REFERENCE MATTER

Notes

EDITOR’S INTRODUCTION

1. Sir William Holdsworth, “Glanvil and Bracton,” in Holdsworth, Some Mak­ers of English Law (Cambridge, 1938) p. 8; see also Paul Brand, “Time Out of Mind”: The Knowledge and Use of the Eleventh- and Twelfth-Century Past in Thirteenth­Century Litigation,” Anglo-Norman Studies 16 (1994) pp.

2. Bracton, De Legibus et Consuetudibus Angliae IV 6, T Twiss, ed. (London, 1883), quoted in W. L. Warren, Henry II (Berkeley, California, 1977) p. 340.

3. A. W. B. Simpson, “The Common Law and Legal Theory,” in A. W B. Simp­son, Legal History and Legal Theory: Essays on the Common Law (London, 1987) pp. 359-382, 364.

4. S. B. Chrimes, Introduction, to Sir John Fortescue, De Laudibus Legum An- gliae (Cambridge, 1942) p. xcv.

5. Simpson, “The Common Law and Legal Theory” pp. 367-368.

6. Ibid., at 376.

7. T. S. Eliot, “Tradition and the Individual Talent,” in T. S. Eliot, The Sacred Wood (1942) pp. 47-59, 49-50 (emphasis in original).

CHAPTER i: GLANVILL

The Treatise on the Laws and Customs of the Realm of England Commonly Called Glan­vil, Edited with Introduction, Notes and Translation by G. D. G. Hall, Thomas Nelson and Sons Ltd., Edinburgh, 1965; The Legal Classics Library, 1990.

1. John Cowell, The Interpreter (London, 1701), sub “Glanvill.”

2. William Blackstone, Commentaries on the Laws of England, I, Legal Classics Library Edition (1983) p. 72.

3. Pollock and Maitland, The History of English Law, I, Legal Classics Library Edition (1983) p. 166.

4. Ibid., p. 167.

5. T F. T Plucknett, Early English Legal Literature (Cambridge, 1958) pp. 37­38.

6. Royal Writs in Englandfrom the Conquest to Glanvill, R. C. van Caenegem, ed., 77 Selden Society (London, 1959) p. 355.

7. Glanvill, Introduction, p. xxix.

8. Glanvill, Introduction, p.

9. Pollock and Maitland, I, p. 165.

10. W L. Warren, Henry II (Berkeley, 1973) p. 237.

ιι. R. C. van Caenegem, The Birth of the English Common Law (Cambridge, 1973), p. 104.

12. Glanvill, p. 1.

13. Compare with the Proemium in Justinian’s Institutes: “Imperial majesty should be armed with laws as well as glorified with arms, that there may be good government in times both of war and of peace, and the ruler of Rome may not only be victorious over his enemies, but may show himself as scrupulously regardful of justice as triumphant over his conquered foes.”

14. Royal Writs, van Caenegem, p. 89.

15. Glanvill, Introduction, p. xxviii.

CHAPTER 2: MAGNA CARTA

Richard Thomson, An Historical Essay on the Magna Charta of King John: to which are added, the Great Charter in Latin and English; the Charters of Liberties and Confir­mations, granted by Henry III. and Edward I; the Original Charter of the Forests; and VariousAuthentic Instrument connected with Them, John Major and Robert Jennings, London, 1829; The Legal Classics Library, 1982.

1. W C. Sellar (Aegrot: Oxon.) and R. J. Yeatman (Failed M.A., etc., Oxon.), 1066 and All That (London, 1930) p. 34.

2. Doris Mary Stenton, After Runnymede: Magna Carta in the Middle Ages (Charlottesville, Virginia, 1965) p. 33.

3. 42 Edward III, c. 1.

4. 42 Edward III, c. 3 (author’s translation).

5. T F. T Plucknett, Statutes and Their Interpretation in the First Halfofthe Four­teenth Century (Cambridge, 1922) p. 135.

6. Stenton,AfterRunnymede, p. 54 (not good theatre); A. F. Pollard, Henry VIII (London, 1905) pp. 27-28 (forgotten); Lily B. Campbell, Shakespeare’s “Histories” (San Marino, 1968) p. 142 (Elizabeth not bothered).

7. John Winthrop, Winthrop’s Journal “History ofNew England” 1630-1649, vol. I, J. K. Hosmer, ed. (New York, 1908) p. 151.

8. Lawes and Libertyes, Thomas G. Barnes, ed. (San Marino, California 1975), Introduction, pp. 7-8.

9. Records of the Governor and Company of the Masschusetts Bay in New England, II, N.

10. Legal Papers of John Adams, vol. II, L. K. Wroth and H. B. Zobel, eds. (Cam­bridge, Massachusetts, 1965) pp. 200-201, 207, in the case of Sewall v. Hancock. The defendant was, of course, the signer of the Declaration of Independence—and this case was, politically, Adams's most important until the Boston Massacre trials. Ad­ams's defense of Hancock fuelled colonial opposition to imperial customs and the vice-admiralty courts.

CHAPTER 3: THOMAS LITTLETON

Edward Coke, The First Part of the Institutes of the Laws of England; or a Commentary upon Littleton. Not the Name of the Author Only, but of the Law Itself, vol. I, with addi­tions of notes, reference, and proper tables by Francis Hargrave and Charles Butler, Esqrs. of Lincoln's Inn, including also the notes of Lord Chief Justice Hale and Lord Chancellor Nottingham; and an analysis of Littleton, written by an unknown Hand in 1658-1659, Charles Butler, ed., 18th edition corrected, London, 1823; The Legal Classics Library, 1985.

1. The will is given, in extenso, in Eugene Wambaugh's Littleton’s Tenures in English (Washington, 1903) pp. xlvii-lvii.

2. John Fortescue, De Laudibus Legum Angliae, The Legal Classics Library (1984) pp. xvii-xviii.

3. Littleton's Tenures were known by many titles, and for the first five editions (to 1510?) there was no title page, only the printer's colophon. The title used here is that of the 1540 edition.

4. John Lettou and William de Machlinia were the printers, probably both Low Countrymen, William's name indicating an origin in Mechelen (Malines) near Ant­werp.

5. JosephHenryBeale, A Bibliography ofEarly English Law Books [to 1600] (Cam­bridge, Massachusetts, 1926); R.

6. Thomas G. Barnes, “Star Chamber Litigants and their Counsel 1596-1641,” Legal Records and the Historian, J. H. Baker, ed. (London, 1978) p. 23.

7. A modest upturn began in 1645-1649 and carried on in into the Restoration, at about 270 admissions per year. These figures are based upon the author's own compilations and those of Wilfrid R. Prest in his pioneering study, The Inns of Court under Elizabeth I and the Early Stuarts (Totowa, New Jersey, 1972).

8. Prest, p. 52; Barnes, pp. 25-26.

9. A Catalogue of the Library of Sir Edward Coke, W. O. Hassall, ed. (New Haven, 1950) nos. 369, 305, 405. “Littleton mixed” (no. 869) is still extant, in the British Library: Harleian MS. 6687. The early editions of Littleton, all in octavo like this one of Coke's, had fairly wide margins, which facilitated noting-up.

10. The Twelfth and Thirteenth Parts of Coke's Reports were published posthu­mously in 1656 and 1658, respectively. Many of the cases reported in these volumes are in fragmentary or inferior form.

