But the ready made abridgments by the students of the law. collapse, during the latter part of the seventeenth century, of the system of legal education pursued by the Inns of Court, had, as we shall see,1 made it necessary for students to acquire their knowledge of the law by their own efforts. Hence it became necessary, not only for practitioners, but also for students to make abridgements, or, as they had then come to be called, commonplace books." Rolle's Abridgment, therefore, became not only a book for practitioners, but also, as Hale points out, an instrument of legal education. "Whereas," he says, "I have commended the making and using of a commonplace book as the best expedient that I know for the orderly and profitable study of the law; this book will be the basis of such a commonplace book." " 2 But of this method of acquiring legal knowledge I shall say more in a later chapter.3 3 We shall see that from Rolle's Abridgment we can get both a full and an accurate account of the condition of the common law at the close of this period. But before I can deal satisfactorily with this topic I must first give some account of the literature which was growing up round many of the branches of the common law. The Literature of the Common Law 8 7 The Reports, together with the Abridgments of and the indices to them, are in bulk, and, to a large extent, in substance, the most important part of the literature of the common law. With other important parts of that literature-the works on the justices of the peace and other officials of the local government, 5 on the courts, on the statutes, and on the controversies between law and equity I have already dealt. But these works do not by any means constitute the whole of the literary activity of the common lawyers. This was as fertile a period in the literature of the law as in any other branch of English literature. The old sources-Glanvil, Bracton,10 Fleta,11 Britton,12 the Mirror of Justices,13 the Register of Writs,14 the old Tracts on writs and pleading, 15 the old Tenures and Littleton's Tenures, 16 and the 9 Vol. ii 189-192; first printed about 1554. 3 Vol. vi c. 8. 6 Ibid 211-212. 10 Ibid 236-243; first printed in 1569; quotations had been printed in Staunford's Pleas of the Crown in 1557. 11 Ibid 321-322; first printed with a dissertation by Seldon in 1647. D'Ewes copied the MS. in which he was much interested, Autobiography i 294-295, 300. 12 Ibid 319-321; first printed in 1540; another edition by Wingate in 1640. 13 Ibid 327-333; first printed in 1640. 14 Ibid 512-521; first printed in 1531. 15 Ibid 521-524. 16 Ibid 573-575. Year Books1-were printed and published. New books were written both on old and new legal topics. Legal history as well as modern law, practical treatises and books on the theory of the law, are all represented; and all helped to give order and form to the mixture of mediæval and modern principles and rules which made up the common law of this period. The author whose books covered the whole field of the common law, and had the largest influence upon its future development, was Edward Coke. Of him and his writings I shall speak at length in the second part of this chapter. Here I shall deal with the literary activity of his predecessors and contemporaries, without which his work would have been impossible. The legal literature of this period covers a wide ground. It would be impossible and unprofitable to give an account of all the books which were published. It is only possible to mention some of the most important. They can, I think, be best catalogued and described by dividing them into groups according to their subject matter, as follows:-(i) Books concerning writs and pleadings; (ii) books concerning the land law, and conveyancing and other precedents; (iii) books concerning the criminal law and the law of tort; (iv) the lectures of readers, textbooks, students' books, and law dictionaries; (v) books upon constitutional law and legal history. (i) Books concerning writs and pleadings. 3 We have seen that in the Middle Ages the learning of writs and pleadings was one of the earliest things taught to the student. The main divisions of the law depended upon the differences between the writs by means of which the different forms of action were begun; and to plead correctly was essential to the success of the action so brought. We can say the same of this period. But both the character of the forms of action generally used, and the method of pleading had somewhat changed; and these changes produced corresponding changes in the literature of this branch of the law. Books of the type of the Natura Brevium, which contained collections of and commentaries upon writs, tended to become more definitely separated from books of the type of the Nova Narrationes," which contained collections of pleadings; and towards the end of this period books of the former kind tended to be replaced by books on procedure of another type. At the same time the growth in 5 1 Vol. ii 528-529. 