A quia B cui huiusmodi bastardia obiecta esset natus esset ante sponsalia sive quod nati ante matrimonium essent В quod nati ante matrimonium ita legitimi C praeberent quod nati ante matrimonium quoad omnia legitimi esse possent B successiones parentum et eorum hereditates quia ecclesia tales habet C A pro legitimis, et omnes Comites et Barones una voce B pro legitimis, et omnes Comites et Barones quotquot fuerunt una voce et omnes Comites et Barones quotquot fuerunt C A responderunt quod nolunt leges Angliae mutare quae B responderunt quod noluerunt leges Angliae mutare quae C responderunt una voce quod noluerunt leges Angliae mutare quae A usitatae sunt et approbatae. [Statute Book.] B usque ad tempus illud usitatae fuerunt et approbatae. [Note Book, Case 1117.] C usque ad tempus illud usitatae fuerunt et approbatae. [Bracton, f. 416 b.] Here again the version given in the Note Book seems intermediate between what we may regard as the original document and Bracton's text; the mean agrees now with the one extreme, now with the other. to special On the whole then, though it is very difficult to get to Summary as the bottom of this curious matter, it brings the Note Book bastardy. into close connection with Bracton's treatise. Both give similarly interpolated versions of two records; both invert Ad judicium. the true dates of those two records; the mistake (for deliberate misrepresentation seems out of the question) is a very strange one; that two independent persons should have committed it, would be stranger still. And now the question whether this Note Book was really Bracton's or no, must be left to the judgment of the learned world. An effort has here been made to state the evidence impartially; but of course I was happy in believing that his work was in my hands, and my eyes may have been shut to facts which made against this pleasant belief. What is now to be wished is that some one will go through the book with the design of showing that it is not entitled to the name under which it is here published. Some one fact established by him, might make worthless every argument drawn from the manifold coincidences: for instance, he might prove that the annotator has referred to events which happened after Bracton's death. But meanwhile and on the evidence here adduced, Bracton seems fairly entitled to a judgment, a revocable judgment. The treatise is absolutely unique; the Note Book, so far as we know, is unique; these two unique books seem to have been put together within a very few years of each other, while yet the Statute of Merton was noua gracia; Bracton's choice of authorities is peculiar, distinctive; the compiler of the Note Book made a very similar choice; he had, for instance, just six consecutive rolls of pleas coram rege; Bracton had just the same six; two fifths of Bracton's five hundred cases are in this book; every tenth case in this book is cited by Bracton; some of Bracton's most out-of-the-way arguments are found in the margin of this book, in particular that about the binding of land by warranty, that about the ejectment of a disseisor; the same phrases appear in the same contexts, Juste propter jus sed iniuste propter iniuriam, Nihil certius morte, nihil incertius hora mortis; Corbyn's case, Ralph Arundell's case are 'noted up' in the Note Book; they are 'noted up' also in the Digby MS. of the treatise; with hardly an exception all the cases thus 'noted up' seem plainly to belong to Bracton's country, to affect persons whom Bracton must have known, Raleighs, Traceys, Gorges, Blanchminsters, Winscots, Arundells, Punchardons; lastly we find a strangely intimate agreement in error; the history of the ordinance about special bastardy and the Nolumus of Merton, is confused and perverted in the same way in the two books. Must we not say then that, until evidence be produced on the other side, Bracton is entitled to a judgment, a possessory judgment? Et ideo consideratum est quod Henricus recuperauit seisinam suam, saluo jure cuiuslibet. § 8 Of Fitzherbert's use of the Note Book. Book came herbert. hands Whether this book was originally Bracton's or no, there The Note can be but little doubt that some two hundred and fifty years to the h after its making it came to the hands of another very famous lawyer, of Chief Justice Sir Anthony Fitzherbert, who published his Grand Abridgement in 1514'. Here again the evidence is the indirect evidence of numerous coincidences: but it is very convincing and should be briefly stated. If Bracton introduces, Fitzherbert closes one great period of English law, the age of the Year Books. A modern reader will probably turn the pages of this book with deeper interest, if he knows that from it Fitzherbert learned all, or almost all, that he knew of any law older than the days of Edward the First. of this. When already a great part of my work was done, I Evidence remembered having seen in the Abridgement a few cases from the reign of Henry the Third. It occurred to me to ask, Whence did Fitzherbert get these very ancient cases; did he really read the plea rolls, and if so what plea rolls; or had he Year Books earlier than any that have come down to us? I went through the Abridgement, took out all the cases of Henry's time and arranged them in chronological order'. The result was very remarkable. Henry reigned 1 Printed, it is said, by Pynson in 1514, then by Wynkyn de Worde (?) in 1516, then by Tottell in 1565. Í have used the edition of 1565. 