11 s 5 either of reprints of the medieval books and documents, such as Glanvil,1 the De Laudibus, the Modus Tenendi Parliamentum,3 and editions of Magna Carta and the Charter of the Forest with Coke's comments; or of publications or reprints of some of the books of that school of historical lawyers who flourished in the preceding period, such as D'Ewes' journals, Cotton's records, Spelman's book on the law terms and some of his posthumous works, and two editions by Dugdale of Selden's tract on the office of the Lord Chancellor.10 The only really original book is Thomas Blount's little work on "Ancient Tenures of Land." Blount was a barrister of the Inner Temple; but, partly because he had considerable private means, partly because he was a Roman Catholic, he never practised.12 He devoted himself to literary pursuits, and wrote many works, some upon legal, others upon historical, and others upon miscellaneous topics. It was chiefly the historical side of law which interested him. This book gives, under the heads of the different places in which the land was situate, various curious tenures, and customs of manors, which he had come across in his study of records. It was meant both to amuse and instruct; and it does instruct, because it is a painstaking piece of work, taken from the original authorities, which preserved the memory of many old customs which were rapidly decaying when the book was written.1 The only other book that need be mentioned is the history of the penal laws against Roman Catholics and Protestant Nonconformists from Richard II. to Charles II.'s reign, by S. Blackerly.15 The text of the chief laws is given, and they are connected by a descriptive historical narrative. It is a very ordinary piece of work. 1 Term Catalogues i 144; App. IV. (11) v; vol. ii 189-192. 2 Ibid i 124; App. IV. (11) iv; vol. ii 569-570. 3 Ibid i 69; App. IV. (11) i; vol. ii 424-425. 4 Ibid i 405, 479; App. IV. (11) ix. 5 Ibid i 394; App. IV. (11) vii. Ibid i 486, ii 431; App. IV. (11) x; vol. v 405. 7 Ibid ii 262; App. IV. (11) xiv; vol. v 406. 8 Ibid ii 45; App. IV. (11) xi. Ibid iii 56, 110; App. IV. (11) xvi. 10 Ibid i 81, 286; App. IV. (11) ii; vol. v 409. 11 Ibid i 342; App. IV. (11) vi. 12 Dict. Nat. Biog.; for his law dictionary see below 612. 13 13 Whilst I was perusing many of our both public and private records for other ends, I thought a small collection of some remarkable tenures of land and unusual customs of some manors might not be unacceptable to the studious, who, when weary of looking upon Littleton's Tenures and his learned commentator, might relaxare fibulam by recurring to these," Pref. 14 Though, as he said, many had decayed, many still survived, "as not long since I had the curiosity to ask an old officer in the Exchequer whether he ever remembered any herring pies paid to the king from the manor of Carleton in Norfolk? Yes, very well, answered he, for we had some in court among us here last term," Pref. 15 Term Catalogues ii 273; App. IV. (11) xv. 5 (xii) General.-Among the books which I have classified as "general" the most important are perhaps the Law Dictionaries. The old "Terms of the Law" was reissued in a corrected and augmented form; but it was superseded by the more elaborate works of Blount 2 and Spelman.3 Cowell's "Interpreter" also was revised and reissued by Thomas Manley. The least satisfactory of these books are those dealing with the theory of the law. Most of them are the short books for the use of students beginning law of which I have already spoken. The only considerable book of this kind is a work in seven books, entitled "Origo Legum,' the author of which-George Dawson-was not a common lawyer." The growing importance of international law is illustrated by a translation of Grotius's great work; and of commercial and maritime law by the appearance of Molloy's work "De Jure Maritimo et Navali." The beginning of modern problems and conditions is illustrated, firstly by the earliest work on Military Law, which was published in 1682; and secondly by three works on colonial constitutional law. The first of the latter works was a revised reprint of "The General Laws and Liberties of the Massachusetts Colony in New England"; 10 the second was an edition of the laws of Jamaica, with some account of its present state and government by Sir Thomas Lynch; and the third was "A Compendium of the Laws and Government" of Great Britain, and of "The Dominions, Plantations, and Territories thereunto belonging." 12 In a book entitled "The Grandeur of the Law," by H. Philipps, we have the first attempt to collect a few biographical details as to distinguished members of the legal profession. They are grouped under the heads of the Nobility, 9 1 Term Catalogues i 77; App. IV. (12) ii. 2 Ibid i 58, ii 351; App. IV. (12) i; see the Juridical Rev. xxxvi 168-169. 