11. See Thomas G. Barnes, “A Cheshire Seductress, Precedent, and a ‘Sore Blow' to Star Chamber,” On the Laws and Customes of England: Essays in Honor of Samuel E. Thorne, M. S. Arnold et al., eds. (Chapel Hill, 1981) pp. 59-82; and J. H. Baker, “New Light on Slade's Case,” Cambridge Law Journal 29 (1971) pp. 51-76 and 213­236.

12. Tenures, vol. I, pp. lxi-cxxviii.

13. Ibid., p. xxx.

14. Allen D. Boyer, “Coke, Sir Edward (1552-1634)” Oxford Dictionary of Na­tional Biography (Oxford, 2004).

15. J. F. Stephen, History of the Criminal Law, vol. II (London, 1883) p. 206.

16. W S. Holdsworth, A History of English Law, vol. V (London, 1945) p.

17. T F. T Plucknett, A Concise History of the Common Law (Boston, 1956) p. 278.

18. P. H. Winfield, The Chief Sources of English Legal History (Cambridge, Mas­sachusetts, 1925) p. 334.

19. J. H. Baker, An Introduction to English Legal History (London, 1979) p. 65.

20. In Book One, Chapter I, of the eighteenth edition (which may be taken to set the standard), only about 2.5 percent of the text is Littleton—but in this, the first Chapter, Coke dilated mightily, on every subject under the sun (and not in Little­ton) so it is atypical. However, Book Two, Chapters 3-4, on Escuage and Knight Service, is somewhat more typical, and still only 9 percent of the text is Littleton's.

21. Preface to the Tenures, vol. I, p. xlii.

22. 3 Coke's Reports 59.

23. Holdsworth, vol. II, p. 572. Littleton's reading is still extant in manuscript.

24. Tenures, fols. 393b-394b. The foliation—not pagination—of the text in our edition is the established foliation for Coke upon Littleton from the first edition onwards. It makes reference less confusing than would otherwise be the case, but with so much later intruded material it makes exact citation to material, especially later notes, difficult.

25. A Calendar of the Inner Temple Records, vol. I, F. A. Inderwick, ed. (London, 1896) p. I.

26. Tenures, fol. 394a.

27. T F. T Plucknett, Early English Legal Literature (Cambridge, 1958) p. 113.

28. Tenures, fol. 394a.

29. It was William West of the Inner Temple who, in 1581, divided Littleton's text into sections, an arrangement preserved beginning with Tottell's French edition of that year (Beale, T.30). However, West in essence only imposed enumeration on what was already a logically structured series of propositions.

30. Holdsworth, vol. II, p. 574.

31. For the best concise recent treatment of Taltarum^,s Case, see A. W B. Simp­son, An Introduction to the History of the Land Law (Oxford, 1961) pp. 122-123; see also S. F. C. Milsom, Historical Foundations of the Common Law (London, 1969) pp.

32. Tenures, fol. 379b. The case that finally admitted the contingent remainder in all its unsettling grandeur was Colthirst v. Bejushin, 1 Plowden's Commentaries 21 (1550); see Milsom, pp. 165, 397 (explanatory note to p. 165).

33. Wambaugh, pp. xlix, liii.

34. Wambaugh, pp. xlix, liii.

35. A large step taken to close the gap is Joseph Biancalana, The Fee Tail and the Common Recovery in Medieval England: 1176-1502 (Cambridge, 2001).

36. 4 Coke's Reports 7b.

37. Tenures, p. xxxvi.

CHAPTER 4: JOHN FORTESCUE

De Laudibus Legum Angliae: A Treatise in Commendation of the Laws of England by Chancellor SirJohnFortescue, Francis Gregor trans., Andrew Amos, ed., and a life of the author by Thomas (Fortescue) Lord Clermont, Robert Clarke & Co., Cincin­nati, 1874; The Legal Classics Library, 1984.

1. Henry VI Part 3, Act V, sc. v.

2. John Rastell in 1513 had referred descriptively to Fortescue's work as “de lau­dibus legum Anglie”; it fell to Selden to give it that title which it has borne since.

3. Raleigh's History of the World, vol. 1, p. 247, quoted in S. B. Chrimes's Intro­duction to Fortescue, De LaudibusLegumAnglie (Cambridge, 1942) p. civ.

4. 8 Coke Reports, Preface, quoted in Chrimes, p. cvii, n, l.

5. Professor Chrimes provides a chronology of Fortescue's life containing more than 150 entries, drawn largely from the Public Records, in Chrimes, pp. lix-lxvii.

6. Paston Letters and Papers of the Fifteenth Century, 3 Parts, Early English Text Society (Oxford, 1971-2006); The Stonor Letters and Papers, 1290-1483, 2 vols., C. L. Kingsford, ed., Camden Society Third Series 29 and 30 (London, 1919) and Camden Miscellany XIII, Third Series 34 (London, 1924).

7. The introduction to The Legal Classics Library edition of De Laudibus was written by Clermont, whose biography, SirJohn Fortescue, LFnight: His Life, Works, and Family History, 2 vols. (London, 1869), long dominated the study of Fortescue.

8. Chrimes, p. lxix, n. 2.

9. Chrimes, p. 195, note to 116, 4.

10. Chrimes, p. xcii, n. 2. Ewart Lewis, Medieval Political Ideas, 2 vols. (London, 1954) provides a sound translation ofDe Natura Legis Naturae. Bar was a ducal ter­ritory of Rene of Anjou, Queen Margaret's father. St-Mihiel, on the right bank of the Meuse, was the site of the AEF's notable victory in September 1918 against the Germans.

11. Charles Plummer, ed., Fortescue's The Governance of England (Oxford, 1885). This work comprises only some twenty-five pages of text.

12. Percy H. Winfield, The Chief Sources of English Legal History (Cambridge Massachusetts, 1925) p. 317.

13. This changed perspective owes a great deal to B. P. Wolfe's work. This con­vincing revisionism is reflected in the substance and the title of the best one-vol­ume treatment of early modern Britain, Roger Lockyer's Tudor and Stuart Britain 1471-1714 (London, 1964)-the beginning date tells the story, and a far cry it is from the traditional great divide of 1485 and Henry VEEs accession!

14. Chrimes, pp. lxxxvi-lxxxviii.

15. De Laudibus, pp. 61, 241. Incidentally, Fortescue appears to have been an early user if not the originator of the phrase, “comparisons are odious,” so popular in the next couple of centuries, appearing in one form or another in Cervantes, Marlowe, Shakespeare, Burton, Heywood, Donne, and Herbert.

16. De Laudibus, p. 27.

17. Compare Chrimes's English Constitutional Ideas in the Fifteenth Century (Cambridge, 1936) pp. 314-318 with Chrimes, pp. xciii-xcv.

18. For recent scholarship on the expanded activity of the Council as a judicial body under Henry VII (with glances backward), see Select Cases in the Council of Henry VII, C. G. Bayne & W H. Dunham Jr., eds., Selden Society 75 (London, 1958), reviewed by Thomas G. Barnes in Speculum, vol. 34 (1959) pp. 649-651.

19. JohnFoxe, Actes and Monuments (London, 1563) [STC 11222].

20. H. D. Hazeltine’s “General Preface” in Chrimes, p. xix.

21. The Stuart Constitution 1603-1688, J. P. Kenyon, ed. (Cambridge, 1969) p. 10.

22. Ibid., p. 21.

CHAPTER 5: RICHARD HOOKER

Of the Laws of Ecclesiastical Polity by Richard Hooker, Books 1 to 4, Introduction by Ronald Bayne, J. M. Dent & Co., London, &E. P. Dutton, New York, 1907; The Legal Classics Library, 1998.

