illustration 1. Quincy’s pupil master, Oxenbridge Thacher (1719‒1765) by Robert Feke, or In the manner of Robert Feke (c. 1748 or 1749). Thacher was a leading member of the Boston bar. At only twenty-one, Quincy assumed Thacher’s law practice upon his teacher’s death in 1765. See “The Making of a Patriot,” by Neil Longley York in Quincy Papers, vol. 1, p. 17. Image courtesy of Yale University Art Gallery, Gift of Thomas Thacher, B.A. 1938. See also note 42, infra. My thanks to Kevin Cox for tracking down the original portrait at Yale University, and to David Warrington, for locating a copy at Harvard Law School.
INTRODUCTION
The Legal Education of a Patriot:
Josiah Quincy Jr.’s Law Commonplace
Daniel R. Coquillette*
Much has been written about the history of American legal education. And almost all of it is about law schools. Literally hundreds of volumes have described the hundreds of professional law schools established in North America, from the prototype Litchfield Law School (1784 to 1833) to the newly published account of the “Dark Ages” of the 1960s through the early 1980s at Yale Law School.1 Even the different, but related, phenomenon of teaching law to undergraduates as a “liberal art,” symbolized Thomas Jefferson’s establishment of the Professorship of Law and Police at The College of William and Mary in 1779, has been carefully chronicled.2 But the lawyers who founded this nation and defended the early Republic, famous lawyers, learned most of their law a very different way. Take Massachusetts as an example. John Adams, Robert Treat Paine and James Otis Jr. were great lawyers, but they never attended a law school. Neither did Patrick Henry, Joseph Story, James Monroe or Thomas Jefferson. John Marshall was another, if one overlooks a brief tuition from George Wythe while Wythe was at William and Mary.3 Story and Jefferson established great law schools, but they did not learn law that way themselves.
Of course, the primary method for learning law in the American colonial period was apprenticeship. That would be true for much of the next century, too. Perhaps because most books about legal education are written by law professors, apprenticeship as a pedagogy and a course of study has been widely overlooked and belittled.4 The popular conception is that apprentices were educated by chance, picking up whatever learning they could while copying documents and running errands for their indifferent masters.5 Possibly there would be useful books in their masters’ libraries, possibly not. Possibly they would have the chance to browse in whatever books there were, but it would all be happenstance. Certainly, whatever instruction there was would be practical, not theoretical, and would focus on local, not national, law and certainly not—even more inconceivable—international law!
But the history of the pre-revolutionary bar seems most odd if this was truly the case. Take, for example, the legal world of 1773 described in Quincy’s Southern Journal, set out Volume 3. While there was an occasional lawyer who had “experience” at the remarkably lax Inns of Court in London, particularly in the South, most of Quincy’s professional acquaintances in South Carolina, North Carolina, Virginia, Delaware and Pennsylvania were taught by apprenticeship.6 Yet there was a clear sense of a legal elite, with a firmly established professional identity. John Adams’s Diary paints a similar picture—a self-defined and small professional elite, set apart by education and skill from a host of “petty foggers.”7 It is true Quincy had a low opinion of the training of some of the Southern lawyers he met, particularly in South Carolina, but that, in itself, speaks of professional standards.
My thesis is that, at its best, elite legal apprenticeship had both a pedagogy and a curricular structure that was far from random. It was neither “local” nor necessarily “practical” in its forms, and it could include comparative study, particularly of Roman law. This education may not have been ideal, nor uniformly excellent, but given a good tutor and a good student it was rigorous enough to explain the strong sense of legal professionalism to be found in America before the Revolution.
Why has this been so overlooked? First, the institutional records of this type of legal education are relatively scarce. The few that have survived tend to be the legal commonplace books of the apprentices, and these, although not rare, have rarely been published. This alone makes Quincy’s Law Commonplace of 1763 an important document, and it has never been transcribed or published until now. Unless included in the papers of an Adams or a Jefferson, such records have usually been inaccessible to all but a handful of scholars.8
But there is a further reason. Most American legal historians, even those who are not trained as lawyers, have been subconsciously “brainwashed” by two powerful, and complementary, visions of legal education, which have been superimposed on each other. The first was the vision of Joseph Story, and the second of Christopher Columbus Langdell.
Joseph Story (1779–1845) was, at age thirty-two, the youngest Justice of the Supreme Court ever appointed and, at age forty-nine, the “Savior of Harvard Law School.” Founded by the proceeds of the will of Isaac Royall in 1817, the Harvard Law School had previously failed to compete effectively with apprenticeship and was down to one student in 1829.9 A generous donor, Nathan Dane, agreed to establish a newly endowed professorship, but only on the condition that Story would take it. Without abandoning his judicial career, Story took this position as well.
He had a simple formula for success. Harvard Law School must become an elite, national institution, drawing students from all states. To do that, it must offer broad instruction in legal theory, legal history, comparative and international law, and constitutional law.10 Its graduates would be the meritocrats of the new Republic, displacing both the hereditary oligarchy of the Federalists and the egalitarianism of the Jacksonian Democrats.11 The cornerstone of the pedagogy would be well-organized treatises, which Story himself would write as part of his duties. Readings from these would be required for each class, and the teacher would reinforce each section by lecturing, backed up further by a second teacher, who was called a “crammer.” (This was initially John Ashmun.) The “crammer” would drill the class in the lessons learned. The competition was, throughout, with apprenticeship. Story and his intellectual heirs at Harvard had every incentive to describe the apprenticeship process as haphazard and parochial.
Harvard Law School and its peers have remained national and elitist, just as Story had hoped. But the Civil War greatly damaged the very sense of “nation” that Story extolled.12 A returning veteran, Oliver Wendell Holmes Jr., found the School in shambles, and said so publicly.13 Once again a savior was needed. In a brilliant move, the newly appointed President of Harvard, Charles Eliot, turned to a practicing lawyer with no educational experience, and made Christopher Columbus Langdell the Dean in 1871.
Langdell (1826–1906) had impressed Eliot, a chemist, with the idea that law could be taught as a science, “dissecting” appellate cases to discover the underlying principles of the law, just as chemistry is taught through experiments, or biology through dissection of organisms. Langdell published the first case-book in 1871,14 and began teaching courses by the “Socratic” method, questioning students on the assigned cases, rather than lecturing from treatises. Despite early protests, this “interactive” pedagogy became a great success. Langdell also organized the curriculum into the required first year courses familiar today, the ideological “cubbyholes” of contract, tort, property, procedure, and, in some instances, criminal law. The power of this first year “boot camp” on the intellectual development of modern American lawyers has been profound. “Thinking like a lawyer” has been defined by this educational experience for more than a century.
Those conditioned by the legal pedagogy of Story and Langdell look at the elite apprenticeships of the pre-revolutionary period and see nothing familiar, and, therefore, are inclined to see nothing. Quincy’s Law Commonplace does not use the intellectual “cubbyholes” of Story’s treatises or of Langdell’s curriculum.But it is highly structured in its own way. Apprenticeship was not taught by lecture or by the Socratic method, but it had its own pedagogy and its own theory of learning, and it was a fairly formal theory, at that.
Leading intellectuals of the seventeenth-century profession, including Francis Bacon, Mathew Hale, and John Locke, advocated a “two-pronged” approach to learning law: learning by “maxims” and learning by “commonplacing.” As we will see in Quincy’s Law Commonplace, these were closely related pedagogies, and each had an extensive common law literature.15 It was Bacon’s belief that all education was based on four “rational arts”: “the Art of Custody or Memory,” the “Art of Elocution [or Transmission],” the “Art of Inquiry or Invention” and the “Art of Examination or Judgment.”16 The first two “arts” are appropriate to basic education. You need to “memorize” the vocabulary and the structure of a science, or a language, before you can progress, and you need to know how the science or language is transmitted, by books or other sources, and how to find what you need to know. The second two “rational arts” are more appropriate for advanced study—how to design original research, the “art of inquiry,” and how to exercise mature judgment, and distinguish between the foolish and the wise. The latter art, Bacon maintained, had to be taught by experience.
Bacon, like many of his contemporaries of the Enlightenment, saw “maxims” as an ideal way to memorize and to store legal knowledge. Often based on Roman models, such maxims would be a “search engine” for relevant precedents and authorities, in a day long before word searchable texts. Mathew Hale, and other less well-known contemporaries, linked learning by maxims with keeping commonplace books, both for students and practitioners. The commonplace book was usually organized around alphabetical topics, but these topics often were suggested by, or contained, maxims.
Keeping a law commonplace was not “interactive” in the same way as being interrogated by a “crammer” after one of Story’s lectures, or being cross-examined by a “Socratic” law professor pursuing Langdell’s case method. But it was an active, and often creative and critical process, in which the student interrogated the basic sources of the law and distilled, for the student’s own purposes, the essence of the law. And this process was hardly unstructured. As we shall see, Quincy was very much aware of John Locke’s “A New Method of a Common-place book,” first published in French as “Methode nouvelle de dresser des Recueils” in the Biblothèque Universelle et Historique in July, 1686, and then translated into English in 1697, as well as Mathew Hale’s Preface to Rolle’s Abridgment of 1668, which specifically addressed legal “commonplacing.”17 Not only did he follow these guides, but he created both an initial index and a sophisticated final cross-index that linked comparable subjects and ideas. Finally, he did not just copy the relevant sections of cases and treatises, but condensed and arranged them in a highly individual way, using both American and English sources, and cross-citing to his own manuscript Law Reports of cases in the Massachusetts Superior Court of Judicature. (Hereafter, “Reports.”)18 He also, on occasion, criticized these sources, marking “query” in the margins and noting inconsistencies. Indeed, compared to the passive, painstaking note-taking and copying of a Litchfield student and the treatise-based lectures of Story’s Harvard Law School, Quincy’s Law Commonplace seems original and analytical, not unlike the interactive pedagogical goals of Langdell’s “Socratic” method, the “modern” approach that evolved more than a century later.
There was one final surprise. In Volumes 3 and 4 (1764–1765) of Quincy’s four original notebooks there were 22 pages of Latin Maxims, now brilliantly translated and annotated by Elizabeth Papp Kamali and included as Appendix III to this volume. These maxims, in turn, were hardly random, and reflected a letter of advice on Roman law by Professor Francis Dickins, who taught Roman Law at Cambridge from 1714–1755 as the 16th Regius Professor of Civil Law. This letter, originally addressed to Jeremy Gridley, law tutor to John Adams and dean of the Boston bar, was copied into Quincy’s Note Book, Volume 4, at pages 148–150, by another hand. So learning by maxims and commonplacing extended, at least in Quincy’s case, to comparative legal studies. Roman Law was the common denominator within the continental legal system of the day, as well as the basis of the Admiralty proceedings so important to New England, not to mention the law of the Spanish and French possessions in the New World, including Louisiana.19 The Latin Maxims were hardly an archaic exercise, but rather a link between Quincy’s legal studies and the world beyond the seas.
In short, Quincy’s Law Commonplace is important. It is not just important because its author was a courageous patriot and, by all accounts, a brilliant man. It is also a particularly complete and convincing evidence of how the elites of the pre-revolutionary bar learned law, by apprenticeship, structured and focused by a pedagogy of maxims and commonplacing. It may not be our modern idea of legal education, but it was serious legal education nevertheless. To the extent that it offered a very different pedagogy to that which dominates modern American legal education, it remains fascinating to innovators and reformers.20 To the extent such an education strengthened and molded the legal elite of the pre-revolution, it remains important to the history of our nation.
I. THE MANUSCRIPT
Josiah Quincy’s Law Commonplace occupies most of “Volume I” of a three-volume set of yellowed leather-bound notebooks. This notebook is marked “Vol. 1 1763” on the cover and “Vol. 1” on the spine. It is exactly 20.0 cm. in height and 16.1 cm. in width. There are two other such volumes, each measuring exactly 20.0 cm. in height, and 16.1 cm. in width. They are marked “Vol. 3, 1764” and “Vol. 4.” There is another volume, with a new binding, which also has identical paper. The notebooks marked “Vol. 1,” Vol. 3” and “Vol. 4” are about the same breadth, 2.2 cm., 2.0 cm., and 2.1 cm. respectively. The remaining volume with the modern binding is much thinner, 0.8 cm. For the exact contents of each volume, see Appendix A, infra. Roughly speaking, however, “Vol. 1” contains the Law Commonplace plus the Legis Miscellanea, which is indexed to the Law Commonplace, together with various incidental items. The thin, unmarked volume is something of a mystery. It contains the reports of the “Middlesex Cases” of 1771–1772. These are not in Quincy’s hand.21 Is it “Volume 2,” or a fragment of “Volume 2”? Or is it something else altogether? In which case, “Volume” 2 is lost.22
The top of the first page of the Law Commonplace, which is the first page of “Vol. 1,” bears the inscription “Pretium 20/09.” This could represent the price of all four of the volumes, twenty shillings, nine pence. Though not cheap, this would be a reasonable price for four bound volumes. (Approximate 2005 equivalent, $25 each volume. See the discussion of currency equivalents in the Introduction to the Southern Journal, Quincy Papers, Volume 3.) All four volumes have been microfilmed by the Massachusetts Historical Society. “Vol. 1,” containing the Law Commonplace, is Call No. 347, Reel 4, QP56. “Vol. 3” and “Vol. 4” are Call No. 347, Reel 4, QP57 and QP58, respectively, while the unmarked volume is Call No. 347, Reel 4, QP54.23
The physical notebooks are particularly important in understanding Quincy’s “commonplacing.” There was no such thing as a “three-ring looseleaf binder,” much less a laptop computer that permits easy insertions or amendments. It was necessary, therefore, to plan ahead. Quincy did this by dividing up his notebook in advance, allocating a certain number of pages for each subject. This “preliminary” list, which Quincy described as an “Index … to ye following Little Abridgment for private use,” is highly instructive in itself, because it necessarily indicated what subjects Quincy felt were of principal importance in legal study. But, as you might imagine in the exercise, he made inevitable misjudgments, and these too are very instructive.
For example, under “A,” the headings are “Arbitramt: arbitrors + awards,” “Accord” and “Apprentices + Servants.” The first was not only out of alphabetical order, it was an afterthought—stuck in after “Bailment” and, then, as there was inadequate room there, added further after “Estates.” See Law Commonplace, pp. 18 [23] and 29 [33]. (The first page number is Quincy’s in the manuscript. The second is that of the transcription page. Double numbering was required in this edition because Quincy not only left numbered pages blank and skipped over page numbers, but also forgetfully repeated page numbers!) The first entry, “Attachments,” was omitted from the preliminary “Index” altogether! In short, the preliminary “Index” was Quincy’s initial idea of what a law curriculum should look like, and the amendments to it reflect his actual experience once the study began.
Quincy’s original scheme consisted of twenty-two captions: 1) Arbitration (“Arbitramt”), 2) Accord, 3) Apprentices + Servants, 4) Bailment, 5) Baron + Feme (Domestic Law), 6) Bills (Treated under “Notes”), 7) Demurrer, 8) Estates, 9) Estopells, 10) Evidence, 11) Executors and Co-Executors, 12) Insurance, 13) Jury, 14) Lands, 15) Laws (Treated with “Statutes,”) 16) Lease, Lessor + Lessee, 17) Legacy, 18) Notes, 19) Pleading, 20) Releases, 21) Statute + Acts, and 22) Trespass. These take up the first 98 pages of “Vol. 1” of his four notebooks. Following this, Quincy inserted “A copy of Mr. Prat’s Minutes” [Benjamin Prat, 1711–1763] of the case of Banister v. Cunningham, a 1754 case which is not reported directly in Quincy’s Reports, though he reports a case regarding contest over the same will, Banister v. Henderson, in volume 3 of his notebooks, page 12. (Quincy’s great-grandson and reports editor, Samuel M. Quincy, notes an independent account of Banister v. Cunningham. See Reports, Quincy Papers, Volume 4, pp. 156‒59.) Following this are a list of legal records stored by Quincy in his “Law-file C,” and then major gaps, with pages 108 to 113 cut out, followed by Quincy’s copy of Hale’s Advice on the Study of Common Law and other copied “advice,” not transcribed in this edition.24 But, beginning on Quincy’s page 150 (our 93), Quincy adds a section called “Legis Miscellanea Cursim, libris exscripta” or “Miscellaneous Laws Cursorily Copied Out of Books.” This is a hodgepodge of legal notes, but it is carefully indexed by Quincy beginning on his journal page 175 (our 118) continuing to the end of the volume, his page 182 (our 124), using the captions of the initial index, together with others added. Thus, to the original three captions under “A” (“Arbitration,” “Accord,” and “Apprentices + Servants”) he added “Account,” “Actions,” and “Administrator.”
In short, Quincy’s method was as ingenious as possible, given the fixed format of the pre-bound notebooks. The initial “Index” sets out a preliminary “scheme” of study, which divided the notebook into reasonable “guesses” as to the importance and length of the subjects studied. Then there were some necessary “additions” of popular subjects, whereas other subjects used fewer pages than anticipated. Finally, there was the “Legis Miscellanea Cursim” section, in which Quincy recorded everything he read of interest in chronological order. This he retroactively indexed to the alphabetical structure of the original scheme. Very clever!
illustration 2. Page 175 [118] of the Law Commonplace, where Quincy begins a retroactive alphabetical index. Image courtesy of the Massachusetts Historical Society.
Quincy did not get this idea in a vacuum. In his Diary for October 1 1, 1 7 5 8, John Adams described a conversation he had with Quincy’s brothers, Edmund (“Ned”) and Samuel, and a very bright young man called Peter Chardon.
Rode to Boston. Conversed with Ned Quincy and Saml., Peter Chardon &c. By the Way Peter Chardon is a promising Youth. He aspires, and will reach to a considerable Height. He has a sense of the Dignity and Importance of his Profession, that of the Law. He has a just Contempt of the idle, incurious, Pleasure hunting young fellows of the Town, who pretend to study Law. He scorns the Character, and he aims at a nobler. He talks of exulting in an unlimited field of natural, civil and common Law, talks of nerving, sharpening the mind by the Study of Law and Mathematicks, quotes Locks Conducts of the Understanding and transcribes Points of Law into a Common-Place Book on Locks Modell. This fellows Thoughts are not employed on Songs and Girls, nor his Time, on flutes, fiddles, Concerts and Card Tables. He will make something.25
Unfortunately, Peter Chardon died young in Barbados in 1766, but John Adams particularly remarked on how Chardon “transcribes Points of Law into a Common-Place Book on Locks Modell.”26 This is a reference to the great John Locke (1632–1704) and his “A New Method of a Common-Place book,” first translated into English in 1697.27 While Locke’s method was technically more complex than Quincy’s—using an index of both alphabetical headings and subheadings based on the first vowel of the head word (“a,” “e,” “i,” “o,” “u”)—it is essentially the same, including leaving a margin “of about the largeness of an inch” on every page for special annotation, which Quincy carefully did.28
Of course, Locke’s system was designed for any type of commonplacing. The leading inspiration for law commonplacing was Matthew Hale (1609– 1676), Chief Justice of the Court of King’s Bench from 1671–1676. Originally published as a “Publisher’s Preface to the Young Students of the Common Law” to Henry Rolle’s Un Abridgment Des Plusieurs Cases … Del Common Ley … (London, 1668) (“Rolle’s Abridgment”). Hale’s advice was widely known as a basic introduction to legal study.29 Quincy certainly knew of it because he copied it in his “Vol. 1” notebook at pages 122–41. According to Hale, after “two or three years of systematic study of the legal classics,” a student should
get a large Common-place Book, divide it into Alphabetical Titles, which he may easily gather up, by observing the Titles of Brooks Abridgment, and some Tables of Law-Books, and possibly (as shall be shewn) this book now published may be the basis of his Common-place Book … What he reads in the course of his Reading, let him enter the abstract or substance thereof, especially of cases or points resolved into his Common-place-Book, under their proper Titles; and if one case falls aptly under several titles, and it can be conveniently Broken, let him enter each part under its proper title; if it cannot be well broken, let him enter the abstract of the entire case under the Title most proper for it, and make references from the other Titles unto it.30
Hale admits that this method could be inherently repetitious. “It is true, a student will waste much Paper this way …”31 And, at least at the beginning, there would be mistakes which—before loose-leaf notebooks and “delete” keys—would remain in the commonplace. The student “possibly in two or three years will see many Errors and Impertinencies in what he hath formerly done, and much irregularity and disorder in the disposing of his matter under proper Heads.”32 But, as will be seen in the next section on pedagogy, Hale saw “infallible advantages attending his [the student’s] course.” The very process of trial and error in assembling the commonplace, like the painstaking case analysis of Langdell’s “Socratic Method,” taught the student. This, too, was a pedagogy of struggle and interaction.
Quincy followed Hale’s directions precisely, making careful cross-references between his “Alphabetical Titles,” and an extensive cross-referencing index of his Legis Miscellanea. See Law Commonplace, pages 175 [118]–182 [125]. In this he was superior to John Adams, whose 1759 Commonplace Book is far more rudimentary in structure, with little or no cross-referencing and indexing.33 This was not just a question of style, it was a question of learning. By following the advice and methodologies of Locke and Hale, including Locke’s “one inch” margin for annotation and critique and Hale’s system of cross-references, Quincy maximized the potential of his bound notebook. In addition, Quincy cross-referenced his Law Commonplace to the first volume of his manuscript Reports, which he called the “Red Reports” because of the color of the cover. See the references to Angier v. Jackson “vid. Red Rep. 70” and Baker v. Mattocks “vid. Red Rep. 57” at Law Commonplace, pp. 105 [90] and 106 [91], which are in the 1865 edition of the Reports at pages 84 and 69, respectively.34 He also cross-referenced topics on the same pages of his Law Commonplace to his “Law file A” and his “Law file C.” Thus, Quincy took the techniques of Locke and Hale one step further, integrating his Law Commonplace to his own Reports and to a filing system of precedents! Given the constraints of pen and paper, it was a “data retrieval” system of real sophistication.
illustration 3. Pages 36 [37] and 37 [38] of the Law Commonplace, presenting rules of “Evidence.” This shows Quincy’s notebook, open. The marginal notes and tight fitting of text are characteristic of the Law Commonplace’s general style. Image courtesy of the Massachusetts Historical Society. My thanks to Kevin Cox.
II. THE PEDAGOGY
Quincy began his Law Commonplace on September 24, 1763. At the time, legal education in the common law world was in a state of flux, and dramatic changes were on the horizon. Only five years before, in 1758, William Blackstone had taken the Vinerian Chair at Oxford. There, he had commenced his famous annual lectures that introduced, for the first time, common law study to an English university.35 And only two years before Quincy began his work, in 1761, Francis Stoughton Sullivan published his revolutionary A Plan for the Study of the Feudal and English Laws in the University of Dublin (hereafter, “A Plan”) outlining a complete two-year method of learning law, emphasizing “the elementary parts” and developing “the Outlines of the remaining Heads of the Law, with the necessary Definitions, Divisions, Maxims and Illustrations, such as the young Gentleman may receive with Ease, and retain without Confusion, and may afterwards fill up at their leisure by their subsequent heading, and their Attendance at Westminster.”36
Now let us look forward just two years in the future. In 1765, Blackstone would publish the first volume of his famous Commentaries on the Laws of England (1765–1770), whose success in the American colonies would be phenomenal.37 Had Quincy only been permitted an ordinary adult life, he would have witnessed Thomas Jefferson’s establishment of a professorship of “Law and Police” at William and Mary in 1779 and the beginning of George Wythe’s teaching career.38 He also would have witnessed James Wilson’s appointment in 1789 as professor of law at the University of Pennsylvania, and James Kent’s appointment to a similar position at Columbia in 1794. Had Quincy lived to be only forty, he would have seen Judge Tapping Reeve establish the nation’s first professional law school, the famous Litchfield School of Law, in 1784, and had Quincy lived to seventy-three he would have witnessed the founding of the Harvard Law School in 1817, America’s first university professional school of law.
John Langbein has demonstrated that these historical forces were about pedagogy, how law was taught and learned.39 Langbein argues that Litchfield succeeded because of its system of lecturing, “which had been such an advance over the apprenticeship in the 1780s.” But that system became “retrograde” by the 1830s, and was surpassed by a “different and superior technique, the so-called text-and-recitation system” established by the university professional schools, including Harvard and Yale.40
But this is what makes Quincy’s Law Commonplace so important. Because it was begun before Blackstone and these major institutional pedagogies, it remains a largely “pure” example of the ancestral learning from which these dramatic innovations evolved. And, because its author was a brilliant—if very young—lawyer, it presents this pedagogical heritage at its best. Finally, this document challenges Langbein’s assumption that pedagogical evolution was inherently an “advance.”41 At its best, apprenticeship, and its attendant learning techniques of commonplacing and instruction by maxims, could be a sophisticated and effective way to learn.
To begin, Quincy’s Law Commonplace was a “system” with three separate elements. The “core” was the pre-indexed commonplace contained in his notebook “Vol. 1,” pp. 1–98 (P347, Reel 4, QP56). This was obviously a pre-designed project, following the methodologies of John Locke and Mathew Hale discussed in Section A, “The Manuscript,” supra. It could have been designed by Quincy’s pupil master, Oxenbridge Thacher, but there were plenty of other possible sources.42 This was analogous to the “elementary parts” of the law, emphasized by Francis Stoughton Sullivan’s Plan of 1761.
Then there was the second element, the Legis Miscellanea contained in Quincy’s notebook “Vol. 1,” pp. 150–82 and in “Vol. 4,” pp. 5–10, indexed retroactively and cross referenced to the “core” commonplace. This would be analogous to the “afterwards fill up at their Leisure” outlines of Sullivan’s Plan. It would be an ongoing project, to be continued by the apprentice or student. While Quincy’s Legis Miscellanea lacked the prearranged “outlines of the remaining Heads of the Law, with the necessary Definitions, Divisions, Maxims and Illustrations” prescribed by Sullivan’s method, the index prepared retroactively by Quincy did supply the principal “Heads of the Law,” arranged alphabetically, which also provided easy cross-referencing to the “core” commonplace.
Finally, there was Quincy’s unique contribution to his “system,” his Law Reports. Discussed at length in the “Introduction” to Volume 4 of this series, these were begun in 1761, two years before the Law Commonplace. The Reports were actively continued throughout the creation of the Law Commonplace, until the first gap in the August Term, 1768. The Legis Miscellanea sections of the Law Commonplace cross-referenced the Reports.43 The Reports also occasionally cited to related materials in the Law Commonplace. For instance, one such cross-reference appears in the case of Banister v. Henderson, which begins on page 12 of Quincy’s volume 3 (page 119 of the 1865 published Reports). At the beginning of the case, Quincy cross-referenced to page 103 [89] of volume 1, the Law Commonplace, though this cross-reference was not included in the 1865 publication. Page 103 [89] of the Law Commonplace includes the minutes of Banister v. Cunningham, an earlier case which dealt with a controversy over the same estate contested in Banister v. Henderson, and demonstrates that the two volumes are interconnected by Quincy’s method.
These cross-references were largely gathered in a separate section which followed the alphabetized “core” Law Commonplace after three blank pages, Quincy pp. 99–102, and went from Quincy page 103 up to page 107, Transcription pp. [87]–[92]. For convenience, this section will be called the “Case Notes Section,” although Quincy did not label it at all. This “Case Notes Section” also contained cross-references to Quincy’s “Law file C” and “Law file A,” which contained notes of legal arguments, decided cases, and methods for studying law, like Chief Justice Mathew Hale’s “Method of studying the Common Law from Rolls’s Abr.g Preface” and Chief Justice Thomas Reeve’s “To his Nephew, Directions for beginning the Study of Law.” See Law Commonplace, Quincy n.p., [transcription p. 7] and n.p. [transcription p. 9].
It is easier to appreciate this sophisticated system of information retrieval using a diagram:
QUINCY’S “SYSTEMS” OF LEARNING
illustration 4. Sir Matthew Hale (1609–1676) was one of the dominant jurists of the English Restoration, serving as Chief Baron of the Exchequer (1660–1671) and Chief Justice (1671–1676). Noted for his moral character and his learning, he was the author of many books, including the famous Summary of the Pleas of the Crown (London, 1678), published in a better edition in 1736 as Historia Placitorum Coronae (London, 1736). Hale’s “Preface Directed to the Young Students of the Common Law,” which appeared at the beginning of Henry Rolle’s Un Abridgement des plusiers Cases … del Common Ley … (London, 1668), had a huge influence on legal pedagogy, and was carefully referred to by Quincy. See “Vol. 1,” p. 547, Reel 4, QP56, Quincy’s pages 122–41. See also Alan Cromartie, Sir Matthew Hale 1609–1676: Law, religion and natural philosophy (Cambridge, 1995). Courtesy Harvard Law School Library. My thanks to David Warrington.
If Quincy wished to update his “core commonplace,” he could add to the Legis Miscellanea or to the “Case Note Section.” The “Case Note Section” was cross-referenced to his Law Reports. Both the “core” commonplace and the retroactive index to the Legis Miscellanea, which was updated, were organized in alphabetical headings. And there were cross-references to his “Law file A” and “Law file C.” All he needed to do was remember the right alphabetical heading, and he could locate anything in the commonplace!
But this was not just a way of storing and cross-referencing information. It was a program to teach law. Setting up and compiling a commonplace was hard work. Updating it and cross-referencing the categories was even harder. Creating reports of argued cases and referencing those reports to the commonplace was harder still. It was a process that required “trial and error.” It taught by requiring the student to do the analysis and classification for himself. Again, this is the same way that the Socratic method and the case method taught law, by interaction between the student and the material.
We do not have to speculate on the sources of Quincy’s pedagogy, because he carefully copied them into the Law Commonplace itself. The most important was Chief Justice Mathew Hale’s (1609–1676) “Publisher’s Preface Directed to the Young Students of the Common Law” appearing at the beginning of Henry Rolle’s Un Abridgment Des Plusieurs Cases … del Common Ley … (London, 1668) (hereafter, “Hale’s Preface”). This was carefully copied by Quincy into “Vol. 1,” P 347, Reel 4, QP56, Quincy’s pages 122–41 (not transcribed in this series as not original Quincy).
We have already discussed, in Section A, supra, Hale’s influence on the structure of Quincy’s Law Commonplace. But equally important was Hale’s theory of legal education. He certainly believed that direct interaction between the student and the undigested mass of the law was necessary and desirable, and that struggle was a part of learning. According to Hale,
It is true, a student will waste much Paper this way, and possibly in two or three years will see many Errors and Impertinencies in what he hath formerly done, and much irregularity and disorder in the disposing of his matter under proper Heads. But he will have these infallible Advantages attending his course. 1. In process of time he will be more perfect and dexterous in this business. 2. Those imperfect and disordered essays will by frequent returns upon them, be intelligible, at least, to himself, and refresh his memory. 3. He will by this means keep together under apt titles whatsoever he hath read. 4. By often returning upon every title, as occasions of search or new intentions require, he will strangely revive and imprint in his memory what he hath formerly read. 5. He will be able at one view to feel the substance of whatsoever he hath read concerning any one Subject, without turning to every Book (only when he hath particular occasion of Advice, or Argument, then it will be necessary to look upon that Book at large, which he findes useful to his purpose. 6. He will be able upon any occasion suddenly to find anything he hath read, without recoursing to Tables or other Repertories, which are oftentimes short, and give a lame account of the subject sought for …44
Also important to Quincy was Chief Justice Thomas Reeve’s (1672/73–1737) “Directions [to his Nephews] for beginning the study of Law,” which Quincy copied into the beginning of his Law Commonplace on unnumbered pages (transcription pages [7]–[9]) (hereafter, “Reeve’s Directions to his Nephew”). See “Vol. 1,” P347, Reel 4, QP56, unnumbered Quincy introduction. Reeve emphasized the effort of commonplacing, using Thomas Wood’s An Institute of the Laws of England; or Laws of England in their natural order according to Common use (1st ed., London, 1720) (hereafter, “Wood’s Institute of the Laws of England”) “to understand the several Divisions of the Law, + obtain the precise Ideas used in it.”45 Reeve went on:
My whole scheme without naming Books, is no more than this. 1.st Obtain precise ideas of the Terms + several meanings of the Law. 2.dly Learn the general Reasons whereon the Law is founded. 3.dly Find some authentic system, collect the great heading Points of the Laws, in their natural order, as the first Heads + Divisions of your future enquiry; 4.thly Collect the several particular Points + arrange them under their generals, as they occur + as you find you can best digest them.
And whereas Law must be consider’d in a two-fold Respect. 1.st As a Rule of Action. 2.dly As the art of procuring redress when this Rule is violated; the study in each of them may be regulated by the foregoing method. And the Books so recommended will so carry on your Joint Work, that with this course so finish’d, the student may pursue each Branch of either, to its uttermost Extent, or return to his Center of Knowledge without confusion, which is the only way of rendering Things easily to the memory.46
Interestingly enough, Hale’s Advice to a Student and Reeve’s Direction to his Nephew were two of the sources recommended by Jeremiah Gridley to John Adams in 1758, five years before, along with Dr. Dickins’s “Method of Studying the Civil Law,” which we will discuss later in connection with Quincy’s collection of Latin maxims.47 John Adams also met in 1758 with Oxenbridge Thacher, who, as noted above, would become Quincy’s pupil master. Thacher also emphasized commonplacing, stating that he was “sorry that he neglected to keep a Common Place Book when he began to study Law, and he is half a mind to begin now.”48
This was no casual, haphazard course of study. The university lectures of Blackstone, to be followed by Wilson, Kent, and many others, doubtless were an easier path to legal theory. Tapping Reeve’s lectures at Litchfield and Story’s “text-and-recitation” system at Harvard may have been better structured professional training, but commonplacing had its own virtues as a way to learn. You had to discover the structure of the law for yourself. It was analogous to the “rite of passage” of having to study Coke on Littleton, remarked on by both Adams and Story, who “wept bitterly.”49 It is also comparable to the student effort required by Langdell’s casebooks and the Socratic method.50 “No gain without pain” was the informal creed of Langdell and his disciple, James Barr Ames, who rejected the predigested pedagogy of the lecture and the Continental treatise. Commonplacing was an antecedent of the agonies of the case method, and it had similar virtues.
These virtues were appreciated by those that suffered through the commonplacing process, even as they developed easier, if not better, methods. Take Joseph Story as an example. Story’s “text-and-recitation” system, coupled with his own treatises, certainly rescued the Harvard Law School from near disaster in 1829.51 His vision of a university professional school has now become the model of modern legal education.52 But he certainly appreciated the value of what Quincy was doing in the Law Commonplace. According to Story:
The early professors of the common law were compelled to resort to commonplace books, and personal reports of cases, falling under their own observation. Many manuscripts of this description are still extant, exhibiting a patient industry, care, and accuracy, worthy of all praise. The labor, indeed, of these venerable jurists almost transcends the belief of students of the present day. They noted every case, in all its points and principles. They abstracted from records, and general treatises, and private manuscripts, often obscure and crabbed, everything, that could be found to aid them in study, or in practice. They gathered voluminous collections of special pleadings, and unusual writs and judgments, to suit the exigencies of their possible avocations; and thought no labor too great, which brought any solid addition to their knowledge, or any increased facilities to their clients.53
This appreciation reflected Story’s own training. Story’s pupil master was Samuel Sewall. Sewall rejected the “catch as catch can” apprenticeship, “mechanically obtained,” in favor of examining “the theory and General doctrines and the origins of the Municipal Law [i.e., national law], and descending from generals to particulars, to discover afterwards the partial applications and limits of the system.”54 For structure, Sewall could offer Story something Quincy never had, Blackstone’s Commentaries. As R. Kent Newmyer has observed, Blackstone was “the primer,” and Story found it easy and “most elegant.”55 But Sewall soon directed Story to harder stuff: Coke on Littleton and the other classic English treatises. In Story’s words, these were filled with “dry and technical principles, the dark and mysterious elements of the feudal system, the subtle refinements and intricacies of the middle ages of the common law …”56
In addition, Sewall required Story to go beyond the treatises, and to read the American reports (there were but a few, and none published for Massachusetts in 1801) as well as many of the same English reports that Quincy digested, including the 13 volumes of Coke’s Reports (published in installments between 1600 and 1659), Plowden’s Commentaries or Reports (published in Law French in 1571 and translated in 1761) and Saunder’s Reports (published in Law French in 1686 and translated in 1722). By his own account, Story plunged into these reports and many others, reading them in conjunction with treatises like Hawkins’s Pleas of the Crown (1716–1721), all at Sewall’s direction.57 As Story’s biographer, Newmyer, has acutely observed, this was a process of integration of knowledge into a structure. Blackstone helped. “[I]t would give Story, as it gave others, the tools of legal language, a compendium of guiding principles, an introduction to English legal history, and a vision of law as a science—that is to say, as a system of interrelated principles and rules.”58 But it was just the beginning. The law reports, current American practices, and the technicalities of common law pleading had to be mastered too.
The vehicle Story used for the integration was commonplacing. As Newmyer observed, “The working lawyer’s key to survival, if not success was his form or commonplace book…. wherein practicing lawyers mobilized English precedent under the main header of law with a running count of leading American cases …”59 Story’s commonplace was prepared at Sewall’s direction but, it appears, despite Sewall’s promises to “assist you in arranging your learning,” it was Story’s own work. Story saw this effort and struggle as essential to mastering law. “I felt that I breathed a purer air … and that I had acquired a new power.”60
Story’s law training was the training of a future Justice of the United States Supreme Court and the savior of Harvard Law School. Note how close it was to that of Quincy! Although Story’s apprenticeship ended in 1801, more than thirty-five years after Quincy’s Law Commonplace, the basic ingredients were the same. Of course, Story had Blackstone. Initially, lacking Blackstone, Quincy had to turn to Matthew Hale’s Introduction to Rolle’s Abridgment (1668), Thomas Wood’s An Institute of the Laws of England (1720), and Charles Viner’s General Abridgment of the Law and Equity (23 vols., 1741–1753) for structured categories. In addition, by 1801 Story had a few American reports to integrate with the English reporters. Quincy had to create his own. But the process, and the struggle, was the same. At its best, it was a pedagogy that created good, even great, lawyers. As Newmyer observed:
If a good education is one that equips its recipient to do what has to be done, Story’s law-office education was an excellent one. He learned the theory and was at home in the practical application of it. He was ready to do business. But he learned more, too. The three years of apprenticeship had left him with a deep love of the law and a lasting admiration of legal science.61
The same was true of Quincy. How many of our law students could say the same today?
There remains one final pedagogical aspect of the Law Commonplace. To modern legal educators it seems particularly alien and strange: learning by maxims. Quincy sprinkled Latin maxims throughout the Law Commonplace. Many were extracted from Coke on Littleton or from Justinian’s Institutes and the Digest. In addition, in both “Vol. 3” and “Vol. 4” of his notebooks, he set out a collection of two hundred and twelve Latin maxims grouped together, at (“Vol. 3”) P 347, Reel 4, QP57, pp. 161–63, 171–83, and (“Vol. 4”) P347, Reel 4, QP58, pp. 151–56. Forty-four of these are almost entirely from Roman law sources, particularly the Digest, Title Fifty, Section XVII, De Diversis Regulis Juris Antiqui. The rest are from common law authorities, particularly Coke’s Reports and Institutes. Thanks to the tireless work of two of my former research assistants, Susannah B. Tobin, Harvard Law School, Class of 2004, who continued her efforts long after graduation, and Elizabeth Papp Kamali, Harvard Law School, Class of 2007, these collected maxims have been brilliantly transcribed and translated as Appendix I, Quincy’s Latin Maxims, at the end of the Law Commonplace.
Perhaps Quincy’s extensive study of Latin maxims should not be surprising. He and his peers were fluent in Latin. Both John Adams and Joseph Story integrated the study of civil and Roman law into their original legal studies.62 Adams had served an apprenticeship with John Putnam of Worcester between 1756 and 1758, which did not always go smoothly. When he arrived in Boston in 1758, he sought the support of Jeremiah Gridley, then the informal dean of the Boston bar. Adams recounted the meeting:
Then Mr. Gridley inquired what Method of Study I had pursued, what Latin Books I read, what Greek, what French. What I had read upon Rhetorick. Then he took his Common Place Book and gave me Ld. Hales Advice to a Student of the Common Law, and when I had read that, he gave me Ld. [Chief] [Justice] Reeves Advice [to] his Nephew, in the Study of Common Law. Then He gave me a Letter from Dr. Dickins, Regius Professor of Law at the University of Cambridge, to him, pointing out a Method of Studying the civil Law. Then he turned to a Letter He wrote himself to judge Light-foot, Judge of the Admiralty in Rhode Island, directing to a Method of Studying the Admiralty Law. Then Mr. Gridley run a Comparison between the Business and studies of a Lawyer or Gentleman of the Bar, in England, and that of one here. A Lawyer in this Country must study common Law and civil Law, and natural Law, and Admiralty Law, and must do the duty of a Counsellor, a Lawyer, an Attorney, a solicitor, and even of a scrivener, so that the Difficulties of the Profession are much great here than in England. The Difficulties that attend the study may discourage some, but they never discouraged me.63
Adams took the advice on Roman and civil law study seriously. “I have read no small Number of Volumes, upon the Law, the last 2 Years [1758–1760]. Justinian Institutes I have read, thro, in Latin with Vinnius’s perpetual Notes, Van Muydens Tractatio Institutionum Justiniani, I read thro, and translated, mostly into English, from the same Language. Woods Institute of Civil Law, I read thro. These on the civil Law …”64
As we have seen, five years later, Quincy set out on an almost identical path. Copied into the same volume as Quincy’s Law Commonplace are the two suggested courses of study Gridley gave to Adams, Matthew Hale’s Advice to a Student (1668) and Lord Chief Justice Reeve’s Advice to His Nephew in the Study of the Common Law (1736?). See (“Vol. 1”) P347, Reel 4, QP56, Quincy, pp. 122–41 and unnumbered Quincy pages at commencement, pp. [7]–[10], respectively. But there is something even more remarkable. Dr. Dickins’s Method of Studying the Civil Law, as recommended to Adams, was also copied into “Vol. 4” of Quincy’s notebooks, although not in Quincy’s hand. See (“Vol. 4”) P347, Reel 4, QP58, pp. 148–50. This is the same volume that contains some of Quincy’s Latin Maxims.65
Of course, studying maxims was not necessarily about Roman and civil law. Throughout the sixteenth, seventeenth and eighteenth centuries, Latin maxims were seen as a major aid to both memory and legal analysis of the English common law. The leading influence was Francis Bacon’s A Collection of Some Principal Rules and Maxims of the Common Lawes written between 1596 and 1597 and first published posthumously in 1631, but there were many more common law “maxim” books, designed for students and practitioners alike.66 Of particular importance was John Dodderidge’s (1555–1628) The Lawyer’s Light, which was also published posthumously in 1629 from a manuscript entitled Methodus Studendi. Dodderidge divided his book between “primary principles,” which he called “maxims,” and “secondary principles,” which he called “rules.” “‘Rules’ differed from ‘maxims’ in that they are ‘not so well known by the light of nature … and are peculiarly known for the most part, to such only as profess the study and the speculation of the law.’”67 Bacon also distinguished between “legum leges,” “law of laws,” and “ordinary and vulgar” maxims.
And therefore, whereas these rules are some of them ordinary and vulgar, that now serve but for grounds and plain songs to the more shallow and impertinent sort of arguments; other of them are gathered and extracted out of the harmony and congruity of cases, and are such as the wisest and deepest sort of lawyer have in judgment and use, though they be not able many times to express and set them down: for the former sort, (which a man that should write rather to raise a high opinion of himself than to instruct others would have omitted, as trite and within every man’s compass,) yet nevertheless I have not affected to neglect them; but having chosen out of them such as I thought good, I have reduced them to a true application, limiting and defining their bounds, that they may not be run upon at large, but restrained to point of difference.68
Thus, the collection and the study of maxims can be used to structure legal principles, as well as to aid memory.
Bacon saw this use of maxims as a way to improve commonplacing. “For as, both in the law and other sciences, the handling of questions by commonplace, without aim or application, is the weakest so yet nevertheless many common principles and generalities are not to be contemned, if they be well derived and deduced into particulars, and their limits and exclusions duly assigned.”69 In addition, whether the source of a maxim be from the Roman law or the common law, the inherent reason of the maxim was seen by Bacon as a source of authority in legal argument, quite apart from case precedent. Thus, while Bacon claimed his maxims were all derived from legal authorities, and “in mine own copy I had them quoted,” he deliberately omitted the citations and let the maxims stand on their own!
[T]he reason is, because I judged it a matter undue and preposterous to prove rules and maxims…. Well will it appear to those that are learned in the laws, that many of the cases are judged cases, either within the books or of fresh report, and most of them fortified by judged cases and similitude of reason; though, in some few cases, I did intend expressly to weigh down the authorities by evidence of reason, and therein rather to correct the law, than either to soothe a received error, or by unprofitable subtlety, which corrupteth the sense of the law, to reconcile contrarities.70
This view of the inherent “authority” of maxims was not limited to Bacon or the seventeenth century. In a number of important cases in Quincy’s Reports, leading advocates such as Gridley or James Otis Jr. used “naked” maxims in the abstract as part of their argument. For example, in his historic appearance before the Governor and Council in 1765, in the Memorial of Boston, Jeremiah Gridley argued that the Stamp Act contravened basic human reason. There could be no legal proceedings without the stamps, but the stamps “were not to be obtained.” “That the Law never requires Impossibilities Is a Maxim of the Law.”71 No other authority was given!
Where Roman maxims also supported a common law principle, the “antiquity” and “universality” made it particularly compelling. Thus, in the same historic Memorial of Boston in 1765, John Adams argued “That the Subject is not bound by Acts, when he is not represented, is a sound Maxim of the Law, and not peculiar to the British Constitution, but a Maxim of the antient Roman Law: ‘What concerns All shall be judged of by All.’”72 This special authority of concurrent Roman and common law maxims was also argued by Bacon.
[W]hereas some of these rules have a concurrence with the civil Roman law, and some others a diversity, and many times an opposition; such grounds as are common to our law and theirs I have not affected to disguise into other words than the civilians use, to the end they might seem invented by me, and not borrowed or translated from them: no, but I took hold of it as matter of great authority and majesty, to see and consider the concordance between the laws penned and as it were dictated verbatim by the same reason.73
Thus, Quincy’s list of 44 Latin maxims from the Digest’s De Diversis Regulis Juris Antiqui (Title 50, Section 17), and other civil law sources, was not just an antiquarian exercise. Rather, it served three important functions: as a way to classify and learn legal principles, a form of comparative law study, and an independent source of authority.74 This was a legal system lacking all native law reports and facing a high rate of change. Appeal to the universal principles represented by maxims was not just tempting, it was necessary. James Otis, following John Adams in the Memorial of Boston–Stamp Act appearances, gave what all contemporary witnesses agreed was a great legal argument.75 At its core was an appeal to a “naked” or “self-evident” legal maxim. “It was once a fundamental Maxim, that every subject had the same Right to his Life, Liberty, Property and the Law, that the King had to his Crown …”76 Whether as an aid to memory, a structure for commonplacing, or as a source of authority in itself, the study of maxims, “aphoristic pedagogy,” was important to Quincy and his legal world.
III. THE DOCTRINES AND THE SOCIETY
Quincy’s Law Commonplace can teach us a lot about colonial legal education, but it is also a treasure house of information about what the law was, and how people lived. In a commonplace book, the last two really are inseparable. Books like Wood’s An Institute of the Laws of England (1720) or Blackstone’s Commentaries (1765–1769) could, and often did, exist in a theoretical test tube, far removed from what Langdell called “the ever-tangled skein of human affairs.”77 But the purpose of commonplacing was to apply doctrine to that “ever-tangled skein,” in actual practice. Again, as discussed in Section A, supra, Quincy’s Law Commonplace was not a defined, closed, formal, system of learning, but was designed to be constantly updated through the Legis Miscellanea sections, as Quincy gained experience.78
Both the initial “index” of Quincy’s Law Commonplace and the retroactive index of the Legis Miscellanea indicate what was considered important in practice. But this is particularly true of the Legis Miscellanea index, because it shows what was “added” on as Quincy studied and observed his pupil master and court cases. The former index is like the “suggested curriculum” of today’s law schools. The Legis Miscellanea is more like the little notebook I kept when I first practiced law. It did not reflect what my law teachers thought was important, but rather what I learned in the “school of hard knocks,” day by day, at my Boston law firm. A lot of my notebook was about my clients and their needs, rather than just legal rules and doctrines, and that is certainly true of Quincy’s Law Commonplace. This is where society meets doctrine.
Here is an example from the “Case Note Section” of the Law Commonplace, also cross-referenced to Quincy’s “Law file C.”
W[h]ether, a negro woman being with child complains to a Just Pacis [Justice of the Peace] of a free White Man being the father, can the Justice upon such Complt [Complaint] issue his Warrant agt the Man + recognize him to appear before the Sessions as provided by the Prov. Law p. 10. 11 in Case of a White Woman gotten with Child. This Question answer’d in the Negative. + the reasons Why. vid.
Law-file C. Law Commonplace, p. 106 [91].
Colonial welfare law depended on taking responsibility for your children, and justices of the peace had a general power to issue warrants to question witnesses. See Province Laws (Geo. II anno. 17, 1744) Chap. 222, The Charters and General Laws of the Colony … of Massachusetts Bay (Boston, 1814), pp. 551–52 (hereafter, “General Laws”). See also Colony Laws (1642, 1665) Sections 1–3, and the discussion at page [92], note 6. See also Douglas Lamar Jones, “The Transformation of the Law of Poverty in Eighteenth-Century Massachusetts,” Law in Colonial Massachusetts (D. R. Coquillette, R. J. Brink, C. S. Menard, eds., Boston, 1984), pp. 153–90. (Hereafter, “Jones, Law of Poverty.”) At almost exactly the time Quincy made this notation, there was a well-documented case in 1765 of an Amos Jewett Jr. being found liable for five shillings per week to support two bastard children, twin boys, by one Sarah Moor of Rowley. Id., p. 162, see Rowley Sarah Moor, File Papers, 1767, Essex Sessions. In 1767, Jewett was sent to debtors’ prison because he could not keep up the payments. This was a serious concern to the selectmen of Rowley, who would otherwise have to “absorb the costs of raising Sarah’s children.” Id., p. 163.
So the usual legal doctrine was one of responsibility, backed by a powerful social policy of enforcement, to keep the cost from falling on the relevant town or city. Justices of the peace had statutory power to hear such complaints and subpoena witnesses. Why not here?
Quite obviously, Quincy’s notation tells us as much about race and gender politics in 1763 as it tells us about a rule of law. We would like to see “the reason why” in Quincy’s last “Law file C,” but it is quite clear that accusations by a black woman against a white man would not be allowed, despite strong policy reasons to establish paternity. Perhaps the relevant town could bring the complaint instead, but this case is more than a legal doctrine, it is a window into colonial racial politics.
There are many such windows in the Law Commonplace. Here are just a few examples, taken from three of Quincy’s most “active” alphabetical categories, “Baron + Feme” (husband and wife), “Apprentices and Servants,” and “Jury.” Each of these categories contains a number of legal rules and doctrines, but also graphically illustrates the “real world” of colonial society in which these laws existed and operated.
In Quincy’s Massachusetts social reality and legal doctrine were closely linked. This was because of the state of the legal system and public attitudes toward legal authority. These attitudes can be particularly well understood by studying the Law Commonplace together with Quincy’s manuscript Law Reports, against which the Law Commonplace was cross-referenced. Most colonial judges were laymen, who rarely gave reasons for their decisions. In addition, these decisions, as in England, were usually given orally from the bench. Quincy’s Reports, therefore, consist mainly of reciting the facts of the case, the arguments of counsel, and the base vote of the judges at the end—although the judges often asked questions and made remarks that reveal the reasons for their vote.79 Many of these cases demonstrated a strong social pragmatism, in both the rationales of the arguments and the judicial comments.
This pragmatism was supported by ambiguity as to the source of law and legal authority. Massachusetts was subject to what my colleague Mary Sarah Bilder calls “the transatlantic constitution.”80 Under the charter of 1691, the colony could make laws “not repugnant or contrary to the laws of this our realm of England.”81 There was also a strictly limited appeal to the Privy Council in London in civil actions “wherein the matter in difference doth exceed the value of three hundred pounds.”82 This was a large sum of money, and, in practice, leave to appeal was granted with great reluctance.83
There were no published colonial law reports. Colonial statutes often did not pertain to key areas of legal dispute and, even then, could be ambiguous and badly drafted. Thus, the courts had quite a bit of discretion. The real issue was how closely they were required to follow English common law doctrines, as set out in the English texts and reports available in the colony. After Coke’s famous decision in Calvin’s Case (1608), it was clear that English law “was not automatically received in conquered territories” and, thus, arguably not in the American colonies.84 In addition, English authorities were often not cited in oral argument, particularly in less lucrative cases. In these “lesser” cases, the lawyers often took little time to prepare their legal authorities, sometimes to the annoyance of the judges—and Quincy.85 When English precedents were relied on, as in the major inheritance cases, they were often invoked by both sides, with a cavalier disregard for what the cases actually said, again to Quincy’s expressed irritation.86 Even in major cases, the final decision could depart markedly from English legal doctrine. The justification given was sometimes local customs, or practical necessity, or social policy, or all three. As we will see in the Introduction to Quincy’s Reports, Quincy Papers, Volume 4, sometimes the judges gave no reasons at all, even for important departures. The inherent assumption, infrequently voiced explicitly, was that such departures did not violate the “repugnance” provision of the Charter, an easy argument to make if the English Common law was uncertain or, as was often the case, poorly researched. Appeals to the privy council were extremely scarce in Quincy’s Reports, and were clearly looked on with disfavor.87 Practical, social policy arguments, made in argument by counsel, were sometimes reinforced by ad hoc judicial comments, picked up by Quincy, and often seen to explain the decision itself.88
Scholars like Morton Horwitz have argued that “[t]he generation of Americans who made the American Revolution had little difficulty in conceiving of the common law as a known and determinate body of legal doctrine,” quoting Chief Justice Hutchinson’s remark, recorded by Quincy in 1767, that “laws should be established, else Judges and Juries must go according to their Reason, that is, their Will.” Reports, pp. 234–35, “Charge to the Grand Jury,” 1767.89 Quincy himself, in his Southern Journal, criticizes the South Carolina bar for ignorance of the law, pointing out that it meant that the courts were free to do whatever they wanted.90 But the remarks of Hutchinson and Quincy cut both ways. Hutchinson was increasingly frustrated that juries, particularly the grand juries he charged, simply ignored what he regarded as “the law,” and Quincy pointed out the indifference of practicing lawyers and judges, in both the North and South, to common law doctrine, and the total ignorance in South Carolina of the common law forms of action.91 In this void, both lay judges, jurors and practitioners could be pragmatic and policy oriented. Indeed, they had little choice. Blackstone’s conception of a rigid judicial adherence to precedent and a clear distinction between legislation and judicial decisions required not only a “knowable” and determinate body of common law, but lawyers and judges that knew it.
As both his Law Commonplace and Reports demonstrated, Quincy wanted to know the law, and he knew a lot of it. The start of the Law Commonplace in 1763 predated the appearance of Blackstone’s first volume of his Commentaries in 1765. There is but one citation to Blackstone’s Commentaries, to the 1765 first volume, and only an occasional reference to Blackstone’s Analysis of the Law (1756).92 Quincy’s conception of the role of common law decisions, the jury, and statutes can neither be blamed on ignorance of the law nor on Blackstone. Thus Quincy makes a particularly interesting test case for our theories about colonial jurisprudence.
It is Horwitz’s famous thesis that between “[t]he generations of Americans who made the American Revolution” and the world of the new Republic of 1820, a major change occurred, a “transformation of American law.”93
By 1820 the legal landscape in America bore only the faintest resemblance to what existed forty years earlier. While the words were often the same, the structure of thought had dramatically changed and with it the theory of law. Law was no longer conceived of as an eternal set of principles expressed in custom and derived from natural law. Nor was it regarded primarily as a body of rules designed to achieve justice only in the individual case. Instead, judges came to think of the common law as equally responsible with legislation for governing society and promoting socially desirable conduct.94
This “transformation,” in Horwitz’s view, was symbolized by a shift from a “Blackstonian” conception of the law, with a strict adherence to common law precedent by judges and a clear distinction between the role of a statute and a judicial decision, to something altogether different, where instrumental judicial legislation was candidly recognized.95
The Law Commonplace can hardly be an adequate test of this major theory. Quincy was just one colonial lawyer, and an atypical one at that—particularly bright, rich, and well-educated. But he was very interested in the things that constitute the core of Horwitz’s theory, such as the nature and source of common law precedent, the role of jury in “achieving justice … in the individual case” and the function of statutes. The resulting record describes a legal world which, while mindful of doctrine, was remarkably pragmatic and sensitive to understanding economic and social needs. Let us look at some examples from the Law Commonplace.
A. Doctrines of Gender
As my distinguished colleague, Mary Sarah Bilder, observed: “The laws of England preferred inheritance practices that were gendered (favoring the eldest son), lineal (favoring keeping land within bloodlines), and ancestral (favoring inherited land).”96 Thus the “pigeon holes” for gender in Quincy’s Law Commonplace include “Estates, and Lands, Tenements and Hereditaments”97 as well as the more obvious “Baron + Feme”98 [husband and wife] and “Marriage.”99 Also included should be “Powers,”100 which include the critical issues of what a married woman can do legally, and “Base Possession,”101 which include issues of whether a wife’s mere possession of goods or property is imputed to the husband.
Massachusetts had early rejected the English doctrine of “primogeniture,” that intestate land descends solely to the eldest son.102 The “repugnancy” to English law clause of the 1689 Charter was carefully circumvented.103 “Part-ibility” [i.e., equal division to each child] or “coparcenage,” the usual English doctrine when a testator had only daughters, was imposed by statute.104 The major issues arose when the “partibility” doctrine was circumvented by will, usually by attempting an “entail male,” i.e., descent by male blood heir only, or reversion to testator’s direct heirs.105 The Superior Court of Judicature felt constrained to accept such gendered restrictions, but only if the will was legally correct. Ambiguities were resolved for partibility, a distinct difference from English law.106
Quincy’s Law Commonplace emphasized two important distinctions. Land brought into a marriage by the wife may be in control of the husband during the wife’s life, but on her death is certainly treated differently from lands brought to the marriage by the husband. “But where lands do descend from the part of the mother, the Heirs on the part of the father never inherit so on the contrary. Observe then the difference where the son purchaseth lands in Fee-s[imple] + where he comes by them by descent, on the part of the mother, or of the father.”107 In addition, bias against female gender was trumped by the bias toward blood lines. “A sister of the whole blood shall be preferred before the younger of Brother of the Half Blood.”108 Absent, however, from the Law Commonplace were the struggles over male entail so carefully chronicled in Quincy’s Reports.109
More prominent in the Law Commonplace was the legal subordination of a married woman. In fact, “Baron & Feme” (“Husband and Wife”) constitutes the largest section of the “core” commonplace, not counting related sections, like “Marriage” in the Legis Miscellanea.110 Quincy’s world was one of social, racial and gender hierarchies, and it is not surprising that a law student would organize the law in this way. Indeed, modern critical jurists and legal realists would see such a structure as more “honest” or natural than the doctrinal formalism of Langdell and the “categories” of legal education that have persisted to this day.111
In theory, the marital subordination of women “cut both ways”; married women had clear privileges and rights based on their status, as did married men. Sometimes the disabilities were mutual. Evidentiary privilege is one example of a mutual disability, duly noted by Quincy. “Baron + feme cannot be witnesses for or ag.t each other,” with the exception of high treason and “3 H.7 Chap.2”112 The latter statutory exception was also carefully noted by Quincy, “where the wife may be evidence against her husband forcibly taking her away and marrying her,” tracking the 1488 statute of Henry VII which established penalties for “carrying a woman against her will, that hath lands or goods.”113 Thus while evidentiary disabilities were, in theory, mutual, the “force” exception shows that in practice they might particularly harm women. In any event, if so much depended legally on marriage, a forced marriage was reprehensible.
Again, in theory, the feme “covert,” the married woman, could not contract, could not appear in court, and could not have “seisin” of land except through her husband. “The wife is so much under the power of her husband, that she is disabled to contract with any person without his consent …”114 But Quincy added some key, underscored words, “without his consent, precedent or subsequent, express or pre-sum’d.”115 Here we have another window into the reality of the colonial world. Despite his English sources, Quincy observed:
She [the married woman] cannot bind her H [husband] in Strictness for Necessaries by any contract, unless a precedent or Subsequent assent is proved or presumed; But usually her Contracts are allowed, if She buys goods for herself, Children, or family, as Bread etc. or for her own necessary Apparel. The H is bound to maintain his W [wife] in Necessaries, + therefore if Goods come to H’s Use it is Evid. to prove his Assent, but not binding Evid; for it may be contradicted by Other Proof as that He gave his Wife ready money; Admitting then that the H sh.d be charged in strictness for necessaries; tho’ he knows nothing of them; [yet if]1 he forbids particular Persons to trust his W, he shall not [be] charged after such Prohibition.116
So, as a practical matter, a colonial wife could engage in normal shopping, and trades-people could enter into normal supply contracts with her, unless they had actual notice that there was no normally “pre-sum’d” consent from the husband. Even general notice was not enough, according to Quincy. “A prohibition in general not to trust a wife, as by putting her in the gazette, etc. cannot amount to legal notice.”117
The problem came when the wife engaged in a trade or business outside of household “necessities.” There is evidence in both Quincy’s Reports and the Law Commonplace that this certainly occurred. Such activities ranged from criminal activity, such as acting as a “fence” for stolen goods or running a “bawdy house,” to the practice of medicine.118
A man shall not be charged by the contract of his W, (except as above for necessaries) if he hath no notice of it, tho’ the things do come to his use. Neither, shall a H be bound by his W’s receipt of his money.119
But actual practice was more complex. In his Legis Miscellanea, Quincy emphasized an English case in which a woman was practicing medicine, Brashford v. Buckingham and his wife (1601), 2 Coke’s Reports (London, 1657), p. 77.120
• Action brôt by Baron and Feme on a promise made to ye Feme in consideration, she wd cure such a wound and alleges she did cure. Adjudg’d good upon Writ of Error, in Exchequer Chamber because the Action is grounded upon a promise made to ye feme + upon a matter arising upon her Skill + a performance to be made by her Person + such an Action wd survive to the feme. Cro. James 77 This case is [discussed?] at Barnardiston 75.+ [And] debt upon judgment in Trespass for 10/ Damages + 40/ Cost, + the Statute pleaded. Vide. 2. Vent. 36.121
Quincy also emphasized another English case where a woman was “carrying a trade in her own name as a widow,” and then sought to use “coverture” to escape her obligations.
A woman whose husband has left her about 12 years before had carried on trade in her own name as widow + given receipts in her own name, being sued for debt contracted in the course of her trade gave coverture in evidence + that her H. had been lately in Ireland+ Holt directed the Jury to find for Defn + so they did. 1. Bac. 308. On N. A. Deft proved she had a H. alive in France Jury found for plf. On motion for a new trial as a verdict against evidence it was denied for a divorce shall be intended. 1. Salk. 117.122
Thus if a woman’s husband was dead, or if a divorce “shall be intended,” she would have the power to enter binding contracts, even entered into while married, as long as the people dealing with her believed they were doing business with the woman on her own account, a doctrine similar to the “sole trading” cases “according to the custom of the … City of London.”123
Quincy added a final English case relating to “separation by consent.”
If B. + Feme separate by consent + she has a separate allowance tis unreasonable she should have it in her power to charge him + it is not to be presumed but tradesmen trust her on her own credit + not the credit of her H. + a personal notice is not necessary it is sufficient that it be public + generally known. Holt ruled a H. was liable to his wifes contracts, because they cohabitated. 1. Salk. 113—Everyman is obliged to maintain his wife + an action may be maintained against him for necessities provided suitable to her rank in life124
While the selective mixture of English precedents in Quincy’s Law Commonplace can be no more than a suggestion as to the colonial law, the picture that emerges is fairly practical, given the overall gender bias of the law. In theory a married woman had no legal personality, except to protect herself from being forced into marriage itself and, in Quincy’s words, “If the husband threaten his wife to beat or to kill her, she may make him find security for the peace.”125 But in practice, the legal obligation of the husband to provide “necessaries,” including “necessities provided suitable to her rank in life,” provided implied consent to most domestic transactions, absent actual notice.126 Where the woman was doing business on her own, she could use her husband’s legal personality, where appropriate, to appear in court or enforce deals. Where death or separation made this impossible, Quincy’s precedents were sympathetic to enforcing the contracts as to the woman, so long as the other parties believed they were dealing with the woman in her own capacity or on her own credit.
The system gave the married woman three sources of security, besides simply not being beaten. We have mentioned the husband’s duty to provide “necessities … suitable to her rank in life.” The other two, which attach on the husband’s death, receive much attention in Quincy. These are the right of the woman to “dower,” a one-third life interest in her deceased husband’s estate, and, equally important, the return to her legal ownership of the real property she brought to the marriage.127 Of course, if the husband survived the wife, he had his own security in her property, “Curtesy of England,” which, assuming a child of the marriage had been born alive capable of inheriting the wife’s lands, gave the husband an estate in all of those lands for life.128 Dower was particularly important to women if efforts had been made to place lands in a male entail to the prejudice of a woman’s inheritance, a growing source of litigation in the colonies.129
Quincy’s notes also emphasized the effect of marriage on previously held debt.
DEBTS of the WIFE dum sola. [i.e., “contracted while single”] If the W before M [marriage] was in Debt, the H + W must be sued for this Debt, living the W. But if the W dies, the H shall not be charged for the debt of his W after her Death, if the Creditors of the W do not get Judgmt during the Cover-ture. The H, as such is not chargeable in a Ct of Equity, anymore than at Law, with the Debts of the W after her Decease; not even tho’ he had a large Fortune with Her; as on the Other Hand he is, during the Coverture liable to all her Debts, altho’ he did not get a shilling with her.130
Citing Thomas Wood’s An Institute of the Laws of England (London, 1700), vol. 1, c. 6, pp. 61–63, “effects and consequences of marriage.” (notes deleted).
While the husband would be fully chargeable with the wife’s debts while she was alive, he was not responsible on her death. But the biggest trap was the other way around. If a woman with “a large fortune” married an insolvent husband, all her property could be seized by his debtors, without her consent.
This appears to have been the subject of one of Quincy’s most interesting reported cases, Hanlon v. Thayer, Case 37, (1764), Reports, p. 99 (the so-called “naked wife” case).131 Mrs. Mary Hanlon brought suit in trover132 through her husband, Mark, to recover “Apparell” attached by her husband’s creditors, altogether twenty-one entries of clothing and household goods.133 Mary Hanlon was a widow of a fairly wealthy merchant, John Salmon, and Mark was her second husband, “a mariner and a Yoeman.”134 The first issue in the case was whether it made any difference whether the clothes were brought into the marriage by Mary. On this, the court had little trouble. Justices John Cushing and Peter Oliver observed that, although “the Case was very hard upon the Wife, who brought all these Cloaths at Marriage, yet ‘as they are personal Property, they become the Husband’s on Marriage, and therefore liable.’”135 The more interesting issue was whether there was an exception for “necessary” clothes. There were two separate grounds for this exception: (1) the “necessities … suitable to her rank in life” exception to the ban on contractual powers and (2) the “necessary bedding utensils and implement of the household necessary for the upholding of life, to the use of the wife and family of the deceased” exception to the assets of an insolvent estate established by the 1710 Provincial Statute.136 See Charters and General Laws, supra, Chap. 100 (Ann. 9, 1710), Sect. 2, p. 390.