3 Term Catalogues ii 189, 280; App. IV. (12) xi. Ibid i go; App. VI. (12) iii; vol. v 21-22, 401-402. 5 Above 601-602. "13 App. IV. (12) xii. The titles of the seven books show the scope of the treatise :(i) Law in general and its origin; of the divers kinds of laws and the law eternal. (ii) What laws man is to act by, Fωον κοςμικον, Fωον πολιτικον, Fwoν αθανατον. (iii) Of jus gentium civile or the law of nations as civilly related to one another. (iv) Of the jus gentium militare or the law of arms and war. (v) Of the jus gentium ecclesiasticum or the laws and government of the Church Catholic. (vi) Of the laws and government of the Church of England. (vii) Why some laws are immutable and some not, but may be changed or cease, be suspended or abrogated; the book was dedicated to William and Mary; it is a very fair introduction to an academic study of law; see Term Catalogues ii 478. 7 Term Catalogues i 476; App. IV. (12) vi; vol. v 55-58. 8 Above 606. 9 An Abridgment of the English Military Discipline, reprinted by his Majesties special command, Term Catalogues i 510; App. IV. (12) viii. 10 Ibid i 206; App. IV. (12) iv. 11 Ibid ii ror; App. IV. (12) x. Baronets, Knights, and Esquires; and particulars are given of their names, parentage, and offices held by them. From this literature we can draw one or two conclusions as to the main characteristics of the legal development of this period. In the first place it is a transition period. There is still a demand for the great books of the medieval common law, such as the Year Books and the Register of Writs. Still more is there a demand for the important books of the sixteenth and early seventeenth centuries-Fitzherbert's "Natura Brevium," the "Doctor and Student," and Coke's books. At the same time we can see modern types of books emerging in the books of practice, in the books of conveyancing, in the books on commercial law, and in books. on special topics of the common law. In the second place, we can see that, to the practising common lawyer, books about procedure and pleading are easily the most important. The law is still grouped round the forms of action. The rules as to the procedure of the different courts still differ; and the rules of pleading are growing more strict and more detailed. No doubt it is for this reason that the list of books upon special topics in the common law is so scanty, and that the books upon legal theory are few and poor. The lawyers still thought in the terms of adjective rather than of substantive law, and ignored legal speculation, because their training and practice emphasized the practical and procedural point of view to the exclusion of any other. It is not till the complexity of the law of procedure and pleading is diminished, it is not till the lawyers begin to get an education which is theoretical as well as practical, that they will begin to think in terms of substantive law, to appreciate the educational value of legal theory, and to produce good books upon special topics in the common law. This as yet is in the far future. In the third place, the mass of literature upon the different sides of the common law, and the comparative scantiness of the literature of other parts of English law, illustrate the commanding position which, as a result of the Great Rebellion, the common law has attained. But this we shall see more clearly when we have looked at the literature of this period which is devoted to the chancellor's equitable jurisdiction. The Literature of Equity The literature of the common law, if on the whole inferior in quality, is considerable in quantity. The literature of equity, onthe other hand, is very scanty. If we except the somewhat belated tracts on the relationship between law and equity,' it 1 Vol. v 271. consists of the orders of the Court, and some books on practice and pleading, one book upon a special topic-Duke's book upon Charitable Uses, and two sets of reports. It is true than many of the cases decided during this period were embodied in some of the common law reports, and in sets of Chancery reports published early in the eighteenth century. But the only reports devoted exclusively to equity, which were published before 1700, are these two sets. The reason both for the scantiness and the form of the literature of equity during this period is to be found in the fact that equity was passing through a transition stage. We have seen that it had ceased to depend wholly on the conscience of the chancellor; and that it had not yet become an entirely regular system.1 On the one hand, it was acquiring a number of principles which were being developed by the practice of the court. It was necessary for the lawyers to know what that practice was, and so books of practice and reports were printed. On the other hand, though the