1. Richard Hooker, Laws of Ecclesiastical Polity, 4. 14. 1, pp. 421-422.

2. 26 Henry VIII, c. i (1534).

3. Thomas Hobbes, Leviathan, vol. I, 13.

4. Eccles. Polity, 3, 2.1, p. 297. In a more limited sense, Hooker used polity to indicate a particular form of civil organization, a specific form of government—as he indicated, perhaps somewhat surprisingly, in preferring the “polity” of Sparta to that ofAthens. Eccles. Polity, 5. 79. 3; a statement perhaps not so surprising when one realizes Hooker’s deep suspicion of the viability of democracy.

5. Matthew 5 :17-18. The Gospel of Matthew, chapters 5-7, recording the Ser­mon on the Mount, begins with the Beatitudes and ends with the parable of the wise man who built his house upon a rock. That sermon was the Christly amend­ment to the Judaic Law, which astonished the multitude, “For he taught them as one having authority, and not as the scribes,” Matthew 7:29—a promulgation of God’s law to the believer.

6. A precise illustration of this point is to be found in Pope Pius V’s excom­munication of Elizabeth in 1570. Before publishing his bull Regnans in excelsis, the Pope had directed the trial of Elizabeth—in absentia—before the Roman Curia for usurpation and heresy. A number of English Roman Catholic exiles testified to her heterodoxy, resulting in her condemnation. Due process was meticulously observed, insofar as that was possible where the defendant was not amenable to the jurisdiction.

7. See generally G. R. M. Ward, The Foundation Statutes of Bishop Fox and Corpus Christi College (London, 1843) p. xv.

8. J. G. Milne, The Early History of Corpus Christi College Oxford (Oxford, 1946) pp. 37-39. The library remains very much as it was in Hooker’s day, little changed in outward appearance, the ancient books still shelved in desked presses (although no longer chained).

9. Thomas Fuller, quoted in Wilfrid R. Prest, The Inns of Court under Elizabeth I and the Early Stuarts, 1590-1640 (Totowa, New Jersey, 1972) p. 194.

10. Quoted ibid., p. 195. In 1595 Travers became the first Provost of Trinity Col­lege, Dublin, which put him beyond Whitgift’s reach. He died in 1643, aetat 95, having witnessed for a season the triumph of presbyterianism in England.

ιι. Hooker, “The Certainty and Perpetuity of Faith in the Elect,” Eccles. Pol­ity, pp. 1-13 and “Justification, Works, and how the Foundation of Faith is Over­thrown,” Eccles. Polity, pp. 14-76, respectively.

12. Eccles. Polity, p. 2.

13. Ibid., pp. 47-48 (emphasis supplied).

14. Ibid., II, 7, pp. 264-276.

15. Ibid., II. 8, pp. 276-282.

16. Ibid., II. 8, pp. 276-282.

17. Horton Davies, Worship and Theology in England: From Cranmer to Hooker, 1534-1603 (Princeton, 1970) p. xv.

18. Scriptural moral criteria for bishops and deacons are set forth in I Timothy 3; “bishoppe” in verse 1 in the English Calvinists’ Bible of Hooker’s time, the Ge­neva Bible, is marginally noted: “Whether he be Pastor or Elder.” “Bishop” was an Anglo-Saxon corruption of Latin episcopus, from the Greek word for overseer. It was the development of the office beginning in the primitive Church that gave to the later “overseer” the particular responsibilities and powers, temporal and spiritu- al—particularly the Sacraments of Ordination and Confirmation—that those called bishop came to have and those called presbyter did not.

19. Respectively, Reason is the soul of the law, The law always intends what agrees with reason, Nothing is licit which is contrary to reason. 7 Co. Rep. 7; Co. Litt. 78b; Co. Litt. 97b. See J. U. Lewis, “Coke’s Theory of Artificial Reason,” 84 Law Quarterly Review (1968) pp. 330-340 for a full and sensible discussion of Coke’s concept.

20. Original essays demonstrating such connections are collected in Constance Jordan & Karen Cunningham, eds., The Law in Shakespeare (Palgrave Macmillan, 2006).

21. The best treatment of New England covenant theology remains Perry Mill­er, The New England Mind (Boston, 1939).

22. Eccles. Polity, I. 1.2, p. 150.

23. Ibid., I. 8. 8, pp. 181-182.

24. Ibid., I. 10. 1, p. 188.

25. Ibid., I. 10. 4, p. 191.

26. 1 Elizabeth I, c. 1 and c. 2, respectively. Both acts remain largely in force, and the Book of Common Prayer was virtually unchanged until 1980 when the Church of England contracted the New Age itch to modernize, euphemize, and sterilize liturgical rites.

27. Thomas Erastus (1524-1583) was a Swiss-German Reformed Protestant, of the persuasion of Zwingli rather than Calvin, who in fact did not posit the “Eras- tian” notion of monarchical supremacy over the Church.

28. Eccles. Polity, IV 24.7, p. 429.

29. Eccles. Polity, V 6. 2.

CHAPTER 6: JAMES VI AND I

The Political Works of James I Reprintedfrom the Edition of 1616, Charles Howard Mc­Ilwain, ed. & intro., Harvard University Press, Cambridge, 1918; The Legal Classics Library, 1994.

1. Letters of King James VI & I, G. P. V Akrigg, ed. (Berkeley, 1984) pp. 336-337 (early 1615). Carr fell in 1615 on discovery that his wife had collaborated in poison­ing his former mentor, Sir Thomas Overbury, while Overbury was a prisoner in the Tower. The schoolmaster alluded to was the formidable George Buchanan.

2. Scottish Diaries and Memoirs 1550-1746, J. G. Fyfe, ed. (Stirling, n.d.) pp. 109­111.

3. Quoted in Antonia Fraser, KingJames VI of Scotland, I of England (New York, 1975) p. 104.

4. Quoted in Antonia Fraser, KingJames VI of Scotland, I of England (New York, 1975) p. 104.

5. David H. Willson, James VI and I (London, 1956) p. 36.

6. Ibid., p. 71.

7. Historical Collections, vol. I, John Rushworth, ed. (London, 1721) pp. 155­156.

8. Ibid., pp. 157-158.

9. Ibid., p. 160.

10. Bodleian Library, University of Oxford: MS Add. C. 302, fo. 18; AG ore tenus v. Moseley, Markehall, and Greene (Oct. 17, 1627), reported in BL Lansdowne MS 620, fos. 50-51. The minstrels testified they were not the author of the song, but had received copies from others.

11. A. Weldon, The Court and Character of King James (London, 1650).

12. The current consensus is that James's relationship with Villiers was actively homosexual; Villiers's biographer argues that it began in August 1615, well before the fall of Somerset. Roger Lockyer, Buckingham (London, 1981) p. 22.

13. Akrigg, p. 431, James to Buckingham [December 1623?].

14. Thomas G. Barnes, “Deputies not Principals, Lieutenants not Captains: the Institutional Failure of Lieutenancy in the 1620s,” War and Government in Britain, 1598-1650, M. C. Fissel, ed. (Manchester, 1991) pp. 82-83.

15. Ida Macalpine & R. A. Hunter, George III and the Mad Business (London, 1969) pp. 201-209.

16. Based on James's style of delivery-deliberate and not strongly emphasized, smartly paced rather than languid-each page of a speech to Parliament in the Politi­cal Works would require four to five minutes.

17. Wallace Notestein, “The Winning of the Initiative by the House of Com­mons,” British Academy Ralegh Lecture (London, 1924).

