No More Learning

' His Irenicum
(1659), which, though directed against nonconformity, regards the
system of church government as unimportant, gave him a place
among "latitude men'; but one of his earlier works was a defence
of Laud's Relation of his controversy with the Jesuit John Fisher
against the Pretended Answer of T. C. (1664). Burnet com-
mended him to William III as 'the learnedst man of his age in
all respects '-a description justified by his Origines Sacrae (1662),
and Origines Britannicae (1685). Stillingfleet's writing has no
exceptional merit as literature. It reflected, without enriching,
the manner of his time; and, when his learning became obsolete,
his books passed out of use. Though his reputation as a man of


## p. 301 (#323) ############################################

The Fashionable Preachers 301
letters during his life was higher than any of those yet mentioned,
his style entirely lacked the distinction which could make it per-
manent. Another friend of Burnet was Simon Patrick, bishop,
successively, of Chichester and Ely, who, commended at the re-
volution to the new king's notice, afterwards became one of the
commission through which the royal patronage was exercised in
the interests of latitudinarians and whigs. Patrick was much in-
fluenced by the Cambridge Platonists and preached the funeral
sermon of John Smith. He was a voluminous writer, contro-
versial, exegetical, homiletic; but his chief excellence lay in his
sermons. Burnet called him “a great preacher' and he was said
to be an example to all bishops, and all dissenters, in ‘sermonising. '
What he did at St Paul's, Covent Garden, William Beveridge
did at St Peter's, Cornhill: churches were filled and multitudes
were influenced by the earnestness of the preacher. Robert Nelson,
himself a writer of importance as well as a leading lay churchman,
said of Beveridge that he had 'a way of touching the consciences
of his hearers which seemed to revive the spirit of the Apostolic
age. ' This, indeed, is the character of his writings-eminently
emotional, tender, full of feeling and pathos. He was ranked
among the churchmen whom a later age called evangelical, but
he was as emphatic in stating the doctrines of the church as any
member of the school of Andrewes or Laud,
The age of sermons was not yet over. If laymen no longer
found their chief theological instruction in sermons, they still
crowded to hear a great preacher, and the preaching of a sermon,
in a very great number of cases, involved, sooner or later, in some
form or another, its appearance in a book. The list of theologians
which we have given might be very greatly extended if we were to
add those who were primarily preachers. The Diary of Evelyn,
who exemplifies the high standard of a devout anglican gentleman,
and that of Pepys, who must be ranked, for the greater part of his
life at least, among the worldly, supply constant illustrations of the
interest taken by Londoners of the later Stewart age in fashion-
able preachers. Anthony Horneck, for example, a German who
was incorporated at Oxford and, after serving a cure there,
became preacher at the Savoy and was made king's chaplain at
the revolution, was-says Anthony à Wood—á frequent and florid
preacher, very popular in London and Westminster’; and Evelyn
thought his eloquence most pathetic. His popularity shows that
a reaction against the learned and lengthy style of Barrow and
his school was setting in. Quotation from the classics and the
a


## p. 302 (#324) ############################################

302
Divines of the Church of England
Fathers was, indeed, becoming less common: a volume of Beveridge
may be read through without meeting a single quotation except
from the Bible; early in the eighteenth century, Swift could
declare that he had outlived the custom of learned quotation.
But, during the last forty years of the seventeenth, a variety of
styles survived. Much controversy was compressed into the
pulpit hour, and occasionally extended it. The literature of the
Popish plot, of the anti-nonconformist controversy, of the Roman-
ising movement under James II, is well represented in sermons.
There were 'plain, honest, good, grave' discourses such as Pepys
heard from Stillingfleet, whom he declared to be, in the opinion
of the archbishop of Canterbury, and the bishop of London, and
another, 'the ablest young man to preach the Gospel since the
Apostles. ' Archbishop Dolben, described by Dryden as
(He) of the Western Dome, whose mighty sense
Flow'd in filt words and heavenly eloquence,
was equally eloquent and direct in his appeal. The language of
both these preachers is simple and unaffected, and their argument
clear and coherent: they would have agreed with Horneck that
the object of the preacher should be 'to convert souls and not to
paint them. ' For the most part, however, it would still be true to
say that English sermons, in this period—though at no other time
were they ever more popular or effective—were rather expository
and argumentative than descriptive or hortatory.
A special style belonged to a class of discourse which had
become very common. Now that prayers for the departed were
no longer publicly said, their place was taken by the pomp, gloomy
but inferior, of the funeral sermon, where solemn language fell
rapidly into a convention like the nodding plumes on the heads of
the horses which drew the coffin, or the customary cloak of solemn
black which disguised the mourners into a pattern of imposing
grief. The mass of extant funeral sermons is enormous: hardly a
country squire was suffered to be buried without a eulogium which
found its way into print; and, on the deaths of great personages,
the chief preachers used the opportunity for impressing a wide
circle with the solemnity of mortal things. Extempore preaching
was beginning to be popular. Burnet encouraged, and Charles II,
apparently, admired, it; but, all through the seventeenth century,
the written composition was much the more common. Whether it
were written out or not, there can be no doubt of the sermon's
influence or popularity; it still remained the sole class of litera-
ture with which everyone was, or might be, brought into contact;
a


