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The Dialectical Origins of Finch's Law

Published online by Cambridge University Press:  16 January 2009

Wilfrid Prest
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Extract

In his Analysis of the Laws of England, Blackstone briefly assesses the work of those of his predecessors “who have laboured in reducing our laws to a system.” Glanville and Bracton were overburdened with ancient learning; the abridgements of Fitzherbert and Brooke “merely alphabetical in character”; Francis Bacon's Elements “purposely avoided any regular order”; Coke's Institutes “are unfortunately as deficient in method as they are rich in matter.” However, “Sir Henry Finch's discourse of law is a treatise of a very different character; his method is greatly superior to all that were before extant; his text is weighty, concise and nervous; his illustrations are apposite, clear and authentic.” Indeed by Blackstone's own account it would seem that but for the abolition of military tenures and the disuse of real actions, which had rendered “near half of the book obsolete,” Finch's “happy progress in reducing the elements of the law from their former chaos to a regular methodical science” might have provided the scheme for that “proposed course of academical lectures” which was the immediate source of the Commentaries on the Laws of England.

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The Cambridge Law Journal , Volume 36 , Issue 2 , November 1977 , pp. 326 - 352
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Copyright © Cambridge Law Journal and Contributors 1977

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References

1 Sir William Blackstone, Tracts chiefly relating to the Antiquities and Laws of England (1771), pp. iv–vi. Finch's Law headed the list of books recommended by Blackstone to those attending his course of private lectures at Oxford from 1753: Holdsworth, W. S., “Some Aspects of Blackstone and his Commentaries” [1932] 4 C.L.J., p. 272.CrossRefGoogle Scholar

2 Holdsworth, History of English Law, v., pp. 399–401.

3 De Laudibus Legum Angliae, ed. , Chrimes (1942), pp. 20–23.Google Scholar

4 Fitzherbert, La Nouvelle Natura brevium (1567, first published ? 1531), sig. Alv; Rastell, Collection of entrees (1566), [f.1v].

5 Cf. William Staunford, An Exposition of the Kinges Prerogative (1573), sig. Aiiii; Sir John Croke, preface to Keilway's Reports (1602), sig. a. In the Epilogue to his Eirenarcha (1581), at p. 511, William Lambarde acknowledges that “I shall seeme to those that be maisters in Arte and Methode, not to have thoroughly observed their rules. …” See also the epistle dedicatory to Roger Rawlyns, Cassius of Parma his Orpheus (1587).

6 Cf. Jardine, Lisa, “The Place of Dialectic Teaching in Sixteenth-Century Cambridge” (1974) 21 Studies in the Renaissance pp. 31–62CrossRefGoogle Scholar, at p. 60; Howell, W. S., Logic and Rhetoric in England, 1500–1700 (1956), pp. 173–248.Google Scholar

7 The short Latin tract Principia sive Maxima legum Angliae (1543) is a compilation concerned mainly with the rules of descent; no authorities are cited and the work seems to have been intended as much for a lay as a professional audience.

8 I hope shortly to publish a study of Finch's non-legal writings. The DNB entry is corrected and supplemented by the forthcoming History of Parliament volume for the Elizabethan period; I am most grateful to the Secretary of the History of Parliament Trust, Mr. E. L. C. Mullins, for permission to consult the type-script file on Finch held by the History of Parliament Trust.

9 Bodl. MS. Rawlinson c. 43.

10 Cf. B.L. MS. M485/5 (Hatfield MS. vol. 23, pt. 90), Henry Finch to Robert Cecil, 18 October 1593.

11 Cf. DNB, s.v. Sidney; Howell, op. cit., 205, 222.

12 Ong, W. J., Ramus, Method, and the Decay of Dialogue (1958), p. 8Google Scholar, et passim. Other valuable discussions of Ramus and sixteenth-century dialectic will be found in Hannaway, Owen, The Chemists and the Word (1975), pp. 124–134Google Scholar, and Jardine, Lisa, Francis Bacon: Discovery and the Art of Discourse (1974), pp. 1–65.Google Scholar

13 Peile, John, Biographical Register of Christ's College, volume I 1448–1665 (1910), p. 122Google Scholar; B.L. MS. Sloane 2737, ff. 1v–2v; Ong, op. cit., pp. 183, 200, 265–266.

