'
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.
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.
Cambridge History of English Literature - 1908 - v08
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
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-
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) ############################################
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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.
## p. 313 (#335) ############################################
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) ############################################
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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.
## p. 315 (#337) ############################################
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
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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. Finally, in 1647, he gave to
the world his edition of Fleta, and, in a prefatory dissertation,
condensed the results of a lifelong study of the origins of English
law. By his work, he established that tradition of scholarly
research into legal antiquities which, at the present day, is
maintained by the society called by his name?
When Selden's Fleta was published, the tragedy of Charles I's
career was drawing to its close. Two years later, it was finished,
and the commonwealth was established. During the period of this
rule, when all institutions were in the melting-pot, few matters
received more anxious consideration than did the laws of England.
There was, indeed, abundant need of reform. The delays of
litigation were proverbial; the expenses of the courts were
inordinately heavy, legal procedure was a maze of technicalities
amidst which justice frequently lost itself. Everywhere was felt
1 See Selden as Legal Historian, by Hazeltine, H. , D. , in Brunner's Festschrift
(Weimar, 1910), and, also, in Harvard Law Review, 1910. As to Selden's Table Talk,
see below (u).
## p. 319 (#341) ############################################
English as the Language of the Law 319
the pressure of the dead hand of the Middle Ages. On 22 October
1650, a committee was appointed to consider the matter of legal
reform, and, three days later, parliament resolved that one thing,
at any rate, should be done-English should be made the language
of the law. A bill was accordingly brought in and passed on
22 November 1650. Till then, Latin had remained the language
of the records, and French the language of pleadings in court.
But, in the seventeenth century, what Latin and what French !
This is no place to enter into the subject, great as is its literary
interest, and it must suffice to mention, as a specimen of the Latin,
the indictment of a man in the Savoy, quia tetheravit vaccam
apud watermill, and, as a specimen of the French, the report of
an incident at the Salisbury assizes in 1631, when chief justice
Richardson fuit assault per prisoner la condemne pur felony
que puis son condemnation ject un brickbat a le dit Justice que
narrowly mist'. The resolution of the House that these jargons
should cease led to a good deal of activity in translation. But,
apart from this desirable concession to commonsense in the matter
of language, very little was accomplished. When discussion turned
to questions of substantial reform, the would-be reformers could
not agree. Hugh Peters, for instance, would have liked to intro-
duce the laws of Holland, while John Rogers would have preferred
the Mosaic code : The body of laws,' he said, 'lies ready before
you in the Word of God. ' In vain did Matthew Hale, one of the
ablest of English lawyers, in conjunction with a select committee,
draft not less than nineteen bills embodying practicable improve-
ments. Not one was carried into effect, and, before long, the
establishment in the country of a military despotism, with the
enforcement of martial law, threw into the background the whole
problem of legal reform. Apart, then, from translations, there
are few works in legal literature to chronicle during the common-
wealth period. The most important were numerous volumes of
Reports—very poor in quality—mainly of cases of the reigns
of James I and Charles I; Matthew Hale's London's Liberties
(1650); Thomas Hobbes's Elements of Law (1640); and, finally,
William Prynne's Collection of Fundamental Liberties and Laws
(1654–5).
