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some advice as to the best methods of study, and some information as to the sources and principles of the law.1 There was a

good deal in the book which was perhaps regarded as too general to be of much service to the student, who in that age, as in this, has usually a pretty shrewd, if somewhat shortsighted idea as to the sort of information which will pay; and the more practical part, on the sources and principles of the law, was quite as well if not better done in books of a new type suggested by Bacon.

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We shall see that Bacon put forward a scheme for the restatement of English law; and that, as part of the scheme, there was to be written a book "De regulis Juris," in which the leading maxims of the law were to be set out, with explanations and illustrations.2 Bacon's tract on the "Maxims of the law," written in 1596, is a fragment of such a work. It contains a good deal of law in the form of a commentary upon twenty-five maxims illustrated by cases and statutes.* No doubt the information conveyed is scattered; but the whole work is a good exercise, both in reducing various different rules to some sort of principle, and in ascertaining the limits of the principles themselves." Bacon meant this work to be distinct from the book of Institutes which he proposed; and, indeed, it is not well suited to any but the advanced students or the practitioners for whom it was intended. But the writers of students' books of this period seem

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1 Note at p. 241 a defence of case law.

2 Below 488.

3 Works, Ed. Spedding vii 309-387; for the circumstances of its publication, and the relation of the MSS. see ibid 309-311; probably the fragment was finished and dedicated to the Queen in consequence of the debate in Parliament as to the reformation of the law in 35 Elizabeth; in the Preface Bacon says that he has collected 300 maxims, but, "I thought good, before I brought them all into form, to publish some few."

4" There is one point above all the rest I account the most material for making these rules indeed profitable and instructing; which is, that they be not set down alone, like short dark oracles .. but I have attended them with a clear and perspicuous exposition; breaking them into cases, and opening their sense and use, and limiting them with distinctions," Pref. 323; indeed it may be said that Bacon anticipated Macaulay's use of illustrations to explain his penal code.

5 Bacon says, Pref. 319-"I do not find that . I can in any kind confer so profitable an addition unto that science, as by collecting the rules and grounds dispersed throughout the body of the same laws; for hereby no small light will be given, in new cases and such wherein there is no direct authority, to sound into the true conceit of law by depth of reason; in cases wherein the authorities do square and vary to confirm the law and to make it received one way; and in cases wherein the law is cleared by authority, yet nevertheless to see more profoundly into the reason of such judgments and ruled cases, and thereby to make more use of them for the decision of other cases, more doubtful; so that the uncertainty of law, which is the principal and most just challenge that is made to the laws of our nation at this time, will by this new strength laid to the foundation somewhat the more settle and be corrected."

6 Below 488.

7 This is reasonably clear from the Preface; he meant, he said, to correct two common and contrary faults-"There be two contrary faults and extremities in the debating and sifting out of the law, which may be noted in two several manner of arguments; some argue upon general grounds, and come not near the point in

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to have thought that information of this kind would make a good introduction to an Institutional book. It influenced Dodderidge's book which has just been discussed; and Noy's little tract on the "Principal Grounds and Maximes of the Lawes of the Kingdome." More especially it influenced what was much the most complete and the best institutional book before BlackstoneHenry Finch's "Nomotechnia," or description of the common law of England." It was first published in law French in 1613; it was translated and rearranged by the author, and published posthumously in 1627; and other editions were called for in 1636, 1678, and 1759.$

Finch, like Bacon, recognized the need for a book of Institutes, and appreciated the principles upon which it ought to be written. He saw that the little books, which followed Littleton and the Natura Brevium, and merely gave information about the land law and writs, would no longer suffice. "He that will take the whole body of the law before him, and go really and judicially to work, must not lay the foundation of his building in estates, tenures, the gist of writs and such like, but on those current and sound principles which our books are full of." Both in the French and the English version the treatise is divided into four books; and the subject matter of the first book is the same; but the arrangement of the other three books is very different in these two versions. The English version is the product of second thoughts, and a great improvement upon the French; and, as it is obviously the version which has influenced subsequent writers, it is the one which I shall describe.*

In the first book, after a few remarks about the law of nature

question; others, without laying any foundation of a ground or difference or reason, do loosely put cases, which, though they go near the point, yet being put so scattered, prove not; but rather serve to make the law appear more doubtful than to make it plain," at pp. 320-321.