Chief Justice Hutchinson observed that this was a “Matter of great Consequence,” and scolded the bar for failing to argue “more largely” with “more Authorities cited.”137 He continued:
I always took it to have been the Custom in such Cases as this, for the Wife to have her Cloaths; in Cases that have come before me as Judge of Probate I never knew it denied to the Wife where the Estate was insolvent. In the Case cited [by Mr. Gridley] I suppose the Woman was a Party, and the Debt contracted by her; this alters the Case much, but yet I apprehend (here Ch. Just. Makes an Apology for what follows) that this may be one of those Cases where the Justice says a Thing obiter, or suddenly; for one Gown can never be supposed sufficient—must she go naked when that is washing? Upon the Whole I think it would be very hard upon the Wife, should such a Precedent as this take Place, that her Cloaths which she brought in Marriage must go to discharge the Husband’s Debts. I should think it safer to verge towards Conveniency than to strain the Word Necessary.138
It remains unclear from the report if the other justices agreed, but Quincy noted that “the Jury found for the Defendant Costs.”139
Despite the hazards of marriage to a woman’s legal powers, it could be more dangerous to be unmarried. In at least two Quincy cases women desperately sought to prove their marriages. In the first, the defendant’s life depended on it, as she was charged with the murder of a bastard child. Quincy began the report of Dom. Rex v. Mangent with the caption “Life and Death.”140 Under a 1696 Provincial Statute, the unmarried mother of a stillborn child without a witness was presumed a murderer.141 Fortunately, it was decided that her marriage certificate from a minister “in another Government … without any authentication from any Magistrate” was acceptable.142 In the leading entail case of Banister v. Henderson, also reported by Quincy, the widow’s children were hard pressed to prove marriage in the absence of a certificate of marriage, despite the fact that their mother and father had lived together for many years as a married couple “both in Old and New England.”143 Once again the Chief Justice scolded the bar “for Want of Authorities,”144 and found for himself a passage in Thomas Wood’s A New Institute of the … Civil Law (first published, London, 1704) that “half Proof, ought to be extended in Favour of Marriage, rather than contrary to it.”145
Quincy’s Law Commonplace contained many more examples of “baron and feme” legal power issues, particularly in his “add on” Section, “Legis Miscellanea Cursim,” indicating that these were common issues observed in practice and in his assigned legal reading.146 Strangely lacking from the Law Commonplace, however, is any extensive discussion of the most pressing gender issue outside of marriage, male entails. As emphasized before, a string of important cases in Quincy’s Reports show that the colonial bench and bar were deeply divided as to whether to encourage a construction of ambiguous or poorly drafted wills to lock land up in an eldest male only line, or to encourage “partiblility” among male and female heirs equally.147 Except for a cursory mention of testator intent in the Legis Miscellanea, however, these issues were simply not dealt with by the Law Commonplace, emphasizing the importance of the later Reports as a valuable, and often more sophisticated, complement to the earlier Commonplace.148
B. Doctrines of Servitude
In addition to married women, Quincy’s Law Commonplace contains many other sections describing the legal rights of different types of people. Some such categories are still familiar to us today, and Quincy’s notations in the Legis Miscellanea index covering “Infants, Ideots, + Madmen, etc.” seem familiar.149 Slavery was omitted from the Law Commonplace altogether. Quincy’s Reports contain cases that make it clear that slaves had no legal personality in Quincy’s Massachusetts, and were regarded as chattel.150 They were not just people with diminished legal rights—they were simply not considered people at all. As discussed before, Quincy did note the different treatment of whites and free blacks, whose civil rights were curtailed by numerous provincial statutes.151 Also, “in the middle” were indentured “apprentices and servants.”
The importance of the “apprentice and servant” class to Quincy’s legal world was emphasized by long sections in the “core” Commonplace and by an important 1763 case in the Reports, Dunten v. Richards.152 Like marriage, apprenticeship was a two-way street, based on a legal undertaking whose terms were often implied by law. Thus “[i]t is a reasonable cause of Departure from service if the servant is not allowed sufficient meat, Drink, etc. or if the master’s wife beats him.”153 Also like marriage, the apprentice lost much of his or her legal personality. As Quincy noted, summarizing two English cases:
A waterman’s widow took an Apprentice, who went to sea (being pressed into ye Queen’s service) + earned 2 tickets [entitlements to accrued pay], wch came to ye dft’s hands [probably a money lender]. She bro’t trover for ye tickets, + had judgment; for what ever an apprentice gains belongs to his master, She may action for it. 1 Salk 68. Barber v. Dennis.4 And if he be an appren[tice] only de facto it is sufficient. 6 Mod. 64. cited 3 Vin: 23. notes q: v.5154
But, like the wife, the apprentice had rights to “necessities” and could not simply be “dumped.” This was true of long term “servants” as well. “If a servant retain’d for a year falls sick, etc. the Master cannot put away his servant, or abate his wages.”155 And, to some extent, the master took over the servant’s legal personality as well, particularly when that servant was acting on the master’s business. “If any servant is cozen’d of any money. I may have an action against the Person that cozen’d him.”156
When doctrines of servitude and doctrines of marriage collided, it could get complex. For example, if an apprentice married without the master’s consent, “the master cannot turn him away for that reason,” but the master could sue in covenant if the marriage violated the explicit apprenticeship agreement.157 What if a woman servant married and became a feme covert, can her husband break her servitude? Or, suppose she becomes pregnant, in or out of marriage? Quincy noted the following answers:
If a Woman that is a Servant doth marry, yet she must serve out her Time, + her Husband cannot take Her out of her Master’s service. And if a Woman, being with Child of a Bastard, procures Herself to be retain’d with a Master, who knoweth nothing therof, or if She begotten with Child during her Service, this is a reasonable Cause why the Justices shd. dicharge her from her Service, for She hath made herself incapable to serve any longer.158
Apprenticeship was a special type of servitude because it was always based on a writing, and had to be terminated by a writing and a magistrate. Quincy paraphrased the section of Dalton’s Countrey Justice (London, 1618, many editions before 1746).
An apprentice cannot be sent out of England, unless the Nature of his Service does require it. As an apprentice cannot be made without Writing, so He cannot be discharg’d by his Master without Writing under his Hand, + with the Allowance of One Justice.159
In addition, an apprenticeship did not terminate on a master’s death, but became part of the assets of the estate, just like a slave.
If any Master dies, the apprentice goes to the Exttor or admttnor, to be maintained, if their be assets. But the Exttor he may bind Him over to Another Master for the remaining Part of his Time. Wood. B.1.c6. p 52.160
[Thomas Wood, An Institute of the Laws of England (London, 1700), vol. 1, c.c., p. 52.]
Henry Sumner Maine famously described the progress of modern law as from “status” (i.e., “where old law fixed a man’s social position irreversibly at his birth”) to “contract” (i.e., where “modern law allows him to create it for himself”).161 What Quincy would have thought of Maine’s ideas remains uncertain. Despite obvious unfairness and adhesion, he would probably have regarded the apprenticeships and servitudes of his day as free contracts with mutual advantage—unlike slavery, which Quincy detested.162 His Law Commonplace looked to English law on all these things, and the sections selected emphasized this contractual nature. But, like the law of marriage, this law gave little real protection to those in servitude, only a minimal security from beating and starvation. These “status” relationships represented a view of civil and legal rights that we, today, would find intolerable. But within these severe constraints, Quincy’s Law Commonplace demonstrated an effort to find pragmatic and humane solutions to social problems.
C. Doctrines of Legal Authority and Power
Quincy’s organization of the Law Commonplace was inspired by others, but the captions and subdivisions were uniquely his own. This was especially the case for the Legis Miscellanea retroactive index, which was literally created by his experience. Thus, this structure tells us a good deal about Quincy’s legal world. We have already seen how colonial hierarchies were reflected in this structure—particularly the relative legal powers of wives, apprentices, children, and servants.
A second important set of subdivisions related to sources of legal authority: in particular, doctrines relating to the division of authority between British legislation, colonial legislation, the colonial judiciary, and the jury. These topics, gathered under the captions “Jury,” “Of Laws” and “Statute + Acts” took up a great deal of space in the “core” Law Commonplace, 24 pages of the 71 page total! Three Quincy pages, 44 to 46, transcript [42] to [44], were originally assigned to “Jury,” but the subject spilled over to page 50 to 52, [48]–[50], following “Lands, Tenements + Hereditaments,” and then again to pages 58 to 63, [55]–[59], following “Legacy,” a clear example of Quincy underestimating a subject!
1. of judges and juries
Under “Jury,” Quincy tackled two central issues: 1) What was the proper division of authority between judge and jury and 2) How should the jury go about finding the facts? This was done in the context of Quincy’s obvious belief in the jury’s importance. Quincy emphasized the power of the jury, invoking Hume. “Hume calls, the Institutions of Juries, admirable in itself + the best calculated for the Preservation of Liberty + ye administration of Justice, that ever was devised by the wit of man.”163 “Nothing contributes more, than the institution of tryals by Jury, to the support of that equity + Liberty, for which the English Laws are justly celebrated.”164
But jurors are “lay gents,” and, according to Quincy, therefore cannot be presumed to know the law. Quincy’s Commonplace walked a fine line here. The chosen excerpts emphasized, on one hand, that “[M]atter of law shall never be put in the mouth of lay gents”165 and that “Tis ye property of ye Court, jus dicere [to speak the law].”166 Even as to matters of pure fact, the court had some power. “[I]f ye Court do believe that ye Jury have given their verdict agt evid: they may order a new Trial,” wrote Quincy, relying on Lilly’s Practical Register; or General Abridgment of the Law (London, 1719), vol. 2, p. 605.167 “[Y]e Court may direct ye Jury to find according to ye evidence.”168 “Matter in LAW shall not be given in Evid: to ye Jury, but ye other may demur upon it, for Lay Gents can not discuss matter in Law as it seems there, but it is not expressly adjudged there …”169
While Quincy dutifully selected and copied out the above passages, it quickly became clear that the issues, in practice, were much more problematic. Jurors had an obligation to go beyond “the naked fact only,”170 “plain Truth + fact + common sense, + not political convenience far-fetch’d inference, or ingenious innuendo, being the proper object …”171 Quincy goes on to quote one of his favorite books, Catharine Macaulay’s (1731–1791) The History of England from the Accession of James I to The Elevation of the House of Hanover (1st ed., 1763–1765, London).172 (Hereafter, “Macaulay’s History.”) “A privilege of the constitution of England … the jury [are] … judges of Law as well as fact … The Court cannot refuse a General Verdict if the Jury will take the Law upon themselves.”173 “The Jury may take the Law upon them if they will.”174
Quincy attempted to resolve this tension as best he could. First, the jury, in the terms later invented by Hohfeld, might have the power, but not the right, to go beyond the evidence. “[T]ho’ ye evidence given be conclusive, yet ye Jury may find against it, + hazard ye attaint if they please.”175 Quincy also noted a case of Chief Justice Strange. “[T]he question … being merely a Point of Law, the ch: Justice told the Jury, they must find for the Debt. which they were very unwilling to do + therefore to prevent this going contrary to his opinion … suffer’d a Nonsuit.”176 The threat of attaint and the remedy of new trial left the jury’s power intact, but, at least in theory, provided some check, although, as will be discussed later, attaint was obsolete by Quincy’s time.
Further, certain issues were clearly reserved for the judges. “It is Province of the Justices to determine what the meaning of any word or sentence in an act of Parliament is.”177 In addition, “The Judges shall judge what is a reasonable Time …”178 More problematic was the question of erasure, or forgery, in a document.
Of ancient Time if a Deed appear’d to be erased or interlined in Places material, the Judges adjudged upon their view; the Deed to be void: But of latter Times, the Judges have left that to the Jurors to try wether [sic] the rasing or interlining were before the Delivery.179
In tackling these serious problems, Quincy turned to authorities that demonstrated that he was still updating his Law Commonplace on important subjects as late as 1772. Quincy notes, “See the question—whether juries are Judges of Law as well as fact treated in a masterly manner by the authors of ‘Considerations on Criminal Law’ (p. 128 of that work) Reviewed in the Monthly Review May 1772 page 471, 472 etc.” [H. Dagge, Considerations on Criminal Law (London, 1772) 3 vols.]. Then follows an extensive quotation from Sir John Maynard’s (1602–1690) argument in Skinner’s Case, as recorded by Anchitell Grey’s Debates of the House of Commons (1667–1694) (London, 1769) see page [56], note 3, infra. This argument is copied in the Commonplace in a noticeably different script, but probably still Quincy’s.
Maynard’s argument challenged any judicial review of a jury judgment, except on matters of law, narrowly construed:
Every judgment is established on two things of which the judge must have a care, vizt the Verity of the fact & what the law is upon such fact; ex facto jus oritur [“the law becomes operative after the fact”] now by the constitutions of the Law of England, the trial of the fact is in one hand, & the determination of the Law by judges sworn. The judge may not try the fact, nor the juror the Law, but at their extreme peril: for by the Common-Law, the jurors, if they give a false verdict, under went the villanous judgment vizt to have their houses raised, lands wasted, meadows plowed, woods felled, body imprisoned, & infamy perpetual never to be credited more.180
Maynard eloquently argued that this delicate balance be unreviewable on appeal, except in the most blatant circumstances:
But by this way of proceeding before your Lordships, all these advantages are lost; for the trial of fact & of Law, the office of the judge & juror, are confounded. There is no challenge or exception that can be taken to any of the Lords tho’ one or more of them be enemies, or friends or allies to either party, or engaged by opinion or solicitation, or interest in the cause, of all these together, or any other; for tho’ a juror may be challenged, a Judge cannot.181
Quincy’s Law Commonplace, of course, is just a collection of legal statements copied from largely English authorities. While the selections were carefully made, they tell us more about colonial legal education than the actual state of the law—something that would be true of law student notes today! Further, like my old notebook from my Boston legal practice, the Law Commonplace was designed to provide Quincy with convincing arguments on both sides of potential issues—the selection to depend on the client’s interests. My distinguished colleague, Adriaan Lanni, has emphasized to me that most surviving sources of ancient Athenian law consist of “court speeches,” arguing one side or the other. This leaves the actual “Rule” of law to be determined.182 Thus with Quincy’s Law Commonplace. But, for reasons every practicing lawyer can appreciate, these sources define the orbit of the arguable law. Further, Quincy’s Reports are evidence of the actual law of the colony, and show how Quincy, quite sensibly, combined “book learning” with direct observation. The Reports frequently verified the impression left by the Law Commonplace. The resulting picture was of a pragmatic, not a dogmatic, world.
This was certainly true with the controversies over jury trial. No less than six cases in Quincy’s Reports involve jury trials. Four focus on the power of the jury, and two on conditions of jury service.
One of the issues emphasized in the Law Commonplace was whether alteration of a document was a question of law for the judge, or a question of fact for a jury. In Norwood v. Fairservice, Case 47 (1765), Reports, pp. 189–93, the plaintiff produced an indenture for £13.68 per quarter rent, and the defendant produced the other half of the indenture for £13.68 per year, a big difference! It was argued by Gridley and Fitch for the plaintiff that “it had always been the Custom of this Court” to determine the legal effect “in such Cases.” Robert Auchmuty replied for the defense:
Mr. Auchmuty. I take it, the Gentleman is too early in his Objection; for Fraud or no Fraud shall be try’d by the Jury, and not by the Court. It is a plain Matter of Fact, of which the Jury are the sole Judges. Besides, of what Advantage will it be for the Court to determine this Matter? The Jury, after all, will determine whether this Variance was made before, or since the Execution of this Deed; and will give what Credit they please to it: so that for this Court to pass their Judgment will avail Nothing. Neither do I think the Court have any Right to determine this Matter; for ’twill be abridging the Priviledges of the Subject, to settle a Point which wholly lies with the Jury to determine.183
As the Commonplace indicated, it was a close question. The justices split on the issue.
Just. Oliver This properly belongs to the Jury. I am for admitting it to go in.
Just. Cushing The Jury is sole Judge of this; they must give what Credit they please.
Just. Lynde As the Practice of this Court has always been otherwise, I am for viewing it.
Ch. Justice I know the Custom has been otherwise, but, for my Part, I think ’tis Time it was altered—am for admitting it.184
The counterpart of the Indenture ultimately went to the jury.185
An even tougher issue was presented by a case where the word “or” had been omitted on a note. The note obliged the promisor “to pay Plaintiff Order” instead of “to pay Plaintiff or Order.” Was this promissory note negotiable? And was that a factual or legal issue? Auchmuty argued that this was a question for the jury.
Mr. Auchmuty. The Note is, to pay Plaintiff Order: The or is left out. Where a Note is nonsensical we are not obliged to follow it. There can be no Doubt but whether this is Evidence to a Jury or not. In Favour of Justice doubtless it is.186
The Court permitted the case to go to the jury, but on a different issue.
The Court ruled, that the Note should go in as Evidence, on another Point.* That, as the Note had not been indorsed, the Omission of Order was immaterial—otherwise had it been indorsed.
Ch. Juft. did not give his Opinion.187
The Chief Justice’s abstention was meaningful. In Russell v. Oakes, Case 21 (1 7 6 3), Reports, p. 4 9 it had been held, over his dissent, that there was no difference between a negotiable and non-negotiable note until it was endorsed.188
An even more fundamental issue, emphasized several times in the Law Commonplace, was whether a jury had the power to “give a verdict against the Evidence,” or whether the judge may grant a new trial to avoid injustice. In Angier v. Jackson, Case 31 (1763) Reports, p. 84, Auchmuty argued that there was no right to a new trial in that case because there was evidence to support the jury verdict, and observed that:
The Court is not to be Judge of the Law and Fact too absolutely; if it should be, it takes away all Verdicts but such as are agreeable to the Mind of the Court. It would be opening a Door to great Inconveniences to the Subject, even if Attaints did not lie; but here Attaint lies.189
The Court was split again as to the scope of review, but decided against a new trial in this case.
Ch. Justice. Are you not agreed that, were it evidently against Law and Evidence, there the Court may grant a new Trial, but not where there is Evidence on both Sides.
Trowbridge. It can never be supposed that a Verdict will be given against direct Evidence, without Shadow of Evidence to support it. This differs from the Case of Fuller & Clark at Cambridge—there was plainly Evidence against Evidence. I hold, this Court always have Right to grant new Trials when they think Injustice like to be done.
Justices Oliver, Cushing, Russell & Lynde against a new Trial, because the Court were not clear in the former Trial.190
Thus, the ambiguity in the Law Commonplace, which sets out arguments for and against a wide scope for jury power, accurately reflected the law of the colony. By 1763, the only effective control over a jury was a new trial. Despite Auchmuty’s argument, the deterrence of attaint had become obsolete by 1763. See Samuel M. Quincy’s note 3, Reports, p. 85, and William Blackstone, Commentaries on the Laws of England, vol. 3 (1st ed., Oxford, 1768), pp. 389–93. “[A]ttaint is now as obsolete as the trial by battle which it succeeded: and we shall probably see the revival of the one as soon as the revival of the other.” Id., p. 389. Under these conditions, tensions over the power of the jury were inevitable, and important.
The power of the jury was certainly a centerpiece of both the Law Commonplace and the Reports, and Angier v. Jackson continues to be relevant to major modern constitutional cases about the scope of the Seventh Amendment right to jury trial and the “Reexamination Clause” of the Seventh Amendment.191 (“[N]o fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”) The “rules of the common law,” of course, must refer to those in effect in 1791, the date of the Seventh Amendment, and there are few American sources on this important issue as authoritative as Quincy.192
The Law Commonplace also focused on how the jury found facts. To begin, unlike a modern jury, the jury of Quincy’s day could rely on their own sources and knowledge. This, of course, increased their power even more, because even if no evidence was presented in court, they could still bring in a verdict supported by evidence, their own knowledge. Quincy noted, citing Plowden’s Commentaries (London, 1 5 2 2), “The Jury may give their verdict without testimony, or against testimony, when they themselves have cognisance of ye fact.”193
But this could clearly lead to abuses. First, Quincy noted that “If a Jury give a verdict on their own knowledge, they ought to tell ye Court so …”194 Why? So that the lawyers on both sides would have a chance to examine such knowledge “openly in Court.”195
If any one of ye Jury, that is sworn to try ye issue, be desired to give his testimony concerning some matter of fact, that lies in his own knowledge, + concerns the matter in Q:on [Question], as evid: to his fellow-jurors, ye Court will have him examined openly in Court upon his oath, touching his knowledge therein, + he is not to deliver his testimony in private to his fellow-jurors; for ye Court + Council on both parts are to hear the evidence given on either side as well as ye Jury, that it may be answered by ye other party, if need require, + that ye Court may direct ye Jury to find according to ye evidence.196
Quincy’s Reports do not shed further light on the practical functioning of a jury, except for two cases indicating that jury service could be a hardship. In Reed’s Case, Case 67 (1772), Reports, pp. 331–32, a member of the standing Grand Jury for a county was exempted from service as a trial juror. In The Petition of the Jurors in the Truth of Captain Preston and the British Soldiers, Case 71 (1771), Reports, pp. 382–86, a “reasonable Allowance” for jurors who served in the Boston Massacre Cases, “said Preston’s Trial holding six Days, and said Soldiers nine Days, said Jurys being kept together every Night by two or more Officers” was unanimously denied for lack of statutory authority.197
2. of judges and legislatures
Second only to Quincy’s focus on juries (10 pages) was his concern with the construction of legislation (9 pages).198 Of course, both could be constraints on judicial power, and both were highly controversial in Quincy’s world (as they still are in our world). In addition to the inherent “turf” issues of division of power, there were also troubling questions of whether Parliamentary statutes should be given full effect in the colonies, and how to resolve apparent conflicts between colonial legislation and established English common law, particularly given the “repugnancy” clause of the Charter.199
To make matters even more subtle, Quincy linked his section “Of Statutes or Acts” to another 5-page section, “Of Laws.” The latter section, relying extensively on Montesquieu’s L’Esprit des Lois (1748), looks at the “different orders of laws” in which domestic civil law is only one. Montesquieu (1689–1755), based on his study of Locke and other English sources, developed an early theory of separation of powers, with separate roles for the legislature and the judiciary. His “orders of laws” superficially resemble Roman law categories, but are more subtle and complex. For example, for the Romans, “natural law,” jus naturale, was really a law of nature, like the rules of physics. Montesquieu’s natural law, on the other hand, combined the laws of natural science with “the law of God” of the neo-Thomists and the law of reason of the Enlightenment. Quincy carefully extracted and copied these passages.
The Laws of Nature derive yr force entirely from our frame + being, + therefore so call’d.
The law wch by imprinting on our minds ye idea of a creator inclines us to Him, is ye first in importance, tho’ not in order, of natural Laws.
Peace is ye first Law of Nature. Another Law of Nature prompts to seek Nourishment. The attraction arising from ye Difference of Sexes, + ye natural inclination they have for each other, form a third Law.
A fourth Law of Nature arises from the Desire of living in Society. Ib. ch: 2.200
Quincy also copied in excerpts from Jean Jacques Burlamaqui (1694–1748), professor of natural law at Geneva and another Enlightenment jurist. His views of “natural law” were even more rationalist than Montesquieu.
By natural Law we understand, a law that God imposes on all men, + wch they are able to discover + know by the sole light of Reason, + by attentively considering their state + Nature.
Natural Law is likewise taken for the system, assemblage, or Body of the Laws of Nature.
Burlamaqui’s Poin: Natl Law. p. 126.201
Theories of statutory construction and natural law were hardly “academic” in Quincy’s world. The Stamp Act of 1765 brought all these issues to the fore, only two years after Quincy began the Law Commonplace.202 Quincy’s Reports contain the challenges to the Stamp Act in the Memorial of Boston of December 18, 1765, in which Enlightenment “natural law” arguments featured prominently. As John Adams began:
There are certain Principles fixed unalterably in Nature. Convention and Compact are the Requisites to make any Law obligatory. That the Subject is not bound by Acts, when he is not represented, is a found Maxim of the Law, and not peculiar to the British Constitution, but a Maxim of the antient Roman Law: “What concerns All shall be judged by All.”203
James Otis Jr., further argued:
“The Laws which forbid a Man to pursue his Right one way, ought to be understood with this equitable Restriction, that one finds Judges to whom he may apply. When there are no Courts of Law to appeal to, it is then we must have Recourse to the Law of Nature,” &c. Hugo Grotius, de Jure B. & P. Lib. 1, C. 3 §2. Lib. 2, C. 4 §9. C. 7 §2, n. 2. C. 20 §2, p. 4 & 5, with Mr. Barbeyrac’s Notes. Code, Lib. 1, Tit. 9, De Jud. & Cal.204
Montesquieu added at least two more “orders” of law to which colonists could appeal against the Stamp Act. These were carefully recorded by Quincy in the Law Commonplace. The first “order” was based on the old Roman jus gentium, the “Law of Nations.” As Quincy noted, citing to Thomas Hobbes’s (1588–1679) De Cive (1642).
The Law of Nations, properly so called, + consider’d as a law proceeding from a superior, is nothing else, but the Law of Nature itself, not applied to men consider’d simply as such; but to Nations or States. Ibid. p. 195. Says Hobbes very justly, is divided into the natural Law of Man, + the natural Law of States; + the latter is what we call the Law of Nations.
De Civi. Cap. 14 p. 4.205
The second “order” was unknown to Roman law. Montesquieu divided the Roman “Law of Nations,” the “ius civile,” into two parts. First there was the “Politic law,” the “Laws relative to ye Govenors + ye governed; + this we call Politic Law.”206 Then there was “another set of laws relating to the mutual communication of citizens; by which is understood ye Civil Law.”207
Both “the Law of Nations” and the “Politic Law” were invoked in the Stamp Act arguments of the Memorial of Boston. James Otis, who Quincy reported “opened with Tears,” appealed both to the “Law of Nations” and the fundamental “Politic Law” of the realm.
My Brother Adams has entered so largely into the Validity of the Act, that I shall not enlarge on that Head. Indeed, what has been observed is sufficient to convince the most illiterate Savage that the Parliament of England had no Regard to the very first Principles of their own Liberties.
Only the Preamble of that oppressive Act is enough to rouse the Blood of every generous Briton—“We your Majesty’s Subjects, the Commons of Great Britain, &c., do Give and Grant”—What? Their own Property? No! The Treasure, the Heart’s Blood of all your Majesty’s dutiful and affectionate British-American Subjects.
But the Time is far spent—I will not tire your Patience. It was once a fundamental Maxim, that every Subject had the same Right to his Life, Liberty, Property and the Law, that the King had to his Crown; and ’tis yet, I venture to say, as much as a Crown is worth, to deny the Subject his Law, which is his Birth-right. ’Tis a first Principle, “that Majesty should not only shine in Arms, but be armed with the Laws.” The Administration of Justice is necessary to the very Existence of Governments. Nothing can warrant the stopping the Courte of Justice, but the impossibility of holding Courts, by Reason of War, Invasion, Rebellion or Insurrections.* 1 Inft. 249, a & b. This was Law at a Time when the whole Island of Great Britain was divided into an infinite Number of petty Baronies and Principalities; as Germany is, at this Day. Insurrections then, and even Invasions, put the whole Nation into such Confusion, that Justice could not have her equal Course; especially as the Kings in antient Times frequently sat as Judges. But War has now become so much of a Science, and give so little Disturbance to a Nation engaged, that no War, foreign or domestic, is a sufficient Reason for shutting up the Courts. But, if it were, we are not in such a State, but far otherwise; the whole People being willing and demanding the full Administration of Government. Vid. Bracton, 240.208
Otis concluded with an appeal to the Magna Carta (1215), the core of English “Politics Law.”
The King is always presumed to be present in his Courts, holding out the Law to his Subjects; and when he shuts his Courts, he unkings himself in the most essential Point. 18 E. 3, ch. 1. 1 H. 4 20 E. 3, ch. 2 4 H 4. ch. 1. Vattel, p. 20. And Magna Charta, and the other Statutes are full, “That they will not defer, delay or deny to any Man Justice or Right.” “That is shall not be commanded Charta, it is said we deny no Man Justice, we delay no Man Justice. 2 Inft. ch. 29, p. 56 (1).209
All of this was present in Quincy’s Law Commonplace, section “Of Laws.” This cannot help but impress us today. Just look at the breadth of the selections, starting with Montesquieu, but extending to Burlamaqui, Vattel, Hobbes, Beccaria, and Bacon, giants of the Renaissance and the Enlightenment. These were companions on Quincy’s bookcase!210
But Quincy’s familiarity with the technical side of statutory interpretation was also impressive. This, too, was featured in both the Law Commonplace and his Reports. The section in the Law Commonplace, “Of Statutes or Acts,” was cross-referenced to “Of Laws,” as well as to Quincy’s Preface to the Law Commonplace and to excerpts to Richard Burn’s Ecclesiastical Law (London, 1760), set out in Quincy’s Notebook 4, at page 101 (P347, Reel 4, QP58). There was a heavy emphasis on the “four factors” enunciated by Edward Coke in Heydon’s Case (1584), 3 Coke’s Reports, p. 7a, at 7b.
For the sure + true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the Com. Law,) four things are to be discern’d + consider’d. 1. What was the Common Law before the making of the Act. 2. What was the mischief + defect for which the Common Law did not provide. 3. What remedy the Parliament hath resolved + appointed to cure the decease of the CommonWealth. And 4. the true reason + remedy. 3 Rep. 7. b.211
At least in his early career, Coke took a “contextualist” view of statutes and this, of course, gave common law judges a very decisive role to play, particularly as to the “true reason and remedy.”212
In addition, there was the common law doctrine of “Equity of the Statute.” Here Quincy uncharacteristically relied on Blackstone’s Analysis of the Laws of England (Oxford, 1756).213
To interpret a Law, we must inquire after the will of the Maker: which may be collected either from the words, the context, the subject-matter, the effects + consequences, or the spirit + reason of the Law.
From the latter method of interpretation arises EQUITY, or the correction of that wherein the Law (by reason of its universality) is deficient.
Blackstone’s Anal. B. 1. ch 2. p 3.214
“Equity of the Statute” asks what the legislators would have done if confronted with a situation unanticipated by the drafting or the policy of the statute.
The preamble of a statute is like a key to open the intent of the makers of the Act; and as it is deem’d true, good Arguments may be drawn from it. But the best way to explain a statute is to consider what answer the Lawgivers wou’d probably have given to the question made, if propos’d to them.215
Again, relying heavily on Coke, Quincy noted that words of a statute should be construed to promote consistency within the statute, and “must be taken in a law full + rightful sense.”216 “That construction must be made of a statute in suppression of the mischief, and in advancement of the remedy.”217
While nothing in Quincy’s Law Commonplace suggested the judicial review of Marshall’s Marbury v. Madison (1803),218 or even the dicta of Dr. Bonham’s Case (1610),219 the doctrines of contextual interpretation and “Equity of the Statute” could, in practice, give the judiciary a powerful role, as Coke intended. Quincy also seemed aware of the dangers of too much “equity of intendment.”220 In theory, “Equity of the Statute” was not a substitution of the views of the judge for the legislator, but solely the perfection of the legislator’s will by remedying oversights. Where statutes are penal, or “made in any right of the subject,” they should be “strictly construed” to prevent unanticipated harm.221 Quincy also copied a section from Bedell v. Constable, Vaughan’s Reports (London, 1677) that “[w]hen an acts alters the Common Law, the meaning shall not be strain’d beyond words, except in cases of publick utility, when the end of the act appears to be larger than the words themselves.”222
Some of Quincy’s excerpts seem directly contradictory, such as the section from Hobart’s Reports (1641), “Judges have liberty + authority over statutes to mould them to the truest + best use, according to reason + best use, according to reason + best convenience,”223 and the immediately following selection from Beccaria, especially emphasized by Quincy, with a special caption, “The Danger of Considering ye Spirit of Laws”:
There is nothing more dangerous, than the common axioms: the spirit of the laws is to be considered. To adopt it is to give way to the torrent of opinion. This may seem a paradox to vulgar minds, which are more strongly affected by the smallest disorder before their eyes, than by the most pernicious, tho’ remote, consequences produced by one false principle adopted by a nation. Marquis Beccaria’s Essay on Crimes + punishments. p. 15, 6. quod vide.224
Beccaria, coming from a civilian tradition, might be expected to have more deference to the letter of the code or statute, but the excerpt was followed by another from Entick v. Carrington (1765), Wilson’s Reports, p. 290, where the issue was whether a statute should be expansively read to permit a search warrant by the Secretary of State, rather than a constable.
When ye code of laws is once fixed, it should be observed in ye literal sense, + nothing more is left to ye judge, than to determine, whether an action be, or be not conformable to the written Law. When the rule of right which ought to direct the actions of the philosopher, as well as the ignorant, is a matter of controversy, not a fact, the people are slaves to the magistrates. Ibid. 16. 17. The best way to construe modern statutes is to follow ye words thereof. Per Cur: Wilson’s Rep: 290. Entick v. Carrington225
Quincy’s choice of extracts was not random. He seemed keenly aware both of how a too rigid application of statutes can cause unnecessary injustice, and how a too expansive interpretation can cause surprise and can prejudice preexisting rights. In addition, as noted before, the Law Commonplace was designed to give Quincy authority to argue either side of a contentious case, depending on the client. In addition, at the close of the “Statutes or Acts” section, he also exhibited some critical judgment. Quincy challenges Sir George Treby’s argument in Horton v. Ruerby that he knew “the intention of the Parliament” because “he was present at ye making ye statute …”226
[Quincy] How ye intention of Parliament can be rightly discovered in this way: unless ye informant knew absolutely what determined the concurrence of Each branch of ye Legislature:—qu: w[hether] ye is possible to be known: —and qu: of ye Consequences of their mode of determin:g + judging of ye intent of Law-makers, and Qu: etc.227
In this Quincy anticipated the jurisprudence of Lon Fuller, and others, who regarded the “legislative intent” argument for judicial construction as a transparent fiction.228
Quincy’s Law Commonplace certainly reflected the actual local arguments in court on statutory construction. Derumple v. Clark, Case 17 (1763), Reports, p. 38, contemporary with the start of the Law Commonplace, was a classic example. The “Province Law called the Tax Act,” the annual tax act passed each year in Massachusetts, had for years contained the following language, “where no Contract is, the Landlord shall reimburse the Tenant half the Taxes.”229 Here there was no contract, the tenant had paid the tax, and sued the landlord for half. Quincy’s pupil master, Oxenbridge Thacher, argued for the defendant landlord.
Mr. Thacher, for Defendant. It has been the uninterrupted Custom of this Town for the Tenant to pay the whole Taxes, and though this Law is of very antient Date, (3) we find no Action on it till 1752; so that it always supposed that such a Contract is made. The Words of the Law are not—where no express—no written—no verbal—but “where no Contract is.” And I think the continual paying Rent for several Years without any Demand of Deduction, and several Receipts having been given by the Plaintiff to the Defendant in full of all Accounts, are full Evidence that such was the Intention and Meaning of the Parties, which is a sufficient Contract. To have this Point called in Question would be big with the greatest Inconveniences. If Landlords who from Year to Year have received their whole Rents, and given Discharges for them, are to be called to account for many Years’ Taxes, it would be productive of an ample Harvest of Suits, of which perhaps our Brotherhood might reap the Gleanings.230
Auchmuty, for the plaintiff tenant, replied:
Mr. Auchmuty. As to the Custom of the Town; if there had been no Law, that might have been an Argument of some Weight; but the Law is express, and shall any pretended Custom control it? As for the Consequences they must not be considered—if it is Law, it is Law, &c.231
Despite the plain words of the statute, the court held for the defendant. Justice Lynde observed:
Justice Lynde. I always thought that the Intention of this Law was not to affect the Taxes in such Towns as this, but merely where Farms are let to the Halves, where the Benefit of the Estate being divided, ’tis but just the Charges should be divided too. I think the Custom of the Town is a great Thing, and that the Parties are to be supposed to intend according to the Custom. I think the Evidence sufficient to prove a Contract within the Intendment of the Law.232
Perhaps even more striking, Chief Justice Hutchinson appealed to “Equity.” Here there was no evidence in the Reports of legislative intention, i.e., “Equity of the Statute.” This was pure “judicial” equity, i.e., judicial “discretion”!
Ch. Just. You are to go according to Law and Evidence Where the Law is in any Case doubtfull and the Equity of it plain, you should verge towards Equity. Custom shall not be placed in Opposition to Law, but it may be a Circumstance going to interpret the Intention of the Parties.233
An even more important case was Bishop v. Brig Freemason, Case 78 (1763), Reports, p. 387, an Admiralty case before Admiralty Judge Chambers Russell. Here the question focused on the word “importation” as used in the Act of 15 Car. 2, c. 7, §6, which stated:
No Commodity of the Growth, Production or Manufacture of Europe shall be imported into any Land, Island, Plantation, Colony, Territory, or Place to His Majesty belonging in Asia, Africa, or America, (Tangier only excepted) but what all be bona fide and “without Fraud laden and shipped in England, Wales or the Town of Berwick upon Tweed, and in English built Shipping.234
The Freemason had been seized, loaded with French wine, entering Boston harbor. The wine had not been unloaded, and the Master claimed that the ship “came from Bourdeaux being bound to St. Eustatia,” with no intent to land the wine. Was there “importation”? Auchmuty argued for the validity of the seizure.
Whether she [the Brig Freemason] is within the Meaning of this Act, which is for the Encouragement of Trade: What the Trade is that is to be encouraged, Sec. 5 shews: It is to render Great Britain the Staple. The only sensible Meaning of Importation is Bringing in, exclusive of Landing. 13&14 Car. 2, ch. 13 shews this ought to be the Construction. In the same Sense ’tis taken in 13 & 14 Car. 2, ch. 19, and in 13 & 14, Car. 2, ch. 11, §§22, 23, and in 22 & 23 Car. 2, ch. 26. From these Acts, I think it was evident that Bringing in is all they meant by Importation, as all these Acts use the Words. The Statute 6 Geo. 2, ch. 13, §§2 & 3, makes a Distinction between Landing and Importing: They designed to make a Distinction between Goods that are customable, and not forfeited till Landing, and those which, begin prohibited, are forfeited by bare Importation. If these Laws should be otherwise construed, they would be completely evaded.—For, if they have not a fair Opportunity of Running, they will Report. The Consequences of this Act to any particular Plantation cannot now be considered. There is a great Difference between Goods that may be imported and pay a Duty, and those which are absolutely prohibited.235
Oxenbridge Thacher, Quincy’s pupil master, argued for the Brig Freemason:
Let us consider whether it comes within the Letter of this Act. If any Vessell approaches or comes into a Port, without any Intent to unload, shall her Cargo said to be imported? Can a Thing be said to be imported, because the Vessell that holds it comes into Port? What Mischief do they mean to suppress? ’Tis lawfull for us to be Carriers from one French Port to another. Shall then an English Vessell, Carrier for other Nations, leaking and wanting Provisions, with Liberty from the Owner to touch at an English Port for a few Days to procure Store, not be permitted to touch at such English Port? I challenge an Instance of a Seizure on this Act, till Landing or Bulk broken. Can it be said that this Stopping is the Mischief? ’Tis supplying the Colonies that is intended to be prevented. This will be still plainer from several Acts the Advocate has cited. 13&14 Car. 2, ch. 13 §2. The Meaning must still be the same.236
Not surprisingly, the Vice-Admiralty judge, “having heard Council for two whole days, gave his opinion that landing was not necessary to make an importation contrary to that Act,” arguing that “effectually the Act would be defeated” if the contrary were true.237 Whether Quincy assembled the section of his Law Commonplace on “Statutes or Acts” while assisting Thacher in this case cannot be known, but the Brig Freemason certainly illustrated why a colonist might favor a “strict construction” of statutory language! Even more impressive, ample authority for both sides of the argument was assembled in Quincy’s Law Commonplace.
There were several more important statutory construction cases, not the least being the historic argument over the authority given by “Acts of 15 Car. 2 ch. 22 and 7 28 of Wm & Mary” in Paxton’s Case of the Writs of Assistance Case 22 (1761) Reports, p. 51, and the question of whether the Statute of Frauds (1677) 29 Charles II, c. 3, was adopted in Massachusetts before the colony “made a like law here,” Prov. St. 4 W. & M. (1692). These cases, and more, are discussed at length in the annotations to the Reports. But it is appropriate to close this discussion with a revealing sidelight of the Boston Massacre Cases of 1771, The Petition of the Jurors in the Trials of Captain Preston and the British Soldiers Case 77 (1771), Reports, p. 382. The issue was simple: did the “Act of 4 of W. & M. c. 12, (3)” provide authority for reimbursing the severely oppressed jurors for a six-day trial for Preston and a nine-day trial for the soldiers, “said Jurys being kept together every Night by two or more Officers”?238
The text of the Act reads as follows:
The Act is intitled “An Act for the Settlement of the Bounds and defraying the PUBLICK and NECESSARY CHARGES arising within each respective County in this Province.” “And for the due and equal raising of Monies for defraying of the Charges arising within each respective County, for the necessary Repairs and Amendments of Bridges, Prisons, the Maintenance of poor Prisoners, and ALL PROPER COUNTY CHARGES, It is enacted, that, when and so often as there shall be NEED OF RAISING MONEY FOR THE ENDS AFORESAID in any County, the Justices in Quarter Sessions for such County receiving Information thereof from the County Treasurer, shall agree and determine the whole Sum to be raised, &c., and issue their Order, &c., to assess the same upon the Inhabitants,” &c.239
After “Debates at the Bar [that] took up the Day,” the Justices (only Mr. Justice Dunbar doubting) were unanimously of Opinion that the Prayer of the Petition of the jurors should not be granted.”240 It can be justly doubted if this was a popular decision. Here Quincy interjected his own comments, printed in the Boston Gazette, Monday, May 20, 1771, confirming the impression given by his Law Commonplace that he distrusted what today we would call “judicial activism.”
It gives a most sensible Pleasure in these Times to find a Court of Justice deciding a Point of Law against an Extension of their Power: especially, as that Power would affect the Purse of the Subject—This Decision is of no small Moment; its Importance will appear more conspicuous upon a close Examen and Reflection. However, it is yet a Matter of deep Concern with some that the Superiour Court seem to entertain a different Opinion on the Point in Question. They ordered a Recommendation of the Allowance to be made. They are presumed to know the Law, and we are willing to suppose they would not influence, and much less recommend to a subordinate Court the Exertion of an illegal Power; a Power derogatory to the natural and primary Right of the Subject over his Property; and of the highest Consequence to the Community, considered in a separate or collective View.241
All in all, the sections “Of Laws” and “Of Statutes or Acts” in the Law Commonplace remain of great importance. When read, as intended, with Quincy’s accompanying Reports, they testify eloquently to Quincy’s legal ability, and the sophistication of his study.
IV. CONCLUSION
The topics just discussed only scratch the surface of what there is to learn from the Law Commonplace. For the economic historian, there are the extensive sections on “Insurance,”242 “Notes,”243 “Bills of Exchange,”244 and “Arbitrament, Arbitrators & Award,”245 which give an excellent sense of how business was actually done. For the proceduralist, a member of an esoteric tribe to which this editor belongs, there is a mass of information under captions from “Action,”246 “Arrest,”247 and “Attachment”248 to “Tryal”249 and “Variance.”250 What modern lawyers would call “Real Property” was represented by “Estates,”251 “Freehold,”252 “Joint Tenants,”253 “Of Lands, Tenements or Here-ditaments,”254 “Lease, Lessor + Lessee,”255 “Of Releases,”256 and other captions. “Torts” was represented by “Account,”257 “Battery,”258 “Trespass,”259 “Words Actionable or Not,”260 and “Contract” by “Accord”261 “Assumpsit”262 “Obligation + Deed,”263 and “Usury.”264 The entire modern law school curriculum, as envisioned by Joseph Story and structured by Christopher Columbus Langdell, can find its eighteenth-century counterpart in these pages. Perhaps more to the point, today’s practicing lawyer will find this a remarkably familiar world, and the Law Commonplace easily accessible.
At one level, Quincy’s Law Commonplace was just a notebook full of extracts, largely from English sources, copied out by a still very young man. Quincy was just over nineteen when he began. But this was no ordinary young man, and these were not ordinary times. Many surviving “commonplace books” were truly “commonplace,” but not this one. Quincy had a subtle and brilliant mind, and he created a powerful and unmistakable picture by this quilt of authorities and precedents. The Law Commonplace will never be as accessible to the layperson as Quincy’s Political Commonplace or the Southern Journal, but it can tell us a great deal about the origins of American legal education and American law. It also tells us a great deal about the social and economic culture in which Quincy lived. Read together with Quincy’s remarkable Reports, which will occupy the forthcoming volumes 4 and 5 of the Quincy Papers,265 the Law Commonplace paints a surprisingly complete and nuanced picture of the legal world at the birth of our nation.
table 1. The accompanying chart was prepared by my brilliant research assistant, Kevin Willoughby Cox, using biographical resources including the Professional and Industrial History of Suffolk County, Massachusetts, Vol. 1, History of the Bench and Bar, by W. T. Davis (Boston, 1894), and later volumes of Sibley’s Harvard Graduates, variously compiled by Clifford K. Shipton, Conrad Edick Wright and Edward W. Hanson (Cambridge, 1933– ). Focusing on the first “Dean” of the Boston bar, Jeremiah son (Cambridge, 1933– ). Focusing on the first “Dean” of the Boston bar, Jeremiah Gridley (1702–1767), it illustrates the “genealogy” of apprenticeships among the elite practitioners. Note, particularly, the position of Oxenbridge Thacher (1719–1765), Quincy’s pupil master, and Quincy himself. Through Thacher, Quincy was part of a tradition that links men like Governor Christopher Gore (1758–1827), Daniel Webster (1782–1852), and Charles Francis Adams (1807–1886).
* A version of this introduction first appeared in volume 39 of the Arizona State Law Journal (Summer, 2007), ii, 317. I am most grateful to the talented student editors of that law review.
1. See Robert Stevens’s classic Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill, N.C., 1983). (Hereafter, “Stevens.”) For both Litchfield and Yale in the 1960s see the fine essays of John H. Langbein and Laura Kalman, respectively, in History of Yale Law School: The Tercentennial Lectures (New Haven, Conn., 2004), pp. 17‒52, 154‒237.
2. See Paul D. Carrington, “The Revolutionary Idea of University Legal Education,” 31 William & Mary L. Rev. 527 (1990). (Hereafter, Carrington, “University Legal Education.”)
3. Wythe, a great law teacher, did most of his teaching outside of a college, taking pupils in his chambers. Wythe taught at William and Mary from only 1780 to 1790, when he resigned “in anger.” See Carrington, “University Legal Education,” supra, p. 537. Jefferson and Monroe were educated by Wythe privately. Interestingly, Wythe refused to sign Patrick Henry’s license, leaving it to the other two examinees to admit him. See Charles Warren, A History of the American Bar (Boston, 1911), p. 165. (Hereafter, “Warren.”)
4. See the standard accounts in Anton-Hermann Chroust, The Rise of the Legal Profession in America, Volume 1: The Colonial Experience (Norman, Okla., 1965), pp. 30–33. (“This kind of training or apprenticeship … had many serious defects.” p. 33); Warren, supra, pp. 165–87 (“As a rule, the lawyer was too busy a man to pay much attention to his students …” p. 166). See also Robert Lefcourt’s 1983 Ph.D. thesis, “Democratic Influences on Legal Education from Colonial Times to the Civil War,” University Microfilms International, Ann Arbor, which argues that the primary purpose of the apprenticeship method, described as “irrelevant and impractical,” was the “monopolistic tendency” of “ruling lawyers.” Id., pp. 72–79. Even Lawrence M. Friedman emphasized the negative aspects of apprenticeship. “At worst, an apprentice went through a haphazard course of drudgery and copy-work, with a few glances, catch-or-catch can, at the law books.” Lawrence M. Friedman, A History of American Law (2d ed., New York, 1985), p. 98. Of course there were some well publicized bad experiences, such as that of William Livingston’s 1745 “invective” against his pupil master, James Alexander of New York. See Warren, pp. 167–69. But, as we will see, there was another side to the story. The best and most balanced account is Charles R. McKirdy’s “The Lawyer As Apprentice: Legal Education in Eighteenth Century Massachusetts,” 28 J. of Legal Education (1976), p. 124. McKirdy astutely observes that “Sir William Blackstone took the opportunity offered in his introductory Vinerian Lecture at Oxford [1758] to blame most of the ills besetting the legal profession on the ‘pernicious’ custom of apprenticeship.” Id., p. 135. See William Blackstone, A Discourse on the Study of Law (Oxford, 1758), p. 28. As the first teacher of English common law within a university setting, Blackstone’s conflict of interest was apparent. And Blackstone inspired other university law teachers to attack the apprenticeship method. Conspicuous among these was Daniel Mayes at the important Transylvania University Law Department in Lexington, Kentucky, who cited Blackstone while attacking apprenticeship in an introductory lecture in 1833. See M. H. Hoeflich, “Plus Ça Change, Plus C’est La Même Chose: The Integration of Theory and Practice in Legal Education,” 66 Temple Law Review, pp. 123, 133–34 (1993). See also Paul D. Carrington’s excellent essay, “Teaching Law and Virtue at Transylvania University: The George Wythe Tradition in the Antebellum Years,” 41 Mercer Law Review 673 (1989–1990), pp. 691–96, 697–99. As Hoeflich observes, “One of the ‘hot’ topics in legal education has been the debate over the extent to which it is desirable and possible to integrate a more practical approach into the predominantly theoretical classroom model of legal education used in most American law schools.” Id., p. 123. Indeed, nothing changes.
5. Warren actually tried to make the argument that apprenticeship was such a bad system that it made good lawyers because they had so much to overcome, an argument I would like to try on my law students! “When all is said, however, as to the meagerness of a lawyer’s education, one fact must be strongly emphasized—that this very meagerness was a source of strength. Multum in parvo was particularly applicable to the training for the Bar of that era.” Warren, supra, p. 187. Of course, what else could be expected from the great historian of the Harvard Law School! See Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), 3 vols.
6. See E. Alfred Jones, American Members of the Inns of Court (London, 1924), pp. ix–xxx. Between 1674 to 1776 over sixty Virginians attended the Inns of Court, “but only twenty engaged in practice once they got home,” and of these “some never practiced.” W. Hamilton Bryson, Legal Education in Virginia 1779–1979 (Charlottesville, 1982), p. 9. Formal educational programs had deteriorated in the Inns of Court by this time. “The essence of membership in an English Inn was that it was a prestigious place to do a legal apprenticeship,” usually by “an apprenticeship to a practicing lawyer in London with residence in the Inn.” Id., p. 9. “In fact, many Virginians who were members of an Inn had no intention of ever practicing law but joined for purely social purposes.” Id., p. 9. On the “marked decay” in the “‘system’ of legal education” in the Inns of Court, see David Lemmings, Gentlemen and Barristers: The Inns of Court and The English Bar 1686–1730 (Oxford, 1980), pp. 75–109.
7. See Diary and Autobiography of John Adams (L. H. Butterfield ed., Cambridge, Mass., 1964), vol. 1, pp. 136–37, vol. 2, p. 274. (Hereafter, “Adams, Diary.”) See also Daniel R. Coquillette, “Justinian in Braintree: John Adams, Civilian Learning, and Legal Elitism, 1758–1775” in Law in Colonial Massachusetts 1630–1800 (eds. D. R. Coquillette, R. J. Brink, C. S. Menand, Boston, 1984), pp. 395–400. (Hereafter, “Coquillette, Adams.”) For the highly comparable history of medical apprenticeship or pupilage and the “professionalization of Boston medicine during the last half of the eighteenth century,” see Philip Cash, “The Professionalization of Boston Medicine, 1760–1803” in Medicine in Colonial Massachusetts (eds. P. Cash, E. H. Christianson, J. W. Estes, Boston, 1980), pp. 69–100. The “Harvard Medical Institution,” the area’s first medical school, was not founded until 1782. Id., p. 89.
8. One of these exceptions is John Adams’s law “Commonplace Book.” See Legal Papers of John Adams (eds. L. Kinvin Wroth, Hiller B. Zobel, Cambridge, Mass., 1976), vol. 1, pp. 4–25. This dates from ca. 1759 and is a very rudimentary affair compared to Quincy’s Law Commonplace. See discussion at Section I, “The Manuscript,” infra. Another exception is Thomas Jefferson’s Legal Commonplace Book, which was edited by Gilbert Chinard in 1926. See The Commonplace Book of Thomas Jefferson: A Repertory of his Ideas on Government (G. Chinard ed., Baltimore, 1926) and the discussion in Douglas L. Wilson, “Thomas Jefferson’s Early Notebooks,” 42 William and Mary Quarterly (1985), pp. 433–52. Jefferson also had an Equity Commonplace Book which is in the Huntington Library. See the discussion in Douglas L. Wilson’s fine edition of Jefferson’s Literary Commonplace Book (D. L. Wilson ed., Princeton, N.J., 1989), p. 195, n. 195 and in his article cited above. Wilson sets the date for the beginning of Jefferson’s Legal Commonplace Book as “the period 1765–1766” which makes it almost exactly a contemporary of Quincy’s book. Id., p. 198, n. 14.
See also the remarkable commonplace collection, spanning the 17th century to 1935, found in the Bounds Law Library at the University of Alabama School of Law and described in Paul M. Pruitt Jr., David I. Durham, Commonplace Book of Law: A Selection of Related Notebooks from the Seventeenth Century to the Mid-Twentieth Century (Tuscaloosa, Ala., 2005). Another important exception was the exhibit at the Beinecke Rare Book and Manuscript Library at Yale, organized by Earle Havens in 2001. See Earle Havens, Commonplace Books: A History of Manuscripts and Printed Books from Antiquity to the Twentieth Century (New Haven, Conn., 2001). My own distinguished colleague, Karen Beck, organized an equally important exhibit of law student notebooks at the Boston College Law School Rare Books Room in 1999. See Karen Beck, Notable Notes: A Collection of Law Student Notebooks, Boston, 1999; Karen Beck, “One Step at a Time: The Research Value of Student Notebooks,” 91 Law Library, p. 29 (1999). The latter article emphasizes the importance of the law commonplace of Theophilius Parsons Sr. (1750–1813), created in 1773. Id., p. 32. See Theophilius Parsons Jr., Memoir of Theophilius Parsons (Boston, 1859), p. 137.
9. See Arthur E. Sutherland, The Law at Harvard (Cambridge, Mass., 1967), pp. 79–92. (Hereafter, “Sutherland.”)
10. See Daniel R. Coquillette, “‘Mourning Venice and Genoa’: Joseph Story, Legal Education, and the Lex Mercatoria” in FromLex Mercatoria to Commerical Law (ed. Vito Piergiovanni, Berlin, 2005), pp. 14–26. (Hereafter, “Coquillette, Joseph Story.”) See also Sutherland, supra, pp. 92–139; R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, N.C., 1985), pp. 237–70. (Hereafter, “Newmyer.”)
11. See Coquillette, Joseph Story, supra, pp. 14–26; Newmyer, supra, pp. 269–71. Newmyer observes that “much of Story’s grand plan for a cadre of conservative lawyer-statesmen went unrealized.” Id., p. 269. This may be a fair statement in the short run, but the future of Harvard Law School surely provided such a “cadre”!
12. See Sutherland, supra, pp. 140–61.
13. See the American Law Review (October, 1870), “Summary of Events,” set out at Sutherland, supra, p. 140. See also Warren, supra, pp. 342–78.
14. Christopher Columbus Langdell, Cases on Contracts (Cambridge, Mass., 1871). The most insightful commentator on Langdell today is my esteemed colleague, Bruce Kimball. See, for example, Bruce A. Kimball, “‘Warn Students That I Entertain Heretical Opinions, Which They Are Not to Take as Law’: The Inception of Case Method Teaching in the Classrooms of the Early C. C. Langdell, 1870–1885,” 17 Law and History Review 56 (1999), pp. 91–93, 124–25; Bruce A. Kimball, Pedro Reyes, “The ‘First Modern Civil Procedure Course’ as Taught by C. C. Langdell, 1870–78,” 47 American Journal of Legal History (2005), pp. 257–58, 289–95.
15. See Section II, “Pedagogy,” supra.
16. See discussion in Daniel R. Coquillette, “‘The Purer Fountains’: Bacon and Legal Education,” in Francis Bacon and the Refiguring of Early Modern Thought: Essays to Commemorate the Advancement of Learning (1605‒2005) (J. R. Solomon, C. G. Martin, eds., London, 2005), pp. 145–72.
17. See Section II, “Pedagogy,” infra.
18. See Section I, “The Manuscript,” infra.
19. John Adams appreciated this fact, and not only trained himself in Roman law, but used it systematically in his Vice-Admiralty practice. See Coquillette, Adams, supra, pp. 382–95.
20. See M. H. Hoeflich, pp. 123–27. William R. Trail, William D. Underwood, “The Decline of Professional Legal Training and a Proposal for its Revitalization in Professional Law Schools,” 48 Baylor L. Rev. 201 (1996), pp. 201–08, 210–11, 244–45.
21. See Reports, pp. 318–40, and annotations.
22. See the discussion at note 34, infra. See also The Law Commonplace, p. [21], n. 10, infra.
23. I am particularly grateful to my research assistant, Kevin Willoughby Cox, Harvard Law School Class of 2006, for his invaluable and careful work on the manuscripts. See Appendix I I, infra, the “Cox Chart.”
24. See p. 347, Reel 4, QP56, “Vol. 1 1763,” pp. 122–41.
25. Adams, Diary, vol. 1, p. 47.
26. Id., vol. 1, p. 47.
27. John Locke, Works (London, 1823), vol. 3, pp. 331 ff.
28. Id., p. 336.
29. Hale’s advice was one of the first readings assigned by Jeremy Gridley to his new apprentice, John Adams. “Then he took his [Gridley’s] Common Place Book and [illegible] gave me Ld. Hales Advice to a Student of the Common law.” Adams, Diary, October 25, 1758, vol. 1, p. 55. The prestige and influence of Hale’s Preface was doubtless bolstered by the posthumous publication of his Analysis of the Law, an immensely influential and important book. It was originally written around 1670 and not published until 1713 as The History and Analysis of the Common Law of England; by a Learned Hand (London, 1713). For the importance of this “pathbreaking work,” this “comprehensive method of analysis,” see Harold J. Berman, Charles J. Reid Jr., “The Transformation of English Legal Science: From Hale to Blackstone,” 45 Emory Law Journal 437 (1996), pp. 486–89.
30. Rolle’s Abridgment (London, 1668), “Publisher’s Preface,” n.p. [8].
31. Id.
32. Id., n.p. [8].
33. Legal Papers of John Adams (L. Kinvin Wroth, Hiller B. Zobel, eds., Cambridge, Mass., 1965), vol. 1, pp. 4–25.
34. I am most indebted to Kevin W. Cox for deciphering the “Red Reports” cross citations. According to Samuel M. Quincy the manuscripts of the Reports “consist of three volumes: one with paper covers (from the original color of which it is referred to as “Red Reports”) and two others bound in parchment, and numbered “3” and “4.” The first two volumes of this set are missing, and were probably destroyed in a fire by which the reporter’s law library was lost.” Reports, “Preface,” pp. iii–iv. But Samuel M. Quincy is at least partly wrong, as the volume containing the Law Commonplace is identical in binding and paper page size (20.0 cm. by 16.1. cm.) to “Vol. 3” and “Vol. 4” containing the Reports, and is marked “Vol. 1.” There are also citations from the Reports to “Vol. 1” which clearly connect to the Law Commonplace substantively. So, at most, only one volume is missing. But there is a fourth volume, also of identical paper and page size (20.0 cm. by 16.1 cm.), which has a new cover. This is P 347 Reel 4 QP54. It is much thinner than the other three, and was dismissed by Samuel M. Quincy as “the fragment of another volume apparently just commenced.” It contained the “Middlesex Cases” (1771–1772) detailed at Reports, pp. 318–40, which were not in Quincy’s hand. Could it be the missing “Vol. 2”? Or a fragment of the volume? Most likely, Samuel M. Quincy was correct in dismissing the thin volume, but the identical paper and page size causes one to pause. Otherwise, “Vol. 2” was lost. It could have perished in the fire. A happier thought is that it may be discovered someday. What a fascinating find that would be.
35. See F. H. Lawson, The Oxford Law School 1850–1965 (Oxford, 1968), pp. 4–5 (hereafter, “Lawson”); Sutherland, supra, pp. 19–25. Lawson was certainly right in observing that “Blackstone exerted a greater influence in the North American colonies and subsequently in the United States than in England …” Lawson, p. 4. But both the theoretical style and the politics of his Commentaries earned Blackstone powerful enemies, such as Thomas Jefferson. Jefferson, writing to Madison in 1826, observed that when “the honied Mansfieldism of Blackstone became the student’s hornbook, from that moment, that profession (the nursery of our Congress), began to slide into toryism …” Thomas Jefferson, Works (P. L. Ford, ed., New York, 1905), vol. 12, pp. 455–56. See Sutherland, p. 13. Blackstone still has his pedagogical enemies. See Duncan Kennedy, “The Structure of Blackstone’s Commentaries,” 28 Buffalo Law Review 205 (1979). In addition, a good deal of the practiced legal training in England was outside both the Inns of Court and the universities, and remained more practical than formal. See David Lemmings, Professors of the Law, Barristers and English Legal Culture in the Eighteenth Century (Oxford, 2000), pp. 107–48.
36. Francis Stoughton Sullivan, A Plan For the Study of the Feudal and English Laws in the University of Dublin (Dublin, 1761), p. 4.
37. At least one thousand sets were exported to America before 1771, when a pirated edition was published in Philadelphia by Robert Bell. One thousand and four hundred copies were subscribed in advance, with one New York dealer taking two hundred and thirty-nine. See Sutherland, p. 25. Although Blackstone’s Commentaries were not available to Quincy when he began the Law Commonplace, he owned a set at his death in 1775. See Quincy’s Reports, Appendix 9, “Catalogue of Books Belonging to the Estate of Josiah Quincy Jun: Esq: Deceas’d,” Item 67. At least one volume of this set survived, for a time, in the library of Phillips Andover. It is now gone. Again, many thanks to Mark Sullivan, superb reference librarian. In addition, there is one citation to the first volume (1765) of Blackstone’s Commentaries at Law Commonplace, p. 94 [82], which may be a later addition, although apparently in Quincy’s hand. See page 281, n. 2, infra. There are several citations to Blackstone’s earlier Analysis of the Laws of England (Oxford, 1756). See Law Commonplace, pp. n.p. [6], n.p. [10] and 89 [77]. See also n. 46, infra.
38. See Carrington, supra, pp. 527‒38 and note 3 supra.
39. See John H. Langbein, “Blackstone, Litchfield, and Yale: The Founding of the Yale Law School,” History of the Yale Law School (ed. Anthony T. Kronman, New Haven, Conn., 2004), pp. 17–36. (Hereafter, “Langbein, The Founding.”)
40. Id., p. 30.
41. Id., p. 30.
42. Oxenbridge Thacher (1719–1765) was one of Boston’s most “eminent lawyers of the period.” See the biography set out in Appendix 6 to the Reports, vol. 5, infra. He was Quincy’s law tutor from 1763 to Thacher’s death in July, 1765. See Josiah Quincy, Memoir of the Life of Josiah Quincy, Jr. (2d ed., Boston, 1874), pp. 6–7. (Hereafter, “Memoir.”) See also Clifford K. Shipton, Sibley’s Harvard Graduate, vol. xv: Biographical Sketches of Those Who Attended Harvard College in the Classes 1761–1763 (Boston, 1970), p. 479. On Thacher’s death in 1765, Quincy “took over the office and as much of the practice as he could handle.” Id., p. 479. According to John Adams, Thacher believed strongly in commonplacing. “He [Thacher] says He is sorry that he neglected to keep a Common Place Book when he began to study Law, and he is half a mind to begin now.” Adams, Diary, vol. 1, p. 55 (October 25, 1758).
43. See, for example, the citation at Law Commonplace, p. 105 [transcript 90] to “Red Rep. 70 Angier v. Jackson.” That is a citation to Quincy’s “red” notebook, P347 Reel 4 QP55 (now rebound in brown), which contained the manuscript of his report of Angier v. Jackson, Reports, p. 84. As Samuel M. Quincy observed in his “Preface” to the Reports, this volume had “paper covers, (from the original color of which it is referred to as ‘Red Reports,’).” See Reports, p. iii. Quincy also cross-referenced the important case of Baker v. Mattocks at Law Commonplace, p. 106 [transcript 91]. Baker v. Mattocks was in the “Red Reports” at page 57, and in the Reports at page 69. I am most grateful to Kevin Cox, my brilliant research assistant, for deciphering these cross-references!
44. Hale’s Preface, n.p. [page 8].
45. Law Commonplace, Quincy n.p., Transcription p. [7].
46. Id., n.p., Transcription p. [9]. Quincy followed Reeve’s advice and relied on Wood’s Institute of the Laws of England for his preliminary “heads + divisions.” As J. L. Barton observed of Wood’s Institute, “Its success was certainly due in part to the fact that it was the only book of its kind in print until Blackstone’s Commentaries was published, but it is only fair to say that the tenth edition appeared as late as 1 7 7 2, when the Commentaries had been in circulation for some years.” J. L. Barton, “Legal Studies” in The History of the University of Oxford (ed. T. H. Ashton), vol. 5, The Eighteenth Century (eds. L. S. Sutherland, L. C. Mitchell, Oxford, 1986), p. 600.
The first volume of Blackstone’s Commentaries did not appear until 1765, and there is only one mention of it in Quincy’s Law Commonplace, which may be a later addition. See note 37 supra. There are several citations to Blackstone’s more rudimentary Analysis of the Laws of England [with] Introductory discourse on the Study of the Law (Oxford, 1756) and just preceding Reeve’s Directions to his Nephew, at Law Commonplace, Quincy n.p., Transcription, p. [6], but Quincy made little use of it, apparently preferring Wood’s “divisions” and Hale’s system. See further citations to Blackstone’s Analysis at p. n.p. [10] and p. 89 [77] of the Law Commonplace. John Adams was also aware of Blackstone’s Analysis, observing: “This day I am beginning my Ld. Hales History of the Common Law, a Book borrowed of Mr. Otis, and read once already, Analysis and all, with great Satisfaction. I wish I had Mr. Blackstone’s Analysis that I might compare, and see what Improvements he has made upon Hale’s.” Adams, Diary, vol. 1, p. 169.
47. Adams, Diary, supra, vol. 1, pp. 54–55 (October 5, 1758). See also p. 32, infra, and accompanying note.
48. Id., p. 55. See also pp. 31–33, infra.
49. See Warren, pp. 175–76.
50. Langdell’s pioneering casebook on contracts contains not one word of explanatory text. To Langdell, the essence of study was to “select, classify and arrange all cases which had contributed to the growth, development, or establishment of any of its [contracts] essential doctrines.” C. C. Langdell, A Selection of Cases on the Law of Contracts (Boston, 1871), p. vii. In a sense, Langdell assisted with one aspect of commonplacing, the arrangement and sequence of cases, but continued to leave the student with the task of analysis and application. As Langdell noted: “Law, considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law.” Id., p. vi.
51. See Sutherland, pp. 92–139; Warren, History of Harvard Law School (New York, 1908), vol. 1, pp. 413–506.
52. See Coquillette, Joseph Story, supra, pp. 24–26. See also note 10, supra.
53. The Miscellaneous Writings of Joseph Story (ed. W. W. Story, Boston, 1852), pp. 380–81.
54. Newmyer, p. 40.
55. Id., p. 40.
56. Id., p. 40.
57. Id., pp. 41–42. For an account of the sparse early American law reporting, see Erwin C. Surrency, “Law Reports in the United States,” 25 Am. J. Legal Hist. 58 (1981); Alan V. Briceland, “Ephraim Kirby: Pioneer of American Law Reporting,” 16 Am. J. Legal Hist. (1972). There is an excellent book about early Supreme Court reports, Morris L. Cohen & Sharon Hamby O’Connor, A Guide to the Early Reports of the United States (1995). See also W. Hamilton Bryson, “Virginia Manuscript Law Reports,” 82 Law Libr. Jour. 305–11 (1990) and my case for Josiah Quincy’s claim as the first true American law reporter, Daniel R. Coquillette, “First Flower—The Earliest American Law Reports and the Extraordinary Josiah Quincy, Jr. (1744–1775),” 30 Suffolk Univ. L. Rev. 1 (1976), pp. 1–15 (hereafter, “Coquillette, Law Reports”).
58. Newmyer, p. 41.
59. Newmyer, p. 42.
60. Newmyer, p. 41.
61. Id., p. 44.
62. See Id., p. 41; Coquillette, Adams, pp. 360–76. As M. H. Hoeflich has observed: “During the period from the Revolution to the Civil War…. American lawyers were far less parochial than they were in the succeeding century. Many had a lively interest in Roman law and its descendent, the modern civil law. At the same time, this interest rarely became expertise.” M. H. Hoeflich, “An Aborted Attempt to Translate Justinian’s Digest in Antebellum America,” Zeitschrift der Savigny-Stiftung für Rechtgeschichte, 122 Band, p. 198 (Vienna, 2005).
63. Adams, Diary, supra, vol. 1, pp. 54–55 (October 25, 1758). Francis Dickins was the 16th Regius Professor of Civil Law at Cambridge, serving from 1714 to 1755, nearly 41 years!
64. Id., vol. 1, pp. 173–74. See also vol. 1, p. 199. By “Vinnius,” Adams was referring to Arnoldus Vinnius (1586–1657), whose popular commentary on Justinian’s Institute, In Quattuor libros institutionum imperialium commentarius academicus was to be found in many eighteenth-century editions, such as the Venice edition of 1736. These were usually edited by Johann Gottlieb Heineccius (1681–1741). Johannes Van Muyden, a civilian scholar, lived from 1652 to 1729. His Compendiosa institutionum Justiniana tractatie was eventually acquired by Adams from Gridley’s library and remains today in the Boston Public Library. See Adams, Diary, supra, vol. 1, p. 57, n. 2. See also p. 27, supra, and accompanying notes.
65. These extraordinary similarities were first noticed by my talented research assistant, Kevin Cox, Harvard Law School 2006. Dickins’s program was not too strenuous! According to the letter copied into Quincy’s notebook, “If a general knowledge only of the Civil Law is desired in the most short and compendious Method, the most advisable way is to read Wood’s Institutes [Thomas Wood, A New Institute of the Imperial or Civil Law (London, 1704), with subsequent editions in 1712, 1721, and 1730] in its natural order, translated into English by W. Strahan: [Jean Domat, Civil Law in its Natural Order (trans. William Strahan, London, 1722), with subsequent printings in 1737 and 1772]. [T]hese two authors will furnish a careful reader with the main principals [sic] of the Civil Law in all its several branches.” “Vol. 4” P347, Reel 4, QP58, p. 148. Only if “the intent be to become as compleat a master as may be of the Civil Law” was it “necessary to begin with the first Element and to read Justinian’s Institutions …” Id., p. 148. In short, no need for a gentleman to actually read law from the original sources to have “a general knowledge of the civil law”! This rather cavalier approach was reflected in other “quick and easy” civil law guides of the period, some of which were cross-cited to Blackstone’s Commentaries. See, for example, the short book by one of Dickins’s successors as Regius Professor, Samuel Hallifax, who served from 1770 to 1782. Hallifax’s An Analysis of the Roman Civil Law (Cambridge, 1774) was extensively cross-referenced to Blackstone, and was certainly not “heavy lifting,” even by the standards of modern student “outlines”! Certainly no Latin was required. Quincy’s laborious collection of Latin maxims was not a Roman Law course, but it involved much more effort and familiarity with original Latin sources than the “courses” of civil law Dickins and Hallifax prepared for the “gentleman scholar” of Cambridge in the eighteenth century!