3 Vol. ii 498 n. 3, 512. 5 Below 382-387. 7 Ibid 522-523. 2 Below 423-493. • Vol. ii 522. the length and complexity of pleadings caused the books containing precedents of pleading to expand enormously. 1 3 The Register of Writs was printed in 1531; but it was too bulky a volume for the student. On the other hand, the students' hand book-the Natura Brevium-was, in spite of efforts to correct it, somewhat out of date. To supply the want of a handy and up-to-date volume, Fitzherbert published his new Natura Brevium in 1534.2 It was a successful book. It was reprinted in 1537; it was edited by W. Rastell in 1553, who wrote a table of contents; it was illustrated by references to the Year Books and Reports by Sir W. Windham, who was created one of the judges of the King's Bench in 1660; and it was further annotated by Hale. It is the edition of 1730, thus illustrated and annotated, which is still the standard edition. In 1662, there appeared an up-to-date selection of judicial writs with short notes attached to some of them, taken from the MSS. of Richard Brownlow, a famous prothonotary of the Common Pleas, who gave his name to a leading case.5 4 These books, being all in the nature of a commentary upon separate writs, the law is grouped round the particular writ selected. In 1579 Simon Theloall, of the Inner Temple, published a work of another kind entitled a "Digest des Briefs Originals et des choses concernant eux.' It owed its origin to the suggestion of Staunford, which I have already cited," that it would be a good idea if lawyers would treat some of the other titles of the Abridgments of the Year Books as he had treated the Title "Prerogative," and write a treatise on them.7 Staunford illus 1 In 1535 Redman published the Natura Brevium "newly corrected in Englishe, with divers addicions of statutes, boke cases, plees in abatementes of the sayd wryttes, and theyr declarations, and barres to the same, added and put in theyr places most conveniente." 2 Vol. ii 522; Fitzherbert said in his Preface-" Because of late time that book (the Natura Brevium) hath been translated into the English tongue, and many things are therein which are not according to the law of the land, and many other things are omitted which are very profitable and necessary for the understanding of the law; for that cause is this work composed and published." 3 Reprinted in 1616; for Rastell's Book of Entries see below 384-385. 4" Brevia Judicialia, or an exact collection of approved forms of Judiciall Writs in the Common Bench, collected out of the Manuscripts of Richard Brownlow, Esqr., late Chief Prothonotary of the said Court; "the anonymous editor protests in his preface (as the editors of many of the reports protest, above 366-367) that it is really Brownlow's. 5 For the case of Brownlow v. Mitchell which gave rise to Bacon's famous argument on the writ de non procendendo rege inconsulto, see Bacon's Works (Ed. Spedding) vii 683 seqq., and below 439. 6 Above 376 n. 9; for Staunford see vol. iv 203-204; below 392. 7" Master Justice Staunford in his Preface . before his book that he wrote upon the statute of Praerogativa Regis, did declare his opinion that some might commodiously and orderly digest the titles of the Abridgments . . into and thereupon methodically to treat, whereby the study of the law might be the more compendious and easie," Theloall's Preface. certain parts trated his meaning by showing how the Title "Brief" might be treated. Theloall chose this title, and wrote his treatise round it for his own use. Having been lent, it found its way, as often happened in such cases, to the printer. It deserved to be printed, as it is the most orderly treatise on procedure, founded on the Year Books, that had yet appeared. The subject is distributed over sixteen books, each dealing with a particular topic; and each book is divided into chapters and paragraphs. It is reprinted at the end of the 1687 edition of the Register; and there is no doubt that it is a very useful commentary thereon, as it contains all the Year Book learning on the writs therein contained. But it naturally tended to lose its usefulness when the Register became antiquated. Historically, it comes between the older commentaries upon writs and the modern books on procedure, with which we must now deal. The Register and the commentaries upon it were, as we have .seen, books of the old order. As Trespass and its offshoots gradually encroached upon the sphere of the older forms of action, as newer courts sprang up, the procedure of which was not that of the common