The restoration of 1660 heralded a notable revival of the
common law, and with it came back its old languages, Latin
and French, which it was not able wholly to discard till near
the middle of the eighteenth century. One of the signs of this
1 See, more fully, Pollock, First Book of Jurisprudence, p. 295.
6
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revival was the publication, in 1668, of a new Abridgment des
plusiers Cases et Resolutions del Commun Ley. It was the work
of Henry Rolle, once chief justice of the king's bench and a friend
of Selden. Its compiler had died in 1656, and it fell to Sir Matthew
Hale to see it through the press. Hale himself was a voluminous
writer on legal themes; but he seemed to have little desire for the
renown of authorship. His valuable introduction to Rolle is
anonymous, and the bulk of his writings were still in manuscript
at the time of his death (1676); indeed, a good deal remains even
now unpublished, stored in the libraries of the British Museum
and Lincoln's inn. His most notable works were his fragmentary
History of the Common Law of England (printed 1713), and his
Historia Placitorum Coronae (printed 1739). Both these books
deal, to some extent, with legal antiquities. A much more
thorough survey, however, of the field of early law and the insti-
tutions connected with it was made by Sir William Dugdale in his
Origines Juridicales (1666). This valuable work was all but lost
to the world ; for the whole of the first edition perished in the fire
of London. Fortunately, however, a few presentation copies had
been sent out beforehand, and, from these, a second edition was
prepared The zeal for the study of antiquity may, in some
measure, account for the issue of a collected edition of the Year
Books in 1679—the largest edition of the Year Books that has yet
appeared, and still the standard edition. But this was more than
an enterprise of antiquarian zeal, for the Year Books were still in
constant demand on the part of practising lawyers, and many of
the volumes had attained to scarcity prices. The old law, in fact,
had come back in force at the restoration. But it did not remain
without its critics and assailants. Prominent among these was
the irreconcilable William Prynne. We read in Pepys's diary
(25 April 1666): ‘Mr. Prin. . . did discourse with me a good while
in the garden about the laws of England, telling me the main
faults in them. ' In 1669, Prynne published his Animadversions
on the Fourth Part of Coke’s Institutes; and these, perhaps,
include some of the remarks which their author made to Pepys in
the garden. A much more formidable critic, however, both of
Coke and of the laws of England, was Thomas Hobbes. "Truly,'
he said, “I never read weaker reasoning in any author on the law
of England than in Sir Edward Coke's Institutes. ' In his Dialogue
between a Philosopher and a Student of the Common Laws (pub-
lished posthumously in 1681) he assails with vigorous dialectic the
fundamental legal and political principles inherent in the works of
6
## p. 321 (#343) ############################################
Selden's Table-Talk
321
Coke and the other opponents of the Stewart autocracy. But
the mention of Hobbes confronts us with a new age, and
warns us that we have reached our time limit. Though an
Elizabethan by birth, he is in outlook very modern. As a writer
on law, indeed, he has not even yet come by his own. His ideas,
couched in severe and exact terminology, have not, it is true,
directly reached the popular mind. But, indirectly, through the
works of other men, they have made their sovereign entry, and
they hold a commanding place in present day legal theory. They
ushered in the era of Blackstone, Bentham and Austin.
II
To the preceding summary of the progress of English legal
literature, through the great days of Bacon and Coke, to those
of Hale and Selden, may be added a few words concerning a
publication which has served to keep the last of these famous
names green in popular remembrance, and which, so far as English
books are concerned, stands virtually by itself in the century of
its origin. Table-Talk: being the Discourses of John Selden,
Esq. Being His Sense of various Matters of Weight and high
Consequence ; relating especially to Religion and State was first
published in 1689, thirty-five years after Selden's death, and nine
years after that of his sometime amanuensis, Richard Milward
(afterwards rector of Great Braxted and canon of Windsor). Milward
was responsible for the collection and digestion of the utterances
which compose the little book. Its title and general plan were
manifestly taken from what is, perhaps, the most famous of all
anthologies of this particular sort—the Tischreden of Martin
Luther, otherwise called his Colloquia, which were first edited,
in 1566, by John Aurifaber from the remembrance of himself and
others. Here, too, the discourses' are arranged according to
subject rather than chronologically, and, as in Milward's alpha-
betical disposition, the series of sayings is thus deprived of not
a little of its biographical interest and significance? Yet the
reporter of Selden's Table-Talk chooses, as the motto of his col-
lection, the words Distingue tempora! In the latter part of the
sixteenth, and during the course of the seventeenth century, were
put forth not a few collections of the sayings or conversations of
eminent French scholars, from the redoubtable younger Scaliger
down to Gilles Ménage, renowned alike as a not very laborious
1 Cf. Köstlin, J. , Martin Luther, sein Leben und seine Schriften, 3rd ed. Elberfeld,
1883, vol. II, pp. 487 ff.