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1 Published in 1642; a much more elaborate work on the same lines is Edward Wingate's Maximes of Reason (1658); it contains 214 maxims; some are from theology, grammar, and logic, but most are legal principles in the form of maxims; it is less useful than the other books because it is more elaborate.

2" NOMOTEXNIA, cest-a-scavoir un description del commen leys Dangleterre solonque les rules del Art. Parallelees ove les Prerogatives le Roy. Ovesque auxy le substance et effect de les Estatutes (disposes en lour propre lieux) per le quels le Common Ley est abridge, enlarge, ou ascunment alter, del commencement de Magna Charta fait 9 H. 3 tanque a cest jour;" for Finch see above 343.

3 The last edition is by Danby Pickering.

4 In the French edition the law as to criminal and civil wrongs is inserted before the law as to property; the law of actions forms the third book and is differently arranged, dealing with writs, pleading, trial by jury, demurrer, process, execution, pleas of the crown, common pleas, the various forms of action, writs of error, local courts and officials, the justices in eyre and of oyer and terminer, arbitration; the fourth book deals with bodies of law outside the common law, i.e. the law administered in the court of the Constable and Marshall, the Admiralty, and the ecclesiastical courts; these bodies of law are discussed mainly in their relations to the common law.

and the law of reason, he deals with "rules taken from other learnings"-from religion, grammar, logic, natural philosophy, politics, and morality. He then deals with the principles of legal construction which are either natural or feigned. Finally he deals with the positive laws made by the state by the light of the laws of nature or reason. The second book begins by explaining what is the common law, and of what it consists. It explains how the country is divided, and the different kinds of persons natural and artificial which make up the state. In this connection he gives

by far the best description of the king and his prerogative which had yet been written-a description upon which Blackstone's better known account is based. He then passes to the substantive law which he says consists of two main divisions-"one that concerneth possessions, the other the punishment of offences." First of all the methods of acquiring possessions are detailed, and the distinction between things in possession and in action is explained. In this, as in other parts of the book, he describes separately the common law, the statutes, and the exceptional rules which applied to the king by virtue of his prerogative. He then passes on to hereditaments, and describes the different kinds of estates known to the law. After dealing with land and tenements, he passes on to incorporeal things such as advowsons, seigniories, rents, commons, villeins, annuities, corrodies, offices, and franchises. He then defines chattels in general, and deals with the law of wills and executors and administrators. After distinguishing chattels real from chattels personal, he discusses the modes by which the latter are acquired; and in that connection deals with bailment and contracts. He closes the book with a short account of accord and arbitrament. The third book is taken up with an account of different forms of wrong doing, civil and criminal. It is the shortest of the four. The fourth and

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longest book is taken up with the law of actions. the courts, their times of sitting, their officers, and their records; with original writs and the various forms of action; with commissions, plaints, bills, inquests of office for the king, and indictments; with process and pleading and joinder of issue; with trial by jury, by battle, by witnesses, and by compurgation; with demurrers; with other incidents of a law suit such as appearance, mesne process, continuance, judgments, writs to execute judgment, writs of error and false judgment; and finally with certain other writs having no relation to an action.

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Finch's book is a pioneer book of the institutes of English law. It is well arranged, and tersely and clearly written. has influenced all succeeding books of a similar sort; for, as the summary which I have just given shows, it influenced the form