66. “There was a continuing tradition in England of small books purporting to assist law students by isolating the ‘principal grounds and maxims’ of the law. This tradition went back to Abraham Fraunce’s (1557?–1633) The Lawyiers Logick (1588), a book designed to introduce Fraunce’s fellows at Gray’s Inn, which included Bacon, to the Ramis dialectic. Indeed, the tradition could be said to include St. Germain’s Doctor and Student, as early as 1523, where the ‘Student of the Common Law’ invoked ‘dyvers pryncyples that be called by those learned in the lawe maxymes … for every one of those maxymes is suffycyent auctorytie to hym selfe to such an extent that it is fruitless to argue with those who deny them.’ The maxims in St. Germain’s book were apparently the basis of the first English collection of maxims, Principia sive Maxima Legum Anglie (London, 1546) located and described in a most scholarly study by John C. Hogan and Mortimer D. Schwartz. There followed books like William Fulbeck’s (1560–1603) A Direction or Preparative to the Study of the Lawe (1600) (Fulbeck being another Gray’s Inn lawyer), Sir Henry Finch’s (1558–1625) Nomotechnia (1613), and William Noy’s (1577–1634) A Treatise of the Principall Grounds and Maximes of the Lawes of this Kingdome (1641). The latter was a treatise written originally in Law French and published in English long after the author’s death. It remains difficult to show when any of these little treatises was first written and circulated at the Inns of Court. It is therefore hard to prove the exact sequence of ideas between them, and from them to Bacon.” Daniel R. Coquillette, Francis Bacon (Stanford, 1992), p. 37 (hereafter, “Coquillette, Bacon”).
67. Id., pp. 37–38.
68. Id., p. 39.
69. Id., p. 39.
70. Id., p. 40.
71. Reports, p. 209.
72. Reports, p. 201.
73. Coquillette, Bacon, p. 39, citing Bacon’s Maximes (1631), Works of Francis Bacon (ed. J. Spedding, R. L. Ellis, D. D. Heath, London, 1857–74), vol. VII, p. 321. (Hereafter, “Works of Francis Bacon.”)
74. As to “the comparison of legal systems to discover universal rules when they existed” and its importance to Joseph Story and other American lawyers of the early Republic, see M. H. Hoeflich, “Comparative Law in Antebellum America,” 4 Washington University Global Studies Review 535, 537–44 (2005). Bacon compared maxims to a ‘magnetic needle’ that “points at the law, but does not settle it.” Works of Francis Bacon, vol. XIII, p. 67. “The magnetic needle was useful because it accurately reflected the natural phenomenon of the earth’s polarity. Likewise, useful jurisprudence began with the empirical facts of the law that existed in the courts and the statute books, and then moved, step by step, to generalities that were genuinely useful, because they were a product of induction from reality. But it was also already plain that Bacon’s maxims were intended to do more than simply describe and restate existing law. By accurately identifying the rational, consistent and systematic ‘middle axioms’ of the system, the development of the law could be directed toward more harmony and more reason.” Coquillette, Bacon, p. 46.
75. “Mr. Otis reasoned with great learning and zeal …” Adams, Diary, vol. 1, p. 267 (Dec. 20, 1768).
76. Reports, p. 203.
77. C. C. Langdell, A Selection of Cases on the Law of Contracts (Boston, 1871), p. vi.
78. Matthew Hale talked of a seven-year period, or longer, for the commonplacing process. “Touching the Method of the study of the Common Law, I must in general say thus much to the Student thereof; It is necessary for him to observe a Method in his Reading and Study; for let him assure himself, though his memory never be so good, he shall never be able to carry on a distinct serviceable Memory of all, or the greatest part he reads, the end of seven years, nor a much shorter time, without the helps of Use or Method; yea what he hath Read seven years since, will, without the help of Method, or reiterated use, be as new to him as if he had scarce ever read it: A Method therefore is necessary, but various, according to every Man’s particular Fancy …” Matthew Hale, “Preface Directed to the Young Students of the Common Law,” in Henry Rolle, Un Abridgment Des Plusieurs Cases … del Common Ley … (London, 1668), n.p.
79. See Coquillette, Law Reports, pp. 1–15.
80. See Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, Mass., 2004), pp. 1–11. (Hereafter, “Bilder.”)
81. The Charters and General Laws of the Colony and Province of Massachusetts Bay (Boston, 1814), The Charter of the Province … (1691), pp. 31–33. (Hereafter, “Charters and General Laws.”) It is interesting to note that oaths had to be “not repugnant to the laws and statutes of this our realm of England.” Id., p. 33 (emphasis added). Was the omission of “and statutes” from the general power to make law significant? Could colonial statutes conflict with individual English statutes, but not with the common law itself?
82. Id., p. 32.
83. See, for example, the discussion and the refusal to grant an appeal in Scollay v. Dunn, Case 30 (1763), Reports, pp. 80–83.
84. See Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass.), p. 17 (hereafter, “Horwitz”). See also Bilder, pp. 35–40.
85. See, for example, Hanlon v. Thayer Case 37 (1764), Reports, pp. 99–103, where Chief Justice Hutchinson remarked, “I should have been extremely glad if this case had been argued a little more largely by the Gentlemen of the Bar, and more Authorities cited, in Matter of so great Consequence.” Id., p. 102.
86. See, for example, the discussion in the important case of Banister v. Henderson (Case 42, 1765) at pp. 122–45. At one point, Quincy questioned Gridley’s argument, noting, “Sed quaere, and see Dr. Sullivan’s Lect. On the Laws of England 182, 3 [published as F. S. Sullivan, Lectures on the Constitution and Laws of England etc. (London, 1770)], and Qu. If ye Act of Parliament extends, or is binding here.” Id., p. 145. (Quincy’s note must have been added after the case report.) In the same case, Chief Justice Hutchinson again admonished the bar, “Have you no Authorities, Gentlemen?” to have Gridley reply, “There is no Authority that the Sun shines.” Id., p. 122.
87. Appeals “to his Majesty in Council” were not allowed in major cases such as Dudley v. Dudley Case 9 (1762), apparently because the Charter of 1691 allowed appeals in “personal” actions only and not land cases. See Reports, p. 25, Charters and General Laws, supra, p. 32. Cases that directly presented conflicts between English and colonial law, such as Bromfield v. Little Case 40 (1764), Reports, p. 108, although of “much Importance to the Community,” were not appealed, possibly because the monetary requirement of the Charter was not met. See also the discussion in Scollay v. Dunn Case No. 30 (1763), where leave to appeal was denied. Reports, pp. 80–83.
88. See, for example, Baker v. Frobisher Case 2 (1761) on “unmerchantable soap” where the justices distinguished between ordinary retail sales and bulk sales sold “by sample.” Reports, p. 4.
89. Horwitz, supra, p. 4.
90. See Southern Journal (1773), p. 61, and accompanying notes, and its introduction, “An Odyssey of America on the Brink of Revolution,” Quincy Papers, vol. 3, pp. 52–58.
91. Id., p. 61, and accompanying notes.
92. See the references to the Analysis at the beginning of the Law Commonplace, p. n.p., [6], p. n.p., [10], and at “Of Statutes or Acts,” id., p. 89 [77]. The sole reference to Blackstone’s Commentaries is at p. 94 [82], and may be a later addition. See notes 37, 46, supra.
93. Horwitz, supra, p. 4.
94. Id., p. 30.
95. Horwitz quotes the 1817 lectures of Tapping Reeve and James Gould at the Litchfield Law School: “Theoretical[ly] courts make no law, but in point of fact they are legislators.” Horwitz, p. 23. Horwitz regarded Blackstone’s “dichotomy between the nature of the two forms of law” as “a fairly recent creation,” noting that Coke in deciding Calvin’s Case in 1608 did not make the distinction. “[T]here was no suggestion of a distinction between statute and common law, for statutes were still largely conceived of as an expression of customs.” Id., p. 17. But, Horwitz argued, in the period “[b]efore the American Revolution common law and statute law were conceived of as two separate bodies of law, and the authority of judges and legislators was justified in terms of the special category of law that they administered.” Id., pp. 16–17.
96. Bilder, supra, p. 91.
97. See Law Commonplace, pp. 25 [30], 47 [45], 49 [47].
98. See Id., pp. 22 [27], 176 [119].
99. See Id., p. 179 [122].
100. See Id., p. 181 [124].
101. See Id., p. 176 [119].
102. Quincy’s Law Commonplace made no mention of the Massachusetts provincial statute William & Mary 4 (1692) “An Act for the Settlement and Distribution of the Estate of Intestate,” Charters and General Laws (Boston, 1814), Chapter 8, pp. 230–32, which established part-ibility in the colony, rather than primogeniture! See, in contrast, Dudley v. Dudley Case 9 (1761), p. 12; Elwell v. Pierson Case 20 (1762), p. 42; Baker v. Mattocks Case 29 (1763), p. 69; and Banister v. Henderson Case 42 (1765), p. 119.
103. See Law Commonplace, pp. 47 [45]–49 [47].
104. See William & Mary 4 (1692), Charters and General Laws, supra, pp. 230–32.
105. See cases cited at note 102, supra.
106. Unlike his Reports, Quincy’s Law Commonplace simply copied in the traditional English law under the “Of Lands, Tenements + Hereditaments” caption, taking it mostly from Thomas Wood’s An Institute of the Laws of England (1st ed., London, 1720), book 2, chap. 3, pp. 228–30. See Law Commonplace, page [7], note 3, infra. Thus he writes: “In short, Lands + Tenements in Fee-s: Descend, 1st to the eldest son or Heir + to his issue: The sons first in order of birth + for want of sons to all the Daughters equally,” although that was not the law in Massachusetts. The section “Of Estates” in the Legis Miscellanea also simply reproduces English common law, but focuses instead on the more difficult Coke on Littleton (London, 1628) and William Hawkins, Abridgment of Coke on Littleton (London, 1711). See vol. 4, pp. 5–10, infra, and accompanying notes, and pp. [24], n. 9, [68], n. 6.
107. Law Commonplace, p. 48 [46].
108. Id., p. 48 [46].
109. See note 102, supra.
110. Law Commonplace, Index “Legis Miscellanea,” p. 179 [122].
111. See, for example, Duncan Kennedy’s “How the Law School Fails,” 1 Yale Rev. of Law and Social Action 71 (1970), Mark Tushnet, “Critical Legal Studies: A Political History” 100 Yale L.J. 1515 (1991), and the discussion in Laura Kalman, “The Dark Ages,” in History of the Yale Law School (A. T. Kronman, ed., New Haven, 2004), pp. 203–06.
112. Law Commonplace, p. 20 [25].
113. See Law Commonplace, p. 20 [25], n. 4. See also Ferdinand Pulton, A Collection of Sundrie Statutes (London, 1632), p. 401.
114. Law Commonplace, p. 20 [25].
115. Id., p. 20 [25].
116. Id., pp. 20 [25]–21 [26].
117. Id., p. 21 [26].
118. See Id., p. 152 [95] (medicine). See also Reports, Dom. Rex v. Doaks Case 34 (1763), p. 90 (bawdy house); Dom. Rex v. Pourkdorff Case 38 (1764), p. 104 (theft).
119. Law Commonplace, p. 21 [26].
120. Id., p. 152 [95], n. 8, see also p. 16 [21].
121. Id., p. 152 [95].
122. Id., p. 27 [32]. “N.A.” is for “non-assumpsit,” “she did not promise.” This was the standard plea by way of traverse denying the existence of an express promise “or of matter of fact from which the promise alleged would be implied by law, and thus raised to general issue.” Earl Jowitt, The Dictionary of English Law (ed. C. Walsh, London, 1 9 5 9), p. 1 2 3 1. (Hereafter, “Jowitt.”)
123. Id., p. 27 [32], n. 5.
124. Id., p. 27 [32].
125. Id., p. 21 [26].
126. Id., p. 27 [32].
127. Id., p. 22 [27]. Where the property taken is in the form of personal chattel or “choses in action” (monetary legal claims), the result can be complicated! See id., p. 22 [27].
128. See David M. Walker, The Oxford Companion to Law (Oxford, 1980), p. 327.
129. See Bilder, supra, pp. 96–97.
130. Law Commonplace, p. 23 [28].
131. See the full discussion in Coquillette, Law Reports, supra, pp. 23–25.
132. Chief Justice Hutchinson observed that it would “have been better to have brought Detinne.” Reports, p. 103. He was right. “Trover” was the correct action for wrongful deprivation of goods, where the remedy was “damages merely,” i.e., money. Jowitt, supra, p. 1785. “Detinue” was the correct action for “a plaintiff who seeks to recover goods in specie [i.e., the actual thing], or on failure thereof the value …” Id., p. 623. Assuming the plaintiff wanted her actual clothes back, she should have sued in detinue.
133. See the excellent paper by Sally Ann Carter, Harvard Law School Class of 1997, “An Exploration of Hanlon v. Thayer,” pp. 21–22, on file with the author.
134. Id.
135. Reports, p. 102.
136. Id., p. 102, n. 6.
137. Id., p. 102.
138. Id., pp. 102–03 (note omitted).
139. Id., p. 103.
140. Id., p. 163.
141. Id., pp. 162–63. See “An Act to Prevent the Destroying and Murdering of Bastard Children,” Gul. III, 8 (1696), Chap. 38, Charters and General Laws, supra, p. 293.
142. Reports, p. 163.
143. Id., p. 121.
144. Id., p. 123.
145. Id., p. 124.
146. Law Commonplace, pp. 156 [99], 174 [117].
147. See discussion at note 102, supra.
148. See Law Commonplace, “Legis Miscellanea,” p. 161 [104].
149. See Law Commonplace, p. 179 [122]. See also id., at pp. 155 [98], 159 [102], 165 [108], 171 [114], 172 [115].
150. See, for example, Reports, Allison v. Cockran, Case 36 (1764), p. 94 (“trover for a negro”) and Oliver v. Sale (Case 13, 1761), p. 29 (suite for selling “two free Mulattos for Slaves”).
151. Id., p. 106 [91]. See, for example, “An Act to Prevent Disorders in the Night” which prohibited an “Indian, negro or mulatto servant or slave” from being “abroad in the night time after nine o’clock unless it be upon some errand for their respective masters or owners” (October, 1703). Charters and General Laws, supra, pp. 746–49. “Fornication” between the races was prohibited and if “any negro or mulatto shall presume to smite or strike any person of the English, or other Christian nation, such negro or mulatto shall be severely whipped …” (October, 1705), id., pp. 747–48.
152. Case No. 28 (1763), Reports, p. 67.
153. Law Commonplace, p. 15 [20].
154. Id., p. 15 [20].
155. Id., p. 15 [20].
156. Id., p. 16 [21].
157. Id., p. 14 [19].
158. Id., p. 15 [20].
159. Id., p. 15 [20].
160. Id., p. 15 [20].
161. Henry Sumner Maine, Ancient Law (1st American from 2d English ed., New York, 1864), pp. 295–96. (Maine used the male pronoun, ironically appropriate for 1864.)
162. See the Southern Journal (1773), infra, pp. 91–95, 109–10, 113–14.
163. Law Commonplace, p. 44 [42].
164. Id., p. 44 [42]. Quincy was using “equity” in the sense of “fairness.” Juries were not used in “equity” cases, in the legal sense, such as “equity” cases in Chancery. See Jowitt, supra, pp. 724–26.
165. Law Commonplace, p. 58 [55].
166. Id., p. 58 [55].
167. Id., p. 50 [48].
168. Id., p. 51 [49] (Lilly again).
169. Id., p. 52 [50].
170. Id., p. 46 [44] (emphasis in original).
171. Id., p. 45 [43].
172. See id., p. 51 [49], n. 6. A copy of Catharine Macaulay’s History was in Quincy’s estate at his death. See Reports, Quincy Papers, Volume 5, Appendix 9, item 230.
173. Id., p. 51 [49] (emphasis in the original).
174. Id., p. 44 [42].
175. Id., p. 52 [50]. See also p. 44 [42] as to attaint, already an archaic remedy in Quincy’s day. See William Blackstone, Commentaries on the Laws of England (Oxford, 1768), vol. 3, p. 404, pp. 3 8 9–9 3. Attaint at English law was abolished by the Juries Act, 1 8 2 5, S. 6 0. See Jowitt, supra, p. 1 1 4.
176. Law Commonplace, p. 44 [42].
177. Id., p. 44 [42].
178. Id., p. 44 [42].
179. Id., p. 45 [43].
180. Id., p. 60 [57] (emphasis in original).
181. Id., p. 61 [58] (emphasis in original).
182. See Adriaan Lanni, “Verdict Most Just: The Modes of Classical Athenian Justice,” 16 Yale Journal of Law & the Humanities 227 (2004).
183. Reports, pp. 189–90.
184. Id., p. 191.
185. Id., p. 193.
186. Id., p. 118.
187. Id., p. 118.
188. Id., p. 50.
189. Id., p. 85. But attaint was an archaic remedy by this time. See n. 175, supra, and text below, infra.
190. Id., p. 85.
191. The issue was recently revisited by the Supreme Court of the United States in Gasperini v. Center for Humanities, Inc., 518, U.S. 415 (1996). This author, together with a group of legal scholars including Akhil Reed Amar, Erwin Chemerinsky, Arthur F. McEvoy, and Arthur R. Miller, filed an amicus brief supporting the power of the jury at common law. The majority of the court were unconvinced, but a powerful dissent by Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, observed that “the court frankly abandons any pretense at faithfulness to the common law, suggesting that ‘the meaning’ of the Reexamination Clause was not ‘fixed at 1791,’ contrary to the view of all our prior discussions …” 518 U.S. 415, at 461 (citation omitted). See Coquillette, “Law Reports,” Quincy, Works, vol. 4.
192. See id., at pp. 12–15. See also David L. Shapiro & Daniel R. Coquillette, “The Fetish of Jury Trial in Civil Cases: A Comment on Rachal v. Hill,” 85 Harv. L. Rev. 442, pp. 228–55 (1971), cited with approval in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 333, arguing 1791 as the appropriate date for assessing common law jury rights for Seventh Amendment purposes.
193. Law Commonplace, p. 51 [49]. See id., p. 51 [49], n. 8 on Plowden’s Commentaries.
194. Law Commonplace, p. 50 [48].
195. Id., p. 50 [48].
196. Id., p. 51 [49], Relying on Lilly’s Abridgment (London, 1719). See id., p. 50 [48], n. 3.
197. See Reports, supra, pp. 382–83, 385.
198. See “Of Statutes or Acts,” Law Commonplace, pp. 89 [77]–97 [85].
199. See Bilder, supra, pp. 2–7, 40–46, 55, 104–07.
200. Law Commonplace, p. 64 [60]. Montesquieu also was extracted in Quincy’s Political Commonplace. See Quincy Papers, vol. 1, p. 109.
201. Id., p. 65 [61].
202. See John C. Miller, Origins of the American Revolution (Stanford, rev. printing, 1959), pp. 109–46.
203. Reports, p. 201.
204. Id., p. 204.
205. Law Commonplace, p. 65 [61].
206. Id., p. 64 [60].
207. Id., p. 65 [61].
208. Reports, pp. 203–04. Otis’s “first principle” was a translation of the opening of Justinian’s Institutes, also quoted at the outset of the great English treatise, Bracton.
209. Id., pp. 205–06.
210. See Law Commonplace, p. 63 [59], n. 2, (Montesquieu); p. 65 [61], n. 2, (Burlamaqui); p. 65 [61], n. 4, (Hobbes); p. 65 [61], n. 5, (Vattel); p. 67 [63], n. 2, (Bacon) and (Beccaria); p. 67 [63], n. 3.
211. Id., p. 89 [77].
212. Id., p. 89 [77].
213. See discussion at notes 37 and 46, supra.
214. Law Commonplace, p. 89 [77].
215. Id., p. 91 [79].
216. Id., p. 91 [79].
217. Id., p. 91 [79].
218. 5 U.S. (1 branch) 137 (1803) (Marshall, C. J.)
219. 8 Coke’s Reports (London, 1611), p. 114a. Coke suggested “that in many cases, the Common Law will control Acts of Parliament, and sometimes adjudge them to be utterly void….” Id., p. 118a. See Daniel R. Coquillette, The Anglo-American Legal Heritage (2d ed., Durham, N.C.), pp. 318–19, 342. See also S. E. Thorne, “Dr. Bonham’s Case,” 54 L.Q. Rev. 543–52 (1938); C. M. Gray, “Barnham’s Case Revisited,” (1972) 116 Proc. American Philosophical Society, pp. 35–58 and T. F. T. Plucknett, “Bonham’s Case and Judicial Review,” Studies in English Legal History (London, 1985), pp. 33–70.
220. Law Commonplace, p. 93 [81].
221. Id., p. 93 [81].
222. Id., p. 93 [81] (almost an exact quote).
223. Id., p. 95 [83].
224. Id., p. 95 [83] (emphasis in original).
225. Id., p. 96 [84] (emphasis in original).
226. Id., p. 97 [85].
227. Id., p. 97 [85] (emphasis in original).
228. See Fuller’s classical parable of statutory construction and application, “The Case of the Speluncean Explorers,” 62 Harv. L. Rev. 616 (1949).
229. Reports, p. 38.
230. Id., pp. 38–39.
231. Id., p. 39.
232. Id., p. 40.
233. Id., pp. 40–41.
234. Id., pp. 387–88, n. 2. Auchmuty was suggesting that the Freemason was looking for an opportunity to smuggle the wine ashore, i.e., “running” as in “rum runner.”
235. Id., pp. 388–89.
236. Id., pp. 390–91.
237. Id., p. 393.
238. Id., pp. 382–83.
239. Id., p. 385.
240. Id., p. 385.
241. Id., p. 386 (emphasis in original). “Printed in the Boston Gazette (Edes & Gill) Monday, May 20, 1771.”
242. Law Commonplace, p. 42 [40].
243. Id., p. 72 [64], Legis Miscellanea, p. 150 [93], p. 154 [97].
244. Id., Legis Miscellanea, p. 154 [97].
245. Id., p. 18 [23], p. 29 [33].
246. Id., Legis Miscellanea, p. 153 [96], pp. 162 [105]–164 [107].
247. Id., Legis Miscellanea, p. 153 [96].
248. Id., p. 11 [16].
249. Id., Legis Miscellanea, p. 158 [101].
250. Id., Legis Miscellanea, pp. 152 [95]–158 [101].
251. Id., p. 25 [30]. See also “Notebook 4,” p. 5.
252. Id., Legis Miscellanea, p. 170 [113].
253. Id., Legis Miscellanea, p. 154 [97].
254. Id., p. 47 [45].
255. Id., p. 53 [51], Legis Miscellanea, p. 153 [96], p. 163 [106].
256. Id., p. 81 [71].
257. Id., Legis Miscellanea, p. 162 [105].
258. Id., Legis Miscellanea, p. 167 [110].
259. Id., p. 98 [86], Legis Miscellanea, pp. 166 [109]–167 [110].
260. Id., p. 151 [94], p. 153 [96].
261. Id., p. 12 [17].
262. Id., Legis Miscellanea, pp. 158 [101], 167 [110], 170 [113].
263. Id., Legis Miscellanea, pp. 150 [93]–151 [94], 153 [96]–154 [97], 157 [100], 159 [102], 161 [104], 163 [106], 166 [109].
264. Id., Legis Miscellanea, p. 150 [93].
265. Volume 5, Appendix, will also contain the “Catalogue of Books Belonging to the Estate of Josiah Quincy Jun: Esq: Deceas’d” (1775), an exceptionally valuable reference given Quincy’s sudden death in mid-career.
Page [1]
1. “pretium” = “price” (Latin). Did Quincy pay “20 shillings, nine pence” for this notebook, or for a set of four leather-bound notebooks? See the discussion at “Introduction: The Legal Education of a Patriot: Josiah Quincy Jr.’s Law Commonplace (1763), Section 1, The Manuscript,” supra, p. 12. See also Illustration 1.
2. Quotation is loosely from Coke’s Reports, vol. 10 (covering 1572‒1616), p. 139b. “Salus Populi est Suprema Lex.” Translation of Quincy’s text: “The welfare of the people, or of the public, is supreme law.” (E. H. Jackson, Latin for Lawyers, London, 1915, p. 241.) The first edition of Sir Edward Coke’s Reports, in English, was published in London in 1658. The first volume of Coke’s Reports in French had been published in 1600. Subsequent English editions were produced in 1680, 1727, 1738, 1793, 1797, and 1826. See Sweet and Maxwell’s Legal Bibliography, vol. 1, pp. 295‒97 (2nd ed., London, 1955; hereafter, Sweet & Maxwell).
3. The quote, “From law arises security, from security curiosity. And from curiosity knowledge. The latter steps of this progress may be more accidental; but the former are altogether necessary,” is nearly identical to a passage of David Hume’s essay, “Of the Rise and Progress of the Arts and Sciences,” which appeared in 1742 in Volume 2 of Hume’s Essays, Moral and Political. The version online, at http://rit.minsk.by/cgi-bin/showtext.pl/Philosophy/1700-1799/hume-of-737.txt-ps50-pn1, was based on the 1875 Green and Grose edition of the essays. The only differences between the quote above and Hume’s passage are some minor punctuation differences. Many thanks to my excellent research assistant, Brian Sheppard, Boston College Law School, 2001.
Page [2]
1. Loose copy of Edward Coke, The First Part of the Institutes of the Lawes of England (hereafter by its common name, “Coke on Littleton”), p. 9a.
2. Loose copy of Coke on Littleton, p. 64b. Translation of Latin: “Six hours in sleep and you should give just as much equally to the laws, you will pray for four hours, and give two to letters. What is left over you should bestow upon the singing of sacred songs.”
3. Loose copy of Coke on Littleton(1st ed., London, 1628), p. 70b. Quincy’s note, “top,” is correct for early editions. Translation of Latin: “The unreasonable reading and the hasty reaction.”
4. Copied from Lord H. H. Kames’s two-volume Historical Law Tracts (1st ed., Edinburgh, 1758), vol. 2, p. 128. See Sweet & Maxwell, vol. 1, p. 34.
Page [3]
1. Translation of Latin: For “no element in its own place is heavy.”
2. Loose copy, with some omissions, of Coke on Littleton (1st ed., London, 1628), p. 71a. Quincy’s note, “bot.” or “bottom,” is accurate for early editions.
Page [4]
1. Loose copy of Coke’s Reports, vol. 1, “The Preface to the Reader,” n.p. (1st ed., London, 1600). The exact text from Coke reads:
For reading without hearing is darke & yrckeſome, and hearing without reading is flippery and vncertaine, neither of them truly yeeld ſeaſonable fruit without conference, without meditation & recordation, nor all of them together without due and orderly obſervation, scribe ſapientiam tempore vacuitatis tuæ, faith Salomon. And yet he that at length by theſe meanes ſhall attaine to be learned, when he ſhal leaue them off quite for his gaine, or his eaſe, ſoone ſhal he (I warrant him) looſe a great part of his learning, Therefore as I allow not to the Student any diſcontinuance at all (for he ſhal looſe more in a moneth then he ſhal recover in many:) So do I commend perſeverance to all, as to each of theſe means an inſeperable incident.
The Latin phrase is adapted from the Vulgate, specifically the Biblical Book of Sirach, or Ecclesiasticus, Chapter 38, verse 25: “Write wisdom in the time of your leisure.”
Page [5]
1. This is a loose copy, with some omissions, of Coke on Littleton, pp. 11a–11b. Quincy does not follow the punctuation of Coke’s 1st edition, although he may be copying from a later edition. He also omits Coke’s translations of Latin terms in some places. See notes 2 and 3, below.
2. Coke translated this “from approved Precedents and Use,” Id., p. 11a. Quincy omits this translation, and those following in notes 3‒9, below.
3. Coke translated this “from not use.” Id., p. 11a.
4. Coke translated this “artificial arguments consequents and conclusions.” Id., p. 11a.
5. Coke translated this “from the common opinion of the sages of the law.” Id., p. 11a.
6. Coke translated this “from that which is inconvenient.” Id., p. 11a.
7. Coke translated a divisione, “from a division,” and vel ab enumeratione partium, “from the enumeration of the parts.” Id., p. 11a.
8. Coke translated this a maiore ad minus, “from the greater to the lesser” or “from the lesser to the greater.” Id., p. 11a. Coke does not translate a simili, a pari: “from the similar, from the equal” (i.e., reasoning by analogy).
9. Coke translated this “from that which is impossible.” Id., p. 11a.
Page [6]
1. Coke translated this “from the end.” Coke on Littleton, p. 11a. Quincy omits this translation, and those following in notes.
2. Coke translated this “from that which is profitable or unprofitable.” Id., p. 11a.
3. Here Quincy copies Coke’s translation at Id., p. 11a. Perhaps he felt Coke’s words added more substance to the straight Latin translation for “quasi a surdo prolatum.”
4. Coke translated this “from nature or the course of nature.” Id., p. 11a.
5. Coke translated this “from the order of Religion.” Id., p. 11b.
6. Coke translated this “from a common presumption.” Id., p. 11b.
7. Coke translated this “from the readings of learned men of Law.”
8. This continues to loosely copy Coke on Littleton, supra, at p. 11b. “Lit’s” is Quincy’s addition to clarify Coke’s “his” as referring to Littleton.
9. Translation of Latin: which is “blessed explanation and comes from the depths of reason.”
10. This is an internal cross-reference to Quincy’s Law Commonplace, p. 89 [77], “Of Statutes or Acts.”
11. Same cross-reference as note 10.
12. This is Quincy’s correct citation to the “star pages” (i.e., the pagination of the first edition) of Coke on Littleton (London, 1628), for the above twenty “factors.” “Star” pagination does not mean Quincy was actually copying from a first edition, as most later editions follow the original “star” pagination of the first—a convention adopted by lawyers for consistent citations of legal classics such as Coke’s writings. There had been twelve editions of Coke on Littleton before Francis Hargrave’s classic 1775 edition, all published in England. Quincy could have been using any edition before Hargrave’s. See Sweet & Maxwell, supra, vol. 1, pp. 449‒50.
13. This was loosely copied from William Blackstone’s Analysis of the Laws of England, p. 3, first published while Blackstone was lecturing at Oxford in 1756. Blackstone’s Analysis was superseded by his far better Commentaries. Volume 1 of the four-volume Commentaries was published in Oxford in 1765, with volume 2 in 1766, volume 3 in 1768 and volume 4 in 1769. The first American edition was published in installments in Philadelphia in 1771‒1772. See Sweet & Maxwell, supra, vol. 1, pp. 27‒29. (Like the Dublin edition, it was unauthorized.) Quincy clearly had no access to this famous learning aid in September 1763, when he began his Law Commonplace, but he did have Blackstone’s Analysis. There is one citation to the Commentaries in the Law Commonplace. It is late in the book, and the citation is to Commentaries volume 1, the volume first published in 1765. See Law Commonplace, p. 94 [82]. It seems to be a later addition, but in Quincy’s hand. See Introduction, supra, pp. 19–20, n. 37, pp. 26–27, n. 46.
Page [7]
1. Sir Thomas Reeve (?‒1737). Judge of the Common Pleas in 1733 and Chief Justice in 1736. John Adams notes in his diary from October 25, 1758, that his pupil master, Jeremiah Gridley, “gave [him] Lord C. J. Reeve’s advice to his nephew, in the study of the common law.” It seems to have been a common introductory source. See page 8, note 9. This letter was printed in Francis Hargrave’s two-volume Collectanea Juridica, consisting of Tracts relative to the Law and Constitution of England (London), vol. 1, pp. 79‒81, which was not published until 1791‒1792. (See Sweet & Maxwell, supra, vol. 1, p. 32.) Josiah Quincy Jr. refers to Reeve’s letter in an address at the dedication of the new law school building in 1832 at Harvard University, of which he was president. See Illustration 2.
2. Quincy must have a copy of this manuscript in his filing system “Law A-file.”
3. Thomas Wood, An Institute of the Laws of England (London, 1720). This relatively primitive precursor to Blackstone’s Commentaries was republished in 1722, 1724, 1728, 1734, 1738, 1745, 1754, and 1763. A final edition was published in 1772. See Sweet & Maxwell, vol. 1, p. 38.
4. William Rastell, Les Termes de la Ley was first published, with parallel columns in Law French and English, in London in 1624. It was greatly enlarged over many editions, including enlarged editions in 1685, 1708, 1721, and 1742.
5. Giles Jacob, New Law Dictionary (London, 1729). A big folio, Jacob’s Law Dictionary was republished in 1732, 1746, 1739, 1744, 1750, 1756, and 1762. (Only editions relevant to Quincy’s Law Commonplace are given.) See Percy H. Winfield, The Chief Sources of English Legal History (Cambridge, Mass., 1925) (hereafter, “Winfield”), p. 18; Sweet & Maxwell, vol. 1, p. 9; William Holdsworth, A History of English Law, vol. XII (London, 1938, 1966 reprint) (hereafter, “Holdsworth”), p. 176. Jacob’s Dictionary was “a new departure because it attempted, with a considerable measure of success, to combine in one work a dictionary and an Abridgment.” Id., p. 176.
6. William Bohun, Institutio Legalis, or Introduction to the Study and Practice of the Laws of England (London, 1708‒1709). It was republished in 1713, 1724 and 1732.
7. This probably is a reference to Giles Jacob’s Student’s Companion (London, 1725), republished in 1734 and 1743. Jacob also published a Complete Attorney (London, 1737), a Court-Keeper’s Companion (London, 1717), and a Every-Man his own Lawyer (London, 1736). See Sweet & Maxwell, vol. 1, pp. 34, 272, 401, 433, respectively.
8. From the Epigrams (l. 16) of the Roman poet Martial, published in the late 1st century: “Sunt bona, sunt quaedam mediocria, sunt mala plura” [“Some are good, some are mediocre, the majority are bad”]. This same quote is used by Francis Dickins, Regius Professor of Law at Cambridge, in a letter to Jeremiah Gridley on how to study law, which is copied into the fourth volume of Quincy’s notebooks. See “Introduction: The Legal Education of a Patriot: Josiah Quincy’s Law Commonplace (1763),” section B, “Pedagogy,” supra.
9. English editions of Littleton’s Tenures without Coke’s famous additions were readily available, with dozens of 16th- and 17th-century editions. Sweet & Maxwell, vol. 1, pp. 456‒57. Curiously, there were no English editions after 1661 until 1825, such being the importance of Coke on Littleton in the eighteenth century. Id., vol. 1, p. 457.
10. The version of this letter recorded in Francis Hargrave’s Collectanea Juridica reads, “such parts as the books inform you is law at this day.” See note 1, supra.
11. There were editions of Coke on Littleton in 1628, 1629, 1630, 1639, 1656, 1664, 1670, 1684, 1703, 1719, and 1738. The famous 1775 Francis Hargrave edition would come out just too late for Quincy. See page [2], note 1.
illustration 2. Sir Thomas Reeve (?—1737) was a justice of the Court of Common Pleas in England, serving as its Lord Chief Justice in 1736 as the image indicates. Josiah Quincy incorporates a letter from Reeve to his nephew on pages [7] to [9] of the Law Commonplace. The letter provides advice on how to study law, including a list of important sources. John Adams also records that a senior lawyer gave him a copy of the same letter at the outset of his career, and it seems to have formed part of the standard curriculum for the Boston bar at that time. See page 7, note 1, and “Introduction,” supra, section on “Pedagogy,” pp. 26-27. The artist was Amiconi, and the engraver B. Baron. Courtesy of Harvard Law School Library. My thanks to Kevin Cox and David Warrington.
1. This must be William Hawkins (1673‒1740), who became Sergeant-at-Law in 1723, whose Abridgment of the First Part of Coke’s Institutes (“Coke on Littleton”) was published in 1711, and republished in 1714, 1718, 1719, 1725, 1736, 1742 and 1751. Sweet & Maxwell, vol. 1, p. 452; Holdsworth, vol. 12, p. 361.
2. The first two volumes of Salkeld’s Reports were published in 1717 and republished in 1721, 1731, 1742‒1743 and in 1771. There was a third volume, consisting principally of notes. It covered the period from 1689 to 1712 (1 William III to 11 Anne). See John W. Wallace, The Reporters (Boston, 1882), pp. 399‒400. (Hereafter, “Wallace.”) Its alphabetical format lent itself to commonplacing. My thanks to my colleague Mary Bilder.
3. Christopher St. Germain’s (?1460‒1540) Doctor and Student (1st Latin edition, 1523, 1st English edition, 1530, London). See the extensive discussion of this extraordinary little book at page [10], note 1, where Quincy copies an excerpt from it.
4. William Noy’s (1577‒1634) Treatise of the Principall Grounds and Maximes of the Lawes of this Kingdom (London, 1641). There were convenient printings for Quincy, including 3rd ed., 1663; 4th ed., 1677; and the 5th ed., 1757.
5. Henry Curson’s A Supplement to the Office and Duty of Executors (London, 1728). Sweet & Maxwell, vol. 1, p. 475. It supplemented Thomas Wentworth’s The Office and Duty of Executors (London, 1641). Sweet & Maxwell, vol. 1, p. 494.
6. The great Matthew Hale’s (1609‒1670) History of the Common Law (London, 1713). This classic was reprinted in a second edition in 1716, a 3rd edition in 1739, and a 4th edition just after Quincy’s time, in 1779. Sweet & Maxwell, vol. 1, p. 239.
7. A major treatise on criminal law, William Hawkins, Pleas of the Crown (London, 1716‒1721) went through a 2nd edition in 1724‒1726, a 3rd edition in 1739, a 4th edition in 1762, and a 5th edition in 1771. See Winfield, pp. 325‒26.
8. Heveage Finch, Law: or, Discourse thereof (London, 1613). Until Blackstone’s Commentaries appeared, it “was regarded as the best elementary book to be placed in the hands of the law students. It is one of the few attempts that have been made to reduce the common law into a system….” Sweet & Maxwell, vol. 1, p. 238. It was republished conveniently for Quincy in 1730 and 1739.
9. Henry Rolle (?1589‒1656), Abridgment des Plusieurs Cases et Resolutions del Common Ley (2 vols. London, 1668). There was a famous preface by Chief Justice Matthew Hale (1609‒ 1670), and an important “Publisher’s Preface Directed to the Young Students of the Common Law.” Included in the preface were detailed instructions and encouragement regarding the method and benefits of commonplacing. It was apparently a common introductory source for Quincy’s contemporaries of the Boston bar as well. In John Adams’s diary entry of Oct. 25, 1758, he notes of an early visit to his legal mentor Jeremiah Gridley, “[t]hen he took his commonplace book and gave me Lord Hale’s advice to a student of the common law.” Rolle’s Abridgment was, however, a rare book, printed only once in 1668. See John D. Cowley, A Bibliography of Abridgments, Digests, Dictionaries and Indexes of the English Law to the Year 1800 (London, 1932), pp. 77‒78. (Hereafter, “Cowley.”) This may explain why Quincy apparently didn’t have access to it, but made “a copy of a copy” of a key section. See page [9], note 2.
10. This marker references Quincy’s final note on the following page.
Page [9]
1. The famous “Preface” from Henry Rolle’s (?1589‒1656) Abridgment des Plusieurs Cases et Resolutions del Common Ley, edited by Matthew Hale (London, 1668). See page [8], note 9.
2. Another reference to Quincy’s law “file” system. See page [7], note 2. It appears that Ld. Chief Justice Reeve’s “Advice to his Nephew” and the excerpt from Rolle’s Abridgment were copied from manuscripts in this file, i.e., “A Copy of a Copy,” as Quincy says.
Page [10]
1. This is an excerpt from Christopher St. German’s (?1460‒1540) Doctor and Student. This little book was first published in Latin in 1523 and in English in 1530. It is a dialogue between a “doctor” of divinity and a “student” of the common laws of England that explores, for one of the first times in English history, the theoretical underpinnings of the law. In particular, it helped to establish a secular basis for equity courts, which had previously been closely tied to the Catholic Church, but, following Henry VIII’s repudiation of Catholicism, had to find a new basis in secular morality. “Equity” was seen as supplementing the rigidity of the common law by providing discretion to give special relief to those to whom mechanical application of the law would be cruel or unfair. See W. S. Holdsworth, Sources and Literature of English Law (Oxford, 1923), pp. 185‒88. Although Doctor and Student was an ancient book in Quincy’s day, it was very much in print, with recent editions in 1709, 1721, 1746, 1751, and 1761. See Sweet & Maxwell, vol. 1, p. 25. The citation is to chapter IV of Dialoge I, and page 14 is correct for the Nutt and Gossing printing in London of 1721.
2. A “rape” is a subdivision of the County of Sussex. The Kent equivalent is a “lathe.” Earl Jowitt, The Dictionary of English Law (London, 1959), p. 1474. (Hereafter, “Jowitt.”) A “frith” is a tract of communal land. Id., p. 844.
3. A “hundred” is a district forming part of a county. It has been debated whether it consists of a hundred hides (of about 80 acres) or a hundred free families. A “wapentake” is a Yorkshire district that is roughly equivalent to a hundred. See Jowitt, supra, pp. 928, 1850. See also page [21], note 7.
4. This description came from William Blackstone’s Analysis of the Laws of England (Oxford, 1756). See page [6], note 13.
Page [11]
1. “Arbitrament” is from the Norman French “arbitrement” meaning “the award or decision of arbitraments.” Jowitt, supra, p. 144.
Page [16]
1. “Ye C:s (BR)” refers to “Carlos II Rex: Banco Regis,” i.e., the King’s Bench of Charles II, which in 1682 decided Tremenhere v. Tresilian, described below at note 2.
2. The double underscore is added by Quincy in the original, doubtless indicating his view that this could be an important precedent in Massachusetts. The passage is copied closely from Charles Viner, A General Abridgment of Law and Equity, vol. 3, p. 131 (London, 1741‒1753). (Hereafter, “Viner’s Abridgment.”) See Tremenhere v. Tresilian, Sid. 452. pl. 20 Pasch. 22 Car.2. B.R., i.e., King’s Bench, 1682. The case supports the proposition Quincy is discussing. Quincy relied heavily on Viner’s Abridgment, which was first published between 1741‒1753 in London by Charles Viner (1678‒1756). The completed work includes 23 volumes, with topics arranged alphabetically. It was an enormous success. Viner eventually left the residue of his estate—including unsold copies of the Abridgment—to Oxford University. The proceeds established the famous Vinerian Chair, the first to be dedicated to teaching common law within a university. Its first occupant was Sir William Blackstone (1723‒1780), whose Analysis of the Laws of England (1754) was used by Quincy and whose subsequent four-volume Commentaries on the Laws of England (1765‒1770) would be of the utmost importance in conveying the common law heritage to the American colonies. See Daniel R. Coquillette, The Anglo-American Legal Heritage (Durham, N.C., 2nd ed., 2004), pp. 437‒39. It is interesting to note the physical size of this huge 23-volume folio set. Quincy’s access to such a collection was no small privilege. The 1790 Catalogue of Harvard College shows that the 23 volumes were there by that date. See The Printed Catalogues of the Harvard College Library 1723‒1790 (eds. W. H. Bond & Hugh Amory, Boston, 1996), p. 251. Did Jeremiah Gridley’s (1701‒1767) famous law library in Boston also contain a copy available to the likes of Quincy and John Adams, who were among the young lawyers encouraged to use it? See Law in Colonial Massachusetts (eds. D. R. Coquillette, Robert J. Brink, Catherine S. Menand, Boston, 1984), pp. 363‒76.
Page [17]
1. Quincy here cites ahead to his page 18 [our 23], where he discusses arbitration, arbitrament, arbitrators, and arbitration awards, doubtless because “Where an Accord with Satisfaction may be pleaded, an Award may be pleaded + vice versa.” Quincy, p. 19 [24].
2. Here Quincy begins to write authorities in the margin, sometimes indicating by use of small case letters where the authority belongs “in text.” Citation “a” is to William Rastell’s dictionary. See the discussion at page 7, note 4. But the definition in the text is very differently worded from Rastell, although roughly consistent, at least if one is looking at the 1721 edition [William Rastell], Les Termes de la Ley (London, 1721), p. 14.
3. The “b” citations are to Vernon’s Case, 4 Coke’s Reports, p. 1a (1572), Higgins Case, 6 Coke’s Reports, p. 44b (1606), and Henry Peytoes Case, 9 Coke’s Reports, p. 77b (1611), all cases on accord and satisfaction supporting Quincy’s notes. There is no “b” in text.
4. Citation to page 81 [71] of the Law Commonplace, beginning the section “of Releases.”
5. These “c” citations are to Henry Peytoes Case, see note 3 above, and to Coke on Littleton, at page 212b, referring to Littleton’s Section 344. Coke’s annotation to that section observed: “But if the condition be, that a stranger shall pay to the Obligee or feoffee a sum of money, there the Obligee or feoffee may receive a horse, etc. in satisfaction.” Id., p. 212b.
6. “Or any other valuable thing” was inserted by Quincy in the text.
Page [18]
1. Thomas Wood’s An Institute of the Laws of England (London, 1720). See page [7], note 3. The citation is to book 2, chapter 3, which covers pages 210–88 in the 1772 edition. What Quincy has in mind must be the section on obligation and conditions for an obligation, at pages 278–80.
2. These are citations to Blake’s Case (1606), Coke’s Reports, vol. 6, pp. 43b at 44a, wrongly cited as “6 Rep. 44” by Quincy, and, again, to Henry Peytoes Case. See page [17], note 3. There is no “a” in the text.
3. This is another citation to Wood’s Institute of the Laws of England, Book 4, chapter 3, page 553. See note 1, above. The book and chapter citation are correct, but Quincy’s point appears on page 527 of the 1772 edition, which states: “where an Accord with satisfaction may be pleaded, an Award may be pleaded,” also citing Blake’s Case as “6 Rep. 44,” with the same error as Quincy. See note 2, above. This implies Quincy may have copied the authority from Wood, but his statement of the legal principles, although largely consistent with Wood, is not copied.
Page [19]
1. This is almost a verbatim copy from Viner’s Abridgment, vol. 3, p. 20 (1742–1753), but Quincy adds the underscoring. The citation is to Vernon’s Reports (1681–1720). See Wallace, pp. 493–94. The case is Stephenson v. Holditch, see note 2, below.
2. Stephenson v. Holditch (pl. 443 Hill. 1704), Vernon’s Reports (1681–1720), vol. 2, p. 293. The case is consistent with Quincy’s notes.
3. This is almost a verbatim copy from Viner’s Abridgment, vol. 3, p. 23 (1742–53), citing to Lilly’s Case, 7 Modern Reports (1 Ann. B.R.) (i.e., 1702, Queen’s Bench).
4. This is almost a verbatim copy from Viner’s Abridgment, vol. 3, p. 23 (1742–53), with the underscoring in the original. Viner cites to Barber v. Dennis, 1 Salkeld 68, pl.8 Trin. 2 Ann. B.R. (i.e., 1703, Queen’s Bench). Salkeld’s Reports covered 1689–1712. It was republished in six editions, including a printing in Philadelphia in 1822. See Wallace, p. 399.
5. Seamen’s “tickets” were official acknowledgements of back wages due and were negotiable, usually at a steep discount. This paraphrases a note in Viner’s Abridgment, vol. 3, p. 23 (1742–1753), citing “6 Modern 69,” which, as Quincy indicates, is in the marginal notes on the right of the page. The cited case is Barber v. Dennis, 6 Modern Reports 69 (1703). The case supports the proposition in Quincy’s notes.
Page [20]
1. Apprentices and indentured servants formed an important “underclass” in Boston in the 1760s. See, for example, the case of Dusten v. Richards (1763), on page 67 of Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay Between 1761 and 1772. Samuel M. Quincy, ed. (New York, 1865). See generally Holdsworth, vol. 2, pp. 493–99, and vol. 8, pp. 59–62.
2. The citation is to Coventry v. Woodhall, Hobart’s Reports, vol. 1, p. 135 (1650), and supports the proposition in Quincy’s notes. Hobart’s Reports covered the King’s Bench, 1603 to 1625. See Wallace, p. 220. The bold “1” is Quincy’s note, as are the bold numbers following.
3. The reference must be to one of the many editions of Michael Dalton’s The Countrey Justice (1st ed., London, 1618). Likely editions appeared in 1666, 1677, 1682, 1690, 1697, 1705, 1727, 1742, and 1746. The 1666 edition at chapter 36, page 98 stated: “The Master may discharge his servant by word, but an apprentice cannot be discharged by his Master, except it be by writing, for that an apprentice cannot be but by writing.”
4. The citation is to Wood’s Institute, see page [7], note 3, and is accurate for the London, 1772 edition, book 1, chap. 6, p. 51, which stated a different rule: “If any Master dies, the Apprentice may go to the Executor or Administrator, to be maintained, if there be Assets. But the Executor cannot bind him over to another Master for the remaining part of his time, unless by special Custom, or with the concurrence of the Apprentice; neither is the Apprentice bound to serve the Executor or Administrator of the Master.” Id., p. 51. Perhaps Boston had a “special custom,” such as London, permitting such “binding over.”
5. This is a citation to William Noy’s Treatise of the Principall Grounds and Maximes of the Lawes of this Kingdome, p. 90. (Hereafter, “Noy’s Maximes.”) There was a London edition in 1757. See page [8], note 4, supra.
Page [21]
1. Another citation to Wood’s Institute. See page [20], note 4, and page [7], note 3. Quincy’s question in the margin is an intelligent one, i.e., “Question, if the servant would not recover upon a quantum meruit?” Quantum meruit is a common law action that lies where an unjust enrichment has been conferred, but there is no contractual price. It is limited to restitution of the fair market value of the benefit received. The Latin literally means “as much as he has deserved.” See Holdsworth, vol. 8, pp. 75–76, vol. 13, pp. 551–52.
2. Worth v. Diner, cited at Viner’s Abridgment, vol. 3, p. 8 under the title “apportionment,” was the occasion of a controversy between Sir John Strange, counsel for the plaintiff and author of Strange’s Reports cited by Quincy below, and the author of the Abridgment, Charles Viner, who challenged Strange to produce “some cases, or One single case at least … wherein it has been adjudged that a contract for wages is apportionable.” Strange, according to Viner, could not produce such a case, took unjustified offense, and behaved with “little Decency.” See Viner’s Abridgment, vol. 3, p. 9 (1741–1753). Quincy reproduces Strange’s view, citing Worth v. Diner and Wood’s Institutes of the Common Law (1722) at p. 54.
3. This is a citation to the Countess of Shrewburies Case (1605), 5 Coke’s Reports, pp. 13b–14a (1605). This case is an action on the case for negligence, that states that “if my shepherd, which I trust with my sheep, and by his negligence they be drowned … Action upon the Case lieth.” Id., p. 14a.
4. This is a citation to Drope v. Thaire, Latch’s Reports (covering 1625–1628), p. 127. See Wallace, pp. 262–65.
5. This is a citation to Rolle’s Abridgment (1668), vol. 2, p. 686, enter Benet et le Hundred de Hertford in comitat Hertford, [Benet vs. the Hundred Hertford in the Hertford court], (Mich. 1650).
6. This is a citation to Green’s Case (1661), Croke’s Reports, vol. 1, p. 142 (where servant was robbed, Master should not be sworn, but the servant, who had actual knowledge, should be sworn on Master’s behalf). Croke’s Reports were published between 1657–1661, and were republished in 1669, 1680, 1683, and 1790–92. See Sweet & Maxwell, supra, vol. 1, p. 298.
7. A “hundred” was “a district forming part of a county.” Jowitt, supra, p. 988. It could be sued for failure to maintain safe highways. The first citation to Reymond v. Hundred de Okins (1657), Croke’s Reports, vol. 3, p. 37 (action against the Hundred by servant for robbery on the highway … Master to bring action, and servant—who was robbed, should be his witness). The second is to Against the Inhabitants of the Hundred (1657), Croke’s Reports, p. 336 (same holding). See note 6, above. See also page [10], note 3.
8. This is a citation to Pasch. 8 Jac. In camera Scacarii, Paul Tracies case per curiam 1 Rolle’s Abridgment 98 (1668). See page [9], note 1.
9. This is a citation to Tracy v. Veal (1609), of Croke’s Reports (Croke Jac), vol. 2, p. 223 (“cozen’d servant” case). See note 6, above. The case is consistent with Quincy’s notes.
10. This is a citation to Anthony Fitzherbert’s The New Natura Brevium (“FNB”) (London, 1534). First published in English in 1652, and repeatedly republished, with likely Quincy editions, “star paged,” in 1704, 1718, 1730 and 1755. See Sweet & Maxwell, supra, p. 269. The citation is to the “star paged” sections 167 and 168, which concern, among other things, writs against one who entices away a servant and writs to require a servant to serve.
11. This is a citation to Fawcet v. Beavres (1702), Levinz’s Reports, vol. 2, p. 63 and supports the proposition in the text. Levinz’s Reports covers the King’s Bench and Common Pleas, 1660–1697. See Wallace, pp. 304–05.
12. This is a citation to Mead v. Hamond (1755), Strange’s Reports, vol. 1, p. 505 (trover against Master based on delivery to servant). These reports cover 1716–1749 in all of the royal courts, including chancery, and were republished in 1782 and 1795.
13. This is a citation to Grammer et al. v. Nixon (1755), Strange’s Reports, vol. 1, p. 653 (servant forges essay mark on ingot of gold and silver. Master answerable. See note 12, above).
14. This is a citation to Barfoot v. Reynolds et al. (1755), Strange’s Reports, vol. 2, pp. 953–54 (servant can claim, in defense of assault claim, that he acted in defense of Master only if in order to prevent an injury to Master. Just the fact plaintiff assaulted Master in not good defense “for the assault on the master must be over”).
15. This is a citation to Jarvis v. Hayes (1755), Strange’s Reports, vol. 2, p. 1083. (“On showing a release from the master to the servant, the Chief Justice allowed the master to examine the servant; though it was urged, that if the plaintiff fails against the master, he may sue the servant, which is a bias upon the servant.”)
16. A citation to Volume 2 of Quincy’s personal notebooks. Volume 2 was apparently lost in a fire or otherwise. This reference to a high page number suggests the potentially great quantity of its contents. If the subsequent reference to “under Case in the Index” is integrated with the “vol. 2” citation (and there is no entry for case in the index of the current volume), then this suggests that Quincy’s Volume 2 was not only long, as are his notebooks of law reports, but also indexed and perhaps another form of commonplace. See discussion at “Introduction: The Legal Education of a Patriot,” Part 1: “The Manuscript,” supra.
Page [22]
1. This is a citation to Comberbach’s Reports (1685–1699, King’s Bench), p. 474. See Wallace, pp. 396–97. The case is Martin v. Crump (1698), and supports the proposition.
2. A loose translation of Coke on Littleton, p. 351b. See page [2], note 1, and page [7], note 9.
3. A citation to a related point on page 156 [99] of this volume. Essentially the same idea is also commonplaced on page 174 [117]. See page [117], note 8.
4. This is a citation to Matthew Bacon, New Abridgment of the Law, a five-volume set published between 1736–1766, and then reprinted from 1768–1770. It was updated in further editions until 1832. See Sweet & Maxwell, supra, p. 16. The citation, page 307, is to the correct page of the 1768 edition, which explains that the reason why conversion is only brought against the husband is that the wife is legally incapable of converting “Goods to her own Use,” while both may be involved in the “Trespass of taking them [the goods].”
5. A citation to Viner’s Abridgment (1742–1753), vol. 3, pp. 22–23. See page [16], note 2.
6. Illegible. Referring to “similar points” in Viner’s Abridgment (1742–1753) at the bottom of vol. 3, p. 23 and the top of vol. 3, p. 22?
1. This is Quincy’s cross-referencing system. As most arbitrations result in an “accord” you would need to look at that section on his numbered page 12 [17], which is duly cross-referenced to this page. He also had a front “index,” his pages 4 [11] to 8 [15]—a sort of table of contents giving each section heading—and an “index at ye end,” his pages 175 [148] to 182 [155], which contained extensive cross-references, primarily to notes between pages 150 [93] and 174 [117]—such as a cross-reference under “accord” to a “New Bond Pleaded by Way of Accord-Bad Idea” citing to his page 166 [109], which lays out the dangers involved, i.e., the new bond “is not any discharge.”
2. This is a citation to William West’s Symboleography, printed in two volumes, “part one” appeared in 1590 and “part two” in 1594. (Hereafter, “West’s Symboleography.”) See Sweet & Maxwell, supra, p. 487. It is one of the earliest known collections of sample legal forms, including bills of exchange, wills, and fines and concords. The citation refers to Part 2, page 164 (an outline for “Compromise and Arbitrement”) and particularly “section 33,” which describes “What things are arbitrable, and what are not.”
3. These are a series of citations to Rolle’s Abridgment, vol. 1 (1668). See page [9], note 1.
4. This is a citation to Henry Peytoes Case (1613), Croke’s Reports, vol. 9, p. 77b, deciding that “accord and satisfaction by one should discharge all the Executors and Trespassors.” Id., p. 79b. See page [17], note 3, and page [8], note 2, for other references to Henry Peytoe’s case.
5. This is a citation to Wood’s Institute (1745 edit.), Book 4, Chapter 3. See page [7], note 3. Quincy closely copies from Wood.
6. A citation to a case, Rogers v. Kenwrick (1763), in Quincy’s own first book of Law Reports, which he called the Red Reports. See page [90], note 3. The 1865 edition of Quincy’s Reports, repaginated from the original contains the case on page 62. Note that Quincy twice questions the accuracy of the point cited by “Quare!”
7. The first citation is to Brunkhornes Case (1661), Croke’s Reports, vol. 1, p. 233 (obligation with a condition). See page [21], note 6. The second is to Sower v. Bradfield (1661), Croke’s Reports, vol. 1, p. 422 (debt upon an arbitrement).
8. A citation to Noy’s Maximes, Maxime 108. See page [8], note 4.
9. A citation to Knightly D’Anvers, A General Abridgment (London, 1705–1727)? See John D. Cowley, A Bibliography of Abridgements, etc (London, 1932), p. 97. (Hereafter, “Crowley.”)
10. A citation to West’s Symboleography (London, 1618 ed.). See note 2, above. The section cited on pages 163, 165, 166 constitute an outline of how “a compromise is defined” (page 163, sections 2, 3, 4), and requirements, such as that “every compromise be made in writing” (page 165, section 34) and methods for “binding the parties to perform the award” (page 166, section 38). Note, early editions of West have many errors in pageation, i.e., page “163” is given “136” in the 1618 edition.
11. This is a citation to Baspole’s Case (1611), 8 Coke’s Reports vol. 8, p. 98, specifically pp. 97b–98a, which describes different types of submission to arbitration.
12. This is another citation to Wood’s Institute (1720), book 4, chapter 3, p. 553. See note 5, above.
Page [24]
1. Citation to Vynior’s Case (1611), Coke’s Reports, vol. 8, p. 82b (revocation submission to an award).
2. Citation to Blake’s Case (1607), Coke’s Reports, vol. 6, pp. 43b–44a. (“[N]either Arbitrament, or Accord with satisfaction is a Plea, when the Action is grounded upon a Deed.” Id., p. 43b.) “That this Action of Covenant was founded upon the Deed, and could not be discharged but by matter of as high nature, and not by any accord….” Id., p. 43b.
3. Cross-citation to Quincy’s entry on “Accord,” at his page 18 [23].
4. The Statute 9 & 10 William the Third, Chapter 15 (1699). This Statute provides that parties may agree that their submission to arbitration by made a rule “of any of His Majesty’s Courts of Record.” It is set out in full in Wood’s Institute (1722) at p. 527.
5. This citation has not been identified. It could have been to one of the many chancery reports published before 1763. See Sweet & Maxwell, vol. 1, pp. 344‒49. It was not unknown for chancery judges to consult with the other royal judges in a process not unlike the “informal” Exchequer Chamber proceedings. My thanks to my learned colleague Charles Donahue Jr.
6. “Hunt + Craven” refer to a citation in Squire v. Grevett in Lord Raymond’s Reports (1703), pp. 964–65. See note 7, below. “Craven” appears to refer to London v. Craven (1655), which can be found in Style’s Reports, pages 481–82: “for if he should sue the plaintiff may plead his tender and refusal against him, and that will be judged as payment.”
7. This citation to Squire v. Grevett 2 Lord Raymond’s Reports (1703), pp. 964–65, is directly from Wood’s Institute (1772 ed.), Book 4, ch. 3, at p. 527. “If there be an Award to pay a Sum of Money, a Tender and Refusal has been formerly held no Performance, without actual Payment: But it has been adjudged otherwise since.” Id., p. 527. But it appears here that Quincy worked directly from Lord Raymond’s Reports, for the language of Squire v. Grevett, which also mentions Hunt and Craven, more closely matches Quincy’s text. Lord Raymond’s Reports, vol. 2, p. 964, records “A tender and refusal has been formerly held no performance without actual payment, as in the case of Hunt and Craven. But it has been adjudged otherwise since.”
8. Wood’s Institute (first folio edition, 1722) citation to the above passage in note 7 (book 4, chapter 3).
9. Citation to Hawkins’s Abridgment, p. 381. See page [8], note 1. Quincy does not directly copy these words, but rather comments on the distinction that Hawkins presents.
10. Reference to Quincy’s page 84 [74], where he more fully discusses releases of all actions relative to submissions to arbitrament.
Page [25]
1. “Baron and Feme” is from the Law French for “husband and wife.” “A wife being under the protection and influences of her baron, lord, or husband, is styled a feme-covert …” Jowitt, p. 214. Due to the constricted legal personalities of wives in Quincy’s time, this is an important section.
2. Another reference to Quincy’s excellent cross-referencing system at the end of the book, and to his six-page compilation of “Legis Miscellanea … of Estates” which he placed in his volume 4, and which has been reproduced as pages [126] to [131] in this volume. The second page of that compilation is page 6 [127] of volume 4, and begins a discussion of “curtesy,” i.e., the husband’s right in the wife’s lands at her death.
3. A citation to Wood’s Institute (1720) on “the effects and consequences of marriage,” Book 1, ch. 6, p. 61. See page 7, note 3.
4. A citation to the statute of the 3rd year of Henry VII, chap. 2 (1488), which established penalties for “carrying a woman away against her will, that hath lands or goods.” See Ferdinand Pulton, A Collection of Sundrie Statutes, London (1632), p. 401. Obviously, this would be a situation where a woman must be able to testify against her husband.
5. “[P]lays and loses,” as in gambling.
1. “Jointure” normally refers to a provision made by the husband for his wife for her support after his death. It could be both beneficial to the wife, or it could be a device to attempt to bar her common law entitlement to dower (income on one-third of her husband’s lands at his death), or to force the wife to choose between the jointure and the dower. See Jowitt, p. 1018. Quincy’s point is that any valid promise of jointure for the wife’s “use,” or equitable benefit, had better be with third parties, as an agreement with the wife herself would be “extinguished” by the marriage.
2. “Sed vid,” or “but see,” Cage v. Acton, Lord Raymond’s Reports (London, 1743), vol. 1, p. 515, which notes the opposite of Quincy’s point, “the marriage of obligor and obligee will not extinguish a bond …” These two-volume reports covered the period 1694–1732, and are heavily relied on by Quincy. A likely edition for Quincy’s use was published in 1765. See Sweet & Maxwell, pp. 307–08.
3. A citation to Coke on Littleton, p. 351a (“what things are given to the husband by marriage …”). See page [7], note 9; page [2], note 1.
4. Another citation to Coke on Littleton, p. 351a (“[I]f a man taketh to wife a woman seised in free, he getteth an estate for freehold in her right …”).
5. A citation to Quincy’s “Legis Miscellanea … of Estates” in his fourth volume of notebooks. Pages 6 [127] and 7 [128] discuss curtesy and also cite to Coke on Littleton, p. 351a.
6. Citation to the statute 32 Henry VIII, chap. 28 (1541) “Leases made by tenants in Fee or Fee-taile, in the right of their wives … which be good, which void,” and a citation to Wood’s Institute (1720), book 2, chap. 3, p. 281. See page [7], note 3. Correct citation seems to be page 282.
1. A citation to Coke on Littleton, p. 351a. (“Also if the husband bee attained of felony, the king gaineth no freehold but a pernancie [i.e., “pernancy” … to take profits of the land] of the profits during the Coverture [i.e., marriage] and the freehold remaineth in the wife.”) This could be an important point in times of civil unrest, when people might be accused of treason. See page [2], note 1; page [7], note 9.
2. Almost a direct quotation from Coke on Littleton, p. 351a.
3. The statement in the text marked by Quincy with ƒ is inaccurate, unless modified by the statement below, directly from Coke on Littleton, page 351a. The husband can change such land with a rent, the rent just will not survive his death as an obligation of the wife. In Coke’s words, “But if the husband change the chattell reall of his wife, it shall not bind the wife if she survive him.” Id., p. 351a.
1. A citation to Wood’s Institute (1720), book 1, chapter 6, pp. 61‒63 (“effects and consequences of marriage”). See page [7], note 3.
2. Debts “dum sola” are contracted while the wife is single, i.e., unmarried.
3. Continued citation to Wood’s Institute (1720), book 1, chapter 6, pp. 63‒64.
4. Citation to Hawkins’s Abridgment, page 168. See page [8], note 1. The “use,” or “trust” is void because a person cannot covenant with themselves, and a husband and wife have one legal personality. Quincy very closely copies this text from Hawkins.
5. Coke on Littleton at pp. 299b to 300a. Almost an exact copy of Coke’s annotations. See page [2], note 1; page [7], note 9.
1. Quincy runs out of space on this page, which is densely written and is written down the left margin. He indicates here that he continues “Baron & Feme” on his page 27 [32]. That page may contain additions by a later hand. See notes, page [32], infra. His page 28 is blank, and he continues “Arbitramt + Award” from his page 18 [23] to his page 29 [33]. Obviously, he entered topics like “Estates” in alphabetical order in his notebook, but did not estimate correctly how much space was needed for “Baron & Feme.” This suggests how important husband and wife “law” and arbitration “law” was in Quincy’s Massachusetts.
2. A reference back “vid. sup[ra]” to Quincy prior discussion at his page 22 [27].
3. Coke on Littleton, p. 351a (“what things are given to the husband by marriage”).
4. “Auter droit,” i.e., “in the right of another.” For example, when the wife holds possession as an executor, rather than in her personal rights, she holds for others, i.e., the person entitled in the estate. See P. G. Osborn, A Concise Law Dictionary (London, 1964), p. 39.
5. A valore maritagii, “on account of marriage.”
6. “Rent Servi. Char:or Seck.” Quincy has abbreviated Coke’s words at Coke on Littleton, p. 351a. Written out, they are “rent service, charge or seck.” “Seck” refers to a “dry” rent service, i.e., one where no tenure is created and thus there are “no incidents such as the right of distress and escheat.” Osborn, A Concise Law Dictionary, p. 289. The Landlord and Tenant Act of 1730, s.5 gave the owner of every rent seck a right of distress for it. This act, passed long after the Coke on Littleton text, is not noted by Quincy. Id., p. 275. Instead, he copies the seventeenth-century law.
7. “Et sic de similibus,” i.e., “and thus regarding similar cases,” “same for the husband as for the wife.”
8. Coke on Littleton, p. 351b (“what things are given to the husband by marriage”). This is almost an exact copy. Mutatis mutandis: “with the necessary changes made.”
Page [30]
1. Reference to Quincy’s volume 4, where he places a six-page “Legis Miscellanea cursim, libris exscprita [sic] of Estates” at his page 5 [126].
2. Quincy’s cross reference to his following notes on “Lands, Tenements + Hereditaments” at his page 47 [45].
3. Citation to Matthew Hale’s Analysis of the Law by a Learned (London, 1713), republished in a 2nd edition, 1716, Sect. 29.
4. The above passage comes from Id., Sect. 31, with a citation to Quincy’s volume 4, page 9 [130], part of his Legis Miscellanea of Estates. See note 1, above.
5. “Pur auter vie,” a life tenancy defined by the life of someone other than the person in possession. Citation is to Quincy’s volume 4, page 9 [130], part of his Legis Miscellanea of Estates. Page 9 [130] is dedicated to “Tenant for Life” and references back to this page of the LawCommonplace.
6. Id., vol. 4, p. 10 [131].
7. This “Ibid” reference appears not to refer back to the Vol. 4 citations but to the earlier citation to Hale’s Analysis (see note 3 above), section 31. This sequence suggests that the two Hale’s Analysis citations were noted by Quincy before he later inserted internal cross-references to other notes in this and other of his volumes.