## p. 303 (#325) ############################################

Tillotson and South
303
and it affords a constant parallel to the literary work of secular
writers. During the period of the later Stewarts, there gradually
ceased to be a 'pulpit style' pure and simple; the preachers were
ordinary men and wrote ordinary English. Thus, after Jeremy
Taylor, they ceased to lead in the development of prose. No one
of them had the charm of Fénelon, nor anything of the dignity
and splendour of Bossuet, Massillon or Bourdaloue. They were
typically, and almost exclusively, English. Foreign influence
hardly touched them.
This is clearly seen when we turn to the most popular of all
the preachers of the revolution period, John Tillotson, a ‘lati-
tudinarian' who rose as much through the pulpit as through
politics to be archbishop of Canterbury. It was said of him that
‘his sermons were so well heard and liked, and so much read, that
all the nation proposed him as a pattern and studied to copy after
him'; and, after his death, two thousand five hundred guineas were
given for the copyright of two volumes of his discourses. Little
more than a century later, they could be bought for waste paper;
and it is in the last degree unlikely that they will ever be reprinted
or studied again. Here, public taste can unhesitatingly be said to
have formed a sound judgment. Tillotson's style is simple and
easy, in comparison with much that was written in his day; but it
is utterly without charm, or distinction, or interest. The thought
is commonplace, and the language matches it. A comparison of
Tillotson with Addison shows at once how differently a simple style
can be used, how effectively the general aim of goodness can be ex-
pressed in prose, and how unexpected touches can redeem the expo-
sition of thoughts which are the common stock of intelligent men.
But, before we have done with sermons, we must touch on the
striking contrast, at once to the ornate and the commonplace, to
Taylor and to Tillotson, noticeable in the work of Robert South,
who was twenty years younger than the former and died twenty-
two years after the latter. South, before all things, was original.
He rejected the flowers of Taylor, and followed the simple way
before Tillotson. But he followed it with a difference. If he
delights not in tropes or figures, he abhors the commonplace and
the dull. He revels in humour: he continually shoots shafts
of ridicule against vice, be it pride or hypocrisy, ingratitude or
anger. He had fixed orthodox opinions and considered orthodoxy
important, unlike Tillotson. But he knew how to make beliefs
effective without being venomous; he could make home truths
stick, though the wound did not fester. His writing is as sincere


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304
Divines of the Church of England
6
as Tillotson's, but of quite different quality: while the one main-
tains a level of plainness from which it is difficult to detach a
passage of interest, the other is always vivacious, and the difficulty
in quoting from South is to find a passage which will not lose by
its separation from a context equally vigorous and emphatic.
Many an epigram could be set down by itself; but there was
never a time when English prose lacked a maker of epigrams.
Part of a longer passage, chosen almost at random, may illustrate
at once the characteristic merits of South and the ordinary unaf-
fected language of Charles Il's day. It is from a sermon preached
before the university of Oxford, at the beginning of the October
term of 1675, on ingratitude. The preacher is approaching his
'consequences,' and, after advising that friendships should not
be made with the ungrateful, he continues:
Philosophy will teach the Learned, and Experience may teach all, that it
is a thing hardly sensible. For, Love such an one, and he shall despise you.
Commend him, and, as occasion serves, he shall revile you. Give to him, and
he shall but laugh at your easiness. Save his life; but when you have done,
look to your own. The greatest favours to such an one, are but like the
Motion of a Ship upon the Waves ; they leave no trace, no sign, behind
them; they neither soften nor win upon him; they neither melt, nor endear
him, but leave him as hard, as rugged, and as unconcerned as ever. All
Kindnesses descend upon such a Temper, as Showers of Rain, or Rivers of
fresh Water falling into the Main Sea: the Sea swallows, but is not at all
changed, or sweetened by them. I may truly say of the Mind of an Un.
gratefull person, that it is Kindness-proof. It is impenetrable; unconquer-
able; Unconquerable that which conquers all things else, even by Love itself.
Flints may be melted (we see it daily) but an Ungrateful heart cannot; no,
not by the strongest and noblest Flame. After all your Attempts, all your
Experiments, for any doing that Man can doe, He that is Ungratefull, will
be Ungratefull stilli,
Style such as this was well employed in controversy. South's
Animadversion on Mr Sherlock's Book entituled a Vindication
of the Holy and ever-blessed Trinity is the liveliest piece of
theological criticism of the time. Sherlock himself (master of
the Temple and, ultimately, dean of St Paul's) wrote well. His
Practical Discourse concerning a Future Judgment (1691) is a
piece of sound and sober prose, and there is a touch of interest in
almost everything that he wrote. But he will not be read today,
and will be remembered only for the witty remarks on his short
sojourn among the non-jurors, and for having undergone the
criticism of a writer far abler and more lucid than himself.
South affords an agreeable diversion to the student of later
seventeenth century religious writing. Under Charles II, James II
1 Sermons, vol. I, 1697, pp. 512_514.
1


