gen le Chancery, et il dovi suer la de heur en heure et de jour \[en jour\] pour le spede de marchants.

Et comentque its sont venus deyns le croyalme, pour ce le Roy ad jurisdiction d'eux de mitter d'estoyer a droit, etc., mes ce sera _secundum legem naturre_ que est appell par ascuns ley Macchant, que est ley universal par tout le monde."

Voll. iii 350-351, a28 seqq.

Footnote 2: For the mass of decisions, often conflicting, to which this inconvenience gave rise, see Recves, H.E., in 409-412.

Footnote 3: In the Eyre of Kent 6, 7 Ed. II, (S.S.) ii 33, 34 it was ruled that a writ of debt might be brought either in the county where a contract was made or in any county in which the defendant was resident; Staunton J. said that under the old law the writ might be have been abated, " but the contrary has been the practice \_

### Law in Xvith and Xvith'Cents.

distinction between transitory and local actions--" that is, between those in which the facts relied on as the foundation of the plaintiff's case have no necessary connection with a particular locality, and those in which there is' such a connection."1 An instance of the former is an action on a contract, of the latter an action of trespass to land. "In the latter class of actions the plaintiff was bound to lay the venue truly; in the former he might lay it in any county he plessed."2""Litigants were not slow to make use of this distinction; and in #3753 an action was brought on a dead which was made at Harfleur in Normandy. The plaintiff anticipated the device used at a later period by alleging in his claim that it was made at Harfleur in the county of Kent. The efficacy of this device was not then decided upon, as the case went off upon another point.

Footnote 1: British South Africa Co. v. Compa'hia de Mocambigue \[r893\] A.C. at p, 6r8, 2 Ibid $\\star$ but, as Lord Herschell said, " It was still necessary to lay every local fact with its true venue on peril of a variance if it should be brought in\*issue," see S.L.C. (robl ed.) i 598-6oo.

Footnote 2: Y.B. 4$ Ed. III. Hil. pl. 6.

Footnote 3: $S.L.C. i 597-593.

But it was soon found that the parties to actions in this litigious age abused this distinction. Plaintiffs harassed defundants by purposely laying the venue in a distant place; and therefore statutes of Richard II. and Henry IV.'s reigns required all actions to be brought in their proper counties.4 These statutes were strictly enforced by the judges;5 and I.ittleton takes it for granted that cases which involved the consideration of facts happening outside the realm could not be heard by the courts of common law.6 But the judges were quite alive to the advantages to be got by enlarging their jurisdiction; and it is clear that they were ready to adopt any workable expedient to get jurisdiction over such cases. In 14427 an action was brought in the Common Bench on a contract made in France; and counsel, though he pleaded that no action lay on such a contract in England, did not dare to risk a demurrer on this point. Newton, indeed, asserted broadly that even though the contract was made in France, an action would lie in England if the parties chose to sue there.8 But this was rather too sweeping, as it left unsolved the difficulty as to where the venue should be laid. No doubt there was earlier authority for the proposition that if action was brought on a contract made in a county

## 11 Medieval Law Merchant 119

Palatine, the jury could be summoned from the neighbouring counties.1 But in the case of atd action brought in a foreign country there were no neighbouring counties.

Footnote 1: Fitzherbert's Abridgment, Visne pl. 50, citing 45 Ed. III, Mich.; this seems to have been the rule laid down as to the practice of the court by the ortho-notaries in Y.B. 32 Hy. VI. Hil. pl. r3.

The judges of Henry V.I.'s and VII.'s reigns got over this difficulty by laying down a somewhat narrower principle which had been hinted at in the case reported in i 375. They said that if the contract was made in England, or if any part of the contract was to be performed in England, the action could be brought there.2 The result was that if the contract was made in England to be performed abroad, or vice versa, action lay in the English courts. But if the contract was both made abroad and to be performed abroad, or if the foundation of the action was an act done wholly abroad, no action would lie.3 It is clear that the establishment of this principle considerably enlarged the jurisdiction of the common law courts. It enabled them to make full use of their new actions of assumpsit and trover, and to compete with the Council and the Chancery for a share in their jurisdiction over the external trade of the country. We shall see that in the following period its further development enabled them to claim not only a share but a monopoly of this jurisdiction.4

Footnote 2: Y.B. 48 Ed, III, Hill, pl. 6, Finchden says : "Si un home soit love per myo d' aler en monstage a Rome coment que le service sera fait hors de Roialme uncorez pur le contrat fait en Engleritere il demander son lover en cest court "; 'Tank puts the case of a sailor hired in England : "I there j sera demander en cest court per le comen ley et memy pea" la ley de Marinct "; Y.B.B., r5 Ed, IV, Mich, pl. r3; i0 Hy. VII. Pasch, pl. 21; S.C. 11 Hy. VII, Hil, pl. r3; in this last case Brian thought that, though a trial of offences committed abroad might be had here-- "autrement touts ceux staturs sera voids"--it was otherwise as to contracts made here to be performed beyond the sea; but Fineux, Vavison and Townshend were against him; the case is abridged by Hooke, _Trialles_ pl. r54, and explained by Abbot C.J. in 28x v. Burdett (r82o) 4 B. and Ald. r72; Fineux clearly lays it down, in Y.B, 24 Hy. VII. Mich. pl. 32, that, " Release oultre mer est void; mes si contract soit triable parcel deins ce Realm, et parcel oultre la mer, il sera-tie cicy en tout."

Footnote 3: Though in Y.B. 7 Hy. VII. Hil. pl. r, Keble _arg_ said, " Si on port acion de Debt pur son salary que il fuit retenu a servir un home in Brigg oustre la mer, et le Maistre dit que il depart de luy ou ne servit, ceo sera trie le tyo ou le bref est port "; the reporter adds Querc de ceo; cf. Y.B. 21 Hy. VII, Mich. pl. 32, cited in the last note; Dowdale's Case (r606) 6 Co. Rep. 47 b, lays down the law in accordance with "dieux's view in the last cijed Y.B.

Thus, by the end of the medieval period, it had become fairly obvious that the future development of English commercial law would take place in the central courts; and, since in the central courts the merchants played but a small part compared with the part which they played in the tribunals of the cities of Italy, Germany and France,5 it followed that the manner of its

### 120 Law in Xvith and Xvitin Cents.

development would be in some respects unique. Whether the common law courts, the Council, or Chancery would secure the greater share of this commercial jurisdiction was, as we shall see, an open question all through the sixteenth and the earlier half of the seventeenth century. But, before we consider the results of the work of these courts in the sphere of commercial law, I must say something about the medieval development of English maritime law. Both in England and in France th's development took place in the court of the Admiralty; 1 and it, both countries the Admiralty became a serious competitor for a large share of this commercial jurisdiction.

_Maritime I.nav._

We have seen that, till the middle of the fourteenth century, the maritime part of the law merchant was, for the most part, administered in the local courts of seaport towns.2 These courts sat sometimes on the seashore, and heard, as the Bristol custumal says, summarily from tide to tide "the disputes which arose between merchants and sailors, or between merchants and merchants, or between sailors and sailors, whether Burgess or foreigners."3 Many of them survived, and were vigorously resisting the encroachments of the court of Admiralty in the sixteenth century.4 But all except the Cinque ports had succumbed before they were formally abolished in 1836.5 The law which these courts administered was almost certainly based upon the Laws of Oleron. It was these laws which, from the first years of the thirteenth century, had been accepted as the common maritime law of the North Sea and the Atlantic Ocean.6 Important seaports like London and Bristol copied them into their custumals; and, at a later date, they were copied into the Black Book of the Admiralty. Therefore if we would know what was the general character of the maritime law administered in

## 12 MEDIEVAL LAW MERCHANT

This country in early days we must glance briefly at their contents.1

Footnote 1: The references are to the sections in the Black Book of the Admiralty (R.S.) i 88-r3r.

In the first place, they contain a number of provisions as to the position and powers of the master of a ship, and his relations to the sailors. The master has no power to sell the ship ; but in case of necessity he may, after consulting with the mariners and by their advice, pledge the tackling of the ship.2 He is liable for value of the ship if the perishes in consequence of a start made contrary to the wishes of the majority of the ship's company;2 and he is similarly liable if she is lost in "consequence of his wrongful dismissal of a sailor." If he is in a foreign harbour, and has no money to buy necessaries, he may sell part of the cargo. The amount so sold is to be charged to the ship at the market price ; but, as it has been carried, the part so sold must pay freight.3 The mariners are liable if they desert the ship without the leave of the master, and the ship in consequence perishes.4 They are also liable if they delay too long ashore in a port so that the ship loses money which it might have earned.5 If the ship is lost their right to wages is also lost.6 If a member of the crew incurs any hurt while about the business of the ship he is entitled to be healed at the costs of the ship. Similarly the master must look after him if he is taken ill. He is entitled to his wages which must be set off against the costs of his cure, and if he die his representatives can claim them.7 The master must keep order in the ship, " and if a maryner snythe the mayster (he is) to pay five shillings or to lose his fyst."8 The meals to which the sailors were entitled were specified in some detail.9 In addition to food and stipulated wages, it was customary to allow the sailors, either to embark a small amount of cargo for themselves, or to allow them instead the freight payable to the ship on the amount of cargo which they might have embarked.10 They were not entitled to be paid the whole of their wages already earned when the ship reached her destination. The master might retain some part as security that they would finish the voyage.11 It was optional to the sailors to hire themselves for the voyage or to stipulate for a sum to be calculated according to the distance travelled. They

### Law in Xvith and Xvith Cents.

must always be ready to work the ship home to the port from which they had started.\[1\]

In the second place, these laws contain a number of rules relative to the rights and duties of the parties to the contract of carriage. The merchant who hires a ship must food her within the stipulated time or pay.damages.\[2\] Of these damages the master is entitled to three-quarters and the mariners to the other quarter.\[3\] The merchant must pay the freight stipulated when the goods reach their destination. If the ship is wrecked and the cargo is saved he need only pay the freight due for the part of the voyage accomplished ; but if the master can either repair his ship, or tranship the goods, and thus convey them to their destination, the whole freight is due.\[4\] If the cargo is damaged in unloading by defective tackle the master and the mariners are liable for all the damage, unless the merchants have approved the tackle, in which case both parties contribute to the loss.\[5\] Similarly the master and mariners are liable if the tackle is allowed to damage the cargo on the voyage.\[6\] The pilot was responsible for bringing the ship to her borth : the master for any loss that occurred through defective mooring at the borth.\[7\] Whether the cost of pilotage was charged to the merchants or the ship perhaps depended on the agreement of the parties.\[8\]

In the third place, there are a number of rules as to the incidence of the loss arising from the usual risks of a maritime adventure. In case of collision with a ship at anchor the curious rule was laid down that, unless the moving ship struck the other on purpose,\[9\] the resulting damage was shared between the two ships and their cargoes. The reason assigned was that, if the colliding ship were obliged to pay the whole damage, it would tempt the master of an old ship to place her in the way of a new ship.\[10\] Probably the true explanation is that it is an old rule which arose before the law had attained any idea of founding liability on negligence.\[11\] A ship which damaged another because its anchor was not sufficiently buoyed was liable to make good the damage.\[12\] Apparently it was only damage done by one ship to another in harbour which these laws contemplated.\[13\]

## 11 Model. Iaw merchant 123

The only damage happening on the high seas which they contemplate is damage arising from tempest. If a jettison was thought necessary the merchants and crew should be consulted.1 The master might disregard the refusal of the merchants to consent to a jettison, if he and at least a third part of the crew were prepared to swear that it was necessary.2 In this case the cargo saved and either the value of the ship or of the freight must contribute to the loss; while the sailors who had done their duty ought to have a tun of wine presented to them from the cargo.3 A similar rule was applied when it was necessary to cut the mast or cables to save the ship.4 The cargo paid its share, and the merchants must pay their proportion before the goods were unloaded out of the ship.5 If they refused to pay, and in consequence of the dispute, the cargo deteriorated, they must bear the loss.6 If the ship was lost the sailors were entitled to be given something from the saved goods to enable them to return home; 7 but, as we have seen, they were not entitled to wages.7 The tackle of the ship must be kept safe for the owners;8 and, as we have seen, the merchants were entitled to have the cargo saved, paying freight.9

Footnote 10: "Ces dispositions causeLaw in Xviith and Xviith Cerns.

by Edward I. in answer to a demand made by the Barons of the Cinque Ports, the sailors of Yarmouth, and of other English ports. It provided that, in case of jettison, the ship should lose the freight of the goods jettisoned, but that neither, the ship nor its furniture should contribute to the loss.1 Of the rest, six probably were not purely English developments, as they are found, together with other additions, in that one of the Middleburgh manuscripts which is preserved in the royal'ibrary at the Hague.2 That they were accepted in England is clear from the fact that they are included in the Black Books and in other English MSS. of these laws.

Footnote 1: Art. 32; the article vouches the Roman law--i.e. the Rhodian Law de jactu, Dig. I4, 2; the original ordinance, which is far more detailed and a good deal clearer than the corresponding article in the Laws of Oleron, will be found in the London Liber Albus, Muimemeuta Gildhalle (R.S.) i 490-492.

Footnote 2: When Twiss edited the Black Book it was thought that these articles were found only in English MSS.--the Black Book itself, the Selden MS. in the Bodleian, and the Cottonian MS, Vepspasian B. xxii in the British Museum, and others (see Black Book (R.S.) i _fix_, _lr_); but six of these articles (together with others not in the English MSS.) were found by Prof. Pols in the Middleburgh MS.; he has printed all these articles and shown the manner in which they vary from the English MSS, in Nouv, Rev, Hist. (1885) 459-465, and he gives an account of the MS. ibid 454-459; cf. Desjardins, Droit Commercial Maritime 36.

The first of these articles provides that, if a merchant freighted a ship, and the ship was detained by the fault of the master or the lord of the owner, the merchant might throw up his contract.3 Other articles provide for the right of the merchant who freights a ship to have the whole cargo space in the ship for his goods ;4 for the customary gratuities given by the merchant to the mariners, which are stated specifically to be not legally due;5 for the care of the cargo;6 and for the obligation of the merchant to unload within a certain number of days, and for the rights of the master if he does not.7 The remaining articles may bc simply statements of English custom. One provides for the rights of the mariners hired on the terms that they share the freight;8 and it does not substantially differ from an earlier article on the same matter.9 Another part of this article, and the earlier articles as to contribution in case of jettison, are changed by the ordinance of Edward I

**'MEDLIEVAL LAW MERCHANT 125**

above mentioned.1 The two remaining articles provide for the liability of a pilot to compensate 'the owner and 'merchants' if he negligently fails to bring his ship to port so that she perishes,3 and for his personal liability to punishment in such a case.3

Footnote 1: Above I24 n. I.-a **A Art. 33-**

Footnote 2: Att. 34--the crew may cut off his head, " withoute the maryners being bounde to answer before any judge because the lodeman has committed high treasone agaiaz: his undertake/yne of the pilotage."

Footnote 3: For the history and development of the court see vol. i 544-547.

If the court of Admiralty had not arisen in the middle of the fourteenth century,4 these developments of maritime law, whether initiated by the king's-Council, or adopted from the usage of our own or of foreign po's, would probably have been worked out into a body of maritime law by the courts of 'the more important sea-port towns. But the rise of that court put an end to the prospect that English maritime law would be developed in this way. The Admiralty soon began to attract the greater part of the maritime jurisdiction of the country ; and therefore it is in the records of that court and in the cases decided there that we must look for the origins of our maritime law of to-day.

Footnote 4: Tohid i 4-87, ${}^{\*}$ This edition was not printed from the original Black Book, which was then missing, but from a copy, see vol. i _ix-xxvis_ ; but shortly afterwards the missing book was found at the bottom of a chest supposed to contain private papers belonging to the registracao the court of Admiralty, ibid iii _vii_.

The Admiralty was and still is primarily a department of state. It is for this reason that its earliest records were collected in a Black Book--analogous to the Red and Black Books of the Exchequer,5 and to the many similar books compiled by the clerical staff of the governing authorities of the larger boroughs.6 Its contents show us that, before the close of the medieval period, both the administrative and the judicial sides of the Admiralty were beginning to develop.

Footnote 5: Black Book (R.37): _viii_.

The Black Book of the Admiralty has been printed in the Rolls series under the editorship of Travers Twiss.7 It was probably compiled by an official of the Admiralty at some period in the reign of Henry VI, ; but whether it is all written by the same hand is somewhat uncertain.8 As is usual with these official books, the documents which it contains come from many different periods and sources. It begins with a set of regulations for the Admiral and the fleet upon such matters as the duties wages and other rights of the Admiral, the wages of mariners, the order of sailing, the lights to be carried, prizes, visit and search, and compensation for collisions.9 Then we have a set of articles to be inquired of by a maritime inquest.10 The frame of

### Law in Xvith and Xvitii Cents.

this inquest is exactly similar to the frame of the similar inquests held in the tourn or the eyere and, in later days, in the quarter sessions of the justices of the peace.1 Like them, it comprised a good deal of law old and new as to the criminal jurisdiction of the Admiralty, the rights of the crown, 'the Admiralty droits, and the jurisdiction of the court of Admiralty. Other later sets of articles, similar in character, but considerably expanded in size, are contained in late parts of the book. There is the inquisition taken at Quel.nborough in 1375,2 and a set of articles translated from French into Latin by Master Rowghton.3 Following on the first of these inquests there is the copy of the laws of Oleron, with the eleven additional articles of which I have already given some account.4 The growing fixity in the practice and procedure of the court is illustrated by an unfinished tract on the " ordo judiciorum," 6 the author of which " was evidently a civilian of the school of Bologna." Its introductory article is framed on the model of a similar tract by the great Bartolus, and the author was perhaps his pupil." Its insertion in the Black Book illustrates the fact that the new court of Admiralty from the first looked for its models, not to the common law, but to the civil law procedure. But another regulation as to the procedure inserted in the Black Book,7 together with the inquisition to which I have alluded,8 show that in the exercise of its jurisdiction over criminal matters it at first adopted the common law procedure of presentment and inquest ; and that in civil matters a trial by jury could be had. Moreover, there is no hint that any other procedure was adopted in the statutes of Richard II. and Henry IV.'s reigns passed to restrict the Admiralty jurisdiction.9 If the civil law procedure had been adopted at that date Parliament would probably have made it a ground of complaint. But the delays of the civil law are alluded to in a petition of 1394,10 and the Italian tract contained rules both for civil and criminal procedure.

## 12 MEDLIEVAL IAW MERCHANT 127

It is clear from the statute of I5361 that at some period before that date the continental model had been adopted in criminal procedure ; and, from the records of the court,2 that it had been also adopted in its civil procedure.

Footnote 1: 28 Henry VIII. c. 15; vol. i 550-551; vol. iv a60; it may be noted that' a similar change from common law to civil law procedure took place in the court of the Constable and Marshal, Harcourt, His Grace the Steward and Trial of Peers 362-366; for this court see vol. i 573-580.

The remainder of the Book consists of a number of miscellaneous documents which come from the period (1443-1446) when John Holland Duke of Exeter held the post of Admiral.4 For the most part t'ey are documents connected with judicial procedure. There are also included among them two later documents which are safe conducts, one granted by Louis X1, and the other by Richard Duke of Gloucester while he held the post of Admiral.4 At the end there are a few miscellaneous documents connected rether with the office and duties of the Constable and Marshal than with the office and the duties of the Admiral,5 The editor of the Rolls series edition of the Black Book has added an appendix of documents connected with Sir Thomas Beaufort's tenure of the office of Admiral (1412-1426).6 Many of these documents refer to the judicial work of the Admiralty, and show that the forms of the court were becoming fixed. Then follow a list of the " fees, commodities, and profits appertaining to the Admiral by virtue of his office,"7 the statutes of Richard IL and Henry IV.'s reigns concerning Admiralty jurisdiction,8 Henry V.'s statute making the breach of a truce or safe conduct high treason,9 certain French ordinances as to the French Admiralty and fleet, and some ordinances for soldiers in time of war made by Richard II. and Henry V.10

Footnote 1: For these matters see vol. i 550-552, 559-561.

Footnote 2: 3 Select Pleas of the Admiralty (S.S.) i _passim._

Footnote 4: Ibid 276-279.

Footnote 5: Ibid 287-344.

Footnote 6: Ibid 347-394.

Footnote 7: Ibid 397-411.

Footnote 8: Ibid 414-419; vol. ii 473.

Footnote 9: Black Book (R.S.) i 421 472.

Footnote 10: For these matters see vol. i 550-552, 559-561.

There are many sides of the Admiralty's judicial work which have little or no direct bearing upon the growth of English maritime law. Its criminal jurisdiction, and its jurisdiction over Admiralty droits are obvious illustrations.11 Again, its work in the sphere of international law and politics is, as we have seen, important rather in the history of the origins of international law than in the history of the origins of our commercial and maritime law.12 It is to its civil jurisdiction that we must look for the development of these two latter branches of the law. But, for the medieval period, the records of its work in this sphere are scanty. The cqntinuous series of Admiralty records does not

### Iaw in Xvith and Xvith Cents.

begin till 1524.1 But it is clear from the statutes of Richard IL and Henry IV.'s reigns,\* from the inquiries made at the Admiralty inquests,3 and from two early cases of 13904 and 13895 printed by Mr. Marsden, that the Admiralty; in addition to cases directly connected with shipping, was already in possession of a jurisdiction over commercial contracts entered into abroad; and that the expansion of this jurisdiction had already begun to arouse the jealousy of the common lawyers.

Footnote 1: Below 137.

Footnote 1: Rules about matters which belong to the Admiralty, Black Book (R.S.) i69-Lords of franchises are not, according to an ordinance made by Edward 1, at Hastings, to try any question of a ship's obligations unless the sum at issue only amounts to 20s, or 40s; also "any contract made between merchant and merchant; or merchant or marriner beyond the sea, or within the flood marke, shall be tryed before the admiral and noe where else, by the ordinance of the said king Edward and his lords "; cf. ibid r63-inquiry to be made as to those who sue at common law when they ought to sue in the Admiralty, and as to judges who usurp Admiralty jurisdiction; ibid z36--a similar inquiry in Master Rowghton's articles; in 140i-L40, a fine was inflicted for this offence by the Admiralty court of the Cinque Ports, Select Pless of the Admiralty (S.S.) ii 1x.

Footnote 1: Below 137.

Footnote 2: Below 136.

Footnote 3: Above 178-179.

Footnote 4: Above 176-177; 139-140.

Footnote 5: Below 136.

Footnote 6: Above 136-177; 139-140.

Footnote 15: Below 139-140.

Footnote 16: Above 139-140.

Footnote 17: Below 134, 137-139.

Footnote 18: Below 136.

Footnote 19: Above 178-179.

Footnote 20: Above 178-179.

Footnote 21: Below 136.

Footnote 22: Below 136.

Footnote 23: Above 178-179.

Footnote 24: Above 176-177; 139-140.

Footnote 25: Below 136.

Footnote 26: Above 136.

Footnote 27: Below 136.

Footnote 28: Below 136.

Footnote 29: Above 136.

Footnote 30: Above 136.

Footnote 31: Above 136.

Footnote 32: Above 136.

Footnote 33: Above 136.

Footnote 34: Above 136.

Footnote 35: Below 136.

Footnote 36: Above 136.

Footnote 37: Below 136.

Footnote 38: Below 136.

Footnote 39: Above 136.

Footnote 40: Above 136.

Footnote 41: Above 136.

Footnote 42: Above 136.

Footnote 43: Above 136.

Footnote 44: Above 136.

Footnote 45: Below 136.

Footnote 46: Above 136.

Footnote 47: Below 136.

Footnote 48: Below 136.

Footnote 49: Above 136.

Footnote 59: Above 136.

Footnote 50: Below 136.

Footnote 51: Below 136.

Footnote 52: Below 136.

Footnote 53: Below 136.

Footnote 54: Below 136.

**RECEPTION OF FOREIGN DOCTHINES 129**

the close of the mediaval period, therefore, it was clear that many courts were preparing to put forward claims to exercise jurisdiction over the new legal business which an expanding foreign trade was bringing to English lawyers. All of these courts helped, as we shall now see, to develop our modern commercial and maritime law.

_(2) The reception of the foreign doctrines of commercial and maritime law._

The needs of the merchants made this_reception\*absolutely necessary. Naturally their usages and practices were the main sources from which these new rules were derived. But, since on the Continent these usages and practices had been developed in the technical atmosphere of the civil law, some of the doctrines of the civilians of the fourteenth and fifteenth centuries, applicable to commercial and maritime questions, were also introduced. I shall, in the first place, say something of the manner in which these two sets of influences made themselves felt in England; and, in the second place, of the agencies by means of which the new legal rules and doctrines, which these influences inspired, were incorporated into English law.

_(i) Sources._

We have seen that, on the Continent, the usages and practices of merchants, administered in courts presided over by merchants, were the main foundation of the commercial and maritime law;1 and that, in England, the mediaval Law Merchant was based upon a similar foundation.2 We have seen too that England based its maritime law upon the laws of Oleron--just as the other sea-port towns which bordered upon the Mediterranean, the Atlantic ocean, the English Channel, or the North Sea based their law upon similar codes of maritime usage.3 All through the sixteenth century these continued to be the principal bases of the Law Merchant in England.4 The records of the court of

### Law in Xvith and Xvith Cents.

Admiralty sometimes refer specifically to the usages of merchants \[1\] or of mariners \[2\] or to the laws of Oleron \[3\]; and charter parties generally contained a similar specific reference to these laws \[4\]. Then, too, the merchants were given many opportunities to shape these usages by applying them to the facts of particular cases. In the numerous mercantile and , maritime cases which came before the Council there is usually \[6\]a direction that they were to be settled by arbitration ; and among the a, bitrators there were usually merchants \[6\]. The same records show us that the whole law and practice of insurance originated in the first instance from the merchants themselves \[6\]; and often the governing bodies of the various companies, which had the monopoly of foreign trade to different parts of the world, were given a large power to settle differences arising among their members \[7\]. In England, as in the Italian cities \[8\] it was this kind of domestic tribunal which was the most satisfactory to the merchants themselves. The long discussions of the lawyers--whether they were civilians or common lawyers--wasted time, and often hindered the doing of substantial justice \[9\].

That the usages and practice of the merchants themselves were the main source of the law is clear from the literature on the subject. If we except the controversial literature upon the sovereignty of the British Seas \[10\], and upon the jurisdiction of the court of Admiralty \[11\] we find that nothing was written during this period by the common lawyers, and very little by civilians. Wehave seen that W. Welwod, professor of the civil law in the University of St. Andrews, published in 1613 a useful collection of sea laws,1 large parts of which were incorporated by Malynes in his chapters on maritime law. Marius, a public notary, wrote in 1651, a tract designed to give practical advice on the subject of bills of exchange.2 It was not until 1676 that a man who had some claims to be called In English lawyer wrote upon these topics. Charles McGoy, who was both a civilian and a member of Lincoln's Inn and Gray's Inn, in the second book of his very successful treatise, _De Jure Maritimo et Ndvali,3_ gives us some account of these branches of the law, based partly upon the works of Marius on Bills of Exchange, but principally upon the work of Malynes.

Footnote 1: Above II.

Footnote 2: The fourth edition, enlarged and corrected by the author, is printed in the t686 edition of Malynes, Lex Mercatoria; the author tells us in his preface that the book is "the crop of four and twenty years experience in my employment in the Art of a Notary publick, which I am, and do yet practise at the Royal Exchange !a _Loudon_ both for Inland and #utland Instruments."

Footnote 3: The book deals partly with international, partly with commercial and maritime law; the first book is wholly occupied with the former subject, the second with the latter, and the third to some extent with both; it went through many editions, the last being published in 1778--more than a hundred years after its first publication.

Gerard Malynes, a merchant, was the first Englishman to treat of the Law Merchant as a whole. He was the first to write a treatise on this subject which could be compared with the similar treatises which, throughout the sixteenth century, were appearing in the chief countries of Europe. His book was therefore a pioneer treatise, which introduced English merchants and lawyers and statesmen to the legal doctrines and economic speculations of the Continent; 4 and the fact that it was written by a merchant, and not by a lawyer, tells us something of the manner in which this branch of the law was growing up. It summed up its growth during this period; and therefore it is to Malynes and his book that we must turn if we would understand the nature of this growth.

Malynes 5 was of Lancashire descent--the son of a mint master, who had emigrated to Antwerp in 1552; and it was at Antwerp that he was born. His father probably came to England with his family in 1561. We first hear of Malynes in 1586, when he was appointed one of the commissioners of trade in the Low Countries for settling the value of money. From that time onwards he was frequently consulted by the government on

### Law in Xvith and Xvith Cents.

matters relating to trade and the coinage.He became one of the assay masters of the mint, and was engaged on several schemes to work English mines. He was employed to carry out a project which he had advocated for the coinage of brass {arthings; but the project ended disastrously. In 1619 he was imprisoned for debt, because, as he told the king in a petition which he presented to him, his employers had insisted on paying him in his own farthings. In 1622 he gave evidence as $\\mathfrak{P}$ the state of the coinage to the standing committee on trade $\\mathfrak{P}$ and he lived long enough to address a petition to the House of Commons in 1641.

All through his life he had thought and written much on economic subjects; and his writings are the more valuable because he had had practical experience as a merchant. With the facts about which he speculated, and the rules of law about which he wrote, he had come into personal contact. Some of his theories--notably his favourite theory as to the effect of the operations of the exchangers of money upon trade--were false.1 But, because of the close touch which he maintained with the realities of commercial life, all his works are valuable to the historian of the commerce and the commerial law of this period.

Footnote 1: Hewins, English Trade and Finance in the, Seventeenth Century xxii, xxi; the fallacy was pointed out by Misselden, ibid,

It was perhaps this combination of a speculative mind and a studious temperament, with the practical career of a business man interested in the politics which bore upon business, which induced him to write his famous book upon commerce and commercial law.2 From the first it was a success. It was first published in 1622, and a second edition was called for in 1629. It was republished in 1636, and again in 1686. In the latter edition it was bound up with other tracts dealing both with mercantile and other subjects.3

Footnote 2: Mr. Hewins, op. cit. says, " We find him turning over the Tower records for information about trade, and reading with interest a scarce manuscript at Lambeth "; and again, at p, xxii, " Malynes' practical experience as a merchant was grcat, and brought him into contact with men $\\mathfrak{q}\_{!!

## 3 RECEPTION OF FOREIGN DORTINES 133

of commercial and maritime law; the second part deals with money; the third part with bills of exchange, process to compel appearance and the execution of judgments, and the various courts in which the Law Merchant was administered at home and abroad. The book is often discursive. We have a fantastical disquisition on the mysteries of numbers,1 and a useful discourse 2 on weights and measures usd in different parts of the world.3 There is an attempt to give a geometrical description of the world,3 and an account of some of the new plantations and discoveries.1 While discussing usury, he turns aside to4 advocate 5 favourite scheme for the establishment of a Mons Pietatis under government supervision.5 His last chapter but one entitled "The Due Commentation of Natural Mother Wit;" is a curious mixture of vain speculation and a few anecdotes.6

Footnote 1: Pt. I, c. 3. ${}^{\\text{a}}$ Ibid c. 4. ${}^{\\text{a}}$ Ibid c. 6${}\_{\\text{b}}$

Footnote 2: Pt. II. c. 13. ${}^{\\text{a}}$ Ibid c. 4. ${}^{\\text{a}}$ Pt. II. c. 13. ${}^{\\text{a}}$ Pt. III. c. 13. ${}^{\\text{a}}$ Pt. III. c. 13. ${}^{\\text{a}}$ Pt. III. c. 13. ${}^{\\text{a}}$ Pt. III. c. 13. ${}^{\\text{a}}$ English Trade and Finance in the Seventeenth Century xxi.

But these aberrations form but a small part of the book. The greater part contains much that is valuable to the economist and the lawyer. Mr. Hewins tells us that he was "the first English writer in whose works we find that conception of Natural Law which was later on to play such an important part in the development of economic science." \[7\] No doubt his legal lore had helped him to this conception. It is not, however, so much on the speculative problems of economic science, as on the practical side of business life, that the book is strongest. It contains many plain and straightforward disquisitions upon all matters which a merchant should know. There is information upon geography political and physical, statistics, customs duties, accounting, as well as upon the commercial law and practice of the time. He can cite ancient literature and the modern ordinances of continental states. He is familiar with the civil law and the works of the commentators; and the whole book is enlivened by the manner in which he uses his experience of commercial and of public life to illustrate the topics which he is discussing. It is the book of a man who has lived in the contemporary world of commerce, and has taken some part in making the commercial laws about which he is discoursing. He delights in concrete facts--the mechanism of banking, the machinery of the custom house, the encouragement of manufacturers, the standards of money, the woking of mines, and the business of the hint. It is for this reason that he was so eminently fitted to explain to Englishmen the principles which underlay the laws which regulated the commerce of his age. He could explain them by reference to fact and experience without using the technical termsLaw in XVith and XVith Cents.

of the civil law. He therefore conveyed them to England in a form in which they could be readily acclimatized and received either by the common lawyers or the civilians.1

Footnote 1: Pepys rightly regarded the book as a suitable present to a boy who was just going to the East Indies, Diary (Lid. Wheatley) vii 240.

Malynes thus crystallized and put into permanent form the mercantile usages and practise which, throughout the century, had been transforming mercantile law. But he recognized that to understand these usages and their practice, some account of the doctrines of the civilians was essential.2 It quotes their opinions on the law as to agency,3 as to insurance,4 as to partnership,5 and as to contracts madeverbally.6 What he has to say as to _pecunia trajectiica_ and _usura maritima_ could be found in any of the continental treatises of the period.7 He cites Bartolus as to the extent of territorial waters,8 and Straccha and other civilians as to points in the law of bankruptcy.9 In dealing with procedure before the courts of merchants he cites another tract of Straccha--Quo modo procedendum sit in causis mercatorum--"Wherein are many universal things propounded." 10

Footnote 1: See e.g., Dusent iv 92 (1532); ix 168 (1575); xiv 214 (1586); xx 202 (1590-1591); xiv 70 (1592)--doctors of civil law were to represent the parties before the court of Requests.

Footnote 2: Ridley, a view of the Civil and Ecclesiasticl Law 175-177, " What equity can it be to take away the tril of such business as belonged to one court, and to pull it to another court; specially, when as the court from whence it is drawn; is met; it for it, both in respect of the fullness of knowledge that that court has to deal in such court.

That the Law Merchant was chiefly based upon the works of the civilians, who had adapted the civil law to modern commercial needs, is obvious from the works of other authors, and from the practice of the Council. Welwod, in his Abridgment of the sea laws, cites the Consolato del Marc, the Rhodian Law, Straccha, Ferretus, Shardius, Peckius,11 Bartolus, Baldus, and many other commentators on relevant passages of the Digest; and the Council often associatcd civilians with the merchants in the very numerous cases which they sent to arbitration.13 As Sir Thomas Ridley pointed out, this law was far better suited to the needs of the merchants than the English common law, partly because it contained, while the common law did not contain, the rules of law which were made to deal with their cases, partly because these rules were better known to the foreign merchants suing in this country.13 But, though Malynes would have admitted that the

**RECEPTION OF FOREIGN DOCTRINES 135**

civil law was the basis of much of the Law Merchant which he was expounding, he would certainly have given it a position of secondary importance as a source of that law. He agreed with his continental brochren ! it! deprecating the excessive technicality of the civilifins, and the unpractical character of some of their discussions.3 Though the knowledge of the civil law was useful, and indeed on some points essential, the main thing was a knowledge of mercantile passages and practice. This he held, was the real foundation of the everyday law which all merchants should know.

Footnote 3: The author was supported by the National Science Foundation of China under grant No. 1

### Law in Xvith and Xvith. Cents.

and insolvency.1 These statutes do not cover much ground. It is therefore to the work of the Council and the courts that we must turn if we would see the manner in which mercantile usage and practice was worked into the fabric of English law.

The work of the Council was indirect, but it was none the less effective. We have seen that it exercised a general super-intendence over all other courts.2 It used this power to give directions to the other courts as to the heaging of commercial 3 and maritime 4 cases which had been brought before it ; to compel parties to submit to arbitration; 5 and to carry out the awards of the arbitrators; 6 to prevent creditors and others from making an inequitable use of their legal rights ; 7 to collect information from the merchants as to mercantile usages with a view to new legislation or new regulations.8 Moreover, it helped directly to foster the commercial jurisdiction of English courts by forbidding English subjects to submit their cases to foreign tribunals.9 In these various ways the Council brought to the notice of lawyers of all kinds the new problems raised by the changed conditions of trade. The civilians, who were called upon to act as arbitrators, were encouraged to study the foreign books upon commercial and maritime law. The common lawyers, who were sometimes asked to assist the civilians, learned something both from the civilians and from the merchants who appeared before them.10 The chief justices, the attorney and solicitor-general, and any other judges who were members of the Council, assisted to deal with the cases which came before the Council, and to draw up the regulatiqns which were made by the Council from time to time.1

Footnote 1: See e.g. \[1\].

At the beginning of this period the Star Chamber (which was then not so distinctly separated from the Council as it afterwards became)2 heard many cases connected with commercial and maritime law to which foreigners were parties.3 But it would appear from Hudson's book that, towards the end of the century, these cases were not so frequently heard there.4 The Star Chamber occupied itself rather with criminal or quasi-criminal cases, disputes between corporations, the enforcement of commercial legislation or with cases connected with the possession of land or the interests of copyholders--all of which had a more or less direct bearing upon the maintenance of the peace of the country. The one method in which it assisted the growth of commercial law was the effective remedies which it employed to punish forgery, fraud, and abuse of legal process.5 There can be no doubt that its efforts in this direction tended to inculate an improved standard of commercial morality. And, in particular, it helped on the growth of an adequate law of bankruptcy.6

Footnote 2: Vol. i 495-497.

Footnote 3: The case reported in Y.B, I3 Ed. IV. Pach. pl. 5, above II7 n. I, was heard in the Star Chamber ; cf. vol. i 504-505 ; Hudson, A' Treatise on the Court of Star Chamber 55, says, "Chntroversies betiv merchant strangers and Englishmen, or strangers on both parts _were_ there determined; the restitution of ships and goods thlawfully taken, or deceits of merchants "; the precedents cited are from Henry VII, and VIII.'s reigns.

Footnote 4: Hudson, op. cit. 54 says, "That happenent by reason of the haughty ambition of the merchants, who desire to make themselves in their companies like a council of state."

It is evident from the records of the court of Admiralty that its influence upon the development of commercial and maritime law was of greater importance and far more direct than the work of the Council and Star Chamber.

The regular series of these records begins in 1524.7 From that date we get the files of Libels and the Act Books;8 and other classes of records make their appearance during the course of this and the following centuries.9 I

### 188 Law in Xvith and Xvith Cents.

courts of common law,1 they were all kept in Latin till 1731, except under the Commonwealth.2 We get no reports of Admiralty cases till 1764 3--perhaps the regular reporting of cases did not come very naturally to a court which, because it administered the civil law, did rfoot fully recognize the authority of decided cases. These records therefore are the only first-hand evidence which we have as to the doings of the court. The selection of records from the sixteenth century, edited by Mr. Marsden, for the Selden Society, shows us that the court was taking over the jurisdiction formerly exercised by the Star Chamber in cases in which a foreign 'merchant was a party. Even in the medieval period it had become clear that, in the conduct of these cases, the court of Admiralty had many advantages over other courts;4 and these advantages became more apparent as trade expanded, and as it became more and more cosmopolitan. Its maritime jurisdiction brought it into direct contact with questions relating to foreign trade; and the fact that it administered the civil law, made the lawyers who practised before it familiar with the books of foreign civilians in which could be found the law applicable to these questions.6 Its procedure, though it was the lengthy procedure of the civil law, and not the summary procedure used by the Star Chamber the Chancery and the court of Requests,6 or by the commercial courts of the Continent,7 was at least as well, if not 'better,

## 3 RECEPTION OF FOREIGN DORTINES 139

adapted to the trial of commercial causes than the equally lengthy procedure of the common law. Thus we are not surprised to find that negotiable instruments,1 policies of insurance,2 charter parties,3 and bills of lading4 were familiar objects in the court of Admiralty some time before they were heard of in the courts of common law. Wq may remember that it was only civilians, or merchants who had studied the civil law, who wrote upon these topics during the whole of these two centuries and for many years later.5

Footnote 1: Below 144 ; Pt. II. c. 4 I, SS 2. Below 144 ; Pt. II. c. 4 II.

Footnote 2: Below 144 ; Pt. II. c. 4 II.

Footnote 3: Below 131.

Footnote 4: Below 143 ; Pt. II. c. 4 II.

Footnote 5: Above 131.

Footnote 6: Select Picas of the Admiralty (S.S.) i _Lvv._

Footnote 7: Hicks v. Palington (1590) Moore (K,B) 297--a question of general average ; Jasent vii 67 (1571-1572); xiviv 7c(1592-1593); xviii 303 (1589-1590)--a case transferred from the court of Requests to arbitration; xxvii 122 (1597)--a case heard by the court of Admiralty was transferred to the court of Requests, and the Council ordered it to be retransferred.

Footnote 8: Select Pleas of the Admiralty (S.S.) i _Lvv._

Footnote 9: Lex Merc. 318; 'Tothill, _Acompt_ at p. 3--two cases of merchant's accounts; Monro, Acta Cancellaria 427, 439, 733.

Footnote 10: Monro, op. cit. 844-485, 520, 733; Lex Merc. 379; in a case where the plain-iff had begun a suit in the court of Admiralty, and filed a bill on the same matter in the court of Chancery, the suit in Chancery was stayed, Select Plaas of the Admiralty (S,S) ii 25.

Footnote 11: Tothill, 155; but Egerton showed a disposition to get rid of these cases; in 1614 he made an order that, " Marchants acompts and such like are not to be examined in the Chauncery, for none is to accept upon oath but to the King only," Sanders, Orders i 86.

Footnote 12: Below 150; Pt. II. c. 4 I, SS 6.

Footnote 13: Mary: Merc. 319, "the Chancery, upon Bill and Answer between the complainant and the defendant, granted an injunction _i._, stay the proceeding in theLaw in Xvith and Xvith Cernts.

become marked till the latter part of the sixteenth century, because, as we shall now see, it was not till then that the common law began to assume jurisdiction over these cases.

The rigidity of the rules of the medieval common law caused it to start late in the contest for a share in this jurisdiction. But it was successful in securing a share during this period; and it ultimately succeeded in annexing the greatest part of it.1 I must therefore say something both of the way in which it fitted itself to exercise this jurisdiction, and of the share which it secured during this period. 2

Footnote 1: The reader is referred to the following: "The _L.L._, "L.L._, "L.L._, "L.L._, "L.L._, "L.L._, "L.L._, "L.L._, "L.L._, "L.L._, "L.L._, "L.L._, "L.L._, "L.L._, "L._, "L.L.\_, "L.

## 3 Reception of Foreign Doctrines 141

transitory "1 from the nature of the action to the nature of the defence. Littleton had said that if,3 in an action of trespass for battery or for goods carried away, the defendant pleaded not guilty in manner and form supposed, the plaintiff would recover, though the trespass was committed in another town than that alleged in the action.2 In Ejjzabeth's reign this was so, even if the trespass was committed in another county.3 Thus, though by statute the venue mus2 be laid in the proper county,4 the defendant could not traverse the venue laid by the plaintiff, unless his plea was local in its nature, i.e. depended for its efficacy on the place in which the facts alleged in it happened. If his plea was transitory in its nature he could not object to the venue laid by the plaintiff. If, for instance, to an action for assault and battery in the county of X, it was pleaded that the defendant _molliter manuals imposuit_ to prevent the plaintiff from entering his (the defendant's) house in the county of Y, the plea was local, as the cause of justification was local ; but if the plea was _son assault denuesne_ it was transitory.6 It is clear that most defences to actions on contracts, or to actions for torts to the person or to goods, are transitory. Therefore in most cases the defendant could not traverse the venue laid by the plaintiff. In other words the venue so laid was untraversable, and the objection based upon venue to hearing transitory actions founded upon foreign facts disappeared.

Footnote 1: Above 178.

Footnote 2: Clo. Litt. p. 282a.

Footnote 3: Peacock v. Peacek (1599) Cro. Eliz. 705; cf. Inglebatt v. Jones (1588) Cro. Eliz. 99; Purset v. Hutchings (1607) Cro. Eliz. 842; and cf. Williams, Notex to Saunders' Reports 248, n, t, "It is a rule that if to a transitory action the defendant pleads any matter which is itself transitory, he is obliged to lay it at the place mentioned in the declaration. But if the justification be local, the defendant must placd it in the county where the matter rose; and at common law the cause must have been tried there, and not in the county in which the action was laid; otherwise it was error."

Footnote 4: We have not been able to prove that the defendant is not a true matter, but it is not a true matter.

(_b_) The date at which this device was adopted by the courts of common law cannot be fixed with precision ; but it was certainly during the latter half of the sixteenth century. In Henry VIII's reign it was commonly used in the courts of the City of London. Brooke, who had filled the offices of common sergeant and recorder of London, after abridging the pleading in the Year Book of 48 Edward III., says that this was the common practice in London in that reign, and that in such cases the place alleged was not traversable.6 But probably it did not become a common practice in the courts of common law till a little later. Perkins, whose " Profitable Booke" was first published in 1530, states the

### Law in Xvith and Xvith Cents.

old law; \[1\] and in 1539 a bill, which was apparently intended to give the common law court's jurisdiction over contracts made abroad, was rejected by the House of Lords. \[2\] But in the latter half of the century the power which the legislature refused to give was secured by the adoption of this fiction. In _Dowdale's Case_ (1606) its legality was finally \[4\] upheld; \[3\] and cases of 1586 and 1589 \[4\] in which it had been adopted were approved. The old reasoning, which based jurisdiction \[6\] some act done in England, \[5\] was thereby rendered unnecessary, because a plaintiff in any transitory action was now able to transport to Cheapside any act done in any part of the world.

In spite of the arguments of the civilians, who gravely proved that such a fiction was wholly contrary to the principles of the civil law regulating the employment of fictions, \[6\] in spite of the reluctance of the Council to accept it, \[7\] and in spite of the ridicule of Prynne, \[8\] the common lawyers held their ground. The result was that the common law courts, instead of being the least open of all courts to foreign actions, became the most open, provided that the cause of action was transitory. \[9\] The chief limitations upon their jurisdiction arise either from their refusal to enforce rights wholly contrary to the principles of English law, \[10\] or from the physical impossibility of serving process upon a foreign defendant who is out of the jurisdiction. \[11\]

1 Perkins, Profitable Booke SSS 494, 737-

- Lords' Journals i rz, "Billa per quam debita in transmarinis partibus per singraphas concesa habila efficuntur in hoc regno Angliae implicatari; qua quidem Billa jam prima vice est lecta et relicta."

- Lbd 47b, 48a.

- Loferon v. Ilderton (1793) 2 Hy. Bk. 162, where it is pointed out that there is no need to resort to this fiction if some part of the transaction happened in England.

- Ridley, View of the Civil and Ecclesiastical Law 173-178; Zouche, Jurisdiction of the Admiral Asserted, Assertion viii; Godolphin, A View of the Admiral Jurisdiction, c. 7.

- Dascent xxiv iio (1593-1593)--from a letter of the Council directing arbitration in a partnership case it appeared that one partner had refused arbitration, "Wherc-unito, as we are informed, he is induced the rather for that the contracte of partner-ship passed between them grewe and was made beyond the seas, which can receive no triall here at common law"; the frequent remonstrances of the Council to the judges on account of their issue of writs of prohibition and other interferences with the Admirality point to the same conclusion, Dascent xiv (1587-1587) 317; Dascent xxiv (15987) 367-368; Dascent xxiv (1599) 3, 4; cf. Dascent xxvii (1597) 180--where the merchants in a petition to the Council complain of damage caused by prohibitions issued to the Admiralty to stay execution of judgment.

- Prynne, Animadversations 95, 97; vol. 1554-

- Phillips v. Eyre (1870) L. R, 6 Q. B. 28, _per_ Willes J.

- For a recent illustration of this principle see Kaufman v. Gerson \[1904\] I K.B. 597; of course, the facts relied on by the plaintiff must also give rise to a cause of action in the place where they happened, Phillips v. Eyre (1870) L.R. 6 Q.B. 28, 29.

- Though every fact arose abroad, and the dispute was between foreigners, yet the court; we apprehend, would clearly entertain and determine the cause, if in its nature transitory, and if the process of the court had been brought to bear again; \[4\] the defendant by service 8f a writ on him when present in England, \[4\] Jackson v. Spittal (1870) L.R. 5 CAP. 549, _per_ Brett J.

**RECEPTION OF FOREIGN DORTINES 143**

Thus the common law got rid of the difficulties occasioned by the old rules of venue. At the same time it had acquired in the action of assumpsit a convenient and flexible remedy for the enforcement of all kinds of contracts, and, in the action of trover, a convenient action for the enforcement of title to goods. These changes enabled it, not only to claim a share in the commercial business of the country, but even to aim at securing a monopoly of that business, by b:$,$Shibiting the court of Admiralty from hearing such cases.

According to the theory of Coke and the"common lawyers, it was only if a contract was made _super altrun ware_, and was to be performed there, that the Admiralty had jurisdiction.1 But if the Admiralty had been allowed to employ a similar fiction to that employed by the common law courts, this concession might have been used to give it the disputed jurisdiction. The courts of common law therefore denied this liberty to the Admiralty. Their own fictions were untraversable ; but the allegation that a contract sued on in the Admiralty was made _super altrun mare_ could be defeated by a mere surmise of the litigant who applied for a "Prohibition.2 The claims made by the common law to a monopoly of this commercial business were not finally made good till after the Restoration.3 In the sixteenth and early seventeenth centuries the agreements come to by the judges in 1575 and 1632 conceded to the Admiralty a concurrent jurisdiction.4 But we should note that these agreements assumed that the common law courts had succeeded in making good their claim to share in this jurisdiction, if the parties chose to bring their action before them.6 And it is clear that the common law and the common lawyers were beginning to acquire some knowledge of the mechanism of foreign trade, and of the law applied by the merchants to regulate their commercial relations. Thus the edition of "William West's collections of precedents published in 1615, which was "newly augmented with divers Presidents touching Merchants' affaires," shows that the common lawyers were becoming acquainted with the usual forms of mercantile documents. These precedents, some of which were written in "French, comprise such documents as a charter-party, a sale of a share in a ship, a bill of lading, a bill of exchange, an insugance policy, and a procuration of a merchant to his factor.6 Similarly in the reports we find cases turning on

### Law in XVITH AND XVITH CENTS.

such topics as jettison,1 average,2 insurance,3 charter-parties,4 mercantile agents,5 partnership,6 bills of exchange,7 merchant's marks,8 bottomry,9 freight,10 the reception of a captured ship,11 an agreement to share a captured prize.12 One effect of the statute of 1624,13 which is the foundation of our modern patent law, was to make questions as to the validity of a patent, a matter for the common law courts.14 It is not therefore surprising to find that Malynes recognized that it was desirable for a merchant to know something about the common law decisions.15

Footnote 13: The author is grateful to the anonymous referee for his comments.

Footnote 14: The author is grateful to the anonymous referee for his comments.

Footnote 15: The author is grateful to the anonymous referee for his comments.

Footnote 16: The author is grateful to the anonymous referee for his comments.

It was inevitable in these circumstances that the relation of commercial law and custom to the common law should undergo a change. In the Middle Ages, when the commercial customary law was administered in special courts \*for a very separate body of persons, it was something quite outside the common law.16 It was therefore necessary to plead and prove as a special custom any particular rule upon which a litigant wished to rely in proceedings before a common law court.17 But, when the common law courts began to open their doors to commercial cases, it became clear that they must take notice of this customary commercial law, and accept it as part of the common law. A case reported

**RECEPTION OF FOREIGN DOCTHINES 145**

by Brooke shows that they had adopted this new position at least as early as 1 543.1 In that case a general custom of the merchants had been specially pleaded; \_"\_and it was agreed that the pleading was bad, because a custom prevailing _inter merctares per total Anglian_ was common law, and could therefore no more be plcaded than any other general rule of the common law.2 It followed, to use Coke's words, that, " the Law Merchant is part of the laws of this Realm." -" But, in spite of the recognition of the fact that the jaw merchant was part of the common law, the couits, at the beginning of the seventeenth century, found it much more convenient to allow the customs of the merchants to be pleaded specially.4 This was due to three closely allied causes. In the first place, because the lawyers were very ignorant as to the exact scope of many of these customs, it was convenient to have them set out in the pleadings. In the second place, though mercantile custom was recognized as being part of the common law, it as yet applied only as between merchants; and it was necessary to state in the pleadings that the parties were merchants.5 In the third place, the forms of action at common law could not easily be applied to enforce many of the rights recognized by the merchants (e.g. the rights of the different parties to a bill of exchange) except by stating the custom in some detail, and giving an action on the case based upon the custom thus stated. But towards the end of the seventeenth century the courts were able to revert to the position taken up by Brooke and Coke. Their knowledge of mercantile custom was growing greater; and so it was decided

### Law in Xvith and Xviith Cents.

that it would apply to any mercantile transaction irrespective of the status of the parties.1 'he various actions on the case based on mercantile custom were giving rise to recognized legal rights. It was no longer necessary to set out the custom in order to justify or explain those legal rights, because they were regarded as depending, like any other rights, on the common law.2

Footnote 1: The law of Merchants is the law of the land, and the custom is good enough generally for any man without naming him merchant," Woodward v. Rowe (1666) 2 Keb, 132; cp. Witherby v. Sarsfield (f690) r Show rz5; Bromwich v. Lloyd (r690) 2 Luty, 1525.

But though the law merchant had thus become part of the common law, and applicable like any other part of the common law to aJ Englishmen, it was still a body of customary law. From the earliest period of English legal history the common law judges had exercised the power of refusing to recognize the validity of customs which they considered to be unreasonable. They naturally exercised this power in relation to these commercial customs ; and its exercise fixed the limits within, and the conditions under which, they were allowed to become a part of the common law.3 Thus, we have seen that it was due to this control that the recognition of the status of slavery was not introduced into English law under cover of mercantile custom.4 In fact, it was a familiar task upon which the common law judges were engaged when they thus set themselves to construct from a basis of commercial custom new branches of the common law. These same judges were in a similar manner constructing our modern law as to copyhold tenure ; 5 and their forefathers in the twelfth and thirteenth century had thus laid the foundation of the common law itself.6

Footnote 1: The custom of the merchants is part of the common law of this kingdom, of which the judges ought to take notice : and if any doubt arise to them about their custom, they may send for the merchants to know their taxon, as they may send for the civilians to know their law," Van Heath v. Turner (r62r) Winch 24; in Pickering v. Barkley (r64o) Style r32, which turned upon the question whether capture by pirates was a feril of the sea, a certificate of the merchants that this danger was considered by them to be a peril of the sea was read, and " the court desired to have Gravefy," The Master of the Trinity He-se, and other sufficient merchants to be brought into the

**RECEPTION OF FOREIGN DOCTRINES 147**

as I have said, they did not hesitate to overrule such customs if they appeared to them to be unreasonable,1 they always attached the greatest importance to them. In fact they were obliged to do so, as it is difficult to see from what other source they could have derived the rules requisite to decide these cases. Sometimes also they received evidence as to the rules which were\* applied by the civilians. But they did not treat these rules with quite the same\* respect as that which they paid to commercial custom. A rule put forward as a commercial custom was more likely to find favour than a rule put forward as a rule of the civil law.2 Some few lawyers indeed recognized that the legal principles underlying these commercial customs could be learned only from the writings of the foreign civilians. Prynnc, at the close of his chapter on the court of Admiralty, cites a long list of writers whose works might profitably be consulted.3 But these works were not easy for a common lawyer to read ; and so they remained unread. It was not till the common law obtained in Lord Mansfield a judge, who was a master of this learning, that the rules deducible from the many various commercial customs which had come before the courts were formed into a coherent system, and completely incorporated with the common law.1 Even then the destinctive character of the rules, of commercial law, and their adaptability to the ever changing needs of new commercial conditions, have caused them to preserve many characteristic features unknown in other departments of the common law.5\*\*

Footnote 1: As in Van Heath v. Turner (t62r) Winch 24.

Footnote 2: Somers and Buckley's Case (t59o) 2 Leo. t8.--the Admiralty had refused to allow a plea that an agreement had been entered into to share a captured prize, and the Common Pleas permitted the Admiralty to proceed if it would allow the plea ; Bright v. Cowper (t61r) r Brown., and G. zz -$\\Lambda$ merchant, contrary to the rule of the civil law, held not liable to pay freight on goods brought safe to port, because part had been captured by pirates ; Bridgeman's Case, Ho. t1, t2--The civil law of the Admiralty expressly followed as to money borrowed by the master on bottomy ; in 17r, in Assievero v. Cambridge, to Mod. 77 % the civilians argued before the King's Bench as to the effect upon the liability of au insurer of a capture followed by a real capture before the ship had been carried _infra Brasidia_.

Footnote 3: Prynnc, Animadeversions 133; besides the English writers of the time, he refers to Straccha, Shardius, Johannes Nider, Edicta regum Francie, Renanus Choppinus, Julius Ferretus, Henricus Ranzovits.

Footnote 4: Vol. i 57z-573 : cp. Park, Marine Insurance (ist ed.) xlii-xliv ; Smith, Mercantile Law, Introd. lxxxi.

Footnote 5: Perhaps the most marked is the efficacy of commercial custom to make new law, as illustrated by the cases which show that a general custom of the merchants to treat certain instruments as negotiable will make them negotiable, vol. i 573 n. I this recognition by the courts of the power of connn$cial custom to do now what it did in the past, is the best security that commercial law will continue to be living law in touch with the real world of compmerce ; we may .emgLaw in XVITH AND XVITH CENTS.

It is clear however that, as early as the first half of the seventeenth century, the process of incorporating the rules of commercial law into the common law had been begun. These rules had ceased to be quite outside the common law. They were recognized as a part of the common law, though as yet they were a separate part of the common law. In many cases it was necessary that their existence should be proved to, and their reasonableness approved by, the judges of the common law courts, before they were enforced as law ; and, owing partly to the fact"that the common law was very bare of principles applicable to the commercial problems of the day, and partly to the fact that their procedure was ill adapted to the trial of many of these cases,1 litigants, when possible, avoided the common law courts. But the common law judges were not discouraged by these disadvantages of which, indeed, most of them were hardly conscious. They decided the cases which came before them to the best of their ability ; and, owing to the political events of the seventeenth century, which gave them the victory over rival jurisdictions, their decisions have an historical importance which they would not otherwise possess. In them we can see the beginnings of a continuous native development which has shaped the commercial and maritime law used by all English-speaking races at the present day.

Footnote 1: Vol. i 555.

During this period therefore the new doctrines of commercial and maritime law were being received through many different channels. We can see the beginnings of the usury laws, the bankruptcy laws, the laws as to negotiable instruments, and trading corporations; we can see the beginnings of the modern law as to ships and shipping, and as to the various incidents of the contract of carriage by sea ; we can see the beginnings of the law as to insurance. Of the beginnings of these branches of our modern commercial and maritime law I shall speak more fully in the Second Part of this Book. At this point I shall in conclusion say a few words as to the peculiarities of the development of our English commercial and maritime law which I have been endeavouring to describe.

_(2) The peculiarities in the development of English commercial and maritime law._

_"_

Abroad the outstanding feature in the administration of commercial and maritime law was the existence of commercial and

**PECULIARITIES OF ENglish LAW 149**

maritime tribunals which were staffed by both merchants and lawyers.1 It is true that in some countries, e.g. in France, there was a separate court of Admiralty for maritime causes ; and that this court had a wide jurisdiction over those commercial causes which arose from or depended upon the contract of carriage by sea.3 But, even in these countries, other commercial causes were heard by commercial courts of the usual type.3 The outstanding feature of the law administered by these commercial and maritime tribunals was its dependence, firstly upon the commercial and maritime codes which had been enacted by the governing bodies of the trading centres and the seaport towns of Europe ; secondly upon the usages of the merchants which had grown up in these places4; and thirdly upon the authoritative treatises in which the lawyers had, with the help of the technical language and the concepts of the civil and canon law, deduced, explained, and applied the principles underlying these codes and usages. Hence we get that international character of the Law Merchant both substantive and adjective, which, as we have seen, has been noted by modern writers as its most marked peculiarity.4

Footnote 1: Above 93-96. Above 10r. Above 60-61.

Footnote 2: Above 95. Thus in 1575, Dr. Lewes, the judge of the court of Admiralty, complained of a falling off in the business of the court; one of the causes of this was, he said, a privilege which merchants trading to Spain and Portugal had got from the Queen enabling them to settle all disputes arising between themselves, or between any of them and a stranger, Select Pleas of the Admiralty (S,S) ii _iii_ ; above 130; for some instances see Carr, Select Charters of Trading Companies (S,S) 70, 71-character of merchants trading to France (r60z); ibid 85-character of king's merchants of the new trade (r616); in the charter of the African Company (r672) ibid 191-192, power was given to establish a court, " which court shall consist of one person learned in the civil laws and two mercha\*\*ts," and they w.e.g. to try cases " according to the court of Admiralty."

In the last half of the sixteenth and the first half of the seventeenth centuries, England stood at the parting of the ways. It was by no means certain that commercial tribunals might not have been established in which the merchants had some share ; and it seemed very probable that the English court of Admiralty would acquire a jurisdiction over maritime and commercial causes very similar to that acquired by the French Admiralty. If we look at the evidence for these possibilities, and then inquire why it was they were never realized, we shall be able to understand the reasons for the peculiar manner in which these two branches of law were destined to be developed in this country.

During the last half of the sixteenth century there are many indications that the tribunal which gave the most satisfaction to the merchants was one in which they themselves had some share. The new commercial companies, which were being founded by the crown, sometimes provided for a domestic jurisdiction over the commercial disputes of their members ; 5 and Hudson admits

### Law in Xvith and Xvitin Cents.

that in his day the merchants favoured this plan.1 The merchants who acted as consult agar's in foreign lands clearly had some kind of jurisdiction over their countrymen.2 It is clear, too, from the Council records that the arbitration of merchants, or of a mixed tribunal of merchants and civilians,3 was'a far speedier method of settling mercantile disputes than recourse to any of the ordinary courts.4 Nor was the legislature wholly blind to this fact. The commissioners, to whom th_z\_ jurisdiction in bankruptcy was given by the Act of 1571, were usually a tribunal consisting partly of 'lawyers and partly of merchants;'5 and, to decide disputes arising in London as to insurances, the Act of 1601 created a special court consisting of merchants and civil and common lawyers, not unlike the commercial tribunals of the Continent.6 Bacon tells us that it had been at first proposed to give this jurisdiction to the court of Chancery; but that another plan had been adopted, both because a suit in Chancery was "too long a course," and because "our courts have not the knowledge of their terms, neither can they tell what to say upon their cases, which be secrets in their science, proceeding out of their experience."7 During the period of the Commonwealth, also, when many extensive projects of legislative reform were being discussed, the establishment of such tribunals was advocated;'8 and they continued to be advocated throughout this century." If such courts as these had been set up in all the

## 1 Preliminaries of English Law 151

important trading centres, and if their jurisdiction had been extended to all commercial chuses, the civilians and the merchants would probably have introduced many of the principles of continental law with which they were familiar. It is obvious that, if this had happened, the whole course of the history of these branches of law would have been altered.

But, in spite of their obvious advantages, commercial tribunals of this type were never developed in England. This was due to two closely allied causes. Firstly the towns--even London--were very much less independent in England than abroad ; and secondly England had a far greater number of royal courts possessing a general jurisdiction throughout the country.

1. It was in the independent cities of Italy, Spain, the south of France, the Netherlands, and Germany that these commercial tribunals made their appearance.1 Though their jurisdiction was wide, the area over which that jurisdiction was exercised was limited. And it was this limitation of area which made the exercise of their wide jurisdiction possible. The merchants who sat in them would not have had the leisure to deal with the numerous cases arising over a large area ; and the merchants who were litigants would not wish to waste their time in travelling to a distant tribunal. The courts of these cities would have lost their usefulness, if they had ceased to be courts for one limited locality. The statute which created the court to try cases for insurance recognized this when it limited its jurisdiction to cases which arose in London. But, seeing that in England all the larger litigation had, by the last half of the sixteenth century, been absorbed by the central courts, the towns had no active judicial bodies which were capable of being adapted in this way. Abroad it was in and through the judicial machinery of the towns that these tribunals grew up.2 In England there was no municipal tribunal sufficiently independent to evolve from within itself a commercial court after this new pattern.

Footnote 1: Above 68-71, 95.

(2) From the beginnings of the fourteenth century onwards the growth of royal central courts had been steadily reducing to insignificance all local jurisdictions. During the sixteenth century the process had been accelerated by the increase in the jurisdiction of the Council and its offshoots, the Star Chauci, the Chancery, and the Admiralty. The Council might send a case to arbitration. The crown might give jurisdictional powers to a company. But it was not likely that the crown or the Council would permanently delegate jurisdiction to a municipal

### Law in Xvith and Xvithi Cents.

tribunal. On the contrary, as the sixteenth century advanced, the jurisdiction of all these central courts tended to expand, and the competition for business become fiercer. The Admiralty, especially, was very jeolous of towns which, under cover of old charters, claimed and exercised jurisdiction which competed with itself.1

Footnote 1: These are the most common, but the most common

**PECULIARITIES OF ENGLISH LAW 153** was, it is true, proposed in 1566 to give the judge of the court of Admiralty statutory powers to hear certain commercial causes "summarie et de plano et sie stefuu ct figura judicii, sola facti veritate inspecta, omnique appellatigne remota " --to make it, in other words, a commercial court with the summary procedure used in continental commercial courts. But nothing came of this proposal, and the procedural defects of the court remained un-renedied. But, in spite of this, we cannot doubt, that, from the point of view of the substantive law which it administered, it was a more satisfactory tribunal than either the courts of common law or even the court of Chancery, because, as we have seen, neither of these courts administered that maritime and civil law with which ths merchants were familiar ; and neither possessed the peculiar machinery needed to do justice in maritime causes.2 If the agreements as to the jurisdiction to be allowed to the Admiralty arrived at in 1575 and 1632 a had been adhered to, there can be little doubt but that the Admiralty would have become the tribunal in which the law merchant was principally administered.

Footnote 2: A. 134, 138-139.

Footnote 3: Vol. 1 553, 555-550

That the Admiralty never developed into such a court is due perhaps in part to the fact that it was not wholly satisfactory to the merchants, but chiefly to political causes. The Tudors never succeeded in settling the boundaries of the jurisdiction of the various courts new and old which administered the various parts of English law in the sixteenth century ; and the issue of the political controversies of the seventeenth century was fatal to all those courts to which either the common law or Parliament were hostile. It is true that they were hostile to the court of Chancery ; but that court had established its position before these controversies had become acute ; and it therefore survived them.4 Consequently, after the Great Rebellion, the ordinary courts of law and equity acquired complete jurisdiction over commercial causes, and by far the greater part of the jurisdiction over maritime causes. Therefore in England alone among the nations of Europe commercial and maritime law became simply a branch of the ordinary law, founded indeed on those principles and rules of the cosmopolitan Law Merchant5 which were introduced into England during this period, but developed by the machinery and in the technical atmosphere of the courts of law and equity. It was therefore developed by men who knew very little of that great body of law and legal theory which on the Continent had

### 154 Law in Xvith and Xvith Cents.

grown up and was still growing up;around these topics.1 Mr. Marsden tells us 3 that, "many points of maritime law that were afterwards painfully elaborated by the common lawyers had for at least a century been familiar to the civilians. General average, insurance, and the negotiability of bills of texchange .

Footnote 1: See Pepys' Diary (Ed. Wheatley) iii 364 for an amusing account of a trial in 1663 of an action on a policy of marine insurance in the King's Bench, in which the count displayed an entire ignorance of the meaning of ordinary nautical language and commercial terms, "To hear how sililly the counsel and the judge would speak as to the terms necessary in the matter, would make one laugh."

, all matters of rare occurrence in the Westminster courts during the Elizabeth and Stuart period, were very frequent in the Admiralty. The Westminster Courts elaborated their law upon these and many other points of commercial law, without much reference to the previous decisions of the Admiralty. Nevertheless the common law, with tardy steps, followed the Admiralty in many of its decisions, perhaps unconsciously, and certainly without acknowledgment. Sir Mathew, Hale is careful to point out that the common law courts, as well as the Admiralty, administered the civil law, so far as, by the law of England, the civil law was applicable to maritime cases ; and the supremacy of the former being established, the decision as to what was the law of England was necessarily in their hands." Hence in England the growth of commercial and maritime law was slow ; and though the actual rules in many cases agreed with, and were in fact founded on the law laid down by the continental civilians, at many points they diverged from continental usages. With the beginnings of this native development of commercial and maritime law through the courts of law and equity I shall deal in the Second Part of this Book.

We must now turn to those other legal developments outside the sphere of the common law which are less directly connected with the civil law.

Chapter 4 English Law in the Sixteenth and.Early seventeenth centuries (Continued) Developments Outside the Sphere of the Common Law (Continued)

N this chapter I shall deal firstly with the law administered by the Council and the Star Chamber, and secondly with the equitable jurisdiction of the Chancellor.

## 5 The Law Administered by the Council. and the Star Chamber

The functions of the Council and Star Chamber were twofold--executive and judicial. No doubt in the work of the Council executive functions predominated, and in the work of the Star Chamber judicial functions ; but we have seen that they were to a great extent staffed by the same men,1 and that the separation between the bodies themselves and their work was never quite complete.3 As executive bodies they had a large influence upon the development of public law, and upon the commercial and industrial policy of the state ; and they used their wide judicial powers to create a considerable amount of law upon these topics. Of this part of their work I have already said something,2 and I shall have something more to say of it in the next chapter.4 But this part of their work naturally led them to extend their jurisdiction to other cognate topics. At all times the effective administration of the criminal law is intimately connected with the good government of the state. We have seen that the anarchy of the fifteenth century was largely due to the failure of the common law to administer it effectively;2 and that therefore, in the sixteenth and early seventeenth centuries, the interference of the

### Law in XVITH AND XVITH CENTS.

Council and Star Chamber was urgently needed.1 The success achieved by these bodies was no doubt mainly due to the facts that they comprised among their members all the leading statesmen of the day, and that they acted as the immediate agents of the king's prerogative. But it is also in part due to another "and a more purely legal reason--the system of procedure which they employed. It was through this system of procedure that they were able to develop many new branches of the criminal law ; to punish many kinds of sharp practice, and many attempts to use the procedure e.f the common law and other courts as an instrument of oppression ; and to exercise occasionally a civil jurisdiction in cases in which the rules of the common law worked or were made to work injustice. It is with these more purely legal developments that I shall deal in this chapter.

Footnote 1: The author was supported by the National Science Foundation of China under grant number 1

## 1.1 Law Administered by Council. 157

it is mainly to that court that we must look for the legal developments with which we are here concerned.

The fact that the Star Chamber was becoming a judicial court which was making law, is clear from its records, from the reports of its proceedings, and from the books describing its organization and jurisdiction which were beginning to make their appearance in the legal literature of the latter part of this period. I shall therefore say a few\* words about these records, reports, and books before describing the manner in which its actual work influenced the development of English law. \*

Footnote 1: "A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony; which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question," Bl, Comm. iii 24 ; cp, Baldwin, Select Cases before the Council (S,S.) xi, xii,

(1) The records, reports and books.

When we apply the term " records" to the proceedings of the court of Star Chamber we are using it in a sense which was technically incorrect in the sixteenth century, and is perhaps technically incorrect at the present day. Such courts as the Star Chamber, the Council, the Chancery when acting as a court equity, and the Admiralty, did not technically keep " records "--they were not courts of record.1 But the technical conception of a court of record was not ready made. It was of slow growth; and owes, it seems to me, some of its modern sharpness of definition to that rivalry between the new courts and councils of this period and the courts of common law, which was beginning to become acute at the latter part of the sixteenth century. Of the growth of this technical conception, therefore, I shall here speak shortly, because it illustrates both the new position which these courts were taking in the state, and the attitude of the common law courts to them.

Footnote 1: "A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony; which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question," Bl, Comm. iii 24 ; cp, Baldwin, Select Cases before the Council (S,S.) xi, xii,

" The distinction," says Maitland, " that we still draw between " courts of record" and courts that are " not of record" takes us back to very early times when the king asserts that his own word as to all that has taken place in his presence is incontestable. This privilege he communicates to his own special court; his testimony as to all that is done before it is conclusive,"2 Thus the formal records of the king's court cannot be disputed; and herein it differs from inferior courts, which keep no such formal records.3 They may be called on by writ

### Law in Xvith and Xvith Cents.

of false judgment to produce a record of a given transaction ; but this record may be dputed; the doomsmen who have brought up the record may beven, if early times, be compelled to fight in its defence.1 It is the infallibility of its formal record which is the earliest mark of a court of record. But 'gradually the court of record developed other characteristics. Its record was kept upon a parchment roll. The method of questioning its decisions was a writ of error, while the method of questioning the decisions of courts not of record was a writ of false judgment.3 It' alone could fine and imprison; and this characteristic, which was perhaps one of the latest to be developed,3 is its most important characteristic at the present day.4

Footnote 1: The author was supported by the National Science Foundation of China under grant number 1000011.

Footnote 2: The author was supported by the National Science Foundation of China under grant number 1000011.

Footnote 3: The author was supported by the National Science Foundation of China under grant number 1000011.

It is clear that courts which possessed these characteristics had many advantages. In the Middle Ages the common lawyers found that they gave both to their central courts and to other royal courts,5 considerable assistance in their struggle with competing local jurisdictions. Therefore they dwelt upon and elaborated them, and thus made the distinction between a court of record and a court not of record a technical distinction. And, as often happened in the fourteenth and fifteenth centuries, the lawyers, without altogether losing sight of the fundamental principle upon which the technical distinction was based,4 tended to lay most stress upon the manner of keeping the record and upon the other consequences which the status of a court of record was

## 11 Law Adminis? Ered by Council. 159

had come to involve. Thus the _Termes de la Ley_ defines a court of record simply by referen 3 to the formal characteristics of its records ;1 a Year Book of Henry VI.'s reign emphasizes the fact that unless a court is a court of record no writ of error lay to correct the mistakes which it has made ;2 and Coke deduced from certain vague dicta in the Year Books as to the powers of courts of record the new rule that it was only a court of record which could fine and2 imprison.3 As we have seen,4 the Doctor and Student attached another and a more important consequence to the posscssion by a court of a formal record. Unless it had such a record the law laid down by it could not be considered as a part or a ground of the law of England.

Footnote 1: ${}^{#}$ Record est un Esccript en Parchment, ou sont enroll Pleas de Terre, ou Common Pleas, Faints, ou Criminal Proceedings en ascun Court de Record; mes en Courts nient de Record come Admiraltie, Courts Christian, Courts Baron, etc., lour Registrie de Procedure ne sont proprement dits Records : Mes courts de Ley teign per Grant del Roy sont Courts de Record," Termes de la Ley _sub voc_. Record.

Footnote 2: Y.B. 37 Hy, V1, Hil pl. 3 (p. 14), Prisot said, "1 l est a voir al queux choses en Chaucero on convient responder illoquees, issint que on poi avoir breve d'Irror, et en queux neuy : Sir, en touts pleas devant aux sur Pattens, ples en Det, et hujunsoudi, permetre eux del Place, la on avoir brief d'Error. ... mes en user des breves del subpona il n'est court de Record en eux cases, car il est forsque d'examiner le conscience."

Footnote 3: Coke makes a great point of this in Becherc's Case (160g) 8 Co. Rep. at p. 60b; and in Godfrey's Case (161g) 11 Co. Rep. at p. 43b; it seems to me that, with regard to the power to fine, he had a certain amount of authority in dicta such as those contained in Y.B.B. 7 Hy, VI. Mich. pl. 77, and ro Hy, VI. Mich., pl. _zz der_ Candish; and in F.N.B. 73 D; but the dicta are not very explicit, and the court is clearly thinking primarily of the distinction between an amerement which is affected by the suitors, and a fine which is assessed by the judge, and not of a distinction between a court of record and a court not of record ; it seems to me that Coke used these cases to give, if not a wholly new meaning to the latter distinction (see Y.B. ro Hy, VI. Mich, pl. 22 _fer_ Newton) at least a new emphasis to it ; with regard to the power to imprison the conclusion is contradicted by Y.B. 37 Hy. VI. Hil. pl. 3 (p. 14) where Prisot distinctly says that the court of Chancery, though not a court of record when acting as a court of equity, has this power ; for other similar misstatements of Coke made with a view of magnifying the powers of the common law courts see below 431-432, 476-478.

Footnote 4: Vol. iv 282 n. 4.

Footnote 5: Coke, Second Instit. 71; Fourth Instit, 735; Godfrey's Case (161g) 11 Co. Rep. 44a.

Footnote 6: As to the correctness of this view see above n. 3.

Footnote 7: On the passage in (iodfrey's Case (161g) 11 Co. Rep. 44a, in which

### Law in Xvith and Xvith Cents.

and in _Floyd and Barker's Case_ he further strengthened the position of the common law courts by deducing from their status of courts of record the consequences that their judges could not be questioned for anything which they did by the court of Star Chamber.1 It is clear that he was exaggerating this technical distinction in order to use it as one of the foundations of his arguments for the supremacy of the common law,2 and as a means to depress such rival courts as the court of Admiralty, and the celestiasticql courts. 'Thus for political reasons the distinction gained an importance for which, historically, there was no warrant; and though these political reasons for its importance disappeared after the seventeenth century, it remained as technical distinction between courts. It still exists; but at the present day it is of little practical importance.3

Footnote 2: Below 428-433, 439-440.

Footnote 3: "Wherever describe courts have been made courts of record by statute," see Halsbury's Laws of England _Courts_ to n. (_m_); for the statutes making the Admiralty a court of record see vol. i 547, 558-559.

During this period Coke's views had little or no effect. The power to fine and imprison was habitually exercised by the Council, Star Chamber, Chancey, Admiralty, and High Commission. Indeed this power was absolutely essential to their efficiency, and, historically, was abundantly justified. They were just as much royal courts as the courts of common law--as we have seen, during the greater part of the fourteenth century, King's Bench and Council were intimately related; and the Council could control the proceedings of the King's Bench.4 In this period, indeed, the relations of these courts with the crown were a goo l deal more intimate than those of the courts of common law; so that they obviously came well within the original principle which had given to the courts of common law their superior status of courts of record. It is true that they did not comply with the later technical tests of that status. But their organization and procedure were almost as dcfinite and settled as the organization and procedure of the courts of common law; and, though they kept no Latin records enrolled on parchment, they kept formal English records of a more adequate kind thanthose of the common law coirts.1 The absurdity of making the possession by a court of a latin plea roll the crucial test of its possession of the status of a court of record was justly and forcibly pointed out by Shower in his argument in _Kex_ v. _Berdet.2_

Footnote 1: For the inadequacy of the formal record as an account of the most material parts of the trial see vol. i 215-216, 317.

Footnote 2: (1601) 1 Shower at pp. 179, 120--'' Some will have the Star Chamber no Court of Record, because their proceedings are in English. But if that were an objection, then all the ancient Parliament kills and Acts of Parliament before Henry the Sixth which are mostly enrolled in French, not in Latin, and many chatters, writs, and commissions enrolled in French; and the statutes since the first of Henry the Sixth, must be no records."

Footnote 3: Vol. i 407-408 ; Baldwin, The King's Couticul 254-261.

We have seen that in the course of the fourteenth and fifteenth centuries the Council tended to make more use of the writs and, processes of the Privy Seal, and less use of the writs and processes of the Chancery, because the former were less formal, more expeditious, and more secret than the latter.4 We have seen that for this reason the former were used by the Council in criminal or semi-criminal cases, while the latter were used in civil cases; and that this difference in process had a large influence upon the separation of the jurisdiction of the Council from that of the Chancery.4 But the process of the Privy Seal had the defects of its qualities. The records of the office of the Privy Seal were carelessly kept.5 It was not until the time of the Tudors that they were collected into bundles;6 and the tradition of carelessness remained. Hudson tells us that at the beginning of the seventeenth century, the carelessness with which the records of the court were kept, and their informality, were leading many to the conclusion that the court was " rather a committee for such great causes as it pleased the king than a court of ordinary justice."7 But he points out that the court was careful to correct " the neglect of convenient form in him which complaineth;"8 and that the existing carelessness both in the custody and in the writing of the records of the court was of recent date, and was due partly to the age of Mills the clerk of the court, and, after his time, to the practice of entrusting the office to inexperienced deputies." However that may be, the

### Law in Xviith and Xviith Cents.

records of the court were allowed to remain in a state of chaos till our own days. In spite of recent efforts to sort and calendar the records, papers belonging to different cases and different reigns have been found together. Leadam tells us that "isolated papers belonging to suits of the period of Henry VII. are found sorted and indexed as parts of suits belonging to that of Henry VII."1 And, as he says, " confusion is by no means the most deplorable incident in the history of these records."2 The whole of the deqrees of the Star Chamber have disappeared;3 and that means that we have lost the whole of the first hand evidence as to the judgments given by the court, and the only means of checking the accuracy of contemporary reports of its proceedings. At the same time the Calendars prepared by the record office enable us to see the kind of cases which from time to time came before the court;4 and the records of the earlier part of this period, published by Leadam, enable us to form some conclusions as to its procedure and as to the law which it administered. A useful supplement to the records is to be found in the collection of forms of pleading for use by suitors in the court published by William West in his Symboleography.6

Footnote 1: See \[1\] for a discussion of the history of the

## 1.1 Law Administered by Council 163

for making reports of their proceedings.1 Probably if the court of Star Chamber had not c'ased to.exist in 164 i a series of Star-chamber reports, as bulky and as numerous as the reports of the court of Chapery, would be an essential part of every law library. As we shall see, the earliest printed reports of this court are fuller than the earliest printed reports of the court of Chancery.2 Probably the publication of some of these reports, which still exist in MS., would4 tell us a good deal more about the law administered by the court than the publication of an equal bulk of the surviving records--just as the publication of Year Books serves a far more useful purpose than the publication of the formal plea rolls.

Footnote 1: D'Ewes, Autobiography i 220 tells us that in Michaelmas term i62a he began "to go to the Court of Star Chamber on Wednesday and Friday in the forenoon, and to take notes of such cases as I heard there adjudged "; we may safely conjecture that other law students did the like.

Footnote 2: Below 276-277.

The most complete set of Star Chamber reports, which have yet been published, are those made by J. Hawarde, which run from January 25th, I593, to February 14th, I609.3 This collection, which has been edited by Leadam, comprises a few cases in other courts in which the author was interested,4 but consists in the main of cases heard before the court of Star Chamber. Probably, Leadam thinks, the cases were written up from rough notes taken in court.6 The earlier part of the book shows signs of careful editing; but the latter part, when it can be checked from other sources, is somewhat careless and inaccurate--notably the account of the judgments in _Cakvin's Case_. It is, however, the fullest report we possess of the doings of the court; and both the arguments and the judgments give us a valuable account of the way in which the business was conducted, and of the principles which the court applied. The book shows us that the court was truly a judicial court, and a court of criminal equity. The cases were regularly and publicly heard; and the parties were represented by counsel.6 The law applied was based upon the common law;7 but the procedure of the court enabled it to disregard many of those technical common law rules which

### Law in Xvith and Xvith Cents.

rendered the administration of the' criminal law ineffective.1 The judges of the court did not hesitate to develop and expand the principles of the criminal law in a way in which no common law judge would have dared to 'ttempt.2 The only other separate collection of reports which we possess are a series of cases printed b?: Rushworth which are taken from the years 1625-1637 ;3 and a set of reports for the year 1631-1632, which have been printed by the Camden Society.4 There are also a few cases heard in the court of Star Chamber reported in Dyer, Coke, Plowden, and one or two of the'other common law reporters.6

Footnote 1: On occasion they would disregard even their own rules of practice ; thus at p. 149 the Lord Keepcr said they could make an order " Even if it be not the course of the court; for in such great cases, in which there was great misheif, and it was so necessary for the public good, a precedent was not necessary to direct them, but they could make an order according to the necessity and nature of the thing itself " ; cf. p. 163, where they dealt with a case of riot because the country would not find it ; at p. 1622 the Lord Chancellor says, " exorbitante offences are not subject to an ordinary course of law."

Footnote 2: It is stated in Collect. Jurid. ii p. r. n. that the MS. of this treatise, contained in Harl, MSS. no, 1226, contains the following memorandum signed by Finch, Chief Justice of the Common Pleas and Lord Keeper in Charles I.'s reign :-" This treatise wus compiled by William Hudson of Gray's Inn csq.; one very much practised, and of great experience in the Star Chamber, and my very affectionate friend. His son and heir Mr. Christopher Hudson (whose handwriting this book is), after his father's death, gave it to me 19 Jec. 1635."

The importance of the court induced lawyers not only to report its proceedings but also to write 'books about its constitution, procedure, and jurisdiction. Of these books by far the most important is the treatise of William Hudson. Hudson was a barrister and bencher of Gray's Inn, whose practice was chiefly in the court of Star Chamber. His active career lies between 1605,6 when he was called to the bar, and 1635 when he died. As we might expect, he was identified with the lawyers who supported the prerogative. He subscribed the information against Eliot and others for riot in the House of Commons in 1629, and he opened the case against Prynne for publishing his Histrio-mastix in 1632-1633: His fame rests entirely on his book, which gives an impartial and scholarly survey of the history constitution jurisdiction and procedure of the court, based upon its records and upon his own observations.7 It is a survey which is the more valuable because the author had access to records

## 1 Law administered by council. 165

which are now lost to us. That he used these records with skill is clear from the fact that his vicw of the origin of the court is substantially endorsed by Leadam1.

His account of the actual constitution, jurisdiction, and procedure of the court is no mere lifeless description. It is always enlivened and substantiated2 by the cases which he cites, either from the records or from his own practice and observation.3 He is a discriminating critic of developments of which he does not approve--the neglect of the records,4 the length of the interrogatories administered to a defendant,5 the abuse of the procedure _ore tenus_.6 But he has all the reverence of the Tudor lawyer for the greatness and dignity of a court which, because it administered the personal and direct justice of the king6 without the excessive technicality which impaired the usefulness of other courts, could be called " _Schola Reipublicae_"--the controller both of " all the other courts of justice and ministers thereof, and of all the subjects of the kingdom."7 At the same time he lets us see that in his day the court was beginning to excite a legal and a constitutional opposition which was almost unknown in the sixteenth century.8 In fact his consciousness of the growing opposition between the Star Chamber and the common law courts may have led him to gloss over some of its characteristics, and to suggest changes with a view to palliating a rivalry which was daily growing more acute. He entirely suppresses the fact that it used torture to extort confessions and information.9 He would like to limit the extraordinary powers which it sometimes assumed to really extraordinary cases;10 and the criticisms

### Law in Xvith and Xvith Cernts.

which he makes upon its procedure1 were perhaps animated by a desire to check practices which were making it unpopular. The picture which he drew of the court is not quite an accurate picture of its later years. But it is not the least valuable of its features that it is drawn at the close of the period when men generally thought of the court as "one of the sagest and noblest institutions of the country,"2 and at the beginning of the period in which they were beginning to regard it as a court which attempted to maintain royal absolutism, and to overthrow the constitution, by the chuelty of the punishments which it inflicted upon its political opponents.

Footnote 1: The author is grateful to the anonymous referee for his comments.

Of the other treatises in which the court is described the most notable are those of Lambard and Crompton. Lambard devotes a large part of his Archeion to the court of Star Chamber.3 Like Hudson he approaches it from point of view of the Tudor statesman. He defends its antiquity,4 its wide jurisdiction,5 and its necessity to the well-being of the state.6 He givcs us a little information about its procedure, and officials,7 speaking more favourably of the procedure _ore tems_ than Hudson.8 That the information which it contains is trustworthy is clear from the character of Lambard's other works, and from the fact that this part of his treatise probably owed a good deal to William Mills, the clerk of the court.9 Naturally his treatmcnt is directed .more to the political than to the strictly legal aspect of the court. Crompton's chapter on the Star Chamber in his book on the Jurisdiction of Courts10 approaches the subject from a point of

## 11 Law administered by council. 167

view which is quite different from that of either Hudson or Lambard. It is the book of a common lawyer to whom details as to the procedure and the jurisdiction of the court are more interesting than large questions as to its position in the state, or its legal title to exercise jurisdiction. Having just glanced at and rejected the view that the court owed its origin to, and that its jurisdiction was limited by, the Act of 1487,1 he at once plunges into a list of the statutes which affected it, and of the cases which showed the kind of matters which came before it. His work has none of the literary form which distinguishes Hudson's and Lambard's books. It is a useful collection of concrete facts and instances put together in somewhat haphazard fashion from statutes, abridgments, year books, law reports, books of entries, legal text books, chronicles, and his own experience.2

Footnote 1: If, zgb, 30.

Of shorter accounts of the court 1 need only notice Smith's chapter in his book on the Republic of England,2 and Coke's chapter in his fourth Institute.3 Smith of course is concerned with the political aspect of the court, and it is interesting to note that, in his opinion, it gained the political position, which it occupied in his day, in the earlier part of Henry VIII.'s reign.4 Coke's account is a useful summary of the history, powers, and political position of the court put together without any attempt at literary arrangement. It is important, both because it embodies a good deal of the experience which Coke acquired as attorney-general and as a judge of the court, and because it illustrates the attitude which a typical common lawyer could adopt to the court, before the constitutional controversies of the seventeenth century had convinced many of the common lawyers of the illegality of the powers which it was exercising.5

Footnote 2: By, 1999,

### Law in Xvith and Xvith Cents.

way in which some of these rules grew up in the Star Chamber during this period is necessary, if w!: would understand the developments in the criminal law and the law of tort which, as we shall see, took place after the Restoration. In considering this subject I shall deal in the first place with the procedure of the Star Chamber, and in the second place with certain of the substantive rules of law which it enforced.

(i) _The Influence upon English Law of the Procedure of the Star Chamber._

In many different countries in Europe it was upon the law of procedure that the influence of the civil and canon law had been most strongly felt. The old procedure of the Germanic tribes, who had overrun the Roman Empire, was too rigid in its forms to admit of the expansion rendered necessary by the growth of the modern state; and its oral character made it difficult for litigants to state accurately the issues of the more complicated cases which arose as civilization advanced.1 It was marked by defects very similar to those which marked the _Legis Actio_ procedure of the old jus civile; and just as the Practor Urbanus and the legislature found a remedy in an adaptation to the uses of citizens of that formulary system which the Practor Peregrinus had devised for aliens, so the courts and legislatures of the European nations found a remedy in the adaptation of the new written procedure which the civilians and canonists were creating on the basis o the procedure in force in the latest period of the Roman Empire. Thoughout the Middle Ages this process had been going on. In many countries and in many different ways and degrees the influence of this new procedure had made itself felt. In England it can, as we have seen, be traced in Glanvil and Bracton's books;2 and at a later period it was the model upon which the procedure of the court of Admiralty was formed.3 Abroad it had a more marked and permanent influence, which tended to increase with the increase of the influence of the rules and conceptions of the Roman law. And in this branch of the law, the influence of the canon law was felt as strongly, if not more strongly, than the influence of the civil law. In many cases the system of procedure devised by the civil lawyers was found to be too lengthy and too cumbrous. We have seen that the canon law had helped forward the growth of a more convenient and a more speedy procedure in commercial cases.4 We shall now see that it helped forward similar changes in the law of criminal procedure, in most of the states of continental Europe.

(i) _Yv. i jor; vol. ii 105-106, II6-II7._ (ii)Id 203, 228, 251; vol. iii 630-63r.

(i) _Above x16._ (ii) _Yv. i jor; vol. ii 105-106, II6-II7._ (ii)Id 203, 228, 251; vol. iii 630-63r.

(ii) _Yv. i jor; vol. ii 105-106, II6-II7._ (ii)Id 203, 228, 251; vol. iii 630-63r.

(iii) _Yv. i jor; vol. ii 105-106, II6-II7._ (ii)Id 203, 228, 251; vol. iii 630-63r.

(iii) \_Yv. i jor; vol.

## 11 LAW ADMINISTERED BY COUNCIL 169

In England the influence of the canonists can be traced in the procedure adopted in civil cases by the court of Chancery and the court of Requests, and in criminal or quasi-criminal cases by the court of Star Chamber. But, while abroad, the older criminal procedure was${}^{\\clubsuit}$wholly superseded by the new, in England a reformed edition of the older procedure held its ground. In the law of criminal procedure, as in other branches of the law, the judges of the king's court in the twelfth and thirteenth centuries, had applied their knowledge of the civil and canon law to the work of rationalizing and adapting old institutions and old rules to the new needs of their own time. They had thus devised a system of presentment by grand jury, written indictment, and trial by petty jury which combined the old idea that the individual and the community should take some share in initiating proceedings, with the new idea that the king as representing the state is immediately concerned with suppressing those serious crimes which break his peace; which combined also the new idea that the charge should be precisely formulated in writing, with the old idea that the trial should be public and the procedure oral.1 And when, in the course of the fourteenth and fifteenth centuries, Englishmen began to contrast their own system with that which was growing up elsewhere under the influence of the canon law, they began with some reason to regard it as the most valuable of all the privileges which the common law had conferred upon them.2 It was the system which the Parliaments of the fourteenth and fifteenth centuries proclaimed to be the only constitutional method of criminal procedure, when they protested against those newer methods which the Council and the Chancery were borrowing from the canon law.3 It was the system which in i536 they substituted for criminal procedure of the civil law which was used in the court of Admiralty.4

Footnote 1: Vol. iii 611-623.

Footnote 2: Fortescue, De Laudibus c. 22, 27-30; there is no doubt that Fortescue voiced the general opinion when he contrasted the humanity of the English with the crucly of the continental system, see the passage from c. 27 cited vol. iii 622.

Footnote 3: Vol. i 487.

Footnote 4: 28 Henry VIII. c. Ig; vol. i 50-551; vol. iv 260.

Footnote 5: Vol. ii 414-415; vol. iii 623.

$\\Lambda$ system so decply rooted in the affections of the people could not be very much mogtified, far less abolished, even by the strongest of the Tudor sovereigns. But the lawlessness of the fifteenth century 5 showed that it needed to be improved, controlled, and supplemented. This process was carried out mainly by means of adding to the older procedure certain of the ideas which were current in those new and effective codes of procedure with which the modern European states were ar

### Law in XVITH AND XVITH CENTS.

themselves ; and these additions came to a large extent through the Star Chamber. At the same time the strength of the nation's feeling that its rights and liberties were bound up with the maintenance of the criminal procedure of the common law, caused these additions to be very considerably modified in the course of their adaptation to English needs. I have already 'pointed out that in the sixteenth and seventeenth centuries, as in the twelfth and thirteenth centuries, the reception of foreign ideas did not lead to the introduction of a foreign system of law, but to the strengthening and improvement and enlargement of our own native system ;1 and this fact is, as we shall now see, nowhere so strikingly illustrated as in the law of criminal procedure. But to understand the effect which the English and the continental ideas had upon one another, I must begin by describing briefly the differences between the continental and the English system of criminal procedure at this period. I shall then describe the procedure of the Star Chamber ; and show how, as compared with the continental system, it was modified by the ideas underlying the system of the common law, and, conversely, how the continental ideas, which came through the Star Chamber, modified the common law.

Footnote 1: Vol. iv 285-286, 202-293.

(_a_) _The differences between the continental and the English system of criminal procedure.2_

Footnote 2: In dealing with this subject I have relied upon Esmein's history of Continental criminal procedure transfromed by J. Simpson for the Continental Legal History Series ; and the references are to the pages of this edition.

In describing the continental criminal procedure we can take the French development as typical. Ismein has said,3 " Nowhere had the forms become better settled, or the rules more clearly and firmly established. But, at the same time, nowhere had the severities of the system been more rigorously enforced, or the defence more rigidly hampered. For good as for ill, the system had been carried to extremes. One exception must be made, however, in regard to torture ; this was resorted to by Italy and Germany especially with a harshness exceeding that practised in France. One institution in particuhr, that of the public prosecutor, distinguished France from the neighbouring nations. Not that it was not also found abroad, but it had either been introduced by French influence, or it was imperfect and did not form, as in France, an essential part of the machinery of the procedure."

Footnote 3: Op. cit. 258.

- As early as the ninth century the church had allowed notorious crimes to be prosecuted without the necessity of an

## 1 IAW administered by Council. 171

But it was difficult to establish notoriety, and no person had an official right to prosecute.2 The latter defect was remedied by papal legislation of the late twelfth and early thirteenth centuries.3 The judge was allowed, on proof of ill fame, to prosecute officially the suspected person ; and he could proceed _per inquisitionen_. TIThe person thus prosecuted could be compelled to answer on oath the questions of the judge ;4 and this " inquisition " was from that time onwards a central feature of the canonical procedure, and of the criminal procedure developed from it. Once this procedure had been established it made rapid way. The injured person naturally preferred it, both because it was very much more effective, and because the bringing of an unsuccessful charge did not, according to the canon law, involve the prosecutor in the penalties which would have been inflicted on the accused if the charge had been proved.5 Technically he was not the accuser : he merely denounced the accused to the judge and so set in motion the inquisitorial procedure. The spread of this method of prosecution soon gave rise to another development--the rise of officials specially charged with the duty of denouncing offences to the judge, and of thus setting in motion the inquisitorial procedure ;6 and its efficacy was increased by the fact that in the thirteenth century torture was allowed to extort evidence.7 At first a considerable liberty of defence was allowed.8 But this liberty was gradually restricted, more especially in cases of heresy ;9 and these restrictions were not only imitated

### Law in Xvith and Xvith Cents.

but even made more severe when the procedure _per inquisitionem_ was adopted by the state, and made the regular procedure in criminal cases.