Page [31]
1. Wood’s Institute, book 2, chapter 1, p. 119. The correct page in the 1772 edition is p. 113. An almost direct quote.
2. Id., book 2, chapter 1, p. 120. An almost direct quote. Underscoring in original.
Page [32]
1. “H” stands for “husband.” This page purports to be a continuation of Quincy’s section on Baron & Feme at his page 24 [29], but it appears to be in a different hand. Even more significantly, it contains citations to vols. 3 and 4 of James Burrow’s Reports (covering 1756–1772), which were not published until 1771 and 1776, respectively. See Wallace, pp. 446–52; Sweet & Maxwell, supra, vol. 1, p. 294. That puts the citation to volume 4 after Quincy’s death on April 26, 1775.
2. Citation to John Comyns, Digest of the Laws of England (London, 1762–1767), vol. 1, p. 567. See Sweet & Maxwell, supra, vol. 1, p. 17; Cowley, p. 135.
3. Citation to Croke’s Reports (covering 1582–1641), vol. 2 [James], p. 239, Watson v. Thorpe and his Wife (1611) (“The feme by her self cannot plead”); p. 288, Tampion v. Newson and Bridget his Wife (1612) (accord); p. 445, Anonymous (1618) (“for the feme without the Baron cannot be sued”).
4. “F.C.” and “Feme Cov” refer to “feme covert,” i.e., a married woman with a living husband.
5. A citation to Burrow’s Reports (covering 1756–1772; London, 1771), vol. 3, p. 1785. The case is Lavie and Another, Assignees of Jane Cox, A Bankrupt, v. Phillips and Others, Assignees of John Cox, A Bankrupt (King’s Bench, 1765), Id., p. 1776. (Wife was a “sole trader,” carrying on a separate trade from her husband “according to the Custom of the … City of London.” Held that “this custom subjected the Wife to an Execution [of creditors to her ‘effects in trade’]: to which She was not liable at Common Law.” Id., p. 1785 (Wilmot J.). In other words, only the special London custom of “sole-trading” for women enables a creditor to reach the married woman’s effects without regard to the husband. At common law she could not be sued directly, i.e., the holding of the case in note 6, below.
6. Citation to Bacon’s Abridgment (1736), vol. 1, p. 308. See page [37], note 5. (“Where a Wife shall be considered as a feme sole.”) The case cited is Anonymous (1701), Modern Reports, vol. 12 (covering 1690–1702; London, 1738), p. 603.
7. “N. A.” is for “non-assumpsit,” she “did not promise.” This was the standard plea by way of traverse denying the existence of an express promise “or of matter of fact from which the promise alleged would be implied by law and thus raised the general issue.” Jowitt, supra, p. 1231. The citation is to Salkeld’s Reports (covering 1689–1712; London, vol. 1 and 2, 1717), vol. 1, p. 117. See Sweet & Maxwell, p. 308; Wallace, p. 399. Dearly v. Duchess of Nazarene supports the proposition that Quincy is discussing.
8. Id., vol. 1, p. 113. The case cited is Langfort v. Tiler and supports the proposition cited.
9. Lord Raymond’s Reports (covering 1694–1734; London, 1743), vol. 1, p. 444. See page [26], note 2. The case is Langfort v. Tiler, for which he cites to Salkeld’s Reports as well. See note 8, above.
10. A citation to Burrow’s Reports (covering 1756–1772), vol. 4, p. 2178. See note 5, above. Volume 4 was first published in London in 1776, so this notation, at least, cannot be Quincy’s. The case is Thompson v. Hervey (1768). The action was by a landlord, who had provided lodging in Bristol for the wife of the second son of the late Earl of Bristol, Thomas Hervey. He refused to pay. Held for the plaintiff, as the wife “had no maintenance from her Husband, no admittance to his House. She was obliged to procure Lodging and Maintenance somewhere else. Every Man is obliged to maintain his Wife” and provide “necessary Subsistence Suitable to her Degree and Rank of Life.” Id., vol. 4, p. 2178.
Page [33]
1. This citation is an exact copy of a citation in 3 Viner’s Abridgment (1742–1753), p. 41: “R.S.L. 1 Vol. 103. cites Wood, 921.” See page 16, note 2. Quincy clearly took the citation from Viner directly. R.S.L. refers to Readings on Statute Law, an alphabetical digest by a “gentleman of the Middle Temple” (London, 1723–1725). See Sweet & Maxwell, vol. 1, p. 547. The second part of the citation refers to Wood’s Institute, supra, p. 921. Notice the extrordinary emphasis is in the original.
Page [34]
1. Cross-reference to Quincy’s detailed index at the end of the book, with a further citation under Estoppel at his page 178 [121].
2. Citation to Coke on Littleton, p. 45a, commenting on Littleton’s Section 58, Id., at pp. 43b–44a, on issue of estoppel against leasee. Also to Id., p. 47b (accord) and pp. 352a & b (definition of “estoppel”).
3. Citation to Rawlyns Case (1588), Coke’s Reports, vol. 4, pp. 52a at 53a, sec. 4, for proposition cited after “b” in text.
4. Citation to Coke on Littleton, p. 47b, commenting on Littleton’s Chapter 58, Id., at pp. 43b–44a. “If the lease be made by deed indented then are both parties concluded, but if it be by deed pool the Lessee is not estoppel….” Id., p. 47b [as only the lessor has sealed the deed, thus it is only the lessor’s act].
Page [35]
1. Cross-citation to Quincy’s “Of Pleading” entry on his page 75 [66].
2. Citation to Modern Reportsor Select Cases adjudged in the Courts of K.B., Chancery, G.P. and Exchequer (consisting of 12 parts, covering 1669–1732), vol. 6, p. 172. London, 1682, 1698, 1698, 1703, 1711, 1713, 1716, 1730, 1730, 1736, 1737, 1738. See Sweet & Maxwell, pp. 304–05; Wallace, pp. 347–90.
3. “Indeb: Assum” for “indebitatus assumpsit,” the famous legal fiction that permitted an action on the case in trespass to permit a recovery of money, in place of the old writ of debt. See J. H. Baker, Introduction to English Legal History (4th ed., 2002), pp. 346–48.
4. Citation to Clark v. Dealy (1704), Modern Reports, vol. 6 (covering 1669–1732), p. 151. The correct citation to volume 6 is important to note here, since Quincy regularly cites to volume 6 as volume 7, incorrectly, elsewhere in the Law Commonplace. See, e.g., page [97], note 1. See note 2, supra. The debtor is obviously an interested witness, as he could be sued himself on the debt, if the plaintiff is “nonsuited,” as Holt observed. Holt is named throughout Quincy’s note, clearly a favorite.
5. Citation to William Hawkins, Pleas of the Crown (London, 1716–1721), vol. 1, p. 429. This was a leading treatise on criminal law. See Sweet & Maxwell, vol. 1, p. 362.
6. Citation to David Hume’s History of Great Britain (London, 1754–1762), vol. 2, p. 288, as printed in 1757. Hume (1711–1770) was a great British philosopher, mathematician, economist and ethicist. It is interesting that Quincy knows Hume’s History, and cites it as legal authority.
Page [36]
1. “Dehors,” i.e., “outside” the document.
2. Citation to The Lord Cheyneys Case (1592), Coke’s Reports, vol. 5 (covering 1572–1616), p. 68a, holding that “construction of wills ought to be collected out of the words of the will in writing.” Id., p. 68b. See page 1, note 2.
3. A reference to the famous Statute of Frauds (1677) 29 Car. 2 c.3., which required that conveyance of land interests, wills of real estate, declaration and assignment of trusts, and certain types of contract be in writing. See J. H. Baker, An Introduction to English Legal History (4th ed., 2002), pp. 349–50, 368.
4. A citation to Cases in Equity (covering 1730–1737; London, 1741), p. 230. See Sweet & Maxwell, vol. 1, p. 345.
5. Id., at p. 231, sec. 3.
Page [37]
1. Quincy’s cross-citation to his section “Of Pleading” at his page 75 [66], which also cites back to this page.
2. “Ecclesiastical Court.” Citation is to Comberbach’s Reports (covering 1685–1699), p. 337, Rex v. Hains and supports the proposition in the text. See Wallace, p. 396. These reports were published in 1724, and covered King’s Bench cases. See Sweet & Maxwell, vol. 1, p. 298.
3. Citation to Lutterel v. Reynell (1670), Modern Reports (1669–1732), vol. 1, p. 282. See page [35], note 2. This case offers the proposition of evidence for which it is cited on the following page, 37 [38]. See page [38], note 6.
4. Viner’s Abridgment (1742–1753), vol. II title “Evidence” at p. 118. See page 16, note 2.
5. Citation to Matthew Bacon, A New Abridgment of the Law, 5 vols., vol. 2, p. 313 (London, vols. 1–2, 1736, vol. 3, 1740, vol. 4, 1759, vol. 5, 1766). See Sweet & Maxwell, vol. 1, p. 16; See Cowley, p. 121. The relevant section in the 1768 section starts on page 312, “Where the Law requires the highest proof the Nature of the Thing is capable of,” and continues to page 313 to discuss “Of hearsay Evidence” etc.
6. This is a citation to [Bathurst (H.)] Theory of Evidence (Dublin, 1701), p. 110 (hereafter, “Theory of Evidence”). This book was later incorporated into Buller (Sir F.), Introduction to the Law relative to Trials at Nisi Prius (Dublin, 1773). See Sweet & Maxwell, vol. 1, pp. 378, 335. Quincy is here making heavy use of a new book published in Ireland.
7. This is a citation to [Nelson (W.)] Law of Evidence (London, 1717), pp. 4, 8, 15–16, republished in 1739 and 1744. See Sweet & Maxwell, vol. 1, p. 379.
8. Theory of Evidence, supra, pp. 94, 122.
9. Id., pp. 11, 152–53.
10. Id., p. 113.
11. Id., p. 115. “Latent ambiguity of words may be supplied by evidence; for ambiguity arising upon the deed is removed by proof of the deed.” See E. Hilton Jackson, Latin for Lawyers (1915), p. 124.
12. Id., p. 117.
13. Id., p. 118.
14. Id., p. 118.
Page [38]
1. Theory of Evidence, supra, p. 37. See page [37], note 6.
2. Id., pp. 18, 34.
3. Id., pp. 46–53, 79–95, 101–02.
4. Reference to a case that occurred in the 22nd year of Charles I (1647) and was decided in the “Banco Regis,” or King’s Bench. Croke’s Reports, vol. 3, referred to by Quincy, covers only the first 16 years. See page 21, note 6.
5. A citation to John Lilly, Practical Register; or, General Abridgment of the Law, 2 vols. (London, 1719), vol. 1, p. 549. Republished in 1735 and 1745. See Sweet & Maxwell, vol. 1, p. 273; Cowley, p. 105.
6. Lutterel v. Reyvel, Modern Reports, vol. 1, p. 282 (1670). See page [35], note 2. This case is also cited on the preceding page, see page [37], note 3.
7. A citation to Viner’s Abridgment (1742–1753), vol. II, title “Evidence,” p. 118. “A. b. 38” is the title of the section on hearsay on page 118 to which this citation is directed.
Page [39]
1. Cross-reference by Quincy to his useful index at the end. See “Pleading” and “Administrator,” Quincy’s pages 180 [123] and 175 [118], respectively.
2. “15 H. 6” refers to the 15th regnal year of Henry VI, or 1437. The citation appears to be to Anthony Fitzherbert’s La Graunde Abridgment (London, 1516), republished in 1565. See Sweet & Maxwell, p. 18. The citation appears to be to the abridgment entry “Executor,” passage 12, the earlier one probably being a year book case of 1437, hence the date. It is highly impressive that Quincy could have had access to such a rare and valuable book. See Joseph H. Beale, A Bibliography of Early English Law Books (Cambridge, 1926), p. 105. The book’s “Beale No.” is R463.
3. “Plene administravit” or “fully administered.” This is the defense raised by an executor when sued on a testator’s debt after he “has fully administered the deceased’s estate and … has no assets to satisfy the claims.” Osborn, A Concise Law Dictionary, p. 243.
4. Fitzherbert’s La Graunde Abridgment (London, 1516) at “Executor,” p. 29.
5. “Quod nota,” i.e., “note this.”
6. Illegible. “SS.” Or perhaps “SC.,” Latin scilicet, “namely.”
7. Citation to an anonymous case of an executor’s action in Leonard’s Reports (covering 1540–1615), vol. 4, p. 193. These reports were published in four parts between 1658 and 1675, with a 2nd ed. in 1687. See Sweet & Maxwell, p. 303, Wallace, pp. 142–43. The second citation is to Levinz’s Reports (covering 1660–1697), vol. 1, p. 164. The case is Guillan v. Gill (1665).
8. The citation is to William Nelson’s Lex Testamentaria (London, 1728), pp. 164–65. There was a second edition in 1724, republished in 1728 and 1733. See Sweet & Maxwell, p. 493.
Page [40]
1. Strange’s Reports (covering 1716–1749), vol. 1, p. 581. See page 21, note 12. The case is Knight v. Cambridge (1724) (defining “Barratry of master and mariners”), Id., p. 581. “Barratry” refers here to its maritime significance, i.e., a “wrongful act wilfully committed by the master or crew of a ship to the prejudice of the owner or charter,” such as “stealing the cargo.” See Osborn, A Concise Law Dictionary, p. 45. See p. [42], n. 2, infra.
2. Strange’s Report’s, supra, vol. 2, at p. 1065. The case is Boyfield v. Brown (1737), holding as stated. Id., p. 1065.
3. Id., vol. 2, at p. 1173. The case is Stamma v. Brown (1743), which holds that such a deviation is not insurable barratry when the master is “acting all the while for the benefit of his owners….” Id., vol. 2, p. 1174.
4. Id., vol. 2, at p. 1183. The case is Seaman v. Fonereau (1744) (The ship was leaky. This should have been disclosed to insurers, although loss was due to capture by Spaniards). Id., p. 1183.
5. Id., vol. 2, at p. 1199. The case is Green v. Brown (1744), holding as stated.
6. Id., vol. 2, at p. 1236. The case is Spanaw v. Caruthers (1745), holding as stated.
7. Id., vol. 2, at p. 1243. The case is Wapler v. Eames (1740), holding as stated.
8. Id., vol. 2, at p. 1248. The case is Dick v. Barsell (1746) (The plaintiff embarked on one ship from Virginia to London. He insured any ship he “should come in on.” The first ship sprang a leak. He then went aboard a second ship, which arrived safely. The first ship was captured. Held, the insurance was due on the first ship, and would not have been due if the second ship had been lost).
9. Id., vol. 2, at p. 1249. The case is Foster v. Wilmer (1740) (The captain intended to deviate from the agreed voyage, but the ship was captured before it left the agreed route. Held, the insurer must pay).
10. Id., vol. 2, at p. 1250. The case is Dean v. Dicker (1740) (Insured ship captured, and then rescued from Spanish port after 8 days. Held, the insurer must pay, even though the owner lost only the cargo, the ship being returned after paying salvage). Id., p. 1250.
Page [41]
1. A citation to Strange’s Reports (covering 1716–1749), vol. 2, p. 1251. See page [21], note 2. The case is Tonge v. Watts (1746) (Ship is wrecked by tempest while being “careened,” before voyage begins and cargo loaded. Owner cannot recover for loss of voyage profits “as the goods were not actually on board.” Id., p. 1251).
2. Id., at 1264. The case is Elton v. Brogden (1747). “Deviation” is intentional departing from the agreed “due course” of the voyage. “Barratry” in maritime law is when a master or crew of a ship commits a wrongful act against the owner, without the owner’s “conivance.” See p. [40], n. 1, supra. It is generally covered by insurance. Here, the master did not intentionally deviate, but was forced to return by the crew. The return voyage was found to be covered by the insurance. The plaintiff did not recover on the grounds of “barratry,” but because there was no “deviation.” Id., pp. 1264–1265. See page [40], note 1.
3. Id., at p. 1265. The case is Gordon v. Morley, joined with Campbell v. Bordieis (1747). The ship Ranger was trying to make the convoy rendezvous when taken. The policy read “warranted to depart with convoy.” It was held that the loss was covered by the policy. Id., p. 1265.
4. Quincy’s method in all of these cases was to go through Strange’s Reports in strictly chronological order, excerpting interesting insurance holdings, largely relating to ships.
Page [42]
1. Quincy’s system for filing out his book meant that he sometimes underestimated the space that should be alloted to the alphabetical titles. “Jury” proved to be such a highly important category, which is an insight into Quincy’s legal world.
2. A direct quote from Dominus Rex v. Bennett (1718), Strange’s Reports (covering 1716–1749), vol. 1, p. 105. See page [21], note 12, supra. Strange in turn cites to Littleton’s Tenures §368 (1st ed., circa 1481). See Coke on Littleton, fol. 228, where Coke comments on Littleton that “Although the Jurie, if they will take upon them (as Littleton here saith) the knowledge of the Law … yet it is dangerous for them so to do, for if they doe mistake the Law, they runne into the danger of an Attaint….” See page [7], note 9, supra.
3. Left blank in text. Quincy is referring to Lekeux v. Nash (1745), Strange’s Reports (covering 1716–1749), vol. 2, p. 1221.
4. This is almost a direct quote from Lekeux v. Nash, supra, note 3. “I” must refer to the plaintiff, who suffered a nonsuit.
5. A rough summary of the holding in The Queen v. Ingersall, Croke’s Reports (covering 1582–1641), vol. 1, pp. 309–10. See page [21], note 6.
6. Almost a direct quote from Bacon’s Abridgment (1736), vol. 3, p. 278. (“Juries” “Where punishible by Attaint.”) This is the same point made by Coke. See note 2, supra. Attaint had become an anachronism by Quincy’s day. See Introduction, supra, pp. 60‒61.
7. Almost a direct quote. Id., vol. 5, p. 218. (Page 217 in the 1770 edition.)
8. This is a citation to David Hume’s (1711–1776) famous History of Great Britain, which was published in four volumes, in 1754, 1757, 1759 and 1762, respectively. Quincy’s political Commonplace Book, set out in full in this series at Quincy Papers, vol. 1, pp. 100–93, extracts large sections of Hume. See Id., pp. 101, 123–27, 139–40, 165. Hume was highly trained in the law and was appointed Advocates’ Librarian in Edinburgh in 1752. Hume’s work has been seen as in the school of John Locke, seeing a need to balance the conflicting roles of reason and experience and “instinct or sentiment.” See The Oxford Companion to English Literature (Margaret Drabble, ed., 5th ed., 1985), p. 995; The Dictionary of Philosophy (Dagobert D. Runer, ed., 4th ed., 1942), p. 132. This would have appealed to Quincy’s own political inclination as a moderate. See Neal L. York, “Quincy’s Literary Arsenal,” Quincy Papers, vol. 1, pp. 56–57.
9. Id. A citation to Hume’s fourth volume of 1762, p. 704. This remains a most eloquent testimonial to jury trial.
Page [43]
1. Wood’s Institute, p. 6. See page [7], note 3. A direct quotation.
2. Coke on Littleton, p. 225b. See page [2], note 1; page [7], note 9. Almost a direct quote. “Rasing” in the original would be “erasing” today.
3. As with most of Quincy’s unidentified “vid.” citations, this is to the massive 23 volume Viner’s Abridgment, to which Quincy clearly had access. See p. 16, note 2.
4. A citation to Doctor Leyfields Case, 10 Coke’s Reports 88a at 92b. “That it be not raised or interlined in material….”
5. This could be a citation to Viner’s Abridgment (1742–1753), volume on “Evidence” (vol. 11), where pages 106 and 107 discuss writings whose validity is in question. See page [16], note 2.
6. Same citation as note 5, above.
7. “Letter on Libels”? Citation to Sir Roger L’Estrange, A Word Concerning Libels and Libellers (London, 1681). See Sweet & Maxwell, supra, p. 106.
8. Citation to Viner’s Abridgment (1742–1753), vol. 11, Section on “Evidence,” p. 53, pl. 3. See p. 16, note 2, supra. This marginal citation is relevant to both “x” notations in Quincy’s text.
9. Citation to Sir John Hawles, The Englishman’s Right; a dialogue between a Barrister-at-Law and a Jury-Man, setting forth the Antiquity, the excellent designed Use, the Office and Priviledges of Juries, by the Law of England (London, 1680), pp. 22 and 25–26 in the 1732 edition. There were subsequent editions in 1680, 1693, 1732, 1763 and 1764, and four more subsequent to 1770. See Sweet & Maxwell, supra, p. 376. See Holdsworth, supra, vol. 9, pp. 213, 223, 234, vol. 12, pp. 459–60. Hawles (1645–1716) was solicitor-general (1695–1702) and a “sturdy Whig.” Id., vol. 9, p. 459. His books were “popular in America.” Id., vol. 9, p. 460.
10. This phrase is found in the bottom left margin of the page. It appears to explicate the word “Matter,” which appears in the bottom right corner.
Page [44]
1. Quincy’s section of “Jury” continues for three more pages after “Of Lands, Tenements, + Hereditaments” on his pages 50–52 [48–50].
2. Quotation from Sir John Hawles, The Englishman’s Right, supra (emphasis in original). It is actually a combination of two excerpts, first from page 22 (of the 1734 edition), which ends with “Not Guilty,” and then, beginning with “And if to a jury” to the end, from pages 25–26 (of the 1734 edition). See page [43], note 9, supra. The underlining is added by Quincy. The issue discussed was of the greatest importance in the eighteenth century and featured in major political trials like that of William Penn in England in 1670 and Peter Zenger in America in 1735. See The Trial of Peter Zenger (V. Buranelli, ed., 1957).
Page [45]
1. Reference back to page 25 [30] of Law Commonplace, on “Estates.”
2. Reference to Quincy’s volume 4, where Quincy begins a six-page compilation of “Legis Miscellanea cursim, Libris exscprita [sic] of Estates” at his page 5 [126].
3. Citation to Coke on Littleton, p. 41b, definition “occupant,” and p. 388a. “That the heyre of the Lessee shall have the land to prevent an Occupant….”
4. Citation to Wood’s Institute, Book 2, chap. 3, p. 227. “How Lands, Tenements or Hereditaments may be Aquired (vis.) By Occupancy.” Direct quotation.
5. Citation to Littleton, Sec. 3 (1481). See Coke on Littleton (1628), pp. 10b–11a. See also page [2], note 1; page [7], note 9. Rough quotation of rule against “lineal ascent.”
6. Citation to Ratcliffe’s Case (1592), Coke’s Reports, vol. 3, p. 37 at p. 40, affirming proposition in Littleton about collated inheritance of uncle due to rule against “lineal ascent.”
7. “x” refers to Quincy’s inclusion below. Thus if a son acquires a land, and then dies, his living father cannot inherit directly. If the uncle is the next nearest kin, the uncle can inherit from his nephew, as the inheritance is collateral, not lineal. If the uncle then dies, the father can inherit the land from his brother, as that is also collateral. The land could conceivably be inherited eventually by the father, who could never inherit directly from the son, as that would be a prohibited “lineal ascent.” Even more odd, the old common law held that if the father had additional issue of any sex, they would then be collateral heirs of the dead son, and entitled to take the land, even if they were born after the death of the son and after the uncle had received the land. The uncle was not an “absolute” heir as long as the father might have more children!
Quincy notes that the prohibition against lineal ascent was “formerly settled Law here, but since has been ruled otherwise,” presumably by the Massachusetts Superior Court of Judicature, although the cited cases do not appear in Quincy’s own Reports. See note 12, infra.
In addition, in setting out the “canons of descent” on his page 49 [47], Quincy indicates that a father can inherit directly from a child in the absence of any uncles or aunts or their issue, and ahead of any half-blood heirs, although this would appear to be “lineal ascent.” The argument may be that the father is inheriting through lack of collateral heirs, i.e., collaterally. But is this true if the father had no siblings?
8. Citation to Littleton (1481), Sec. 8 and Coke on Littleton, supra, at p. 11b, which discusses Littleton, supra, Sec. 3. See note 5, supra. Also citation to Coke on Littleton, supra, at p. 15 a and b, discussing Littleton, supra, Sec. 8, for the proposition that actual possession, or seisin, by the deceased is required for an heir to take. For example, if an elder brother is actually seized of an inheritance from his father, and then dies, his next oldest sibling by his mother will inherit collaterally, even if a sister. But if the eldest brother has not actually entered the land, a “half blood” younger brother by another “venter,” or mother, will inherit before a “full blood” older sister, because the younger son is “Reine to the father, but not to his brother.” See Coke on Littleton, supra, p. 14b, and Littleton, supra, Section 8.
9. Ratcliffe’s Case (1592), Coke’s Reports, vol. 3, p. 37 at p. 41. See note 6, supra. Stands for proposition cited.
10. “Fee-Simple.”
11. Quincy uses the Latin “venter,” or “womb,” to mean “mother.” “In the old books [venter] was equivalent to mother … two brothers ‘by divers venters’, meaning two brothers having different mothers.” Jowitt, supra, p. 1826. See also Cassell’s Latin Dictionary (J.R.V. Marchant. J. F. Charles, eds., London), 1946, p. 610.
12. See discussion at note 7, supra. This comment shows Quincy to be highly alert to the current state of the law, and no “slave to his books.” This is also evidence that he may be receiving guidance from other senior lawyers, or from his peers.
Page [46]
1. Citation to Littleton (1481), Section 4, as annotated at Coke on Littleton, pp. 12a–12b. See page [2], note 1, page [7], note 9. According to Coke’s annotations: “And note, it is an olde, and true Maxime in Law, That none shall inherit any lands as heire, but only the blood of the first purchaser …” Id., at p. 12a.
2. Citation to David Hume (1711–1776) History of Great Britain (1754–1762), vol. 5, p. 47. Hume was a favorite of Quincy’s Political Commonplace Book. See Quincy Papers, vol. 1, pp. 101, 123–27, 139–40, 165. See also page [42], note 8. Hume was also a trained lawyer, as well as a philosopher and historian, and served as Judge-Advocate to General St. Clair in 1747 and was appointed Advocate’s Librarian in Edinburgh in 1752. See Oxford Companion to English Literature (M. Dabble, ed., 1985), pp. 482–83. See also page [42], note 8.
The comment to “Judge Prat” is extremely significant. Benjamin Prat (1711–1763) was Chief Justice of New York, following a highly successful practice in Boston. He was one of John Adams’s inspirations. See Law in Colonial Massachusetts, p. 363. See also pp. 230, 366, 370, 378. Quincy is clearly referring to a pronouncement by Prat in his judicial capacity. That Quincy was aware of Prat’s views, in the absence of colonial law reports, is remarkable, and may have been the kind of experience that led Quincy, in 1761, to begin his own Reports. See Quincy Papers, vol. 3, “Introduction.”
3. Citation to Littleton (1481), supra, Sections 6–8, and Ratcliffe’s Case (1592), Coke’s Reports vol. 3, at pp. 41–42, supporting text.
4. “Fee Simple.”
5. “Mothers.” See page [45], note 11.
6. Citation to Coke on Littleton, p. 10a, commenting on Littleton, supra, Section 2, for the principle of collateral inheritance of the half-blood brother, as full blood to father and father’s brother, and id., page 15b, commenting on Littleton, supra, Section 8, for same principle. In Littleton’s words, the younger brother is “of the whole blood to him [his uncle on his father’s side], albeit he be but of the halfe blood to his elder borther.” Id., p. 15a. There is a citation to Ratcliffe’s Case, supra. See note 3, supra.
7. “Dignities” refer to the right to “bear a title of nobility or honour,” such as an hereditary knighthoods, baronetcies, or ordinary peerages. Jowitt, supra, p. 630.
8. “Estates Entailed,” i.e., the inheritance was limited to lineal “heirs of the body.” If the grant was “in tail male,” only heirs of the body male could inherit. The word “entail” comes from the Norman French “entaille” or “tailler,” “to cut,” i.e., a “cut down fee.” See Jowitt, supra, pp. 715–16.
9. The action per forma doni (“form of the gift”), through the writ of formedon, enforced the rights of reverter and of remaindermen in an entailed grant. Thus, if there was a failure of issue when land was granted subject to an entail, the heirs of the original grantor could recover the land, i.e., “reverter.” If a tenant in tail tried to sell the land as if it were a fee simple, not a limited fee, his own heirs, the remaindermen, had a claim to recover the land according to the form of the gift. In the past, this had created conceptual problems, as their interest in the land was still contingent while the tenant was alive. See J. H. Baker, An Introduction to English Legal History (4th ed., 2002), pp. 273–74.
10. From Coke on Littleton, supra, p. 13a. “That whensoever Lands doe descend from the part of the mother, the heires of the part of the father shall never inherit. And likewise when Lands descend from the part of the father, the heires of the part of the mother shall never inherit. Et sic paterna paternis & e converso, materna maternis.” Id., p. 13a. The citation supports the passage marked “X” in the text.
Page [47]
1. A citation to Coke on Littleton, fol. 50b. See page [2], note 1 and page [7], note 9. Quincy must be referring to the annotation by Coke to Littleton’s Section 62, which states that where two parties exchange land “… if one of them dieth, before the exchange be executed by entrie, the exchange is void; for the heirs cannot enter and take it as a Purchasor, because he was named only to take by way of limitation of estate in course of descent.” Id., fol. 50b.
2. “Fee-simple.”
3. “Coparcenge” is where females in equal degree divide the land equally. In English common law, the eldest male heir usually took everything, and his younger brother nothing, i.e., “primogeniture,” but if there was no male heir, sisters divided the land equally. This was because the feudal system valued the concentration of land in male heirs, but not in females, who usually lost control by marriage, anyway. See Daniel Coquillette, The Anglo-American Legal Heritage (1999), pp. 104–05.
4. A citation to Wood’s Institute (1720), book 2, chap. 3, pp. 228–30. See page [7], note 3, supra. This is a rough summary of the canons of descent set out in Wood’s section on “How Lands, Tenements or Hereditaments may be Acquired … By Descent.” Quincy does a good job of clarifying and summarizing the poorly organized Wood’s Institute. Note also that Quincy indicates that a Father can inherit if there are no full-blooded collateral heirs, which seems to contradict Wood’s statement that “the Father can never come to the Lands which his Son has purchased in Fee-simple by lineal Ascent.” See the discussion at page [45], note 7.
Page [48]
1. A reference to pages 44 [42] and 45 [43] of Quincy’s commonplace, where the entry “Jury” had left off.
2. A citation to Salkeld’s Reports (1689–1712), Anon., vol. 1, p. 405. See page [32], note 7.
3. A citation to Lilly’s Practical Register; or General Abridgment of the Law, 2 vols. (London, 1719), vol. 2, p. 605. “Lilly’s Abridgment” was republished in 1735 and 1745. See Sweet & Maxwell, supra, vol. 1, p. 273. See also Cowley, supra, at pp. 105–06.
4. Lilly’s Abridgment, vol. 2, p. 644. See note 3, supra. As usual, Quincy abbreviates “plt” for “plaintiff” and “dft” for “defendant.” This is an important aspect of colonial jury trial that differs from modern practice, i.e., jurors could decide cases on their own knowledge. See Daniel Coquillette, The Anglo-American Legal Heritage (1999), supra, pp. 160–62.
5. “Question.”
6. “Counsel,” i.e., the lawyers on both sides. This was an important safeguard on a jury’s reliance on its own knowledge, as opposed to what it learns in the courtroom, and indicates a transition to today’s ideal of a “neutral” jury, i.e., a jury with no prior knowledge of the case outside the courtroom.
Page [49]
1. Referring to the same title “before,” i.e., “Jury” starting on Quincy’s page 44 [42].
2. This annotation is a copy of citations appearing in Viner’s Abridgment (1742–1753), vol. II, title on Evidence (col. 11), p. 47, where Viner adds a marginal note “S E. Tr. Per Pais 221” and follows the adjoining text with the citation “Per Curiam, Sty. 233. Mich. 1670. B. R. Benet v. Hartford (Hundred).” See note 4, below. The first part refers to [George Duncombe’s] Trials per Pais: or Law concerning Juries by Nisi Prius, By S.E. (London, 1665), pp. 221, 233; reprinted in 1666, 1682, 1700, 1702, 1718, 1725, 1739, and 1766. See Sweet & Maxwell, supra, vol. 1, p. 375. The second refers to the holding “per curiam” (i.e., by the court) reported in the case of Bennet v. Hundred of Hartford (1650), W. Style’s Modern Reports(1646–1655), p. 233. See Sweet & Maxwell, supra, vol. 1, p. 210.
3. Two citations to Lilly’s Abridgment, vol. 1, p. 512, vol. 2, p. 126, supporting the text. See full discussion at page [48], note 3.
4. Citation to Viner’s Abridgment, title on Evidence, vol. 11, p. 47. See page [16], note 2. Citation supports the text.
5. A reference to the 2nd volume of Catharine Macaulay’s (1731–1791) The History of England from the Accession of James I to the Elevation of the House of Hanover (3d ed., London, 1769–1772), 5 vols. There were previous multi-volume editions published between 1763–1765 (1st) and 1766–1771 (2nd). Quincy closely paraphrases and condenses from Macaulay’s text regarding the case of Lord Balmerino.
6. This is highly controversial, and reflects a previous discussion in Quincy’s notes. Obviously, a jury that can disregard an instruction of law from a judge has more power, a significant point in the Boston of Quincy’s day. But such a jury also takes a serious risk of attaint, if it errs, a point emphasized by judges like Sir Edward Coke. But by Quincy’s day, attaint had become an anachronism. See Introduction, supra, pp. 60‒61. See the discussion at page [42], notes 6–7. Citation is to Trials per Pais (7th ed., 1739), pp. 246–50. See note 2, supra.
7. Citation to Trials per Pais (7th ed., 1739), p. 295. See note 2, supra. It, in turn, cites to Edmund Plowden’s Commentaries, page 86, an important early set of reports first published in French in London in 1571. In its final editions, it covered the period 1550–1580. It was translated into English in 1761, and republished four times thereafter. See Sweet & Maxwell, supra, vol. 1, pp. 306–07; Wallace, supra, pp. 143–53.
Page [50]
1. Quincy is referring back to the “Jury” entries before at his pages 44–46 [42–44] and pages 50–52 [48–50], i.e., “before and after.”
2. Being returned “de vicineto” refers to “from the vicinity, or neighborhood.” The jury, in other words, came from the “vicinage,” or nearby, and may therefore have personal knowledge of the case in question. As Coke said, “Vicini vicinora praesumuntur scire” (“Persons living in the neighborhood are presumed to know the neighborhood”). See Jowitt, supra, pp. 1836–1837. The citations are to Viner’s Abridgment (1742–1753), supra, at title on Evidence. See page [16], note 2, which, in turn, cites Bushel’s Case in Sir John Vaughan’s Reports and Arguments in the Common Pleas, page 147 (1665–1674), published in London in 1677 and then, again, in 1706. See Sweet & Maxwell, vol. 1, p. 310. See also Wallace, supra, at pp. 334–37.
3. A citation to Frowicke’s Case, Y.B. 3 Hen. 7, p. 11 (1488). This would have been found in Sir John Maynard’s great edition of the Yearbooks, published in London between 1678–1679. In particular, the 3d year of Henry VII would be in Part 11, published in 1679. See Sweet & Maxwell, supra, pp. 312–13. It would be impressive if Quincy had access to such a series, but by no means impossible. For example, the Harvard College Catalogue of 1723 had a “Yearbook” entry, “under K. Henry V. and K. Henry VI, from the 40 to the 50 of Edw. III.” See The Printed Catalogues of the Harvard College Library, 1723–1790 (W. H. Bond, H. Amory eds., Boston, 1996), at p. 40.
4. Another citation to Viner’s Abridgment (1742–1753), Section on Evidence. See page 16, note 2. This in turn cites Lord Raymond’s Reports (1694–1734), p. 405, Chichester v. Phillips.
5. This is a mysterious abbreviated citation. “SE” may refer to “S.E.” Trials Per Pais, written by C. Duncombe and published in 1665, page 146. Quincy cited this book before. See page [49], note 2. “[B]ut it does not appear” may refer to the fact that the cited case does not appear where it should in Trials Per Pais. This would indicate that Quincy was doing more than copying references, but was also looking them up!
6. Once again Quincy is citing to Viner’s Abridgment (1742–1753). See page [16], note 2. Viner’s in turn is citing Sir Robert Brooke’s La Graunde Abridgment (London, 1573), reprinted in 1576 and 1586. See Sweet & Maxwell, supra. The section on “General Issue & Special Evidence” begins on fol. 14b of vol. 2 of the 1576 edition, and entry 51 is on fol. 16a, which summarizes Y.B. 9 Henry VI, 33 (1431), as indicated by Quincy. Brooke’s entry supports Quincy’s principle. “Car lay gents re discusses matter in ley …” Id., vol. 2, fol. 16a. Quincy’s careful notation of yearbook precedent more than three centuries old, as summarized in abridgments two centuries old, is impressive.
7. A further citation to Viner’s Abridgment, supra, which in turn cites Sir Robert Heath’s Maxims and Rules of Pleading (London, 1694), at p. 95. For “SE,” see n. 5, supra, and p. [49], n. 2.
8. “In demurrer on evidence, the consent of both parties is requisite.” Quincy cites back to Viner’s Abridgment, supra, which cites Heath’s Maxims, note 7, supra, p. 96. A “demurrer” was “a pleading by which one of the parties in effect alleged that the facts stated by the opposite party … assuming them to be true, did not sustain the contention based on them.” Jowitt, supra, p. 609. If the demurrer is based on a question of evidence, it requires the consent of both parties.
9. Citation to Quincy’s page 58 [55], which continues the obviously important topic of the “Jury.”
Page [51]
1. Quincy had a relatively sophisticated cross-referencing system at the end of his Law Commonplace. See Quincy’s page 179 [122].
2. A citation to Sir John Holt’s Report of Cases determined by Holt [King’s Bench] 1688–1710, pp. 415–16 (published in London in 1738). See Sweet & Maxwell, vol. 1, p. 301.
3. A citation to Littleton (1481), supra, Section 58 “Tenant for tearme of yeares” as annotated in Coke on Littleton, supra, at p. 44a, with the specific point of the defense of nihil habuit described p. 47b, i.e., “If the lease be made by deed indented then are both parties concluded … but if it be by deed poll the Lessee is not estopped to say that the lessor had nothing [nihil] at the time the lease was made.” Id., at p. 47b.
The plea nihil habuit in tenementis (he had no interest in the tenements) denies the lessor’s title. It is successful only for lessee “for years, or at will, without occupation by the lessee, for if the lessee had become tenant he would have been estopped from denying his landlord’s title.” Jowitt, supra, at p. 1226.
4. A citation to Littleton, supra (1481), at Section 72, i.e., “[I]f the lessor upon a lease at will, reserve to him a yearly rent, he may distreine for the rest behinde, or have for this an action of debt at his own election.” See Coke on Littleton, at p. 57a. See also page [2], note 1; page [7], note 9.
Page [52]
1. Citation to Wood’s Institute, p. 345. See page [7], note 3.
2. Id., p. 344.
3. Id., p. 345.
4. Salkeld’s Reports (1689–1712), vol. 2, p. 415. Also a citation to Anonymous, General Abridgment of Cases in Equity, vol. 1, pp. 294–95 (Smell v. Dee), which supports the proposition Quincy discusses. Vol. 1 was published in 1732 and vol. 2 published in 1756. There were several later editions, and continuing controversy as to the author or authors of both volumes. See Sweet & Maxwell, vol. 1, supra, p. 286. See also Wallace, supra, pp. 490–91.
5. A citation to T. Vernon, Cases argued and adjudged in the High Court of Chancery, 1746–55, in the time of Lord Chancellor Hardwicke, vol. 1, p. 35 (2 vols., London, 1726–1728). There were several subsequent editions. See Sweet & Maxwell, supra, vol. 1, p. 349. See also Wallace, supra, pp. 493–97.
Page [53]
1. “Laches” refer to “unreasonable delay” in enforcing or pusuing a legal remedy “whereby the party forfeits the benefit.” Jowitt, p. 1050.
2. A citation to Salkeld’s Reports (1689–1712), vol. 2, p. 415. The case is Smell v. Dee. See p. 32, n. 7; p. 52, n. 4.
3. A citation to Anderson’s Reports, vol. 1, p. 33. (Les Reports des mults principals Cases, cibien en le Common Bank) (1534–1604), 2 parts. The case is Lee v. Mayer, and begins on page 31. It was first published in London in 1664–65. See Sweet & Maxwell, supra, vol. 1, p. 292 and Wallace, supra, pp. 136–42.
4. A citation to Leonard’s Reports, vol. 1, p. 278. (Reports and Cases of Law in the Courts at Westminster) (1540–1615). See page [39], note 7. Published in London in four parts between 1658–1675. There was a second publication in 1687. See Sweet & Maxwell, supra, vol. 1, p. 303. See also Wallace, supra, pp. 142–43. The case is Lady Lodge’s Case (1584), which begins on page 277.
5. A citation to Cases in Chancery (1660–1688), p. 112, Innocent and “Ux.” [“uxor” or “wife”] v. Taylor. Cases in Chancery were published in three parts: part 1 was published in 1697, and again in 1707 and 1730; part 2 was published in 1701, and again in 1702; part 3 was published in 1702, and again in 1715 and 1730, all in London. There was an undated fourth edition. See Sweet & Maxwell, supra, vol. 1, p. 345. See also Wallace, supra, pp. 480–86. A copy of Cases … in … Chancery (London, 1697) was in the possession of James Otis of Boston (1702–1778), and is now in the editor’s library.
6. “Civil Law,” (emphasis in original) i.e., the Roman law-based system of the continent, as opposed to the “common law” of the English Court of King’s Bench and Court of Common Pleas. The differences included procedural and substantive contrast, such as the lack of jury trial in “civilian” courts. Some English courts followed “civil” law, including the Admiralty courts and the Court of Requests. See a full discussion in Daniel R. Coquillette, The Civilian Writers of Doctors’ Commons, London (Berlin, 1988) pp. 15–46; Coquillette, The Anglo-American Legal Heritage, pp. 1–11, 205–13. For a discussion of the importance of civil law in the Vice Admiralty Courts of the colonies during Quincy’s time, see Daniel R. Coquillette, “Justinian in Braintree,” Law in Colonial Massachusetts (Boston, 1984), pp. 359–418. Many legacies, including legacies involving chattel, were subject to the special expertise of the English civilian jurists of Doctors’ Commons in London. See Daniel R. Coquillette, The Civilian Writers of Doctors’ Commons, London, supra, pp. 29–32.
Page [54]
1. A citation to William Strahan’s translation of Jean Domat’s The Civil Law in the Natural Order: Together with the Publick Law (London, 1722), 2 vols., vol. 2, pp. 180–81. The translation from the French was published in new editions in 1737 and 1777. See Sweet & Maxwell, supra, vol. 1, p. 611. For a full discussion, see Daniel R. Coquillette, The Civilian Writers, supra, at pp. 203–09. In the 1737 2nd edition, the section referred to by Quincy is Book IV, Title 2, Section 7, in vol. 2, p. 173. Quincy very roughly paraphrases, but does not copy, this section.
2. A citation to Bastard v. Stukely, Levinz’s Reports (1660–1697), vol. 2, p. 209. It supports the text. See Wallace, supra, 304–315; Sweet & Maxwell, vol. 1, supra, p. 81. Levinz’s Reports were published in London in 1702 and published in a second edition in 1722, and in subsequent editions. See Id., vol. 1, p. 303.
Page [55]
1. Quincy is referring back to his original “Jury” page, at his page 44 [42], and his following “Jury” section, at his page 50 [48]. “Jury” was clearly a topic that outstripped the anticipated space.
2. “Dem:R” for “demurrer.” For a discussion of the “demurrer” see page [50], note 8. Since the defendant offering the demurrer assumes the plaintiff’s evidence to be true, it is obviously fair to require the plaintiff to consent, or to waive the evidence. Demurrers were, at least in theory, efficient, as they permitted rulings on key points of law. See page [50], note 8.
3. This maxim, “for matter of law shall never be put in the mouth of Lay gents,” repeats Quincy’s notation at page 52 [50]. The source of the quotation is Y.B. 9 Henry VI, 33 (1431), summarized in Sir Robert Brooke’s La Graunde Abridgment (London, 1573), vol. 2, fol. 16a. See page [50], note 6.
4. “Mutatis mutandis” for “the necessary changes being made.”
5. A further citation to Viner’s Abridgment (1742–1753) on “Evidence” (U:b:1) pl. 8. See page [16], note 2. Viner cites in turn to Baker’s Case, Coke’s Reports vol. 5, p. 104a, decided in 1597, in which the court held that “the Plaintiff cannot refuse to joyn in demurrer, but he ought to joyn in the demurrer, or waive his evidence … The Defendent may demurre in Law upon it, but then he ought to admit the evidence given by the Plaintiff to be true; and the reason thereof is, That matter in Law shall not be put to Laymen. So may the Plaintiff demurre upon the Defendants evidence, mutatis mutandis …” Id., p. 104a. Viner also cites to Middleton v. Baker, Croke’s Reports (covering 1582–1641) vol. 1, p. 751, dated 1600: “the Plaintiffs ought to joyn in the demurrer, or waive the evidence, because the Defendant shall not be compelled to put a matter of difficulty to Lay gents …” Id., at p. 752.
6. This is an accurate summary of the secondary holding of Middleton v. Baker, supra. “[T]he other, unless he pleaseth, shall not be compelled to joyn, because the credit of the testimony is to be examined by the Jury, and the evidence is certain, and may be enforced more or less …” Id., at Croke’s Reports, vol. 1, supra, p. 752.
7. “Tis ye property of ye court, jus dicere [to interpret the law].” This is cited to “S.E.” [G. Duncombe], Trial Per Pais (1665), supra, page 1 of the 1739 edition. See page [49], note 2, and page [50], note 5. This quotation was made famous by Francis Bacon’s essay, “Of Judicature,” which begins “Judges ought to remember that their office is Ius dicere, and not ius dare; To interpret Law, and not to Make Law, or Give Law.” Francis Bacon, The Essayes (London, 1629), p. 316. Quincy’s Political Commonplace Book contains substantial Bacon excerpts. See Quincy Papers, vol. 1, pp. 100, 103–04, 148, 187–93, infra. See also Neil L. York, “Ideas, Ideals and Interpretations,” Id., p. 88. The first publication of the expanded Essays including “Of Judicature” was published in London in 1612. See Daniel R. Coquillette, Francis Bacon (Edinburgh, 1992), Appendix III (Chronology of Publications Up to 1631), p. 333.
Page [56]
1. A reference to H. Dagge, Considerations on Criminal Law (London, 1772), 3 vols. The book was republished in 1774 in Dublin. See Sweet & Maxwell, supra, vol. 1, p. 361. This is a crucial reference, because it establishes that Quincy was still adding to his Law Commonplace after May of 1772, and was reading the Monthly Review.
2. A citation to Daines Barrington, Observations upon the Statutes, chiefly the more ancient from Magna Carta to 21st James the First [1624] (1st ed., London, 1766), p. 86. The small font represents a smaller hand probably added at a later date after the Monthly Review citation in 1772, but it could still be Quincy. See n. 3, infra.
3. The text here, and continuing, is taken from Sir John Maynard’s (1602–1690) argument on Skinner’s Case as recorded by Anchitell Grey’s Debates of the House of Commons (1667–1694) (London, 1763). See page [57], note 2 and page [58], note 1. The handwriting is smaller and finer, commencing with “Upon the same Q:n” through the citation to Grey’s Debates, supra, on page 58 [61]. The word “Jury” at the top of page 60 and 61 [57 and 58] is clearly in Quincy’s hand, and the later addition is written later and across the words “Jury” on both pages. It is difficult to tell if this is an addition by Quincy, or another hand altogether, but it is the opinion of my learned co-editor Neil York, who has worked closely with Quincy’s hand in the Political Commonplace, Quincy Works, vol. 1, and myself that this is still Quincy.
1. “Ex facto jus oritur,” i.e., “The law becomes operative after the fact.” See Sir Edward Coke’s Second Institutes (London, 1641), p. 49 and E. Hilton Jackson, Latin for Lawyers (London, 1915), p. 154.
2. “A neutro parte suspecti,” i.e., “whose neutrality is suspect for the reasons following.” The important emergence in the eighteenth century of jury neutrality is evidence by Sir John Maynard’s (1602–1690) argument set out here. See page [58], note 1.
3. “Sheriff.”
4. A “bill of exception” was a document containing objections by an aggrieved party to the trial judge’s direction to the jury on a point of law, or an objection to the trial judge’s decision to permit evidence to go to the jury, or to preclude the jury from considering evidence. It had to be sealed by the trial judge before the verdict. The bill was then argued before the appropriate court of error. See Jowitt, p. 238.
5. A “writ of error” was directed to the appropriate court of error on the face of the record. See the discussion at Baker, pp. 137–38; Coquillette, The Anglo-American Legal Heritage, p. 244. It was a very narrow form of appeal, compared to today’s forms of appellate review.
Page [58]
1. (Emphasis in original). A citation to Anchitell Grey’s (?–1702) Debates of the House of Commons (1667–1694), vol. 1, p. 449, first published in London in 1769, from which were copied the text on this page and the preceding two pages. (Quincy, pp. 59–61 [56–58].) Grey’s record of the parliamentary debates was “the first continuous record of debates to be published.” See The Oxford Companion to Law (1980), supra, p. 540.
Page [59]
1. A cross-citation to the Section “Of Statutes or Acts,” Quincy’s Law Commonplace, p. 89 [77]. Also a citation to Quincy’s volume 4 of his notebooks, wherein page 101 begins an 8-page copy of the introduction to The Ecclesiastical Law, by Richard Burn (1709–1785).
2. Citation to the English translation of Charles-Louis de Secondat, Baron de la Brede et de Montesquieu (1689–1755), De l’esprit des lois (1st edition, 1748), book 27, chapter 1. The book “analyzes a variety of political constitutions, and advocates a liberal constitutional monarchy or the true English model.” Drabble, The Oxford Companion to English Literature, supra, p. 663. “It may be regarded as the first work on Comparative or sociological jurisprudence. It is also noteworthy as having enunciated, on the basis of his observations of English government, the doctrine of separation of powers …” Walker, The Oxford Companion to Law, supra, p. 854. The first English translation, The Spirit of Laws, was published in Edinburgh in 1750, to be followed by Dublin editions in 1751, 1752, 1756, 1758, and 1766, and another Edinburgh edition in 1768. See Sweet & Maxwell, supra, vol. 1, p. 104. Quincy also included Montesquieu in his Political Commonplace Book. See Quincy Papers, vol. 1, pp. 56, 210–11. Book 27, ch. 1, addresses the ancient Roman law of Successions, and Quincy closely quoted this text.
3. The “yt” marks in the manuscript mean “that.”
4. Montesquieu, Spirit of the Laws, supra, at book 26, chapter 1. See note 2, supra. This long excerpt forms the whole of chapter 1, a summary of book 26, “Of Laws in Relation to the Order of Things Which They Determine.”
Page [60]
1. On this page, and on the next (Quincy 65 [61]), Quincy sets out the Roman classifications in the margin, i.e., Laws of Nature (ius naturale); Law of Nations (ius gentium); Civil Law or “Politic” Law (ius civile). See Justinian’s Institutes, Lib.1, Tit. 11, pr-4; Digest, Lib.1, tit. 1, 1; Lib. 1, tit, 4, 5. See Illustration 3.
2. A reference to Montesquieu’s The Spirit of the Laws (1750 translation), book 1, chapter 1. See page [59], note 2. These are the first words of book 1.
3. Ibid., chapter 2.
illustration 3. Page 65 [61] of the Law Commonplace. Image courtesy of the Massachusetts Historical Society. My thanks again to Kevin Cox.
Page [61]
1. A reference to Montesquieu’s The Spirit of the Laws (1750 translation), book 1, ch. 3, p. 7. See page [59], note 2.
2. A reference to the Swiss jurist, Jean Jacques Burlamaqui’s (1694–1748) Principes du droit naturel (1st ed. 1747). Burlamaqui, along with the German Samuel von Pufendorf (1632–1694) and his fellow Swiss, Emmerich de Vattel (1714–1767), was the leading authority on public international law in his time. Principes was translated by Nugent as Burlamaqui on Natural Law and first published in London in 1748. There were many subsequent eighteenth-century editions. See Sweet & Maxwell, supra, vol. 1, p. 592.
3. Ibid., at p. 195.
4. A citation to Thomas Hobbes’s (1588–1679) De Civi, chapter 14, p. 4, first published in 1642 while Hobbes was in exile (1640–1660). Hobbes’s jurisprudence and political theory was highly controversial, then and now, and was essentially authoritarian. He was cordially hated by Whigs and Tories alike, and anticipated modern legal positivism. Hobbes himself was strongly influenced by Francis Bacon, whom Hobbes served as a private secretary. See Coquillette, Francis Bacon, pp. 237–43, 295.
5. A citation to Emmerich de Vattel’s (1714–1767) Le Droit des Gens ou Principes de la Loi Naturelle (1758), translated into English from the French in 1760 as Law of Nations. See Sweet & Maxwell, supra, vol. 1, p. 598.
Page [62]
1. “pro re nata,” i.e., “to meet the emergency, as the occasion arises.” Jowitt, supra, p. 1414.
2. This is a citation to [John Almon], Letters concerning Libels, Warrants, the Seizure of Papers, and Sureties for the Peace or Behaviour, with a view to some late proceedings and the defence of them by the majority (2d ed., 1764), first published as Enquiry into the Doctrine concerning Libels, Warrants, and the Seizure of Papers … in a letter to Mr. Almon from the Father of Candor (London, 1764). See Sweet & Maxwell, supra, vol. 1, p. 245. John Almon (1737–1805) was a friend of John Wilkes and a distinguished contemporary historian and political writer. He compiled the Parliamentary Register from 1774 to 1781, and summarized debates in Parliament from 1742 to 1774. See David M. Walker, The Oxford Companion to Law, supra, p. 50. Quincy’s references to Almon show that this part of the Law Commonplace must date after 1764.
Page [63]
1. A citation to [John Almon] Letter Concerning Libels, Warrants etc. (2nd ed., 1764), p. 92. See discussion at page [62], note 2, supra.
2. A citation to Francis Bacon (1561–1626), The Advancement of Learning (London, 1674), pp. 293–94 (book 8), a later publication of the original The Twoo Bookes of Francis Bacon Of the proficience and Advancement of Learning, divine and humane first published in London in 1605. See R. W. Gibson, Francis Bacon: A Bibliography of his Works and of Baconiana to the Year 1750 (Oxford, 1950), p. 124, which gives this edition Gibson No. 142. Quincy also referred frequently to Bacon in his Political Commonplace Book. See Quincy Papers, vol. 1, pp. 100, 103–04, 148, 187–93. See also Neil L. York’s “Ideas, Ideals, and Interpretations,” Id., p. 86. For a full discussion of Bacon’s jurisprudence, which tends to favor prospective legislation to retroactive judicial lawmaking, see Coquillette, Francis Bacon, with a specific discussion of the Advancement of Learning at pp. 77–90.
3. A citation to Cesare Bonesana, Marchese de Beccaria (1738–1794), Dei Delitti e delle Pene (1764, 1st ed.), which was translated by J. A. Farrer into English from the French as Essay on Crimes and Punishments (London, 1767). This book was highly popular in America, and was republished in Philadelphia by R. Bell in 1778. Again, Quincy seems to be reading the latest in English and Continental sources, and this part of the Law Commonplace cannot predate 1767. Beccaria’s book “represented a great advance in criminological thought; it advocated prevention of crime rather than punishment and condemned capital punishment and torture.” See David M. Walker, The Oxford Companion to Law, supra, p. 121.
4. A further citation to Bacon’s Advancement of Learning (1674 ed.), p. 307. See note 2, supra.
Page [64]
1. Again, Quincy refers to his excellent index under “Bills of Exchange + Notes,” Quincy 177 [120].
2. A citation to Andrews v. Franklin (1717), Strange’s Reports, supra, vol. 1, p. 24. See page [21], note 12. The issue was whether the bill was void, because it was “a contingency which may never happen.” Id., p. 24. Held, the “paying off the ship is a thing of a publick nature, and this is negotiable as a promissory note.” Id., p. 24.
3. A citation to Beardesley v. Baldwin (1741), Strange’s Reports, supra, vol. 2, p. 1151. Presumably, the event was both contingent and “not of a publick nature.” Cf. Andrews v. Franklin, note 2, supra.
4. A citation to Cooke v. Colehan (1745), Strange’s Reports, supra, vol. 2, p. 1217. This involved a note payable six weeks after the death of the defendant’s father. Held to be negotiable “for there is no contingency, whereby it may never become payable, but it is only uncertain as to the time.” Id. This was not an easy case, however, as it “held three arguments” in the Common Pleas and then was upheld on writ of error to the King’s Bench.
5. A citation to Morris v. Lee (1725), Strange’s Reports, supra, vol. 1, p. 629. The defendant had argued that there was a distinction between the words “accountable to the plaintiff on order for 100£” and a promise to pay the money “absolutely,” which is needed to make a note negotiable under the statute 3 & 4 Ann. ch. 9 (1704). (That statute, adopted in 1704, made inland promissory notes negotiable as if they were international bills of exchange, long recognized as negotiable under the law merchant.) Held “[t]here is no precise words requisite to make a promissory note: it is enough if it may be brought within the intention of the act.” Id. Quincy marks this case “Qu” for “Query,” perhaps because of the argument that an “accountable” defendant “might discharge himself by payment of the plaintiff’s debts or otherwise.” Id., p. 629. This would have been different from “payment of money absolutely” and could cause negotiability problems. The King’s Bench heard this argument, and rejected it, but it is still a good point.
6. A citation to Martin v. Chauntry (1748), Strange’s Reports, supra, vol. 2, p. 1271. The note was to “deliver up horses and a wharf, and pay money at a particular day.” This was clearly not negotiable under the statute 3 & 4 Ann. ch. 9 (1704) as it was not just a promise to pay cash.
7. A citation to Poplewell v. Wilson (1720) Strange’s Reports, supra, vol. 1, p. 264. The argument was that this was not necessarily for “value received” as required by 3 & 4 Ann. ch. 9 (1704) to be negotiable. It was held that “it is to be within the statute, being an absolute promise, and every way as negotiable as if it had been generally for value received.” Id.
8. A citation to Jefferies v. Austin (1726), Strange’s Reports, supra, vol. 1, p. 674. This is a very interesting case, as it could defeat negotiability of a note good on its face. But here the action was not brought by a third-party holder without notice, but rather by the original payee. The defendant was allowed to show that the payee held the note “in the nature of an escrow, viz. as a remand, in case be procured the defendant to be restored to an office …” which the payee/plaintiff “did not effect.” Thus the defendant prevails.
9. A citation to Hoar v. Dacosta (1732), Strange’s Reports, supra, vol. 2, p. 910. Plaintiff took defendant’s note to a bank, which demanded payment on a goldsmith the next day with other notes, all refused. If plaintiff had demanded payment that day directly, the note would have been paid. The jury, quite reasonably, found that the plaintiff’s demand, through the bank, was timely, and found against the defendant for the value of the note. This is an interesting use of jury discretion within commercial law, which can prefer “bright line” legal rules.
10. “[I]ndeb. Assum.” for the cause of action “indebitatus assumpsit,” the general cause of action for contractual actions other than those that involve formal covenants under seal signed by the party to be charged. To distinguish it from the old cause of action for debt, a legal fiction was adopted that the defendant “being indebted did promise” (again) to pay, with the second promise being the source of the general action on the case, hence the “indebitatus assumpsit” language of the writ. If we believe Coke, in Slade’s Case (1602), Coke’s Reports, vol. 4, p. 92b, it was held that “every contract executory imparts in itself an Assumpsit,” and the fiction was fully adopted. See Coquillette, The Anglo-American Legal Heritage, pp. 250–52, 261–63. See the full discussion on Baker, An Introduction to English Legal History (4th ed., 2002), pp. 341–45.
11. A citation to the famous case of Story v. Atkins (1727), Strange’s Reports, vol. 2, p. 719 at 725. The issue was whether the statute 3 & 4 Ann. c.9 (1704) that made inland promissory notes negotiable removed the preexisting general common law cause of action for informal contracts, i.e., action on the case indebitatus assumpsit. See note 10, supra. Held by Lord Raymond, C.J. that “the statute 3 & 4 Ann. only gives an additional remedy upon promissory notes, but does not take away the old one.”
12. This is just a citation to the entire case of Story v. Atkins (1727), which began at Strange’s Reports, vol. 2, at p. 719.
Page [65]
1. A citation to Syderbottom v. Smith (1726), Strange’s Reports, supra, vol. 1, p. 649. See page 21, n. 12. Here the jury was directed by the Chief Justice, Common Pleas, to find for the defendant “because the plaintiff had not proved diligence to get the money for the drawer: being of the old opinion, that the indorsor only warrants upon the default of the drawer.” Id. Also cited is Collins v. Butler (1738), Strange’s Reports, supra, vol. 2, p. 1087, to the same effect, noting this rule was established in the Easter term of the Common Pleas in 1731 “on great debate.” Id.
2. “Sed vid” (“but see”). By a Gentleman of the Middle Temple [T. Cunningham], The Law of Bills of Exchange, Promissory Notes, etc. (London, 1760), pp. 62–74. (There were also editions in 1761, 1766 and 1778. See Sweet & Maxwell, supra, vol. 1, p. 521.) Cunningham summarized the cases set out in note 3, infra, observing that “Now to require a Demand upon the Drawer will be laying a clog upon these Bills, as will deter every Body from taking them.” Id., p. 63. While this related to a foreign bill of exchange, not an inland promissory note, the argument that such a requirement obstructs “the Convenience of Commerce, that they might pass from Hand to Hand in the way of Trade, in the same Manner as if they were Specie” seems the same. Id., p. 63.
3. A citation to Bromley v. Frazier (1721), Strange’s Reports, supra, vol. 1, p. 441, holding that “in the case of a foreign bill of exchange, a demand upon the drawer is not necessary to make a charge upon the indorsor, but the indorsee has his liberty to resat to either for the money.” Id., at 442. There is also a citation to Lawrence v. Jacob (1722), Strange’s Reports, supra, vol. 1, p. 515, for an identical holding for “a bill of exchange.”
4. A citation to Vaughan v. Fuller (1746), Strange’s Reports, supra, vol. 2, p. 1246, to that effect.
5. A citation to Robinson v. Stone (1747), Strange’s Reports, supra, vol. 2, p. 1260. The objection for the defendant was that “an administratix was not within the custom of merchants in the case of bills of exchange. And the statute 3 & 4 Ann. c.9 makes notes assignable only in the same manner as bills of exchange are.” Id., p. 1260. But the court held, per curiam, that “It should have been pleaded, or found, not to be within the custom: and it is every day’s practice, to have indorsements made by executors.” Id., p. 1260.
6. A citation to Bowyer v. Bampton (1741), Strange’s Reports, supra, vol. 2, p. 1155, which so held. The statute 9 Ann. c. 14 s.1 provided that notes where any part of the consideration is “money knowingly lent for gaming, shall be void to all intents and purposes whatsoever.” Id., p. 1155. This outcome is not as harsh as it might be, as the innocent indorsee can sue the indorser who lent the money for the gaming “on his indorsement.” Id., p. 1155.
7. A citation to Kellock v. Robinson (1727), Strange’s Reports, supra, vol. 2, p. 745, which held that, when “it appeared the plaintiff had after the indorsement received part of the drawer of the note … ,” the result was “a taking upon himself to give the whole credit to the drawer of the note, and absolutely discharged the indorsor.” Id., p. 745.
8. A citation to Comyn’s Reports (covering 1695–1741; London, 1744), p. 563. See p. 32, n. 1. The case is Skip v. Hook (1737), and it supports Quincy’s discussion.
Page [66]
1. Cross references to Quincy’s book-ending Index and to volume 2 of his legal notebooks, which is apparently lost. This note suggests something of the length and content of the lost book. See Introduction, supra, Sect. 1, “The Manuscript,” p. 17, n. 34. Page [36] of the Law Commonplace treats evidence.
2. The only defense to a Writ of Covenant, which requires a document under seal signed by the party to be charged, is “non est factum,” i.e., “it is not his [the defendant’s] deed.” In other words, the hand and seal on the deed is not the defendant’s.
3. The Writ of Mort D’ancestor, a “Possessory Assize,” is to remedy the relatively common situation in medieval England of land being disseized from a rightful heir after the “death of his ancestor” (hence, “mort d’ancestor”). The remedy was to restore “seisen” (i.e., “possession”). See Baker, An Introduction to English Legal History (4th ed., 2002), supra, p. 234. Mort d’ancestor was restricted to children, siblings, and nephews and nieces of the deceased, so it was early supplemented by writs available to grandsons (aiel) and great-grandsons (besaiel) and other blood relations (cosinage). Id., p. 268, n. 43. See Coke on Littleton, supra, p. 159a. Quincy uses “aile” and “besaile,” variant spellings derived from the law French “aieul” and “besaieul.” See Jowitt, supra, pp. 91, 231.
Page [67]
1. “Matters in pais” refer to “conveyance between two or more persons ‘in the country’ [Law French “pais”], i.e., upon the land to be transferred.” Jowitt, supra, p. 1287. This could be done by deeds in the form of indentures (made between two or more parties and cut in angles so that each party’s copy “fits” the other’s) or by deed poll, a single deed declaring “to all the world of the grantor’s act and intention.” The top edge of a deed poll was “polled” or shaved even, unlike the cut edge of an indenture. Id., p. 596.
2. “N.B.” for “nota bene” (i.e., “mark well”).
3. A citation to Sir Mathew Hale, Analysis of the Law by a Learned Hand (London, 1713), p. 49. Further editions in 1716 and 1779. See Sweet & Maxwell, supra, vol. 1, p. 239.
4. A citation to Coke on Littleton, supra, pp. 125a and b. See p. [2], n. 1, p. [7], n. 7. This includes Coke’s famous summary of the purpose of trial, i.e., “to finde out by due examination the truth of the point in issue or Question betweene the parties, whereupon judgement may be given.” Id., pp. 124b, 125a. See Illustration 4. Pleading is to determine the point in issue.
5. A citation to Hawkins’s Abridgment, pp. 188–89, which generally discusses this issue. See page [8], note 1 and page [68], note 6.
illustration 4. Sir Edward Coke (1552-1634). Coke, one of England’s greatest lawyers, was Chief Justice of the Common Pleas (1606-1613) and of the King’s Bench (1613-1616). Most significantly for Quincy, Coke’s writings formed an important basis for the study of the common law and left an unmistakable influence on lawyers of England and America for many generations. See Stephen D. White, Sir Edward Coke and “The Grievances of the Commonwealth 1621—1628” (Chapel Hill, N.C., 1979); Coquillette, The Anglo-American Legal Heritage. Coke’s Institutes (see page [2], note 1) and Reports (see page [1], note 2) are repeatedly cited throughout Quincy’s Law Commonplace. Image courtesy of Harvard Law School Library. My thanks to Kevin Cox and to David R. Warrington, the ever helpful Librarian for Special Collections, Harvard Law School.
Page [68]
1. A citation to Coke on Littleton (Coke’s First Institutes), p. 303b. See p. [2], n. 1 and page [7], n. 9, supra. Quincy’s note is almost a direct quote, except he substitutes “+” for “estates taile” in the original.
2. “T” is used as an abbreviation for “estates tail,” i.e., a “cut down” estate [L. tailliatum], which can only be inherited by an heir of the body, or a male heir of the body, i.e., “entail male.” See Coquillette, Anglo-American Legal Heritage, supra, pp. 101–02; J. H. Baker, An Introduction to English Legal History, supra, pp. 272–73. See also page [46], note 8, supra.
3. A citation to Wood, Institute, Book 2, chap. 1, p. 123. See page [7], note 3, supra. This section contains an extensive discussion of estates, including entailed estates.
4. A citation to Coke on Littleton, pp. 282b–283a. See page [2], note 1 and page [7], note 9. Thus “[I]f one doth waste, and before the action brought the Lessee repaireth it, and after the lessor bringeth an action of waste, and the Lessee plead Quod non fecit vastum, hee cannot give in evidence the special matter.” Id., at p. 283a. For example, you cannot deny you did something, and expect to give evidence that you did do it, but repaired the harm. There is also a citation to Whelpdale’s Case (1605), Coke’s Reports, supra, vol. 5, at p. 119a. In that case it was held that you could not plead that an obligation was “not [your] deed,” i.e., not your signature, and also prove a special matter, i.e., that the terms of the obligation were usury, prohibited by statute.
5. Quincy notes “+” in the text, which refers to the “two cautions” set out by Coke in Coke on Littleton, p. 283a, at the page given. Quincy notes that the “whole page” be “read carefully.” Coke’s “two cautions” are: “first that whensoever a man cannot have advantage of the speciall matter by way of pleading, there he shall take advantage of it in the evidence.” Id., p. 283a; and “[s]econdly, that in any action upon the case … against any Justice of reale [or other local government officers] … they may plead the general issue, and give the special matter for theire excuse or justications.” Id., p. 283a.