## p. 305 (#327) ############################################

Controversialists
305
and William III, theologians seem more concerned to be serious
than to be attractive, and it was natural that they should seek
rather to convince than to entertain. Among those who attained
distinction by writing sharply, Samuel Parker, whom James II
made bishop of Oxford, in his Discourse of Ecclesiastical Polity,
merits attention, because he shows (as, indeed, do not a few theo-
logians by affinity or contrast) the marked influence of Hobbes.
He was a clever satirist, too, and he had views on toleration which
were in advance of his age. But he did not leave any permanent
.
impression on letters.
Among the mass of literature called forth by the controversies
of the time may, perhaps, be noted the little known Episcopalia,
or Letters of . . . Henry [Compton] Lord Bishop of London to
the Clergy of his Diocess 1686. These show that 'conferences'
with the London clergy were no modern invention; and they are
written in the plain straightforward style, without affectation
or obscurity, which was becoming the property of all educated
men. On another side were a number of Roman Catholic, and
especially Jesuit, writings, ranging from the ephemeral treatises
of Obadiah Walker to the vigorous polemic of Andrew Pulton.
Pulton's opponent was Thomas Tenison, Sheldon's successor at
Canterbury, of whose manner of writing Swift said that he was
hot and heavy like a tailor's goose. ' But in none of these, their
imitators and their followers, is there anything which arouses
interest. Apart from them, yet still winning fame chiefly through
controversial works, is the solitary and dignified figure of George
Bull (who died as bishop of St David's), perhaps the one English
ecclesiastic of the period who attained to European fame. Robert
Nelson's eulogy of his sermons shows that they had a distinction
which most sermons of the time lacked; and they amply justified
the praise. 'He had a way of gaining people's hearts and teaching
their consciences, which bore some resemblance to the apostolical
age. ' But Bull's sermons, in the eyes of his own age, were the least
of his works. Nelson sent his Judicia Ecclesiae Catholicae to
Bossuet, by whom it was presented to the French episcopate; and
the great French theologian returned the congratulations of the
whole clergy of France' for his defence of the Divinity of Christ.
His Harmonia Apostolica, and, of his sermons, that on the Fall,
were, also, titles to high fame. But it is the matter rather
than the manner which places Bull among the glories of the
Caroline age.
So far, we have considered writers who were closely allied with
20
a
E, L, VIII,
CH. XII.


## p. 306 (#328) ############################################

306 Divines of the Church of England
the national life. The church of England, in the years which fol-
lowed the restoration was the institution round which most affection,
and most controversy, gathered; and its representatives were pro-
minent in the public eye. Nonconformist writers, whether Roman
Catholic or protestant, had very little influence; they were not
conspicuous for learning, and their defective education left them
without a valuable literary weapon. It was different with another
body which came into existence at a crisis in the national history.
When William and Mary were called to the throne by the
convention parliament, there was a large number of clergy who
thought it impossible to take the oath of allegiance anew, the
sovereign to whom they had already taken it being still alive.
The doctrine of the Divine right of kings, Hobbism, the theory of
passive obedience, united to confirm their refusal. And a large
number of conscientious men, with the primate of all England at
their head, went into voluntary exile from the main current of
national life. It was natural that among such men should be some
of the leaders of the learning and literature of the age. Sancroft
bimself had ceased to contribute to literature or learning; but, in
his day, he had wielded the pen adroitly. His Fur Praedestinatus,
a delightful satire on Calvinism, was an early work; but arch-
bishops cannot afford to be satirical in print, and, when he became
a non-juror, Sancroft refrained from all written works. His chap-
lain Henry Wharton did not long remain attached to the party;
but his sympathies were certainly with the high church and high
tory theory. The testimony of a great historian of the nineteenth
century to Wharton's greatness cannot be passed over. "This
wonderful man,' wrote bishop Stubbs, 'died in 1695 at the age of
thirty, having done for the elucidation of English Church History
more than anyone before or since. But his eminence is that of
the scholar and investigator rather than of the man of letters.
Among the definite members of the non-juring body were several
who combined these characteristics. No survey of this chapter of
English literature would be complete which did not mention the
work of Ken and Kettlewell, of Dodwell and Hickes.
Thomas Ken was one of those religious writers in whom a
beautiful soul shines through the words which express the sin-
cerity of their appeal. The motto of his writings might well be
the words which he set at the head of all his letters—'All glory be
to God. ' He wrote only when he felt deeply. Ichabod tells of his
disappointment with the church after the recovery of 1660. Of
1 Preface to Registrum Sacrum Anglicanum, 2nd edition.


