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

74 Legal History in the Making
understood the difference between his limited task and the ambition of other
jurists to describe the whole world of persons, things and human conduct from
their legal perspective.
Consistent with this approach, Finch's treatment of 'persons' in both
versions was very short. Cowell's Institutiones, by contrast, dwelt quite a bit on
the Year Book learning about villein status, bastardy, marriage and wardship,
all under the general rubric of 'persons'. The principal distinctions, according
to Justinian and Cowell, were between the free and the unfree, between
independent and dependent persons. Finch treated the few remaining rights
of lords over their villeins and wards under the category of 'hereditaments'
within his treatment of possessions. He kept a law of persons as the first
category, but for him the two chief distinctions among persons in English
law were first the division between the king and his subjects, and second
that between natural persons and bodies politic or corporations. Neither
distinction figured in Justinian's Institutes. 65
Of Finch's two ways of classifying persons, the first - sovereign and subject
- was clearly central to his conception of the shape of English law. In nearly
every part of his Nomotexnia and Law, Finch distinguished the special rules
that applied to the king, 'prerogative', from the statutes and case law that
pertained to everyone else. This division substituted, in a way, for a publicprivate
distinction, which is almost wholly absent in Finch's scheme. On the
continent jurists had been criticizing the Institutes' treatment of persons for
its failure to emphasize the differences between men and women, clergy and
laity, Christians and non-Christians and noblemen and commoners. 66 Finch
took a very different approach, in which all such differences in the conditions
of persons diminished in significance when compared to the vast gulf between
the sovereign and the subject. Finch left the impression that, given the sheer
number of exceptions and special rules devised for the king's prerogative,
everyone else was, comparatively speaking, equal before the law. 67
In treating possessions Finch kept the major distinctions drawn by Littleton.
Contracts did not stand out as the major category they had been in Cowell's
Institutiones, but were made subsidiary to the types of personal chattels. He
defined a contract restrictively, as 'a mutual agreement for the very property of
65 In classical Roman law, a 'person' was a human being. Beginning in the twelfth century, canonists
and civilians treated corporations first as fictive persons and finally as a special type of legal 'person'.
See, e.g., P.W. Duff, Personality in Roman Private Law (Cambridge, 1938), 48-50; J. Canning,
The Political Thought of Baldus de Ubaldis (Cambridge, 1987), 186; J.P. Canning, 'The Corporation
in the Political Thought of the Italian Jurists of the Thirteenth and Fourteenth Centuries', Hist. Pol.
Thought, i (1980), 15.
66 Jolowicz, Roman Foundations of Modern Law, 69; Kelley, 'Gaius Noster', 628, 632 (Alberigo,
Eguinaire Baron).
67 Finch's earlier religious writing similarly rejected Old Testament laws based on personal distinction
between free and slave, citizen and alien, clergy and laity, etc., such 'respect of persons being
extinguished with us'. H. Finch, 'A Conference or Reformation', quoted in Prest, 'The Art of Law',
99.