6. Here Quincy “cites over” to Hawkins, Abridgment, p. 379. See Sweet & Maxwell, vol. 1, p. 452:10. Hawkins’ Abridgment was a compact (12 mo) and handy summary of Coke’s long and complex commentary on Littleton. It was first published in 1711, with subsequent editions in 1714, 1718, 1718, 1719, 1725, 1736, 1742, and 1751. Quincy’s citations match the 1725 edition, among others. Hawkins observes, “In trespass if the Fact were not committed, the Defendant ought to plead not guilty, but if the Fact were committed, and he have Cause of Justification and Excuse, he must confess the Fact, and plead the special Matter.” Id., p. 379. The reason was sensible enough: “[T]he End of the Law in requiring such Exactness in Pleadings … is that the Matter which is truly in Question between the Parties, should only be put in Issue,” for fairness and to avoid “unnecessary Charge.” Id., p. 379.
7. A cross citation to Quincy’s Law Commonplace, page 158 [101], where Quincy observes in an action against a Justice of the Peace etc. “they may plead ye general Issue & give the special matter for their Excuse or Justification in Evidence.” Page 158 [101] cites back to this page.
8. A citation to Wood’s Institute, supra, book 4, chapter 4, pp. 610, 611 (page 581, 1772 edition). Almost a direct quotation.
9. Citations to Rolle’s Abridgment (1688), pp. 328–30. See page [9], note 1. There is also a citation to Coke on Littleton (1628), supra, p. 283a. Coke states that “whensoever a man cannot have advantage of the speciall matter by way of pleading, there he shall take advantage of it in the evidence.” Id., p. 283a.
Page [69]
1. A citation to a series of cases in Coke’s Reports (covering 1582–1641). The first is to the Lincoln College Case (1595), which appears at page 53a of the first edition, not page 57, as Quincy has it. The second is Wymark’s Case, Coke’s Reports, supra, vol. 5, p. 74a, and the third is Doctor Leyfield’s Case, Coke’s Reports, supra, vol. 10, p. 88a. That case concludes on page 95b, however, not 98, as Quincy indicates. These citations are exactly the same, however, as the marginal citation in Coke on Littleton, supra, p. 72a. In the latter case, Doctor Leyfield’s Case, the Exchequer Chamber overturned, on Writ of Error, a King’s Bench judgment that the defendant’s plea in bar was insufficient because he did not show to the Court certain letters patent. According to Coke’s Reports, the Exchequer Chamber observed that “the same is but matter of form, and not of substance …” Id., p. 88a.
2. A citation to Coke on Littleton, supra, p. 72a. See p. [2], n. 1, and p. [7], n. 9. The entire preceding passage, starting with “He that demurreth …” was copied verbatim from Coke on Littleton by Quincy, including the citations from the margin. The fact that two of them were inaccurate leads one to think Quincy did not actually look them up. The underscoring is Quincy’s, and he uses “plaint” instead of Coke’s “pleint.”
3. “Virtute cujus” is “a clause in a pleading justifying an entry upon land, by which the party alleged that it was in virtue of an order from one entitled that he entered.” Jowitt, supra, p. 1840. “Virtute cujus fuit inde seisitus” is pleaded when the defendant is entitled to “seisin,” i.e., legal possession of a fee. See Coquillette, Anglo-American Legal Heritage, supra, p. 102 on “seisin” and “fee.”
4. A lease of lands was not originally regarded as a legal “fee” in land, therefore it could not be “seised.” Thus the defendant would plead “virtute cujus,” that he was entitled to “enter and possess” the land, rather than have “seisen.” See note 3, supra.
5. A citation to Hawkins, Abridgment, p. 284. See page [68], note 6. Quincy closely copied this text from Hawkins.
Page [70]
1. A citation to Coke on Littleton, supra, p. 283[a]. See p. [2], n. 1; p. [7], n. 9. Coke precedes this statement by observing “Of this learning you shall reade plentifully in our bookes, and in my Reports.” Id.
2. A citation to Sir Robert (Lord) Raymond’s Entries (London, 1765), p. 18 (Transl. G. Wilson). This was vol. 3 of Raymond’s Reports, added in 1765 to the first two volumes of 1743. See Sweet & Maxwell, vol. 1, supra, pp. 277, 307–08. See p. [26], n. 2.
3. A citation to Modern Entries in English, etc., By a Gentleman of the Inner Temple [J. Mallory] (London, 1734–1735), 2 vols., 1741, vol. 2, p. 302. See Sweet & Maxwell, vol. 1, supra, p. 273.
4. Id., vol. 2, p. 327.
Page [71]
1. Cross-reference to Law Commonplace, page 181 [124] (an excellent index entry). The subsequent citations are to Quincy’s other volumes. Volume 4, page 5 [126] begins the Legis Miscellanea of Estates, reproduced in this volume as pages [126] to [131], and cross-references back to this page. Quincy’s vol. 2 is unidentified and presumably lost.
2. Quincy “note 1.” A citation to the legal dictionary, J. Rastell, Termes of the Lawes, word “Release,” (1st English ed., 1563), Sweet & Maxwell, vol. 1, supra, pp. 10‒11, and to Noy, Maximes, supra, p. 74. See p. [8], n. 4. The marginal note is hard to read.
3. Quincy “note 2.” A citation to Littleton’s Tenures (circa 1481), Chap. 445, “Of Releases,” annotated in Coke on Littleton, supra, pp. 264a–264b. Although Littleton and Coke support Quincy’s text, it is not a paraphrase.
4. A citation to Wood,Institute, supra, book 2, chapter 3, p. 289. See page [7], note 3. (In the 1772 ed., the “Release” section begins on p. 265.) Wood says that a release “is usually made by the words, Remire, release, and for ever quit claim, or by other words to the same purpose.” Id., p. 265. Quincy’s account adds “quiet” and is an intelligent, if not exact, paraphrase.
5. Quincy “note 3.” Another citation to Coke on Littleton, supra, p. 264a where Coke describes the law of releases. Quincy’s text, however, follows Wood, not Coke.
6. Quincy’s text is a close paraphrase of Wood’s Institute, supra, book 2, chapter 3, p. 289. “R” is just an abbreviation for “release.”
7. Quincy “note 4.” A citation to Littleton’s Tenures (c. 1481), supra, as annotated in Coke on Littleton, supra. Littleton chapter 305 on deeds of release, is annotated by Coke at Coke on Littleton, supra, at p. 193b; and Chapter 465, on use of releases to enlarge estates, is annotated by Coke at Coke on Littleton, pp. 273a–273b. Here Quincy identifies Coke on Littleton as “1 Inst 193.b,” i.e., Coke’s First Institutes (or Coke on Littleton), at p. 193b. See p. [2], n. 1, p. [7], n. 9. Quincy then cites to subsequent Coke annotations on releases at Coke on Littleton (1628), supra, pp. 275a, 279b, and 280b. Some of Quincy’s text is a paraphrase of Id., p. 275a, but this is not slavish copying, but an intelligent summary, including a structure not in Coke.
8. “Mitter le Estate” is law French for “to pass an estate.” See Jowitt, supra, p. 1182. In the context of a release, it means to pass “an estate to one or more already in possession,” thus expanding their estate. Id., p. 1509.
9. “Mitter le Droit” is law French for “to pass a right.” Jowitt, supra, p. 1182. In the context of a release, it means transferring right that extinguishes forever a right to a disseisor, heir or grantee. Id., p. 1509.
10. “Rsor” and “Rsee” for “Releasor” (the maker of a release) and “Releasee” (the person to whom a release is made).
11. “Dissor” for “disseisor” (a person “who unlawfully puts another out of his land” by wrong-full seising a fee). Such a person would require a release from the rightful owner to have full seisin. See Jowitt, supra, p. 643.
1. Quincy “note 1.” A citation to Coke on Littleton, supra, p. 298b. See page [2], note 1; page [7], note 9, supra. “R” is for “release.” The passage in Quincy does not follow Coke, however, past the first sentence.
2. A citation to Wood, Institutes, supra, book 2, chapter 3, p. 289. See page [7], note 3. This is the page “289” cited on Quincy’s preceding page, 81 [71], and corresponds to page 265 in the 1772 edition. It is an almost exact copy of Wood.
3. Quincy “note 2” a citation to Russel’s Case (1584), Coke’s Reports, supra, vol. 5, p. 27a. This case decided that the release of an underaged infant was void and indicated that the same would be true of a “feme covert Executrix” because “she can doe nothing to the prejudice of her husband. But without question in such Case the release of the Husband is good.” Id., p. 27b. The point, as Quincy indicated, is the full legal power of the husband over the wife, which extends to releases.
4. “Exittx” for “executrix.”
5. Quincy “note 3.” Another citation to Russel’s Case (1584), Coke’s Reports, supra, vol. 5, p. 27a. See note 3, supra. Quincy also cited to Hensloe’s Case (1600), Coke’s Reports, supra, vol. 9, 36b, at p. 39a. Both cases support Quincy’s observation that an executor (“excttor”) usually has the absolute interest of a debt owed to the estate in him, and thus can make a valid release. Quincy also cites to Coke on Littleton, supra, p. 292b, which supports Quincy’s statement that an executor cannot have an action before probate, but “an Executor before probate [may] release an Action.” Id., p. 292b.
6. Quincy “note 4.” Here Quincy cited to Rolle’s Abridgment, supra, pp. 404, 409, 444. See page [9], note 1. He also cited to Knight v. Cole (1691), Shower’s Reports (covering 1678–1694), London (pt. 1) 1708, (pt. 2) 1720, pp. 150 at 153, 155. See Sweet & Maxwell, supra, vol. 1, p. 309 (119). See also J. W. Wallace, The Reporter, supra, pp. 392–94. The opinion in Knight v. Cole, at page 152, refers to the case of Morris v. Wise in Rolle’s Abridgment, p. 409. On page 155 of Knight v. Cole is recorded Chief Justice Holt’s view that, “I think the case in Rolls no law.”
7. Quincy queries “Qu” the preceding statement, which as written makes no sense. At the bottom of the page he notes the reason for the queries after “+Qu,” “if this is not wrongly expressed. vid Showers [Shower’s Reports] as cited in the margin.” See n. 6, supra. The statement probably should read “if one releases an executor, this shall [also] release all actions which that person has against the executor personally, “in his own right,” as well as releasing the estate.” Even this statement really makes no policy sense. Quincy clearly did not just copy, but questioned statements that looked wrong to him, or were inconsistent with other cited authority.
8. Quincy “note 5” cites again to Coke on Littleton, supra, p. 200b. Coke states that “[O]ne Tenant in common may enfeoffe his companion, but release, because the freehold is reversed.” Id., p. 200b.
9. See discussion at n. 7, supra.
Page [73]
1. Quincy “note 1.” A citation to Littleton’s Tenures (c. 1481), supra, chapters 446, 447, 449 and 450, all concerning “releases.” See p. [2], n. 1; p. [7], n. 9. These chapters are annotated by Coke in Coke on Littleton, supra, at 265a + b (chapter 446), at 266a (chapter 447), and 267a (chapters 449 and 450). These citations illustrate by many examples Quincy’s basic statement “Right passeth by a R [Release], but the Right [only] which for the Resttor [Releasor] had at the time of the R [Release] made.”
2. Quincy “note x.” A citation to Littleton’s Tenures, supra, chap. 447. See note 1, supra. The chap. 447 illustrates Quincy’s statement.
3. Quincy “note 2.” Further citations to Littleton’s Tenures, supra, chapters 450 and 460 and to Coke on Littleton, supra, pp. 264a, b, 265a and 270a, b. Coke on Littleton at pp. 270a and b, annotates Littleton’s Tenures, chapter 460. Quincy here continues his use of “tt” to indicate abbreviation of words, such as “Lttor” for “lessor,” “Lttsee” for “lessee,” etc. Both Littleton’s chapters and the Coke annotations provide illustrations of Quincy’s summary of the law.
4. Quincy “note 3.” This note cites to a string of four cases in Coke’s Reports (covering 1572–1616; London, English trans., 1658). See page [11], note 2, supra. The first is Buckler’s Case (1597), Coke’s Reports, supra, vol. 1, p. 112. This decided that “an estate of freehold cannot begin in futuro,” among other points. Also cited was Sir Hugh Cholmley’s Case (1597), Coke’s Reports, supra, vol. 2, p. 49b, at p. 51b (release of a remainder in tail to tenant for life); Hoe’s Case (1592), Coke’s Reports, supra, vol. 5, p. 70b, at p. 71a (in a “release of all Actions” a “covenant before the breach of it [the Covenant] is not released,” because there was no cause of action or any “certain duty before the breach”); Lampet’s Case (1613), Coke’s Reports, vol. 10, p. 46a, at pp. 48b–49a (five methods set out to release “a right or title to a freehold or inheritance.” “[A]ll rights, titles and actions may by the wisdom and policy of the Law be released to the terre tenant [tenant seised of the land], for the same reason of his repose and quiet, and for the avoiding of contentions and suits, and that everyone may live in his vocation in peace and plenty.” Id., p. 48a).
Page [74]
1. “R” for “Release,” here and below. Thomas Wood, cited by Quincy below at note 2, defined a “Release” as “a Deed or Instrument, whereby a Man doth give or discharge the Right or Action, which he hath or claimeth against another out of or in his Land.” An Institute of the Laws of England (10th ed., London, 1772), p. 265.
2. Two citations to Wood, Ch. 3, p. 290. See page [7], note 3 [10th ed., 1772, p. 266]. “A Condition cannot be released upon Condition, but the Release will be good, and the Condition void.” Id., p. 266.
3. Quincy’s note “a” referred to “a” in the margin, a citation to Lampert’s Case (1613), Coke’s Reports, vol. 10, at p. 51a. But the cited case does not appear to be directly on point, being a catalogue of circumstances in which releases are not valid. Id., pp. 51a–51b.
4. Citations to Rolle’s Abridgment, vol. 1, pp. 412, 439, 490. See page [9], note 1, supra. Quincy marked the relevant spot in his text with a “b,” and then gave the citation at “b” in the margin.
5. “Sed vid.,” or “but see,” with a reference to Thomas Wood, An Institute of the Laws of England, supra note 2 at Ch. 3, p. 291. [10th ed., London, 1772 at pp. 266–67]. Under “of the Construction of Releases,” Wood contains an exhaustive catalogue of types of release, i.e., “More at large.”
6. A citation to Coke on Littleton, p. 285a. See page [2], note 1, and page [7], note 9, supra. This is Coke’s Chapter 8, “Of Releases,” beginning on page 264a. A direct quote follows Quincy’s “t” in the text, with the citation accompanying the “t” in the margin. According to Coke, “And by the release of all Actions, causes of action be released, but within a submission of all action to arbitrement, causes of action are not contained.” Id., p. 285a. Note Quincy abbreviates “arbitrement” as “Arbitram t.”
7. A citation to Hawkins, Abridgment, p. 381. See page [68], note 6, supra.
Page [75]
1. Quincy marked “a” in the text and in the margin. The marginal note contains citations to Littleton’s Tenures, sections 504 and 507. This is one of the oldest printed law books, first published c. 1481, and then republished with Coke’s annotations in Coke on Littleton (London). See page [2], note 1, and page [7], note 9. Section 504 stated that an execution, which follows judgment, is not discharged by an “all manner of Actions” release, “[f]or Execution upon such a Writ cannot bee said an Action.” Coke on Littleton, supra, p. 289a. Section 507 stated that for a release to cover executions, “it behoueth that the plaintiff make a release to him of all manner of executions.” Id., p. 291a. Coke added, “As if a man release all suites theExecution is gone…” Id., p. 291a. Quincy then added the citations to Coke on Littleton where Littleton’s Sections 504 and 507 are found, annotated by Coke, i.e., Coke on Littleton, supra, pp. 289a and 291a. He also added a citation to Edward Altham’s Case(1611), 8 Coke’s Reports p. 150b at p. 152a to p. 153a. That case supports Quincy’s notes that a “release of all actions” is not a release of executions, but only by “a release of all suits” are executions barred. Id., pp. 152a, 153b.
2. Quincy abbreviated “Execution” as “Excon.” The proposition noted is supported by Edward Altham’s Case, supra, note 1.
3. Quincy again made a note in the text, “b,” and added more citations, after another “b” in the margin, to Littleton’s Tenures, supra, note 1, sections 512 and 513, to the relevant page in Coke on Littleton, supra, note 1, p. 292b; and to Edward Altham’s Case, supra, note 1, p. 153. Littleton compared two situations. In the first, a man “bee bound to another in a certaine sumne of money, to pay at the Feast of Saint Michael next ensuing,” a release of “all actions” would bar “the duty forever and yet he could not have an Action at the time of the Release made.” Id., p. 292b. Coke explains that this is “because the right of the Action is in him” at the time of the release. Id., p. 292b. On the other hand, a lease “to another for a yeare, to yield to him at the Feast of St. Mich. Next insuing 40s” would not be barred by a release before that date. Id., p. 292b. Coke explained that the obligation to pay the lease was “neither debitum nor soluendum at the time of the release,” i.e., there was no specific debt or payment made at the time of the release that would vest the action “in” the obligee. See id., p. 292b.
4. “Michaelmas” here refers to the “Feast of Saint Michael next ensuing,” i.e., the next September 29. See Jowitt, supra, p. 1170. It is a customary quarter day. See id. Quincy is referring to the first example discussed by Littleton, as described in note 3, supra.
5. Coke added, “If a man hath an Annuity … and he before it be behind doth release all Actions, this shall not release the Annuity, for it is not meerely in Action, because it may be granted over.” Coke on Littleton, supra, note 1, p. 513b.
6. This entire section of Quincy’s notes closely followed Wood, Institute. See page [7], note 3 and page [74], note 2. This included Quincy copying Wood’s margin notes, with some discrepancies. Quincy again inserted a marker, “c,” in the text, and then a marginal citation was again to Coke on Littleton, supra, note 1, at p. 191a [almost certainly erroneous, correct citation would be page 291a], to Edward Altham’s Case, supra, note 1, page 153a, and to Rolle’s Abridgment (London, 1668), vol. 2, p. 484. See page [9], note 1, supra. Assuming Quincy meant page 291a in Coke on Littleton, the proposition in his notebook is supported by Coke. “If A be accountable to B, and B releaseth him all his duties, this is no barre in an Action of account, for Duties extend to things certaine, and what shall fall out upon the account is incertaine.” Id., p. 291a. An action of “account” lay against a receiver or bailiff, or a fellow merchant, in respect of financial dealings between them, as “for not rendering a proper account of profits.” Jowitt, supra, p. 27. The citation to Edward Altham’s Case, supra note 1, referred to Coke’s Reports, vol. 8, p. 153. On page 153a Coke stated that “a debt or duty shall be barred by a release of all actions.” Id., p. 153a. See also id., p. 152a, where Coke discussed the effect of the words “quod alicui debetur” in a release (i.e., “which is due to any”).
7. As the action of “account” was essentially to examine the financial dealings between the plaintiff and someone like a bailiff or a receiver or a business partner, it only arrived at sums certain after examination of balance sheets, etc. See note 6, supra. Quincy’s discussion here came almost verbatim from the section in Wood, Institute. See note 6, supra, and Wood, Institute (10th ed., 1772), p. 268. He also copied some, but not all, of Wood’s marginal notes.
8. A citation to Ventris’ Reports, “Part I. K.B.” (London, 1690) covering King’s Bench cases from 1668 to 1684. See page [89], note 7.
9. Again Quincy inserted a marker in his text, “e,” and added a marginal note, once again citing to Rolle’s Abridgment, vol. 1, p. 123, vol. 2, p. 404. See note 6, supra. He also cited again to Edward Altham’s Case, supra, note 1, at “pages 151–152.” The relevant discussions by Coke in that case is at pages 152a to 153a, and generally supports Quincy’s notes, subject to the discussions and limitations described in notes 3, 5 and 6, above.
Page [76]
1. Quincy inserted “a” into the text, and added a marginal note labeled “a.” These were citations to Littleton’s Tenures, section 508 (release bars title of entry to lands or tenements), see page [2], note 1 and page [75], note 1, and the corresponding sections of Coke on Littleton, which is at pages 291b and 292a. (Quincy’s manuscript does say “192a,” which is erroneous. See also page [75], note 6.) The case citation is, once again, to Edward Altham’s Case, Coke’s Reports, vol. 8, p. 150b at “153.154.” By this, Quincy must have been referring to the foliated pages 153a to 154a, where proper words for a release are discussed. (Does lack of foliated numbering indicate that Quincy was unfamiliar with the original, and/or just copying the citation?) Coke stated there that “And as a release of suits is larger and more beneficial than a release of quarrels, or of actions; so a release of demands is more large and beneficial than any of them, for thereby is released all that is by the others released, and more …” Id., p. 154a.
2. Quincy inserted “b” into the text, and added marginal notes labeled “b.” The citations were to Littleton’s Tenures, supra, note 1, section 508, in which Littleton stated that “[i]f a man release to another all manner of demands, this is the best release to him where the Release is made …” Coke on Littleton, supra, note 1, p. 291b. Quincy then added the relevant citation to Coke’s annotations of Littleton’s section 508 at id., p. 291b. In addition to another citation to Edward Altham’s Case, supra, note 1, he also referred to Hoe’s Case (1592) Coke’s Reports (London, 1605), vol. 5, p. 70b at p. 71a. “[B]y a release of all actions, suits, and quarrels a covenant before the breach of it is not released, because there is not any cause of action, nor any certain duty before the breach of it …” Id., at p. 71a. Also included are two citations to Sir Charles Levinz’s Reports (London, 1702), covering King’s Bench and Common Pleas cases from 1660–1696. The first citation is to the case of Henn v. Hanson (1663), which appears on page 99 of the first volume of Levinz’s Reports (first edition published in 1702). The second citation is to the case of Knight v. Cole (1690), which appears in the third volume of Levinz’s Reports, and begins on page 273. Although Sweet & Maxwell, supra, vol. 1, p. 303:81, indicates that the 1702 edition of Levinz Reports had only one volume and that a three-volume edition was not produced until 1790, a review of Levinz Reports themselves demonstrates that the 1702 edition was indeed in three volumes, as Quincy cited. Many thanks to my colleague David Warrington and research assistant Kevin Cox for helping solve this mystery.
3. Again Quincy returned to Wood, Institute, which he closely copied through at this discussion “Of Releases.” See page [7], note 3, page [74], note 2. The section in Wood, Institute reads “A Release of all Demands or Claims is the best Release of all, and the most effectual word to bar Actions, Appeals, Rights of Entry …” Id. (10th ed., 1772, p. 268). In such a confusing area, Quincy focused on “words of art,” as any law student would, looking for the magic term, “the most effectual Word.”
4. This was apparently a reference to this notebook, not Wood’s Institute. On Quincy page 26 [31], Quincy discussed the nature of a legal “interest” in all its different forms, and it would not be irrational to link the nature of a legal interest to the effectiveness of words to release such interests.
5. This is almost a direct quotation of Coke on Littleton, supra, note 1, at p. 267a. Quincy uses “F” as an abbreviation for “fee” and “T,” for “fee taile.”
6. This sentence was not derived directly from the cited page in Coke on Littleton, supra, note 1. Coke spoke of “an Advowson to two.” There “the one of them may before the Church become voide release to the other, for although the Grantor cannot release to them to encrease their estate, because their interest is future, and not in possession, yet one of them to extinguish his interest may release to the other in respect of the privity.” Id., p. 270b. On page 270a Coke further stated that “if before the lessee doth enter the lessor releaseth all the might that hee hath in land, albeit this release cannot in large his estate, yet it shall in respect of the privitie extinguish the rent.” Thus it is clear that Quincy’s statement is correct, but the principle was not quoted directly. An “advowson” was “the right of presentation [of a pastor] church or benefie.” This was “in the nature of a temporal property and a spirited trust.” Jowitt, supra, p. 74. Usually the bishop had to agree with the patron of the advowson as to the appointment, but it was regarded as a valuable property right, and a right to present in perpetuum was considered to be real property right than a lease, which was seen as a personal contract. Id., pp. 76–77.
7. An apparent citation to Coke on Littleton, supra, notes 1 and 6, Coke stated there that “if a man make a Lease for life, the Remainder for life, and the first Lease dieth, a Release to him in the remainder and to his heires in good before he doth enter to enlarge his estate, for that he hath an estate of a Freehold in Law in him, which may be enlarged by Release before entrie.” Coke on Littleton, p. 270b.
Page [77]
1. The “†” refers to the note at the bottom of the page which is an internal citation to Quincy’s Law Commonplace, supra, p. 3 [10]. The following list is derived from Blackstone’s Analysis, supra. See page [10], note 4.
2. See page [7], note 2, supra. Quincy makes a cross-citation to Law Commonplace, p. 63 [59] and to unnumbered pages in Quincy’s introduction, numbered [5] and [6] in this edition, which cross-reference forward to this page. The second citation is to Volume 4 of Quincy’s notebooks, where page 101 begins an 8-page copy of the introduction to Richard Burn’s (1709–1785) The Ecclesiastical Law. See also page [59], note 1.
3. A citation to Bacon’s Abridgment, vol. 4, pp. 644–45, “Rules to be Observed in the Construction of a Statute.” The text of Quincy’s notebook, however, comes from Heydon’s Case (1584), Coke’s Reports, vol. 3, p. 7a. See note 4, infra.
4. The four principles of statutory construction are taken directly from Heydon’s Case (1584), Coke’s Reports, (1572–1616), vol. 3, p. 7a, at p. 7b. See page [11], note 2. Coke continued “[T]he Office of all the Judges is always to make such constructions as shall repress the mischief, and advance the remedy, and to suppress subtil inventions and evasions for continuance of the mischief …” Id., p. 7b.
5. A citation to Blackstone’s Analysis, book 1, chapter 2, p. 3. See n.p. [6], note 13, supra. For an introduction to “equity” and “equity of the statute,” see Coquillette, The Anglo-American Legal Heritage, supra, pp. 183–204; Baker, An Introduction to English Legal History, supra, pp. 209–10.
Page [78]
1. The words repeat in the original.
2. January 8, 1742? A citation to Lord Justice Reeve’s “Directions for Beginning the Study of the Law to his nephew?” See page [7], note 1. That was in Quincy’s “Law A-file.” See page [7], note 2. Are the letters “L–M” another file reference? “Cn. Octavius” seems to reference Gnaeus (Latin abbreviated Cn.) Octavius, the most famous of that name being a Roman consul killed during Civil war in 87 b.c.e. See Oxford Classical Dictionary (1999), p. 1059. Was Cn. Octavius the pseudonym of someone who published in January 1742?
3. The Statute of Gloucester was 6 Edw. (1278) c1 ff. The section on waste was chapter 5. See Baker, An Introduction to English Legal History, supra, pp. 264–65.
Page [79]
1. A citation to Coke on Littleton, supra, p. 11b. See page [2], note 1; page [7], note 9, where Coke observed that one of the “severall fountaines or places” to derive legal arguments was “from the rehearsal or preamble of the statute.” Id., p. 11b.
2. A citation to Plowden’s Commentaries, supra, p. 465. See page [49], note 7. The citation matches the edition of London, 1761. (The editor’s copy was in Boston not long thereafter, in the library of Levi Lincoln, to become Governor of Massachusetts.) On that page, Plowden annotates the case of Eyston v. Studd (1574), Plowden 459, with an extensive discussion of statutory construction, observing “that it is not the Words of the Law but the internal Sense of it that makes the Law …” Id., p. 465. The Plowden citation is followed by one to William Nelson’s Abridgment of the Common Law, 3 vols. (London, 1725–1726), p. 265. See Sweet & Maxwell, supra, vol. 1, p. 19. See Cowley, pp. 110–11.
3. The “Intro. Know. Laws + Con. of Eng. p.117” (or perhaps “7”) may be a cross-reference to the unnumbered 7th page of the Law Commonplace, which contains a discussion of this subject. See Law Commonplace, p. [7]. The preceding two pages contain an extensive paraphrase of the section of Coke on Littleton cited by Quincy on this page as “a.” See note 1, supra. The other citation is to Bacon’s Abridgment, vol. 4, p. 649.
4. The “vid. 3 vol. 183” is to Viner’s Abridgment (1742–1753), vol. 3, p. 183. See page [16], note 2. The second citation to Sir Edward Coke, Second Part of the Institutes of the Lawes of England, containing the exposition of many ancient and other Statutes (London, 1642), p. 287. See Sweet & Maxwell, supra, vol. 1, p. 546:4. Coke here set out the maximes “nemo punitur sine injuria” (“no one is punished unless for some injury”) and “actus legis nemini est damnosur” (“an act in law shall prejudice no man”). See E. Hilton Jackson, Latin for Lawyers, pp. 118, 200. He was discussing the correct construction of the Statute of Gloucester, 6 Edward (1278) c.1 ff. See page [78], note 3.
5. Quincy’s “x” notes a citation to Coke on Littleton, supra, p. 360a. See page [2], note 1; page [7], note 9. It is a close paraphrase from “Acts” to “found tenant,” with the rest Quincy’s words.
6. Littleton was also discussing the Statute of Gloucester’s proper construction. Coke on Littleton, supra, Sect. 685, pp. 359b–360a. See 6 Edw. (1278) c.1 ff., and page [78], note 3.
7. Roughly “where there is no real harm, the law is not strictly enforced.”
8. A citation to Coke on Littleton, supra, pp. 381a and b. Coke here sets out both the “quod non praestat” and the “et qui haeret in litera, haeret in cortice” maxims. Id., p. 381b. The latter is usually translated as “He who sticks to the letter sticks to the bark” meaning “he who considers the letter merely, of an instrument [or statute], cannot comprehend its meaning,” i.e., “he does not get at the substance or meaning.” See Jackson, Latin for Lawyers, supra, p. 227; Osborn, A Concise Law Dictionary, supra, p. 263.
Page [80]
1. A citation to Littleton’s Tenures, section 108. See page [2], note 1; page [7], note 9. The quotation excerpts Littleton’s text with rough accuracy, but does not note a deleted passage.
2. This is an almost direct quote from Coke’s annotation to Littleton’s text in Coke on Littleton (1628), p. 81b. See page [2], note 1; page [7], note 9. Translation: “I consider dangerous that which is not confirmed by the example of good men.”
3. Id., p. 81b. Left out at the “etc.” is “might have been grounded upon such matter, it shall be intended that sometime it should have been put in use.”
4. Id. A citation to Coke on Littleton, supra, pp. 81a and b. The passage is a rough quotation of a passage at 81b. Quincy has corrected an error in Coke which gave “his” instead of “Hs” in reference to the statute. There is a “but see” [“sed vid”] citation to Sheppard v. Gosnold (1672), Vaughan’s Reports (covering 1685–1674), p. 159 at pp. 169–70. See page [50], note 2. The report here includes the statement that “if usage hath been against the obvious meaning of an Act of Parliament, by the vulgar and common acceptation of the words, then it is rather an oppression of those concerned, than an exposition of the Act, especially as the usage may be circumstanc’d.”
5. A citation to Edward Coke, The Second Part of the Institutes of the Lawes of England (London, 1642), p. 25. See Sweet & Maxwell, supra, vol. 1, p. 546:4. Coke stated, “Hereby it appeareth (that I may observe it once for all) that the best expositions of this and all other Statutes are our bookes and use or experience.” Id., p. 25.
6. Id., p. 84. Quincy changes Coke’s statement, substituting “have no effect” for “cannot be tried per primos Juratores,” a simplification of Coke’s point. Translation: “Words ought to be understood with effect.”
7. A citation to Lilly’s Reports, vol. 2, p. 527 (1719), covering 1688–1693 (see page 38, note 5), and to Partridge v. Strange & Croker (1571), Plowden’s Commentaries, vol. 1, p. 77b at p. 86b, holding that statutes should not be readily extended by “equity of the statute,” i.e., a common sense extention of the literal meaning of the words. See page [49], note 7. Quincy was probably using an English translation of Plowden, which originally appeared in 1571 in Law French. There was such a translation in 1761. See Sweet & Maxwell, supra, vol. 1, at pp. 306–307:97.
8. A citation to Coke’s Second Institutes, supra, p. 112, where the passage appears exactly as quoted.
9. A citation to Coke’s Second Institutes, supra, p. 148, where the passage appears exactly as quoted.
Page [81]
1. A citation to Butler and Baker’s Case (1591), Coke’s Reports, vol. 3, p. 25a. See page [1], note 2, supra. As Chief Justice Wray observed, “[F]or if any exposition shall be made against the direct letter of the exposition made by Parliament, there shall never be an end of expounding.” Id., at p. 31a.
2. A citation to the Third Part of the Reports of Sir George Croke, covering the reign of Charles I, hence “Cro. Car. [Latin Carolus] 23.” See page [21], note 6. Quincy mistakenly cites to page 23 when he is clearly copying from Case out of Court of Wards (1626), Croke Car. p. 33 at p. 34. Here one finds the text that Quincy accurately copied, including the citation to Butler and Baker’s Case, to form this entire notation.
3. A citation to William Hawkins, Pleas of the Crown (London, 1716–21), Book 2, chap. 23, sec. 42, with many subsequent editions. See Sweet & Maxwell, vol. 1, pp. 362–64:37. Hawkins was arguing that Magna Carta c.35 be strictly construed. “[A]ll statutes whatsoever which are made in abridgment of any rights of the subject, ought to be strictly construed.” Id.
4. A citation to Leonard’s Reports (London, 1658–1675), vol. 2, case number 114, which appears on pages 91–92. These reports covered 1540–1615. See page [39], note 7, page [53], note 4. The citation is to Foskew’s Case (1587), from which this excerpt is quoted nearly verbatim.
5. A citation to Vaughan’s Reports (London, 1677; covering 1665–1674), p. 179. See page 50, note 2, supra. The case is Bedell v. Constable (1664), which begins on Vaughan’s Reports, p. 177, and is almost exactly quoted by Quincy.
6. A citation to Vaughan’s Reports, p. 373. See page [50], note 2, supra. The case is Bole v. Horton (1673), which begins on page 360 and is almost exactly copied. Addition of the word “will” is Quincy’s only modification.
Page [82]
1. A citation to Sir Bartholomew Shower’s Reports (London, 1708) covering King’s Bench 1678–1694. See Sweet & Maxwell, supra, vol. 1, p. 309:119, Wallace, supra, pp. 392–94. The case is Rex v. Berchet (1690), which begins on page 106. Quincy copies this line from it nearly exactly.
2. A citation to Blackstone, Commentaries, vol. 1, sec. 2, p. 59. See Sweet & Maxwell, supra, vol. 1, p. 27:8. Volume 1 was first published in 1765. The second volume followed in 1766; the third in 1768; and the fourth, in 1769. This is an accurate, direct quote, except for Quincy’s abbreviation. The handwriting in the paragraph beginning with “the fairest” is different, but may be a later addition by Quincy. This is the only citation to Blackstone’s Commentaries in the Law Commonplace. See discussion in Introduction, Section II, “The Pedagogy,” pp. 19‒20, n. 37. This is a most significant citation, because Blackstone, Commentaries was the first treatise to cover the common law as an entity that was clear and easy to follow structurally. As such, it had a huge following in the American colonies. See Lawrence M. Friedman, A History of American Law, 2d ed., 1985, p. 112. It is important that it was available to Quincy, although apparently well after he began work on the Law Commonplace on Sept. 24, 1763. John Adams said that Blackstone “smoothed the path” of the American law student. See Coquillette, “Justinian in Brain-tree,” p. 373. The character of the handwriting here also suggests it was from a later period of Quincy’s writing, although it may be authentic. It is most significant that there was no other citation to Blackstone’s Commentaries in the Law Commonplace.
3. A citation to George Wilson’s Reports (London, 1770–1775) covering King’s Bench [1742–1753] and Common Pleas [1753–1774]. See Sweet & Maxwell, supra, vol. 1, p. 310:131. The case is Wolferstan v. Bishop of Lincoln (1763), which begins on page 174 of Wilson’s second volume. Quincy’s copy is exact. Like the reference to Blackstone, note 2 supra, this reflects Quincy’s use of a contemporary source that was published after he began his Law Commonplace in 1763. “Ex visceribus”: “from the depths,” “from the bowels.”
4. Wilson’s Reports, supra, vol. 2 at p. 193. Also an exact copy.
5. Wilson’s Reports, supra, vol. 2 at p. 193. Another exact copy. In the opinion, this line also immediately follows the preceding one copied by Quincy.
Page [83]
1. These first two statements are both directly quoted from the second volume of Wilson’s Reports, the case of Wolferstan v. Bishop of Lincoln (1763), which Quincy’s preceding page cited three times. See page [82], notes 3–5. The “Hobart” to which the opinion refers is Sir Henry Hobart’s Reports (London, 1641) covering 1603–1625. See Sweet & Maxwell, supra, vol. 1, p. 301:63, Wallace, supra, pp. 220–29. The case there cited is Colt and Glover v. Bishop of Coventry and Lichfield (1612), which begins on page 140. There is nothing to suggest that Quincy actually looked at this source rather than copying from Wilson’s Reports alone.
2. A citation to Beccaria’s Crimes and Punishments, pp. 15–16, and following. This influential book was first translated from the French in 1767. See Sweet & Maxwell, supra, vol. 1, p. 358:5. Beccaria (1738‒94) was an Austrian official, and this book was “the first systematic study of the principle of punishment, which had immediate success and enormous influence.” D. M. Walker, supra, at p. 121. There was an American edition published in Philadelphia in 1778. Beccaria observed, at the pages cited, that it was necessary to defend the long-term common good “from the usurpation of each individual, who will always endeavor to take away from the mass, not only his own portion, but to encroach on that of others.” Id., at p. 16. The passage copied by Quincy appears in the American edition at pages 24–25. It is an accurate, but rough, copy.
Page [84]
1. A citation to Beccaria’s Crimes and Punishments, pp. 16–17. See page [83], note 2. The passage is a rough, but accurate, copy of the translation appearing at pages 26–27 of the first American edition. Beccaria, of course, was a continental jurist in the Roman civilian tradition. His views of the judicial function would seem narrow to most common lawyers from the Anglo-American tradition.
2. A citation to Entick v. Carrington (1765), Wilson’s Reports, covering 1742–1774, vol. 2, p. 290. The case begins on page 275 of the second volume of Wilson’s Reports. See page [82], note 2. Quincy’s language is a direct quote from the report. The final words of Quincy’s script are difficult to construe, but likely relate to the case, one part of which focused on statutory interpretation to determine the legality of a Secretary of State’s, rather than a Constable’s, use of a warrant to search Entick’s property. The final notation, difficult to translate, might be a reference to a “general warrant.”
Page [85]
1. In the original, Quincy writes in huge letters, “what was ye Intention of the Parliament.” The citation is to Viner’s Abridgment, vol. 2, p. 476, paragraph 12. See page [16], note 2.
2. Citation to Horton v. Ruesby (1686), Comberbach’s Reports (1724), p. 33, covering 1685–1698. See page [37], note 2.
3. These Queries are remarkable, in that this is another place where Quincy was openly critical of the reasoning of the English authorities.
Page [86]
1. A citation to Underwood v. Hewson (1724), Strange’s Reports (1755), vol. 1, p. 596. The reports covered 1716–1749. See page [21], note 12. According to the report, “The defendant was uncocking a gun, and the plaintiff was standing to see it, it went off and wounded him: and at the trial it was held that the plaintiff might maintain trespass.” Id., p. 596.
2. A citation to Reynolds v. Clarke (1722), Strange’s Reports (1755), supra, vol. 1, p. 634. This involved repair of a drain spout so that “the water came into the yard and rotted the walk of the plaintiff’s house.” Id., p. 634. The act lacked the violence of the gun accident in Underwood v. Hewson. The requirements of an act “vi et armis” (“force of arms”) contra pacem nostram(“against our [the king’s] peace”) that characterized the old trespass writ thus lived on. See Baker, An Introduction to English Legal History, supra, pp. 61–64.
3. A citation to Slater v. Swann (1718), Strange’s Reports, supra, vol. 2, p. 872. According to this case, “assault on a horse” is unlike assault on a man, which would be “trespass vi et armis (i.e., “force of arms”).” The horse had been left in front of the defendant’s door, preventing a cart from picking up the defendant’s goods. It was left to the jury “whether defendant did any more than was necessary to remove the horse and cart from the door, or beat the horse immoderately.” Id., p. 872. The jury found for the defendant.
4. A citation to Sir John Lade v. Shepherd (1722), Strange’s Reports, supra, vol. 2, p. 1004. It was held that the placing of the bridge on the plaintiff’s soil was trespass, even if the plaintiff permitted right of passage over the land, as that “never was understood to be a transfer of absolute property in the soil.” Id., p. 1004.
5. A citation to Leglise v. Champante (1716), Strange’s Reports, supra, vol. 2, p. 820. In this case a custom officer seized wine with probable cause (that it was contraband). Held that “the officer seizes at his peril, and that probable cause is no defense.” Id., p. 820. Further, the fact that the joint owner of the wine was not a party to the case must be pleaded in abatement, and not “taken advantage of at the trial.” Id., p. 820. Otherwise [“aliter”] in contract [“assumpsit”]. Id., p. 820.
6. A citation to Bailee v. Vivash (1723), Strange’s Reports, supra, vol. 1, p. 549, which held that a defendant’s offer of amends only can be pleaded for “involuntary trespass with a disclaimer,” not “taking away goods.” Id., p. 549.
Page [87]
1. This page marks a new approach for Quincy. From pages 4 [11] to 98 [86], Quincy makes what he calls “A Little Abridgment for Private Use.” See page 4 [11], supra. It is structured alphabetically from “Arbitram: Arbitrors + award” to “Trespass.” As such, it is a typical “Commonplace Book” of a law student in the eighteenth century. Then he leaves four blank pages between 98 [86] and page 103 [87], and starts some very different approaches. This page contains “A copy of Mr. Prat’s Minutes” concerning the case of Bannister v. Cunningham. Mr. Prat is Benjamin Prat[t] (1711–1763) of Boston, who served as a law tutor to the likes of John Adams, Quincy’s brother, Samuel, and perhaps to Quincy himself, who primarily read law with Oxen-bridge Thacher. See Law in Colonial Massachusetts, supra, pp. 350–51, 377–78. In November 1761, Prat left Boston to become Chief Justice of New York. See Id., p. 377, and John Adams, Legal Papers (eds. L. K. Wroth, H. B. Zobel, 1965) vol. 1, p. cvi. “Vid. vol. 3, p. 12” is a citation to the third volume of Quincy’s notebooks, and leads the reader to Quincy’s report of Banister v. Henderson, a 1765 case involving a dispute over the same will involved in Banister v. Cunningham. See Quincy Reports, p. 119. In the 1865 publication of the reports, Quincy’s great-grandson Samuel M. Quincy includes a note to Banister v. Henderson on page 156 which cites the case of Banister v. Cunningham (1754). In the note, he excerpts a record from the law papers of John Adams, which he describes as a copy of John Read’s opinion. That record is substantially similar to “Prat’s minutes” in content, and Samuel M. Quincy notes a comment at the end of the record, “N.B. This last was, I think, in Mr. Pratt’s handwriting.” Pratt and Read argued for the partibility of entailed estates tail in the case. The absence of any reference in the Quincy’s Reports to Josiah Quincy’s own record of Banister v. Cunningham suggests that Samuel Quincy was unaware of its presence in the Law Commonplace.
Page [88]
1. Quincy numbered two consecutive pages “104,” [88] and [89]. This page is a continuation of Quincy’s notes on Bannister v. Cunningham. See the discussion of the case at Quincy’s Reports, pp. 156–57.
2. A citation to Kanchet’s Case (1698), Modern Reports (covers 1667–1732), vol. 3, p. 104, at p. 107 (“per curiam” or by the unanimous court without a particular judge indicated as delivering the opinion).
3. A citation to Hearn v. Allen (1627), Croke’s Reports (1657) (the three volumes cover 1582–1641), vol. 3, p. 57. See page [21], note 6. This case backs up the principle that land does not pass by the words “cum pertinentiis,” but “only such things which properly may be pertaining.” Id., 57. “Otherwise it is, if it had been ‘cum terris pertinentibus’, then that which was used to it (here two acres of meadow) would have passed; but by the bare words ‘cum pertinentiis’; without other circumstances to declare his [the testator’s] intent, they shall never pass …” Id., pp. 57–58.
4. A citation to Miller’s Case, Barnardiston’s Reports (London, 1742), 7, covering the Chancery Court, 1740–41. See Sweet & Maxwell, supra, vol. 1, p. 345:5. The case is Miller v. Moor (1740).
5. A citation to Vernon Reports (Cases argued and adjudged in the High Court of Chancery) (1726–1728; covering 1681–1720), vol. 2. See Sweet & Maxwell, vol. 1, p. 349:42, and p. 52, n. 5. Page 687 does not match Quincy’s point, and there is no case 687. The closest relevant case in Vernon Reports is Bampfield v. Popham (1703), which appears on page 449 of volume 2. It has some similar language to Quincy’s entry but is not the source of an exact quote.
6. “Rem.rs” for “Remainders.” When land is entailed, i.e., descends only to the lineal heirs of the blood (not ascendant or collateral heirs) or such male heirs (if an entail male), the donor’s heirs hold a “remainder,” i.e., if issue of the donee fails (“failure of issue”), the fee reverts to the heirs of the donor. That interest in land is called a “remainder” and those that hold it “remainder men.” See Baker, Introduction to English Legal History, supra, pp. 284–85.
7. A citation to Bacon’s Abridgment (1736), vol. 2, p. 72 “at top.” “An Executory Devise Is defined as a future Interest, which cannot vest at the Death of a Testator, but depends upon some Contingency which must happen before it can vest.” Id., p. 71. Thus, there cannot be an executory devise if the testator’s death cuts off the underlying estate before the contingency occurs.
Page [89]
1. “E converso,” from the Latin converto, to “turn around,” i.e., “on the other side.” See Cassell’s Latin Dictionary (1959), 151. The rest are mysterious citations. “Mo.” could be to Modern Reports (1667–1732), vol. 1, p. 864. See page [35], note 2. Or it could be to Modern Entries (1734–1735). See page [90], note 11. “Ergo,” i.e. “therefore,” may refer to the same volume, p. 1190, or could be an internal reference to Quincy’s law files or his lost second volume. See note 3 and 4, infra. Modern Entries was in Quincy’s library (Catalogue No. 29), but none of the suggested citations check out.
2. A citation to Gilbert v. Witty (1623), Croke’s Reports (1582–1641), vol. 2, pp. 655–56. See page [21], note 6, finding no cross remainder.
3. This appears to be a citation to Gridley’s own notes, but vol. 2, pp. 149–50 refers to the lost second volume of Quincy’s four notebook set.
4. A case contained in Quincy’s Law File “C.” It is not in Quincy’s Reports.
5. A citation to Arnoldus Vinnius (1588–1657), a major Dutch jurist, probably to an edition In IV libros Institutionum commentarius (1642), such as that loaned by Jeremiah Gridley to John Adams in 1758 and bought by Adams from Gridley’s estate in 1767. See Coquillette, “Justinian in Braintree,” supra, p. 365. “Take by Polls, not by Stocks” refers to the fact that nephews do not take per stirpes, i.e., “by stock or branches,” as do children, with any deceased child’s heirs taking equally that child’s share, i.e., take by “representation.” See page [91], note 5.
6. A citation to Lord Raymond’s Reports (1694–1734), vol. 1, p. 574. See page [26], note 2, supra. The citation is to Rex v. Raines (1700), which begins on page 571. Quincy’s synopsis does not borrow from the text, but loosely captures its holding.
7. A citation to Ventris’s Reports (1668–1684), editions appearing in 1696, 1701, 1716, and 1726. See Sweet & Maxwell, supra, vol. 1, p. 310:127; Wallace, supra, pp. 345–46 (1667–1684); Sweet & Maxwell, vol. 1, p. 301:66. Further citations to Modern Reports (covering 1667–1732), vol. 2, p. 205, also Smith v. Tracy, see page [35], note 2; Jone’s Reports (1620–1640), p. 93, see page [81], note 2; and Levinz’s Reports (covering 1660–1696), vol. 2, p. 173, first published in London in 1702 with 1 volume, with a 2nd edition of two volumes following in 1722. See page [76], note 2, supra.
Page [90]
1. Quincy numbered two consecutive pages, our [89] and [90], “105.”
2. Reference to Strange’s Reports (1716–1749). See page [21], note 12. It is unclear which trials Quincy refers to, although there are many appropriate “new trial” cases in Strange. See Id., pp. 101, 113, 584, 691, 692; vol. 2 at pp. 814, 899, 968, 995, 1051, 1105, 1142, 1238.
3. Citation to page 158 [101] of Quincy’s Law Commonplace, where the first entry refers to a prohibition against new trial and cites back to page 105 [90].
4. A citation to the “Red Reports,” 70 Angier v. Jackson, and Quincy’s “Law File A.” The “Red Reports” was Quincy’s term for his own first volume of law reports, because of their red cover. See Samuel Quincy’s description in the preface page iii of the 1865 edition of Quincy’s Reports. Angier v. Jackson was reported by Quincy in his Reports at p. 84, his page 70. It was a Superior Court of Judicature 3 Geo. 3 (1703) where a motion was made for a new trial after the jury “gave a Verdict in Damages in Favour of … [the Plaintiff] contrary to the Mind of the Court.” The court decided against a new trial. The Chief Justice (Thomas Hutchinson) observed “Are you not agreed, that, were it evidently against Law and Evidence, then the Court may grant a new Trial, but not where there is Evidence on both sides.” Id., at p. 85. Trowbridge dissented. See the discussion in the notes at Id., at pp. 84–85.
5. Another reference to Quincy’s “Law Files,” this time “A.” See page [91], notes 1, 2, 7; page [92], note 1.
6. A citation to Price v. Brown (12 Geo. 1 Hil., 1726) in Strange’s Reports (1716–1749), vol. 1, p. 691, supra, note 2, holding that there should be no new trial due to new evidence where a party might have had the evidence admitted at the first trial, because it would be “of dangerous consequence, to suffer people to be setting up new evidence, after they knew what was sworn before.” Id., p. 691.
7. See note 5, supra. The citation to page 692 is incorrect. It should be page 691.
8. A citation to Smith v. Parkhurst (1739), Strange’s Reports (1716–1749), vol. 2, p. 1105, supra, note 2. This case did not turn on excessive damages, but rather “the evidence was doubtful, and in such a case a verdict at bar ought to stand.” Id., at p. 1106.
9. A citation to Ashley v. Ashley (1741), Strange’s Reports (1716–1749), vol. 2, p. 1142, supra, note 2. The court did not grant a new trial, observing “As there was evidence on the part of the defendant, the jury are the proper judges which scale preponderates. It cannot be said to be a verdict against evidence …” Id., p. 1142.
10. Quincy must mean to cite to Strange’s Reports, vol. 2, p. 1142, cited in note 8, above, rather than Strange’s Reports, vol. 2, p. 1151, where there is nothing relevant.
11. A citation to the title “New Trial” in [J. Mallory] Modern Entries in English (1734–1735), vol. 2, p. 354b. See Sweet & Maxwell, supra, vol. 1, p. 273:100.
12. Another citation to Quincy’s “Law File C.” See note 5, supra; page [91], notes 1, 2, 7, and 8; page [92], n. 1.
13. Citations to H. Swinburne, Brief Treatise of Testaments and Lost Willes, pp. 68–69, 70, 74 (1590–1591), with many appropriate editions, including folios in 1728 and 1743. Quincy had a copy of “Swinburne of Wills” in his library. (Estate Catalogue, p. 30.)
14. A citation to Pawlet Marquis of Winchester’s Case (1599), Coke’s Reports (1572–1616), vol. 6, p. 23a. See page [1], note 2. In this case prohibition from the King’s Bench to the Ecclesiastical courts, on the grounds that the late Marquis’s sanity affected both the will of land and goods. “For if he were of sane memory at the time of the Testament of the Goods [ecclesiastical jurisdiction], he cannot be not of sane memory at the time of the making of the Will of the Land [common law jurisdiction], both being made at one instant; and the Common Law ought to determine whall be said perfect memory at the time …” Id., p. 23b. The case states, as well, that “it is not sufficient that the Testator be of memory, but he ought to have a disposing memory, so that he is able to make a disposition of his Lands with understanding and reason …” Id., p. 23a.
15. A citation to Salkeld’s Reports (1689–1712), vol. 2, p. 692. See page [32], note 7. The case is Rex v. Ford and begins on page 690. The quoted text appears on page 691, instead of page 692 as cited. Oddly, this is the second time on this single page that Quincy mistakenly recorded 692 for 691, citing to different reporters. See supra, note 7.
16. Another citation to Quincy’s “Law file C.” See page [91], notes 1, 2, 7, 8; and page [92], note 1.
Page [91]
1. Reference to Quincy’s “Law File C.”
2. Reference to Quincy’s “Law File C.” The case does not appear in Quincy’s Reports.
3. Reference to arguments of John Read (1680–1749) and Robert Auchmuty, Senior, in the Plymouth Superior Court in 1720, contained in Quincy’s “Law File C.” See Law in Colonial Massachusetts, supra, pp. 195–241, 339–40, 351.
4. The reference is to Baker v. Mattocks in the “Red Reports, p. 57.” The Red Reports are Quincy’s first collection of law reports. Baker v. Mattocks begins on page 57 of his original manuscript, and on page 69 of Quincy’s Reports (1865 edition).
5. Another citation to Quincy’s law file and presumably Jeremiah Gridley’s minutes. See page [89], note 3. See also discussion of a nephew’s inability to take “representation” at page [89], note 5. “Per capita” means “individually.” “Distribution of the property of an intestate is per capita if it is divided amongst all entitled to it in equal shares.” Osborn, A Concise Law Dictionary, p. 238. Children of an intestate, as opposed to nephews, take “per stirpes,” or “by stock or branches.” “Distribution of the property of an intestate is per stirpes if it is divided amongst those entitled to it according to the number of stocks of descent; that is, if it is divided equally amongst the surviving children of an intestate individually, and the descendants of deceased children collectively, so that the descendants of a deceased child take that child’s share between them.” Id., at p. 239. That such descendents stand in the child’s place, as if he or she had lived, is called “the rule of representation.” Id., at p. 277.
6. For a full discussion of this important note, see Introduction, supra, pp. 37‒38. “Just Pacis” for “Justice of the Peace.” “Prov. Law” could refer to the Acts against Fornication, Section 3 (1665). See Charters and General Laws of the Colony and Province of Massachusetts Bay (Boston, 1814), p. 116. That “colony law” read as follows:
Sect 3. Whereas there is a law provided by this court for punishing of fornicators, but nothing as yet for the easing of towns, where bastards are born, in regard of the poverty of the parent or parents of such children sometimes appearing, nor any rule held forth touching the reputed father of a bastard for legal conviction:
It is therefore ordered, and by this court declared, that where any man is legally convicted to be the father of a bastard child, he shall be at the care and charge to maintain and bring up the same, by such assistance of the mother as nature requireth, and as the court from time to time (according to circumstances) shall see meet to order: and in case the father of a bastard, by confession or other manifest proof, upon trial of the case, do [sic] not appear to the court’s satisfaction, then the man charged by the woman to be the father, she holding constant in it, (especially being put upon the real discovery of the truth of it in the time of her travail) shall be the reputed father, and accordingly be liable to the charge of maintenance as aforesaid (though not to other punishment) notwithstanding his denial, unless the circumstances of the case and pleas be such, on the behalf of the man charged, as that the court that hath the cognizance thereof shall see reason to acquit him, and otherwise dispose of the child and education thereof: Provided always, in case there be no person accused in the time of her travail, it shall not be available to abate the conviction of a reputed father; any law, custom or usage to the contrary notwithstanding.
7. Another citation to Quincy’s “Law File C.” “Negative” in the manuscript appears to be written over another word, suggesting he initially wrote “positive,” and it was revised.
8. “Kennebeck Lands” refers to the territory of Maine, then part of Massachusetts. Again, a citation to Quincy’s “Law File C.”
Page [92]
1. A citation to Quincy’s “Law File C.” The “Salt-case” appears to be seizure for “landing goods before entry,” i.e., goods “disappear” between point of arrival and inspection by royal officers. For a famous case of “landing goods before entry” involving Madeira and John Hancock’s “good sloop Liberty,” see Sewall v. Hancock (1768–1769), Case No. 46, Legal Papers of John Adams, L. K. Wroth, H. B. Zobel, eds., (Cambridge, Mass., 1965), II, pp. 173–210. See also Coquillette, “Justinian in Braintree,” supra, Law in Colonial Massachusetts, supra, pp. 386–90.
2. The case is not in Quincy’s Reports, which start in 1762.
3. A citation to Salkeld’s Reports (covering 1689–1712), vol. 3, p. 21. See page [32], note 7. The case is Earl of Banbury v. Wood, which begins on page 20 and holds the proposition cited.
4. A citation to Lord Raymond’s Reports (covering 1694–1734), vol. 1, p. 685. See page [26], note 2. The case is Blackborough v. Davies (1701), which begins on page 684 and supports the cited proposition.
5. A citation to Lilly’s Reports (covering 1688–1693), vol. 1, p. 38. This cites to a section entitled “the Assise for offices” and gives an example of a grant to an incapable grantee being properly revoked.
6. A citation to the same case as n. 4, supra.
7. “Against us.” Was Quincy’s assisting with this case? He would have been only 12 in 1756. “Us” must have referred to the Minutes of the Defendant’s counsel.
8. Quincy’s book resumes at his page 114, with six pages. But what is contained on Quincy’s page 114 to 143 is not his hand. On Quincy’s page 122 is a note that “From page 122 to page 143. The extracts were not made by J. Quincy Jr. but by his son, in an early period of his legal studies, Josiah Quincy.” But Quincy pages 114 to 121 are also not his hand. After Quincy’s page 143, pages 144 to 149 are blank. Quincy’s writing resumes on his page 150. See the Introduction, “The Legal Education of a Patriot: Josiah Quincy’s Law Commonplace (1763),” section 1, “The Manuscript,” pp. 11‒17.
1. “Miscellaneous Laws Cursorily Copied Out of Books.” The preceding pages, Quincy’s 144–149, were blank. See the full discussion in the “Introduction,” supra, pp. 11‒17.
2. A citation to Volume 4 of Quincy’s notebooks, reproduced as pages [126]–[131] in this volume. Page 5 [126] begins a six-page section entitled “Legis Miscellanea cursim, Libris exscprita [for exscripta] of Estates.”
3. A citation to Cromwell v. Grimsdale (1698), Comberbach’s Reports (covering 1685–1698), p. 477. See page [37], note 2.
4. “Nomine Poenae,” “under the description of a penalty,” a penalty due for nonperformance of an agreement. See Jowitt, supra, p. 1230. In other words, the £20 was not a usurous rate of interest, but a penalty for nonperformance, a dubious distinction retained in modern credit card “late fees.” See Daniel R. Coquillette, “The Mystery of the New Fashioned Goldsmiths: From Usury to the Bank of England (1622–1694),” The Growth of the Bank as Institution and the Development of Money Business Law (ed. V. Piergiovanni, 1993), pp. 91–118.
5. Another citation to Comberbach’s Reports (covering 1685–1698), p. 133. See page [37], note 2. Quincy exactly quotes text from Garret v. Foot (1689).
6. A citation to [Mallory (J.)] Modern Entries in English (covering 1734–1735), vol. 2, 320 pl. 8.9. See page [90], note 11.
7. A citation to Rolle’s Abridgment (1668), pp. 801, 802. See page [9], note 1.
8. A citation to [Sir C.] Levinz’s Reports (covering 1660–1696), vol. 2, p. 7. See page [76], note 2, supra. This is clearly a cite to the second edition. See Sweet & Maxwell, supra, vol. 1, p. 303:81; Wallace, supra, pp. 304–15. The case is Rex v. Drury (1671).
9. “Ibid.,” another citation to a Holt opinion in Comberbach’s Reports (covering 1685–1698), p. 142. See note 2, supra. The case is Rex v. Abraham (1689), beginning on page 141. Here the Attorney-General had brought information against several persons. The question is whether the informations must be answered, or if they are too inherently oppressive. Quincy indicated that Holt’s opinion was “obiter,” i.e., obiter dictum (“a saying by the way”), in other words, it was an aside remark, not part of the binding precedent of the decided case. See Osborn, A Concise Law Dictionary, p. 227.
10. A citation to Hawkins, Pleas of the Crown (covering 1716–1721), book 2, ch. 25, sec. 151. See page [81], note 2. This citation appears to correspond to book 2, ch. 25, sec. 149 of the 1795 7th edition, vol. 4, p. 84 (Thomas Leach), which states that “the Court never quasheth an information exhibited by a common person, but will quash an information exhibited by the attorney-general, or by the master of the crown office, upon motion, if there be cause: But this was denied in one Nixon’s Case [Rex v. Nixon, Trin. 3 Geo. 1 Strange’s Report 185 (1717)] wherein the Court seemed to be agreed, that they never have, or will Quash any information whatsoever.” Id., p. 84.
11. A citation to Short v. Maynard (1689), Comberbach’s Reports (covering 1685–1698), which appears on page 150. See note 2, supra. Quincy loosely copies this short opinion nearly in its entirety.
12. A citation to Hawkins v. Cordy (1698), Carthew’s Reports (covering 1687–1700), p. 466, first published in London, 1728, and republished in 1741 and 1743. See Sweet & Maxwell, supra, vol. 1, p. 294:22; Wallace, supra, pp. 397–98. Carthew was known by some as “bad authority,” and defended by others as a “very faithful reporter.” Id., at p. 398.
13. A citation to Salkeld’s Reports (1689–1712), vol. 1, p. 65, where Hawkins v. Cardy, referenced in the previous note, is also reported. See page [32], note 7. Quincy worked from Comberbach’s version. Next is a citation to Wegersloffe v. Keene, Strange’s Reports (1716–1749), vol. 1, pp. 214–25. See page [21], note 12. This was an action brought “upon the custom of merchants” by the payee of a foreign bill of exchange against the acceptor. The issue was whether “partial acceptance be good or not within the custom of merchants.” Id., p. 215. It was held “that the drawer is bound to pay all, the drawing being an actual promise, but the acceptor is bound to pay but one, and no action can be maintained but upon the very note which he accepts … In Molloy and the other books there is a whole paragraph about the partial acceptance of a bill of exchange, and they allow it to be good.” (Fontescue J.) Judgment was then given for the plaintiff. Quincy’s case is different because the defendant is the drawer (E.G. was the acceptor) and no “special custom” (i.e., of merchants) was found, perhaps because this was not a foreign bill of exchange. See generally James S. Rogers, The Early History of the Law of Bills and Notes (1995), pp. 194–222.
14. On goldsmiths as bankers, see Coquillette, “The Mystery of the New Fashioned Goldsmiths,” supra, pp. 91–118.
Page [94]
1. A citation to Carter v. Sheppard, Salkeld’s Reports (covering 1689–1712), vol. 2, p. 507. See page [32], note 1. Also to Modern Reports (covering 1669–1732), vol. 5, p. 398, where it appears as Carter v. Shephard (1698). See page [35], note 7.
2. “Quod nota” [“but note”] Savage v. Robury (1698), Modern Reports (covering 1669–1732), vol. 5, p. 398. See page [35], note 2. This concerned whether the words were slander or libel on their face. This case has nothing to do with the prior entry other than that it was reported on the same page of Modern Reports, and displays the freer commonplace structure that Quincy used here.
3. Citation to Lord Raymond’s Reports (covering 1694–1734), vol. 1, p. 28. See page [26], note 2. The case is Nurse v. Frampton (1694), which involved an interesting wager over whether a grey nag could run twenty-five miles in two hours.
4. Citation to Lord Raymond’s Reports (covering 1694–1732), vol. 1, p. 184. See page [26], note 2. The case is Errington v. Thompson (1697), and begins on page 183.
5. “Shff” for “sheriff.”
6. Citation to Volume 4 of Quincy’s notebooks, where page 161 begins a 24-page section of untitled and generally unstructured commonplace notes on a variety of legal topics, perhaps from a very early stage of Quincy’s study. An entry on 161 records “In taking bail, the sheriff acts at his own peril. Arguendo. 1 Burr: 29.” On the following page Quincy writes in a note “But no action lies vs. Shff for taking insuff:t bail … 2 L.d Raym:d 941. But 1 L.d Raym:d is contra.” The second citation is captured here, i.e., that the Sheriff is liable, and illustrates the critical approach with which Quincy studied and commonplaced his sources.
7. A citation to Lord Raymond’s Reports (covering 1694–1732), vol. 1, p. 425. See page [26], note 2. The case, whose opinion consists of this one-line holding, is Ethericke v. Cooper (1698).
8. “Excon” for “execution.” The prisoner was being held “in execution” of his debts to the plaintiff by the sheriff defendants. See note 9, below.
9. A citation to Westby’s Case (1598), Coke’s Reports (covering 1572–1616), vol. 3, p. 71b. See page [1], note 2. The prisoner was being held “in execution” of his debts to the plaintiff. He “broke prison” during the transition in sheriffs. No notice of the plaintiff’s execution on the prisoner had been given to the new sheriff. Held: “[N]o escape can be in prejudice of the plaintiff, but when some person may be charged for it; and the Law deceives no man.” Id., p. 72b.
Page [95]
1. “Assumpsit” was the general contract remedy for an agreement not under seal. See page [96], note 9, infra. A citation to Mustard v. Hoppey (1590), Croke’s Reports (1582–1641), vol. 1, p. 149. See page [21], note 6. The case is copied in full, almost exactly.
2. Citation to Coke on Littleton, p. 232a. See page [2], note 1; page [7], note 9. Coke, in his commentary, states “… [I]f he release to one of them, all are discharged, because his own Deed shall be taken most strongly against himself …” Id., p. 232a.
3. Identical citation. Deed must be shown. Id., p. 232a.
4. A citation to Hawkins, Abridgment, p. 343. See page [68], note 6, and also Coke on Littleton, p. 254. Coke states the rule slightly differently: “if a man be wounded or poysoned etc. and dieth thereof within the yeare and the day, it is felony.” Id., p. 422b. Quincy exactly copies Hawkins’s text, except for Quincy’s insertion of a comma.
5. “Baron and Feme”: i.e., husband and wife.
6. Writ of Error lay from the Exchequer Chamber to the King’s Bench for error on the face of the record. See Baker, An Introduction to English Legal History, pp. 157–58; Coquillette, The Anglo-American Legal Heritage, pp. 243–44.
7. The statutory Exchequer Chamber, consisting of all royal judges except King’s Bench judges, heard writs of error for the King’s Bench. It is not to be confused with the “nonstatutory” Exchequer Chamber, which consisted of every royal judge, or the Council Chamber, which heard writs of error from the Exchequer, or the later 1830 Court of Exchequer Chamber. See Baker, supra, note 6, p. 158; Coquillette, pp. 243–44.
8. A citation to Brashford v. Buckingham and his wife (1601), Croke’s Reports (covering 1582–1641), vol. 2, p. 77. See page [21], note 6. The case is accurately stated. It is an important precedent on the rights of women.
9. A citation to Barnardiston’s King’s Bench Reports (covering 1740–1741), p. 75. See page [88], note 4. The case is Homes v. Wood (1728), and reports with reference to Brashford v. Buckingham (see note 8, supra) that the court’s holding had since been overruled. These contrasting entries demonstrate Quincy’s critical reading of his sources.
10. A citation to Ventris Reports (1668–1684), vol. 2, p. 36. See page [89], note 7. The case is Page v. Kirke (1681). Cases marked with an “X” in the margin by Quincy were not included in his index. See discussion at page [125], note 15.
Page [96]
1. A citation to Ventris’ Reports (1668–1684), vol. 1, p. 256. See page [89], note 7. This is a nearly exact copy of an anonymous 1674 case on page 256.
2. “Nil debet (he owes nothing), the plea of general issue in actions of debt not founded on specialty [such as a deed under seal].” Jowitt, supra, p. 1227. A lessee expelled from the premises can give the expulsion in evidence that he does not owe the lessor.
3. A citation to Ventris’ Reports (1668–1684), vol. 1, p. 258. This text is closely copied from an anonymous 1674 case on page 258, and different than the one in note 1, supra.
4. A citation to Rex v. Thorogood (1723) in Modern Reports, vol. 8–9 (1712–1726), p. 179, sometimes referred to as “Modern Cases in Law and Equity.” The two parts were published together. See Sweet & Maxwell, supra, vol. 1, p. 305:88, and page [35], note 2. This case involved a defendant who confessed to making a false affidavit, for which perjury he was set to the pillory.
5. A citation to Anonymous (1724), Modern Reports, vol. 8–9 (1712–1726), p. 236. See note 4, supra. The text is loosely copied from one line of the case.
6. A citation to Cloud v. Nicholson (1724), Modern Reports, vol. 8–9 (covering 1712–1726), p. 242. See note 4, supra. Quincy nicely summarizes the case.
7. “Colloquium,” “a talking together,” is here used in the legal sense as “an old term in pleading applied to the statement in declarations of libel or slander that the libellous or slanderous imputation had reference to the plaintiff.” Jowitt, supra, p. 406.
8. A citation to Ashton v. Blagrove (1724), Modern Reports, vol. 8–9 (covering 1712–1726), p. 271. See note 4, supra. The case supports Quincy’s note.
9. “Indebitatus assumpsit” (being indebted he undertook). This was the standard contractual action, being originally based on a fiction of subsequent undertaking, or “assumpsit,” to escape the more narrow action of debt. See the full discussion at Baker, An Introduction to English Legal History, supra, pp. 347–48; Coquillette, The Anglo-American Legal Heritage, supra, p. 157.