21
6
E. L. VIII,
CH. XIII.
## p. 322 (#344) ############################################
322
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lexicographer and as a devotee to the pleasures of the great
world! In England, on the other hand, the era proper of ana had
not yet been reached, although collections of the sayings of kings
and magnates had become popular from the middle of the seven-
teenth century onwards? , and although great wits and profound
scholars of the succeeding generations continued to unbend in
occasional converse in coffee-house or common-room, as they had
indulged their humour at the Mermaid in the days of Ben Jonson
and of Selden himself, or as Jonson had (if the phrase be per-
mitted) let himself go in his harangues-called Conversations-
addressed to Drummond at Hawthornden. The golden era of
this species was inaugurated by Boswell's Life of Johnson; but
Johnson himself, whose conversations, like Martin Luther's collo-
quies, cover a far wider ground and possess a far wider, as well as
more intimately human, interest than can be ascribed to Selden's
Table-Talk, pronounced this English collection superior to any
of its French rivals:.
Unfortunately, the original manuscript of Table-Talk is lost, so
that some passages of the printed texts are of composite origin or
actuallyuncertain; but the authenticity of the whole may be regarded
as established, notwithstanding the cavils of Wilkins, the editor of
Selden's Works (1726). The period during which Milward stated
that he had collected his materials from the lips of his patron ex-
tended over twenty years—clearly the last two decades of Selden's
life, for, in the section Tithes, Selden speaks of himself as having
written his History of Tythes (published in 1618) "about forty
years ago. ' Milward neither says nor implies that his manuscript
was in any way revised or approved by Selden. There is not any
need, it may be added, for calling in the evidence of style in order
to determine the date of the utterances recorded in Table-Talk.
Aubrey, no doubt, refers to Selden's writings when stating that
he quite left off the obscurity which he affected in his younger
years; and Clarendon, whose character of Selden is one of the
earliest, as it is one of the most generous, tributes of friendship
enshrined in the Life of the great historian“, while noting that
1 For a list of these French ana see preface to The Table-Talk of John Selden, ed.
Irving, David, Edinburgh, 1854, pp. xxii-XXV.
2 See for some earlier English collections of ana, bibliography to the present
section.
8 See Boswell's Life of Johnson, ed. Hill, G. B. , vol. v, p. 311. Boswell, when, in
self-defence, discussing publications of a kind similar to his own, also mentions
Spence's Anecdotes, which, however, is rather different in scheme and remained in
manuscript till 1820.
• Vol. I, p. 35, ed. 1827.
## p. 323 (#345) ############################################
Topics and Characteristics of Table-Talk 323
his friend's style, in all his writings, seemed 'harsh and sometimes
obscure,' was careful to add that 'in his conversation he was the
most clear discourser, and had the best faculty of making hard
things easy, and of presenting them to the understanding, of any
man that hath been known. ' The essential qualities, and the
supreme merit, of the style of Table-Talk could not have been
more admirably summarised, though Clarendon's intimacy with
Selden must have dated from about seven years before that (1642)
which saw it end with the great lawyer's definitive resolution to
cast in his lot with the parliament rather than with the king.
On the whole, the references in Table-Talk to the political
events and transactions in which Selden had borne part, even
before he became a member of Charles I's second parliament in
1626, are but few. It is only incidentally that he mentions either
'the imprisoning of the parliament men,' of whom he was one,
'3° Caroli",' or any of the proceedings of the Long parliament
(except the removal of bishops 'out of the house? '). He is less
reticent concerning the doings of the Westminster assembly of
divines, of which, in common with other parliament men, he was
chosen a member, and in whose debates Whitelock states him to
have taken active part, at times 'totally silencing' some of the
divines by comparing their biblical quotations with the original
Greek and Hebrew texts. But the times were manifestly not such
as to invite individual comment on the action of public bodies;
for, during practically the whole of the period which can be sup-
posed to be covered by Table-Talk, peace seemed as far off as
ever, and, 'though we had peace, yet 'twill be a great while ere
things be settled; though the wind lie, yet after a storm the sea
will work a while4. ' Thus, 'the wisest way for men in these times
is to say nothing. ' Personal references or allusions, such as light
up the hearthside or tavern talk of Luther or Johnson, are, there-
fore, scanty in Selden's observations-save for a few seasonable
illustrations from the sayings of king James, or references to
eccentrics like Sir Kenelm Digby or Sir Robert Cotton.