## p. 307 (#329) ############################################

Ken and Kettlewell.
Hickes and Dodwell 307
three sermons, the best is that for 'the Funeral of the Right Hon.
the Lady Margaret Mainard, at Little Easton, in Essex, June 30,
1682. ' In it, he commemorated a 'gracious woman' whose good-
ness he knew from an intimate acquaintance of twenty years, and
through the confessional, as that of one who 'never commited any
one mortal sin. Here, sorrow was chastened by the delightful
memory of virtue: the charm of which he wrote gave a lightness
to his style, and a felicity of touch, which greater writers might
have envied. But all his writing, it is easy to see, was unstudied
in form. His poetry, simple and flowing, came readily from his
pen; his prose, which often embodies anxious thought, is still
an excellent example of the prose which educated men naturally
wrote in his day. And, if he could write tenderly, he could
also write severely, as his letter to archbishop Tenison shows
(written because, as he thought, the deathbed of queen Mary
had not been made to bring her to repentance for her un-
dutifulness towards her father). John Kettlewell, himself a saint,
had a natural affinity with Ken: his work was essentially practical
and devotional; almost all his books treat of Christian duty and
privileges, sacrament and creeds, and their manner is of a piece
with their matter. George Hickes, on the other hand, and Henry
Dodwell, were scholars first and men of piety afterwards. The
former was a student from his youth, a collector of manuscripts
and antiquities: he learnt Hebrew that he might discuss rabbinical
learning with the extraordinary duke of Lauderdale; and 'Anglo-
Saxon and Meso-Gothic,' it seems, for his own pleasure; and his
Linguarum veterum septentrionalium thesaurus grammatico-
criticus et archaeologicus is a marvel of erudition and industry.
Hickes's style is sharp in controversy; in general literature-con-
cerned, chiefly, with the burning questions of nonconformity and of
the oaths—it is coloured by the diversity of his learning; and he
shows, like several of his friends among the non-jurors, the influence
of the early liturgies in which he was thoroughly at home. If Hickes
was the most learned clerk, Henry Dodwell was the most learned
layman, among those who refused the oath to William and Mary.
His friend Francis Brokesby preserved his memory in a Life
published in 1715, in which the ‘Accomplishments and Attain-
ments of the ‘lay-dictator' are profusely eulogised in a style of
crabbed pedantry from which the subject of the biography had
quite escaped. Dodwell is not an easy writer ; but, then, his
subjects are not easy. He is mathematical and theological, eager
to quote and overwhelm with authority. Were the literary work
20-2


## p. 308 (#330) ############################################

308 Divines of the Church of England.
of the non-jurors, in both divisions—those who returned to com-
munion with the national church and those who abstained to be
estimated by the writings of those we have named, its value to
literature, apart from its services to learning, would be adjudged
small. But Robert Nelson, in his Companion for the Festivals
and Fasts (1704), produced one of the most popular of all religious
books, and the success which he achieved was deserved by the
sincerity of his writing. Nelson did for the church of England in
prose, what Keble, more than a century later, did in poetry. He
showed the romance of its past, the nobility of its ideal, the purity
of its forms of prayer. His book, though it is not more than good,
certainly not great, literature, had an influence which good work
does not always achieve. It caught exactly the religious tone of
honourable men trained in the traditions of anglicanism, such as
Clarendon or Evelyn, or of typical characters, imaginary but very
real, like Sir Roger de Coverly or Sir Charles Grandison. The
religion which Nelson represented was that which Herbert has im-
mortalised, the religion of an English gentleman; and his writing
l
has the quietness and confidence which belongs to the character.
The period of the later Caroline divines, from 1660 to 1700,
has no conspicuous literary merit: it is a period of learning and
commonsense rather than of conspicuous originality. Moreover,
it may be observed how little it was associated with European
culture or indebted to foreign influence. Ken read Spanish and
may very likely have been influenced by the holy life of Pavillon
a model French bishop. Many English ecclesiastics treated
French ecclesiastics with courtesy. But English preachers did
not take the French for their model, and English theologians
seemed to pay little heed to what was being said over sea. There
could be no greater contrast than that between the attitude of the
Elizabethans and the later Carolines towards foreign literature-
between Hooker, for example, and Barrow or Bull. Interest in
the church abroad, in the east among the oppressed Christians in
Turkey, and in the assertion of Gallican liberties, began, it is true,
to grow at the end of the century, and it was fostered by the non-
jurors; but, for the most part, English theology remained apart
from the current of European thought. Its expression was
becoming more simple, more direct, more typically national.


## p. 309 (#331) ############################################

CHAPTER XIII
LEGAL LITERATURE
I
IN order to treat at all adequately the subject of legal
literature in the seventeenth century, it seems necessary to make
a rapid survey of the writings of the earlier periods-indeed, to go
back to the very origines juridicales, and that for two reasons.
First, because English law, even more than English liberty, had
'broadened down from precedent to precedent'; so that the key
to the legal literature of the seventeenth century has to be sought
among the records of its predecessors. Secondly, because the
great law-writers of the Stewart era-whether, as in the case of
Selden, drawn by the spirit of science, or whether, as in that of
Coke, driven by the condition of the system of law which they
were administering, and by the exigencies of party politics—were
antiquaries, whose works consisted largely of commentaries upon
the legal scriptures of their patriarchal forerunners. Hence, if we
desire to understand either the principles of Stewart law or the
nature of the legal literature of the seventeenth century, we must
go
back to the sources.
English legal literature may be said to have had its beginning
when, about A. D. 600, king Ethelbert of Kent, newly converted to
Christianity, put into writing the dooms of his folk juxta exempla
Romanorum? . The influence that moved him came from the
Roman church, the model that guided him was furnished by the
Roman empire; but—and this is the remarkable fact—both the sub-
stance and the language of the laws of Ethelbert were Kentish.
They stand unique in legal history as 'the first Germanic laws that
were written in a Germanic tongue? ' Further, they typify the
1 Bede, Hist. Eccles. Bk. 11, c. 5.
· Pollock and Maitland, Hist. of English Law, vol. , p. 11; Brunner, Deutsche
Rechtsgeschichte, vol. 1, p. 283.