10. “Demurrer,” “A pleading by which one of the parties alleged that the preceding pleading of the other party showed no good cause of action or defence.” Osborn, A Concise Law Dictionary, supra, p. 107.
11. String citations. The first two, before the cite to Springett v. Chadwick, appear to have been added later. The first is to Bearbrook v. Read (or Bead), in 1 (R.) Brownlow and (J.) Goldes-borough Reports (covering 1569–1624), which had two parts (pt. 1, 1651 and pt. 2, 1652) and was published again in 1654 and 1675. See Sweet & Maxwell, supra, vol. 1, p. 294:18 and Wallace, supra, p. 158. The second cite is to Cumber v. Wane (1721), Strange’s Reports (covering 1716–1749), vol. 1, p. 426, at pp. 426–27. In that case the court held that £5 could not be reasonable satisfaction of a £15 debt, despite the defendant’s alleged agreement. The cause of action “can only be extinguished by a satisfaction he [the defendant] agrees to accept; and it is not his agreement alone that is sufficient, but it must appear to the courts to be a reasonable satisfaction; or at least the contrary must not appear, as it does in this case.” Id., pp. 426–27. The next citation is to Springett v. Chadwick (1724), with an “Ibid 290” citation, which refers back to Modern Reports, vol. 8–9. See note 4, supra. Quincy clearly copied this entry from Springett v. Chadwick. The next citations are to Lovelace v. Cocket, Hobart’s Reports (1603–1625), p. 68, see page [83], note 1; Lobly v. Gildart (1682), Levinz’s Reports (1660–1696), vol. 3, p. 55, see page [76], note 2, supra; Salkeld’s Reports (1689–1712), p. 124 (Clark v. Mundal), p. 442 (Ward v. Evans, in vol. 2 of Salkeld’s Reports), see page [32], note 7; and Ventris’ Reports (1668–1684), vol. 2, p. 184. The next citation is to Lovelace v. Crockett, Croke’s Reports (1582–1641), vol. 3, pp. 85, 85–86, see page [21], note 6. In this case the defendant pleaded acceptance of one bond in discharge of another bond. Held, “no good plea.” Id., p. 86. The next citation is to two reported cases of Blythe v. Hill (1676), in volume 1 of Modern Reports, page 221, at page 225. See page [35], note 2. The final citation is to Noyes v. Hopgood (1622), Croke’s Reports (1582–1641), vol. 2, pp. 649–50, see page [21], note 6. This was an action in debt upon an obligation for £80, “conditioned for the performance of divers covenant.” Defendant pleaded that the bond was discharged in exchange for an annuity. Held: no good plea, for the agreement was “but a Concord and verbal agreement which can never be in discharge of a Specialty (i.e., a contract under seal).” Id., p. 650.
12. A citation to two cases of Warren v. Consett (1724), Modern Reports, vol. 8–9 (1712–1726), pp. 323, 382, sometimes referred to as “Modern Cases in Law and Equity.” See note 4, supra. Quincy loosely copies a line from the first case. The second case affirms the judgment of the first.
Page [97]
1. A citation to Staple v. Heydon (1703), Modern Reports (1669–1732), vol. 6, 3, see page [35], note 2. Curiously, Quincy mislabels the volume as 7, and continues to do so for the rest of this page. Staple v. Heydon is a case of trespass against Heydon, who damaged some obstructing rails to reach the adjoining property. The next citation is to Clark v. Cogge (1607), Croke’s Reports (1582–1641), vol. 2, p. 170, see page [21], note 6. There the purchaser of land had no way to his land except over the plaintiff’s land. Held: “it is a thing of necessity; for otherwise he could not have any profit of his land.” Id., p. 170.
2. Goldsmiths essentially acted as banks, issuing receipts or bills for bullion deposited in their strong rooms. These receipts often circulated as a safe alternative for cash. See Coquillette, “The Mystery of the New Fashioned Goldsmiths,” supra, pp. 101–13.
3. A citation to Ward v. Evans (1703), Modern Reports (1669–1732), vol. 6, which begins on p. 36. See page [35], note 2. Quincy nearly exactly copies this line from the holding.
4. A citation to Ford v. Lord Grey (1703), Modern Reports (1669–1732), vol. 6, which begins on p. 44. See note 3, supra. Quincy loosely copies this part of the holding from page 45.
5. A citation to Mills v. Wilkins (1703), Modern Reports (1669–1732), vol. 6, p. 62. See note 3, supra. It is unclear why Quincy cites to page 623, when the language that he loosely copies appears on page 62. Also a citation to Coke on Littleton, p. 98b. See page [2], note 1, and page [7], note 9. Coke makes a slightly different point. “[H]e that citeth a Statute is not bound to recite the very words thereof so long as he misseth not of the substance and necessary consequence thereupon, and yet the safer way is to vouch the words of a Law as they be.” Id., p. 98b.
6. A citation to Brough v. Perkins (1703), Modern Reports (1669–1732), vol. 6, which begins on p. 80, though Quincy quotes from 81. See note 3, supra.
7. A citation to Anonymous (1703), Modern Reports (1669–1732), vol. 6, p. 88. See note 3, supra. Quincy nearly exactly copies this line.
8. “Non est factum,” “it is not his deed,” is the only effective defense in an action in covenant on a specialty, i.e., the defendant’s deed with its required seal. The deed could never be challenged as a legal matter. The defense was that the deed was never executed by the defendant “in point of fact.” See Jowitt, supra, p. 1232.
9. A citation to Goddard’s Case (1584), Coke’s Reports (covering 1572–1616), vol. 2, p. 4b at p. 5a. Here the deed was dated after the death of the plaintiff, but the jury held that it was the defendant’s deed, and the date was an error. Coke observed, “And the date if the deed is not of the substance of the deed; for if it want date, or if it have a false or impossible date, as the thirtieth day of February, yet the deed is good; for there are but three things of the essence and substance of a deed, that is to say, writing … reading and delivery….” Id., p. 5a.
10. A citation to Pinnel’s Case (1602), Coke’s Reports (1572–1616), vol. 5, p. 117a. See note 9, supra. Quincy’s note is almost an exact quote.
11. A citation to Whelpdale’s Case (1604), Coke’s Reports (1572–1616), vol. 5, p. 119a. See note 9, supra. Coke states that “[I]f an Obligation be delivered to another, to the use of the obligee, and the same is tendered to him, and he refuseth it, then the delivery hath lost his force, and the obligee can never after agree to it, and therefore the obligee may say that it is not his deed …” Id., p. 119b.
12. A citation to Modern Reports (1669–1732), vol. 3, p. 298. The “3” is partially illegible, but the case appearing there, Thompson v. Leach (1690), beginning on page 296, discusses the circumstances under which agreement is necessary for devises and conveyances. The notation “pl. 9” is less clear. “Pl” often refers to pleadings, but it is uncertain to what Quincy was referring here.
1. “Condon’d” for “conditioned.” The citation is to Prescot’s Case (1623), Croke’s Reports (1582–1641), vol. 2 (Croke Jac), p. 646. See page [21], note 6. Quincy’s note is almost a direct quotation at page 647.
2. “Ibid 677” should be “678,” the case of Buckley v. Guildbank (1623), which presented another question of which month of May would be construed. See note 1, supra. The Sed vid. (“But see”) is to Lilly’s Abridgment, p. 392. See page [48], note 3.
3. A citation to Catesby’s Case, Coke’s Reports (1572–1616), vol. 3, p. 61b, at p. 62b. Quincy misspells the case name and omits the folio citation “b.” A quare impedit (“wherefore he hindered”) is a possessory action to recover the right to appoint clergy, i.e., a “presentation” or “advowsman,” which used to be a valuable right subject to private ownership, with the concurrence of the bishop. See Jowitt, supra, p. 1454. In Catesby’s Case the six-month period within which the power of appointment had to be exercised to avoid its loss was calculated “by the kalendar,” i.e., six full months, rather than at 28 days per month (4 weeks). Id., p. 63a. As Coke observed, “[T]here is a great difference in our ordinary speech, between the singular number, as a twelve month, doth include all the year, according to the kalendar, but twelve month shall be reckoned according to 28 days to the Month.” Id., p. 62a.
4. A citation to Coke on Littleton, p. 135b. See page [2], note 1, and page [7], note 9. Quincy’s note is a close paraphrase.
5. “Nelson’s Lutwyche.” A citation to Lutwyche’s Livre des Entries(1683–1704), p. 3. This was first published in French and Latin in 1704 in 2 volumes and then, in 1718, translated by W. Nelson, omitting the entries, but including the common pleas reports. See Sweet & Maxwell, supra, vol. 1, p. 304:85 and Wallace, pp. 395–96.
6. A citation to Lutwyche’s Livre des Entries (Nelson translation), p. 5. See note 5, supra. Cases marked with an “X” by Quincy were not included in his index. See discussion at page [125], note 1 5.
7. Quincy is questioning the above statement. He did not automatically accept what he read, but was a critical student. “Misnomer” was an effective defense plea in both civil and criminal cases, but today a mistake as to name can be easily corrected. See Jowitt, supra, p. 1180. “Attorney” for the purpose of this note is a “private attorney” acting on another’s behalf. The point, apparently, is that the power of attorney and the pleadings should be identical, so that a private attorney only has the power to plead misnomer at the cost of challenging his own power of appointment. This seems ridiculously technical. Quincy also seems to know of contrary “law.” An American case? See the discussion in the “Introduction,” supra. Coke believed that “a mistake in the name does not matter when there is no mistake in the body or person.” Id., p. 1180. See Dr. Ayray’s Case, Coke’s Reports, vol. 11, p. 18b, at p. 21a.
8. A citation to Mottram v. Jolly (1675), Levinz’s Reports (1660–1696), vol. 2, p. 142. See page [76], note 2, supra. Quincy nicely paraphrases the case.
9. A citation to Bland v. Inman (1633), Croke’s Reports (1582–1641), vol. 3, p. 290. See page [21], note 6. This case held that a particular “reservation shall continue only ‘during the life of the husband and wife,’ and not during ‘the term [of a lease];’ and if the wife has omitted to execute the deed, the reservation as to her is void, and will continue no longer than the life of the husband.” Divorced from its facts, the value of this note is hard to extract.
10. A citation to Crosse v. Bilson (1704), Modern Reports, vol. 6, p. 102. See page [35], note 2.
11. A citation to Harvey v. Broad (1704), Modern Reports, vol. 6, p. 148. Here, the writ was returnable on a day which happened to be a Sunday, and “though the return be kept on the next day, [the writ] cannot be executed on the next day.”
Page [99]
1. “Femme sole,” i.e., an unmarried woman, “whether a spinster, a widow, or a divorced woman.” Jowitt, supra, pp. 793–94.
2. A citation to Rock v. Leighton, Salkeld’s Reports (1689–1712), which begins on page 310. See page [32], note 7. The closely quoted text, which appears not on page 311 but on page 310, does not pertain directly to the facts, but is rather an illustration by analogy.
3. A citation to Hoe’s Case (1600), Coke’s Reports (1572–1616), vol. 5, p. 91a. See page [1], note 2. In the case Coke explains the consequences of having a power “jointly, or severally,” i.e., “each person is liable severally and all are liable jointly.” “Several liability” is for an ascertained part of the whole, while joint liability is for “an undivided share.” See Jowitt, supra, pp. 1014, 1627–28.
4. “Dissor” for “disseisor,” “a person who unlawfully puts another out of his land.” Jowitt, supra, p. 643. “Dissee” for “disseissee,” “a person turned out of possession.” Id., p. 643.
5. “Conusor,” “cognisor,” or “he who passed or acknowledged a fine of lands or tenements to another.” Jowitt, supra, p. 400. “Connusee” is for “cognisee,” “he to whom the fine was acknowledge.” Id., p. 400.
6. See note 5, supra.
7. A citation to Buckler’s Case (1598), Coke’s Reports (1572–1616), vol. 2, p. 55a at p. 56a. Quincy loosely, but accurately, paraphrases Coke.
8. “Femme covert,” i.e., a married woman. The initials “J.N.” were from the passage in Bacon’s Abridgment, see note 9, infra, and simply were the initials of a hypothetical arbitrator. See note 9, infra.
9. A citation to Bacon’s Abridgment (1736), vol. 1, at p. 291. See page [37], note 5. The Abridgment was more thorough than Quincy’s paraphrase. “If A on the one Part, and B and C (a Feme Sole) on the other Part, submit themselves to the Award of J.N. and after C takes J.S. to Husband, and after the Arbitrator, before any Notice of this Marriage makes an Award that B and C shall pay £30 to A, yet this shall not bind J.S. and C. his wife, nor B, for the submission of the Marriage of C is revoked as to B also …” Id., p. 291. Rolle’s Abridgment (1668), supra, p. 332 is cited by Bacon’s Abridgment, as Quincy notes. See page [9], note 1.
10. Quincy asks if a creditor can protect himself or herself against revocation by remarriage of a debt secured by a bond of making the bond conditional on submission to an award of an arbitrator like “J.N..” This would be important to a single woman seeking credit, as to a lender afraid the woman would evade the debt by marriage. It is a good question.
11. A citation to Bacon’s Abridgment (1736), vol. 1 at p. 302. “But if a Wife alone, or with her Husband, bargain and sell her Lands by Deed indented and inrolled, yet it shall not bind her; for a Wife cannot be examined by any Court without Writ, and there is no Writ allowed in this Case.” Id., at p. 302, citing Coke’s Second Institute (1642), p. 643, see page 80, note 5, and Hobart’s Reports (1603–1625), p. 225, see page 83, note 1, as Quincy indicates. The case in Hobart’s Reports is Needler v. Bishop of Winchester (1615), which begins on page 220.
12. “Trover” is a cause of action (“trover and conversion”) “maintained by any person who had a right to possession of goods, for recovering the value of such goods against another who … wrongfully converted them to his own use,” withholding them from the plaintiff. Jowitt, supra, p. 1785. It was originally based on the fiction that the goods were lost and then “found” (trover) by the defendant. It differed from detinue, which was for return of the goods themselves, not just the value. Id., p. 1785. The “p” mark by Quincy refers to a “detinue” citation in the margin, showing he made this connection. It is a citation to page 174 [117], later in the Law Commonplace, which discusses a situation in which detinue must be brought against husband and wife.
13. A citation to Bacon’s Abridgment, vol. 1, p. 307. See note 11, supra. “[F]or the Possession of the Wife is the Possession of her Husband, and so is the Property; so that the Conversion cannot be to the Damage of the Wife, but of the Husband only.” Id., p. 307.
Page [100]
1. A citation to Forse and Hembling’s Case (1588) Coke’s Reports (1572–1616), vol. 4, p. 60b. See page [1], note 2. “And in this Case it was agreed … The taking of husband, and coverture [marriage] at the time of her death, the Will was countermanded, and that for two causes … 1. [I]t shall be against the nature of a Will to be so absolute, that he Who maketh the same being of good and perfect memory cannot countermand it; and therefore this taking of husband being in the Case at Barre her proper act shall amount to a countermand in Law … 2. It shall be mischievous to women that after their intermarriage they could not for no cause countermand their wills.” Id., p. 61b. It is interesting that Quincy did not note the obvious policy reasons for the decision.
2. “Agree’t” for “agreement.”
3. “In pais” means “without legal proceedings” or, in reference to estoppel to enforce deeds, “without writing.” “‘[M]atters in pais’ are opposed not only to ‘matters of record’ but also to ‘matters in writing’ that is, deeds, as where estoppel by deed is distinguished from estoppel by matters in pais.” Jowitt, supra, p. 949.
4. A citation to Butler and Baker’s Case (1591) Coke’s Reports, vol. 1, supra, note 1, p. 25a. Quincy accurately paraphrases Coke’s statement at pages 26b, 27a, as indicated by Quincy.
5. “Obligon” for “obligation.”
6. “In pais.” See note 3, supra.
7. “Non est factum,” i.e., “it is not his deed.” See the discussion of this plea at page [9 7], note 8.
8. Another citation to Butler and Baker’s Case (1591), Coke’s Reports, vol. 3, p. 25a. See note 4, supra. As Coke stated, “[B]ut perhaps in such Case A. in an Action brought upon this obligation cannot plead that it was not his deed, because it was once his deed.” Id., p. 26b.
9. A citation to Wood, Institute, p. 346. See page [7], note 3. Wood in turn cites Ventris Reports (covering 1668–1684), p. 39. See page [89], note 7. The case in Ventris Reports is Wingate v. Stanton (1779), which begins on page 38.
10. A citation to Rex v. Barlow and Jeans (1693), Carthew’s Reports (covering 1686–1701), p. 293. It was published in London in 1728, 1741 and 1743. See Sweet & Maxwell, vol. 1, p. 294:22; Wallace, supra, pp. 377–98. The loosely quoted text appears on page 294.
11. Futher “vid.” (“see”) citations to Salkeld’s Reports (1689–1712), vol. 2, p. 609, see page [32], note 7; Vernon’s Reports (1681–1720), p. 154, see page [52], note 5. The Salkeld citation is to Rex v. Barlow, as in note 10, supra. It is unclear to what the Vernon citation is directed. The case on page 154 is not on point, though case number 154, Duke of Norfolk v. Howard (1683), which begins on page 163, includes the proposition that though it was a hard case, “the rule of law must be observed.”
12. A citation to Midgley and Gilbert v. Lovelace (1693), Carthew’s Reports (covering 1686–1701), p. 289. See note 10, supra.
13. A citation to Reev v. Long (1694), Carthew’s Reports (covering 1686–1701), p. 310. See note 10, supra.
1. A citation to Argent v. Darrel (1699), Carthew’s Reports (1686–1701), p. 507. See page [100], note 10. Quincy also cited to his page 105 [90] of the Law Commonplace, which discusses when a new trial should be granted, i.e., “No new Tryal where the Party might have had Evidence before … etc..” See supra, page [90].
2. A citation to Baynham v. Matthews, Fitz-Gibbons’ Reports (1727–1732), p. 131, published in London in 1732. See Sweet & Maxwell, vol. 1, p. 300:55; Wallace, supra, pp. 427–30.
3. A citation to Humfreys v. Vaughan (1689), Shower’s Reports (covering 1678–1694), vol. 1, p. 13. See page [82], note 1. “Baron” is for “husband,” “femme” is for “wife.” Quincy actually substitutes the terms “Baron” and “femme” for “husband” and “wife” as they appeared in the report.
4. A citation to Buck v. Barnard (1692), Shower’s Reports (covering 1678–1694), vol. 1, p. 348. See page [82], note 1.
5. A citation to Chief Justice Holt in Lord Raymond’s Reports (covering 1694–1732), vol. 1, p. 369. See page [26], note 2. The case is Cook v. Harris (1698), which begins on page 367.
6. A citation to Coke on Littleton, p. 283a. See page [2], note 1 and page [7], note 9. Quincy’s notations accurately summarized Coke, although Coke was more detailed in defining the offices in question. Id., p. 283a. Coke also cited the statute of 7 James I, 5 (1668). Quincy also cited to his own Law Commonplace, at page 77 [68], which lists authorities on special pleading. See page 77 [68], supra. This was an alert, intelligent cross-reference.
7. A citation to Rex v. Whiting, Salkeld’s Reports (1689–1712), vol. 1, p. 283. See page [32], note 1. Quincy closely paraphrased these facts and their legal result.
Page [102]
1. A tenant “in tail” holds a “cut down” fee (from the Law French “tailler,” to cut). See Jowitt, supra, p. 715. Unlike a fee simple, the fee is only inheritable by the heirs of the tenants blood, i.e., legitimate biological sons or daughters, or, as in the common “entail male,” legitimate biological sons only. In the event of failure of issue, the fee reverts to the heirs of the original grantor who established the entail, often the father of the bride who was happy to see his sonin-law control the land only as long as there were legitimate grandchildren. Such heirs of the tenant in tail were called “remainder men” and their interest in the entailed land was called a “remainder.” They had an interest in the entail as, in theory at least, the tenant “in tail” could never alienate more than a life estate. See Coquillette, The Anglo-American Legal Heritage, supra, pp. 110–51, Baker, An Introduction to English Legal History, supra, pp. 271–76.
2. A citation to Smith v. Blackham, Salkeld’s Reports (1689–1712), p. 283. See page [32], note 7. Quincy often refers to these reports, erroneously, as Salkeid’s Reports. This case immediately follows Rex v. Whiting, cited on the prior page in Salkeld’s Reports. See page [101], note 7.
3. A citation to Shelly’s Case, Salkeld’s Reports (covering 1689–1712), p. 296. See note 2, supra. “Vid” (see) citations to East India Company v. Skinner (1695), Comberbach’s Reports (1685–1698), p. 342. See page [37], note 2, supra. A further citation to Burrow’s Reports (1756–1772), vol. 4, p. 252 makes no sense, as volume 4 starts with page 1925. Burrow’s Reports, famous for containing the decisions of Lord Mansfield, was first published in vols. 1 and 2 in 1766, with vol. 3 in 1771, vol. 4 in 1776, and vol. 5 in 1780, with all but the first three volumes too late for Quincy. See Sweet & Maxwell, supra, vol. 1, p. 294:20.
4. A citation to Archbishop of Canterbury v. Wills, Salkeld’s Reports (1689–1712), p. 315. See page [32], note 7.
5. To sue “accompt” refers to an action of “account,” the proper action to bring against a fiduciary. See Jowitt, supra, p. 27.
6. A citation to Anonymous (1609), Croke’s Reports (1582–1641), vol. 2, p. 219. See page [21], note 6. Accurate, except Quincy omits “against” before “his Bailiff.” Under age heirs were watched over by their feudal lords as “guardians,” but the guardian’s powers were limited by the doctrine of “waste” and other fiduciary duties. See Baker, An Introduction to English Legal History, supra, note 1, at pp. 240–41 (“wardship”).
7. “Hypothecation,” also known as “bottomry,” was the power of a ship’s master to bind the ship as security for needed repairs, etc., even without the master’s knowledge. This doctrine was obviously essential if the ship needed urgent repairs in foreign ports, and was traditionally enforced by the Admiralty Courts against the master, despite lack of privity. See Jowitt, supra, p. 932.
8. A citation to Bridgeman’s Case, Hobart’s Reports (covering 1603–1625), p. 11. See page [83], note 1.
9. A citation to Rigeway’s Case (1594), Coke’s Reports (covering 1572–1616), vol. 3, p. 52a. Coke observed “That after demurrer there shall be no repleader, for the parties have by their mutual assent put themselves upon the Judgement of the Court …” Id., p. 58[a]. There is also a “Qu. vid.” [but see] citation to Stephens v. Cooper (1696), Levinz’s Reports (covering 1660–1696), vol. 3, p. 440. See page [76], note 2, supra. This case also discusses the permissibility of repleader after demurrer.
10. A citation to the Lincoln College Case (1596) Coke’s Reports (covering 1572–1616), vol. 3, p. 58b at p. 61b. Quincy accurately paraphrases the holding.
11. “Excon” for “execution” (“to carry into effect”). See Jowitt, supra, pp. 755–56.
Page [103]
1. A citation to Parker v. Webb, Salkeld’s Reports (1689–1712), vol. 3, p. 6. See page [32], note 7. This in turn is said to cite to Croke’s Reports (1582–1641), vol. 1, p. 75. See page [21], note 6. This citation, however, appears to be wrong. Salkeld’s report of Parker v. Webb does not offer these specific cites. This citation could be to Brown v. Wootton (1605), Croke’s Reports, vol. 1 (Croke Jac), p. 73, which is also reported (as Broome v. Wooten) in the adjoining citation to Yelverton’s Reports 67. Finally there is a citation to Yelverton’s Reports (covering 1602–1613) 67, where the case Broome v. Wooten (1605) is somewhat on point. These reports were first published, translated from law French into English, in 1735, and republished in 1742. See Sweet & Maxwell, supra, vol. 1, p. 311:134 and Wallace, supra, pp. 211–20.
2. A citation to Pinnel’s Case (1602), Coke’s Reports (1572–1616), vol. 5, p. 117a. See page [4], note 1. See also page [97], note 10 for another citation to this case.
3. A citation to St. John v. Diggs (1613), Hobart’s Reports (1603–1625), p. 130. See page [83], note 1. Quincy is using his usual abbreviations here, i.e., “oligon” for “obligation,” “condon” for “condition,” “dft” for “defendant,” “plt” for “plaintiff,” etc. Cases marked with an “X” by Quincy were not included in his index. See discussion at page [125], note 15.
4. A citation to Coke on Littleton, p. 235a. See page [2], note 1; page [7], note 9. Quincy paraphrases Coke accurately and adds the citation to Levinz’s Reports (1660–1696), p. 364. See page [76], note 2, supra. The “Levitical Degrees” are the degrees of affinity set forth in the Bible at Leviticus, c.18, and incorporated in 1540 in the Statute 32 Hen. 8, c.38, s.2. See Jowitt, supra, p. 1081.
5. Another citation to Coke on Littleton (1628), supra, note 4, at p. 239b. Quincy paraphrases Coke accurately. For the concepts of “seisin,” “demesne” and “fee,” the essence of legal possession of land in English common law, see Baker, An Introduction to Common Law, supra, pp. 226, 232–34, 262–63.
6. A citation to Swallow v. Emberson (1665), Levinz’s Reports (covering 1660–1690), vol. 1, p. 161. See page [76], note 2, supra. “Excor” for “executor,” “agt” for “against” etc. This is a standard pleading issue. Simply saying “J.S.” is an executor not named in the writ is not a good pleading defense (“demurrer”) unless you add that “J.S.” has administered the estate.
7. A citation to D’Anvers (Knightley), General Abridgment of the Common Law, p. 200.18. This work was first published in 3 vols., with vol. 1 in 1705, vols. 1 and 2 in 2d ed. in 1722–1725, and vol. 3 in 1737. See Sweet & Maxwell, supra, vol. 1, p. 17.7. This page citation matches the 2nd edition of 1722–1725. (Special thanks to Mark Sullivan, reference librarian extradordinaire!) Cases marked with an “X” by Quincy were not included in his index. See note 3, supra, and discussion at page [125], note 15, infra.
1. “Plene administravit” (“he has fully administered”) is a “defense by an executor or administrator that he has fully administered all the assets which have come to his hands.” Jowitt, supra, p. 1354.
2. A citation to Office of an Executor, p. 327. This is Henry Curson’s 1728 A Supplement to the Office and Duty of Executors (supplementary Thomas Wentworth’s The Office and Duty of Executors), listed in Quincy’s Estate Catalogue as No. 102 “Cu[ ]on’s Office of an Executor.” See page [8], note 5. There is a derivative citation to Raymond’s Reports (1694–1732), pp. 470–71. See page [26], note 2.
3. “Habendum,” i.e., “to hold,” “sibi + haeredibus de corpore suo legitime procreandis,” i.e., “it must be possessed by him and by the heirs legitimately begotten from his own body.”
4. Citation to H. Swinburne, Briefe Treatise of Testaments and Last Willes, p. 136. This book was first published in 1590–1591 with many subsequent republications, including republication in 1677, 1728, and 1743. See Sweet & Maxwell, supra, vol. 1, p. 494:34. The book was in Quincy’s Estate Catalogue as “Swinburne of Wills,” Item 30. The 1728 edition was the source of an extract on the history of Roman and Civil law that Quincy copied into pages 108–11 of his volume 4 of legal notebooks. There is a further citation to Dyer’s Reports (1513–1582), sect. 18. These very old reports, originally published in Law French, were republished many times, with a new edition edited by Chief Justice Treby in 1688. It was translated into English in 1794. See Sweet & Maxwell, supra, vol. 1, p. 299:47; Wallace, supra, pp. 126–32.
5. Citation to Buckler’s Case (1597), Coke’s Reports (covering 1572–1616), vol. 2, p. 55a. See page [1], note 2. The point is accurately paraphrased from Coke at Id., p. 55b. There is also a citation to Hogg v. Cross, Hill (1592) Croke’s Reports (1582–1641), vol. 1, p. 254, to the same effect. See page [21], note 6.
6. See note 1, supra.
7. A citation to W. Nelson, Lex Testamentaria (1714), p. 835. There were subsequent editions in London in 1724 and 1733. See Sweet & Maxwell, supra, vol. 1, p. 493:26. This in turn cites Rolle’s Abridgment (1668), p. 929. See page [9], note 1. Neither volume of Rolle’s Abridgment has up to 929 pages, so Nelson’s citation is uncertain.
8. A citation to Feltham v. Executors Harlston (1667), Levinz’s Reports (1660–1696), vol. 1, p. 203. See page [76], note 2, supra. Quincy closely copied the line.
Page [105]
1. A citation to Hawkins, Abridgment, p. 297. See page [68], note 6. Also a citation to Coke on Littleton (1628), p. 210b. See page [2], note 1, page [7], note 9. Coke noted that if an obligee “be out of the Realme of England, hee [obligor] is not bound to seeke him or to goe out of the Realme unto him.” Id., p. 210b.
2. “Nil habuit in Tenementis,” i.e., (“he had no interest in the tenements”) “a plea to be pleaded only in an action of debt which was brought by a lessor against a lessee … it put the plaintiff to strict proof of his title.” Jowitt, supra, p. 1227. “Nil debet” (“he owes nothing”), the “plea of general issue in action of debt.” See Id., p. 1227. There is a citation to Coombs v. Talbott (1694), Modern Reports (1669–1732), vol. 4, p. 254. See page [35], note 2.
3. A citation to Wilkins v. Wilkins (1689), Shower’s Reports (1678–1694), vol. 1, p. 71. See page [82], note 1.
4. Citations begin with a reference to Savile v. Roberts (1698), Lord Raymond’s Reports (1694–1732), vol. 1, p. 374. The text from which Quincy copies is on page 380, as he cites, and also contains the citations he notes to “FNB.” “FNB” refers to Fitzherbert’s Natura Brevium at *89.m. See page [21], note 10. The correct citation to Fitzherbert is *98n. See 91 English Reports (1909), p. 151. (The second citation appears to be incorrect. Quincy was apparently not using Fitzherbert directly!) The next citation is to Robodham v. Venleck (1635), Croke’s Reports (1582–1641), vol. 2, p. 378. See page [21], note 6. There is also a citation here to Coke’s Second Institutes (1642), p. 444.
5. A citation to Anonymous (1698), Lord Raymond’s Reports (covering 1694–1732), vol. 1, p. 383. See page [26], note 2. “Teste” refers the “witness myself” words (“teste meipso”) at the conclusion of the writ. “Writs are ‘tested’ (that is, the teste runs) in the name of the Lord Chancellor.” Thus an action starts when the writ is witnessed. See Jowitt, supra, p. 1743.
6. A citation to Rex v. Sudbury (1699), Lord Raymond’s Reports (1694–1732), vol. 1, p. 484.
7. “Trover” was the action on the case brought “by any person who had a right to possession of goods, for recovering the value of such goods against another …” Jowitt, supra, p. 1785. “Arrest of judgment” was a motion urging the trial judge not to enter judgment until reporting the matter for consideration by his judicial colleagues in London. It served the function of an appeal, although technically no judgement had been entered. Id., pp. 153–54. There is a citation to Hartford v. Jones (1700), 1 Lord Raymond’s Reports (1694–1732), p. 588.
Page [106]
1. “Capias” (“that you take”) “the generic name of several writs directing the sheriff to arrest the person therein named.” Jowitt, supra, p. 307.
2. “Fieri facias” (“that you cause to be done”). See page [125], note 1.
3. A citation to “T v. B,” Taylor v. Bekon (1677), Levinz’s Reports (1683–1704), vol. 2, p. 203. See page [76], note 2, supra. Quincy clearly had these three-volume reports in front of him here, as this is the first of seven citations.
4. Another citation to Seaton v. Henson (1678), Levinz’s Reports (1683–1704), vol. 2, p. 220. See note 3, supra. The citation clearly refers to a case limited to page 220, so it is unclear why he extends his reference to “-2.”
5. Another citation to Tracy v. Smith (1673), Levinz’s Reports (1683–1704), vol. 2, p. 173. It is curious that Quincy does not describe this case in his notes, and specially marks it with an “X”! The question was whether a distribution following one’s death should go equally to his full and half-brothers. An equal distribution was decided. Quincy did not list cases marked with an “X” in his index. See discussion at page [125], note 15, infra.
6. “De bonis testatoris” (i.e., “of a testator’s goods”) and “de bonis propriis” (i.e., “of a person’s own goods”). An executor, if sued, as executor, is liable for the testator’s goods in his control. A person sued as a private party is liable for his own goods. See Jowitt, supra, p. 570. There is an additional citation to Hall v. Huffman (1678), Levinz’s Reports (covering 1683–1704), vol. 2, p. 228. See note 3, supra.
7. “Moiety” usually means “half,” although occasionally it means another fractional part. See Jowitt, supra, p. 1184. There is another citation to Gamon v. Vernon (1678), Levinz’s Reports (covering 1683–1704), vol. 2, p. 231. See note 3, supra.
8. “Jointly and severally” (i.e., “two or more people are each liable individually or together as a group”). “[A] creditor … may sue one or more severally, or all jointly, at his option.” See Osborn, A Concise Law Dictionary, supra, p. 175.
9. This text is clearly taken from Slingsby’s Case (1587), Coke’s Reports (1572–1616), vol. 5, p. 18b. See page [1], note 2. Quincy’s citation to 14a appears to be an error.
10. “Negative pregnant” “in pleading is where a person gives an evasive answer to an allegation … by answering it literally, without answering the substance of it.” Jowitt, supra, p. 1215. For example, it is alleged that “A gave B 3 horses,” and B answers “that he did not receive 3 horses.” The substance of the allegation is that B received horses from A. B should either deny having received any horses, “or state how much he received.” See Id., p. 1215. There is another citation to Pullin v. Nicholas (1662), Levinz’s Reports (covering 1683–1704), vol. 1, p. 83. See note 3, supra.
11. Another citation to Genne v. Tinker (1681), Levinz’s Reports (covering 1683–1704), vol. 3, p. 24. See note 3, supra.
1. For a discussion of “trover,” see page [105], note 7.
2. A citation to Anonymous (1681), Shower’s Reports (1678–1694), vol. 2, p. 161. See page [82], note 1.
3. A citation to Coke on Littleton, p. 89a, with a citation over to Rex v. Viscount Hertford (1681), Shower’s Reports (1678–1694), vol. 2, p. 172. See page [2], note 1; page [7], note 9. See also note 2, supra. Coke’s statement of the law was, as Quincy observed, to the contrary. “So it is if goods be delivered to a man to be safely kept, and after those goods are stolen from him, this shall not excuse him, because by the acceptance he undertooke to keepe them safely, and therefore he must keepe them at his perill.” Coke on Littleton, supra, p. 89a. Coke’s other examples, however, involve people who were paid for keeping goods safe, and he observed: “Note, Reader it is necessary for any one that receiveth goods to be kept … to be kept as his owne, or keepe them at the perill of the owner.” Id., p. 89b. Apparently, Coke believed you could “opt out” of the implied agreement to safeguard goods by explicitly agreeing to keep them “at the perill of the owner.”
4. A citation to Oliver v. Vernor, Modern Reports, vol. 6, p. 170 at p. 171. See page [35], note 2. This is one of the few times Quincy identified the edition of a legal source book. Quincy usually cites to volume 6 of Modern Reports as volume 7. See page [97], notes 1, 3, 4, 5, 6, and 7.
5. A further citation to Modern Reports, vol. 6, p. 173. The case is Genner v. Sparks (1704). See note 4, supra. Also cited is Lilly’s Abridgment (1719), vol. 1, p. 96. See page [48], note 3.
6. A series of citations, the first being to The Case of the Marshalsea (1613), Coke’s Reports (1572–1616), vol. 10, p. 75b. Coke observed “[T]he party grieved shall have an action upon the statute … although the words of the Statute do not give any action to the party, but the same is a consequent, and a thing implied in everything forbidden by any statute.” Id., p. 75b. There is a further citation to Lord Townsend v. Hughes (1677), Modern Reports, vol. 1, p. 232 at p. 233. See note 4, supra. Finally there is a citation to Coke on Littleton, supra, p. 159a. The latter discusses statutory remedies where “no speciall writ is given by the statute.” Id., p. 159a.
7. For “capias,” see page [106], note 1.
8. “Rescous” is from the Old French “rescosse” and means “release.” See Jowitt, supra, p. 1535.
9. A further citation to Coke on Littleton (First Institutes) (1628), p. 161a. See note 3, supra. Quincy gives an almost exact paraphrase.
10. In other words, “it was not his deed.” For “non est factum,” see page [97], note 8.
Page [108]
1. A citation to Whelpdale’s Case (1604), Coke’s Reports (1572–1616), vol. 5, p. 119a. Coke observed that “when two men are jointly bounden in an Obligation, although none of them be bound by himself, yet none can say, That the Obligation is not his deed, for he hath put his Seal to it and delivered it, and each of them is bounded in the whole.” Id., p. 119a. “But in the Case at Barre, he might have pleaded in abatement of the Writ, but cannot plead, It is not his deed.” Id., p. 119a. In other words, as John Farquer Fraser notes in his annotations to the case, “If one only be sued he must plead the matter in abatement, and cannot take advantage of it afterwards upon any other plea….” Coke’s Reports, vol. 5, p. 119 (c), 243, note (A) (Thomas, Fraser, eds. London, 1826). My thanks to my learned colleague Charles Donahue Jr. For another citation to Whelpdale’s Case, see page [97], note 11.
2. “Durante minore aetate,” i.e., “during the minority.” See Jowitt, supra, pp. 685, 876. “Exor” for “executor.”
3. A citation to Piggot’s Case (1598), Coke’s Reports (1572–1616), vol. 5, p. 29a. See note 1, supra. Quincy accurately paraphrases the rule.
4. A citation to Wood’s Institute (1754 edition), where this closely copied text appears on page 351 instead of 350. See page [7], note 3. A further citation to Freke v. Thomas (1701), Lord Raymond’s Reports (1694–1732), vol. 1, p. 667 at p. 668. See page [26], note 2.
5. “Adminon” for “administration.” “Durante tc.” for “durante minore aetate,” as it appears in Wood’s original. See note 2, supra.
6. A citation to Wood’s Institute (1754 edition), p. 350. Quincy closely quotes this text from Wood. See note 4, supra.
7. “Coverture” (i.e., “the condition of a woman during marriage, or the fact of her being married”). See Jowitt, supra, p. 533. “Covert” comes from the Law French “feme covert,” a woman “under protection” [of her husband]. Id., p. 533.
8. A citation to Wood’s Institute (1754 edition), p. 353. See note 4, supra. The cross-cite is to “Ca. Eq. temp Ld. Talbot. 173.,” i.e., Cases in Equity during the time of Chancellor Talbot (1730–1737), p. 173, first published in London in 1741, with a second edition in 1753. See Sweet & Maxwell, supra, vol. 1, p. 345:11; Wallace, supra, pp. 506–09.
9. A citation to Wood’s Institute (1720), p. 353. See note 4, supra. Quincy closely quotes this text from Wood. A citation over to W. Williams, Jus Appellandi ad Regum ipsum a Cancellaria (1683–1684), part 1, p. 469. See Sweet & Maxwell, vol. 1, p. 342.
10. A citation to Weaver v. Ward (1616), Hobart’s Reports (covering 1603–1625), p. 134. See page [83], note 1. This proposition is compared to the rule that there is no felony “if a lunatick kill a man,” because there was no felonious intent. The actual question of the case is whether a soldier is liable for assault and battery after an accidental discharge of his musket injures a fellow soldier, conjuring questions of negligence.
1. A citation to Wiscot’s Case (1599), Coke’s Reports (1572–1616), vol. 2, p. 61a. See page [1], note 2. This is an exact paraphrase of Coke.
2. “Femme covert,” i.e., a married woman. See page [108], note 7.
3. An accurate citation to Coke on Littleton, p. 187b. See page [2], note 1; page [7], note 9. While a husband and wife are usually “one person in Law,” and therefore unable to “give any estate or interest to the other,” here, as Coke points out “they are but Instruments for others, and the estate passeth from the feoffee or devisee.” Id., p. 187b.
4. A citation to Ashton v. Jennings (1675), Levinz’s Reports (1660–1696), vol. 2, p. 133. See page [76], note 2, supra. Cases marked with an “X” were not listed by Quincy in his index. See discussion at page [125], note 15.
5. This is a complex string citation. For Chief Justice Holt, see Quincy’s extensive references to this particular judge at page [93], note 9; page [110], note 4 and note 7; page [111], note 3; and page [117], note 4. The citation is apparently to Anonymous (1703), Modern Reports (1669–1732; 1713 ed.), vol. 6, p. 22. See page [35], note 2. Quincy generally cites volume 6 as volume 7 of Modern Reports. See page [97], note 1. The citation to Hothershell v. Bows (1703), which appears in Modern Reports, vol. 6, p. 21, continuing to page 22, is clearly in error. It has nothing to do with the note other than being near the Anonymous case from which Quincy extracts the proposition. The following “vid” (“see”) citation is to Searle v. Lord Barrington (1729), Strange’s Reports (1716–1749), vol. 2, p. 826. See page [21], note 12. (This case involved an action upon a bond dated 1697, more than 20 years old.) The next citation is to Trials Per Pais(1665), (the 7th edition being 1725), p. 311. See page [49], note 2; page [50], note 5. The next citation appears to be to the fourth volume of Quincy’s notebooks, page 182, the last entry of which reads “A contract shall be taken out of hand, or else it vanishes into nothing. 1 Vin: 373 cites as Holden 108.4.6.” See page [94], note 6 for more about this section. Finally there is a citation here to Viner’s Abridgment, vol. 1, p. 373. See page [16], note 2.
6. A citation to Regina v. Inhabitants of the County of Wilts (1704), Modern Reports (1669–1732), vol. 6, p. 307. See note 5, supra. Cases marked with an “X” were not listed by Quincy in his index. See discussion at page [125], note 15.
7. A citation to Gee v. Fane (1667), Levinz’s Reports (1660–1696), vol. 1, p. 225. See page [76], note 2, supra.
8. A citation to Lobly v. Gildart (1682), Levinz’s Reports (1660–1696), vol. 3, p. 55. See note 7, supra. See page [117], note 1 for another citation to this case.
9. “Replevin,” “the remedy for a person whose chattels are unlawfully taken from him.” “The replevisor [the person whose goods are taken] … obtains a replevy of the the goods by procuring … a warrant directing the high bailiff to cause the goods to be delivered to him … ,” Osborn, A Concise Law Dictionary, supra, p. 276.
10. For “trespasser ab initio,” see page [110], note 4.
11. A citation to “L.v.S.,” Leonard v. Stacy (1704), Modern Reports (1669–1732; 1713 ed.), vol. 7, p. 139. See page [35], note 2.
1. A citation to Popley v. Ashley (1704), Modern Reports (1669–1732; 1713 ed.), vol. 6, pp. 147–48. See page [35], note 2. This is the first of five citations to what Quincy cites as 7 Modern Reports, though they are actually found in Modern Reports, vol. 6. He routinely makes this substitution, for an unknown reason. See page [97], note 1. Following these citations to Modern Reports are three citations to Comberbach’s Reports. Quincy seems to be reading through these reports, and noting interesting cases. Quincy added the word “order” above “Note,” probably to indicate that the same rule would apply for a bill (order to pay) as a promissory note. My thanks to my learned colleague James Rogers.
2. A citation to Regina v. Cotesworth (1704), Modern Reports (1669–1732; 1713 ed.), vol. 6, p. 172. See note 1, supra.
3. A citation to Hutton v. Mansell (1704), Modern Reports (1669–1732; 1713 ed.), vol. 6, p. 172, immediately following Regina v. Cotesworth. See notes 1 and 2, supra.
4. For Chief Justice Holt, see page 117, note 4. Quincy mentions Holt more than any other judge. See the discussion in the “Introduction,” supra. The citation is to Dod v. Monger, Modern Reports (1669–1732; 1713 ed.), vol. 6, p. 215 at p. 216. “Trespass ab initio” (i.e., “from the beginning”) is a term of art. “If a person authorized by law to enter upon the land [or beer barrels!] of another, after entry Commits a positive act of misfeasance which amounts to a trespass, he becomes a trespass ab initio, that is to say, from the beginning, and everything done by him in purported exercise of such authority become wrongful …” Jowitt, supra, pp. 2–3.
5. A citation to Fox v. Tilly, Modern Reports (1669–1732; 1713 ed.), vol. 6, p. 225. See note 1, supra.
6. “Indeb. ass.” for “indebitatus assumpsit.” See page [96], note 9.
7. For Chief Justice Holt, see note 4, supra. See also page [93], note 9, and page [117], note 4.
8. A citation to Hyat v. Hare (1696), Comberbach’s Reports (1685–1698), p. 383. See page [37], note 2.
9. A citation to Porter v. Clinton (1693), Comberbach’s Reports (1685–1698), p. 222. See note 8, supra. “Consideration” is another legal term of art meaning “an act or promise by which some right, interest, profit or benefit accrues to one part, or by which some forebearance, detriment … is given, suffered, or undertaken by the other …” Jowitt, supra, pp. 456–57. It is most commonly encountered as a requirement for enforceability of a contract not under seal, the person seeking to enforce the contract having given “consideration” for it.
10. “Non cul.” is for “non culpabilis,” i.e., “not guilty,” usually a criminal plea. “Issue was joined on the plea by the abbreviation prit., i.e., paratus, ready to prove … eventually the officer of the court began to apply the abbreviations to the accused, ‘culprit, how wilt thou be tried?’.” Jowitt, supra, p. 1232.
11. “Judmt Quod Querens nil capiat per Billam” for “judgment quod querens nil capiat per billam,” i.e., judgment for the defendant because the plaintiff (“querens”) could not succeed by the writ (“per billam”). Citation is to Kiffin’s Case (1695), Comberbach’s Reports (covering 1685–1698), p. 310. See note 8, supra.
Page [111]
1. A citation to Roberts v. Newbold (1695), Comberbach’s Reports (1685–1698), p. 318. See page [37], note 2. This is the fourth of six consecutive citations to Comberbach’s Reports, beginning at page [110]. See page [110], note 8. The subjects are completely diverse, suggesting that Quincy is reading through the reports and making notes, as he apparently did with Modern Reports, vol. 6, which he recorded as Modern Reports, vol. 7. See page [110], note 1. The pages in Comberbach are usually successive, so Quincy was usually reading from beginning to end, but there are exceptions. See page [110], note 8. Most of the opinions in Comberbach are brief and succinctly stated, making it easier for Quincy to record quick notes of their facts and holdings.
2. “Ex officiis,” by “virtue of his office.” See P. G. Osborn, A Concise Law Dictionary, supra, p. 128.
3. “Non pros” for “non prosequitur,” i.e., “He does not follow up.” “Judgment non pros was [generally] available for the defendant in an action when the plaintiff failed to take the proper steps within the prescribed time.” Id., p. 223.
4. A citation to Lampton v. Collingwood (1695), Comberbach’s Reports (1685–1698), p. 325. See note 1, supra. It is also another holding by Chief Justice Holt.
5. For Chief Justice Holt, an apparent favorite authority for Quincy, see page [93], note 8; page [110], note 4 and note 7; and page [117], note 4.
6. For “fieri facias,” see page [125], note 1.
7. A citation to Hardistey v. Barney (1696), Comberbach’s Reports (1685–1698), p. 356. See note 1, supra. Curiously, Quincy substitutes “apparel” for “clothes.” For a relevant Massachusetts case reported by Quincy, see Hanlon v. Thayer (1764), Reports, p. 99.
8. A citation to Hornsey v. Dimocke (1671), Ventris’ Reports (1668–1684), vol. 1, p. 119. See page [89], note 7. “Excor” is for “executor” and “adminor” for “administrator,” usual Quincy abbreviations. See page [103], note 3.
9. “De Bonis Testatoris” (i.e., “of a testator’s goods”). The testator’s goods would be liable if an executor broke a covenant.
10. A citation to Lilly’s Abridgment, vol. 2, p. 116. See page [48], note 3. There was a further citation which appears to be to Sir E. Saunders, Les Reports des Divers Pleadings et Cases en le Court del Bank le Roy … (covering 1660–1685). These were first published in London in 1686 in 2 volumes. A second edition, translated into English, followed in 1722. See Sweet & Maxwell, supra, vol. 1, p. 308:112; Wallace, supra, pp. 338–43. This citation appears to be to Saunder’s Reports (1660–1685; 2nd ed. 1722), vol. 2, p. 118, but the case reported there, Chandler v. Vilett (1670), does not seem to be on point.
11. A citation to Parsons v. Gill (1701), Comyn’s Reports (covering 1695–1741) at pp. 117–18. See page [32], note 1.
12. “Quash” (i.e., “to discharge or set aside”), Osborn, A Concise Law Dictionary, supra, p. 262. The citation is to Rex v. Newman (1700), Lord Raymond’s Reports (1694–1732), vol. 1, p. 562. See page 26, note 2. Quincy substituted “Eliza” for “Elizabeth.” The indictment was for “keeping a bawdy house.”
Page [112]
1. A “writ of error” was the general appellate remedy for error of the face of the record. See Baker, An Introduction to English Legal History (4th ed.), supra, pp. 136–38. The citation is to Tomkin v. Croker (1700), Lord Raymond’s Reports (1694–1732), vol. 1, pp. 564–65. See page [26], note 2.
2. This is a further citation to Tomkin v. Croker (1700), Lord Raymond’s Reports (1694–1732), vol. 1, pp. 564–65. See note 1, supra. The cross-cite is to Blackamore’s Case (1610), Coke’s Reports (1572–1616), vol. 8, p. 156a, which supports the proposition. See page [1], note 2.
3. “Excon” for “execution.” A further citation to Parker v. Kett (1701), Lord Raymond’s Reports (1694–1732), p. 658 at p. 660, from which Quincy closely copies this text, with an apparent cross-cite to Clere’s Case (1599), 6 Coke’s Reports (1572–1616), p. 17b, supra, note 2.
4. A citation to Combes’s Case (1612), Coke’s Reports (1572–1616), vol. 9, p. 75a at p. 76b. Quincy paraphrases Coke exactly. The cross-citation to Coke in notes 2 and 3 above may never have been examined by Quincy, as he was relying on Lord Raymond’s Reports. Quincy rarely omitted foliation citations to Coke’s Reports when they were his primary authority.
5. A citation to Shaw v. Stoughton (1673), Levinz’s Reports (1668–1684), vol. 2, p. 86. See page [76], note 2, supra. Quincy frequently cited Chief Justice Holt by name. See pages [109], note 5; [110], note 4 and note 7; [111], note 5; and [117], note 4. Here he cited by name to another great common lawyer, Sir Matthew Hale (1609–1676), who was Chief Justice of the King’s Bench from 1671–1676. Hale’s great History of the Common Law was published in 1713, and his Pleas of the Crown (1682), republished in 1685, 1694, 1716, and 1759, was in Quincy’s library. See Estate Catalogue, No. 116. See Sweet & Maxwell, supra, vol. 1, p. 239:17 and p. 362:35, 36.
6. A citation to Oates v. Frith (1614), Hobart’s Reports (covering 1603–1625), p. 130. See page [83], note 1.
Page [113]
1. A “contra” (opposing) citation to Hawkins, Abridgment, 301. See page [68], note 6. Here Quincy noted a conflict in authority, further evidence that he was reading critically.
2. A “vide etiam” (“see also”) citation to Mallory’s Case (1601), Coke’s Reports (1572–1616), vol. 5, p. 111a. See page [1], note 2. The citation is on point.
3. A citation to Coke on Littleton, p. 224b. See page [2], note 1; page [7], note 9. Quincy extracted Coke’s observation accurately, leaving out the references to the Statute 46 Edward 3, 4 (1373). See Id., p. 224b. There is a further citation to John Perkins, A Profitable Book (1528), p. 728, translated from Law French to English in 1555 and reprinted many times from 1555 to 1757. See Sweet & Maxwell, supra, vol. 1, pp. 485:56–58. The citation is to Perkins’s section 728, which is on page 275 of the 1657 edition, and is on point.
4. A citation to “G v. J.,”Garret v. Johnson (1700), Lord Raymond’s Reports (1694–1732), vol. 1, p. 576. See page [26], note 2. Quincy exactly quotes one of the case’s final lines.
5. A citation to Hawkins, Abridgment (1711), p. 342. See note 1, supra. A further citation is Coke on Littleton, p. 254b. See note 3, supra. Coke observed “[B]ut where the claime is not to Devest any estate, but to bring him who maketh it into actual possession, there a claime within the view sufficeth …” Id., p. 254b. “Claim within view” refers to the old writ of view, “which provided that all things which used to be done upon the writ could be done upon a rule or order to view.” Jowitt, supra, p. 1838.
6. A citation to Strode v. Berager (1679), Levinz’s Reports (1668–1684), vol. 2, pp. 243–44. See page [93], note 7. Quincy comments on an interesting, though not central, aspect of this case, focusing on its language: “Scroggs, Chief Justice, continued his former opinion, saying, he was never satisfied with the first judgment [in the Communi Banco, where he dissented], and that the judgment ought to be reversed.” It eventually was reversed. The English procedure of “arrest of judgement” permitted the judge below to participate in the review of the decision, in theory because judgement had not been officially entered. See Baker, supra, pp. 138‒40.
7. For “indebitatus assumpsit,” see page [96], note 9.
8. For Quincy’s many references by name to Chief Justice Holt, a clear favorite, see page 93, note 8; page [109], note 5; page [110], note 4, and note 7; page [111], note 5; and page [117], note 4.
9. “Escrow,” “a writing sealed and delievered … [to a nonparty] to be held by him until certain conditions to be performed …” Osborn, A Concise Law Dictionary, supra, p. 125. For “non est factum,” see page [97], note 8. “Vid.” (“see”) citation is to [J. Mallory] Modern Entries (1734–1735), vol. 2, p. 298 pl. 9. See page [70], note 3.
10. A citation to “B. v. P.,” Bushell v. Pasmore (1704), Modern Reports, vol. 6, p. 217 at p. 218. See page [35], note 2; page [96], note 4. Quincy regularly cited to volume 6 of Modern Reports as volume 7. This quote is yet another from Chief Justice Holt.
11. “Rent service” is a rent incident to tenure. “[I]t is that which is due when one man holds land of another by fealty (or any other service) and rent … or where an owner of land leases it to another for 99 years at a yearly rent.” Jowitt, supra, p. 1522.
12. A citation is to Coke on Littleton, p. 148b. See note 3, supra. The statement by Coke, at the top of the page 148b as Quincy indicates, is accurately paraphrased. (The “top” and “bottom” marks certainly indicate that Quincy actually looked up these citations!) “In esse” (i.e., “existing”), as distinguished from in posse (“that which is not, but may be”). “A child before birth is in posse; after birth, in esse.” Jowitt, supra, p. 947.
13. A citation to “H. v. T.,”Hodgson v. Thornborough (1675), Levinz’s Reports (1660–1696), vol. 2, p. 143. See note 6, supra. “S.d” is for “suspended.” Here, again, Quincy showed a critical approach to the law, identifying conflicting precedents.
14. “yn” for “then.”
15. A citation to Adams v. Staley (1679), Shower’s Reports (1678–1694), vol. 2, p. 61. See page [82], note 1. Quincy copies this line almost exactly.
Page [114]
1. A citation to Mackalley’s Case, In Killing of the Serjeant of London (1612), Coke’s Reports (1572–1616), vol. 9, pp. 65b, 66a. See page [1], note 2. Quincy stated the holding accurately.
2. For “disseisin,” see page [99], note 4.
3. “Arraign an assise,” i.e., to call “to account” before an assise court—the courts held by the justice of assise in their regular visits to each country. See Jowitt, supra, p. 167.
4. “Disseisor,” one who “disseises” (i.e., “dispossess, deprives”). See page [99], note 4. See also Jowitt, supra, p. 643.
5. “Omne maius trahit ad se minus” (i.e., “The greater whole drags the lesser to itself …” See Jowitt, supra, p. 1266). A citation to Coke on Littleton, p. 285a. See page [2], note 1; page [7], note 9. Quincy accurately paraphrased Coke, but left the “dignum” out of the Latin quotation. Id., p. 285a.
6. A citation to Wood’s Institute (1754 edition), Book 1, where this closely copied text appears on page 59 instead of 66. See page 7, note 3. This cited further to Coke on Littleton, p. 258a. See note 5, supra. Quincy’s note was an accurate paraphrase of Coke, but omitted Coke’s warning that “both these rules have divers exceptions and limitations.” Id., p. 258a. There was also a citation to Sir Richard Pexhall’s Case (1610), Coke’s Reports (1572–1616), vol. 8, p. 83b. See page 1, note 2. “Then in the case at barr … Sir Richard had not power to charge but 2 parts; yet when he chargeth the Whole, he chargeth 2 parts and more, and therefore it shall be good, for so much as the Statute doth enable him, and void for the residue, Quia Quando plus Fit Quam fieri debet, videtur etiam ipsum fieri Quid faciendum est …” Id., p. 85a. See note 7, infra.
7. “Quando plus Fit etc” referring to “Quando plus Fit Quam fieri debet, videtur etiam illud fieri Quid faciendum est” (“when more is done than ought to be done, then that is considered to have been done which ought to have been done.”) Jowitt, supra, p. 1452. See Sir Richard Pexhall’s Case, Coke’s Reports, vol. 8, at p. 85b, note 6, supra. See also Wade’s Case (1601), Coke’s Reports, vol. 5, note 6, supra, at p. 115a. Volume 3 of Quincy’s notebooks, referenced here, features a list of Latin maxims on pages 161 to 163 and 171 to 183, included as Appendix III in this volume.
8. “Prochein amy,” Law French for the “next friend or next of kin to a child in his nonage, who in that respect was allowed to deal for the infant in the management of his affairs.” Jowitt, supra, p. 1418. A “guardian” is appointed by the court to take care of an infant, or anyone “incapable of acting for his own interest.” Guardians are always appointed when such a person is sued. Id., pp. 883–84.
9. A “vid” (“see”) citation to Hawkins, Abridgment, p. 208, where Hawkins comments on page 135b of Coke. See page [8], note 1.
10. A citation to Coke on Littleton, p. 135b. See note 5, supra. Coke observed that: “[A]n Infant or a Minor shall sue by Procheine Amy, and defend by Gardeine …” Id., p. 135b. See note 8, supra.
11. “Infant,” i.e., “a person under twenty-one years of age.” See Jowitt, supra, p. 964.
12. A citation to Coke on Littleton, p. 172a. See note 5, supra. Coke observed “[G]enerally whatsoever an Infant is bound to doe by Law, the same shall bind him, albeit he doth it without suit of Law. But of this common learning this little [taste] shall suffice.” Id., p. 172a. Thus an infant who was an executor must issue an acquittance for a debt owed to the testator if the debt is actually paid, because the executor is bound to do so by law—even if the minor could not be sued directly, but only through a guardian. On the other hand, an infant executor cannot exercise discretion to release a debt to the estate, and any release issued by the minor is void. The infant cannot be bound because the release was not required by law. This was Coke’s example. See Id., p. 172a.
Page [115]
1. A citation to Hawkins’s, Abridgment, p. 258. See page [8], note 1. Quincy closely paraphrases Hawkins’ text.
2. “Estranger” for “stranger.”
Page [116]
1. “Condon” for “condition.”
Page [117]
1. A citation to Modern Cases in Law and Equity, p. 290, otherwise known as 8 and 9 Modern Reports (covering 1669–1732), the 1712–1726 period. See page [35], note 2 and page [96], note 4. The case is Springett v. Chadwick (1729). A further citation to Cumber v. Wane (1721), Strange’s Reports (1716–1749), vol. 1, p. 426. (Wrongly cited by Quincy as “2 Strange.”) This case held that a promissory note for £5 could not extinguish a debt of £15. “Even the actual payment of £5 would not do, because it is a less sum … Much less shall a note payable at a future day.” Id., p. 426. A further citation is given to Lobly v. Gildart (1682), Levinz’s Reports (covering 1660–1696), vol. 3, p. 55. See page [93], note 7. Also see page [109], note 8 for an earlier citation to this case. This is another example of Quincy’s careful, and critical, analysis of the legal rules he recorded.
2. “Chose in Action” (i.e., “a right of proceeding in a court of law to procure the payment of a sum of money … or to recover pecuniary damages …”). See Jowitt, supra, p. 367.
3. A citation to Coke on Littleton, pp. 212b–213a. Quincy has the example in Coke wrong. In Coke the debt owed is “an hundred Markes” and the account is for “twentie pound,” different currencies. Id., pp. 212b–213a. This could distinguish the resolution from simply accepting a lesser sum for a greater sum of the same currency. A further citation is given to Hawkins’s Abridgment, pp. 299–300. See page [8], note 1.
4. A reference to Sir John Holt (1642–1710), Chief Justice of the King’s Bench from 1689–1710. There is a change in the script here, but it appears to be still Quincy, perhaps with a new pen nib. Holt issued the judgment for the case noted in the adjoining text. See, supra, note 5.
5. A citation to Anonymous (1695), Modern Reports (1667–1732), vol. 12, p. 73. See page [35], note 2. Excluding notes, the line that Quincy copied is essentially the entire case.
6. A cross-reference to Quincy’s page 156 [99], which discusses when detinue should be brought against a husband and wife. Quincy’s page 156 also cross-referenced this page.
7. A citation to Hawkins’s Abridgment, p. 448. See note 2, supra.
8. A citation to Coke on Littleton, p. 351b. See note 3, supra. Quincy’s note is a complete reformulation of the passage in Coke, but it parapahrases Coke’s conclusions accurately. Quincy also cites to Coke on Littleton, p. 351b for essentially the same point on page 17 [22] under Bailment.
Page [118]
1. “Teste,” i.e., “the concluding part of a writ, giving the date and place of its issue. It is so called because it begins with the words ‘witness myself’ (teste meipso) …” Jowitt, supra, p. 1743. Before the Judicature Acts of 1873‒1875, most writs were “tested in the name of the Lord Chancellor, if issuing from the Court of Chancery, or of the Lord Chief Justice, if issuing from the Queen’s Bench …” Id., p. 1743.
2. “Admnor. Admnix. Excor.,” i.e., “administrator, administratrix, executor.”
3. “Bona notabilia in 2 Provinces.” Before 1857 wills were proved in England “before the bishop of the diocese in which the property of the deceased was located.” Jowitt, supra, p. 260. “[I]f the deceased had bona notabilia, or chattels to the value of £5 in two or more distinct dioceses, then the will was proved before the metropolitan of the province comprising the dioceses, or, if the dioceses were comprised partly in one province and partly in the other, then before the metropolitan of each province.” Id., p. 260. In Quincy’s words, “admon.” or “administrator” “in both.” “Bona notabilia” itself refers to “goods situated in another diocese to that in which a deceased had died.” Osborn, A Concise Law Dictionary, supra, p. 53.
4. “pl. ad.” for “plene administratvit.” See page [104], note 1.
5. “Admon durante minore estate,” i.e., “administration durante minore aetate.” See page [108], note 2.
6. “Infant exex,” i.e., an executor under twenty-one years old. See page [114], notes 11, 12.
7. “Exor” for “executor.” See note 2, supra.
8. “De bonis Testatoris.” See page [111], note 9.
9. “Pl. ad.” for “plene administratvit.” See note 4, supra, and page [104], note 1.
10. “Obligon” for “obligation.”
11. “Posson” for “possession.”
Page [119]
1. “Moiety” (i.e., “half”). “The word is, however, occasionally used to signify any fractional part, such as a third, fourth, etc..” Jowitt, supra, p. 1184.
2. “Assumpsit” or Quincy’s abbreviation “assum,” etc. See page [96], note 9.
3. “Feme,” i.e., “wife.” See Jowitt, supra, pp. 793–94.
4. “Baron + Feme,” i.e., “husband and wife.” Id., at p. 214. See page [108], note 7.
5. A citation to the “Baron & Feme” section beginning on page 20 earlier in the Law Commonplace. That page cross-cites to this index entry.
6. “Feme covert,” see page [108], note 7. “Conson” for “consideration.” See page [110], note 9.
7. “Feme covert,” see page [108], note 7.
8. “Submisnon,” i.e., “submission,” “entere’d into whole sale,” i.e., while woman was single. With a “quare,” i.e., “wherefore,” “whether a debt on a bond condition’d to such award can yt [that] be brot agt husband and wife?,” see page [99], note 10.
9. “Dum sola,” i.e., “while she remains single or unmarried.” Jowitt, supra, p. 684.
10. “Quash’d,” i.e., “to discharge or set aside an order of an inferior court.” Id., p. 1456, see page [111], note 12.
11. “Detinue,” the standard cause of action to recover things, i.e., chattels. See Baker, An Introduction to English Legal History (4th ed.), supra, pp. 384–85, 391‒94.
Page [120]
1. “Pmt” for “payment.”
2. “[C]all in Season,” i.e., endorsee of a note fails to demand payment in a diligent way after note becomes payable. “[H]e might be paid if he had been diligent enough.” See page [110], note 1.
3. “[A]gt past-good,” i.e., it is a valid condition to hold a party harmless against past occurrences, but not future, and inherently unknowable, occurrences. See page [110], note 5.
4. “Seis’d,” i.e., “seised,” in possession of a fee. See Jowitt, supra, p. 1608. “Seised in demesne as of fee” meant that “the immediate freehold in severality was vested in him for an estate in fee simple, as opposed to one who held land for a term of years or for life only, or in common with others …” Id., pp. 606–07. See page [103], note 5.
Page [121]
1. “Convey,” i.e., “conveyed.”
2. “Haeredibus de corpore procreandis,” i.e., “heirs begotten from the body.” See page [104], note 3.
3. “Feme sole,” i.e., “an unmarried woman.” See Osborn, A Concise Law Dictionary, supra, p. 135. See also page [119], note 3.
4. “Disseisee,” i.e., one who has been “disseised.” See page [99], note 4.
Page [122]
1. “Hypothecation.” “A pledge in which the pledges retain possession of the thing pledged.” Jowitt, supra, p. 932. Usually this was a vessel, pledged for repairs, but still in possession of the captain so that the voyage can be completed. See also “bottomry,” a common form of agreement that “binds or hypothecates the ship and freight, or the cargo, for the performance of a contract …” Id., p. 269. See page [102], note 7.
2. “Sue his guardian [in socage] by guardian.” See page [102], note 5.
3. “Prochein amy,” i.e., “next friend.” See page [114], note 8.
4. “Fine,” i.e., a fictitious judicial proceeding used to convey interests in property. See Jowitt, supra, p. 803. See also Baker, An Introduction to English Legal History (4th ed.), supra, pp. 282–83. See also page [97], note 4.
5. “[N]il debet.” See page [105], note 2.
6. “Negative preg” for “negative pregnant.” See page [106], note 10. “[I]n pleading … where a person gives an evasive answer to an allegation … by answering it literally … Thus if it is alleged that A received a certain sum of money, and he denies that particular amount, this is a negative pregnant, because the substance of the allegation is the receipt of some money.” Jowitt, supra, p. 1213.
Page 123
1. “Nolo prosequi” (i.e., nolle prosequi, “to be unwilling to prosecute”), “a proceeding in the nature of an undertaking by the plaintiff when he had misconceived the nature of the action … to forbear to proceed in a suit altogehter, or as to some point of it, or as to some of the defendants.” Jowitt, supra, p. 1229. The reference to Quincy page 168 [111] is actually to a “non pros,” or “non prosequitus.” See page [111], note 3. These are not identical, and this was a rare error by Quincy. “It [nolo prosequi] differed from a non pros., which put a plaintiff out of court with respect to all the defendants.” Id., p. 1229. “[A] nolle prosequi to stay proceedings may be entered by leave of the Attorney-General [in criminal proceedings] at any time before judgment: it is not equivalent to an acquittal and is no way to a new indictment for the same offense.” Id., p. 1229.
2. “Oblon” for “obligation.”
3. “Non est factum,” see page [97], note 8.
4. “Dd” for “delivered.” See page [100], note 4.
5. “Oblon j+s,” i.e., “obligation joint and several.” “An obligation entered into by two or more persons is joint and several when each is liable severally and all are liable jointly.” Jowitt, supra, p. 1014. See page [102], note 11. “Excon.,” see page [102], note 11.
6. “J+s,” i.e., “joint and several.” See note 5, supra.
7. “Oblon,” i.e., “obligation.” See note 2, supra.
8. “Assumpsit,” the general contractual cause of action. See page [96], note 9. See also Baker, An Introduction to English Legal History (4th ed.), supra, pp. 330–45.
9. “Nil debet,” see page [105], note 2.
10. See note 9, supra.
11. “Abatemt” for “abatement.” A plea “which, without either admitting or denying the existence of the cause of action, alleged some fact (such as the non-joinder of a necessary party …) which would preclude the plaintiff from recovering on the writ as then framed.” Jowitt, supra, p. 5.
12. “Assumpsit,” see note 8, supra.
Page [124]
1. “Exor,” i.e., “executor,” “pleas another executor,” i.e., “pleads that there is another executor not named in writ,” but does not say he has administered the estate, “adjudged ill upon a demurrer.” See page [103], note 6.
2. “Ni hab.,” i.e., “nil habuit in tenementis.” See page [105], note 2.
3. “Nil debet,” see page [96], note 12; page [105], note 2.
4. “Non est factum,” see page [97], note 8.