2 I afterwards found that some one else had long ago done exactly the for 56 years; Fitzherbert had 207 cases from the first 24 years of the reign; only 7 from the last 32, and these 7 all from a single eyre, the Devon and Cornwall eyre of A.R. 47. Moreover the 207 cases fell into three groups, (1) cases for which Fitzherbert gave year and term, (2) cases for which he gave the year but no term, (3) cases for which he gave year and eyre. The first group ranged over the period beginning Michaelmas A.R. 2 and ending Easter A.R. 18. The second covered the regnal years 19 to 24 inclusive. It seemed then that Fitzherbert had consulted just the very De Banco Rolls, and just the very Coram Rege Rolls, which had furnished. matter for the Note Book; for as already explained' the De Banco Rolls were terminal rolls, the Coram Rege Rolls were annual rolls. As to the Eyre Rolls, the case was not so clear; Fitzherbert seemed to have had a roll, or two rolls, from which the Note Book had no extracts. But at any rate here were facts which demanded further investigation; it remained to see how many of the 207 cases could be found in the Note Book. I believe that every single one of them may be found there. In a table printed at the end of this Introduction I have endeavoured to show how this may be done. It will I think be allowed that in the vast majority of instances the case in the Note Book is certainly the case to which Fitzherbert referred; in a few instances this is more doubtful; sometimes the note in the Abridgement is very brief indeed and it would be impossible to say positively that one had found the corresponding record; but on the whole I have no doubt that all the 207 cases are in the Note Book. It has been necessary indeed to suppose that Fitzherbert or his printer made some mistakes, not very many, in their references to years, terms and eyres; such matters are very apt to go wrong. But some of these mistakes are very instructive; they make it the more certain that the author of the Grand Abridgement was the possessor of the Note Book. The best example is this:-Scattered about in his book Fitzherbert has 8 cases professedly from Trinity term 1 See above p. 56. A.R. 9; out of these 8, only 3 are to be found in the Note. Book as of Trinity term A.R. 9; the other 5 are there, but as of Hilary term A.R. 17. This five times repeated mistake seems very odd, until one has seen that in the Note Book's capricious arrangement, Trinity A.R. 9 is followed immediately by Hilary A.R. 17; when this is observed the mistake is no longer odd, but the most natural thing in the world. There are several other errors of a similar kind due rather to the Chief Justice than to his illustrious printers. Some doubts were at one time raised in my mind by the apparent fact that he had three cases from a Stafford eyre of A.R. 12 and one from a Leicester eyre of A.R. 15, from which eyres, (if any such eyres there were,) the Note Book had nothing; but the last mentioned case is found in the Leicester eyre of A.R. 5, and the three others in the Suffolk eyre of A.R. 12; 5 has been changed into 15 and Suff. into Staff. One case we can easily see from the names of counsel concerned in it, belongs not to the reign of Henry, but to that of Edward the Third'. This is not all. Under the title Prohibicion, Fitzherbert has a continuous string of eighteen cases from Henry the Third's reign. The order in which they occur is the following-A.R. 2; Mich. A.R. 4; Mich. A.R. 4; Hil. A.R. 6; Hil. A.R. 6; Trin. A.R. 6; Hil. A.R. 8; Mich. A.R. 13; Trin. A.R. 13; Mich. A.R. 15; Pasch. A.R. 15; Mich. A.R. 16; Trin. A.R. 9; Hil. A.R. 17; Mich. A.R. 18; Trin. A.R. 4; Hil. A.R. 5; Hil. A.R. 7. It is a curious order, with its interpolation of A.R. 9 between A.R. 16 and A.R. 18 and its leap backwards from A.R. 18 to A.R. 4. A curious order; but the order of the Note Book. There are several other instances of the influence exercised by the arrangement of the Note Book over the arrangement of the Abridgement; but this is the most perfect2. After weighing this evidence the reader will hardly doubt that our MS. came to Fitzherbert's possession, that he relied on it, studied it, used it largely. His 200 cases are found in 1 The writer of the Cambridge MS. Dd. vi. 39 has observed this. In the cases from Henry's reign no counsel are named because the cases come from the record and not from a Year Book. 2 See e.g. the titles Dower, Droyt, Essone. |