18. James followed the contemporary practice of beginning the new year on the Feast of the Annunciation, March 25, so that the period from January 1 to March 24 would be given as the previous year, hence the date in the title, Political Works, p. 269.

19. Political Works, p. 269.

20. Ibid., p. 274.

21. Ibid., p. 278.

22. Ibid., p. 280.

23. Ibid., p. 284.

24. Ibid., pp. 287, 289.

25. The point is discussed in the chapter on Sir John Fortescue, supra.

26. Political Works, pp. 290-291.

27. STC 5900. Despite its immediate fate, it went to subsequent editions, in 1637 and as late as 1701.

28. The Stuart Constitution, J. P. Kenyon, ed. (Cambridge, 1966) p. 12.

29. James's vivid disclaimer came back to haunt his heir. In the debates on sup­ply in the Parliament of 1628, the opposition leader, Sir Robert Phelips, quoted it to withhold supply, 2 April 1628, Commons Debates 1628, vol. II, R. C. Johnson & M. J. Cole, eds. (New Haven, 1977) p. 251.

30. Political Works, pp. 310-311.

31. Ibid., p. 318.

32. AG ex rel. Sir Richard Egerton v. Richard Brereton et al (June 29, 1614), two years before. The issue was whether Star Chamber could award damages; six voices said yes, four no. T G. Barnes, “A Cheshire Seductress, Precedent, and a ‘sore Blow' to Star Chamber,” On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, Morris S. Arnold et al., eds.(Chapel Hill, 1981) pp. 359-382.

33. See the essay on Sir Edward Coke, infra.

34. Quoted in Akrigg, p. 6.

35. Political Works, p. liii.

36. Scottish Diaries and Memoirs 1550-1746, pp. 109-111.

37. Jennifer M. Brown, “Scottish Politics 1567-1625,” The Rcign of James VI and

I, A. G. R Smith, ed. (London, 1973) p. 25.

38. Political Works, p. xlv.

39. Ibid., p. 19.

CHAPTER 7: FRANCIS BACON

The Elements of the Common Lawes of England, Branched into a Double Tract: The one Contayning a Collection of some principall Rules and Maximes of the Common Lawe, with their Latitude and Extent. Explicated for the more facile Introduction of such as are studiously addicted to that noble Profession. The Other the Vse of the Common Law, for preseruation of our Persons, Goods, and good Names. According to the Lawes and Cus- tnmes of this Land, By the late Sir Francis Bacon Knight, Lord Verulam and Viscount

S. Alban, Assignes of I. [John] More Esq., London, 1630 [STC 1134]; The Legal Classics Library, 1997.

1. Bacon, Elements of the Common Lawes, Preface.

2. Quoted in Catherine Drinker Bowen, Francis Bacon: The Temper of a Man (Boston, 1963) p. 194.

3. The last word to date is Judge Noonan's treatment of Bacon's receiving of gifts as Lord Chancellor, in John T Noonan Jr., Bribes (New York, 1988).

4. FrancisBacon, Apophthegms, in The Moral and Historical Works of Lord Bacon, Joseph Devey, ed. (London, 1852) p. 172.

5. W S. Holdsworth, A History of English Law, vol. V (London, 1945) pp. 395­396. The reading is most easily obtainable in James Spedding, R. L. Ellis, and D. D. Heath, eds., The Works of Francis Bacon, vol. VII (London, 1864) pp. 391-450.

6. Douglas Denon Heath, redactor of Bacon's legal writings in Works, had strong reservations about Bacon's authorship of The Use of the Law; see Works, XIV, pp. 363-368.

7. Bacon's own explanation of his vigor in the prosecution of Essex for his trea­son was published in 1604, and all of his biographers go into the incident in some detail. Whether seen as base betrayal of a friend and mentor or as the reluctant duty of the Queen's loyal servant, Bacon's advocacy was quite extraordinary. Breretonh Case saw Bacon as Attorney General in Star Chamber casting the prerogative so high on the basis of so few precedents as to be breathtaking—and nearly disastrous. Thomas G. Barnes, “A Cheshire Seductress, Precedent, and a ‘Sore Blow' to Star Chamber,” On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, M. S. Arnold et al., eds. (Chapel Hill, 1981) pp. 359-382.

8. See Daniel R. Coquillette, Francis Bacon (Stanford, 1992).

9. Moore's Reports, 817.

10. Bracton, Bk. I, ch. 8.

ιι. LatinforLawyers, 3d ed. (London, i960).

12. Samuel E. Thorne, Sir Edward Coke, 1552-1952 (Selden Society Lecture, Lon­don, 1957) p. 7. The reference to books means the Year Books, in which Coke sup­posedly found his ancient authorities.

13. These notes, along with a large collection of his own notes of trials in the Star Chamber, are numerous among Ellesmere's large manuscript corpus preserved in the Huntington Library, San Marino, California.

14. Bacon, Maximes, pp. 1-6.

15. Scottv. Shepherd (1773), 2 W Bl. 892 [96 ER 525].

16. Bacon,Maximes, Preface.

17. Ibid., Preface.

18. Bacon, De Augmentis, Aphorism 85, quoted in Holdsworth, p. 240 (Sped- ding's translation).

19. Bacon,Maximes, Preface.

20. “Touching the Compiling and Amendment of the Laws of England,” The Life and Letters of Francis Bacon, vol. VI, James Spedding, ed. (London, 1872) p. 67.

21. Bacon, DeAugmentis, Aphorism 86.

22. Ibid., Aphorism 82.

23. Allen D. Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, 2003) p. 291. Sir Nicholas Bacon, Francis's father, was Lord Keeper, 1558-1579, and one of Elizabeth's most trusted advisors. In rural Norfolk, where he was a powerful land­lord, Sir Nicholas had done business with Coke's stepfather Robert Bozoun. Coke knew Sir Nicholas's other sons, Francis's half-brothers, as friends, political allies, and valued clients.

24. Catherine D. Bowen, The Lion and the Throne (Boston, 1956), on Coke, is a more ambitious and searching book than her Francis Bacon: The Temper of a Man (Boston, 1963), but the latter is by virtue of greater accuracy and a modicum of historical command a more valuable work.

25. Life and Letters, VI, p. 70.

CHAPTER 8: SIR EDWARD COKE

Edward Coke, The First Part of the Institutes of the Laws of England; or a Commentary upon Littleton. Note the Names of the Author Only, but of the Law Itself, Vol. II, with additions of notes, reference, and proper tables by Francis Hargrave and Charles Butler, Esqrs. Of Lincoln's Inn, including also the notes of Lord Chief Justice Hale and Lord Chancellor Nottingham; and an analysis of Littleton, written by an un­known Hand in 1658-1659, Charles Butler, ed., 18th edition corrected, London, 1823; The Legal Classics Library, 1985.

1. Catherine Drinker Bowen, The Lion and the Throne (Boston, 1956) p. 535.

2. Ibid., p. 280. Mrs. Bowen translated cassis as shield, which is much too free a rendering; this is not the worst bit of literary license in the book.

3. i Institutes, fo. 280b.

4. The Lyon's Inn reading, which is extant, was on 27 Edw. I, De Finibus (1299). The Inner Temple reading, which was discontinued after the fifth lecture because of the plague, was on the Statute of Uses.

5. Calendar of Inner Temple Records, vol. I, F. A. Inderwick, ed. (London, 1896).

6. 1 Plowden, 21.

7. 1 Coke Rep., 88b (1579). Shelley is reported, in printed versions, by Dyer, Moore, and Anderson. Of the four reports, Coke's is patently the least reliable but the most frequently cited.