5. “If both etc.,” i.e., if both are sued and one appears and the other defaults … “he who appears shall be charged with the whole debt. But in the Case at Bar he might have pleaded in Abatement of the Writ.” See page [108], note 1.
6. “Escrow,” see page [113], note 9.
7. “[W]hen etc.,” i.e., when sued in debt etc. See page [39], note 3.
8. “[J]+S,” i.e., “joint and several.” See page [123], note 5.
9. “[F]eme cov.,” i.e., “feme covert,” a married woman. See page [108], note 7.
10. Quincy’s placement of “void” moved from beneath “Less done” to following it, to keep the correct sense of the notation. See page [114], note 6.
11. “Excon” for “execution.” See page [102], note 11.
12. Record of a voluntary confession of perjury in court, “without … indictment or information … punished as in case of perjury.” Here Quincy added, “[V]iz sitting in ye pillory.” Here Quincy’s index contained more information than the original note, where the nature of the punishment was not set out. See page [96], note 4.
13. “J + severally,” i.e., “jointly and severally.” See page [123], note 5.
14. “Dissor,” i.e., “disseisor.” See page [99], note 4.
15. “Ten. in tail,” i.e., “tenant in tail,” the owner of an estate tail. Estate tails descended solely to heirs of the grantee’s body, “general entail,” or to the heirs of the grantee’s body by a particular spouse, “special entail.” Otherwise the estate, in theory, reverted back to the heirs of the grantor, “possibility of reverter.” See Baker, An Introduction to English Legal History (4d ed.), supra, pp. 272–76.
16. “Debt for it,” i.e., action of debt to recover rent. “Ten in com.,” i.e., “tenancy in common.” “Where two or more persons are entitled to land in such a manner that they have an undivided possession but several freeholds: that is, no one of them is entitled to the exclusive possession of any part of the land, each being entitled to occupy the whole in common with the others.” Osborn, A Concise Law Dictionary, supra, p. 309.
17. “An.” for “ancestors.” See page [112], note 6.
18. “Qu.” for “quaerere,” i.e., “ask, inquire.” Quincy indicated questionable propositions by the notation “Qu” or “Qu. vid.,” followed by the inconsistent authority. This is further evidence of his critical attitude. He was not simply copying. See page [102], note 9.
1. “Fieri facias” (“that you cause to be made”), “a writ of execution to levy a judgement debt.” Jowitt, supra, p. 800. “It commands the sheriff or other officer to whom it is directed to cause a levy to be made on the goods and chattels of the debtor …” Id., p. 800. See also page [106], note 2; page [111], note 6.
2. “[M]ay 1 gown if he has 2,” i.e., the sheriff can take 1 gown, but only if the defendant has another. See page [111], note 7. This issue arose in a case Quincy reported, the so-called “naked wife” case, Hanlon v. Thayer (1764). See Quincy’s Reports, supra, p. 99.
3. “Capias,” see page [106], note 1. “[F]ieri F.” for “fieri facias.” See note 1, supra. See also page [106], note 2; page [111], note 6.
4. “Submission,” i.e., “a man may submit for another’s debt,” usually in connection with a written submission, as an arbitration submission. See page [113], note 15.
5. “Surplusage,” i.e., an unnecessary allegation in pleading. See Osborn, A Concise Law Dictionary, supra, p. 307.
6. “[T]ryal at bar, Nisi.” Common law trials were originally held before a full court at Westminster Hall, usually consisting of several royal judges. This was called a “tryal at bar.” Id., p. 221. Trials nisi prius were usually before a single judge and a jury sitting in the assize courts during the country assizes outside of London, or in specially designated courts within London and Middlesex, the most famous being the “Old Bailey,” the central London criminal court. The order to the sheriff, since the statute 13 Edward I, would direct him to bring jurors from the relevant county to Westminster Hall “unless before” (nisi prius) “the justices of assize came into the county.” Id., p. 221. The Massachusetts Superior Court of Judicature was a stationary trial and appellate court by Quincy’s day, but the Inferior Court of Common Pleas (1692–1859) roughly followed English practice of “riding circuit.” See Law in Colonial Massachusetts, supra, pp. 541–49.
Here again Quincy added something to the index not found in the body of the notes, which referred soley to “trials at bar.” See page [101], note 1. He probably meant that the same rule should apply to both trials at bar and trials nisi prius.
7. Trespass … ab initio, see page [110], note 4.
8. Trover, see page [105], note 7.
9. “Denial to deliver no Evid. [Evidence] of Conversion, unless—.” Action was for recovery in trover of an “Horse in an Inn-Keeper’s Hands.” See note 8, supra. “[N]o Evidence of Conversion unless the Money was tender’d for the Horse’s keeping.” See page [107], note 2.
10. “Non cul,” see page [110], note 10. “Trover agt 2 one pleads non ent. T’ other a release of actions. [T]he first issue found for plt, the other for the deft + Judm’t …”
11. “V + judgt,” i.e., “verdict and judgment.”
12. “Oblon,” i.e., “obligation.” See page [112], note 6.
13. “Remainder men,” i.e., those entitled to the estate if the “heirs of the body” die, and it is an estate in tail. See page [102], notes 1 and 2.
14. “Quod Nota,” i.e., “note that” or “take notice.” See page [94], note 2.
15. This is a mystery. Each of these pages does have a case marked with the “X” and, indeed, the marked cases are omitted from the index. But why? See pages [95], [98], [103], [106], [109]. The notation on the case omitted from page [98] warned “Quare of this, it is not law.” See page [98], note 7. The case omitted from page [106] was cryptic, “case of the half blood + whole,” and may have been a controversial slavery case. But the other cases appear to have been good authority. Why did Quincy omit them?
Page [126]
1. “Exscprita” should be “exscripta.” The whole phrase: “Miscellaneous Laws Cursorily Copied Out Of Books.” Compare page 150 [93] of the Law Commonplace, which bears the same title without limitation to estates. The following five pages continue Quincy’s Legis Miscellanea and are found on pages 5‒10 of Vol. 4, together with 71 pages of Law Reports. See theCox Chart, Appendix II, pp. 432‒33, and MHS p. 347, Reel 4, QP58. See also Introduction, supra, pp. 21‒22.
2. Volume 1 refers to Quincy’s Law Commonplace, where at page 150 [93] he begins a twenty-five-page collection of briefly stately legal precepts on a variety of topics. Page 150 [93] also references back “vid. Vol. 4. p. 5.”
3. Volume 1 refers to Quincy’s Law Commonplace, which at page 25 [30] begins a two-page treatment of estates. It cross-references “vid Vol. 4 p.5 & onward.” Page 47 [45] begins a three-page section on the subject “Of Lands, Tenements or Hereditaments.”
4. Clauses of “habendum” (to have), “tenendum” (to hold), and “reddendum” (to give back).
5. Citation to Coke on Littleton, p. 7a (“for if such a deed be without premissis, habendum, tendendum, reddendum, Clause of Warranty, the Clause of In cuius rei testimonium, the Date, and the Clause of hiis testibus, yet the deed is good”). See page [2], note 1.
6. Quincy copies this text from William Hawkins, Abridgment, p. 11. See page [1], note 1, supra.
7. Citation to Coke on Littleton, page 9b (“… an Estate of inheritance may pass without these words [his Heirs]. As if a man devise twenty Acres to another, and that he shall pay to his Executors for the same ten Pounds; hereby the Devisee hath a fee-simple by the Intent of the Devisor, albeit be not to the value of the Land”).
8. A close copy from Hawkins’s, Abridgment, p. 14. See page 8, note 1, supra. “Sang. suo” is short for “sanguini suo” (to his own blood). “ffee” is Quincy’s shorthand for “fee simple.”
9. A citation to Coke on Littleton, p. 9b (“as if there be three Coparceners or Jointenants, and one of them release to the other two, or one of them generally without this word [Heirs] by Littleton’s own Opinion they have a fee-simple”).
10. A reference to Quincy’s Law Commonplace, where he cites forward to this page. Pages 81 [71] through 86 [76] of the Law Commonplace treat the topic of Releases generally.
11. An almost exact copy from Coke on Littleton, p. 9b.
12. Id. (“When a bare Right is released, as when the Disseisee releases to the Disseisor all his Right, he need not (saith our Author in another Place) speak of his Heirs”).
13. Citation to Hawkins, Abridgment, p. 14. See page [8], note 1, supra. Quincy restates the implication of the cited text in his own words.
14. Another close copy from Coke on Littleton, p. 9b.
Page [127]
1. A nearly exact copy from Coke on Littleton, pp. 9b–1 0a. The translation of the concluding phrase is “for truly the laws themselves desire that they be governed by justice.” My thanks to Elizabeth Kamali. “Owelty” means “equality.” “[C]ompensation is said to be given for owelty or equality of exchange,” Jowitt, supra, p. 1283. My thanks to my colleague Charles Donahue, ever a friend in need! See page [2], note 1.
2. Citation to Hawkins, Abridgment, p. 7. See page [8], note 1, supra.
3. An almost exact copy from Coke on Littleton, p. 10a.
4. Citation to Coke on Littleton, p. 31a, where follows a discussion of seisin in deed and rights of dower the words, “And here Note a Diversity between a Descent and a Purchase.”
5. Volume 1 refers to Quincy’s Law Commonplace. Page 25 [30] is the first page of a section on “Estates” and is also referenced on the preceding page. The page briefly mentions curtesy. Page 22 [27] is the third page of his section on “Baron & Feme,” and does not specifically mention curtesy.
6. “Curtesy” refers to “an estate which arose by act of law, and was that interest which a husband had for his life in his wife’s fee simple or fee tail estates … after her death.” Jowitt, supra, p. 553. Citation to Hawkins’s, Abridgment, p. 42. See page [8], note 1, supra. The passage corresponds to page 29a of Coke on Littleton.
7. Citation to Coke on Littleton, p. 29a (“And here Littleton intendeth a seisin in Deed, if it may be attained unto …. But a Man fhall not be Tenant by the Curtesy of a bare Right, Title, Use, or of a Reason or Remainder expectant upon Estate of Freehold, unless the particular Estate be determined or ended during the Coverture”).
8. Id., p. 40a, where the English translation of Littleton’s Section 52 states, “And memorandum [i.e., it must be remembered], that in every case where a Man taketh a Wife seised of such and Estate of Tenements, &c. as the Issue which he hath by his Wife, may by Possibility inherit the same Tenements of such and Estate as the Wife hath, as Heir to the Wife: In this cafe after the Deceafe of the Wife, he shall have the fame Tenements by the Curtesy of England, but otherwise not”.
9. Id., p. 29b, addresses both of these situations posed in the margin. As to the first matter, where lands are granted to a woman and her male heirs, but she only has female issue, Coke on Littleton states “he shall not be Tenant by the Curtesy.” As to the second, where the land descends to a woman after her issue have died, Coke on Littleton states that even though the “Issue had died in the Life-time of her Father before any descent of the Land, yet shall He be Tenant by the Curtesy.” Id., p. 296.
1. Citation to Coke on Littleton, p. 351a. (“Also if the Husband be attainted of Felony, the King gaineth no freehold, but on Pernancy [taking] of the Profits during the Coverture, and the freehold remaineth in the Wife”.) Quincy makes a similar notation in the same location on page 22 [27] of the Law Commonplace, also citing to p. 351a of Coke on Littleton.
2. Id., p. 40a (“If a Man taketh a Wife seised of Lands or Tenements in Fee, and hath Issue, and after the wife is attainted of Felony, so as the Issue cannot inherit to her, yet he shall be Tenant by the Curtesy, in respect of the Issue which he had before the Felony, and which by Possibility might then have inherited. But if the Wife had been attainted of Felony before the Issue; albeit he hath Issue afterward, he shall not be Tenant by the Curtesy. Come heire al feme [quote from Littleton’s text on the same page, translated as “as heir to the wife”]. This doth imply a secret of Law, for except the Wife be actually seised, the Heir shall not (as hath been said) make himself heir to the Wife: And this is the reason that a Man shall not be Tenant by the Curtesy of a Seisin in Law”).
3. In beginning the topic of dower, Quincy again cross-references to his Law Commonplace, where page 25 [30] begins treatment of the topic of Estates. Page 25 [30] of the Law Commonplace specifically mentions dower and provides a cross-reference to this page and the preceding one.
4. Citation to Coke on Littleton, p. 31a (“Here this word [seised] extendeth it self as well to a Seisin in Law, or a civil seisin, as a Seisin in Deed, which is a natural Seisin: But seised he must be either the one way or the other, during the Coverture. For a Woman shall be endowed of a Seisin in Law…. for it lieth not in the power of the Wife to bring it to be an actual Seisin, as the Husband may do of his Wife’s Land, when he is to be Tenant by Curtesie, which is worthy of the Observation. And yet of every Seisin in Law … a Woman shall not be endowed. For example …”).
5. Id., p. 31b. Another almost exact copy.
Page [129]
1. Citation to Coke on Littleton, p. 31b (“Likewise if two Joint-tenants be in Fee, and the one maketh a Feoffment in Fee, his Wife shall not be endowed.”) See page [2], note 1.
2. Id., p. 31a. Another close copy.
3. Id., p. 31a. Another close copy. Quincy omits Coke’s concluding phrase, “and not according to the Value as it was in the Time of her Husband.”
4. Id., pp. 171a and 171b contains discussions of partitions between husbands and wives (by Coke’s correction) in Section 257 and partition between coparceners, the youngest of whom is below the age of twenty-one, in Section 258.
5. Id., p. 37b, where the English of Littleton’s original text in Section 45 states “And it is to be understood that the wife shall not be endowed of Lands or Tenements which her Husband holdeth jointly with another at the Time of his Death: But where he holdeth in common, otherwise it is, as in the cafe next abovesaid.” Coke’s commentary explains, “The reason for this Diversity is, for that the Jointenant which surviveth, claimeth the Land by the Feoffment and by Survivorship, which is above the Title of Dower, and may plead the feoffment made to himself without naming his companion that died … ; But Tenants in Common have several Free-holds and Inheritances, and their moieties shall descend to their Several Heirs; and therefore their Wives shall be indowed.” Id. p. 37b.
6. Id., p. 36b. Another nearly exact copy.
illustration 5. Quincy preceded the last section of his Legis Miscellanea in Quincy “Volume 4” QP58, starting at page [126], supra, with this exhortation to study from Francis Bacon, The Essays or Counsels Civill and Morall (M. Kiernan, ed., 1985), pp. 152‒53. There were many 17th- and 18th-century editions. See R. W. Gilson, Francis Bacon: A Bibliography of His Works … (1950), pp. 3‒58. See also “Introduction,” supra, p. 33. Courtesy, Massachusetts Historical Society.
Page [130]
1. Quincy cites to his own Law Commonplace, where page 25 [30] begins a discussion and specifically mentions “Tenant pur auter vie” (i.e., for the life of another) with a cross-reference to this page of his Legis Miscellenea of Estates in his Volume 4.
2. Citation to Coke on Littleton, p. 42a. Quincy closely copies the entire passage intact.
Page [131]
1. Citation to Quincy’s Law Commonplace, where page 25 [30] begins a discussion of “Estates.” Page 25 [30] specifically mentions “leases for years” with a citation back to this page.
2. An almost exact copy from Coke on Littleton, p. 42a. See page [2], note 1.
3. Citation to Coke Reports (covering 1572–1616), vol. 3, p. 22a, which reports Walker’s Case (1587) and states the principle that “if a man makes an obligation or other contract to pay several sums at several days, he shall not have an action of debt till all the days are past.” The reporter cites to Co. Lit. pp. 47b and 292b. See Notes 5 and 6 infra.
4. Citation to Hawkins’s, Abridgment. See page [8], note 1, supra. Pages 77 and 389 correspond to Coke on Littleton, p. 47b and p. 292b respectively.
5. An almost exact copy from Coke on Littleton, p. 47b.
6. Id. at p. 292b (“But if a Man be bound in a Bond or by Contract to another to pay an hundred Pounds at five several Days, he shall not have an Action of Debt before the Laft Day be past”).
7. Quincy adeptly cites to a relevant provincial law of 1735–36, whereby “when any action shall be brought … on any bond … with penaltys for the payment of sums of money, performance … or things to be done at several times, and the plt recover the forfeiture of such penalty, the court shall enter up judgment for the whole of such forfeiture, and award execution only for so much of the debt or damage as is sustained at that time: so always that the said judgment shall stand as a security to the plt….” See The Acts and Resolves Public and Private of the Province of the Massachusetts Bay, Vol. II (Boston, 1874), p. 755.
* Harvard Law School, 2007, Harvard College, 1997
1. An exchange between the Chief Justice and attorneys Jeremy Gridley and Robert Auchmuty, representing the opposing parties in Banister v. Henderson (1765). Josiah Quincy Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772 (Boston: Little, Brown, 1865), p. 122 (hereafter, “Quincy, Reports”).
2. Ward E. Lattin, “Legal Maxims, and their Use in Statutory Interpretations,” The Georgetown Law Journal, vol. 26, no. 1 (November 1937): p. 10 (hereafter, “Lattin”).
3. See Quincy, Reports, pp. 122–27.
4. The maxims are located on pages 151–56 of Quincy’s fourth volume of Law Reports, comprising the years 1765–1769, and pages 161–63 and 171–83 of volume three (1764–1767). P347, Reel 4, QP 57; P347, Reel 4, QP 58. See Cox Chart, Appendix II, infra, pp. 429–37.
5. See Quincy’s pages 151–56. Pages 157–60 are blank, and pages 161–84 contain miscellaneous notes on the law.
6. See Quincy’s page 161, where an internal cross-reference to volume four of the Law Reports follows the title. One might inquire why the maxims in volume four are presented in this appendix ahead of the maxims in volume three. This originated in an erroneous assumption on my part, but has been retained upon further reflection. The transcription I was working from listed the maxims in this order, as this is the order of the page numbers on which the maxims appeared in the two volumes (i.e., the maxims in volume four occur on pages 151–56, while those in volume three appear on pages 161–63 and 171–83 of that volume). Only upon examining the detailed manuscript roadmap compiled by Kevin Cox did I discover that the maxims appeared in two separate volumes. It is impossible to determine the order in which these three sets of maxims were compiled, although intuitively one would expect Quincy to complete volume three before four. There is an argument to be made that Quincy’s maxims in volume four were his initial project. But, given the increasing complexity of his citation format in volume three, the more simple Roman law maxim pages may have been compiled earlier. Ultimately, I have retained the order of Maxim I, II, and III here despite the fact that this places the volume four maxims ahead of those in volume three.
7. The topical organization of Quincy’s maxims is much looser than that employed in his commonplace book, which was organized with topical headings.
8. For an example of this careful organization and footnoting, see the original manuscript at P347, Reel 4, QP 58, page 151. Just as in a modern print edition, Quincy sometimes allowed his footnotes to extend into the lower part of a subsequent page when space ran short. See, e.g., Id., pp. 151–52.
9. For an example of this variation in script size, see the original manuscript at P347, Reel 4, QP 57, page 171.
10. See, e.g., Quincy’s pages 171—72.
11. See Quincy’s page 181.
12. See, e.g., maxims [2] and [9] on Quincy’s page 171.
13. For the erroneous page citation, see Quincy’s page 171, maxim [6], which references Coke, Institutes, part 2, page 309 rather than page 306. See also the index of maxims, provided toward the end of Coke’s volume, which references the same incorrect page number.
14. See Quincy’s page 153, maxim [3] and its footnote for further discussion.
15. See, e.g., Sir Edward Coke, Reports, part 1 (London, 1727), page 100.b (displaying alphabetical footnotes in the lefthand margins, with references to various reporters using standard abbreviations).
16. Quincy’s extensive use of internal cross-references, primarily to other pages within his collection of maxims, would have provided him with information on an extensive range of topics.
17. See maxim [10] on Quincy’s page 173 and the corresponding footnote, which cites to Coke, Institutes, part 1, page 152.b.
18. See maxim [7] on Quincy’s page 171 and the corresponding footnote.
19. See maxim [7] on Quincy’s page 172 and the corresponding footnote.
20. See maxim [4] on Quincy’s page 162 and the corresponding footnote.
21. For a rough breakdown of themes in Quincy’s maxims, see the table of Themes and Sources in Quincy’s Maxims, infra, pp. 336–38.
22. I primarily relied on a photocopy of the manuscript, but also visited the Massachusetts Historical Society in November 2005 to clarify remaining ambiguities and to undertake a final review of the transcription. I am thankful to the Stephen T. Riley Librarian Peter Drummey and Reference Librarian Kimberly Nusco for their assistance in providing access to the manuscripts.
23. Gregory R. Crane, ed., The Perseus Project, http://www.perseus.tufts.edu. Last accessed 12/1/05.
24. Charlton T. Lewis, An Elementary Latin Dictionary (Oxford University Press, 1981).
25. For example, a maxim translated as, “The more liberal meaning should be preferred for general, or doubtful, statements” might appear to discuss witness testimony or interpretation of charters. However, Quincy’s source for the maxim is a section of Coke’s Reports dealing specifically with actions for slander. See maxim [7] on Quincy’s page 179 and Coke, Reports, part 4, page 15.b.
26. E. Hilton Jackson, Latin for Lawyers (NY: The Lawbook Exchange, 1992) (reprint of 1915 Sweet & Maxwell edition).
27. Deciphering Quincy’s abbreviated references required assistance from Professors Daniel Coquillette and Charles Donahue, the latter of whom explained the older method of citing the Digest, as employed by Quincy in the early pages of Maxim I. For instance, the ff notation used in early Digest citations has its origins in an erroneous reading of what was actually a fanciful uppercase letter D.
28. Lattin, 1, quoting 2 Kent’s Commentaries (1858) sect. 553.
29. Lattin, 2, quoting Co. Litt. (1853) sect. 11.a. As to Professor Dickens’s curriculum, see Daniel R. Coquillette, “Introduction,” supra, pp. 32–33.
30. Daniel R. Coquillette, Francis Bacon (Edinburgh University Press, 1992), 38 (hereafter, “Coquillette”), quoting James Spedding, Robert Leslie Ellis, and Douglas Denon Hearth, The Works of Francis Bacon (London, 1857–1874), VII, p. 321 (hereafter, “Spedding”).
31. Coquillette, p. 38, quoting Spedding, VII, p. 321.
32. See Quincy’s pages 151–152, plus select maxims on pages 153 and 155.
33. See Quincy’s page 153.
34. See Quincy’s page 154.
35. See select maxims on Quincy’s pages 154–55.
36. See Quincy’s page 156 plus select maxims on page 155.
37. Quincy did not begin this separate compilation of maxims for lack of space in his other volume of Law Reports. See final page of the “Maxims of the Civil Law,” Quincy’s page 156, where the lower half of the page remains blank.
38. Note, however, that only the first page, Quincy’s page 161, is entitled “Maxims & Rules of the Law,” while the subsequent two pages are entitled “Maxims, etc.”
39. See Quincy’s pages 161–63.
40. See Coquillette, p. 37, quoting John Dodderidge, The English Lawyer (London, 1631), p. 194 (hereafter, “Dodderidge”).
41. Coquillette, pp. 37—38, quoting Dodderidge, p. 194.
42. Coke on Littleton, p. 11a.
43. Coke on Littleton, p. 11a (punctuation added). First on Coke’s famous list of sources of the common law were “Maxims, Principles, Intendment and Reason of the Common Law, which indeed is the Rule of the Law …” Id.
44. Lattin, 3, quoting Yarmouth v. France, 19 Q.B.D. 647, 653 (1887).
45. See Quincy’s page 174, maxim [9] and corresponding footnote. “Words should be understood in connection with their effect.”
46. See Quincy’s page 176, maxim [1] and corresponding footnote. “Every grant should be interpreted most strongly against the donor.”
47. See Quincy’s page 173, maxim [10] and corresponding footnote. “Deeds performed among others should not cause harm to another.”
48. Coquillette, pp. 41–42.
49. See Quincy’s pages 171, 175, 177, and 182.
50. See Quincy’s pages 174–76 plus select maxims on pages 171, 173, 177, 181, and 182.
51. See select maxims on Quincy’s pages 177, 178, 181, and 183.
52. See select maxims on Quincy’s page 180.
1. These categories overlap considerably (e.g., precedent could be categorized under lawsuits), but represent my best attempt at pinning modern substantive categories on Quincy’s collection of maxims. Some maxims could easily fit within multiple categories, but I have assigned them to only one.
2. These maxims appear to tackle a variety of themes, but their exposition in Coke places them largely within the substantive area of property law.
1. This note cross-references another series of maxims in volume three of Quincy’s Law Reports.
2. This collection of maxims, comprising Quincy’s pages 151–56, is located in volume four of the Law Reports.
3. Another version reads “… spectanda est eius, qui eas protulisset” (emphasis added). Theodor Mommsen, Paul Krueger, eds., Alan Watson, trans., The Digest of Justinian (Philadelphia: University of Pennsylvania Press, 1985), vol. 4, p. 962 (hereafter, “Watson”). Quincy employs an older citation format here but switches to a more modern method for citing Justinian’s Digest on page 153, maxim [2]. Quincy’s l is shorthand for lex, and ff is a reference to the Digest. De Reg. Jur. identifies the chapter heading. This same maxim is quoted in a footnote in Thomas Wood, New Institute of the Imperial or Civil Law (1st edition, 1704), p. 58 (hereafter, “Wood”), which corresponds with the text footnoted by Quincy on this page. Quincy’s page number was confirmed by reference to Wood’s 1730 London edition. Quincy uses the + sign preceding this maxim to reference the footnoted text. For further bibliographical information on Wood, see W. Harold Maxwell and Leslie F. Maxwell, Legal Bibliography of the British Commonwealth of Nations, vol. 1 (London: Sweet & Maxwell, 1955), p. 613 (hereafter, “Maxwell”).
4. In the manuscript, the word “Design” appears, underscored, above voluntas.
5. Quincy’s citation is not entirely legible. An examination of the original manuscript did not clarify this. Also, one might expect a plural verb form in place of “habet.”
6. The word est is inserted with a caret above durum.
7. Quincy abbreviates Aequitatisque, and the letter C refers to Justinian’s Code.
8. In the manuscript, minus appears directly below non. The maxim continues on page 152. A line is scored across the entire page before Quincy inserts a footnote.
9. Quincy leaves out a couple of phrases between “Rule” and “appears”. Cf. Wood, p. 58.
10. Aside from some minor alterations, Quincy has been almost entirely loyal to Wood’s text, even capitalizing most of the same words. Cf. Wood, p. 58.
11. Quincy abbreviates “which”, and the underscoring is his.
12. The quote continues toward the bottom of page 152.
1. Justinian’s Digest 50.17.96 (hereafter abbreviated as D) (De diversis regulis iuris antique). See Watson, vol. 4, p. 962.
2. D.1.3.18 (De legibus senatusque consultis et longa consuetuedine). See Watson, vol. 1, p. 12. An alternative meaning for voluntas is “intention.” See, e.g., Watson, vol. 1, p. 12 (defining voluntas as “intendment”), and S. S. Peloubet, A Collection of Legal Maxims in Law and Equity, with English Translations (Colorado: Fred B. Rothman & Co., 1985), p. 22 (reprint of 1884 edition) (hereafter, “Peloubet”).
3. D.1.3.17 (De legibus senatusque consultis et longa consuetuedine). See Watson, vol. 1, p. 12.
4. D.27.1.13.2 (De excusationibus). See Watson, vol. 2, p. 786. Watson translates this, “if a literal reading of the legislation produces this meaning, nevertheless, the legislator intended a different meaning.” Watson, vol. 2, p. 786. The maxim essentially captures the divide between legislative intent and a technical reading of the law.
5. D.40.9.12.1 (Qui et a quibus manumissi liberi non fiunt et ad legem aeliam sentiam). See Watson, vol. 3, p. 471. Watson translates the latter portion of the maxim, “but it is the express provision of the law.” Watson, vol. 3, p. 471.
6. Justinian’s Code 3.1.8 (hereafter abbreviated as C) (De iudiciis). See S. P. Scott, trans., The Civil Law (Cincinnati: The Central Trust Company, 1932), vol. 12, p. 258. Scott, conforming to modern usage, translates the closing phrase as “strict rule of law.” Scott, vol. 12, p. 259.
7. D.39.3.2.5 (De aqua et aquae pluviae arcendae). See Watson, vol. 3, 397. Watson translates the latter part as “… even though we may lack a clear legal right.” Watson, vol. 3, p. 397.
8. D.50.17.192 (De diversis regulis iuris antique). See Watson, vol. 4, p. 968. Quincy erroneously cites to p. 191.
Thomas Woods, A New Institute of the Imperial or Civil Law (2nd ed., London, 1712). See pages 340, 342, note 3; Maxwell, p. 613. Courtesy, Coquillette Rare Book Room, Boston College Law School.
1. Here and in the maxim below, an abbreviation for eadem.
2. Quincy inserted a circled x to reference a footnote below, which is labeled here with a ®.
3. Quincy crossed out the final letter and inserted e above with a carat.
4. An alternative spelling is quotiens. See, e.g., Watson, vol. 4, p. 961.
5. Some versions of the Digest read excipiatur. See, e.g., Watson, vol. 4, p. 961.
6. Following this word, Quincy has crossed out a phrase.
7. See page 151 for the first half of this quote from Wood’s Civil Law, p. 58.
8. Quincy has made some minor alterations to Wood’s text. Cf. Wood, p. 72.
9. Here and in the line below, Quincy’s abbreviation for “should.”
10. A faithful quote, with the exception of Quincy adding the word “But” to the beginning. Cf. Wood, p. 72.
11. See page 153 for remainder of this quote.
1. D.50.17.56 (De diversis regulis iuris antique). See Watson, vol. 4, p. 960.
2. D.50.17.168 (De diversis regulis iuris antique). See Watson, vol. 4, p. 967. An alternative translation is “The occasion of offering a mild reply.” Watson, vol. 4, p. 967.
3. D.1.3.19 (De legibus senatusque consultis et longa consuetuedine). See Watson, vol. 1, p. 13. Alternative translations for “is without fault” include “is consonant with equity” or “avoids an absurdity,” and “will of the law” may be translated as “spirit of the law” or “intendment of the act”. E. Hilton Jackson, Latin for Lawyers (New York: The Lawbook Exchange, 1992) (reprint of 1915 Sweet & Maxwell edition), p. 168 (hereafter, “Latin for Lawyers”); Watson, vol. 1, p. 13.
4. D.50.17.67 (De diversis regulis iuris antique). See Watson, vol. 4, p. 961 Alternative translations of the closing phrase include “for effecting the proposed end” or “to the conduct of the affair.” Latin for Lawyers, 235; Watson, vol. 4, p. 961.
5. D.1.3.24 (De legibus senatusque consultis et longa consuetuedine). See Watson, vol. 1, p. 13.
6. D.1.3.25 (De legibus senatusque consultis et longa consuetuedine). See Watson, vol. 1, p. 13. Watson translates this complex maxim as, “It is not allowable under any principle of law or generous maxim of equity that measures introduced favorably to men’s interests should be extended by us through a sterner mode of interpretation on the side of severity and against those very interests.” Watson, vol. 1, p. 13.
7. Wood, p. 58. Wood quotes the same maxim as Quincy (i.e., “In ambiguis orationibus …”), noting that “This Rule is found in the Roman Law, that in ambiguous Expressions we must chiefly consider the Intention of him that speaks.” Ibid.
8. Continues toward the bottom of Quincy’s page 153.
This is Arnold Vinnius’s commentary on Justinian’s Institutes. See “Introduction,” supra, pp. 31–32. See also John Adams’s diary for Sunday, October 5th, 1758. John Adams, Diary, vol. 1 (L. H. Butterfield, ed., 1964), pp. 44–46. Courtesy, Coquillette Rare Book Room, Boston College Law School. See Coquillette, Anglo-American Legal Heritage, supra, p. 34.
1. An alternative spelling is poenis. See, e.g., Watson, vol. 4, p. 849.
2. Quincy leaves a couple of blank lines between this maxim and the following.
3. Quincy records the same maxim, with slight variation, on page 181, maxim [7], but cites there to Coke on Littleton instead of the Digest.
4. Quincy’s word order is unusual. Other versions of the text read “receptum est, non est producendum” and “receptum, non est producendum”. For examples of the former, see Watson, vol. 4, p. 965, and Latin for Lawyers, p. 231. For the latter, see Peloubet, p. 253.
5. Another version reads quidquid. Watson, vol. 4, p. 960.
6. Quincy appears to have written apparet. The expected word is apparuit. See, e.g., Watson, vol. 4, p. 960.
7. Quincy clearly wrote “is” here, but presumably he intended “as”.
1. Quincy provides no reference, but this is from D.48.19.11 (De poenis). See Watson, vol. 4, p. 849. Watson translates this, “… with more serious penalties they should conform to the severity of the statutes, tempered by kindliness.” Watson, vol. 4, p. 849.
2. D.1.3.20 (De legibus senatusque consultis et longa consuetudine). See Watson, vol. 1, p. 13.
3. Quincy cites to D.9.2.51.2 (Ad legem aquiliam), which reads, in relevant part, “. . . multa autem iure civili contra rationem disputandi pro utilitate communi recepta esse innumerabilibus rebus probari potest…”, and which Watson translates “Indeed, it can be proved by innumerable examples that the civil law has accepted things for the general good that do not accord with pure logic.” Watson, vol. 1, p. 292. Apparently Quincy was not referencing a copy of Justinian but was instead getting his maxims (and citations to them) from another source. Here, Quincy may have been referencing Coke on Littleton, which reads, “Multa in iure communi contra rationem disputandi pro communi utilitate introducta sunt.” Sir Edward Coke, First Part of the Institutes of the Lawes of England: or, Commentarie upon Littleton (1st edition, London, 1628), p. 70 (hereafter, “Coke, Institutes, part 1”). For further bibliographical information on Coke, see Maxwell, p. 449.
4. D.50.17.141 (De diversis regulis iuris antique). See Watson, vol. 4, p. 965. An alternative translation of the closing phrase is “advanced to a precedent.” Latin for Lawyers, p. 231.
5. D.1.3.23 (De legibus senatusque consultis et longa consuetudine). See Watson, vol. 1, p. 13.
6. D.50.17.48 (De diversis regulis iuris antique). See Watson, vol. 4, p. 960. Watson translates this as, “Anything said or done in the heat of anger is not endorsed unless it appears from perseverance that it was a deliberate intention.” Watson, vol. 4, p. 960.
7. Wood, p. 72.
1. Another version reads habebitur. See Paul Krueger, Corpus Iuris Civilis (Berlin, 1959), vol. 2, p. 179 (hereafter, “Krueger”).
2. Quincy has left a blank line between this maxim and the next.
3. The second n in significarent was inserted in superscript with a caret.
4. Although Quincy clearly wrote valet here, the expected verb is valeat. See, e.g., Watson, vol. 3, p. 3.
5. Quincy apparently wrote id twice but crossed out the first.
6. Quincy offers an abridged version of the cited Digest text, which Watson quotes, in relevant part, as “magis heredi parcendum est” (emphasis added). Watson, vol. 3, p. 48. Peloubet, however, presents the same wording as Quincy. Peloubet, p. 93. It is therefore conceivable that Quincy’s source also phrased it this way. In other words, Quincy may not have been abridging the Digest directly but instead quoting from an already-abridged source. A blank line appears between this maxim and the following.
7. Quincy abbreviates uniuscuiusque. The Watson version of this maxim reads, “uniuscuiusque enim contractus initium spectandum et causam” (emphasis added), but the Peloubet version matches that of Quincy. Watson, vol. 2, p. 481; Peloubet, p. 300.
8. Abbreviation for cuiusque.
1. C.4.44.1 (De rescindenda venditione). See Krueger, vol. 2, p. 179 for Latin text. An alternative translation is “the sale will not be valid, because it was not made in good faith.” Scott, vol. 13, p. 100.
2. D.34.8.2 (De his quae pro non scriptis habentur). See Watson, vol. 3, p. 177.
3. D.30.1.12.3 (De legatis et fideicommissis). See Watson, vol. 3, 3. An alternative translation of voluntas is “intention,” and testamento may be translated as “will.” Watson, vol. 3, p. 3; Latin for Lawyers, p. 255.
4. D.34.5.24 (De rebus dubiis). See Watson, vol. 3, p. 175. Watson translates this as, “Where a testamentary provision is either ambiguous or incorrectly drafted, it should be interpreted generously, and any credible intention on the testator’s part should be credited.” Watson, vol. 3, p. 175.
5. This maxim appears to be from D.32.69 (De legatis et fideicommissis), not D.30.1.4 as cited by Quincy. See Watson, vol. 3, p. 92.
6. D.31.47 (De legatis et fideicommissis). See Watson, vol. 3, p. 48. “Much is to be overlooked in an heir” and “it is better to deal lightly with the heir” are two alternative translations. Peloubet, p. 93; Watson, vol. 3, p. 48.
7. D.17.1.8 (Mandati vel contra). See Watson, vol. 2, p. 481. For causa, alternative translations include “cause” and “factors lying behind it.” Peloubet, p. 300; Watson, vol. 2, p. 481.
8. D.1.2.1 (De origine iuris et omnium magistratuum et successione prudentium). See Watson, vol. 1, p. 3.
9. D.50.17.114 (De diversis regulis iuris antique). See Watson, vol. 4, p. 963. Alternative translations of the closing phrase include “what is generally done” and “what usually happens.” Peloubet, p. 111; Watson, vol. 4, p. 963.
10. D.50.16.219 (De verborum significatione). See Watson, vol. 4, p. 952. An alternative translation for voluntatem is “intention.” Watson, vol. 4, p. 952.
Justinian, Corpus Juris Civilis, Amsterdam, 1681, containing the Digest. Courtesy, Coquillette Rare Book Room, Boston College Law School. Continental editions of this type were regularly found in colonial libraries. See, for example, The Printed Catalogues of the Harvard College Library (W. H. Bond, H. Amory, eds., Boston, 1996), pp. A9, A10, A19 (1723 Catalogue); p. B15 (1773 Catalogue).
1. While the Peloubet version matches that of Quincy, the Watson text reads vel debet esse. Peloubet, p. 243; Watson, vol. 4, p. 958.
2. The Watson version reads licere. Watson, vol. 1, p. 131.
3. The word “Design” is written interlineally above Consilio. For the same insertion, see Quincy page 151, Maxim [2].
4. Quincy may have misquoted his source here, as the expected word is desideratur. See, e.g., Peloubet, p. 86, and Watson, vol. 4, p. 961. Also, an alternative spelling of duntaxat is dumtaxat. See, e.g., Watson, vol. 4, p. 961.
5. This appears to be a summary of the Digest text, which reads “Iulianus autem cavendum non putat, sed aestimandum fundum, quanti valet sine hac cautione, hoc est quanti vendere potest sine cautione …” Watson, vol. 3, p. 227. However, Quincy probably did not abridge this maxim himself, as the sentence appears to have been in common usage. Regarding the relevance of this phrase to medieval commerce, see George O’Brien, An Essay on Mediaeval Economic Teaching (Kitchener, Ontario: Batoche, 2001) (first published in London, 1920) (citing Lessius, De Justitia et Jure, xxi. 19).
6. This is an abridgement of a longer sentence in Justinian’s Code. See Krueger, vol. 2, p. 315. A superscript “x” preceding this maxim corresponds with footnoted text, separated from the main body of maxims by a line across the page.
7. The Watson version of this Digest quote reads “satius enim esse impunitum” (emphasis added). Watson, vol. 4, p. 846.
8. Other versions of this Digest excerpt read “In maleficio ratihabitio mandato comparatur” (emphasis added). Watson, vol. 4, p. 965; R. S. Vasan, ed., Latin Words & Phrases for Lawyers (Ontario: D. S. Sodhi for Law and Business Publications, 1980), p. 114 (hereafter, “Vasan”).
1. D.50.17.116.2 (De diversis regulis iuris antique). See Watson, vol. 4, p. 963.
2. D.50.17.145 (De diversis regulis iuris antique). See Watson, vol. 4, p. 965.
3. D.50.17.19 (De diversis regulis iuris antique). See Watson, vol. 4, p. 958.
4. D.4.4.16.4 (De minoribus viginti quinque annis). See Watson, vol. 1, p. 131.
5. Quincy provides no reference, but this appears to be D.50.17.79 (De diversis regulis iuris antique). See Watson, vol. 4, p. 961. Watson translates this as, “In the civil law, the interpretation of fraud is sought not only on the basis of the outcome but also on the basis of the intention.” Watson, vol. 4, p. 961.
6. D.36.1.1.16 (Ad senatus consultum trebellianum). See Watson, vol. 3, p. 227.
7. C.7.45.13 (De sententiis et interlocutionibus omnium iudicum). See Krueger, vol. 2, p. 315 for Latin text and Scott, vol. 14, p. 187 for English translation. The Krueger version of this text, unlike that of Quincy, ends with est, which combined with the gerundive judicandum would result in the passive periphrastic, implying “must” or “should.” See Krueger, vol. 2, p. 315.
8. Watson translates this as “crime of a guilty man.” Watson, vol. 4, p. 846.
9. D.48.19.5 (De poenis). See Watson, vol. 4, p. 846.
10. An alternative translation is “intention.” Latin for Lawyers, 171; Watson, vol. 4, p. 821.
11. D.48.8.14 (Ad legem corneliam de sicariis et veneficis). See Watson, vol. 4, p. 821.
12. D.50.17.152.2 (De diversis regulis iuris antique). See Watson, vol. 4, p. 965.
13. Wood, 295. The relevant text reads, “But when he judges, it ought to be according to Law and Custom, not by Precedents or Examples; for he must not consider what is done at Rome, but what ought to be done there.”
This is the Frontispiece of Arnoldus Vinnius (1588‒1657) Partitionum Juris Civilis Libri IV (Rotterdam, 1664). The figure on the left represents the Emperor Justinian. On the right is a modern sovereign, possibly the Holy Roman Emperor. Below is a picture of the modern sovereign with his legal counselors, his judges or jurists. Note this Roman law treatise was published in Holland in 1664. The Dutch still have a civil law system. South Africa, a former Dutch colony, has been remarkably influenced by Roman law. Courtesy, Coquillette Rare Book Room, Boston College Law School. See Coquillette, Anglo-American Legal Heritage, supra, p. 12.
1. The latter half of the page is blank.
2. Quincy appears to have written Paenae here, although a more common spelling would be Poenae. See also Quincy’s spelling of paenalibus in the next maxim. The spelling differences are inconsequential, as paenitere, or cause to repent, is related to poena, or punishment. Also, Quincy writes moliendae and exasperandae, while Watson’s version reads molliendae and asperandae. Watson, vol. 4, p. 854.
3. Both the Watson and Latin for Lawyers versions end with the word est. Watson, vol. 4, p. 966; Latin for Lawyers, p. 172.
4. Both Quincy and Latin for Lawyers write nunquam, but Watson uses numquam. Latin for Lawyers, p. 211; Watson, vol. 4, p. 965.
5. Watson version reads quotiens nimium. Watson, vol. 4, p. 850.
6. A word has been blackened out between exemplo and Opus.
1. D.48.19.42 (De poenis). See Watson, vol. 4, p. 854.
2. D.50.17.155.2 (De diversis regulis iuris antique). See Watson, vol. 4, p. 966. Watson translates this as, “In penal cases, the milder interpretation is to be adopted.” Watson, vol. 4, p. 966.
3. Quincy provides no reference, but this appears to be D.50.17.138 (De diversis regulis iuris antique). See Watson, vol. 4, p. 965. Latin for Lawyers translates the latter part of the maxim as “is never increased by a later fact.” Latin for Lawyers, p. 211.
4. D.48.19.16.10 (De Poenis). See Watson, vol. 4, p. 850.
1. This collection of maxims, comprising Quincy’s pages 161–163, is located within volume three of the Law Reports.
2. The expected spelling is decipitur. See, e.g., Sir Edward Coke, Second Part of the Institutes of the Lawes of England; containing the exposition of many ancient and other Statutes (1st edition, London, 1642), p. 56 (hereafter, “Coke, Institutes, part 2”); Latin for Lawyers, p. 183. For further bibliographical information on Coke, see Maxwell, p. 546.
3. Quincy dropped a couple of minims, as the expected word is iniquius. Coke, Institutes, part 2, p. 56.
4. The original version reads “Justice must have three qualities, it must be Libera, quia nihil …” Coke, Institutes, part 2, p. 56.
5. The expected word is dilationes. See, e.g., Coke, Institutes, part 2, p. 240; Latin for Lawyers, p. 183. The two words are related. Cf. dilatio, or “delay”, and dilator, or “one who delays”.
6. Quincy leaves out the word potest here. See Coke, Institutes, part 2, p. 380.
1. Coke, Institutes, part 2, p. 56 (Magna Charta, ch. 29), p. 256 (Confirmationes chartarum de libertatibus Angliae & Forestae, ch. 1). The entirety of the maxim, as quoted by Quincy, is found on page 56, while the words “Lex est tutissima cassis,” but not the remainder of the maxim, may also be found on page 526.
2. Coke, Institutes, part 2, p. 56 (Magna Charta, ch. 29). An alternative translation for the opening phrase is “Justice ought to be unbought, because nothing is more hateful than venal justice.” Latin for Lawyers, p. 180.
3. Coke, Institutes, part 2, p. 184 (Statutum de Westminster primer, ch. 15).
4. Coke, Institutes, part 2, p. 187 (Statutum de Westminster primer, ch. 15) (quoting Bracton). The same translation is offered in Latin for Lawyers, p. 201.
5. Coke, Institutes, part 2, p. 208 (Statutum de Westminster primer, ch. 25). An alternative translation is, “During a litigation nothing new should be introduced.” Latin for Lawyers, p. 218.
6. Coke, Institutes, part 2, p. 240 (Statutum de Westminster primer, ch. 40).
7. Coke, Institutes, part 2, p. 374 (Statutum de Westminster secundo, ch. 9).
8. Coke, Institutes, part 2, p. 380 (Statutum de Westminster secundo, ch. 11). In other words, an issue on record may not be put to a jury.
9. Coke, Institutes, part 2, p. 391 (Statutum de Westminster secundo, ch. 16).
10. Coke, Institutes, part 2, p. 533 (Statutum de Tallagio non concedendo, ch. 1). An alternative translation is, “Where the language is plain (as in a statute or a deed), no explanation of them is required.” Vasan, p. 19.
11. Coke, Institutes, part 2, p. 689 (An Exposition upon the Statute of Offices, ch. 1).
The first page (p. 161) of Quincy’s maxim collection in volume three of the Law Reports, P347, Reel 4, QP 57. See Cox Chart, Appendix II, infra. The page, which is entitled “Maxims & Rules of the Law,” is cross-referenced to Quincy’s compilation of Roman law maxims in volume four. As with the Roman law maxims, this collection was written in an even hand and does not present significant evidence of later insertions of additional maxims or citations. My thanks to Elizabeth Papp Kamali.
12. Sir Anthony Fitzherbert, New Natura Brevium; with a table of the most material things contained therein, composed by William Rastall, [also] the Authorities in Law (1st French edition, 1534 and 1537; 1st English edition, 1652), p. 452 (hereafter, “Fitzherbert, New Natura Brevium”). The page number provided by Quincy was confirmed against Fitzherbert’s 7th edition (London, 1730), which includes a commentary by the Lord Chief Justice Hale. The text quoted by Quincy appears in a footnote. For further bibliographical information on Fitzherbert, see Maxwell, p. 269.
13. William Salkeld, Reports of Cases in the Court of King’s Bench, with some special cases in the Courts of Chancery, Common Pleas and Exchequer, alphabetically digested under proper heads, from the 1st of William and Mary to the 10th of Anne [1689–1712] (1st edition, 1717), vol. 1, p. 129 (Pottet v. Pearson) (hereafter, “Salkeld”). The page number provided by Quincy was confirmed with reference to Salkeld’s 3rd edition (London, 1731–1732). For further bibliographical information on Salkeld, see Maxwell, p. 308. Quincy also references Salkeld, vol. 1, p. 24 (Harrison’s Case), in which it is stated regarding a promise to marry, if “the Woman’s Promise does not bind, the Man’s Promise is but nudum pactum, and therefore it is not actionable either on both Sides or on neither Side.”
1. Quincy may have initially misspelled quaesiveris, as it is written interlineally above a crossed-out word.
2. Quincy has inserted “supreme” interlineally above “& … than” with a caret.
3. Coke writes negantem principia. Coke, Institutes, part 1, p. 343.a.
4. William Nelson, Lex Testamentaria; or, System of the Laws of England, as well before the Statute of Henry VIII as since, concerning Last Wills and Testaments (1st edition, 1714), pp. 53–57 (hereafter, “Nelson”). The page number provided by Quincy was confirmed against Nelson’s second edition, published in London in 1724. For further bibliographical information on Nelson, see Maxwell, p. 493. As indicated by Quincy, these pages of Nelson’s text offer exceptions to the rule that a personal action dies with the person. For instance, Nelson notes, “most actions which Arise by Contract, as Debt, Covenant, &c. an Executor might maintain at Common Law after the death of his Testator.” Nelson, pp. 53–54.
1. Sir Edward Coke, Reports, part 3 (1st French edition, 1602; 1st English edition, 1658), p. 40.a (Ratcliff’s Case) (hereafter, “Coke, Reports, part 3”). For further bibliographical information, see Maxwell, pp. 295–96. This maxim anticipates Kantian categorical imperatives, which are incapable of proof.
2. Coke, Institutes, part 1, p. 343.a (ch. XI, Of Discontinuance, Sec. 648). Although the maxim is not quoted therein, Quincy also cites to page 16.a (relevance not apparent) and page 232.b (Ch. 5, Of Estates upon Condition, Sect. 377), discussing the idea of legitima ratio, and the simultaneous avoidance of “new inventions” in the law.
3. Salkeld, vol. 1, p. 200 (Groenvelt v. Burwell).
4. Nelson, pp. 53–57. The same translation is offered in Peloubet, p. 5.
5. Sir Edward Coke, Reports, part 4 (1st French edition, 1604; 1st English edition, 1658), p. 71.b (Hynde’s Case) (hereafter, “Coke, Reports, part 4”). For further bibliographical information, see Maxwell, pp. 295–96.
6. John Lilly, Practical Register; or, General Abridgment of the Law, as practiced in the courts of Chancery, King’s Bench, Common Pleas, and Exchequer, with rules of Court, vol. 1 (1st edition, London, 1719), p. 559. For further bibliographical information, see Maxwell, p. 273. The page number corresponds with the 1719 edition, which defines “exception” as “… a Thing taken out of the Deed … as if no Mention had been made of it in the Deed.” Id.
7. Matthew Bacon, New Abridgement of the Law, vol. 4 (1st edition, 1759), p. 287 (hereafter, “Bacon, Abridgment”). The first edition of Bacon’s five-volume abridgement was published in installments between 1736 and 1766. For further bibliographical information, see Maxwell, 16. The quoted text is within the section entitled “Release” and the subsection discussing “Claims and Demands, what are released thereby.”
1. A letter has been crossed out at the end of expositio.
2. Unlike elsewhere in the manuscript, Quincy has identified the specific edition referenced here.
1. Edmund Plowden, Commentaries or Reports: Divers Cases upon matters of Law, [1550–80]; written in French, now translated, [with his] Quaeries rendered into English (1st English edition, London, 1761), p. 288 (Chapman v. Dalton). The commentaries were first published in French in 1579 in two parts, respectively entitled Les Comentaires, ou les Reportes, de dyuers cases esteantes matters en ley, en les temps des raygnes le Roye Edwarde le size, le Roigne Mary, le Roy and Roigne Phillipp and Mary and le Roigne Elizabeth [1550–1771] and Certeyne Cases Reportes, puis le primier imprimier de ses Commentaries, & ore a le seconde imprimier de dites Commentaries, a ces addes [1571–80. With “Un Report del part de vn argument del Plowden.”] in 1579. For further bibliographical information, see Maxwell, pp. 306–07. The Latin maxim is footnoted in the left-hand margin of the 1761 edition, while Plowden explains in the main text, “he is a bad Expositor that destroys the text.”
2. Quincy provides no reference, but this is from D.1.3.20 (De legibus senatusque consultis et longa consuetudine). See Watson, vol. 1, p. 13. An alternative translation is, “It is not possible to find an underlying reason for everything which was settled by our forebears.” Watson, vol. 1, p. 13.
1. This collection of maxims, comprising Quincy’s pages 171–83, is located in volume four of the Law Reports.
2. Below this text, Quincy has crossed out a maxim.
3. Quincy has drawn an arrow from utere to a small box directly below. The Sic utere maxim may have been written down at a later time, as Quincy appears to have squeezed it in between two other maxims.
4. Preceding vid is a small box, similar to the one below utere in maxim [2], attached to an arrow pointing toward vid. The boxes and arrows may have served a footnoting function here.
5. This number and the word preceding it are not entirely legible. A superscript b preceding this maxim corresponds to a footnote in the left-hand margin reading, “bDr: & S/Diag 1/C1./7 Rep. 12. 13.”
6. A superscript c preceding this maxim corresponds with a footnote referencing “c1 Inst 97.b./152 b/258.b.”
7. Quincy may have omitted an ampersand here. Cf. Coke, Institutes, part 1, p. 56.a.
8. Quincy incorrectly cites to page 309. See Coke, Institutes, part 2, p. 306, where the maxim reads, “Quia quando lex aliquid concedit, concedere videtur & id, per quod devenitur ad illud.”
9. A superscript d preceding this maxim corresponds with a footnote referencing, “d1 Inst/56.a./2 Inst. 423/424./501.”
10. A superscript e preceding this maxim corresponds with a footnote reading, “eInst./155.a.” Also, a cross mark following the maxim corresponds with a marginal footnote reading “vid/p 175/max.7.”
11. Although Quincy cites to page 73, the maxim is actually quoted on page 75. Coke, Fourth Part of the Institutes of the Laws of England; concerning the Jurisdiction of Courts (1st edition, 1644), p. 75 (hereafter, “Coke, Institutes, part 4”). For further bibliographical information, see Maxwell, p. 258.
12. Below “positive law,” Quincy has squeezed in a reference to “Nelson’s Lex Test: 10.80.”
13. A superscript f preceding this maxim corresponds with a footnote in the lefthand margin that appears to read, “f1 Inst/62.a./140.a/141.a/2 Inst 664.”
14. This maxim was inserted at a later time, as Quincy has squeezed it in interlineally between maxims [8] and [10].
15. Coke’s version reads, “Et ad proximum antecedens fiat relatio nisi impediatur sententia.” See Sir Edward Coke, Reports, part 2 (1st French edition, 1602; 1st English edition, 1658), p. 71 (hereafter, “Coke, Reports, part 2”). For further bibliographical information, see Maxwell, pp. 295–96.
16. The phrase aut expressa is missing from the original. See, e.g., Sir Edward Coke, Reports, part 8 (1st French edition, 1611; 1st English edition, 1658), pp. 118.b, 154.b (hereafter, “Coke, Reports, part 8”). For further bibliographical information, see Maxwell, p. 296.
17. In the lefthand margin Quincy has written a reference to “8 Rep 154” followed by the words “and another Rule. Ibid.” He has drawn a line separating “and another Rule” from the maxim itself. The other rule referred to by Quincy may be, “Quando carta continent generalem clausulam, posteaque descendit ad verba specialia, quae clausulae generali sunt consentanea, interpretanda est carta secundum verba specialia.” Coke, Reports, part 8, p. 154.b. Coke translates this roughly, “where a Deed speaks by general Words, and afterwards descends to special Words, if the special Words agree to the general Words, the Deed shall be intended according to the special Words.” Id.
1. “1 Bul. 138” likely refers to Edward Bulstrode, Reports in King’s Bench, 1609–26, vol. 1 (1st edition, 1657–59), p. 138 (hereafter, “Bulstrode,” Reports, vol. 1), but neither this maxim nor any apparently related text appears on that page in the 1657 or 1688 editions; perhaps Quincy consulted another edition with different pagination. For further bibliographical information on Bulstrode, see Maxwell, 294. Quincy also cites to Salkeld, vol. 1, p. 20 (Ashby v. White).
2. Salkeld, vol. 1, p. 22 (Tenant v. Golding). This maxim, often invoked in modern environmental cases, was made famous by Coke in William Aldred’s Case, Coke Reports, vol. 9, p. 57b. See Id., pp. 58b–59a. See also Daniel R. Coquillette, “Mosses from an Old Manse, Another Look at Some Historic Property Cases about the Environment,” 64 Cornell L. Rev., 761 (1979), p. 776.
3. Coke, Reports, part 2, p. 75 (Le Seignior Cromwel’s Case).
4. Sir Edward Coke, Reports, part 7 (1st French edition, 1608; 1st English edition, 1658), p. 13.b (Calvin’s Case) (hereafter, “Coke, Reports, part 7”). For further bibliographical information, see Maxwell, p. 296. Quincy also cites to Sir Henry Hobart, Reports in the reign of James I with some few cases in the reign of Queen Elizabeth, [King’s Bench, 1603–25] (1st edition, 1641). The page number was confirmed by referencing the 1724 London edition. For further bibliographical information on Hobart, see Maxwell, p. 301. In a marginal footnote, Quincy also references Saint German and an additional page in Coke for this proposition. See Christopher Saint German, Dialogus de Fundamentis Legum Angliae et de Conscientia (1st Latin edition, 1528, 1st English edition, 1530) (hereafter, “Saint German, Doctor and Student”), pp. 3–5 (The First Dialogue, Chapter 1, Of the Law Eternal) (not quoting the maxim but discussing “the Law Eternal” and the “Law of Nature”, which “is never changeable”). The page number was confirmed with reference to the 1721 London edition. For further bibliographical information on Saint German’s Doctor and Student, see Maxwell, pp. 24–25. For Quincy’s final citation, see Coke, Reports, part 7, p. 12.b (Calvin’s Case), which says, “the Law of Nature is immutable.”
5. Coke, Institutes, part 1, p. 152.b (Ch. 12, Of Rents, Sect. 231). In a marginal footnote, Quincy also cites to Coke, Institutes, part 1, p. 97.b (Ch. 6, Of Frankalmoigne, Sect. 138) (discussing how it is better to tolerate “a mischief that is peculiar to one” than “an inconvenience that may prejudice many”), and p. 258.b (Ch. 7, Of Continual Claim, Sect. 434) (containing a related maxim, “Nihil quod est inconveniens est licitum.”).
6. Coke, Institutes, part 1, p. 56.a (Ch. 7, Of Tenant at Will, Sect. 68). Quincy also cites to Coke, Institutes, part 2, p. 309, although the maxim (similarly phrased) appears a few pages earlier on page 306 (Statutum de Glocester, Ch. 5). This error may provide a clue as to the source of Quincy’s citations, as Coke includes an index of maxims toward the end of the volume which incorrectly lists this maxim as on page 309. Quincy may have used this list rather than consulting the actual page containing the maxim. Providing many references for this maxim, Quincy continues with Coke, Institutes, part 4, p. 111 (Ch. 11, The Court of Exchequer); Coke, Reports, part 3, p. 12 (Harbert’s Case) (not quoting the maxim, but discussing how, given the fact that only land was subject to execution for debt of a common person at common law, in action of debt against an heir, “if he should not have Execution of the Land against the Heir, he could have no Fruit of his Action”); Sir Edward Coke, Reports, part 11 (1st French edition, 1615; 1st English edition, 1658) (hereafter, “Coke, Reports, vol. 11”), p. 52.a (Richard Liford’s Case) (containing similarly phrased maxim). For further bibliographical information on Coke’s eleventh volume of Reports, see Maxwell, p. 296. Quincy also cites to page 47 of Coke’s third edition of reports, but this maxim does not appear to be discussed there. In a marginal footnote, Quincy includes references to Coke, Institutes, part 1, p. 56.a (Ch. 8, Of Tenant at Will, Sect. 68) (actually quoting the maxim); Coke, Institutes, part 2, pp. 423–24 (Statutum de Westminster Secundo, Ch. 30) (discussing nisi prius, and indicating that “this branch giving to the justices of nisi prius power to give judgment, they have thereby power includedly, as incident, given to award execution”), p. 501 (Statutum de Westminster 3, Ch. 1) (discussing quia emptores and indicating that the “generall words of this act take not away necessary incidents,” and that, although capitalis dominus is singular in designation, it connotes “the next immediate lord, and so by degree upwards to every lord paramount”). Additionally, Quincy includes an internal reference to maxim [7] on page 175, which reads, “Communis error facit jus”.
7. Coke, Institutes, part 2, p. 18 (Magna Charta, Ch. 7), p. 228 (Statutum de Westminster Primer, Ch. 34) (discussing causes of action for slander), p. 282 (Statutum de Glocester) (quoting similar maxim, “Optimus interpres rerum usus” and indicating that “ancient charters … ought to be construed, as the law was taken when the charter was made, and according to ancient allowance.”); Coke, Institutes, part 4, p. 75 (Ch. 7, The Court of Kings Bench). In a marginal note, Quincy cites to “Inst. 155a”, presumably Coke, Institutes, part 1, p. 155.a (but relevance of discussion there of novel disseisin is not apparent); I consulted the original manuscript to confirm that no volume number was provided.
8. Nelson, 10, p. 80. Nelson, after expounding on the tension between lords and prelates over the distribution of intestate property, discusses a growing Church custom in the 13th century that the Church receive one-third of an intestate’s goods. See Nelson, pp. 6–10. On the latter page cited by Quincy, Nelson writes, “To me it seems plain, that Custom hath obtained against this positive law, and therefore I shall not enlarge upon it”. Nelson, p. 80. This comment refers to the practice of granting Commissions of Review, in contravention of a statute reading, “the sentence of the Delegates shall be definitive, and no farther Appeal shall be had.” Id. Nelson traces this practice back to the time of papal supremacy, when the Pope “dispensed with human Laws in all Cases which he was pleased to call Spiritual.” Id., p. 79.
9. Coke, Institutes, part 1, p. 141.a (Ch. 11, Of Villenage, Sect. 212). Quincy’s reference to “Lit 212” likely refers to section 212 of this text; such section designations have not been included elsewhere in the maxims. Quincy also cites to Coke, Institutes, part 4, p. 274. Furthermore, in a marginal note, Quincy adds citations to Coke, Institutes, part 1, p. 62.a (Ch. 10, Of Tenant per le Verge, Sect. 80) (indicating that even a long-held custom, if it goes against reason, “is of no force in law”), p. 140.a (Ch. 11, Of Villenage, Sect. 209) (quoting a related maxim that “all customes and prescriptions that be against reason are voyd.”), p. 141.a (Ch. 11, Of Villenage, Sect. 212) (quoting the same maxim as Quincy); Coke, Institutes, part 2, p. 664 (Of Tithes, Ch. 13) (discussing how a custom, once reasonable, can be removed by an act of parliament should it become onerous).
10. Coke, Institutes, part 1, p. 141.a (Ch. 11, Of Villenage, Sect. 212).
11. Coke, Institutes, part 2, p. 654 (Of Tithes, Ch. 13) (quoting the maxim in the lefthand margin); Coke, Reports, part 4, p. 18 (Actions for Slander).
12. Coke, Institutes, part 2, p. 317 (Statutum de Glocester, Ch. 9). Coke, Reports, part 2, p. 71 (Le Seignior Cromwel’s Case).
13. Coke, Reports, part 2, p. 71 (Le Seignior Cromwel’s Case).
14. Coke, Reports, part 8, p. 118.b (Dr. Bonham’s Case). In a footnote, Quincy also cites to Coke, Reports, part 8, p. 154.b (Edward Altham’s Case), which has the same maxim in almost identical phrasing.
1. The maxim quoted here by Coke is, “Quando verba Statuti sunt Specialia, ratio autem generalis, generaliter Statutum est intelligendum.” Sir Edward Coke, Reports, part 10 (1st French edition, 1614; 1st English edition, 1658), p. 101.b. (hereafter, “Coke, Reports, part 10”). For further bibliographical information, see Maxwell, p. 296.
2. This maxim is preceded by a superscript a which references a footnote in the lefthand margin reading “a1 Inst/54.b. 468.b/290.b./365.b./2 Inst. 107. 199./649. 3 Rep. 7/11 Rep 34/3 Cro. 71./1 Inst 11.b/42.a. 360.a. 381.b.”
3. Here Coke quotes the opposite proposition, “apices juris sunt jura.” Coke, Institutes, part 1, p. 283.b.
4. Qui haeret in litera etc. is written on the same line as the last two references for maxim [2], having apparently been inserted at a later time. The three references for this maxim are written one above the other and separated from the rest of the text with a line. The full text of the maxim is qui haeret in littera haeret in cortice. See Coke, Institutes, part 1, p. 283.b (“Qui haeret in litera, haeret in cortice; & apices iuris non sunt iura.”), p. 365.b (“Sed qui haeret in littera haeret in cortice”), p. 381.b (“Et qui haeret in littera, haeret in cortice”).
5. Quincy may have gotten the page number wrong here. See Coke, Reports, part 4, p. 5.b.
6. The cited text differs slightly from Quincy’s. See Coke, Institutes, part 1, p. 10.a (“ubi eadem ratio, ibi idem jus.”), p. 191.a (“Ubi eadem ratio, ibi idem jus, or Ubi eadem ratio, ibi idem jus esse debet, for Ratio est anima legis.”).
7. This maxim is written on the same line as the final reference to maxim [5], possibly having been inserted at a later date. Coke’s version is slightly different: “Cessante ratione legis cessat ipsa lex.” Coke, Institutes, part 2, p. 11. The latter maxim was cited by the Supreme Court of the United States in the important case of Zadvydas v. Davis, 353 US 678 (2001) at 699 (Breyer, J.). There it was translated as, “The rationale of a legal rule no longer being applicable, the rule itself no longer applies.” Id.
8. This maxim is preceded by a superscript letter b, which corresponds with a footnote b in the left-hand margin. The footnote references “bLit 405./406./1 Inst/247.a./4 Rep. 123/con./ FNB 202./Com.45.” One version of Coke says “factum suum proprium.” Coke, Institutes, part 2, p. 66.
9. The word order is slightly different in this Coke reference, which reads, “Et nemo tenetur se infortuniis & periculis exponere.” Coke, Institutes, part 1, p. 253.b.
10. Quincy’s maxim does not appear verbatim in this Coke reference, which quotes Bracton, “Metus autem est praesentis, vel futuri periculi causa, mentis trepidatio, & praesentem debemus accipere metum, non suspicionem inferendi ejus, vel cujuslibet vani & meticulosi hominis, sed talem qui cadere possit in virum constantem; talis enim debet esse metus, qui in se continet mortis periculum, & corporis cruciatum.” Coke, Institutes, part 2, p. 483.
11. The second u in meticulosum has been inserted with a carat above a crossed-out letter. This maxim is preceded by an x mark, which references a footnote in the left-hand margin stating “xvid Co:/Lit/162.a.”
12. Coke presents slightly different versions of this maxim. In one instance, he writes, “Vagus & vanus timor, sed talis quae cadere possit in virum constantem, & non in hominem vanum & meticulosum, talis enim debet esse metus qui in se continet mortis periculum & corporis cruciatum.” Coke, Institutes, part 1, 162.a. In another, he records, “Talis enim debet esse metus qui cadere potest in virum constantem, & qui in se continet mortis periculum, & corporis cruciatum.” Coke, Institutes, part 1, p. 253.b.
13. This word is followed by a crossed-out word. It appears that Quincy wrote Virum too early and crossed it out.
14. Coke’s version, quoting Bracton, is slightly different. See supra, note 10 (quoting Coke, Institutes, part 2, p. 483).
15. Coke, Reports, part 7, p. 27.a, ends with “aestimandi sunt” (emphasis added).
16. This maxim is preceded by a superscript c corresponding to a footnote in the left-hand margin reading “cDr. &/S. Diag. 2. ch 4.”
17. Coke’s version reads, “Qui per alium facit per seipsum facere videtur.” Coke, Institutes, part 1, p. 258.a; Coke, Reports, part 10, p. 33.b.
18. The n in mandato has been inserted with a carat.
19. This maxim is preceded by a superscript d, which corresponds to a footnote in the left-hand margin reading “d1 Roll/Abr 95./Co: Lit 180.b.”
20. This maxim is preceded by a superscript letter e, which corresponds with a footnote in the left-hand margin reading “e1 Inst./258.a./8 Rep. 85.”
21. This maxim is preceded by a superscript letter d, written in a more elaborate script than the d footnote in maxim [12], and corresponding to a footnote in the left-hand margin reading “d1 Inst/51.b.”
22. The number 41 has been inserted, with a caret, above what appears to be an inkblot.
1. Coke, Institutes, part 2, p. 43 (Magna Charta, Ch. 26), p. 83 (Statutum de Merton, ch. 3); Coke, Reports, part 10, p. 101.b (Beawfage’s Case) (quoting similar maxim).