## p. 310 (#332) ############################################

310
Legal Literature
-
general relation of English law to Roman law through many suc-
ceeding centuries. English law owes much to Rome—both civil
and ecclesiastical Rome-in respect of unifying principles, general
ideas, logical arrangement and symmetrical form ; but, in sub-
stance, it is of native growth. The lead given by Ethelbert of
Kent, and his successors, was followed, after the lapse of a
hundred years, by Ine of Wessex, and, towards the close of the
eighth century, by Offa of Mercia. With the codification of the
laws of Mercia, the first era of the history of English legal literature
was closed. It had seen the embodiment of ancient tradition in
writing.
It was succeeded by the era of the capitularies, which add to,
and amend, the previous codes; and here, again, England stands
apart from the continent of Europe. On the continent, during
the three centuries of chaos that followed the break up of the
Carolingian empire, general legislation ceased. But, in England,
a long and almost continuous line of strong kings—Alfred, Edward,
Athelstan, Edmund, Edgar, Canute-issued administrative ordi-
nances, which reveal the activity of a resolute central government.
Taken as a whole, they constitute a very notable body of primitive
Teutonic law.
The Norman conquest, however, led to complications. The
administration of the English law fell into the hands of persons,
mainly clerics, who were ignorant not merely of the law itself, but
even of the language in which it was promulgated. The English
people clamoured for Laga Eadwardi, that is, for the law as it
had been observed during the reign of the Confessor. The Normans,
for their part—those who were rulers, by means of formal inquests,
and private persons, from such sources as were available-made
sincere efforts to find out what Laga Eadwardi was, and to
render it accessible to the clerical mind through the medium of
Latin translations. The works that resulted mark the third period
of the history of legal literature in England (1066—1166). The
most important among such of them as have survived to the
present time are Rectitudines Singularum Personarum, Leges
Willelmi I (also in a French version Les Leis Williame), Liber
Quadripartitus, Leges Henrici 1, and the late Norman and half
apocryphal Leges Edwardi Confessoris. The main fact which
emerges from these compilations is that, during the century which
followed the Norman conquest, there was no common law in
England.
"The division of the law of England is threefold,' say
Leges Henrici ; 'there is the law of Wessex, the law of Mercia,
6


## p. 311 (#333) ############################################

English Common Law
311
and the Danelaw? ! It was the task of the Angevins, and especially
of Henry II, not only to weld the peoples of England together and
to amalgamate the institutions of conquerors and conquered, but,
also, to create the common law.
The common law of England, in the twelfth century, was a new
creature. There were in it elements taken from the old West
Saxon, Mercian and Danish law; there were also elements derived
from Norman custom; but the most important elements were
novel, and were introduced by the authoritative over-ruling of the
king's court? Hoc tremendum regiae majestatis imperium, as
Leges Henrici call it, was immensely extended by the Angevin
kings and their ministers. By means of royal writs, issuing from
chancery, they called such cases as they would before the curia
regis or its itinerant justices ; and these cases they treated with
equitable freedom, drawing their law eclectically from many
sources, of which, perhaps, at any rate in the sphere of public law,
the Frankish were more important than the English. But, though
the elements were taken from many sources, the basis of the
system was the royal writ. Accordingly, from the reign of
Henry II, when the law of the king's court began to be, in
fact, a common law, we get legal writings of a wholly new type.
They consist, primarily, of registers of writs, of commentaries on
writs, of directions for pleading in cases originated by writs, of
records of decisions given in cases adjudged upon writst. First
and foremost of these writings is Tractatus de Legibus et
Consuetudinibus Regni Angliae, commonly attributed to Ranulf
de Glanvil, Henry II's chief justiciar during the last ten years of
his reign, but more probably written c. 1189 by Hubert Walter
Glanvil's nephew. The object of this treatise is to describe the
procedure of the king's courts; more, it does not attempts. Its
peculiar value consists in its collection of writs, the first, so far
as we know, ever made ; and, since the making of this collection
was almost certainly the work of Glanvil, the treatise is not
1 Legis eciam Anglie trina est particio, alia enim Westsexie, alia Mircena, alia
Danelaga est. Leg. Hen. VI, 2. See, also, Pollock and Maitland, Hist. of Eng. Law,
vol. I, p. 106, and Holdsworth, Hist. of Eng. Law, vol. I, p. 3.
? Cf. Glasson, Histoire du Droit, vol. I, p. xv.
3 Cf. Sohm, Fränkisches Recht und römisches Recht, p. 69, quoted by Maitland,
English Law and the Renaissance, p. 68. As an example of Frankish elements may
be mentioned the jury system, the writ process and the idea of tenure.
* Cf. Holdsworth, Hist. of Eng. Law, vol. 11, p. 421, and especially the following
quotation from Diversité des Courtes, p. 17: Nota que les briefs sont les principals et
premiers choses en nostre ley.
5 See Glanvil, prologue to the Tractatus.