8. 1 Coke Rep., 113b.

9. J.H., The Compleat Clerk, 5th ed. (London, 1683) pp. 369-386. From the names of the counsel and other internal evidence the date of this settlement and its provenance can be established.

10. 3 Chan. Car. and 1-2 Swanson, 454. Strict settlement can still be used both to settle land consensually and to settle the profits from the alienation of the land. The great agricultural depression of the 1870's gutted many large estates, and what the free market did not do then death duties have done since to destroy the landed estate and hence render obsolete strict settlement.

11. BL Harleian MS 7193, fo. 16.

12. Coke, CJKB, and Hobart, CJCP, on reference from Star Chamber in Proc­tor’s Case (1614), rendered opinion that the question posed “must be determined by the precedents of the Court of Star-Chamber,” 12 Coke Rep. 118. For a treatment of precedent in this sense, see Thomas G. Barnes, “A Cheshire Seductress, Precedent, and a ‘Sore Blow' to Star Chamber,” On the Laws and Customs of England: Essays in Honor of Samuel, E. Thorne, M. S. Arnold et al., eds. (Chapel Hill, 1981) pp. 363-379.

13. Thomas G. Barnes, “Star Chamber Litigants and Their Counsel, 1596-1641,” Legal Records and the Historian, J. H. Baker, ed. (London, 1978) pp. 11-12.

14. Novum judicium non dat jus novum, sed declarat antiquum, judicium est juris dictum et per judicium jus est noviter revelatum quod diu fuit velatum, 12 Coke Rep., 42 (author's translation).

15. Inner Temple Library, Petyt MS 511, vol. 13, fo. 131v.

16. The confrontations between Coke and the King are succinctly treated in Allen D. Boyer, “Coke, Sir Edward (1552-1634),” Oxford Dictionary of National Biog­raphy (Oxford, 2004), sub. “Kings bench and chancery.”

17. Huntington Library, Ellesmere MS 1763, “Pro Marchiis Walliaef 3 Nov. 1608.

18. Boyer, “Coke,” OxfordDNB for the issues raised by Coke's resistance.

19. Barnes, “Cheshire Seductress,” pp. 379-382.

20. Ibid. See also Sir John Baker, “The Common Lawyers and the Chancery: 1616,” Law, Liberty, and Parliament: Selected Essays on the Writings of Sir Edward Coke, Allen D. Boyer, ed. (Indianapolis, 2004) pp. 254-281, and W J. Jones, “The Crown and the Courts in England, 1603-1625,” ibid., pp. 282-301.

21. See J. A. Guy, “The Origins of the Petition of Right Reconsidered,” Ibid., pp. 328-356.

22. Thomas Fuller, The Worthies of England, vol. II (London, 1682) p. 452.

23. The first volume of Allen D. Boyer's biographic and historiographical study of Coke has already set the early story straight. Allen D. Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, 2003).

24. Donald O. Wagner, “Coke and the Rise of Economic Liberalism,” Economic History Review, 1st series, vol. 6 (1935) pp. 30-44, and “The Common Law and Free Enterprise: An Early Case of Monopoly,” Econ. Hist. Rev. 1st. series, vol. 7 (1937), pp. 217-220. Barbara Malament, “The ‘Economic Liberalism' of Sir Edward Coke,” 76 Yale Law Journal (1967) pp. 1321-1358, convincingly demolishes Wagner's thesis.

25. Jean Beaute, Un Grand Juriste Anglais: Sir Edward Coke, 1552-1634, ses Idees Politiques et Constitutionelles (Paris, 1975).

26. Stephen D. White, Sir Edward Coke and the “Grievances of the Commonwealth” 1621-1628 (Chapel Hill, 1979) p. 23.

27. Parliamentary History, vol. II (London, 1807) col. 357.

28. LatinforLawyers, 3rd ed. (London, i960).

29. See the chapter on Francis Bacon, supra.

30. Records of the Governor and Company of the Massachusetts Bay in New England, vol. II, N. B. Shurtleff, ed. (Boston, 1853) p. 212.

31. 8 Coke Rep. 121a (1610). See T F. T Plucknett, “Bonham’s Case and Judicial Review,” Law, Liberty, and Parliament, pp. 150-185.

32. Quoted in H. T Colbourn, The Lamp of Experience (New York, 1965) p. 75.

CHAPTER 9: MICHAEL DALTON

The Countrey Justice, Containing the Practice of Justices of the Peace out of their Sessions: Gathered for the better Help of such Justices of Peace as have not been much conversant in the study of the Laws of this Realm: Now again enlarged, with many Precedents and Resolutions of the Quaere’s contained in the former impressions. By Michael Dalton of Lincolns Inne Esquire, and one of the Masters of the Chancery. Whereunto is also added by way ofAppendix under their proper heads all such Acts and Ordinances as are necessary to be known and put in execution by the Iustices of the peace made and published before the yeer 1655, Company of Stationers, London, 1655 [Wing STC D144]; The Legal Classics Library, 1996.

1. Nikolaus Pevsner, An Outline of EuropeanArchitecture (Harmondsworth, 1952) p. 19.

2. Unpublished; a copy in his hand is in the Houghton Rare Book Library at Harvard; a later rescission, also holograph, is in the All Souls Library.

3. Pollard and Redgrave STC 6205-6211, Wing STC DI43-DI50; Norma Lan­dau, TheJustices of the Peace, 1679-1760 (Berkeley, 1984) p. 334.

4. The Countrey Justice, Containing the Practice of the Justices of the Peace Out of their Sessions (London, 1655) Wing STC D144 (author's copy).

5. Records of Lincoln’s Inn, The Black Books, vol. II (London, 1898) p. 128.

6. Thomas G. Barnes, “Star Chamber Litigants and their Counsel,” Legal Rec­ords and the Historian, J. H. Baker, ed. (London, 1978) pp. 7-28.

7. Records of Lincoln’s Inn, p. 236.

8. Public Record Office: SP16/212, Liber pacis, Jan.-Feb. 1632, lists Dalton as JP for Cambridgeshire and as “unus magisteros Canc. ” On three extant lists of com­missions of the peace, 1621 and 1626, Dalton is listed as a JP but not as a Master of Chancery. For Masters, see W J. Jones, The Elizabethan Court of Chancery (Oxford, 1967) pp. 103-117.

9. Wilfrid R. Prest, The Rise of the Barristers: A Social History of the English Bar 1590-1640 (Oxford, 1986) p. 354.

10. Ibid., p. 354.

ιι. PRO: SP14/33, Liber pacis, April 1608.

12. PRO: C193/13/1, Crown Office entry book, Nov. 1621; he was also seventh Esquire JP. Lists between 1608 and 1621 are not extant.

13. PRO SP16/212, Liber pacis, July 1636.

14. STC 6212 (1623), 6213 (abridged, 1628), Wing D151-D154 (1662-1700).

15. British Library: Sloane MS. 4359.

16. Reports of Cases in the Courts of Star Chamber and High Commission, S. R. Gardiner, ed., Camden Society NS, vol. 39 (London, 1886) p. 273; The Court and Times of Charles the First, vol. II, T Birch, ed. (London, 1849) pp. 111-117.