The distinctive characteristics of Selden's deliverances at his
1
9
* See 'LX. Incendiaries. '
See . VII. Bishops in the Parliament. '
8 Memorials, p. 71, cited by Reynolds, 8. H. , in the introduction to his edition of
Table-Talk, p. xviii. In CXV. Presbytery,' Selden speaks with some satisfaction of
the suspicious delay of the divines in the assembly in answering the queries of parlia-
ment as to the proofs of the presbytery's possession of the jus divinum. • Their
delaying to answer makes us think there's no such thing there. "
• See O. Peace. '
6 Ibid.
21-2
## p. 324 (#346) ############################################
324
Legal Literature
6
hospitable board are of a different, and, perhaps, of a higher, order.
We have described them as deliverances rather than conversations;
the truth being that, in these communings, the speaker, quite con-
sciously, lays down the law, while it is only here and there that
room is found for objections offered by interlocutors or, more
probably, suggested by the autocrat of the table himself, and, in
any case, always supplied with a satisfactory answer. These
deliverances reveal to us the rapid working of a powerful intellect,
putting forth, without any effort of full exposition or sustained
argument, but with perfect frankness and freedom of expression,
opinions on subjects with which, however difficult or abstruse they
may at times seem, it is invariably found to be at home. To
occasional discourse of this sort, Selden, in the first instance,
brought an equipment of immense learning in law and legal his-
tory, together with the habit, which he indulged even in his
writings on legal history? , of illustrating his discourse from non-
legal, as well as legal, sources. It must, however, be allowed that
the reporting powers of Milward (who was not a lawyer)--and,
perhaps, his powers of memory-were but limited; for Table-Talk
not only contains few if any 'quotations from poetical writings in
various languages' such as 'embellish many of' Selden's written
'pages? ,' but it displays little interest in literature; indeed, the
section on 'Poetry' (CV) is not so much disappointing as flatly
paradoxical. However cautiously Selden, even among trusty
friends, may have abstained from an application of his analytical
powers to burning' questions of the day, it is clear that, in his later
years, his intellectual interests came more and more to concentrate
themselves upon matters of state and church. On the former head,
he was steadily and sturdily opposed to any encroachment upon
popular rights, when those rights had once found expression in
the existing law, and he disliked change in the institutions, popular
or other, whose growth had been a legal process. The longlived
theory which, about the time of the publication of Table-Talk,
was to assume control over the political philosophy of a series
of generations--the conception of a contract between governor
and governed-pervaded Selden's views as to the political conflict
. Cf. Hazeltine, H. D. , Selden as Legal Historian, p. 599.
2 Ibid.
8 The Crashaw whom Selden states he converted from writing against plays, was,
of course, William Crashaw, the puritan preacher and poet and not (as one of the
editors of Table-Talk has assumed) his more celebrated son. Selden entertained &
strong feeling against · lecturers,' as being another sort of friars (see LXXXIX.
Lecturers'); and it was in the former capacity that the elder Crashaw seems to have
began his ministrations.
>
## p. 325 (#347) ############################################
Selden on Politics and Religion 325
of which he had witnessed the development. At the bottom of all
political doubts and disputes lay to his mind the question: ‘Have
you agreed so? If you have, then it must remain till you have
altered it. ' A clear consequence was that a breach of the con-
tract on the one side justified resistance on the other:
To know what obedience is due to the prince, you must look into the
contract betwixt him and his people. . . . Where the contract is broken, and
there is no third person to judge, then the decision is by arms.