## p. 312 (#334) ############################################

312
Legal Literature
inappropriately called by his name, even if he did not himself
write it.
The form and the language of Glanvil show very clearly the
influence of the new school of Roman law, with which the name of
Irnerius of Bologna is identified; and that influence is even more
evident throughout the next classical work on English law, namely,
Bracton's treatise De Legibus et Consuetudinibus Angliae (c. 1256).
Bracton wrote, it will be observed, at a date which marks,
approximately, the very zenith of the great legal renascence of
the thirteenth century. The study of Roman civil law-the
common law of the universal empire—and the study of Roman
canon law—the jus commune of the catholic church-then shared
with the study of theology the intellectual empire of Europe.
Bracton, although apparently he never sat at the feet of the
famous doctors of Bologna, was familiar with Corpus Juris and
with the works of Azo, as well as with the Decretum of Gratian
and the Decretals of Gregory IX. His knowledge of these sources
of civil and canon law determined, to a large extent, the mould
and the character of his treatise. It gave him general conceptions ;
it revealed to him fundamental principles; it enabled him to take
a large outlook upon the legal world which he set himself to
portray, and to construct an intelligible system on the basis of
native customary law.
It is worthy of remark, in this place, that the victory of
common law over the royal prerogative in the seventeenth century
was largely the triumph of Bracton. The cantankerous Coke was
always appealing to him; he was called as a witness on behalf of
John Hampden; he was quoted by Bradshaw when he delivered
judgment on Charles I; Milton appealed to him in Defensio
Pro Populo Anglicano. It is difficult to conceive that English
common law could have survived the attacks of its many enemies
during the Tudor and Stewart periods, if it had not been cast into
the form, alike logical and literary, of Bracton's treatise. The
work at once had a great vogue, and it was a fruitful source of
; so early as the thirteenth century it was described as Summa quae vocatur
Glanvile. Pollock and Maitland, Hist. of Eng. Lau, vol. I, p. 164.
How far the substance, as well as the form, of Bracton's treatise was directly
derived from Roman sources is a disputed point. Sir William Jones states an extreme
view when he says, 'I am perfectly aware that he copied Justinian almost word for
word. ' Sir Henry Maine is more moderate in claiming (Ancient Law, p. 82) that only
a third of the contents were directly borrowed from Corpus Juris. The view now
commonly held, however, is that Bracton's direct borrowings were quite inconsider-
able. See Carl Güterbock, Henricus de Bracton und sein Verhältniss zum römischen
Rechte, and Maitland, Bracton and Azo.


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Year Books
313
other works, which, in the main, were summaries of Bracton com-
piled for the use of the legal practitioners. Foremost among these
were two—both of date about 1290—the one known as Fleta,
written in Latin, and the other, Britton, written in French (of the
Stratford-atte-Bowe order), which was the language of the courts
at that time 1.
In this same provincial French were composed the next series
of works in legal literature which demand mention, namely, the
Year Books. English common law-in striking contrast to
Roman law-has been developed by cases adjudged. Each un-
reversed judicial decision forms a precedent to be followed in all
subsequent cases of a similar kind. Hence, the necessity for law
reports; and the strange thing is that their provision has always
been left to private enterprise. We have a more or less complete
series of reports from 1292 to the present day?
Those of the period from 1292 to 1534 are known as the Year
Books. These Year Books rank with the Old English Chronicle
and the Domesday Book among England's unique historical
treasures. They should be our glory,' say Pollock and Maitland,
'for no other country has anything like them. ' The same writers
are, however, compelled to add that they are our disgrace, for no
other country would have so neglected them Beginning as mere
students' note books, they rapidly developed into regular reports
of the proceedings in court*. Though their arguments are some-
times inconclusive, they are full of human interest, giving, as they
do, the ipsissima verba of the old-world lawsuits. Humour and
passion often manifest themselves beneath the formalities of
procedure, as when John de Mowbray, in a burst of irritation, tells
the bishop of Chester to go to the great devil. It is difficult to
say whether the Year Books are more valuable to the lawyer, the
historian, or the philologer. To the lawyer, they reveal the
material out of which, on the foundation of writs, the structure
of common law was raised-that common law by which the lives
To this period belongs that apooryphal work The Mirror oj Justices, which, mainly
throngh the influence of Coke, was long regarded as a serious authority on law. Cf.
preface to Coke's 9th and 10th reports, Maitland's Introduction to the Selden Society's
edition of The Mirror, and Holdsworth's Hist. Eng. Law, vol. II, pp. 284–290.
2 In 1895 thöre were over 1800 volumes. Pollock, First Book of Jurisprudence,
p. 308.
Pollock and Maitland, History of English Law, vol. I, p. XXXV.
• This is particularly true of the Year Books for 40–50 Edward III, known to
lawyers as Quadragesms.
• See Holdsworth’s Hist. of Eng. Law, vol. 11, pp. 441-462, where an admirable
account of the Year Books is given.