chancellors of this period had a good deal less discretion than the chancellors of the preceding period, they had a good deal more discretion in the creation of new and the application of established rules, than the judges of the common law courts. Thus the conditions were favourable for the production of books of practice and reports; but the time was as yet hardly ripe for the production of a systematic treatise upon equity. In 1732 the author of the first volume of Equity Cases Abridged seems to have considered the plan of writing a "regular institute" of equity. But he decided, on the whole wisely, that an abridgment of decided cases would be more useful and more satisfactory.2 Here I shall describe, in the first place, the orders of the court and the books on practice and pleading; in the second place, Duke's book upon Charitable Uses; and, in the third place, the reports published during this period, or devoted mainly to cases decided during this period. In the fourth place, I must just mention some other later reports in which cases of this period occur. (1) The only comprehensive set of orders issued during this period were those issued in 1661 by Clarendon and Grimston.3 1 Vol. v 336-338. 2 The earliest systematic work upon modern equity seems to be an anonymous "Treatise of Equity" published in 1737, and attributed to Henry Ballow, who had been called to the bar in 1728, Black Books of Lincoln's Inn iii 288; Fonblanque, Treatise of Equity, Pref.; Fonblanque's Treatise was an edition of Ballow's Treatise; references were inserted, and the information was brought up to date by voluminous notes. 3 Saunders, Orders i 296-313—" A collection of such of the orders heretofore used in Chancery, with such alterations and additions thereunto as the Right Honourable Another far more complete set was projected by Shaftesbury; but apparently they never came into force." They are a complete code of procedure; and they show that Shaftesbury was quite able to appreciate the principles which should underlie the procedure of the court, and the main evils against which it was necessary to guard. For the rest, we have simply isolated orders upon detached topics. As in the preceding period, troubles and jealousies in the office of the Six Clerks bulk very large. Their control of their under clerks was very lax-thus, in 1687, we learn that divers complaints had been made to the master of the Rolls, "of the outragious, rude and indecent demeanours of diverse of the younger clerks, servants and writers to and for the sworne clerks in the six clerks office . . . which hath beene most notorious by their throwing dirt, filth, inck and many other things to the damage and prejudice of the suitors of this court and Masters in the said office, and at other times by a rude and violent clapping their desks, and making many loud outcryes and noises, and by evill treateing their masters in the said office with opprobrious languages." We may conclude that these officers of the court sometimes combined with their accustomed dilatoriness, "a certain liveliness," which must have been very surprising to any unprofessional person who happened to intrude upon one of those scenes. The books on practice are of the same general character as the common law books which appeared upon this subject." Sometimes, as in the case of the "Compleat Solicitor," information is given both about equity and common law practice. But there are a certain number of books which deal only with the former subject. One of the earliest is the account of the practice of the court prefixed to the Choice Cases in Chancery, published in 1652. But neither books on practice, nor books upon pleading, attain the bulk of the common law books on these topics; and this is natural if we consider how much more highly developed the common law was as compared with equity. Thus Edward Earle of Clarendon, Lord Chancellor of England, by and with the advice and assistance of the Honourable Sir Harbottle Grimston, baronet, Master of the Rolls, have thought fit at present to ordaine and publish, for reforming of several abuses in the said Court, preventing multiplicity of suits, motions, and unnecessary charge to the suitors, and for the more expeditious and certain course for relief." 2 Ibid i 344 n. a. Saunders, Orders ii 1050-1077. E.g. the liability of counsel for a scandalous bill, ibid i 292-294; frivolous exceptions to reports, ibid i 335, 367, 387; insufficient answers, ibid i 349, 421-422; rehearings, ibid i 367, 419-421; interrogatories, ibidi 374-375, 416; process of contempt, ibid i 401-402; fees, ibid i 418. Ibid i 318-320, 320-321, 322-323, 328-332, 360-363, 377-381. 5 Ibid i 377; and there are similar complaints in 1693, ibid i 398-399. • Above 598-599. 7 The Practice of the Court of Chancery Unfolded, vol. v 274. |