17. PRO: C191/13/3, Liber pacis, Jan.-Feb. 1650; C193/13/4, Liber pacis, May 1652.

18. Countrey Justice, p. 183.

19. Ibid., p. 370.

20. Ibid., p. 33.

21. Ibid., p. 213.

22. Ibid., p. 214.

23. Ibid., p. 352.

24. Ibid., p. 400.

25. See J. H. Beale, A Bibliography of Early English Law Books (Cambridge, Mas­sachusetts, 1926) pp. 125-129.

26. STC 10969-10977.

27. STC 15163-15174. Lambarde's Perambulation of Kent (1576) is the consum­mate masterpiece of late Tudor county topography and historical geography.

28. William Lambarde, Eirenarcha (London, 1619), p. 34. The present author's 1619 copy of Eirenarcha is wormed, dog-eared, torn, scribbled in, etc., a vade mecum well used over many decades.

29. Countrey Justice, p. 22.

30. Thomas G. Barnes, Somerset 1625-1640: A County’s Government during the “PersonalRule” (Cambridge, Massachusetts, 1961) p. 58.

31. Countrey Justice, p. 89.

32. Ibid., pp. 415-418, variously and incorrectly headed.

33. Ibid., p. 417.

34. Ibid., p. 418 (author's translation).

35. Ibid., pp. 113-119.

36. For the Star Chamber case behind it, Thomas G. Barnes, “A Cheshire Se­ductress, Precedent, and a ‘Sore Blow' to Star Chamber,” On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, M. S. Arnold et al., eds. (Chapel Hill, 1981), pp. 359-382.

37. Thomas G. Barnes, “A Charge to the Judges of Assize, 1627/8,” Huntington Library Quarterly, vol. 24 (1961) pp. 251-256; for more routine charges, see Somerset Assize Orders, 1629-1640, Thomas G. Barnes, ed., Somerset Record Society, vol. 65 (Frome, 1959), appendix of documents related to assizes.

38. Thomas G. Barnes, “County Politics and a Puritan Cause Celebre: Somerset Churchales, 1633,” Transactions of the Royal Historical Society, 5th series, vol. 9 (1959) pp. 103-122.

39. Countrey Justice, pp. 58-62.

40. Ferdinando Pulton, De PacisRegis et Regni, 4th ed. (1623) fo. 42v.

41. Somerset Assize Orders, 1629-1640, no. 142; see also Thomas G. Barnes, “Star Chamber and the Sophistication of the Criminal Law,” The Criminal Law Review (London, June 1977) pp. 316-326.

42. See John H. Langbein, Prosecuting Cmne in the Renaissance: England, Ger­many, France (Cambridge, Massachusetts, 1974) pp. 6-43, 94-125. Professor Lang- bein finds pre-Marian statutory authority for magistrates' examinations in arrests involving lesser offenses. The author does not dispute that but argues that its con­tinuation after the Marian statutes in the elaborate form mandated by the Marian statutes for felony was supererogatory.

43. History of the Criminal Law of England, vol. II (London, 1883) p. 206.

44. This was the case with Sir Robert Heath, Chief Justice of the Common Pleas, who was dismissed for purely precautionary, even judicially prophylactic rea­sons in 1634. Thomas G. Barnes, “Cropping the Heath: The Fall of a Chief Justice 1634,” Historical Research 64 (1991) pp. 331-343.

45. Dr. Penny Darbyshire, Faculty of Law, Kingston University, personal letter to the author, 14 May 1996.

46. Thomas G. Barnes, “Law and Liberty (and Order) in Early Massachusetts,” The English Legal System: Carryover to the Colonies, William Andrews Clark Memorial Library Seminar (Los Angeles, 1973) pp. 69-70.

CHAPTER IO: WILLIAM HUDSON

[William Hudson] “A Treatise of the Court of Star Chamber,” Collectanea Juridica. Consisting of Tracts relative to the Law and Constitution of England, Vol. 2 [Francis Hargrave, ed.] E. & R. Brooke, London, 1792; The Legal Classics Library, 1986.

1. Statutes of the Realm, 16 Car. I, c. 10.

2. Somerset Assize Orders, 1629-1640, Thomas G. Barnes, ed., Somerset Record Soc., vol. 65 (Frome, 1959) pp. xviii-xx, for a description of criminal jury trial at as­sizes.

3. See Select Cases in the Council of Henry Vll, C. G. Bayne & W H. Dunham Jr., eds., Selden Soc., vol. 75 (London, 1958), reviewed by G. R. Elton in English Histori­cal Review, vol. 74 (1959) pp. 686-690, and Thomas G. Barnes in Speculum, vol. 34 (1959) at p. 650.

4. Compiled from List & Index to the Proceedings in Star Chamberfor the Reign of James I (1603-1625), 3 vols., Thomas G. Barnes, ed. (ABF, Chicago, 1975).

5. Thomas G. Barnes, “Mr. Hudson's Star Chamber,” Tudor Rule and Revolution: Essaysfor G. R. Elton from his American Friends, DeLloyd J. Guth & J. W. McKenna, eds. (Cambridge, Massachusetts, 1982) pp. 285-308 provides the evidence for this argument, and a fuller description of the treatise itself as well as Hudson's career.

6. Ferdinando Pulton, De Pacis Regis et Regni, 4th ed. (London. 1623) fo. 42v.

7. 9 Coke Rep. 55b.

8. BL Lansdowne MS 639, fo. 77; Folger Library MS Va.133, fo. 72v; Popham's Reports, 129; Public Record Office, STAC8/284/4.

9. See Thomas G. Barnes, “Star Chamber Litigants and their Counsel, 1596­1641,” Legal Records and the Historian, J. H. Baker, ed. (London, 1978) pp. 14-22 for a treatment of these Star Chamber litigation practices.

10. Hudson, Treatise, p. 226.

ιι. Thomas G. Barnes, “Due Process and Slow Process in the Late Elizabethan- Early Stuart Star Chamber,” American Journal of Legal History, vol. 6 (1962) pp. 221-249 and 315-346.

12. Hudson, Treatise, p. 239.

CHAPTER II: JOHN SELDEN

The Table-Talk of John Selden Esq with a biographical preface and notes by S. W. Singer Esq. William Pickering, London, 1847; The Legal Classics Library 1989.

1. David C. Douglas, English Scholars, 1660-1730 (London, 1951) p. 136.

2. The Oxford Dictionary of the Christian Church, F. L. Cross, ed. (London, 1958) p. 1362.

3. This claim was asserted first in 1925; Canada is the only Arctic nation that has posited and consistently maintained a sectoral claim to the Pole. See Thomas G. Barnes, “‘Canada, True North,' A Here There or a Boreal Myth?” The American Review of Canadian Studies 19 (1989) pp. 369-379.

4. Table Talk, p. 146.

5. Quoted in The Stuart Constitution: Documents and Commentary, J. P. Kenyon, ed. (Cambridge, 1966) p. 107.

6. Ibid., p. 109.

7. Commons Debates 1628, vol. II, R. C. Johnson & M. J. Cole, eds. (New Haven, 1977) pp. 154-155.

8. Aubrey’s BriefLives, O. L. Dick, ed. (London, 1960) p. 271. Selden was one of the more than 1,200 lawyers who practiced in Star Chamber between 1603 and 1625. He signed pleadings in two cases, neither of them remarkable. This incidence in a court where virtually all barristers pleaded at one time or another and the vast majority no more than once or twice is revelatory.

9. Table Talk, p. 228.

CHAPTER 12: JOHN MILTON

Areopagitica, A Speech of Mr. John Milton for the Liberty of Unlicensed Printing, to the Parliament of England, James Russell Lowell intro., The Grolier Club, New York, 1890; The Legal Classics Library, 1992.