## p. 314 (#336) ############################################

314
Legal Literature
of both Britons and Americans are conditioned to this very day.
To the historian, they supply first-hand sources for the social life
of the later middle ages. To the philologer, they furnish rich
mines of information (as yet little worked) concerning a remarkable
and originally uncorrupted French dialect. As the number of the
Year Books increased, it became convenient to make classified
abridgments of their leading cases. The first of these was made,
about 1470, by Nicholas Statham, baron of the exchequer under
Edward IV.
The same reign saw two other notable additions to legal
literature, viz. Sir John Fortescue’s De Laudibus Legum Angliae,
and Sir Thomas Littleton's Tenures. Fortescue's well known work
was written (c. 1470) in France, where the author was living in
exile with the Lancastrian court. It was written to instruct the
young prince Edward in the laws which, it was hoped, he would one
day be called to administer. In form, it is a dialogue between the
prince and the author ; its language is Latin? Having been
composed for the edification of a non-legal person, it is full of
information-commonplace then, but extraordinarily valuable
today-concerning the legal profession, the training of lawyers,
the constitution of the inns of court and the elements of juris-
prudence. Throughout, it praises and magnifies English common
law, pointing out in detail its superiority to Roman civil law.
It was for this quality that Sir Edward Coke extolled it as
' worthy of being written in letters of gold. ' The same enthu-
siastic common lawyer used even larger terms of appreciation in
respect of Littleton's Tenures. He described it as the most
perfect and absolute work that was ever written in any human
science. Yet it is a wholly different sort of book from that of
Fortescue. It is a highly technical work on feudal land law
intended for the professional student and practitioner. But it so
well sums up the development of what had then become the most
important branch of medieval common law, it is so lucid and well
arranged, its language—the law French of the period—is so forceful
and well chosen, that it has deservedly attained the rank of a classic.
It was written shortly after 1475, and Littleton himself is supposed
to have been in the act of seeing it put into print by Lettou and
Machlinia when he was overtaken by death in 1481. It was the first
English law book to pass through the newly invented press ; and
so popular did it become that when, in 1628, Coke published his
6
a
1 Cf. vol. 11, pp. 296—9 as to this and other writings by Fortescue.


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Early Printed Law Books
315
commentary upon it, it had already appeared in more than seventy
editions.
The advent of the printing press effected a great, though silent,
revolution in law, as it did in every department of learning. It
widely disseminated legal knowledge ; it greatly facilitated the
standardising of justice throughout the country; it provided
politicians with an armoury of those juristic weapons with which
they fought the battle of English liberty in the seventeenth
century. The first hundred years, however, of the era of the
printing press did not witness the production and publication of
ány new work in English legal literature to be compared in merit
or importance with either Fortescue or Littleton. Lawyers seemed
to be content if they received from the press a steady supply of
old authorities-registers of writs, books of entries, year books,
abridgments, statutes and court keepers' guides.
This literary sterility may have been due to the fact that
English common law was out of favour in high places. The Tudors
leaned towards courts like the Star chamber, in which not common
law but something very different was administered. English
common law, indeed, was during the first half of the sixteenth
century, in almost as grave danger of losing its supremacy as
was the English parliament. It was saved, however, by the inns
of court, and by the weapons which the printing press put into the
hands of these organised champions of precedent.
Of the new works which issued from the press during this
century perhaps the most important-or least unimportant-was
Saint German's Doctor and Student (1523–30), a dialogue
between a doctor of the civil and canon law and a student of
the common law, composed with the main object of contrasting
the relations between equity and common law, but incidentally
affording a good introduction to the principles of both. It passed
through twenty-two editions before, in the eighteenth century, it
was superseded by Blackstone's Commentaries. Mention should
also be made of Perkins's Profitable Book (1532), a treatise on
conveyancing, 'acceptable and preciouse to young students'; of
two Abridgments of the Year Books, prepared, the one by
Sir Anthony Fitzherbert (1516), the other by Sir Robert Brooke
(1568); and of Lambarde's Eirenarcha (1581), a manual for
justices of the peace, written in a style which, says a contemporary,
‘runneth like a temperat stream. The same writer's Archeion
(1591) and Archaionomia (1568) are valuable, the one as showing
the Tudor view of the relation between the common law courts


