Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

The Structure of English Common Law in the Seventeenth Century 63
writings. 10 Mastery of this legal knowledge was said to come only after
decades of diligent apprenticeship. 11 To one who had studied long enough,
the rational structure of the common law finally became apparent. 12
By 1600, more lawyers were looking for a quicker and surer way to acquire
this common erudition. Perhaps the number of lawyers or would-be lawyers
had grown too large to perpetuate an oral tradition of such complexity.
Whatever the cause, students at the Inns of Court relied more on private
reading of printed books and of manuscripts than on the old learning
exercises, based as they were on oral transmission of legal knowledge and
skill. 13 Students used any sort of books they could find. Much of the legal
literature at the time treated the common law, the body of legal knowledge, as
consisting principally of propositions that could be set forth in brief sentences.
The writers referred to such propositions variously as 'principles', 'maxims',
'grounds' or 'rules'. These principles were very narrow and detailed, however,
and there seemed to be no end of them. Some beginners must have despaired
of finding out all these bits of legal knowledge, or of making sense of them as
parts of a working system, or of putting them into some ordered framework
in which they could be found again. 14 If the common law did indeed have a
rational structure, might not one of the learned elders of the profession set
out that structure in writing, so that students could gain some view of the
whole of their intended discipline?
In the books that law students used in 1600, one could find several
competing schemes for organizing the content of the common law - the
writs, the tenures, the alphabet and the chronological order of the kings'
reigns - but very little consistency in the use of any of these methods. These
elementary works, however, all seemed to hint at the existence of a single
structure into which the principles would fit. The books all made mention of a
number of 'categories' that appeared to encompass all actions, all possessions,
all persons or all law, but rarely explained what these categories contained or
10 Baker, Selden Society, xciv (1978), 123-24, 161; Baker, 'English Law and the Renaissance',
57. 11 See, e.g., J. Fortescue, De Natura Legis Naturae, pt. 1, ch. 43, The Works of Sir John Fortescue,
T. (Fortescue), Lord Clermont, ed. (1869), 102 (twenty years study); W. Staunford, An Exposicion of
the Kinges Prerogatiue (1657), fo. iiii ('the knowledge of the said laws is placed so farre of, the iourney
thereunto so exceeding long and paineful'); E. Coke, The First Part of the Institutes of the Lawes of
England, or, A Commentarie upon Littleton (1628), 97b; E. Coke, Preface to The Third Part of the
Reports, new ed. (1826), xxxv; W.R. Prest, The Inns of Court under Elizabeth I and the Early Stuarts,
1590-1640 (1972), 141-42.
12 Simpson, 'Rise and Fall of the Legal Treatise', 638; H. Wheeler, "The Invention of Modern
Empiricism: Juridical Foundations of Francis Bacon's Philosophy of Science', Law Lib. Jour., Ixxvi
(1983), 107.
13 See, e.g., Prest, Inns of Court, 132, 140-41; cf. Baker, Selden Society, xciv (1978), 131 (early
sixteenth century). On the older oral tradition see E.G. Henderson, 'Legal Literature and the Impact
of Printing on the English Legal Profession', Law Lib. Jour., Ixviii (1975), 291.
14 Prest, Inns of Court, 142; Prest, 'Dialectical Origins', 327; Simpson, 'Rise and Fall of the Legal
Treatise', 638; Ives, 'Common Lawyers', 197; Rodgers, 'Humanism, History, and the Common Law',
153-54; C. Hill, Intellectual Origins of the English Revolution (Oxford, 1965), 227-31.