1. Eric Hoffer, The True Believer (New York, 1951) p. 140. In fact, Milton did not quite have a “draft in pocket,” but rather only a notional scheme that can be dated about 1642.

2. Milton, Samson Agonistes, line 1745.

3. Milton, Sonnet XVI, On His Blindness.

4. David Loewenstein, Milton and the Drama of History: Historical Vision, Icono­clasm, and the Literary Imagination (Cambridge, 1990) p. 49.

5. Milton, An Apology against a Pamphlet called a Modest Confutation (London, 1642) pp. 58-59 [Wing sTc M2090].

6. Areopagitica, p. 175.

7. Milton, Eikonoklastes (London, 1650) Preface [Wing STC M2114].

8. Milton, The Tenure of Kings and Magistrates (London, 1650) [Wing STAC M2183].

9. Ibid., p. 11.

10. Aubrey’s Brief Lives, O. L. Dick, ed. (London, 1960) p. 203. Aubrey's vi­gnettes date from the 1670’s to the 1690’s.

11. Historical Collections, Pt. III, vol. ii, John Rushworth, ed. (London, 1721) p. 335.

12. The public records of the age bear Prynne’s hand—mostly in excisions. From an assize order book he cut out an order to use in preparing the impeachment trial of Archbishop Laud in 1645 and from the Protectorate Council’s order book he sliced the order readmitting Jews to England in order to prepare his attack on that action; Somerset Assize Orders 1629-1640, Thomas G. Barnes, ed., Somerset Record Society, vol 65 (Frome 1959) pp. x-xi. In 1662, Prynne published a sterling study of the history of Parliament, BreviaParliamentariaRediviva. See W M. Lamont,Mar­ginal Prynne (London, 1963) for Prynne’s extraordinary career.

13. Houghton Library Harvard: Eng.MS.1359, fo. 58, AG v. Prynne et al., hear­ing, 13 Feb. 1634. The author has transcribed and edited this unique manuscript re­port, which will shortly be published with introduction by the Ames Foundation.

14. Bodleian Library, MS Rawlinson D. 720, fo. 48v.

15. A Decree of Starre-Chamber concerning Printing (London, 1637) Art. IV [STC 7757].

16. Cornelius Burges, A nother Sermon Preached to the Honorable House of Com­mons November the fifth, 1641 (London, 1641) p. 65. [Wing STC B5668].

17. David Wootton, “From Rebellion to Revolution: The Crisis of the Winters of 1642/3 and the Origins of Civil War Radicalism,” English Historical Review, 105 (1990) pp. 668-669. The Putney Debates took place among the junior officers and rank-and-file of Cromwell’s army in 1648, and produced the radical republican man­ifestos and avowedly democratic arid populist political movements to implement them epitomized by the Levelers, so-called because they would level down society.

18. Dictionary ofNationalBiography, vol. XIII (London, 1921-1922) p. 476.

19. Areopagitica, p. 53.

20. Ibid., pp. 55-56.

21. Ibid., p. 58.

22. Ibid., pp. 64-66.

23. Ibid., p. 69.

24. Ibid., p. 70.

25. Ibid., pp. 74-75.

26. Ibid., p. 81.

27. Ibid., p. 93.

28. Ibid., p. 101.

29. Ibid., pp. 102-103.

30. Ibid., pp. 118-120.

31. Ibid., p. 123.

32. Ibid., pp. 147-149.

33. Ibid., p. 149.

34. Ibid., pp. 150-159.

35. Ibid., p. 163.

36. Ibid., pp. 79-80.

37. Ibid., pp. 96-97 (emphasis supplied).

38. Ibid., pp. 174-175.

39. Ibid., pp. 185-186.

40. Ibid., p. 167.

41. Library, University of Illinois, Champaign-Urbana, Pre-1650 MS. 168; given in extenso here.

CHAPTER 13: LAWS AND LIBERTIES

The Book of the General Lauues and Libertyes concerning the Inhabitants of the Mass- chusets Collected out of the Records of the General Court for the Several Years wherein they were Made and Established, And now revised by the same Court and disposed into an Alphabetical order and published by the same Authoritie in the General Court held at Boston the fourteenth of the first month Anno 1647, Cambridge, Massachusetts, 1648. Reprinted from the Copy of the 1648 Edition in the Henry E. Huntington Library, Harvard University Press, Cambridge, Massachusetts, 1929; The Legal Classics Li­brary, 1982.

1. Thomas G. Barnes, “Law and Liberty (and Order) in Early Massachusetts,” The English Legal System: Carryover to the Colonies (Clark Library, Los Angeles, 1975) pp. 63-89. This essay served as the Introduction to The Legal Classics Library edi­tion of The Lawes and Libertyes.

2. William J. Bouwsma, Venice and the Defense of Republican Liberty (Berkeley, 1968) p. 11.

3. A license and passport in Latin for the vessel Sparrow, issued to John Win­throp, Jr., for a voyage to Bermuda, by the governor, John Winthrop, Sr., began properly enough, “By virtue of letters patent of our most serene lord Charles, King of England, etc., I John Winthrop, Esquire, Governor of the colony of Massachu­setts in New England....” Yet the patent ended not with the regnal date, but mere­ly “Dated twentieth day of December Anno Domini 1638.” This is about the most royalist document to be found in the early records of the Bay Colony, and since it was for use in international commerce it could not help but invoke the authority by which it was issued and which alone would give it any weight, either in Bermuda or on the high seas. American Antiquarian Society (Worcester, Massachusetts): manu­script scrivener’s book of Thomas Lechford, 1638-1641, p. 29 (author's translation).

4. Thomas Lechford, Plain Dealing: or NewesfromNew-England (London, 1642) Proheme [Wing STC L810].

5. Ibid., p. 68.

6. Ibid., pp. 78-80.

7. Lawes &Libertyes, pp. 56-59.

8. Ibid., p. 29.

9. Ibid., p. 55.

10. Quoted in G. L. Haskins, Law and Authority in Early Massachusetts (New York, i960) p. 141.

ιι. Collections of the Massachusetts Historical Society for 1798 (Boston, 1798) p. 187.

12. Lawes & Libertyes, Proheme.

13. Records of the Governor and Company of the Massachusetts Bay, vol. I, N. B. Shurtleff, ed. (Boston, 1853) p. 12.

14. Lawes &Libertyes, pp. 5-6. The provision for Man-slaughter relates to homi­cide se defendendo, in self-defense, rather than for the traditional felony of that name, which is provided for under Capital Lawes.

15. Ibid., pp. 17-18.

16. Lechford, Plain Dealing, p. 25.

17. See Barnes, “Law and Liberty (and Order) in Early Massachusetts”; also the author’s introduction to the Huntington Library’s facsimile edition of the Lawes andLibertyes (San Marino, 1975).

CHAPTER 14: TRIAL OF CHARLES I

Trial of KKing Charles the First, J. G. Muddiman, ed., foreword by the Earl of Birken­head, William Hodge & Co., Edinburgh and London, [1928]; The Legal Classics Library, 1990.

1. Trial of Charles I, p. 70.

2. See the chapter on James I, supra.

3. Ibid., quoting BasilikonDoron (1599).

4. Chronique de La Revolution, 1788-1799, Jean Favier et al., eds. (Paris, 1989), p. 313 (the author’s translation). See especially the trial in extenso in David P. Jordan, The King's Trial: The French Revolution vs. Louis XVI, The Notable Trials Library, Gryphon (New York, 1993).