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
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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.
## p. 313 (#335) ############################################
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
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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.
## p. 315 (#337) ############################################
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. Finally, in 1647, he gave to
the world his edition of Fleta, and, in a prefatory dissertation,
condensed the results of a lifelong study of the origins of English
law. By his work, he established that tradition of scholarly
research into legal antiquities which, at the present day, is
maintained by the society called by his name?
When Selden's Fleta was published, the tragedy of Charles I's
career was drawing to its close. Two years later, it was finished,
and the commonwealth was established. During the period of this
rule, when all institutions were in the melting-pot, few matters
received more anxious consideration than did the laws of England.
There was, indeed, abundant need of reform. The delays of
litigation were proverbial; the expenses of the courts were
inordinately heavy, legal procedure was a maze of technicalities
amidst which justice frequently lost itself. Everywhere was felt
1 See Selden as Legal Historian, by Hazeltine, H. , D. , in Brunner's Festschrift
(Weimar, 1910), and, also, in Harvard Law Review, 1910. As to Selden's Table Talk,
see below (u).
## p. 319 (#341) ############################################
English as the Language of the Law 319
the pressure of the dead hand of the Middle Ages. On 22 October
1650, a committee was appointed to consider the matter of legal
reform, and, three days later, parliament resolved that one thing,
at any rate, should be done-English should be made the language
of the law. A bill was accordingly brought in and passed on
22 November 1650. Till then, Latin had remained the language
of the records, and French the language of pleadings in court.
But, in the seventeenth century, what Latin and what French !
This is no place to enter into the subject, great as is its literary
interest, and it must suffice to mention, as a specimen of the Latin,
the indictment of a man in the Savoy, quia tetheravit vaccam
apud watermill, and, as a specimen of the French, the report of
an incident at the Salisbury assizes in 1631, when chief justice
Richardson fuit assault per prisoner la condemne pur felony
que puis son condemnation ject un brickbat a le dit Justice que
narrowly mist'. The resolution of the House that these jargons
should cease led to a good deal of activity in translation. But,
apart from this desirable concession to commonsense in the matter
of language, very little was accomplished. When discussion turned
to questions of substantial reform, the would-be reformers could
not agree. Hugh Peters, for instance, would have liked to intro-
duce the laws of Holland, while John Rogers would have preferred
the Mosaic code : The body of laws,' he said, 'lies ready before
you in the Word of God. ' In vain did Matthew Hale, one of the
ablest of English lawyers, in conjunction with a select committee,
draft not less than nineteen bills embodying practicable improve-
ments. Not one was carried into effect, and, before long, the
establishment in the country of a military despotism, with the
enforcement of martial law, threw into the background the whole
problem of legal reform. Apart, then, from translations, there
are few works in legal literature to chronicle during the common-
wealth period. The most important were numerous volumes of
Reports—very poor in quality—mainly of cases of the reigns
of James I and Charles I; Matthew Hale's London's Liberties
(1650); Thomas Hobbes's Elements of Law (1640); and, finally,
William Prynne's Collection of Fundamental Liberties and Laws
(1654–5).