and arrangement of Blackstone's Commentaries; and, through Blackstone's Commentaries, the form and arrangement of the chief institutional book of English law at the present day. But it never attained the fame or the influence of its successor; and this I think is due to the following causes: In the first place the author, though a man of some literary gifts and equipment, was pre-eminently a practising common lawyer. In his introduction he follows the plan of illustrating the principles of English law by instances of so technical a character, that only an advanced student could understand them. In the second place his outlook is towards the past rather than towards the future. He gives a very large space to the land law and the real actions, a very small place to those developments of trespass which were creating a law of contract and a law of tort, and no place at all to commercial law which, when he was writing, was rapidly becoming a new department of the common law.1 It followed therefore that the changes of the latter part of the century made some parts of his book useless and other parts inadequate. In the third place it deals only with the common law. The references to equitable rules are of the slightest; and in the following period, when the system of equity began to expand, this caused his book to be a very one-sided view of the English legal system. No doubt some of these defects were inevitable. It was an age of great and rapid change; and such an age is not so favourable to the composition of a book of Institutes as the calm atmosphere of the age in which Blackstone wrote. The result is that, partly from its own character, partly from the character of the age, the book has influenced, not so much the students and the lawyers of the age for which it was written, as the succeeding writers of similar books. Though its direct influence is incomparably less than Blackstone's Commentaries, its indirect influence has, through Blackstone, been very considerable.

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The last of the books which I must notice under this head are two law dictionaries, the one written by a common lawyer, and the other by Spelman, the historian and antiquary. The first of these is the "Exposiciones Terminorum Legum Anglorum published by John Rastell in 1527. It is a short book, but it was very successful. It was translated by the author's son William; and editions under the short title of "Termes de la Ley" were published in 1567, 1579, 1592, 1595, 1602, 1641, and 1667.2 But by 1667 it had been superseded by similar works of a more elaborate kind. I have already dealt with the 1 Above 143-148.

2 The full title of the edition of 1592 is, “An Exposition of certaine difficult and obscure words and termes of the Lawes of this Realme"; it is printed both in French and English.

VOL. V.-26

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Interpreter of the civilian Cowell. The Interpreter was a much more elaborate work than Rastell's, and we have seen that it long continued to be the standard Law Dictionary. But, for the study of legal and other kinds of history, it was superseded by Spelman's Glossary, which he undertook by way of preparation for a work on the origins of English law. The first part was published in 1626, and the second (posthumously) in 1664. It is a great deal more than a law dictionary, being a dictionary of Latin and other words to be found in all the post-classical authors and documents English and foreign. On the other hand, it did not contain some of the technical terms and phrases which an English lawyer would naturally expect to find. In fact it is a product of that new school of historians and historically minded lawyers of which I must now speak.

(v) Books upon constitutional law and legal history.

"The first half of the seventeenth century," said Maitland, "may be regarded as the heroic age of English legal scholarship." 4 The literary Renaissance of the Elizabethan age had touched the studies of law and history, and many scholars were working with the enthusiasm of explorers to put them upon a new basis. We can see the central figures of this revival in the band of poets, historians, and lawyers who formed the Antiquarian Society. Among them were to be found such men as Camden, Clarendon, Bacon, Selden, Spelman, D'Ewes, Eliot, and many others whose names are well known in law, politics, and literature; and the greatest antiquary and collector of books and manuscripts of the period-Sir Robert Cotton. The achievements of all the distinguished literary men of this period in all departments of learning owed much to Cotton's advice, personal assistance, and generous loans of books and manuscripts.5 But it is probable that the work done in the departments of English law and history owes most to him; for it was the records collected in his famous library that facilitated the formation of this new school of lawyers and historians. And in the seventeenth cen

1 Above 22.

2" Glossarium Archaiologicum continens Latino-Barbara, peregrina, obsoleta et novatæ significationis vocabula; quæ post labefactatas a Gothis Vandalisque res Europeas, in Ecclesiasticis profanisque Scriptoribus; variarum item Gentium legibus antiquis, Chartis, et Formulis occurrunt. Scholiis et Commentariis illustrata; in quibus prisci Ritus quamplurimi magistratus, dignitates, munera, officia, mores, leges ipsae, et consuetudines enarrantur."

3 For the later work by Blount see vol. vi c. 8.

4 The Laws of the Anglo-Saxons, Collected Works iii 453.

5 Forster, Life of Sir John Eliot i 241-242; for instance D'Ewes, Autobiography (Ed. Halliwell) ii 38, says "I borrowed many precious manuscripts of him, being chiefly led, out of a virtuous emulation of him at the first, to the study of records, and to the treasuring and storing up of ancient coins, and elder or later manuscripts or autographs, as well as original letters of state, as old deeds and writings."

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