In the secular law this procedure _per inquisitionem_ could at first only be used if the accused consent.1 This was a similar rule to that which required the consent of the accused to a trial by pretty jury ; and, as in our law, the consent was often compelled by duress.2 But there was one exception to the rule which required the consent of the accused. The procedure could be used without the consent of the accused if he was caught red handed ; and it came to be thought that, if the guilt of the accused was so obvious that many witnesses were prepared to swear to it, it could also be applied, because the notoriety was equivalent to capture in the act.3 The judge, being thus "apprised" of the facts, could proceed by inquest--hence the name for this form of prosecution was the "aprise."4 This development was helped by the existence of the king's right to find out facts which affected his rights by inquest.5 The repression of crime had come, by the thirteenth century, to be regarded as a matter in which the king was chiefly interested. Therefore it was thought that he might apply this inquest procedure to all cases;6 and it was not long before the two forms of procedure--the "aprise" and the inquest--became merged.7 The inquest thus developed into a body of witnesses who, in accordance with the ideas of the canon law, could be questioned secretly and apart, and not, as in England, into a body of jurors.7 And, in accordance with these same ideas, the accused could be questioned on oath.8 The other developments which had occurred in the canon law soon made their appearance. The private accuser could make use of it by denouncing the accused to the judge;9 and soon a set of public prosecutors arose in the procurators of the king and the great nobles.10

Footnote 10: Ibid 99-too.

Footnote 11: Ibid 14-115--they appear at first not as 'direct parties, but as promoting the office of judge, as denunciators who set the judge in motion.

Footnote 12: Ibid 99-too.

Footnote 13: Ibid 14-115--they appear at first not as 'direct parties, but as promoting the office of judge, as denunciators who set the judge in motion.

It was not long before the canonical methods of taking evidence made their appearance. The witnesses were summoned by the court, and were questioned by the delegate of the judge in private. The delegate reduced the depositions to writing, and they formed the chief material upon which the parties and the judge proceeded at the hearing. With these canonical methods and rules as to

## 11 Law Administered by Council. 173

evidence came the use of torture. It may be that in certain exceptional cases some Germanic customs allowed torture ; 1 but it is clear that the rapid growth of this method of examination was due to the rules of Roman law which were adopted by both canonists and civilians ; for, as the new methods of trial were more complicated, they tended\* to increase the influence of the professional lawyers \[2\]. "Our jurists," says Esmein, " found in the pages of the Digest and the Code the custom of torture expounded by the great jurisconsults and regulated by the constitutions of the emperors. Such weighty authority was without doubt bound to cause partial forgetfulness of the odious nature of this mode of examination." 3 The king in that turbulent age found it necessary to use it to repress crime, and other jurisdictions soon followed suit. Moreover it satisfied two technical needs. In the first place the " aprise" could not proceed without very conclusive evidence or confession ; and so it was tempting, if a prisoner refused the inquest, to try to force a confession by torture. If he accepted the inquest torture was never at this period resorted to \[4\]. In the second place the civil and canon law required, in the absence of confession, such complete proof that the temptation to get a confession was increased. "The connection," says Esmein, " between the rigorousness of the proofs and the use of torture is destined to form a,vicious circle within which our old criminal procedure will revolve throughout its whole future existence." 5

Footnote 1: Esmein, op. cit. t08-trt. " lbid t06.

Footnote 2: lbid t13.

This new system of criminal procedure was not established without protest. At first a man convicted by the aprise could not be punished so severely as if he had been convicted by the accusation of a private person \[6\]. The nobility protested against the procedure by inquest in matters which affected their persons, property, or honour ; \[7\] and, for a time, the nobility succeeded in making good their claims \[8\]. But gradually the newer ideas prevailed and the procedure was made to press, not less, but more heavily upon the accused.

The introduction of the new system was helped by the fact that, in the fourteenth and fifteenth centuries, a distinction between " ordinary " and " extraordinary " procedure was established. In the latter form of procedure torture was allowed, secrecy became one of its dominant characteristics, and freedom of defence was more and more curtailed \[9\]. This extraordinary procedure was,Law in XVTH and XVTH CENTS.

as Esmein says, destined to be " the procedure of the future."1 At first indeed it was not the normal procedure--it was really extraordinary. It could not be employed when a private person was the accuser," or when the accused submitted to the inquest." But gradually these rules disappeared. It came to be used in all cases of serious crime, and the ordinary procedure by inquest fell into disuse.4 For some time, however, the accused was allowed considerable freedom in his defence. " Before sentence he could plead his cause or have it pleaded for him ; and he could also allege facts in justification and prove them by witnesses."" Moreover the court facilitated the proof by the accused of any facts--an alibi for instance--which he might get up in his defence.6 But gradually these safeguards disappeared. Under the Ordinances of 1498 and 1539 the characteristics of secrecy, torture, and restricted opportunities of defence, became the salient features of the procedure.

Footnote 1: Esmein, op. cit. rz6. " Ibid. 127.

Footnote 4: Ibid 132, 133. " Ibid 131. " Ibid 141. " Ibid 150. " Ibid 151, 160. " Ibid 151; art. rt62, cited ibid r59, says--" In criminal matters the parties shall in nowise be heard by:witnessel or agency of any third person ; but they shall answer by their own word of mouth for the crimes of whch they are accused."

The ordinary course of procedure under these Ordinances was as follows :--

First there was the information verified by the evidence of witnesses. This was submitted to the judge and communicated by him to the king's procurator.7 On his advice the judge either let the matter drop or summoned the party accused.8 In any serious case the accused was arrested and kept in prison during the whole of the subsequent proceedings,9 and was denied the assistance of counsel.10 The accused was then interrogated by the judge " immediately; carefully and assiduously," and his replies were reduced to writing.11 Unless the parties wished to get a decision as to the legal effect of the facts elicited by the interrogation, the next step was for the judge to decide whether to hear the case as an ordinary or an extraordinary action ; and on this matter the Ordinance forbate the accused to be heard.13 Generally the judge decided to hear the case by way of extraordinary action.13 The witnesses were then summoned anew to confirm the evidence which they had given on the information. Each witness was then confronted with the accused, who, then or not at all, must raise any objections he had to the competency of the witness.14

Footnote 10: Ibid r51; art. rt62, cited ibid r59, says--" In criminal matters the parties shall in nowise be heard by:witnessel or agency of any third person ; but they shall answer by their own word of mouth for the crimes of whchch they are accused."

Footnote 11: Ibid r51, 152. " Ibid 152-153. " Ibid 153. " Ibid 153. " Ibid 153.-154+

## I.Aw administered by council. 175

of the court made it difficult for him to do so. According to the canonical theory of evidence there was no need to bring witnesses to prove absence of guilt, as it was for the prosecution to establish the fact of guilt by bringing the proof required by the law. If they brought these proofs, he was guilty ; if they could not bring them, he was not guilty. All the accused could do was to adduce evidence of new positive facts inconsistent with guilt, e.g. an alibi, or the fact that a person supposed to be murdered was alive, or insanity, or self-defence. These facts must be pleaded,by the accused when he was first interrogated, and he must get the leave of the judge to prove them.1

Footnote 1: Esmein, op. cit. r55-r56--\* If the fact was not 'legally' proved by the witnesses brought by the prosecution, any proof on the part of the accused was said to be useless. If, on the contrary, the action should establish, by the requisite proofs, that the crime had actually been committed and that the accused was the perpetrator of _i._, he could only rebut the testimony by means of the objections which he had urged, or prove that these witnesses were @uborned, or, finally, offer certain positive facts, which formed his justification. 'These facts--called 'justificatifs '--were of two kinds'; some proved the innocence of the accused indirectly, but beyond dispute. Such were the alibi. . Others, without rebutting the facts established in the action, deprived the act of all criminality; for example, legitimate self-defence, or insanity. -. . Objections to the witnesses and justificat facts, therefore, were the only defences left to the accused; '' for similar and even more restrictive rules in Scotland, see Strephen, H.C.L., i 357-353--it appears that even proof of an alibi was not admitted.

The whole process was then submitted to the king's procurator. If the accused had >>pleaded no new facts inconsistent with his guilt the court was moved to make a decree for torture or final sentence.2 If he had pleaded such facts motion was made that he prove them; and then, if the judge allowed such proof, the witnesses were examined by the court in the absence of the accused, and their depositions were put into writing.3 The whole record was then submitted to the court.4 If the proof was not conclusive, but nearly conclusive, the court could order torture (_question priparaloire_) to extort a confession.5 If it was conclusive the court proceeded to sentence;6 and after sentence the condemned person could be tortured (_question priataloire_) in order to extract the names of his accomplices.7 Even the sentence of the court was not publicly pronounced.8

Footnote 2: Esmein, op. cit. r55-r56--\* If the fact was not 'legally' proved by the witnesses brought by the prosecution, any proof on the part of the accused was said to be useless. If, on the contrary, the action should establish, by the requisite proofs, that the crime had actually been committed and that the accused was the perpetrator of _i._, he could only rebut the testimony by means of the objections which he had urged, or prove that these witnesses were @uborned, or, finally, offer certain positive facts, which formed his justification. 'These facts--called 'justificatifs '--were of two kinds'; some proved the innocence of the accused indirectly, but beyond dispute. Such were the alibi. . Others, without rebutting the facts established in the action, deprived the act of all criminality; for example, legitimate self-defence, or insanity. -. . Objections to the witnesses and justificat facts, therefore, were the only defences left to the accused; '' for similar and even more restrictive rules in Scotland, see Strephen, H.C.L., i 357-353--it appears that even proof of an alibi was not admitted.

Footnote 3: Esmein, op. cit. r56, .

### Law in Xvith and Xvith Cen's.

procedure by the nation."1 The Ordinances which increased the severity of the procedure were, as he points out, passed at a time when States-General were still summoned, when therefore the voice of the nation could have made itself heard. He thinks that we must find the reason for the popular acquitSEC in this procedure in the fact that, " the people, emerging from the anarchy of the Middle Ages and from the great wars against the English ... felt above all else the need of security and peace. The newsOrdinances furnished a better assurance than any other law for the repression,of crime."2 We shall do well to remember this acquitSEC of the French nation when we come to consider the reasons for the undoubted popularity of the Star Chamber in the sixteenth century.3 It will help us to understand both why it was popular, and why it was able to borrow some of the features of this continental procedure. But we must first indicate a few of the most salient differences in the English procedure which had been developing contemporaneously with the French procedure which has just been described. Both these very different systems influenced the procedure of the Star Chamber; and, through the procedure of the Star Chamber, some of the continental ideas were introduced into the common law.

Footnote 1: History of Continental Criminal Procedure 165.

Footnote 2: Esmcin, op. cit. 166.

Footnote 3: It may be notice:"in 1614 a bill was before Parliament which proposed to punish by a death by torture any attempt upon the king's life, Hist. MSS. Com. 3rd Rep. 13.

With the medieval history of the criminal procedure of the common law I have already dealt.4 We have seen that in the course of the thirteenth and fourteenth centuries the indictment had practically superseded the appeal;5 and that this meant that a true criminal procedure had emerged. But we have seen that this procedure by way of indictment had inherited one important characteristic from the procedure by way of appeal. It was accusatory, not inquisitorial. That meant that the procedure was regarded as a piece of litigation between the crown and the accused, to be tried by judicial processes analogous to those used in an ordinary action; and not as an inquiry into the guilt or innocence of a suspected person conducted by officials. Hence similar rules of procedure and pleading, and the same public trial by jury, were applied to the trial of a suspected person, as were applied to the trial of an ordinary action. The survival of these ideas had prevented the growth of that secrecy, and those restrictions on the accused's powers of defence, which the abandonment of these ideas had brought into foreign systems of law.6

Footnote 4: Vol. iii 597-643.

"Then as now the official mind cared more for the working of the system which it had established, and for the production of

## 11 Law administered by council. 177

the results which it thought that it ought to produce, than for any consideration of justice to the particular individual. Then as now the procedure of judicial courts designed to do justice to individuals produced results disconcerting to the official mind. Fortunately for England the most essential rights of Englishmen were in the Middle Ages and, to a large extent, in this period, asserted in and applied by judicial courts which acted under judicial forms. I have already indicated the beneficial results produced by this phenomenon in the sphere of government central and local:1 in the sphere of criminal procedure the beneficence of these results is no less striking. In the sphere of government they made the law supreme: in the sphere of criminal procedure they gave to an accused person the benefit of the rules which the court applied in judicial proceedings to ascertain the truth. Criminal procedure, like the system of local government, had been rationalized by the strong kings of the twelfth and thirteenth centuries, and by the statesmen and lawyers of the fourteenth and fifteenth centuries. The result was that in both cases the medieval systems were so strengthened that they were able to stand their ground in the sixteenth century.

Footnote 1: Vol. iv z36, r64-r66, x8r, 188.

In England, therefore, there was no need to introduce the inquisitorial procedure of the canon law. In the course of the fourteenth and fifteenth centuries the humanity of the English system began to stand out in striking contrast to the continental system; and the records of Parliament show that Englishmen appreciated its advantages at their true value.2 A system which had come to be completely identified with the maintenance of liberty and the common law could not be rooted out. As we have seen, any other system was regarded with dislike and suspicion. But there was no doubt that in the sixteenth century it badly needed reforms, if it was to do its work amidst changed social conditions. That juries were easily corrupted and intimidated was only too evident. They were ceasing to be able to give a verdict from their own knowledge, and as yet there was no law of evidence to guide them in weighing the testimony of the witnesses which gave evidence before them. We have seen that the legislature recognized that the machinery of the grand jury by itself was unequal to the task of discovering and presenting all the criminals that should be brought to justice;3 and that it had provided for a preliminary inquiry before justices of the peace, who, after such inquiry, could commit the accused to prison till he could be presented by the grand jury and tried.4Law in XVITH AND XVITH CENTS.

In other directions, however, the legislature did very little to reform the shortcomings of the medieval criminal procedure.1 Any reforms must have taken the form of arming the government with fresh powers against the criminal; and it would have been difficult to induce Parliament to agree to a set of "changes which would have aroused popular apprehension. But an opportunity was afforded to the courts to make some changes by the lack of precise rules as to the conduct of prosecutions. The legislature had prescribed a preliminary examination; but it had not stated precisely how it was:to be conducted. No definite rules existed as to the mode in which evidence should be taken, or as to the mode in which the jury might arrive at its verdicts. It was not even certain whether the prisoner could call evidence for the defence. The king, by virtue of his prerogative, had certain privileges, not always very clearly defined, in the conduct of cases to which he was a party. It is clear that such uncertainties as these gave an opportunity for innovation. It was impossible to transplant the inquisitorial procedure of continental codes; but it was possible to take some hints from the procedure of the Star Chamber, which had to a certain extent been influenced by the continental ideas. To understand the nature of this influence we must look at the salient features of that procedure.

Footnote 1: Vol. iv 531-532. Vol. i 399-404.

Footnote 2: Below 284-287; see generally on this topic Baldwin, The King's Council, 280-304; Select Cas:s before the Council (S.S.) xxxx-xlv.

Footnote 3: Hudson, op. cit. 150; for some early specimens see Select Cases in the Star Chamber (S.S.) i r, 6, 15 54.

(b) The Procedure of the Star Chamber.

In outline the ordinary procedure of the court of Star Chamber in the sixteenth century was very similar to that used by the court of Chancery. Council and Chancery had, as we have seen, worked together in the medieval period.2 Therefore their procedure in the Middle Ages was in substance identical. I shall describe the medieval procedure of the Chancery when tracing the earlier history of equity.3 It will therefore be sufficient if at this point I describe the procedure of the Star Chamber as it existed during this period.

Footnote 2: Hudson, op. cit. 157; at this period the formation of the definite order of King's Counused was only in its initial stages, see vol. vi c. 8.

The proceedings before the Star Chamber began by a Bill "engrossed in parchment and filed with the clerk of the court." It must, like the other pleadings, be signed by counsel; and the counsel in Lord Keeper Bacon's time, must have attained the rank of double reader or be one of the king's counsel.5 But, when Hudson wrote, the requirement of status was not insisted on.6

## 11 Law administered by council. 179

However, counsel were obliged to be careful what they signed. If they put their hands to merely frivolous pleas, or otherwise misbehaved themselves in the conduct of their cases, they were liable to rebufe,1 suspension,2 a fine,3 or imprisonment.4 The Bill must state the matters charged certainly 5 and truly.6 There must be certainty both as to the place and as to the time of the matters alleged.7 Though the court did not show the same strictness in its requirements as to the form of a Bill as the courts of common law showed in their requirements as to the form of an indictment,8 yet an offence must be shown on the face of it. Thus " in the earl of Northumberland's Case against Burr for forging and publishing a deed, the publication of the forged deed was proved against the defendant; yet because he was not charged to have published it knowing it to be forged, which makes the offence in the publisher and is the apt legal charge, the defendant was dismissed."9 The conclusion of the bill must pray process against all the defendants, and must name them by their right names,10 Unless these rules were complied with a motion to dismiss the Bill would succeed; and the plaintiff would be obliged to start again.11

Footnote 1: In Les Reportes del Cases +3, the Lord Keeper said to counsel, " You must go to schole to leanne more wytite, you are not well advised, you forgotte your place, and to be plaine it is a lye "; cp, ibid rz7, rz8; Stephen, H.C.L., i 34r.

Footnote 2: Les Reportes del Cases +3--

### Law in Xvith and Xvith Cents.

might be demurrers for insufficiency in the form of the Bill,1 or in the matter of the Bill. " Insufficiency of matter is alleged, sometimes, that the matter in charge tended to accuse the defendant of some crime which may be capital; in which case _nemo tenter produce seipsum;_ or upon a penal law, where he is to forfeit his goods : sometimes, that the matter is proper for ecclesiastical cognizance, as defamation or such like : sometimes, that it is pretty or trivial, and so not worthy the dignity of the court."2 - Proof of a plea or demurrer meant that the bill was dismissed with costs4 If it was not proved the defendant was ordered to make a better answer.4 The answer must either confess the charge made by the Bill, or deny it, or justify by reason of some title or provocation.6 It " must be engrossed in parchment and subscribed by counsel, and so brought to the clerk of the court, who is to give the defendant his oath ; which is, that so much of the answer as containeth his own act and deed, he knoweth to be true ; and so much as containeth another man's, he suposeth to be true ; and he swareeth likewise, that he shall make true answers to such interrogatories as shall be ministered unto him concerning that cause."6 The answer was then delivered to the plaintiff's attorney to be copied for him.7

Footnote 1: Hudson, op, cit. 164-165; Les Reportes del Cases 91; apparently the time of the court was sometimes wasted by frivolous demurrers, ibid 143.

Footnote 2: Hudson, op. cit. 164 ; for the history of the maxim "nemo tenter, etc.," see Pt. II, c. 7 SS 1; but it was not applied when the procedure was extraordinary, below 184-187.

Footnote 3: Ibid 165.

Footnote 4: Ibid 166; for a specimen of an answer see Select Cases in the Star Chamber (S.S.) i 47, 48.

Footnote 5: Ibid 167.

Footnote 6: Hudson, op, cit. 167 ; Hudson explains, ibid r67-168, that all, even the lords of Parliament must answer on oath, though they had attempted to set up a special privilege against this ; " but if any person shall refuse to answer, being imprisoned, he shall have day given him, and be close imprisoned ; and if that will not prevail, he shall, by another day, have the bill taken _from confesso_ ; or sometimes he is kept with bread and water, as young _Booth_ was."

Upon the answer the plaintiff drew up interrogatories which the defendant must answer.8 It would seem from Hudson's account that, in spite of the efforts of Bacon and Egerton, the power to administer these interrogatories was much abused.9 The defendant was examined privately, and must reply without the help of counsel.10 Moreover Egerton advised those who took these examinations not to allow either the defendant or the witness the help of writing to refresh their memories.11 Speaking

## 1 Law administered by council. 181

of the manner of taking the examination Hudson says,1 "Neither may he or his counsel have any sight of the interrogatories to give him any directions, but the examiner readeth an interrogatory, and required an answer to the same, and then readeth another; by reason whereof if he affirm a falsehood at first he is taken in an error, whereby he is compelled to reform his error; and this examination may be in any part amended by him before he putteth his hand thereto, whereby he both acknowledge it to be that by which he will abide." These examinatioils were usually conducted by four commissioners who, in Hudson's day, were often chosen by the parties.2 In earlier days, and probably in cases of cases of public importance in Hudson's day, they were selected by the court.3 The examinations, when complete, were engrossed and returned to the court under the seal of the examiners, together with any documents (called "exhibits") which had been put in evidence.4

Footnote 1: Hudson, op. cit. 170-171. 2 lbid t82-t83. 3 Ibid t85; for some specimens of these interrogatories see Select Pleas in the Star Chamber (S,S,) i 89, 177; for some specimens of the examinations taken see ibid 17, 270, 271. 5 Vol. i 450-457; cp. Select Cases in the Chancery i 26, 52, 53, 89. 6 Hudson, op. cit. t89-t92; Select Cases in the Star Chamber (S,S,) i 66, 67, 73, 79, 117, 232, 234. 7 Hudson, op. cit. t91. 8 Pt. 1. c. 7 SS 3. 8 Pt. 1. 5 7 SS 3. 9 "The replication itself is but the avoidance or denial of the answer and maintenance of the bill, to draw the matter to direct issue, which may be proved or disproved by testimony; but if anything be omitted out of the bill material to change the defendant, although it be alleged by way of replication, it is not pertinent nor shall any defendant be convicted thereupon; by reason whereof there is so little regard of the replication, as that they are only drawn by clerks, without any regard whether there be any issue joined in the case or not, no counsel being made privy or acquainted therewith; insomuch as if many causes were well looked into when they come to hearing, the parties would be found not to have joi... 3 "Itudson, op, cit. 191. 19 For some specimens of these examinations see Select Cases in the Star Chamber (S,S,) i 68, 69, 80-88, t84-t87, 193-t98. 4

### Law in Xvith and Xvith Cents.

by an examiner specially appointed, or by commissioners in the country.1 Like the commissioners appointed for the examination of the defendant, they could be appointed by the court or chosen by the parties.2 They examined each witness apart from the others and in private.3 All witnesses must be sworn, even peers of the realm.4 Each witness4 must be produced before the attorney of the other side that he might be identified, and that the attorney might be able to get him examined on his own behalf." The court of Star Chamber did not discourage volunteer witnesses : it welcomed and protected them. The other party could not examine in order to discredit them, because if this were allowed it would discourage them from coming forward to testify.6 Any exceptions to the witnesses must be moved in open court.7 Probably for a similar reason they could not be compelled to incriminate themselves, or to answer any question scandalous to themselves.8 As a rule a person could not be compelled to testify;9 but it is clear that on grounds of public policy the court would compel them to testify by committing them to prison if they refused.10

## 1 Law administered by council. 183

The court did not see the witnesses, and therefore it was not easy to form a conclusion as to their credibility.1 The commissioners could not adjudicate upon the question whether a witness was incompetent.2 This must be reserved to the court, which settled the point at the hearing; 3 so that in case an exception to a witness was upheld by the court the time and labour of the commissioners were thrown away. Hudson was by no means blind to these deficiencies of the established practice of the Star Chamber in the taking of evidence. But it is clear from his account that many of them arose very largely from the fact that the law of evidence was as yet in an experimental stage. The common law courts were only very gradually feeling their way to the establishment of a law of evidence.4 Therefore neither the Star Chamber nor the Chancery could expect to find much guidance in the common law. On the other hand the long treatises of the civilians were so copious that they puzzled judges and practitioners whose knowledge of the civil law was slight.5 It became necessary, therefore, for these courts to make their own rules; and we shall see that some of these rules have had a considerable influence upon the making of our present law.6 Here it will be sufficient to give one instance. The earliest statement of the rule that a declaration by a dying man as to the cause of his death is admissible evidence in a trial for murder or manslaughter is to be found in a dictum of Coke in the Star Chamber.7

Footnote 1: It is a great imputation tq our English courts, that witnesses are privately produced, and how base or simple so ever they be . yet they make as good a sound, being read out of paper, as the last," Hudson, op, cit, zoo,

Footnote 2: Ibid z03--unless it appeared that the witness was a party to the suit or an idiot.

Footnote 3: Ibid z15.

Footnote 4: Pt. II, c. 7 SS 1.

Footnote 5: Hudson after stating some rules as to the competency of witnesses, as to the method of getting them before the court, and as to the mode of examination, says that he has spent more .ime upon this subject, " for that the books of common law do yield small direction for examination of witnesses, and the civilians are therein far too copious."

Footnote 6: Pt. II, c. 7 SS 1.

Footnote 7: Les Reportes del Cases 3r8-"If a man be robbed or wounded and he writes down a perfect description of the men whereby they are known and so dies, this will be good evidence to convict them "; Stephen, H.C.L. i 447, 448 thought that the rule was only about too years old.

Footnote 8: Hudson, op. cit. 2IO-2IT.

Footnote 9: Ibid z11; Reportes del Cases 2r6, 2II; vol. iv 2r8 n, 2.

The next stage of the case was the publication of the answers of the defendant and the witnesses. After publication no more witnesses could be sworn except for very special reasons.8 One of these reasons might be a desire of the court to hear more evidence. It was then said to be taken _ad informandum conscientiam judicius_,9 as in the continental practice. Then was the time to bring forward any objection to the evidence taken or

### I.aw 1n Xvith and Xvith CENTS.

as to the conduct of the examination.1 After publication, the plaintiff, by an order of the court made in 1576, must within three terms, have the case set down for hearing.2 The hearing was, as we have seen, in public ; 3 and both parties could have the assistance of counsel.4 After the reading of the evidence and the arguments of counsel " the lords proceed to their sentence, which is always delivered in great silence, and without any interruption, the inferior beginning, and so in order every man."5 The views of the majority prevailed. But in case of equality of voices it seems to have been admitted, after some controversy, that the presiding judge--the-Lord Chancellor or Lord Treasure--had a casting vote.6

Footnote 1: Hudson, op. cit. 215.

Footnote 4: Hudson, op. cit. 222.

Footnote 5: Ibid 215, 216.

Footnote 6: Ibid 30, 31, 223, 224; Les Reportes del Cases 4, 5, 320; Select Cases in the Star Chamerer (S.S.) i www.n. 2; Proctor's Case (1015) t2 Co. Rep. at p. Iig.

In the ordinary procedure of the court of Star Chamber we can see the influence both of the common law and of the continental ideas. In the manner of pleading, in the open hearing, in the liberty of defence, in the permission to employ counsel at all stages of the proceedings, we see the influence of the common law. In the obligation of the defendant to answer, and to submit to interrogatories on oath, in the secrecy of the examination of both defendant and witnesses, and in the manner of hearing the case on this written evidence we can see continental influences. But the ordinary procedure was not the only procedure which the court used. For extraordinary cases extraordinary methods of procedure must be employed; and it is in these extraordinary cases that the analogy with continental methods becomes closer. We may recall the fact that it was precisely this distinction between ordinary and extraordinary cases which had appeared at an earlier date on the continent; that the extreme harshness of this procedure was largely due to the fact that the extraordinary procedure had gradually become the ordinary procedure; and that familiarity with and acquiescence in the harshness of its methods had made it possible to increase progressively that harshness.7

Footnote 7: Above 173.175.

We have seen that IIu:Ison admits'the existence of this extraordinary procedure, but that he deprecates its use in any but extraordinary cases.8 But from other sources we can see that it was used, and that it reproduced two of the most dangerous features of the continental procedure. In the first place torture was freely used, to extort either a confession, or the disclosure of further information. In the second place the court considered

## 1.1 Law administered by Council, 185

that it was free to disregard not only the ordinary rules of procedure, but also the ordinary rules of law.

(i) That torture was used all through this period is conclusively proved by the Acts of the Privy Council.1 Jardine, in his "Reading on the use of Torture in the criminal law of England " gives numerous illustrations which show that, down to 1640, it was used, not only in the case of persons charged with offences against the safety of the state, but also in the case of persons charged with serious crimes having no reference 'safety of the state ; and that it was used, not only to extort confessions, but also to obtain a disclosure of accomplices.2 But it is also clear from the works of Fortescue,3 Smith,4 and Coke,5 and from the resolution of the judges in _Felton's Case_,6 that the use of torture was wholly contrary to the common law. As Esmein has said, " torture is out of place in a purely accusatory procedure and in a free country ;" 7 and, as we have seen, the criminal procedure of the common law was essentially accusatory, while England was universally regarded as a " dominium politice et regale." Further, all these writers, though they say it is unknown to the common law, knew that it existed, and in some cases assisted in its application. Fortescue does not say that it did not exist in England. Smith (much against his will) was present at its inflection.8 Coke, while attorney-general, had prepared documents which authorized its application ;9 and, in _The Counters of Shreivshary's Case_, he seems almost to admit its legality.10 It is clear also that after the resolution of the judges in _Felton's Case_ it continued to be inflicted.11

Footnote 1: See e.g. Nicolas vi _xlvi-xlviii_; Dasent iv 71, 201, 234; v 235; xiii 37, 399, 407; for a case on the Pipe Roll of 24 Hy.

Law in XVITH AND XVIII CENTS.

What then is the explanation of this contradiction? We get the key to its solution in the manner in which the question was put to the judges in _Felton's Case._ The king, Rushworth tells us,1 asked the judges " whether by the law he might not be racked, and whether there were any law against 't, _for_ (\_said the king) if it might be done by law, _hc would not use his prerogative in this point._" It is clear that the use of torture, though illegal by the common law, was regarded as legal if inflicted under the autheity of that extraordinary power of the crown to supersede the common law on occasions of emergency, which was admitted to exist by' most people in the time of the Tudors, and by very many in the earlier Stuart period. This is the view which is taken by Jardine,2 Spedding,3 and Gardiner;; and it seems to be obviously right. In other words, torture was used, and its use was justified in England, as its introduction and use was justified in France, on the ground that it was an extraordinary proceeding which the extraordinary power of the crown could justify.5 And there are signs that in England, as abroad, its application was to some extent regulated by reference to those rules of proof which, according to the continental criminal procedure, must be satisfied in order to secure a conviction.6 At any rate it is certain that civilians, who could not be ignorant of the rules of that procedure, were often instructed to be present at its inflection in terms which recall the rules of the civil law.7

Footnote 1: Op. cit. 650 ; Jardine, op, cit, 60-62 throws some discredit on Rushworth's narrative; but Gardiner, History of England vi 359 n. 2 believes that it is correct--as he says, " the position Charles was in after the grant of the Petition of Right would make him shy of using his prerogative unless he felt himself to be unquestionably justified in doing so."

Footnote 2: Op. cit. 59, 60--$!

## IAW Administered by Council. 187

On the other hand, the continental rules of proof were not so strictly applied here as on the continent; and that led to a capriciousness in the use of torture which Selden notes as peculiar to the English practice.1

Footnote 1: "The rack is used nowhere as in England. In other countries 'tis used in judicature, when there is a _semi-pleau probatio_, a half proof against a man; then to see if they can make it full, they rack him if he will not confess. But here in England they take a man and rack him I do not know why or when ; not in time of judicature but when somebody bids," Table Talk (Id. Reynolds) pp. 184, 185.

(ii) The same extraordinary power which could order the use of torture could equally dispense with the ordinary rules of procedure and the ordinary rules of law. And in spite of Hudson's views that \*these extraordinary powers ought to be used only occasionally, in spite of his assertion that most of the ordinary rules of procedure were in all cases binding even upon the Attorney General,2 we can see from the Council records 3 and from Hawarde's reports, that the court was quite as ready on a suitable occasion to imitfuc the continental practice, and strain every point against the accused, as it was ready to imitate the continental theory and practice of torture. Thus in 1602 the Lord Keeper is reported as saying he would make a certain order, " even it be not the course of the court, for in such great cases, in which there was great mischief, and it was so necessary for the public good, a precedent was not necessary to direct them, but they could make an order according to the necessity and nature of the thing itself."4 In 1603 Cecil said, "the king's justice is ordinary or extraordinary ; and to proceed at the discretion of His Majesty's Committee of State is extraordinary and warranted by the statutes."5 In 1606 the Lord Chancellor said, "K.xorbitant offences are not subject to an ordinary course of law."6 Hudson himself tell us that, in a case which affected the state, the Lord Chancellor had imprisoned certain witnesses who refused to give evidence, though he had himself admitted that this would not be done in ordinary cases ;7 and it is quite clear that the accused was not allowed to refuse to answer by invoking the privilege against self-crimination, which he possessed in ordinary cases.8_Liburn's Cuse\_ (1637), which, as we shall see, had eventually a good deal to do with establishing this privilege in our modern law, shows that, at this period, the court, if it saw fit, would disregard it.9

Footnote 2: "Op. cit. 137 ; vol. i 501.

Footnote 3: 4: 4: 5: 6: 7: 8:

## 18 Law in Xvith and Xvith Cents.

"Schola Reipublicac." We shall now see that the common law courts and the common law, though to a certain extent they influenced their schoolmasters, in very many respects showed themselves apt pupils.

_The influence of the common law upon the procedure of the Star Chamber, and the influence' of the procedure of the Star Chamber upon the common law._

_._ We have already seen that we can trice the influence of the comma law in the publicity of the hearing, in the methods of pleading, and, to a certain extent, in the methods of examining the defendant and witnesses adopted in ordinary cases.1 But probably it is the restriction of the jurisdiction of the court to offences under the degree of capital which is the most striking instance of the influence of the common law. This meant that all cases of treason or felony were beyond its scope unless the crown was content to treat them merely as trespasses ;2 and we shall see that this limitation imposed upon the Star Chamber a procedure which was very much more favourable to the accused than either the continental procedure, or the procedure used in the courts of common law in cases of treason or felony.

Footnote 1: Above 156, 179-18o, 181, 181-183.

It is, as we have seen, probable that this restriction upon the jurisdiction of the Star Chamber was due to the Parliamentary agitation of the fourteenth and fifteenth centuries against the extension of the jurisdiction of the Council.3 Parliament contended that the Council had no jurisdiction over freehold, or over crimes punishable capitally, i.e. over treasons and felonies. In support of the latter restriction it relied upon an (historically) false interpretation of the thirty-ninth clause of Magna Carta (1215), which it attempted to fortify by statutes and petitions.4 Though none of these statutes or petitions clearly barred the Council from the exercise of this jurisdiction, the feeling that such cases should be left to the common law was so strong that the government was compelled to yield to it. Any attempt to give the Council or Star Chamber jurisdiction in such cases would probably have provoked rebellion. Such an attempt would certainly have been declared to be contrary to Magna Carta and in subversion of the common law ; and in the Star

## 11 Law administered by council. 189

Chamber itself breaches of Magna Carta and deliberate departures from the common law were not regarded with favour.1

Footnote 1: In 1595 certain acts of Sir W. Raleigh as Lord Warden of the Stannaries were said to be contrary to Magna Carta, and it was affirmed that the common Law was "the surest and best inheritance that any subject hath, et quit perde ceo perde tout, Hawarde, Reporters del Cases 96. $\\bullet$

We should remember also that the feeling that the more serious crimes should be tried by the older procedure was not confined to England. Esmein tells us that, when the inquisitorial procedure was being introduced into France, it could not at first be applied to the more serious crimes.2 But in France the older procedure was tob archaic to hold out permanently aggin${}^{\\ast}$. ${}^{\\ast}$.

## 190 Law in XVith and XVith CENTS.

government had no standing army and no force of police. It was exposed to intrigues from without and to sedition from within. "The state was always in danger, the government always battling for its own life and the safety of society, the morrow always gloomy for the success of their cause," 1 Thus the state trials of the period were regarded, not as impartial enquiries into the guilt or innocence of a prisoner, but as incidents in the "e.

## 1 Law administered by Council 191

released on bail.1 When bail was refused, the prisoner was kept in prison till his trial with no means of preparing his defence.3 We have seen that it was becoming customary to issue warrants for the arrest of persons suspected of treason or felony on the application of anyone who could show good ground of suspicion ;4 and the courts were quite ready to hold that a commitment to prison " per speciale mandatum regis" was a sufficient ground for refusing to release "a prisoner on a writ of habcas corpin.4 Further, we have seen that statutes of Mary's reign required the magistrate to examine the prisoner inquisitorially, and to take the evidence of those who brought him.5 The magistrates interpreted their powers widely. They actively got up the case against the prisoner, not only by questioning him and the witnesses against him, but also by searching for evidence against him.6 We have seen that these examinations were conducted secretly, and that the evidence was communicated to the prosecutor and the judge but not to the prisoner.7 It appears from Smith's account that the results of this examination of the prisoner and the witnesses played a very important part at the trial.8 In important cases in which the state was affected these examinations were conducted by the Council or by the judges." In such cases they formed, as Gardiner has said,10 the real trial ; and it,was, as we have seen, in these cases that torture was freely employed. If we look at the way in which the increased powers of detention, and the new powers of preliminary examination were used, we cannot help seeing that the manner of their use was influenced by the continental ideas. No doubt the example and the encouragement of the Council and Star Chamber helped to teach the ordinary justices of the peace to use their new powers in this way--a lesson which tends to the magnifying of the office of an official is somewhat easily learned. The justices were generally ready enough to hunt down and examine criminals. They could not torture them ; but there was very

### Law in XVITH AND XVITH CENTS.

little law as to the kind of pressure which might or might not be applied to make them speak.1

Footnote 1: See Elizabeth Rogues and Vagabonds (Oxford Historical Lictrary Studies vol. i) 38-39 for a tale from Harman of how he and a surgeon compelled a pretended dumb man to speak--\* he had him into a house and typed a halter about the wrests of his hands and hoyed him up over a beame, and there dyd let him hang a good while; at the length, for very paine he required \_sor God's sake to let him down."

Footnote 2: This goes back to Anglo-Saxon days, see vol. i) i ro6-i7; it is recognized in Y.B. 30, 37 Ed. I, (R.S.) 530; and it had attained its modern form in Y.B. 9 Ed. IV. Pasch. pl. 4--\*_Eit nota_ que le defendant en endictment de leony n'avera counsel vers le Roy s'il ne soit matter en ley: mes en appel auter est."

Footnote 3: Third Insist. 29--\* The true reasons of the law in this case are: First that the testimonies and proofs of the offence ought to be so clear and manifest, as there can be no defence of it. Secondly the court ought to be instead of counsel for the prisoner, to see that nothing be urged against him contrary to law and right."

Footnote 4: Thayer, Evidence i57 n. 4, citing Throckmorton's Case (1554) I S.T. 869, 882, and Udal's Case (r590) I S.T. 1271, r281, r304; he points out that neither Smith nor Staunford say anything of witnesses for the prisoner.

- Thayer, Evidence i60 n., citing Tyndall's Case (r632-r633) Cro. Car. 291.
- Stephen, H.C.L. i 350.
- Vol. i 334-335: vol. iii 648-650.
- Vol. i 335.
- As Gardiner says, op. cit. i zg, r26--
- When the previous depositions formed almost, if not entirely, the whole of the evidence, a jury would be likely to attach considerable weight to the mere fact that the prisoner had been committed for trial."
  1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1.1 I.1.1.1.1 I.1.1.1.1.1 I.1.

### Law in Xvith and Xvith Cents.

was wholly unknown to the common law of this period. It is not until after the Restoration that this privilege was recognized. All through this period the prisoner was closely examined by the magistrate before the trial, and by the judge and prosecuting counsel at the trial.1

Footnote 1: We have seen that the use of torture, though illegal by the common law, was justified by virtue of the extraordinary power of the crown, which could, in times of emergency, override the common law.2 We shall see that Coke in the earlier part of his career admitted the existence of this extraordinary power,3 He therefore saw no objection to the use of torture thus authorized.4 But we shall see that his views as to the existence of this extraordinary power changed, when the constitutional controversies of the seventeenth century had made it clear that the existence of any extraordinary power in the crown was incompatible with the liberty of the subject.5 It is not surprising therefore, that, in his later works, he states broadly that all torture is illegal." It always had been illegal by the common law, and the authority under which it had been supposed to be legalized he now denied. When we consider the revolving brutality of the continental criminal procedure,7 when we remember that this brutality was sometimes practised in England by the authority of the extraordinary power of the crown, we cannot but agree that this single result of the rejection of any authority other than that of the common law is almost the most valuable of the many consequences of that rejection. Torture was not indeed practised so systematically in England as on the continent; but the fact that it was possible to have recourse to it, the fact that the most powerful court in the land sanctioned it, was bound sooner or later to have a demoralizing effect upon all those who had prisoners in their power." Once torture has become acclimatized in a legal system it spreads like an infectious disease. It saves the labour of investigation.9 It hardens and brutalizes those who have become accustomed to use it. We

**I.AW ADMINISTERFD BY COUNCII. 195**

shall see that Coke, more than any other single man, helped to secure the victory of the principle that the common law is supreme in the state.${}^{1}$ To him therefore we must chiefly give thanks for preventing the progressive demoralization of our criminal procedure, by making the use of torture legally impossible.

In these various ways the criminal procedure of the comm in law was, during this period, influenced by the continental.:dc. In: It seems to me that, though these ideas were not and could not be applied in the Star Chamber, the Council and the Star Chamber had some influence in gaining the acceptance of the common law for some of them. Some at least of the members of the Council and Star Chamber were acquainted with them. The judges were to a large extent directed and controlled by the Council. All classes agreed that a stern criminal law was necessary to insure the safety of the state, and the security of life and property. We cannot wonder therefore that some of the rules of a procedure, which was in all its parts designed to secure these objects, should be copied. Fortunately it was not possible to copy these rules in their entirety. But enough was copied to give the criminal procedure of this period a very bad name among historians who have compared it, not with the contemporary continental criminal procedure, but with the criminal procedure of our own times. It is clear that the former standard is the fairer of the two. Tried by this standard, or even by the standard of the continental criminal procedure of modern times, it was, in the opinion of Stephen,${}^{2}$ conspicuously fair to the accused. It is true that the prisoner was prevented from calling witnesses and preparing his defence; that he was deprived of the help of counsel, and repeatedly questioned both before and during his trial. It is true that torture was administered in some cases to make him disclose what he knew; and that the court did not start with any presumption in favour of his innocence. But the trials were at least public, and the prisoner was allowed to make what statements he liked. " His attention was pointedly called to every part of the case against him, and if he had a real answer to make he had the opportunity of bringing it out effectively and in detail. It was but seldom that he was abused or insulted ... the real point at issue was usually presented to the jury not unfairly."${}^{3}$ Obviously this public oral trial presented many more opportunities to a prisoner than the secret enquiry based on written depositions, which, on the

### 196 Law in Xvith and Xvith Cents.

continent, had taken the place of a trial.1 Both the common law courts and the Star Chamber sometimes professed to believe in the maxim that it is better to let many guilty escape than convict one innocent person;2 and we have seen that this belief had been translated by the common lawyers into concrete rules of procedure and pleading which gave, as they were intended to give, many advantages to the accused.3 No continental criminal event could ever have professed such a belief--their whole procedure was based upon the opposite view. Though we condemn this view, it is only fair to those who held it to remember that, as late as the eighteenth century, it was approved by no less a man than Paley.4

Footnote 1: Smith, De Republica Anglorum, Bk. II. c. 26, specially notes the contrast between the continental procedure and the public and oral character of the English procedure.

Footnote 2: Fortescue, De Laudibus c. 27, cited vol. iii, 62o; " it was well sayde by them that it were better to acquire twenty that are guytlie than condempne one Innocente," Hawarde, I.es Reporters del Cases 32o.

Footnote 3: Vol. iii 62o.

Footnote 4: Principles of Moral and Political Philosophy ii 31o, cited J. Pollock, The Poplish Plot 303.

Footnote 5: H.C.L. i 355.

Footnote 6: Hictory of England i i24, r25--' We live in days when, happily, it has become almost impossible to conceive of a trason which should really shake the same thing.

There is one lesson which can, I think, be learned from the history of the development of the continental and the English criminal procedure of this period. We have seen that the manner in which the accused was either deprived of or hampered in his liberty of defence, and the systematic use of torture, which make the history of this branch of the law one of the most revolting episodes in the history of mankind, were not only tolerated, but even applauded by a large body of public opinion. We have seen that they were applauded because the government was so weak and its enemies were so strong that it was felt, not without reason, that it must take every advantage of its enemies. It was, as Stephen has said, " not strong enough to be generous."5 It would seem to follow, therefore, that the maintenance of a strong government and of habitual respect for the law are the conditions precedent for the existence of a criminal procedure which is fair to the accused. If a government once allows any body of men to become so strong that they can defy the law with impunity, if by its conduct it destroys that instinctive respect for the law to which civilized nations have painfully attained, it will be obliged, in order to regain its lost authority, to resort to methods similar to those, which were found to be necessary in the sixteenth century. A nation cursed with such a government will begin to fear its criminals; and fear, as Gardiner has said,6 is the parent of cruelty.

## 1 Law administered by Council. 197

But we must return to the court of Star Chamber. We shall now see that its influence upon the substantive law of crime and tort was similar in kind to its influence upon the criminal procedure of the common law ; but that that influence was in some respects more direct and more permanent in its character.

(ii) _The influence upon English law of some of the substantive rules of law enforced **iv** the Star Chamber._

I have already dealt with the new principles of public law which were enforced by the Council and Star Chamber. We have seen that they tended to introduce **a** closer control of the servants of the crown, and a set of new ideas as to the relations between the crown and **iv**s servants.1 I have also dealt with the manner in which the law as to forgery and perjury was developed by the Star Chamber.2 Here I must indicate the manner in which it developed in a similar manner the law as to certain other criminal offences under the degree of felony. We have seen that, at the latter part of the mediaval period, the delictual aspect of trespass had been developed by the common law at the expense of its criminal aspect ; and that in consequence the criminal law badly needed to be strengthened.3 This was apparent even in the mediaval period from the cases which came before the Council.4 With the manner in which it was strengthened by the legislature I have already dealt.5 We must now look at the manner in which it was strengthened both by the direct action of the Star Chamber, and by the example of activity in the repression of crime which it set to other courts.

Footnote 1: Vol. iv 85-87.

Footnote 2: I did not mention the possibility that the author had not been able to have a complete account of the fact that the author had not been able to have a complete account of the author.

Footnote 3: I did not mention the possibility that the author had not been able to have a complete account of the author.

Footnote 4: The nature of the cases which came before the Council in the mediaval period, when Chancery and the Council worked together, will be seen from my account of some of the early Chancery Cases, below 289-291.

We can trace this influence of the Star Chamber in seven directions :--(_a_) Violent wrongdoing ; (_b_) Attempts to commit crimes ; (_c_) Maintenance and other offences against the administration of justice ; (_d_) Conspiracy ; (_e_) Libel and slander ; (_f_) Fraud ; (_g_) Acts contrary to public policy.

(_a_) _Violent wrongdoing._

The Star Chamber dealt with many forms of violent wrongdoing.6 First come the offences of riot, rout, and unlawful assembly. We have seen that some of them had been dealt with by the legislature.7 But as a rule the legislature dealt only with

### 198 Law in Xvith and Xvith Cents.

particular cases ; and, even when a particular statute was applicable, the Star Chamber could often deal with the offence more effectually than the common law courts. A large number of such cases therefore came before it ;1 and we can see that its treatment of them was giving rise to some of the principles of our modern law. Thus we get the principle that there must be at least three persons present to constitute these offences.2 We get almost the modern definitions of these offences stated both by Hudson and Coke ;3 and it is reasonably clear from the definitions given by Hudson, and from the fact that Coke can cite no authorities from the Year Books, that these definitions originated with the Star Chamber. Hudson says of a riot, " it is called a riot when three or above assemble themselves together to do an unlawful thing and do it ;" of a rout that it is " when they only assemble themselves together to do an unlawful thing and do it not ;" of an unlawful assembly that it is " when two or more assemble themselves together to do some unlawful thing."4 From the point of view of our modern law these definitions are too wide. But Hudson probably meant in each case to say that the unlawful act in question must be an act of violent wrongdoing, as the section in which he thus defines them deals wholly with this kind of wrongdoing. If this view as to his meaning be accepted, his definitions agree in substance with those given by Coke,5 and with our modern law.4 It is true that his definition of a rout is loosely worded ; but it would seem, from the explanation which he gives a little later,7 that, here again, he intended to lay down much the same rule as Coke, who defined it, in substance, as an assembly which does any act towards the carrying out of their purpose of committing

## 1 Law administered by Council. 199

some crime by force. His description of unlawful assembly would seem to include both the elements of purpose to commit forcible crime, and terror thereby caused to peaccable persons;1 and, according to the best opinion, these are the two essential elements of this office in our modern law.2

Footnote 1: "And it seemed by Keble 3 H. 7 that an assembly of men is not punishable, if nothing be done, unless the assembly be _in terroren fopuli_," Hudson, op. cit. 85: the reference is to Y.B. 3 Hy. VII. Hill, pl. 1, but the dictum is the court's not Keble's.

Footnote 2: Kenny, op. cit. 28r. * Hudson, op. cit. 85-87, 83. 4 Ibid 88, * 5 Ibid 87-88 ; on the whole subject see Stephen, H.C.L. iii 99-roz.

Of the other offences enumerated by Hudson some were sufficiently dealt with by the common law; and the influence of the Star Chamber\* was directed to the enforcement of the existing law, rather than to the creation of any new rules. Instances of offences of this kind are forcible entry, forcible taking of goods, and aggravated assaults.3 Also, like other courts, it dealt severely with those who assaulted its members or those practising before it.4 The only other form of violent wrongdoing in which it made a considerable addition to the law was in respect of the law as to duelling.5

Footnote 3: "And it seemed by Keble 3 H. 7 that an assembly of men is not punishable, if nothing be done, unless the assembly be _in terroren fopuli_," Hudson, op. cit. 85: the reference is to Y.B. 3 Hy. VII. Hill, pl. 1, but the dictum is the court's not Keble's.

Footnote 4: "Kenny, op. cit. 28r. * Hudson, op. cit. 85-87, 83. 4 Ibid 88, * 5 Ibid 87-88 ; on the whole subject see Stephen, H.C.L. iii 99-roz.

Footnote 5: "Third Instit. 157. * N. v. Taverncr (r617) 3 Buls, at p. 171 per Coke C.J.; Hale, P.C. i 453. * Third Instit. 157-158; R. v. Taverncr (r617) 3 Buls, x77; Stephen, H.C.L.I. iii too-ro1. * Hale, P.C. i 443, 453 ; Stephen, H.C.L. iii roi-roz. \*

## 200 Law in Xvith and Xvith Cents.

were guilty of an affray,\[1\] a minor offence with which the court lect could deal.\[3\] If either or both were wounded, either or both were guilty both of an affray and of an assault and battery.\[4\] But the common law was defective in that it did not penalize the preparations for a duel--the giving or receiving or returning of a challenge, the arranging of the place and time, departing for the place at which it was arranged that the duel should take place. If a sheriff or officer did not stop an affray he might be held liable--but that was the utmost extent to which the common law went.\[4\] What was wanted was a law which would enable the authorities to nip the preparations in the bud, and not oblige them to wait till a crime had been committed. And the number of duels which were fought at this period made a remedy very necessary.\[5\] This necessary remedy was applied by royal proclamation,\[6\] and enforced by the Star Chamber.\[7\] It punished all preparations for duels by fine and imprisonment--"all the middle acts and proceedings which tend to the duel ";\[8\] and it based its interference on sound principles of public policy. "'Those insolent persons," said Hobart C.J. in the Star Chamber, " take upon them to frame a law and commonwealth to themselves, as if they had power to cast off the yoke of obedience to peace and justice. And therefore they enact among themselves as an undoubted position, that a man wronged may with his sword in his hand require satisfaction of any man, being no Privy Councillor, and with a mild word to qualifie the detestation of this kind of murther, they have made it a familiar phrase, that he was killed fairly, and he was killed in equal fight; which arrogancy and rebellion must be subdued by this Court, ensuring the best. And by judges and jurors, who must not give way to this impious distinction of fair and foul killing, but must execute the law with severity upon all murtherers; for the law knows no such distinction."\[9\] Possibly the practice of duelling might have been suppressed sooner if the

## 1 Law administered by council. 201

Star Chamber had continued to exercise this jurisdiction upon these principles.1

Footnote 1: For proclamations against the practice in the latter part of the seventeenth century see Tudor and Stuart Proclamations nos. 3245, 3710; and for a bill of r668, which proposed to penalize heavily preparations for duels, and to give the earl Marshal and his deputies jurisdiction over the quarrels which gave rise to duels, see Hist. MSS, Com., 8th Rep. App. Pt. 1, rzz, no. 168; vol. i 579.

1
Footnote 2: Spedding, Letters and Life of Bacon iv 412.

3
Footnote 3: Did.

4
Footnote 4: Op. cit. 608.

5
Footnote 5: Vol. iii 373 and n. 4.

6
Footnote 6: Stephen, H.C.L., ii 223-224.

7
Footnote 8: Vol. i 335; vol. ii 459; vol. iii 394-400.

It is clear that by thus dealing with duels the Star Chamber was acting on the principle that an attempt to commit a crime is a substantive offence. The court, in the case of _Priest and Wright_, agreed with Bacon's argument, and rested its judgment upon the general principle that, "Wheresoever an offence is capital or matter of colony if it be acted and performed, then the conspiracy, combination, or practice tending to the same offence, is punishable as a high misdemeanour, although they never were performed. And therefore that practice to impoison though it took no effect, and the like, have been punished in this court."2 Further, the court said, it appeared from Garnon's case that "a crime of a much inferior nature, the suborning and preparing of witnesses, though they never were deposed, or deposed nothing material, was censured in court."3 Hudson cites one or two cases in which the court acted upon this principle.4

Footnote 4: footnotemark:

It cannot be doubted that this doctrine effected a great improvement in the criminal law. We have seen that, at one time, the want of any such doctrine had led some of the judges to lay down the very much wider rule that the mere intent was punishable, though the act was not accomplished. But we have seen that, except in the case of treason, this doctrine did not prevail.5 The result was that unless an attempt was itself a specific crime, e.g. an assault, it was not punishable at all.6 The doctrine of the court of Star Chamber was so obviously necessary to any reasonable system of criminal law that it was adopted by the common law courts.7

Footnote 5: Vol. iii 373 and n. 4.

_(c) Maintenance and other offences against the administration of justice._

We have seen that in the Middle Ages maintenance and champerty were crimes which endangered the peace of the state, and that in consequence almost any interference in a lawsuit rendered the party so interfering liable to the penalties for maintenance.8 In Henry VII.'s reign maintenance is given

### 202 Law in Xvith and Xvith Cents.

the first place in that list of crimes which the statute Pro Camera Stellata 1 was passed to suppress. This statute, and the vigorous administration of Henry VII. and his son, effectually stopped the kind of maintenance which endangered the peace of the state ; and as Stephen points out,3 this fact is clearly'shown by the later statute of i540.8 " The whole turn of the statute shows that the type of the crime had changed. Instead of references to conspirators, liveries, and badges, and other forcible perversions or open defiances of the law, the statute deals with the importance of 'true and indifferent trials of such titles and issues as been to be tried according to the laws of this realm.' This object is greatly hindered by 'maintenance, embracery, champerty, suborination of witnesses, sinister labour, buying of titles and pretensed rights of persons not being in possession.' Provisions are there made against buying 'pretensed rights or titles.' The old conflict between the law and those who wish to break it by open force is at an end, and fraud, perjury, and chicanery have taken the place of violence."

Footnote 1: 3 Henry VII. c. I.

Footnote 2: H.C.L. iii 239.

Footnote 3: For this statute sec vol. iv 518, 527; for two typical cases see Atty.-Gen, v. Caston (\_t_33) Rushworth, Pt. II. vol. ii App. 44, 45; Dymock v. Chambers and Dee (\_1$6$33) ibid 46, 47.

Footnote 4: Reporters del Cases 300-331; Pt. II, c, z SS 3.

Footnote 5: Vol. ii 333, 491.

Footnote 6: Reporters del Cases 337--it was ruled that they could not disburse money for their clients; but that a man could write to an attorney to instruct or retain counsel, or to take out process; this was said to be, "so common and necessary for the poorer of the Cunry," that " though an offence this Courte will not sentence it,"

This change in social and political conditions naturally affected the nature of the offence. We shall see that it was coming to be recognized that a debtor could assign money owed to him to a creditor; 1 and the exception, which had from the first been allowed in favour of attorneys and counsel,5 was being somewhat more widely construed." We can see too from Hudson's treatment of the subject that there was a tendency to expand somewhat the scope of the recognized defences in proceedings for maintenance--common interest," charity,8 relationship,9 the prosecution of causes on behalf of the king.10 In fact, the establishment of the last named of these defences seems to be the origin of the modern rule that the doctrine of maintenance does not

## 1 Law administered by council. 203

apply to criminal prosecutions.1 On the other hand it was held both at common law and in the Star Chamber that a mere agreement to maintain was punishable, and a fortiori if it was further agreed to divide the profits.2

Footnote 1: Winfield, Presen Lav of Abuse of Legal Procedure 5-6,

Footnote 2: Hudson, op. cit. g1, citing 30 Ass. pl. 15.

The other $,$$,\\

## 204 Law in Xvith and Xvith Cerns.

accusation.1 But, when he was writing, this classification was ceasing to have the meaning which it once possessed, because conspiracies which had no reference to false accusations were being punished by the Star Chamber.

Footnote 1: Op. cit. ro4.

The Star Chamber assumed jurisdiction over all cases of conspiracy. Though Coke once maintained that a person acquitted on a criminal indictment must proceed, not by bill in the Star Chamber, but by the criminal procedure of the common law, Lord Ellesmere maintained that in this case, as in all others, the Star Chamber had jurisdiction ;2 and his view prevailed.3 Moreover the Star Chamber punished false and malicious accusations made before itself,4 or before the court of Chancery;5 and it punished criminally conspiracies which would only have been the ground for an action upon the case at common law.6 Further, it adopted the common law rule applicable to actions on the case for conspiracy, and punished a single accuser who had falsely and maliciously taken such proceedings.7

Footnote 1: The Poulterres' Case (r61r) 9 Co. Rep. at f. 57a; Amerideth's Case (r60o) Moore K.B., 56a pl. 764, and Lord Gray's Case (r60r) ibid 788 pl. ro88--both cases of a combination of copy-holders to prove that their lands were freehold or inheritable copyhold ; Hersey's Case 12 Co. Rep. ro3; Beverley v. Power, Rushworth op. cit. 2; Nicolus vii 77, 78, roi, 102; Dasent x 62; xi 348; xi 94, 95.

Footnote 6: Scrogs v. Peck and Gray (r60o) Moore K.B., 56a pl. 765.

Footnote 7: Miller v. Rignolds and Basset (r64) Godbolt o5; Tailor and Towlin's Case (r62q) ibid 444 ; Anthony Ashley's Case (r61r) 12 Co. Rep. o9, 9a ; for the scope of the action on the case in the medieval common law see vol. iii, 405-407.

But it is clear that under these circumstances the element of conspiracy will tend to evaporate. The gist of the offence will be rather the malicious attempt to ruin another by a false charge than the conspiracy to effect this result. It was inevitable therefore, as Stephen has said,8 that conspiracy should come to be regarded as a form of attempt to commit a wrong. It was so regarded in the sentence given in the Star Chamber against those who attempted to fight duels ;9 and in the _Poulderers' Case_ it was ruled in the Star Chamber that the mere conspiracy, though nothing was executed, was an offence.10 But, if a conspiracy is

## 1.1. Law administered by Council. 205

so regarded, why restrict it to conspiracies to commit some offence in relation to legal proceedings? The Star Chamber acted upon this view ; and just as it punished all kinds of attempts to commit wrongful acts,1 so, a fortiori, it punished all kinds of conspiracies to commit the many varied offences punishable either by it or by the common law courts.3 When the Star Chamber was abolished, the two divergent streams of doctrine which resulted from the medieval precedents and the rules evolved in the Star Chamber, produced some very complex developments in the law of crime and tort.3 ,

Footnote 1: Above 20r.

Footnote 2: Coke affirmed that such conspiracies were punished both at common law and before the Star Chamber--"the usua'cormission of _oyer_ and _terminer_ gives power to the commissioners to enquire etc _dc omnibus coadmunationibus_, _confederationibus_, _et falsis alligantiis_. . in these cases, before the unlawful act executed, the law punishes the coadmunation, confederacy or false alliance, to the end to prevent the unlawful act. . And in these cases the common law is a law of mercy, for it prevents the malignant from doing mischief, and the innocent from suffering it," 9 Co. Rep. at f, g6b; cp, S.C. Moore K.B. 8t3; and the same thing was laid down in the King's Bench in Baig's Case (f6t6) ir Co. Rep. at f, g8b; we have seen that Coke had some little authority for this view, vol. iii 406, and the tendency of the development of the action on the case was obviously in this direction; see Pt, II, c. 5 SS 3 for the development of this principle by the common law courts. 3 Ibid. 4 Ibid SS 2. 5 For the earlier history see vol. iii 409-417. 6 Ibid 417 n, a; Eaton v. Ayloff (f62) Cro. Car. III; Cucko v. Starre (f632) ibid 285; Osborne v. Poole (f698) ir Ltd. Raym. 236; Johnson v. Bewich (1704) ibid 717. 7 For illustrations taken from Hale's Precedents of cases in the Ecclesiastical Courts see Carr, The English Law of Defamation, L.Q.R. xviii 270-272.

### Law in Xvith and Xvith Cents.

eighteenth century.1 But Coke had laid it down that if the secular courts gave a remedy for any wrong, the jurisdiction of the ecclesiastical courts was thereby ousted, unless it was expressly saved;2 and the principle was applied to actions for defamation in \_Palmer v. Thorpe.3 No doubt the recognition of this principle was hastened by the fact that the ecclesiastical courts could not give damages.4 At any rate it is clear that the jurisdiction of the ecclesiastical courts, even in this period, was fast coming to be limited to cases in which the defamation consisted of an imputation of some offence punishable in those courts.5 The complete recognition of this principle, coupled with the abolition of the ex offico oath,6 caused the jurisdiction of the ecclesiastical courts over defamation to become almost negligible.7 But, as we have seen, it was not finally abolished till 1855.8

Footnote 1: Crompton v. Butler (1790) i. Hagg 460; Smith v. Watkins (1792) ibid 467.

Footnote 2: Co. Litt. 96b, cited vol. i 621.

Footnote 3: (1583) 4 Co. Rep. 204--4 If defamation touches or concerns anything deterministic at the common law, the Ecclesiastical judge shall not have cognisance of it."4 Although such defamation is merely spiritual, and only spiritual; yet he who is defamed cannot sue there for amends or damages, but the suit ought to be only for the punishment of the sin, _pro salute animae_," ibid.

Footnote 5: Carr, loc. cit. 270-272; only one case is cited at p. 271, in which the words complained of imputed an offence punishable by the common law.

Footnote 6: Ibid 270; vol. i 670.17.

Footnote 7: Carr, loc, cit. 272.

Footnote 8: rs, rs, rs Victoria, 41; vol. i 620.

Footnote 9: "We will not give more favour unto actions upon the case for words than of necessity we ought to do where the words are not apparently scandalous, these actions being now too frequent," _per_ Coke C.J. Crotts v. Brown (1017) 3 Buls. r67; cp. Stanhope and Blith's Case (r585) 4 Co. Rep. r5a, where Wray C.J. said that, " "the judges had resolved that actions for scandals should not be maintained by any strained" construction or argument, nor any favour given to support them, forasmuch as in these days they more abound than in times past."10 Below 393- ${}^{#}$ 11 Pt. IL. c. SS SS 2.

Throughout this period the popularity of the common law remedy was growing. Coke complained of the frequency of these actions;9 and we shall see that, at the end of the period, a small book was devoted to summarizing the results of the cases.11 With the characteristics of the law made by these cases I must deal later.12 Here I need only draw attention to its most salient characteristic, and the consequences flowing therefrom.

Footnote 12: Ibid.

The common law conceived of defamation simply as a civil wrong causing damage to the person defamed. Damage was the gist of the action. However insulting the words, no action lay unless the court could see that damage must ensue as a natural and probable result of the words spoken;13 and the fact that the court, from its desire to discourage these actions, scrutinized the words and reasoned from them in the same way as they scrutinized and reasoned from the words of a writ or a pleading often produced some very absurd results.14 From this conception of1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1.1 I.1.1.1.1 I.1.1.1.1 I.1.1.1.1 I.1.1.1.1 I.1.1.1.1.1 I.1.1.

### 208 I.aw in XVIIth and XVIIIth CENTS.

the king or queen and punishable under special statutes relating thereto,1 its criminal aspect was wholly neglected by the common law. This large gap in the criminal law was filled, and on the whole adequately filled, by the Star Chamber.

Footnote 1: Vol. iv 511-512.

\_The Star Chamber.--\_From the first the Courfci and the Star Chamber recognized that, in the interests of the peace and security of the state, a strict control must be maintained over the printing, publication, and importation of books.2 It followed from this that the Star Chamber, from an early date, assumed jurisdiction over all cases in which its rules as to the manner of publishing, and as to the matter published were infringed.3 In some cases, indeed, its jurisdiction was strengthened by statute. I have already mentioned the statutes which dealt with libels against the king or queen, and with the publication of false and fantastical prophecies.4 But the jurisdiction of the Star Chamber did not depend upon these statutes.5 The court had assumed the power to deal with defamation in general on the ground that it disturbed the security or the peace of the state; and it is clear from Hudson's treatise, and from Coke's summary in the case _De Jitellis Famosis,_ that it had adopted and acted upon some of the principles of Roman Law.6

Footnote 1: Vol. iv 511-512.

Footnote 2: Ibid 305-306; for the regulations of the Star Chamber and the later licensing acts see vol. v. 7.

Footnote 3: Nicolas vi _xxxi seqq._; Dasent i 120 (1543)--\_booksemlers to return lists of books bought and sold within the last two years; ii 311, 312 (1549)--as to the recognizances to be given by printers; xiii 350, 399, 400 (1587-1582)--\_enquiry as to libels published in the University of Oxford, and the punishment of the offenders; xxiv 200, 222 (1593)--\_authorities of the City of London to enquire into libels upon foreign arithmetics; suspected persons ordered to be tortured to disclose accomplices.

Footnote 4: Vol. iv 511, 512.

Footnote 5: Des Reportes del Cases 39.

Footnote 6: Dig. 47.to de injuritis et famosis libels; see especially Dig. 47.to.5.9-10, and 47.to.6.

As Coke pointed out in the case \_De Lidellis Famosis_7 the defamation with which the court dealt fell into two classes. It might be either of a magistrate or other public person, or it might be of a private person.

Footnote 7: (1606) 5 Co. Rep. Izga.

The first class of libels might be, and at this period generally were, directly dangerous to the security of the state. They incited to sedition. Thus we find a very large number of cases against persons who had traduced magistrates of all kinds, whether or not in relation to their judicial or their administrative work, and whether or not their offences could be classed as scandalum1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1 I.1.1.1.1 I.1.1.1.1 I.1.1.1.1 I.1.1.1.1.1 I.1.

## 210 Law in Xvith and Xvith Cents.

clearly necessary for the Star Chamber thus to punish libels against private persons, if it was to succeed in its attempt to put down dwelling.1 Unless some sort of adequate redress was provided for provocative insults, its ordinances against dwelling were bound to be a dead letter.

It followed from the view which the Star Chamber entertained of the nature of the offence of libel that it differed very considerably from the nature of the offence which was redressible by a common law action for damages. In the first place truth was no defence. " In a settled state of Government the party grieved ought to complain for every injury done him in an ordinary course of law, and not by any means to revenge himself, either by the odious course of libelling or otherwise."" Further, the fact that it was true might make it more likely to result in a breach of the peace--" for as the woman said she would never grieve to have been told of her red nose if she had not one indeed."'s In the second place, the fact that it was not published was no defence.4 Hudson tells us that the " precedents are infinite " for punishing those who have sent scurrilous letters to other persons.5 And it should be noted that the writer and contriver, and, if it was published, the publisher could be punished.6 What amounted to publication was perhaps not quite clear at this period. Coke and Hudson lay down the law in different ways ; but Coke's view that there must be some active repetition to others, and that merely hearing it or copying it without divulging it to others, is not publication, has prevailed.7

## 1 Law administered by Council 211

In the third place the fact that the person libelled was dead was no bar to a prosecution. "A libelle," it was said by Coke in the court of Star Chamber,1 is a breach of the peace, and is not to be suffered but punished--this is as poison in the Commonwealth, and "no difference of the deade or lyvinge : and th' offence to the state dyes not."

Footnote 1: Les Reportes del Cases 2a6,

Footnote 2: "A libelle may be in word as well as in writing," _ecr_ Richardson C.J., Dalton v. Heydon and others (r632) Cases in the Star Chamber (C.S.) 71; Hudson, op. cit. 1oz; Atty.-Gen. v. Chambers (r63o) Rushworth, Pt. II, vol. ii App. 21; Atty.-Gen. v. Ewcr (r632) ibid 36.

In one respect the different views which the Star Chamber and the common law courts took of this offence led them to a similar result. In the Star Chamber, as in the common law courts, spoken words seem to have been treated in the same way as written words. Coke, it is true, in the case _De Libeluis Fannosis_, seems to lay it down that the libel, if not in writing, must be contained in either pictures or signs, i.e. either by painting, or by fixing a gallows or other ignominious signs at a person's door. But he does not say that it could not be contained in words ; and it is clear from other cases that the Star Chamber punished defamatory words no less than defamatory writings.2 Coke is silent as to the treatment by the Star Chamber of defamatory words. But Hudson draws a distinction, which, as we shall see, may have had some importance in the making of our modern law. If, he says, the defamation is written, the manner of defaming is in itself an offence and punishable. If, on the other hand, it is spoken it may be justified by proving that it is true.3 In other words defamatory words will be treated rather as a tort than a crime. It is clear that this is not quite consistent with the practice of the court in punishing spoken words as a crime ; but probably Hudson was thinking of defamatory words which were not seditious ; and, if so, it is possible that Hudson's distinction is one of the roots of the modern distinction between libel and slander.4 And, though the law as stated by Hudson is somewhat inconsistent, he may have represented truly enough an inconsistency in the practice of the court. If the court had been quite logical it would have treated defamation as a crime merely, and left a person who wanted damages to his action at common law. Indeed we do

### Law in Xvith and Xvith CFNTS.

get a dictum that the Star Chamber never gave damages.1 But it is quite clear that in cases of defamation the court did give damages to the plaintiff, both in cases of defamation and other cases, as well as punishing the defendant.2 We shall see that these inconsistencies in the practice of the Star Chamber, and the fact that the common law courts, in the latter part of the seventeenth century, constructed our modern law on the basis, both of the common law action on the case and of the doctrines laid down in the Star Chamber, go far to explain its illogical and inconvenient form at the present day.3

Footnote 1: "This Courte never gyves any damage," but onelye Costes," Les Reporters del Cases 247.

Footnote 2: In Friez v. Bennet (r627) Rushworth, Pt. II. ii vol, ii App. 6, it is expressly stated that the Court, though it fined the defendant, would give no damages to the plaintiff, because he himself repeated the libel, and was not of a good character; Thelwel v. Holman (r628) ibid r2-I3--

## 1.1. **IAM ADMINISTERED BY COUNCII. 213**

**conveyances.1** In 1628 the Star Chamber declared,3 " that if any man do make conveyances of his land, or acknowledge Statutes or Recognizances or suffer judgments, whether the same be upon just and good considerations or without, and concealing the same do afterwards for valuable considerations convey the same lands to other persons, as though the same were free from any manner of incumbrance ; such double and unjust dealing is a notorious fraud and deceit against the law of the realm, and fit for the censure of this court ; and albeit such former conveyances and incumbrances, if they be upon good consideration and _bona fide_, cannot be avoided ; yet this court will upon complaint punish the offenders and their confederates by imprisonment, fine and damages to the party grieved, to the full of his loss and hinderances, and otherwise, as the cause shall require." Similarly the Council interfered in cases in which contracts had been induced by fraud ; 3 and the Star Chamber punished manufacturers who deceived the public by their methods of manufacture.4 We shall see that in the exercise of this branch of jurisdiction both the Council and the Star Chamber were seconded by the equitable jurisdiction of the Chancellor.5 All these courts by their example helped to induce the common lawyers to develop the common law remedies for fraud, and ultimately to produce some changes in the principles of civil liability.4

Footnote 1: Dasent xiv 29 (t5$5-t5$6), 313; 330, 347 (t5$6-t5$7); xxii 474 (t592).

Footnote 2: Tito v. Newdike (1628) Rushworth, Pt. II. vol. ii App. 9.

Footnote 3: Dasent xiv too, tof (t5$9)--a jeweller had sold goods worth $\\not{\\sim}$2o for $\\not{\\sim}$t55; c. ibid xxii t6 (t5$9)--fraud practised on a youthful surety.

Footnote 4: Case of the Hatband makers (t632), Cases in the Star Chamber (C.S.) xiv5-ir6--they had made their hat-bands of copper and other base metals, and sold them for good silver and gold bands; " and because fraud is a common hurt to the weak public and that, in all manufactures, from the great commodity cloth to the meanest, fraud is too much used, tend:nge to the distribution of the whole trade of the kingdom, for example sake it was ordered that this Decre should be carefulle drawn up, and to be read at the n&xt general meeting of the Liverics of every Companie in London, and the Guyddhall."

Footnote 5: Below 293, 32$-39.

Footnote 6: Pt. II. c. SS 6. $\\bullet$

${}^{\\bullet}$ H HURON, op. cit. ro7 ; vol. i5q4.

${}^{\\bullet}$ Vol. iv 99-10q, 296-297; below 433.

We have seen that the Star Chamber possessed an indefinite power to suppress "errors creeping into the Commonwealth, which otherwise might prove dangerous and infectious diseases . although no positive law or continued custom of common law giveth warrant to it." 7 Just as the king through the Council had an indefinite power by proclamation or otherwise to make rules or forbid acts which he deemed to be contrary to public policy,8 so the Star Chamber assumed an indefinite power to punish the breach of these rules or the doing of these acts. I have already said something of the manner in which it interfered as between land

## 214 Law in XVITH AND XVITH CENTS.

to secure the copyholder against oppression.1 Its interferences as between employer and workman,2 its regulation of the course of trade,3 and its control of all courts and bodies and persons exercising governmental functions,4 rested upon the same principle of paramount public policy. Further, it even assumed a power to deal with cases already dealt with by other courts.5 " In a word, there is no offence punishable by any law, but if the court find it to grow in the Commonwealth, this court may lawfully punish it, except only where life is questioned."6

Footnote 1: Vol. iii 210-21I,

Footnote 4: Ibid 77-80, 85-87.

Footnote 7: Archeien, 98-9It

Footnote 8: Vol. i 406; below 289, 300.

A large discretionary power of this kind could be exercised with general applause when the peace and security of the state were in danger. Lambard says,7 " Is \_i_t not meet and just, that when the wicked sort of men have excogitated anything with great labour of wit and cunning, so as it may seeme they have drawne a quintessence of mischief, and set the same abroad to the remediesse hurt of the good and quiet subject; Is it not meet and just (I say) that authority it selfe also . should striane the line of justice beyond the ordinary length and wonted measure, and thereby to take exquisite awengement upon them for it? Yea is it not right necessary that the most godly, honourable, wise, and learned persons of the land should be appealed unto, that they may apply new remedies for these new diseases?" But such a power was certain to arouse unpopularity when, the peace and security of the state having been assured, men began to question the meetness and justness of its exercise; and when the court replied to these questionings by asserting a larger measure of the power which was questioned.

Footnote 8: Ibid 77-80, 85-87.

Footnote 7: Archeien, 98-9It

Footnote 8: Vol. i 406; below 289, 300.

The most important work of the Star Chamber was the exercise of this criminal or quasi-criminal jurisdiction. It is its work in this direction which has had a permanent influence upon the development of the English law of crime and tort. But all through this period both the Council and the Star Chamber interfered in civil cases. In fact, just as the court of Chancery only gradually ceased to exercise a semi-criminal jurisdiction, ancillary to its general equitable jurisdiction,8 so the Council and Star Chamber only gradually ceased to exercise a general civil jurisdiction ancillary to their criminal jurisdiction. But it was only in so far as the work of the Council and,Star Chamber in this direction was adopted by the Chancellor, and became part of the system of equity administered by him, that it has had a permanent influence upon the development of English law. Therefore its history naturally falls to be related under that head.

## 1 Introduction

The discovery of the discovery

### Law in Xvith and Xvith Cents.

the sphere of the common law and mainly by ecclesiastical chancellors, its interference with the common law was more direct and avowed than it would have been if it had been developed in and through the common law courts.1 In the third place, the theory upon which the equity of these ecclesiastical chancellors was based, was somewhat different from the theory upon which the equity described by Bracton, and administered by the common lawyers of the thirteenth and early fourteenth centuries,2 rested. But this third difference needs a few words of explanation.

Footnote 1: Vol. ii 3:6-347. 2 Ibid 245-249, 334-345.

Footnote 2: Sir Paul Vinogradoff, Reason and Conscience in Sixteenth Century Juris-prudence. I.,Q.R. xxiv 379, says--"In the thirteenth and fourteenth centuries, in the period of the early predominance of the common law, equity, though specifically recognized and sometimes applied in practice, was taken in a wider sense, including justice and analogy; "on the other hand it is clear from St. Germain's Doctor and Student, below 266-269, that the ecclesiastical chancellors were guided by a different principle; "St. Germain "formulates distinctly the proposition that equity excepts from the law on grounds supplied by reason and,conscience, and it is on the strength of conscience that remedies in equity were cemmonly granted."

The common lawyers of the thirteenth and early fourteenth centuries used the term 'equity' in a wide sense, and included under it such ideas as abstract justice and analogy. The ecclesiastical chancellors, on the other hand, based their equity on the more restricted idea that the court ought to compel each individual litigant to fulfil all the duties which reason and conscience would dictate to a person in his situation.3 Reason and conscience must decide how and when the injustice caused by the generality of the rules of law was to be cured, They were the executive agents in the work of applying to each individual case those dictates of the law of God and nature upon which the ecclesiastical chancellors considered equity to rest. As we have seen, therefore, their equitable jurisdiction was based on an application of the current ideas of the canonists of the fifteenth century regarding the moral government of the universe to the administration of the law of the state.4 The law of God or of nature or of reason must bc obeyed; and these laws required, and, through the agency of conscience, enabled abstract justice to bc done in each individual case, even at the cost of dispensing (if necessary) with the law of the state. How far it could interfere with the law of the state was to be determined by drawing distinctions, in the light of this theory, between the various provisions of the laws which governed the state.5 Naturally equity administered on these lines was "loose and liberal, large and vague." But the popularity of the equity administered by the chancellor on these lines was so great that, in the latter part of the fifteenth and in the sixteenth centuries, we begin to see the growth of a separate

## 6 Jurisdiction of the Chancellor 217

court of Chancery, with its own staff of officials and its own peculiar procedure.1 Naturally this separation caused the growth of friction between this new court and the common law courts ; and the literature of the period shows that this friction had become acute in the first quarter of the sixteenth century.2

Footnote 1: Vol. i 400-409.

Footnote 2: footnotemark:

Footnote 3: Below 220, 222: -223.

Footnote 4: For this book see below 266-269.

This second stage in the history of equity ends with the beginning of the Reformation in Henry VIII.'s reign. One of the indirect results of that\* movement was the beginning of a third stage, in which the ecclesiastical chancellors of the preceding period gradually gave place to English lawyers.\* Fortunately, however, the principles upon which the ecclesiastical chancellors had acted had been summarized and rendered intelligible to English lawyers by St. Germain's Dialogue 4 between the Doctor and the Student ; and thus a greater degree of continuity between the second and third stages was secured than would otherwise have been possible. At the same time, the fact that English lawyers, educated at the Inns of Court, presided over the Chancery, tended to keep the equity administered by the court of Chancery in close touch with the development of the common law, and to improve the relations between common law and equity. At any rate an open conflict was avoided. But the root of the earlier differences was still present, and, at the beginning of the seventeenth century, the old conflict broke out with renewed vigour in the dispute between Coke and Lord Ellesmere. James I. settled it in favour of the court of Chancery ; with the result that from henceforth the court of Chancery was a court of equal, and in some respects of superior authority, to the courts of common law.\*

Footnote 4: Equity is a rognish thing.\* It is so because the measure of the chancellor's foot .

These developments introduce us to a fourth stage in the history of equity. Equity tended to become less a principle or a set of principles which assisted, or supplemented, or even set aside the law in order that justice might be done in individual cases, and more a settled system of rules which supplemented the law in certain cases and in certain\* defined ways. We can see the beginnings of this change in the first half of the seventeenth century. But, during this period, its progress was hindered by the victory of the Parliament, because Parliament suspected the equity administered by a chancellor in intimate relations with the king.6Law in XVith and XVith CENTS.

Thus, although we can see the origins of some of our later equitable rules, they are, as yet, very rudimentary. We must wait till the latter half of the seventeenth century for marked progress in this process of transformation. It is not till then that the lineaments of our modern system of equity begin to emerge with any distinctness.

I have dealt in an earlier volume with the earliest stage in the history of equity. In this chapter I shall say something of the second, the third, and the beginning of the fourth stages, under the following heads :--The Chancellors and other Officials of the Court; the Literature of and the Authorities for the early Rules of Equity; the Subject-matter of these.Rules; and, the Evolution of the Character of Equity.

The Chancellors and other Officials of the Court

The chancellors have always been more than mere lawyers. Though, in the mediaeval period, their character of statesman generally predominated, by the end of this period they were as much, if not more noted, as lawyers than as statesmen. To write the biographies of all the chancellors would be both tedious and unnecessary. It is still less necessary even to enumerate the series of masters of the rolls and the other masters of the court, who, by the part which they took in settling the practice of the court, contributed in no small degree to the creation of fixed principles governing the administration of equitable relief. It will be sufficient to illustrate from the lives of some of the more distinguished chancellors and their officials the gradual growth of fixity and system in the administration of equity, and the nature of the influences which helped to shape the contents of its rules.

We have seen that, with very few exceptions, the mediaeval chancellors were ecclesiastics and statesmen.1 All the chancellors of Henry VII.'s reign--Alcock, bishop of Worcester, Cardinal Morton, Archbishop of Canterbury, Dene, Archbishop of Canterbury, Warham, Archbishop of Canterbury--were of the mediaval type. Warham's successor was Cardinal Wolsey; and, if we except Bishop Goodrich, the last of Edward VI.'s chancellors, and Bishop Gardiner and Archbishop Heath, Mary's chancellors, he was the last of the chancellors of this type. More, his successor, was the first of the lawyer chancellors of the modern type. As we might expect, the practice of appointing lawyers as chancellors did not become fixed immediately. There was a period of hesitation; but it is clear that by the middle of the

## 20.1 Officials of the Court 219

seventeenth century the new type of chancellor had superseded the old. In fact the development of the equitable jurisdiction of the chancellor necessitated the change. But it is not improbable that the suddenness of the change from a chancellor of the type of Wolsey to a chancellor of the type of More was due partly to political and religious considerations.

It is fairly clear that Wolsey made use of his position as the chief minister of the state to increase the jurisdiction of his court, and to settle it finally as a court of equity, quite distinct from the Council or the Star Chamber.1 It is clear too that he held very large notions as to the principles upon which equitable interference with the law, was justifiable. " The king," he is reported to have said,2 " ought of his royal dignity and prerogative to mitigate the rigour of the law, where conscience hath the most force ; therefore, in his royal place of equal justice, he hath constitute a chancellor, an officer to execute justice with clemency, where conscience is opposed by the rigour of the law. And therefore the Court of Chancery hath been heretofore commonly called the Court of Conscience; because it hath jurisdiction to command the high ministers of the common law to spare execution and judgment, when conscience hath most effect." It is also fairly certain that Wolsey acted upon these principles, with very little regard for the professional feelings of the common lawyers.8 But we have seen that the common lawyers had already begun to protest against the encroachments of the Chancery.4 It is not surprising, therefore, to find that, on Wolsey's fall, the grievances of the common lawyers found a place in the articles drawn by the Council against Wolsey.5 Complaints were made of his encroachments upon the jurisdiction of the common law courts,6 and upon his contemptuous treatment of some of the judges.7 We have seen that the common lawyers were an influential element in the House of "He would repair unto the Chancery, sitting there till eleven of the clock, hearing suitors and determining divers matters, and from thence he would divers times go into the Star Chamber as occasion did serve," Cavendish, Life of Wolsey 40.

Footnote 63: The author is grateful to the anonymous

### Low in Xvith and Xvith Cents.

Commons,1 whose support for his matrimonial and ecclesiastical policy it was important for the king to gain. It was perhaps to conciliate this element that Henry VI\[1\], made a new departure, and appointed as Wolsey's successor Sir Thomas More--an eminent common lawyer, and the son of a common law judge.

Footnote 1: Vol. iv 174, 189; cp. vol. ii 430-431; ${}^{\\prime}$

That these were Henry's motives is of course a matter merely of conjecture. But, in support of this conjecture, we may remember, firstly, that at a later period Henry was obliged to conciliate the common lawers in order to pass the Statute of Uses through the House of Commons;2 and, secondly, that the intimate and somewhat delicate relations, which existed at the latter part of the medieval period between the chancellor and the common law judges, could not be maintained in the face of Wolsey's high handed methods. The nature of these relations between the common law and equity, and the difficulty and necessity of maintaining them, can best be seen from the cases of the latter part of the fifteenth century which are reported in the Year Books.

Footnote 2: Ibid 280-287.

It had been recognized, at least from the middle of the fifteenth century, that the relations of law and equity were so close that the united efforts of the chancellor and the common lawers were needed to settle them satisfactorily. We have seen that the closeness of their relations necessarily followed from the theory which underlay the administration of equity.3 If the law was to be departed from on the ground of conscience or abstract justice, it is clear that the provisions of the law, which it was alleged worked some hardship, must be very carefully examined. The Year Books, from Henry VI.'s reign onwards, show us that in doubtful cases the chancellors were willing to hear a legal argument as to the justice or expediency of the application of equity to any particular case. Let us look at one or two illustrations,

Footnote 3: Vol. iv 453-455, 461.

In 1459 4 it appeared that one J. had bought from J.R. certain debts due to him (J. R.); and that he (J.) had promised under seal to pay the price. But as the debts were choses in action and not transferrable, J. had got no _quid pro quo_ for his promise to pay. As, however, the promise was under seal, J. was liable on it at common law. He therefore applied to the chancellor. The chancellor adjourned the matter into the Exchequer Chamber that it might be discussed by the judges of both benches. They agreed that as J. had got nothing he ought in equity to be released; and J.R. was committed to the Fleet

## 6 Officials of the Court 221

till he cancelled the bond. Nevertheless J.R. not only did not cancel the bond but sued upon it at common law. The chancellor issued an injunction; and an inconclusive argument took place as to the effect of the proceedings in Chancery and the issue of the injunction. The opinion of Prisot seems to have been that the proceedings in Chancery were not a good defence, and that therefore the injunction should be disregarded.1 The case shows both that the judges were willing to help the chancellor to settle questions as to the advisability of equitable interferences with the law, and that they were jealous of any attempt to interfere with the regular course and effect of their own procedure.

Footnote 1: Y.B. 37 Hy, VI. Hil. pl. 3 (p. r.t)--" Quand le fait est bon et tout temps ad este, lour examinacion ne fera coco mauvesis, mes lour examinacion ne prove le fait bon et loyal en nostre Ley; **:**:**: **:**:**: **:**:**: **:**:**: **:**:**: **:**:**:**: **:**:**:**:**: **:**

### 222 Law in XVITH AND XVITH CENTS.

the same relations existed in Henry VII.'s reign. In 1489 1 the chancellor consulted the judges as to the effect of a release of a debt by one of two co-executors, whereby the assets were so diminished that the testator's will could not be carried out. The judges thought that nothing could be done **af** law, as each executor had full power to deal with the assets; but that there might be a remedy in equity.2 The chancellor agreed that it was a case for equitable interference. "Every law," he said, " should be in accordance with the law of God ; and I know well that an executor who fraudulently misapplics the goods and does not make restitution; will be damned in Hell, and to remedy this is, as I understand it, in accordance with conscience." So in 1492 3 the chancellor (apparently with the agreement of the judges) ruled, contrary to his opinion in 1483,4 that an obliger who had paid, and had taken no acquittance, could get relief in Chancery.5

Footnote 1: Y.B. 4 Henry VII. Hill. pl. 8.

Footnote 2: " La Ley de la terre est pur moults choses, et _r_:oults choses sont e sues icy que ne sont remediables a le Common Ley, et assez sont en conscience parentre un homme et son confesseur, et issint est cest chose," _per_ Fincux.

Footnote 3: Y.B. 7 Hy. VII. Pasch. pl. 2.

Footnote 4: Above 221 n. 3.

Footnote 5: See the opinions of Hussey and Brian at f. rza ; the chancellor, answering the argument that, because there is no remedy at common law, therefore there is no claim for equitable relief, says--"Et is insult si on paye un duty d'un obligation et n'ad escript, ece est bon conscience; et uncore al Comon Ley nul barre."

Footnote 4: Vol. iv 275-276; above 216; below 267-269.

If there is any truth in the charges made against Wolsey, it is clear that his high-handed proceedings had upset this working arrangement between the Chancery and the common lawyers. The lawyers naturally desired a reversion to the old state of things ; and, as the lawyers were an important party in the House of Commons, they secured not only a reversion to the old state of things but something more valuable. They got in Sir Thomas More a chancellor who had been educated as a common lawyer; and his appointment on that account marks an important turning point in the history of equity. It marks the transition from the administration of equity by ecclesiastics and canonists to its administration by laymen and common lawyers. In the earlier period the ecclesiastical training of the chancellors had led to the infiltration of ideas of the canon law.6 But now the legal training of the chancellors was to lead to the infiltration of ideas of the common law. The occasion for the transition was political ; and both political and religious causes, made it permanent. The underlying assumptions of the canon law were opposed to the new ecclesiastical policy which the king was meditating ; and its study was a few years later prohibited.7 The common lawyers

**OFFICIALS OF THE COURT 223**

were able to exert pressure upon a king who had need of the support of Parliament. That pressure affected the whole future development of equity, just as the same pressure, a few years later, affected the whole future development of the land law, because it shaped the statute of Uses in such a way that the common law courts got control over the most important variety of uses.1

Footnote 1: Vol. iv 453-455, 46r.

More's beautiful character would have made him an ideal chancellor at any time. It was exactly fitted to the difficult position which he was then called upon to fill. He was scrupulously pure,2 and strictly impartial, to the disappointment, on two occasions, of his relations.3 He is said to have quickly cleared off all arrears of business.4 He was easy of access, and made it a habit never to grant a subopena till he was satisfied that the plaintiff had some real ground of complaint.5 The result was that the number of injunctions granted considerably diminished. And, when he heard that some of the judges were still complaining of their issue, he invited them to dinner, " and after dinner when he had broken with them what complaints he had heard of his injunctions, and moreover showed them both the number and causes of every one of these in order so plainly, that upon full debating of those matters, they were all enforced to confess, that they in like case could have done no otherwise themselves, then offered he this unto them, that if the justices of every court, unto whom the reformation of rigour of the law, by reason of their office, most specially appertained, would upon reasonable considerations, by their own discretions (as they were, as he thought, in conscience bound) mitigate and reform the rigour of the law themselves, there should from thenceforth by him no more injunctions be granted. Whereupon, when they refused to condescend, then said he unto them : 'Forsmuch as yourselves, My Lords, drive me to that necessity for awarding our injunctions to relieve the people's injury, you cannot hereafter

### Law in XVith and XVith CENTS.

any more justly blame me."1 The result of his tenure of office was to restore harmonious relations between the Chancery and the common law courts till the revival of the struggle in the latter part of the sixteenth century--a revival which culminated in the dispute between Coke and Ellesmen. That harmonious relations had been restored can be seen from the fact that Bacon and the other lawyers, whom James I. called in to advise him,2 were able to report that injunctions had been issued by the chancellor for the last sixty years--" and that in the time when the same authority was managed, not only by the bishops, which might be thought less skilful or less affectionate towards the laws of the land, but also divers great lawyers, which could not but know and honour the law as the means of their advancement Sir Thomas More, and the Lord Audley, the Lord Rich, Sir Nicholas Bacon, Sir Thomas Bromley, and Sir John Puckering ; and further, that most of the late judges of the kingdom, either as judges when they sat in Chancery by commission, or as counsellors at law, when they set their hands to bills, have by their judgment and counsel upheld the same authority."3

Footnote 1: Koper, Life of More 30, 37.

Footnote 2: Vol. i 463.

Footnote 3: Cary, Reports in Chancery 125; for an instance in r58t where the judges advised the plaintiff, a widow, who had got two verdicts at law in an action for dover, to get an injunction from the chancellor to quiet possession, see Monro, Acta Cancelaria 506-507.

There were, as I have said, occasional reversions to chancellors of the older type. But they were generally due to temporary political causes. From r551-r558 there are a succession of episcopal chancellors. The appointment of Goodrich, bishop of Ely, as Lord Keeper in r551 was not at first intended to be permanent.4 It was not till r552 that he was made permanent chancellor--possibly Northumberland thought that it would be easier to persuade the bishop to put the great seal to Edward's attempted resettlement of the throne than a common lawyer. Mary's appointments of Gardiner and Heath were in agreement with her general policy of restoring so far as possible the old order in church and state. But otherwise, except for the short chancellorship of Wriothesley5 (r544-r547), and the purely temporary appointment of Lord Paulet in r547, the seal was in the hands of common lawyers. Audley, who had attained the rank of king's serjeant, held it from r532-r544;6 and Rich, who had been solicitor-general, held it from r547-r551. Neither can be said to have ad

## 6 Officials of the Court

was a pliant instrument of Henry VIII.'s caprice, and took a leading part in most of the state trials of the period. Rich's character has been branded for all time by Sir Thomas More; \[1\] and the latest historical research, adjudicating upon Rich's whole career, has pronounced a sentence quite as severe.3 Both he and Audley stand condemned for the part which they took in More's trial and condemnation.4

Footnote 4: For the commission issued in 1529 see Rymer, Foodera (ed. r713) six 299--it was addressed to the Master of the Rolls, the Chief Baron of the Exchequer, a judge of the King's Bench and Common Pleas, a baron of the Exchequer, six clerks of the Chancery and ten others; for other similar commissions granted to two judges, six Masters and the Master of the Rolls under Rich and Goodrich see Foss, Judges v 279; judges were on the'commission to hear cases in Chancery after Hatton's death, ibid 397; and also on the commission issued after the fall of Bacon, ibid vi 4; Bishop Williams was assisted by two judges in dealing with the difficulties which arose from the fire in the Six Clerks' Office in December, r62r, Sanders, Chancery Orders i r43. 146.

Footnote 5: And for a more amplyfyeing and inlarging of the jurisdiction of the saide Courte of Chancery and deroyacion of the saide Commen Laws there is of late a $\\bullet$ VOL.--

### 226 Law in Xvith and Xvith Cents.

With the accession of Elizabeth the process of transition to the lawyer chancellors, under whom equity gradually began to assume its modern shape, is, in effect, complete. From 1558 to 1649 it was only for the space of eight years--between 1587 and 1591 when Christopher Hatton was chancellor, and between 1621 and 1625 when Bishop Williams was chancellor--that the seal was held by one who had not been educated as a common lawyer. Let us glance at the careers of these two exceptional chancellors before passing on to the important holders of the office.

Hatton was pre-eminently a courtier, and, in addition, something of a statesman. There is evidence that in an age, not very marked for administrative purity, he set a high standard.1 He admitted that he was not " acquainted with the course of the law."2 But he had a clear idea of the place of equity in the legal system--addressing a newly made serjeant, he told him that he would so far as possible help the due administration of the law, and that disputes should so far as possible be settled by the law alone, as equity only exists to help " the rigour and extremities of the law."3 He was always assisted by some of the masters;4 and Camden tells us that, though the lawyers grumbled at his appointment, " he supplied by his equity and justice what he wanted in legal knowledge."5 Williams had studied in his youth the elements of the common law;6 and, while a chaplain in Egerton's house, he had discussed with him cases which had come before him in the Chancery and Star Chamber,7 Rumour said that the king, after Bacon's fall, insisted upon appointing him because he despaired of finding an

## 1 Officials of the Court 227

honest lawyer.1After his appointment he furbished up his law with the help of Henry Finch.2To appease criticism he let it be known that his appointment was merely temporary ;3 and he promised in the speech which he made on entering office, " to make no decree that shall cross the grounds of the common or statute laws," to use expedition, and not without cause to disturb the decrees of his predecessors.4Clarendon tells us that the general opinion was that he was " unequal to the place ;5 but, by acting upon the principles which he had laid down, he appears to have been successful in conciliating both the common lawyers 6 and the officials of the court." 7

Footnote 1: The author was supported by the National Science Foundation of the United States of America.

Footnote 2: The author was supported by the National Science Foundation of the United States of America.

Footnote 3: The author was supported by the National Science Foundation of the United States of America.

Footnote 4: The author was supported by the National Science Foundation of the United States of America.

Footnote 5: The author was supported by the National Science Foundation of the United States of America.

We must now turn to the careers of those lawyer chancellors who may justly be considered the fathers of our modern system of equity.

Nicolas Bacon\* was lord keeper during the first twenty-one years of Elizabeth's reign (1558-1579). At Cambridge he had been one of the famous band of humanists; and he was a friend of Cecil and Parker, to the former of whom he became related through his second wife. Throughout his life he was keenly interested in all educational projects. He, Denton, and Cary prepared a scheme for the establishment of a college for the education of statesmen; 9 in i56i he wrote a letter to Cecil, who had just been appointed master of the wards, as to the proper method of educating the Queen's wards; 10 and in his later years he founded a grammar school, and scholarships to enable boys from his school to go to Cambridge.11Already in Edward VI.'s reign he was attorney of the court of Wards, and a bencher of Gray's Inn; and he managed to retain his post in the court of Wards under Mary. As lord keeper he distinguished himself for

### Law in XVITH AND XVITH CENTS.

the sanity of his advice on political matters; and, though he temporarily lost the favour of the Queen by his supposed complexity in a pamphlet which advocated the claims of the Grey family to succeed to the throne, he was soon restored to favour.1 Queen Elizabeth frequently visited him'at his house at Gorhambury. He was never afraid to give her independent advice, and could clothe it in a witty saying--she once asked him his opinion of a certain monopoly licence, and he answered, "Will you have me speak truth, Madam? Licentia omnes deterioressumus."2 He was, as Camden puts it, "Vir preipinguish," which gives point to his reply to the queen, who had remarked that his house was too small for him, that on the contrary " he was too large for his house."3

Footnote 1: Dict. Nat. Biog.

