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

The Structure of English Common Law in the Seventeenth Century 73
//. The Structure of Finch's Nomotexnia and Law
In 1613, eight years after Cowell's Institutiones appeared, Henry Finch
published his own 'description' of the whole of English common law under
the title Nomotexnia, the 'art' of law. 60 Finch put this work in law French, but in
1627, two years after his death, an English version appeared with the title Law,
or a Discourse thereof. 61 Wilfrid Prest has shown that Nomotexnia was in fact
Finch's final version and the later published Law represents an earlier draft. 62
As it happened, the English draft sold much better than the French version
Finch meant us to have, and will be the primary focus of this analysis.
What students at the Inns of Court encountered was more diagram than
description, an extremely elaborate web of divisions and distinctions extending
from the most abstract concepts of divine and human law down to the level
of individual crimes, estates, writs and procedures. In both versions, Finch
expanded the brief opening discussion of natural and civil law, found in
Justinian's Institutes and similar works, into an entire Book I. Before taking
up English 'positive' law, he set forth more than a hundred consecutively
numbered maxims of 'native' law, universal principles of natural law and the
law of reason, including those made known through other disciplines and those
proper to the law itself. In Book II Finch gave only a brief opening chapter to
the realm and 'persons' of England. He then proceeded through what he called
the two 'parts' of the law: the rest of Book II on 'possessions' and Book III on
'punishments'. Rook IV, fully half the work, concerned 'actions'. Finch's Law
thus approximated the Roman order: persons (here in vestigial form); things;
some obligations (of the non-contractual sort); and lastly, actions. 63
When set alongside Justinian's Institutes, Cowell's Institutiones and Bracton,
Finch's departures seem more a matter of terminology and orientation than
of basic structure. In his view, persons, things and human conduct were not,
strictly speaking, 'parts' of the law; they existed in the world apart from the
law. Persons thus were treated first, as part of the commonwealth whose law
it was, not part of the law itself. Again, the law was not composed of 'things',
but concerned the 'possession' of things. 64 It was not composed of offences
or wrongs, but of their 'punishment'. Finch set out to 'describe law', and
60
H. Finch, Nomotexnia: cestascavoir, Un Description del Common Leys Dangleterre solonque les
Rules del Art (1613).
61
H. Finch, Law, Or, a Discourse thereof (1627, rptd. 1759).
62
Prest, 'Dialectical Origins', 341-43.
63
Watson, 'Justinian's Institutes and Some English Counterparts', 184-85, does not follow Prest's
chronology, and finds greater differences among the two versions, but agrees that Law resembled
Justinian's Institutes more closely.
64
The distinction cannot be pressed too far. To Finch's ear, 'things' in English may have sounded
inelegant, and choses in French not clearly applicable to land. 'Possessions', as a name for the aggregate
that a contemporary civilian called 'things' and a later lawyer 'property', had good common law
precedent: it was the topmost category in the chart appended to many sixteenth-century editions of
Littleton's Tenures.