5. Trial of Charles I, p. 129.

6. Ibid., pp. 82-83.

7. See the discussion of James I, supra.

8. Trial of Charles I, p. 82.

9. A case in point is Maurice Ashley, Charles I and Oliver Cromwell: A Study in Contrasts and Comparisons (London, 1987). Ashley, despite a stout bias in favor of Cromwell, tried hard to do equal justice to Charles, and failed not from prejudice but from an ignorance not of his own making.

10. Writings and Speeches of Oliver Cromwell, 4 vols., Wilbur Cortez Abbott, ed. (Cambridge, Massachusetts, 1937-1947) is the essential source. But Thomas Car­lyle’s Oliver Cromwell’s Letters and Speeches, 3 vols. (London, 1857) provided plenty of raw material for previous studies.

ιι. A broad and thoughtful study of Charles as patron is Jerry Brotton, The Sale of the Late King’s Goods: Charles I and His Art Collection (London, 2006).

12. Thomas G. Barnes, “Prerogative and Environmental Control of London Building in the Early Seventeeth Century: The Lost Opportunity,” 58 California Law Review (1970) pp. 1332-1362. The bold attempt did not survive the Revolu­tion.

13. Cicely Veronica Wedgwood, The King’s Peace, 1637-1641 (London, 1955).

14. Compare Thomas G. Barnes, Somerset 1625-1640: A County’s Government dur­ing the Personal Rule (Cambridge, Massachusetts, 1961) with L. J. Reeve, Charles I and the Road to Personal Rule (Cambridge, 1989) and Conrad Russell, The Causes of the English Civil War (Oxford, 1990). What the author saw only through a glass darkly from Somerset, Reeve and Russell see clearly from the perspective of White­hall.

15. Mark Charles Fissell, The Bishops’ Wars: Charles I^,s Campaigns against Scot­land, 1638-1640 (Cambridge, 1994), pp. 1-2.

16. ConradRussell, The Fall of the British Monarchies, 1637-1642 (Oxford, 1991) p. 530.

17. John Morrill, “Charles I, Tyranny and the English Civil War,” The Nature of the English Revolution (London, 1993) p. 306.

18. The Political Works of James I, especially The Trew Law of Free Monarchies and Basilikon Doron.

19. John Rushworth, Historical Collections, vol. VII (London, 1721) pp. 1383­1384.

20. C. V Wedgwood, “The Trial of Charles I,” The English Civil War and After, 1642-1658, R. H. Parry, ed. (Berkeley, 1970) p. 42.

21. He never conceded that he had rendered less than the fullest effort, even when at the very last he observed that had he to do what he had done over again, he would do it differently. Trial of Charles I, Appendix D, Charles’s speech on the scaffold.

22. Clarendon, History of the Rebellion and Civil War in England, vol. II (Ox­ford, 1704) p. 243.

23. Quoted in Barnes, Somerset 1625-1640, p. 304.

24. John Rushworth, Historical Collections, vol. IV (London, 1721) p. 754.

25. Ibid., pp. 754-755. Whitelocke, one of the managers of Strafford’s impeach­ment in 1641 and a Parliamentarian stalwart who served the Commonwealth and Protectorate in high office, would have no part of Charles’s trial. He died of old age in 1675.

26. John Buchan, Oliver Cromwell (London, 1934) p. 313.

CHAPTER 15: MATTHEW HALE

[Sir Matthew Hale] The History and Analysis of the Common Law of England, Written by a Learned Hand, J. Nutt printer. In the Savoy, London, 1713; The Legal Classics Library, 1987.

1. Quoted in “The Life of Matthew Hale,” in The History of the Common Law of England, Charles Runnington, ed., 6th ed. (London, 1820) p. xlvi.

2. Pierre de la Ramee (Petrus Ramus), 1515-1572, was a French logician whose attack on Aristotelian logic and adherence to Reformed Protestantism made him a walking pincushion of persecution (he would die during the Massacre of St. Bar­tholomew's Day). Ramist logic, essentially rhetorical, can work both deductively and inductively, allowing analysis of a system to start with either end, the greatest or the least. Ramus's little treatise published in English in 1574 [STC 15246] with sub­sequent editions to 1632 had enormous intellectual influence in English theological and legal writing. Even Milton wrote a little treatise on Ramus. For an apprecia­tion of the thought of the rhetoricians of early modern England—in particular, the poets, the philosophers, and the lawyers—the essential source remains Walter J. Ong, Ramus, Method, and the Decay of Dialogue: From the Art of Discourse to the Art of Reason (Cambridge, Massachusetts, 1958).

3. Rolle's Abridgment of Year Book cases and later reports, systematic, intel­ligently arranged, copious, and accurate, has been termed “one of the lighthouses in the history of our law,” Percy Winfield, The Chief Sources of English Legal His­tory (Cambridge, Massachsetts, 1925) p. 239. Rolle was a Parliamentarian Justice of King's Bench, 1648-1655, who had resigned his office because of Cromwell's interfer­ence with justice; the parallel to Hale's own career and his scrupulosity commended Rolle to him. Hale's preface lauded not only Rolle's learning and the usefulness of his collection, but also his integrity and judiciousness.

4. Thomas Sprat, founder-member and historian of the Royal Society, quoted in J. Blum, R. Cameron, Thomas G. Barnes, The European World, A History (Bos­ton, 1977) p. 405.

5. Barbara Shapiro, “Law and Science in Seventeenth-Century England,” Stan­ford Law Review 21 (1969) pp. 761-762. This insight is developed at greater length and over a wider front in her book, Probability and Certainty in Seventeenth Century England: A Study of the Relations between Natural Science, Religion, History, Law, and Literature (Princeton, 1983).

6. Editor's introduction to Sir Matthew Hale, The History of the Common Law, Charles M. Gray, ed. (Chicago, 1971) p. xvi.

7. William Hudson, A Treatise of the Court of Star Chamber, The Legal Classics Library (1986) p. 1.

8. See the discussion in the chapter dealing with Michael Dalton, p. 149.

9. Runnington, p. xiv.

10. Conrad Russell, The Crisis of Parliaments: English History 1509-1660 (London, 1971) p. 397.

11. Gray, p. xxxvi.

12. Shapiro, “Law and Science,” p. 746. Prof. Shapiro lumps the History with the Analysis for her purposes—that yoking, the work of the 1713 editor and not Hale, obscures the fact that Hale undertook them to very different ends, and clearly intended to publish the Analysis when he had completed it (which he never did).

13. D. E. C. Yale, Hale as Legal Historian, Selden Society Lecture (London, 1976).

14. F. W Maitland, Collected Papers, vol. II, H. A. L. Fisher, ed. (Cambridge, 1911) p. 5; W S. Holdsworth, A History of English Law, vol. VI (London, 1924) p. 586.

15. Thomas Hobbes, The Elements of Law Natural and Political, Ferdinand Ton­nies, ed. (Cambridge, 1928) p. 81.

16. “Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes His Dialogue of the Law,” Appendix III, in Sir William Holdsworth, A History of English Law, vol. V (London, 1924) p. 500. Hobbes's tract, very much of a piece with Leviathan in its specific premise (1651), was published in 1681, two years after his death, a contribu­tion to the Exclusion Crisis. However, it appears to have circulated earlier in learned circles, which would account for Hale's critique of it.

17. Gray, p. xxxvi.

18. Gilbert Burnet, Lives of Sir Matthew Hale and John Earl of Rochester (London, 1829)-the Hale life was first published in 1682. See also Burnet's History of His Own Time, vol. I, Osmund Airy, ed. (Oxford, 1897).

19. Runnington, p. xl.