Footnote 2: Bacon, Aprophtegms Works (Ed. Spedding) vii z5.

Footnote 3: Archeologia xxxvii 34o.

Footnote 4: Sanders, Orders in Chancery i 2o-24.

Footnote 5: Monro, Acta Cancellia 386 39z; Tothill r4; Honro says op, cit. 392 n. I, that in Hargrave MS, no. 28**i, f**: zit is a copy of Bacon's argument as to peers being attachable in Chancery, which was occasioned by this case; this was printed in r64I, Dict. Nat. Biog.; he was also interested in a project, which his more famous son much desired to effect,--the simplification of the statutes, ibid.

As a judge of the court of Chancery he seems to have won universal respect. He stoutly upheld the dignity of the court both as against the common lawyers, and as against the privileges of the peerage. As against the common lawyers he vindicated the rights of the suitors of the court to freedom from arrest; and, in a conference with the two chief justices, he successfully proved that the privilege claimed was ancient, necessary and reasonable.4 As against the peerage he proved that they, like other persons, could be attached for contempt--a question which arose out of the case of _Taverner_ v. _Lord Cronicell,_ in which the defendant had disobeyed an injunction, refused to be examined as to his disobedience, and departed in contempt of court.5 He did much to improve the organization of the court and its rules of procedure. He made elaborate rules for the duties and conduct of the cursitors, secondaries,6 and the six clerks.7 The cursitors office in Chancery Lane was founded by him.8 It was while he was chancellor that we get the first detailed rules as to the procedure of the court. The earlier orders had been for the most part concerned with the organization of the court.9 The rules of procedure had been scanty and vague. They had dealt chiefly with the duties and rights of the officials. Practically the only existing rules of procedure relating to the equitable jurisdiction

## 6 Officials of the Court 229

of the court were one or two dealing with the issue of subopenas, and the examination of witnesses.1 Bacon issued some very much more detailed rules as to the examination of witnesses,2 as $\\blacklozenge$ the issue of injunctions,3 as to the issue of writs of subopena for beginning a suit in equity and writs of certiorari,4 as to the issue of writs of subopena to witnesses to testify,5 and as to contempts.6 Further he ordered that "'suits for no more than six acres of land or less, except the same be worth 40 shillings by the year, and all suits for matters under the value of ten pounds shall be dismissed this Court, for such cause only proved "'--a rule repeated by later chancellors,8 but not always observed by suitors.9 Bacon died in i579, universally respected and lamented--a man, says Camden, ingenio acerrimo, singulari prudentia, summa eloquentia, tenaci memoria, et sacri conciliii alternum columen."

Footnote 1: Sanders, op. cit. i 7d. SS 17 (Hy. V.); 9 (Hy. VIII.); 14, 15 (Mary); 10 (Mary).

Footnote 2: Ibid 24, 25.

Footnote 3: Ibid 34, 35.

Footnote 4: Ibid 54a.

Footnote 5: Below 320 n, r2.

Footnote 6: Monro, Acta Cancellaria 92, 115, 119, 313, 355, 357-358, 359, 362.

Footnote 7: Ibid 37.

Footnote 8: Monro, Acta Cancellaria 92, 115, 119, 313, 355, 357-358, 359, 362.

Footnote 9: Fosss, Judges v 403-466; Dict. Nat. Biog.

Footnote 10: Lloyd, State Worthies 60c (cited Dict. Nat. Biog.) says that " for five years he was the only person thatpeople would employ."

Footnote 11: Printed by Sanders, op. cit. ii 103-1035.

After an interval of two months the great seal was given to Thomas Bromley10 (1579-i587). He came of a legal family. His father had been a reader of the Inner Temple, his cousin chief justice of the Queen's Bench, his brother chief justice of Chester, and his nephew a baron of the Exchequer. He was one of the most popular counsel of his time,11 and was made solictor-general in i569. He was an abler man than Gerard, the attorney-general, over whose head he was promoted, Gerard being made master of the rolls. We can see from his speech at a call of serjeants12 that he had high ideals of professional honour, and, as we might expect, a great respect for the common law; and no doubt, largely on that account, the relations between law and equity were harmonious during his tenure of office.12 Coke testifies to his " great and profound knowledge and judgment in the law;"13 and we hear no complaints as to his decisions in the court of Chancery. His most notable appearance as chancellor was as president of the court which tried Mary Queen of Scots. He was far from being a mere courtier, and could maintain his independence even as against royal pressure. He refused to give any special privileges for the trial of one Knyvet,

### Law in Xvith and Xvith Cents.

a groom of the chamber, who had killed a man se defendendo ; and his argument convinced the queen that he had done right.1 He does not seem to have issued many fresh orders for the conduct of business in his court.2 His successor Hatton 4.seems to have been a more active legislator. He made an order as to the days for hearing cases and making orders;3 as to the hearing of cases in forma pauperis;4 and for the due maintenance of order in court during the hearing of cases.6

Footnote 1: Nicolas, Life and Times of Hatton 256-261, 263. Hatton wrote --"I have showed unto her Majesty your honourable and grave letters in answer of those which, by her Highness' direction, 1 sent unto you of late, touching Mr. Knyvet, which were in all respects so acceptable ... as it pleased her very graciously to commend them ; allowing your judgment for the stay and respite of the special commission to be no less considerate and agreeable to justice than this answer of yours importing the same effect to be wise and full of all honourable and orderly dealing."

Footnote 2: Sanders, op. cit. i 57-59 prints only two of Bromley's orders, and they are of no great importance.

Footnote 3: Above 26.

Footnote 4: Ibid 63-64.

Footnote 5: "Gaudius et Puckeringus ad Legem Servients, jam hominem magna vi verborum argumut quod Consiliarorum Prodienta callide sit abusus," Camden s.a. 1587.

Footnote 6: "Qui ob famulorum sordes et corruptelas in Ecclesiasticis beneficiis beneficiis nundinandis ipse vir integer apud Ecclesiasticos haud bene audivit," s.a. - 1596.

Footnote 7: "I biid 63-67.

Footnote 8: "I biid 65, 67, 68, 70 ; cp., Hazeltine, Hassays in Legal History 276-277--it appears that the restriction on the issue of writs of estrepement is older than Egerton's chancellorship ; do this writ see vol. ii 248-249, 344 n. 6.

With the appointment of Hatton's successor--Puckering (1592-1596)--we have a reversion to the lawyer chancellors.7 Puckering had made his career at the common law. He attained to the rank of queen's serjeant, and had been Speaker of the House of Commons. He had appeared for the crown in several important state trials--among others at that of the unfortunate Davison;8 and it was at the close of the trial of Perrot, lord deputy of Ireland, that he was made lord keeper. He apparently allowed his servants to dispense his ecclesiastical patronage in a simoniacal manner. But Camden acquits him of complicity in their acts;9 and there are no complaints of his decisions. He issued several salutary orders, designed to check frivolous demurrers and answers,10 irregular affidavits,11 lengthy pleadings,12 untrue allegations in bills,12 and suits for trivial matters.12 Other orders dealt with the duties of the six clerks13 and the examination of witnesses.14 Perhaps with a view of preventing the common law courts from encroaching upon the field of equitable jurisdiction, he made orders that certain writs--such as Audita Querela, Estrepement, and one or two others --were not to be issued without his sanction.15 His successor was Egerton, whose career, Camden tells us, was looked forward to " magna expectatione

## 297 Officials of the Court 291

et integrritatis opinione." Nor was the public expectation and opinion destined to be deceived.

The chancellorship of Sir Thomas Egerton, afterwards created Lord Ellesmere and Viscount Brackley, lasted like that of Sir Nicholas Bacon, for twenty-one years (1596-1617). Since the chancellorship of Sir Thomas More there had been no more important epoch in the earlier history of equity. Just as the chancellorship of Sir Thomas More marked the period when the administration of equity was transferred from the ecclesiastical to the common law chancellors, so the chancellorship of Lord Ellesmere marked the period when the relations of equity, thus administered, to the common law were finally ascertained.1 The chancellors succeeding Sir Thomas More had kept equity in close touch with the law: the chancellors succeeding Lord Ellesmere were able, in consequence of his vindication of the independent position of the court of Chancery, to begin to develop systematically the principles upon which they were prepared to give equitable relief.

Footnote 1: Vol. i 461-463.

Egerton2 was called to the bar in 1572, and rapidly acquired a large practice in Chancery. He became solicitor-general in 1581, and it is said that the queen promoted him after hearing him plead against her--"In my truth," she is reported to have said, "he shall never plead against me again." In 1594 he was made master of the rolls, and in 1596 lord keeper and a privy councilor--again it is said by the queen's express wish and contrary to that of Burghley. In 1603 James I, made him lord chancellor, and raised him to the peerage by the title of Baron Ellesmere. In 1616 he was created Viscount Brackley. In 1617 he at last induced James to accept his resignation,3 and died twelve days later.

Footnote 2: For the main facts of his life see Foss, Judges vi 136-152 ; Dict. Nat. Biog.

Footnote 3: S.P. 1017.1018 449, xc 135, Gerard writing to Carleton says--"Chancellor Ellesmere ... petitioned the king daily for eight or ten days to allow him to resign, and, at last refused to seal patents sent; on which the King visited him, found him weakened in mind and body, and sent for the seal"; ibid 41, xc 105. Chamberlain writing to Carleton tells much the same tale; Gardiner iii 76-73.

Footnote 4: Ibid i 157.

Footnote 5: Liber Fam. (C.S.) 32-37; below 350; Gardiner ii 188, r89; Spedding, Letters ar-Like of Bacon iv 347. Whitelock, Liber Fam. 53 descibees him as "the

### Law in Xvith and Xvith Cernis.

liked to prevent Parliament from even discussing the king's power to levy impositions;1 he would have given far greater authority to proclamations than the common lawyers allowed;2 and he could not forbear from pointing out to Mountague, Coke's successor, the proper political moral to be drawn from Coke's dismissal.3 Yet he could oppose the king when he wished to do obviously foolish acts. He absolutely refused to seal a pardon for Somerset which was drawn in extravagantly wide terms, though pressed to do so by the king in person, unless the king first gave him a pardon for sealing it.3 His political views joined with his professional feelings in his successful resistance to Coke's attempt to limit the competence of his court.4 But of the effects of this his last, and in some respects his most important achievement, I cannot speak fully till his career as a lawyer has been considered.

Footnote 1: The author is grateful to the anonymous referee for his comments.

Footnote 2: See his judgment in Calvin's Case (1609) SS S.T. at p. 669.

Footnote 3: After recounting various acts of Coke as examples to be avoided he said-- " Remember also the removing and putting down of your late Predecessor, and by whom, which I often remember unto you, that is, by the Great King of Great Britain whose great Wisdom and Royal Vertues and Religious Care, for the Weal of his Subjects, and for the due administration of Justice, can never be forgotten," Moore, Rep. 828-829.

Footnote 4: If the reader is referred to the "Momentum", the author is referred to the "M

## 6 Officials of the Court 283

entertain suits to stay the payment of debts.1 On the procedure to be followed when parties were fined for contempt he confirmed a ruling contained in a Year Book case of 1489.2 He had and deserved the reputation of being a strict disciplinarian in his court.3 He ordered pauper plaintiffs who had sued without cause to be whipped.4 He threatened defendants with irons or close imprisonment if they refused to obey a decree;5 and he committed a defendant to the Fleet for inserting scandalous matter of his predecessor in a bill of revivor.6 The punishment of Richard Mylward for drawing a replication containing 120 pages when 16 would have sufficed was' exemplary.7 Leven learned lawyers like Henry Finch were sharply rebuked if they ventured to put in insufficient pleadings.8 He saw that the masters of the court did their duty and kept to the matters referred to then.9 In his later years he perhaps became a little more remiss in this respect.10 It may perhaps be inferred from Bacon's speech on taking his seat in Chancery that too much discretion had been allowed to the masters, and too little consideration given to the justice of their reports,11 with the result that there were, as he explains in one of his letters, frequent petitions for rehearing.12 And Bacon tells us expressly that

Footnote 11: Ibid 87-- * The fourth point is concerning the communicating of the authority of the Chancellor too far; and making upon the matter too many Chancellors, by relying too much upon the reports of the masters of the Chancery as concludent."

Footnote 12: Ibid 283-- * The causes that I dispatch do seldom turn upon me again, as his many times did. \*

Footnote 13: Ibid 283-- * The causes that I dispatch do seldom turn upon me again, as his many times did. \*

Footnote 14: Ibid 283-- * The fourth point is concerning the communicating of the authority of the Chancellor too far; and making upon the matter too many Chancellors, by relying too much upon the reports of the masters of the Chancery as concludent."

## 234 Law in XVITH AND XVITH CENTS.

after full and solemn hearing judgment was often too long delayed.1

Footnote 1: Spedding, op. cit. vi r89, r90--For it hath been a manner much used of late in my last Lord's time (of whom I learn much to imitate, and somewhat to avoid) that upon solemn and full hearing of a cause nothing is pronounced in court, but breviates are required to be made. But yet I find when such breviates were taken, the cause was sometimes forgotten a term or two, and then set down for a new hearing, or a rehearing three or four terms after. And in the meantime the subject's pulse beats swift though the Chancery pace be slow."

Probably, as I have said, these were faults which began to appear in his later years when he was really too ill to deal with the mass of business of various kinds which weighed upon him. Age and infirmity he tells us had at first made him hesitate to deliver a long judgment in _Calvin's Case_${}^{\\sharp}\_{\\star}$ But there is no sign that his age or infirmities had in any way impaired the universal admiration which both lawyers and laymen felt for his conduct as an equity judge. " All Christendon," says Fuller,3 " afforded not a person which carried more gravity in his countenance and behaviour than Sir Thomas Legerton, in so much that many have gone to the Chancery on purpose only to see his venerable garb. . . Yet was his outward case'nothing in comparison of his inward abilities, quick wit, solid judgment, ready utterance." In 1608 Hawarde,4 describing the delivery of the judgments in Calvin's Case tells us that, " He argued very profoundelye and was exceedinge longe, but reade much in his booke' and had taken infinite paines, for he had wrote a greate volume, and was almost 4 hours in his argumentes." It is probable that the respect which he inspired was no small factor in reconciling the professional opinion of the common lawyers, to the king's decision in favour of his court.

Footnote 2: The speech of the Lord Chancellor, etc., Pref.--4 Diverse unperfect Reports, and several patches and peices of my Speech have bin put in writing, and dispersed into many hands, and some offered to the Presse. The King's 'Majestic he.ing knowledge the chord, misliked it, and thereupon commanded me to deliver to him in writing, the whole discourse of that which I said in that Cause. Thus I was put to an unexpected labour, to review my serbibled ad broken papers."

He published nothing except his argument in _Calvin's Case_; and this he says he had only done at the king's command, partly because numerous " unperfect reports " were in circulation, partly there might be as good a report of his speech as Coke had made of the speeches of the rest of the judges,5 Certain tracts on the court of Chancery and on the office of a lord chancellor have been ascribed to him ; but they were almost certainly not written by him ; 6 and there is no warrant for ascribing to him the volume

## 20.1 Officials of the Court 285

of Observations on Coke's Reports, which sometimes passes under his name.1 But he left to his chaplain, the future lord keeper Williams, some manuscripts, which have now disappeared, " for the well ordering of the High Court of Parliament, the court of Chancery, the Star Chamber, and the Council board." 2 Owing to the absence at this period of regular reports of cases in Equity, it is impossible to corge to any very clear first-hand conclusion as to his merits as a judge. The formal records of the court of Chancery, like the formal records of the courts of common law, are so impersonal that they tell us little of, the intellectual qualities of the men whose doings they recount, and nothing of the way in which they reasoned out their decisions. In Lilesmere's case, however, we are slightly better off. We have one fairly full report of his judgment in the _Earl of Oxford's Case_,3 which was no doubt made because it was one of the cases which led up to the famous controversy with Coke.

Footnote 1: Below 4?8 n. I.

Footnote 2: Hacket, Life of Williams Pt. I. 30-37; \*\* These notes," says Hacket," I have seen, but are lost, as it is to be feated, in unlucky and devouring times," ibid 3r.

Footnote 3: C. Chancery Reports r-16.

Footnote 4: "The Chancellor must give account to none but only to the King and Parliament. The cause why there is a Chancery is for that men's actions are so divers and infinite, that it is impossible to make any general law which may aptly meet with every particular act, and not fail in some circumstances. The office of the Chancellor is to correct men's consciences for frauds, brech of trusts, wrongs, and oppres

Footnote 5: "The Chancellor must give account to none but only to the King and Parliament. The cause why there is a Chancery is for that men's actions are so divers and infinite, that it is impossible to make any general law which may aptly meet with every particular act, and not fail in some circumstances. The office of the Chancellor is to correct men's consciences for frauds, brech of trusts, wrongs, and oppres

Footnote 6: "Every Court at Weuminster ought to take notice of the usages and customs of the rest of the Courts at Westminster, which are as a law to those Courts, and of which the common law takes notice," at p. 13.

7: "A Serjeant is sworn to give counsel according to law, that is, according to the law of God, the law of reason, and the law of the land; and upon both the laws of God and Treason, is grounded that rule, viz.: To do as one would be done unto. And therefore where one is bound in an Obligition to pay money, payeth it and takes no acquutance, by the common law has shall be compelled to pay the money again. But when it appeareth, that the plaintiff will recover at law, the Serjeant may advise the defend to take a Subpena in Chancery, notwithstanding his oath," p. 8.

### Law in Xvith and Xvith Cents.

in embryo the beginnings of this process. That this process, soon after Ellesmere's death, began to develop rapidly is due in no small measure to his success in vindicating the freedom of his court from the control of the common law courts, qnd, in making it, in some respects, their superior. .

It is the issue of this controversy, decided in the closing years of his life,1 which, as I have said, makes his tenure of office a turning point in the history of equity. It is fairly clear that, in spite of contemporary rumours to the contrary,3 Elbesmere did not seek to enlarge the jurisdiction of his court at the expense of rival courts. He did not encourage mercantile cases; 3 and he was content to leave jurisdiction over jegracies 4 and the probate of wills 5 to the ecclesiastical courts. But he was driven to resist the concerted attack which Coke made upon his court, because, if it had not been resisted, it would have been impossible to administer any system of equitable relief except by the leave and licence of the common law courts.6 It was really a fight for the existence of equity as an independent system. It was fortunate for the future development of English law that the issue was raised and decided at this date. The controversy between king and Parliament, between Puritan and Anglican, between the common lawyers and their rivals, had begun; but it had not yet become so embittered that it was impossible to arrive at a permanent settlement upon some of the points of difference. We have seen that the statute of James I. upon monopoly patents went a long way to effect such a settlement upon that much controverted question.7 In the same way James' decision really effected a similar settlement upon this question of the right of equity to exist as an independent system.

Footnote 1: Vol. i 461-463.

Footnote 2: Above 232 n. 15.

Footnote 3: Monro, op. cit. 94, Ivo-III, 117-118.

Footnote 4: footnotetext: Monro, op. cit. 94, Ivo-III, 117-118.

Footnote 6: As Bacon said, with reference to Coke's use of the statute of Premunire against the Chamery (vol. i 462), it was, " A strange attempt to make the Chancellor sit under a hatchet instead of the King's arms," Spedding, op. cit. 94.

Footnote 7: Vol. iv 353-354.

It is true that the axis of equity was threatened when the outbreak of the Great Rebellion destroyed the constitution.9 The Parliamentary party did not forget that the chancellor was the first official of the state as well as the judge of the court of Chancery; that the king had sometimes used the court of Chancery

## 6 Officials of the Court

### 6.1.1 236

In this section we will discuss the basic properties of the Court.

### 6.1.2 236

The Court is a _face_ of the Court.

### Law in Xvith and Xvith Cents.

used under the supervision of the common lawyers. Probably that supervision would have had the same effect upon the court of Chancery as it had upon the court of Admiralty and the ecclesiastical courts.1 It would have rendered it ineffective and useless. The only remedy would have been to invoke the aid of the legislature to restore or to create a court with the powers which James I.'s decree secured to the Chancery. It is not probable that a new statutory creation of that kind would have been as efficient as a court, which was already beginning to evolve a code of procedure, and, through the working of that procedure, a body of substantive rules.

Footnote 1: Vol. i SS56-558, 674-630,

Equity, then, was fortunate in securing its independent existence when it did. It was no less fortunate in securing, immediately afterwards, the guidance and direction of the friend and protege of Lord Ellesmere,2 and the most philosophic lawyer in England--Francis Bacon.3 He consolidated the victory which Ellesmere had won, and gave to Equity a great impulse along that path of definition, and co-ordination with the rules of the common law, which, since the advent of the lawyer chancellors and until the late controversy,4 had been silently proceeding throughout the greater part of the sixteenth century.

Footnote 2: Gardiner iii 79-" For some time past the late Chancellor had lost no opportunity of speaking a good word for Bacon, and had expressly declared his wish that he might be his successor. The same exalted idea of the prerogative, the same desire to limit the jurisdiction of the Courts of Common law, animated them both."

Footnote 3: Spedding, Letters and Life, and his edition of Bacon's Works; Gardiner, History of England, and article in Dict. Nat. Biog.; R. W. Church, Bacon; J. E. G. de Montorncency, Francis Bacon in Great Jurists of the World (Continental Legal History Series) 144-168.

Footnote 4: Bacon's view, Spedding, op. cit. vi rg8, that, "The former discords and differences between the Chancery and other courts was but flesh and blood; and now the men were gone the matter was gone"--has in it a good deal of substantial truth.

Footnote 5: Spedding, Letters and Life i rog--i I have taken all knowledge to be my province; and if I could purge it of two sorts of rovers, whereof the one with frivolous disputations, contrutations, and verbosities, the other with blind experiments and auricular traditions and impostures, hath committed so many spoils, I hope I should bring in industrious observations, grounded conclusions, and profitable inventions and discoveries; the best sta'e of that province."

At the age of thirty-one Bacon told his uncle, Lord Burghley, that he had taken all knowledge to be his province;6 and, as with many another of his statements, what in any other man would have been empty boasting, was with him a statement of sober fact. He could and did survey the field of existing knowledge, critically diagnosing the shortcomings of past thinkers, suggesting the need for inquiry by new methods into the unexplored kingdom of nature, and presenting a vision of the vast and beneficial extensions of the bounds of human knowledge which would follow from such an inquiry. It was as a philosopher that Bacon used

## 6 Officials of the Court 289

these words ; and we have seen that, as a philosopher, he both summed up the intellectual changes of the sixteenth century, and foreshadowed the new intellectual developments of the future.1 But he was both a student of and a practitioner in many other branches of knowledge besides philosophy. Upon literature, history, politics, and law he left his mark. We are not here concerned with his achievements in literature and history ; but we are concerned with his achievements in politics and law. Of his political career I shall speak in a later chapter.2 In this and the following chapter we must consider him as a lawyer.

Footnote 1: Vol. i_y_49-52. * Vol. vi c. 6. * Below 489-493. * So his mother wrote in r59r, Spedding, Letters and Life i iTr. * * Homo, nature minister et interpres, tantum facit et intelliggit, quantum, de nature ordine, re vel mente observaverits; nec amplitus sciet aut potest," Nov. Org. Bk. i App. i.

### Law in Xvith and Xvith Cents.

to reason out his rules and principles from diverse decisions upon the concrete facts of individual cases. In law it was only by studying these individual cases that existing rules could be understood, and new developments of these rules be established. " It is a sound precept," he wrote, " not to take the law from the rules, but to make the rule from the existing law. For the proof is not to be sought from the words of the rule, as if it were the text of law. The rule, like the magnetic needle, points at the law, but does not settle it."1 Bacon's conviction of the necessity for the study of the concrete facts of nature or of human life is, I think, not wholly unconnected with the fact that his legal training was in a system of case law.

Of Bacon as a common lawyer I shall have something to say in the next chapter.2 Here we must look at him chiefly from the point of view of the influence which, as chancellor, he exerted upon the growth of equity. But to understand the nature of his influence, whether as a chancellor, a common lawyer, or a statesman, we must know something of the man himself. I shall therefore at this point attempt in the first place to describe the man himself, in the second place to say something of him as a jurist, and in the third place to give some account of his achievements as chancellor.

Footnote 2: De Augmentis, Bk. viii c. 3 Aph. 85--\* Recte jubetu:, ut non ex regulis jus sumatur ; sed ex jure quod est, regula fiat ; neque enim ex verbis regule petenda est probatio, ac si esset textus legis ; regula enim legem (ut acus nautica polos) indicat, non statuit "; the translation in the text is Spedding's.

_The Man._

The main facts of Bacon's life are so well known that it is only necessary to give a bare summary of important dates. He was the youngest son of Nicholas Bacon, and was born January 22nd, 1501. In 1573 he entered Trinity College, Cambridge, and in 1575 he was admitted to Gray's Inn. From 1576-1579 he was attached to the French embassy. The death of his father in that year recalled him to England, and made it necessary for him to devote himself seriously to the study of the law. He was called to the bar in 1583, and, probably by the influence of his uncle,3 was admitted to the Readers' Table in 1586. He read in 1587 and 1599. In 1584 he had become a member of Parliament; and he soon made his mark in this new sphere. In 1591 he made the acquaintance of the earl of Essex, who tried in every way to push his fortunes. But he had offended the queen by his conduct in Parliament, and in her reign the only offices which he obtained were the reversion to the office of clerk to the Star Chamber, of which he did not get possession for twenty years,

## 11 Officials of the Court 241

and the office of learned counsel Extraordinary without patent or fee.1 The latter office shows that his abilities as a barrier were gaining recognition ; and he was employed by the crown in connection with many state prosecutions. The part which he played in the prosecution of Essex, his friend and benefactor, has left a serious stain upon his name. It was not a creditable episode in his career ; but we shall see that, under the circumstances and judged by the standpoints of his own day, there is more to be said for Bacon than posterity has sometimes imagined.2 The promotion which Bacon had so long sought he at last got from James I. In 607 he was made Solicitor-General. At the death of Salisbury in 1612 he offered his services to the king, and proposed to desert law for politics. But he failed to get the office of Treasurer, and also that of master of the wards, for which he had also applied. In 1613 he became Attorney-General, and in that capacity took a leading part in drawing up the decree in favour of the Chancery which ended the dispute between Coke and Ellesmere. In 1616 he became a Privy Councillor, and in 1617 Lord Keeper. In 1618 he became Lord Chancellor, and was raised to the peerage with the title of Baron Verulam. In 1622 he was created Viscount St. Albans. In the same year he was impeached by the House of Commons for bribery. He confessed his guilt, and was sentenced to pay a fine of _$40,000_, to be imprisoned during the king's pleasure, and to be incapable of sitting in Parliament or of coming within the verge of the court. The king remitted his fine and imprisonment ; and, though he made one or two efforts to take some further part in politics, he did not succeed. The remainder of his life was perforce devoted to his literary work. He died April 9th, 1626. All through this active legal and political career he had never abandoned his philosophic aims. In 1605 he published the Advancement of Learning, in 1620 the Novum Organum or Instauratio Magna, and in 1623 the nine books of the De Augmentis.

Footnote 1: This',''' clear from his letter to James I. in 1620-''You found me of the Learned Counsel, Extraordinary, without patent or fee; a kind of _individual vacuum vacuum_,'Spedding, Letters and Life vii 168; for the significance of this appointment, and the subsequent development of the 7 new class of King's Counsel, see vol. vi c. 8, 2 Below 244 and n. 3.

The bare recital of the events of Bacon's career shows us that his character has in its elements of paradox and mystery, which must always make it a matter of speculation to historians who are brought into contact with it. And the more we know of the man, the more paradoxical and mysterious does his character appear. We admire, his pregnant aphorisms, his eloquent prophecies of the results of the extension of man's kingdom over nature, his wise advice on all the political and religious and

### Law in Xvith and Xvith Cents.

legal questions of the day ; we admire the wonderful technique of his legal arguments and other writings about legal matters, the large wisdom of his essays, and the wonderful literary style of all the productions of his pen ; we know that as an orator, he was as effective in the law courts as in Parliament. And then we find him noting down as things to be remembered and attended to, petty tricks of style1 and flattery,2 and devices to get rid of those who stood in his way ;3 we find him, not only blind to the corruptions of the Court, but ready to take his tone from it, and to act as those around him were acting ; we find that, in the face of the ideal of a just judge which he had many times portrayed,4 he was driven to confess himself guilty of the very offences against which he had' eloquently warned others. What then is the explanation ?

Footnote 1: "To suppress at once my speaking with panting and labor of breath and voyce ; " "To use at once upon entrance gyven of Speach though abrupt to compose and drawe in myself "; " To free myself at once from pay. of formality and complement though with some shew of carelessness pride and rudeness," Commentarius Solutus, Spedding, Letters and Life iv 93, 94.

Footnote 2: "To furnish my L. of S. wth ornamts for publike speaches ; " " To make him think how he should be reverenced by a L.Chr yf 1 were "; " At Counsell table cheedly to make good my L., of Salsb, nocions and speaches," ibid 93; and yet he wrote to the king immediately after Salisbury's death that " he was a fit man to keep things from growing worse, but no very fit man to reduce things to be much better. . He loved to have the eyes of all Israel a little too much upon himself. . He was more _in operatione_ that _in operce_," ibid 28o.

3: " To have in mynd and use ye Att weaknesses," ibid 5o; cp. ibid 92; the Attorney was Hobart, whom Bacon succeeded when, on Bacon's advice, James made him chief justice of the Common Pleas, moving Coke to the King's Bench, below 436-438.

Footnote 4: See his speaches to Hutton, Spedding, Letters and Life vi 202 ; and to Whitelock, ibid vii 103 ; and the Essay of Judicature; it should be noted in the light of subsequent events that in his speaches to these two judges he said that not only must they be pure, but that they must see that the hands of their servants were pure likewise; Spedding notes that this advice to Whitelock was given on the_sque day as that on which he had made an order for Lady Wharton, having only two or three days before accepted from her a purse of _$100, ibid vii 103 n. 1._

Footnote 5: I did not have to worry about the way to do so, but it is not clear how to do so.

Footnote 6: I did not have to worry about the way to do so.

${}^{\\mbox{\\scriptsize{\\it 14}}}$ To suppress at once my speaking wth panting and labor of breath and voyce ; " " To use at once upon entrance gyven of Speach though abrupt to compose and drawe in myself "; " To free myself at once from pay. of formality and complement though with some shew of carelessness pride and rudeness," Commentarius Solutus, Spedding, Letters and Life iv 93, 94.

${}^{\\mbox{\\scriptsize{\\it 2}}}$ " To furnish my L. of S. wth ornamts for publike speaches ; " " To make him think how he should be reverenced by a L.Chr yf 1 were "; " At Counsell table cheedly to make good my L., of Salsb, nocions and speaches," ibid 93; and yet he wrote to the king immediately after Salisbury's death that " he was a fit man to keep things from growing worse, but no very fit man to reduce things to be much better. . . He loved to have the eyes of all Israel a little too much upon himself. . He was more _in operatione_ that _in operce_," ibid 28o.

${}^{\\mbox{\\scriptsize{\\it 3}}}$ " To have in mynd and use ye Att weaknesses," ibid 5o; cp. ibid 92; the Attorney was Hobart, whom Bacon succeeded when, on Bacon's advice, James made him chief justice of the Common Pleas, moving Coke to the King's Bench, below 436-438.

${}^{\\mbox{\\scriptsize{\\it 4}}}$ See his speaches to Hutton, Spedding, Letters and Life vi 202 ; and to Whitelock, ibid vii 103 ; and the Essay of Judicature; it should be noted in the light of subsequent events that in his speaches to these two judges he said that not only must they be pure, but that they must see that the hands of their servants were pure likewise; Spedding notes that this advice to Whitelock was given on the_sque day as that on which he had made an order for Lady Wharton, having only two or three days before accepted from her a purse of _$100, ibid vii 103 n. 1._

${}^{\\mbox{\\scriptsize{\\it 6}}}$ S. P. Dom. 1679-1623 186, exvii 37--Chamberlain to Carleton.

**OFFICIALS OF THE COURT 243**

persuasive tongue, a marvellously effective literary style, real eloquence inspired by genuine love for his country and for truth --he was too intellectually aloof from his own generation to influence it effectively.1 He was always offering good advice which was generally rejected, and never completely followed.

Footnote 1: Thus, S.P. Dom. 1679-r623 267, coxi 127, Chamberlain writes that after his fall he was "vain and idle as ever."

But with all his idealism he was no mere academic speculator. He had a sternly practical side to his intellect. From his philosophy he hoped to see tangible fruit. His legal studies enabled him to earn his living at the bar. His political speculations he hoped would give him the high place in the state which he was conscious he could fill. And he was no ascetic. He loved the pomp and circumstance of high official position so well that he excited the ridicule of some of his contemporaries.3 But in Elizabeth's court, and still more in the court of James I., the position which he sought could only be won by judicious flattery and adroit intrigue. Bacon saw this clearly enough. He entered for the race, and turned his matchless talents to win the favour of those who could give him what he desired. But he was never really at home in this enterprise. Since his high ideals often appear in the letters which he was constantly writing to beg favours, it is no wonder they failed to effect their object. And so for many years he was always a beggar for preferent who begged in vain.3 His hopeful temperament sustained him; and his consciousness that he could serve his country, if he got what he desired, blinded him to the effect which this course had upon his reputation, and, what was more fatal, to the effects which it had upon his character.

Footnote 2: Carleton wrote in r606--" Sir Francis Bacon was married yesterday to his young wrench in Maribone Chapel. \*He was clad from top to toe in purple, and hath made himself and his wife such store of rationents of cloth of silver and gold, that it draws deep into her portion," cited Church, Bacon 99; S.P. Dom. 161r-1678 246, lxxv 52--Chamberlain reports in 1673 that he was "feasting the whole University of Cambridge and living in splendid style"; in 1678 ibid 535, xcvii 33--describing his visit to the Mercer's Chapel to hear the Archbishop of Spalato, he says--"The Chancellor was there in as great pomp as he went awhile ago to Sir Baptist Hicks' and Barnes' shops to cheapen and buy silks and velvers."

Footnote 3: As to this matter of suing for office I think that Spedding successfully defends Bacon; speaking of his letter to the king in which he applied for the post of Lord Chancellor (Letters and Life v 244) he says--" When Bacon says that he should for his own part 'suspect' a man who sued to be made a judge, he did not mean a man in the position of Attorney-General, or otherwise entitled to offer counsel in such matters is still less a man whose suit consisted in an appeal to the personal knowledge of his qualifications possessed by the patron himself, as proved in a long course of service. If all suits were urged on similar grounds and in a similar spirit to this, there would be no more harm in suing for a judicial office than for any other "; this is very true of many of Bacon's other applications for office.

### Law in Xvith and Xvith Cents.

extraordinarily unemotional.1He was not sensitive to rebuffs. He seems to have been incapable of any very strong feelings of love or of friendship.2 But, though this insensibility helped him to pursue his ideals without interruption, it had its dangerous side. It meant that his sense of personal honour was fione too keen. It meant that he could somewhat easily take his tone from the society in which he was placed. But the moral tone of the Court was not high. Being unprotected by a keen sense of personal honour, and absorbed in the high ideals of which he never lost sight, he was led to do acts which men of far less lofty ideals, but with\*a keener sense of personal honour would have instinctively avoided.

Footnote 1: He was himself conscious of this; writing to Villiers in 1615 of an interview with Ellesmere, he says--" My Lord Chancellor is prettilly amended. I was with him yesterday almost half an hour. He used me with wonderful tokens of kindness. We both wept, which I do not often," Spedding, Letters and Life v 245.

It is here that we see the secret' of those acts which have weighed so heavily on his memory, and ultimately led to his ruin. In his eyes the service of the state outweighed all his very considerable obligations to Essex,3 and led him to press home the charge of treason against his warm-hearted friend and benefactor. He was quite unconscious of the growing corruption of James's court, and of the moral worthlessness of his favourites. He was equally unconscious of the growing corruption of the court of Chancery.4 He knew that he intended to decide cases justly ; and, as success came, he grew more and more careless, more and more insensible to the moral character of the practices which went on around him.5 It never occurred to him that Buckingham's interferences with the cases which were being heard in his court might have an ugly look ; and that the presents which he and other officers of the court received were hardly consistent with those high standards of honour which he was in the habit of setting before the newly created judges. No doubt

**OFFICIALS OF THE COURT 245**

it was, from this point of view, unfortunate that he became Lord Chancellor, and not one of the Chief Justices. The standards of the Chancellor were lower than those of the common law courts, because it was a branch of the civil service as well as a judicial court; and it was therefore liable to be infected by the growing corruption of that service. And so Bacon allowed himself almost, if not quite, unconsciously to drift into questionable practices, till the crash came.1

Footnote 1: Two accusations had been brought against Bacon in 1619, one by Lady Ann Blount (S.P. Dom, r69-r623 52, cix 88; ibid 144, cxy 24-27) and the other by Wray:him (ibid 63, cix 39); but they were proved to be slanders and the petitioners were punished.

The House of Commons, in which Coke and the common lawyers ruled supreme, was naturally not sorry to get evidence of the abuses prevalent in the Chancery. John Churchhill, one of the registrars, was detected in the practice of forging orders of the court. He was determined "not to sink alone;" 2 and, to the astonishment of the House, in the course of the ensuing investigations, accusations of corruption were made against no less a person than the Lord Chancellor.3 At first he seems to have thought that he could prove his innocence.4 But, as the case developed, his eyes were at length opened to his position. He saw too late that his conduct, however much it might be palliated, was indefensible. He abandoned the attempt to make a defence, with the idea that, if he made a confession, he might escape a sentence and simply be allowed to resign.5 But the evidence had been accumulating. The king refused to stop the inquiry;6 and the House of Lords rightly demanded an answer to the twenty-eight charges which had been formulated. The charges showed Bacon that he could do nothing except throw himself on the mercy of the court.7

Footnote 2: "One Churchhill, who was dismissed from the Chancery Court for extortion, is the chief cause of the Chancellor's ruin," Chamberlain to Carleton, S.P. Dom, r69-r623 238, cxx 38; with a view to remedy this abuse, Williams, Bacon's successor, ordered that the registrars "shall drawe up noe order upon any petition whatsoever unless they shall perfectly know the hand that writes the direction to be either mine owned hand or the hand of one of my four secretaries, or of Richard Goland who writes in my study," Sanders, Chancery Orders i x49.

Footnote 3: "The petitions against the Lord Chancellor are too numerous to get through; his chief friends and brokers of bargains, Sir Geo. Hastings, Sir Rich. Younge, and others attacked, are obliged to accuse him in their own defence, though very reluctantly," S.P. Dom, r69-r623 328, cxx 38.

Footnote 4: Spedding, Letters and Life vii 223, 215, 216.

Footnote 5: "Ibid 240-242--letter to the king of April 21, r621; ibid 242-245--letter to the House of Lords of April 22, r621.

Footnote 6: "C Chamberlain wrote to Carleton--" The king sent woud to Parliament that he had refuse# the Lord Chancellor's tender of the Great Seal, and wished, them to hear him favourably, but to judge him as they thought fit, if matters prove foul," S.P. Dom, r69-r623 248, cxx 97.

Footnote 7: For the charges and Bacon's answers see Spedding,. Letters and Life vii 252-262.

###### Abstract

The House of Commons, in which Coke and the common lawyers ruled supreme, was naturally not sorry to get evidence of the abuses prevalent in the Chancery. John Churchhill, one of the registrars, was detected in the practice of forging orders of the court. He was determined "not to sink alone;" 2 and, to the astonishment of the House, in the course of the ensuing investigations, accusations of corruption were made against no less a person than the Lord Chancellor.3 At first he seems to have thought that he could prove his innocence.4 But, as the case developed, his eyes were at length opened to his position. He saw too late that his conduct, however much it might be palliated, was indefensible. He abandoned the attempt to make a defence, with the idea that, if he made a confession, he might escape a sentence and simply be allowed to resign.5 But the evidence had been accumulating. The king refused to stop the inquiry;6 and the House of Lords rightly demanded an answer to the twenty-eight charges which had been formulated. The charges showed Bacon that he could do nothing except throw himself on the mercy of the court.7

### Law in Xvith and Xvith Cents.

**He acknowledged the justice of the sentence passed upon him.** But, even while making this acknowledgment, he showed the same moral insensibility that had caused his ruin. He contended that, though the sentence was just, he had always acted as a just judge.1 He could never see that his condemnation was a fatal bar to any further public employment ; and he could confidently leave his name to the "next ages."

Footnote 1: "I was the justest judge that was in England these 50 years : But it was the justest censure in Parliament that was these 200 years," Works vii 179; it is in substance the position which he took in his letter to the king of March 25, i6zt--" And for the briefers and gifts wherewith I am charged, when the I'sok of hearts shall be opened, I hope I shall not be found to have the troubled fountain of a corrupt heart in a deparved habit of taking rewards to prevent justice; howsoever I may be frail, and partake of the abuse of the times," Spedding, Letters and Life vii 226.

I incline, then, rather to the opinion of those who take a more favourable view of Bacon's character, than to the opinion of those who condemn him as one of the meniest of mankind. He was a man of lofty ideals and far-sighted views--too lofty and too far-sighted for his own day ; so that though, both as a thinker and as a man of action, he was always using his unique combination of speculative, literary, and practical talents to gain acceptance for them, he failed to do so. But his absorption in these ideals weakened a moral sensibility never very robust. And this fatal defect in his character was aggravated by his continual striving, by the methods then usual, for an office which would help him to realize some of them. The result was that this one grave defect in a man of high character, ripe wisdom, untiring perseverance, and consummate genius, both caused his ruin and has injured his fame with all the succeeding ages.

But it is his best side, both morally and intellectually, that survives in his writings ; and it is to some of these that we must turn if we would estimate his position as a jurist, and his work as a chancellor.

_The Jurisst._

No student of English law in the sixteenth century who has read Bacon's published works on subjects connected with the common law would deny that he was in some respects the best lawyer of his day. Whether we look at his tract on the Maxims of the Law, or Ifs reading on the Statute of Uses, or at his legal arguments, we see the same qualities--luminous surveys of the ground, a mastery both of broad principles and of technical details, and, when the subject matter permits, a literary presentment of which no other lawyer was capable. Of his Maxims I shall speak later ;2 and of his reading on the Statute of Uses I have already said something, and

## 6 Officials of the Court 247

shall have occasion to speak again.1 Some of his legal arguments2 rise on occasion to real eloquence; and there is much evidence to show that they impressed his auditors by the grace of the speaker's delivery, as much as they impress us to-day by the excellence of their subject matter and their grace of style. It is clear from the evidence of a bystander that his argument in one of his earlier cases showed that a new star had arisen in the legal firmament;3 and in the _Case de Rege Inonsaluo_, which he argued as Attorney-General, he says, " I lost not one auditor that was present in the beginning, but said till the latter end;" and that, " it pleased my Lord Coke to 'say it was a famous argument."4 Ben Jonson's evidence is to the same effect--" His hearers could not cough or look aside from him without loss. He command;d when he spoke, and had his judges angry and pleased at his devotion--the fear of every man that heard him was that he should make an end."5 He was, as I have said, a man with great ideals; and his work, not only as a philosopher, but also as a statesman, and even as a lawyer, was inspired by them. Hence, in cases like _Calvin's Case_ or the _Case de Rege Inconsaluo_, which involved some political principle in which he believed, the technical reasoning, by which he supported his argument, was so transfused by his eloquence that laymen as well as lawyers could listen to it with delight.

Footnote 1: Vol. iv 467; below 395-396.

Footnote 2: The following are his published arguments: The Case of Impeachment of Waste; Low's Case of Tenures; Case of Revocation of Uses; Jurisdiction of the Council of the Marches; Chudleigh's Case; Case of the Post. Nati of Scotland; Case de non procedende Roge inconsaluo, Works vii 517-725.

But the power to produce this result upon the lawyers who were to decide the case demands, not only enthusiasm for an ideal, but also a complete mastery of the technical learning applicable to the question. Bacon's mastery was complete, because he had not only studied the rules of English law; he had also some knowledge of the rules of the Roman civil law, and he had used this knowledge to strengthen his grasp of legal principles, and to acquire some ideas upon the theory of law in general.6 In other

### Law in Xvith and Xvith Cents.

words he was one of the few common lawyers of his day who had studied law scientifically. This gave him that power, which we observe in all his writings, of laying down the broad principle applicable to the case in hand, and of grouping his proofs and instances under it in an orderly ,way. It also gave him the power of making a critical estimate of the strong and weak points of the laws of England. He had a strong admiration for them. " They commend themselves best," he wrote, " to them that understand them ; and your Majesty's Chief Justice of your Beach hath in his writings magnified them not without cause. Certainly they are wise, they are just and moderate laws ; they give to God, they give to Cusar, they give to the subjects that which appratineth."1 But his admiration had nothing in it of Coke's idolatry. It was the admiration of one who could see their weak side, and, as we shall see,2 propose well thought out reforms.

Footnote 1: A Pr position to his Majesty . touching the Compiling and Amending of the Laws of England, Speddi g, Letters and Life vi 63.

Footnote 2: Below 485 489.

Footnote 3: Alph. 6--4 Leges enim mirum in modun, et maximo intervalo, inter se different; ut alice excellent, alice mediocriter se habeant, aliae prorsus vitiosse sint. Dictabimus gibbir pro judici nostri modulo quasdan${}^{\\prime}$tanquam legum leges ; ex quibus informatio peti possit, quid in singulis lezibus bene aut perperam position aut constitutun sit," The translations here and elsewhere are Spedding's.

Footnote 4: Alph. r.

Footnote 5: Alph. 3--4 Lex eim nil aliud quam regula imperans." .

Footnote 6: Alph.3--4 Firmamentum juris privati tale est. Qui injurian facit, re utilitatem aut voluptatem capit, exemplo periculun. Cacteri utilitatis aut voluptatism iilius participies non sunt, sed exemplum ad se pertiacre putant. Itaque facile ceount in consensum ut caveatur subi per leges : ne injurie per vices ad singulos redeant."

Bacon's view as to the theory of law in general, and the manner in which he applied that theory to the English law of his day, are to be found in the ninety-seven aphorisms contained in the third chapter of the eighth Book of the _De Augustnis._ His object, he tells us, was " to set down . what may be called certain ' laws of laws ' whereby we may derive information as to the good or ill set down and determined in every law."3, The following summary will show how he fulfilled this object.

Footnote 3: Alph. 6--4 Leges enim mirum in modun, et maximo intervalo, inter se different; ut alice excellent, alice mediocriter se habeant, aliae prorsus vitiosse sint. Dictabimus gibbir pro judici nostri modulo quasdan${}^{\\prime}$tanquam legum leges ; ex quibus informatio peti possit, quid in singulis lezibus bene aut perperam position aut constitutun sit," The translations here and elsewhere are Spedding's.

Footnote 4: Alph. r.

Footnote 5: Alph. 3--4 Lex eim nil aliud quam regula imperans." .

Footnote 6: Alph.3--4 Firmamentum juris privati tale est. Qui injurian facit, re utilitatem aut voluptatem capit, exemplo periculun. Cacteri utilitatis aut voluptatism iilius participies non sunt, sed exemplum ad se pertiacre putant. Itaque facile ceount in consensum ut caveatur subi per leges : ne injurie per vices ad singulos redeant."

In civil society either law or force prevails ;4 and law he later defines as "' a commanding rule."5 The reason for the existence of private law is public utility.6 The efficacy of private law depends ultimately upon the power of government, by the authority of which the magistrates, who protect private rights,

## 1.1 Officials of the Court 249

are maintained.1 The maintenance of public law, then, is essential to the maintenance of private rights; and further, "it extends also to religion, arms, discipline, ornaments, wealth, and in a word, to everything that regards the well-being of a state."2 The laws are thus the sinews and the instruments for the maintenance of a peaceful, a prosperous, and a civilized life." But law may prevail, and yet there may be much injustice--" There is a kind of force which pretends law, and a kind of law which savours of force rather than equity."4 If law is to attain its objects it must have certain qualities. It must be "certain in meaning, just in precept, convenient in execution, agreeable to the form of government, and productive of virtue in those that live under it."5 Bacon then proceeds to the consideration of these various qualities of a good law; but in fact, he deals only with the first--its certainty. The uncertainty of law, may, he says, arise from one of two causes. Either there is no law dealing with the question, or the law dealing with it is obscure.6 He first considers various methods by which the absence of law dealing with particular cases can be remedied, such as reference to similar cases,7 extensive interpretation,8 precedents,9 equity criminal or civil,10 retrospective statutes.11 He then passes on to various causes for the obscurity of the law. This arises either from the excessive accumulation of laws, from bad draftsmanship, from faulty methods of interpretation or exposition, or from contradictory and uncertain decisions given by the courts.12

Footnote 12: Aph. 5-"Fisnis enim et scopus, quem leges intuerti, atque ad quem jussiones et sanctions saus dirigere dobent, fon alius est quam ut eves feliciter degant: id fiet, si pietate et religione rete instituti; moribus honesti; armis adversus hostes externons tuti; legum auxilio adversus seditones ct privatas injurias muniti; imperio et magistrustibus obscuestes; copis et opibus locupletes et florentes fuiernt. Harum autem rerum instrumenta et nervi sunt leges."

Footnote 13: Aph. 5-"Fisnis enim et scopus, quem leges intuerti, atque ad quem jussiones et sanctions saus dirigere dobent, fon alius est quam ut eves feliciter degant: id fiet, si pietate et religione rete instituti; moribus honesti; armis adversus hostes externons tuti; legum auxilio adversus seditones ct privatas injurias muniti; imperio et magistrustibus obscuestes; copis et opibus locupletes et florentes fuiernt. Harum autem rerum instrumenta et nervi sunt leges."

Footnote 14: Aph. 3-46.

Footnote 15: Aph. 7-"Fis lex bona censeri possit, que sit intimatione certa, praccepto justa, executive commada; cum fomma politio congrua, et genearans virtuem in subditis."

Footnote 16: Aph. 9-"Huplex, legum incertiudo; altera, ubi lex nulla prescribitur; altera, ubi ambigu et obscura."

Footnote 17: Aph. 17, 12.

Footnote 18: Aph. 32-46.

Footnote 19: Aph. 32-46.

Footnote 20: Aph. 5-"Ossauritas legum a quatuor rebus originem ducit: vel ab accumulation legum inmia, prasetem admixtis obsoletis; vel a description earumambigua, aut minus perspicua et dilucida; vel a modis euncleandi juris neglects, aut non bene institutions; vel denique a contradictione e\*vacillatino judiciroun."

Footnote 21: Below 485-489.

Footnote 22: Aph. 5-"Fisnis enim et scopus, quem leges intuerti, atque ad quem jussiones et sanctions saus dirigere dobent, fon alius est quam ut eves feliciter degant: id fiet, si pietate et religione rete instituti; moribus honesti; armis adversus hostes externons tuti; legum auxilio adversus seditones ct privatas injurias muniti; imperio et magistrustibus obscuestes; copis et opibus locupletes et florentes fuiernt. Harum autem rerum instrumenta et nervi sunt leges."

Footnote 23: Aph. 5-"Fisnis enim et scopus, quem leges intuerti, atque ad quem jussiones et sanctions saus dirigere dobent, fon alius est quam ut eves feliciter degant: id fiet, si pietate et religione rete instituti; moribus honesti; armis adversus hostes externons tuti; legum auxilio adversus seditones ct privatas injurias muniti; imperio et magistrustibus obscuestes; copis et opibus locupletes et florentes fuiernt. Harum autem rerum instrumenta et nervi sunt leges."

Footnote 24: Aph. 7-"Fisst autem et vis quedam legem simulans; ct lex nonnulla magis vm sapiens quam aquitatem juris."

Footnote 3: Aph. 7-"Flex bona censeri possit, que sit intimatione certa, praccepto justa, executive commada; cum fomma politio congrua, et genearans virtuem in subditis."

Footnote 6: Aph. 9-"Huplex, legum incertiud

### 250 Law in Xvith and Xvith Cents.

in this, as well as in the rest of the work, Bacon lays down universal propositions. They may have been inspired largely by his knowledge of English law ; but they are none the less applicable to any civilized body of law. What he has to say as to methods of interpreting statutes, the use of precedents, the question of retrospective laws, the compilation of codes and digests, the necessary books for the understanding of the law, the sphere of lectures and exercises in law, modes of preventing inconsistent judgments, is valuable to the students of all systems of law. And they are all full of the useful wisdom of the thinker who is also a practitioner. Let us take two out of many illustrations. Here is a warning specially applicable to lawyers who work with a system of case law :--"Consequence does not draw consequence, but the extension should stop within the next cases ; otherwise there will be a gradual lapse into dissimilar cases, and sharpness of wit will have greater power than authority of law."1 Here is a correct appreciation of the effect which the discovery of new documentary evidence, in the shape of old records, should have on established legal doctrine, as distinct from legal history : --"Examples which have lain as it were buried in desks and archives and have openly passed into oblivion, deserve less (authority). For examples, like waters, are most wholesome in a running stream."4

Footnote 1: De Augemtis, Bk. VIII. c. 3 Aph. 16--"Consequentie non est consequentia ; sed sisti debt extensio intra casus proximos : alioqui labetur paulatim ad dissimilia, et magis valebutt acumina ingeniorum, quam autocitates legum,"

Footnote 2: "(Exempla) que vero in scrinis et archivis mansevent tanquam sepulta, et palam in oblivionen transient, minus (auctuctriatis).$d$ Exempla emim, sicut aque, in profunte sansimas," ibid Aph. 28 ; the application of this principle might perhaps afford Rome solution to Lord Summer's query in Palgrave Brown & Son v. S.5, Turid \[1922\] A.C. at p. 413 as to " what would happen, if some learned and industrious person compiled from the records and cases lodged by the parties in your Lordships: House, and the transcripts of your Lordship's opinions preserved in the Parliament Office, a selection of ' Unnoticed House of Lords Cases."

3We have seen, above 16-19, that this need was better appreciated by the civilians ; for other attempts in this direction made by the common lawyers see below 397-401.

## 25 Officials of the Court

### The Chancellor

Bacon's decisions as chancellor are still among the unpublished records of the court, and so we only have very scrapy and very unsatisfactorynotes of them.1 It would no doubt be interesting to see the actual records of these cases. We should be able to see the directions in which Bacon developed equity, we might perhaps discover that lie had originated or anticipated some of its later doctrines. But with him, as with the other chancellors of this period, in the absence of reports, we shall never be able to discover how " he directed the evidence, moderated length repetition or impertinency of speech, recapitulated selected and collated the material points of that which had been said, gave the rule or sentence :" nor how he "commended and graced an advocate when the cause was well handled and fair pleaded; how he reprehended when there appeared cunning counsel, gross neglect, slight information, indiscrect pressing, or an over-bold defence."2 We do, however, know from his own writings a good deal more of his achievement than we know of the achievement of any other chancellor before the beginning of the regular reports.

Footnote 1: Mainly in Tothill; for this book see below 276, 277.

Footnote 2: Essays of Judicature.

In the first place, he succeeded in restoring a certain amount of harmony between the common law and the Chancery. No doubt the victory of the Chancery, to which he had largely contributed, had left the common lawyers rather sore. In the speech which he made on taking his seat in Chancery he promised that the issue of injunctions should be carefully regulated;3 and further, he imitated the example of Sir Thomas More, and invited the judges to dinner to discuss the matter. After dinner, he pointed out that the late controversy had been largely personal;4 that for the future, " as I would not suffer any the least diminution or derogation from the ancient and due power of the Chancery, so if anything should be brought to them at any time touching the proceedings of the Chancery which did seem to them exorbitant or inordinate, that they should freely and friendly acquaint me with it, and we should soon agree; or if not, we had a master that could easily both discern and rule." At which he says, " I did see cheer and comfort in their faces, as if it were a new world."5 He was as good as his word. In his orders he carefully provided against the

### 252 Law in XVITH AND XVITH CENTS.

**abuse by**: \*\*litigants of the power to get injunctions;\*\*1 **and it is clear from the reports that his measures had some success, since, during the rest of this period, the Chancery and common law courts ceased to quarrel. And so it may be fairly said that he restored the old relations between the common law courts and Chancery, which was necessary for the efficient working of both sets of tribunals.**

Footnote 1: Orders in Chancery nos. 20-28; cp. De Augmentis Bk, viii **c. iii**: **Aph. 42-46.**

\*\*In the second place, his speech on taking his seat in Chancery showed that he knew at least some of the weaknesses of the court, and was prepared to reform them. We have seen that he promised to regulate carefully the issue of injunctions. He went on to say that he did not mean to rely too much upon the reports of the masters;\*\*2 \*\*that the final decision should always rest with himself;\*\*3 \*\*and that the opinions of the judges, when they were called in to advise him, should always be respected.\*\*4 \*\*To the suitor he promised a speedy decision after the hearing of the case,\*\*4 \*\*and to sit long that the arrears of causes might be disposed of:\*\*5 \*\*At the same time he let it be known that he would never make an order till he was satisfied of its justice. There was to be no more cursory making of orders on ex parte applications--a course which led to the spinning out of cases by the necessity for the making of further orders.\*\*6 \*\*Further, he promised that all former orders directed to diminish the expense of a suit should be maintained. He would see to it that pleadings and examination were not prolix, that copies should be properly executed, that no new fees should be exacted, that plaintiffs who could not prove their bills should be made to pay larger costs.\*\*7

Footnote 1: It is not clear from the fact that

**OFFICIALS OF THE COURT 253**

set of Orders, which, to a large extent, fixed the practice of the court till the reforms of the last century. Throughout his life Bacon was a consistent advocate of the codification of the statute law, and of the digesting of case law. This set of Orders was the one piece of codification which he was able to effect.

In January, 1619, he issued 101 Orders dealing with the practice of the court,1 and in October, 1620, he issued some supplementary Orders, eleven of which dealt with the same subject.2 The orders of 1619 begin with decrees--how they could be questioned, suspended, and executed.3 They go on to explain the conditions under which bills would be dismissed;4 and the conditions under which injunctions and sequestrations, and decrees to corroborate the orders of the Court of Requests or the Provincial Councils, could be got.5 The duties of the registrars are set out in some detail;" and rules are laid down for reference to the masters,7 and for the drafting of their reports and certificates.8 Then follow rules of pleading, dealing with bills, answers, demurrvers, and pleas.9 They are followed by rules for the conduct of commissions to examine witnesses,10 for the taking of affidavits.11 and for process against those guilty of contempt.12 Certain applications are enumerated which were not to be granted on petition merely,13 and special rules are made for the issue of certain kinds of writs.14 The filing of writs and the enrolment of injunctions is regulated.15 Special rules are made for the issue of commissions for charitable uses, for sewers, in bankruptcy, and to constitute the court of Delegates.16 The last three rules deal with pauper litigants, licences to collect money for losses, and the exemplifications of letters patent and other records.17 The Orders of the following year deal with bills of conformity to compel a composition with creditors,18 the entry of orders, and further rules as to the issue of licences to collect money for losses. The fact that it was possible to make this comprehensive code is an eloquent testimony to the extent to which the machinery and the procedure of the court had become settled. It is quite clear that a court which had attained this degree of development would soon evolve substantive principles of equity.\*\*

Footnote 1: Their text will be found 'n Sanders, Chancery Orders i 109-122 ; or better in Spedding's Ed, of Bacon's Works vii 759-774.

Footnote 2: Sanders, Chancery Orders i 129-131.

Footnote 3: Orders i-t2

Footnote 4: Orders 13-19

Footnote 5: Orders 45, 47, 50, SS1, SS2, SS3, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS4, SS,4, SS,4, SS

### Law in Xvith and Xvith Cents.

A mouth after he had taken his seat in Chancery he could write to Buckingham, " This day I have made even with the business of the kingdom for common justice. Not one cause unheard. The lawyers drawn dry of all the motions they were to make. Not one petition unanswered."1 A.nd in December of the same year he was able to make the same boast.2 Nor is there any evidence that the quality of justice dispensed was unsatisfactory. It is true that he was by his own confession too ready to take presents from suitors. It is true that in at least one case he allowed Buckingham's influence to pervert the course of justice.3 But it is probable, on the whole, that the presents which he took did not prevent him from deciding as he would otherwise have decided. At least we do not hear that any large number of his cases were reversed by his successor.

Footnote 1: Spedding, Letters and Life vi zo8.

Footnote 2: Ibid z83; on the other hand it would appear that this pace had not been fully maintained; in i69 Chamberlain wrote to Carleton that " The Lord Chancellor's slackness causes a rumour that he i.e to have a Lord Keeper as a coadjutor," S.P. Dom. r619-i623, 39, civili 69; of course this may have been due to illness or to some other temporary cause.

Footnote 3: See Mr. Heath's elaborate analysis of the case of Dr. Steward, Spedding, Letters and Life vii App. 579-588.

Footnote 4: Above z26-z27.

Footnote 5: Clarendon, History of the Rebellion (ed. r843) r9.

It may be fairly said, therefore, that Bacon left his mark upon the court of Chancery. As attorney-general he had been largely instrumental in vindicating the independence of the court, and in thus securing the free development of equity. As chancellor he helped to restore harmony between the Chancery and the courts of common law ; and he created from the scattered orders of his predecessors a code of procedure, the formation of which was a condition precedent to the development of a system of equity. Thus he consolidated and completed the work of that school of lawyer chancellors which had come with the chancellorship of Sir Thomas More. That the development of a system of equity did not make rapid way till after the Restoration was due wholly to political causes.

With the interlude of Bacon's successor, bishop Williams, I have already dealt.4 His successor Coventry was a lawyer, and carried on the business of the court on the lines which Bacon had laid down.

Footnote 4: The man upon whom the choice'is like to fall, which is Coventry, I hold doubtful for your service; not but that he is well learned and an honest man, but he

## 256 Officials of the Court 255

proved that Bacon's suspicions were groundless. Whatever his earlier opinions may have been, he soon became a royalist in politics. He was made solicitor-general in 1617, attorney-general in 1621, and lord keeper in 1625. Though he was'a believer in a $t strong prerogative, he was by no means a pliant courtier. He persuaded Charles I. to assert in regular form to the Petition of Right,1,he advised against the dissolution of the Parliament in 1629,2 and he did not hesitate to oppose Buckingham's arrogance.3 It is true that he approved of the levy of ship money; but he took little active part in Charles's eleven years of prerogative rule. If he intervened it was on the side of moderation.4 " He was seldom known to speak," says Clarendon, "in matters of state, which, he well knew, were for the most part concluded, before they were brought to that public agitation; never in foreign affairs."5 And so, unlike most of Charles's ministers, he both retained his office, and yet was esteemed by the people.6 He died in 1640, just after the writs for the Short Parliament had been issued. His last message to the king was a plea for patient forbearance with that Parliament--he advised the king, " to take all distastes from the Parliament summoned against April with patience, and suffer it to sit without an unkind dissolution."7

Footnote 1: This is not the case for the 1625, but it is not the case for the 1625.

Footnote 2: This is not the case for the 1625, but it is not the case for the 1625.

Footnote 3: This is not the case for the 1625, but it is not the case for the 1625.

Footnote 4: This is not the case for the 1625, but it is not the case for the 1625.

Footnote 5: This is not the case for the 1625, but it is not the case for the 1625.

Footnote 6: This is not the case for the 1625, but it is not the case for the 1625.

The attention which Coventry gave to the business of the court is seen by the numerous Orders which he issued. Some of them were merely temporary. Thus we have several in 1636 dealing with the dislocation of business caused by the plague.8 There are very many made to regulate the duties of and fees payable to various officers of the court, Some of those duties and fees seem to have still been very badly defined; and Orders were still necessary to prevent officials from poaching upon one another's domains.9 In 1638, with a view to the settlement of this question, the king ordered juries to be impanelled from the

### I.aw in Xvith and Xvith Cents.

officials and clerks of the various courts to enquire into fees taken during the past thirty years.1 Many of his Orders relate to procedure; and the fact that it was necessary to issue them showed that Bacon's Orders had not been observed. In fact, as I have said,2 the chief reason why the abuses of the court of Chancery were not remedied was not want of will, but want of power. Several Orders were directed against the abuse of setting down causes for hearing out of their turn.3 Other Orders dealt with the abuse of writs of privilege,4 with the issue of commissions to examine witnesses,6 with the abuse of issuing process of contempt against persons who had no notice of any previous process.6 In 1635 came a new series of thirty-one Orders,7 Instructions as to their duties were given to the Six Clerks, the Registrars, the Masters, and the clerks of the court, with the object of reducing the length and cost of the Chancery procedure. With the same object, an attempt was made to check prolivity in pleading, and the examination of witnesses upon irrelevant matters. Rules were laid down for the hearing of demurrers, motions, petitions, the issue of injunctions, and suits in forma pauperis. Counsel were ordered to see to it that they did not demur for trivial causes, that they made no motion without substantial grounds, that they did not sign a pleading unless they had drawn or perused it, that they did not inform the court as to facts on the mere authority of solicitor or client without perusing the record of the case.

Footnote 1: Sanders, op. cit. i 204-205.

Footnote 2: Sanders, Chancery Orders i 54, 206-207; similar orders have been made by Williams, ibid 134-135, 147-148.

Footnote 3: Ibid r6a; for a similar order by Williams, see ibid i zg1-152.

Footnote 4: Ibid r6a; for a similar order by Williams, see ibid i zg1-152.

Footnote 5: Ibid r6a-165.

Footnote 6: Ob. cit. r9.

Footnote 10: For some $\\varepsilon\_{\\mbox{\\tiny{other}}}$ther account of Finch see below 343-344.

These Orders show that Coventry was well aware of the abuses of the court and intended to remedy them; and they might have effected some permanent reforms if the Great Rebellion had not intervened. They show that he was an able judge--understanding, says Clarendon, " the whole science and mystery of the law;"8 and he worked well with the judges of the common law courts.9 But the collapse of Charles's attempt at prerogative government was for "the time being fatal to the court of Chancery. Coventry's immediate successors were not in a position to effect anything for the improvement or development of the equitable jurisdiction.

Footnote 9: For some $\\varepsilon\_{\\mbox{\\tiny{other}}}$ther account of Finch see below 343-344.

The choice which Charles made of a successor to Coventry showed that he had no intention of acting upon Coventry's last piece of advice. He appointed Finch,10/the chief justice of the

**OFFICIALS OF THE COUTT 257**

Common Pleas, who was, owing to his judgment in the _Case of Ship Money_, one of the most unpopular men in England. During his short tenure of office he distinguished himself by the astonishing ruling that he should always consider an order 'of the Council to be a sufficient ground for making a decree in equity.1 The year after his appointment (1641) he fled the country to escape condemnation by the Long Parliament. His successor was Edward Littleton--the friend of Selden.2 He had succeeded Finch as chief justice of the Common Pleas--a position for which he was admirably suited; and on Finch's flight was made lord keeper--a position for which he was most unsuitable.3 He was a moderate man, and the king suspected his loyalty. But he finally decided to throw in his lot with the king, and retired with the great seal to York in 1642. He died in 1645. His successor was Richard Lane, who had so ably defended Stafford that the Commons abandoned their impeachment, and had recourse to an act of attainder. He retained his title during the rest of the king's life; and died an exile in 1650.

Footnote 1: "Upon a demurrer put in to a bill before him, which had no other equity in it than an order of the lords of the council, (he said) that whilst he was keeper no man should be so saucy to dispute those orders, but that the wisdom of that board should be always ground enough for him to make a decree in Chamery," Clarendon, op. cit. 30.

Footnote 2: "Ellow 376."

Footnote 3: "Clarendon, op. cit. 228, tells us that hemented his own position--" that he had been preferred from the Common Pleas, where he knew both the business and the persons he had to deal with, to the other high office he now held, which obliged him to converse and transact with another sort of men, who were not known to him, and in affairs which he understood not, and had not one friend amongst them, with whom he could confer upon any doubt which occurred to him."

Footnote 4: "Vol. iv 276:283." Above 222-223; vol. i 592, 594.

By the middle of the seventeenth century it had thus become obvious that the head of the court of Chancery must be an English lawyer; and, seeing that those who practised before the court, had also been educated in English law, it had become clear that there would be no great infusion of the rules of the civil law by way of the court of Chancery.4 But in the preceding period, when the chancellors were ecclesiastics, the masters of the court had naturally been canonists or civilians. The canonists disappeared after the reign of Henry VIII.5 But, all through this period, a large proportion of the masters still continued to be civilians,6 and often sat on the bench with the chancellor as his assistants.7

Footnote 4: "Slarendon, op. cit. 228, tells us that hemented his own position--" that he had been preferred from the Common Pleas, where he knew both the business and the persons he had to deal with, to the other high office he now held, which obliged him to converse and transact with another sort of men, who were not known to him, and in affairs which he understood not, and had not one friend amongst them, with whom he could confer upon any doubt which occurred to him."

Footnote 4: "Vol. iv 276:283." Above 222-223; vol. i 592, 594.

Footnote 5: "This is clear from the lists given in Foss, Judges vols. v and vi.

Footnote 7: "Spence, Equitable Jurisdiction i 3$3 and n. d.

The fact that some of the masters thus continued to be civilians was due to three causes. In the first place, we have seen that the civilians, who had studied their law and taken their degree of Doctor at Oxford or Cambridge or elsewhere, had

### Law in Xvith and Xvith Cents.

formed a professional association which developed into the Doctors Commons of later days.1 It took the place of the Rolls House, which Lambard tells us had long been the "College of the Chancery men ;"' and as we have seen, came to be to them very much what the Inns of Court were to the English lawyers. it could therefore supply a succession of trained civilians ; and this helped to keep up the tradition that the pest of master should go to a civilian. It would seem that these civilian masters continued to practise in the ecclesiastical courts, and presumably also in the court of Admiralty.3 In the second place, the Chancery, in its character of a secretarial and administrative department, had always needed the help of civilians. We have seen that in the past the ordinary forms of writs' had owed something to their powers of legal draftsmanship ;4 and their usefulness in secretarial work was recognized at this period.5 In the third place, the court of Chancery needed advisers who knew something of the civil law. Their advice was useful in mercantile cases ;6 and more especially was it useful in cases turning upon wills of personalty, legacies, and administration of assets, which were being brought in increasing numbers before the court of Chancery.7 Such cases were governed by the law administered in the ecclesiastical courts, which was based on the conceptions of the civil law. In these cases the equity administered by the chancellor was obliged to start from the basis of the civil law, just as in cases governed by the common law it was obliged to start from the basis of that law ; for the application of conscience or equity " must always be grounded on some law ;"8 and " the

**OFFICIALS OF THE COUTT 259**

first question that the judge should propound is to know what the law holdeth concerning the point, and upon what strain it is brought into this court."1 Conversely, and upon the same principle, it was found necessary occasionally to appoint a common lawyer to the post of master of Requests.2 Moreover the identification, often made at this period, of the equity of the chancellor with the Jus Pretorium tended to connect it more closely with the civil law than with the common law. This last reason for appointing masters from among the civilians is insisted on by the person who wrote, "The new'additions of the checef Courts in England " in the third edition of Sir Thomas Smith's book de Republica Anglorum,3 and by other writers.4 But it should not lead us to take an exaggerated view of the influence of the civil law upon the development of equity. The statement that there is an analogy between the relations of jus civile and jus practorium on the one side, and common law and equity on the other, furnishes no ground for large inferences as to the subject matter of the rules of equity.

Footnote 1: Norburie, op. cit. 444:

Footnote 2: It is stated in the additions to the third Ed. of Smith, De Republica Anglorum (vol. iv zzd) at p. r67 (Alston's Ed.) that "the judges in this Court are the Maisters of Requests, one for the common laws, the other for the civil laves"; but the lists given by Mr. Leadam, Select Cases _in_ the Court of Requests (S.S.) cii-cxxiv hardly bear this out; however Lambard, Archeion 227 says that "Two Doctors, and two Common Lawyers have bin many times known to have sitten here together."3

Footnote 3: "The six Masters are assistants to the Court, to shew what is the equity of the civil law, and what is conscience," at p. 155; all other writers put the number of the Masters at twelve.

Footnote 4: "To the Court of Chancery they (the kings of this realm) have assigned the Professors of the civil law, for that a great sort of the titles of that law are titles of Equity, as whatsoever is _Plus Pretorium_ or _Plus Edium (sc.)_ with them is matter of Equity, so that they may seem best able for their skill in these titles, for the which no other law hath the like, to assist the Lord Chancellor in matters of Conscience," The Practice of the Court of Chancery Unfolded 69; cp. Ridley, View of the Civil and Ecclesiastical Law (4th ed.) Pt. IV. c. 3 pp. 394-395; Observations Concerning the Office of Lord Chancellor 36-37.

Footnote 5: Above 6-8.

Footnote 7: Ibid 73, 77, 81, 82.

Footnote 17: Ibid 73, 77, 81, 82.

Footnote 18: Ibid 29 _n._

Footnote 19: Ibid 32 _n._

Footnote 20: Ibid 32 _n._

Footnote 21: Ibid 95 _n._

Footnote 22: Ibid 95 _n._

Footnote 23: Ibid 95 \_n.

### Law in Xvith and Xvith Cents.

region.1 The reports which these masters made on the matters referred to them often let us see more of their personality, than we can see of the personality of the chancellors from the formal decrees and orders of the court. We see them obthered by clamorous litigants,2 and trying to pass difficult or distasteful work on to some one else.3 They use strong language of counsel who carp at their reports,4 who promote litigation,5 or who needlessly lengthen suits.6 They sometimes put their findings into quaint and colloquial forms. As we have seen, Mathew Carew was specially noted for this,7 But he did not stand quite alone. On one occasion Tyndal reported, " I know not what opinion to be of, but that poor fly is fallen into, the spider's web."8 On another occasion Sir Charles Caesar reported that a certain litigant, having refused to perform a decree, said, by way of excuse, that his counsel had never been heard; and " touching the fury of his words, he hopeth they are less to be weighed in regard he is a soldier."9

Footnote 1: Monro, op. cit. 255 $n$.

Footnote 2: Ibid 78, 79, Masters Hone and Amyre report that "At our meeting the plaintiff's father and the plaintiff's counsel were exceeding vehement in words; but not so well instructed as was fit. . The defendant's examinations are long and cautelous, and the defendant himself hath been exceeding tedious, in often reading many leaves together impertinently; and besides clamorous in charging the plaintiff with unjust vexations; " cp. ibid 113.

Footnote 3: Ibid 14-15, 97, 113; in the first cited case Masters Lambard and Hobarte report that the case is so tedious and so hinders other business that the Court should order the parties to choose some fit persons, " which, remaining here after term ended, and being assisted with one skilful auditor, may, at convenient leisure, and with good eyes, look into the estate of this whole reckoning."

Footnote 4: Ibid 117.

Footnote 5: Ibid 15, Master M. Carew says--"finding by what injurious policy it hath heretofore been sought to draw excessive gain from clients by exasperating with bitter work their minds one against the other."

Footnote 6: Ibid 78, cited above n. 2; 253-

Footnote 7: Above 259 n. 7.

Footnote 8: Ibid 265.

Though, as I have said, the grcater number of the masters continued, throughout this period, to be civilians, there were occasional exceptions. William Lambard,10 the scholar, antiquary, and constitutional lawyer is a notable example. And in the case of the chief of the masters--the master of the rolls--the common lawyers were beginning to encroach. Southwell, created master of the rolls in 1547, his successor Beaumont, created in 1550 and dismissed for forgery and embezzlement in 1552, and Cordell, who held the office from 1557-1581, were all common lawyers; and Cordell's successors, Gerard and Fgerton, had held the post of attorney-general. James I, broke this succession of English lawyers by appointing, in 1603, Lord Kinloss, a senator of the College of Justice in Scotland. But he was succeeded by a

## 1 Literature and Authorities 261

serjeant at law--Sir Edward Phillips, whom Norburie1 credits with the attempt to shorten Chancery proceedings by abolishing as far as possible, all referepces to masters and others. After him came two civilians--Sir Julius Cesar,2 and his son Sir Charles Cesar;3 and two persons who were neither common lawyers nor civilians--Sir Dudley Digges4 and Sir John Colepeper.5 Perhaps this was in part due to the influence of Laud. Clarendon tells us that he prevailed with the king to direct that " half the Masters of the Chancery should be always civil lawyers, and that no others, of what condition soever, should serve him as Masters of Requests.6" Clarendon shows clearly the political folly of this advice;7 and it is clear that legally it was equally objectionable.8

Footnote 8: Above 259.

Footnote 9: * And I cannot but say, to the professors of that great and admirable mystery the law . .

### Law in Xvith and Xvith Cents.

main authorities are the records of the courts themselves and their rules of procedure. In the twelfth century the records of the Curia Regis and Glanvil's book, which deals mainly with its procedure, are the chief authorities for the origins of the common law.1 It is not till the thirteenth century that we get more important books,2 and the beginning of regular law reports.3 It is the same with authorities for the early history of equity. Before the sixteenth century the chief authorities are the records of the court, and a few short orders made by the chancellors, dealing with the organization aud the procedure of the court. It is not till the sixteenth century that we get one or two books written about the substantive rules of equity ; and some of them are controversial tracts written to attack or to defend equitable interferences with the common law. It is not until the middle of the seventeenth century that reports of cases decided in the court of Chancery begin to get into print.

Footnote 1: Vol, it 185-186, 190-192.

In dealing with this subject therefore, I shall describe (i) the Records; (2) the Orders of the Court; (3) the Treatises and Tracts; and (4) the Reports.

(1) _The Records.4_

Footnote 4: My authority for this section is chiefly Scargill-Bird's Guide to the Public Records 8-85.

The records of the court of Chancery fall into several distinct classes. The following is a list of those which are the most important from the point of view of legal history :--

(i) _The Chancery proceedings.6_ These consist of Bills, Answers, Depositions, and other proceedings in Chancery. They are in three series. (_a_) From Richard II. to Philip and Mary. The basis of division is the succession of Chancellors. They are arranged chronologically under each chancellor. (_b_) From Elizabeth to Charles I. The basis of division is the succession of kings. They are arranged alphabetically according to the names of the plaintiffs reign by reign. (_c_) After Charles I. to 1842, when the Six Clerks were abolished, there is a most complicated and inadequate arrangement, based on the division of business among the Six Clerks. It is complicated because it involves an arbitrary sixfold division. It is inadequate because the chronological and alphabetical principles upon which it is based are not adhered to, with the result that there is no certainty that any given paper will be found in its right bundle, or under its right alphabetical heading. The details of this extraordinary arrangement will be

## Literature and Authorities 268

found in Mr. Scargill-Bird'sGuide.1 As is there pointed out, some help in searching these records may be found in the bill books, cause books, and clerk in court's book--all connected with the Six Clerks' office, and with the work of the sworn clerks.2

Footnote 1: Scargill-Bird, op. cit. 48-50; see ibid 51-53 for the existing Record Office lists and indexes.

Of these Chancery proceedings a few extracts have been printed. The old Record Commission printed in three volumes the calendars to the Chancery proceedings in the reign of Queen Elizabeth ; and to the first two of these prefixed a selection of the older cases in extenso. The Selden Society have printed the earliest cases, between 1383 and 1412, not printed by the Record Commission ; and a selection of later proceedings, which range in date between 1364 and 1471. Mr. Trice Martin has printed some further cases from the fifteenth century.3 It is clear that these proceedings are of primary importance for the early history of equity. W. T. Barbour's essay on the History of Contract in early English Equity4 shows how much light they shed upon the doctrines actually applied by the chancellor. But their bulk is so large that it can hardly be expected that they will ever be printed in their entirety. It seems to me that good service would be done if a selection dealing with specific heads of equity could be published, and if, in making these selections, preference were given to those cases in which a decree was made. The ex parte statements in Bills and Answers are useful illustrations in default of better evidence ; but the litigants of this period never allowed the truth to stand in the way of the production of a picturesque effect. W. T. Barbour's Essay, and the Appendix of documents annexed thereto, show the kind of use to which such selections made on such a plan could be put. And the adoption of such a plan would at least give a much needed principle of selection. A miscellaneous mass of extracts made on no ascertainable principle, is difficult to use ; and there is not the same security that the editor has not overlooked important cases. To search a mass of material with one definite object in view is both

### Law in Xvith and Xvith Cents.

easier and more satisfactory than to, search it with several less definite objects.

(ii) _The Entry Books of Deerees and Orders.1_ These books were kept by the registrars of the court. They run from 36 Henry VII1, to 1885. They are in two segeas-Liber A find Liber B. The Liber A series runs from 36 Henry VIII. to 1629, and contains decrees and orders alphabetically arranged under the plaintiff's name from A to Z ; after that date it contains the decrees and orders similarly arranged from A to K. The Liber B series runs from 1 Edward VI. to 1629, and contains decrees and orders alphabetically arranged from A to Z ; after that date it contains decrees and orders similarly arranged from L to Z. General Orders are indexed under the letter O. Generally each book contains four terms ; but in the earliest books there are variations.2 Some interesting extracts from these books have been printed by Monro in the second part of his Acta Cancellaria. We ought to have more of them. A series of extracts down to the Restoration would be very useful.

Footnote 1: Scargill-Bird, op. cit. 53; for a fuller description see T, Kennedy, Code of Chancery Practice (ed. 1845) iii-iib; Monro, Acta Cancellaria, Pref.; in Legal Judicature in Chancery, at p. 157, a note of Sir Julius Cesar on a decree roll of 3t Henry VIII, is cited to the effect that, till 36 Henry VIII., the decrees were not enrolled, but the history of the case was shortly noted on the back of the bill in Latin, according to the usual practice of the civil and canon lawyers.

(iii) _Reports and Certificates.3_ These are a collection of reports made by the masters, from 1544 to the abolition of the masters in 1848. After that date their place is taken by the reports of the chief clerks and taxing masters. They comprise 4,108 volumes arranged alphabetically term by term. A valuable selection of these reports from the reigns of Elizabeth and James I. has been printed by Monro.

Footnote 3: Scargill-Bird, op. cit. 55; Monro, Acta Cancellaria, Pref.

These are perhaps the most important classes of records from the point of view of legal history. But they are not by any means the only classes. Thus we get decree rolls on which were entered all such decrees as were solemnly enrolled ;4 registrars' court or minute books, consisting of notes taken in court by the registrar with minutes of the court's decision ;5 and Chancery masters' documents consisting of affidavits, accounts, and other evidence on which they grounded their reports.4

## Literature and Authorities 265

- _The Orders of the Court._

The Orders of the Court are the best evidence of the organization of the court and of its rules of procedure. In other words they furnish us with a picture of the machinery which created the substantive rules of equity. "These Orders stretch in a continuous series from 1388 down to the Judicature Acts. They are very various in their character, and must be sought in different places. **I** have already mentioned some of the more important general Orders issued by the chancellors of this period.1 But these general Orders by no means exhaust the whole body of Orders of the court. Some of them were never published as Orders, but were made in the course of the hearing of a cause. " They are made in private causes ; but the Court, while deciding on the point before it, lays down a rule which it declares shall in similar cases be observed in future. Such Orders are entered in the Registrar's Book under the title of the private cause only ; but the words 'Ordo Curie' are inserted in the margin, opposite to that part which is intended for the guidance of the public."2 Others were made, not by the chancellor or the master of the rolls, but by the Six Clerks, and approved by the chancellor. As Sanders, referring to these orders, says,3 " It is evident from the beginning there was something wrong with the constitution of the office of the Six Clerks. . Endless misunderstandings among themselves and with their superiors, quarrels respecting fees, encroachments upon the rights of other offices, and violence and insubordination in their servants and clerks, are conspicuous through the whole of their earlier history." We have seen that with the growth of the court it became impossible for them to fulfil their original function--that of acting as the attorneys to the parties.4 They came to be so useless a clog in the cumbersome machinery of the court that even Lord Eldon's commission was unable wholly to approve of them.5

Footnote 1: Above 228, 230, 332, 253, 255-256. ${}^{\\bullet}$Sanders, Chancery Orders i Pref. xii,

Footnote 2: Ibid xvii, xviii. ${}^{\\bullet}$Vol. 1 421-422. ${}^{\\bullet}$Ibid 443. ${}^{\\bullet}$Ibid 424-428. ${}^{\\bullet}$

### Law in Xvith and Xvith Cents.

Orders of Court," says Sanders,1 " are neither filed nor officially preserved. . As regards some of them (and those among the most important), neither are they preserved, nor is any entry of them made in the Registrar's books. Those of early date are probably for ever lost ; and those of more recent date exist only by accident, and in private repositories, where they are, not unfrequently, forgotten, and where, at least, they are not available for immediate reference. . The little attention which the Court has paid to the preservation of its General Orders, and to the means of obtaining a ready reference thereto, creates, perhaps, more surprise than anything else in its history."

Footnote 1: Sanders, op. cit. i Pref. xv ; as we have seen, vol. ii 427, 532-536, neither the statutes nor the law reports have ever been officially collected.

The most complete edition of these Orders, and the only edition which is useful for historical purposes is that by G. W. Sanders, published in 1845.

_(3) The Treatiss and Tracts._

The treatises and tracts which deal with the development of equity in this period are few in number ; and the only one of first-rate importance is the Dialogue of the Doctor and the Student. Of the rest, some are mainly controversial ; and others are chiefly occupied with the office of the chancellor, with his court, and with its jurisdiction and procedure. I shall deal with this literature under these heads.

_The Doctor and Student._

The author of the two Dialogues between the Doctor of Divinity and the Student of the common Law was Christopher St. Germain, a barrister of the Inner Temple, who lived from about 1460-1540.2 He was well read both in English law, and in the literature of the canon law ; and he took a keen interest in the religious controversies of his time. His attitude was that of "a moderate reformer ;" and the adoption of this attitude brought him into a controversy with Sir Thomas More, in the conduct of which More's stern orthodoxy caused him to lose his usual urbanity. St. Germain's studies in the canon law, and his knowledge of English law,3 naturally led him to interest himself in the development of equity, which, up to this time, had been closely connected with the canon law, because it had been mainly developed by the ecclesiastical chancellors.4 He was able to

## Literature and Authorities 267

look critically at the rules of English law, and, with the help of his knowledge of the danon law, to point to those parts of it which needed the help of equity if it was to fulfil the main object of law-the furtherance of justice and the promotion of "virtue.

The first Dialogue was first published in Latin in 1523, but no copy of this edition is known to exist.1 It was reissued in 1528. The second Dialogue was published in English in 1530, and the first Dialogue was revised and published in English by the author in 1531. These English editions were republished with additions in 1532, and there have been very numerous subsequent editions.2 The English version of the first Dialogue is not a mere translation. Disquisitions upon and references to the canon law, which would be useless or unmeaning to English lawyers, were omitted ; and therefore, as Sir Paul Vinogradoff has pointed out, from the point of view of the early history of equity, the Latin version is the most valuable. " It puts clearly before us the elements of the author's learning and the thread which connects him with his predecessors."3

Footnote 1: Dict. Nat. Biog. ${}^{\\

### Law in Xvith and Xvith Cents.

But what principle should be applied to rectify the injustice so caused? The canonists, as Sir Paul Vino gradoff has pointed out, found a guiding principle in conscience. Conscience must decide how and when the injustice caused by the generality of rules of law was to be cured. It is, so to speak, the executive agent in the work of applying to individual cases the dictates of the law of God or reason.1 And it is the emphasis laid by the canonists on conscience, which differentiates the equity administered by the ecclesiastical chancellors of the fifteenth century, from the equity which, in the thirteenth and early fourteenth centuries, had been administered by the common law courts.2 St. Germain's popular exposition has made these canonist principles the basis and starting point of English equity.

Footnote 1: L.Q.R. xxiv 378-379--"St. Germain's definition of equity is drawn through Gerson from Aristotle : equity comprises the guiding principles for the adaptation of general rules to particular cases. The Greek philosopher, however, did not specify from what particular sources such a guiding principle should be derived: he dwells rather on the necessity of taking into account all the complex circumstances of each single case. The canon lawyers did discover a guiding rule in conscience, and it is important from the outset that in the jurisprudence of the English Courts of the time this principle came to be accepted on all sides--by Common lawyers as well as by Chancery lawyers."

Footnote 2: Above 276 n. 3; see vol. ii 245-249, 334-347 for the equity of the thirteenth and fourteenth centuries.

Secondly, the time when the book appeared was extraordinarily opportune. It came at the close of the period during which the court of Chancery had been presided over by ecclesiastical chancellors, and at the beginning of the period when its development was to be guided by the common lawyers. Thus it helped to promote a larger amount of continuity in the development of equity than would otherwise have been possible. It enabled the new school of chancellors to understand and apply the principles which their predecessors had applied. It enabled them more easily to grasp the principles laid down in those Year Book cases 3 which, as the literature of this period shows, were then almost the only other authorities on the substantive rules of equity.

Footnote 3: Above 220-222.

Thirdly, although the Latin version of the first Dialogue is from the point of view of the early history of equity the most important, the English version is by far the most important from the point of view of the modern history of equity. The popular form in which the canonist principles were expressed, and their detailed application to the technical rules of English law, which the dialogue form rendered possible,4 facilitated the development

## Literature and Authorities 269

of these principles on native lines. In fact, as we have seen,1 St. Germain did for the canonical principles which he took from Gerson what Bracton did for the civil law principles which he took from Azo.2 Both writers adapted foreign principles to an English environment. It both cases there was a reception and a use of foreign principles thus adapted which helped on a native development of the law. But in neither case was there any reception in detail of foreign law.

Footnote 1: Vol. iv 276 n. 2.

Footnote 2: Vol. ii 267-286.

For all these reasons St. Germain's treatise has exercised as great an influence upon the development of modern equity as Bracton's treatise has exercised upon the development of the common law. From both books many generations of lawyers drew the root principles underlying the many technical rules to which a continuous development gave rise.

_The Controversial Tracts._

St. Germain's wide outlook and cosmopolitan learning, which enabled him to popularize the canonist conception of equity and to define its relations to the common law, was naturally not very comprehensible to those common law practitioners who were very ignorant of anything else but the technicalities of their own system. The Year Books, as we have seen, show that the growth of equity was accompanied by a growth of professional jealousy on the part of the common lawyers.3 Hence it is not surprising to find that an anonymous serjeant-at-law entered the lists to defend the common law against the aspersion that any supplementary system could be necessary to enable it to do complete justice in all cases.

Footnote 3: Vol. i 459 ; vol. ii 595 ; above 221.

The Replication of the serjeant-at-law to the Doctor and Student was obviously written shortly after the publication of the English version of the Doctor and Student.4 The internal evidence of the tract would seem to show that it was written, as it purports to be, by a serjeant-at-law, who had been brought up on the common law, and on that alone. He is wholly unable to appreciate the fact that the common law had any defects at all. " The law of the realme is a sufficient rule to order you and your conscience what ye shall do in everie thinge, and what ye shall not do."6 He could not see, for instance, that the system of uses, though liable to abuse, did successfully remedy some very grave defects in the land law.6

Footnote 4: It is not surprising to find that an anonymous serjeant-at-law entered the lists to defend the common law against the aspersion that any supplementary system could be necessary to enable it to do complete justice in all cases.

Footnote 5: At p. 327.

${}^{\\natural}$ Vol. ii 267-286.

${}^{\\natural}$ Vol. ii 459 ; vol. ii 595 ; above 221.

${}^{\\natural}$ Plarg. Law Tracts **g**23-331; the full title is, \*\*"A Replication of a Serjeante at the Lawes of England, to certayne Pointers alleaged by a Student of the sailA Lawes of England, in a Dialogue in Englishhe between a Doctor of Divinity and the said Student."

### 270 Law in Xvith and Xvith Cents.

A rejoinder to this replication of the serjeant was made by the anonymous writer of the "Little Tre Tretise concerning writs of Subpcna."1 It is a far abler performance than the Serjeant's.

The writer can see that there are twig sides to the question. Thus, while defending uses, he is 'quite prepared to admit that "unquietness and trouble " may sometimes be caused by them.2 He is sufficiently learned to state aid defend effectively the position of the court of Chancery in relation to the common law courts.3 In fact the use which he makes of statutes and Year Book cases 4 anticipates the arguments used in the seventeenth century. Thus, for instance, he shows that the existence and jurisdiction of the Chancery are assumed by the makers of some of these statutes ; 5 and that consequently the equity administered by the chancellor is an integral part of the law of England.6 It is because the writer does not deal in mere generalities either in this or in any other part of his argument, that the tract, though controversial, affords valuable evidence as to the actual position of the equitable jurisdiction at the time when it was written. It is clear that already it is possible state rules as to the cases in which equity will intervene,7 as to the cases in which it will not,8 and as to the cases in which it is doubtful whether or not it should intervene.9 At the same time it is also clear that, though it could be stated that there were certain cases in which the chancellor would intervene, and certain cases in which he would

## Literature and Authorities 271

not, no substantive rules of entity as yet existed. There is the background of principle laid down in the Doctor and Student; there is the list of cases in which the chancellor habitually acted; but the two are as yet very separate. Much is still left to the conscience of the chancellor--so much that the author can even speculate whether the chancellor, if he is negligent in the hearing of the case, may not "charge himself in conscience some type with damages, some type with the whole thinge that is in demaunde before him, tho' he cannot be compelled thereto because he is judge of recorde."1

Footnote 1: At pp. 348-35f.

Three other tracts deal with this same controversy between the common law and the Chancery at a later stage. A tract styled " Privileges and Prerogatives of the High Court of Chancery" was published in 1641. It is stated on the title page that it is by Lord Ellesmere. But there is no external evidence of this; and the internal evidence is against it. It is simply a common-place commentary on Magna Carta and certain other statutes, which the common lawyers contended were decisive against the claim of the Chancery to issue injunctions against the judgments of the common law courts.2 The second tract is much later in date. It was published in 1693 at the end of the first volume of Reports in Chancery,3 and was meant to be an answer to the views expressed by Coke in his Third and Fourth Institutes.4 But, though later in its date of publication, it belongs, from the point of view of its subject matter, to this period. It gives the report of Bacon and his fellows on the claims of the Chancery, and elaborately and, on the whole successfully, defends it. The third tract is of quite a different character. It was written by George Norburie, evidently a practitioner and an office holder in the court. It is entitled "The abuses and remedies of the High Court of Chancery."5 It is dedicated to Lord Keeper Williams, and its object is to point out the best way to remedy some of the abuses of the court which had come before Parliament. These abuses he groups under three heads :--" the straining of authority of the court beyond its limits in matters of judicature; the impunity of litigious persons; and dilatory proceedings."6 On all these points he clearly states the abuse, and

### Law in Xvith and Xvith Cents.

is prepared with a remedy. Occasionally he is a little inconsistent. Thus in one place he wishes that the rules of equity were better fixed--" the old rule must ever holc true,zhat the commonwealth 'is best governed when least is left to thesdirection of the judge." In another he sneers at judges who, in \_x_doministering equity, are "'inquisitive after precedents."2 Apparently he did not see that the only way in which the rules of equity could be fixed was by the inquisitiveness which he condemned. But'on the whole it is an able tract, and diagnoses truly the abuses from which the court then suffered, and for two centuries continued to suffer. It marks a later stage in the contest between common law and equity--the common lawyers had been worsted by James I.'s order, but they were still able to attack the court in Parliament. It thus marks the beginning of that Parliamentary opposition to the court which for a short period proved fatal to it.3

Footnote 2: "Some judges, when they seem doubtful what to determine in a cause, will be inquisitive after prece lents ; which I cannot conceive to what purpose it should be, unless that being desirous to pleasure a friend . they would faine know whether any before them have done so ill as they intend to do," at p. 446.

_Tracts dealing with the Chancellor and his Court._

Of the tracts which deal with the office of the chancellor, with his court, and with its jurisdiction and procedure, the following four are the most important.

The first is " A Treatise of the Maisters of the Chauncerie."4 It is anonymous, and, from internal evidence, it appears to have been written when Hgerton was lord keeper, and before he became lord chancellor with the title of Lord Ellesmere. The writer was obviously himself a master, and a contemporary of Lambard. The treatise describes firstly the manner in which the masters were created, secondly their "sundry appellations" and their number, thirdly their dignity and place, fourthly their duties and "what manner of learninge is requisite in them," and fifthly their fees. It is a clearly written, straightforward piece of work. The second of these tracts is entitled "Certaine Observations Concerning the Office of the Lord Chancellor," It was published in 1651, and was attributed to Lord Ellesmere.5 But internal evidence shows clearly that it was not written by him, though it is possible that he may have encouraged the author to write it.6 The first

## Literature and Authorities 273

part of the book is taken up with a general account of the office of chancellor, of the co'irt of Chancery, and of some of the officers of the court.1 The remainder of the book is divided into two parts. The first part deals in eight short chapters with the jurisdiction and procedure of the court. The second part deals in six chapters with certain topics of equitable jurisdiction, and in three other chapters with other pieces of jurisdiction exercised by the lord chancellor. The writer emphasizes the uncertainty of the principles of equity, owing to the fact that they depend upon the chancellor's conscience2--" whereby the man of law is not able to informe his Clyent what is like to'become of his action, or whether it be determinable in the court of Chancery or to be tryed at Common Lawe."4 At the same time he promises to cite "a competent store of cases where upon reasonable conjecture may be grounded what is like to fall out."4 But his authorities are for the most part the Year Books and the Doctor and Student. He very rarely cites any more modern case, and ignores the statute of uses, though he cites on other topics several later statutes of Henry VIII. and Elizabeth's reigns. It is a rather pretentious and a very second-rate piece of work. The third of these works is Crompton's chapter on the Chancery in his book on the authority and jurisdiction of courts.5 The subject is naturally treated from the point of view of a common lawyer," and the main authorities relied upon are the Year Books, The Doctor and Student, Dyer, Plowden, I'itzherbert, and Brooke. It is a somewhat formless collection of cases upon the question whether or no the court will give a remedy. The last of these books is the account of the Chancery given by West in the second part of his Symboleography.7 West knew something of the civil law. He can cite the Digest, and some of the modern writers on the

### Law in Xvith and Xvith Cents.

civil law such as Bude and Oldendorp.1 He can therefore give an intelligible account of the nature of equity and its relation to law, by way of introduction to and explanation of the powers of the Chancery as a court of conscience.2 After describing the powers of the Chancery, he gives a short summary of the cases in which it will interfere,3 and passes on to the main topic of his book--the forms of the writs and pleadings in use in the court.4

Footnote 1: See e.g. pp. 173b, 174.