law, these books became less useful to the practitioner. Their place tended to be taken by books of practice which shortly and tersely described the procedure of all the different courts. One of the oldest of a series of books, which is represented to-day by the Annual Practice and its rivals, is the Attourney's Academy,2 written by Thomas Powell, and published in 1623. Thomas Powell was a poet, a man of letters, and, in the latter part of his life, an industrious student of records. He had, the year before, written a tract giving directions for the search of records; and in 1627 he wrote the Attornies' Almanack, which gave directions as to removing causes or certifying records to the courts at Westminster. These two tracts supplement the principal work, and are often bound up with it. The book gives short practical directions as to the steps which an attorney must take in an action, and the fees which he 4 1 Theloall's Preface; see above 366 for the manner in which some of the Reports came to the printer. 2"The Attorney's Academy, or the manner and form of proceeding practically upon any suite, plaint, or action whatsoever in any court of record whatsoever within this kingdome. .; with the moderne and most usual fees of the officers and ministers of such courts." See Dict. Nat. Biog. 4" Direction for search of Records . . . for the clearing of all such titles and questions as the same may concerne, with the accustomed fees of search, and diverse necessarie observations;" in 1631 he published the "Repertoire of Records"; it would appear from D'Ewes' Autobiography i 235, that law students studied records in the Tower to fit themselves for practice; he tells us that he began to study them at first for points of law, and then he became interested in them chiefly for the light which they shed on English history. must pay, from the issue of the writ to the execution of judgment, not only in the courts of common law, but also in the Chancery, the court of Requests, the Star Chamber, the court of Wards, and several other courts.1 Besides, it gives information as to suffering recoveries or levying fines, as to the cost of proving a will, and as to the law terms and return days. It is interesting to note that, in the author's opinion, the most crying evil of the time was the fact that counsel were in the habit of taking fees, and then never appearing to plead. He suggests that in such cases the judge should have power to order the return of the fee and damages. A little later than this book, which had treated of procedure in general in a more modern style than any book that had yet appeared, we get one of the earliest of the books dealing with a special topic in procedure. In 1647 John March published, together with his book on actions for slander, a tract on the law and practice of Arbitration. 2 Books of this type show that the simplification of process, due partly to the action of the legislature, but chiefly to the spread of the offshoots of Trespass, was gradually making it possible to say something about actions in general. They are intermediate between the mediaval books grouped round the writs, and the modern books, which begin to appear in the following period, grouped round the orders of the courts. But this simplification of process had been accompanied by the growth in the complexity of the law of pleading. The legal profession could find the rules of pleading in the Year Books and Reports. But for daily use they also wanted precedents of pleading which they could adapt to the needs of their clients. "What availeth," says Coke, "the serjeant or apprentice the general knowledge of the laws, if he know not withall the form and order of legal proceedings in particular cases." 3 It was not long before this want was satisfied. We have seen that, in the early days of the Year Books, the first object which the reporter had in view was the giving of instruction to pleaders; and that it was only gradually that the report and the book of precedents became distinct things. Even in this period the two are found together. We have seen that Plowden considered that one of the great recommendations of his reports consisted in the fact that they contained precedents of 1E.g. the Council of York, the courts of the Counties Palatine, the Mayor's court, and the Sheriffs' courts in London. 2" I conclude with this humble request made to those who have power of reformation in this crying reigning evil amongst lawyers, touching the disappointment and defeate of Clyents causes, for which they are retayned and feed, and yet often fayle to give attendance in the houre of tribulation, or to bee nere unto the clyent in the day of visitation (a foule fault in a friend, but worse in a servant)," at p. 229. 3 Coke's Entries, Pref. 4 Vol. ii 537-538. |