The restoration of 1660 heralded a notable revival of the
common law, and with it came back its old languages, Latin
and French, which it was not able wholly to discard till near
the middle of the eighteenth century. One of the signs of this
1 See, more fully, Pollock, First Book of Jurisprudence, p. 295.
6
## p. 320 (#342) ############################################
320
Legal Literature
revival was the publication, in 1668, of a new Abridgment des
plusiers Cases et Resolutions del Commun Ley. It was the work
of Henry Rolle, once chief justice of the king's bench and a friend
of Selden. Its compiler had died in 1656, and it fell to Sir Matthew
Hale to see it through the press. Hale himself was a voluminous
writer on legal themes; but he seemed to have little desire for the
renown of authorship. His valuable introduction to Rolle is
anonymous, and the bulk of his writings were still in manuscript
at the time of his death (1676); indeed, a good deal remains even
now unpublished, stored in the libraries of the British Museum
and Lincoln's inn. His most notable works were his fragmentary
History of the Common Law of England (printed 1713), and his
Historia Placitorum Coronae (printed 1739). Both these books
deal, to some extent, with legal antiquities. A much more
thorough survey, however, of the field of early law and the insti-
tutions connected with it was made by Sir William Dugdale in his
Origines Juridicales (1666). This valuable work was all but lost
to the world ; for the whole of the first edition perished in the fire
of London. Fortunately, however, a few presentation copies had
been sent out beforehand, and, from these, a second edition was
prepared The zeal for the study of antiquity may, in some
measure, account for the issue of a collected edition of the Year
Books in 1679—the largest edition of the Year Books that has yet
appeared, and still the standard edition. But this was more than
an enterprise of antiquarian zeal, for the Year Books were still in
constant demand on the part of practising lawyers, and many of
the volumes had attained to scarcity prices. The old law, in fact,
had come back in force at the restoration. But it did not remain
without its critics and assailants. Prominent among these was
the irreconcilable William Prynne. We read in Pepys's diary
(25 April 1666): ‘Mr. Prin. . . did discourse with me a good while
in the garden about the laws of England, telling me the main
faults in them. ' In 1669, Prynne published his Animadversions
on the Fourth Part of Coke’s Institutes; and these, perhaps,
include some of the remarks which their author made to Pepys in
the garden. A much more formidable critic, however, both of
Coke and of the laws of England, was Thomas Hobbes. "Truly,'
he said, “I never read weaker reasoning in any author on the law
of England than in Sir Edward Coke's Institutes. ' In his Dialogue
between a Philosopher and a Student of the Common Laws (pub-
lished posthumously in 1681) he assails with vigorous dialectic the
fundamental legal and political principles inherent in the works of
6
## p. 321 (#343) ############################################
Selden's Table-Talk
321
Coke and the other opponents of the Stewart autocracy. But
the mention of Hobbes confronts us with a new age, and
warns us that we have reached our time limit. Though an
Elizabethan by birth, he is in outlook very modern. As a writer
on law, indeed, he has not even yet come by his own. His ideas,
couched in severe and exact terminology, have not, it is true,
directly reached the popular mind. But, indirectly, through the
works of other men, they have made their sovereign entry, and
they hold a commanding place in present day legal theory. They
ushered in the era of Blackstone, Bentham and Austin.
II
To the preceding summary of the progress of English legal
literature, through the great days of Bacon and Coke, to those
of Hale and Selden, may be added a few words concerning a
publication which has served to keep the last of these famous
names green in popular remembrance, and which, so far as English
books are concerned, stands virtually by itself in the century of
its origin. Table-Talk: being the Discourses of John Selden,
Esq. Being His Sense of various Matters of Weight and high
Consequence ; relating especially to Religion and State was first
published in 1689, thirty-five years after Selden's death, and nine
years after that of his sometime amanuensis, Richard Milward
(afterwards rector of Great Braxted and canon of Windsor). Milward
was responsible for the collection and digestion of the utterances
which compose the little book. Its title and general plan were
manifestly taken from what is, perhaps, the most famous of all
anthologies of this particular sort—the Tischreden of Martin
Luther, otherwise called his Colloquia, which were first edited,
in 1566, by John Aurifaber from the remembrance of himself and
others. Here, too, the discourses' are arranged according to
subject rather than chronologically, and, as in Milward's alpha-
betical disposition, the series of sayings is thus deprived of not
a little of its biographical interest and significance? Yet the
reporter of Selden's Table-Talk chooses, as the motto of his col-
lection, the words Distingue tempora! In the latter part of the
sixteenth, and during the course of the seventeenth century, were
put forth not a few collections of the sayings or conversations of
eminent French scholars, from the redoubtable younger Scaliger
down to Gilles Ménage, renowned alike as a not very laborious
1 Cf. Köstlin, J. , Martin Luther, sein Leben und seine Schriften, 3rd ed. Elberfeld,
1883, vol. II, pp. 487 ff.