Footnote 2: At pp. 173b-177a.

Footnote 3: At pp. 177b-183a.

Footnote 4: At pp. 153a-290b.

Footnote 5: At pp. 40-49.

The largest part of West's book thus deals with procedure. It is a collection of precedents for the use of practitioners. Other books on this topic are "the Practice of the High Court of Chancery Unfolded," published in 1652 together with Choyce Cases in Chancery. It deals mainly with the court itself, its jurisdiction, and practice; but it occasionally diverges into other topics. Thus it tells us something of the substantive rules as to the cases in which equity will give relief,5 as to the history of the court,6 and as to other functions of the Chancery." A smaller book of a similar character is appended to Tothill's Transactions of the High Court of Chancery. A chapter in Thomas Powell's Attorney's Academy 8 gives clear directions for the conduct of a suit in Chancery.

Footnote 7: At pp. 83-92, 96-too.

Footnote 8: At pp. 7-86; for this book see below 381-38a.

It will be clear from this summary that the literature of equity as yet mainly consists of tracts upon somewhat disparate topics. A definite and accepted theory has been arrived at as to the nature of the distinction between law and equity. The independent position of equity in relation to the law has been successfully asserted and defended. Some definition of the cases in which equity will intervene, and of the principles which it will apply, has been reached. Some definite rules of procedure have grown up. But as yet little progress has been made in the direction of welding these various principles and rules into a connected system. For this we must wait till the beginning of the systematic reports of equity cases in the latter part of the seventeenth century. But at the end of this period we can see the beginnings of this process in one or two small collections of cases, which were made at the beginning, and printed in the middle of that century.

(4) _The Reports._

The best evidence that the Court of Chancery was beginning to create a body of substantive rules is to be found in the fact that the lawyers who practised in the court, and the officials

## 21 Literature and Authorities 275

of the court, were beginning to make notes of cases therein decided.

We can see the main reason for this practice in developments which were taking place at the end of the fifteenth century. As early as 1483 the chancellor could say that it was the "common course" of the Chancellor to grant relief in certain cases, and that it was so recorded.1 But when a court has acquired a "common course" which is recorded, it soon develops fixed rules of practice, which, in their turn, gradually create fixed substantive rules. No doubt this process operated more slowly in the case of the Chancery than in the case of the courts of common law, because, all through this period, equity was equity--it tried to lay down the ideally just rule applicable to the circumstances of each particular case. But the influence of the new school of lawyer chancellors was beginning to be felt at the end of the sixteenth century. Lambard, who, as we have seen, was a master in Chancery,2 notes that the question, " whether it be meete that the Chancellor should appoint unto himselfe and publish to others any certain rules and limits of equity," was one " about the which men both godly and learned doe varie in opinion;"3 and it is clear that the opinion in favour of an affirmative answer to this question was growing in strength. As we have seen, the Chancery Orders were beginning to lay down a few fixed rules ;4 and we shall see that Lambard himself thought it worth while to make a collection of cases that seemed to him to be notable.5 In fact, the evidence both of the records of the court and of the cases points in the same direction. At the very beginning of the seventeenth century the records show that for the decision of certain points recourse was had to precedent. In 1600 the plaintiff's counsel, having alleged that they could show precedents for the exercise of the equitable jurisdiction, the court ordered

### Law in Xvith and Xvith Cents.

them to produce their precedents next term ; $k$ and, in the following year, on the question of awarding a sequestration, precedents were cited.2 In 1604 there is a reported case in which I.ord Elfsemere seems to assume that "a full faceree" would be a precedent for like cases;3 and other cases decided in accordance with precedents occurred in 1626,4 1649,5 and 1650.6

Footnote 2: The reader is referred to the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following: "I don't see the following:I don't see the following:I don

## Literature and Authorities 277

The following are the collections of Chancery reports which belong to this period :-- !

In 1649 was published Tothill's Transactions of the Hig's Court of Chancery.1 Tothill, the title page tells us, was one of the Six Clerks, and the work was published and edited after his death by Sir Robert 'Holborne, one of Hampton's counsel in the case of Ship Money.' The book contains two treatises. The first part--the Transactions of the High Court of Chancery--consists of very short notes of cases arranged alphabetically. In many cases the references to the registrar's books are given. All we can gather from these notes is that a certain point has been decided, and often that point is so obscurely stated as to be unintelligible. The second part consists of a short account of the Procedure of the Chancery. In the following year there was published by master George Carew 2 a collection of cases which he had gathered " out of the labours of master Lambard." These are known as Cary's reports, as his name is so spelt on the title page.3 They are short notes of points decided between 1537 and 1604, and, as Monro says,4 " they are very often mere verbal transcripts from the registrar's books." In 1652 another little book was published anonymously, which comprises both a tract on procedure and some notes of cases.5 The tract on procedure, called " The Practice of the High Court of Chancery Unfolded," I have already mentioned." The notes on cases are usually styled " Choyce Cases in Chancery." They report cases decided between 1557 and 1606.

Footnote 1: The Transactions of the High Court of Chancery, both by Practice and President, With the fees thereunto belonging, and all speciall orders in Extraordinary cases, which are to be found in the Register's Office as they are quoted by Textmes Yeares and Books. Collected by that famous lawyer, William Tothill, Eqr.; late one of the 6 Clearkes. And since reviewed by Sir Ro. Holborne, Bencher of Lincoln's Inn; there was a second edition in 1671, and reprints in 1820 and 1872, Wallace, The Reporters 474-476.

Footnote 2: The Practice of the High Court of Chancery Unfolded, with the Nature of the sex. tal Offices belonging to that Court, and the Reports of many Clses wherein relief hath been there had, and when denied; there was a second edition in 1672, and a reprint in 1870, Wallace, op. cit. 474.

Footnote 3: Reports or Causes in Chancery. Collected by Sir George Carey out of the Labours of Mr. William Lambert; another edition was printed in r668, there was a third edition in r820, and a reprint in r872, Wallace, op. cit. 469; to it is added the king's decree as to the Chancery of 1610,

Footnote 4: Op. cit. 29.

Footnote 5: The Practice of the High Court of Chancery Unfolded, with the Nature of the sex. tal Offices belonging to that Court, and the Reports of many Clses wherein relief hath been there had, and when denied; there was a second edition in 1672, and a reprint in 1870, Wallace, op. cit. 474.

###### Abstract

The following are the collections of Chancery reports which belong to this period :-- !

In 1649 was published Tothill's Transactions of the Hig's Court of Chancery.1 Tothill, the title page tells us, was one of the Six Clerks, and the work was published and edited after his death by Sir Robert 'Holborne, one of Hampton's counsel in the case of Ship Money.' The book contains two treatises. The first part--the Transactions of the High Court of Chancery--consists of very short notes of cases arranged alphabetically. In many cases the references to the registrar's books are given. All we can gather from these notes is that a certain point has been decided, and often that point is so obscurely stated as to be unintelligible. The second part consists of a short account of the Procedure of the Chancery. In the following year there was published by master George Carew 2 a collection of cases which he had gathered " out of the labours of master Lambard." These are known as Cary's reports, as his name is so spelt on the title page.3 They are short notes of points decided between 1537 and 1604, and, as Monro says,4 " they are very often mere verbal transcripts from the registrar's books." In 1652 another little book was published anonymously, which comprises both a tract on procedure and some notes of cases.5 The tract on procedure, called " The Practice of the High Court of Chancery Unfolded," I have already mentioned." The notes on cases are usually styled " Choyce Cases in Chancery." They report cases decided between 1557 and 1606.

### 278 Law in Xvith and Xvith Cents.

Other sets of Chancery reports contain \_f_ases of this period. There are one or two cases in Dickens, and a _number_ of cases in the Reports in Chancery, and in Nelson's report. But these reports belong to the following period, and I shall describe them later.1

Footnote 1: **Vol. v. 5.**, 1 404-412, 445-465.

We must now turn to the evolution of the principles which gradually began to guide and limit the dissection of the Chancellor in his administration of equitable rehef.

_The Subject Matter of the Rules of Equity._

The history of the court of Chancery and its equitable jurisdiction,2 the history of the chancellors and other officials of the court,3 and of the literature of and the authorities for the early rules of equity,4 combine to prove the fact that there is a great difference between the subject matter of the rules of equity in the fifteenth and early sixteenth centuries, and their subject matter in the latter part of the sixteenth and earlier part of the seventeenth centuries. In the former period the extent of these rules is very vague ; and the turbulence of the country, quite as much as defects in the law, gave rise to many interferences of the chancellor on the grounds of equity and conscience. In the latter period many causes were combining to confine such interference to certain defined channels. The turbulence of the country was being suppressed by the Council and the 'Star Chamber ; some of the defects of the common law were being remedied partly by the legislature, and partly by the efforts of the judges ; and the influence of the lawyer chancellors tended to foster the development of fixed rules, and to keep these rules in touch with the new developments which were taking place in the common law. I shall therefore take this chronological division between these two periods as the basis for my treatment of this subject.

Footnote 2: Above 218-227.

Tie Fifteenth and Early Sinteanti Centuries

In tracing the origins of the rules of substantive law we must, as a rule, look to the early history of the forms of action. They supply us with the ground plan round which the substantive law has grown up. But in tracing the history of equity we have no such ground plan. We start with a uniform, and, in early days, a simple procedure,6 which is applied to, a very miscellaneous set of cases. If we look at any collection of these cases, there appears at first sight to be very little connection between them. In fact, the only connection is the single circumstance that in all of them the plaintiff thinks that, either owing to his peculiar

## 6 The Rules of Equity

position, or owing to some defect in the law substantive or adjective or in its administration, or on all these grounds, he has a case which will appear to the conscience of the chancellor, and therefore induce him to compel the defendant to do that which he conficiently ought to do. Obviously, the variety of circumstances which constitutes the peculiar position of plaintiffs is infinite; and the defects which could be alleged in the law or its administration were very numerous, especially as the petitions addressed to the chancellor on this ground were based upon defects, not only in the law administered by the common law courts, but also in the law administered by the local and the ecclesiastical courts. It is, however, the cases which turn upon the defects of the common law which are the most important, both because the common law itself was the most important body of law in the state, and because it is to the action of the chancellor in some of these cases that we must look for the origins of some of our modern rules of equity.

We can group the defects in the law which gave rise to the action of the chancellor under two main heads:--(1) defects in the machinery of the law, and (2) defects in its subject matter. Under these two heads, therefore, I shall trace the history of the administration of equity during this period.

**(1) Cases which turn upon defects in the machinery of the law.**

The defects in the machinery of the law arose either (i) from faults in the machinery itself or its working, or (ii) from the non-existence of adequate machinery.

(i) _Faults in the machinery itself or its working._

I have already said something of these defects.1 In order to understand the manner in which these defects gave rise to the interposition of the chancellor, we must look at them in the light of some of the bills sent up to him.

Footnote 1: Vol. ii 554, 589; vol. iii 677-679, 624-627.

(_a_) The process of the common law was very dilatory. In i389 a shipowner appealed to the chancellor because merchants would not pay money due to him, and he cannot " stay for a long prosecution." 2 A little later a plaintiff brought a case of forcible entry before the chancellor, " because he hath no speedy remedy given to him by the common law."3

Footnote 2: Select Cases in Chancery (S.S.) to.

(_d_) It was also very expensive. The poverty of the plaintiff and the expense of a common law action were frequently assigned as the causes for an application to the chancellor. Thus a plaintiff alleged that she had been induced to part with her property to a

### 280 Law in XVITH AND XVIII CENTS.

suitor who had promised to marryher--but the suitor went off with the property, and it appeared, that he was a married man who had previously deceived others in like manner. She appealed to the chancellor because she was not " of power to sue her recovere by way of accion after the durs of the comen lawe of this lond for grete poverte, her said gogodes thus beyng out of her possession."1

Footnote 1: Martin, Some Chancery Proceedings of the Fifteenth Century 19; cp. Select Cases in Chancery (S.S.) 47; John Thomas v. John Wyse and John Clerk, Chancery Proceedings (R.C.) i.iii; Barbour, The History of Contract in Early English Equity 78.

(c) Common law process was very technical, and very inadequate. It was possible for a defendant to evade service of a writ by constantly shifting his residence ; or by fleeing to privileged places, such as Wales, the counties Palatine, or other franchises, where the king's writ did not run. Both these states of fact were sometimes alleged as reasons for an appeal to the chancellor.2 Wager of law was a possible defence in many actions ; and plaintiffs went to equity to avoid it.3 The common law did not take cognizance of acts and transactions entered into abroad.4 In Edward IV.'s reign a wool merchant prayed for an account to be taken of his dealings with another merchant resident in Calais--" for as muche as the delyerance of the seid wolles, and resecept of the money therfore, and all the oder deallyng above said, wer don out of this roialme, your same besecher hath no remedy by the comen law in this behalfe."5 Until the common law courts modified their strict rules of venue,6 many mercantile actions were both for this and other reasons necessarily brought before the Council or the court of Chancery.7 The " formulary system " of the common law was very rigid. It was not possible for several plaintiffs to join their several causes of action in one writ, nor could a single plaintiff join in one writ his different causes of action against several defendants.8 Nor, as we have seen,9 was it possible for an unincorporate body to sue or be sued as a collective unit. We have seen that such a body could sue in Chancery. Again, in the fifteenth century, the notions of the common lawyers upon the subject of corporateThe RULAS OF EQUITY 281 bodies were very hazy--there were difficulties in the way of actions by corporate bodies against their members, based on the notion that a man caniot sue himself.\[1\] In Henry V.'s reign the provost and commonality of Plymton Karls, in the county of Devon, complained that: their market had been disturbed by a riotous band, but that,'as the six known members of this band were members of the commonality, no action could be taken against them by the common law.\[2\] There were similar difficulties in the way of one executor suing another.\[3\]

The system of pleading at the common law was becoming so rigid that litigants who had substantial justice on their side might often be defeated. It was otherwise in the Chancery.\[4\]

The common law methods of getting the evidence of the facts in issue before the court were most rudimentary; and obviously this considerably aggravated the evils flowing from the rigidity of the rules of pleading. Reliance was still placed upon the knowledge of the jury, although the jury were fast ceasing to have a first-hand knowledge of the facts.\[5\] Volunteer witnesses were still discouraged by the fear of proceedings for maintenance.\[6\] But witnesses had a good defence to such proceedings if they had been required to testify by a competent court.\[6\] Hence we get petitions to the chancellor by would-be witnesses that he would command them to testify." Again, the parties to an action could not give evidence at common law. Therefore we get applications to the chancellor to summon persons accused of various misdeeds and examine them as to the facts alleged.\[8\] Much less could one party to an action force the other party to discover evidence necessary to the success of his action. Thus we have a curious case of the beginning of the fifteenth century,\[9\] in which two plaintiffs complained that the

### 282 Law in Xvith and Xvith Cents.

defendant had taken from them two prisoners, which they made at the battle of Agincourt, and ransomed them. They prayed that a certain part of the ransom, said to be in the hands of the wife of the Treasurer of Calais, might be stopped, and that the defendant might be examined to discover the names of the prisoners. A more usual case was an application for the discovery of documents needed to prove a title to land or chattels.1 And these applications for discovery of documents were made not merely against the other party to the action : they were made, and made successfully,2 against any third persons who had the necessary evidence in their possession.3 Nor apparently was it then necessary that an action should have begun.4 In fact many of these actions shade off into actions for the recovery of specific things which the plaintiff could not recover at law because he could not describe them with certainty.6 Such applications will become less necessary when the action on the case for trover and conversion has superseded detinue.6 It will then become possible to distinguish between these applications for discovery, and to define the limits within which discovery will be allowed.7 Still more was interposition of equity needed if a party desired to place on record evidence which was vital to him, but which was in danger of perishing. This was the reason for applications to perpetuate testimony. We -get in Henry VII.'s reign a bill of John, earl of Oxford, which tells us how Elizabeth his mother, by reason of her faithful allegiance to Henry VI., was coerced to convey her lands to Richard III., then duke of Gloucester ; and how there were living divers witnesses of great age to the fact of this coercion. The bill therefore asked that these witnesses might be summoned to depose what they knew in order that their depositions might be " entred and remayne of recorde."8

Footnote 1: Hulkere v. Alcote, Chancery Proceedings (R.C.) ii _xv_, _xvi_.

Footnote 2: See the decree in Select Cases in Chancery (S.S.) i08 and n. 5; Y.B. 39 Hy. VI. Mich, pl 36--a grantee from the king of goods of an attained traitor gets discovery of these goods from one in whose possession they are.

Footnote 3: See Reed v. the Prior of Launceston, Chancery Proceedings (R.C.) i _cxiv_; Fellow v. Make ibid i _cxxvii_; Duke of Somerset and others v. Payn, ibid ii _xxxi_; Baker v. Parson and others, ibid ii, $i$.

Footnote 4: Martin, op. cit. 17; he says that such bills usually contain the following clause or something like it, " As your seid suppliant knoweth not the certeintye nor nurture of the seid evidences, nor whether they be enclosed in bags, boxe scaled, or chest token, he can have no remedy by the common law."

Footnote 5: Lsqt note ; cp. Hulkere v. Alcote, Chancery Proceedings (R.C.) ii _xv_, _xvi_.

Footnote 6: Vol. iii 350-357; Pt. II, c. 2 SS 1; cp. Spence, op. cit. 643 n. $c$.

Footnote 7: Below 332. The carl of Oxford v. Tyrell and others, Chancery Proceedings (R.C.) i _cxx_, _xvi_.

(_f_) In addition to all these defects the machinery of the common law was, as we have seen, ab

## 1 The Rules of Equity 283

powerful in order to cover their acts of violence and fraud.1 Hence applications to the chancellor grounded upon facts of this kind bear a very large proportion to the total number of these applications. These bills allege such acts as the vexing of the plaintiff with groundless legal proceedings,2 the corruption of jurors 3 and local officials,4 the misuse of the machinery of the local courts,5 of the common law courts,6 and of the court of Admiralty,7 maintenance 8 and champerty,9 and very often conspiracy to defraud,10 or to terrorise 11 or corrupt 12 the jury. Of this mass of cases only one or two illustrations can be given.

Footnote 1: Vol, ii 414-176.

Footnote 2: Damico v. Burdican, Proceedings in Chancery (R.C.) i _ciii_.

Footnote 3: Martin, op, cit. 9, 10.

Footnote 4: Ibid 6-9; Proceedings in Chancery (R.C.) i _xxxi_, iii--the shcriffs of Norwich ibid i _xxxxi_ ;i--the mayor of Marlborough; ibid i _ci_--an alderman of Norwich.

Footnote 5: Martin, op, cit. 4-6--the Marshalsea; Proceedings in Chancery (R.C.) i _xxi_-the court of Scarborough _a_ Select Cases in Chancery (S.S.) 60, 61--court of Dover Castle.

Footnote 6: Proceedings in Chancery (R.C.) i _v-vi_, _cviii-ci_, _cviii_ ; cp. Y.B. Ed. IV, Pasch. pl. 5.

Footnote 7: Proceedings in Chancery (R.C.) ii _xxxxi_, vi--the applicant has been arrested contrary to the \_a_tautes of Richard II, and Henry IV, vol. i 548.

Footnote 8: Select Cases in Chancery (S.S.) ir, r12.

Footnote 9: Ibid 71-72.

Footnote 10: Ibid 72-73.

Footnote 11: Below 283-284.

Footnote 12: Below 284.

Footnote 13: Select Cases in Chancery (S.S.) 20-21.

Footnote 14: Martin, op, cit. 12.

Footnote 15: For the sake of completeness, we refer to the reader to the Appendix.

A typical case illustrating the vexaton of plaintiffs by groundless legal proceedings comes from the end of the fourteenth century.13 One Campyn Prynell, merchant of Lucca in Lombardy, complained that Richard Underwood, tailor of London, had vexed him by divers feigned actions of trespass for taking away his wife and goods. Two actions in the King's Bench had ended in the nonsuit of Richard. Notwithstanding, "the said Richard hath feigned two plaints against the said suppliant, which are still pending, by which the said Richard purposeth by the assistance of divers of his maintainers to await the said suppliant with jurors procured and not indifferent." The facts, as stated by the suppliant, seem to have been that the lady whom Richard claimed as his wife was not his wife at all, as she had been divorced from him by reason of a precontract. Another case illustrates the manner in which a false verdict was procured.14 Two citizens of London had their purses cut. The plaintiff found one of the purses and held it up to show that he had found it. The owner took it and said that unless he would deliver the other purse he would arrest him; and though, on his being searched, nothing suspicious was found, he was arrested. The owner of the purse then "summed suche an enquest that iiij of the same undertook to rewle all ther fellowship. And they had" with them .

### Law in Xvith and Xvith Cents.

currannce and other spyces att the cost and purveyauce of the seid John Aleyn \[the owner of the purse\] . . and made all the remenannnte of the enqueste to feynte for defaut of sustenauce that without they had sayd as the iiij did, they, had ben like to have dyed." The result was the plaintiff was cast in damages, and, for non-payment, was arrested. Mr. Trice-Martin has printed another case turning upon the suspicions entertained of a London jury.1 It appears that the defendant John Martyn of London, draper, had agreed to bet Miles Bysney, also of London, 3os. on a horse race into York, and that the 3os. had been deposited with the plaintiff, William Whytyng of York. John Martyn's horse had won by foul play, and it was generally agreed that the 3os. should be paid over to Miles, and this had been done. But Whytyng, having come to London, Martyn caused him to be arrested in an action of account for the 3os. He proposed by twelve of his neighbours to get him condemned. " Wherfor your seid suppliaint mekely besecheth your good and gracious lordship tenderly to consider the premysses, and how that the xii men of London owt not to medle with foreyn matters by the lawe, and yet oft types they doo, and the partie agenst whom they passe ys without remedy at the comen lawe bycause ther lyeth none atteynt in London."

Footnote 1: Martin, op. cit, 11-12.

Another bill turns upon the troubles of a priest who, as official of the bishop of Chester, had excommunicated the defendant for adultery. The defendant had gone to London, and there had become coroner and escheator. The priest having come to London, the defendant had brought an action of trespass against him, and had had him arrested.3

Footnote 2: Meverell v. Saunsum, Proceedings in Chancey (R.C.) i _ev._

Even foreigners knew how to make use of these legal technicalities. A bill of Edward IV.'s reign 3 tells us how the servant and kinsman of the plaintiff, a Spanish merchant, played at dice with the defendant, a Gascony merchant. The dice were false, and the Gascony merchant won $\\xi$28. The Spanish merchant thereupon caused the swindler to be arrested. But the swindler " by subtyle means hath of late renewed hymselfe in to the Kynge's Benche by means of suerte of the peace . . and therupon taken sentway in Westminster, and nowe by false and untrewe actions troublith your seid oratour in London, that he may not attend his merchaundises, to thentent to cause hym to surcese of his labour and suetes."

Footnote 3: De Castvo v. Narbonne, ibid i _cii_.

If we now turn to the system of procedure and pleading in use in the Chancery we shall see that, in the fifteenth century, it

**THE RULES OF EQUITY 285**

was strong in the very points in which the common law system was weak. In outline the course of the procedure was as follows :--

The plaintiff sent in his bill, which is often quite untechnical in its form and illiterate in its language. The bill usually prayed that a subpoena should be issued to secure the appearance and examination of the defendant.1 Sometimes the plaintiff offered to produce witnesses in support of his petition.2 At the foot of the bill were the names of the pledges to prosecute. They were made necessary by the fact that a statutc of Henry VI, prohibited the issue of a writ of subpoena till the plaintiff had found sureties to satisfy the defendant's damages if he did not prove his case.3 But it would seem that these pledges soon became as fictitious in Chancery as they were in the common law courts.4 When the defendant appeared, both the plaintiff and his witnesses, and the defendant and any witnesses which he might produce, were examined by the chancellor or other person deputed by him.5 "No doubt," as Spence says,6 "'a recommendation or rebuke from the Chancellor often settled the matter at once, which may account for there being in early times so many bills without any account of ulterior proceedings." But sometimes there were further proccedings. The defendant often began by pleading that the plaintiff had no cause of action in the Chancery, and then went on to answer the bill.7 Or he might demur to the whole bill,8 or he might put in other pleas, e.g. that the proper parties had not been joined.9 Naturally the common lawyers tried to introduce their technical rules of pleading.10 We get replications and rejoinders in form not unlike those used at common law. But we can see from the Year Books, and early reports of Chancery cases, that the chancellors set their faces against attempts to defeat plaintiffs by insisting upon the technical objections which would have been valid at common law.11 We shall see, indeed, that at a later period the system of equity pleading developed faults of its own, different from, but as great as those which disfigured the

### Law in Xvith and Xvith Cents.

common law system.1 But in these early days its faults had hardly begun to appear. The chancellor could say with truth that "a man shall not be prejudiced by mispleading or by defects of form, but he shall be judged according to the truth of his case."2

Footnote 1: Pt. 11. c. 7 SS 3; cp. vol. i 64,5-646.

Now it is quite clear that this system was free from most of the cardinal defects of the common law system. It was comparatively speedy--the Chancery was not tied down to the law terms, nor was there any undue delay in getting the defendant before the court.3 This in itself meant that it was less expensive. Moreover, the chancellor always professed to have a special regard for the interests of the poor.4 It was the reverse of technical, and it was eminently calculated to get at the real facts by the most direct methods. We have seen that the chancellor set his face against allowing these facts to be obscured by the arts of the pleader; and the methods used to elicit the truth by the examination and re-examination of witnesses, and by compelling the production of documents, were very effective. Barbour has explained this very clearly. He says: 6 "the examination was under oath; it is sometimes said to be on the sacrament, sometimes 'on the boke.' If the defendants lived at some distance from London, or were ill and unable to appear, a commission by writ of Dedimus Protestatem would be granted to take the defendant's answer and also to examine witnesses. A certificate of the answer and testimony would then be taken into chancery. . Evidence verbal or written was placed on the same footing, but the chancellor compelled a petitioner in prove his case. If he deemed the evidence insufficient or 'flicting, he would call for more, and no decree could be taid until it was produced. There do not appear to have been any rules of evidence, nor presumptions as to the burden of proof. The whole proceeding was thoroughly informal." Finally, the fact that the chancellor, by reason6 of his close connection with the Council, could act with the whole force of the executive government,4 enforcing his orders in the last resort by a commission of rebellion,7 prevented abuses of the machinery of the Chancery, similar to those abuses of the machinery of the common law courts, which were facilitated both by the weakness of their executive power and the technicality of their procedure.

## The Rules of Equity

We shall see that these characteristics of the Chancery procedure were of the first importance in helping the chancellor to remedy defects in the subject matter of the law. But, before I can deal with this topic, I must first deal with the cases in which the Chancery procedure supplied a machinery which was wholly wanting to the common law.

1. _The non-existence in the common law of adequate machinery._

Some of the cases falling under this head are of more permanent interest than many of the cases falling under the preceding head. To some extent the faults in the machinery of the common law, which gave rise, in the fifteenth century, to so many applications to the chancellor, were remedied in the course of the sixteenth century. But in many cases that machinery still remained inadequate to do complete justice to litigants. Therefore in some of the interpositions of the chancellor, based upon the non-existence of adequate machinery, we can see the germs of some of the later settled rules of equity. The principal cases falling under this head turn upon the impossibility of getting specific relief at common law, and the inadequacy of its machinery for dealing with cases which involved the taking of accounts and the administration of assets.

_Specific Relief._--We have seen that in early days the common law courts were in the habit of giving specific relief of various kinds in connection with both real actions, and other actions which enforced rights to or affecting land.1 But in connection with the purely personal actions no such relief could be obtained. The successful plaintiff in actions upon both contracts 2 and torts 3 could only get damages. Hence, from very early days, we get bills for the delivery up of specific chattels, against not only the persons who had taken or otherwise possessed themselves of them,4 or to whom they had been bailed,5 but also against third persons into whose hands they had come.6 We get bills for the performance of specific acts--e.g. the cancellation of a document ;7 for the specific performance of contracts--e.g. to convey land in accordance with a contract of sale,8 or a covenant to settle property on marriage ;9 or for injunctions against the commission

### 288 Law in Xvith and Xvith Cents.

of wrongful acts1--Ligerton said that he had seen, as early as Richard II.'s reign, a precedent of an injunction prohibiting waste, issued against a tenant for life in a case where, owing to the fact that there was a second remainder for life before the ultimate remainder in fee, there was no remedy at flaw.2

Footnote 1: See also \[1\] for a discussion of the _Living_ and _Living_ problems.

\_Account.--\_We have seen that the common law knew a writ of account; but that it was cumbersome in its methods and limited in its scope.3 It was only applicable in a limited class of cases; and, as it could not be used when the transactions in question had taken place abroad, it was useless for the more important commercial transactions.4 On the other hand the court of Chancery offered many advantages. It could both examine the parties and their witnesses, and it could join all the parties to the account in one suit.5 Thus we are not surprised to find that, by the end of the fifteenth century, the mere fact that the case involved the taking of accounts was sufficient ground for the interposition of the chancellor.6

Footnote 1: See also \[1\] for a discussion of the _Living_ problems.

\_Administration of Assets.--\_Much the same reason as that which made the Chancery an efficient tribunal in matters of account, made it an equally efficient tribunal in questions relating to the administration of assets. Its procedure enabled it to do what the common law courts could not do--take a comprehensive view of the rights and liabilities of the estate and of the conduct of the personal representatives, and settle in one legal proceeding the various equities as between the personal representatives and those interested in the estate.7 The cases are very various in character. In one case an executor sought to follow assets, entrusted by his testator to a deceased and outlawed bailiff, into the hands of a third person.8 In other cases plaintiffs sued for the payThe RULES OF EQUITY 289\*\*

ment of debts which could not then have been enforced against the executors of a deceased person at common law.1 In others they sought restitution for wrongs done by the deceased. A very curious bill of 1454 alleges that the late bishop of Salisbury had persecuted the plaintiff, who had been obliged to pay twenty marks to get his favour ; that the bishop had directed his executors to make restitution for wrongs done ; but that, this direction notwithstanding, the executors had refused to pay the twenty marks.2 In other cases, persons entitled under the will asked that the directions of the testator should be carried out.3 But it would seem from these scattered cases that the equitable jurisdiction over this class of business was not as yet, sufficiently extensive to have produced any very settled rules. * No doubt the reason is to be found in the fact that the jurisdiction of the ecclesiastical courts had not as yet become as ineffective as it afterwards became.4

Footnote 1: Barbour, op. cit. 102-I05 ; for the common law see vol. iii 576-583 ; cp. Vavasour v. Chadworth, Proceedings in Chancery (R.C.) i _xcitii_--repayment of a loan to a deceased person from his executors.

Footnote 2: Select Cases in Chancery (S.S.) i36-137 ; cp. Hylton v. Pollard, Proceedings in Chancery (R.C.) i _1, li_.

Footnote 3: Select Cases in Chancery (S.S.) i43-150 ; Polgrenn v. Feara, Proceedings in Chancery (R.C.) i _xxxii_--refusal by executors to give up goods to a son ; Bebington v. Gull, ibid i _lvi_--neglect to found a charity according to a will ; Wilflet v. Cassyn, ibid ii _xxxii_--for delivery of chattels left by will.

4: Vol. iii 591-594. * Select Cases in Chancery (S.S.) 8-ro.

5: Ibid 7-72. * Projectings in Chancery (R.C.) ii **L**.

Footnote 8: footnotemark:

### 290 Law in Xvith and Xvitit Cents.

suffic. The first is an ordinary typical case of riot and assault.1 John Chambre of Northampton complained that Ralph Grevill had riotously entered his manor of Hanwell with many other misgoverned persons " arrayed in forcible manner with jackys, salattis, lange-debeffys, launce-gaijs, and many other forbidden weapons," driven out his tenants, and taken away his cattle; that, on one of the tenants coming to demand the cattle, he had beaten and wounded him so that his life was despaired of; and that, on the plaintiff's suing out writs of repelvin, he had threatened that he would make the server of the writ eat them. The second is a rather more curious case.2 One Henry Hoigges, the plaintiff, alleged that he had acted as attorney to Richard Flamank in a suit against the Prior of Bodmin; and that, in consequence, a priest and servant of the prior, by name John Henry, bewitched him so that he broke his leg and his life was in danger. Further, he had threatened by similar diabolical means to break the plaintiff's neck. The plaintiff asks the chancellor's help not only on his own account, but on account of the great harm that would be done to all suitors and attorneys in the king's courts if this sort of conduct was allowed to pass. He thinks that the defendant should be punished, and made to swear that he will " forsake his heresy witchcraft and sorcery."

Footnote 1: Proceedings in Chamcery (R.C.) ii _xxxii,_

Footnote 2: Astell v. Causton, ibid _cuiii-cir_.

The actual abuse of, as distinct from the failure in the application of the rules of law, is not quite so common as the actual abuse of the rules of procedure. But there are one or two clear cases. $\\Delta$ curious case comes from the reign of Edward IV., in which a decree was made in favour of the plaintiff.3 It appears that one John Causton was farmer to Lord Bourchier and owed him money. The plaintiff Henry Astell, citizen and draper of London, was owed money by Lord Bourchier. By arrangement between the parties it was agreed that John Causton should enter into obligations to pay Lord Bourchier's debt to Astell. But Causton refused to fulfil this agreement unless Astell would enter into counter bonds for the same sum, conditioned to be void if Astell saved him harmless against any claim by Lord Bourchier. These counter bonds with this condition were entered into by Astell. The result was that Astell found himself in effect swindled out of his money; for, as Lord Bourchier had now no claim against Causton, the condition of Astell's bond, that if he saved him harmless against claims by Lord Bourchier the bond should be void, was impossible and therefore void.4 In effect Astell's

## 11 The Rules of Equity 291

counter-bonds were absolute; and therefore he had no answer to the action which Causton was bringing upon these counter-bonds. But the commonest class of cases in which the law was abused is to be found, in the law relating to villein status.1 The bills of this period show that it was made the pretext for all sorts of violence and extortion. I will give two instances out of many. The following is a bill of Richard II.'s reign':--" Besecheth a poor man, William son of John Calne, that whereas he is of free estate and condition, and he and all his ancestors time out of mind are and have been of the same condition, now then cometh one John Shortegrove, farmer of certain lands and tenements from one George Belamy, and claimeth the said William as his villein apputenaut to the said lands and tenements, and he hath seized and arrested the said William at Upton in the county of Hereford, and hath brought him from that county into Wales, and there keepeth him in a strong and hard prison." Another bill of 14543 alleged that the suppliant had been carried off and imprisoned till he entered into a bond to bring up a sufficient number of persons to prove that he was free. He brought forty such persons. But the defendant and his friends drove them off with arrows. Twelve months after the suppliant was again imprisoned, but he escaped to London. He dare not go home again, and asks for the chancellor's intervention.

Footnote 1: Vol. iii 5ca-505. ${}^{\\text{a}}$ Select Cases in Chancery (S.S.),$8o-8i.$

(ii) _The non-existence or inadequacy of the rules of law._

Some of these cases posses the same permanent interest as the cases which fall under the head of the inadequacy of the machinery of the common law. In both sets of cases we can see the germs of some of the later rules of equity.

By far the most important class of these cases is that relating to uses and trusts with which I have already dealt.1 The court of Chancery had begun to develop a far more definite, a far more systematic set of rules uporthis topic than upon any other. And the fact that it had done so illustrates how closely equity followed the common law--supplementing it and correcting it. The land law was the most highly developed branch of the common law, and suffered the most from that premature fixity of the common law which had promoted technicality at the expense of reasonableness. It was only natural, therefore, that it should be in connection with this branch of the law that the rules of equity should most quickly develop.

Footnote 1: Vol. iii 5ca-505. ${}^{\\text{a}}$ Select Cases in Chancery (S.S.),$8o-8i.$

Here I shall illustrate from the proceedings of the court during

### Law in Xvith and Xviith Cents.

this period one or two other branches of the law in which the absence or inadequacy of existing legal rules were supplemented by equity. I shall deal with them under the following heads :-- Fraud, Mistake, Accident, and Forgery ; Relief against Penalties ; Contract in general ; Contracts of Sale ; Agency and Partnership ; Suretship and Indeminity ; the ownership of Chattels ; the Assignment of Choses in Action.

\_Fraud, Mistake, Accident, and Forgery.--\_The scope of the action for deceit was very limited ;1 and it was not till the growth of actions for deceit on the case that the common law began to get some clear notions of the nature of fraud.2 In fact the common lawyers at this period had no adequate machinery for trying questions of fraud. For a long time therefore they held to the primitive view that "the thought of man is not triable ";3 and, if they were obliged to consider any question of fraud, they invented arbitrary rules according to which they would imply fraud from various sets of external facts.4 Nor was a plea of fraud of any avail at this period as a defence to an action for breach of contract. Till the growth of assumpsit, covenant was the only purely contractual action, and to it fraud was no defence.5 On the other hand, the power of the chancellor to examine the defendant and other witnesses, made the court of Chancery a very competent tribunal to deal with these questions. A very early case tells us how it was agreed that an attorney should pay over twenty marks in gold in return for a release, and how he got the release and kept the money.6 In another case the complaint is that a condition which was to have been inserted in a bond had been fraudulently left out.7 In Henry VI.'s reign relief against a bond and a conveyance was asked on the ground that the plaintiff, who was of weak intellect, had been made drunk.8 In Edward IV.'s reign a bill to set aside a deed made to defraud creditors was successful.9 Similarly the court relieved against mistakes made by reason of the ignorance or inadvertence of the parties--\_Deus est procurator fatuorum.10 Illustrations of the exercise of this jurisdiction are cases in which a debtor had paid without taking an acquittance,11 or in which a collateral agreement, not appearing upon the face of the document sued upon, had

## 1 The Rules of Equity 293

been proved,1 or in which it was proved that the consideration had wholly failed.2 Similarly the court would relieve against the loss of a document arising from accident; and, if the contents of the document could be proved, allow an action to be brought upon it.3 In connection with all these kinds of relief the court exercised large powers of cancellation or rectification of documents.4 The unsatisfactory nature of the law as to forgery in the fifteenth century made the interposition of the chancellor obviously necessary.5 Thus in Henry V1.'s reign there is an application to recover lands alleged to have been obtained by means of a forged deed.6

Footnote 1: Barbour, op. cit. 94, 95, 2 Ibid 96-97. 3 Ibid 101-102.

Footnote 4: Ibid 87, 88, 1z3, and cp. Astell v. Causton, above 290-291--all illustrations of cancellation; Barbour, op. cit. 94, 95--cases of rectification in accordance with a subsequent agreement.

Footnote 5: Vol. iii 400; vol. iv 507-502.

Footnote 6: Walker v., William, Proceedings in Chancery (R.C.) ii _xxx_. ${}^{\\bullet}$

Footnote 7: Op. cit. 89. ${}^{\\bullet}$ Select Cases in Chancery (S.S.) 137-141. ${}^{\\bullet}$ Y.B. 9 Ed. IV. Trin. pl. 34, cited Spence, op. cit. 602.

_Relief against Penalties_.--We cannot as yet distinguish in clear outline that jurisdiction to relieve against a penalty because it is a penalty which equity will apply in later days. But we can see some of its roots. It was obviously against conscience that a person should recover a sum of money wholly in excess of any loss incurred. A person seeking to do so might in some circumstances come perilously near to committing a fraud, and in other circumstances might be unconsciously seeking to take advantage of an accident. Thus Barbour says,7 "It seems to have been not uncommon that a debtor, 'for further security,' should bind himself in double the amount of the actual dabt; he might pay the debt, and still the creditor, armed with his sealed writing, could collect the full sum named in the deed; for the common law received such evidence as conclusive. The debtor's only resource was in the subpoena." Already we begin to see these principles applied in relief of mortgagors. In a case of 14508 a mortgagor, who had been fraudulently induced to execute a Statute Merchant, was relieved and the Statute cancelled. In Edward IV.'s reign Pigot seemed to think that, if money lent on the security of land were paid, the Chancellor could order a reconveyance of the land.9 But as yet the limits of and the principles upon9 which this jurisdiction is exercised are vague. We have not as yet reached anything that can be called an equity of redemption. A case of Edward IV.'s reign,10 in which a mortgagor alleged that he had overpaid the mortgage, ended in a decree awarding the mortgaged property to the mortgagee.

## 204 Law in Xvith and Xvith Cents.

\_Contract in General,1--\_We have seen that, until the development of the action of assumpsit, the only purely contractual action known to the common law was the action of covenant which lay only on a sealed writing.2 At the beginning of the fifteenth century assumpsit was in substance an action of tort, and lay only for a misfeasance committed in breach of an undertaking.3 It was not till the beginning of the sixteenth century that it was extended to cases in which a person had changed his position on the faith of an agreement, and had been damaged by the non-performance of the agreement.4 It was not till the latter part of that century that assumpsit was available for the enforcement of purely executory contracts.5 In the fifteenth century, therefore, it was clear that the common law was only prepared to enforce a very limited number of executory contracts ; so that it was inevitable that applications should be made to the chancellor. But, as he could not enforce all agreements, he must find some test to distinguish between an agreement and a contract. What that test was is by no means clear. Apparently all that we can say is that the !.laintiff must show that, in the circumstances, it was reasonable that the agreement should be enforced, and that it would be unconscientious if the defendant did not fulfil his undertaking. It is obvious that this is a vague test. It involves an inquiry into the circumstances under which the agreement was made. We must ask, Whether any change has taken place in the position of the parties as the result of the agreement? What was the object of the agreement? Was it an object--such as charity or marriage--which it was a mattcr of public policy to further? Did the parties seriously intend to contract? The result is that, as Barbour says, "it is impossible to determine absolutely the ground upon which Chancery proceeded."6 The Doctor and Student, however, makes it probable that the test to distinguish agreement from contract, which the chancellors had 'at the back of their minds, was derived from the canonist idea of _Causa_,7 which is the ancestor of the continental _Causa_.8 The Doctor is made to say :9 "First thou shalt understand that there is a promise that is called an Advow, and that is a promise made to God, and he that both make such a vow upon a deliberate mind intending to perform it, is bound in conscience to do it, though it be only made in the heart without pronouncing of words ; and of other promises made to man upon a certain consideration, if the

## The Rules of Equity 295

promise be not against the law : as if A promise to give B $\\not!!

### 296 Law in Xvith and Xvitin Cents.

of the undertaking, helped the common lawyers to arrive at this test of the enforceability of an agreement.1 But it is not probable that the canonist ideas had any more direct influence upon the theory of contract eventually worked out by the common law. The Student will have none of the Doctor's subtleties. He says ":--" Of the intent inward in the heart, man's law cannot judge, and that is one of the causes why the law of God is necessary (that is to say) to judge inward things, and if an action should lie in that case in the law Canon, then should the law Canon judge upon the inward intent of the heart, which cannot be as meseemeth. And therefore after divers that be learned in the laws of the realm, all promises shall be taken in this manner, that is to say, If he to whom the promise is made have a charge by reason of the promise, which he hath also performed: then in that case he shall have an action for that thing that was promised, though he that made the promise have no worldly profit by it." The impulse to extend the sphere of the enforceable agreement came from the Chancery ; but the technical method by which that extension was made was the gradual enlargement of the scope of a common law action. Hence the test of the enforceability of agreements eventually came to be the sum of the conditions under which that action would lie.3 That is the essence of the doctrine of consideration. And, as the test of consideration, thus evolved by the common law, came to be the test eventually accepted by equity,4 the canonist theory ceased to affect directly either law or equity. Here, as in other branches of the law, foreign influences inspired native developments, but they did not prevent these developments from being essentially native.

Footnote 1: Barbour, op. cit. 178-179; he there says that in the majority of petitions relating to contracts for the sale of land which he has examined this allegation is made; but it is probable from the Doctor and Student that Barbour is right when he says that this was not a condition precedent for recovery, but only an " aggravating circumstance"; the Doctor states the wider canonist doctrine, the Student the doctrine of detriment incurred on the faith of the making of the undertaking worked out by the common lawyers ; vol. iii 435, 440-441.

Footnote 2: Doctor and Student, Bk. II, c. 24.

Footnote 3: Vol. iii 428-453.

I do not mean to belittle the influence of the ideas suggested to the ecclesiastical chancellors by the canon law. That influence showed the common lawyers that it was necessary to enlarge their ideas as to the enforceability of agreements, and therefore set them to search for some test to distinguish between agreements which were enforceable and those which were not. From this point of view, therefore, it may be said that the ideas drawn from the canon law and the practice of the ecclesiastical chancellors, were the greatest of the forces which inspired the common lawyers to create the most distinctive of all the features of the English lawThe RULTS OF EQUITY 297 of contract--the doctrine of consideration. And the influence of these ideas and this practice did not stop here. Directly they influenced the growth of special varieties of contract. Indirectly, by inducing the common law to apply to other departments of law the flexible action on the case, they inspired many developments both in the law of property and in the law of tort. To some of these developments, which were foreshadowed by the equity of this period, we must now turn.

\_Contracts of Sale.--\_We have seen that the contract of sale of goods was well known to common law of this period, and that it had already acquired its main distinctive feature--the fact that the property passed when the contract was concluded.1 But, even after assumpsit was more fully developed than it was during this period, the common law remedies for sales by owners with defective titles, and for sales of articles of bad quality, were not adequate; and these defects were the cause of applications for the intervention of the chancellor.3 In the case of contracts for the sale of land there were other and stronger reasons for the same intervention. The strongest and most permanent of these reasons was the power of the Chancery to decree specific performance.3 Other reasons can be found in the fact that equity could, when the land was settled to uses, deal effectually both with foeffees to uses and cestuique use; 4 and that in a suitable case it could order recission of the contract, and compensation for any expenses which the plaintiff had incurred.5

Footnote 1: Vol. iii 354-357.

Footnote 2: Barbour, op. cit. r15, r16.

Footnote 3: Above 287-288; Barbour, op. cit. r2I--a petition of the chancellor of the University of Cambridge of about 1433 who had contracted to buy land to found a college.

Footnote 4: Barbour, op. cit. r20, r2I-123; vol. iv 430 443.

Footnote 5: Ibid r23.

Footnote 6: See Pt. II. c4 SS 5 for the history of agency.

Footnote 7: Vol. iii 383-385.

Footnote 8: Barbour, op. cit. r3I.

Footnote 9: Y.B, 8 Ed. IV, Mich. pl. 9 (p. r1) _per_ Pigot.

### 298 Law in Xvith and Xvith CENTS.

Similarly the chancellor was prepared to protect an undisclosed principal.1 It is quite probable that the chancellor's action helped forward the development of the common law ideas on this topic, and so helped the common lawyers to appropriate jurisdiction over the law of agency. We find one or two simple cases of partnership, similar to those which were brought in the mercantile courts.2 The plaintiff generally asked that his partner should account. The common law action of account was, as we have seen,3 available for this purpose; but its defects made it an inconvenient remedy. Obviously the adjustment of the relations between partners inter se demanded a procedure which could deal with administrative business. Therefore partnership, like administration of assets, eventually came to be principally developed by equity.

Footnote 1: Barbour, op. cit, 132.

Footnote 2: Above 258 n. 3.

Footnote 3: Farbour, op. cit, 133-134.

Footnote 4: Ibid 134.

Footnote 5: Y.B. 9 Ed. IV. Mich. pl, 26; and cp. Spence, op. cit, 635.

Footnote 6: Ibid 639.

Footnote 7: Ibid 135-137.

Footnote 8: Y.B. 9 Ed. IV. Mich. pl, 26; and cp. Spence, op. cit, 635.

Footnote 9: Ibid 639.

Footnote 10: Vol. iii 324-328, 337, 318-350.

\_Surelyship and Indemnity.--\_It was not till Henry VIII.'s reign that these contracts became enforceable at law by the action of assumpsit.4 Therefore we are not surprised to find that in the fifteenth century both these contracts were brought before the chancellor. Thus we get suits by creditors against sureties,5 and by sureties who complained that the creditor was suing them before the principal debtor.6 The contracts of indemnity which came before the chancellor were generally contracts in which two debtors had become jointly bound to a creditor, the first debtor having expressly or impliedly promised to indemnify the other.7 When the action of assumpsit became available to enforce the contracts of suretyship and indemnity it fully met the case of the contract of indemnity. But in the case of the contract of suretyship equity still continued to supplement the law. The continuing relations between the three parties to the contract gave rise to equities arising out of their conduct which only the court of Chancery could enforce. Thus the effect upon the surety's rights of an enlargement of time given by the creditor to the principal debtor,8 and the surety's right, on payment, to the securities held by the creditor,9 were incidents of the contract settled at a later period by equity.

Footnote 8: Y.B. 9 Ed. IV. Mich. pl, 26; and cp. Spence, op. cit, 635.

\_The Ownership of Chattels.--\_Even though, at the beginning of the fifteenth century, detinue lay for the recovery of chattels which had been bailed or had involuntarily left the possession of the owner,10 it was for many reasons an inconvenient action.

The Rules of Equity 299

No specific restitution could be had; and the action gave no remedy if the thing was damaged. If detinue was brought on a bailment the action must, in the fourteenth century,' have been brought against the bailee himself or some one in privity with him, for instance his heir or executor; and wager of law was sometimes possible.3 These defects drove plaintiffs to the Chancery; 4 and the action of the Chancery in these cases no doubt helped forward the development of the action on the case based on a trover and a conversion,5 just as in the sphere of contract it helped forward the development of assumpsit.

Footnote 4: For these defects generally see Barbour, op. cit. t13-T14.

Footnote 5: See ibid t13-T12 for some cases.

Footnote 6: See Pt. II. c. 2 SS 3 for the history of the law on this topic.

\_The Assignment of Choses in Action."--\_The common law never allowed a chose in action to be assigned; and, till the development of assumpsit, it was impossible to circumvent this rule by a novation. But, from an early period, the court of Chancery permitted the assignment of a debt, and recognized a novation. Barbour has collected three clear instances of an assignment," two instances of a novation,7 and three instances which might conceivably be treated as either one or the other.8 Right down to the Judicature Acts, apart from negotiable instruments adopted from the law merchant into the common law," it was only in equity that these assignments were recognized.

Footnote 7: Ibid 109.

The large amount of ground thus covered by equity in the fifteenth century constitutes a very damaging indictment of the medieval common law. Some of its faults were capable of being remedied, and were to some extent remedied, in the sixteenth and early seventeenth centuries. The medieval common law was then giving place to the modern common law. Necessarily, therefore, the field of equity tended to shrink; and, as at the same time the court of Chancery and its procedure were assuming their modern form, we begin to see, both in the extent and in the character of the rules of equity, the beginnings of our modern system. This development we must now consider.

The Sixteenth and Early Seventeenth Centuries

Throughout this period the development of a systematic body of equitable rules was proceeding; but the process was only beginning; and therefore we find that their subject matter was still to some extent determined by the defects of the common law. That this was so can be seen from the views expressed by

### 800 Law in Xvith and Xvith Cents.

the chancellors themselves.Bronley, as we have seen, warned a batch of newly created serjeants, " not to bring causes hither to this court upon false surmises."1 Hatton, on a similar occasion, gave a similar warning;2 and Bacon, enumerating the defects of the law, assigned as one of them, " that the Chancery courts are more filled, the remedy of law being often obscure and doubtful."3

But many of the defects and weaknesses of the common law of the fifteenth century had been remedied in the course of the sixteenth century. Consequently we can see a tendency towards the placing of some limitations upon the indefinite sphere of equitable jurisdiction. The nature of and the reasons for these limitations may be summed up as follows : Firstly, the lawlessness of the fifteenth century, which had been the occasion of so many petitions to the chancellor, was being gradually checked by the Council and the Star Chamber. As we have seen, their work was twofold. They increased the efficiency of the criminal law directly, by assuming jurisdiction over certain offences;4 and indirectly, by rendering more efficient the exercise of the criminal jurisdiction of the common law.6 At the same time cases of outrage occasionally came before the court of Chancery right down to the end of Elizabeth's reign,6 and cases of forcible seizure of property as late as Charles I.'s reign.7 Throughout this period also we have applications for writs of certiorari and habeas corpus with a view to remedy oppression by local courts and officials.8 But it is clear that this jurisdiction is on the decline. The punishment of outrages and violent disseisin was generally left to the Star Chamber.9 Applications for writs of certiorari and habeas corpus were not granted as of course;10 and, when the common law courts showed that they were capable of doing justice in such cases, these applications gradually ceased to be made to the chancellor. Similarly, encroachments upon the ecclesiastical

## The Rules of Equity 301

jurisdiction over probate of wills \[1\] and divorces,\[2\] and upon the Admiralty jurisdiction over depredations at sea,\[3\] also ceased. Secondly, some of the additions made by statute to the criminal law had a similar effect. Elizabeth's statute as to per-jury \[4\] is a good illustration. The practice as to giving relief on the ground of perjury fluctuated during Elizabeth's reign ; \[5\] but in the course of the seventeenth century, the chancellor ceased to entertain bills for perjury. Thirdly, the growth of actions on the case, by rendering procedure more uniform and simple, tended to render obsolete many of the technicalities which lawless or fraudulent persons had turned to their own'uses.\[6\] The disuse of such older methods of trial as wager of law had a similar effect.\[7\] Fourthly, the development by the common law of a system of written pleadings,\[8\] and the fact that it was beginning to acquire a law of evidence,\[9\] enabled it to do more substantial justice than in the preceding period. And, in the latter part of the seventeenth century, the powers which it assumed to order a new trial where the verdict was unre sonable,\[10\] and to change the venue in civil \[11\] or criminal cases,\[12\] if it was clear that a fair trial could not be had, obviated the necessity for the chancellor's interference in these cases. Fifthly, the common law was beginning to possess an adequate law of contract,\[13\] and to give an adequate protection to the owners of chattels.\[14\] The development of assumpsit and trover supplied remedies for many wrongs formerly unrended or only partially remedied by the common law. Therefore an appeal to the chancellor was only needed if something more than the common law remedy of damages was required.\[15\] Sixthly, this last development, coupled with the fictions by which the difficulties arising from the law as to venue were got over,\[16\] enabled the common law courts to divide with the Admiralty the mercantile

### 302 Law in Xvith and Xvith Cents.

business of the country.The Admiralty and the common law courts thus took from the Chancery many commercial cases which had come before it in the earlier period.

In these ways and for these reasons a good deal of business was ceasing to come to the court of Chancery. But necessarily the process was gradual. Throughout the seventeenth century, and especially during this period, we occasionally meet with cases which are reminiscent of the past rather than of the future history of equity. They gradually ceased as the common law improved; and consequently the equitable jurisdiction of the chancellor gradually'assumed its modern form.

This curtailment of the sphere of the equitable jurisdiction was a powerful factor in the systematization of the principles of equity. That this process of systematization was beneficial to the litigant is obvious; and it is equally obvious that it was a vital necessity to the continuous existence and development of equity itself. But it had its weak as well as its strong side. It was the procedure of the court of Chancery that first became thus systematized; and, as we have seen, it soon began to exhibit the defects of length, expense, technicality, and even corruption,1 which prevented the court from doing that cheap and speedy justice which it had done in the preceding period. If the common law was to some extent levelled up, equity was to at least an equal extent levelled down. Though the court still continued to hold itself out as the protector of the poor,2 suitors ceased to be able to appeal to equity against the delay and expense of the common law--if they did they often found themselves " out of the frying pan into the fire." 3 And here, too, we see the weak side of the victory of the Chancery over the common law--a victory which was, as we have seen, a condition precedent for the free and continuous development of equity.4 The efforts of the chancellor to stop the abuses of injunctions against proceedings at common law 5 did not succeed; and, in spite of repeated orders 7 and decisions,8 litigants attempted to get injunctions and

## 1 The Rules of Equity

### 1.1 The Rules of Equity

otherwise to use the Chancery1 for the most trifling causes. And thus another method of adding to the delay and expense of litigation was put into the hands of the rich and unscrupulous litigant.

Footnote 1: In the case of Bristow v. Phillips (1609), Monro, op. cit. 175.r16, master Grimeston certified that the matter in question was only a debt of $\\zeta$9, " which if the complainant do refuse or forbear speedily to pay and discharge, then I think the defendant is not to be restrained to take his remedy, by suing the obligation at the common law; and the rather, for that Honourable Court both not use, or, by the dignity thereof, ought to admit the commencing of, or proceeding of, suits for so mean or petit sums or values"'; cp. Dutton v. Philocks (1565), ibid 355; Johnes v. Morgan (1565), ibid 3, Metcalfe v. Brough (1565), ibid 357-358; Browne v. Tachell (1566), ibid 359; Harbarde v. Readinge (1566), ibid 3/2.

The sphere of the chancellor's jurisdiction was curtailed, but the business of the court continued to increase. The prosperity of the country was growing, with the result that life was growing more complex; and so more detailed rules were needed to guide the new activities and relationships which were emerging. Thus the chancellor had abundant opportunities for developing a set of principles and rules applicable to the various pieces of jurisdiction which he still retained. That he took these opportunities we shall see if we look at the manner in which he developed the principles of equity during this period.

In dealing with these developments I shall first speak of the development of the law as to Trusts. Throughout the history of equity this branch of the equitable jurisdiction has been by far the most important; and its principles have permeated many other branches of that jurisdiction. These trusts were in very many cases connected with marriage settlements or wills. The chancellor, in adjudicating upon them, was compelled to consider many problems of family law. To this branch of law, which was as yet-very scanty, he thus made considerable additions. With some of these additions I shall deal in the second place. These two branches of the equitable jurisdiction presuppose a machinery capable of administrative work. The possession of this machinery naturally attracted other branches of jurisdiction to which such machinery was essential. Some of these begin to emerge during this period, and with them I shall deal in the third place, Fourthly, all these branches of jurisdiction presupposed a power to give in a suitable case a certain measure of specific relief; and we have seen that from the earliest period the chancellor had attempted to give this relief.2 The cases in which it would be given were beginning during this period to be reducible to certain categories. Fifthly, there is still a somewhat indeterminate list of cases in which equity gave relief against the rigidity of the law. They have not yet become distinct branches of the

### Law in Xvith and Xvith Cents.

equitable jurisdiction ; but we can see that some of them were developing in this direction. We shall see, in the following section, that these developments have begun to affect the character of Equity.

_Trusts._

We have seen that one result of the Statute of Uses, was to transfer from the court of Chancery to the courts of common law, jurisdiction over all that numerous class of cases in which A, was seised of an interest in land to a passive use in favour of B.1 But we have seen that there were a number of cases to which the statute did not apply.2 It did not apply to active trusts, to trusts of pure personality, or to trusts of a term of years. We can find instances in the reports in which equity dealt with all these varieties of trusts.3 And it is probable that one of the results of the Statute of Uses was to increase the importance of trusts of long terms of years. By the machinery of long terms of years the king's rights over land held of him by knight service in chief could be evaded, and provision could be made by marriage settlement for widows and younger children.4 Therefore, although the equitable jurisdiction over trusts had been diminished by the Statute of Uses, it showed, towards the end of this period, distinct signs of recovery ; and in the cases decided, partly on the old principles applicable to uses, and partly on new principles, we can see the beginnings of the modern law as to trusts. We shall see that this competition of the court of Chancery had some influence on the manner in which the common law courts moulded the incidents of the new legal estates in the land--the shifting and springing uses and executory devises--which had come into the common law as the result of the enactment of the Statute of Uses and the Statute of Wills.5

Footnote 1: Vol. iv 464.

Footnote 2: Ibid 463.

Footnote 3: _Active Trusts_, Cary to, II, citing Crompton 48b; _Trust of pure personality_, Game v. Hoi (1628-1629), I Ch. Rep. 27-28; Bracken v. Bentley (1636-1637), ibid tip-iii; _Trust of a term_, Cary ii, citing Crompton 65a.

Footnote 4: See e.g. Lyddal v. Vanlore (1r26-1627), I Ch. Rep. 9-13 :'Earl of Newcastle v. Earl of Suffolk (1630-1631), ibid 50-52 ; below 306.

Footnote 5: Pt. II. c. SS 4.

In the following directions we can see the beginnings of some of the modern rules of equity'on this topic.

(1) We begin to see the modern classification of trusts. At the present day they are divisible, according to the objects for which they are created, into charitable or private trusts ; and private trusts, from the point of view of the manner of their creation, are divisible into express trusts, implied or presumptive trusts, and constructive trusts. This classification does not, it istrue, emerge till 1676 ; \[1\] but it will be clear from the following cases that its foundations were laid during this period.

In the case of a charitable trust, the court,\[3\] after a little hesitation, followed older precedents \[3\] and allowed a gift in favour of an unincorporate group of persons.\[4\] It repeatedly said that it would look favourably upon such trusts, and interpret the documents creating such a trust in the manner most beneficial to it.\[5\] If there was any diffi.ulty about carrying out the trust it would itself make a scheme for the purpose.\[5\] We may perhaps see here the influence of the canonist leaning in favour of promises made for charitable purposes ;\[7\] and no doubt that influence was strengthened by the Elizabethian legislation in favour of these trusts.\[8\]

The only difficulty arising with regard to the creation of an express private trust is to prove that it has been created. Equity exacted strict proof of this,\[9\] unless the facts were admitted ;\[10\] and it would appear that, at this period, it was not so ready, as at a later period, to allow that merely precatory words proved the existence of such a trust.\[11\] Of an implied trust we get an illustration in the rule laid down in 1608-1609 that in equity executors did not necessarily take the undisposed-of residue beneficially, and that a trust might be implied in favour of the next 'of kin and charity.\[12\] Of constructive trusts we get many illustrations. The principle upon which they rested was already well known in the law relating to uses of freehold.\[13\] One illustration from the year 1579 will suffice.\[14\] " The bill sctetth forth, that Gibone, one of the defendants, in consideration of $\\pounds 286$ did bargain and sell unto the plaintext certain lands in the bill mentioned ; and made unto him a deed of feoffment, and a

### Law in Xvith and Xvith Cents.

letter of attorney, to make livery and seizin ; and before livery, made a lease to Cateline, who knew of the bargain, and he leased to Brown, who knew also of the bargain, and this appearing to this court to be true, an injunction is granted to the plaintant, until the cause should be heard and determined." As we can see from this case and others, the crucial point in these cases was the presence or absence of notice ; and it would seem the court had already begun to consider the question of constructive notice. From a mere rumour notice would not be implied ;1 but from the existence of a suit it would.2 It was a doubtful point whether a purchaser without notice from one with notice was bound.3

Footnote 1: "A conveyance absolute in words, and yet there is a bruit of trust, but doubtful whether there be a trust or not, and on hearing the bruit bought the land, yet shall not be concluded by such a bruit, as Sir Thomas Egerton said, Cornwallis's case 1595," Tothill 186.

Footnote 2: "A suit is depending for a trust, and after upon hearing the trust is proved, then that is a sufficient notice of trust to any man which buyeth it, hanging the suit," Diggs v. Boys (1598), Tothill 186.

Footnote 3: Pitts v. Edelph (1631-1632), Tothill 186,

Footnote 4: Woodford v. Multon overruling Greene and Cottrell's Case, Cary 13.

Footnote 5: Cary 8.

Footnote 6: Bishop of Hercford v. Bright (1630), Tothill 43--a conveyance made to avoid worship ordered not to be given in evidence; cp. Coke's statement in Lampet's Case (1613), to Co, Rep. at f. 5za ; Rasden v. Tuffin (1597), Tothill 1z2, "no relief in equity touching leases of one thousand years because they tend to defraud the crown; 'ibid 1r6, cases as to perpetuities.

Footnote 7: Young v. Leigh (1577-1578), Cary 67.

(3) The duties of the trustees were to hold themselves ready to deal with the property in accordance with the terms of the trust. The court would order the necessary conveyances to be made.7 They must invest money with due care ; but the court did not as yet set an excessively high standard of prudence, " If the trustee let it (money) out to supposed able men (though they fail) (the court) will not charge the trustee for no more than he received."8

Footnote 7: Carey 8.

(4) With regard to the trustee's liabilities, it was settled that he could not plead the statute of limitation.9 As to the liability of co-trustees it was held that one was not liable for the mis

## 6 The Rules of Equity 307

feasances of the other unless he took part in them,1 or unless by his negligence he made them possible.2

Footnote 1: Townley v. Shurborne (1633), Tothill 88,

Footnote 2: Capell v. Gostow (1674-1675), ibid.

Footnote 3: Vol. iv 472-473. 4 Ibid. * Above 306.

(5) We have seen that during almost the whole of this period the court did not attempt to evade the Statute of Uses by upholding a use upon a use.3 To do so would, as I have said, have been clearly detrimental to the royal rights to the incidents of tenure; 4 and we have seen that Egerton frowned upon leases for long terms of years upon this ground.5 But there are some indications that both the common lawyers and the chancellor agreed that relief might be given to the second cestuique use in the case of a charitable trust,6 or if a clear case of fraud could be proved. Bacon seems to hint at these possibilities in his argument in _Chudleigh's Case_: which was delivered in 1594; and an anonymous case reported by Cary illustrates its application : " If A sells land to B for twenty pounds, with confidence that it shall be to the use of A, yet A shall have no remedy here, because the bargain hath a consideration in itself; and such a consideration in an indenture of bargain and sale seemeth not to be examinable, _except fraud be objected_, because it is an estoppel." 8 In the precedents contained in the 1615 edition of West's Symboleography an attempt is made to impose a trust upon the bargainees in a bargain and sale; 9 and in _Sir Moyle Finch's Case_,10 in 1600, it seems to have been admitted that, though the trust at issue in that case was not enforceable, a trust, though it was the trust of a use, if it was clearly proved, might be enforced in equity. As this case affords a good illustration of the views held both by the common lawyers and by the chancellor at this period upon this matter, it is necessary to examine its somewhat complicated facts.

Footnote 4: Although in the _habindum_ a trust is declared, that without question cannot make the bargain and sale void, but the conveyance, being by bargain and sale, was wisely made to declare the confidence and trust," Case of Sutton's Hospital (1673), to Co. Rep. at f. 34a.

Footnote 7: " The said feefrees in special cases which pretend favour may be enjoined out of Chancery, where uses always have been ordered, that they shall not do any act to the prejudide of the use which may thereafter arise, and the subpoena in this case be revived," Works (Ed. Spedding) vii 636.

Footnote 8: Cary I4. * SS 284. 10 Coke, "Fourth Inst. 85-86,

### Law in Xvith and Xvith Cernis.

Thomas (though disseised of the land) by bargain and sale enrolled conveyed the land settled on himself and his heirs to the plaintiff, on trust for the payment of his debts. He died ; and the plaintiff filed his bill against Sir Moyle Finch and his wife for the land. The chancellor made a decree for the plaintiff. The defendants then petitioned the queen for a reversal of the decree.1 She referred the case to the judges, and on their report the decree was reversed.

Footnote 1: This was at that period the only way in which a decision of the chancellor in the exercise of his equitable jurisdiction could be questioned vol. i. 372-373.

It will be observed that there were two trusts in this case--firstly the trust to convey to Sir Thomas Heneage and Anne his wife and their heirs, and secondly the trust raised on the barguin and sale by Sir Thomas for the payment of his debts.

As to the first trust, it was, as Ames has said,2 an active trust. It was clearly not considered to be a trust to which the Statute of Uses applied, as the trustees thought it necessary to convey to Sir Thomas and his wife by bargain and sale. But it should be noted that the active duty in this case was simply to convey. It is clear that the distinction between an active trust simply to convey to X, and a conveyance to the use of X, is a little thin ; and the thinness of the distinction tended to become more apparent, because, as we have seen,3 the original reason for the rule that there could be no use upon a use was tending to be lost sight of. That being so, it would be only natural that in a case of fraud cr great hardship--if, e.g., all the parties had acted in reliance on the carrying out of the trust--the chancellor should reconsider the rule that the second use could not be enforced.4 And it would seem from what the judges said in this case that they would not have disagreed. They said : 5 " If a man make a conveyance, and express an use, the party himself or his heirs shall not be received to aver a secret trust, other than the express limitation of the use, _unless such trust or confidence do appear in writing, or otherwise declared by some apparent matter._ And Popham said that covin accident and breach of confidence were within the proper jurisdiction of this court "--i.e. the court of Chancery.

Footnote 2: Lectures on I.egal History 245-246.

Footnote 3: 5The rules of equity 809

the rule that there can be no use upon a use. The trust was declared invalid on four grounds :1 firstly, because Sir Thomas, being disseised, could make no valid conveyance of the legal estate ; secondly, because, though Sir Moyle Finch was (it would seem) the $\\overline{\\mbox{\\tt\\char 37}}$iseisor, he was not bound by the trust because he was _in_ in the post;2 thirilly, because the bare trust, which was all that was left to Sir Thomas, was incapable of assignment, and so could not be enforced by the plaintiff ; and fourthly, because the title and the trust had descended to the daughter, so that the trust was merged in the legal estate.

Footnote 1: Fourth Imtit, 85 ; I have paraphrased these grounds, and omitted that which turned on the views of the judges as to the limits of the equitable jurisdiction to examine the title to freehold.

It would seem that, according to the later rules of equity, the second and third grounds for this decision were bad. But, whether the decision was right or wrong according to the then received principles of equity, it is clear that the reasons on which it was based had nothing to do with the doctrine of the invalidity of a use upon a use. On the contrary, it is, as we have seen, clear that the judges admitted that there might be cases in which equity might properly uphold a second use. This view, which thus had the support both of the chancellor and of the common lawyers, was acted upon in 1633-1634 in the case of _Sambach_ v. _Duiston.3_ Thus it is clear that the rule that there could be no use upon a use was weakening. But, as we have seen, it was hardly likely that it would be wholly abandoned so long as the king's financial interest in the incidents of tenure made its continuance necessary in order to prevent the evasion of these burdens.4 This was really the only cause for the maintenance of the rule ; and so we shall see that, in the following period, when, in consequence of the abolition of the military tenures, the king had no further interest in perpetuating it, it silently disappeared.5

Footnote 2: It is not stated that Sir Moyle Finch was the disseisor ; but it seems to me that it is necessary to suppose this to make sense of the report ; he must have been in seisin or the bill would not have been brought against him, so that he was either the disseisor or acquired the seisin from him.

Footnote 3: 4: Because one use cannot be raised out of another, yet ordered and the defend-dant ordered to pass according to the intent," Tothill $\\tau^{\\mbox{\\tiny\\it\\char 37}}$.

Footnote 4: Vol. iv 472.

_Family Law._

The two branches of family law in which important developments were made by the $\\varepsilon$ourt of Chancery during this period were, firstly, the law as to married women, and, secondly, the law as to the guardianship of infants. It is in the first of these branches of the law that the most important developments took place. Although the court was ready to intervene in the second, its activities were fettered by the continued existence, during the

### Law in Xvith and Xvith Cents.

whole of this period, of the feudal rights of wardship, which were controlled by the court of Wards and Liveries.

(i) I have already described the status of the married women at common law;1 and we have seen that that status was not materially modified by the ecclesiastical chancellors.2 But during the sixteenth and early seventeenth centuries we can see the gradual growth of a feeling that these rigid rules ought to be modified. The total incapacity of the married woman to own personal property, and to deal with her real property, naturally appeared more and more unsatisfactory to the women of the wealthier classes and their relations--in i590 George, earl of Shrewsbury, made a legacy to his daughter conditional on her surviving her husband.3 Hence we find attempts to modify her proprietary incapacity; and the partial success of these attempts naturally introduced modifications of her other disabilities which had followed from this proprietary incapacity.

Footnote 1: Vol. iii 520-533-

Footnote 2: "' Unto my daughter Grace, now wyfe of Heniie Cavendishe, esquier, one thousand poundes, to be payde within one quarter of a year after the death of her husband, yf she fortune to survive him, or else she to not take anie proffytt of the legacie," North Country Wills (Surt. Soc.) ii 48-49.

Footnote 3: See Castilliau v. Castilliau (ror2), Monro, op. cit. roq-ro6a-the husband entered into a recognizance with the wife's friends to make a jointure of PS400 a year, and conveyed to them in trust a manor and all her jointure from former husbands, and by ded of gift gave them all his goods to her use.

The methods adopted to modify her proprietary incapacity seem to have been two in number. Firstly, an attempt was made to use the machinery of a contract or contracts entered into before marriage; and secondly, use was made of the machinery of the trust. Sometimes there was a combination of these two devices.4

(i) There are, during this period, one or two cases in which effect was given to a contract entered into before marriage to allow a married woman a limited power of disposition; and contracts of this kind appear in the convegancing precedents of this period.5 In the case of _Avenant_ v. _Kitchin_" (1581-1582) the report runs as follows:--"The bill is as well for certain legacies given them \[the plaintiffs\] by the late wife of the said Kitchin, and also to have the said Huet ordered not to release a Recognizance of 2000 marks, wherein the said Kitchin is bound unto him in trust before marriage with his said wife, that she might by the will dispose of \_$500 of goods besides her jewels. Kitchin demurred upon the bill, and sued the said Huet in the court of Requests to release the said Recognizance; and ordered, if cause be not showed by such a day, then a subpena to Kitchin to make a better answer, and to Huet not to release the Recog

## 7 The Rules of Equity 811

1 It appears therefore that the court was inclined to uphold the validity of such an agreement; and in 1637-1638, in the case of _Palmer_ v. _Keynall_\[1\] a similar agreement was in fact upheld. But the Chancery decisions are not uniform. Many of them seeht to go no further than the common law decisions of this period.

The question of the validity of an ante-nuptial agreement by a husband to leave his wife property by his will had already come before the courts of common law. They had held that, though an agreement between a man and a woman was avoided by their intermarriage,2 yet it might be upheld if the obligation only arose after the determination of the marriage. Thus an agreement by a man to bequeath to a woman $\\pounds 100$ if she married him, would be enforceable by her if she married him and survived.3 Of course these decisions do not go the length of the Chancery decisions, which allowed a married woman to acquire by contract an active disposing power over property, even during the marriage. They only allow that the wife might acquire by contract a capacity to receive on the termination of the marriage. But they do evidence a disposition to relax slightly the strictness of the technical rules of the common law.

Footnote 2: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 3: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 4: The author is grateful to the anonymous referee for his comments on the manuscript.

In conformity with this view it was held in the Chancery that there could be no contract between husband and wife,4 that neither could sue the other,5 and that after marriage no variation of any settlement made before marriage could be effected by agreement.6 Similarly it was doubted in some cases whether a contract made before marriage could give the wife any active disposing power during the marriage. In 1631 the lord keeper and two of the judges declined to uphold a verbal agreement, made before marriage, that a wife should have the sole disposal of $\\pounds 600$ a year due to her under a decree of the court.7 They said that "the verbal agreement in consideration of the said marriage was to subvert both the grounds of law, and the right

### Law in Xvith and Xvith Cents.

which was vested in him (the husband) by the intermarriage ; and therefore if such agreement is not settled by some legal assurance to make it binding in law, it is not fit to be maintained in a court of equity, in order to give a - feme covert such a power as is now pretended." In fact the court sometimes seems to have regarded devices used by the wife to withdraw her property from her husband's control, as frauds upon the husband's legal rights, unless the husband had received consideration for the abandonment of his rights. This feeling also affected attempts to improve the married woman's proprietary position through the machinery of the trust ; but, as we shall now see, the comparative flexibility of that machinery made it possible, if under the circumstances it seemed to be equitable, to modify the married woman's proprietary position by arrangements made both before and during the marriage.

There are several illustrations, both in the reports and in the conveyancing precedents, of the growing practice of conveying property to friends of the wife for her use ; and it is quite clear that the court of Chancey was prepared to give effect to them.1 At this period the common law judges justified this device on the ground that, if the estate so settled was equitable, it was a mere chose in action, and not property at all from their point of view.2 The court of Chancey was no doubt influenced in favour of these arrangements by the fact that many of them were part and parcel of a bargain as to the wife's jointure. The Statute of Uses had made a legal jointure in lieu of dower legally possible ;3 and equity had soon improved upon this by upholding bargains for a jointure other than those contemplated by the statute.4 The need for such an extension was the more apparent since equity was inclining to refuse to permit dower out of equitable estates.5 A fair arrangement so made would no doubt be upheld by the court. But it would seem that the mere fact that a trust had been created for the benefit of the woman would not necessarily bar the husband, unless it could be shown,

## The Rules of Equity

either that in the circumstances it was fair and reasonable 1--the facts for instance that the husband was a wastrel,2 or that the wife was separated from him,3 would be facts that would induce the court to protect the married woman ; or that it was made with the consent of the husband, and not secretly so as to defraud him of his marital rights. This point of view is very clearly illustrated by the decree in the case of _I'leeton_ v. _Dennys_ in 1594.4 It appears that Walter Dennys had sold to the plaintiff the lease of a parsonage impropriate which belonged to his wife. But his wife, who had acquired the lease as the executrix of her late husband, had, long before her second marriage, conveyed the lease to trustees. She had done this partly to provide for "the preferment of her kindred and servants in performance of her former husband's will," and partly in order that, if she married again, " her second husband should have no power to make away or incumbent the said lease." Walter Dennys tried to prove that this conveyance had been made after the contract to marry, and was therefore in fraud of his marital rights. But it was proved, that so far was this from being the case, that Dennys had known of it and approved it before the marriage had taken place, and had impliedly ratified it after the marriage. The court therefore upheld the assignment. And, as it appeared that Dennys had a good deal of property with his wife, the court in substance ordered that the trustees should hold the lease for the wife and that she should have the sole power of disposing of it.5 Further, it ordered that, as " it is alleged that the said Mrs. Dennys hath been hardly forced to sell away her jointure, and to discharge the bonds and assurance for the same, and that she wanteth competent maintenance for a gentlewoman of her estate, this Court thinks it convenient, if that be true, that she should have out of the leases which were hers, and are assigned as aforesaid, some

### IAW in XVITH AND XVITH CENTS.

meet and convenient portion for her maintenance, answerable to the calling of Mr. Dennys, and unto her estimation and countenance, which she had before she was his wife." 1 We see here in germ the ideas which later will give rise to the doctrine of the wife's equity to a settlement ; so that it is not sufprising to find that in 1638-1639 this equity was practically recognized.2 But, when this result has been reached, it will not be long before the court will cease to look at the reasons for a settlement on a wife for her separate use, and will begin to recognize that in all cases where such a settlement is made the wife has complete proprietary capacity in respect of the property settled.

Footnote 1: Cp. Castillian v. Ca-tillian (16r2), Monro, op. cit. 164-166, where the circumstances and the conduct of the parties are carefully considered. These rules of law arc alluded to in Butler's Hudibras Pt. III. canto i Ill. 1187-1194 :--

" How would'st th' have us'd her and her money ?

First turned her up to alimony,

And laid her dowry out in law

To null her jointure with a flaw,

Which I beforehand had agreed

T' have put on purpose in the decd,

And bar her widow's making over

T' friend in trust, or private lover."

" The defendant sues in the Ecclesiastica Court for a portion due to his wife, this Court orders an injunction to stay proceedings there, till he shall make a competent jointure," Tanfield v. Davenport (1638-1639), Tothill 114-115; but that the equitable rule was as yet uncertain can be seen from the fact that in 1637 an aggrieved wife makes her application to the ecclesiastica court, S.P. Dom. 1637-1638 32, cccclxiv 3r ; and in 1638 to the king, ibid 575-576, cccxcv 86.

${}^{2}$ Hawkyns v. Peterson (1605), Monro, op. cit. 49-51.

${}^{3}$A widow, before marriage, makes a conveyance to the use of herself to friends, because her husband shall not have benefit; the trustees assign this lease to one for valuable consideration, and though the husband joins, shall not prejudice her; but because the assignee came in upon a valuable consideration, shall keep it till he receive all disbursements, and the wife to have benefit of the same," I'itz James v. Hirsley (1590), Tothill 43; " money by consent of her husband, put forth for the use of the wife, and gives power, she will dispose thereof accordingly, but not allowed," Poole v. Harinton (1638-1639), Tothill 136; and cp. S.C. Kidd 97; cp. Hawkyns v. Peterson (1605), Monro, op. cit. 49-51.

${}^{4}$Flecton v. Denys (1594), above 314 n. 5.

${}^{6}$Baskerville v. Siimbthorne (1614-1615), Tothill 95.

## 1 The Rules of Equity 815

to sell land so settled to strangers \[1\]; and perhaps even to make a binding contract \[3\]. Similarly she could appear as plaintiff or defendant in litigation in the court of Chancery \[3\]. Occasionally, indeed, the fact that her husband is beyond the seas or that she is living apart from him is given as a reason for allowing her to do so \[4\]; but in other cases no such reason is given, and it is fairly obvious that her capacity thus to sue or be sued is the consequence of the new proprietary position given her by equity.

(2) As I have said, the court of Chancery did not get very much chance of interfering in questions of guardianship during this period \[5\]. But we can see that, where there was property to protect, and where the case fell outside the purview of the court of Wards and Liveries, it was prepared to assume jurisdiction. Thus it was prepared to adjudicate upon the title of a child's relative to be guardian in socage \[6\]; and it assumed jurisdiction to compel the executors of such a guardian to account for rents and profits taken during the minority \[7\]. Further, it could order allowances to be given to children for their education during their minority \[8\]. It is clear that when feudal wardship disappears the court will be quite ready and able to assume the role of the protector of the proprietary interests of infants ; and that the way will be opened for the assertion of even more extensive claims based upon a supposed delegation of the king in his capacity of _parents patrie_\[9\].

_The Administrative Jurisdiction._

The machinery of the court of Chancery was, as we have seen \[10\], as well adapted for the exercise of this jurisdiction as the machinery of the common law courts was badly adapted. It could examine accounts ; and it could supervise and adjudicate upon the conduct of those who administered an estate as trustees, guardians, or executors. For the same reason it could adjust accounts between principal, and surety, or surety and surety,

### Law in Xvith and Xvith CENTS.

between principal and agent, and between partners. Of trusts I have already spoken, and shall speak again later;1 and of the beginnings of the modern law of partnership and of principal and agent I shall speak in the Second Part of this Book.2 Of the subjects upon which the court is already beginning to acquire a certain number of rules are, (1) certain topics connected with the administration of the assets of deceased persons ; and (2) one or two rules as to the contract of suretyship. At this point, therefore, I shall say something of these two subjects.

Footnote 1: Vol. vi c. 8. 2 Pt. II. c. 4 I, SSSS 4 and 5.

(i) We have seen that jurisdiction over wills, intestacies, and the administration of assets was divided between the common law courts and the ecclesiastical courts--with very inconvenient results.3 The machinery of the common law courts was quite incapable of being used for administrative work ; and, during this period, the growing weakness of the ecclesiastical courts made them increasingly incapable of remedying the deficiencies of the common law courts.4 Hence there was an increasing need for the court of Chancery to continue to intervene to remedy the defects of both sets of tribuuals.5 The result of its interposition was to create our modern law as to the administration of assets. But as yet we are far from this result. We can only see the beginnings of some of our later rules in various encroachments on the sphere of (i) common law rules, and (ii) the rules laid down by the ecclesiastical courts.

Footnote 1: Vol. vi c. 8. 2 Pt. II. c. 4 I, SSSS 4 and 5.

(i) The common law rules dealt mainly with the devise,4 the position of the heir or devisee,7 and the relation of the executor or administrator to the debtors or the creditors of the estate.8 In many cases equity was content to follow the law. It left most questions concerning devises to the common law courts.9 It followed the law as to the executor's personal liability for devastavit 10 and other wrongs 11 committed by him, as to his non-liability for the torts of the deceased,12 as to the independent powers of co-executors,13 and as to the necessity of the executor's

## 11 The RULES of EQUITY

### 11.1 The RULES of EQUITY

As a result of the RULES of EQUITY, the RULES of EQUITY is a very simple example of the RULES of EQUITY. The RULES of EQUITY is a very simple example of the RULES of EQUITY.

### Law in XVITH AND XVITH CENTS.

in an apparently due course of administration. Thus payment of debts or legacies under a decree of the court was a full protection against any proceedings to question its regularity.1 In the third place, the court could look at the positiq of the estate, and the relations of those against whom it had claims and of those who had claims against it, and lay down rules for its proper administration.

Footnote 1: Terrey v. Fowler, Todhill 88-89; Byard v. Byard (7578-1579), Choyce Cases I23-I24.

In thus acting it accomplished what the common law courts were wholly unable to accomplish ; and it more than filled the place left vacant by the decline of the ecclesiastical courts.2 As yet, however, the cases are scanty, and few general rules can be laid down. It was quite clear that debts must be paid before legacies;3 and, as a rule, specialty debts before simple contract debts. In one case, however, the court seems by special order to have given a simple contract debt priority.4 Personality (and, in the absence of contrary intention, chattels real were included in personality) 5 was primarily liable to the payment of debts.6 But reality could be charged with the payment of debts, and in such a case the heir must where necessary join in a sale.7 An estate pur autre vie, created as a security for a debt, was held to be assets for payment of the mortgagee's debts;;8 and an heir was held to be liable for the performance of his ancestors' covenants, even though he had taken the land by devise." ButThe Rules of Equity 319

he was held not to be liable to convey land contracted to be sold by the deceased, though payment had been made to the deceased.1 Legacies must, as a rule, be paid rateably out of personal estate, and if the personal estate was insufficient, out of any real estate charged with their payment.2

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" " " " " " " "

### Law in Xvith and Xvith Cents.

money was payable at a future date,1 the method of payment where legacies were given to a class of children on the attainment of twenty-one,2 and questions of construction,3 And, in dealing with these questions of construction, we can see, the germs of some important doctrines of equity. We see some hints of the doctrine that a portion may be satisfied by a legacy or a devise,4 and that a legacy may be ademed by a portion,5 and perhaps of the leaning of the court against double portions in order that charges on the land might not be multiplied.6 But it would seem that as yet there is no sign of the doctrine of conversion.7

Footnote 1: The _L_-1The Rules of Equitty

(2) In the law of suretyship it was settled that giving time to the principal debtor,1 or other alteration of the relation of the principal debtor and creditor to the prejudice of the surety without his knowledge," discharged the contract. At one time it was laid down that the bankruptcy of the principal debtor gave the surety some title to relief;3 but this rather absurd decision was soon overruled.4 The court always interfered to enforce contribution between joint debtors;5 and in several cases it applied this principle to co-sureties.6

Footnote 1: Cary I, citing Y.B. q Ed. IV. Mich. pl. 26.

Footnote 2: Saunders v. Churchill (1613), Tothill r8-r82; Hare v. Michell (r61-r615), ibid r82; Moile v. Lord Roberts (r62q-r630), ibid.

Footnote 3: Johnson v. Pudicot (r612), Tothill r8r.

Footnote 4: Little v. Good (1678), ibid.

Footnote 5: Dolman v. Vavasor (r579-r580), Cary 92-93 ; R. v. Colborne (1578-1579), ibid TII:12; Reeve v. Harvard (r587-r582), Choyce Cases 152.

Footnote 6: Peter v. Rich (r62q-r630), r Ch. Rep. 34-36; Morgan v. Seymour (r637-r638), ibid r20-r21; and cp. cases cited by Tothill at p. 47.

Footnote 7: Above 291-296.

Footnote 8: Vol. iii 428-453.

Footnote 9: Pt. II. c. 3 8 I.

Footnote 10: At pp. 18-19.

Footnote 11: At A. delivereth twenty pounds to B. to the use of C., a woman, to be delivered her the day of her marriage. Before her marriage A. countermandeth it, and calleth home the money. C. shall not be aided in Chancery, because there is no consideratione.why she should have it," ibid g. Writing was not necessary ; provided that the contract was proved and was otherwise valid, it was enforced though only made verbally, Hunt v. Cheeseman (r612 or r634), Tothill 65.

VOL. V.--21.

### 822 Law in XVith and XVith CENTS.

to disengage and pay the father's debts, where no advancement by the father " would not support a bill.1 At the same time we shall see that, though equity accepted the common law doctrine of consideration as a test of the validity of a contract, it did not adopt this doctrine in relation to other matters in which consideration was a condition precedent to equitable relief.2 In these cases it still adhered to the meanings which it had attached to consideration in relation to its doctrine as to uses.3 For these purposes consideration must either consist in money or money's worth, or in near relationship ; and these meanings are directly connected with the canonist doctrines.4

Footnote 1: Alexander v. Cresheld (1631), Tothill 21.

Footnote 2: Below 327 and n. I.

Footnote 3: Cary 20; Crowder v. Robinson (1577), Choyce Cases 175; Brown v. North (1630), Tothill 162; Y.B. 27 Hy. VII. Mich. pl. 66, and Brook's note cited vol. i. 456 n. 9.

The development by the common law of an adequate theory of contract, and its acceptance by the court of Chancery, made a resort to equity less necessary than it had been in the preceding period. In fact, it was only necessary to resort to equity when some form of specific relief was needed.6 The court of Chancery acted upon this view, and dismissed to law cases in which it was thought that damages were a sufficient remedy.6 But it cannot be said that the practice was as yet perfectly clearly fixed. In 1639-1640 there was " a suit touching two horses, for which the defendant was to pay by doubling an oat," to which a demurrer, on the ground that an action on the case was a sufficient remedy, was overruled,7 And in 1629-1630 the court heard a suit for $\\pounds 5%00$ promised for the purpose of making the promisee a baronet.8 On the other hand, a contract to surrender a lease and certain titles for 100 marks was dismissed, to be decided at common law.9 But it is clear from the cases that it was most commonly in connection with contracts to grant some interest in land that the court was asked to act. There are two reasons for this. Not only were damages not a sufficient remedy in these cases, but-also the contract did not, as in the case of chattels, pass the property.10 It followed from the second of these reasons that there arose a need for specific relief'which did not exist in the case of chattels, or in bodies of law in which the contract to sellThe Rules of Equity 328

land operated as a conveyance.1 We do not see as yet very many of the modern rules as to the conditions under which the court will grant this remedy ; nor has the later distinction between specific relief upon executed contracts, and the specific performance of executory contracts,2 been elaborated. We do, however, see that the court, especially in agreements relating to marriage settlements, pays great attention to the paramount intention of the parties.3

Footnote 1: See I.,Q.R. xvii 372-373 ; Mr. Amos there says--"the greater part of the English law on the subject of specific performance of contracts is concerned with the execution of contracts to convey. . A very ample and effective equivalent to this branch of the English doctrine of specific relief seems to be afforded in French law by the translative effect which is attached by the Code to a simple convention to transfer property."

Footnote 2: Ashlburner, Equity 534 n (s).

Footnote 3: See e.g. Lyddal v. Vanlore (t626-t627), I Ch. Rep. 9-13, where an agreement was decreed though it varied a settlement already executed ; Wiseman v. Roper (t645-t646), ibid 150--a coevanant to settle lands of which the covenantor had no possession, but only a possibility of inheriting; having inherited them, specific performan.e cf the covenant was decreed ; " This Court do find warranted by the Precedents and constant practice of this court, where such agreements have been made, upon which the party can only recover damages at law, for this court to decree the thing in specie, wherein this court dcth not bind the interest of the lands, but inforc the party to perform his own agreement," ibid at p. t60.

4 See last note; and cp. Arnold v. Barrington (t63x), Dick. 5.

5 Vol. iii 3:26; cp. vol. ii 246-249. * Vol. iii 246-247. * Pt. II. c. f 8 I. \*

### Law in XVITH AND XVITH CENTS.

Secondly, an injunction was useful to secure the performance of the duties of landlords and tenants. Thus in 1560-1561 the plaintiff had made a title by parol lease to certain lands belonging to the defendant, and, having done so, had sewn the land with corn. Thereupon the defendant had entered upon him; but the plaintiff " had an injunction for the corn."1 Conversely, in 1563-1564 it was decreed that the defendant should pay a certain rent to the plaintiff, the lord of the manor of whom he held; that he should do suit and service at the plaintiff's court; and that the plaintiff was entitled to the fines and americaments for the trespasses presented at the court of his manor.2 Thirdly, injunctions were issued to constitute or to declare the existence of easements, profits, or rights analogous thereto.3 Fourthly, they were issued to enforce inclusive4 and other awards,5 and even the bylaws of townships.6 Fifthly, they were issued as a result of decrees as to the copyhold status of land held of a manor. In Edward VI.'s reign there was a decree in favour of the defendant who claimed that his lands were ancient copyhold and not leasehold.7 We have seen that the establishment of the fact that lands were ancient copyhold gave the tenant a very much more favourable position than the leaseholder, because he could invoke the protection of the manorial custom which was now enforced by all the king's courts.8

Footnote 1: Harison v. Chomeley (1560-1567), Cary gr.

Footnote 2: Litton v. Couper (1563-1564), Cary 51-52

Footnote 3: "Wotton _cantra_ Wotton, a highway decreed in 10 Car. Powell _contra_ Parsons, a piece of ground sold, but no reservation of a highway, but decreed that a way should be continued as formerly, Mich. 3 Car.," Tothill 70; Lawrence v. Windham (1576-1577), Cary 64--suit for common of pasture and turbary.

Footnote 4: Tothill 110-112.

Footnote 5: Burtet v. Redman (1559-1560), Cary 47--an award as to a custom of tenant right made by the justices of assire.

Footnote 6: "Nipurie _contra_ Pilkington, concerning the decreeing of by-laws for the good of a town, a decree in 5 Car., and a decree in 25 Eliz.," Tothill 66.

Footnote 7: "Rotulo Judicial, E 6, 4 pars A decree betwetwen Fotheringhaml and Edsington defendant, the question was touching certain lands which the plaintiff claimed by lease, and which the defendant claimed as copyhold; and forasmuch as he failed in the proof, and the defendant showed his copy and ancient court rolls, proving it to be ancient copyhold, therefore the lands were decreed to the defendant according to his copy ... till the plaintiff should prove a better title before the council at York," Tothill 59-60..

Footnote 8: Vol. iii 211-212.

Footnote 9: Young v. Burrel (1576), Cary 54-55.

The rules of equity 325

the law of tort, as nearly all the torts against which an injunction was sought were, at this period, torts to property.1 Thus we get injunctions against waste,2 against "sowing ridges which lie in sheep course,"3 against ploughing up ancient pasture,4 against interference with the right of support.5 Similarly an injunction was applied for against a nuisance caused by the erection of a mill, and the diversion of water from the plaintiff's mill; but as the plaintiff had, since the filing of his bill, brought an assize of nuisance, the suit was dismissed.6 Generally, however, in cases of nuisance the court would award an injunction.7

Footnote 1: "Where an action upon the case for a nusans, and damages only are to be recovered, the party may have help here to remove or restore the thing itself," Cary 20.

Footnote 2: E.g. Petetson v. Shelley (1577), Choyce Cases 177; Tothill, 143-144--various cases as to ploughing up pasture; Cary 26; the Council also issued injunctions in these cases, see e.g. Dasent xviii 308, 316-318 (1592).

Footnote 3: Kitson v. Cropley (1595), Tothill 65-66.

Footnote 4: Ibid 143-144.

Footnote 5: Bush v. Field (1579-1580), Cary 90.

Footnote 6: Osburne v, Batter (1583-1584), Choyce Cases 176.

Footnote 7: Swayne v, Roggers (1604), Cary 26--" the case was in effect an assize of nusans, for Rogers disturbing the trenches and plucking up of stakes of Swayne's mill lcct; and making a bank or dam beneath, that made the water reflow so as the wheels could not go; and exception was taken that the Court should not hold plea thereof (_sed contrainum adjidactur_), many causes of the same manner ended here."

In many of these cases the injunction was interlocutory. It was granted only till the hearing of the suit. Also it is clear that some of these injunctions were mandatory, others simply prohibitive. It would appear therefore that the main division between the different varieties of injunctions has been reached.

With what was at this period perhaps the most practically important class of injunctions--those issued against proceedings at common law--I shall deal under the following head :--

_Relief against the rigidity of the law._

This is still a large subject which comprises a number of miscellaneous topics, some of which will in the future give rise to quite, separate equitable doctrines. In this period this separation has not yet been attained. All these topics are still connected by the fact that for one reason or another the law left to itself would work injustice. But we see some of the lines upon which separation will proceed; and I shall therefore group these topics upon these lines. Firstly, I shall deal with a group of cases in which equity gave relief on account of the peculiar circumstances of the case, or the personal conduct of the parties. Secondly, two specific instances of such relief--relief against penalties and the relief given to mortgagors--were becoming distinct heads of equitable interference. Thirdly, there are a group of cases in which the fault lies with the rules of law. Two important illustrations of this are the deficiencies of the law of evidence, and the

### Law in Xvith and Xvith Cents.

treatment by the law of choses in action.Lastly, there are cases turning upon the means by which these interferences were rendered effectual--injunctions to stop proceedings at common law.

(1) The first group, in which equity gave relief on account of the peculiar circumstances of the case or the personal conduct of the parties, includes relief given in cases of accident or mistake, dures or undue influence, and fraud. It is clear that the extent of the equitable jurisdiction in this class of cases will to a large extent depend on the provision made by the law to redress damage occurring through these events. All through this period the law made such scanty provision that the judges themselves admitted the necessity for the equitable jurisdiction,1 It is a jurisdiction which in later days will diminish with reforms of the common law ; but at this period it is extensive because it is exercised to redress the rigidity of many different branches of the law.

(i) It is exercised in connection with the law of procedure. As we have seen, the claim of the Chancery to issue injunctions against the execution of judgments given by the common law courts was rightly defended upon the ground that these judgments were often given without any reference to the conduct of the parties, and were sometimes got by very sharp practice.2 Equity interfered if it thought that in the circumstances the parties were making an unrighteous use of their legal rights--thus it stopped an action for dower when the widow had got the jointure which she had been promised.3 Similarly it stopped a common law action if it thought that the methods of trial at common law were not in the circumstances well adapted to discover the truth--in one case Egerton said that the matter " rested not properly in notice _de pas,_ but to be discerned by books and deeds of which the Court was better able to judge than a jury of " thoughmen."4 On the other hand, the court was always ready to dissolve such an injunction if it appeared it had been got on inadequate grounds.5

Footnote 1: The King's order and decree in Chancery, Cary r19-120--" We find that the judges themselves in their own courts, when th:re appeared unto them matter of equity, because they by their oath and office could not stay the judgments, except it be for some small time, have directed the parties to seek relief in Chancery "; see e.g. Bracebridge v. Bracebridge (1581), Choyce Cases 149.

Footnote 2: Vol. i 461-462.