## p. 316 (#338) ############################################

316
Legal Literature
and their various rivals, the other as a treatise on legal antiquities.
Gentili's De Jure Belli (1588—9) was a pioneer work in inter-
national law, to which, a generation later, Grotius was much
indebted in the compilation of his more famous book with a
similar title. Finally, we note three great collections of Law
Reports, the successors of the Year Books, and, like the Year
Books, in French, namely, those of Plowden (1571), Dyer (1585)
and Coke (1600).
With the name of the notable lawyer and politician Sir Edward
Coke, we enter the seventeenth century. We may divide that
century for the purpose of study into three periode : the first, that
of the struggle between king and parliament; the second, that of
the commonwealth; the third, that of the restoration and revo-
lution. It will be seen that this classification corresponds to the
main political division of the Stewart era. This is as it should be ;
for never were law and politics more closely bound together than
they were at this time. When James I came to the throne, the
great unsettled constitutional question was whether the country
should be governed by rex or lex. On the side of the royal pre-
rogative ranged themselves generally the equity lawyers and the
civilians ; over against them were the common lawyers led by
Coke. Foremost among equity lawyers was Coke's life-long rival
and personal enemy, Francis Bacon (lord chancellor 1618–21).
But Bacon’s fame rests rather on his philosophical achievements
than on his legal writings. It is true that it cannot be said of him,
as it was said later of lord Brougham, that, if only he had known a
little law, he would have been omniscient; for he knew a good deal
of law, although he still remained fallible. He was, indeed, eager
to attain legal celebrity.
'I am in good hope,' he wrote, that when Sir Edward Coke's reports and
my rules and decisions shall come to posterity, there will be-whatsoever is
now thought-question who be the greater lawyer. '
But he dissipated his energies ; he did not carry out his great
project, that of making a complete digest of the laws of England”;
and he died leaving legal writings of no greater bulk than admits
of their inclusion in a single volume of his collected works. Of
these writings, the most important, apart from several arguments
in important cases, are the tracts entitled Maxims of the Law,
and A Reading on the Statute of Uses. The former contains
materials collected for the never completed digest; while the
1 For Bacon's view as to the need of a revision and digest of the law of England,
see the aphorisms appended to his treatise De Augmentis Scientiarum.


## p. 317 (#339) ############################################

Bacon. Cowell. Coke 317
6
latter discusses, with remarkable subtlety and philosophic insight,
a highly technical department of equitable jurisdiction. Bacon's
scanty legal writings kept fairly clear of political controversy.
Such, however, was not the case with the works of his contem-
porary, the civilian John Cowell, regius professor at Cambridge.
In 1605, he published his Institutiones Juris Anglicani ad
Methodum Institutionum Justiniani Compositae et Digestae,
an attempt to codify English law under Roman rubrics ; in
1607, he issued his more famous Interpreter, a dictionary of law
terms, in which, under such words as 'king,' 'parliament,' 'pre-
rogative,''subsidy,' he maintained the theory of absolute monarchy.
The champions of common law took alarm, caused Cowell to be
reprimanded by the council, and his book to be burned by the
hangman. Other notable civilians of the period who were to be
found on the same political side were Sir Arthur Duck and Richard
Zouche, both of them men whose writings on Roman law gave
them European note. On the other side was the formidable
Sir Edward Coke (chief justice of the king's bench 1613—16), a
host in himself. He produced many legal books; but his fame, as
a writer, rests fundamentally upon two, namely, his Reports and
his Institutes. In his political zeal he was not always scrupulous
as to historical accuracy. To him was largely due the legend of
Magna Carta, the acceptance of The Mirror of Justices as a
serious legal authority, the fiction of the official nature of the
early Year Books, and many imaginary rules of law. "I am
afraid,' said chief justice Best, 'we should get rid of a good deal of
what is considered law in Westminster Hall, if what Lord Coke
says without authority is not law. ' Nevertheless, he did a great
and useful work for English law, and, therefore, for England. In
his Reports (eleven volumes, 1600—15), which are models of terse
and vigorous expression, a highly authoritative and almost com-
plete statement of contemporary common law is given. In his
Institutes (four volumes, 1628—44), a mass of antique learning is
brought to bear upon the explanation and defence of the English
legal system? Coke's title to fame is that he adapted the
medieval rules of common law to the needs of the modern state,
and recast these rules in an intelligible form, collecting and
condensing the obscure and chaotic dicta of the Year Books and
1 The contents of the four volumes of Coke's Institutes are as follows: vol. 1,
Littleton's Tenures; vol. 11, Magna Carta, and subsequent statutes; vol. Ini, Criminal
Law; vol. iv, Jurisdiction of Courts. As to the style, G. P. Macdonell remarks
(Dict. Nat. Biog. ), 'He often reaches & perfection of form, exhibiting that freedom
from flabbiness and that careful use of terms which is essential to a good legal style. '


## p. 318 (#340) ############################################

318
Legal Literature
a
the abridgments. But, in political cases, his learning is always
to be looked upon with suspicion or, at least, with caution. His
search for truth was merely monocular. He kept one eye steadily
fixed on the interests of his party. There was, however, living at
the same time a group of men who were whole-heartedly devoted
to research, men who are rightly called the fathers of the scientific
study of legal history. Foremost among them was John Selden-
but with him should be remembered Camden, Cotton, Spelman and
Dugdale.
Selden was admittedly the most erudite Englishman of his day.
To a wide classical scholarship he added a remarkable knowledge,
based, largely, upon original research, of archaeology, history,
philology and legal antiquities. He was endowed, moreover, with
a mind free from prejudice, a well balanced judgment, a calm
judicial temperament. “I sought only truth,' he said in one of his
'
works, and the expression might well be applied as a motto to
them all. In 1610, before he was called to the bar, he published a
discourse on the laws and customs of the Britons, English and
Danes under the title Jani Anglorum Facies Altera. In 1616, he
issued an annotated edition of Fortescue. Two years later, he
wrote—though for diplomatic reasons it lay unpublished till 1636–
his treatise Mare Clausum, an attempt to vindicate, on the basis
of international law, England's claim to sovereignty over the
narrow seas against the destructive attack which Grotius had
made upon it in his Mare Liberum.