14 Howell, op. cit., p. 179.

15 Ong, op. cit., pp. 177–178; MS Rawlinson c.43, f.2.

16 Ong, op. cit., pp. 244–245, 258–262.

17 MS. Rawlinson c. 43, ff. 2–3.

18 Longleat MS. Whitelocke papers, vol. 30 (microfilmed by E. P. Microfilm Limited, 1971–72, reel 15).

19 C.U.L. MS. LI. 3.6, ff. 1v, 38.

20 The correct order would appear to be ff. 39–39v, 44, [44v blank], 45–45v, 48–51v, 40v–42, 40, 42v, 46–47v, 52–53 et seq.

21 Cf. the list of chapter headings printed in Appendix (B) (below). It will be noted that Book I, Chap. 6 is followed immediately by an untitled chapter dealing with estates and the following chapter heading is “The 2 Booke Cap: 3 of Landes.” There is some misnumbering of chapters in Book 3, and several garbled passages in the text itself (f.11v, of Villeines; ff. 18–18v, of Actions).

22 C.U.L. MS. LI. 3.7, f. 154 (cf. also f. 178v, claim that Lollards were not heretics).

23 Ibid., ff. 7–7v, 9, 10, 35, 85, 178v.

24 Bodl. MS. Eng. misc. e. 476, f. v.

25 Foster, Joseph, Alumni Oxonienses, 1500–1714, p. 1166.Google ScholarGray's Inn Admissions Register, ed. Foster (1889), p. 102; DNB, s.v. Fuller; Neale, J. E., Elizabeth I and her Parliaments, 1584–1601 (1958), pp. 272, 282, 289.Google Scholar

26 Folger Shakespeare Library, MS. V.a. 320, ff. 1, 80.

27 Bodl. MS. Jones 29. HMC 7 Rep., 515, notes what seems to be another copy (with a different title for Chap. I, Book III) among the Finch manuscripts at Burley-on-the-Hill; this item does not appear to be among the deposit of Finch papers from that collection held at the Leicestershire County Records Office.

28 MS. Rawlinson c. 43, f. 10.

29 MS. Eng. misc. e. 476, ff. 66–67.

30 Cf. Kocher, Paul, “Francis Bacon on the Science of Jurisprudence” (1957) 18 Journal of the History of Ideas, pp. 20–23.CrossRefGoogle Scholar

31 Cf. Pearson, A. F. Scott, Thomas Cartwright and Elizabethan Puritanism 1535–1603 (1925), pp. 90–92.Google Scholar

32 MS. Rawlinson, c. 43, f. 21v.

33 Ibid., ff. 12v, 13v, 26–26v, 31.

34 MS. Eng. misc. e. 476. ff. 2–2v.

35 Cf. Law, p. 78; Nomotechnia, Book III (unfoliated) “Del Petit Treason,” “Del Trespasse vi,” “Del offences al publick” and ff. 26v, 28v.

36 17 Eliz., Dyer, 338b–339a; 5 Reports, 81a; Bodl. MS. Eng. misc. e. 476, f. 9; Folger MS. V.a. 320, ff. 8v–9; Law, p. 64; Nomotechnia, f. 16.

37 Register of the Stationers' Company, ed. Arber, iii. 668. (Miss K. Pantzer editor of the revised STC, informs me that this reference will be transferred to Nomotechnia in the forthcoming first-volume of the revision.)

38 Nomotexnia, sig. [¶ iv].

39 Ibid., sigs [¶ iv–ivv); Ong, op. cit., p. 229.

40 Nomotexnia, sigs. [¶ ivv–v].

41 Ibid. ff. 3–3v. Finch's reference to Aristotle may have been intended to placate conservative critics of his logical method, although of course Ramus himself was not an implacable anti-Aristotelian.