(ii) In the law of property the jurisdiction was also exercisedThe RULES OF EQUITY 827 extensively. Thus the court would correct a conveyance so as to bring it in conformity with the obvious intention of the parties to it. In an early case it was said that "the Chancery giveth help for perfecting of things well meant and upon good consideration. As if in a feoffment of lands for money the words 'heirs' be omitted in the deeds";1 and in Charles I.'s reign it was held that " when the father conceives his lands to be freehold, \[and\] gives part thereof to a younger son, although an old sleeping entail be set on foot \[this\] shall not prejudice the younger son."2 The exercise of this jurisdiction somewhat easily slides off into a jurisdiction to interpret doubtful words "in conveyances so as to make them conform to the intentions of the parties.3 Similarly the court would supply the defect of some "circumstance of ceremony"--"as if a man sells land in two'counties for money, and maketh livery in the one only, he shall be compelled in conscience to perfect the assurance by another livery";4 or it would supply other obvious omissions or mistakes such as the misnomer of a corporation 5 or a person,6 a misrecital of a record owing to a clerical error,7 a clerical error in a deed,8 certain mistakes in the exercise or recital of powers.9

Footnote 1: Cary 16-17.

Footnote 2: Pountney v. Pilkington (1642-1643) Tothill 54 ; cp. the cases cited ibid t27, r28.

Footnote 3: " A lease made to two during their lives, and after to the use of such of the children begotten by Peter Rumney, this being without any express conclusion what child or children, the construction touching the uses is to be made as near as may be, to the meaning of the said parties, who conveyed the same to uses," Rumney v. Garnous (1591) Tothill t26.

Footnote 4: Cary 17, citing the Doctor and Student.

Footnote 5: Ibid 37; Choyce Casses roS--${}^{\\ast},Nota$ by the L. Chancellor Elsemere said, that it is no conscience for a Corporation to avoid their grant by a misnomer."

Footnote 6: Goodfellow v. Morris (1618) Tothill t37.

Footnote 7: Culpepper v. Decanum and Coll. Winton (1557) ibid.

Footnote 8: Biverwinshse v. Fuller (1594-1595) ibid.

Footnote 9: Comitisa Oxon. v. Stanhop (1632) ibid t32.

Footnote 10: Griffin v. Sayer (1633) ibid t32-132.

Footnote 11: Merrick v. Mil (1649) Nels. 48-49; cp. Tisdal v. Danvers (1642-1643) Tothill a8; the Council also exercised a similar jurisdiction, D

### Law in Xvith and Xvith Cents.

to come to equity for relief in cases when circumstances over which the parties had no control made the performance of a contract impossible.1 Sometimes relief was given, though there was a legal remedy, if it appeared that the legal remedy, qwing, e.g. to the death of witnesses, might not be efficacious.2 What limit there was to this wide jurisdiction does not as yet clearly appear.3 It is not till later that its extent and the conditions of its application begin to emerge clearly.

Footnote 1: Kyrwyn v. Bedoe (r585) Monro 543-544--a contract to build a house made impossible by royal proclamation; Popc v. Barker (r598) ibid 723-724--bond to marry a woman before master who fell dangerously ill before that date, and soon after died.

Footnote 2: ++ This suit is to be relieved of a bond of 200 marks made for payment of too marks delivered as an escrome, to be delivered as his ded, if the noo marks for which the bond was made, was paid. The defendant demurred, because the plaintiff may have remedy by law, if the bond were delivered upon such condition; but because the witnesses that could testifie the delivery of it are dead; therefore the defendant is ordered to make a full answer," Fox v. Wilcocks (r58-r579) Choyce Cases r23.

Footnote 3: In Meld v. Cooper (r582-r583) Tothill r22 the opinion was expressed that, " no continuance would make a void lease good especially against a purchaser; " but in Griffin v. Sayer (r163) ibid 131-132, relief was given where a counter b.and was void at law.

(iv) A fortiori the court would relieve against loss caused to one party by the misconduct of the other. On this principle it relieved against duress,'undue influence, and fraud. In the case of duress the common law gave a remedy ; but it would seem that at this period the court of Chancery exercised a concurrent jurisdiction.4 But the common law did not profess to give relief against the more subtle forms of oppression which are comprised in the phrase " undue influence." Thus in 1627-1628 it was held that a scrivener, who had the management of a testator's property, and who had used his position to get advantages for himself, could not benefit thereby.5 In an earlier case a plaintiff had recovered her dower at common law ; but the defendant " being rich and wilful" prevented her benefiting thereby. At the request of the judges, the chancellor put a stop to this oppression by issuing an injunction to establish her in possession of her dower." There are many cases in which the court relieved against fraud and sharp practice. Thus it relieved a lessee from a forfeiture arranged for by a fraudulent trick of the lessor.7 It compelled a purchaser to repay money received for a reversion of which he could not give the vendor the stipulated enjoyment.8 Conversely it compelled a recon

**THE RULES OF EQUITY** **329**

**veyance when a condition, which would have made the conveyance defeasible in the events which had happened, was fraudulently omitted.1 It resinded contracts induced by fraud;2 and in one case it relieved a person who had been enticed into a gambling house where false dice were used, and had borrowed money from one of the confederates to go on playing."**

\*\*In all these cases in which a plaintiff applied for relief either on the ground of the peculiar circumstances of the case, or on the ground of the misconduct of the defendant, it was essential that the application should be made promptly, as the evidence upon which applications of this kind were made is somewhat easily forgotten. It is true that the statutes of limitation were not applicable to certain purely equitable claims;4 and how far the court was prepared to subject equitable titles to analogous rules was doubtful,5 because as yet the statutes of limitation were but new.6 But it was quite clear that equity was not prepared to assist those who slept upon their rights. Thus it would not disturb a possession long enjoyed--" Upon the hearing of the matter it appeareth, that the lands in question have been in the defendants and their possession by whom they claime of the space of eighty years; therefore ordered and decreed the defendants to be dismissed."7 A mortgagor's claim to redeem was refused because those claiming under the mortgagee had been in possession for forty years;8 and lapse of time without any claim for payment by a mortgagee was held to bar his rights.9 The same principle was applied to actions on bonds,10 to liabilities to pay rent11 or rent charges12 or legacies,13 and to the validity of conveyances.14 A fortiori the plaintiff could not succeed in getting relief if the loss had occurred through his owi misconduct. A

### Law in Xvith and Xvith Cents.

plaintiff applied for an injunction to stop an action on the case for words on the ground that he was drunk when he uttered them. The application was refused--" Qui peccat ebruis, luat sobrius."1

Footnote 1: Kendrick v. Hopkins (1579-1580) Cary 93; and cp. Power v, Coppinger (r6r5) Monro, op. cit. 219, 220--a bill to be relieved of a debt incurred through gaming dismissed, as it appeared from the plaintil's confession that the plaintiff was " disappeared by wine."

(2) A specific instance of the exercise of the jurisdiction to give relief against accident or sharp practice is the treatment by the court of conditions and stipulations of a penal character. It was one of the oldest of the cases of equitable interference;2 and by this period was almost a separate branch of the equitable jurisdiction. At bottom it rests upon the idea that it is not fair that a person should use his legal rights to take advantage of another's misfortune, and still less that he should scheme to get legal rights with this object in view. The principle both of the older and of the more recent cases is stated quite clearly by Cary:3 "If a man be bound in a penalty to pay money at a day and place, by obligation, and intending to pay the same, is robbed by the way; or hath untreated by word some other respite at the hands of the obligee, or cometh short of the place by any misfortune;4 and so failing of the payment, both nevertheless provide and tender the money in short time after; in these, and many such like cases, the Chancery will compel the obligee to take his principal, with some reasonable consideration of his damages." Similarly, "If the obligee have received the most part of the money, payable upon the obligation at the perenptory time and place, and will nevertheless extend the whole forfeiture immediately, refusing soon after the default to accept of the residue rendered unto him, the obligee may find aid in Chancery." And, "the like favour is extendable against them that will take advantage upon any strict condition, for undoing the estate of another in lands, upon a small or trifling default."5 These were principles upon which the mediaval chancellors had acted. During this period their most striking development is to be found in their application to the relations of mortgagor and mortgagee.

Footnote 2: Above z33.

Footnote 3: At pp. 1, 2.

Footnote 4: Cp. Franclyn v. Watkyns (1579) Monro, op. cit. 487-488.

We have seen that, in the latter half of the fifteenth century, the older forms of mortgage were tending to disappear; and that the type of mortgage which had survived gave the mortgagee the fee simple, or other the whole estate of the mortgagor, with a proviso that, if the debt was paid by a fixed date, the land should be reconveyed.4 The strictness with which this provisoThe Rules of Equity 381 was construed made a recourse to equity very necessary ; and we have seen that equity was ready to interpose, either on the ground that payment had been prevented by the sharp practice of the mortgage,1 or on the ground that the strict construction of the proviso might amount, in cases when payment had been delayed by accident, to the enforcement of a penalty,2 or possibly on the ground that it might be tantamount to the enforcement of an usurious contract.3 But towards the end of the sixteenth and at the beginning of the seventeenth century there was a further development. It seems to have been thought that a mortgage was, after all, only a security for a debt ; and that therefore the title to equitable relief did not depend upon the reason why the mortgagor had failed to redeem at the day, or upon the nature of the contract. It was enough that it was a mortgage transaction intended to secure to the mortgage a fixed sum and interest thereon, and subject thereto to leave the mortgagor substantially the owner of the property.

### Law in Xvith and Xvith Cents.

date.1 These results were only gradually reached;2 but when they had been reached, it became clear that this equitable right to redeem was in substance an equitable estate in the land which could be conveyed or settled like any other estate.3 Until, however, this equity to redeem had been exercised, the legal estate in the mortgaged property, and the right to get a decree for foreclosure, went, in the absence of testamentary disposition,4 to the hair of the mortgage.5 But as yet the rights and liabilities of the heirs and executors of mortgagor and mortgagec were by no means clearly settled.

Footnote 2: The reader is referred to the following article \[1\].

Footnote 3: The reader is referred to the following article \[2\].

Footnote 4: The reader is referred to the following article \[3\].

Footnote 5: This seems to have been the view finally reached, though the opinion of the court had fluctuated, cp. Ash v. Wood, and Maynard v, Middleton (r631-r632) Tothill r34, with St. John v, Grobham (r635) ibid.

Footnote 6: Above 281-r282.

Footnote 7: At pp. 15, 16.

Footnote 8: Standen v, Bullock (r596) Tothill 9; cp. Pie v, Bevill (r635-r636) ibid r6-- " the defendant ordered to show evidence, to direct what tequants ought to attorn, and to discover who is tenant; " Cresswell v, Luther (r577) ibid 20--"a bill to find who is tenant of the land whereby to ground an action; " Earl of Pembroke v, Bostock (r626-r627) ibid r6--" a bill to discover a patron, whereby to enable one to bring _quare impedit_; " Gifford v, Tripconey (r582-r583) Choyce Cases r63--the

**THE RULES OF EQUITY** **9383**

testimony, if there was a risk that essential evidence would be lost.1 (ii) Of the rules which developed into important principles of the modern law of evidence the following illustrations are the most importat :--A person was not obliged to answer if by so doing he exposed himself to the risk of criminal proceedings,2 though possibly the fact that he might be exposed to civil proceedings was no bar.3 A person was not allowed to depose that he " had heard say " that a lease had been made," and, if parol evidence was offered to prove the execution of a lost decd, the witness must swear, not merely that he saw the dged, but that he saw it sealed and delivered.5 The right of solicitors and counsel to refuse to answer as to matters which had come to their knowledge professionally was well established;" and it was even laid down that trustees could not be examined as witnesses one against the other.7 (iii) In the exercise of its own jurisdiction the Chancery showed itself very suspicious of leases and other agreements which were not evidenced by writing. In 1603 Lord Ellsemere said that he would give no help to parol leases;" and that it was good for the commonwealth, if no lease parol were allowed by the law, nor promises to be proved by witnesses, considering the plenty of witnesses nowadays, which were _testes diaboltics qui_

**defendant ordered to produce a lease which the plaintiff contended gave him a joint estate with the defendant.**

Footnote 1: Iearing v. Fisher (r578-1579) Cary r.o; Southall v. Peryn (r583-1584) Choyce Cases 179 ; Throckmorton v. Griflin (r595) Tothill r3; Potts v. Szarborough (r635-r630) ibid 23 ; cp. Coote v. Davenport (r594) Monro, op. cit. 66o--examination of a witness because he was on the point of going abroad.

Footnote 2: " "The Vice-Countess Montague claimed the wardship of the body of the heir of a tenant of hers, which was esloined from her; she suspecting some of the heir's friends, exhibited her bill in Chancery; and it seemed they should not answer to charge themselves criminally; especially in this case, where so great a punishment as ajuration may follow, etc.," Cary 9.

Footnote 3: In Wolgrave v. Coe (1595) Tothill r8, a defendant was excused from answering as his answer might expose him to forfeiture of a bond; but in Eland v. Cottington (r606) ibid 12, a defendant was-ordered to answer " though it be to his prejudice by statute laws."

4:" The defendant divided his title by a lease and assignment, which was before his knowledge, and therefore pleaded that he heard say, that such a lease and assignment was made; the Master of the Rolls was of opinion, because it was another's act, the oath is, that he thinks it to be true," Burgony v. Machell (r594-r595) Tothill 8.

5: "A release was offered to be deposed, that it had been seen by some at the bar, it being affirmed that by casual means it was lost; but the Lord Chancellor said, the oath should be, that he saw it sealed and delivered, and not that he saw it after it was a deed: for in Munson, the Justice, his case, a deed was brought into the Chancery and a _vidimus_ upon it, being but a counterfeit copy; and after the fraud discovered, and the true deed produced; therefore none allowance to be given of \_.$d$ deed, without producing the deed, or proving the execution thereof " (r603) Anon, Cary 31.

6: Berd v. Lovelage (r576-1577) Cary 62--a solicitor; Austen v. Vesey (r577) ibid 63--a solicitor; Denis v. Codrington (r579-r580) ibid 100--counsel; Creed v. Trap (r578-1579) Choyce Cases rzt--counsel and solicitor; Havers v. Randoll (r581) ibid 148--an attorney.

7: Sherborne v. Foster (r631-r632) Tothill r87.

### Law in Xvith and Xvith Cents.

_magis fame quam fama movement"_--the need for a statute of Frauds is already beginning to appear.${}^{1}$ On the other hand, the Chancery generally accepted the evidence of depositions taken by such courts as the courts of Star Chamber${}^{2}$ Admiralty,${}^{3}$ Exchequer,${}^{4}$ or Wards and Liveries.${}^{4}$ But, at this period, its own rules were by no means strictly kept.${}^{5}$ Though, as a rule, no evidence was allowed after publication, there are cases in which witnesses were examined after that date;${}^{6}$ and cases in which they were examined viva vocc at the hearing,${}^{7}$ and even after the hearing.${}^{8}$ Occasionally also witnesses were examined after publication to inform the 'conscience of the judge.${}^{9}$

Of the attitude of the common law to choses in action I shall speak at length in the second Part of this Book.${}^{10}$ We shall see that the common law considered the rights of the parties to a contract to be of so personal 'a character that they could not be assigned to a third person '; and that it justly feared the increased opportunities for champerty and 'maintenance which any relaxation of this rule would have caused. Such rights it refused to regard as assignable property. The Chancery on the other hand had been instrumental in the creation of many forms of property which the common law courts ignored '; and 'many of them were founded upon relationships of as personal a character as those arising out of contract. The interest of the cestuique use was from one point of view merely a personal relationship of confidence between him and the feoffee to uses--yet from the first it was regarded by equity as assignable property.${}^{11}$ In other cases also, the equitable conception of property was wider than that of the common law. A mere possibility was treated as assignable property;${}^{12}$ and the mortgagor's equity of redemption was regarded as an estate in the land.${}^{13}$ The fact 'therefore that a right under a contract was regarded by the common law as a purely personal relationship was no bar to the adoption by the court of '${}^{1}$ See also Cary 7 (1597-1598); Page v. Spenser (1531) Choyce Cases 148; Nichols v. Lonell (1583) ibid r71-r72; but a parol agreement was occasionally enforced, see Cooke v. Trewman (1606) Tothill 69. ${}^{2}$ Puckly v. Bridges (1582-1583) Choyce Cases 163. ${}^{5}$ Watkins v. Fursland (1573-1574) Tothill 192. ${}^{4}$ Morrison v. Wethired (1672-1673) Tothill 189. ${}^{5}$ See the cases collected in Tothill 189-192; and cp. ibid 77. ${}^{6}$ Allen v. Hawley (167) Monro, Acta Cancellaria 254-255. ${}^{7}$ Wright v. Moore (1630) Tothill 190. ${}^{8}$ Veizcy v. Veizcy (1638) Tothill 192. ${}^{9}$ Earl of Worcester v. Balgye (1569) Monro, cp. cit. 375-376; Purserie v. Throgmorton (1581) Choyce Cases 148; Wynn's Case (1629-1630) Tothill 77; Dalby v. Mace (1606) ibid 191. ${}^{10}$ Pt. II, c. z $ 3. ${}^{11}$ Vol. iv 432-443. ${}^{12}$ Romney v. Garonus (1594-1595) Tothill 147; Warmstrey v. Lady Tanifeld (1628-1620) I Ch. Rep. 29, 30; Povey v. Barker (1633-1634) Tothill 147. ${}^{13}$ Above 332.

The Rules of Equity 835

Chancery of a very different view. In fact that court regarded the right to receive a definite sum under a contract as property, and therefore assignable either inter vivo or after death.1 Perhaps both the early association of the Chancery with mercantile business,2 and the far more liberal conception which from the first it had held as to the enforceability of agreements,3 helped it to arrive at this conclusion. The common law theory of contract was not fully developed till the end of the sixteenth century ; and it was not till after that period that the common lawyers began to study and give effect to mercantile, custom. Thus while the common law maintained its general prohibition, and merely allowed an exception in the case of negotiable instruments,4 the Chancery developed its conception that under certain conditions a right under a contract was assignable property. But for the settlement both of these conditions, and of the means by which, under different circumstances, equity gave effect to these assignments, we must wait for the following period.5

Footnote 1: Burrel v. Siday (r627-r628) Tothill 35-" a devise out of a chose in action, good in this Court;" Rock v. Guntur (r639) ibid--" assignee of chose in action."

Footnote 2: Above 16-17, 139-140.

Footnote 3: Above 295-296.'

Footnote 4: Pt. II. c. 4 I. SS 2; cp. above 14 n. 7, 145.

Footnote 5: Vol. vi c. 8.

Footnote 6: Allen v. Dingley (r576-1577) Choyce Cases r13, r14.

Footnote 7: Angrome v. Angrome (r583-r584) Choyce Cases r76.

Footnote 8: Swigo v. Happy (r587-r582) Choyce Cases r56.

Footnote 9: Alnet v. Bettam (r559-r560) Cary 46-47.

Footnote 10: North v. Kelewick (r559-r560) Cary 49.

(4) The method by which the Chancery succeeded in effecting these various modifications of the rigidity of the law was by addressing orders to the parties concerned, and by committing them and sometimes their legal advisers, to prison,6 for contempt in case of disobedience. But it is obvious that these orders would have given no real relief if the parties could have continued to pursue their rights at law. Hence the ultimate resource of the Chancery, in a very large number of these cases, was the issue of an injunction against pursuing these legal proceedings, or, if judgment had been got, against enforcing the judgment. Thus injunctions were issued to stop abuses of process. In one case, the court stopped an action brought by A against a defendant merely to prevent him (the defendant) from giving evidence in another action brought by X against A;7 and in another it stopped an action brought with knowledge that the defendant's witnesses were all beyond the sea.8 On similar principles it issued injunctions to prevent the molestation of a tenant during an action on condition that he paid his rent into court,9 and to stay the execution of a hard judgment got against an executor de son tort till the case was heard by the court of Chancery.10 Injunctions both final and interlocutory to quiet

### Law in Xvith and Xvith Cernts.

possession 1 were essential in order that the court might definitely settle questions of ownership,2 and enforce tenurial customs,3 agreements as to inclosure,4 and other similar agreements between a number of tenants in a manor or other district. Sometimes they were used to enforce a compromise between the parties to an action at law,6 or to prevent a plaintiff from vexing the defendant by simultaneous actions at common law and in equity.6 The number and variety of these injunctions show us that, in this litigious age, the power to issue them was the condition precedent for the exercise of this wide equitable jurisdiction to remedy the rigidity of the law.7

Footnote 1: Sapcode v. Newport (1559-1560) Cary 47; Kidnere v. Harrison (1559-1560) ibid 48.

Footnote 2: Pr. Li, c. f S r.

Footnote 3: Harper v. Midleton (1583-1584) Choyce Cases 180--an injunction against " raising new customes of tenant right " in Yorkshire; cp. vol. iii 257-259.

Footnote 4: Tothill rog-172; cp. vol. ii 60; vol. iv 369 n. 7.

Footnote 5: Stanebridge v. Hales (1559-1560) Cary 47-48.

Footnote 6: Bill v. Body (1559-1560) Cary 50.

Footnote 7: Apparently the Council could dissolve an injunction--at least there is one instance in which it did so, Dasent xvii 214-215 (1589). 8 Vol. iv 280-281.

Footnote 8: Cary 4, 5, 11, 12. 10 Hang. Law Tracts 326. 11 Ibid 430.

**We have seen that the theory underlying equitable interferences with the law made it necessary that equity should follow the law.8 The views of the medieval chancellors as to the relations between law and equity, and especially as to the extent to which equity ought to interfere with the law, had been ably summarized by St. Germain ; and these views, as thus summarized, were acted upon all through this period.9 But it is equally clear, that, in the absence of any fixed principles to guide the chancellor as to what course was in the circumstances equitable, the question whether in any given case relief should be granted, depended upon the view which the chancellor took of the facts of the case. The court of Chancery was a court of conscience ; and the chancellor decreed for the plaintiff or the defendant as his conscience dictated.**

Footnote 8: Playing the law, and the chancellor, as it is possible to have a court of conscience ; andThe Evolution of Equity

subjects, and clamours against the Lord Chancellor." Selden's well-known jest upon the variations of equity is another instance of the same sort of criticism.1

Footnote 1: Cited vol. i 467-468.

It is clear from Lambard that, at the close of the sixteenth century, the resulting uncertainty of the rules of equity was leading men to consider whether it was not possible to lay down some certain rules for the administration of equity, without destroying entirely that discretionary character of the relief given, which was its very essence.3 He offers no solution of this problem. But, while he was writing, two sets of circumstances were beginning to modify the character of equity ; and it is through this modification that the solution was destined eventually to come. Firstly, the political reasons which were tending to differentiate the jurisdiction of the chancellor from that of the Council, the Star Chamber, the court of Admiralty, and the ecclesiastical courts, and to settle the relations between the common law courts and the court of Chancery, were helping to settle the sphere of the court's jurisdiction. Secondly, the growth of the practice of citing cases as precedents was an influence which was helping, not only to settle still more exactly the sphere of the court's jurisdiction, but also to make some fixed rules for the exercise of the chancellor's discretion. But though, during this period, these two sets of circumstances were fast settling the sphere of the chancellor's jurisdiction, comparatively little progress had as yet been made in the fettering of his discretion in matters which fell within his jurisdiction. The chancellors still considered themselves very free to act whenever they thought that they could secure substantial justice by their action. In the _Earl of Oxford's Case_,3 for instance, equity interfeed with the operation of a statue in a manner which would have been impossible at a later period. In fact, during the whole of this period and later, the court of Chancery was actually, and not merely technically, a court of conscience.4 For this

### Law in Xvith and Xvith Cents.

reason the contents of the rules of equity, and therefore the relation of equity to the law, continued to depend to a considerable extent upon the conscience of the chancellor. We can only see the remote beginnings of the causes which will! by settling the contents of these rules, make the court only technically a court of conscience; and, in these last days, enable a judge of the Chancery Division of the High Court to deny that it is in any sense a court of this character.1

Footnote 1: "This court is not a court of conscience," _per_ Buckley J. in re Telescriptor * Syndicate \[rg03\] 2 Ch. at pp. 195-196.

In the chapter in which the history of the enacted law of this period is described, we saw that the political, economic, religious, and social changes of this period had necessitated large changes in and additions to the statute law. But these statutes necessarily left much scope to the courts which were entrusted with their enforcement and interpretation ; and they did not cover by any means the whole ground. In this and the preceding chapter we have been chiefly concerned with the manner in which the courts, whose jurisdiction lay outside the sphere of the common law, seconded the legislature in the work of adapting the law of the state to the new conditions. We have seen that the courts and the lawyers administering the civil law helped to introduce English law to the new international law, and to improve both legal literature and legal theory; that both these courts and all the other courts of the state took a share in the foundation of some of the principles of our modern maritime and commercial law; that the Council and Star Chamber gave material assistance to the legislature in its efforts to improve the criminal law; and that the court of Chancery gave a legal recognition to many new social relations and business transactions which the strict rules of law could not or would not give. As a result we see, growing up by the side of the common law, new and rival bodies of law, and new and rival bodies of legal literature. But, during the latter part of the sixteenth and the beginning of the seventeenth centuries, there was a marked revival of the common law, and a consequent tendency on the part of the common lawyers to contest the claims of these rival courts to the spheres of jurisdiction which they had occupied. None of these spheres of jurisdiction was quite precisely defined; so that both the conflicting claims of these rival courts, and more especially the claims of the common law courts, provoked furious controversies in the English legal system. The revival and development of the common law, and the controversies to which they gave rise, are the subjects of the following chapter.

1:"This court is not a court of conscience," _per_ Buckley J. in re Telescriptor * Syndicate \[rg03\] 2 Ch. at pp. 195-196.

## Chapter 5 English Law in the Sixteenth and Early Seventeenth Centuities (Continued)

The Development of the Common Law

This chapter I shall, in the first place, give an account of the development of the common law during this period ; and, in the second place, describe the relation of the common law to its rivals. With this second topic the name of Edward Coke must be coupled. His literary work and his judicial and political career were the decisive factors in settling permanently the nature of that relation, and thus give him a claim to be considered the central figure in English legal history.

## 6 The Development of the Common Law

Something has already been said of the conditions under which the common law was being developed. We have seen that the professional training given by the Inns of Court was so thorough that it enabled the common lawyers, not only to hold their own, but also to influence the development of the new bodies of law which were growing up in those rival jurisdictions which have just been described.1 On the other hand we have seen that the law administered in these rival jurisdictions influenced the common law. The new ideas thus introduced into the law tended to emancpate the common lawyers from that rigid technicality which had characterized their work in the fifteenth century,2 and to make them ready to expand their system in many different directions. Thus we have seen that the law administered in the Star Chamber and the Chancey was influenced by the common law, and conversely that the new ideas and principles applied in those courts influenced the common law ;3 and \_j_that even in the Admiralty and Ecclesiastical jurisdictions, where the law administered depended mainly on the civil and canon law, this reciprocal influence exercised a smaller but still an appreciable effect. We have seen that the common law began to apply some of those rules of the Law

### 840 Law in Xvith and Xvith Cents.

Merchant which had come through the Admiralty;1 and that the enforcement both of the statutes upon which the Reformation settlement depended, and of other statutes upon ecclesiastical matters, introduced a good many topics of ecclesiastical law to the notice of the common lawyers.2 On the other hand, the practitioners in the court of Admiralty and the ecclesiastical courts were always obliged to keep before their minds those statutes and rules of the common law which created or defined or limited their jurisdiction.3 Moreover, we have seen that the legislature had added new branches to the common law, and had increased the complexity of some of its existing branches.4 Under these various influences the common law all through this period, maintained a vigorous life and a continuous growth. The vigour of that life and growth increased, with the increase of the prosperity of the country, in the latter part of the sixteenth century; and it was well maintained during the first half of the seventeenth century.

Footnote 1: Above 143-148.

Footnote 2: Above 21, 143; thus James Whitelocke (the future judge of the King's Bench) tells us that at Oxford he " began to joyne the study of the common law withe the civil, being encoraged mutche thearunto by a book set out by dr. Cosins, the dean of the arches, intitled, 'An apologaye of the ecclesiastical proceedings,' in whiche I saw how great use he made of his knoledge of the common law to uphol'le the authority of his owner profession, and to direct others of his place?," Liber Famelicus (C.S.) 14.

Footnote 3: For the earlier history of the Serjeants see vol. ii 485-492.

In this section I propose to give some account of the manner in which this life and growth of the common law was fostered by the common lawyers during this period, and to summarize the results of their work upon the law itself. The subject will fall under the following heads:--The Serjeants and the Judges; The Reporters; The Literature of the Common Law; The Condition of the Common Law.

_The Serjeants and the Judges_

During the earlier part of this period the Serjeants and the Judges continued to be the recognized heads of the legal profession;5 and we have seen that the memory of the old order lived on in the rule, which was not repealed till the Judicature Act of 1873, that the degree of Serjeant was a condition precedent to a seat on the bench.6 But, from the middle of the sixteenth century, there are signs of a change in the position of the Serjeants. Though the degree of Serjeant was still a condition precedent for a seat on the bench, it was beginning to be conferred merely as a formal preliminary to a judicial appointment.

## 2 The Serjeants and the Judges 341

As early as I545 Chief Baron Lyster was made a Serjeant, and, on the same day, Chief Justice of the King's Bench ;1 and in I555 there is another instance of the same kind.2 By the end of the sixteenth and the beginning of the seventeenth century it would seem${}^{\\spadesuit}$that this was a recognized practice.3 In 1799 the fact that it was only possible to create a Serjeant in term time was found to cause some inconvenience when it was desirable to fill up a vacancy immediately ; and so it was enacted that the king could for this reason create a Serjeant in the vacation,4 a power extended to the creation of a Serjeant for any other reason in 1826.6 That the practice had come to be recognized at the beginning of the seventeenth century was no doubt due to the fact that it was then becoming customary to raise the Attorney and Solicitor-General to the bench. These offices could not be held by a Serjeant, and their acceptance by a Serjeant involved the resignation of his degree.6 The fact, too, that these law officers of the crown were beginning to be regarded as the leaders of the Bar tended further to diminish the importance of the Serjeants;7 and this tendency was strengthened by the rise at the end of this period of the new order of King's Counsel.8 We shall see that in the following period these causes entirely altered the position of the Serjeants in the legal profession, and that-they were not without some influence, both upon the composition of the Bench, and upon the older system of legal education.9 As yet, however, these causes were only beginning to operate. The change from the old ordering of the legal profession to the new was as yet hardly perceptible.

Footnote 1: Wriothesley's Chronicle (C.S.) i f6i-f6i; Foss's statement, Judges v 526, that the earliest instance in which this occurred was I574 cannot be supported.

Footnote 2: Dasent v x38.

Footnote 3: Egerton in I603 wrote to James I.--"I thynke yt not amyse to put you in remembrance that the late Queene, considering that most of the Judges are aged, and the Serjeants at Lawe now resuringe at the barre not so sufficyt to supplive judicial places as were to be wyshed, (_ne quid dicam duris_), made chorose of certen persons of great learninge and sufficiency fitt to be called to that degree," Egerton Papers (C.S.) 372 ; see Whitelocke's account of his own creation preparatory to his being made chief justice of Chester, Liber Fam. (C.S.) 77-S4.

Footnote 4: 39 George III. c. 113; Foss, Judges viii 2oo.

Footnote 5: 6 George IV.\*\*e.\*\*g; Foss, Judges ix 8.

Footnote 8: Vol. vi c.8; Foss, Judges vi 32. 7 Vol. vi c. 8.

Footnote 8: Ibid. 4

Footnote 9: Ibid. 4

Footnote 10: Life of Sir Thomas More,

As in the preceding period, most of the Serjeants and the Judges lived very similar lives. They continued to be somewhat of a close body ; and, though in no way an hereditary caste, they naturally intermarried and brought up their children to their own profession. In the lists of judges and distinguished lawyers we find certain names constantly recurring. Some are well known outside the sphere of merely legal history. Roper 10 has told us how Sir

### Law in Xvith and Xvith Cents.

Thomas More "whensoever he passed through Westminster Hall to his place in the Chancery by the court of King's Bench, if his father, one of the judges there, had been set ere he came, he would go into the same court, and there reverently kneeling down in the sight of them all, duly ask his father's blessing." Francis Bacon was the son of Lord Keeper Bacon.${}^{1}$ Lord Chancellor Clarendon, the famous historian of the civil war, came of a family which, in the preceding generation, had produced an Attorney to the Queen of James I. and a chief justice of the King's Bench.${}^{2}$

These are names well known to general history ; but, besides them, there are many others famous in legal history. Littleton, who was a chief justice and Lord Keeper in Charles I.'s reign, was the son of a chief justice of South Wales, the nephew of Chief Baron Walter,${}^{3}$ and a great-great-grandson of the famous author of the Tenures.${}^{4}$ George Kingsmill, a judge of the Common Pleas of James I.'s reign,${}^{5}$ was the grandson of the famous counsel John Kingsmill,${}^{6}$ who had held a similar post under Henry VII. Christopher Yelverton, a judge of the King's Bench of James I.'s reign, was descended from the Yelverton who had held a similar post under Henry VI. and Edward IV. Christopher's father, William Yelverton, was a reader of Gray's Inn, and C'ristopher's son was Henry Yelverton, attorney-general and a judge of the Common Pleas in Charles I.'s reign.${}^{7}$ Sir John Hobart, Henry VII.'s attorney-general, was the great-grandfather of Sir Henry Hobart, who was attorney-general and chief justice of the court of Common Pleas in James I.'s reign, and the author of the reports which go by his name.${}^{8}$ Mountague, who had been chief justice successively of the King's Bench and the Common Pleas in Henry VIII.'s and Edward VI.'s reigns,${}^{9}$ was the grandfather of the Mountaine who was chosen by James I. to succeed Coke as chief justice of the King's Bench.${}^{10}$ The elder Mountaine had been fined and imprisoned by Mary for the part which he had taken in the duke of Northumberland's plot to put Lady Jane Grey on the throne. Lord Ellesmere, when theThe Serjeants and the Judges 343 grandson was appointed, warned him to avoid the faults of Coke, and to imitate the virtues of his grandfather--at which, says James Whitelocke in his Liber Famelicus, " I merveyled, considering how unfortunate the end of his grandfather was." 1

Footnote 1: At p. 51; for his end see below 349.

James Whitelocke2 was made judge of the court of King's Bench shortly before the death of James I. He was the father of Bulstrode Whitelocke, historian, ambassador, and Keeper of the Seal under the Commonwealth; and, through his wife, was related to the Crokees, who, all through this period, had been connected with the law in different capacities. John Croke was one of the Six Clerks--the first to marry after the statute of Henry VIII. permitted them to do so--and subsequently a master in Chancery. His son John was sheriff of Buckinghamshire; and he had in his turn two sons who became judges.3 John, the elder, was a judge of the King's Bench 1607-1620. George, the youngcr, was a judge of the Common Plcas 1625-1628, and of the King's Bench 1628-1620. He was distinguished for his independence on the Bench, both in the case of the members of Parliament committed to prison after the dissolution of 1629, and in the _Case of Shiponney_; and his name is still familiar from the reports of cases in the reigns of Elizabeth, James I., and Charles I., which bear his name.

Footnote 2: For a discussion of the _Case of Shiponney_, see \[1\].

Footnote 3: The _Case of Shiponney_, see \[1\].

Footnote 4: The _Case of Shiponney_, see \[1\].

Footnote 5: The _Case of Shiponney_, see \[1\].

Footnote 6: The _Case of Shiponney_, see \[1\].

Still more distinguished was the family of the Finches.4 Sir Thomas Finch, a soldier of some note, married Catherine Moyle --a family whose name is well known in the Year Books of Henry VI. and Edward IV.'s reigns. His second son was Henry Finch, serjeant-at-law, famous for his book on jurisprudence and the common law, to which Blackstone owed a considerable debt.5 Henry Finch's son was Sir John Finch--the speaker who was held down in his chair in 1629, the chief justice who, in the _Case of Shiponney_, gave the clearest and the most impolitic exposition of the principles of prerogative government,6 the lord keeper who opened the Short Parliament and was impeached by the Long

### Law in Xvith and Xvith Cents.

Parliament, and one of the judges of the regicides. Sir Thomas Finch's eldest son, Sir Moyle Finch, was the father of Henage Finch, Speaker of the House of Commons in 1625-1626. Lineage Finch's eldest son was Lord Chancellor Nottingham--the founder of our modern system of equity ; and his second son was the leading counsel for the Seven Bishops.

No doubt the natural tendency of descendants to follow in their father's footsteps was strengthened by the legal atmosphere of these lawyers' homes. The sixteenth century was, as we have seen, the golden age of the educational system of the Inns of Court and Chancery. The preliminary training for the bar, the subsequent teaching incumbent on barriers and benchers, the large practice in courts new and old acquired by the leaders of the bar in this litigious age,1 left the successful lawyer little leisure for anything but law. Clarendon tells us in his Life that "he grew so much in love with business and practice that he gave up his whole heart to it."2 And doubtless this was true of many other lawyers. At the same time the education of many of these lawyers was not quite so severely professional as in the preceding period. It became customary for many (as at the present day) to start their career at the universities ; and there is at least one instance in which a student kept his terms in London while still at the University. James Whitelocke tells us that, while in residence at St. John's College, Oxford, he "was' admitted of the Middle Temple 20 Martii 1592, and kept in commons from that time, at all sucte times as he coulde have days, by ordinary licence, by grace, or for furtheringe of the colledge businese, to be absent from thence."3 One or two illustrations will show that the memory of and gratitude for the lessons which they had learned at the University often remained after they had made their mark as lawyers.

Footnote 1: The earnings of a fairly successful barrier can be seen from the Liber Famelicus of James Whitelocke; the editor has unfortunately not printed the entries relating to this matter, but he tells us, Introd. xiv, that Whitelocke's practice in his first term produced $\\xi$53 3s. 8d., in his first year $\\xi$39 3s. 7d., in 1604 $\\xi$188 6s, 8d., in 1605 more than $\\xi$200, in 1607 more than $\\xi$300, in 1608 more than $\\xi$400, in 1612 more than $\\xi$500, in 1615 more than $\\xi$600, in 1619, $\\xi$622, in 1620, $\\xi$600 4s. rd.; no doubt leaders of the bar like Coke made a great deal more; and the earnings of the law officers were large; Bacon said the post of attorney-general was worth $\\xi$6000 a year, Spedding, Letters and Life of Bacon v 242; and this is not incredible seeing the sums which were offered or paid for it in Charles I.'s reign, below 253-354.

Footnote 2: Life (ed. 1842) p. 933.

Footnote 3: Lifer Famelicus (C.S.) 14.

2: footnotetext: Lifer (ed. 1842) p. 933.

3: footnotetext: Lifer Famelicus (C.S.) 14.

## The Serjeants and the Judges 345

Lecture.1 Maitland's Rede lecture2 illustrated, in a manner which would certainly have delighted and as certainly astonished the learned founder, the results which could be attained by the application of humanity, logic, and philosophy to the history of the law. Coke was a member of Trinity College, Cambridge; and, in _Bontham's Case_, he went out of his way to praise his own and Oxford University--" Academiae Cantabrigie et Oxoniae sunt Athenae nostrae nobilissima, regni soles, oculi et animi regni, unde religio, humanitas, et doctrina in omnes rcgni partes uberrime diffunduntur."3 Littleton was a member of Christ Church; and Clarendon tells us that he "Had taken pains in the hardest and most knotty points of the law, as well as that which was more customary; and was not only very ready and expert in the books, but exceedingly versed in records, in studying and examining whereof he had kept Mr. Selden company, with whom he had great friendship, and had much assisted him; so that he was looked upon as the best antiquary of the profession, who gave himself up to practice."4 Mr. Justice Dodderidge was a B.A. of Exeter College, a member of the Society of Antiquaries, and a writer of books not only upon English law, but also upon topics of history and ecclesiastical law, which fell outside the ordinary run of a legal practitioner's knowledge." James Whitelocke, a judge of the court of King's Bench, was one of Mullaster's pupils at Merchant Taylor's school, and a member of St. John's College, Oxford.7 At Oxford he studied the civil law, and was presented for the degree of B.C.L. by Albericus Gentili,8 His son tells us that he kept up his knowledge, not only of Greek, but also of Hebrew--a language with which Merchant Taylors and St. John's still maintain an hereditary connection; and that, "he had the Latin tongue so perfect, that sitting judge of assize at Oxford, when some foreignors, persons of quality, being there, and coming to the court to see the manner of our proceedings in matters of justice, he caused them to sit down, and briefly repeated the heads of his charge to the grand jury in good and elegant Latin, and thereby informed the strangers and the scholars of the ability of our judges, and the course of our proceedings in matters of law and justice."9

### Law in Xvith and Xvith Cents.

On the whole the distinguished lawyers and judges of this period were better educated men than their predecessors in the fourteenth and fifteenth centuries ; and this was, no doubt, one of the main reasons why the common law showed so many signs of improvement and so marked a capacity for expansion. Those who administered it were not wholly untouched by the new learning. They could therefore in some degree emancipate their minds from barren technicalities, and appreciate the large changes which were taking place in all spheres of the national life.

The strict technical training which was given by the Inns of Court, and the high 'ideals which they set before their students, ensured the professional competency of the Bench, and a high standard of professional honour in both Bar and Bench. All through the sixteenth century there was an abundance of good men at the Bar ; and good judicial appointments were made. As a result the respect both of the king and of the people for the common law was in no way diminished.1 There is only one doubtful instance in Elizabeth's reign of the dismissal of any judge for political reasons ; 2 and all through the sixteenth century there are very few instances in which a judge was proved to be guilty of bribery or other unprofessional conduct.3 No doubt it may be said with truth that the judges were under no temptation to take bribes. We have seen that, though their salaries were small, their fees added to their salaries gave them a very adequate income ; and that, in the case of the chief justices, the value of the offices which were in their gift made their remuneration much more than adequate.4 But we have seen that the standard of public morality in other branches of the civil service, and even in a branch of it so closely connected with the law as the Chancery, was by no means high.5 On the whole in this, as in the preceding period, the standard maintained by the judgesThe Serjeants and the Judges 347

and the legal profession was above the average. "Cast time eye," said Coke,1 " upon the sages of the law that have been before thee and never shall thou find any that hath excelled in the knowledge of these laws but hath plucked from the breasts of that divine kfowledge, honesty, gravity, and integrity. For hitherto I never saw any man of a loose and lawless life attain to any sound and perfect knowledge of the said laws : and on the other side I never saw any man of excellent judgment in these laws, but was wr Footnote 1: The _Judge_ is a _Judge_, which is a \_

## 2 The Serjeants and the Judges 349

halters about their neckes, and there the king pardoned them."1 By reason of the fear caused by Wyatt's rebellion, on Candlemas day 1553-1554 and on other days, "the justices, serjeantes at the law, and other lawyers in Westminster Hall, pleaded in harnessse."2 On one occasion Chief Justice Anderson, while on circuit, took a sword to help stop a fray which had begun in his presence." We have seen that on two other occasions it seemed likely that the judges of the court of Common Pleas would be obliged to preside at the species of fray still recognized by law--trial by battle.4 Several times during this period outbreaks of the plague made it necessary to adjourn the term. In 1625 Whitelocke tells us how, " when the plague was somewhat assuaged and there died in London but 2500 in a week," his father was obliged to go to Westminster to adjourn the Michaelmas Term to Reading; he tells how he came to Hyde Park and dined on the ground on such food as they had brought, " and afterwards he drove fast through the streets, which were empty of people and overgrown with grass to Westminster Hall; where the officers were ready, and the judge and his company went straight to the King's Bench, adjourned the court, returned to his coach, and drove away presently out of town."5 In 1629 the spring tide flooded Westminster Hall, so "that neither the serjeants could come to the bar, nor any stand in the Hall, for there was a boat that rowed up and down there."6

Footnote 1: Withebsley's Chronical (C.S.) II.

Footnote 2: Stow, Annals (Ed. Howes 1631) 69.

Footnote 3: Manningham's Diary (C.S.) 41.

Footnote 4: Vol. i 3ro.

Footnote 5: Whitelocke's Memorials i 5.

Footnote 6: Watson, Judges v 343, 344.

Footnote 7: Soss, Judges v 343, 344.

Similarly the judges in the sixteenth century were very little affected by the political and religious changes of the period. The two chief justices, Cholmley and Mountaine, lost their places on the accession of Mary for the part which they had taken in the attempt to disturb the order of the succession to the throne.7 And, at the beginning of the same reign, Hales, a judge of the Common Pleas, was imprisoned, and induced by threats to recant his Protestant principles. But this recantation so preyed upon his mind that he committed suicide by drowning himself; and his suicide gave rise to two reported cases,8 which in their turn arc supposed to have given rise to the reasoning which Shakespeare put into the mouth of the grave-diggers in a famous scene in Hamlet.9 Except in these cases, the political and religious changes of the sixteenth century left very slight

### Law in Xvith and Xvith Cents.

traces upon the constitution of the Bench.**No** doubt most of the judges were willing, like the majority of the nation, to conform silently to the religion of the reign. Unlike Hales, they did not attract notice by pointedly calling attention to laws which were in opposition to it. They were therefore subjected to no searching questions by either side. At any rate it is clear that Elizabeth on her accession renewed the patents of all her sister's judges ; and several undoubted Papists retained their seats on the Bench for the rest of their lives.1 We cannot doubt but that the position which the judges thus occupied outside political controversy, coupled with their just reputation for learning and uprightness, led to a respect for their rulings and decisions which helped in no small degree the peaceful government of the state.

Footnote 1: Shortly after Elizabeth's accession Saunders, Chief Justice of the Queen's Bench, became Chief Baron of the Exchequer, and Browne, Chief Justice of the Common Pleas, became a pusine judge of the Common Pleas--in both cases the judges thus changed to less important positions were Roman Catholics, Foss, Judges v 406-407.

All this was changed in the first half of the seventeenth century. The constitutional conflict divided the nation into two camps ; and it was hardly to be expected that the king would allow his political opponents to retain their seats on the bench. The debatable questions of constitutional law which divided the nation were often so very debatable, that it was impossible to suppose that a lawyer's view of the law was not consciously or unconsciously swayed by political considerations.2 Both Bar and Bench soon felt the effects of the conflict. Counsel who ventured to question the acts of the government were perscuted by courts which were more closely identified with the government than the common law courts. Fuller, who had applied for a prohibition against the court of High Commission, was prosecuted by that court, nominally for schism.3 Whitelocke, who had opposed the king's power to levy impositions in 1610, " was taunted and checked" by Ellesmere when he appeared to argue a case in the court of Chancery, and was imprisoned by the Council for venturing to dispute on behalf of his client the legality of the earl Marshal's court.4 Even a reading in the Middle Temple upon a statute of Edward III.'s reign,5 which touched upon the jurisdiction of the common law courts in ecclesiastical cases, was stopped because it bore upon present politics.6The Serjeants and the Judges 1951

Judges were frequently dismissed for political reasons. Coke heads the list in 1616.1 Then followed Chief Justices Crew 2 and Heath 3 in 1626 and 1634. Chief Baion Walter was suspended in 1630, and was not dismissed only because, as was often the case with the Barons of the Exchequer, he had been appointed "quamdiu se bene gesserit."4 Pressure was put upon them to delay justice in cases in which the government was interested--the _Case of Commendams_ is, as we shall see, a striking example.5 With increasing frequency they were asked to give extra-judicial opinions upon pending cases, or upon political questions which were likely to give rise to decisions interesting to the government. Illustrations are to be found in _Peachant's Case_," and in the questions addressed to them as to the effect of the passing of the Petition of Right upon the crown's power to commit to prison,7 as to the extent of Parliamentary privilege,8 and as to the legality of ship money.9 It is true that the action of the crown in thus consulting the judges was at that time regarded as legal.10 But when a king, who could and did dismiss judges for political reasons, constantly put these questions to them, they were obviously exposed to the constant temptation of giving the answer known to be wanted. The climax was reached in 1637, when the king promulgated their opinion as to the legality of ship money, and required all of them to append their signatures, in order to stop litigation as to its legality.11

Footnote 1: Below 440-417. 2 Gardiner, History of England vi 149.

Footnote 3: Ibid vi 361--4 It is probable, though not a word of evidence exists, that Charles had reason to think that he was not sound on the question of ship money "; see S. P. Dom. 163+1635 xiv for his humble, but unsuccessful petition to Charles not to dismiss him; even after his dismissal he clearly hoped to regain court favour, ibid a89 cckv37; i 453 cckv36.

Footnote 4: Ibid vi 172-114; cp. S.P. Dom. 1629-16376, 77-78, c47, 58.

Footnote 5: Below 439-440. 6 Below 438.

Footnote 7: Bramston, Autobiography (C.S.) 48, 49, gives the questions from a report of Hyde C.J.; cp. Gardiner, op. cit. vi 294-296.

Footnote 8: It appears from Bramston's Autobiography (C.S.) 49-54 that (1) the king on March 3, 1628-1629, put certain questions to the two chief justices and the chief baron; it is these questions that are reproduced in Nelson's Collections ii 374 ; and (2) that in April he put another set of questions to all the judges and Barons of the Exchequer; it is these questions that are reproduced in 3 S.T. 235-238, and in Rushworth i 672-674; Bramston's account of the contents of the questions would seem to be the most accurate as he said that he had it from Hyde's own report.

Footnote 9: See Gardiner, op. cit, viii 94 for the opinion of 1635; to this opinion Croke did not wholly assert, and Hutton did not sign it.

Footnote 10: Below 428 n. I, 438. 11 See the text of this document in Gardiner, op. cit. viii 206-208; as Gardiner says, ibid. 207--44 Hitherto, whenever the crown had asked the opinion of the judges, it had asked that opinion, at least ostensibly, to enable it to shape its course according to law. Charles now openly asked them to promulgate that opinion, which he had received from them a year before, not to enlighten himself, but to hinder his subjects from arguing the question in Westminister Hall "; Whitelocke, Memorialis j 71, says that Finch C.J. reported to bribes and threats to get the signatures of the judges; and there is some evidence that Bramston as well as Hutton and Croke

### Law in Xvith and Xvith Cents.

It is true that the judges sometimes plucked up the courage to act independently. They refused to answer all Charles L's questions as to the legal consequences of his assent to the Petition of Right,1 and as to the extent of Parliamenty privilege,2 because some of the matters raised by these questions were likely to come before them judicially--though they hinted that they agreed with the view which the king wished them to take. We have seen that they stated clearly that torture was illegal by the common law.3 In 1632 Chief Justice Richardson refused to obey the orders of the government to see that the justices of the peace suppressed wakes on Sundays; and in consequence he was soundly rated by Laud.4 In 1631 the judges refused to delay an action for false imprisonment brought against certain members of the court of High Commission, and proceeded to hear it, in spite of the express command of the king given by himself in person.5 But, in the years of prerogative government which followed upon the dissolution of Parliament in 1629, they gradually and inevitably tended to become identified with the party and the policy of the king.6 They became, Clarendon tells us, as sharp sighted as secretaries of state in the mysteries of state, and in courts of law apothergms of state wcre urged as elements of law.7 Thus they tended to become merely the civil servants of the king, and not the independent expositors of the law that they had been in the Tudor period. And, as they sank to this position, so their appointments tended, like that of other civil servants in the Stuart period, to be made dependent upon court influence, and even upon bribery and other forms of corruption.

The Serjeants and the Judges 358

The Serjeants habitually paid for their degree. In 1614 Whitelocke notes that each of the newly made Serjeants had given _$600_ to the king;1 and that George Croke was left out because he refused to give it.2 The judges sometimes gave money to the king or to the reigning favourite. It is probable that the gift to Buckingham's nominee of the post of clerk of the King's Bench was the price which Mountain paid for the post of Chief Justice of the King's Bench, when Coke was dismissed in 1616.3 There were rumours that Richardson gave money for his post of Chief Justice in 1626, and Vernon for his post of Baron of the Exchequer in 1627.4 It is quite certain that the Mastership of the Rolls was sold to Sir Charles Caesar in 1639.5 The prevailing corruption is strikingly illustrated by the curioustale which Henry Yelverton told Whitelocke as to his own appointment to the post of attorney-general.6 Yelverton was warned that unless he conciliated Buckingham he would run a risk of losing the place. But, in spite of this warning, Yelverton refused to approach the duke. Then Buckingham sent for him and told him that he did not mean to oppose his appointment, though Sir James Lea had offered him _$10,000_ for the post; but that he expected to be approached that the world might think that he had had some share in the appointment. He then took the warrant under which Yelverton was to be appointed, and got the king's signature to it. Yelverton therefore got his post without paying for it. " But when the Susinesse was done, and no expectation of anything he went privately to the king, and told him he did acknowledge how like a good master and worthey Prince he had dealte with him, and, althoughe ther was never mention, speeche, or expectation, of anything to be had for his having of this place . yet . he wolde give him 4000/. readye money. The king toke him in his arms, thanked

### Law in Xvith and Xvith Cents.

him, and commended him mutche for it, and tolde him he had need of it, for it must serve even to buy him dishes, and bad him pay it to his servant Murrey, which he did, and shewed me the acquittances for it."

The result, as Clarendon points out, was to 'bring both the judges and the law into contempt ; and this result contributed in no slight degree to the excesses committed by the Long Parliament.1 The judges, who had shown no mercy to those who opposed prerogative government, got none when its opponents came into power.2 Jenkins, the Welsh judge who wrote the Fight Centuries of Reports,3 was a firm royalist ; and, in his preface he tells us how, " amidst the sound of drums and trumpets, surrounded with an odious multitude of barbarians, broken with old age and confined in prisons, where my fellow subjects wild with rage detained me for fifteen years together, he bestowed his watchful hours upon this performance." Clarendon blamed the government for making the judges their assistants in the carrying out of their policy, and contrasted it with the policy of the Tudors.4 But in truth it is difficult to see what else the government could have done. We shall see that the constitutional questions as to the extent of the prerogative, and as to its relation to the law, were treated by the Parliamentary opposition as legal questions to be answered by an appeal to the laws?4. Both the Parliament, and the public opinion which backed it, made it necessary to submit these questions to the arbitrament of the law ; and the government consequently did what they could to secure a verdict favourable to themselves. We have seen that in the Middle Ages the judges sometimes found themselves involved in politics when the political questions which divided the state assumed a legal aspect.6 It was hardly possible that they should not have been involved in politics, when the greatThe Reporters

**355**

political questions which divided the nation were regarded by both parties as questions to be answered by an appeal to the law.

Both the political events of the seventeenth century and the corruption of the court influenced for the worse the quality of the Bench. But these influences naturally took time to produce their full effect. In the earlier part of the century the older system of legal education and the older traditions still lived on. The judges appointed had been educated under the old system. They were learned men and administered the law fairly as between party and party;1 and, as we have seen, they occasionally ventured to oppose the wishes of the Government.2 We shall see that after the Great Rebellion the old system of legal education disappeared,3 and that the outstanding political questions of the day still continued to influence the selection of the judges.4 The result was that the deterioration in the character and learn- of the Bench became more apparent. No doubt upright and learned men still found a place there; but it was not till after the Revolution had settled the political questions at issue in the seventeenth century, and restored security of tenure to the judges, that the Bench as a whole attained the standard which it had reached in the sixteenth century.

Footnote 1: Gardiner, op. cit. vii 36r--"As far as the administration of justice between man and man was concerned they stand in no need of defence. There were no takers of bribes amongst them. They were never charged with incapacity or negligence."

Footnote 2: Above 352.

Footnote 3: Vol. vi c. 8.

Footnote 4: Ibid.

But we must now turn to the history of those judges and lawyers whose names are still familiar to us, because, in the 8 sports which they wrote or edited, they have made that permanent record of the life work of themselves and their companions, to which we still appeal for authoritative information as to the growth and contents of the principles of the modern common law.

_The Reporters_

In the sixteenth century we pass from the period of the anonymous Year Books, to the period of Reports written by, or ascribed to, named authors, most of whom were eminent judges or practitioners. There are some forty sets of reports, containing cases decided before and during this period, which were either written and published contemporaneously, or published after its close. It would be obviously impossible to describe all these reports separately and in detail. Nor would this be necessary, as Mr. Wallace in his book on the Reporters has given us a very adequate description.5 I shall therefore only set Law in Xvith and Xvith Cents.

out in tabular form the list of the reports of this period, together with their chief characteristics. Then I shall endeavour to state shortly the points in which these reports resemble, and the points in which they differ from the Year Books on the one hand, and from their successors of the eighteenth aid nineteenth centuries on the other. Lastly I shall say something of the epitomes and indexes to these reports which soon began to appear, and of Rolle's Abridgment--the earliest of the Abridgments which summarize the contents of the modern reports, the successor to those Abridgments of the Year Books which have been already described,1 and the precursor of a new stage in the history of these Abridgments.

Footnote 1: **Vol. ii 543-545.**

In the following Table I have arranged the reports of this period in the chronological order of their publication.2 I have included in this list many reports which were published in the latter half of the seventeenth century, because they contain cases decided in this period, or during the period of the Commonwealth. The Table shows that we cannot as yet divide the reports very accurately according to the courts in which the cases reported were decided Many of them contain cases decided in all the common law courts; and some of them contain cases decided in the court of Star Chamber, in the court of Wards and Liveries, and occasionally even in the court of Chancery. The state of the reports thus illustrates what I have said above as to the penetration of the common lawyers into some of the courts outside the sphere of common law jurisdiction.3 When they penetrated into these courts they naturally introduced their habit of reporting the cases there decided. There can be little doubt but that if the Star Chamber and the court of Wards had had a longer life, we should have had a series of reports of their doings, similar to the series of reports of the doings of the common law courts and the Chancery.4 It is clear also from the Table that some of these reports were published by their authors; that others were published after, and, in some cases, long after their authors' death; and that, in many cases, no sufficient account is given of the MS. from which they were published. We shall see that all these are circumstances very material to be considered in estimating the authority which is or should be attached to these reports in our modern law. Finally, the fact that most of these reports were, except during the period of the Commonwealth, written in the first instance in law French, illustrates the

**THE REPORTEYS** **357**

long life of this language in the law;1 while the dates at which some of them were translated give us a very accurate idea as to when the lawyers really ceased to think in and write this peculiar tongue. With these introductory remarks I shall let the Table (see pp. 358-363) speak for itself.

Footnote 1: The Reports published during the Commonwealth were published in English in accordance with the legislation of the Commonwealth, vol. vi c. 6; but this was an interlude; at the Restoration there was a reversion to French--indeed Style, who reported cases in the upper Bench, is very dubious as to the value of these English reports, see Preface to his Reports.

If it were true that the Year Books were official publications, it is clear that there would be little in common between them, and these collections of cases, privately reported and separately published. But, as it can now be taken as certain that the Year Books were not official publications,2 the transition from them to these reports loses much of its abruptness. And in fact, although there are great differences between the reports of this period and the Year Books, there are also strong resemblances; and these resemblances are the more striking in some of the earlier reports than in the later. I think that these resemblances, which I shall now describe, create at least a presumption that the later Year Books, like the carlicr, owed their origin, not to official action, but to the needs and energies of the legal profession. We shall see that the differences, which in the course of this period begin to emerge, can be accounted for, partly by the different conditions of publication which the introduction of printing involved, partly by changes in legal procedure, and partly by the hardening of the view of the common lawyers as to the binding; orce of decided cases. And, in this connection, it is important to remember that there is a certain amount of continuity in the organization of the trades associated with the production of books before and after the introduction of printing. The older association of writers of text letters and limners became the craft of the Stationers, and, on the introduction of printing, joined with the printers, and became the company of Stationers.3 It is therefore a probable inference that, in the particular case of the production and publication of law reports, though there were changes, there was no entire break between the period of the Year Books and the period of the reports.

Footnote 2: Vol. ii 532-536; vol.iv z62.

Footnote 3: Vol. v. c. 7.

### Law in X-VITH and X-VITH CENTS.

Figure 11: The

## 86 Low in Xvith and Xvith Cents.

## 6 Conclusion

In this paper, we have proposed a novel method for the detection of the $\\alpha$-ray signal from

### Law in Xvith and Xvith Cents.

which our printed volumes are based ; and (iv) in the variety of their contents and style.

(i) _Origins._ The capacity to take notes swiftly and accurately was a very neccssary accomplishment for a lawyer from a very early period in the history of the common law.1 As in the Middle Ages, so in this period, the reports were made primarily, not for publication, but for the reporter's own use. Even Plowden's2 and Coke's3 reports, though afterwards published by their authors, were made primarily for their own use. It is not therefore surprising to find that some of these reports contain cases, not reported at first hand by the reporter, but copied from some other source ; while others contain cases decided after the author's death. A good many of Dyer's reports, for instance, must have been copied by him from some MS., unless it can be supposed that he began to make his reports at the age of one year.4 It is clear also from the preface, written by his nephews to their selection from his reports, that they were made for his own private use, and not with any idea of publication.5 But the style in which a man writes for his own use will generally be very different from the style in which he writes for publication. The MS, will not be so carefully corrected, and there will sometimes be a repetition or a hiatus. As Lord Ellesmere said in the Star Chamber, "In Diar are reports as he heard them, and also opinionsThe Reporters 365 and doubtes, and thus are strange things printed which detract greatly from the authority of Diar's book."1 What is true of Dyer's reports is also true of the reports of many of his contemporaries, e.g. of Anderson, Popham, Hobart, Benloe, and Dalison. In one or two cases indeed the reports were written or prepared by the author for publication and published by him--the reports of Plowden and Coke are the most famous and the earliest instances--but even in their cases publication was an after thought.2 Later we have the reports of Davis, Bulstrode, Style, Calthorpe, March, Clayton, and the collection of Jenkins, all of which were written in order to be published. Thus the origin of some of these reports is similar to the origin of at any rate some of the Year Books--they were collections of cases made by the author for his own use in his own practice;3 and, naturally, they have similar imperfections. Moreover, if it be true that others of the Year Books were compiled from notes taken that they might be copied and published,4 their origin may be compared to those of the reports which were written or revised with a view to publication.

Footnote 1: _Hwarde, Les Reportes etc. 127; cp. Burrow's remarks upon Bunbury's reports 5 Burr at p. 2659._

Footnote 2: As to Coke see above 364 n. 3; as to Plowden see below 366 n. 1.

Footnote 3: Vol. ii 536.

Footnote 4: Ibid 539-540.

Footnote 5: H.g. Plowden and Coke, above n. 2; and cp. Pref. to Leonard's Reports.

(ii) _Circunstances of publication._ We can see the same general likeness between the Year Books and the reports in the circumstances under which many of them were printed and published. It is probable that in this, as in the medieval period, most lawyers made collections of cases. Some of these topics copied from other collections, and sometimes they reported what they had heard in court. It is clear that the possession of such a collection, made by a distinguished lawyer, would be a great help to a practitioner. Some lawyers freely lent their collections of cases;5 but others, when they had got hold of such a collection, were unwilling to allow other people to see it. Exclusive access to authoritative information of this kind would be an obvious advantage to them in their practice.6 But for these same reasons the competition of students, practitioners and publishers to get hold of these collections, known to be circulating amongst the author's friends, was very keen. Nor were the publishers very scrupulous as to the methods they employed. Plowden tells us

### Law in Xvith and Xvith Cents.

that he had resolved to publish his reports, because copies had been hastily and incorrectly copied, and it seemed likely that these copies would be published without his authority.1 Down to 1640 it is probable that the strict licensing system enforced by the Star Chamber, though it did not prevent the circulation of incorrect reports in MS.,2 prevented the publishers from foisting absolutely spurious reports upon the public. But under the Commonwealth this form of control was less effective. A large number of reports were published between 1640 and 1660, under the names of lawyers of good repure, which contained many obvious errors.3 Their editing and printing was as slovenly as that of many of the printed Year Books. Indced, in the case of some, there is no evidence at all that the author whose name was attached to the volume had ever written it.4 In other cases it is clear that the author was not the actual reporter of the cases. Thus Owen's reports contain cases decided after his death; 5 and the editor of Palmer's reports states that 120 of Palmer's cases had beenincorrectly transcribed by Latch.1 No doubt these volumes often appeared with the sanction of distinguished judges; and their licence was necessary after the Restoration.2 But unless the licence to publish expressly states that the signatories know and attest the worth of the book, it affords but little guarantee of its authority.3 Publishers sometimes made free with distinguished names. Bulstrode was made to approve the print of Part 12 of Coke's reports, though he had expressly stated that it was full of errors; and he thought it necessary in the preface to his own reports to vindicate his own competence by a statement of the real facts.4

Footnote 1: Palmer's Reports Pref. ${}^{\\bullet}$ Vol. vi c. 7:

Footnote 2: Wallace, op. cit. 34 n, 3-4 I have remarked, on comparing numbers of these certificates together, that there is a difference, and apparently an intended difference, between their language; and yet farther, that in an imperfect degree, the strength of the certificate does tally with the commonly received reputation of the book;' thus some reports are merely " allowed," others are " allowed and recommended," others are certified to be "very good," others to be printed from a genuine MS., the certificates of others deliberately abstain from saying anything about authorship.

Footnote 3: Below 462 n. 5.

Footnote 4: They are the same as the ones in the literature, but they are not the same as the ones in the literature.

In some cases we know little or nothing about a reporter. Occasionally indeed we get a stray reference which shows us that he is really a human, and even an able person. Thus Siderfin devilled for Francis North, the future Lord Guildford, when he was at the bar; and Roger North has preserved the memory of his rustic behaviour, his hatchet face, his shoulder of mutton hand, and his uncouth walk, together with his good nature, his industry, his ability, and his probity and exact justice to his clients.5 But generally we must judge of the merits of any given reporter merely from internal evidence; and even if the reports purport to be and were really written by some well-known lawyer whose name appears on the title page, it may well be that the reports are not of first-rate authority. In many cases it is the other neighbors never stopped to consider whether the MS. which they were printing was the best that could be got. They printed the first MS. that came to hand; and that MS, was often very corrupt for the same reason that the Year Book MSS. are corrupt. " Most books," says Mr. Wallace,6 " even when printed after death, are secured from imposition because they subsist in a single copy, written or revised by the authors; and the faults of the printed

### Law in Xvith and Xvith Cents.

volume must be the faults of the descent. But of the reporters, the original was lent, not to be printed, but to be copied. It was vitiated by transcript after transcript; mistaken by blunders of the penman; enlarged perhaps to introduce cases, and mutilated to exclude them. Ignorance and interest, and accident and recklessness and the haste of fraud, all combined to produce error; and the work would be printed at last, without the concurrence of the author, without the consent of the propriotor; and thrust surreptitiously upon the world from that copy, perhaps, which was the most corrupted of all." We have seen that these words might have been written of some of the earlier Year Books,1 That they are true will be seen if we look at the history of the reports which bear the name of Benloe and Dalison.2 In 1609 there were published, at the end of Ashe's Epieicheia,3 some cases reported by Benloe and others reported by Dalison, which bore upon the topic of the book--the interpretation of statutes by equity. These cases were also inserted in the second edition of Keilway, which was published in 1633. In 1660 another set of cases, decided between 1531 and 1628, was published under the name of Benloe. There were also other MSS. of Dalison's reports in existence; Lambard and Coke cite cases from some of these MSS.; and there were other MSS. in circulation which contained cases decided after his death. In 1689 Rowe coffated the various-proofs both of Benloe and of Dalison, and produced the book of reports which pass under their names.

Footnote 1: Vol. ii 530-531.

Footnote 2: Wallace, op. cit. 175-178; Pref. to Rowe's Ed.

Footnote 3: For this book see vol. iv 312.

Footnote 4: Wallace, op. cit. 20.

There is, moreover, another chance of error in some of these printed reports (especially in those published during the Commonwealth period) which is not present in the early printed Year Books. They were published in a translated form, because English had then been made the language of the courts;4 and, in the absence of the MS, there is no guarantee that the translation is correct. Translation from a badly written and imperfect MS. was no easy task.5 Grimston tells us something of the difficulty which he had with the French MS. of Croke's reports;" and it is probThe reporters 869

able that the translation of the last two parts of Coke's reports is very incorrect.1

Footnote 1: It appears that the zth and r3th Parts, though originally written like the others in French, were never published in that language. The first edition of the rzth Part in r656 was in English. It is not very correctly translated, and though there are at least five manuscript copies in the original French, all accessible . this old translation of 1656 is still the only one known to the profession," Wallace, op. cit. t7o.

(iii) _MS. Authority._ Having regard to these facts, it is not surprising to find that at least as many unpublished MSS. exist of the printed reports as of the printed Year Books; and that the number of unpublished reports is at least equal to the number of unpublished Year Books. This is made abundantly clear by a pamphlet written in 1834 by Richard Pheney, which Mr. Wallace has printed as an Appendix to his book on the Reporters;2 and doubtless a systematic search would reveal other MSS. It is probable therefore that a critical edition of some of the earlier printed reports, or of some of the unpublished MSS., would be as serviceable to the cause of legal history as the analogous work which is being done upon the Year Books.3 But though, doubtless, new critical editions of some of our printed reports would reveal negligences and ignorances parallel to those revealed by the new critical editions of some of the printed Year Books, it can hardly be contended that such editions are as necessary as new editions of the Year Books. The law laid down in these reports is nearer to our own times; and consequently a continuous professional tradition exists, which enables the relative merits or demerits of the different reporters to be appraised, and the necessary corrections to be made. Though we may not have "earned the right to guess" what a Yes..." might to say,4 we have, in some measure, earned the right to guess what, in a large number of the cases, our modern reports ought to say.

Footnote 1: It appears that the zth and r3th Parts, though originally written like the others in French, were never published in that language. The first edition of the rzth Part in r656 was in English. It is not very correctly translated, and though there are at least five manuscript copies in the original French, all accessible . this old translation of 1656 is still the only one known to the profession," Wallace, op. cit. t7o.

(iv) _Contents and Style._ The variety of the contents and style of these early modern reports presents a close parallel to the variety of the contents and style of the Year Books. We have seen that the Year Books often give us very discursive accounts of the proceedings in court.5 The arguments of counsel, the remarks of the judges, and the notes of the reporter often seem to Law in Xvith and Xvith CENTS.

be quite as important as the actual decision. Often no decision at all is reported. We see much the same variety in the contents of these early reports. The arguments of counsel were sometimes reported at greater length than the arguments of the judges.1 Many reporters and editors thought that it was their duty to polish the arguments, and perhaps to add something of their own.2 They record not only decided cases, but also short dicta on points which struck them as interesting;3 and they often insert a note upon memorable happenings in court--a call of serjeants or the creption of a judge.4 They still like to report picturesque incidents or unusual events. Thus Dyer records that the members of a jury were fined each 40 pence because they rate and drank before giving their verdict--notwithstanding their naive defence that, on their way to court, after having agreed on their verdict, " they saw Rede Chief Justice going on the way to see an affray, and they followed him, and in going, they saw a cup and drank out of it."6 Plowden tells us in _Wrotesley_**v**. _Adams_ that Brown, J. did not argue because " he was so old that his senses were decayed, and his voice could not be heard."6 None might assign error upon an indictment unless he appeared in person ; and Croke relates how Sir W. Read, an old man of ninety, and infirm, " was brought from his house, ten miles from London, in a horse litter on men's shoulders to the Bar, and came into"Court and assigned his error."7 The same reporter relates in some detail the cause of the proceedings on a writ de ventre inspiciendo.8 When a judge or famous lawyer died they often insert a few lines of obituary eulogy 9--sometimes even citing the Latin verses composed in honour of the deceased.10

Footnote 1: E.g. in Sharington v. Strotton (1566) Plowden 300 the arguments are given at length, but the judgment was given so shortly that Plowden asked the judges for their reasons, which are contained in a very few sentences.

Footnote 2: See the Pref. to Dyer's reports by Farewell and Dyer ; and cp. the long disquisition upon the meaning of equity given by Plowden at pp. 465-468.

Footnote 3: See e.g. three notes on Annuities in Gouldesborough's Rep. 31.

Footnote 4: See e.g. Cro. Car. 1-4--an account of new creations of judges and serjeants on the accession of Charles I.; Ibid 67--a creation of serjeants; ibid rzy-1z8--a question as to the precedence of Croke J. on his removal from the Common Pleas to the King's Bench; 375--the removal of Heath, and his subsequent appearance at the Common Pleas bar as a serjeant.

Footnote 5: Dyer 37b.

Footnote 6: Dyer 37c. Jac. 67.

Footnote 7: Cro. Jac. 67.

Footnote 8: Cro. Car. 28--Hobart; 203--Walter; 6 Co. Rep. 74b--Popham; 9 Co. Rep. 15a--Dyer; 10 Co. Rep. 35a--Fleming.

Footnote 10: Plowden 376--citing verses made in praise of Brown J.; Cro. Car. 127--appreciation of Doddridge J.

Footnote 11: Vol. ii 538.

The reporters

early reporters. It is emphasized by Plowden;1 and Coke,2 and other reporters sometimes copy the pleadings from the record. Thus it will be seen that there was no common consent as to the style which a law report should take. As with the Year Books, so with these early reports, we get all sorts of style and all sorts of arrangement.3 Sometimes, as in the first volume of Brownlow and Gouldesborough, we get a collection of cases turning upon a particular topic--in this case the different forms of action. Sometimes, as in some of the cases reported in Bendloe, we get only short notes of decisions. Sometimes, as in Croke, we get a summary of the arguments and the decision stated at moderate length. In Plowden we get elaborate reports of the record, arguments, and decision, together with comments of the reporter himself. Very often, as we shall see, Coke gives us rather a critical exposition of a legal topic rather than a report.4

Footnote 1: "This book consists of two several kinds of work, the one is, a book of Entries, more sure and safe to be relied upon and followed than any other book of Entries. For ... in this book there is no record entered but such upon which there was either a demurrer in law, or a special verdict given containing a point of law, in both which cases the matter was thoroughly sifted and debated at the Bar and at the Ben also, and in the end either approved or disapproved, for the causes shown in book, by the judgment of the Court," Plowden's Rep. Pref. at pp. iv, v. .

Footnote 2: "Coke tells us, 8 Co. Rep. Pref. xxv, that he has reported Caly's Case, " To this end, that students, seeing the singular use of original writs, will, in the beginning of their study learn them, or at least the principalest of them without Book, whereby they shall attain undoc these things of no small moment : r. to the right understanding of their books : z. to the true sense and judgment of the law : and lastly to the exquisite form and manner of pleading."

It is thus obvious that the contents and style of these early reports have much in common with the contents and style of the Year Books. There is no sudden transition. But, if we look at these reports as a whole, we can see that differences are emerging, which will, in time, give rise to a form of law report quite different from that of the Year Book. At the present day a reporter aims at giving a faithful account of the point or points at issue in the case, the decision on these points, the reasons for the decision, and such a summary of the arguments as will make the points at issue and the decision upon them intelligible. In the sixteenth and early seventeenth centuries we can see in operation some of the causes which will lead to the growth of the modern style of reporting.

In the first place, the change from the system of oral to the system of written pleadings enabled the point at issue to be defined more clearly, and concentrated attention more firmly upon the decision of that point.5 The interest tended to shift from

### 872 Law in Xvith and Xvith CENTS.

the argument leading to the formulation of the issue to the decision upon that issue ; and to make it clear that, as a general rule, reportable cases were those which turned, not on an issue of fact, but upon an issue of law.1 Edmund Plowden, who was perhaps the most learned lawyer in a century of learned lawyers, who, it is said, might have been Lord Chancellor of England but for his adherence to the Roman church, was the pioneer of the modern style of law report. " All the cases here reported," he says,2 " are upon points of law tried and debated upon Demurrers or special verdicts, copies whereof were delivered to the judges, who studied and considered them, and for the most part argued in them, and after great and mature Deliberation gave judgment thereupon. . And as to such cases as were argued by others, whereupon no Judgment was given in any point (of which cases there are many) I have said and suspended my notes and Reports of the Arguments made in them." Coke, who justly eulogises Plowden's reports as "exquisite and elaborate,"3 shows, by his definition of the term " report," and by his advice as to the use of reports, that the modern conception was gaining ground. He defines a report as " a public relation or a bringing again to memory cases judicially argued, debated, resolved, or adjudged in any of the king's courts of justice, together with such causes and reasons as were delivered by the judges of the same ;"4 and, in the _Case of Alton Woods,4_ he says, " in the reports and arguments of matters in law the point adjudged is principally to be observed, and not matters of discourse which do not tend to the point adjudged." Obviously the centre of interest is shifting from the debate in court to the decision of the court.

Footnote 1: Vol. iii 654-655; below 374 n. t. * Pefaace at p. v. * 3 Co. Rep. Pref. * 4 Co. Litt, 293a. * (1595-r600) x Co. Rep. at f. 52a. * 10 Co. Rep. Pref. xii: cp, vol. ii 541-542.

**THE REPORTESTRES 873**

many times mistaken in general. 3. In those days few cases in law were cited, but very pithily . and now . such a farrago of authorities, it cannot be but there is much refuse." Clearly it was decisions and the reasons for them which were coming to be useful to the profession; 1 and the appreciation of this fact will tend to prevent reporters from incumbering their reports with the recital of the miscellaneous events passing in court which was formerly customary. The report will tend to assume something of the impersonal character of the record.

Footnote 1: Above 371 n, 5.

In the third place, the demand for accurate decisions will tend to the growth of reports made in order to be published. A man's own notes made for himself will no doubt be useful enough to the taker. He generally has some sort of recollection of the events noted, and can silently correct inaccuracies. But we can see from many of the reports of this period that such notes will not bear publication without a great deal of revision. Reports made in order that they may be published will be obviously far superior to notes of cases made without any idea of publication. Plowden is again the pioneer of the habit of methodical and accurate reporting. He tells us that often before the case was argued he had studied the record with such care that he could have argued the case itself; and that after he had prepared his report he submitted it for correction to the scrijeants and judges who had argued in it." Coke, too, carefully, reviseu' the reports which he published, and was unwilling that any work of his not so revised should be published after his death.3

Footnote 2: * And in order that I might execute this work with the utmost sincerity and truth, and to the intent that I might be more able to understand the arguments, and to comprehend the true causes of the judgments herein contained, let me inform the reader that in almost all the cases which I have undertaken to report, before they came to be argued, I had copies of the records, and took pains to study the points of law arising thereupon, so that often times I was so much master of them, that if I had been put to it, I was ready to have argued when the first man began. And besides this, after I had drawn out my report at large, and before I had entered it into my book, I showed sftch cases and arguments, as seemed to me to be the most difficult, and to require the greatest memory, to some of the judges or serjeants who argued in them, in order to have their opinion of the sincerity and truth of the report," Plowden, Pref, v.

- And (if it sftall please God) 1 intend hereafter to set out another work, whereed I have only collected the materials, but not reduced them to such a forme as I intend, test If I should leave it as it is, it might, after my death, be published (as hath bin done in the like case) before it be perfected," 8 Co. Rep. Pref. xxxx.

### 874 Law in Xvith and Xvith Cents.

**reporters for their own use.** It is not until the rise of these authorized reporters that the reports assume their modern form. But we do see that, under the pressure of professional needs, the reports of this period are, in their contents and style, gradually approximating to the contents and style of a modern law report. Bacon, at the beginning of the seventeenth century, had already foreshadowed the shape which the reports will eventually assume.1 But this development was then in the future. The reports of this period thus form the connecting link between the Year Books and those modern law reports, which begin with the authorized reports of the latter half of the eighteenth century ; just as these authorized reports form the connecting link between the reports of this period and our semi-official series of the Law Reports.2

Footnote 1: The author is a member of the National Academy of Sciences of the United StatesThe Reporters

reports together with an index of cases and an index to the subject matter.1 But his greatest work (published in 1614) was his "Promptuary or Reportory Generall de les annals et plusors autres livres, del comen ley dengleterre." It consists of two volumes divided into four parts. At the end of each volume is additional matter published since the book was printed.2 At the end of the second volume there is also a list of authors drawn upon, and a collection of eulogies upon deceased judges taken from Coke's reports. The book itself is something between an abridgment and an index. It gives under alphabetical heads, rather the list of references where the law can be found, than the principles of the law itself. The headings no doubt suggest the principles: but the author does not state the principles explicitly.3 But these abstracts, digests, and indices did not do for the modern sources of law what the old abridgments had done for the Year Books. It was becoming obvious, at the end of this period, that a complete and up-to-date abridgment was much needed. The need was met by the publication in 1668 of Rolle's Abridgment.

Henry Rolle4 was born in 1589, and was educated at Exeter College, Oxford, and the Inner Temple. He was made serjeant at lay in 1640. He was a member of James I,'s last Parliament, and of the first three parliaments of Charles I's reign; and, from the first, he identified himself with the constitutional opposition. In 1645 he was created a judge of the King's Bench, and in 1648 chief justice. He accepted a renewal of his commission after the execution of Charles I, and acted as a member of the Council of State. In 1654, he narrowly escaped being hanged by a party of _nuralie+s_ led by Penruddock, who had surprised Salisbury while he was holding the assizes there. He was not disposed to agree to all Cromwell's arbitrary acts, and obtained his discharge from his judicial office in 1655. He died in the following year. He was one of that band of literary lawyers which, as we shall see,5 distinguished the earlier years of the seventeenth century. Hale draws a pleasant picture of the manner in which Rolle,

### Law in Xvith and Xvith Cents.

Littleton,1 afterwards chief justice of the Common Pleas and lord keeper, Herbert, afterwards attorney general, Gardyner, afterwards recorder of London, and Selden2--"that treasury of all kinds of learning "--met constantly and almost daily, "to bring in their several acquests in learning as it were into a common stock by mutual communication, whereby each of them became in a great measure the participant and common possessor of the others' learning and knowledge."3 His Abridgment, like his reports, was compiled by the author for his own use. It was probably written before 1640;4 and was published posthumously5 with an introduction by Hale; and this introduction is, as we shall see, a valuable historical summary of the development of the common law up to the time of the Restoration.6

Footnote 1: Above 257.

Footnote 2: Above to-IT; below 407-412.

Footnote 3: Hale's Pref. to Rolle's Abridgment.

Footnote 4: Foss, op. cit. vi 473, says--''Four times appointed Reader of his Inn, he was prevented by the prevailing plague from performing the duties of that office till the last occasion in Lent, 1639; but during his leisure he employed himself in compiling that 'Abridgment of Cases and Resolutions of the Law,' which has been held up by some of the ablest lawyers as an example to be followed for its perspicuity and method."

Footnote 5: Hale's Pref. to Rolle's Abridgment.

Footnote 6: For these Abridgments see vol. ii. 543-545.

Footnote 7: For these Abridgments see vol. ii. 543-545.

Footnote 8: ' 'I would wish that amongst such plenty of lerned men as bee at this day some thing were devysed to help the students of their long jorney . .

**THE REPORTEYS** **377**

makers of abridgments. It influenced Hughes,${}^{1}$ Nelson,${}^{2}$ D'Anvers who translated it and added new cases,${}^{3}$ and Viner.${}^{4}$ But when Viner published his work (1741-1756) abridgments compiled on this plan were being superseded by abridgments of a yet more advanced type, which consisted, not of notes of cases and statutes roughly put together under alphabetical heads and somewhat arbitrarily chosen sub-heads, but of collections of scientifically constructed treatises on all branches of the law. Shepherd's ${}^{5}$ Abridgments of 1656 ${}^{6}$ and 1675 ${}^{7}$ mark the beginnings of this new departure ; but they are poor pieces of work ; and the transition to this new type of abridgment was not complete till the posthumous publication of Comyn's Digest (1762),${}^{8}$ and of Bacon's Abridgment (1736). They are the forerunners of the modern legal encyclopaedias with which we are all familiar.${}^{9}$

Both Coke ${}^{10}$ and Bacon ${}^{11}$ had deprecated the excessive use of

### 378 Law in Xvith and Xvith Cents.

ready made abridgments by the students of the law. But the collapse, during the latter part of the seventeenth century, of the system of legal education pursued by the Inns of Court, had, as we shall see,1 made it necessary for students to acquire their knowledge of the law by their own efforts. Hence it became necessary, not only for practitioners, but also for students to make abridgements, or, as they had then come to be called, "commonplace books." Rolle's Abridgment, therefore, became not only a book for practitioners, but also, as Hale points out, an instrument of legal education. "Whercas," he says, " I have commended the making and using of a commonplace book as the best expedient that I know for the orderly and profitable study of the law; this book will be the basis of such a commonplace book."2 But of this method of acquiring legal knowledge I shall say more in a later chapter.3

Footnote 1: I did not mention the possibility that the author would have to have been able to have a good

## Literature of the Common Law 379

**Year Books \[1\]**--were printed and published. **New** books were written both on old and new legal topics. Legal history as well as modern law, practical treatises and books on the theory of the law, are all represented ; and all helped to give order and form to the mixture of mediaval and modern principles and rules which made up the common law of this period.

The author whose books covered the whole field of the common law, and had the largest influence upon its future development, was Edward Coke. Of him and his writings I shall speak at length in the second part of tflis chapter.\[2\] Here I shall deal with the literary activity of his predecessors and contemporaries, without which his work would have been impossible.

The legal literature of this period covers a wide ground. It would be impossible and unprofitable to give an account of all the books which were published. It is only possible to mention some of the most important. They can, I think, be best catalogued and described by dividing them into groups according to their subject matter, as follows :--(i) Books concerning writs and pleadings ; (ii) books concerning the land law, and conveyancing and other precedents ; (iii) books concerning the criminal law and the law of tort ; (iv) the lectures of readers, texibooks, students' books, and law dictionaries ; (v) books upon constitutional law and legal history.

1. _Books concerning writs and pleadings_.

We have seen that in the Middle Ages the learning of writs and pleadings was one of the earliest things taught to the student.\[3\] The main divisions of the law depended upon the differences between the writs by means of which the different forms of action were begun ; and to plead correctly was essential to the success of the action so brought. We can say the same of this period. But both the character of the forms of action generally used,\[4\] and the method of pleading had somewhat changed ;\[5\] and these changes produced corresponding changes in the literature of this branch of the law. Books of the type of the Natura Brevium,\[6\] which contained collections of and commentaries upon writs, tended to become more definitely separated from books of the type of the Novae Narrationes,\[7\] which contained collections of pleadings ; and towards the end of this period books of the former kind tended to be replaced by books on procedure of another type. At the same time the growth in

### 380 Law in Xvith and Xviith Cents.

the length and complexity of pleadings caused the books containing precedents of pleading to expand enormously.

The Register of Writs was printed in 1531 ; but it was too bulky a volume for the student. On the other hand, the students' hand book--the Natura Brevium--was, in spite of efforts to correct it,1 somewhat out of date. To supply the want of a handy and up-to-date volume, Fitzherbert published his new Natura Brevium in 1534.2 It was a successful book. It was reprinted in 1537 ; it was edited by W. Rastell in 1553, who wrote a table of contents; 3 it was illustrated by references to the Year Books and Reports by Sir W. Windham, who was created one of the judges of the King's Bench in 1660 ; and it was further annotated by Hale. It is the edition of 1730, thus illustrated and annotated, which is still the standard edition. In 1662, there appeared an up-to-date selection of judicial writs with short notes attached to some of them, taken from the MSS. of Richard Brownlow,4 a famous prothonotary of the Common Pleas, who gave his name to a leading case.5

Footnote 1: In 1535 Redman published the Natura Brevium " newly corrected in "chosen" with divers addicions of statutes, boke cases, plees in abatement, 5.6.6.6.6.6.7.8.9.9.

## Literature of the Common Law 881

trated his meaning by showing how the Title " Brief" might be treated. Theloall chose this title, and wrote his treatise round it for his own use. Having been lent, it found its way, as often happened in such cases, to the printer.1 It deserved to be printed, as it is the most orderly treatise on procedure, founded on the Year Books, that had yet appeared. The subject is distributed over sixteen books, each dealing with a particular topic ; and each book is divided into chapters and paragraphs. It is reprinted at the end of the 1687 edition of the Register ; and there is no doubt that it is a very useful commentary thereon, as it contains all the Year Book learning on the writs therein contained. But it naturally tended to lose its usefulness when the Register became antiquated. Historically, it comes between the older commentaries upon writs and the modern books on procedure, with which we must now deal.

Footnote 1: The 1687 edition of the Register ; and the 1687 edition of the Register ; and there is no doubt that it is a very useful commentary thereon, as it contains all the Year Book learning on the writs therein contained. But it naturally tended to lose its usefulness when the Register became antiquated. Historically, it comes between the older commentaries upon writs and the modern books on procedure, with which we must now deal.

The Register and the commentaries upon it were, as we have seen, books of the old order. As Trespass and its offshoots gradually encroached upon the sphere of the older forms of action, as newer courts sprang up, the procedure of which was not that of the common law, these books became less useful to the practitioner. Their place tended to be taken by books of practice which shortly and tersely described the procedure of all the different courts. One of the oldest of a series of books, which is represented to-day by the Annual Practice and its rivals, is the Attourney's Academy,2 written by3 Thomas Powell,4 and published in 1623. Thomas Powell was a poet, a man of letters, and, in the latter part of his life, an industrious student of records. He had, the year before, written a tract giving directions for the search of records;5 and in 1627 he wrote the Attorneys' Amenack, which gave directions as to removing causes or certifying records to the courts at Westminster. These two tracts supplement the principal work, and are often bound up with it. The book gives short practical directions as to the steps which an attorney must take in an action, and the fees which he

### 382 Law in Xvith and Xvith CENTS.

must pay, from the issue of the writ to the execution of judgment, not only in the courts of common law, but also in the Chancery, the court of Requests, the Star Chamber, the court of Wards, and several other courts.1 Besides, it gives information as to suffering recoveries or levying fines, as to the'cost of proving a will, and as to the law terms and return days. It is interesting to note that, in the author's opinion, the most crying evil of the time was the fact that counsel were in the habit of taking fees, and then never appearing to plead. He suggests that in such cases the judge should have power to order the return of the fee and damages.2 A little later than this book, which had treated of procedure in general in a more modern style than any book that had yet appeared, we get one of the earliest of the books dealing with a special topic in procedure. In 1647 John March published, together with his book on actions for slander, a tract on the law and practice of Arbitration.

Footnote 1: E.g. the Council of York, the courts of the Counties Palatine, the Mayor's court, and the Sheriffs' courts in London.

Books of this type show that the simplification of process, due partly to the action of the legislature, but chiefly to the spread of the offshoots of Trespass, was gradually making it possible to say something about actions in general. They are intermediate between the medieval books grouped round the writs, and the modern books, which begin to appear in the following period, grouped round the orders of the courts. * But this simplification of process had been accompanied by the growth in the complexity of \*he law of pleading. The legal profession could find the rules of pleading in the Year Books and Reports. But for daily use they also wanted precedents of pleading which they could adapt to the needs of their clients. **"** What availeth," says Coke, **"** the serjeant or apprentice the general knowledge of the laws, if he know not withall the form and **"** legal proceedings in particular cases." 3 It was not long before this want was satisfied.

Footnote 2: **"** I conclude with this humble request made to those who have power of reformation in this crying reigning evil amongst lawyers, touching the disappointment and defeats of Clevents causes, for which they are retayned and \*feed, and yet often fayle to give attendance in the hours of tribulation, or to be mere unto the clyent in the day of visitation (a foule fault in a friend, but worse in a servant)," at p. 22g. **"** Coke's Entries, Pref. \*Vol. ii 537-338.

We have seen that, in the early days of the Year Books, the first object which the reporter had in view was the giving of instruction to pleaders ; and that it was only gradually that the report and the book of precedents became distinct things,4 Even in this period the two are found together. We have seen that Plowden considered that one of the great recommendations of his reports consisted in the fact that they contained precedents of

## Literature of the Common Law 883

pleading upon which there had been argument and judicial decision \[1\]; that other reporters sometimes gave the pleadings at full length ; and that Coke especially made a habit of doing so \[2\]. But, even in the preceding period, separate books of precedents of pleading,'both in the manorial courts and courts of common law, had made their appearance. Precedents of pleading in the manorial courts were, as we have seen, contained in the little books on the Court Baron and the Court Lect, which were printed at this period \[3\]. Similarly, the older books of precedents of pleading in the courts of common law were printed ; and newer books--the Books of Entries--began to appear, and steadily continued to increase in bulk.

The earliest of these books which has survived \[1\] is one published by Pynson in 15io. The Bodleian copy has no title page. It begins with the alphabetical table. But another copy, described by Dibdin, has a title page, which gives an account of the contents of the book. It contains, so runs the title, the gist of divers matters and of the pleadings in real personal and mixed actions, and also information on writs and executions \[6\]. The book consists of clxxxiv folios \[6\]. It is printed in small folio, and is therefore a very much larger work than the small tracts of the preceding period \[7\]. At one or two places large blanks are left \[8\]; and these blanks probably represent features of the MS. The matters contained therein are not arranged in any particular order. The first precedents of an action on the statute of Labourers, and then follows Debt against executors. Probably it is a practising pleader's precedent book which has found its way to the printers. The anonymous author doubtless jotted down precedents as he acquired them, and prefixed the book that he might easily find them. The Bodleian copy sh.ws signs of use. The paging is corrected

### Law in Xvith and Xvith Cents.

from ff, lii-f.c, and at ff. clviii$b$-clix$a$ some additional precedents are inserted in the margin.

The book is the ancestor of a long line of similar books. In 1546 "the old Book of Entries " was published 1--so called to distinguish it from Rastell's later work. Like Pynson's book, it has an alphabetical Table prefixed ; but its subject matter and arrangement show that it is a totally different collection--made, the title-page seems to tell us, by a judge. No doubt many lawyers made these collections ; and the printers took any good collection which they could get. The book is anonymous ;2 but the Table is signed W.S. It is printed in small folio, and contains 244 folios. It is therefore appreciably larger than the earlier work.

Footnote 1: The title-page is as follows--"Intratation-liber omnibus Iegum Angliae studiosis apprime necessasrius in se complectens diversas formas placitorum tam realium, personlaim, quam mixtorum, necnon multimorum brevium tam executionum quam aliorum valde tritium, nunte tandem in gratian studiosorum majori cura diligenta quam ante hac revisions et emendatus, adjectis etiam Judice multo quam ante hac castigatore, cum nonnullis alis additamentis hactenus non excussis nec editis cujusquidem Judicis ordinem series alphabetica tibi demonstrabit."

In 1564--the year before his death--William Rastell 3 published his book of Entries.4 It is a large folio of 627 leaves; and it superseded the older books, just as his abridgment of the statutes superseded the older abridgments. The reasons why it superseded the older books are to be found, not only in its size, and in the increased number of the precedents therein contained, but also in four other conspicuous merits. In the first place, the precedents were arranged under alphabetical headings after the fashion of an abridgment--a plan followed by Coke 5 and subsequent writers.6 In the second place, it was thoroughly up to date. We shall see that it contained precedents for actions of assump:it upon a bill of exchange.7 In fact it was more up to date than Coke's later volume. In the third place, it was provided with notes and references. In the fourth place, the material was gathered, not only from the old printed books, but also from the most authentic source--the offices of the pro-thonotaries. We have seen that the prothonotaries-cre-circuits whose duty it was to enter the pleadings in the action ; and that

## Literature of the Common Law 385

therefore they and their clerks had unrivalled opportunities for accumulating a store of such precedents.1 Rastell seems to have been the earliest writer to make use of this store of precedents.2 He therefore produced a book of precedents in pleading of $\\blacktriangleleft$ wholly new type; and his example was copied by the numerous other books which appeared during the seventeenth century. It would be useless to enumerate all these books. A few examples will suffice.

Footnote 1: Vol. iii 644-648, 650-653.

Richard Brownlow, who made the collection of judicial writs noted above,3 had a great reputation as one of the ablest prothonotaries of the Common Pleas. The writers of these collections knew that his name on the title page would recommend the book to the profession.4 Thus in 1653 and 1654 two volumes of his pleadings were published; and Herne's Pleader, published in 1657, contains a collection of pleadings, " drawn entered and taken in the times of those famous Prothonotaries of the Court of Common Pleas Richard Brownlow, Robert Moyle, John Galston, and Thomas Cory." These books, being published under the Commonwealth, were in English; but in 1673 Brownlow's Pleadings were published in their original language, with the addition of some modern precedents.5 In 1684 a collection made under the direction of Sir Thomas Robinson, late chief prothonotary of the Common Pleas, appeared. The preface tells us that, besides his own collection, the author ' had the advantage of all those many curious and learned $\\blacktriangledown$.nuscripts which were collected by the long experience and critical observation of the greatest clerk of his time, Richard Brownlowe"; he had also the MSS. of Brownlow's successor, Thomas Corey, and of William Midgley, the clerk of the judgments. In 1670 W. Brown, "cierk of $\\blacktriangledown$ Common Pleas, had, with the approbation of Sir Thomas Robinson, $\\blacktriangledown$.ublished from the MSS. of the prothonotaries

### Law in Xvith and Xvith Cents.

of that court, and from the MSS. of eminent practitioners in the King's Bench, a collection of precedents suitable for both courts. In t684 a selection of pleadings in the King's Bench, with an introduction showing the method of proceeding in that court, was published by Vidian, one of the clerks of the papers In that court.1

Footnote 1: The Exact Pleader.

Besides these semi-official collections of pleadings, collections made by individual pleaders were also published. One example is the Liber Placitandi, published in 1674,2 which recites that some of the precedents have received the approach of the best pleaders of the age. When 'the profession of the pleader became a distinct profession, when the profunotaries and the clerks ceased to advise upon or to draw pleadings,3 these private collections of pleadings will gradually oust the semi-official books which held the field in the seventeenth century.4

Footnote 2: Another illustration is Hansard's FEntries published in t685 with introductory, observations on pleadings, and the practice of the King's Bench; _i_**,** "author was": attorney of Clements Inn, " where he practised as an enter, ", a clerk for several years, drawing declarations and other pleadings for attorneys in the Home circuit and elsewhere," Pref. ; he knew Vidian ; and the editor of this collection regards it as supplementary to Vidian's ; see also Winch's E:tries, " containing Declarations, informations, and other select and approved pleadings, with special verdicts and denumrrors in most actions real personal and mixt ... with references to the Book where these entries are reported," (t68o) ; it is said in the Pref. that the original papers came to the hands of an ancient clerk of the Common Pleas, and that, after his death, the book with some additions was published with the approval of the chief pro-thonatory \_much what Theloall's Digest did for the law as to writs. Both books explain from the cases the meaning underlying the common forms used by the practitioners, and the rules which governed the use of those forms. That it was a useful book, much studied by eminent pleaders, can be seen from the interleaved and elaborately noted copy in two parts in Lincoln's Inn Library, presented by William Garrow.1 Garrow says, " all the written notes in this part are written by me; they were copied whilst I was a pupil with Mr. Crompton from his books, which I understood were formed by Mr. Justice Yates, augmented by Mr. Justice Ashhurst and Mr. Justice Buller, to the latter \[of whom\] Mr. Crompton was a puj:il." It won high praise from Willes C.J.2

Footnote 1: Solicitor-general 1812, attorney-general 1813, Baron of the Exchequer 1817-1832.