21
6
E. L. VIII,
CH. XIII.
## p. 322 (#344) ############################################
322
Legal Literature
lexicographer and as a devotee to the pleasures of the great
world! In England, on the other hand, the era proper of ana had
not yet been reached, although collections of the sayings of kings
and magnates had become popular from the middle of the seven-
teenth century onwards? , and although great wits and profound
scholars of the succeeding generations continued to unbend in
occasional converse in coffee-house or common-room, as they had
indulged their humour at the Mermaid in the days of Ben Jonson
and of Selden himself, or as Jonson had (if the phrase be per-
mitted) let himself go in his harangues-called Conversations-
addressed to Drummond at Hawthornden. The golden era of
this species was inaugurated by Boswell's Life of Johnson; but
Johnson himself, whose conversations, like Martin Luther's collo-
quies, cover a far wider ground and possess a far wider, as well as
more intimately human, interest than can be ascribed to Selden's
Table-Talk, pronounced this English collection superior to any
of its French rivals:.
Unfortunately, the original manuscript of Table-Talk is lost, so
that some passages of the printed texts are of composite origin or
actuallyuncertain; but the authenticity of the whole may be regarded
as established, notwithstanding the cavils of Wilkins, the editor of
Selden's Works (1726). The period during which Milward stated
that he had collected his materials from the lips of his patron ex-
tended over twenty years—clearly the last two decades of Selden's
life, for, in the section Tithes, Selden speaks of himself as having
written his History of Tythes (published in 1618) "about forty
years ago. ' Milward neither says nor implies that his manuscript
was in any way revised or approved by Selden. There is not any
need, it may be added, for calling in the evidence of style in order
to determine the date of the utterances recorded in Table-Talk.
Aubrey, no doubt, refers to Selden's writings when stating that
he quite left off the obscurity which he affected in his younger
years; and Clarendon, whose character of Selden is one of the
earliest, as it is one of the most generous, tributes of friendship
enshrined in the Life of the great historian“, while noting that
1 For a list of these French ana see preface to The Table-Talk of John Selden, ed.
Irving, David, Edinburgh, 1854, pp. xxii-XXV.
2 See for some earlier English collections of ana, bibliography to the present
section.
8 See Boswell's Life of Johnson, ed. Hill, G. B. , vol. v, p. 311. Boswell, when, in
self-defence, discussing publications of a kind similar to his own, also mentions
Spence's Anecdotes, which, however, is rather different in scheme and remained in
manuscript till 1820.
• Vol. I, p. 35, ed. 1827.
## p. 323 (#345) ############################################
Topics and Characteristics of Table-Talk 323
his friend's style, in all his writings, seemed 'harsh and sometimes
obscure,' was careful to add that 'in his conversation he was the
most clear discourser, and had the best faculty of making hard
things easy, and of presenting them to the understanding, of any
man that hath been known. ' The essential qualities, and the
supreme merit, of the style of Table-Talk could not have been
more admirably summarised, though Clarendon's intimacy with
Selden must have dated from about seven years before that (1642)
which saw it end with the great lawyer's definitive resolution to
cast in his lot with the parliament rather than with the king.
On the whole, the references in Table-Talk to the political
events and transactions in which Selden had borne part, even
before he became a member of Charles I's second parliament in
1626, are but few. It is only incidentally that he mentions either
'the imprisoning of the parliament men,' of whom he was one,
'3° Caroli",' or any of the proceedings of the Long parliament
(except the removal of bishops 'out of the house? '). He is less
reticent concerning the doings of the Westminster assembly of
divines, of which, in common with other parliament men, he was
chosen a member, and in whose debates Whitelock states him to
have taken active part, at times 'totally silencing' some of the
divines by comparing their biblical quotations with the original
Greek and Hebrew texts. But the times were manifestly not such
as to invite individual comment on the action of public bodies;
for, during practically the whole of the period which can be sup-
posed to be covered by Table-Talk, peace seemed as far off as
ever, and, 'though we had peace, yet 'twill be a great while ere
things be settled; though the wind lie, yet after a storm the sea
will work a while4. ' Thus, 'the wisest way for men in these times
is to say nothing. ' Personal references or allusions, such as light
up the hearthside or tavern talk of Luther or Johnson, are, there-
fore, scanty in Selden's observations-save for a few seasonable
illustrations from the sayings of king James, or references to
eccentrics like Sir Kenelm Digby or Sir Robert Cotton.