42 The DNB confuses Finch's patent as King's Serjeant-at-Law (1616) with his previous creation as serjeant in 1614; cf. William Dugdale, Origines Juridiciales (1666), p. 103; Moir, T. L., The Addled Parliament of 1614 (1958), pp. 50, 148Google Scholar; Mitchell, W. M., The Rise of the Revolutionary Party in the English House of Commons 1603–1629 (1957)Google Scholar, lists Finch (although confusing him with his nephew, Sir Heneage) among the “most active committee members” for the court interest in the 1614 parliament. [The present author is guilty of a similar slip; cf. The Inns of Court under Elizabeth I and the Early Stuarts, 1590–1640 (1972), p. 143Google Scholar n. 18.]

43 History of English Law, v. 401.

44 Law, pp. 179–181; Nomotechnia, ff. 49–49v (“Del Personel charges, & torts”).

45 Bodl. MS. Eng. misc. e. 476, ff. 74–78v.

46 Law, sig. A2v.

47 A Description of the Common Laws of England, According to the Rules of Art Compared with the Prerogatives of the King … by Henry Finch of Gray's Inn (1759), p. v.

48 Lévy-Ullman, H., The English Legal Tradition (1935), pp. 148–149Google Scholar, n. 3; Thomas Wood, Some Thoughts Concerning the Study of the Laws of England (2nd edn., 1727), pp. 43–45; Wynn (ed. Bythewood), pp. xiv, xvi.

49 A Description … (1759), p. v.

50 For Ramist influence on Continental legal methodisers, cf. Franklin, J. H., Jean Bodin and the Sixteenth-Century Revolution in the Methodology of Law and History (1963), pp. 28–29n, 63Google Scholar; Kelley, D. R., Foundations of Modern Historical Scholarship (1970), pp. 102–103Google Scholar; idem, “Vera Philosophia: The Philosophical Significance of Renaissance Jurisprudence” (1976) 14 History of Philosophy 276–278.Google Scholar

51 Cf. Ong, op. cit., pp. 303–304. In rebutting the common sneer of civilians at the supposed barbarousness of the common law, Sir John Dodderidge (who took his B.A. from Oxford the year after Finch graduated from Cambridge), asserts that “the profession of our laws hath now … great number of students that have had as long, and as ample institution in those sciences called liberal, as any of them”: The English Lawyer, describing a method for managing the lawes of this land (1631), p. 33. Cf. the discussion of “Guides to method” in The Inns of Court under Elizabeth I and the Early Stuarts, pp. 143–149; see also the works cited in note 5 above. Mid- and late seventeenth-century examples include J(ohn) C(layton), Topicks in the Laws of England (1646); William Sheppard, An Epitome of All the Common & Statute Laws of this Nation … (1656); H.B. [Esq., of Lincoln's Inn], Plowden's Quaeries (1662); John Herne, The Modern Assurancer … (1658); A Brief Method of the Law (1680), and, of course, the works of Sir Mathew Hale.

52 Cf. Shapiro, B. J., “Law and science in seventeenth century England” (1969) 21 Stanford Law Review 727–766, at pp. 742–750CrossRefGoogle Scholar; idem, “Law reform in seventeenth-century England” (mimeographed paper delivered at conference of American legal historians, Williamsburg, 1972), at p. 54. In the latter Professor Shapiro refers to the influence of Ramism on “interest in codification, methodising, or at least ‘reducing’ the law …”; unfortunately her valuable earlier discussion of Hale's approach to systematising the common law does not deal with his philosophical antecedents (as distinct from his interest in natural philosophy), although the appended extracts from the “Analysis of the Law” display a characteristically Ramist use of defined and sub-divided categories. Charles Webster's recent monumental survey of The Great Instauration: Science, Medicine and Reform 1626–1660 (1975)Google Scholar tends to discount the influence of the “systematic but dessicated textbooks” of Ramus and other protestant neo-scholastics on the intellectual reform movement of the mid-seventeenth century; yet it is interesting to note that the “Memorial for Universal Learning” of the leading puritan intellectual Samuel Hartlib (c. 1647, printed by Webster at 551–553), proposes subsidising scholars “to be employed by way of translation. collections, epitomising and methodising” (italics added).