Footnote 2: "'Nota: Willes C.J. said, there is more law and learning in Doctrina Placindi than in any book he knew; that it contained the substance of all the pleadings in the Year-books and Coke's Reports," White v. Willis (1759) a Wils. at p. 88.

These precedents and books about pleading dealt only with cases arising in the civil jurisdiction of the courts of Common Pleas and King's Bench. In fact they covered the cases begun by original writ, and therefore corresponded to the most important of the writs dealt with in the books about writs. But just as practitioners wanted books of practice which gave information about the procedure of other courts,3 so they wanted books which gave them information as to the theory and forms of pleading used in these other courts. We have seen that the 1618 edition of William West's Symboleography gave this information in respect of proceedings begun in the court of Star Chamber, the court of Wards, and the court of Chancery.4 It also gave this information both with respect t8 revenue proceedings in the Exchequer,5 and with respect to the criminal procedure of courts exercising criminal jurisdiction according to the forms of the common law.6 In the latter respect it to a certain extent overlapped the sphere occupied by the books on the justices of the peace.7 ...

Footnote 3: Above 162, 273-274.

Footnote 4: Symboleography (ed. 1618), Pt. ii 297-310.

Footnote 6: Ibid 86-162b.

Thus, by the end of the seventeenth century, we get the beginnings of the modern books on practice, a large number of precedents of writs, pleadings, and judgments in all courts, and books on the theory of pleading. As yet the books which deal with the civil procedure of the common law courts are the most numerous; but all the courts, criminal and civil, of law and of equity, are represented. And thus we can say that the modern types of this variety of legal literature have emerged.

Law in XVTH and XVITH CENTS.

(ii) _Books concerning the land law, and conveyancing and other precedents._

All through this period Littleton's Tenures 1 held its place as the chief work on the land law. Professor Wambaugh says that " before 1628 the editions numbered more than seventy--most of them in Law French. Several of these editions were printed with wide margins for manuscript notes ; and to-day every large library has copies containing annotations so voluminous as to indicate that it was not uncommon for a lawyer to use his copy of Littleton as a common place book." Coke, as we shall see,3 pursued this plan ; and his wonderful commentary, not only brought Littleton up to date, but also supplied the reader with much information upon many other branches of the law. The only other book that we need notice is, " the Profitable Book" of John Perkins 4 of the Inner Temple, which was first published in French in 1530, and republished in English in 164 I and 1657. The book deals mainly with the land law as developed by the Year Books. It is divided into the following chapters : Grants, Deeds, Feoffments, Exchanges, Dower, Tenant by the Curtesy, Surrenders, Reservations, and Conditions. In addition it contains chapters on Testaments and Devises.

Footnote 1: Vol. ii 573-575:

Footnote 2: Wambaugh's Ed. of Littleton's Tenures Ixi.

Footnote 3: Below 466-468.

Footnote 4: See Dict. Nat. Biog.

Footnote 5: Vol. iii 2rg.

Footnote 6: Vol. iv 113, ii14.

Footnote 7: " "A newe boke of Presidentes in maner of a Register wherein is comprehended the very trade of making all maner eyordences and instruments of Practyse, right commodityus and necessary for every man to knowe, published by Edward Wytehurek ; " it contains ff. cxviii and is printed in smail quarto ; at intervals it has short notes, e.g. at ff. vi a and b, xix, lii ; at f. xc b is a precedent of Letters Patent for a yearly annuity with various clauses ; Phayre, who was something of a classical scholar, inserts the following marginal note--\*Pardon the barbarouse latyn of al thys boke, for the common woodes of instrumentes may if no wyse be altered ; " the later collectors who copied his precedents and notes did not think it worth while to copy this.

We have seen that towards the end of the medieval period the forms of conveyances and other legal documents were tending to become very much more uniform than they had been at any earlier period.5 "Naturally, during this period, these collections began to get into print. We have seen that the little books which dealt with the Court Baron and the Court Leet often contained, under the title Carta Foedi, a small selection of forms of conveyances, accompanied sometimes with short notes as to their proper use.6 This anonymous ter is the ancestor of the many collections of conveyancing and other forms and precedents which have appeared from that day to this.

Footnote 5: He was born in Wales, educated at Oxford and Lincoln's Inn, and became crown solicitor for the Marches of Wales, Wood, Athene ; 317.

It was not long before other collections began to appear. The first of these collections by a named author is "The New Book of Presentedes " ? by Thomas Phayre 8 published in 1543.

## Literature of the Common Law 389

It was a comprehensive collection of all manner of documents, including, besides conveyances, bills and answers in Chancery, letters of safe conduct, and letters of testimony. With some eloquence and some truth the author sets forth the need which existed in his own day for such collections. "Every person that can wryte and reade and entendeth to have any thynge to do among the common 'walee must of very needle, for his owne advantage, applie his mind somewhat unto this kynde of learning. It shewith the makyng of those thynges, wheyeupon dependeth the welth and lyvynge of men, without which things there can no tytle lawfullye be claymed, no landes nor houses purchased, no right recovered agaynste false usuerers, no sufficient testimonye of the actes of our antecedours, finally no man can be sure of his owne livelod without helpe of evidence which, as a trusty anker, holdeth the right of every man's possessions safely and surely agaynst al troubles and stormye tempestes of injuries, not of men only, but of time also the consumer of al."1

Anonymous books of a like character, sometimes merely copies of 'Phyare with a few additions, appeared throughout the sixteenth century.2 A very much more elaborate work was William West's Symboleography. The first edition, published in 1590, was a collection of precedents of contracts, decds, and other instruments, more extensive in character but similar in kind to the collections already in print.3 But it differed from these collections in the fact that it gave 'Information as to the principles of law applicable to these instruments, and in its method of arrangement. It was divided into four books. The first book contains a short statement of legal principles; 4 the 'Preface.'

Footnote 2: The 'Lisou - and fourme of Indentures, Obligations, Quitances, Bylles of Paymente, Letters of Saue and Letters of Exchange, Protections, Supplications, Complaynotes, A Certificate, and the Copy of save Condite " (about 1591)--a little tract of 29 precedents and xxxi ff,; at f, xxiv b there is a curious precedent of a bill of complaint to the chief justice and the chief baron and the king's judges as to a riotous assault; and there is a partnership deed in which the marriage of either of the partners is to give an option to determine the contract; another example is, "A Boke of Presidentes exactedy written in manner of a register newly imprinted, augmented and corrected with addicions of diverse necessary and sundry Presidentes meete for all such persons to know as desire to learn the fourme and manner how to make all manner of evidentes and instrumentes," Tottel r561; it probably first appeared in r548, as it contains an almanack for 17 years beginning with that date; it is a larger book than the first named, and, like it, contains precedents for bills and answers in Chancery; the "Addicions " are added at the end; it is really Phayre up to date; both the arrangement of the precedents, and the notes show that it is a copy.

3 Its full title is, " Symboleographia which may be termed the Art, Description, or Image of Instruments, Covenants, Contracts, or the Notary or Scrivener, collected and disposed by William West of the Inner Temple Gentleman, Atturney at the Common law, in fewer several bookes;" for a short account of it see Davidson, Precedents in Co:weyancing (3rd ed.) ro-lt.

4 Wood, Civil Law (3rd.) 1730) 86 says that he got his dissertation on contracts and obligations from Hermanns Vultejus, whose work he translated and epitomized.

### 390 Law in Xvith and Xvitii Cents.

second and the longest, a collection of many different kinds of instruments in a sort of alphabetical order ; the third, testamentary documents, presentations, and documents connected with arbitrations ; and the fourth, documents relating to copyholds $r$. The second edition, published in two parts in 1594, was much enlarged ; and it was successful, as another edition was called for in 1597. The first part contains the introduction wholly re-written, and the subject matter of the three books of the first edition, except the sections dealing with arbitrations. The second part deals with judicial or semi-judicial precedents--arbitrations, fines, recoveries, indictments, and precedents connected with the equitable jurisdiction, together with a short account of that jurisdiction.1 In 1615 precedents connected with merchants' affairs were added to the first part; and in 1618 precedents of pleadings in the Exchequer, and the courts of Star Chamber and Wards and Liveries, were added to the second part.2

Footnote 1: Above 273-274; in 1597 the order was slightly changed--fines and recoveries were put first, and arbitrations were put after indictments ; last came the chapter on equity ; otherwise the book was substantially reprinted.

Footnote 2: The order of 1597 was retained, but in all cases, except in that of recoveries, the number of precedents is slightly enlarged.

It is only the first part of the book which contains conveyancing precedents ; and these are still mixed up with other miscellaneous documents. Thus in the 1615 edition there is inserted a precedent of the "covenants of marriage of a king," many miscellaneous precedents of recognizances,4 grants of incorporation of towns,5 and many miscellaneous warrants.6 But the separation which West made between the two parts of his book shows that the need for some kind of classification was beginning to be felt. A book published in 1650, and entitled, " the Perfect Conveyancer," brings us a step nearer to a collection of purely conveyancing precedents.7 In the first part there are a few miscellaneous documents;8 but that part is mainly, and the second part is wholly, concerned with the forms of conveyances and contracts.

Footnote 5: SS 83.

Footnote 6: SS 850-581.

Footnote 7: SS 4: The Perfect Conveyancer, or several select and choice Presidentes collected by four severall sages of the law, Edward Henden late one of the Barons of the Exchequer, William Noy Attourney General to his late Majestic, Robert Mason sometime Recorder of London, Henry Fleetwood formerly Reader of Grays Inn."

Footnote 8: SS 850-581.

The growth in size and elaboration of these books of precedents shows that the law of conveyancing was becoming a very difficult art. Besides these collections of precedents, a book was wanted to teach the practitioner how to use them.9 This want was

## Literature of the Common Law 391

supplied by " The Touchstone of Common Assurances." It was published in 1641, and contains twenty-four chapters. The following passage from Shepherd's Preface very fairly describes its character : " I have herein set forth, under certain general titles or common places, the greatest parts of the judgments, statutes, resolutions, and cases that do contain or concern the learning of the Common Assurances of the Kingdom ; so as I think I may truly say . .

### 892 Law in Xvith and Xvith Cents.

hand evidence that Shepherd, having purchased Dodderidge's library, acquired the MS. of this treatise which he published as his own.1 If this is true, Shepherd's sharp practice has had some measure of success. It has connected his name with a book which is not only the earliest work exclusively devoted to the theory of conveyancing, but also a work which is still regarded as a high authority upon this subject.

Footnote 1: See the Preface to the fourth edition; Booth (the author of the book on Real Actions) says that Shepherd purchased Dodderidge's library, and that among his books was the MS. of this treatise which Shepherd published as his own ; Booth got this information from Pigott, who got it from Levine, who had seen the MS, in Dodderidge's possession; Preston in his edition of the Touchstone accepts this evidence as conclusive; R. W. Bridgman, i.egal Bibliography 344, disputes this theory on the ground that, though Dodderidge died in r628, the year Co. Litt. was published, there are many references to that work; but it is possible that Dodderidge saw Coke's work in MS. and that Shepherd inserted the references.

- _Bowks concerning criminal law and the law of tori._

The books which deal with the jurisdiction of the justices of the peace necessarily contained much information upon criminal law and procedure;2 and the section of the second part of West's book,3 which deals with precedents of indictments and other instruments connected with the administration of the criminal law, contains by way of introduction a short description of the law substantive and adjective.4 In addition there are two books exclusively devoted to this subject. Staunford (1509-1558), who was made judge of the common pleas in 1554, wrote a book on the pleas of the crown. which was posthumously published in i560.6 He was a learned lawyer; and is said to have edited the earliest printed edition of Glanvil.5 He certainly makes much use of Bracton's work, which had not then been printed.7 His treatise is divided into three books. The first deals with various offences ; the second with jurisdiction, appeals, indictments, and defences ; and the third with mehods of trial, and the consequences of conviction. It is founded almost entirely upon Bracton and the Year Books. A more comprehensive and up to date book was the "De Pace Regis et Regni" of Ferdinando Pulton,9 which was published in 1609.9 It is at times discursive--thus in the chapter

## Literature of the Common Law 993

on oppression he gives a long account of the law of waste.1 But it is comprehensive and well arranged. A comparison between its forty-one chapters and Stauford's work enables us to appreciate the effect of the additions to and alterations of the criminal law made during this period, both by the legislature, and by the judges of the common law courts and of the court of Star Chamber.

Footnote 1: Op. cit. 94b-97b.

There is only one book written during this period which is exclusively devoted to the law of tort. That is John March's little book on actions for slander, published in 1647.2 Actions for slander had long figured prominently in the reports; and this book is an able attempt to extract some general principles from the cases. As is to be expected at a period when a comparatively new legal topic is only just beginning to acquire a separate form, the writer sometimes diverges to other subjects. Thus he discusses the question when a man's suit will expose him to an action; and in that connection he has something to say about malicious prosecution. We must wait some time for more books on special branches of the law of tort, or on the law of tort as a whole. As yet the practitioner or student gathered his information by searching the reports, abridgments, or indices under such entries as Detinue, Trespass, Deceit, or Case. This branch of the law is as yet very much implicated in the forms of action.

Footnote 2: " Actions for Slander. A Methodical Collection under certain grounds and heads of what words are actionable in the law and what not."

Footnote 3: Vol. ii 506-507.

(iv) _The lectures of Readers, textbooks, students' books, and law dictionaries._

During this period the lectures of the Readers of the Inns of Court 8 on many different branches of the law, old and new, still formed an important part of the education of the law student. Of their merits it is difficult to judge. Comparatively few out of the many that exist in MS. have as yet found their way into print; and it is probable that many of these were never regularly reduced to writing by their\*authors.4 But we shall see that there was probably some deterioration in their quality at the latter part of this period,6 and a tendency to replace them by the study

### Law in Xvith and Xvith Cents.

of the many short books upon various legal topics which were then beginning to appear.

It seems to have been usual--certainly from the sixteenth century onwards--that the readings should be on some selected, statutte or part of a statute.1 Roger North 3 assumts that this was so, and laments the decay of readings, mainly because lawyers and litigants were thus deprived of an authoritative interpretation of new statutes. But it was not an invariable rule that the readings should be on statutes--instances to the contrary are Calthorpe's reading on Copyholds, and Dodderidge's Reading on Advowsons.

Footnote 1: Vol. ii 506 and n. 6.

Footnote 2: Lives of the Norths, i 98, 99--'' It was the design of these readers to explain to the students the constructions that were to be made upon new statutes, for clearing a way that counsel might advise safely upon them. And the method of their reading was to raise all imaginable scruples upon the design, penning, and sense of such new Acts as they chose out to read upon, and then to give a careful resolution of them. ... But now there is scarce a lawyer so hardy to advise a client to try a point upon a new statute whereof the event is at the peril of costs, and sometimes ruin of a poor man that pays for the experiment. ... Probably a single judge at the assizes would not have opposed his sentiment against the learned determination of a reader so solemnly and publicly held forth (as at these exercises in the inns of court is done), which counsel at the bar in nice questions at law are allowed to appeal to for authority."

Footnote 3: App. II.

Footnote 4: '' A compact Parson, or a description of Advowsons or church livings ... delivered at several readings at New Inne 1602, 1603, and now published for the common good.''

Footnote 5: '' The Relation between the lord of a manor and the copyholders his tenants, delivered in the learned readings of Charles Calthorpe.'' Works (Ed. Spedding) vii 39I-450; it was a double reading delivered in the Lent Vacation 1600; an edition with elaborate comments was published by Rowe in 1804.

Footnote 6: '' This Reading deals with points in the criminal law; the title-page reads c. 16, but the first page reads c. 17, which is obviously right.

A list of such of the Readings as are known to exist in print or MS., taken from Part II. of Brooke's Bibliotheca Legum Angliae, will be found in the Appendix.**3** Here I shall simply enumerate in the order of their publication one or two of the printed readings which I have seen.

Footnote 3: In a paper in the State Paper Office, probably of the year 1579, printed in Inner Temple Records i 470-473, a description is given of the Readers and Chief Barriers of the Inns of Court; Brograve is described as, 'very lerped, pore, smaly practised, worthie of great practice."

In 1630, some readings by Dodderidge on advowsons, delivered at New Inn, were published under the title of " A compact Parson;" and in 1635 a reading by Calthorpe on the relation between the lord of the manor and his copyholders." In 1642 appeared a fragment of Bacon's famous reading on the statute of Uses;" in 1647 Brooke's readings on Henry VIII;'s statutte of limitations, and on c. 17 of Magna Carta;' in 1648 the readings of Dyer on Henry VIII;'s statuttes of walls, of Brograve 8 on the

## Literature of the Common Law 895

clauses of the statute of Uses relating to jointures, and of Risden on Henry VI.'s statute of forcible entries; 1 in 1656 the reading of Stone on Elizabeth's statute of bankrupts; 2 in 1662 the reading of Denshall on Henry VII.'s statute of Fines; 3 in 1676 the reading of Francis Moore on Charitable uses; 4 in 1680 a reading by Thomas Williams on the statute 35 Henry VIII. c. 6 dealing with certain points connected with trials by jury,5 and a reading by Risden on the statute of 21 Henry VIII. c. 19 dealing with avowries; 6 and in 1681 a reading of Sir Robert Holbourne on Edward III.'s statute of treasons,7 In 1791 there was published, in the Collectanea Juridica, a reading by Serjeant Carthew at New Inn in 1692 on two points arising on the statute of Uses.8

Some of these readings consist simply of the statute, and of certain conclusions as to the effect of the statute, which were no doubt debated by the Reader and his auditors." Some, for instance Calthorpe's and Moore's readings, give a clear and sensible summary of the subject chosen. But many of these printed versions look as if they came from short notes taken by listeners, not always very intelligently.10 It would be unjust to their authors if we were to suppose that the printed version contains all that they said, or that they always made the statements attributed to them. It is very rare to find any authorities cited, or any sort of discussion of legal principles. The only reading which is really illuminating is Baconi's infinished reading on the statute of Uses. His wide intellectual outlook and gift of style,

### Law in Xvith and Xvitih Cents.

united to his complete mastery of the technical rules of the common law, gave him the power to state and explain and criticise its rules in a manner comprehensible to a student and illuminating to a lawyer. We have already seen how great a, light it sheds, not only on the statute, but also on the history of Uses.1 Here we may note that in it he rejected the " conceit of scintilla juris "2--it was only natural that he should be opposed to a doctrine of this kind, which savoured of the scholasticism which he had spent his philosophical career in combating." This one reading gives him a place beside those few great teachers who have appeared at infrequent intervals in the history of English law--beside men like Blackstone and Maitland.

Footnote 1: Vol. iv 4 no seqq.

The growth, at the latter part of this period, of short textbooks upon many various legal topics, is striking. The earliest of these textbooks--Littl'eton's Tenures 4--was also a student's book ; and most of the textbooks of this period were written as much for students as for practitioners. But, towards the end of this period, we get a distinction between the textbooks on specific legal topics, and books of Institutes which were designed to give information upon the underlying principles of the law as a whole, and a short view of its most important rules.

During the sixteenth century the textbooks follow very closely the precedent set by Littleton. A book published in r542 by Rychard Bankes, and entitled in the first edition, "The principal laws and statutes r. England," 5 and in the later editions, "Institutions or principally groundes of the laws and statutes of England," 6 is concerned almost entirely with the land law ; and we have seen that the same topic fills much the largest part of Perkins' Profitable book.7 It is not till the following century that we get books written on other legal topics. In 1632 we have a curious work in five books on Women's Laws.8 The first

## Literature of the Common Law 397

book, after some introductory matter, deals mainly with wardship and copercenary ; the second with marriage curtesy and dower ; the third with the law as to the relations, personal and proprietary,

- between husband and wife ; the fourth with the rights of widows ; and the fifth with the manner in which a woman was protected by the criminal law. We have seen that in 1647 John March published a useful little book on actions for slander,1 which reached a second edition in 1674.2 In 1651 William Shepherd published a short book on common law procedure, and a still shorter account of the cases in which equitable relief might be obtained.3 In 1655 he published a short book on conveyancing,4 which was the most successful of his books. Perhaps this was due to the fact that he had the Touchstone to draw upon.5 However that may be, in spite of many rivals in this period and the next,6 it held its ground, and editions of it were published as late as 1822 and 1825.

Footnote 1: Above 393: 2 Term Catalogues i 165.

Footnote 3: 4 The Faithful Councilor, or the Marrow of the law in English : the rst part showing how actions may be laid for relief in most cases of wrongs done : the and part in what cases relief is to be had in Chancery ;\* a good deal of law is grouped round the forms of action, epecially the actions on the case.

Footnote 4: 4 The President of Presidentes: an abstract of the general learning and forms of Presidents relating to all manner of Presidents now in use."

Footnote 5: See Davidson, Precedents in Conveyancing (3rd ed.) i1.

Footnote \*: The Exact Clerk (1656); a book by Herne (1658), said to have come from the MS. of an eminent conveyamer, also contains directions how to sue out and prosecute writs ; a tract on particular estates by Dodderidge, and Observations concerning a deed of foeffment by Gent, both published with Noy's maxims, below 399, in 1642; for books of the following period see vol. vi c. 8.

Footnote 7: * The English lawyer, describing a method for the managing of the laves of this land, and expressing the best qualities requisite in the student, practizer, judges, and fathers of the same;" a book called " the Lawyers Light--a due direction for the study of the law " (16529), is simply the second part of the " English Lawyer " (there entitled methodus studendi) printed separately; it was bound up with another short tract for students called " Use of the Law," attributed (probably falsely) to Bacon, see Bacon's Works (Spedding's \_a.d.) vi 453-457.

Footnote 8: * The profession of our law hatt now and formerly had great numbers of students that have had as long and as ample institution in those sciences called liberal as any of them," at p. 33.

Footnote 9: At p. 35.

Footnote 10: * The English lawyer, describing a method for the managing of the laves of this land, and expressing the best qualities requisite in the student, practizer, judges, and fathers of the same;" a book called " the Lawyers Light--a due direction for the study of the law " (16529), is simply the second part of the " English Lawyer " (there entitled methodus studendi) printed separately; it was bound up with another short tract for students called " Use of the Law," attributed (probably falsely) to Bacon, see Bacon's Works (Spedding's \_a.d.) vi 453-457.

Footnote 11: The English lawyer, describing a method for the managing of the laves of this land, and expressing the best qualities requisite in the student, practizer, judges, and fathers of the same;" a book called " the Lawyers Light--a due direction for the study of the law " (16529), is simply the second part of the " English Lawyer " (there entitled methodus studendi) printed separately; it was bound up with another short tract for students called " Use of the Law," attributed (probably falsely) to Bacon, see Bacon's Works (Spedding's \_a.d.) vi 453-457.

Footnote 12: * At p. 35.

Footnote 13: * The English Lawyer, describing a method for the managing of the laves of this land, and expressing the best qualities requisite in the student, practizer, judges, and fathers of the same;" a book called " the Lawyers Light--a due direction for the study of the law " (16529), is simply the second part of the " English Lawyer " (there entitled methodus studendi) printed separately; it was bound up with another short tract for students called " Use of the Law," attributed (probably falsely) to Bacon, see Bacon's Works (Spedding's \_a.d.) vi 453-457.

Footnote 14: * The English Lawyer, describing a method for the managing of the laves of this land, and expressing the best qualities requisite in the student, practizer, judges, and fathers of the same;" a book called " the Lawyers Light--a due direction for the study of the law " (16529), is simply the second part of the " English Lawyer " (there entitled methodus studendi) printed separately; it was bound up with another short tract for students called " Use of the Law," attributed (probably falsely) to Bacon, see Bacon's Works (Spedding's \_a.d.) vi 453-457.

Footnote 15: * The profession of our law hatt now and formerly had great numbers of students that have had as long and as ample institution

### 898 I.aw in Xvith and Xvith Cents.

some advice as to the best methods of study, and some information as to the sources and principles of the law.1 There was a good deal in the book which was perhaps regarded as too general to be of much service to the student, who in that age, as in this, has usually a pretty shrewd, if somewhat shortsighted idea as to the sort of information which will pay; and the more practical part, on the sources and principles of the law, was quite as well if not better done in books of a new type suggested by Bacon.

Footnote 1: Note at p. 21 a defence of case law. # Below 488.

We shall see that Bacon put forward a scheme for the restatement of English law; and that, as part of the scheme, there was to be written a book "De regulis Juris," in which the leading maxims of the law were to be set out, with explanations and illustrations.2 Bacon's tract on the "Maxims of the law," written in 1596, is a fragment of such a work.3 It contains a good deal of law in the form of a commentary upon twenty-five maxims illustrated by cases and statutes.4 No doubt the information conveyed is scattered; but the whole work is a good exercise, both in reducing various different rules to some sort of principle, and in ascertaining the limits of the principles themselves.6 Bacon meant this work to be distinct from the book of Institutes which hc proposed; 6 and, indeed, it is not well suited to any but the advanced students or the practitioners for whom it was intended.7 But the writers of students' books of this period seem

## Literature of the Common Law 399

to have thought that information of this kind would make a good introduction to an Institutional book. It influenced Dodderidge's book which has just been discussed ; and **Noy**'s little tract on the "Principall Grounds and Maximes of the Lawes of the King-dome." 1 More especially it influenced what was much the most complete and the best institutional book before Blackstone--Henry Finch's " Nomotechnia," or description of the common law of England.2 It was first published in law French in 1613; it was translated and rearranged by the author, and published posthumously in 1627 ; and other editions were called for in 1636, 1678, and 1759.3

Footnote 1: The last edition is by Danby Pickering.

Finch, like Bacon, recognized the need for a book of Institutes, and appreciated the principles upon which it ought to be written. He saw that the little books, which followed T.ittleton and the **Natura** Breviun, and merely gave information about the land law and writs, would no longer suffice. " He that will take the whole body of the law before him, and go really and judicially to work, must not lay the foundation of his building in estates, tenures, the gist of writs and such like, but on those current and sound principles which our books are full of." Both in the French and the English version the treatise is divided into four books ; and the subject matter of the first book is the same ; but the arrangement of the other three books is very different in these two versions. The English version is the product of second thoughts, and a great improvement upon the **Frecipei** ; and, as it is obviously the version which has influenced subsequent writers, it is the one which I shall describe.4

Footnote 1: The last edition is by Danby Pickering.

Footnote 4: In the French edition the law as to criminal and civil wrongs is inserted before the law as to property ; the law of actions forms the third book and is differently arranged, dealing with writs, pleading, trial by jury, dcmurrer, process, execution, pleas of the crown, common pleas, the various forms of action, writs of error, local courts and officials, the justices in eye and of over and terminer, arbitration ; the fourth book deals with bodies of law outside the common law, i.e. the law administered in the court of the Constable and Marshall, the Admiralty, and the ecclesiastic courts ; these bodies of law are discussed mainly in their relations to the common law.

In the first book, after a few remarks about the law of nature

### Law in Xvith and Xvith Cents.

and the law of reason, he deals with "rules taken from other learnings"--from religion, grammar, logic, natural philosophy, politics, and morality. He then deals with the principles of legal construction which are either natural or feigned. Finally he deals with the positive laws made by the state by the light of the laws of nature or reason. The second book begins by explaining what is the common law, and of what it consists. It explains how the country is divided, and the different kinds of persons natural and artificial which make up the state. In this connection he gives by far the best description of the king and his prerogative which had yet been written--a description upon which Blackstone's better known account is based. He then passes to the substantive law which he says consists of two main divisions--"one that concerneth possessions, the other the punishment of offences." First of all the methods of acquiring possessions are detailed, and the distinction between things in possession and in action is explained. In this, as in other parts of the book, he describes separately the common law, the statutes, and the exceptional rules which applied to the king by virtue of his prerogative. He then passes on to hereditaments, and describes the different kinds of estates known to the law. After dealing with land and tenements, he passes on to incororeal things such as drowsons, seignories, rents, commons, villeins, annuities, corrodies, offices, and franchises. He then defines chattels in general, and deals with the law of wills $\\cdot$nd executors and administrators. After distinguishing chattels real from chattels personal, he discusses the modes by which the latter are acquired; and in that connection deals with bailment and contracts. He closes the book with a short account of accord and arbitrament. The third book is taken up with an account of different forms of wrong doing, civ'l and criminal. It is the shortest of the four. The fourth and longest book is taken up with the law of actions. He deals with the courts, their times of sitting, their officers, and their records; with original writs and the various forms of action; with commissions, plaints, bills, inquests of office for the king, and indictments; with process and pleading and joinder of issue; with trial by jury, by battle, by witnesses, and by compurgation; with demurrers; with other incidents of a law suit such as appearance, mesne process, continuance, judgments, writs to execute judgment, writs of error and false judgment; and finally with certain other writs having no relation to an action.

Finch's book is a pioneer book of the institutes of English law. It is well arranged, and tersely and clearly written. It has influenced all succeeding books of a similar sort; for, as the summary which I have just given shows, it influenced the formLiterature of the Common 1.aw 401 and arrangement of Blackstone's Commentaries ; and, through Blackstone's Commentaries, the form and arrangement of the chief institutional book of English law at the present day. But it never attained the fame or the influence of its successor ; and this I think as due to the following causes : In the first place the author, though a man of some literary gifts and equipment, was pre-eminently a practising common lawyer. In his introduction he follows the plan of illustrating the principles of English law by instances of so technical a character, that only an advanced student could understand them. In the second place his outlook is towards the past rather than towards the future. He gives a very large space to the land law and the real actions, a very small place to those developments of trespass which were creating a law of contract and a law of tort, and no place at all to commercial law which, when he was writing, was rapidly becoming a new department of the common law.1 It followed therefore that the changes of the latter part of the century made some parts of his book useless and other parts inadequate. In the third place it deals only with the common law. The references to equitable rules are of the slightest ; and in the following period, when the system of equity began to expand, this caused his book to be a very one-sided view of the English legal system. No doubt some of these defects were inevitable. It was an age of great and rapid change ; and such an age is not so favourable to the composition of a book of Institutes, as the calm atmosphere of the age in which Blackstone wrote. The result is that, partly from its own character, partly from the character of the age, the book has influenced, not so much the students and the lawyers of the age for which it was written, as the succeeding writers of s'milar books. Though its direct influence is incomparably less than Blackstone's Commentaries, its indirect influence has, through Blackstone, been very considerable.

Footnote 1: Above 13-148

The last of the books which I must notice under this head are two law dictionaries, the one written by a common lawyer, and the other by Spelman, the historian and antiquary. The first of these is the "Exposiciones Terminorum Legum Anglorum " published by John Rastell in 1527. It is a short book, but it was very successful. It was translated by the author's son William ; and editions under the short title of "Termes de la Ley " were published in 1567, 1579, 1592, 1595, 1602, 1641, and 1667.2 But by 1667 it had been superseded by similar works of a more elaborate kind. I have already dealt with the

### Law 'in Xvith and Xvith Cents.

Interpreter of the civilian Cowell. The Interpreter was a much more elaborate work than Rastell's, and we have seen that it long continued to be the standard Law Dictionary.1 But, for the study of legal and other kinds of history, it was superseded by Spelman's Glossary,2 which he undertook by way of preparation for a work on the origins of English law. The first part was published in 1626, and the second (posthumously) in 1664. It is a great deal more than a law dictionary, being a dictionary of Latin and other words to be found in all the post-classical authors and documents English and foreign. On the other hand, it did not contain some of the technical terms and phrases which an English lawyer would naturally expect to find.3 In fact it is a product of that new school of historians and historically minded lawyers of which I must now speak.

Footnote 1: Above 22.

Footnote 2: "Glossarium Archaiologicum continens Latino-Barbara, pregrina, obsoleta et novatae significicius vocabula; que post labelfactatas a Gothis Vandalisque res Europeas, in Lecleisasticis profanisque Scriptoribus; variarum item Gentium legibus antioius, Chartis, et Formulis occurrant. Scholiis et Commentarius illustrati; in quibus prisci Ritus quamplurimi magistratus, dignitates, munera, officia, mores, leges ipase, et consquetdines enarrantur."

Footnote 3: For the later work by Blount see vol. vi c, 8,

Footnote 4: The Laws of the Anglo-Saxton, Collected Works iii 453:

Footnote 5: Forster, Life of Sir John Eliot i 241-242; for instance D'Ewes, Autobiography (Ed. Halliwell) ii 38, says-"I borrowed many precious manuscripts of him, being chiefly led, out of a virtuous emulation of him at the first, to the study of records, and to the treasure and storing up of ancient coins, and elder or later manuscripts or autographs, as well as original letters of state, as old deeds art writings."

(v) _Books upon constitutional law and legal history._

"The first half of the seventeenth century," said Maitland, "' may be regarded as the heroic age of English legal scholarship."4 The literary Renaissance of the Elizabeth age had touched the studies of law and history, and many scholars were working with the enthusiasm of explorers to put them upon a new basis. We can see the central figures of this revival in the band of poets, historians, and lawyers who formed the Antiquarian Society. Among them were to be found such men as Camden, Clarendon, Bacon, Selden, Spelman, D'Ewes, Eliot, and many others whose names are well known in law, politics, and literature; and the greatest antiquary and collector of books and manuscripts of the period--Sir Robert Cotton. The achievements of all the distinguished literary men of this period in all departments of learning owed much to Cotton's advice, personal assistance, and generous loans of books and manuscripts.5 But it is probable that the work done in the departments of English law and history owes most to him; for it was the records collected in his famous library that facilitated the formation of this new school of lawyers and historians. And in the seventeenth cen

## Literature of the Common' Law 403

tury much depended upon the labours of this school. " Great questions were opening, and on all sides an appeal was being made to ancient law and ancient history."1 With the help of Cotton, some of these men forged the weapons with which the battle of the constitution was won, created our modern methods and standards of historical research, and, by raising the intellectual level of the legal profession, helped the common law to assert and to maintain its supremacy in the state. Of the work which they did in the department of constitutional law I shall speak later.2 Here I can only describe briefly the literary work and influence of one or two of the most famous of these historically minded lawyers.

Footnote 1: Maitland, Collected Works iii 453.

Of William Lambard and his work upon different branches of constitutional law I have already spoken.3 I must here mention the contribution which he made to legal history by his edition of the Anglo-Saxon Laws. Considering that he was "a pionecr in an unknown land,"4 his work was, in Dr. Liebermann's opinion, good. At a time when so much was thought to turn upon the character of our early laws and institutions, it was obviously desirable that men should have access to a printed copy of the earliest laws. Another pioneer in this new field of learning was Sommer (1598-1669),5 an ecclesiastical lawyer and the son of an ecclesiastical lawyer. He at first helped his father, who was registrar to the court of Canterbury, and was created by Laud registrar of the ecclesiastical courts of the $\\mathsf{Hc}\_{#}$ diveces. $\\mathsf{Hc}$ was an enthusiastic loyalist; and, after the Restoration, became Master of St. John's hospital at Canterbury. His work was done in the allied departments of Anglo-Saxon language and literature, and the antiquities of our legal history. In the first of these departments he wrote some observations on the Laws of Henry I., translated (but did not publish) Lambard's Latin text of the Anglo-Saxon Laws, and translated Anglo-Saxon documents for Dugdale's Monasticon, besides giving other assistance in the preparation of that work.6 His most important work was his Saxon-Latin-English Dictionary,7 to help in the publication of which John Spelman gave him the income of the Anglo-Saxon lectureship, which his father Henry Spelman had founded at Cambridge. In the second of these departments his most important

### Iaw in Xvith and Xvith Cents

work was his Treatise of Gavelkind.1 Lambard had printed and translated a version of the Kentish customs in his Perambulation of Kent; and had given a short account of some of the points mentioned in the custumal.2 Somner's aim was to give a fuller account of the origins both of the name and the thang. I'e did not intend it to be a law book, but rather a help to the proper understanding of the law on this topic.3 In one place he goes beyond the limitations of his subject, and gives an interesting historical disquisition,on an important point in the history of the law of succession to chattels.4

Footnote 1: "A Treatise of Gavelkind. Both the name and thing. Showing the true Etymologie and Derivation of the one, the nature, antiquity, and original of the other. With sundry emergent Observations, both pleasant and profitable to be known of Kentish men and others, especially such as are studious either of the ancient Custome or the Common Law of this Kingdom. Py (a well wisher to both) William Sommer; " for gavekkind generally see vol. iii 259-263.

Footnote 2: Robinson, Gavelkind Prc. to first Ed.; and see Elton's F.d., (r897) 222-229.

Footnote 3: "I may perchance (at first sight, at least) be thought too bold with the Common lawyers, too busie in their Commonwealth, too much medding in matter of their peculiar science; yet no otherwise I hope that they and their friends may be willing to excuse me, . my intent being only to do them service, and their profession right, by holding forth to publicive view some Antiquities tending at once to the satisfaction of the one and illustration of the other; " and cp, his concluding remarks in which he says his intention was to " handle the subject chiefly in the historical part," and to discover its beginnings, and " not to thrust his sickle into the harvest of the common lawyer."

Footnote 4: Vol. iii 553 n. 6.

Footnote 5: "Dict. Nat. Biog.

Footnote 6: "Above 402.

Footnote 7: "Above 1g-20.

Footnote 8: "The Autobiography of Sir Simonds D'Ewens, edited by Halliwell.

Spelman (15647-1641),5 though a student of Lincoln's Inn, was never a professional lawyer. His chief work was done in the sphere of ecclesiasticl history; but, both his Glossary and his tract on tenures by knight service are books of first-rate importance in our legal history. The first was, as we have seen,6 the earliest dictionary of early legal and historical terms constructed upon sound principles, and both helped Wright and Blackstone to give an orderly exposition of the rules of the land law.7 Like Lumbard and Somner, he was an Anglo-Saxon scholar, and, as we have seen, founded a shortlived Anglo-Saxon lectureship at Cambridge,8 the revenues of which were ultimately devoted to assisting Sommer to complete his Anglo-Saxon Dictionary.

Footnote 5: "The Autobiography of Sir Simonds D'Ewens, edited by Halliwell.

D'Ewens, whose autobiography,9 with its sometimes malicious comments on his contemporaries,10 gives so valuable a picture of the life of a law student and man of letters of that day, deserves to be counted among the distinguished members of this school. He began, he tells us, to consult records in order to get light on points of law; but soon came to value them as aids to historical

## Literature of the Common I.aw 405

study.1 He was free of Cotton's library and borrowed his books and pamphlets. He tells us how he transcribed the Mirror,2 Fleta3 and the Leges Henrici Primi,4 and fills pages with the antiquarian researches which he made into the origins of his own and his wife's family. At one time he had planned to write a history of England from original sources; and he planned and partially executed an Anglo-Saxon dictionary.5 But, as Jessopp rightly says, he had little constructive ability. He was a copyist and a collector rather than an author.6 Tilough a Puritan and a convinced believer in constitutional government,7 he was naturally timid; and, during the period of prerogative rule, was careful not to bring himself in conflict with the authorities--abandoning London and his beloved records rather than risk the consequences of disobeying a royal proclamation.8 The book which has made his name famous is his Journals of the Elizabethan Parliaments, which is still of primary importance for the constitutional history of the Tudor period.

Footnote 1: "I at first read records only to find out the matter of law contained in them; but afterwards perceiving other excellences might be observed from them, both historical and national, I always continued the study of them after I had left the Middle Temple and given over the study of the common law itself," op. cit. i 235.

Footnote 2: Ibid 255.

Footnote 3: Ibid 294-295.

Footnote 4: Ibid 274.

Footnote 5: See Autobiography ii 132 seqq, for his comments on $\\mathfrak{slip}$ money; 104-ro5 for his sympathy with Prehne.

Footnote 6: Ibid ii 78 so.

Footnote 8: For his career, see Sir Charles Firth's article in Dict. Nat. Biog., and Documents relating to the Proceedings against William Prynne (C.S.).

I.ambard, Sommer, Spelman, and D'Ewes were essentially students and scholars. Prynne was also a student and a scholar, and in addition a controversial gladiator.9 Mutilated and imprisoned by the Star Chamber for his attacks on the king, queen and bishops in the days of Charles I.'s attempt to govern by the precrogative; a distinguished member of the Long Parliament, and a prime mover in the impeachment of I.aud; an opponent alike of the claims of the Independents and Presbyterians to be supreme in the state; an opponent of the army and its dealings with the king, and imprisoned for three years without trial by the Commonwealth government; after Cromwell's death, at length successful in asserting his right to sit in Parliament; an active supporter of the Restoration of Charles II., and of all attempts to restrict the Act of Indemnity; reprimanded by the Speaker for his pamphlet in favour of toleration to the Protestant nonconformists; a recognized authority upon constitutional law and Parliamentary procedure; and, after the Restoration, keeper of the records in the Tower--he had a career which would have left ordinary men little time for serious literary work. And yet

### Law in Xvith and Xvith Cents.

he was always writing. We may adopt a phrase which Bagehot applied to Brougham, and say that, " for many years he rushed among the details of his age and wrote as he ran." It is reckoned that the number of his books and pamphlets exceed two hundred. Most of them are fugitive controversial pieces. But there are many serious books on all sorts of subjects, religious and political ; and during his tenure of office as keeper of the records, he published valuable works, illustrated by records up to that time unfprinted. Among them we may note his Register of Parliamentary writs, an Abridgment of the records in the Tower of London said to have been collected by Cotton,1 and the Animadversions on Coke's Fourth Institute. But, before he became keeper of the records, and indeed throughout his life, he was a conscientious seeker after truth. He always honestly tried to base his historical work on the best evidence. This is clear from such works as the " Demurrer to the Jews' long-discontinued Remitters into England," and his " Plea for the House of Lords." Sir Charles Firth says,2 " In point of style Pryne's historical works possess no merits ... the arrangement ... is equally careless. Yet, in spite of these deficiencies, the amount of historical material they contain, and the number of records printed for the first time in his pages, give his historical writings a lasting value." His views on legal education were sound and sensible--he entered a powerful protest against the decay, after the Restoration, of the old system;3 and he was keenly alive to the deficiencies of the common law. We have seen that he urged upon the common lawyers the need to study the continental literature of commercial law, if they were to make the best use of the opportunity which their victory over the court of Admiralty had given to them;4 and he had visions of making, and inducing Parliament to enact, a revised edition of the statute law.5

Footnote 1: But the better opinion is that the collection was made by William and Robert Bowyer, see Dict. Nat. Biog. _Cotton_ p. 313.

Footnote 2: Dict. Nat. Biog. ; apparently his contemporaries formed a somewhat similar opinion ; Pepys, Diary (Ed. Wheatley) v 352, relates how Francis Finch " told me Mr. Prin's character; that he is a man of mighty labour and reading and memory, but the worst judge of matters, or layer together of what he hath read in the world; "--" which," adds Pepys, " I do not believe him in."

Footnote 3: Vol. vi c, 8.

Footnote 4: Above r47.

Footnote 5: Pepys, Diary (Ed. Wheatley) v 279 -- he " did discourse with me a good while ... about the laws of England, telling me the many faults in them; and among others, their obscurity through multitude of long statutes, which he is about to abstract out of all of a sort; and as he lives, and Parliaments come, get them put into laws, and the other statutes repealed, and then it will be a short work to know the law, which appears a very noble good thing."

Footnote 6: Letters from the Bodleian Library ii 508, cited Dict. Nat. Biog. 436.

Aubrey gives us a quaint description of the manner in which this astonishing literary output was produced.7Literature of the Common1 Law 407 of study was thus : he wore a long quilt cap, which came two or three inches at least over his eyes, which served him as an umbrella to defend his eyes from the light ; about every three hours his man was to bring him a roll and a pot of ale to re-focellate his Wasted spirits ; so he studied and drank and munched some bread ; and this maintained him till night, and then he made a good supper." It would seem that even if he went out to dinner his mind was chiefly occupied with his literary work.1 There were giants of industry in those days. " Prynne, munching his crust of bread as with burning zeal he deciphered decaying documents in the filth and stench of the White Tower, is an heroic figure."2

Footnote 1: Pepys met him at dinner, and sat next him--he " in discourse with me fell upon what records he hath of the lust and wicked lives of nuns heretofore in England, and he showed r.e out of his pocket one, etc.," Diary (_l.d._ Wheatley) ii 244- 2 Maitland, Collected Papers iii 454 ; see vol. ii 600 for: Prynne's description of the state of the records.

But of this school of historians and lawyers the chief ornament, by the consent both of contemporaries and of posterity, is John Selden3--in Milton's words, " the chief of learned men reputed in this land."4 I shall, in the first place, sketch briefly the main facts of his life and enumerate the most important of his works. In the second place, I shall attempt to give some account of the man himself and of the characteristics of those of his works which bear upon the history of English law.

Footnote 3: Fry's article u Dict. Nat. Biog. ; life prefixed to Wilkins' Ed. of his works ; G. W. Johnson, Memoirs of Selden ; two articles by Professor Hazeltine on Selden as a Leg-1 Historian, H.L.R. xxiv tos, 205.

Footnote 4: Milton, Aeropage3ica.

(i) Selden was born in 1584. He was educated at Hart Hall, Oxford, and the Inner Temple, and became a bencher of that Society in 1633. From the first his tastes were historical and literary rather than strictly legal. In 1610, while still a student, he published three historical tracts on English History. He was fined in 1624 for refusing to act as Reader ; and he never attempted to gain a large practice in the courts. What practice he had was probably of the consultative and conveyancing sort. He appeared in court chiefly in cases of constitutional importance, in which great historical learning was needed. From the first he joined the constitutional party--"_repk rauros rypk eav@epiaw_" is the motto $\\bullet$ which he wrote in all his books. In 1621 he incurred the displeasure of the king by helping the Commons in connection with their famous protestation. In 1623 he entered Parliament as member for Lancaster. In 1626 he sat in Charles I.'s second Parliament, and took an active part in the impeachment of Buckingham. In 1627 he argued for

### 408 Ilaw in Xvith and Xvith Cents.

Edmund Hampden, who had been committed to prison by the Council for a refusal to lend money to the king. He took an active part in the Parliament which passed the Petition of Right, and on its dissolution was one of the members committed to prison. He was liberated in 1631, and, after the publication of his Mare Clausum, enjoyed some royal favour. But neither persecution nor favour made any difference to his political views. He sat as member for Oxford University in the Long Parliament, and showed himself $\\varepsilon$ moderate member of the constitutional party. He was opposed, for instance, to the attainder of Strafford; and, at one time, the king thought of making him lord chancellor. When the split came, he adhered to the Parliament, though he had condemned the Parliamentary ordinance as to the militia. As we might expect, he took no very leading part in public affairs during the civil war, and ceased to have anything to do with them after 1649. During all these years, and till his death in 1654, he devoted the main part of his time to his literary works. The liberality of the earl and countess of Kent made this possible. He was steward of their manors, and spent his vacations at their country residence. After the death of the earl he continued to be on intimate terms with the countess --some said he was married to her. At any rate he lived during the latter part of his life in her town house in White Friars, and she left him much property when she died in 1651. He survived her only tkee years.

The extent and variety of Selden's literary output astonished his own contemporaries and astonishes us. It comprises, besides his Mare Clausum,1 works on English history political and constitutional, works on ecclesiastical history, works upon classical and oriental subjects, and works on legal history. His works of English History political and constitutional comprise the "Jani Facies Altera," and "England's Epinomis," both dealing with early British, Saxon, and Norse customs; the " Duello or Single Combat;" the great work on "Titles of Honour;" the edition of six books of Eadmer; the edition of and critical preface to the Decem Historiae Anglicanax Scriptores. His great work on ecclesiastical history is the "History of Tithes," which raised a storm, because the obvious inference from the book was that titles were due, not by divine, but by merely human law. He was summoned before the court of High Commission and forced to make some sort of submission. He also wrote three short tracts on matters theological, which were the outcome of discussions which he had had with James I. on his History of Tithes. His classical and oriental works are his book on the Arundell Marbles,

## Literature of the Common I.aw 409

many large works on points of Hebrew law,1 and an edition of part of the history of Eutychius. His works on legal history comprise the Dissertatio ad Fletam ; the notes upon Fortescue's De Laudibus, and upon Hengham's Magna and Parva ; a short tract on the Office of Lord Chancellor ; a tract on the privileges of the Baronage, written by order of the House of Lords ; a tract on legal Judicature in Parliament ; and two tracts on the origins of the law as to 'robate, and as to the Administration of and intestine succession to chattels.2 Besides.these, there are a few other miscellaneous works on literary topics ;3 and a book which is very important as throwing a light upon the man himself--his Table Talk as reported by Richard Milward.1

Footnote 1: De Dits Syriis ; De Successionibus in bona defunctorum ad leges Ebracorum ; De Succession in Pontificatum Ebraeorum ; De Jure Naturali et Gentium juxta ; disciplinna Ebraeorum ; De Anno civili et Calendario Veterans Ecclesiae seu Rei-publice Judiace ; Uxor Tebriaca seu de Nuptis et Divortiis Veterans Ebraeorum ; Die Synodriis Vetetrum Ebraeorum.

Footnote 2: The original of the Ecclesiastical Jurisdiction of Testaments ; Of the disposition or administration of intestine goods.

Footnote 3: The Notes to Drayton's Polyolbion ; a treatise on the Jews in England ; a carmen protrapticon to Ben Jonson's Volpone.

(ii) In the Table Talk we see a man with a clear critical intellect, who has a keen eye for the weaknesses of all parties and all creeds. He can give at royalist and Parliamental alike, for their arbitrary acts and their love of place and power.5 He can mock both at Episcopalian and Presbyterian for the fuss they made over the distinctive points of their several creeds--the mere "trimmings " of religion.6 He is a true Erastian--"whether is the church or the scripture judge of religion? In truth neither, but the state ;" ? and therefore a man of the world with a shrewd eye to practical consequences. " There was never a merry world since the fairies left dancing, and the parson left conjuring. The opinion of the latter kept the thieves in ave, and did as much good in a country as a justice of peace"'s "I'will be a great discouragement to scholars, that bishops should be put down. For now the father can say to the son, and the tutor to the pupil,

### Law in Xvith and Xvith Cents.

Study hard, and you shall have _vocem et sedem in parliamentary_; then it must be, Study hard, and you shall have an $\\chi$100 a year if you please your parish."1 He had a hatred of all sorts of mysticism--" they talk (but blasphemously enough) that the Holy. Ghost is president of their General Councils; when the truth is, the odd man is still the Holy Ghost;"2 but he was no believer in morality without religion.3 He had an equal hatred of all kinds of arbitrary power, and was keenly conscious of the absurdity of the then existing restrictions on the freedom of the press.4 He had a true appreciation of the truth that genius is largely the capacity for taking infinite pains,5 a true sense of the importance of first hand evidence.6 In the troubled times in which his later years were passed he was fully conscious of the uselessness of the interference of a mere seeker after truth--" In troubled water you can scarce see your face . so in troubled times you can see little truth;"7 " the wisest way for man in these times is to say nothing."8 He was equally conscious of the consolations of literature--" Patience is the chiefest fruit of study. A man . by much reading, gains this chiefest good, that in all fortunes he hath something to entertain and comfort himself withal."9 Such a man was likely to be a pleasant companion to those whose tastes were similar. By nature he was hospitable and social; and he could talk well and clearly on all subjects.10 His active life in Parliament and the courts saved him from pedantry; and so, though, " he was of so stupendous learning in all kinds . that a man would have thought he had been entirely conversant amongst books .; yet his humanity courtesy and affiability was such that he would have been thought to have been bred in the best courts, but that his good nature, charity and delight . .

Footnote 10: His style in all his writings seems harsh and sometimes ox secure . but in his conversation he was the most clear discourser, and had the best faculty of making hard things easy, and presenting them to the understanding, of any-man that hath been known," Clarendon's Life (ed. 1843) 923.

Footnote 9

## Literature of the Common Law 411

in doing good, and in communicating all he knew, exceeded that breeding."1

Footnote 1: The word $\\mu$ is the number of words in the alphabet ${1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,19,18,19

### Law in Xvith and Xvitii Cents.

could fully appreciate the spirit of those English rules and institutions which were similar to those of other countries, and at the same time, give due weight to those peculiarities, which, because they were peculiarities, were vitally important for the understanding of large differences in the ultimate development of our national law and our national life.

Selden's literary style is often harsh and cumbrous, and his method of arrangement faulty. He was so learned that his learning suggested digressions, which are apt to confuse the reader ;1 and for this reason he has never been a popular writer. This defect appears chiefly in his larger works. He appears at his best in some of the shorter works which he wrote upon English legal history. But this defect has had no appreciable effect upon real students, either of his own day or in the succeeding ages. He and his contemporaries founded, as Professor Hazeltine has said, "a school of English legal history, and upon their labours all subsequent centuries have built. Clear discement of the value of legal historical studies and effective work in the sources themselves, so characteristic of the antiquaries of three hundred years ago, formed a scholarly tradition that has lasted from that day to this."2 In the last century, it is true, law and history had tended to fall somewhat apart, to the mutual disadvantage of both. It is one of Maitland's chief titles to fame that he renewed that alliance between the history of English law and the general history of England and of other countries, which the lawyers and historians of this period had formed. Maitland, by precept and example, showed again what they had proved before, that history can humanize law and that law can correct history--that together they can accomplish much that neither can accomplish alone. We may hope and expect that this' alliance, thus renewed, will never again be dissolved. At least we can say that so long as the Society, rightly called by Selden's name, exists, there is a sufficient surety that the mutual obligations of the compact will be carried out.

But it is time to turn again to the sixteenth and seventeenth centuries, and examine briefly the effects of all this professional and literary activity upon the development of the common law.

_The Condition of the Common Law_

As a settled system the common law was much older than any of the supplementary and rival bodies of law which had sprung up during this period. This gave it certain advantages and exposed it to certain disadvantages as compared with its rivals.

## 6 Condition of the Common I.aw 413

The advantages which it possessed were mainly three in number. Firstly, it was a very much fuller body of law. This is shown by the vastly greater bulk of its literature as compared with the literature of the civil law, the law merchant, the law administered by the court of Star Chamber, and the law administered by the court of Chancery. Secondly, it possessed a system of legal education and professional training which was as excellent as it was unique. We have seen that, in consequence, the men thus educated and trained were the best fitted to act as practitioners and judges in many of the rival courts and councils of this period; and that their influence helped to introduce and to maintain in those tribunals the ideas and principles of the common law.1 Thirdly, the result of this training was to establish a high standard of professional honour, which made the common law courts relatively pure tribunals. There were far fewer scandals connected with them than with the newer courts, which were more closely connected with the Court and the corrupt influences of the Court.

Footnote 1: Vol. iv 2722. 2: Ihid 535-536.

But the common law naturally suffered from the defects of some of these qualities. Firstly, it was incumbered with large masses of learning which were rapidly becoming obsolete. The management and elucidation of the technical details of the real actions still occupied a large space in the reports; and the incidents and consequences of tenure gave rise to much litigation. Such matters as appeals of colony, compirgation, and even trial by battle, occasionally emerge. Secondly, as a result of the strictly professional training of its members, it continued to be a very technical system. The maintenance of its technical rules, and the adherence to strict standards of logical reasoning, were objects which were still pursued at the expense of considerations of justice and convenience. We can see this phenomenon in all branches of the common law; and naturally it is most in evidence in the older branches of that law. Thus the rules of process and pleading, in spite of the reforms made by the statutes of Jeofail,2 continued to be productive of much injustice; and to make the result of a law suit dependent, more upon the skill and accuracy of the attorney, pleader, and other officers of the law, than upon the merits of the case. For instance, in 1619, there was a case as to a right to titles in which, after four arguments at the bar, the plaintiff got judgment; but, three years later, this judgment was reversed on account of a purely technical error in the entry of the judgment.3 Similarly, in 1621, an executor lost his action because,

### Law in Xvith and Xvith Cents.

by mistake, the Christian name of the testator was inserted in the declaration instead of the Christian name of the plaintiff.1 The rules of criminal procedure, which were not helped by the statutes of Jegofail,3 were even more strict.3 The technical rules of the medieval land law upon such topics as disseisin, discontinuances, releases,4 and fines 5 still gave rise to much abstruse argument at the bar and on the bench ; and the rigid technicality with which the land law was administered gave rise in this period to many fixed rules of construction, which, even at the present day, may occasionally prevent the wishes of the parties from having their intended effect.6 Thirdly, the length of time taken to decide cases, in which any important question of law was in issue, was sometimes enormous. In Plowden's reports we read of one case which was pending for three," and another which was pending for nine years ; 8 and in Coke's reports, of one case that was argued more than seven,9 and another that was argued twenty-one times.10

Footnote 10: Butler and Baker's Case (1597) 3 Co. Rep. at p. 35b,

Footnote 11: Vol. iv c. 2. Above 140-148.

These were undoubted defects which were, to a large extent, due to the same causes which gave to the common law many advantages over its rivals. But the common law was not wholly untouched by the spirit of the Renaissance. We have seen that the activity of the legislature introduced many new topics into the common law.11 At the same time their jeolusy of the rival courts, which were encroaching upon its sphere, made the common lawyers ready to modify, explain, and restate old branches of law, and to develop new branches of law, in such a way that they could be made to serve the needs of the new age. We have seen that the history of the law merchant,12 and of the literature of the common law,13 show that the efforts of the common lawyers in these directions were not wholly unsuccessful. We shall see in the Second Part of this Book what were the results of these efforts upon particular branches of the law. Here I can plaintiff; but in Michaelmas term rg Jac. i a writ of error was brought in the Exchequer Chamber, and the judgment reversed, not for the matter of law, but because the judgment was entered that the defendant should be _in misericordia_ for the lamb, for the conversion of which the jury had found him not guilty."

Footnote 1: John Thomas v. Willoughby (1621) Cro. Jac. 587.

Footnote 1: See the King v. Sherington Talbot (1634) Cro. Car. at p. 312.

Footnote 13: See e.g. the King v. Sorel (1614) Cro. Jac. 324 ; Sir Henry Ferrer's Case (1635) Cro. Car. 371.

Footnote 14: Vol. ii 588.

Footnote 15: Vol. iii. 236-245.

Footnote 16: Wild's Case (1599) 6 Co. Rep. f6b ; cp. Dyer 3549; Pells v. Brown (1621) Cro. Jac. 590; Browne v. Jerves (1612) Cro. Jac. 290.

Footnote 17: Ratcliff's Case (1564) Plowden at p. 268.

Footnote 18: Sir Henry Nevilli's Case (1570) Plowden at p. 38.

Footnote 19: Mary Portington's Case (1614) 10 Co. Rep. at p. 37a.

Footnote 20: Butler and Baker's Case (1597) 3 Co. Rep. at p. 35b.

Footnote 21: Vol. iv c. 2. Above 140-148.

Footnote 22: Showe 140-148.

Footnote 23: Showe 378-412.

**CONDITION OF THE COMMON LAW 415**

only summarize shortly the chief directions in which, during this period, the modern common law was being developed.

In all the leading reports of this period we get, in the arguments of counsel and in the reasons given by the judges, summaries and restatements of many branches of the medieval common law. We shall see that Coke's reports are especially remarkable for this feature.1 But it is present in many of the other sets of reports. Thus (to take one or two out of many illustrations) in Dyer's reports we get discussions of the sphere of the actions of debt and account,2 and of the rules as to the demurrer of the parol when an infant is the plaintiff.3 In Plowden's reports we get a good historical account of the statute De Donis and the writs of formedon,4 as to the rules relating to forfeiture for felony,5 as to the levying of fines,6 as to the law of inheritance.7 In Croke's reports we get discussions as to the effect of letters of naturalization or denization on the capacity to inherit English land,8 as to the position of a mortgagor in possession,9 as to discontinuance and disseisin.10

Footnote 1: See Smith's Leading Cases (ed. x896) if r26-127, note to Clayton v. Blakey; as is there pointed out--. It was better for the lessor himself. since a late tenant at will entitled to emblements would have had the whole profits of the land, from the determination of the will till the harvesting of the crops, without paying any rent for it, whereas the tenant from year to year pays rent until the day on which he quits the premises.9

Footnote 1: Below 464-465. ${}^{2}$ Core's Case (1535) Dyer 20a.

Footnote 2: **Basset's Case (1557) Dyer 136a.**

Footnote 3: **Willion v. Berkeley (1567) Plowden at p. 235.**

Footnote 4: **Hales v. Petit (r567) Plowden 253.**

Footnote 5: **Glowel v. Lord Zouch (1563) Plowden 355.**

Footnote 7: **Clere v. Brook (1573) Plowden 442.**

Footnote 8: **Godfrey v. Dixon (1620) Cro. Jac. 539.**

Footnote 9: **Powsey v. Blackman (1623) Cro. Jac. 659.**

Footnote 10: **Stone v. Newman (1636) Cro. Car. 427.**

Footnote 11: **Y.B. r3 Hy. VIII. Trin. pl. r per Willoughby.**

Footnote 12: \*\*See Smith's Leading Cases (ed. x896) if r26-127, note to Clayton v. Blakey; as is there pointed out--. It was better for the lessor himself. since a late tenant at will entitled to emblements would have had the whole profits of the land, from the determination of the will till the harvesting of the crops, without paying any rent for it, whereas the tenant from year to year pays rent until the day on which he quits the premises.9Law in Xvith and Xvith Cents.

the new powers over their land which the statutes of Uses and Wills had given to them. New doctrines were being added to the land law, new forms of conveysuncing were arising, and fixed rules of construction were being laid down for the interpretation of these new instruments. The efforts of the courts to prevent these new powers of landowners from being so used as to fetter freedom of disposition, were creating the beginnings of the modern rules against remoteness of limitation.1 The protection given to copyholders had, as we have seen,2 brought the legal incidents of these tenants under the survey of the common law, and was giving rise to a number of rules as to the reasonableness of copyhold customs, and as to their interpretation.3

Footnote 1: Pt. II. c. SS 6. ${}^{\\circ}$Vol. iii 208-213.

Footnote 2: See e.g. Parton v. Mason (1561) Dyer 199b; Underhill v. Kersey (1610) Cro. Jac. 226; Lutterel v. Weston (1613) Cro. Jac. 308; Rowden v. Marsden (1627) Cro. Car. 42.

Footnote 3: Above 392-393. ${}^{\\circ}$Vol. iv 165-179.

Footnote 4: Plowden 97-101. ${}^{\\circ}$Pt. II. c. SS 7. ${}^{\\circ}$Vol. iii 287-293. ${}^{\\circ}$Vol. iv 496-498.

Footnote 5: Vol. iii 375-377.

Footnote 6: Vol. iii 375-377.

Footnote 7: Southcote's Case (1601) 4 Co. Rep. 83_b\_--at p. 8$a$ _Coke_ is clear that an ordinary factor or servant is only liable for negligence; the Countess of Shrewsbury's Case (1601) 5 Co. Rep. at p. 144--liability for negligence when goods are trusted to another is discussed; cp. Bayly v. Merrel (1616) Cro. Jac. 387, ${}^{\\circ}$There it was ruled that the familiar's gross negligence in not ascertaining the true facts was an answer to an action for agonist.

The department of criminal law was recently represented in the Year Books. But in many of the reports and books of the period upon the pleas of the crown,4 or the justices of the peace,5 there are discussions on many points of criminal law and procedure. Thus in Plowden's reports there is, "A report of certain points which were ruled and holden at the Sessions held at the town of Salop on Monday the Ninth day of July in the First Year of the Reign of our Sovercign Lady Queen Mary ";6 and in many other reports more attention is paid to points of criminal law than in the preceding period. We shall see that, by the end of this period, the growth of the modern law of constructive treason 7 had very fully supplemented both the defects of Edward III.'s statute,8 and the extensions of that statute made from time to time by the legislature.9

Footnote 4: So, iii 375-377.

Footnote 5: So, iii 375-377.

Footnote 6: Vol. iii 375-377.

Footnote 7: Southcote's Case (1601) 4 Co. Rep. 83_b\_--at p. 8$a$ _Coke_ is clear that an ordinary factor or servant is only liable for negligence; the Countess of Shrewsbury's Case (1601) 5 Co. Rep. at p. 144--liability for negligence when goods are trusted to another is discussed; cp. Bayly v. Merrel (1616) Cro. Jac. 387, ${}^{\\circ}$There it was ruled that the familiar's gross negligence in not ascertaining the true facts was an answer to an action for agonist.

The department of tort was being rapidly developed by the growing use of actions on the case. Thus we can see the beginnings of the idea that in certain sorts of cases liability should be based, not merely upon an act forbidden by law which has damaged the plaintiff,10 but upon an act done negligently by the defendant.11 Similarly we can see that the nature of liability founded upon deceit was emerging. One or two cases show us that the courts were beginning to think about abandoning the

## 6 Condition of the Common Law 417

view that it was impossible to base civil liability upon intention to deceive, because it was impossible to try the thought of a man,1 As yet, however, there was no change in the principle upon which a master was made liable for the torts of his servant. The test of liability was still the command of the master to do the tort complained of.2 Particular torts also were beginning to emerge with some distinctness. Thus the conditions under which actions for slander, malicious prosecution, or conspiracy lay, were being gradually elucidated, and were giving rise to rules of substantive law as to the nature of these torts.3 Similarly the working of the actions of Detinue, Trover, and Trespass was giving rise to more definite rules of law as to the rights of the owners or possessors of chattels.4 The medieval rules, also, as to the modes in which chattels could be transferred were restated in some of the cases of this period.5 It is clear from these and other cases that a law of personal property was being gradually disengaged from the law of tort; and this development was assisted by two related causes--(i) the growth of the law of contract, and (ii) the growth of the commercial jurisdiction of the common law courts.

Footnote 1: We get the old idea in a statement of Whiddon _arg._, Plowden 46--"Covin is a r secret thing contained in the heart of a man which by intendment another person can have no knowledge of "; cp. vol. iv 48r-48z ; in Chandelor v. Lopus (1603) Cro. Jac. 4 the argument of the plaintiff in error admits that, if an affirmation were made with knowledge of its falsity, deceit would lie; this ground of action was further discussed in Southern v. How (1678) Cro. Jac. 468-47t; in Furnis v. Leicester (1619) Cro. Jac. 474, it is laid down that " the sale of goods which were not his own, but a/fimming them to be his goods, knowing them to be a stranger's, is the offence and cause of the action "; see 1Pt. I. c. 5 SS6.

Footnote 2: The Lady Russell's Case (1603) Cro. Jac. at p. 16; vol. iii 382-385.

Footnote 3: Pt. II. c SS8 z and 2.

Footnote 4: Ibid c. z SS8 z and 2.

Footnote 5: Vol. iii 353-359; in Hawes v. Leader (1617) Cro. Jac. 270 there is a grant of goods by decd, and a " gift of possession of them by a pewter dish "; in Rose v. Bartlett (1632) Cro. Car. 292 there is a grant by decd, and a " gift of a horse in the name of setism of the goods."

Footnote 6: \*\* In contracts it is not material which of the parties speak the words, if the other agrees to them, for t'.e agreement of the minds of the parties is the only thing the law respects in contracts," Browning v. Beston, Plowden at p. 140 per Catline Serjeant _arg_.

7 Pt, II. c. 3 SS r.

8 Bridge v. Cage (1605) Cro. Jac. ro3; Mackallen v. Todderick (1634) Cro. Car. 337.

9 Hunt v. Bette (1568) Dyer 272a; Sidenham and Worlington's case (1585)

1 Leo 224: Lampleja v. Brathwait (1676) Hub. 106.

### Law in Xvith and Xvith Cents.

were so vague as to be illusory.1 Similarly it was beginning to have some clear ideas as to the conditions under which an executory contract could be revoked.2 A decision of 1629 shows that an action on the case was being applied to recover money paid under a mistake of fact.3 Later it was held that assumpsit lay in such a case--a new application of the action which will, in the future, help to give rise to the modern law of quasi contract.4

Footnote 1: Tolson v. Clark (1636) Cro. Car. 438, overruling Cooks v. Douze (r632) ibid 241.

Footnote 2: Hufford v. Pile (1679) Cro. Jac. 483; Treswaller v. Keyne (1622) Cro. Jac. 620.

Footnote 3: Cavendish v. Middleton, Cro. Car. 141.

Footnote 4: Pt. II. c. 3 SS 3.

Footnote 5: Ibd SS 2.

Footnote 6: Lee v. Atkinson and Brooks (1670) Cro. Jac. 236.

Footnote 7: It. II. c. 4 I. SS 5.

Footnote 8: Hackwell and wife v. Eastman (1679) Cro. Jac. 410.

Footnote 9: Broad v. Jollyfye (1621) Cro. Jac. 596.

Footnote 10: The king v. Twing and others (1608) Cro. Jac. 179, r80.

Footnote 11: Pt. II. c. 2 SS 3, and, c. 4 I. SS 2.

Footnote 12: Ketsey's Case (1674) Cro. Jac. 320.

Footnote 13: Whittingham v. Hill (1619) Cro. Jac. 494--" An infant shall not be bound by his margin for anything but for his necessity, viz. diet and apparel, or necessary learning; but his buying to maintain his trade, although he gaik/thereby his living, shall not bind him, nor his covenant to bind himself apprentice, unless it be by special custom "; cp. Gylbert v. Fletcher (1630) Cro. Car. 179.

(ii) The growing jurisdiction of the common law over commercial cases was felt in two directions. Firstly, it was giving rise to a certain amount of law as to particular contracts. Thus cases as to sales,6 hire,6 agency,7 and partnership8 came before the courts during this period; and in a case of 1620 we get the beginnings of the modern law as to contracts in restraint of trade.9 Secondly, it was familiarizing the common law with the notion of a chose in action. The common law still maintained that choses in action were, as a rule, unassignable; 10 but we shall see that the introduction of negotiable instruments into the law was beginning to make a large exception to that rule.11

Footnote 13: Ive v. Chester (1620) Cro. Jac. 560.

In the law of persons the proprietary, contractual, and delictual capacity of infants and married women was being elucidated. We have seen that the main principles of this branch of the law had been established in the medieval period.12 The reported cases of this period rendered these principles more precise in their application. In particular it was made quite clear that an infant's contracts were as a general rule voidable,13 but that his contract for necessaries was valid; 14 and the fact that the goods were necessaries must be alleged and proved by the plaintiff,16 Similarly the medieval principles as to the position at common law of executors and administrators were further developed.16 As we have seen, their liability to be su

**CONDITION OF THE COMMON LAW 419**

action of assumpsit was finally ascertained during this period ; \[1\] and, after some doubts, it was settled that they could be sued by this action upon a promise to do an act as well as upon a debt. \[2\] These decisions practically settled the sphere within which the maxim _acho personalis moritur cum persona_\[3\] is applicable in our modern common law.

We have already seen that the leading principles of the law of pleading were settled in the medieval period ; \[4\] but that the rules themselves were not so detailed or perhaps so rigid as they afterwards became. \[5\] We shall see that the growth in the detail and rigidity of these rules was due largely to the rise of written pleadings. \[6\] A very large number of cases decided in this period turned upon the form and the effect of these written pleadings ; and in this way the detailed modern rules of pleading were constructed upon the principles of the medieval period. No doubt these rules often assisted to defeat the claims of substantial justice. \[7\] But they compelled lawyers to attain a very high standard both of verbal and of logical accuracy. And, in an age when legal doctrine was being rapidly developed, this was a gain of immense value ; for, by ensuring that that development took place upon the lines marked out by the principles underlying the forms of actions, it preserved the continuity of the development of common law doctrine.

We shall see that these developments in the law of pleading were partly the cause and partly the effect of an important change in the law of evidence. \[8\] By the end of this period the facts in issue were generally proved by witnesses. With their appearance we get the beginnings of the modern law of parol evidence. The judges were beginning to recognize that there were some things of which they would take judicial notice ; and that this judicial knowledge was something different from the private knowledge of the judge. \[9\] They were beginning to recognize the need for expert evidence on some points, \[10\] to discountenance hearsay

### 420 Law in Xvith and Xvith Cents.

evidence,1 and to excuse a witness from answering questions which might incriminate him.\* They were coming to have some very precise rules as to the evidence necessary to support a writ of attain. The attaint jury might only consider the evidence which was before the original jury, but the original jury might produce new evidence in support of their verdict.3

Footnote 1: In Browning v. Beston (1554) Plowden at p. 143, Bromley C.J. said, with reference to a point of pleading--1: It is not a precise allegation . that the said Browning did covenant or grant that if the rent was in arrest the lease should be void, but it is an affirmation that the indenture says so. . Such allegation is but the report of the saying of another, viz. that the indenture says so. And it might justly be said to him, * You say that the indenture says so, but what say you ? "

Footnote 2: Dighton and Holt's Case (1616) Cro. Jac. 388,

Footnote 3: Rolfe v. Hampden (1541) Dyer 53b.

Footnote 4: Richard Bourn's Case (1620) Cro. Jac. 543 ; for the prerogative writs see vol. i 226-231; Jenks, Yale Law Journal xxi 533.

Throughout this period the common law courts maintained a control over the local authorities concurrent with that exercised by the Council and Star Chamber. The prerogative writs, it was solemmly ruled in 1620, ran to all parts of the king's dominions, whether or no they were subject to a franchise jurisdiction.4 By means of these writs, by writs of error, by actions for trespass, or by informations, the doings of the justices of the peace,6 of the borough Courts,6 of courts leet,7 and of parishes 8 were frequently controlled ; and rules were laid down for the guidance of these authorities on points of law and procedure. Similarly the validity of by-laws of cities,9 and even of manors 10 could be questioned by the like methods.

Footnote 6: Nichols v. Walker and Carter (1631) Cro. Car. 394--action of trespass to question the legality of a rate made by a parish ; cp. Jeffrey's Case (1590) 5 Co. Rep., 66b.

Footnote 4: The Chamberlain of London's Case (1590) 5 Co. Rep. 62b--validity of a by-aw of the city of London ; Clark's Case (1596) 5 Co. Rep. 64a. 10

Footnote 10: James v. Tutney (1639) Cro. Car. 497--a by-law as to use of commons.

From this summary it is evident that the common law was full of vigorous life. But, though its existence was never in serious danger during this period, its supremacy was in some danger ; and that danger did not pass till the period of the Long Parlia

## 6 Condition of the Common Law 421 ment

The reasons for holding this view I have already in part explained.\[2\] But here I would draw attention to another set of reasons, arising, partly from the mental outlook of the common lawyers, partly from the relations of the common law courts to the crown$\\bullet$and partly from the dominant tendencies of European political thought in the latter part of the sixteenth and earlier part of the seventeenth centuries.

The principles of the common law were still very medieval in their substance. The medieval authorities, which were always appealed to upon all questions of public law,\[3\] constantly reminded the common lawyers of the mediaeval ideas as to the supremacy of law in the state. But we have seen that, all over Europe, political thought was tending to substitute for the supremacy of law the sovereignty of some person or body of persons.\[4\] England was not unaffected by these ideas even in the Tudor period.\[5\] But in the Tudor period the latent antagonism between the mediaeval and the modern theories was never allowed to develop. The Tudors never, if they could help it, allowed cases in the common law courts to raise political questions or to rouse political passions.\[6\] Thus questions as to the political theory sanctioned by the common law, were left in that state of semi-obscurity in which so many political questions were left by the Tudors. But we shall see that the first Stuart very definitely held the political theory which had become dominant on the Continent; and that he used the whole weight of the strong executive created by the Tudors to maintain it.\[7\] Now it is obvious that no warrant could be found for such a political theory in the common law. It was therefore difficult for any learned common lawyer to see eye to eye with a king who maintained it. On the other hand, we have seen that the king had many ways of influencing the judges of the common law courts.\[8\] There was therefore every inducement to the common lawyers to go with him as far as possible along the road which he desired them to take. The result was that the political theories at the back of the minds of the judges set to decide points of public law were vague and confused, because they themselves halted between two very different sets of opinions. Some of them honestly thought that it was both desirable and possible to deduce from their obscure mediaeval authorities a body of law which would more or less conform to the new political theories. To others it appeared neither d'sirable nor possible. Thus from the commonLaw in X-Vith and X-Vith Cents.

law courts it was not possible to get decisions that were wholly satisfactory to either of the contending parties which divided the state.1

Footnote 1: Below 435-436'; vol. vi c. 6.

On the other hand, the newer courts and councils, which depended upon the prerogative, could carry out in a whle-hearted way the consequences of the new political theories. It was inevitable therefore that the king should wish, when possible, to bring cases of political interest before them. It was not of course possible to do so in many of the great leading cases of the earlier part of the seventeenth century; and we have seen that the expedient was resorted to of filling the bench with judges whose political views could be depended upon.2 The result was that the uncertainty of the political theories sanctioned by common law became more marked than ever. Cases were decided which seemed to give the king powers which would make it possible for him to realize his views as to the sovereignty of the king in the state.3 And, if the law laid down in these cases had been accepted, it cannot be doubted that the common law would have lost its position of supremacy in the state, and have become at most primus inter pares. It is clear, for instance, that a good deal of the public law of the state, both civil and criminal, would have been administered by the Council, Star Chamber, and subordinate branches of the Council;4 and it is very doubtful if the common law courts would have gained their exclusive control over commercial law.5

Footnote 2: Thus in Lord Say's Case (r639) Cro, Car. 524 the court, refused, after the decision in the case of Ship money, to listen to an argument against the legality of the tax.

Footnote 3: Vol. i 552-554; 555-556;' above 152-153.

The common law, then, at the beginning of the seventeenth century, suffered from the serious defect of being politically weak in an age of keen political controversy. This was due, as we have seen, to the fact that the common lawyers as a whole had no very clear or consistent view as to the bearings upon the political controversies of the day, of the legal principles contained in the common law. This defect might have had very serious consequences, since, if it had not been removed, it might have made the common law unsatisfactory both to the king and to the parliamentary opposition. But, fortunately for the common law, it was removed, mainly by the literary work and the political career of Edward Coke. His literary work gave a form to its doctrines which was at once positive, intelligible, and modern. His political career gave it a political theory, by identifying its doctrines upon matters of public law with the views of the parliamentary opposition. Thus to him it is chiefly due that the

**CONDITION OF THE COMMON LAW 423**

**victory of the Parliament meant the victory of a modernized common law, competent to guide the activities of a modern state. Clearly a man whose work has had so large an effect upon the whole future course of our legal history demands and deserves a far more detailed treatment than any of his contemporaries.**

## II

Edwari) Coke, and tile Relation of tile Common Law

**to its Rivals**

\*\*We have seen that during the Tudor period the work of making England a territorial state of the modern type had been accomplished, partly by the legislature, partly by newly created or newly organized courts and councils, and partly by the common law courts. During the greater part of this period these courts and councils had worked harmoniously together. But, with the natural expansion of their respective jurisdictions, conflicts between them had become more frequent. The common law courts were in the habit of attacking rival courts which, in their opinion, had exceeded their jurisdiction. On the other hand, those who sued at common law found themselves imprisoned, and compelled to abandon their suits or even the fruits of judgments obtained ; while those who executed the process of the common law were " so terrified that "by dare not execute laws or writs."1 In the paper drawn up by Anderson C.J., in 1591, stating the law as to commitments by the Council and complaining of these attacks upon the common law,2 it is noted that, after it had been presented, " more quietness followed in the causes mentioned than before."3

Footnote 1: S.P. Dom. 1595-1597 335, cclxi 69.

Footnote 2: Vol. i 599; App. J. ; vol. vi. c. 6.

But these conflicts became more bitter when the restraining influence of Elizabeth was removed ; and, in the early years of the seventeenth century, it soon appeared that the question of the relation to one another of these various courts administering various kinds of law within the English state, urgently demanded a settlement. We shall see that this question came to be merged in that larger question as to the whereabouts of the sovereign power in the state, which underlay the various causes of conflict between the king and his Parliament. The newly created or newly organized courts and councils naturally magnified the

### Law in Xvith and Xvith Cents.

royal prerogative on which they leaned and to which they owed their authority. They therefore gravitated to the royalist view that in the last resort the prerogative was the sovereign power in the state.1 On the other hand, the common law favoured the medieval idea that in the state the law was suprema, and that' the prerogative was therefore limited by it. The common lawyers therefore gravitated to the parliamentary view that the prerogative was subject to definite legal limitations, and that ministers who disregarded those limitations were criminally or civilly responsible to the law; while the parliamentary leaders naturally held that the law to which they were responsible must be that common law, in which alone they could find legal justification for their political views.2 But the additions made by the modern cases and statutes to the medieval principles on which the common law was founded, made it often obscure and sometimes irrational. Was it capable, it might fairly be asked, of supplying the principles needed to guide the development of the public and private law of a modern state? The common lawyers maintained that their common law was all-sufficient for this purpose. Though the growth of an independent system of equity, the slow development of a reasonable system of commercial and maritime law, and the scantiness (even at the present day) of some departments of our family law, show that, to some extent, they exaggerated the capacity of their system; the history of English public law in the seventeenth century, and the growth of new branches of private law in the eighteenth and nineteenth centuries, have justified their faith. That the common law was given the chance of justifying the faith of those who believed in its capacity is largely due to the judicial, political, and literary career of Edward Coke.

Footnote 1: Thus Bacon told the king in r675 (Spedding, Lettersaand Life v 236) that the wirt _de non procedudo rage incusulito_, below 439, is a means by which cases may be drawn from the ordinary courts and sent for determination to the chancellor, who is "ever a principal counsellor and instrument of monarchy, of immediate dependence upon the king; and therefore like to be a safe and tende guardian of the legal rights"; cp. Gardiner, History of England iii 2,

Coke's career as a judge, and as a leader of the parliamentary opposition, was one of the most important factors in securing the supremacy of the common law, not only over the many rival bodies of law which had sprung up in the sixteenth century, but also over all bodies and persons in the state, save only the High Court of Parliament. His writings form the starting-point of the modern as distinct from the medieval common law, because in them medieval rules are so harmonized with the modern additions, that they fitted the common law to guide the future legal develop

## 10 Coke's Career and Character 425

ment, not only of England, but also of the many dominions which Englishmen were to found beyond the seas. Therefore if we would understand the place which the common law holds in our modern English state, and the modern history of its doctrines. We must know something of the man whose character, career, and writings have had so large an influence upon the ascertainment of its constitutional position, and upon the development of its principles.

In the first place, I shall say something of his character and career. In the second place, I shall describe his writings, and endeavour to estimate their merits and defects ; and, in conclusion, I shall attempt to summarize shortly his influence on the development of English law in the succeeding centuries.

### Coke's Career and Character

Coke's career falls into three well marked periods. The first extends to his appointment to the bench in 1606, the second to his dismissal from the bench in 1616, and the third to his death in 1634.

Coke was born on February i, 1551-1552. He was educated at Trinity College, Cambridge; and throughout his life he never ceased to be an ardent advocate of a University education,2 and an enthusiastic admirer of the excellencies of his University.3 On January 21, 1571, he became a member of Clifford's Inn, from whence in the following year (April 24, 1572) he proceeded to the Inner Temple. He was called to the bar on April 20, 1578, and soon acquired a large practice. He was fortunate in attracting the attention of Burghley, whose influence, aided by his own industry and learning, helped him to enter and to rise

### Law in Xvith and Xvith Cents.

rapidly in the service of the state. On April 2, 1586, he was made recorder of Norwich; and on October 14, 1591, recorder of London. On June 11, 1592, he became solicitor-general; on February 19, 1592-1593, speaker of the House of Commons; and from March 24, 1593-1594--June 30, 1606, the held the post of attorney-general. By the year 1601 he had become sufficiently distinguished and wealthy to entertain Elizabeth at his house at Stoke Pogis, and to present her with jewels to the value of $\\not{\\leq}$16000.1

Footnote 1: Chamberlain's Letters (Cand, Soc.) 118--"Sie made a step to Mr. Aturney's at Stoke, where she was most sumptuously entertained and presented with jewells and other gifts to the value of a thousand or twelve hundred pounds."

It was during this period that he was accumulating the material for those books which were destined to leave so deep a mark upon the common law; and it was towards its close that the first volumes of his reports were published.2 They made it clear that, in an age of learned lawyers, their author was easily pre-eminent. Nor is the cause of his pre-eminence far to seek. His vast capacity for work, his zealous and positive temperament, his narrow and powerful intellect, were devoted exclusively to the study and practice of the law.3 He was, as all great lawyers must be, a student of human nature; and he was neither devoid of social gifts,4 nor wholly unread in classical literature.6 But all his gifts and all his reading were pressed into the service of the common law. He was, it is true, keen in the pursuit of wealth and power;6 but these tastes as yet assorted well with his keenness in pursuit of legal knowledge. The time had not yet come when he was compelled to choose between his love of power and his love for the law. When it came he did not hesitate in his choice.

Footnote 2: Below 461.

Footnote 3: "_Scribe sapientiam temporte vacuitits tue_ saith Solomon. And yet he that at length by these means shall attain to be learned, when he shall leave them off quite for his gain or his ease, soon shall he lose a great part of his learning: Therefore I allow not to the student any discontinuance at all, for he shall lose more in a month than he shall recover in many," I Co. Rep. Prea--throughout his life Coke practised what he here preaches.

Footnote 4: Below 434.

Footnote 5: Below 458-459.

Footnote 6: His first wife Bridget Paston--of the family of the Paston letters--brought him $\\not{\\leq}$30,000; and he constantly added to it by the careful manner h which he invested his large professional gains, see Fuller, Worthies, Norfolk 250, cited Dict. Nat. Biog.

As solicitor and attorney-general he was an officer of state as well as a lawyer; and the fact that he had been an officer of state in the latter years of Elizabeth's reign, left a lasting impression upon his character. Hattered of Roman Catholics, reverence for the crown as the visible embodiment of the state, brutality to prisoners charged with

## 1 Coke's Career, and Character 427

characteristics common to many Englishshmen of this period ; and they were usually strongly marked in those who, by reason of their official positions in the state, knew the \_t_langers to which both queen and state were constantly exposed. But in Coke they appeared in an exaggerated form, and manifested themselves in so ferocious a treatment of the prisoners which he was called upon to prosecute, that even his contemporaries were occasionally disgusted. His conduct at Raleigh's trial is a permanent stain on his memory.1 There, is no doubt too that, at this period of his career, his zeal for queen and state led him to consent to and even to defend acts which in his later days he denounced as illegal. We have seen that his views as to the legality of torture changed, when the development of the constitutional controversies of the seventeenth century led him to deny the existence of that extraordinary discretionary power of the crown which he had once admitted.2 For the same reason he changed his views upon such topics of public law as the proper sphere of royal proclamations,3 the validity of benevolences4 and impositions,6 the legality of commitments by the Council,6 the legality of asking the judges to give extra-judicial opinions

Footnote 1: (1603) z S.T. r; see the passages at pp. 25, 26, cited by Stephen, H.C.I., i 333 n. 2; as Stephen says--4 the extreme weakness of the evidence was made up for by the rancorous ferociy of Coke, who reviled and insulted Raleigh in a manner never imitated, so far as I know, before or since in any English court of justice, except perhaps in those in which Jefferics presided "; in the course of the trial Cecil interposed to check Coke--4 Be not so impatient, good Mr. Attorney, give him leave to speak," whereupon Coke told him that he was encouraging traitors, and " sat down in a chafe and would speak no more, until the Commissioners urg:d and entreated him."

Footnote 2: Above 185 nm. 5 and ro.

Footnote 3: See his notes on the Perrogative in S.P. Dom. 1598-1601 521, cclxxvi 81--Among other things the Queen may levy rates for the repair of bridges, etc., impose restraints on the landing of goods for the better collection of the customs, and " prohibit things hurtl to the state "; cp. these views with those expressed in the Case of Proclamations (1611) 12 Co. Rep. 74; vol. iv 260-297; below 433:

4 In the case against Oliver S4, John in the Star Chamber in 1674 for refusing to contribute to, and for denying the right of the king to ask for a benevolence, Coke, though he had at first denied the 1:gality of such a request, unheld it, on the ground that there was no law to prevent the king from asking for a free gift, and that the statute r Richard III, c. 2 only applied to exactions, Spedding, Letters and Life of Bacon v 146; Gardiner, History of England ii 266; cp. 12 Co. Rep. 119, where it is said that a similar distinction was drawn by all the justices and barons; but in 1628 he denounced " all loans demanded against the will of the subject," Rushworth vol. ii Pt, I. 497;--he had come to see that all these loans and benevolences were cloaks for unparliamentary taxation.

Footnote 4: Below 450\*

### Law in Xvith and Xvith Cents.

upon pending cases.1 But though in the earlier part of his life he attributed to the crown a discretionary power which he denied in later years, at no time in his life had he ever wavered in the belief that the common law was a well nigh perfect system --the foundation upon which, not only the public/and private rights of Englishmen, but also the very being of the English state depended.2

Footnote 1: Spedding, Bacon's Letters and Life v 114-118, gives a very clear account of the evolution of Coke's ideas on this matter; he shows that in 1614 he did not object to give such opinions; that Y.B. r Hy. VII, Trin, pl. x cited by him, Third Instit. 29, was no authority for his geared proposition that " the judges ought not to deliver their opinions beforehand of any criminal case that may come before them judicially "; and that this conclusion was probably the result of his newly discovered principle that the judge ought to be coumel for the prisoner, above 192; but it would appear that an opinion in favour of this view was growing up; in the Autobiography of Bramston (C.S.) 54, the judges in 1629 refused to answer one of the king's questions as to their jurisdiction over words spoken by Sir J. Eliot in Parliament, as the matter might come before them judicially; see above 352 n. 2.

When, therefore, in 1606, he became chief justice of the Common Pleas he obtained a post which was entirely congenial to him.3 For the first time he was able to give free play to his ideas as to the position of the common law in the state. But these ideas assorted badly with the claims made by the rival courts and the rival bodies of law which were trvading upon the heels of the common law; and they assorted even more badly with the claims made by James I. to decide for himself all these conflicts of jurisdiction. According to Coke's view, the common law was the supreme law in the state, and the judges, unfettered and uncontrolled save by the law itself, were the sole exponents of this supreme law.4 According to James I.'s view the judges were, like other civil servants, the officers of the crown. The crown could therefore supersede them if necessary, and decide any matter for itself.5 The prerogative was in the last resort supreme in the state. Thus, if a conflict of jurisdiction arose, it was for the king and not for the common law courts (who were usually one of the parties to the quarrel) to settle the dispute; while, if the king's interests were affected by any pending proceeding, he claimed the right to withdraw the matterCOKE'S CAREER, AND CHARACTERY 429 from their cognizance.1 It was inevitable therefore, that Coke's tenure of the judicial office should be marked by a series of conflicts with the king, which defined the issues between them, and paved the way for his definite alliance with the parliamentary opposition.

His first conflict arose on the question of the relations between the lay and ecclesiastical jurisdictions.2 This dispute had arisen before he had been raised to the bench. In 1605 Archbishop Bancroft had complained to the Council of the manner in which the jurisdiction of the ecclesiastical courts was hampered by writs of prohibition.3 Coke signalized his accession to the bench by throwing himself eagerly into the fray in defence of the common law jurisdiction. The Archbishop's complaints were met by a series of assertions that the writs of prohibition complained of were well warranted by the law.4 In 1607 this controversy entered upon a new phase. A barrier named Fuller had applied to the King's Bench for a prohibition against the court of High Commission, and in the course of his argument he had taken occasion to attack its jurisdiction. Unfortunately for himself, he used words which laid him open to the charge of holding schismatical opinions. On this charge he was fined and imprisoned by the court of High Commission. The judges of the King's Bench, while admitting that the High Commission could punish for schism, denied that it could punish a barrister for anything said by him in his argument${}\_{\\hfil\_}$ and, in the course of their judgment, asserted in the strongest terms their power to determine the limits of the ecclesiastical jurisdiction.5

Footnote 1: See James I.'s speech in the Star Chamber in 1615, cited Spedding, Letters and Life of Bacon v 38r-384. The following sentences will make the king's position clear--" Encroach not upon the prerogative of the crown : if there fall out a question that concerns my prerogative or mystery of state, d'al not with it till you consult with the king or his Council or both ${}^{\\hfil\_}$ " all the different courts in the state must keep their own bounds--the common law courts as well as the others, " and this is a thing regal and proper to a king, to keep every court within his own bounds. As for the absolute prerogative of the crown that is no subject for the tongue of a lawyer, nor is it lawful to be disputed. It is atheism and blaspheny to dispute what God can do, good Christians content themselves with his will revealed in his word : so it is presumption and high contempt in a subject to dispute what a king can do, or say that a king cannot do this or that; but rest in that which is the king's will revealed in his law :" see also his speech in 1609, Works 5t8-5t9; these were also Bacon's views, see his letter of; advice to the king as to the cases of Pramunire in 1615, Spedding, op., cit, v 252-253.

Footnote 2: For these complaints and the replies of the judges see Second Instit. 60r-609; vol. i 595 n. r; the complaints were drawn by Cowell, for whom see above 20.

Footnote 3: Second Instit. 60r-618.

Footnote 4: Nicholas Fuker's Case 12 Co. Rep. 41--" It was resolved that when there is any question concerning what power or jurisdiction belongs to ecclesiastical judges in any particular case, the determination of this belongs to the judges of the common law, in what cases they have cognisance and in what not."

### Law in Xvith A/d Xvith Cents.

ground that the High Commission had jurisdiction over schism. But they did not abandon their claim to issue writs of prohibition. Bancroft appealed to the king, asserting that the question of the limits of the ecclesiastical jurisdiction, or indeed any other question in which there was a doubt as to the law, could be determined by the king. The judges, he said, were but delegates of the king, and he could at any time withdraw a case from their coguisance, and determine it himself. This was a view with which the king was in thorough agreement.1 But Coke, with the approach of the other judges, at once took the opportunity of denying these propositions, and of stating his views as to the supremacy of the common law, and as to rights of the judges to be the uncontrolled interpreters of this supreme law.2 "The law," he said " was the golden metwand and measure to try the causes of his subjects : and which protected his majesty in safety and peace." "The king in his own person cannot adjudge any case either criminal . or betwixt party and party." "The king cannot take any cause out of any of his courts and give judgment upon it himself." "The judgments are always given _per variant_ ; and the judges are sworn to execute justice according to the law and customs of England." It is not surprising that the king was angry. His angry reply and Coke's retort defined the real issue which underlay, not only these disputes as to jurisdiction, but also the various disputes between the king and his Parliaments. This r.eans, said the king, that I shall be under the law, which it is treason to affirm ; to which, says Coke, I replied that Bracton sainh, _goud Rex non delet esse sud homine, sed sud Deo et lege.3_ It is probable, indeed, that he did not come off

## 10 Coke's Career and Character 481

with such flying colours as his _ex posto facto_ narrative suggests.1 It seems to be certain that he was reduced to humble himself before the king,2 whose anger was only appeased by the intervention of the lord treasurer.3 However that may be, it is clear that, though the narrative contained in Coke's report may not be a true account of the actual scene, it does in effect represent truly the issue between the king and himself.

Footnote 1: E.H.R. xviii 673, 675.

Footnote 2: One account, Sir Roger Boswell's letter to Dr. Milborne ibid 669-67o, says that "' his Majestic fell into that high indignation as the like was never knowne in him, looking and speaking fiertely with bended fist, offering to strike him etc., which the Io. Cooke perceaving fell flatt on all fower," ibid 67o.

Footnote 3: Two accounts agree in this, ibid 669-67o.

Footnote 4: Sir William Chancey's Case (167o) rz Co. Rep. 82; for the true date, which is incorrectly given as 167i in this printed book see E.H.R. xviii 666.

Footnote 5: High Commission (167i) rz Co. Rep. 84; E.H.R. xviii 666.

Footnote 6: rz Co. Rep. at pp. 88-89, Coke tells us that the commission was solemnly read, and that it " contained three great skins of parchment, and contained divers points against the laws and statutes of England; and when this was read all the judges rejected that they did not sit by force of it; he refused to take the oath as commissioner; " and all the time that the long commission was in reading, the oath in taking, and the oration made, I stood, and would not sit as I was requested by the archbishop and the 'lords; and so by my example did all the rest of the justices."

Footnote 7: S.P. Dom., 167i-1678 i, lxi 99--Lake, writing to Salisbury, Feb. 167i, says--" Two prohibiting geranted by Lord Chief Justice (Coke) in two cases of the Church, show his perverse spirit, and unless he can assign good reasons for them, the king will dismiss him, and no longer be vexed with him."

Footnote 8: Vol. i 588-990.

## 11 Coke's Career and Character 481

with such flying colours as his _ex posto facto_ narrative suggests.1 It seems to be certain that he was reduced to humble himself before the king,2 whose anger was only appeased by the intervention of the lord treasurer.3 However that may be, it is clear that, though the narrative contained in Coke's report may not be a true account of the actual scene, it does in effect represent truly the issue between the king and himself.

Footnote 3: One account, Sir Roger Boswell's letter to Dr. Milborne ibid 669-67o, says that "' his Majestic fell into that high indignation as the like was never knowne in him, looking and speaking fiertely with bended fist, offering to strike him etc., which the Io. Cooke perceaving fell flatt on all fower," ibid 67o.

Footnote 3: Two accounts agree in this, ibid 669-67o.

Footnote 4: Sir William Chancey's Case (167o) rz Co. Rep. 82; for the true date, which is incorrectly given as 167i in this printed book see E.H.R. xviii 666.

Footnote 5: High Commission (167i) rz Co. Rep. 84; E.H.R. xviii 666.

Footnote 6: rz Co. Rep. at pp. 88-89, Coke tells us that the commission was solemnly read, and that it " contained three great skins of parchment, and contained divers points against the laws and statutes of England; and when this was read all the judges rejected that they did not sit by force of it; he refused to take the oath as commissioner; " and all the time that the long commission was in reading, the oath in taking, and the oration made, I stood, and would not sit as I was requested by the archbishop and the 'lords; and so by my example did all the rest of the justices."