The distinctive characteristics of Selden's deliverances at his
1
9
* See 'LX. Incendiaries. '
See . VII. Bishops in the Parliament. '
8 Memorials, p. 71, cited by Reynolds, 8. H. , in the introduction to his edition of
Table-Talk, p. xviii. In CXV. Presbytery,' Selden speaks with some satisfaction of
the suspicious delay of the divines in the assembly in answering the queries of parlia-
ment as to the proofs of the presbytery's possession of the jus divinum. • Their
delaying to answer makes us think there's no such thing there. "
• See O. Peace. '
6 Ibid.
21-2
## p. 324 (#346) ############################################
324
Legal Literature
6
hospitable board are of a different, and, perhaps, of a higher, order.
We have described them as deliverances rather than conversations;
the truth being that, in these communings, the speaker, quite con-
sciously, lays down the law, while it is only here and there that
room is found for objections offered by interlocutors or, more
probably, suggested by the autocrat of the table himself, and, in
any case, always supplied with a satisfactory answer. These
deliverances reveal to us the rapid working of a powerful intellect,
putting forth, without any effort of full exposition or sustained
argument, but with perfect frankness and freedom of expression,
opinions on subjects with which, however difficult or abstruse they
may at times seem, it is invariably found to be at home. To
occasional discourse of this sort, Selden, in the first instance,
brought an equipment of immense learning in law and legal his-
tory, together with the habit, which he indulged even in his
writings on legal history? , of illustrating his discourse from non-
legal, as well as legal, sources. It must, however, be allowed that
the reporting powers of Milward (who was not a lawyer)--and,
perhaps, his powers of memory-were but limited; for Table-Talk
not only contains few if any 'quotations from poetical writings in
various languages' such as 'embellish many of' Selden's written
'pages? ,' but it displays little interest in literature; indeed, the
section on 'Poetry' (CV) is not so much disappointing as flatly
paradoxical. However cautiously Selden, even among trusty
friends, may have abstained from an application of his analytical
powers to burning' questions of the day, it is clear that, in his later
years, his intellectual interests came more and more to concentrate
themselves upon matters of state and church. On the former head,
he was steadily and sturdily opposed to any encroachment upon
popular rights, when those rights had once found expression in
the existing law, and he disliked change in the institutions, popular
or other, whose growth had been a legal process. The longlived
theory which, about the time of the publication of Table-Talk,
was to assume control over the political philosophy of a series
of generations--the conception of a contract between governor
and governed-pervaded Selden's views as to the political conflict
. Cf. Hazeltine, H. D. , Selden as Legal Historian, p. 599.
2 Ibid.
8 The Crashaw whom Selden states he converted from writing against plays, was,
of course, William Crashaw, the puritan preacher and poet and not (as one of the
editors of Table-Talk has assumed) his more celebrated son. Selden entertained &
strong feeling against · lecturers,' as being another sort of friars (see LXXXIX.
Lecturers'); and it was in the former capacity that the elder Crashaw seems to have
began his ministrations.
>
## p. 325 (#347) ############################################
Selden on Politics and Religion 325
of which he had witnessed the development. At the bottom of all
political doubts and disputes lay to his mind the question: ‘Have
you agreed so? If you have, then it must remain till you have
altered it. ' A clear consequence was that a breach of the con-
tract on the one side justified resistance on the other:
To know what obedience is due to the prince, you must look into the
contract betwixt him and his people. . . . Where the contract is broken, and
there is no third person to judge, then the decision is by arms.