Footnote 7: S.P. Dom., 167i-1678 i, lxi 99--Lake, writing to Salisbury, Feb. 167i, says--" Two prohibiting geranted by Lord Chief Justice (Coke) in two cases of the Church, show his perverse spirit, and unless he can assign good reasons for them, the king will dismiss him, and no longer be vexed with him."

Footnote 8: Vol. i 588-990.

## 12 Coke's Career and Character 481

with such flying colours as his _ex posto facto_ narrative suggests.1 It seems to be certain that he was reduced to humble himself before the king,2 whose anger was only appeased by the intervention of the lord treasurer.3 However that may be, it is clear that, though the narrative contained in Coke's report may not be a true account of the actual scene, it does in effect represent truly the issue between the king and himself.

Footnote 3: Two accounts agree in this, ibid 669-67o.

Footnote 4: Sir William Chancey's Case (167o) rz Co. Rep. 82; for the true date, which is incorrectly given as 167i in this printed book see E.H.R. xviii 666.

Footnote 5: High Commission (167i) rz Co. Rep. 84; E

### Law in Xvith and Xvith Cents.

strongly dissented from by James I. ; 1 and its correctness was not finally settled till after the Revolution.2 But whether or no Coke's views as to the control exercisable by the common law were correct, he both seconded and elaborated Henry VIII.'s views as to the continuity of English church history, and as to the subordination of the church to the royal supremacy from the earliest times.3 The result, therefore, of the victory of Coke's view was to fix firmly these doctrines in English law, and to add to them the doctrine-of the subordination of the church and ecclesiastical law to the common law. Historians and ecclesiastical lawyers of the latter part of the seventeenth and the eighteenth centuries elaborated the thesis of the continuity of the history of the English church, without minimizing the royal supremacy, or denying the control of the common law. But modern controversialists, while eagerly asserting to the theory of continuity, have tried to minimize the royal supremacy, and sometimes to reject the control of the law. This modern view, which represents neither the mediaval, nor the Henrician, nor the modern doctrine of the common law, is simply one of the products of the Oxford movement of the nineteenth century.

Footnote 1: In Cesar's notes touching Prohibitions cited E.H.R. xviii 669 it is said-"If these incident causes be tried at comon Lawe, no cause of titles will be held in the ecclesiastical Courtes. The Judges are like the Papistes. They alleadge scriptures and will interpret the same. The Judges alleadge statutes and reserve the exposition thereof to themselves."

Footnote 2: Vol. vi c. 6.

Footnote 3: Coudrey's Case (159x) 5 Co. Rep. r.

Though the question of the relation of the ecclesiastical law to the common law was the principal cause of quarrel, it was by no means the only cause. Attacks had been made on the. Councils of Wales and the North.4 There was some reason to suppose that the attack 'Parliament on some of the definitions in Cowell's Interpreter, as a result of which the king had been compelled to suppress the work,6 was instigated by Coke.6 In 1608 he had been concerned in giving an opinion which considerably restricted the powers which the king by his prerogative could confer upon commissions of enquiry. We have seen that the legality of the powers given to some of these commissions had been a matter of some controversy in the Tudor period.7 Coke and eight of the other judges now laid it down that, not only was it unlawful to give a commission power to hear and determine offences determinable in the ordinary courts, but that it was also unlawful to give it power only to enquire into these

## 6 Coke's Career and Character 433

offences.1 The authority of the report is doubtful, and its sense obscure,2 It would seem that it means that a commission may be given power to enquire into matters of state, even though that involves incidentally an enquiry into matters triable at common 'law ; but that the direct object of a commission must not be to enquire into any matter so triable.3 The law on this point was doubtful ; the mediaval precedents spoke, as usual, with an uncertain voice ; and, as usual, Coke and his brethren made the most of those that supported their view.4 But here, as in other cases, the later common law has conformed to Coke's view ;5 and in modern times it has been found necessary to give extended powers by legislation.6 Besides this, in spite of all the efforts of the government, his opinion in the _Case of Proclumations_ had been most damaging to the prerogative.7 A minor cause of difference with the king was his opinion (in which he was probably wrong) that a bishop could not sentence to death for heresy.8

Footnote 1: Commissions of Enquiry (1608) 1z Co. Rep. 31--The third cause assigned for the illegality of the commission was, " for that it was only to enquire, which is against law, for by this a man may be unjustly accused by perjury, and he shall not have any remedy "; Fourth Instit. 242-243; 245-246; cp. Reid, The King's Council in the North 311-315.

Footnote 2: There is a clear misprint in the report which makes it self-contradictory, since it seems to say in another place that a commission to enquire of treason and felony is lawful.

Footnote 3: This we can gather from the case of James Whitelocke (1613), Spedding, Letters and Life of Bacon iv 346-357; Whitelocke, Liber Jemelicus (C.S.) 34-50, ir3-ir5; 2 S.T. 766; Acts of the Privy Council (1613-1614) 211-217; for his apology see ibid 215-219; in that case Whitelocke was sunjoned before the Star Chamber for contempt in giving to Sir R. Manschl, the Treasure of the Navy, an opinion adverse to the legality of a commission to enquire into the administration of the navy ; we have not got the exact terms of the commission, but it would seem from the Privy Council records at pp. 212-213 that it was to enquire only ; and it may be noted that Coke was present at the hearing as an assessor ; cp. Harrison Moore, Executive Commissions of Enquiry Col. Law Rev. xiii 516-517.

o 4 Ibid 51z-520.

5 Palmer, who was attorney-general in 1661, seems to have been of opinion that a commission to examine abuses in the Post Office and to determine complaints, was illegal and contrary to Magna Carta, and that therefore the commissioners could not administer oaths, S.P. Dom. 1661-1662 q2, xiii 3, 4; the question again came up in connection with the legality of the Municipal Corporations Commission in 1833, and of the Oxford University Commission in 1850, Col. Law Rev. xiii 506; though the legality of the later commission was asserted by the law officers of the crown, they admitted that a commission to hear and enquire into offences without determining them was contrary to law, ibid 507.

o Ibid 507, 508.

7 Vol. iv 296-297; in the Case of Proclamations (161x) 1z Co. Rep. 74 the Lord chancellor advised the judges " to maintain the power and prerogative of the king; and in cases in which there is no authority and precedent, to leave it to the king to order in it according to his wisdom . otherwise the king would be no more than the Duke of Venice. . And all concluded that it should be necessary at that time to confirm the king's prerogative with our opinions, although there were not any former precedent or authority in the law."

8 The Case of Heresy 1z Co. Rep. 56; Writ de Haeretico Comburendo, ibid 93; Maitland, Casth Law 177-179; vol. i 616-618; cp. Egerton Papers (C.S.) 4+8, where the Archbishop of Canterbury reports that the differences of opinion among the judges had led to sharp words--Williams J. and Altham B. are said to have told

### Law in XVith and XVith CENTS.

But it was difficult to attack Coke directly. His unwaeried industry, his extraordinary knowledge of the law, his power of eloquent and lucid exposition,\[1\] and his keenness in doing any duty which he recognized as his duty, made him an invaluable servant of the crown. The somewhat naive enthusiasm which appears in his writings for any view which he is advocating, the quaint and unexpected arguments with which he sometimes enforces it,\[2\] the transparent genuineness of his convictions, made him personally not unpopular at Court.\[3\] Prince Charles is said to have delighted in his conversation ;\[4\] and he seems to have regarded the Prince and his mother as his special patrons.\[5\] He was handsome in appearance, to which he paid some attention ;\[6\] and this always went some way with James I. It was therefore possible to understand and respect him, and at the same time to differ entirely from his political opinions.

Here lay one of the great differences between him and his great rival, Bacon. Coke's main object in life was to know and expound the law. Bacon's main objects in life were the creation of a system of philosophy which few appreciated,\[7\] and the development of his political views as to the position of the king, which were becoming increasingly unpopular.\[8\] That he was a skilful lawyer, a great jurist, and an unequalled expositor of the law, his legal arguments and his writings show.\[9\] But to law he

## 1 Coke's Career'. and Character 485

gave only the remnants of his time. That he would have been a greater lawyer than Coke it he had devoted all his energies to law, few can doubt. That in fact his influence upon the law both in his own day and in the succeeding ages was incomparably less is equally Certain. In his own day men distrusted him, because they could not understand him as they understood Coke ; and though they might agree with his political opinions, they never gave him the respect which comes of understanding.

Therefore the king, though he was angry with Coke, hesitated to deprive himself of his services. Moreover, there was another and a more powerful reason why he should hesitate to do anything which could be construed as a punishment for Coke's conduct on the bench. It was quite clear that his fanatical reverence for the common law was an intensified expression of a deep-seated national sentiment.

The reverence felt for the common law in the Middle Ages 1 had been not only maintained, it had been increased during the Tudor period. In fact, the Tudor sovereigns had owed a large part of their popularity to the fact that they really felt the same reverence for it as the majority of their subjects.2 And the results of Elizabeth's reign had confirmed men in their belief that, it was their most priceless possession. It was therefore natural that, whenever a person felt himself aggrieved, he should appeal to that law; and it was inevitable that, when a Parliamentary opposition began to make it so voice heard, it should make the same appeal.3 But the parts of the common law relating to the powers of the crown were particularly obscure; 4 and, up to this period, these appeals to the common law by those who thought themselves aggrieved by some act of the crown had not met with much success. Neither those who had attacked the legality of the court of Star Chamber,5 nor those who had attacked the legality of customs duties imposed by the crown,6 nor those who had attacked the legality of commissions of enquiry,7 had met with much encouragement. But the growth of the Parliamentary opposition, and the arguments used by leading members of that opposition, encouraged the belief that in the common law there might be found a store of principles which could be used to demonstrate the illegality of particular exercises of arbitrary power. The manner in which

### Law in Xvith and Xvith Cents.

the great question of monopolies had been dealt with seemed to justify this belief. Their legality was left to be tried at common law ; and the common law had condemned all those which had aroused the greatest complaints.1 But the crowning proof of the justice of this belief had been Coke's conduct on the bench. He, the greatest master of the common law, the most honest and inconturtible of men both in his public and private life,2 had, it seemed to the popular mind, demonstrated from book-case and record that the mediaval common law was the greatest safeguard against arbitrary power. Thus, as Spedding has said, the most offensive of attorney-generals had been transformed into the most admired and venerated of judges.3

Footnote 1: Vol. iv 349-353-

Footnote 2: Whitelocke, Liber Famelicus (C.S.) 50 says of Coke--" Never man was so just, so uprighthe, free from corruption, sollicitations of great men or frendes, as he was. Never put counsellors that practised before him to annual pensions of money or plate to have favour. In all cawscs hefo him the counselor might assure big client from the danger of briberyc, the secret mischiefs growing by wife, children, servan.s, chamber motions, courteours great or smale, and the most religious and orderlye man in his house that lived in our state. * Thear grew sum smale questions between him and sum of his tenants at Stoke about copies. He sent for me, prayed me to keep his court, and to order all things as I sholde see cavuse in justice, upon view of his rollcs and that he wolde be contented with what I determined withe him or against him. And accordingly I did keep his court ... and gave good satisfaction to those that made clamour against him."

Footnote 3: Letters and Life of Bacon iv 379 ; in June, 16r6, Chamberlain wrote to Carleton that if Coke falls " he will be honoured as the martyr of the commonwealth," S.P. Dom. 16f1-16f8, 375 1xxxvii 67.

Footnote 4: Ibid 2r6, kxx v2--Chamberlain writes to Carleton Dec. 16r3, that Coke rivals the end of Northampton for the Treasurership.

Footnote 5: This was Bacon's opinion ; writing to the king in 16r5 to advise what should be done to Coke in consequence of his attack on the Chanquery, he says--" my opinion is plainly, that my Lord Coke at that time is not to be disraged, both because he is so well habituate for that which remainent of these capital causes, and also for that which I find is in his breast touching your finances, and matters of repair of your estate "; in ros5 he took a prominent part in a consultation kit. Council as to payment of the king's debts and lessening expenses, ibid 3r6, lxxx 1r5--in the end he recommended a Parliament, and no tampering with elections; for,a fuller report see Spedding, Letters and Life of Bacon v 199-200.

## 6 Coke's Career and Character 487

this scheme opened the way to his own promotion to the post of attorney-general. This post he was certainly better qualified to fill than Hobart, who was to be removed to Coke's place in the Common Plcas. Bacon's advice showed some insight into Coke's character.$\\bullet$ As his writings and his acts show, he had essentially the mind of an advocate. He could always find arguments, and arguments fortified with abundant precedents, for a cause which he was retained to defend. It is clear from Hawarde's reports that he was a valued and respected member of the court of Star Chamber.1 If he was retained for the king, he might yet, so Bacon thought, be a tower of strength to the crown. With Coke as chief justice of the King's Bench occupied in protecting the rights of the crown, and with himself as attorney-general advocating the rights of the crown, whenever they were brought into question, all might yet be well. At the same time, he advised that Coke's hopes should be excited by the prospect of being admitted to the Privy Council, if his conduct on the bench gave satisfaction.2

Footnote 1: Thus in t606, in a case which turned upon the practices of merchants dealing in tin, Coke had taken a good deal of trouble in getting up the facts and the law ; and the lord chancellor moved,$\\bullet$\*\* that forasmuch as the Lo. Cheife Justice of the Common Place had taken greate paines and delyvered many excellente things touchinge the king's interest in matters of time, and those of greate antiquitee, whereed the world never took knowledge before, that one of the King's Counselle shoulde attend his best leysure for the setting them downe to the end they may be inserted in the Order," Les Reportes etc. 308.

But Bacon had not taken a sufficiently comprehensive view of Coke's character. No doubt Coke was an able and even an unscrupulous advocate for any cause which he was retained to defend. But, since his elevation to the bench, the question of the position of the common law in the state had become acute ; and his views as to its supremacy had become a settled belief not wholly devoid of fanaticism. To suppose that because $\\clubsuit$ Coke as attorney-general had given opinions and donc acts favourable to the maintenance of the prerogative, Coke as chief justice of the King's Bench would revert to his old views, was to betray a profound ignorance of the manner in which Coke's views had developed during the past

### Law in Xvith and Xvith Cents.

few years; and to suppose that the prospect of a privy councillor's place would make any difference to his conduct was even more absurd. It was with difficulty that he was induced in October, 1613, to consent to his promotion;1 and to soothe him he was immediately made a member of the Privy Council2. He no doubt saw that the change would mean further contests with the king; and, though he was not the man to shrink from a fight, he did not like fighting with the king, for whom he felt all the reverence of the Tudor statesman.3

Footnote 1: S.P. Dom. 1611-1618 202, lxxiv 86--Letter of Chamberlain to Carleton; ibid 89, in another letter, he says--" Sir Edw. Coke called up to the Chief Justiceship of the King's Bench, to his own regret and that of all the officers of the Common Pleas. Sir Fras, Bacon made Attorney General; it is feared he will prove a dangerous instrument."

Footnote 2: Ibid 205 lxxv 4.

Footnote 3: Above 426; Whitelocke, Liber Famelicus (C.S.) 48 tells us a tale which illustrates this--" As I went with him, I asked him why he stayed not at the court to dynner. He told me, that whiles! he stood by the king at dynner, he wolde ever be asking of him questions of that nature that he had as life be out of the roome, and that made him he as far of as he mighte even at sutche times. I gese it was concerning matters of his prerogative, whiche the kinge wolde take ill if he wear not answered in them as he wolde have it."

The king soon found that Coke's capacity for mischief had been increased instead of being diminished by his promotion. The three years during which he held his new office were marked by three quarrels upon fundamental questions of constitutional law.

In _Pacadam's Case_, in 1615, Coke laid it down that it was contrary to law to ask the judges separately to give their opinions upon the question whether certain acts charged against an accused person amounted to high treason. He did not as yet affirm that the judges ought not to be consulted at all concerning a pending case. But he maintained that, if consulted, they should be consulted in a body. It was not till a later period that he denied the right of the crown to consult the judges at all as to a case which might come before them judicially.4 It was with difficulty that Coke could be induced to give an opinion; and, ultimately, the opinion he gave was unfavourable to the royal view, that Peacham's acts amounted to high treason.5 Shortly after this episode occurred Coke's famous quarrel with Lord ellesmere as to the jurisdiction of the court of Chancey.6 We have seen that the claims made by Coke were baseless, that he behaved with unnecessary violence in his attempt to make a wholly abusive use.

## 10 Coke's Career and Character

1.1 The 10

### Law in Xvith and Xvith Cents.

the king's prerogatives both in the pending _Case of Commentans_ and for the future.1

On the 26th of June Coke was again summoned before the Council, and asked what he had to say in defence of his conduct. in encouraging proceedings under the statute of Preamt,re against those who had applied to the chancellor for injunctions against the proceedings of courts of law, and in the other matters in which he had given offence to the king.2 His defence in respect of the first point practically anounted to a promise not to offend again in that particular way. But his answers in respect of the other matters were so little satisfactory to the king that he was suspended from the Privy Council, forbidden to go on circuit, and ordered to spend his leisure in revising and correcting his reports.3 His revision of his reports practically amounted to a denial that they contained any serious errors.4 Later on, his attention being called to five specific points, he admitted that they contained certain opinions as to the prerogative which were open to misconception; and he explained them in a manner satisfactory to himself,5 but not at all satisfactory to the king.6 He concluded by asking the king to refer these points to the judges, and also to ask them to certify what cases he had published for the maintenance of the prerogative, for the good of the church, for the quicting of men's inheritances, and for the general benefit of the commonwealth.7 James saw clearly enough that Coke's views as to the position of the common law in the state, and its relation to the king, were too fundamentally different from his own to allow him to sit again as chief justice. On November 14, 1616, he was dismissed from his office. Chamberlain's view that the four P's--Pride, Prohibitions, Preamunire, and Prarogative--were theCoke's Career and Character 441 causes of his dismissal was substantially correct.1 The chancellor's speech to his successor made it quite clear that no lawyer who held the views of Coke could ever hope to be raised to the bench. His fate was to be "a lesson to be learned of all, and to be remembered and feared of all that sit in Judicial places."2

Footnote 1: The common speech is thft four Ps have overthrown and put him down--that is Pride, Prohibitions, Pracemuntime, and Praerogative," Chamberlain to Carleton, Nov. 14, f6i6, cited Spedding, op, cit. vi 87.

Footnote 2: The lord chancellor's speech to Mountain when he was sworn chief justice of the King's Bench, Moore 827; the king's speech in the Star Chamber (above 429 n. 1) was referred to as laying down the precepts that a judge should follow, and the faults in Coke's Reports were pointed out in detail.

Footnote 3: The letter is printed in Bacon's Works (ed. 1824) v 403-4II; Spedding, Letters and Life of Bacon vi 121-13I gives conclusive reasons against the view that it was written by Bacon; his conc'asion is that it was written by "some zealous Puritan who wished to see Coke reinstated in order that the might be again the great enemy of the Papists, and the great champion of the commonwealth against the crown "; and Gardiner had also come independently to the same conclusion.

The fall of Coke was marked by an open letter to him written by a candid yet, on the whole, a sympathetic friend.3 It is remarkable both for the light which it throws on his character, and for the advice which it contains. 4 The writer evidently sympathizes with his religious and political views--with his hatred of Rome, and with his stand against arbitrary authority. He is clearly a Puritan who recognizes the great services which Coke's legal knowledge had done, and yet might do, to the cause of religion and the constitution. He had evidently studied Coke's character closely, and was quite alive to his faults. " In discourse," he says, "you delight to speak too much," and " by this sometimes your affections are entangled with a love of your own arguments, though they be the weaker." " While you speak in your own element, the law, no man ordinarily equals you ; but when you wander, as you often delight to do, you wander indeed"--a criticism which would seem to show that his literary style is a faithful reflection of his manner of speech. He accuses: Coke of conversing too much with books, too little with men "who are his equals. He is too apt to blame or praise excessively on slight grounds. He uses his legal knowledge to make the law lean too much to his opinion--a bad example to the student. Though a rich man, he gives little or nothing to the poor--not even to his own tenants. His conduct of the Overbury case in which, from the bench, he had thrown out wild and wholly baseless hints of a plot which had had something to do with the death of Prince Henry,4 is censured, because he had announced

### Law in XVITH AND XVITH CENTS.

This suspicions too precipitately.Finally, he is advised to walk circumspectively, and, by so doing, to regain a position in which he can renew his efforts to serve both church and state. That Coke was to some extent influence! by this advice, the third, and in some respects the most admirable, part of his career. will show.

From 1616-1620 Coke seems to have entertained hopes that he might again gain the favour of the king and be restored to place and power. An opportunity seemed to offer itself in the prospect of a marriage between Sir John Villiers, the elder brother of Buckingham, and Frances, his youngest daughter by his second wife Lady Elizabeth Hatton.1

Footnote 1: The reader is referred to the book \[1\].

Coke had married his second wife on November 6, 1598. She was the granddaughter of Burghley, and a wealthy heiress; and there were some who were surprised that she had condescended to marry one who was merely a successful lawyer.2 Doubtless Coke's wealth attracted her, and led her to prefer him to his great rival Bacon. Bacon had no cause to envy Coke's success. The marriage had been celebrated in an irregular manner which had involved them both in a prosecution before the ecclesiastical courts,3 and this had given rise to a good deal of baseless scandal.4 Their subsequent relations had been notoriously unsatisfactory--each of them was unsuited to the other. Though Lady Hatton had supported her husband just before his fall,5 after he had been dismissed she deserted him.6 Therefore following entries in the State Papers--In October, 1615, Coke notes that " Sir A. Mainwaring, the Prince's carver, lay at Mrs. Turner's house when the prince sistemed," S.P. Dom. 1611-663834, Izxxi r28; in November Mrs. Turner says she has heard that the prince was poisoned, ibid 327, Izxxiii 21; later in November Franklin hints at a great plot involving the prince, the Palgrave, and Lady Elizabeth, ibid 334, Izxii 74; in December Coke writes to the king that " something is still behind which must not be trusted to writing," ibid 337, Izxxiy rq; then came Coke's injudications remarks reported in the State Trials; the whole episode is a good illustration (t) of Coke's fear of and prejudice against the Roman Catholics, and (2) of the manner in which he rushed to a conclusion on scanty evidence in cases in which his prejudices were enlisted. \*

## 6 Coke's Career and Character 443

the more fact that Coke had projected this marriage for their daughter was enough to set her against it.

Coke's subsequent action was a disgrace to a lawyer. He took possession of his daughter by violence ; and proceedings for riot were very properly taken against him in the Star Chamber.1 But the Villiers influence procured the abandonment of these proceedings ; and the marriage was celebrated.2 After this episode, all hope of a reconciliation between himself and his wife was at an end. In 1617 she gave a magnificent entertainment to the king and queen at Exeter House, while her husband was living in the Temple and " sending for his diet to Goodman Gibbs, a slovenly cook."3 Even the special request of the King could not induce her to invite him.4

Footnote 11: In Decemerer, 1616, Sherburn had reported that the king had promised to give Coke some service, "though thinking him unfit for the Chief Justice-hip," S.P. Dom. 1611-1618 412, Ixxxiv 68.

Coke gained but little from his connection with the Villiers family. Though in December, 1616, he had been restored to his place in the Council,3 though there were reports that he would be raised to the peerage,4 though the lawyers hoped that he might be made chancellor,5 and though he was again spoken of as Treasurer,6 the current opinion was that he would make no way against Lady Hatton's influence." Current opinion was right in its prophesy, though perhaps wrong in its reasons. Though Coke was a valuable servant on account of his legal knowledge and7 his financial skill,10 James was too conscious of the hopeless difference between his own and Coke's political views ever again to trust him with an important office11 He was made one of the

### Law in Xvith and Xvith Cents.

commissioners for executing the office of the Lord Treasurer; but he was passed over, when the office was filled in 1620, in favour of Mountain, his successor in the office of chief justice of the King's Bench.1

Footnote 1: Spedding, Letters and I.ife of Bacon vii 149.

It was in the Parliament of that year that Coke $c$ appeared in his new character of leader of the Parliamentary opposition. He had been returned by a Cornish borough by the king's command.2 But his political opinions were fundamentally opposed to those favoured at court; and, to a man of his strong Protestant views, the concessions made by the king to the Romani Catholic; in order to secure the Spanish match, must have been wholly abhorrent. On the other hand, with the political and religious views of the leaders of the Parliamentary opposition he found himself in entire sympathy. With his characteristic impetuousness he did what perhaps the writer of the letter of advice foresaw in 1616 that he was bound sooner or later to do--he made a complete change of front; and it is probable that this change of front did more than even his conduct on the bench had done, to further the cause which he had so closely at heart--the cause of the supremacy of the common law. At the cost of some inconsistency in some of his statements of constitutional doctrine,3 it definitely cemented the old alliance between Parliament and the common law, to which in the past both the common law and the Parlian-ment had owed so much;4 it gave to the common law its supremacy over its rivals; it enlisted in favour of the Parliament that superstitious reverence which men felt for the common law; and it immensely strengthened that note of legal conservatism, which is at once the distinguishing characteristic of the constitutional struggles of the seventeenth century, and, to a large extent, the secret of their successful issue.

Footnote 2: Dict. Nat. Biog. citing Holkam MS. 727.

Footnote 3: Above 427-428; below 450, 456.

Footnote 4: Vol. iv 174, r88-r89; vol. ii 289-290, 430-434, 441-443.

Footnote 5: See Chamberlain's statements in S.P. Dom. 1619-1623 223, crix 90; 225, crix 103; 233, crix 13--" The king has been to day to the Parliament (March ro, 162r); he disapproves Coke's speeches and precedents;' Bacon, writing to 162r).

It is not often that a lawyer, who has, during the greater part of his life, been merely a lawyer, becomes a leader of the House of Commons. But the pleasing address which had made him, in spite of his political views, a _persona grata_ at court; his intense earnestness for the reformed religion and for constitutional government; his acknowledged mastery of the medieval common law, when so much turned on the interpretation of doubtful points in that law; his reputation for financial skill; his scrupulous honesty --combined to make him one of the most, if not the most influential man in the House of Commons.6 In all the stirring

## 4 Coke's Career and Character 445

events of this Parliament--the impeachments of Mompsson, Mitchell, Bacon, and Benet, the agitation against Spain and the Roman Catholics, and the final protestation by the House that their privileges were their ancient and undoubted right--he played a leading part. There were some who could give sounder counsel in questions both of domestic and of foreign policy ; and some were more skilful in leading and managing the House of Commons. He was essentially a Tudor statesman, and he hardly realized the changes which were rendering many of the maxims of Tudor statesmanship obsolete. But these limitations tended to give him a greater authority over a House in which the majority held similar views ;1 and in all the questions of public law, which the quarrel with the king involved, none could give such valuable aid as he, because none could speak with such authority as to the existing law. The fact that Coke, the great lawyer and a privy councillor, supported the view which the majority of the House of Commons took of the rights of Parliament, gave a weight to the Parliamenty opposition, which it had never had before. This was the first Parliament, said Alford, an old member of the opposition, in which 1 have seen councillors of state take such care of the state.2

Footnote 1: Gardiner, History of England v 434, 435--'The Commons stood upon a purely conservative ground. We look in vain amongst their leaders for any sign of openness to the reception of new ideas, or for any notion that the generation in which they lived was not to be as the generation which had preceded it."

Footnote 2: Proceedings and Debates in the House of Commons (1766) i 66; cp. Gardiner, op. cit, iv 41.

On the other hand, Parliament was quite ready to acknowledge Coke's services by furthering his views as to the supremacy of that Taw, which, as he now interpreted it, justified their opposition. The enquiries which led to the impeachment of Bacon revealed many abuses in the organization of the Chancery, and led to the proposal of several measures of reform.3 One of the most remarkable was "An Act for Reversing of Decrees in Courts of Equity on just cause." It provided that at the rehearing of any case in Chancery the two chief justices and the chief baron should be present as assistants to the chancellor. This Act would have given to the common law courts that control over the Chancery which Coke had failed to establish while he was on the bench. Fortunately for the development of equity the opposition of the king was fatal to the bill.4

### Law in Xvith and Xvith Cents.

But Coke was still a privy councilor; and that a privy councilor should thus actively assist the Parliamentary opposition was not to be tolerated. Immediately after the dissolution of Parliament he was removed from the Council, and committed a close prisoner to the Tower.1 His papers were rer.oved from his chambers in the Temple, and strict search was made in them for treasonable matter. Naturally nothing of that sort was discovered, and he was released (Aug. 8th) on conditions, after a nine months' imprisonment.2

Footnote 1: S.P. Donn, 16rg-r623 332, cxxvii r; ibid 333, cxxvii 8, Chamberlain writes--" Sir Edw. Coke has been examined on the a:cusstation of failing of his duty as a counsellor and a subject. . .

## 5 COKE'S CAREER AND CHARACTERY 447

had been maturing. Thus when the king's death dissolved his last Parliament, and when Charles met his first Parliament, the government, under the guidance of Buckingham, was committed to a policy which, as any real statesman would have seen, could hot hope to win the approach of Parliament.1

Footnote 1: The author is grateful to the anonymous referee for his comments on the manuscript.

On the accession of Charles, Coke had kissed hands as a privy councilor; but even before Parliament met, speculation was rife as to whether he would be confirmed or cashiered.2 The part which he played in Charles's first Parliament did not leave the mattcr long in doubt.

Charles told his first Parliament nothing of the foreign policy which had been pursued since the breach with Spain. He asked for a supply, but neither the objects for which it was wanted, nor the amount expected, were indicated.3 It was not surprising therefore that the Commons began by discussing religious questions, and, when it came to supply, voted only two subsidies. They were not going to vote money for a war of which they knew nothing. Two subsidies, Coke thought, was a liberal gift. Ordinary charges the king should bear alone.4 No one had told the Commons that there were more than ordinary charges to be borne. Even tonnage and poundage was voted only for one year, in order that questions relating to the rates charged, and to impositions, might be discussed.5 A partial disclosure of the king's necessities at the end of the session did not mend matters.6 Nor was the House in a more compliant nood when, after a short adjournment, it met at Oxford. 5 By this time they knew something of the foreign policy which was being pursued; and what they knew they disliked. It was not to enable the king to recover the Palatinate by continental alliances that they had voted money in James's last Parliament.7 They had intended a naval war with Spain. They suspected the French alliance, and

### Law in Xvith and Xvith Cents.

they were angry at the favours shown to Jesuits and Arminians. Coke 1 again pointed out that subsidies were not usually granted for the ordinary expenses of government ; that it was not necessary to grant further subsidies now, as " there was no enemy yet known ;" that the ordinary revenue would suffice, if necessary reforms in the king's government and household were carried out. He called attention to the negligence shown in the administration of the navy--" It was never heard that Queen Elizabeth's navy did dance a pavan; so many men to be prest, and lye so long without doing anything ;" and he not obscurely hinted that much was due to the insufficiency of the Duke of Buckingham, the Lord Admiral.2

Footnote 1: Debates in the House of Commons 1625 (C.S.) 84-87.

That an attack on Buckingham could not long be delayed was clear even to Buckingham's friends. They endeavoured in vain to induce him to come to terms with the Parliament.3 Buckingham thought that he might still conciliate Parliament by a promise to enforce the laws against the Roman Catholics, and disarm their criticism by a personal defence of his foreign policy.4 But the Commons were hardly likely to be influenced by such a display. Coke, though he expressed his personal willingness to give, advised the House not to grant subsidies, and ominously referred to precedents of what had happened to counsellors who misled the king.5 Further revelations of the manner in which the coasts had been ravaged by pirates embittered the feeling of the House against the Duke.6 At length he was referred to by name; and the house rcsolved to lay their complaints of the manner in which he had executed his office before the king.7 The king's answer to this attack upon his favourite was the dissolution of Parliament.

Footnote 1: Ibid 85--" The office of Lord Admiral is a place of the greatest trust and experience. The office of High Constable has become hereditary. So was never any Admiral. In Ed. 3rd, tyme, it was devided into the North and South. It will be well when offices are restored to men of sufficiency."

Footnote 2: Ibid xvii, xviii.

Footnote 3: Ibid 9t-roz; Gardiner, History of England v 398.

Footnote 4: Debates in the House of Commons 1625 (C.S.) trg--' Sir Edward Coke made a long discourse of the leake in the Kinge's estate, of the qualtives of a counselor, of the danger to great men if they misled the king ... and voucht the president of Hugo de Burgo ... of Segrave ... John of (raunt, and Lord Latimer, of Suffolk."

Footnote 5: Ibid 176, 177.

Footnote 6: Ibid 178, Sir Francis Seymour said--" Let us lay the fault where it is; the Duke of Buckingham is trusted, and it must needs be either in hits or his age.ts."

Footnote 8: Gardiner, History of England vi 33-- besides Coke, Seymour, Phillips, Alford, and Palmer were thus excluded.

In the succeeding Parliament (1626) Coke took no part. The king got rid of him, together with five other leaders of the Parliament

## 1.1 COKF'S CAREER AND CHARACTERT 449

spite of his protests,1 he was forced to acquiesce in his exclusion from the House, though he continued to be otherwise privileged as a member of Parliament.2 He himself in 1621 had stated that a sheriff could not sit in Parliament.3

Footnote 1: Cro. Car. 26; Rushworth Pt, I, vol, i 207, 202--Coke took several exceptions to the sheriff's oath, but the oath was administered to him with the clauses he objected to left out.

Footnote 2: Fourth Instit. 48. S.P. Dom. r61g-r623 31r, exciii r18.

Footnote 3: See vol. vi c. 6 for the importance of this Parliament from the point of view of the development of constitutional law.

Footnote 4: The Petition of Right has justify been deemed by constitutional historians as second in importance only to the Great Charter itself. It circumscribed the monarchy of Henry VIII. and Elizabeth as the Great Charter circumscribed t.e monarchy of Henry (I.," Gaffiner, History of England vi 3tt.

The new Parliament was no more compliant than the last. Led by Eliot, it went on where its predeces-ors had left off, and, after some enquiry into the past misgovernment, it impecached Buckingham. It soon became clear that nothing less than the dismissal of Buckingham would satisfy the Commons, and Parliament was therefore again dissolved in order to save him.4

Footnote 4: It was said, perhaps by a political opponent, that neither Coke nor his colleague would have been chosen if any gentleman of note had been present at the election, \_VOL. V.--\_29.

Though Coke was now seventy-seven years of age, he could not be idle. He used his time to finish the first three books of his Institutes, and to collect materials for his fourth book.5 But the epilogue to his fourth book lets us see that his years were at last beginning to tell upon him. "Whilst we were in hand," he writes, "with these four Parts of the Institutes, we often having occasion to go into the City, and from thence into the Country, did in some sort envy the state of the honest Plowman, and other Mechanicks; for the one when he was at his work would merrily sing, and the Plowman whistle some self-pleasing tune, and yet their work both proceeded and succeeded. But he that takes upon him to write, both captivate all the faculties and powers both of his mind and body, and must be only intentive to that which he collecteth, without any expression of joy and cheerfulness, whilst he is in his work." In former years the active attorney-general and the busy judge had not found the labour of his literary work tell upon him in this way.

But his work was not yet done. One more Parliament, more important than any in which he had as yet taken part, was before him; and his labours in that parliament were destined to be a fitting conclusion to his career. They were to re-cult in adding to the statute book the first,of those great constitutional documents since Magna Carta, which safeguard the liberties of the people by securing the supremacy of the law.6

Footnote 4: See vol. vi c. 6 for the importance of this Parliament from the point of view of the development of constitutional law.

For the Parliament of 1628 he was returned by the counties of Buckingham and Suffolk, and sat for the former.7 "Raro,"

### Law in Xvith and Xvith Cents.

he says, " electus est aliquis miles duorum comittatum."1 Much had happened since the last Parliament was dissolved. A forced loan had been demanded.2 Men had been punished for refusing to contribute; and judges who declined to justify it had been dismissed.3 Soldiers had been billeted on the people, and: no redress had been forthcoming for outrages committed by them.4 Men had been committed to prison by the command of the king without cause shown, and bail had been refused.5 The religious opinions detested by the Commons were still openly favoured by a Court in which Buckingham still held the first place.6 The leaders of the Commons wisely decided not to proceed at once against Buckingham, and not to press their grievances in religious matters. All their efforts were to be directed in the first place to the securing of the liberty of the subject.7 It was because they adhered to this resolve that Coke was called upon to play so prominent a part.

Footnote 10: Gardiner, History of England vi 244.

Early in the session he proposed a bill which provided that, " except by the sentence of a Court, no person should be detained untried in prison for more than two months if he could find bail, or for more than three months if he could not."8 Contrary to his former opinion, he maintained the illegality of imprisonment by the king's special command, or by the Council. When confronted with his former opinion, he freely admitted that he had been mistaken in his older views, and was now better informed.9 Eliot both voiced the views of the House, and prophesied truly, when he said of this retractation, that " we may here thank him whom posterity will hereafter commend."10 The resolutions of the Commons, designed to safeguard the liberty of

## 4.5 Coke's Career and Character 451

the subject by preventing imprisonment without cause shown, and asserting the right of such persons to be released on bail, were sent up to the Lords; and a conference upon them was held. The Lords were willing to agree with the Commons; but they felt that some latitude should be allowed to the king to imprison without showing cause where the safety of state demanded such a course.1 The clause which they inserted to this effect was indisgnantly repudiated by Coke and by the House. He wholly repudiated the notion that the king had any prerogative save such as the law allowed him. The law must bound the prerogative as it bounded all else in the state. To allow any other prerogative was wholly destructive of liberty.2 The House came round to Wentworth's idea that a bill to safeguard this liberty was the proper course; and, on his motion, a sub-committee, consisting of the leaders of the opposition and all the lawyers in the House, was appointed to draw it up.3 This bill entitled " An Act for the better securing of every freeman touching the propriety of his goods and liberty of his person," Coke presented to the House.4 It recited Magna Carta and other statutes of

### 452 Law in Xvith and Xvith Cents.

Edward I. and III.'s reigns, and went on to provide that the king had no right to billet soldiers without the householder's consent, to levy loans or taxes without the consent of Parliament, or to commit to prison. If anyone was committed to prison by the king, he was to be bailed or released, and the judges were $0 pay no regard to the king's orders.

The strictness of the clauses as to unlawful imprisonment again caused some division of opinion;1 and in the meantime the king, while promising to confirm the older laws, refused to consent to any encroachment on his prerogative.2 In spite of a remembrance of the Commons, the king held his ground. It was in the course of the debate on the answer to their remonstrance that the idea of petitioning the king was thrown out by the king's Secretary. This was taken up by Coke. Let us, he said, have a Petition of Right. To this the king must consent in a parliamentary way. We shall then get no mere verbal answer, no mere message, but a recognition of the true meaning of the law, which will place its interpretation beyond dispute.3 At once a subcommittee was appointed to draw up this Petition of Right. But again the old difficulty as to the necessity of allowing some kind of discretionary power to the king recurred. The Lords tried in vain to insert a clause which should reserve to him some power of this kind.4 Coke was strongly against weakening the Petition in this way.5 As Eliot said, "No saving in this kind," with what subtlety soever worded, can be other than destructive to our work."6 At length"the Lords gave way and consented to the Petition as drawn by the Commons. The king consulted his judges as to the legal effects of the Petition,7 and returned an evasive answer.8

Footnote 1: Gardner, History of England vi 265.

Footnote 2: Ibid 270.

Footnote 3: This clause ran as follows--" We present this our humble petition to your majesty, with the care not only of preserving our own liberties, but with due regard to leave nitrite that Sovereign power wherewith your majesty is trusted for the protection, safety and happiness of the people," Rushworth Pt. I. vol. i 567.

Footnote 4: Above 451 n. 2.

Footnote 5: Another 451 n. 2.

Footnote 6: Gardner, History of England vi 285.

Footnote 7: For the king's questions to the judges see ibid 294-296.

Footnote 8: "The king willeth that right be done according to the laws and customs of the realm; and that the statutes be put in due execution, that his subjects may have no cause to complain of any wrong or oppressions, contrary to their?just rights and liberties, to the preservation whereof he holds himself in conscience as well obliged, as of his Prerogative," Rushworth Pt. I, vol. i 598.

The consideration of this answer brought on a general debate, on the state of the nation. The failure of the government's policy was eloquently portrayed by Eliot, and a remonstrance was proposed. Charles ordered the House to go on with the subsidy bill; and, when it paid no attention to this message, he

## 4.5 Coke's Career and Characterie 453

forbade it to " lay any scandal or aspersion upon the state-government or ministers thereof." A climax was reached when Finch, the Speaker, told the House that the king had ordered him to stop any speakers " who should go about to lay an aspersion on the ministers of state." For some time the House sat silent, The conflict between loyalty to the king and indignation at this infringment of its privileges aroused emotions which no words could express. Tears stopped the speech of Coke and other members who tried to address the House. At length it was resolved to go into Committee; and the Speaker, released from the chair, retired to report what had happened to the king.1

Footnote 1: Gardiner, History of England vi 302-305; Rushworth Pt. I vol. i 613-62z.

It was in this committee that Coke made his last, and, under the circumstances, his boldest speech in Parliament. He pointed out that in Edward III's reign John of Gaunt, the king's son, and Lords Latimer and Nevil had been accused; that in Henry IV.'s reign the whole of the Council had been complained of and removed; that Parliament existed to moderate the king's prerogative, and that there were no abuses which the House could not treat of; that this Parliament had not dealt sincerely with the king, and with the country, because they had not made a true representation of the causes of their miserics; that he repeated of this, and, " not knowing whether ever he should speak in this House again he would now do it freely, and there

"protested that the author and cause of all those niseries was the Duke of Buckingham." This speech, says Alured,3 " was entertained and answered with a cheerful acclamation of the House, as when one good hound recovers the scent, the rest come in with a full cry: so they pursued it and laid the blame where they thought the fault was."

Footnote 2: Ibid 62z.

Perhaps Charles would again have dissolved Parliament to save the Duke; but the feeling of the Lords was strongly against this course. H**a** could not resist the pressure put on him by both Houses;4 and he was at length driven to give his unqualified consent to the Petition in the ordinary form of words --"_droit soit fait comme est desire!."_

Footnote 4: Gardiner, History of England vi 307.

Coke took little part in the remainder of the session, nor was he present in the succeeding session.5 He felt rightly that, with the passing of the Petition of Right, his life's work was done; for in that Petition certain of the fundamental rights of Englishmen

### Law in Xvith and Xvith Cents.

had been declared in language which admitted of but one interpretation; and this declaration was not weakened by any ambiguous saving of prerogative right or sovereign power. That it was not thus weakened was, as we have seen,1 thought , by many to be a defect, because it tied the hands of the executive too strictly in times of danger; and, as was shortly to be seen, the declaratory form in which it was drawn up concealed a logical defect, because it could be argued that it made no change in the law.2 Both these defects are a testimony to the legal mould in which Coke's influence had led the parliamentary opposition to shape their ideas. All through his life he had held firmly to the ideas that the law must be supreme, and that the law needed only to be clearly declared to be all-sufficient. The placing on the Statute Book of a measure which embodied both these ideas was a fitting crown to his career.

Footnote 1: Above 451, 452.

The six remaining years of his life were spent at Stoke Pogis, where he died in 1634. Naturally he was an object of suspicion to the king. After the debates upon tonnage and poundage and upon religious questions, and after further attacks on Buckingham's successors, the Parliament had in 1629 been hastily dissolved, and the popular leaders imprisoned. Charles had embarked on his attempt to rule by the prerogative; and, it was important to silence all objectors. In 1631 the king was frightened by the rumour that Coke was publishing a book (perhaps the Fourth Institute3) in which there was ground to suspect that there might be""somewhat to the prejudice of his prerogative." He commanded the lord keeper to stop the publication of this book because, " he is held too great an oracle amongst the people, and they may be misled by anything that carries such an authority as all things do that he either speaks or writes." Moreover, as rumours were afloat that his health was declining, he directed that care should, be taken to scal up his study after his death.4 This direction was obeyed in 1634." Many manuscripts, including his will, were taken from his house, and many more from his chambers in the Temple. These were

**CORF's career and CHARACTER 455**

**retained till 1641, when the'House of Commons, on the motion of one of his sons, requested that they might be restored to his heir. The request was granted, and all that could be found were handed over. His will, over which he had spent much trouble 'in the later years of his life, was never discovered.1**

**The fears of Charles are the best evidence of Coke's reputation. It was a reputation fairly earned by the manner in which he had devoted his great mental and bodily powers to the single object of understanding, applying, explaining, systematizing, and exalting the common law. Throughout his life all his interests were subordinated to this. All his understanding, his reading, his powers of dialectic, his capacity for persuasive speech, were pressed into this service. In Council and Parliament as in the courts his thought was coloured by the concepts of the common law, and book case and record illustrated his speech. Necessarily he had the defects of these qualities. Like Bentham he was, to use Mill's expressive phrase, a one-eyed man who saw clearly.**

**The place which he fills in English history is due to a large extent to the character of the age in which he lived. In quieter times he would have been merely a great common lawyer with conservative prejudices." But in the seventeenth century a great common lawyer was necessarily drawn into politics. What**

**was to be the position of the common law in relation to its rivals? What was to be the position of the common law in relation to the executive government of the state? What were the doctrines of the common law as to the powers of Parliament and as to the liberties of the subject? At a time when such questions as these**

**1 Coke, Detection i 354--" Upon his death-bed Sir F. Windebank , by an order of Council came to search for seditious and dangerous papers. By virtue whereof he took Sir Edward Coke's comment upon Littleton , his comment upon Magna Charta, etc., the Pleas of the Crown, and Jurisdiction of the Courts, and his xith and zith Reports in manuscript, and I think 51 other manuscripts, with the last will of Sir Edward wherein he had for several years been making provisions for his younger grand-children. The books and papers were kept till seven years after, when one of Sir Edward's sons in 1641 moved the House of Commons that they might be delivered to Sir Robert Coke , which the king was pleased to grant, and such as could be found were delivered ; but Sir Edward's will was never heard of more to this day ;" an earlier will is mentioned in S.P. Dom. 1623-1625 19, cliv 84-85 ; it is dated November 15, 1623.**

**2 " For any fundamental point of the ancient common laws and customs of the realm, it is a maxim in policy, and a trial by experience, that the alteration of any of them is most dangerous ; for that which hath been refined and perfected by all the wisest men in former succession of ages, and proved and approved by continual experience to be good and profitable for the commonwealth, cannot without great hazard and danger be altered or changed," 4 Co. Rep. Pref, v, vi ; as Gardiner says, History of England iv 40--" Two hundred years later his name would have gone down to posterivity, with Eldon's, as that of a bigoted adversary of all reform. As it was, his lot was cast in an age in which the defence of the technicalities of the law was almost equivalent to a defence of the law itself.**

### Law in Xvith and Xvitit-Cents.

were being raised, a man who was both profoundly learned in the common law, and passionately convinced of its excellence, was compelled to take part in politics in order to defend its claims to supremacy. And the fact that he was thus drawn into politics caused an apparent inconsistency in his career, and some real inconsistency in his statements of the doctrines of constitutional law.1 There seems at first sight to be little in common between the zealous attorney-general of Elizabeth's reign, and the man who framed and helped to carry the Petition of Right. But this inconsistency is to a large extent only apparent. He could be a zealous servant of the crown under the balanced Tudor monarchy, which so skillfully and diplomatically shelved fundamental questions. Under James I. he was driven to resist the attempts to substitute the supremacy of the crown for the supremacy of the common law. In the later years of James I.'s reign, and under Charles I., he was driven into alliance with the parliamentary opposition, in order to uphold as against the crown the laws which secured the rights and privileges of Parliament, the liberties of the subject, and the Protestant character of the Reformation settlement. He stood still. His outlook was always that of a statesman of the latter part of the Tudor period. It was the changing political scene which seemed to place him in constantly fresh positions, and necessarily led him to modify his views as to important doctrines of constitutional law.

Footnote 1: Above 427-423.

The character of the man and of his age fully account for his vast influence upon the $\\mathsf{kw}$ and politics of the seventeenth century. But they do not fully account for the permanence of his influence upon the future development of English law. This permanence is due to the fact that his devotion to the common law led him to consider it to be his duty 2 to employ the scanty leisure of a busy career in the work of restating in his writings all its principal doctrines. If therefore we would understand the reasons for the permanence of his influence, if we would estimate its nature and extent, we must examine the character of these writings.

Footnote 2: " And for that I have been called to this place of judicature by his majesty's exceeding grace and favour, I hold it my duty, having observed many things concerning my profession, to publish, amongst others, certain cuses that have been \_adjided and resolved since his majesty's reign, " 8 Co. Rep. Pref. xxxiy".

### Coke's Writings

At the bar, on the bench, and in Parliament, Coke was a leader of men ; and yet he found time to write a great deal more than any other lawyer of his day. For good and for evil this active professional life has left its mark upon his writings ; and we must

**COKE'S WRITINGS1457**

always bear it in mind if we'ate to give a fair judgment upon his literary achievement.\*\* No one can contend that Coke's works are literature; but if we remember the manner of man he was, and the history of his life, we may well wonder that some of them contain somany literary qualities. I shall consider here (i) Coke's literary equipment; and (ii) his published writings.

Footnote 1: He sometimes uses a record to verify a Year Book, Pinchon's Case (16t2) g Co. Rep. at pp. 89a, 89b; or to correct a Year Book, Rigeway's Case (1594) 3 Co. Rep. 54b--a decision as to replacing after demurrer " against the opinion of g H, 6 35 in an Avoury, which record had been seen, and did not warrant the report of the Book,"

Footnote 2: Dowman's Case (1584) g Co. Rep. at p. r2b--a decision of Dyer's criticized; Thoroughgood's Case (16t2) ibid at p. 137b--certain opinions expressed in a case in Dyer are criticized; cp. Bacon's account of Coke's statement as to the revision of his Reports, Spedding, Letters and Life of Bacon vi 76, to the effect that he (Coke) had found four cases in Plowden which were erroneous; for an instance see Cuppledike's Case (16t2) 3 Co. Rep. at p. 6b.

Footnote 3: See his critical list in to Co. Rep. Pref. xiiib-xxx ; cp. 2 Co. Rep. Pref. iv, v.${}^{\\bullet}$

(i) _Coke's literary equipment._

That Coke was thoroughly well read, in the literature of the law, both in print and manuscript, from the time of Glanvil and Bracton to his own days, can hardly be denied by any one who has studied his writings. He was a master of the medieval law. No one surpassed him in knowledge of the Year Books, the Register of Writs, and the medieval Statutes. He had studied many records of the court of the Chancery, and of Parliament.1 He was familiarly acquainted with the great books on English law--Glanvil, Bracton, Ficta and Littleton, and with the small tracts--the Novae Narrationes, the Diversity of Courts, the old Natura Brevium. He was equally well acquainted with the modern authorities. He could cite and criticize such modern reporters as Dyer and Plowden,2 and the abridgments of Statham, Fitzherbert, and Brooke. He had read the Doctor and Stutulent, Staunford, Crompton, and Lambard.3 He was intimately acquainted with the Tudor statutes. And, at the same time, his experience as barrister, attorney-general, judge, and privy councilor, gave him a familiarity with affairs, which made him able to explain and apply the law derived from these authorities in a thoroughly practical and common-sense way.4

Footnote 3: For a good illustration of the practical way in which he can approach legislation see his explanation of the policy of the Tudors in regard to agriculture, which he inserts at the end of Tyrringham's Case (1585) 4 Co. Rep. at p. 39a.

His active career assisted his literary style. No one could be a successful lawyer in those days unless he were a skilful pleader; and to be a skilful pleader exactness of expression, above all things, was essential. He must also have gifts of lucid expression if, as judge or barrister, he was to prevail with a jury, and if, as attorney-general or as privy councilor, he was called on to explain

### Law in Xvith and Xvith Cents.

the law to non-lawyers. It is precisely these qualities of exactness and lucidity which are characteristic of his style. Moreover, he could arrest attention by a quaint illustration or turn of expression,1 or a fine phrase;2 and he could tersely sum up a point of law in a maxim. The latter power indeed was sometimes' dangerous; as it sometimes led him to regard these maxims, not as the short statement of a principle requiring explanation, but as the statement of a self-evident truth.3 Though he had undoubted gifts of terse and pointed expression, his style is often discursive, and often verbose--we sometimes seem to see in it the style of the draftsman of pleadings. But it is never obscure. And, when he is fired by his theme, it even rises to eloquence. The passages, for instance, in which he sums up the manner in which the Tudor statesmen had settled the vexed question of the copyholder,4 and in which he is expounding the excellencies of the common law and its position in the state,5 are two good illustrations of Coke's style at its best.

Footnote 1: Good Pleading is "the heartstring of the common law," Co. Litt. Pref; the lord shall not have an action of debt for a relief, but his executors shall, " because it has now become as a flower fallen from the stock, and they have no other remedy," Co. Litt. 47b; "knowledge of the law is like a deep well out of which each man draveth according to the strength of his understanding," ibid 7ra.

And his reading was not confined solely to law books. On points of medieval history he can cite Matthew of Paris,6 and other chroniclers;7 and of the historians of his own day he had read both Camden and Lambard.8 When dealing with a matter which involved some knowledge of military matters he cites Livy, Polybius, and Vegetius.9 He can contrast principles of the civil law with those of the common law.10 He enl

**COKE'S WRITINGS** \*\*459 references to Virgil,1 Horace,5 and Chaucer; 3 and he can illustrate a point by a citation from Tacitus,4 Cicero,5 or The Vulgate.6 Nor is there any reason to suppose, as Hobbes junkindly suggested, that these citations and references did not represent his own reading of these authors.7 It is apparent that he considered himself somewhat of an authority on etymology. But it must be admitted that of these non-professional books and non-professional branches of learning, he had no critical knowledge whatever. He accepted the information which he found with a credulity and in a manner which is as medieval as his law. He was inclined to accept as true all the legends about Brut; and he was convinced that the ancient Britons talked Greek.8 He imagined that the Modus Tenendi Parliament dated from the Conquest, and was a record of the manner in which Parliament was held under the Anglo-Saxon kings;9 and he was firmly convinced that the Mirror of Justices gave a true account of Anglo-Saxon institutions and Anglo-Saxon law.10 He derives the word " money" from " monendo," " because he that hath it is to be warned providently to use it";11 while "terra dictint a terendo quia vomere teritur."12

Footnote 10: $a$.

Footnote 11: Co. Litt. 207b.

Footnote 12: _b_id_ x41.

Footnote 13: $c$. Rep. Pref. v

### 460 Law in Xvith and Xvith Cents.

(ii) _Coke's published writings :_${}^{\\ell}$

In the days when all lawyers, who had progressed so far as to become benchers of their 1ns, were obliged to take part, as Readers, in the education of the students in those Inns, it usually happened that their readings were their earliest literary work.1 Coke in 1592 read both on the Statute of Uses and the Statutc de finibus levatis. He was an attractive lecturer if his account of his reading on the former subject is to be believed.2 Unfortunately it is only the latter reading which has found its way into print.3 It contains twenty-three lectures. They consist of a short introduction, and an outline of the topics of the reading, together with the authorities on which it was based. It is not nearly as full, nor does it possess the literary merits of the parts of Bacon's more famous reading on the Statute of Uses which have come down to us. Besides this reading we need only mention two other of Coke's shorter works--a little treatise on Bail and Mainprize, and the Complete Copyholdcr. The former is a little tract in thirteen chapters, setting out clearly and succinctly the main principles of the law--a useful tract, one would suppose, to justices of the peace. The latter is a small book in twenty chapters and sixty-two sections. It embodies the results of the many decided cases which worked out in detail the wise policy of the Tudors with regard to the copyholders.4 Thus it is the earliest of our modern books on this topic. This policy was one with, which Coke thoroughly sympathized. Satisfaction with its results, together with the limitations of space which he imposed upon himself, have combined to give the book more literary form than that possessed by any of his larger works. It is sometimes even epigrammatic, never verbose, and always happy. To be forced to severe compression is the best tonic for very learned men who, like Coke, have a tendency to wander into obscurity in their efforts, to exhaust a subject.

Footnote 1: Vol. ii SS66-507.

Footnote 2: Coll. Top, et Gen. vi 114-115--he tells us that he delivered only five lectures as the presence of the plague made it necessary to leave London; that there were present 160 "scii," and that nine of the Bench and forty of the Bar escorted him as far as Romford on his way home to Huntingfield.

Coke's larger works are his Book of Entries, his Reports, and his Institutes.5 Of each of these works I must give some description ; and, in the first place, I shall speak of the Book of Entries.

**COKE'S WRITINGS** **461**

We have seen that in this, as in the preceding period, the earliest instruction given to the student was as to the nature of writs and the forms of pleading; and that this knowledge continued to be of the first importance all through his career.1 "Good Pleading," said Coke, "is the touchstone of the true sense of the law."2 The growing complexity and importance of the subject led Coke to think that a book of precedents would be useful to the profession. In the preface to his book he somewhat exaggerates the scarcity of books on this topic;3 and he recommends his collection for much the same reasons as Plowden had recommended the precedents contained in his Reports.4 All the pleadings given were, he tells us, taken from cases which had recently come before the courts; and thus, having been sifted and approved by the judges, they could be safely followed.5 Many of the pleadings contained in the Reports were included in the book, and others besides; and sometimes short notes and references were added to explain the forms used.6 The book was published in 1614, so that it embodied Coke's experience both at the bar and on the bench. The chief criticism which I should be inclined to make upon it is that, in comparison with its rivals, it is somewhat old-fashioned. Rastell, for instance, included in his book published in 1564 a precedent of a declaration on a bill of exchange;7 and at the beginning of the seventeenth century these actions were beginning to be brought in the common law courts.8 There are no such precedents in Coke's book. That he was alive to the importance of securing for the common law this new commercial business his conflict with the court of Admiralty shows. But his book on pleading deals almost wholly with the older real actions, and the older forms and applications of the personal actions. It was probably soon superseded by the new books which gave more space to precedents adapted to the new requirements of the pleader.9

Footnote 1: Above 379.

Footnote 2: " "Many have written of the former \[the theoretic\] part, only one of the latter, unless you will account that ancient little treatise called _Les novel Tales_ or _Nogue Narrationes_ to be one," ibid; we have seen that there were more books on this topic on the market when Coke wrote, above 383-385.

Footnote 3: "Howe 384

Footnote 4: "Howe 384

By far the most important of Coke's books are his Reports and his Institutes.

The first part of the Reports was published in 1600, and the next two shortly afterwards. The remaining eight parts appeared

### 462 Law in Xvith and Xvith Cents.

at short intervals between 1603 and 1615.1 The twelfth and thirteenth parts were published after Coke's death in 1655 and 1658.2 They were not prepared by him for the press, and are in fact simply notes of cases and of other transactions in which he had been engaged. They are valuable as historica! evidence of certain of the facts of Coke's life, and as to the nature of his political views.3 But, though they contain decisions which are still cited as leading cases in constitutional law,4 they have never had the same authority as that possessed by the first eleven parts of the Reports, which he himself published as his considered views upon the cases therein contained.5

Footnote 1: Above 359 ; cp. Wallace, The Reporters 166-167.

Footnote 2: Above 359, 369.

Footnote 4: Probitions del Roy (1608)\*:z Co. Rep. 63; the Case of Proclamations (1611) ibid 74; cp. also the Case of Commissions of Enquiry (1608) ibid 31.

In the preface to Bulsrook's Reports, Bulsrook explains that, when the print of rz Co. Rep. was brought to him, be expressed the opinion that the reports were Coke's, but said that it contained " so many gross mistakes, misprintings, and imperfections that I told the party that brought it that it was not fit for the public view with so many defects in it "; in the King v. Atkins (1682) 3 Mod. at p. 13 a caseCoke's Writings 463 cases which he reports on poiints of practice, he makes the case a mere text for a summary of the law on the subject. He collects all the earlier cases and the statutes, and states his view of the jaw in the form of rules.\[1\] Sometimes he collects a number of cases beaing upon a particular topic, e.g. on copyhold,\[2\] usury,\[3\] by-laws,\[4\] executions,\[6\] slander,\[6\] and appeals and indictments ;\[7\] and then he gives a summary account of the decisions in each case and the reasons for them. When the case deals with an important principle of law, he often gives the pleadirgs at length, a summary of the arguments on both sides, and the decision together with the reasons for it.\[8\] In these cases he goes at length into all the authorities ancient and modern, explains, distinguishes, and, when possible, reconciles conflicting decisions and dicta. To the pleadings he attached great importance; and when the pleadings are set out he sometimes shortens the argument.\[9\] To his mind the ideal report was a summary account of the effect of all that was said on both sides, " beginning with the objections and concluding with the judgment of the court."\[10\] But he admits that, owing to the wishes of the profession, he has sometimes departed from this rule and given an account of "the effect of all that was objected or resolved," whether relevant to the decision or not.\[11\] Like the older reporters, he occasionally diverges to comment upon the conduct of a case,\[12\] to note the character of a judge,\[13\]

### 464 Law in Xvith and Xvith Cents.

to state his views as to public policy,1 or to give advice to lawyers and laymen.2

Footnote 1: Tyringham's Case (1584) 4 Co. Rep. at p. 39a--as to the need for protecting agriculture.

Footnote 2: E.g. Butler and Baker's Case, at p. 36b--advice as to the making and revocation of wills; Edward Seymour's Case (1673) to Co. Rep. at p. 98a--advice to pleaders ; Robert Piffold's Case (1673) to Co. Rep. at p. 177b--advice not to put to much trust in Abridsments " which are good to serve as talles to find the cases in, and not to ground any opinion upon."

Thus it is clear that Coke in some cases deliberately set himself to give an account of the law as it stood in his day, and simply used the case which he is reporting as a peg or which to hang his disquisition; while in others he intends only to give the effect of the arguments actually used during its hearing.3 But it is extremely probable that, even in the latter class of cases, his enthusiasm for sound doctrine, and his great learning, led him to improve upon the arguments used, by explaining more clearly the grounds upon which they rested, and by showing how they were consistent with the numerous dicta on the subject which could be found in the Year Books.4 Occasionally, we cannot doubt, he added and explained authorities suggested to him by his own reading--Bacon once said that in his Reports there was too much "'de proprio;"5 and the writer of the Observations, attributed to Lord Ellesmere, is even more severe.6

Footnote 3: He says in the Preface to Co. Litt.--" In fine eleven books of our reports we have related the opinions and judgments of others; but herein we have set down our own."

Footnote 4: Cp. Thayer, Evidence 186-187 n.

Footnote 5: * Great judges are unfit persons to be reporters, for they have either too little leisure or too much authority ... that of my lord Dier is but a kind of note book, and those of my lord Coke's hold too much _de proprio_," Spedding, Letters and Life of Bacon v 86.

Footnote 6: * Scattering or sowing his own conccits almost in every case, by taking occasion (though not offered) to range and expatiate upon by matters," Observations on Coke's Reports 2; * he hath expatiated into new fields, and stuffed his volumes with grains of another kind, as if they were rather commonplaces for stores of different matters than true observations of the reasons of the cases then in j.d.d.gment," ibid 19-20; for striking illustrations see above 430 nn. 2 and 3.

Footnote 7: Good illustrations are, Butler and Baker's Case (1597) 3 Co. Rep. 25a; the Case of Fines (1602) 3 Co. Rep. 84a; the Case of Magdalen (College, Cambridge (1667) 15 Co. Rep. 66b.

Footnote 8: * (1597) 5 Co. Rep. 1. * The Case of Bankrupts (1584) 2 Co. Rep. 25a.

Footnote 9: * (1602) 3 Co. Rep. 80b.

The cases reported form a corpus of the common law, both criminal and civil, as it existed in the sixteenth and early sevententh centuries. All parts of the law, old and new, are reviewed. The older learning where applicable is restated; and the manner in which it has been modified by the numerous and important statutes of this period is explained.7 Thus in _Caudrey's Case_ we get Coke's view of the legal effects of the Reformation legislation $\\gamma$8 and in other cases the statutes which introduced new branches of law, such as thoserelating to bankruptcy,9 fraudulent conveyances,10Coke's Writings

and usury,1 are applied and interpreted. The new developments of the common law--such as the beginnings of the struggle against the creation of perpetuities,2 the development of assumpist,3 and the new practice of hearing actions on contracts made abroad4-are noted, justified, and explained. And the cases reported are by no means confined to those heard in the common law courts. Numerous cases heard by the court of Wards,6 several heard by the court of Star Chamber,6 and one or two heard in the Chancery are reported.7 'One case even gives us the advice given by the judges to the House of Lords as to a pending bill.8 The fact that the common law could appeal to some of these precedents was very useful to it when, as a result of the Great Rebellion, the common law courts got all and more than all the jurisdiction which Coke had claimed for them.

Footnote 1: Cases of Usury 5 Co. Rep. bga-7oa.

Footnote 2: Chudleigh's Case (1589-1595) I Co. Rep. r8oa; Sir Anthony Midmay's Case (r606) 6 Co. Rep. 4oa; Mary Portington's Case (r61.t) 10 Co. Rep. 35b.

Footnote 3: Slade's Case (r602) 4 Co. Rep. 9.2b.

Footnote 4: Dowdale's Case (r606) 6 Co. Rep. 46b.

Footnote 5: E.g. 8 Co. Rep. r63b-173b.

Footnote 6: E.g. Twynne's Case (r602) 3 Co. Rep. Sob; De Libellis Famousis (r603) 5 Co. Rep. 125a.

Footnote 7: Buckhurst v. Fenner (r598) r Co. Rep. 1.

Footnote 8: The Case of Ecclesiasticl Persons (r602) 5 Co. Rep. r4a.

Footnote 9: In truth, reading, hearing, conference, meditation, and recordation, are necessary . . to the knowledge of the common law, because it consisteth upon so many, and almost infinite particulars: but an orderly observation in writing is most requisite of them all: _for_ reading without hearing is dark and irksome, and hearing without reading is slippery and uncertain, neither of them truly yield seasonable fruit without conference, nor both of them with conference, without meditation and recordation, nor all of them together without due and orderly observation," r Co. Rep. Pref.

Footnote 10: 41 have termed them Institutes because my desire is, they should institute and instruct the stud:us, and guide him in a ready way to the knowledge of the National VOL. v.--30

### Law in Xvith and Xvitih Cents.

scheme of legal study. He advises the student to read and digest these works, while he is attending moots and readings and the courts.1 He should then tackle the reports--reading first the more recent, and then the older cases and the older textbooks.2 Coke thus both sketched in outline the modern methods of legal study, which the growing complexity of the law and the printed book had rendered necessary and possible, and actually introduced them, by writing the first of our English-h textbooks upon the modern common law. \*

Footnote 1: Co., Litt. Pref., cited above 465 n. g.

Footnote 2: "After our student is enabled and armed to set on our Year Books. let him read first the latter reports, for two causes; first for that the most part the Latter judgments and resolutions are the surest. . Secondly for that the latter are more facile and easier to be understood than the more ancient; but after the reading of them, then to read these others before mentioned, and all the ancient authors that have written of our law; for I would wish our student to be a compleat lawyer," Co. Litt. 249b.

Footnote 3: Ibid Pref. ; for a good account of the dates of publication of the various editions see Dict, Nat. Biog.

The Institutes are in four books. The first contains Litttleton's text with an elaborate commentary; the second contains a commentary upon Magna Carta, and many other medieval statutes together with certain modern statutes; the third contains the criminal law; and the fourth an account of the various courts which had jurisdiction in the English state. The first Institute was published in 1628. The second and third were finished at the same time, but were not published till 1641; and the fourth, which was finished in the later years of Coke's life, was also published in 1641. Of all parts of the Institutes there have been very many editions; and the first Institute has been several times abridged.3

Footnote 4: Throughout the Reports we get passages in which Coke eulogises Litttleton (e.g. 2 Co. Rep. 67a; 3 Co. Rep. 63b); in the Pref. to 10 (Co. Rep. xv-xviii occurs his denunciation of Hotman for having ventured to speak disrespectfully of him, end his eulogy of Litttleton's book--" And for Litttleton's Tenures, I affirm and will maintain it against all opposites whatsoever, that it is a work of absolute perfection in its kind, and as free from error as any book that I have known to bt written of any human learning."

The First Institute--Coke upon Litttleton--is very different in character to all the others. It is very much more full and more elaborate, and was, as we have seen, the only one of the, Institutes published in Coke's lifetime. Evidently it was a book upon which Coke had been engaged all his life.4 Littleton was the first book which a student read.5 Coke upon Littleton was meant to be I.itttleton brought up to date, bearing somewhat the same relation to the original, as Justinian's Institutes bear to those laws of England," Co., Litt. Pref. Perhaps it was Camden who suggested the title to him, as he quotes him, to Co. Rep. Pref. xvii, xviii, as saying that Littleton's Tenures were no less useful to the students of the common law than Justinian's Institutes to the civilians. 4

Footnote 4: "After our student is enabled and armed to set on our Year Books. . let him read first the latter reports, for two causes; first for that the most part the Latter judgments and resolutions are the surest. . . Secondly for that the latter are more facile and easier to be understood than the more ancient; but after the reading of them, then to read these others before mentioned, and all the ancient authors that have written of our law; for I would wish our student to be a compleat lawyer," Co. Litt. 249b.

Footnote 5: "Ibid Pref. ; for a good account of the dates of publication of the various editions see Dict, Nat. Biog.

Footnote 4: "Throughout the Reports we get passages in which Coke eulogises Litttleton (e.g. 2 Co. Rep. 67a; 3 Co. Rep. 63b); in the Pref. to 10 (Co. Rep. xv-xviii occurs his denunciation of Hotman for having ventured to speak disrespectfully of him, end his eulogy of Littleton's book--" And for Littleton's Tenures, I affirm and will maintain it against all opposites whatsoever, that it is a work of absolute perfection in its kind, and as free from error as any book that I have known to bt written of any human learning."

Footnote 8: For Littleton and his book see vol. ii 571-575.

**COKE'S WRITINGS**

of Gaius. But in fact it is a great deal more than this. The commentary itself is of extraordinary verbal minuteness--e${}\_{\\text{x}}$-tending even to the use which Littleton makes of an "etc.";1 and of an equal remarkable fulness. Every word, every doctrine, every legal institution, is explained. When necessary its history is given, and changes and developments which have occurred since Littleton wrote are noted. All Coke's reading in the older text books, in the Year Books, abridgments, and records, in modern legal writers, in general literature, and all his experience as counsel and as judge, are pressed into this service.2 The result is that discussions of the most abstruse legal doctrines are found side by side with the most elementary pieces of information; and the student is instructed not only in the land law but also in many other branches of the law. Thus there is information as to the later developments of detinue and conversion,3 as to the law of executors,4 as to negligence 5 and duress,6 as to pleading and procedure,7 as to mercantile law,8 as to actions in England on transactions abroad,9 as to corporations,10 as to allegiance,11 as to estoppel,12 as to f colony,13 as to maintenance and champerty,14 and many other topics. In fact, all branches of the law which are not to be found in the other three books of his Institutes, and a good many that are, will be found more or less fully treated in the first Institute. It is a legal encyclopaedia arranged on no plan,15 except that suggested by the words and sentences of Littleton.

Footnote 1: Co. Litt. 17a, 17b--the is nothing in our author but is worthy of observation. Here is the first 'etc.' and there is no 'etc.' in all his three books . but it is for two purposes. First it doll imply some other necessary matter. Secondly that the student may . inquire what authorities there be in the law that treat of the matter." Coke then enumerates rjo sections in which the "etc." occurs.

Footnote 2: Thus ibid 49b, 2ztb, Coke refers to cases which he had heard and observed ; Butler truly says that this commentary " is an immense repository of everything that is most interesting or useful in the legal learning of ancient times," Reminiscences of Charles Butler i 18.

Footnote 3: I Co. Litt. 57a, 28Gb. 4 Ibid 8gb. 5 Ibid 246a. 6 Ibid 253b. 7 Ibid 128b, 303a-304b. 8 Ibid 172a, 182a. 9 Ibid 261b. 10 Ibid 25oa. 11 Ibid 68b. 12 Ibid 352a-352b. 13 Ibid 391a. 14 Ibid 368b. 15 Coke did not think mech of elaborate schemes of arrangement; he tells us in the Preface to the Book of Entries that in his opinion, "every man's own method and observation in reading is ever the best and readiest of all others for himself"--the certainly acte@ on this maxim.

Footnote 6: Lives of the North's i 17; and Blackstone, Comm. i 73, was of much the same opinion.

### Law in Xvith and Xvith \_C_ents.

Coke could recommend it as useful${}^{\\clubsuit}$for this purpose. It seems to me that there are two sets of reasons which may afford a partial explanation. In the first place, he did not intend the student to read the whole commentary at once. He meant him to master Littleton's text, and then to assimilate the commentary by degrees;1 and he no doubt considered that the reading of the text and commentary would be supplemented by the educational system of the Inns of Court, which, though on the decline, was still a living system.2 In the second place, the grouping of a large number of miscellaneous legal topics round the land law followed the traditional historic order of the common law. Just as in Roman law many topics belonging to the general law of contract are grouped round the stipulatio, because it was the most general form of contract known to Roman law, so in English law, from the days of Bracton downwards, many various topics had been grouped round the land law, because it was the most highly developed branch of the common law.3 We see this characteristic in Littleton's own book;4 and it is of course much more marked in Coke's commentary, because, between the times when Littleton and Coke wrote, these other branches of the law were being rapidly developed. This rapid development was fast making this grouping of topics obsolete. The law of contract and the law of personal property were becoming independent branches of the law--as important as the land law itself. But it was hardly to be expected that a man like Coke, who was saturated with mediaval law, whose outlook both as judge and politician had ever been directed to the past, should appreciate these new developments. That was a point of view which came more naturally to a man like Bacon whose outlook was always towards the future.

Footnote 1: Co. Litt, Pref.--\* Mine advice to the student is, that before he read any part of our commentaries upon any section, that he first read again and again our author himself in that section, and do his best endeavours, first of himself, and then by conference with others (which is the life of study) to understand it, and then to read our Commentary thereupon, and no more at any one time than he is able with delight to bear away,"

Footnote 2: Vol. ii 506-508; vol. iv 263-270; vol. vi c. 8.

Footnote 3: Vol. ii 260.

The Second Institute deals mainly with public law, and with the additions which statutes had made to:that common law which had been more or less described in the preceding book. Altogether some thirty-nine statutes are commented on, of which twenty-six belong to the mediaval period. Round the commentary on Magna Carta,5 the Confirmatio Cartarum,6 the De Tallagio non concedendo,7 and the Articuli super Cartas,8 is grouped much learning on those constitutional doctr

## 10 Coke's writings

later years in asserting ; and round the commentary on Circum-specte Agatis,1 De Asportatis Religiosorum,2 and Articuli Cleri,3 is to be found the learning as to the relations of the ecclesiastical to the common law. Throughout the commentaries on these statuteswe hear echoes of the great political controversies of the day--the questions of impositions,4 of monopolies,5 of prohibitions,6 of the right to release on bail,7 of the right of the king to stay proceedings in an action.8 His comments on the other medieval statutes contain disquisitions on many various branches of medieval law, which either had not been noticed, or which seemed to demand fuller treatment than they had received in the comment on Littleton. Thus we get comments on the Statutes of Merton,9 Marlborough,10 the two statutes of Westminster,11 the modus levandi fines and the de finibus levatis,12 on certain statutes from Richard II. and Henry VII.'s reigns relating to the export of the precious metals,13 and on a statute of Henry V.'s reign relating to Additions, i.e. descriptions of defendants in legal proceedings.14 Certain sixteenth century statutes, which introduced new branches of the law, are noted. They comprise the statute of enrolments,15 certain statutes of Henry VIII.'s reign relating to procedure, to the repair of bridges, and to printers ;16 and certain statutes of Elizabeth's and James I.'s reigns relating to hospitals, houses of correction, rogues, and the building of cottages.17 As usual the $\\bullet$ commentaries are both discursive and learned. In the case of the more modern statutes they are historically very valuable, because they often give us the contemporary view of the reasons for passing them, and first hand information of the results of their working.18

Footnote 18: The $

### 470 Law in Xvith and Xvith (Cents.

with the criminal side of their jurisdiction.1 But Coke's book was more elaborate than any of these ; and, as he himself points out, his career as law officer and judge enabled him to give a good deal of new information on the subject of the important developments which had taken place in the law of treason, as well as in other parts of the law during this period.2 Here, as in the Second Institute, he has a good deal to tell us of the statutes of his own day. Of these the most important were those relating to monopolists,3 'dispensers with penal statutes,' and bankrupts.5

Footnote 1: Vol, iv iv iv15-iv9.

Footnote 2: "When we consider how many Acts of Parliament (published in print) that have made new treasons and other capital offences, are either repealed by general or express words or expired : how many indictments, attainders of treasons, felonies, and other crimes, which are not warrantable by law at this day : and how few book cases there have been published of treasons : and those very slenderly reported : we in respect of the places which we have hidden, and of our own observation, and by often conferences with the sages of the law in former times concerning criminal causes : have thought good to publish this third part of the Institutes," Third Instit. Prof.

Footnote 3: Third Instit. c. 85; vol. iv 345-353.

Footnote 4: Third Instit. c. 86; vol. iv 358-359.

Footnote 5: Third Instit. c. gr; above j35-j36, j39; Pt. II. c. 4 I. SS 6.

Footnote 6: Vol. iv iv7-iv9.

Footnote 7: "How to make the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of the title of title of the title of the title of the title of title of the title of the title of the title of title of the title of the title of the title of title of the title of the title of title of the title of the title of title of the title of the title of title of the title of the title of title of

**COKE'S WRITINGS** **471**

hand, he was not prepared to deny, as the Parliamentary lawyers and statesmen then and afterwards denied, the legality of the jurisdiction of the Star Chamber. He defended both its legality and its utility.1 We cannot doubt that he honestly thought that he had given a true description of the sphere of the jurisdiction of the courts which competed with the common law. But, in reality, he simply repeats the views which he had expressed when on the bench--even in the case of the Chaucery he seems to revert to his old position.2 That these views would give offence he did not doubt;3 and almost his last words were a solemn warning to the judges to deliver their opinions justly according to law, careless whether or no they offended great men or favourites.4

Footnote 1: Vol. i 507-508, 513; Fourth Instit. 62-63.

Footnote 2: Third Insitit. r23-125; cp. Fourth Instit. 82-84; it is alleged that in this case the publisher included old notes and torn papers written before James I.'s decision, Vindication of the jurisdiction of the Court of Chaucery, r Ch. Rep. 2-3.

Footnote 3: Ibid, Epilogue--"Throughout this treatise we have dealt clearly and plainly concerning some pretended courts which either are no courts warrantable by law or which without warrant have invocaded more jurisdiction than they ought Wherein if any of our honourable friends shall take offence our apology shall be, _Anticus Plato_, _Amicus Socrates_, _sed magis anica Veritas_."

Footnote 4: **: And you honourable and reverend judges and justices, that do or shall sit in the high tribanks and courts or seats of justice. -- fear not to do right to all, and to deliver your opinions justly according to the laws . And if you shall sincerely execute justice be assured . that though thereby you may offend great men find favourites, yet you shall have the favourable kindness of the Almighty, and be litis favourites," ibid.**

It is easy to see why Coke did not care to publish the last three parts of the Institutes in his life-time. The First Institute dealt with branches of the law very remote from any of the constitutional controversies of the day. But a large number of the topics treated of in the other three books touched them at many points. When the Second and Third Institutes were finished in 1628 Coke's active career was over;5 and when the Fourth Institute was finished, Parliament had been dissolved and the country was being governed by the Prerogative.6 We cannot blame Coke for not wishing to shorten his few remaining years by a close imprisonment in the Tower. He had recorded his opinions. Their publication could well wait till a more favourable season. $\\bullet$

Footnote 5: Above 453-454.

When they were published in 1641, it was the hour of the victory of the common law and the Parliament. Men did not stop to consider the accuracy or the validity of the arguments upon which Coke based his claim that the common law and Parliament were supreme in the state, they simply accepted them, and made his writings the basis, not only of our modern constitutional law, but also of the whole of that large part of ourLaw in 'Xvith and Xvith Cents.

modern English law which is comprised under the general term "common law." 1 It is not surprising therefore that, from that time, and almost down to our own days, there have been many lawyers who would hardly admit of the existence of any serious shortcomings in Coke's work.2 But during the last century there has been a reaction. Coke has been attacked on opposite grounds by two very different schools of lawyers. In the first place, he has been attacked by the historical school on the ground that he has sometimes carelessly, and sometimes it is even said intentionally,3 misrepresented historical facts. In the second place, he has been attacked by lawyers of the school of Austin and Bentham on the ground that both the matter and the form of his writings are obscure, illogical, and ill-arranged. Let us look at these two classes of criticism and see to what extent they are justified.

Footnote 1: See the Preface to Prynne's Animadversions.

Footnote 2: Thus Butler said, Reminiscences i 65, that " he has never met with a person thoroughly conversant in the law of real property who did not think with him--that he is the best lawyer, and will succeed best in his profession, who best understands Coke upon Littleton."

Footnote 3: That his misrepresentations were intentional I can hardly believe in the face of his known honesty and the high standard which he set before himself, see e.g. 9 Co. Rep. Pref. xivb, xv; but, as we shall see, the zeal with which he took up any cause that he was advocating at the moment, caused him to put such extraordinary constructions on his authorities that it is easy to think that he was intentionally misrepresenting them.

(a) _The exceptions taken by the historians._

'Time has its revenges. Coke in his lifetime was at pains to advise and correct historians if they ventured into the domain of law ;4 and now the historians have turned upon Coke, and pointed out that his history is often inaccurate, and that his law is not the true medieval law which he represented it to be. It must be admitted that there is a large amount of substantial truth in these criticisms. Coke was always the lawyer, always the advocate, and in the latter part of his life a keen politician. The lawyer, the advocate, $\\mathfrak{g}$nd the politician must needs make excursions into the domain of the historian for their own special purposes. But history so produced will generally be, as history, worthless. If we remember that Coke's excursions into the domain of history were all made with a purpose ; and that, in addition, he had no conception of history for its own sake, and no power of criticizing the historical sources which he used, we shall not be surprised that, as compared with the work of true historians, like Selden or Bacon, his historical work is almost

**COKE'S WRITINGS.** **473**

contemptible. If we glance at the various pdrposes for which Coke was obliged to trespass upon the domain of the historian, we shall be the better able to understand why, in this historical age, Coke's reputation has fallen to perhaps an unduly low ebb.

As a lawyer Coke was obliged to make a large use of history in order to explain his law. The continuity of the common law must make every sound common lawyer something of an historian, even in these days of active legislatures and tyranous majorities; and much more was this the case in Coke's day, when the law was regarded, not as the will of the strongest, but as a set of just principles to be declared by the lawyers from their books of authority and the records of the courts. At all times, moreover, our system of case law has tended to make lawyers exaggerate the amount of continuity which there is in the development of legal doctrine. Coke drew his precedents from very old sources--the older the source, he thought, the purer the law.1 He naturally represented the law of his own day as the logical outcome of the law laid down in these older sources. The newer decisions had not changed the law--they had merely developed or explained the truth to be found concealed in the oldest authorities. This way of reasoning, which is found not only in Coke but also in the writings of many later gefelerations of lawyers, has tended to mislead historians who are not lawyers. At the same time the present state of our knowledge of legal history has led historians who are lawyers to join in condemning Coke. We know mor$\\bullet$ about the legal doctrines of the twelfth and thirteenth centuries than about the legal doctrines of the fifteenth and sixteenth centuries. We see a doctrine in Bracton or in the earlier Year Books. We see it in a somewhat different form in Coke; and we are apt to conclude that Coke has been reverting his sources.

Footnote 1: 2 Co. Rep. Pref. xii, xiii; 4 Co. Rep. Pref. v-vi, cited above 455 n. 2.

Let us take an illustration. Pike has pointed out 2 that when Coke, commenting on Littleton, states that an odvowson lies in grant _but not in livery_, he is introducing a negative statement for which there is no warrant in Littleton. But though Coke has thus given a new turn to Littleton's words, he did not do so without authority. In 14903 Brian and Vavisor agreed that since an odvowson passed by grant, it could not pass by livery. Coke was not writing legal history. He was only using legal

### 474 Law in' Xvith and Xvith _cents_.

history to explain the law of his own day ; and I think it probable that some of his statements, which seem at variance with the older authorities, are based upon more recent authorities which, as a lawyer stating modern law, he was bound to follow.1 A judge who at the present day followed seventeenth century rather than nineteenth century decisions, would find his judgments very frequently reversed. I do not, of course, mean to say that all Coke's historical statements can be justified in this way--many of them are obviously wrong,2 and some of them are confused.3 How many can be so justified I cannot pretend to say ; for that would involve a knowledge of the Year Book cases and sixteenth century reports to which I cannot pretend. But very probably some of his errors may be thus explained ; and clearly for errors of this kind he cannot be censured. Nor can he, I think, be censured because his conservative prejudices and his profound acquaintance with the medical sources have sometimes laid him open to the opposite criticism, that he lays down as living law rules which were, if not obsolete, tending to become obsolete.4 But these pleas cannot be urged in defence of the errors into which he fell, either from his habits of indiscrect advocacy or from his political bias.

Footnote 1: As we have seen he recommends the student to read the more recent cases first, above 466 n. 2.

Footnote 2: See e.g. his statement in the Case of Abbot of Strata Mercella (r592) g Co. Rep. 32b that the ordeal was taken away by Parliament--as to this see vol. i3rr; in Mary Portington's Case (r614) to Co. Rep. 38a Serjeant Hill has corrected a deduction drawn from Fitz., Ab. _Brief_ pl. 324 as to the effect on the estate of a tenant in tail of a recovery in value--as to this see vol. iii r18-r19.

Footnote 3: See e.g. in Peytoe's Case (r614) 9 Co. Rep. 80a--a very confused account of the writs Quare giccit infra terminum and ejetico firma; for these writs see vol. iii 214.

Footnote 4: For Hale's criticisms (a P.C. 109, 100) on Coke's views as to the powers of the justices of the peace to arrest suspected persons, see vol. i 294-295: so too in Semayne's Case (r605) 5 Co. Rep. 9rb he says that, " although a man kills another in His defence, or kills one per infortumum, without any intent, yet it is felony "; as to this see vol. iii 31z--obviously Coke treated the old principle as"th's rule, and the later cases as establishing exceptions to it, though, when he wrote, the old rule was practically obsolete.

$A$ very cursory acquaintance with Coke's writings will show us that he approached both law and history with the mind of a strenuous advocate. All through his life he never ceased to be an advocate of legal doctrines or political causes. Whether he is reporting a case, or argting for the supremacy of the common law in the state, or upholding the rights and privileges of Parliament, he does it with all his strength ; and the result is that he talks and writes himself into a decided view on the subject. I very much doubt whether in all Coke's writings a passage could, be found in which he admits that he has left any uncertainty in the law. There are many passages in which he states he has re

**COKE'S WRITINGS** **475**:

conciled all doubts and all conflicting cases; #nd no doubt he honestly thought that he had done so. He had taken a view; he had supported it with all his learning; and he had no manner of doubt that it was the only possible view. Now this defect of Coke's mind is the cause of two very grave shortcomings in his writings.

In the first place, the many causes which he advocated in the course of his long life were not always consistent with one another. Thus the dicta in _Bonham's Case_, on the power of the common law to override Acts of Parliament, are not very consistent with the views which he elsewhere expresses about the supremacy of Parliament.1 Some of his dicta in the _Case of Non Obstante_, as to an inseparable prerogative belonging to the crown, which no Act of Parliament can take away, are certainly not consistent with his more considered statements that the prerogative is subject to the law.2 His work therefore is disfigured by inconsistent statements; and it is for this reason that it is difficult, as Maitland has pointed out, to pin him down to any particular theory.3

Footnote 1: Vol. iv r87 n, 2; cp, vol. ii 442, 2 Vol. iv 205-206; above 430-431, 451.

Footnote 3: Maitland, Constitutional History 300.

In the second place, this mental defect tended to make him very uncritical in the use of his authorities, and even led him to misrepresent their effect. He always seems to be arguing a case; and everything strong or weak that may affect the decision must be urged. To such a man the definite statements made in the Mirror of Justices strongly appealed. They confirmed all his preconceived ideas of the antiquity o$\\hat{\\boldsymbol{\\psi}}$ the common law. They told him that, behind the meagre statements of the Anglo-Saxon codes and early Norman custumals (such as the Leges Wilhelm), there existed both the Parliament and the common law with which he was familiar.4 They proved, to his mind, the theory, which he wished to believe, that the common law owed little or nothing to the Conquergr and his successors.5 And this readiness to accept anything in support of the view which he is defending, makes it easy for him to misrepresent his authorities, by reading, into them the sense which supports the conclusion which he wishes to draw. We have seen that he twice repeats a statement that one of the counts of an indictment of Wolsey contained an accusation that he had attempted to subvert the common lawLaw in Xvith and Xvith , Cents

the facts being that the indictment was not of Wolsey at all, and that the passage as to subverting the common law was merely the common form used in any indictment under the statute of Praemunire.1 The errors into which his endeavours to withdraw business from the Admiralty to the courts of common law led him, are well known, since they have been exposed by Prynne in the seventeenth century, and by Mr. Marsden in our own day.2 Obviously this last illustration of Coke's use of his history to advocate his views is closely connected with the political uses to which he turned it.

Footnote 1: Vol. iv 253, 257-258.

Footnote 2: Vol. i 553-554, 558; Prynne, Animadversions on Coke's Fourth Instit.; Marsden, Select Pleas of the Admiralty (S.S.); cp. also the remarks on his bias against the ecclesiasticl courts in Jefferson v. the Bishop of Durham (1797) i Bos. and Pull. at pp. top-100, a bias which led him astray in certain of the rules which he laid down in Liford's Case (1615) ix Co. Rep. at f. 49b.

We have seen that Coke's advocacy of the claims of the common law to be supreme in the state led him in his later years to become a leader of the Parliamentary opposition to the Stuart kings. We have seen that, though this change of front was the logical consequence of his advocacy of the claims of the common law, it involved a reconsideration of some of his earlier opinions on such matters of public law as the right of the crown to levy impositions and exact loans, and to commit to prison without cause shown.3 In earlier days these recantations tended to make men believe in the infallibility of Coke. When men thought that the constitutional principles established in the seventeenth century were not merely beneficial to the state, but also incontestably sound law, the views of Coke on these matters in his published writings seemed to prove his legal infallibility on all matters.4 But in our own days they have had the opposite effect. We see now that the public law of the seventeenth century was very obscure; and that, though the victory of constitutional principles was undoubtedly beneficial to the state, the legal principles upon which the leaders of the constitutional opposition relied were often very dubious. Hence we see in these recantations of Coke evidence, of his political bias; and we are apt to doubt whether, in other branches of the law, he is so infallible as our forefathers thought

**COKE'S WRITINGS**

**him.** I do not think that either line of argument is quite legitimate. We must separate Coke's views on matters which related to the political controversies of the day from matters which did pot. And I think that on matters of law unconnected with these controversies a general charge of inaccuracy is not proved. No doubt dicta can be found which disparage his accuracy ; but of the soundness of some of these dicta Mr. Wallace has, it seems to me, successfully disposed.1 No doubt later cases have sometimes shown that Coke was wrong ;2 but they are very small in number compared with the cases in which his ruling has been accepted. No really certain conclusion could be arrived at, unless someone were to devote a lifetime to comparing the multitudinous references in his works to the Year Books and records, with the conclusions which he draws from them. But, in default of an inquiry on such a scale, I think that in fairness to Coke it should be remembered, firstly, that his skill as a reporter and the benefits which his Reports had conferred on the law were publicly recognized by the court of Star Chamber in 1613 in the decree made in the _Case of Priest and Wright_ ;3 secondly, that his very

### Law in Xvith and Xvith Cents.

able opponents 'Bacon and Ellesmere could not, though encouraged by the king, find any serious errors in his Reports, except in cases of a political or semi-political character;' and thirdly, that the able lawyers of his own day, who, because they were his contemporaries or immediate successors, knew, the older authorities more intimately than we do, found no considerable faults. Let us remember that Bacon admitted that the Reports " though they may have errors, and some peremptory and extra-judicial resolutions more than are warranted, yet .contain infinite good decisions and rulings over of cases ";' and that even in the Observations on Coke's Reports it is admitted that, though there were certain things that were bad, and certain things that were mediocre, there were more things that were good.' In view of these facts I think that the view that Coke is inaccurate in his statements of law on matters unconnected with the political controversies of the day is not proved.

Let us now turn to the criticisms made by writers of another school.

_(b) The exceptions taken by the analytical jurists._

Though Coke's use of history is often unhistorical, he was, for all that, a lawyer of the historical school. " Out of the old fields

**COKE'S WRITINGS** **479**

must grow the new corn," way a favourite proverb of his--out of the old authorities in the law must come the new rules and principles needed to guide the activities of all men in the English state. And he had all the defects of the historical lawyer in an exaggerated form. He is ready with an explanation, and sometimes with a defence, of all the anomalies which disfigured the law. He almost justifies trial by battle;1 and he regrets the decay of the cumbersome apparatus of the real actions.2 He is ready also with detailed explanations ofall the technical rubbish with which the premature hardening of the procedural rules of the common law into a definite system had burdened it;3 and between explanation and justification it never occurred to him that there could be any distinction. Though he was a master of the principles of the common law, his statement of these principles was often obscured in his writings by the mass of detail with which it was accompanied;4 distinctions were sometimes drawn where no real differences existed; and fundamental differences were sometimes not sufficiently emphasized.5

Footnote 2: See the discussion in \[1\].

Footnote 3: See the discussion in \[1\].

Footnote 4: This is especially noticeable in the First Institute, above 467.

Footnote 5: Hobbes remarks, Dialogue of the Common Laws (Works vi at pp. 74, 75), that "Sir Edward Coke does seldom well distinguish, when there are two divers names for one and the same thing; though one contain the other, he makes them always different "?; Stephen, H.C.L. ii 206 n. r, adds that "when one name applies to two things he makes them always the same "; the author of the Observations on Coke's Reports ,says at p. 20 that "a clear case is clo

### 480 Law in Xvith and Xvith, Cents.

At the same time he has all the good points of the historical lawyer. The analytical lawyer usually bases his analysis mainly upon the ideas current in his own day. However much he may wish to do so, he can never wholly emancipate himself from the intellectual atmosphere in which he lives. He is therefore inclined to reject as useless all that is not in accord with these current ideas. But the historical lawyer preserves the ideas of past ages ; and these ideas often come into their own again in a future age. Coke's writings preserved for England the medieval idea of the supremacy of the law, at a time when political speculation was tending in the direction of the supremacy of a sovereign person or body which was above the law ;1 and the obscurity and indefinite character of some of the medieval rules of law which he states, preserved for the common law a flexibility, which is the condition precedent for natural development and expansion.

Footnote 1: Vol. iv 192.

As Coke's writings thus possess all the vices and virtues of the historical lawyer in an exaggerated degree, they have naturally attracted the censure of those whose minds are cast in an analytical mould. And in one of Coke's younger contemporaries was to be found a mind which combined great learning with extraordinary powers of logical analysis. We shall see that Thomas Hobbes was the first Englishman to apply his gifts of logical analysis to explain to his fellow-countrymen the comparatively new doctrine of sovereignty, and to show them how the application of this doctrine to the political facts of the day would clear up all the existing political perplexities. This meant that he approached English constitutional law and the political theories which underlay it from a new and a critical standpoint. But as English constitutional law was and is a part, of the common law, it was inevitable that he should extend his criticism to the common law generally. It was during the Great Rebellion that Hobbes was elaborating his theories. At that time Coke had come to be regarded as the greatest authority on the common law, so that Coke's views upon the constitutional theory of the English State had come to be the views of most common lawyers, and of many statesmen. But Coke's law and political theories were essentially mediaval, and therefore wholly illogical from the standpoint of the new doctrine of sovereignty. It was natural therefore that Hobbes should select Coke's books as the type and model of that obsolete mediavalism in law and politics which he was making it his chief endeavour to combat,

**Coke's Writings**

It was natural also that, in , the light of his new principles, he should find much to condemn in many of the rules of a system of law, which, however well they could be explained historically, were obviously unsuited to the needs of the modern state.

It is not therefore surprising that, in his " Dialogue of the Comomfl Laws," Hobbes attacked Coke's legal theories with those analytical weapons which Austin has made familiar to modern lawyers, and the subject matter of some of the rules laid down by him, with those arguments based on reason and utility which Bentham was later to urge with so great an effect. There is a very modern ring in his criticisms. Law, he says, should not be defined as a "Sanctio justa, jubens honesta, et prohibens contraria." Rather it is the command of a sovereign, which, though it may be injuitous, cannot be unjust.1 Neither case law2 nor customa is truly law. Law is no product, as Coke would have it, of artificial reason :4 it should be so clear to the ordinary reason of mankind that a layman should be able to give as good an opinion as to its meaning as a lawyer.5 The absurd rules which Coke either explains or defends should be altered ; 6 and the useless distinctions which he invents should be declared to be baseless.7 Hobbes's criticisms were approved by Sir James Stephen;8 but we should do well to remember that Stephen, though he was the historian of our criminal law, had the mind of an analytical jurist ; and that his greatest work was done in the "sphere of codification. Nor would his criticism have been wholly approved by our greatest analytical,jurist. When we read his

### Law in Xvith and Xvith 'Cents.

concemination of, Coke's disorderly mind, of his technical and pedantic divisions, of his puerile and self-contradictory speculations,1 let us remember that, in Austin's opinion, Coke's mastery of the English legal system as a whole was equalled only by the mastery of their own system possessed by the great Roman jurists.2,

Footnote 1: "A more disorderly mind than Coke's and less gifted with the power of analysing common words it would be impossible to find. His divisions are all technical and pedantic, running upon words instead of facts, and the speculative parts of his writings are mostly puerile and often contradictory," H.C.L., ii z06.

In that school of historically-minded common lawyets, which had grown up round Selden and Cotton in the earlier half of the seventeenth century,3 there were plenty of men who were capable of applying a reasoned criticism to Hobbes's views. And in fact Matthew Hale, one of the youngest and most eminent'of that school, has left us such a criticism.4 Hale was perhaps the best equipped of all the lawyers of his day for such a task ; for, as we shall see,5 he was a philosophic jurist, a first-rate legal historian, and a master of the common law. His tract is divided into two parts. The first part deals with " Laws in Generall and the Law of reason" ;6 the second with " Soveraigne Power."7

Footnote 2: Jurisprudence ii 130--14 It \[the mastery of the legal system as a whole\] was possessed by Coke between whom and the Roman lawyers, the resemblance is striking."

Footnote 3: Above 402-403.

Footnote 4: Reflections by the Lrd Chiefe Justice Hale on Mr. Hobbes his Dialogue of the Law, Harl. MS. 711 ff. 418-439, printed in App. III. ; the following references are to the pages of this tract appearing in the MS,

Footnote 5: Vol. v. c. 8. Pp. I-22. 7 Pp. 22-43-

Footnote 8: Pp. I-7. 9 P. 5. 10 Pp. 6-7.

Footnote 11: "Of all kind of subjects where about ye reasoning Faculite is coursant, there is none of so greate a difficulty for the faculty of reason to guide it selfe and come to

## 10 Coff's Writngs

reasoning fails\[1\]. Thus we and that philosophers generally make " the worst judges that can be because they are transported from the ordinary measures of right and wrong by their overfine speculations, theoryes, and distinctions above the common staple of hugane conversations"; \[2\] while " men of observation and experience in humane affaires and conversation between man and man make many times good judges\[3\]."

As, then, pure reason often fails us when we come to apply geneal principles to particular cases, as it is above all necessary that the law should be certain, " the wiser sort of the world have in all ages agreed that it is absolutely necessary that the rules of law should be fixed and settled\[4\]." No doubt the fixity of these rules may sometimes work hardship in particular cases; but obviously the evil would be greater if there were no certain rules at all\[5\]. The justification for the fixity of its rules is the balance of convenience\[6\]; and both the legislator and the judge must always have before their minds in making and expounding laws this necessity of balancing convenience against inconvenience\[7\]. Now in this difficult task of judging the reasonableness of a law we should consider that the presumption is in favour of laws made by men of experience\[8\], and of laws by which " a kingdome hath been happily governed four or five hundred years." Further, as certainty is a great object, we should presume in favour of any stediness as that of laws, for the regulation and ordering of civil societies and for the measuring of right and wrong, when it comes to particular. And therefore it is not possible for men to come to the same certainty, evidence, and demonstration touching them as may be expected in mathematicall sciences, and they that please themselves with a persuasion that they can wl as much evidence and congruitie make out an unerring systeme of laws and politiques equally applicable to all states and occasions, as Enuclide demonstrates his conclusions, deceive themselves with notions wch prove ineffectuall, when they come to particular application\[9\]. \[11\] In moralls and especially with relation to laws for a communitie, tho the common notion of just and fit are common to all men of reason, yet when persons come to particular application **8** those common notions to particular instances and occasions were shall rarely finde a common consente or agreement between men tho of greate reason, and that reason improved by greate study and learning, wittness the greate disagreement, between Plato and Aristotle\[12\]. And lett any man but examine the weightiness of those men that pretend to be ye greate masters of reason and possibly they may be excellent men: yet no persons differ more than they touching things of this nature. And tho they perchance have this happiness to shake and weaken one the others principles or conclusions, yet when they set up their own positions they are weake and generally displeasing," p. 8.

\[FOOTNO484,Law in XVITH AND XVITH CENTS. institutions and rules which have been settled by long experience, " though the particular reason of the institution appeare not."1 It follows that a trained common lawyer who has spent his life in studying the law " will be much better fitted for right judgement therein, than he that hath no other stock to trade upon than the bare exercise of his faculty of reason, or that hath only taken the paines to read over the Titles of the Statutes or Indexes or Repertoryes of some Law Books."2 For, " it is not impossible but that at least some of those that have applied themselves to the study of the laws have as far a measure of naturally reason, as those that have adicted themselves to philosophy or other studyes, and possibly would have proved as good proficients in them had they applyed and habituated their reason to those studyes "'--a glance at that intellectual superiority which philosophers, legal or otherwise, then as now assume over the students of those other sciences which can produce results so tangible and undisputed as law. Thus, if the certainty of the law is to be secured, a legal training is essential, and this training is also essential if its uniformity and continuity are to be preserved.4 The conclusion implied, though not expressed, is, that we can expect very little practical result from a priori criticisms upon law made by philosophers, like Hobbes, who are merely smatterers in legal knowledge.

Footnote 1: P. r6-- " "Is a foolish and unreasonable thing for any to find fault with an institution because he thinks he could have made a better, or expect a mathematically demonstration to evince the reasonableness of an institution or the selfe evidence thereof."

Footnote 2: P, 18. ${}^{3}$ P. rog.

It may be said that Hale, in common with most lawpers of his day, was too intolerant of the criticism of laymen, who after all felt the pinch of defects in the law ; that he sometimes writes as if law existed for its own technical sake; and that he is too apt to think that, because a rule of law is settled, nothing more can be said. This criticism is to a certain extent justified, but, on the whole, Hale is very free from these faults. We shall see, from his tract on the Amendment of the Laws that he could criticize the law as well as expound it _10_ for he was not only a

**COKE'S WRITINGS** **485**:

practitioner of the common law, he was also a legal historian and a student of Roman law. He defended the complexity of laws and institutions, because he knew something of the complicated causes that had given them their present shape.1 Both his technical training, and his wide intellectual outlook, led him to distrust the simple reasoning of the analytical philosopher. That he was justified in this distrust we can see more clearly than men like Stephen, who lived when the influence of Bentham and Austin was "at its height. And, though the victory of the views of Coke and Hale caused both the political theory of the English state and the rules of English law to lose the clearness and certainty which the victory of Hobbes's views would have given them, yet, we shall see, that both the world of politics and the world of law have in the long run been the gainers; for the victory of these views prevented a large breach in the continuity both of the political theory of the English state, and of many fundamental rules of English law, at a time when a preservation of this continuity was a condition precedent to the establishment of constitutional government, and to the orderly development of the common law.2

Footnote 1: "Ye texture of humane affaires is not unlike the texture of a diseased body labouring under maladies, it may be of so various natures that such phisique as may be proper for the cure of one of the maladies may be destructive in relation to ye other, and ye cure of one disease may be the death of the patient," p. II.

Footnote 2: Below 489-490, 492-493.

Hale's defence of the laws of England would have been incomplete if it had rested here; for it would have failed to deal with the major premise on which Hobbes's reasoning was founded

- --his theory of sovereignty. Hale takes up this subject in the second part of his tract; but the main interest of this part of the tract is the insight which it gives us into the minds of the political thinkers of the latter part of the seventeenth century. I shall therefore speak of it in the following chapter in which I discuss the public law of that century.

Hobbes and Stephen saw part of the truth, but not the whole. At the end of the sixteenth century it was obvious to the leading lawyers and statesmen of the day that some kind of restatement of the law was necessary.3 Bacon had summed up

### Law in Xvith and Xvith Gents.

tersely and accurately some of the chief defects from which it was suffering. " Certain it is," he wrote,1 " that our laws, as they now stand, are subject to great incertainties, and variety of opinion, delays, and evasions : whereof ensueth (i) that the multiplicity and length of suits is great. (2) That the contentious person is armed, and the honest subject wearied and oppressed. (3) That the judge is more absolute ; who, in doubtful cases, hath a greater stroke and liberty. (4) That the chancery courts are more filled, the remedy of law being often obscure and doubtful. (5) That the ignorant lawyer shroudetheh his ignorance of law in that doubts are so frequent and many. (6) That men's assurances of their lands and estates by patents, deeds, wills, are often subject to question, and hollow ; and many the like inconveniences."

Footnote 1: Spedding, Letters and Life vi 64.

But what form should this restatement take? It was clear, at any rate to Bacon--the man whose legal and philosophical eminence best fitted him to give an opinion on such a question--that the construction of a logical code was impossible. " I dare not," he wrote, " advise to cast the law into a new mould, . . , for such a remove I should hold indeed for a perilous innovation." 2 It was, he saw, politically impossible ; and it is clear from the De Augmentis that there was a good deal in the existing institutions of English law which he did not wish to see changed. He accepts and approves the existence of separate courts administering civil and criminal equity on the principles of the court 'of Chancery and the Star Charber.3 He approves the authority given in English law to reported cases,4 and disapproves the institution of binding responsa.5 He accepts the existence of courts of co-ordinate jurisdiction, and lays down rules for their relations _inter se_, not unlike those which have ultimately prevailed.6 In his opinion the complete codification of the law was not the best remedy. " Sure I am," he said, " there are more doubts that arise upon our statutes, which are a text law, than upon the common law, which is no text law." 7 That Bacon's

**CORE'S WRITINGS**

opinion was wise we can see if we take any of our great codifying statutes of the nineteenth century, and ask ourselves what kind of a codifying statute would have been produced, if that branch

of the law had been codified in the sixteenth century.

Bacn suggested a very much more conservative measure of law reform--of a sort not unlike that which Justinian applied to Roman law.1 The law was to be restated ; and, as thus restated, it was to consist of two main parts--a_digest of case law and a digest of statute law. In addition there were to be two auxiliary parts--a book de antiquatibus juris, and certain other books " that conduce to the study and science of the law."2

Footnote 1: "Id quod fecit Tribonianus in Digesto et Codice," De Augmentis, Bk, viii c. 3 Aph. 6r.

Footnote 2: Spedding, op. cit. vi 68-71.

The digest of case law was to be compiled from the Year Books and reports. Obsolctc and overruled cases were to be omitted. When a case merely repeated the decisions previously settled, the bare decision was to be retained. Reports which were too prolix were to bc pruned. Contradictory rulings were to be settled by Parliament or the judges. In the De Augmentis Bacon made a further suggestion to obviate one of the greatest defects of a system of case law--the defect, namely, that the solution of doubtful points of law depends upon the accident of a case arising for decision, and the willingness of the litigants to fight it. He suggested that difficult points of law might be referred to the judges from the king or state, and that they, after argument, should give an authoritative decision.3 The Digest of statute law was to purge the statute book of obsolete laws, penalties were to be mitigated, and statutes dealing with the same subject matter were to be consolidated. Bacon suggested later that these digests should not supersede wholly the material upon which they were based. " It will be expedient in this new digest of laws, that the old volumes do not altogether perish and pass into oblivion ; but that they bc preserved at least in libraries, though the ordinary and promiscuous use of them be prohibited. For in important cases it will not be amiss to488 , Law in XVITH AND XVITH CENTS.

examine and consider the successive changes which have taken place in past laws. And surely it is a reverent thing to intermingle antiquity with things present."1

Footnote 1: Aph. 63--" Consultum fuerit in Novo Digesto Legum, vetera voluntfna non prorsus deleri et in oblivionem cedg\*e, sed in bibliotechs saltem manere; licet usus courn vulgaris et promiscus prohibeatur. Etenim in causis gravioribus, non abs re fuert, legum prateritarum mutationes et series consulere et inspicere; ac certe solenne est antiquitaten presentibus aspergerc;" the translations in the text here and elsewhere are Spedding's.

What Bacon meant by a book " de antiquitatibus juris " he tells us in the De Augmentis. " By antiquities of laws,' understand, those writings on laws and judgments, whether published or unpublished, which preceded the body of the law."2 The book was to be compiled from the records.3 The statements contained in it were to be regarded as "'reverend precedents," but not as "'binding authorities." The other books " conducing to the study and science of the law " were to be three in number. Firstly, a book of Institutes. This was to be "' a key and general preparation to the reading of the course." It was to be clear in method, and of " a universal comprehension . . like a model towards a great building."4 It should be confined to private law.5 Secondly, a treatise " de regulis juris," designed to explain accurately the leading principles of the law 6--those " general dictates of reason, which run through the different matters of law, and act as its ballast."7 Thirdly, a book of terms of the law. This was to be a dictionary both of ancient and modern words, arranged, not according to the order of the alphabet, but on the principle of putting together words relating to the same thing, that one might explain the other.,8

Footnote 2: Aph. 86--" Pro antiquitatibus autem legum habeantur scripta circa leges et judicia; sive illa fuertint edita, sive non, qua ipsum corpus legum tempora praceservent;" All ancient records in your tower or elsewhere, containing acts of Parliament, letters patents, commissions, and judgments, and the like, are to be searched, perused and weighed. And out of these are to be selected those that are of most worth and weight ; and in order of time, not of titles . to be set down and registered ; rarely in hace verba; but summed with judgment, not omitting any material part," Spedding, op, cit, vi 68.

Footnote 3: " For the Institutions I know well there be books of introductions (wherewith students begin) of good worth, especially Littleton and Fitzherbert; _Natura Brevium_ ; but they are no ways of the nature of an _Institutions_ ; the office whereof is to be a key and general preparation to the reading of the course," ibid 70.

Footnote 4: De Augmentis, Bk. viii c. 3 Aph. 82--" Sun dictamina gencralia fationis, que apper materias legivas pertrumt, et stunt tanquam Saburra juris."

Footnote 5: The maxims were to be "' made useful by good differences, amplifications, and limitations, warranted by good authorities ; and this not by raising up of quotations and references, but by discourse and deducement in a just tractate," Spedding, op. cit. vi 70. Bacon's book on Maxims of the Law, Works (Ed. Spedding) vi 325-387, shows hcw he would have done the work ; he said that it was a new departure ; as we have seen, above 395-399, it was very soon imitated by other text-book wxters.

Footnote 6: The Augmentis Bk. viii c. 3 Aph. 82--" Sun dictamina gencralia fationis, que apper materias legivas pertrumt, et stunt tanquam Saburra juris."

Footnote 8: Spedding, op. cit. vi 70--" Not only the exposition of terms of the law, but of the words of all ancient records and precedents; " De Augmentis Bk. viii c. 3 Aph,

**COKE'S WRITINGS** **489**

**Bacon's little book on the Maxims of the**${}^{\\cP}$**Law shows that if he had had the leisure to accomplish this scheme of reform, he, and he alone, was the man for the task. Many another lawyer**

**could have stated legal propositions accurately. He alone had the ph#osophical capacity, the historical knowledge, and the literary taste needed to select the subject matter and to shape the form of the books in which English law was to be restated. And, if his scheme had been accomplished, there is no doubt that he wds right in thinking that there would be many who would question whether, as a lawyer, he was not Coke's superior.1 Hobbes, and many another thinker whose minds were cast in an analytical mould--many a lawyer who had learned from Bacon's books and from the reformed Corpus of the common law--would have had no doubt on this matter. But this was not to be. Political reasons rendered Bacon's scheme impossible of realization at the time when it was propounded; and, at a later period, the merits of Coke's writings rendered the necessity for such a restatement less pressing.**

Footnote 1: Spedding, Letters and Life of Bacon vi 70--'' And I do assure your Majesty, I am in good hope, that when Sir Edward Coke's Reports and my Rules and Decisions shall come to yosterity there will be (whatsoever is now thought) question who Was the greater lawyer."

**Coke's writings have, it seems to me, five very considerable merits.**

\*\*(r) They cover the whole field of English law, and restate it from the point of view of the sixteenth century. It was a century in which there had been enormous changes in men's religious and "peiltical ideas,2 and an enormous mass of legislation directed to settling the nation on the basis of these raw ideas.3 A great deal of restatement was therefore needed${}^{\\cP}$to bring the medieval basis on which the law rested into harmony with the new situation. Indeed, in any age in which changes of this sort have taken place, the law will need to be thus reconsidered and restated. We in the last century have seen much of our old case law thus treated; and it is not one of the least of the advantages of our system of case law that it can thus be adapted to a new environment. What a succession of eminent lawpers have done for the common law in the last century Coke accomplished for the common law in his own day. "Coke's books," the late Professor Maitland once wrote in a letter to me, " are the great dividing line, and we are hardly out of the Middle Age till he has dogmatized its results."4

Footnote 3: To be published in the 1990s, the 1990s, and 1991, the 1990s, and 1991, the 1990s, and 1991, respectively.

\*\*Sr--${}^{\\cP}$\*\*Tractatum autem istum per literas alphabeti ne digerito. Id indici alicui relinquito: sed collocentur simul verba, que circa candem rem versantur; ut alterum alterum alteri sit juvantno adin intelligendum."1 Spedding, Letters and Life of Bacon vi 70--'' And I do assure your Majesty, I am in good hope, that when Sir Edward Coke's Reports and my Rules and Decisions shall come to yosterity there will be (whatsoever is now thought) question who Was the greater lawyer."2 Vol. iv iv iv seqq. 3 Ibid c. 2. 4 So Butler said, Reminiscences i ix8--'' The most advantageous and perhaps the most proper point of view in which the merit and ability of Sir Edward Coke's writings can be placed, is by considering him the centre of modern and ancient law,"490. LAW IN 'XVITH AND XVITH CENTS. (2) They deduce from the scattered and often inconsistent dicta in the Year Books positive rules of law. All through his writings Coke is reconciling Year Books. We could with considerable justice apply to his work the title applied to Gratian's work--"Concordia discordantium canonum." And he'did his work so skillfully that later lawyers were, for ordinary purposes, content to accept his reading of these older authorities. The decline in the practical, utility of the Year Books and the abridgments of the Year Books, dates from the publication of Coke's Reports and Institutes.1

Footnote 1: "Coke's _Institutes_ have had a greater influence on the law of England than any work written between the days of Bracton and those of Blackstone. When the older learning became obsolete, Coke came to be regarded more aid more as a second father of the law behind whose works it was not necesary to go," Stephen, H.C.L. ii ze5; " were it not for his writings we should still have to search for it (the ancient law) in the voluminous and chaotic compilation of cases contained in the $\\chi$ear Books; or in the dry thoagh valuable abridgments of Statham, Fitzherbert, Brook, and Ko Rolle," Butler, Reminiscences i iR-IIg. (3) Spedding, Letters and Life of Bacon vi 65.

(3) His writings not only brought the Year Books into line with the modern reports, they brought the medieval literature of the common law into line with the modern literature. The great mediaval books--Glanvil, Bracton, Britton, and Fleta--were made to explain and illustrate the law expounded by Perkins, Fitzherbert, Staunford, and Lambard.

(4) By the information which they gave of the doings of other courts--notably the court of Star Chamber, the court of Chancery, the court of Admiralty, and the court of Wards--they tended to familiarize the common lawyers with the new idcas, emanating from those courts, which were giving rise to new legal developments. As I have already pointed out, they made it easier for the common law to fill the great position which it acquired as a result of the constitutional conflicts of the seventeenth century."

(5) As a result his writings ensured the continuity of the development of the common law amidst all the vast changes of this century of Renaissance, Reformation, and Reception. This signal merit of Coke's writings was fully recognized in his own day. " Had it not been for Sir Edward Coke's Reports," wrote Bacon,2" the law by this time had almost been like a ship without ballast; for that the cases of modern experience are fled from those that are adjudged and ruled in former tinfes."

Footnote 2: "Coke's _Institutes_ have had a greater influence on the law of England than any work written between the days of Bracton and those of Blackstone. When the older learning became obsolete, Coke came to be regarded more aid more as a second father of the law behind whose works it was not necesary to go," Stephen, H.C.L. ii ze5; " were it not for his writings we should still have to search for it (the ancient law) in the voluminous and chaotic compilation of cases contained in the $\\chi$ear Books; or in the dry thoagh valuable abridgments of Statham, Fitzherbert, Brook, and Ko Rolle," Butler, Reminiscences i iR-IIg. (3) Spedding, Letters and Life of Bacon vi 65.

# Coke's Influence on English Law

Statesmanship. In fact, his work was the complement of the statesmanship which had adapted the medieval institutions of the English state to modern needs, without any appreciable sacrifice of the mediaval idcas contained in them.1 His writings had so restated the medieval common law that it was made fit to bear rule in the modern English state; and both in his writings and throughout his active career he had maintained that this common law ought to be the supreme law in and over the state. The Great Rebellion proved that the theory of the state based on the sovereignty of the king, which the earlier Stuarts wished to substitute for the balanced Tudor polity, was impossible in England;2 and therefore caused the views expressed in the writings of the man who represented the ideals of the Tudor polity to prevail. It followed that, just as the Tudor statesmanship fixed the form and determined the manner of the development of the modern English state, so Coke's work fixed the form and determined the manner of the development of our modern English law. The effect of his work, therefore, both for evil and for good has been both vast and permanent.

Footnote 1: Vol. iv. 209. Vol. vi. c. 6.

Footnote 2: As Bacon said, SSbedding, Letters and Life of Bacon vi 65--45 There is such an accumulation of statutes concerning one matter, and they so cross and intricate, as the certainty of law is lost in the heap; as your Majetsy had experience last day, -on the poin whether the incardiary of Newmarket should have the benefit of his clergy; " no better illustration than Benefit of Clergy (vol. iii 294-302) could be given of the evil effects of the retention of obsolete rules which obscured the law.

It can hardly be denied that the victory of Coke's views has had unfortunate effects both upon the form and upon certain parts of the substance of English law. It has had unfortunate effects upon the form of English law, because the very conservative character of his writings has led to the retention in that law of rules and doctrines which were already, almost obsolete in his day. All the mediaval books as well as all the modern reports could and can be cited as authorities. The statute book badly needed revision in Elizabeth's reign;3 but no revision was undertaken till the nineteenth century. The result was that the bulk and 'complexity of the law were enormously increased; and, till the reforms of the last century, the line between obsolete and living law was very hard to draw. Even at the present day it is sometimes not very distinct. The victory of Coke's views has also had unfortunate effects upon some parts of the substantive rules of English law. The jurisdiction over commercial and many maritime causes was, as we have seen, transferred from the court of Admiralty to the courts of common law and the court of Chancery.4 Since the law administered by the Admiralty was

### 492 Law in XVITH AND XVITH CENTS.

based to a large extent upon the civil law, it was in closer touch with the contemporary commercial law of continental states, and therefore better fitted than the English common law to do justice in such cases.1 The result was that the growth of these branches of law in this country has been comparatively slow. * Till the codifying statutes of the nineteenth century, English law could show no measure dealing with these topics comparable with the French "Ordonnances " of two centuries earlier; 2 and, till the reforms of the same century, our law of bankruptcy was a disgrace to a civilized community.3

On the other hand, although the progress was slow, the common law, assisted by the legislature, has shown a capacity for expansion, which has enabled it to fill the position which Coke's career and writings, and the issue of the constitutional controversies of the seventeenth century, won for it. And, in consequence, English law has become a very much more uniform system than it would otherwise have been. If English law had been restated in the seventeenth century on the lines advocated by Bacon, we should probably by this time have had a very much more variegated system. The Admiralty, the Star Chamber, and the ecclesiastical courts would all have put forward their claims; and these rivals of the common law would have obtained a permanently larger share of jurisdiction. I have already pointed out 4 that the result of the successful assertion by the court.5 Chancery of its claim to a jurisdiction independent of \*and in some respects superior to \*that of the common law courts, has split our English system into two halves. It is therefore very probable that, if all the other rivals of the common law had been equally successful, the English legal system would have been split into many fragments. Coke's writings were largely instrumental in saving English law from this fate; for, if he had not restated and adapted its principles to modern needs, even the victory of the Parliament could hardly have enabled it to gain so decisive a victory over its rivals. That it would have disappeared I do not assert: but I think that it might have sunk to the position of one among many equals; and if this had happened, it would have ceased to be the supreme law of king and people.

And in this question of the future position of the common law more was at stake than the rivalries of competing courts, or the form of English law. If the common law had lost its supremacy would Parliament have gained the victory? **Axd** if it had gained the victory without the help of a common law which claimed to be the supreme law in the state, would our constitutional law be

## COKE'S'INFLUENCE ON ENglish I.aw 493

what it is to-day ? This may; well be obubted.\] In the past the lawyers had helped to make the English Parliament an efficient representative assembly.2 In the seventeenth century the Parliament handsomely repaid this debt by helping Coke and his fellow lawyers to maintain the medieval conception of the supremacy of the common law, and to apply this conception to the government of a modern state.3 It was in Coke's writings that this and other medieval conceptions were given their modern form; and therefore it is largely owing to the influence of his writings that these medieval conceptions have become part of our modern law. If their influence upon some parts of our modern law has not been wholly satisfactory, let us remember that they saved Englishmen from a criminal procedure which allowed the use of torture,4 and that they preserved for England and the world the constitutional doctrine of the rule of law.

Footnote 2: Cp. Maitland, English Law and the Renaissance 30--" If there had been a Reception . I think that we should have had to rewrite a great deal of history. For example, in the seventeenth century there might have been a struggle between king and Parliament; but it would hardly have been that struggle for the medieval, the Lancastrian, constitution in which Coke, Selden, and Pryme and other ardent searchers of mouldering records won their right to be known to schoolboys,"

Footnote 3: Vol. ii 430-434 ; vol. iv 174, x88-189.

Footnote 4: Above 445, 457-454 ; vol. vi c. 6.

Footnote 5: Both these points can be illustrated from French legal history; Esmain, History of Continental Criminal Procedure (Continental Legal History Series) at pp. 324-323 (Pt. II. Tit. ii ch. f SS 5) says--' everywhere upon the continent, in France and elsewhere, the inaugitorial procedure . was now established. . One European nation however had resisted and escaped the contagion, and was destined later to serve, to a large extent, as a model for legislation of the French Revolution, This was England.' In "La regle ' Princeps legibus solutus est' dans Pancien droit public Francais," Essays in Legal History (r913) at p. 214 he says--' La philosophie du XVIII sielec . proclaimit, comme une regle essentielle de l'Etat, l'empire absolu et inevitable do la loi. Je nc citera qui un passage de Voltaue, qui dans un do ses Dialogues fait eansi parler un Anglais: 'Ce que je trouve le plus juste c'est _liberta et propriite_. Je veux que chacun ait sa prerogativc, Je ne connais des lois que celles qui me protgent, et je trouve notre gouvernement le meilleur de la terre parce que chacan y sait ce qui'il a, ce qui'il deit, et ce qui'il peut. Tout est sounfis a la loi, a confemancer par la royaute et par la religion.' La constitution francaise de l'79 energistrait la regle nouvelle dans ce temmes. 'Il n'y a point en France d'autorte superieure a celle de la loi. Le roi ne regne que parle, et ce n'est qui'eu n nom de la loi qui'il peut exiger l'obeissance.'

In the past the lawyers had helped to make the English Parliament an efficient representative assembly.2 In the seventeenth century the Parliament handsomely repaid this debt by helping Coke and his fellow lawyers to maintain the medieval conception of the supremacy of the common law, and to apply this conception to the government of a modern state.3 It was in Coke's writings that this and other medieval conceptions were given their modern form; and therefore it is largely owing to the influence of his writings that these medieval conceptions have become part of our modern law. If their influence upon some parts of our modern law has not been wholly satisfactory, let us remember that they saved Englishmen from a criminal procedure which allowed the use of torture,4 and that they preserved for England and the world the constitutional doctrine of the rule of law.

Footnote 2: The author is grateful to the anonymous referee for the support of the author.

The effects of these achievements, both in the sphere of criminal and of constitutional law, were destined in the succeeding ages to make themselves felt beyond the bounds of England, beyond the bounds even of English-speaking peoples, in all places and at all times wherever and whenever men have had the will and the power to establish constitutional government.5 We may surely claim that these large results of this part of Coke's work upon the civilized world of to-day entitles the most English of our English common lawyers to a place among the great jurists of the world. But of the effect of Coke's work upon our constitutional law, from which these large results have;flowed, I must speak more at length in the next chapter.

**APPENDIX**

I

**THE OPINION given by THE JUDGES IN 1591 AS TO IMPRISONMENTS BY ORDER OF THE COUNCII, (I) THE version given by the lansdownf ms. lxviii. 87**

To the right honourable our very good lords, Sir Christopher Hatton, of the honourable order of the Garter knight, Lord Chancellor of England, and Sir William Cicill, of the honourable order of the Garter knight, Lord Jurghley, Lord High Treasurer of England.

**We, her Majesty's Justices of both Benches and Harons of the Exchequer, do desire your Lordships that by your good means such order may be taken that her Highness' subjects may not be committed or detained in prison by commandment of any nobleman or counsellor against the laws of the realm, to the grievous charges and opposition of her Majesty's said subjects : or else help us to have access to her Majesty to be suitors unto her Highness for the same. For divers have been imprisoned for suing ordinary actions and suits at the Common law until they will leave the same, or against their wills put their matter to order, although sometime it be after judgment and execution. Item, others have been committed and detained in prison upon such command against the law, and upon the Queen's writ in that behalf, no cause sufficient hath been certified or returned.**

**Item, some of the parties so committed and detained in prison, after they have by the Queen's writ been lawfully discharged in court, have been eftsoons re-committed to prison in secret places and not in common and ordinary known prisons, at the Marshalsea, Fleet, King's Bench, Gatehouse, nor the custody of any sheriff, so as upon complaint made for their delivery the Queen's court cannot learn to whom to award her Majesty's writ, without which justice cannot be done.**

**Item, divers serjeants of London and officers have been many times committed to prison for lawful executing of her Majesty's writs out of the King's Bench, Common Pleas, and other courts, to their great charges and oppression, whereby they are put in such fear as they dare not execute the Queen's process.**

**Item, divers have been sent for by pursuivants for private causes, some of them dwelling far distant from London, and compelled to pay to the pursuivants great sums of money against the law, and have been committed to prison till they would release the lawful benefit of their suits, judgments, or executions ; for remedy in which behalf we are almost daily called upon to minister justice according to law, whereunto we are bound by our office and oath.**

**And whereas it pleased your Lordships to will divers of us to set down when a prisoner sent to custody by her Majesty, her council, or some one or two of them, i.i to be detained in prison and not delivered by her Majesty's courts or judges :**

**APPENDIX.**

**We think that if any person's shall be committed by her Majesty's special commandment or by order F.om the Council-Board, or for treason touching her Majesty's person, any of which causes being generally returned into any court is good cause for the same court to leave the person committed in custody, but if any person shall be committed for any other cause, then the same ought specially to be returned.**

**C. Wray,**

**Edm. Anderson.**

**Roger Manwood.**

**Fra. Wyndam.**

**J. Clenche.**

**Francis Gaudy.**

_Endorsed.--_\*\*

**Junii 159i.**

**A declaration of all the Judges of sundry mis-usage in committing men to prison without lawful cause.**

**(2) THE version given in anderson's reports vol. I. 297-298**

**Divers persons fuerunt commits a several temps a several prisons sur pleasure, sans bone cause ; part de queux esteant amesnes en Bank le Roy, & part en le Commen Bank fuerunt accordant a Ley de terre mises a large & discharge de le imprisonment, pur que ascun grandus fuerunt offend & procure un commandment a les Juges que is ne ferr issint apres ceo ; neint meins les Juges ne surcease mes per advice enter eux ils fesoint certein Articles le tenor de queux ensua, & deliver eux al Seigniors Chancellor & Treasurer & eux subscribe oue touts four mains : les Articles sont come ensua, scil.**

**We her Majesties Justices of both Benches, and Barons of the Exchequer desire your Lordships that by some good means some order may be taken, that her Highness Subjects many not be committed nor detained in prison by commandment of any Nobleman or Councellor against the Laws of the Realm, either else to help us to have access to her Majesty to the end to become suiters to her for the sage.**

**For divers have been imprisoned for suing ordinary Actions and Sutes at the common Law until they have been constrained to leave the same against their wills, and put the same to order, albeit Judgment and Execution have been had therein to their 'rest losses and griefs.**

**For the side of which persons, her Majesties Writs have sundry times been directed to divers persons having the custody of such persons unlawfully imprisoned, upon which Writs no good or lawful cause of imprisonment hath been returned or certified : whereupon according to the Laws they have been discharged from their imprisonment.**

**Some of which persons so delivered have been again committed to prison in secret places, and not to any common or ordinary prisons, or lawfull officer, as Sheriff, or other lawfully authorized to have or keep a Goal ; so that upon complaint made for their delivery, the Queens Courts cannot learn to whom to direct her Majesties Writs, and by this means Justice cannot be done.**

**And moreover, divers Officers and Serjeants of London have been many times committed to prison for lawfull executing of her Majesties Writs sued forth of her Majesties Court at Westminster, and thereby her Majesties Subjects and Officers so terrified, as they dare not sue or execute her Majesties Laws, her Writs, and Commandments.**

**Divers other have been sent for by Pursuivants, and brought to London from their dwellings, and by unlawfull imprisonment have been constrained not only to withdraw their lawfull Suits, but have also been qmpelled to pay to the Pursuivants so bringing such persons great sums of money.**

**APPENDIX**

All which upon complaint the Judges are found by office and oath to relieve and help, by and according to her Majesties Laws.

And where it pleased your Lordships, to will divers of us to set down in what cases a person sent to custody by her Majesty, her Council, some one or two of them are to be detained in prison and not delivered by her Majesties

Courts **q** Judges\*\*, We think that if any person be committed by her Majesties commandment from her Person, or by order from the Council-board, or if any one or two of her Council commit one for high treason such persons so in the case before committed may not be delivered by any of her Courts without due tryal by the Law, and Judgment of acquital, had.

**Nevertheless the Judges may award the Queens Writs to bring the bodies of such persons before them, and if upon return thereof the causes of their commitment be certified to the Judges as it ought to be, then the Judges in the Cases before ought not to deliver him, but to remand the prisoner to the place from whence he came.**

**Which cannot conveniently be done unless notice of the cause in generality or else specially be given to the Keeper or Gaoler that shall have the custody of such prisoner.**

**All the Judges and** **Barons, &c. did subscribe their names to these Articles, T. 34 Eliz. and deliver one to the Lord Chancellor, and one other to the Lord Treasurer, after which time there did follow more quietness then before in the causes before mentioned.**

## II List of Readings in Print or in Ms.

**Ebward Brooke, Bibliotheca Legum Angilie (1788) Part II. Pp. 191-196**

${}^{\\bullet}$_Hen.aIII._ **Magna Carta c. 28. By Sir Robert Brook,** _Chief Justice C.P. 2 P. and M._ **a very ancient and learned reading on this statute, quoted by Lord Coke.**1****\*\*

**Catta de Foresta.** By George Treherne,\*\* _Reader at Lincoln's Inn_**, temp. H. VIII. By Sir Thomas Hesketh.**

${}^{\\bullet}$_Edw. I._ **Westm. I. c. 1 de Pace 14 readings. By Thomas Marrow,** _Serjeant_**,**3 20** 11**.\*\*

${}^{\\bullet}$_Edw. I._ \*\*de extenta Maneri. By Sir Ant. Fitzherbert,\*\*3 _Just. C.P 15 Hen. VIII._

${}^{\\bullet}$_Edw. I._ \*\*Westm. II. c. 1 de donis conditionalibus. Sir Thomas Littelton,**4 _Just. C.P. 12 Hen. VII._ **\[should be 6 Ed. IV.\]. Author of the Tenures. c. 4. In casu quando vir amiserri, etc.**5******

${}^{\\bullet}$_Edw. I._ \*\*Westm. II. c. 12, on Appeals. Richard Littelton,\*\*4 **son of Judge Littelton.**

**APPENDIX**

- \[27\]_Edev. I._ de finibus\* levatiy\* Sir Edward Coke, _Ch. /ust._ C.P. 4 _Jac. I._ and _Ch. Just._ K.B. 11 _fac. I._

- \[17\]_Edev. II._ /'rerogativa Regis.' Sir Thomas Frowike, _Ch. Just._ C.B. 19 _Hen. VII._

- \[28\]_Fidav. III. c. 2._ On Treasons. Robert Holbourne.

- \[29\]_Edev. III. c. 17._ Merchant Strangers.\* By Sir Edward Littleta\*, _Lord Ch. Just._ C.P. 15 _Cur. I._, _Lord Keeper 16 Car. I._

- \[30\]_Ric. II._ c. 9.\_ Parnor de Profits. Justice Martin.\* Just. C.P. 2 _Hen. VI._

- \[31\]_Ric. II._ Jurisdiction of the Admiralty. Sir Leoline Jenkins, _Judge of the Court of Admiralty_, temp. Car. II.

- \[32\]_Hen. VI. c. 9._ Forcible Entries. Thomas Risden, _Reader of the Inner Temple_, 12 _Eliz._ Another of the same name, 10 _fac. I._

- \[33\]_Hen. VII._ On Fines, 15 Readings,\* John Denshall, _Serjeunt at Luev_, 23 _Hen. VIII._

- \[34\]_Hen. VII._ c. 17. On Aids, 11 Readings.\_ By Thomas Audley,\* who succeeded Sir Thomas More as Lord Chancellor, 24 _Hen. VII._

- \[35\]_H. VIII. c. 13._ De facultatibus beneficior. Reading at Middle Temple, 2 Aug. 1619. Sir James Whitlock, _/ustice of King's Bench_, 22 _Jac. I._ and _Chief/ustice of Chester._

- \[36\]_H. \[VIII.\] c. 19._ Of Avowries. By Thomas Risden, _Reader of the Inner Temple_, 12 Eliz.

- \[37\]_H. VIII. c. 5._ Of Sewers. John Herne.

- \[38\]_H. VIII. c. 10._ Of Uses. By Sir Francis Bacon, _Sol. Cien. 5_ Jac., _Altorney Gen. 11_ Jac., _Lord Keeper 14_ Jac., _Lord Chau. 18_ Jac.

- \[39\]_H. VIII. c. 10._ Of Jointures. Sir John Brograve.

- \[40\]_H. VIII. c. 2._ On Limitation of Actions. By Robert Brooke.\*

- \[41\]_H. VIII. c. 5._ On Sewers. Robert Callis.

- \[42\]_H. VIII. c. 1._ On Wills. Explanation of above stat. Sir James Dyer, \*_/iudle Temple._

- \[43\]\_35_H. VIII. On Wills. Popham.\*

- \[44\]_H. VIII. c. 6._ On Trial by Jury. Sir Thomas Williams, Speaker H.C. 5 Eliz.

- \[45\]_Eliz. c. 7._ On Bankrupts. John Stone, _Serjeunt at Luev_, 16 Car. I.

- \[46\]_Eliz. c. 4._ Charitable Uses. Sir Francis Moore, 4 Jac. I. Mid. Temp.

- \[47\]_Cur. I._ Petition of Right. William Prynne.\* Besides those above enumerated on particular statutes, the following are written on general subjects:--

- \[48\]\_Br. Abr. _Approxiement 28; Garde 120; Idiot 6; Notice 27; Office avant eschder 60; Petition 41; Tsatmoigus 30; Travers d'Office 54; Villanage 71; also extant Harl. MSS, n. r69._

- \[49\]_Not printed, quoted by Lord Chief Baron Parker in the case of Omychund v. Barker, r Atk. 42._ See also I Salk. 46.\_

- \[50\]\_Not printed, V. Br. Abr. _Feedment de terre 19; Parnor 4._

- \[51\]_V. Cat. MSS, Ang. v. II. n. r49._ The printed copies contain only six readings.

- \[52\]_M cautionned in the author's life in Biogr. Britan, and in Fuller's Worthies. A copy of them is among Mr. Hargrave\* MSS._

- \[53\]_Not printed, quoted in Jacob's Dict. tit. Monkery; mentioned in Append. to Hearne's Curious Discourses and Woods Athen. 490, extant in Ashmol. Mus. Oxf. Catal. MSS. Ang. v. I. n. 7858. A copy of this reading is alsoamong Mr. Hargrave\* MSS, and another in the possession of the compiler hereof._

- \[54\]_There are also extant Harl, MSS, n. 1692, Brooke's Readings, A.D. 1614, on MSS, and another in the possession of the compiler hereof._

- \[55\]\_There are also extant Harl, MSS, n. 1692, Brooke's Readings, A.D. 1614, on

**APPENDIX**

Reading on Cophylolds, Charles Calthrop${}^{\\circledR}$

Reading on Advowsons, Sir John Dodderidge.${}^{\\circledR}$

Case and Arguments against Sir Ignoramus at Cambridge, in a reading at Staple Inn, by Robert Callis, Serjeant at Law.

Neither of the following appear to be extant in print, but are found frequently quoted in the law-books, without mention of the particular statute of which they respectively treat.

1 Aldsworth's reading. Lincoln's Inn Lect. 38 Eliz.${}^{\\circledR}$

2 Archer's reading on the laws of the forest.${}^{\\circledR}$

3 Chiborne's reading, anno. 1 Hen. VIII.${}^{\\circledR}$

4 Ock's reading.${}^{\\circledR}$

5 Fitzjames's (Sir John) reading.${}^{\\circledR}$

6 Gwin's reading. Richard Gwyn, _Reader_, Inner Temple, 4 Jac.${}^{\\circledR}$

7 Harrison's reading, at Lincoln's Inn, Lent 1632.${}^{\\circledR}$

8 Herbert's reading. The author was reader at the Inner Temple 12 Car. 1.${}^{\\circledR}$

9 Philips's reading.${}^{\\circledR}$ Q. Francis Philips, reader of the Inner Temple, 13 Car. II.

10 Reading, temp. _I/en. VII._ concerning the Office of Coroner.${}^{\\circledR}$

11 Reading, temp. _Hen. VII._ by W. N.${}^{\\circledR}$

12 Reading on Quo Warranto.${}^{\\circledR}$

13 Reading (S).${}^{\\circledR}$

14 Thatcher's reading, 15 _Hen. VII.${}^{\\circledR}$_

15 Whorhod's reading, 35 _Hen. VI._ Q. William Whorwood, _Solicitor Gen._

27 Hen. VIII., _Attorney Gen._ 32 Hen. VIII.${}^{\\circledR}$

III

SIR MATHEW HALE's CRITICISMS ON HOBBES's DIALOGUE OF THE COMMON LAWS

${}^{\\circledR}$

There are three versions of this tract--the Jarleian MS. 711, ff. 418-439, which is here printed, and two copies of ${\\circledR}$ in the British Museum. Francis Hargrave had a copy of it ; and J. B. Williams in his "Memories of the life, character and writings of Sir Matthew Hale," published in 1835, tells us at p. 398 that the original "'is stated to be " at Cottles, formerly the seat of the Hale family.${}^{\\circledR}$ The original seems now to be lost ; but, as Sir F, Pollock says, " Whatever may have now become of the original, it seems quite likely that it was a rough draft, and exhibited a very little better text, if better atall, than the British Museum cor9,'11 As Hule died in 1675, and Hobbes's Dialogue was first printed in 1682, Hale must have seen it in MS. This, however, raises no difficulty ; for, as Sir F. Pollock points out, " down to the early part of the eighteenth century, if not even later, it was a common practice to circulate unpublished works among learned persons for their entertainment or criticism ;" and we know that " other works of Hobbes were circulated in this manner."2 It may be that failing health was the reason why the tract is incomplete."3 If it had been completed it would probably have been published long ago.4

Footnote 1: I.Q.R., xxxvii z74.

Footnote 2: I.Q.R., xxxvii z74.

Footnote 3: I.Q.R., xxxvii z74.

Footnote 4: It was first printed in 162r, ibid.

Footnote 5: The history and Analysis of the Common Law of England; of the Alteration Amendment or Reformation of the Laws of England; and the tract here printed. The first two tracts are well known; they will be described in 1921, v1 c. 8.

Footnote 6: Above 402-412.

Footnote 7: The numbers of the pages of this tract are marked in the body of the text. A space has been left when a word or words are obviously missing. * There are no spaces left in the MS. The notes marked F.P. contain suggestions made by Sir Frederick Pollock ; the other notes are inserted by myself.

Footnote 8: _Quare_ " notions."--F.P.

**APPENDIX ${}^{\\bullet}$**

found in things that are de'tute of the faculty of Reason and ${}^{\\bullet}$s or may be antecedent to any Exercise on any humane 2- Reason${}^{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{ \\text{\\text{\\text{\\

**Abstract**

**APPENDIX**

**particular Instances and occasions were shallagrely find a Common Consent or agreement between men tho' of debate reason, and that reason Improved by greate Study and Learning, witness the greate disagreement between Plato and Aristotle Men of greate reason in the frameing of their Laws and Commonwealth, the greate difference in most of the States and Kingdomes in ye** world in their Laws administrations and measures of right and wrong, when they come to participants. And let any man but Examine the weightiness of those men that p'tend to be ye greate masters of Reason and possibly they may be excellent men : yet no persons differ more than they touching things of this nature. And tho' they perchance have this happiness to Shake and weaken one the othrs Principles or Conclusions, yet when they Sett up their own positions they are weake and generally displeaseing.\*\*

-9\*\*. And upon this Accot it is that when men of observation and Experience in Humane affaires and Conversation between man and man make many times good Judges, yet for the most part those men that have greate reason and Learneing wch they gather up of Casuists, Schoolmen, Moral Philosophers, and Treatises touching Moralls in the Theory, that So are in high Speculations and abstract Notions touching Justice and Right, and as they differ Extraemely among themselves when they come to particular applications, So are most Commonly the worst Judges that can be, because they are transported from the Ordinary Measures of right and wrong by their over fine Speculacons Theoryes and distinctions above the Common Staple of humane Conversations. And this Instability, uncertainties and varieties in ye Judgem14 and opinions of Men touching right and wrong when they come to particulars ; and to avoid that greate uncertainty in the application of reason by particular persons to particular Instances ; and to yc end that Men might understand by what rule and measure to live & possess ; and might not be under the unknowne arbitrary, uncertaine Judgemt of the uncertaine -to-reason of particular Persons, hath been ye prime reason, that the wiser Sort of the world have in all ages agreed upon Some certaine Laws and rules and methods of administration of Common Justice, and these to be as particular and Certaine as could be well thought of. Bj this means they gained these advantages : (1) they avoided the greate Instabilitie of the judgment15 and reasons of Judges and gained Somewhat of Certainey we might be knowe to them that were to Judge and to be Judged. (2) they hereby avoided that greate opportunities that Judges had, when they had noe other rule for their Judgmt but their own reason, to be Corrupt and partially. (3) They in a greate measure avoided that jangling and Contradiction that would happen upon the unstable reason of Men when they once came to particular Decisions.\*\*

**Though a certaine andeterminate Law may have some mischiefes in relation to particulars, wch cannot all by any humane's rudence att first be foreseen and provided for, yet . is p'ferrable before that Arbitrary and uncertaine rule wch Men miscall ye Law of reason. -II- Yet certain it is that that Law is best framed that at once hath Certainty, and yet induceth as few particular mischiefs as may be. And hence it is, that it is a thing of greatest difficulty, So to Contrive and Order any Lawe that while it remedyes or provides agst one Inconvenience, it introduceth not a worse or an equall. A Man that hath a prospect at once, or \[_sic_\] a few things may with ease enough fit a Lawe to that, or those things. Qui ad pauca respicit facile pronunitat. But ye texture of Humane affaires is not unlike the Texture of a diseased bodey labouring and Maladies, it may be of so various natures that such Phisique as may be proper for the Cure of one of the maladies may be destructive in relation to ye other, and ye Cure of one disease may be the death of the patient.**

\*\*And this, the Difficulties of making, interpreting and applying Laws

**APPENDIX**

because I. It requires a vef large prospect of all the most considerable emergencies that may happen, not only in that wch is intended to be remedyed, but in those other accidental, Consequentiall or Collateral -12- things that may Emerge upon the Remedy propounded. 2dly a greate and Experienced Judgemt to weigh and Consider whether the Convenience of the Law propounded may considerably preponderate the inconvenience that it will occasion. 3dly a greate Judgemt and Skill So to apply the remedy that it may . with the least inconvenience that may be.

The Inconvenience of an Arbitrary is intollerable, and therefore a certaine Lawe, though accompanied wth some mischieffe, is preferrable before it. But it is not possible for any hcmae thing to be wholly perfect.

A certaine Law hath this inconvenience attending itt that Sometimes Some persons or causes may Suffer by the rigour of a certaine Law, yet Infinite m are must Suffer by the inconvenience of an Arbitrary and uncertaine Law. And the same difficultie wch in this respect happens in making Laws must necessarily happen many -13- times in the expounding of them, when there is room or Latitude for Exposition. The Expounder must looke further than the present Instance, and whether such an Exposition may not introduce a greater inconvenience then it remedyes.

\*\*3. A Third thing that renders . the true determination of Moral Actions and the application of remedyes to them is this that every Moral Action is or may be diversified from another by Circumstances which are of so greate an Influence into the true nature and determination of Moral Actions that they very frequently specifically difference Actions that are materially the Same, and give such Allyares and abatents or advances and improventis to them that Scarce two Moral Actions in the world are every way commensurate. And these Circumstances are Soe various and their Influx into Moral Actions so different and Soe difficult to be discerned, or adequately estimated, that the makeing of Laws -14- touche them is very difficult. There are many things especially in Laws and Governms yt mediately, Remotely and Consequentially are reasonable to be approved, though the reason of the party both not p, presently or imediately & distinctly See its reasonableness. For instance, it is reasonable for me to preferre a Law made by a hundred or two hundred persons of age wisdome Experience and Interest before a Law ex exogitated by my Selfe yt \[_sic_\] it may be a Simple unexpected younge man, though I discreme better ye reason of that Law that I have thought of then ye reason of the Law of those wise men.

Againe it is a reason for me to preferre a Law by wch a Kingdome hath been happily governed four or five hundred years then to adventure the happiness and Peace of a Kingdome upon Some new 'Theory of my owne tho' I am better acquainted wth the reasonableness of my owne theory then wth Law. Againe I have reason to assure myselfe that Long Experience makes -15- more discoveries touching conveniences or Inconveniences of Laws then is possible for the wisest Council of Men att first to foresee. And that those amendments and Supplemts that through the various Experiences of wise and knowing men have been applyed to any Law must needs be better suited to the Convenience of Laws, then the best Invention of the most pregnant witts not ayded by Such a Series and tract of Experience.1

**APPENDIX**

All these "thinges are reasonable, the particular reason of the Eaws & Supplement" themselves perchance are not obvious to the most Subtill Witts or Reason.

And this adds to ye difficultie of a present fathomeing of the reason of Laws, because they are the Production of long and Iterated Experience "ch",

- tho' it be commonly called the mistriss of Fooles, yett certainly it is the wisest "Expedient among mankind, and discovers those defects and Supplys "ch no witt of Man coud either at once foresee or aptly remedye. 5. The last reason touching the Inevidence of Laws -16- already made att least in all things to every man's reason is this because Laws are certaine Institutions, and tho' perchance att first the makers of them Saw reason to pitch upon this Institution rather then another, yett in things thus Settled it is not necessary that the reasons of the Institution should be evident unto us. It is Sufficient that they are Instituted Laws that give a Certainty to us, and it is reasonable for us to observe them though the perticular reason of the Institution appeare not. And its a foolish and unreasonable thing for any to find fault "th an Institution because he thinks he could have made a better or expect a Mathematical Demonstration to evince the reasonableness of an Institution or the Selfe Evidence thereof. It is a part of the Law of England that all the Landes descend to the eldest Sonne without a particular Custome altering itt. That a Freehold passeth not without Livery and Seisin, or Attornem1 by an Act in Paijs, But where Statutes -17- have altered, that an Estate made by Deed to a Man for ever passeth only for life without the word Heires and Infinite more of this kind. Now if any the most refined Braine under heaven would goe about to Enquire by Speculation, or by reading of Plato or Aristotle, or by Considering the Laws of the Jews, or other Nations, to find out how Landes descend in England, or how Estates are there transferred, or transmitted among us, he woud lose his Labour, and Spend his Notions in vaine, till he acquainted himselfe with the Laws of "England, and the reason is because they are Institutions introduced by the will art Consent of others implicitely by Custome and usage, or Explicitely by written Laws or Acts of Parlement. $\\bullet$

And upon all this that hath been said it appeares that men are not borne Comon Lawyers, neither can the bare Exerciss of the Faculty of Reason give a man a Sufficient Knowledge of it, but it must be gained by the habituating and -18- accustomeing and Exerciseing that Faculty by readeing, Study and observation to give a Man a complete Knowledge thereof. And although a Man that hath long and Industriously Exercised himselfe in that Study cannot p'tend either to Infallibilitie in his Judgem1 or to a full attainem1 of all that is attainable touche the Laws of England, yet he will be much better fitted "th Judgem1 therein, then he that hath no other Stock to trade upon then the bare Exercise of his Faculty of reason, or that hath only taken the paines to read over the Titles of the Statutes or Indexes or Repertoryes of some Law bookes.

Footnote 1: I suspect that whatever Hale originally wrote was a compendium standing for the three last syllables of "ingenuity "; and "natural" would make better sense than "material."--F.P.

It were ridiculous to expect that a Man that hath either only the advantage of his owe materiall Ingenij,1 or hath spent a Month in readeing Some of the Rudimts of Geometrie Should be as good a Master in the Mathematicks as he that hath made it the Study of his life, and yett it is apparent that the Positions and Conclusions in the Mathematicks have more Evidence in -19- them, and are more Naturally Seated in the minde then Institutions of Laws, wch in a greate measure depend upon the Consent and appointt of the first Institutts. Such persons therefore that have had their Education in the Study of the

**APPENDIX**

**English Laws have these Cong**${}^{\\prime}$**jerable advantages to render them fitter Judges and Interpret**${}^{\\prime}$**s of the Law**${}^{\\prime}$**of this King-lome then any other whose Studves and Education have intirely or Principally applyed to the Study of Philosophy or Mathematiques or other Studves.**

**1**${}^{\\rm st}$**. It is not impossible but that at least some of those that have applyed themselves to the Studys of the Laws have as far a measure of Naturally reason, as those that have adicted themselves to Philosophy or other. Studves, and possibly would have proved as good Proficients in them had they applyed and habituated their reason to those Studves.**

**2**${}^{\\rm dly}$**. If Men of Parity of reason and Intellectually have gotten the advantage of others that in Naturally Capacities have been their -2o- Equalls by reason of the advantage they have had by their Education in this or that kind of Learning then certainely, considering how much the nature of the Science of the Law requires much more assiduity and application to it, then other Studyes,1 that persons of Equall parts that hath habituated his reason to the Study of the Law must needs have so much the greater advantage in his Knowledge of it, above others that have not made it their business, by how much the more the very nature kind and Condicon of that Science requires more Study and application then the Studyes of other Sciences.**

**3. It is one of the things of greatest moment in the profession of the Comon Law to keepe as neare as may be to the Certainty of the Law and the Consonance of it to it Selfe, that one age and one Tribunall may Speake the Same things and Carry on the Same thred of the Law in one Uniforme Rule as neare as is possible; for otherwise that wch all places and ages have Contended for in Laws namely -1- Certainty and to avoid Arbitrariness and that Extravagance that would fall out, if the reasons of Judges and advocates were not kept in their traces well in halle an age be lost.**

**And this Conservation of Laws within their boundes and Limits could never be, unless men be well informed by Studyes and readeing what were the Judgem**${}^{\\rm st}$**s and Resolutions, and Decisions and Interpretations of former ages, and of other Courts and Tribunalls, and thereby to keepe a Consonance and Consistence of the Law to it Selfe, we3 would never be done without much readeing, and observation and Study.**

**4. As to Exposition of Acts of l'arlemt and written Laws certainly Hee that hath been Educated in the Study of the Law hath a greate advantage over those that have been otherwise Exercised, lett them p'tend to or be Masters of never so much Reason. For first they have not only the Preamble and body and provisoes of the Acts of l'arlemt before them, but they have a Cleerer Evidence -22- of what the Practise or mischief was before which possibly is not soe obvious without readeing especially if it be an Ancient Act.**

**2. They have the oppertunitie of the Knowledge of the Expositions made by Judges of former times wch cannot be Soe well knowne to others.**

**3. They have within their view and Knowledge the Expositions of other Acts of Parlemt that either have the like Clauses, or Analogye of Reasons, wch are great guides and helps in Exposition of Laws, wch they'that have the naked use of their own faculties without the help of Studye and Education are destitute of.**

**Of Soveraire Power**

\*\*The Modifications of Government are various both in their kindes formes and Degrees--Some Monarchical Aristocricali, Some Democritall and some

**APPENDIX**

**in**

**unit**

**of**

**those mixtures are _or_ may be **In**:**

**APPENDIX**

**farther for Evidence thereof.** Then that Solemn Oath weh he takes at his Coronation, the Iterated Confircation of the $\\backslash$create Charter and those other Laws and Statutes that Conceme the Liberties of his Subjects.

3. Potesas Irritans, and thus the Laws also in many cases bindes y\* Kinges Acts, and make them void if they are agt Lawe. As for Instance the Law Sainth that no Grants of Landes under other Seale then the great Seale is good. That grants of Monopolies are void, and the like. The $\\backslash$Lave makes such grants void and the Subjects the Instrumst acting by them to such punshmt as if there were noe such grants. No good Subject that understands what he Sayes can make any Question where the -27- Soveraigne Power of this Kingdome resides. The Laws of the Land and the Oath of Supremacy teach us, that the King is the only Supreme Governor of this Realme, and as Incident to that Supreme Power he hath among others these greater Powers of Sovereignty.

1. He hath the only power of making Peace and Declareing Warr.

1. He hath alone the Power of giving the vallue and Legitimation to Coyne.

1. He alone hath the Power of Pardoning the $\\backslash$Punishmt of Publique offences.

1. From him Originally is derived all jurisdiction for the Administration of the $\\backslash$Comon Justice of the Kingdom whether Civil or Ecclesiasticall, whether Ordinary or Delegate.

1. In him alone is the Power of the Militia of this Kingdome, and the raising of Forces both by Land and Sea.

1. In him resides the Power of making Lawes. The Laws are his Laws enacted by him.

These are the greate Jura Summi Imperij that the Laws of this Kingdome have fixed in the Crown of England, Butt yett there are certaine Qualifications of these Powers especially of the two latter vizt

-28- r. Though the only Power of the Militia be in the King and him alone yett it hath these two Qualifications.

(1) That one Subject can by verute of that Power be inforced to goe out of the Kingdome vid : Stis 1 Ed. 3 Cap. 5, 13 Car. 2 Cap. 2.2

(2) That one ayd or $\\backslash$Comon Charge can be imposed for the raiseinge or Payeing or furnishing of Soldiers Shipping or other $\\backslash$Comon Charge without Consent of Parliament Stis 25 Ed. r. Cap. 6,3 34 Ed. r. Cap. 1 4 E.d. 3 Cap. 6,4 The Petition of Right 3 Car. r. Cap. 1. Noe not in case of $\\backslash$Comon necessity 17 Car. 1. Cap. 14.5 So adjudged and declared by the King wth the advise and assent of Lordes and $\\backslash$Comons in Parliament, wth is a Judgemt of the greatest weight that can be.

2. Though the Legislative Power be in the King, So that none butin this make Laws obliggeing the Subjects of this Realme, yett there is a Certaine Solemnite and Qualification of that Power, namely with the advice and assent of the 2 houses of $\\backslash$Parlemt, whout which no Law can be made. And therefore Proclamations cannot make a Law. It is true they may declare and Publish Laws already made & may -29- Serve those Powers wch Lodged in the Kings Person; as to Proclayme Coyne, Peace, Warr, and in times of Publique hostility may prohibite Supply of Enemies wth assistances for Warr, and Some things of that nature.

**APPENDIX**

\*\*Yett generally the Kings Proclamation cannot take a Law, but Laws are to be made in that Solemnitie and $\\mathrm{w}^{\\mathrm{th}}$ the advice of $\\mathrm{\\hat{x}}$-$

**APPENDIX**

importance it was repealed by the Statute 21 Jacobi. Cap. 10 wch Power and Repeale had Signified nothing if the King might Repeale these Lawes without the help of an Act of Parliament Enabling him. The Statute of 1 Ed. 6. Cap. 11 gave power to that King and all the issues of the bodey of H. 8 to whome ye Crown shall come &c and by these Lres' Patents to Repeale all Acts of Parliament presented to by them before their age of 2-4 years. \*

-33- It is true that in the last Printed booke of Statutes there is a formally revocation made by the King by the advice of his Council by Proclamacon of a Statute made the same yeare wch Especially concerned Exclusion of Tygall of Peeters, other then in Parlement, wch possibly might give some Countenance to kinde \[_sic_\] of Revocations of Statutes, but the matte! being truly understood both not only not Countenance any Such Conclusion but plainly Evidence ye Contrary.

For 1, in very truth there was never any full Consent of the King to that Act, may so farr it was agst his will that the Chancellor, Trearer, and Judges in open Parliament protested agst it, as Contrary to Law as appeares by the Parlement Roll 15 E. 3. N. 26, 42.1

Secondly the King rested not upon this Repeale by Proclamation, But in the next Parliament vide Rot. parl. 17 E. 3. 23 a Speciall repeale passed by Act of the entire Parliament of 15 E. 3 wch Direction that for Such things as were usefully passed in that Parlement -34- a new Law should be penned and passed in this Parlement. So that the Repeale by Proclamation was not thought then Effectuall without an Act of Parlement of Repeale.

3. As to the Kinges Judgeing of publique dangers and imposing of Assessmt or Charges in Order thereunto Those that will not believe the Statute de T'alliagio non Concedendo doth not Extend to Such a Case or thinke that it is under a tactic condition to be repealed when the King thinkes Expedient, Lett them Consult the Judgemt of the Kings themselves in the Petition of Right 3. Caroli prini, and in the Act for the reversall of the Judgemt given in the Case of Shipp money 17 Caroli prini Cap. 14.4 where the King by the advice and assent of the Lordes and Comons doth not only Enact but declare that that Judgmt was agst the Eaws and Statutes of the Realme, the Right of Property and Liberty of the Subject, former Resolucons of Parlement and the Petition of Right wch is a Judgemt of ye highest and most Solemn Nature -35- that possibly can be, and yett the Judgemt in the Case of Ship money was bottomed upon a Supposition of necessitie and So declared by the King.

And as to the Case of the Kinges Power in Relation to Acts of Parliament, \*

1. Itt is true as to offences agst Acts of Parlement already Comitted where His Matei is Interested in the Penalite the King may unquestionably pardon. 2dy In Some Cases where the Interest of the Subject is not imediately concerned, He may as to particular Persons and Cases by a Non obstante, Dispence with the breach of a penall Law.

3dy But where the Subjects Interest is imediately Concerned as in the Case of Extending the Admiral Jurisdiction he cannot dispence wch a Non obstante, But in noe case can the King wchout an Act of Parlement Repeale\*an Act of Parlement whether Penall or other.

\*\*2. As to the Second these Petitions \[_sic_\] are agst Naturall Justice and Equitie, for Certainly Kinges as well as others are bound to keepe their faith and Promises.

-36- And as it is So much the more obliggeing when, Such Pacts and Concessions are not purely gratuitous, as Some kinds of grants are, But Such as are made upon Mutuall Contract, Stipulations, and thus for the most part

**APPENDIX**

are all Acts of Parlemt and Parlamentary Co.'Lessions wherein the Subject grants Some things to ye King, as Aydes, Suppress, Subsides, Tenths, or !5ths and ye King at their Request grants them Laws and Liberties. And thus the greate Charter and the Charter of the Forrest, and the most of the Parliamentary grants were had upon a kind of Reciprocall Contract & Stipuilacas between the King and his Subjects. But this is not all, most of the important grants in Parlemt of Liberties to the People were not So much new grants of new Liberties but Restricoons of those very Liberties weh by the Primitive and Radical Constitution of the English Government's were of Right belonging to them. Such were the grants of King William of the Laws of -37- Edward the Confessor, The grant of the greate Charters by King John, Henry 3. Edward 1st the Statutes de Tallagio non concedendo x divers others wch were the Originall Rights and Liberties of the Subject. And we have as greate reason to Conclude them to be parts of the Originall and Primitive Institution of the English Government by their long usage & frequent Concessions & Confirmacons of Primes in Soe long and Continued Series of time, as if an Authenticing Instrumt of the first Articles of the English Government were Extant.

And as the obligation of Natural Justice bindes Primes and Governors as well as othrs to stand to their Pacts and agreem!s wch their People, So there is Superadded to that obligation the greate Solemnitie of the Oath wch he takes at his Coronation to observe & keepe those Laws and Liberties. And tho' it is true that the Kinges Person is Sacred, and not under any External Coertion, nor to be arraigned by his Subjects for the violation of that Sacred Oath yet no man can make -38- a Question whether he be not in the Sight of God and by the bond of Natural Justice obliged to keepe it.

**-3.** These Positions are the most Permicious and Dangerous to the Government, and generally where yet such Sycophants pretend to gratifie by these Flatteries. For certainly the greate happiness of any Government' rests Principally in this, namely the Mutual Confidence that the Governors have in the people as to point of Duty and obedience and that the Governed have in their Governora as to point of Protection, to Secure this mutual Confidence was that Ancient and Solemne Institution of Oath of Fidelity of the People to the Prince and of Precotection and upholding their first Liberties & Laws by the Prince to the People. And the first breach that happens in this Golden Knott as by miserable Experience we have learned, when Insinuations of diffidence and distrust and Jealousies are Secretly Nourished or openly made, and most Certainly there is not any one more mischievous and Permicious Root of Jer:Jousies -39- and Diffidences then to tell ye world v the Prince is bound to keepe none of the Lawes that he or his Ancestors have by the advice of his greate Council Established that he may repeale them when he sees cause. That all his Subjects Properties depend upon his Pleasure. That there is noe I.aw Soe Strictly and prudently Penned for the Secureing of his Subjects Liberties and Properties, but they intrinsically have this Conducion imply, tho' not Expressed. That when he Judgetth itt he may Suspend or abrogate them. Such a Man that teacheth Such a doctrine as this as much weakens the Soveraigne Power as is imaginable and betrayes it wch a Kisse.

**4.** And as thus it is mischievous to the Governors So it is as mischievous to the Governed, when People are under this apprehension, but their Properties and Estates are no longer theirs then it shall please their Governors. Itt destroyes Industry, and care to enrich themselves by trade or adventure and consequently impoverisheth the Kingdom very Sloathfull -40- and Poore Spiried. For tho' it be a false and Invidious Collection and Consequence that because according to the Doctrine proposed a Prince may tak

**APPENDIX 12**

**away his Subjects Laws, Libeties, Estate, therefore he will.** **Nay, tho' upon a just and true acco* whatever the Power of the Prince be, yett it is his Interest to use that Power to the benefit and not to the Detrimt of his Subjects, To keepe them Rich and thereby make them obedient, rather then to impoverish and make them Desperate, Yett it is most certaine that if once men be under that Jealousie that the Laws of the Landes, doe not sufficiently fix their Properties and Liberties, Mans mindes will be Pendulous and unquiett and Subject to fares and Doubts, and thereupon Industrie and paines will wither and Decay, whatsoever Orations Men of Witt and Eloquence may otherwise make to Secure them.*\*

**5. The reasons that tho's Speculators use to inculcate their Perstitious Doctrine of this kind one \[_sic_\] very vaine and frivolous. And they are for the most part such as these.**

**-41- 1. The Reason and Intention of Government is Comon Safety, but such Occurrences may happen as upon Suiden Invasion or Rebellion, that if the Prince Should be bound to ye Letter of Laws not to raise Supplyes for an Army till a Parliament could be Convened, the Kingdome might be overrun, and ye good Subjects loose the Benefit of that Protection that is due to them for the Strict observation of a Punctilio of a lawe agst raising Taxes without Consent of Parliament.**

**I answer 1st that as Lawes So the Method and Modelling of Government**s are to be fitted to what is the Comon and Ordinary State of things ad Plurimum, because mankind have most Ordinarily to doe wh Such Circumstances of affaires as most usually happen. And it is a Madness to thinke that the Modell of Lawes or Government is to be framed according to Such Circumstances as very rarely occurre.\*\* **'Tis as if a Man should make Agarike and Khubarb his Ordinary Dyett, because it is of use when he is Sicke wch may be once in 7 years.1**

**-42- 2. It is not possible for any humane Constitution whatsoever to be so perfect as to answere exactly to every Circumstance of affaires. And therefore in the Estimate and Measure of the goodness or Convenience of Government we are to weigh wch answer most? Exigences of humane life, and tho' it answer not all, yet it deserves a preference before any other that answers Some Occasions but not Soe many or Soe well as the former. It is better to be Governed by certaine Laws tho' they bring Some Inconvenience att Some time then under Arbitrary Government wch may bring many Inconveniences that the other doth not.**

\*\*3. But this is but an imaginary fare as appeares by Experience. For this Kingdome hath been now these goo yeares govern'd by Laws made by Parliament advise and noe time yet afford us an Instance wherein a Parliament might not be timely Enough called for such a Supply (unfess) those miserable brogles 2 that happened between the King and Parliament, wch never could have been, if the King had not Consented to a Bill -43- to make it perpetually. And it is apparent by reason it must needes be so, unless we should imagine that Princess shou'd be so unprovided as not to foresee an imminent Warr above 6 Weekes before itt breakes out. We must not thinke Princes and their Councells, and Ministers, are So Supine and So destitute of Intelligence both at home and abroad as not to have a prospect of such

**APPENDIX**

thinges or not to understand their own purposes and intentions in Matters of So greate Moment as Warr and "upply.

And therefore they write and Speake att randome that tell us the 2 most Eminent Kinges of this Realme Ed. 3 and Henry 5 tooke the greatest freedome in Impositions upon their Subjects. For he that is but little Conversant with the Parliamt Rolls of the Historyes of those Kinges will finde that the third third grade thinges yett was their Warrs and Armies maintained by Parliamentary Supplyes, and those Kinges had the fewest of Arbitrary Impositions of any that preceded or Succeeded them etc.

## Index

_The titles of books contained in this Index are printed in Italics_

_Advocationis Hispanic Duo Libri_ (Gentilli), 52, 53.

Affrays, 200.

Agency, law of, 297-298, 418.

Alcock, 218.

_Aleyn's Reports_, 363.

Alford, 445.

Allegance, temporary, 49.

Alured, 453.

Ambassadors, status of, 40-41 ; cases as to status of, 45-46.

_Ambassadors,_ status of, 45-46.

_Ambassadors,_ status of, 40-41 ; cases as to status of, 45-46.

_Ambassadors,_ 308.

Analytical Jurists, the, their criticism of Coke, 48-482.

Anderson, C.J., 349, 423.

_Ambassadors's Reports_, 362, 365.

_Ambassadors's Reports_, 406.

Ansaldu, 76.

320; equitable modifications of common law rules, 316-319; of rules of the ecclesiastical courts, 319-320; marshalling of, 318-319. Assignment of Chosys in Action, 299, 334-335. Asssumfist, development of the action of, effect on commercial jurisdiction of common law courts, 117, 143; effect on the development of equity, 294, 295, 298, 209, 301. Asssumfist, liability of executors to be used by action of, 419. Attainment, writ of, evidence needed to support, 420. Attempts to commit crimes, 201, 203. Attorney-General, the, generally raised to the bench, 341. Attorney's Academy, the (Powell), 274, 381. Attorney's Almanack, the (Powell), 381. Atubrey, Dr., 6, 7, 46. Aturrey, John, 406. Audita Querella, writ of, 230. Audley, 224, 225. Augustine, St., 20. Austin, 481, 482, 485. Average, 85, 144. Azo, 269. B Bacon, Francis, the variety of his achievements, 238-240; the man, 240-246; the jurist, 246-250; the chancellor, 251-254; his character contrasted with Coke's, 434-435; his estimate of Coke's character, 436-438; his summary of the defects of the common law, 485-486; his proposals for a restatement of English law, 486-489; his reading on the statute of Uses, 394, 395-396; his scheme for a book de regulis juris, 398; his Maxims, 398; other references to, 17, 150, 201, 224, 226, 233, 271, 300, 307, 342, 376, 377, 445, 472, 478. Bacon, Nicolas, 178, 224, 231, 342; 227-229. Bacon's Abridgment, 377. Bail, release on, 190-101. Bail and Mainprice (Coke), 460. Balance or Power, the, 38, 41. Babulus, 52, 134. Ban Royal, 87. Bancroft, Archbishop, 20, 22, 429, 430. Banking, 72, 73, 84, 91, 97. Bankruptcy, law of, 84, 98, 135, 137, 139, 492; jurisdiction in, 150. Rarboux, 263, 280, 293, 294, 299. Barcelona, 70; maritime courts of, 101. Bartolus, 45, 52, 57, 76, 126, 134. Basilicas, the, 76, 77. Basile, Council of, 37. Bafeson, Miss, 105, 114. Battle, trial by, 413. Beauport, Sir Thomas, 127. Beaupont, M. R., 260. Beccara, Raymond de, 9. _Bellieve's Reports_, 358. Ben Jonson, 247, 411. Benet, 259; impachement of, 445. Benevolences, Coke's views as to, 427, 476. Bentoe and Dalison's Reports, 363, 365, 368. Benloe's Reports, 362, 365. Bentham, 455, 485. Bernard, Richard, 9. Besancon, the fairs of, 91. _Bible Battels_ (Bernard), 9. Bull, the, in the Star Chamber, 178-179; in the Chancery, 285. Billbroking, 72. Bills of Exchange, 73, 97, 144. _Black Book of the Admiralty_, 120, 123; contents of, 125-127. Blackstone, 20, 22, 396, 399, 401, 404. Blockad, 35. Bona ridd Purchasers, recognition of the title of, 99, 104-105, 110-111. Bonet, Honore, 36. Bonner, Bishop, 5. Books, Star Chamber, control of, 208. Booty, rules as to distribution of, 34: Borough (or Burroughs), Sir John, 10, 43-. Boroughs, the, commercial law in, 104-106. Bottomry, 144. Brackley, Viscount, see _Ellesmere_ Braceton, 168, 216, 269, 378, 392, 430. Brighton, Treaty of, 37. Brevign Judiciralia (Brownlow), 380. Brian, 473. Bridgman's (Sir J.). \_

## Index

- Cesar, Dr. Charles, 260, 261, 353; Dr. Julius, 6, 7, 12, 46, 139. 261.
- _Calthorpe's Reading on Copykolds_, 394.
- _Calthorpe's Reports_, 360, 365.
- _Camdim_, 228, 229, 230.
- _Camposores, see Money-Changers_.
- _Cancellation of Documents_, 203.
- _Canon Law, discouragement of_, 12; influence of\_, on commercial law\_, 76; 79-33; influence of\_, on equity\_, 222, 260, 267-269; influence of\_, on the theory of contract in the medieval Chancery, 294-297; this theory abandoned by the Chancery, 321-322.
- _Capital Punishment, Star Chamber could not award, 188; reason for this, 188-189; effects, 189._
- _Capitulations, the Turkish_, 42.
- _Carrew, Mathew, 259, 266; George, 259, 277._
- _Cargo, damage to_, 122; care of\_, 124.
- _Carne, Dr._, 6.
- _Carriage by Sea, the contract of_, 85, 122, 124.
- _Carta Fardi, the_, 388.
- _Carta Fardi, the_, 395.
- _Carthew's Reading_, 395.
- \_Carry, 227.
- _Cary's Reports_, 277.
- _Case, action on the_, 301, 416-417.
- _Cases, authority of, in the Chancery, 275-276; effects of_, on development of equity\_, 337; growth of authority of\_, in common law courts, 372-373; approved by Bacon, 486.
- _Causa, the canonist idea of_, 294-295.
- _Cecil, 187, 227, 348._
- _Certiorari, the writ of_, 300.
- _Centique Use, the interest of the_, 334.
- _Chamberlain, 440-441._
- _Champagne, the fairs of_, 91, 92, 94, 116.
- _Ciamparty, 201._
- \_Ciamparty, Ciancellors, the, change from ecel.
- \_Ciamparty, Ciancellors, the change from ecel.

## Index

_Coke's Reports,_ 276, 358, 364, 365, 367, 371, 372-373, 415, 46-46;

## Index

- \[1

## Index

_Descriptto furis et Judici Millitaris_ (Zouche), 16.

_Descriptto furis et Judicii Tsarporalis_ (Zouche), 19.

_Dettinie_, 282, 209), 417.

_Descriptto furis et Judicii Tsarporalis_ (Zouche), 19.

_Dettinie_, 282, 209), 417.

_Descriptto furis et Judicii Tsarporalis_ (Zouche), 19.

_Dettinie_, 282, 209), 417.

_Descriptto furis et Judicii Tsarporalis_ (Zouche), 310.

_Descriptto furis et Judicii Tsarporalis_ (Zouche), 481.482.

_Dickens' Reports_, 278.

_Digest des Briefs Originals_ (Thclaally), 350-381, 387.

_Digest of Case Law_, Bacon's proposals for, 487.

_Digest of Statute Law_, Bacon's proposals for, 487.

_Diges, Sir Dudley_, M.R., 261.

_Didlmacy_, the art of, 30, 40, 41.

_Direction or Preparation to the Study of the Law_ (Fulhecke), 23-24.

_Diseurse of Lave and Single Conutut_ (Eliot), 9.

_Discovery, 281:282, 332._

\_Discovery, the voyages of, influence of on International law, 42.

_Digestation or Administration of Intentate Goods_ (Selden), 409.

_Dissertatio and Fletam_ (Selden), 409.

_Doctor and Student_ (St. Germain), 159, 217, 235, 209, 271, 273; 266-269; 271, 273; 266-269; influence of, compared with that of Braton, 209; theory of contract in, 294.

_Doctors' Commons_, 5, 9, 16, 258.

_Doctrina Placinardi_ (Ever), 380-387; 4.

_Dodderidge_, 15, 17, 345; his book on wills and executors, 15; question of his authorship of the Touchstone, 391-392; his Reading on udwons, 394; his English Lawyer, 397.

_Donation of Constantine_, 42.

_Dorisiaus_, 8.

_Dowzik_, 312.

_Drott Daubaine_, 93.

_Ducks, Arthur_, 8, 16, 24-25.

_Duerling_, 199-201, 204, 210.

_Duello or Single Conut_ (Selden), 408.

_Duress_, 326, 328.

_Dyer_, C.J., 347, 348.

_Dyer's Readings_, 394.

_Dyer's Reports_, 276, 358, 394-365, 370.

_Diving Declaration_, admissibility of in evidence, 183.

## Appendix E Earnest Money, 109.

Eecls-mastical Courts, their jurisdiction over defamation, 205-206; encroachments on jurisdiction of by the Chancey, 300-301; disputes with the common law judges, 429-432.

Eecls-mastical Lawfers, the, 7-8.

Eecls-mastical Lawsfers, as civil lawyers, 4-5.

_Edward I._, 37, 39.

Egerton, see _Elesmere_.

Ejrettent, action of, 333.

_Eklemna /urisprudentine_ (Zouche), 17, 19.

Elliot, Sir John, 164, 449, 450, 452.

Elliot, John, 9.

Eliadrithi, 41, 45, 49.

Ellessmere, his career, 231-238; dider references to, 180, 204, 217, 224, 226, 260, 271, 272, 276, 283, 306, 307, 326, 333, 342, 350, 364, 438, 478.

## Index

Exchange, the mechanism of, 94-97.

Execution, process of, in the fair courts, 97.

Executors, how far assimilated to trustees, 317; protection given to them by the Chancery, 317-318; position of, at common law, 418-419.

Exkter, court of the Staple of, 107.

Exhibits, 181.

Extradation, 49-50.

Extradinary Procedure, the, abroad, 173-175; in the Star Chamber, 184-188

F Fairrax, 221.

Fairs, the international, 90-100; in England, 106-113.

Fales Judmont, writ of, 158.

Fales Measures, 109.

Family Law, development of, by equity, 309-315.

Ferrkus, 134.

Finch, Sir Thomas, 343; Henry, 227, 233, 343; his Nomotechnia, 399-401; Sir John, C.J., and L.C., 250-257, 343-344; 453; Sir Moyle, 344; Henage, 344; Henage, Lord Nottingham, 344.

Firth, Sir Charles, 406.

Flanders, the fairs of, 91, 92.

Fleta, 378, 405.

Foreclosure, the decree of, 331-332.

Foreign Judoments, 38.

Foreigners, their criminal liability, 49.

Foreign, 109.

Foreign, 293.

Fortescue, 185.

Franchises, the commercial, 85-86; of holding a market, 87-88, 89; belonging to towns, 85-90; of the international fairs, 91; of companies of merchants, 92; legal effects--abroad, 93-100; in England, 104, 106-113.

Franklyr, the fairs of, 97.

Franklyr, treatment of, by the Star Chamber; 212-213; by the court of Chancery, 202, 326, 328.

Free Ships Freer Goods, not the law in the Middle Ages and later, 35, 45 n. 1, 47.

Friedram of the Seas, the, 10-11, 42-43.

Friedimt, 122, 124, 144.

Fry, Sir E., 11.

Fulbecke, 9, 22-24, 52.

Fuller, Thomas, 234.

Fuller, Nicholas, 350, 429.

G

G Galstum, John, 385.

Gardiner, Bishop, 5, 218, 224.

Gardiner, S.R., 186, 191, 196.

Gardiner, 8376,

Geneva, the fairs of, 91.

Genoa, 70, 75.

Gentili, his life and character, 52-53; his books, 53; his De Jure Belfi, 53-55; other references, 10, 36, 38, 45, 51, 59, 341.

Gerard, M.R., 229, 260.

German Merchants, companies of, 92.

Germany, commercial courts in, 95.

Gerson, 269.

Gilds' Italian, 68, 69, 71; in other countries, 88, 89; see _Comparities_.

Gianvil, 168, 378. 392.

Gloquester, Richard, duke of, 127.

Godobil's Reports, 360.

Godobil, 12, 15.

God's Penny, 109.

Goldschmidt, 96.

Godovich, Bishop, 218, 224.

Goudesborough's Reports, 276, 360.

Graswinckel, 11.

Gratian, 28, 29, 30.

Grimston, 368.

Grimsol, Archbishop, 7.

Gross, 106.

Grotus, the merits of his De Jure Belli et Pacis accounted for by his intellectual training, 55-56; and by his mental characteristics, 56-57; his place in legal history, 57-58; his Mare Libreum, to-11; other references, 36, 38, 43, 50, 51, 54, 59, 104.

Guardianship, 315.

H H Harkas Corpus, writ of, 300.

Haddon, 7.

Hale, Sir Mathew, his answer to Hobbes, 482-485, and App. III.; other references, 154, 375-376, 380.

Hales, J., 349, 350.

Hampton Couxt Conferen

## Index

Herny VIII., 220.

Hrrebert, 376.

Hrrevs, power of bishop to give a capital sentence for, 433.

Hrreistics, was with, 31.

Hrre's Pleader, 35.

Hrteley's Reports, 361.

Hewins, 133.

High Commission, court of, 429, 430, 431.

Hire, contract of, 418.

Hirre, intract of, 418.

Hirrerians, their criticisms of Coke's writings, 472-478.

Histor of Tithes (Selden), 408.

Hobart, Henry, 200, 342, 437 ; John, 342.

Hobart's Reports, 359, 365.

Hobbes, 459; his criticisms on Cok 480-482; Hale's answer thereto, 482-485 and App. III.

Hobborne, Sir R., 277; his Reading, 395.

Holland, John, duke of Exeter, 127.

Holland, Prof. Sir Th., 28, 53.

Holry Roman Empire, 32, 39.

Hooker, 51.

Horses, sale of, 111.

Hostrinsis, 30.

Hotman, 22, 45, 52.

Hudson, his book on the Star Chamber, 164-166; other references, 139, 147, 161, 164, 178, 179, 181, 183, 184, 187, 198, 199, 201, 202, 203, 210, 211, 212, 232.

Hughes's Abridgment, 377.

Husband and Wife, contracts between, 310-312; see _Married Women_.

Hussey, 221.

Hutton's Reports, 360.

Huvvelin, 85, 90, 91, 96.

I

Implied Trusts, 305.

Impositions, Coke's views as to legality of, 427, 476.

Imprisonment, by order of king or Council, 348, 351, 423, 450, 452, 476, App. I.

Indkmnity, the contract of, 298.

Indians, the, 32, 42.

Infancy, 418.

Imbrids, was with, 31; inclusion of, in International law, 42.

Injunctions, 287-288; in real property cases, 323-324; 335-336; in cases of tort, 324-325; classification of, 325; against actions and judgments at common law, 335-336.

Imsequent IV., 31.

Inns of Court, educational system of, 16, 344, 346; its decay, 354, 378.

Inquest, the, becomes a Lody of witnesses, 172; procedure by, 171-176.

_Inslitutes, the_ (Coke), 466-471.

\_Institutes, Bacon's proposals for a book of, 488.

_Institutines Juris Anglicani_ (Cowell), 21.

_Instructions for the Warres_ (Ive),9.

Intrumenta Publica, 78.

Insult, no remedy for, at common law unless damage was caused, 206-207.

Invariance, 73, 85, 101, 130, 144; London court for cases of, 135, IFC

_Insuratatat Magna_ (Bacon), 241, 242.

Intention, as a ground of liability, 416-417.

Intercursus Magnus, the, 41; Malus, 42.

International Law (Public), history of, in England, 25-60; causes for growth of, 26; roots of, 26-27; the medieval ideas, 28-39; topics connected with war, 29-36; other topics, 36-39; necessities of the territorial state, 39-50; foreign supergiants and ambassulators, 39-40; permanent emphasises, 40-41; balance of power, 41; commercial questions, 41-42; freedom of the scas, 42-43; the topic of Peace, 43; of Neutrality, 43-44; international questions, 44-50; earliest English writers on, 50-60; see _Zouche, Gentili, Grotius;_ a law _inter gentes_ 50-51; division into Peace and War originated by Zouche, 59.

International Law (Private), see _Private International Law_.

International Lawyers, 5-7.

Interpreter, the (Cowell), 20, 21-22, 402.

Interrogatories, in the Star Chamber, 180-181, 429, 439-440; other references, 7, 8, 9, 10, 13, 22, 44, 48, 224, 231, 243-9; _Janti Facies Alterna_ (Selden), 408.

\[Jardine, 185, 186.

\[Jenkins, 353.

\[Jenkins's Reports, 354, 362, 365.

\[Jeopar, 443, 414.

\[Jerusalem, 405.

\[Jertisson, 85, 123, 124, 144.

\[Jointure, 312.

\[Jones' (Iv.) Reports, 363.

\[Juggments, in fair courts, validity of, abroad, 98.

\[Judges, requests to, for extra judicial opinions, 351; legality of, 427-428, 438.

\[Judges and Serjrants, 340-355; high judicial standard in Tudor period, 346-350; salaries, 346; change in character of bench in seventeenth century, 350; dismissal of judges for political reasons, 351; occasionally show independence, 352; sale of judicial and other legal offices, 353-354; results on the bench, 354-355; effect of the legal character of the constitutional conflict, 354-355.

\[Judicial Notice, 419.

\[Juries, control of, by Star Chamber, 203.

\[Juris et Judiciis Feciatis vel Juris inter Gentes (Zouche), 58-59.

\[Jurisdiction of the Admiralty Asserted (Zouche), 12.

\[Jurisdiction of Courts (Crompton), 166-167; Jury, half-native half-foreign, 104; trial by, in fair courts, 107-108; rules of venue, 117-119, 140-143.

\[K\]

\[Kellowy's Reports, 359, 368.

\[King's Counstell, 341.

\[Kingsmill, George, 342; John, 342.

\[Kinals, Lord, 200\]

\[Labouring Jurors, 202, 203.

\[Lachs, 329.

\[Larsig Fidbi, 295, 321.

\[Lambard, 403-404; his edition of the Anglo-Saxon Laws, 403; his Pramblulation of Kent, 404; other references, 166, 167, 214, 258, 260, 272, 275, 277, 337, 368, 470.

\[Land Law, technicalities of the media-val, 414.

\[Lank, Richard, 257.

\[Lane's Reports, 361.

\[Lanses, 32.

\[Latch's Reports, 362, 367.

\[Latin Plea Roll, formal test of Court of Record, 159-161.

\[Laud, 261, 352, 403, 405.

\[Law, supremacy of the, 424; Coke's views as to, 428, 430-431, 451, 455-456; of God, 216, 268; of nature, 216; of the state, 216.

\[Law Merchant, see _Commercial and Maritime Law_.

\[Layton, Dr., 5.

\[Lea, Sir James, 353.

\[Leadam, 162, 163, 165.

\[Lee, Rowland, 5.

\[Legacies, payment of, 318-319; abatement of, 319; payable in future, 320; to a class, 320.

\[Legal Education, Coke's suggestions as to, 495-466; Bacon's proposals, 488; see _Ians of Court_.

\[Legal _Indicature in Parliament_ (Selden), 409.

\[Legal Theory, books on, 16, 17-20.

\[Leges Henrici Primi, 403, 405.

\[L'Hopital, 95.

\[Leicester, the carl of, 52.

\[Leipsic, the fairs of, 91; commercial court it, 95.

\[Leomard's Reports, 361.

\[Leves, Dr., 7.

\[Lex Mercatoria, see \_Malynes.

\[Ley's Reports, 362.

\[Liber's Reports, 362.

\[Liber's Reports, 366.

\[Liber's Declaration, 386.

\[Liber's Declaration of the Subject, \], bills to safeguard, 450-453.

\[

## Index

London, shops in market overt, 105. Louis IX., 37. Louis XI., 127. Lubeck, maritime laws of, 100. Lyons, the fairs of, 91, 94. Lyster, C.J., 34.1, 348. Migna Carta, 188-189, 449, 451. Maintenance, 201-203. Maitland, 19, 34, 103, 106, 157, 345, 309, 402, 412, 475, 489. Malicious Prosecution, 417. Malynns, his life, 131-132; his Lex Mercatoria, 132-135; other references, 11, 12, 46, 130, 144. Manningham, 345. Marshall, Lord, 147. Marchi, J., his books on Slander and Arbitrations, 382. Murch's New Cases, 359, 365. Mare Clashimi (Sudlen', 10-11, 43, 101, 408. Mare Clashimi (Grotius) 10-11, 43, 47, 101. Mariners, position of, in Laws of Oleron, 121-122, 123-124. Marital Rights, frauds on, 312, 313. Maritime Coukts, 101. Maritime Law, see _Commercial and Maritime Law_. Maritime and Commercial Lawvers, 7. Marics, his tract on bills of exchange, 131. Makket Overt, purchasers in $-$abroa', 99; in England, 104-105, 110-111. Markets, see _Franchises_. Miquiardus, 76, 79. Markried Women, equitable modifications of the status of, 310-315. Marsden, 6, 138, 154, 476. Makesiales, 71. Maktin, Sir Henry, 7, 47. Mary, 47. Mary Queen of Scots, status of, 45; trial of, 229. Master of a Ship, position of, in Laws of Oleron, 121-125. Masters in Chancexy, the, 252, 253, 256. _Marius of the Law_ (Bacon), 246, 398, 489. Mendoza, the case of, 45, 52. Mercantile Agents, 144. Mercanziia, the, 69, 74. Merchants, influence of, on international law, 34-35, 38-39; place of, in commercial courts abroad, 83-84. Merc'ants' Marks, 144. Middle Ages, political theory of, 28; economic condition of England in, 113. Midgley, W., 385. Mii, 68. Military Discipline, 34. Mill, J. S., 455. Mills, William, 161, 166. Minward, R., 409. _Mirror of /sistec_, 378, 405, 475; ?oke's use of, 459. Mistake, 292, 326, 327. Mitchell, inpeachment of, 445. _Modus Trenachi Parliamentum_, Coke's use of, 459. Molloy, Charles, 131. Mompsson, impeachment of, 445. Money-changers, 96-97. Monopoles, 436. Monopoles, 204, 277. Moore's (F.), _Reading_, 395. _Moore's Reports_, 270, 302. Morr, John, 342. More, Sir Thomas, his career as chancellor, 223-224; other references, 30, 219, 220, 222, 225, 231, 251, 254, 266, 342. Morek, 66, 75. Mortagns, 293, 330-332. Morton, Cardinal, 218. Mountainoure, C.J., Edward, 342, 349; Henry, 232, 342, 353, 444. Moylle, Robert, 385. Mylward, R., 223. N Natura Brevium, 379, 380; ?itzherbert's new, 380. Necssaries, infants contract for, 418. Neglorence, us a ground of liability, 416-417. Nogiandik Instruments, 84, 97, 114, 299, 335, 418. Nelson's -Ioriginal, 377. Nelson's Reports, 278. Neutralit. no law of, in Middle Ages, 35; causes for growth of, 35; growth of, 43-44; cases involving lx.. of, 48-49. _New Book of Presidentes_ (Phayre), 385-389. New Trials, 301. Newton, 118. _Nonotechnia_ (11. Finch), 399-401. Non-own

**Index**

_Nove Narrations_, 379.

**Novation**, 299.

_Novem Organism_, _the_ (Bacon), 34..

_Noy's Reports_, 360.

**Nurambiguro**, commercial court at, 95.

**Nys.**, 8, 11, 28, 33, 36, 40, 44, 49.

**O**

## Index

- S S A Don Pantaleone, 18, 46. Saepe Continogit, the decretal, 82. St. Germain, Christopher, 17, 217, 266-267, 336 ; see _Doctor and Student_. St. Ives, the fair courts of, 106, 109, 111, 112. St. John's College (Oxford), 52. Sale, action for impeding a, 109 ; contre-a-s in fair courts, 109-111 ; in the Court of Chancery, 297 ; in the common law courts, 418. Salvage, 85. Sanders, 265, 266. Satisfaction, 320. Savile's _Regorts_, 363. Scabini, the, 88. Scandalum Magnatum, 207. Scargill-Bird, 263. Scintilla Juris, 396. Scripta Oblicatoria, 114. Scrivers Company, 115. _Sea Law of Scotland_ (Welwod), 11. Secondaries, the, 228. Secta the, development of, in fair courts, 107-108. Sedittous Llabel, 207, 208-209. Sedittous Llabel, 209-209. Sedlen, his life, 407-408 ; his works, 408-409 ; his characteristics, 409-411 ; his merits as a lcgal historian, 411-412; other references, 15, 43, 59, 101, 337, 345, 376, 472, 482. Sedlen Society, the, 12. Self-crimination, the privilege against, 193-194, 333, 420. Separate Use, the, 312-315. Serjeants, change in position of, 340-341 ; payment for degree of, 355. Serjeants and Judges, the, 340-355. Shardius, 134. Sherbiard, William, 391-392 ; his books on procedure, equity, and conveyancing, 397. Shepherd's _Arridgments_, 377. Sherifi's, incapacity to sit in Parlament, 448-449. Ship-monkey, 351. Ships, law as to, 73, 85 ; provisions of Laws of Oleron as to, 121-122. Short Parliament, the, 255. Shore, Sir Bartholomew, 161. Shorefin, 367. _Siderfin's Reports_, 363. Six Clerks, the, 228, 230, 232, 256, 265. Slander, see _Deformation_. Smith, Sir Th., 5, 167, 185, 191, 193. Solicitor-General, generally raised to the Bench, 341. _Solittous Oussettionis Veteris et Novue_ (Zouche), 58. Sommer, 403-404 ; his Saxon dictionary, 403 ; his treatise on gaevkind. 404. Soto, Dominique, 32. Southwell, M.R., 260. Sovereigns, foreign, status of, 39-40. Sovereigns, of the state, 49 ; the question of, in the seventeenth century, 423-424 ; Hobbes's theory of, 480, 485. _Sovereigny of the British Sea Proced_ (Borough), 10. \_Special Law Cases

## Index

- 1.continental and English deas as to, 170-178; the ordinary, 1786184; the extraordinary, 184-r68; influence on each other of Star Chamber and common law ideas, 188-197; _Substanite Jane_-wide. wrong-doing, 197-201; attempts to commit crimes, 201; maintenance, etc., 201-203; conspiracy, 203-205; defanntation, 205-212; fraud, 212-214; its civil jurisdiction, 214; jurisdiction in commercial cases, 137; organization of, by Ellesmerce, 232; effect of its work on the Chancellor's equitable jurisdiction, 300.
- 2.Stationers, the company of, 363. Statutarii, 75. Stauford, 376, 380, 392, 469. Stephen, Sir James, 193, 195, 196, 202, 203, 204, 481, 485. _Stone's Reading_, 395. Story, Dr., case of, 50. Straccia, 76, 83, 84, 134. Strafford, 257. _Style's Reports_, 361, 365. Suarez, 30. Suppena, writ of, 281, 285. Sullv, 46. Summa, the, of the canonists, 30. Supremacy of titi Common Law, in danger in sixteenth and early seventeenth centuries, 420-423; effect of the constitutional controversies on, 492-493. Suretship, contract of, in fair courts, 112; in the Court of Chancery, 298, 321. Susa, Henry of, 31. Sutcliffe, Mathew, 9. Sunshburn, Henry, 14. _Symbndergraphy_ (West), 273-274, 307, 387, 389-399, 392. Tabelinones, the, 78. _Termes de la Ley_, 159, 401. _Terms of the Law_, Bacon's proposal for a book of, 488. Terms of Years, used to evade the Statute of Uses, 304, 306. _Termsants_ (Swinburn), 14. Tsettsunov, actions to perpetuate, 282, 333. Teutonic Order, the, 31. Tikloall, S., 350-381. Thirty Years' War, 44. Titles Pretended, purchase of, 202, 203. _Title of Honour_ (Selden), 408. Toles, of a market, 87, 88, 103-104.

## Index

Usss, Statufg, of, 220, 223, 304, 416; Bacon's Reading on, 395-396, 460; Coke's Reading on, 460. Usury, 84, 93, 97, 135; evasion of prohibition of, so. V Vaviso, 473. Venue, modifications of rules of, 117, 119, 140-142; applications to Chancey to change the, 280, 301. Vrelison, B., 353. Vrelison, his precedents of pleading, 385. Vrelison of the Admiral jurisdiction (Godolphin), 12. Vrelison of the Civile and Ecclesiatell, 12. Vrelison of the Civile and Ecclesiatell, 12 (Ridley), 11, 12-13. Villein Status, abuse of the law as to, 291. Villeirs, Sir John, 442. Villeirs's _Abridgment_, 377. Vilosoradoff, Sir Paul, 267, 268. Vilknce, 197-201. Vitoria, Franiscus de, 32, 51. W Wagon of Law, ground of application to the Chancellor, 280, 299; disuse of, 301. Wallace, 355, 367, 399, 477. Walter, C.B., 351. Wambaugh, Professor, 388. War, treatment of, by International lawycs, 29-36, 52, 53-54, 57, 59. Warahah, Archbishop, 218. Warahanties, in contract of sale in fair courts, 110. Welwood, 10, 11, 43, 131, 134. Wentworth, Th., his book on wills and regulators, 15. Wentworth, Sir Thomas, 451. West, W., commercial precedents in his Symbolegraphy, 143; forms of pleas in Chancery in, 162; his a_count of the Chancery, 273-274. Wintg