2. Coke, Reports, part 4, p. 46.b (Cases of Appeals and Indictments); Coke, Institutes, part 1, p. 356.a (Ch. 12, Of Remitter, Sect. 675); Coke, Reports, part 8, p. 56.b (Earl of Rutland’s Case); Coke, Institutes, part 1, p. 283.b (Ch. 8, Of Releases, Sect. 485) (quoting opposite proposition). In a marginal note, Quincy adds citations to Coke, Institutes, part 1, p. 54.b (Ch. 7, Of Tenant for Years, Sect. 67) (quoting related maxim, “Qui haeret in littera, haeret in cortice”), p. 290.b (Ch. 8, Of Releases, Sect. 504) (possibly relevant due to its indication that like cases fall within the statutory remedy), p. 365.b (Ch. 13, Of Warrantie, Sect. 697) (quoting same related maxim, “Qui haeret …”); Coke, Institutes, part 2, p. 107 (Statutum de Marlebridge, Ch. 4) (possibly relevant due to its indication that “this statute is generall, and extendeth unto all.”), p. 199 (Statutum de Westminster primer, Ch. 20) (stating that “This act extends not to a forest in the hands of a subject, for the law is so penall, as it shall not be taken by equitie.”), p. 649 (Of Tithes) (stating that “this act is penall, and shall not be taken by equity”); Coke, Reports, part 3, p. 7.b (Heydon’s Case) (listing four considerations in interpreting statutes: 1) the common law prior to the statute, 2) the “Mischief and Defect” left unaddressed by the common law, 3) the remedy provided for by Parliament, and 4) the “true Reason and Remedy,” and providing that judges should aim for a “Construction as shall suppress the Mischief, and advance the Remedy,” bearing in mind the intent of the lawgivers); Coke, Reports, part 11, p. 34.b (Alexander Powlter’s Case) (quoting related maxim, “qui haeret in litera …”); Sir George Croke, Reports of Cases in King’s Bench and Common Bench [1582–1641], part 3 (1st edition, 1657) (hereafter, “Croke, Reports, part 3”), p. 71 (The Soldiers Case) (not quoting the maxim, but debating the appropriate statutory interpretation for a situation where a soldier deserted his Conductor, while the pertinent statute’s prohibition applied specifically to desertion of Captains). The page number was confirmed against the 1669 edition. For further bibliographical information on Croke, see Maxwell, p. 298. Quincy’s citations continue with Coke, Institutes, part 1, p. 11.b (Ch. 1, Of Fee Simple, Sect. 3) (indicating that, “such interpretation must ever be made of all statutes, that the innocent or he in whom there is no default may not be damnified,” and also describing the diverse categories of law within England), p. 42.a (Ch. 6, Of Tenant for Life, Sect. 56) (observing that, “when the construction of any act is left to the law, the law which abhorreth injury and wrong will never so construe it, as it shall work a wrong”), p. 360.a (Ch. 12, Of Remitter, Sect. 685) (indicating that “acts of parliament are to be so construed, as no man that is innocent, or free from injurie or wrong, be by a literall construction punished or endamaged”), p. 381.b (Ch. 13, Of Warrantie, Sect. 728) (quoting related maxim, “qui haeret in litera … ,” and suggesting that statutes should be interpreted to advance the remedy).
3. I.e., “Adheres superficially.” Coke, Institutes, part 1, p. 283.b (Ch. 8, Of Releases, Sect. 485), p. 365.b (Ch. 13, Of Warrantie, Sect. 697), p. 381.b (Ch. 13, Of Warrantie, Sect. 729).
4. Coke, Reports, part 4, p. 5.b (Vernon’s Case). Quincy, possibly in error, cited to page 7.
5. Coke, Institutes, part 1, p. 10.a (Ch. 1, Of Fee-simple, Sect. 1), p. 191.a (Ch. 4, Of Tenants in Common, Sect. 301); Coke, Institutes, part 2, p. 619 (Articuli Cleri) (relevance not apparent), p. 689 (Of Offices) (stating that “these interests are within the purview of this act: for that they are not onely within the same mischiefe, being without remedy, but within the expresse reason of this law,” and quoting the related maxim, “ratio legis est anima legis.”); Coke, Reports, part 7, p. 18.b (Calvin’s Case). Latin for Lawyers, quoting a similar maxim, provides the same translation. Latin for Lawyers, p. 249.
6. Coke, Institutes, part 2, p. 11 (Magna Charta, ch. 3).
7. Coke, Institutes, part 2, p. 66 (Magna Charta, Ch. 32). In the margin, Quincy also includes citations to Coke, Institutes, part 1, pp. 247.a–247.b (Ch. 6, Of Descents, Sect. 405–406) (Quincy breaks from his usual citation format in indicating the particular sections of Coke’s text he is referencing. These two sections, while not quoting the maxim, discuss inheritance by an individual who is “non compos mentis”. Littleton indicates in Sect. 405 that “no man of full age shall be received in any plea by the Law to disable his own person”, and Coke recites the common law maxim that “the party shall not disable himelf”); Coke, Reports, part 4, p. 123 (Beverley’s Case of Non Compos Mentis) (indicating that “every Deed … which any man non compos mentis makes is avoidable, and yet shall not be avoided by himself, because it is a Maxim in Law, that no Man of full Age shall be in any Plea to be pleaded by him receiv’d by the law to stultify himself, and disable his own person.”) Also in the margin, Quincy cites a contrary opinion from Fitzherbert’s New Natura Brevium, which disagrees with the principle that a person non compos mentis shall not disable himself or contradict his deed. In Fitzherbert’s perspective, this “seemeth to be of little Reason, for this is an Infirmity which cometh by the Act of God”. See Fitzherbert, New Natura Brevium, p. 202. Quincy’s final marginal reference is to Sir John Comyns, Reports, King’s Bench, Common Pleas, and Exchequer, [with] Special Cases in Chancery and before the delegates [1695–1741] (1st edition, 1744), p. 45 (not quoting the maxim, but discussing the legality of a surrender of land by a person non compos mentis). For further bibliographical information on Comyns, see Maxwell, p. 298.
8. Coke, Institutes, part 1, p. 162.a (Ch.12, Of Rents, Sect. 240), p. 253.b (Ch. 7, Of Continual Claim, Sect. 419). Coke, Institutes, part 2, p. 483 (Statutum de Westminster secundo, ch. 48). In a marginal note, Quincy repeats his citation to page 162.a of Coke, Institutes, part 1.
9. Coke, Institutes, part 1, p. 162.a (Ch. 12, Of Rents, Sect. 240), 253.b (Ch. 7, Of Continual Claim, Sect. 419). Coke is discussing the level of threat that would reasonably prevent a landlord from distraining for his rent, thus constituting disseisin of a rent. “Littleton here saith it must be for fear of Death, or Mutilation of Members.” Id.
10. Coke, Institutes, part 2, p. 483 (Statutum de Westminster secundo, ch. 48). Coke, Reports, part 7, p. 27.a (Calvin’s Case).
11. Coke, Institutes, part 1, p. 258.a (Ch. 7, Of Continual Claim, Sect. 433); Coke, Institutes, part 4, p. 109.a (Ch. 11, The Court of Exchequer) (quoting similarly phrased maxim); Coke, Reports, part 10, p. 33.b (The Case of Sutton’s Hospital) (quoting similar maxim). Quincy also provides an internal reference to maxim [4] on his own page 182, which indicates that something forbidden directly is also forbidden indirectly, and to maxim [7] on his page 173. Most likely he was referring to maxim [8] on that page, which repeats the same maxim as on page 182. Again, the pagination is likely off due to Quincy’s later addition of another maxim to the page. Finally, in a marginal note, Quincy points to Saint German, Doctor and Student (Dialogue 2, Ch. 4, The third Question of the Student, of Waste done by a Stranger in the Lands that be in the Hands of particular Tenants, &c), commencing on page 132.
12. Coke, Institutes, part 1, p. 245.a (Ch. 6, Of Dissents, Sect. 401), p. 258.a (Ch. 7, Of Continual Claim, Sect. 433) (both pages offering essentially the same wording as Quincy, with minor variation); Sir Edward Coke, Reports, part 9 (1st French edition, 1613; 1st English edition, 1658) (hereafter, “Coke, Reports, part 9”), p. 106.a (Margaret Podger’s Case). For further bibliographical information on Coke’s ninth volume of Reports, see Maxwell, p. 296. In the margin, Quincy also cites to Sir Henry Rolle, Abridgment des plusieurs Cases et Resolutions del Common Ley (1st French edition, London, 1668) (hereafter, “Rolle, Abridgment”), vol. 1, p. 95 (Action sur Case) (not quoting the maxim, but discussing when an action will or will not lie against a master for a sale undertaken by a servant). For further bibliographical information on Rolle, see Maxwell, p. 19. Finally, Quincy also cites to Coke, Institutes, part 1, p. 180.b (Ch. 3, Of Joynetenants, Sect. 278) (quoting maxim).
13. Coke, Reports, part 8, p. 85.a (Sir Richard Pexhall’s Case). Quincy also provides an internal reference to his own page 171, which contains maxims similarly offering guidance on interpretation of laws. Additionally, Quincy footnotes a reference to Coke, Institutes, part 1, p. 258.a (Ch. 7, Of Continual Claim, Sect. 433) (quoting similar maxim) and a duplicate reference to Coke’s eighth volume of reports.
14. Coke, Institutes, part 1, p. 41.b (Ch. 6, Of Tenant for Life, Sect. 56), p. 166.a (Ch. 1, Of Parceners, Sect. 244); Coke, Reports, part 2, p. 73.b (Cromwel’s Case); Raymond, Reports, vol. 1, p. 517. In a marginal note, Quincy also cites to Coke, Institutes, part 1, p. 51.b (Ch. 7, Of Tenant for Years, Sect. 65) (describing the necessary elements for perfecting an exchange).
1. This word has been crossed out, and Dolo has been inserted above with a carat.
2. A superscript numeral 1 precedes this maxim, corresponding to a footnote in the left-hand margin that also extends interlineally between the two lines of the maxim text. The footnote reads “15 Rep. 64/6 Rep. 54/9 Rep. 168/10 Rep 70/76. 2 Inst. 452. 3 Cro 395. 1 Ventr 273. 2 Saund 193.” Quincy’s citation to page 168 of Coke’s ninth volume of reports is most likely referring to page 68.a.
3. Upon consulting the manuscript, I discovered that this line is written in a significantly lighter ink than the previous and appears therefore to have been a later addition.
4. A superscript numeral 2 precedes this maxim, corresponding to a footnote in the left-hand margin reading “25 Rep 91./92. 6 R 51/4 Inst. 177.”
5. A superscript a precedes this maxim, corresponding to a footnote in the left-hand margin reading “a1 Inst 4 a&b/19.b. 11 Rep 82”.
6. A superscript b precedes this maxim, corresponding to a footnote in the left-hand margin reading “b1 Inst 4.a&b./5 Rep 11. 11 Rep 46, &c./2 Cr. 487./Contra./1 Vent. 393.”
7. This maxim is preceded by a crossmark for footnote purposes. The varied footnoting systems employed by Quincy on this page suggest that he went back over time and added additional footnotes as he discovered new citations for the maxims he had recorded. The footnote in the left-hand margin reads “vid. Lit. Sect/298 & Comty,” referring to Coke’s commentary on Littleton’s text.
8. A superscript c precedes this maxim. The corresponding footnote in the left-hand margin reads “cLit 330. 331.”
9. This citation to 2 Inst. 365 was inserted interlineally with a caret.
10. I discovered this line upon consulting the original manuscript; it was written in a very small hand interlineally and had initially escaped transcription.
11. A superscript d precedes this maxim. The corresponding footnote in the left-hand margin reads “dLit. 361/1 Inst 223.a&b./vid p. 182. max 4./172. max. 9.”
12. This word is preceded by another that has been crossed out.
13. A superscript e precedes this maxim, with the corresponding footnote reading “eLit 378, 379/1 Inst 231.a. 232.b./233.a. 8 Rep 44.”
14. This version reads, “Quia quod tacite intelligitur deesse non videtur.” Coke, Reports, part 4, p. 22.a.
15. Coke writes here, “quaedam tacita habentur pro expressis” and “expressum facit cessare tacitum”. Coke, Reports, part 7, p. 40.b.
16. This maxim is preceded by an x mark, which corresponds to a footnote in the lefthand margin reading “An Exception/to this Max. in/1 Inst 152.b.”
17. This maxim is actually found on page 90.a of the cited work. See Coke, Reports, part 4, p. 90.a. I consulted the original manuscript to confirm that Quincy cited to page 30, possibly in error.
18. A crossmark precedes this maxim, corresponding with a left-hand footnote reading “Co: Lit 379.a./2 Salk. 417./2 Saund. 306. 369.”
1. Coke, Reports, part 10, p. 70.b (The Case of the Marshalsea) (quoting the maxim and concluding that “the Thing which an Officer doth by Warrant or Command of a Court, can’t be said [to be] against the Peace.”), pp. 76.a–b (also quoting the maxim). A line below this citation to Coke, Quincy includes a “but see” citation to Bacon, Abridgment, vol. 4, p. 450 (within a section discussing the duty of sheriffs as judicial officers, and a subsection entitled “2. That he cannot dispute the Authority by which they issue nor any Irregularity in them.”) Quincy’s reference, which specifies the bottom of the page, is likely to Bacon’s statement, “But when the Judge hath no Jurisdiction of the Cause, there the Officer is not obliged to obey, and if he does, it is at his Peril, though he do it by Virtue of a Precept directed to him; a void Authority being the same as none at all.” In a footnote, Quincy repeats his citation to Coke’s tenth volume of Reports and also cites to Sir Edward Coke, Reports, part 5 (1st French edition, 1605; 1st English edition, 1658), p. 64 (Pleadings in Mackalley’s Case) (discussing the death of Serjeant during an arrest attempt) (hereafter, “Coke, Reports, part 5”); Sir Edward Coke, Reports, part 6 (1st French edition, 1607; 1st English edition, 1658), p. 54.a (Isabel Countess of Rutland’s Case) (explaining that the sheriff or officer “ought not to dispute the Authority of the Court, but execute the writs directed to them”) (hereafter, “Coke, Reports, part 6”). For further bibliographical information on Coke’s fifth and sixth volumes of Reports, see Maxwell, pp. 295–96. Quincy’s citations continue with Coke, Reports, part 9, p. 68.a (Mackalley’s Case in killing a Serjeant of London) (indicating that “altho’ the Process be apparently erroneous, that yet if the Minister of Justice in the Execution thereof be killed, it is Murder, for the Minister is not bound to dispute the Authority of the Court, which awards the Process, but his Office is to execute the Process”. Quincy appears to cite to page 168, but this falls outside the volume.); Coke, Institutes, part 2, p. 452 (Statutum de Westminster secundo, Ch. 39) (discussing delivery of writs by sheriffs); Croke, Reports, part 3, p. 395 (Nichols v. Walker and Carter) (regarding the jurisdiction of justices of the peace); Sir Peyton Ventris, Reports in two parts, part 1 (1st edition, 1696) (hereafter, “Ventris, Reports, part 1”), p. 273 (explaining that “the Officer that executes the Process of a Court of Record [is] indemnified, where the proceeding is erroneous.”). The page number has been verified against the 1716 London edition. For further bibliographical information on Ventris, see Maxwell, p. 310. Finally, Quincy also cites to Sir Edmund Saunders, Les reports des Divers Pleadings et Cases en le Court del Bank le Roy en le temp del Reign de le Roy Charles II, part 2 (1st edition, 1686; 1st English edition, 1722) (hereafter “Saunders, Reports, part 2”), p. 193 (Draper v. Blaney) (discussing the court’s jurisdiction in a case involving a viscount). The page number was verified by reference to the 1686 edition. For further bibliographical information on Saunders, see Maxwell, p. 308.
The third page (p. 173) of Quincy’s maxim collection in volume three of the Law Reports, P347, Reel 4, QP 57. See Cox Chart, Appendix II, infra, pp. 432‒33. The page is entitled “Maxims, etc.” and adopts a complicated format, in contrast to the other two maxim compilations. The left-hand margin overflows with multiple source citations, which are tied to the maxim text through an informal footnoting system employing numbers, letters, and symbols alike. Quincy’s hand was uneven, and he frequently struck out text. Although he left marginal space for footnotes, Quincy’s planning was imperfect. Thus he frequently had to squeeze in additional references interlineally. My thanks to Elizabeth Papp Kamali.
2. Coke, Reports, part 5, 92.b (Cases of Executions) (not quoting maxim but describing men’s homes as “their Castles”. The maxim is quoted on page 91.b); Coke, Reports, part 11, 82.a (Lewis Bowles’s Case); Sir Edward Coke, Third Part of the Institutes of the Laws of England; concerning High Treason and other Pleas of the Crown, and Criminall Causes (1st edition, 1644) (hereafter “Coke, Institutes, part 3”), p. 162 (Ch. 73, Against going or riding armed). For further bibliographical information on Coke’s third volume of Institutes, see Maxwell, p. 360. In a marginal note, Quincy repeats his citation to Coke’s fifth volume of reports and also cites to Coke, Institutes, part 4, 177 (Ch. 31, Justices of Peace) (discussing when a suspect’s home may be entered). Quincy’s marginal citation to what appears to read “6 R 51” is unexplained; it does not appear to be Coke’s sixth volume of reports.
3. Coke, Reports, part 4, p. 87.b (Luttrel’s Case); Coke, Reports, part 10, 33.b (The Case of Sutton’s Hospital) (not quoting the maxim but describing how an initial donation of land amounts to a foundation, irrespective of the later building of a hospital on the land.) In a marginal note, Quincy also cites to Coke, Institutes, part 1, pp. 4.a–b (Ch. 1, Of Fee Simple, Sect. 1) (not quoting the maxim but discussing, among other things, the fact that terra legally includes castles, houses, and other buildings thereupon), p. 19.b (Ch. 2, Of Fee Tail, Sect. 14) (defining terre as including ground as well as edifices); Coke, Reports, part 11, p. 82.a (Lewis Bowles’s Case) (discussing the privilege attaching to a man’s house, as well as the common law interest of lessees in trees on the leased property).
4. Coke, Institutes, part 1, p. 4.a (Ch. 1, Sect. 1 “Of Fee-simple”). In the 1738 London edition, Coke employs the spelling coelum, but it is not clear whether Quincy penned coelum or caelum. Quincy also cites to Coke, Reports, part 9, p. 54.b (Baten’s Case) and includes footnoted references to Coke, Institutes, part 1, pp. 4.a–b (quoting the maxim on the first page); Coke, Reports, part 5, p. 11.b (Cases of Leases, Ive’s Case) (not quoting the maxim, but describing how “the Wood remains parcel of the Manor, and by Lease of the Manor shall pass” in ordinary circumstances); Coke, Reports, part 11, pp. 46.b–52.b (Richard Liford’s Case) (discussing property right in trees on leasehold land); Sir George Croke, Reports of Cases in King’s Bench and Common Bench [1582–1641], part 2 (1st edition, 1657) (hereafter “Croke, Reports, part 2”), p. 487 (Whilster v. Paslow) (discussing property interest in trees and distinguishing between “Wood and Underwood” on the one hand and “all Timber trees” on the other in determining whether or not the soil passed with the fee when a lessor had reserved an interest in certain trees and an ingress to fell them). The page number was verified against the 1669 edition. For further bibliographical information on Croke’s second volume of Reports, see Maxwell, p. 298. Finally, distinguishing the citation with a “contra” label, Quincy also references Ventris, Reports, part 1, p. 393 (Potter and Sir Henry North) (explaining how, “by a Grant of Vestura Terrae by a common Person the Soil will pass,” but that a grant of “prima vestura” only encompasses “an Interest in the first cutting or taking of the Grass.”).
5. Coke, Institutes, part 1, p. 183.b (Ch. 7, Of Tenant at Will, Sect. 68), p. 210.a (Ch. 5, Of Estates upon Condition, Sect. 339) (quoting the maxim, minus the semper). In a marginal note, Quincy cites to Coke, Institutes, part 1, p. 190.b (Ch. 4, Of Tenants in Common, Sect. 298). Quincy cites to both Littleton’s text and the accompanying commentary, which indicates that “an express estate controlls an implied estate.”
6. Coke, Institutes, part 1, p. 191.a (Ch. 4, Of Tenants in Common, Sect. 301), 205.a (Ch. 5, Of Estates upon Condition, Sect. 331); Coke, Reports, part 4, p. 73.b (Boroughe’s Case); Coke, Reports, part 8, p. 56.b (Earl of Rutland’s Case), p. 145.a (Davenport’s Case); Coke, Institutes, part 2, p. 365 (Statutum de Westminster secundo, Ch. 5); Coke, Reports, part 5, p. 56.a (Knight’s Case) (not quoting the maxim, but discussing the “favourable and beneficial Interpretation” accorded to grants made by the king). On the line directly below the maxim, Quincy cites to Robert Raymond, Reports, King’s Bench and Common Pleas [1694–1732], vol. 2 (1st edition, 1743) (hereafter, “Raymond, Reports”), p. 1154. The page number has been verified against the second edition, printed in London in 1765. For further bibliographical information on Raymond’s Reports, see Maxwell, p. 307. In a marginal note, Quincy cites to Sections 330–331 of Coke on Littleton, expanding upon his earlier reference to page 205.a.
7. Coke, Institutes, part 1, p. 205.a (Ch. 5, Of Estates upon Condition, Sect. 331).
8. Coke, Institutes, part 1, p. 223.b (Ch. 5, Of Estates upon Condition, Sect. 361); Coke, Institutes, part 3, p. 158 (Of Monomachia) (quoting a related maxim, “quando aliquid prohibetur, prohibetur et omne, per quod devenitur ad illud”). In a marginal note, Quincy expands his first reference to include pages 223.a–b while also including internal cross references to his own page 182, maxim [4] (the same maxim) and page 172, maxim [9]. The latter internal reference likely corresponds with maxim [11], which refers to actions undertaken by an agent; as in other cases, Quincy’s numbering was likely thrown off by the later addition of further maxims to the page.
9. Coke, Reports, part 4, p. 22.a (Copyhold Cases); Coke, Reports, part 7, p. 40.b (Bedell’s Case). Neither page in Coke contains the exact same maxim as quoted by Quincy. In a marginal note, Quincy also cites to Coke, Institutes, part 1, p. 231.a (Ch. 5, Of Estates upon Condition, Sect. 374–375) (not quoting the maxim, but discussing estates upon condition), pp. 232.b–233.a (Ch. 5, Of Estates upon Condition, Sect. 378) (discussing estates upon condition), p. 234.b (Ch. 5, Of Estates upon Condition, Sect. 379) (discussing grants of office); Coke, Reports, part 8, p. 44.b (Whittingham’s Case) (discussing conditions in fact and in law).
10. Coke, Reports, part 6, p. 1.b (Bruerton’s Case) (quoting similar maxim, “Res inter alios actae nemini nocere debent, sed prodesse possunt”), pp. 49a–b (Boswel’s Case) (discussing the writ of quare impedit), 51.b (Boswel’s Case); Coke, Institutes, part 2, p. 513 (Modus levandi fines). In a marginal note, Quincy indicates that an exception to the maxim is found in Coke, Institutes, part 1, p. 152.b (Ch. 12, Of Rents, Sect. 231), which indicates that an exception to the maxim is permissible if otherwise “an inconvenience should follow.”
11. Coke, Reports, part 4, p. 90.a (Drury’s Case); Coke, Institutes, part 1, p. 347.b (Ch. 12, Of Remitter, Sect. 659); Coke, Institutes, part 2, p. 95 (Statutum de Merton, Ch. 8).
12. Coke, Institutes, part 1, p. 3.a (Ch. 1, Of Fee Simple, Sect. 1). In a marginal note, Quincy also cites to Coke, Institutes, part 1, p. 379.a (Ch. 13, Of Warrantie, Sect. 723); Salkeld, vol. 2, p. 417 (Dominus Rex v. Bear). The page number corresponds with the third edition (London, 1731–32). Finally, Quincy also cites to Saunders, Reports, part 2, p. 306 (Decanus & Capitulum Windsor v. Gover) (quoting nearly identical maxim), p. 369 (Sacheverell v. Froggatt).
1. A superscript a precedes this maxim, corresponding to footnoted text in the left-hand margin that reads “a2 Cro. 296/487.”
2. A superscript b preceding this maxim corresponds to a left-hand footnote reading “b1 Inst. 217.a/1 Roll Abr/414. 415. 416.”
3. The final t is inserted above the word with a caret symbol.
4. Quincy likely intended secundum.
5. A superscript c preceding this maxim corresponds to a left-hand marginal footnote reading “c1 Inst. 219.b./274.b. 205.b/8 Rep. 91/1 Inst/213.a.”
6. The maxims above this point in the page are written in a significantly darker ink than the maxims on the lower end of the page, and even the size of the hand differs somewhat. It appears that maxims [1]–[5] were recorded at a different time than maxims [6]–[10].
7. A superscript d preceding this maxim corresponds to a left-hand footnote reading “d2 Rep. 23. 6 Rep. 36.”
8. Quincy appears to have paraphrased or edited down Coke’s version of the maxim. See Coke, Institutes, part 1, pp. 36.a, 183.b.
9. Although Quincy appears to have written operentur, an alternative spelling is operantur.
10. A superscript x mark corresponds with a left-hand footnote reading “xThis holds/good in/Statutes./vid. vol. 1. p. 92.”
Francis Bacon, The Elements of the Common Law (London, 1639); Maxwell, p. 237. See p. 389, note 8, infra, and p. 403, note 8, infra.
1. Coke, Reports, part 3, p. 78.a (Fermor’s Case).
2. Coke, Reports, part 2, pp. 72.b–73.a (Cromwel’s Case) (quoting the maxim on the bottom of page 72.b and then continuing its discussion on 73.a).
3. Coke, Institutes, part 1, p. 47.a (Ch. 7, Of Tenant for Years, Sect. 58). In a marginal note, Quincy also cites to Croke, part 2, p. 296 (Bacon v. Gyrling) (not quoting the maxim, but explaining that a lessee for life, being accountable in waste, can validly stipulate an exception for wood, under-wood, and trees when making a lease for years), p. 487 (Whilster v. Paslow) (also discussing exceptions of wood, under-wood, and trees).
4. Coke, Institutes, part 1, p. 201.a (Ch. 5, Of Estates upon Condition, Sect. 325). In a marginal note, Quincy includes citations to Coke, Institutes, part 1, p. 217.a (Ch. 5, Of Estates, Sect. 350) (discussing fees upon condition); Rolle, Abridgment, vol. 1, pp. 414–16 (Condition) (not quoting the maxim, but discussing conditions precedent and subsequent).
5. Coke, Institutes, part 1, p. 218.a (Ch. 5, Of Estates upon Condition, Sect. 350); Coke, Reports, part 8, p. 90.b (Fraunce’s Case). In the margin, Quincy also cites to Coke, Institutes, part 1, p. 219.b (Ch. 5, Of Estates, Sect. 352) (not quoting the maxim but describing the same concept, namely that “a condition that is to create an estate, is to be performed by construction of Law, as near the condition as may be, and according to the intent and meaning of the condition, albeit the letter and words of the condition cannot be performed: but otherwise it is of a condition that destroyeth an estate, for that is to be taken strictly”), p. 274.b (Ch. 8, Of Releases, Sect. 467) (distinguishing between conditions “favoured in Law” and those “odious in Law”), p. 205.b (Ch. 1, Of Estates, Sect. 334) (“Albeit conditions be not favoured, yet they are not always taken literally …”), p. 213.a (Ch. 5, Of Estates, Sect. 345) (discussing how in some cases “words in a Condition shall be taken out of their proper sense, Ut res magis valeat quam pereat”); Coke, Reports, part 8, p. 91.a (Fraunce’s Case) (describing how “Conditions or Provisoes which will destroy former Estates, shall be taken strictly”).
6. Coke, Institutes, part 1, p. 36.a (Ch. 5, Of Dower, Sect. 40) (with some slight variations in phrasing), p. 183.b (Ch. 3, Of Joyntenants, Sect. 283) (also with some slight variations in wording). In a marginal note, Quincy also includes references to Coke, Reports, part 2, p. 23.b (Baldwin’s Case) (discussing the interpretation of deeds, and the importance of discerning the parties’ intent); Coke, Reports, part 6, pp. 36.a–b (The Bishop of Bath’s Case) (expanding upon the proper interpretation of a lease).
7. Coke, Reports, part 8, p. 94.a (Edward Fox’s Case).
8. Coke, Reports, part 8, p. 94.a (Edward Fox’s Case); Sir Francis Bacon, Elements of the Common Lawes of England (1st edition, 1630) (hereafter, “Bacon, Elements”), p. 18 (quoting a similarly phrased maxim and explaining that “words are so to bee understood, that they work somewhat, and bee not idle and frivolous”). For further bibliographical information on Bacon’s work, see Maxwell, p. 237.
9. Coke, Reports, part 4, p. 51.b (Andrew Ognell’s Case). In a marginal note, Quincy provides an internal reference to his own volume 1, page 92.
1. A superscript a preceding this maxim corresponds with a footnote in the left-hand margin reading “a1 Inst.42.a/183.a&b.”
2. A superscript b preceding this maxim corresponds with a footnote reading “b1 Inst 197.a/378.b/8 Rep 144/145. 5 Rep 26.”
3. A superscript x mark preceding this maxim corresponds with a footnote reading “xvid./p. 182. max. 7.”
4. This maxim has clearly been inserted at a later time, as it is squeezed interlineally between two other maxims.
5. A superscript c preceding this maxim corresponds with a footnote that appears to read “c1 West. &c./Part. 2./Sect. 19./Lit 441/1 Inst 262/a&b. 2 Inst 516. 518.”
6. A superscript d preceding this maxim corresponds with a footnote reading “d5 Rep. 40. 41./10 Rep. 39/42. 1 Salk. 33. vid. p. 171 max. 7.” Additionally, a superscript crossmark following this maxim corresponds with an interlineal footnote reading “tho’ expressly agt. a Statute. 1 Salk 33.” The relevant text in Salkeld, vol. 1, 33, reads, “But it is against the Statute expressly, tho’ now Communis error facit Jus.”
7. A superscript e preceding this maxim corresponds with a footnote reading “e5 Rep. 40.”
8. A superscript f preceding this maxim corresponds with a footnote reading “fDr. & Stud/Diag. 1/Chap 16.”
9. A superscript g preceding this maxim corresponds with a footnote reading “gPerkins/Tit. Granti/65.”
10. The maxim here states, “nemo potest plus juris ad alium transferre quam ipse habet.” Coke, Institutes, part 1, p. 309.b. See also Coke, Reports, part 4, p. 24.b.
Christopher St. German, Doctor and Student (London, 1554), Maxwell, pp. 24‒26. See page 393, note 7, infra.
1. Coke, Reports, part 6, p. 20.a (Gregory’s Case). In a marginal note, Quincy also cites to Coke, Institutes, part 1, pp. 42.a–b (Ch. 6, Of Tenant for Life, Sect. 56) (not quoting the maxim, but expressing the same concept: “whensoever the words of a Deed, or of the parties without Deed may have a double intendment, and the one standeth with Law and right, and the other is wrongful and against law, the intendment that standeth with law shall be taken.”), pp. 183a–b (Ch. 3, of Joyntenants, Sect. 283) (not quoting the maxim but expressing similar ideas).
2. Coke, Institutes, part 1, p. 36.a (Ch. 5, Of Dower, Sect. 40), p. 183.a (quoting a related maxim, “Quaelibet concessio fortissime contra donatorem interpretanda est”); Coke, Reports, part 5, p. 7.b (Cases of Leases, Justice Windham’s Case) (stating that “every Deed shall be taken more strongly against the Grantor, and more beneficially for the Grantee” and applying this concept to a lease); Coke, Reports, part 10, p. 59.a (The Bishop of Salisbury’s Case) (quoting a similar maxim, “ambigua responsio contra proferentem est accipienda”); Bacon, Elements, 11 (quoting and explicating nearly identical maxim). In a footnote, Quincy references Coke, Institutes, part 1, p. 197.a (Ch. 4, Of Tenants in Common, Sect. 134) (stating that each man’s grant is “taken most strongly against himself”), p. 378.b (Ch. 13, Of Warranty, Sect. 722) (repeating the same proposition); Coke, Reports, part 8, p. 145.a (Davenport’s Case) (stating that “the Grant of every one shall be taken strong against himself, and most beneficially for the Grantee”); Coke, Reports, part 5, pp. 26.a–b (The Countess of Rutland’s Case) (indicating that “it would be dangerous to Purchasers and Farmers … if nude Averments against Matter in Writing should be admitted”).
3. Coke, Institutes, part 1, p. 36.a (Ch. 5, Of Dower, Sect. 40). Adding a Vid. notation, Quincy also cites to Coke, Reports, part 4, pp. 12.b–20.b (Actions for Slander) (discussing slander actions and quoting a similar maxim on pages 13.b–14.a, “sermons semper accipiendi sunt secundum subjectam materiam”). Finally, Quincy footnotes an internal reference to maxim [7] on his own page 182; his intended target may be maxim [8], which seems to be more relevant.
4. Quincy makes an Ibidem cite here, and it is not clear if he is referencing Coke, Institutes, part 1, p. 36.a (discussing words in a deed) or Coke, Reports, part 4, pp. 12.b–20.b (The Lord Cromwell’s Case) (discussing slander actions).
5. Coke, Institutes, part 1, p. 49.b (Ch. 7, Of Tenant for Yeares, Sect. 60). The maxim is quoted in the context of a sentence reading, “if the lessor and lessee come upon the ground, of purpose for the lessor to make, and the lessee to take livery, there his entry vests no actuall possession in him untill livery be made.”
6. Coke, Reports, part 2, p. 26.b (The Case of Bankrupts); Coke, Reports, part 4, p. 10.b (Bevill’s Case), p. 82.b (Sir Andrew Corbet’s Case); Coke, Institutes, part 2, p. 690 (Of Offices); Sir Edward Coke, Compleate Copy-Holder; wherein is contained a learned Discourse of the Antiquity and Nature of Manors and Copy-Holds, with the forme of keeping a Copy-Hold Court and Court Baron (1st edition, 1630), Sect. 55, pp. 157–58 (quoting the maxim and explaining that “if the Lord receive any such prejudice, it is through his owne default, for not making claime”). The page number was confirmed by reference to the 1641 London edition. For further bibliographical information on Coke’s Compleate Copy-Holder, see Maxwell, p. 399. In a marginal note, Quincy also cites to William West, Symboleography, part 2 (1st edition, 1594), ch. 1 (Fines and Concords), Sect. 19 (Of the division of fines) (discussing the difference between fines with and without proclamation). This text was referenced using the 1601 edition. For further bibliographical information, see Maxwell, p. 487. Quincy’s citations continue with Coke, Institutes, part 1, pp. 262.a–b (Ch. 7, Of Continual Claim, Sect. 441) (describing a statute of limitations of a year and day for claims regarding fines); Coke, Institutes, part 2, pp. 516, 518 (Modus levandi fines) (discussing, on the former page, a “two-fold provision full of right and equity” for strangers, whereby they can bring a claim within a year and day of the time when a fine was levied. On the latter page, a similar statute of limitations is discussed.).
7. St. German, Doctor and Student, p. 84 (Dialogue I, Ch. 26, A Question made by the Doctor, how certain Recoveries that be used in the King’s Court to defeat tailed Land, may stand with Conscience); Coke, Institutes, part 4, p. 240 (The Legall Courts within Wales). In a marginal note, Quincy adds citations to Coke, Reports, part 5, pp. 40.a–41.a (Dormer’s Case) (indicating that “the Intent of the Parties is to be observed” in the case of common recoveries, which had become a common practice); Coke, Reports, part 10, p. 39.b (Mary Portington’s Case) (describing how collusion is not presumed in a common recovery when the life tenant vouches the individual holding the “immediate inheritance” through a remainder in tail.), p. 42.b (also discussing a common recovery); Salkeld, vol. 1, p. 33 (Clay v. Sudgrave) (quoting the maxim). Finally, Quincy includes an internal reference to maxim [7] on his own page 171, which describes custom as the best interpreter of laws.
8. Coke, Reports, part 5, p. 40.b (Dormer’s Case); Coke, Reports, part 10, p. 69.a (The Bishop of Salisbury’s Case) (quoting related maxims, including “Illud quod alias licitum non est, necessitas facit licitum”). In a marginal note, Quincy repeats his citation to Coke’s fifth volume of Reports.
9. Coke, Reports, part 8, p. 69.a (John Trollop’s Case).
10. Coke, Reports, part 5, p. 36.a (Walcot’s Case) (determining that a matter was not a mere “Misprision of the Clerk” but a “Matter of Substance, and the very Point of the Action”, and therefore did not fall within the reach of a statute addressing “Want of Form”), p. 40.b (Dormer’s Case); Coke, Institutes, part 1, p. 294.a (Ch. 8, Of Releases, Sect. 514); Coke, Institutes, part 2, p. 123 (Statutum de Marlebridge, Ch. 11). In a marginal note, Quincy also references St. German, Doctor and Student, pages 52–56 (The First Dialogue, Chapter 16, What is Equity?) (not quoting the maxim but discussing how equity follows the intent rather than the word of the law, and recognizing that exceptions sometimes need to be made in the interest of equity).
11. Coke, Institutes, part 1, p. 309.b (Ch. 10, Of Attornment, Sect. 551) (quoting similarly phrased maxim); Coke, Reports, part 4, p. 24.b (Copyhold Cases) (containing a similar, but not identical maxim); Coke, Reports, part 6, p. 57.b (Brediman’s Case) (containing essentially the same maxim as that quoted by Quincy), p. 68.a (Sir Moyle Finch’s Case) (containing essentially the same maxim); Coke, Reports, part 8, p. 63.b (Swayne’s Case). In a marginal note, Quincy also cites to John Perkins, Profitable Booke (1st French edition, 1528, entitled Incipit perutilis tractatus …), ch. 1 (Grants). Perkins’s work dealt primarily with conveyancing, and Quincy cited generally to the section dealing with grants. For further bibliographical information, see Maxwell, p. 485.
1. A superscript a preceding this maxim corresponds with a footnote in the left-hand margin referencing “a1 Inst 183.b/1 Rep/46.”
2. This citation to page 183.a is followed by a superscript x corresponding to a note written in a smaller hand on the next line down, reading “xHow this Max is to be understood.”
3. A superscript b preceding this maxim corresponds with a footnote referencing “b8 Rep. 78.” The relevant maxim reads, “Quod non valet in principali in accessoria seu consequenti non valebit.” Coke, Reports, part 8, p. 78.a.
4. A superscript c preceding this maxim corresponds with a footnote referencing “c5 Rep. 6./94. 6 Rep/35.36/1 Inst. 45.b. Noy’s Max. 65. 1 Roll Abr. 850.” Quincy has repeated himself in referencing 1 Inst. 45.b in both the main text and the footnote.
5. Quincy left room to the left of this maxim for later footnotes, but he added no further citations.
6. A superscript circle enclosing an x mark precedes this maxim, corresponding with a footnote referencing “xCo: Lit:/355.b./2. Inst. 307.” Quincy’s break from the alphabetical footnoting system suggests that this footnote may have been a later addition.
7. A superscript d preceding this maxim corresponds with a footnote referencing “d10. Rep/133. 2 Roll/Abr. 146.147.148./2 Cro. 261./3 Cro. 416. 418./Intro. 422.”
8. A superscript e preceding this maxim corresponds with a footnote referencing “e1 Inst/111.b.”
9. This may be an error. The correct page number is 263.a. See Coke, Institutes, part 1, p. 263.a.
10. The maxim referenced here is worded differently: “Quod nostrum est sine facto sive defectu nostro amitti seu ad alium transferri non potest.” Coke, Reports, part 8, p. 92.a.
1. Coke, Institutes, part 1, 36.a (Ch. 5, Of Dower, Sect. 40) (quoting related maxims, including “Verba cartarum fortius accipiuntur contra proferentem.”); p. 183.a (Ch. 3, Of Joyntenants, Sect. 283); Coke, Reports, part 5, p. 7.b (Cases of Leases, Justice Windham’s Case) (stating that “every Deed shall be taken more strongly against the Grantor, and more beneficially for the Grantee”); Coke, Reports, part 10, p. 59.a (The Bishop of Salisbury’s Case) (quoting a related maxim, “ambigua responsio contra proferentem est accipienda”). In a marginal note, Quincy adds citations to Coke, Institutes, part 1, p. 183.b (Ch. 3, Of Joynetenants, Sect. 283) (discussing the interpretation of ambiguous wording in a recorded grant); Coke, Reports, part 1, pp. 46.a–b (The Case of Alton Woods) (discussing grants by the king versus those made by a common person. For example, the passage states that a common person as “Tenant in Tail grants totum statum suum, it is good during his Life, for his Grant shall be taken most strong against him”). On a side note, Quincy’s reference to page 183 of Coke’s first Institutes includes a footnote reading “How this Max is to be understood”; perhaps Quincy found Coke’s discussion of the maxim here most compelling and therefore wished to remember which cited source to emphasize should he deal with the maxim again in the future.
2. Coke, Institutes, part 1, p. 152.a (Ch. 12, Of Rents, Sect. 229). In a footnote, Quincy also references a similar maxim in Coke, Reports, part 8, p. 78.a (The Lord Stafford’s Case).
3. Coke, Institutes, part 1, p. 45.b (Ch. 7, Of Tenant for Years, Sect. 58), 96.a (Ch. 6, Of Frankalmoigne, Sect. 136), p. 142.a (Ch. 12, Of Rents, Sect. 213). In a marginal note, Quincy also cites to Coke, Reports, part 5, p. 6.a (Cases of Leases), p. 94.b (Barwick’s Case) (describing the difference between a lease for life and a lease for years and explaining that, for instance, nothing passes if “a Man makes a Lease for Life to begin at a future Day”, the problem being that one “cannot make present Livery to a future Estate”); Coke, Reports, part 6, pp. 34.b–36.b (The Bishop of Bath’s Case) (regarding a dispute over a lease); Coke, Institutes, part 1, p. 45.b (Ch. 7, Of Tenant for Years, Sect. 58). Quincy also cites to William Noy, Treatise of the Principall Grounds and Maximes of the Lawes of this Kingdome (1st edition, 1641), p. 65 (Ch. 35, Leases) (not quoting the maxim but discussing how a “Lease for years must be for time certain”). The text was located using the star pagination in the 1794 London edition. For further bibliographical information on Noy, see Maxwell, p. 243. Finally, Quincy cites to Rolle, Abridgment, vol. 1, p. 850 (not quoting the maxim, but discussing “Quant le lease ferra dit a commencer”). Latin for Lawyers offers the same translation as that given above. Latin for Lawyers, p. 165.
4. Coke, Reports, part 4, p. 23.a (Copyhold Cases), which contains a maxim worded slightly differently; Coke, Reports, part 5, p. 115.a (Wade’s Case) (quoting related maxims, including, “omne majus continent in se minus”); Coke, Reports, part 9, pp. 49.a–b (The Earl of Shrewsbury’s Case) (not quoting the maxim, but discussing how, for example, when the queen grants the office of steward to an earl, “it is implied in Law for Conveniency that he may make a Deputy.” Similarly, when a duke is given hunting privileges, “the Law for Conveniency gives him such Attendants as are requisite to the Dignity of his Estate.”).
5. Coke, Reports, part 6, p. 43.b (Blake’s Case). In a marginal note, Quincy also cites to Coke, Institutes, part 1, p. 355.b (Ch. 12, Of Remitter, Sect. 675) (quoting expanded version of this maxim) and Coke, Institutes, part 2, p. 307 (Statutum de Glocester, Ch. 5) (quoting nearly identical maxim).
6. Coke, Reports, part 8, p. 41.b (Griesley’s Case).
7. Coke, Institutes, part 1, p. 146.b (Ch. 12, Of Rents, Sect. 220); Coke, Reports, part 6, p. 39.b (Henry Finch’s Case) (quoting nearly identical maxim); Coke, Reports, part 9, p. 48.a (Earl of Shrewsbury’s Case) (quoting similar maxim). In a marginal note, Quincy also includes citations to Coke, Reports, part 10, p. 133.a (James Osborn’s Case) (not quoting the maxim, but discussing four types of Latin, including mala grammatica); Rolle, Abridgement, vol. 2, pp. 146–48 (Obligation) (not quoting the maxim, but discussing who may enter into an obligation, with what words an obligation may be created, etc.); Croke, Reports, part 2, p. 261 (Dobson v. Keys) (stating that “it is but false Latine, which shall not make void a Bond”); Croke, Reports, part 3, p. 416 (Done v. Smethier and Leigh) (discussing a minor grammatical error in a writ, substituting eos for vos), p. 418 (The Case of Downs and Hathwait) (stating that “an Obligation shall not be avoided by vicious writing or incongruity.”), p. 422 (Horn v. Barbar) (debating the proper parsing of the words of an agreement). An alternative translation for chartam is “charter”. See Latin for Lawyers, p. 188.
8. Quincy cites to page 265.a of Coke on Littleton, but his pagination appears to be slightly off. See Coke, Institutes, part 1, p. 263.a (Ch. 7, Of Continual Claim, Sect. 442). Quincy also cites to Coke, Reports, part 8, p. 92.a (Fraunces’s Case). Additionally, in a marginal note, Quincy references Coke, Institutes, part 1, p. 111.b (Ch. 10, Of Tenure in Burgage, Sect. 167) (not quoting the maxim, but discussing devises).
1. A superscript a preceding this maxim corresponds with a footnote in the left-hand margin reading “aF.N.B. 55/5 Rep. 115./1 Inst 53.b/2 Inst 146.”
2. A superscript b preceding this maxim corresponds with a footnote referencing “b2 Inst 306./1 Inst. 260.b.”
3. A superscript c preceding this maxim corresponds with a footnote that appears to reference “c4 Rep. 277.” However, Quincy may have intended “4 Inst. 277.”
4. A superscript d preceding this maxim corresponds with a footnote referencing “d3 Rep 80 &c.”
5. Quincy left space in the left-hand margin for this and the preceding maxim, but he ultimately added no further citations.
6. Both Bacon’s and Coke’s versions include the word recipiunt here. Bacon, Elements, p. 66; Coke, Institutes, part 3, p. 51.
7. A superscript e preceding this maxim corresponds with a footnote extending into the body of the page from the left-hand margin and referencing “e3 Inst. 108/HPC. 65. 66./Kelynge/31. Dalton ch 157. p.734.”
8. In the left-hand margin, presumably related to this maxim, Quincy has noted “vid. p 172/max 9. p. 182/max 4.”
9. This line of text was clearly squeezed in between maxims [8] and [9] at a later time.
10. This is Quincy’s sole direct citation to Bracton, which states in relevant part, “crimen non contrahitur, nisi voluntas nocendi intercedat.” Henry de Bracton, De Legibus et consuetudinibus Angliae (1st edition, 1569) (hereafter, “Bracton, De Legibus”), book 1, ch. 4. 136b. The quoted text is located at vol. 2, p. 384 of Samuel E. Thorne’s edition (Cambridge, Mass., 1968) (hereafter, Thorne, Bracton). The quotation in the original Bracton text is “Quia crimen non contrahitur nisi voluntas nocendi intercedat.” My special thanks to Charles Donahue and David Warrington, ever helpful inspiration to me. For further bibliographical information on Bracton, see Maxwell, p. 51.
11. A superscript f preceding this maxim corresponds with a footnote referencing “f3 Inst. 5./69. 161./ West’s Symb/86. ff.3./4 Rep. 16.”
12. This page contains the opposite proposition, “Quod voluntas reputabatur pro facto,” indicating that this had anciently been held. Coke, Institutes, part 3, p. 69.
13. This version states, “Voluntas non reputatur pro facto.” Coke, Reports, part 11, p. 98.b.
14. One version of Coke spells this efficit. See Coke, Reports, part 6, p. 42.b.
15. At least one version reads sequatur. See, e.g., Coke, Reports, part 11, p. 98.b. For same spelling as Quincy, see Coke, Reports, part 6, p. 42.b.
16. A superscript g preceding this maxim corresponds with a footnote referencing “gHPC. 2./126. 134.”
17. Expected spelling is Poena. See, e.g., Coke, Institutes, part 3, p. 220.
18. This sentence has been squeezed in at the bottom of the page. It is preceded by a small circle with a downward-pointing arrow and may have been intended as a footnote to maxim [12].
1. Coke, Institutes, part 2, p. 299 (Statutum de Glocester, Ch. 5); Coke, Institutes, part 1, p. 304.b (Ch. 9, Of Confirmation, Sect. 534). In the margin, Quincy cites to Coke, Reports, part 5, p. 115 (Wade’s Case). The maxim is not quoted therein, and its relevance is not immediately apparent. Quincy may have been drawing a connection with Coke’s indication that, “if a Man tenders more than he ought to pay, it is good … and the other ought to accept so much of it as is due to him”; alternatively, Quincy may have been interested in Coke’s caution that a lessor ought to inspect a lessee’s payment for counterfeit coinage or else accept the money “at his Peril.” Coke, Reports, part 5, p. 115. Quincy also includes marginal citations to Coke, Institutes, part 1, p. 53.b (Ch. 7, Of Tenant for Years, Sect. 67) (containing a discussion of waste); Coke, Institutes, part 2, p. 146 (Statutum de Marlebridge, Ch. 24) (also discussing waste, and indicating that “the Law doth give to every man his proper Action, so as none of them be without due remedy”), and to Fitzherbert, New Natura Brevium, p. 55. The ninth edition of Fitzherbert, published in 1793, is too late for our purposes but does contain a discussion of waste on page 55; perhaps this was a reprint of an earlier edition that would have been available to Quincy. Unfortunately, page 55 in the 1704, 1718, 1730, and 1755 editions does not appear to be on point.
2. Although Quincy cites to page 54.a of Coke on Littleton, this maxim does not appear to be located on that page. See Coke, Institutes, part 1, p. 54.a. The maxim is quoted on the other page cited by Quincy: Coke, Institutes, part 2, p. 306 (Statutum de Gloucester, Ch. 5). In the margin, Quincy adds citations to Coke, Institutes, part 1, p. 260.b (Ch. 7, Of Continual Claim, Sect. 439) and repeats his earlier citation to page 306 of Coke’s second Institutes.
3. An alternative translation of rei publicae is “state.” See, e.g., Peloubet, p. 123.
4. Coke, Reports, part 6, p. 37 (The Dean and Chapter of Worcester’s Case) (containing nearly identical maxim). In the margin, Quincy appears to cite to Coke, Reports, part 4, p. 277. However, he likely intended Coke, Institutes, part 4, p. 277 (Ch. 63, The Court of the Commissioners upon the Statutes of Bankrupts) (discussing, for example, a person who consumes his estate through reckless spending).
5. Coke, Reports, part 3, pp. 80.b–81.a (Twyne’s Case). Quincy cites to page 80, which commences a discussion of a “fraudulent Gift of Goods,” although the actual maxim is not cited until page 81.a. His failure to cite to page 81 may be due to a pagination error in his source; for example, the 1727 edition repeats the page number 79 where the number 80 is expected. Quincy repeats this citation to page 80 of Coke in a marginal footnote. An alternative translation for the maxim is, “A deceiver deals in general terms.” Latin for Lawyers, p. 148.
6. Coke, Reports, part 3, pp. 80.b–81.a (Twyne’s Case). Again, the maxim itself is quoted on the page following that cited by Quincy. This same translation is offered elsewhere. See, e.g., Latin for Lawyers, p. 149; Peloubet, p. 60.
7. Coke, Reports, part 3, pp. 80.b–81.a (Twyne’s Case). Quincy’s “Ibid” again refers to page 80, although the maxim is quoted on page 81.a.
8. In other words, an agent’s act is void when a lawful command is not strictly obeyed. However, when a person commands another to commit an unlawful act, he or she will be considered an accessory to any resulting crime regardless of how loosely the agent adheres to the command. For example, you command me to illegally kill X, but I misunderstand you and kill Y. You will still be regarded as an accessory to my crime. Bacon, Elements, p. 66 (quoting and explicating the maxim, which is Bacon’s regula 16); Coke, Institutes, part 3, p. 51 (Of Murder, Ch. 7). In a marginal footnote, Quincy adds citations to Coke, Institutes, part 3, p. 108 (Ch. 47, Larceny or Theft) (discussing felonious takings, such as a man finding his neighbor’s horse and, approaching the sheriff under the pretext of ownership, obtaining delivery of the horse by replevin); Sir Matthew Hale, Summary of the Pleas of the Crown (1st edition, 1678) (hereafter, “Hale, Pleas”), pp. 65–66 (Larceny) (not quoting the maxim but discussing who may commit a felony and explaining, for example, the situation of a woman coerced to murder or theft by her husband). This page number was located using the 1707 London edition. For further bibliographical information on Hale’s Pleas, see Maxwell, p. 362. Quincy continues his citations with William Kelynge, Report of Select Cases in Chancery (1730–32), King’s Bench, etc. [1731–34] (1st edition, 1740) (hereafter, “Kelynge, Select Cases”), p. 31 (not quoting the maxim but possibly relevant in its discussion of how a testator’s intent must conform with the law). For further bibliographical information on Kelynge, see Maxwell, p. 303. Finally, Quincy cites to Michael Dalton, Countrey Justice, the Practice of the Justices of the Peace out of their sessions (1st edition, 1618) (hereafter, “Dalton, Countrey Justice”), p. 352 (Ch. 157, What Persons are chargeable in Larceny) (discussing the legal excuse of compulsion: “where the Words of the Law are broken by Compulsion, there the Law is not offended”). Quincy cites to page 734 and may have been using a different edition of Dalton; the text quoted here was located on page 352 of the 1742 London edition. For further bibliographical information on Dalton, see Maxwell, p. 227. On a side note, an alternative translation for Mandata licita is “lawful authority”. Latin for Lawyers, p. 189.
9. Coke, Reports, part 5, p. 115.b (Foliamb’s Case). Quincy, apparently at a later time, inserted a reference to Coke, Institutes, part 2, p. 48 (Magna Charta, Ch. 29) (quoting corresponding maxim, “quando aliquid prohibetur, prohibetur et omne, per quod devenitur ad illud”), p. 83 (Statutum de Merton, Ch. 3) (also not containing the maxim, but possibly cited for the related proposition that “quando lex est specialis, ratio autem generalis, generaliter lex est intelligenda”). In the lefthand margin, Quincy included internal references to page 172 maxim [9] and page 182, maxim [4]. The first reference may actually relate to maxim [11], [12], or [13] on that page, as Quincy may have added maxims after making this cross-reference. The second reference points to a related maxim regarding direct and indirect prohibitions.
10. See Thorne, Bracton, vol. 2, p. 384. See page 402, note 10, supra. Bracton, De Legibus, book 1, ch. 4, p. 136[b] (quoting same maxim, with slight variation in wording).
11. Coke, Institutes, part 3, p. 69 (Ch. 16, Of Robbery) (citing opposite proposition, which had been held in the past); Coke, Reports, part 11, p. 98.b (James Baggs’s Case) (quoting same proposition, with slight difference in wording). In a marginal note, Quincy also cites to Coke, Institutes, part 3, p. 5 (Ch. 1, High Treason) (containing opposite proposition), p. 69 (a repeated citation), p. 161 (Ch. 73, Against Going or Riding Armed) (also citing opposite proposition “by the lawes of the realme of old time”); William West, Symboleography, part 1 (1st edition, 1590), p. 86.a (discussing indictments). For further bibliographical information on West, see Maxwell, p. 487. Quincy also cites to Coke, Reports, part 4, p. 16 (Actions for Slander) (noting that “Intent of a Man without Act is not punishable by Law”).
12. Coke, Reports, part 11, p. 98.b (James Baggs’s Case); Coke, Reports, part 6, p. 42.b (Sir Anthony Mildmay’s Case).
13. Coke, Institutes, part 3, p. 220 (Ch. 101, Of Judgements and Execution) (not quoting the maxim but perhaps relevant due to its discussion of how an individual who kills a person in self-defense or in defense of his home shall be acquitted of murder). In a marginal footnote, Quincy includes a citation to Hale, Pleas, p. 2 (discussing capital and non-capital offenses), p. 126 (Misprisions) (discussing non-capital offenses), p. 134 (Offences not Capital) (listing a series of non-capital offenses).
14. Coke, Institutes, part 1, p. 294.b (Ch. 8, Of Releases, Sect. 514) (discussing attaint and noting, “So odious is perjury in this case in the eye of the Common Law, and the severity of this punishment is to this end, Ut poena ad paucos, metus ad omnes perveniat, for there is Misericordia puniens, and there is Crudelitas parcens”).
1. The page cited here contains a similar maxim: “Maleficia non debent remanere impunita, & impunitas continuum affectum tribuit delinquendi.” Coke, Reports, part 4, p. 45.a.
2. Quincy clearly wrote “4 Rep. 4” but may have intended “4 Rep. 45”, in which this maxim is found with a slight difference in wording: “minatur innocentes qui parcit nocentibus”. Coke, Reports, part 4, p. 45.a.
3. Quincy appears to have written Papali or Papuli, but Populi was likely his intended word.
4. Underlining in original.
5. A superscript a preceding this maxim corresponds with a footnote in the lefthand margin which appears to read, “a1 Inst. 217.b/3 Inst 55.”
6. Quincy may be abbreviating Quisque here. See Coke, Institutes, part 2, p. 384.
7. A superscript b preceding this maxim corresponds with a footnote reading, “b3 Inst 55./56./HPC. 41./42. Dalton/ch. 150. p. 357. 358./Kely. 128.” With regard to the Dalton citation, Quincy may have intended pages 337–38. The Kelynge citation is partly obscured by an inkblot on the page number and may be transcribed incorrectly. Although I consulted the original manuscript, I could not absolutely confirm the page number.
8. An x mark preceding this maxim corresponds with a footnote reading, “xvid/p 181.” Quincy records the same maxim, with an additional phrase added, on page 181, maxim [13].
9. Quincy likely intended to refer to the same page in Coke on Littleton. See Coke, Institutes, part 1, p. 162.a.
10. Quincy clearly cites to page 50, although the maxim appears on page 70. See Coke, Reports, part 11, p. 70.b.
11. A superscript d preceding this maxim corresponds with a footnote reading, “d2 Lev./184./242.”
12. Coke’s version reads, “fieri non debuit, sed factum valuit.” Coke, Reports, part 5, p. 38.b.
1. Coke, Institutes, part 2, p. 173 (Statutum de Westminster primer, Ch. 9). An alternative translation is, “What a man cannot pay with his purse, he must suffer in person.” Latin for Lawyers, p. 229.
2. Coke, Reports, part 4, p. 45.a (Vaux’s Case) (containing a similar maxim); Coke, Reports, part 5, p. 109.a (Foxley’s Case) (quoting first half of the maxim).
3. Coke, Reports, part 4, p. 45.a (Cases of Appeals and Indictments), containing a nearly identical maxim. Quincy may have erroneously cited to page 4 of Coke.
4. Coke, Reports, part 10, p. 139.b (Keighley’s Case).
5. Coke, Institutes, part 2, p. 55 (Magna Charta, Ch. 29) (not quoting the maxim, but referring to the writ de odio et atia). In a marginal footnote, Quincy cites to Coke on Littleton, but the page number is not written clearly. Quincy also includes a marginal citation to Coke, Institutes, part 3, p. 55 (Of Homicide, Ch. 8).
6. Coke, Institutes, part 1, p. 162.a (Ch. 12, Of Rents, Sect. 240) (containing similarly phrased maxim); Coke, Institutes, part 2, p. 384 (Statutum de Westminster secundum, Ch. 12), p. 590 (De Frangentibus Prisonam) (quoting nearly identical maxim); Coke, Institutes, part 3, p. 56 (Of Homicide, Ch. 8). In a marginal note, Quincy repeats his citation to Coke’s third volume of Institutes but also cites to Hale, Pleas, pp. 41–42 (Se defendendo) (not quoting the maxim, but discussing justifiable homicide); Dalton, Countrey Justice, pp. 337–38 (Ch. 150, Homicide upon Necessity) (Quincy cites to pp. 357–58, but these fall within Ch. 159. He most likely intended to write pp. 337–38, which contains a discussion of the lawful killing of felons, prison escapees, etc.); Kelynge, Select Cases, p. 126 (although the page number quoted by Quincy is not entirely legible, this may be a reference to the discussion on page 126 of false imprisonment.)
7. Quincy cites to Coke’s second volume, but the maxim is found in Coke, Institutes, part 1, p. 162.a (Ch. 12, Of Rents, Sect. 240). In a marginal footnote, Quincy also provides an internal cross reference to the same maxim on his page 181.
8. Coke, Reports, part 8, p. 127.b (The City of London’s Case).
9. Coke, Institutes, part 3, p. 64 (Of Burglarie, Ch. 14).
10. Coke, Institutes, part 2, p. 53 (Magna Charta, Ch. 29).
11. Coke, Reports, part 5, p. 14.b (The Case of Ecclesiastical Persons); Coke, Reports, part 10, p. 55.a (The Case of the Chancellors, Masters and Scholars of the University of Oxford); Coke, Reports, part 11, 70.a (Magdalen College Case) (Quincy cited to page 50, but the maxim is quoted on 70); Coke, Institutes, part 1, p. 341.a (Ch. 11, Of Discontinuance, Sect. 644).
12. Coke, Reports, part 5, p. 38.b (Tey’s Case) (quoting a similar maxim in the context of the payment of fines). In a marginal note, Quincy also cites to Sir Creswell Levinz, Reports of Cases in the Court of King’s Bench and Common Pleas, during the time of Sir R. Foster, Sir R. Hyde and Sir J. Kelyng were Chief Justices: also cases in other courts during that time [1660–96] (1st edition, 1702), vol. 2, pp. 184, 242. For further bibliographical information on Levinz, see Maxwell, p. 303.
13. Coke, Institutes, part 3, pp. 23–24 (Petit Treason, Ch. 2) (quoting the maxim and observing that “lawes justly made for the preservation of the common-weale without extreme punishment or penalty, are more often, and for the most part better obeyed and kept, then lawes and statutes made with great and extreme punishment”), p. 163 (Of Perjury, Ch. 74) (not quoting the maxim, but discussing the lightening of the penalty for perjury from capital and corporal punishment before the conquest to fine, ransom, and preclusion from future testimony because “too severe laws are never duly executed”).
1. A superscript a preceding this maxim corresponds with a footnote in the left-hand margin reading “a2 Inst. 212/213. 2 Roll/Abr. 115.”
2. This page number was inserted later with a caret.
3. A superscript b preceding this maxim corresponds with a footnote reading, “b2 Inst/305.” Coke’s version ends with possis. Coke, Institutes, part 3, p. 158.
4. Quincy has crossed out a letter and inserted r above with a caret.
5. Although Quincy has left marginal space, no additional citations are footnoted for this or the following maxim.
6. Quincy clearly wrote mitiore, but both Coke and Bacon write mitiori. Coke, Reports, part 4, p. 13.a; Bacon, Abridgement, vol. 4, p. 505.
7. A superscript c preceding this maxim corresponds with a footnote reading, “cFinch./Ch. 2. p. 185/4 Rep. 15 to 20/1 Danver’s/Abr p. 80/&c. to 172.”
8. On this page, the text notes that “the Words themselves shall be taken in mitiori sensu.” Coke, Reports, part 4, p. 17.b.
9. This reference to Holt and the preceding reference to Bacon are in a different ink than maxims [6] or [7], and different ink than each other, and were likely inserted at later times.
10. A superscript f preceding this maxim corresponds with a footnote reading, “f4 Inst. 468/469./3 Inst/46./H.P.C. 8.”
11. Coke’s version concludes with the word lex rather than ratio. Coke, Institutes, part 2, p. 20.
Sir Edward Coke, Second Part of the Institutes of the Lawes of England (London, 1642), Maxwell, p. 546. See p. 413, note 10, infra.
1. Coke, Reports, part 5, p. 99.a (Flower’s Case); Coke, Institutes, part 3, p. 167 (Ch. 74, Of Perjury).
2. Coke, Institutes, part 1, p. 368.b (Ch. 13, Of Warranty, Sect. 701); Coke, Institutes, part 2, p. 208 (Statutum de Westminster primer, Ch. 25), p. 444 (Statutum de Westminster secundum, Ch. 36); Coke, Institutes, part 3, p. 91 (Ch. 29, Of Felonie in Jaylers). In a marginal note, Quincy also cites to Coke, Institutes, part 2, pp. 212–13 (Statutum de Westminster primer, Ch. 28) (defining “maintenance” as “an unlawfull upholding of the Demandant or Plaintife, Tenant or Defendant in a cause depending in suit, by word, writing, countenance, or deed” and describing how the fomenting of complaints or suits in parts of the country other than one’s own is “punished with great severity”); Rolle, Abridgment, vol. 2, p. 115 (Maintenance) (not quoting the maxim, but discussing the topic of maintenance).
3. Coke, Institutes, part 3, p. 158 (Of Monomachia, Single Combate, Duell, Affrays, and Challenges, and of Private Revenge) (quoting nearly identical maxim). In a marginal note, Quincy also cites to Coke, Institutes, part 2, p. 305 (quoting a related maxim, “Qui non prohibet quod prohibere potest, assentire videtur.”).
4. Coke, Institutes, part 2, p. 146 (Statutum de Marlebridge, Ch. 24).
5. Coke, Institutes, part 1, p. 347.b (Ch. 12, Of Remitter, Sect. 659).
6. Coke, Reports, part 4, pp. 13.a, 17.b, 20.a (Actions for Slander). Quincy also cites to page 25, but this maxim has not been located therein. Quincy directs the reader to Bacon, Abridgment, vol. 4, p. 505 (within the section entitled Slander, and the subsection (K) dealing with “In what Cases uncertain Words are to be construed in mitiori sensu.”). Quincy also references “Cases Time of Holt 39”, which may be Report of Cases determined by Holt, [King’s Bench], 1688–1710 (1st edition, 1738), but I was unable to confirm this. For further bibliographical information on this collection of cases, see Maxwell, p. 301. In a marginal note, Quincy includes citations to Sir Henry Finch, Law: or, Discourse thereof (1st edition, 1613) (hereafter, “Finch, Discourse”), (Lib. III, ch. 2, Of trespasses upon the case), pp. 185–86 (discussing slander, and explaining that statements without malice do not give rise to a cause of action). The page number was verified against the 1759 London edition. For further bibliographical information on Finch, see Maxwell, p. 238. Quincy also cites to Coke, Reports, part 4, pp. 15–20 (Actions for Slander) (describing the law of slander in detail and quoting the maxim itself on page 20.a). Finally, Quincy cites to Knightley D’Anvers, General Abridgment of the Common Law (1st edition, 1705–1737), vol. 1, pp. 80–172; these page numbers have not been confirmed. This translation presumes the word sunt after accipienda, as the maxim is written in Coke.
7. Coke, Reports, part 4, p. 15.b (Actions for Slander).
8. Coke, Reports, part 4, p. 13.b (Actions for Slander), with Coke’s more expansive version of the maxim extending to page 14.a.
9. Coke, Reports, part 4, p. 16.a (Actions for Slander).
10. Coke, Institutes, part 2, p. 479 (Statutum de Westminster secundum, Ch. 47). Quincy’s marginal citation to pages 468–69 of Coke’s fourth volume of the Institutes is an error; he was probably repeating his earlier citation to volume 2. In the margin, Quincy also cites to Coke, Institutes, part 3, p. 46 (Ch. 6, Conjuration, Witchcraft, &c.) (discussing cases of witchcraft or sorcery where an individual threatens to harm another’s cattle, goods, or person, but no effect follows); Hale, Pleas, p. 8 (Witchcraft) (discussing, among other matters, the use of witchcraft to hurt someone, but without attaining the intended effect).
11. Coke, Reports, part 4, p. 47.a (Cases of Appeals and Indictments); Coke, Institutes, part 2, p. 20 (Magna Charta, Ch. 8) (quoting similar maxim).
12. Coke, Reports, part 6, pp. 47.a–b (Dowdale’s Case).
1. A superscript a preceding this maxim corresponds with a footnote in the left-hand margin reading, “aFNB/428./8 Rep./58. 59;/1 Inst. 138.b/139.a etc./1 Roll. Abr./584./3 Cro. 551.”
2. A superscript b preceding this maxim corresponds with a footnote reading, “bTerms/of ye Law./v. Evidence.” (underscoring in original). This is probably a reference to Jacob Giles, New law-dictionary, the interpretation and definition of words and terms used in the law (London, 1750) (hereafter, “Giles, New law-dictionary”), where the definition of evidence includes the maxim, “Probationes debent esse Evidentes & Perspicuae.”
3. Coke’s version includes the word temporis here. Coke, Institutes, part 1, p. 6.b.
4. A superscript c preceding this maxim corresponds with a footnote reading, “c2 Inst./118./Trials per/Pais. 166./220. 232. 233.”
5. Reading, in relevant part, “omnia praesumi debent solenniter [sic] esse acta.” Coke, Institutes, part 2, p. 362.
6. Quincy transposed the page number here, as the maxim is found in Coke, Institutes, part 4, p. 279.
7. A superscript d preceding this maxim corresponds with a footnote reading, “d1 Inst./232.b,” a repeat of Quincy’s initial citation.
8. Coke includes the words in lege here. Coke, Reports, part 10, p. 56.a.
9. This page contains a related maxim, “Nulla impossibilia aut inhonesta sunt praesumenda, vera autem & honesta, & posibilia.” Coke, Institutes, part 1, p. 78.b.
10. A couple of letters are crossed out at the end of this word, and –ioni is inserted. The expected word is praesumptio. See, e.g., Coke, Reports, part 4, p. 71.a (reading, “Stabit praesumptio donec probetur in contrarium.”).
11. A superscript e preceding this maxim corresponds with a footnote reading “e1 Inst. 373/a & b.”
12. A superscript f preceding this maxim corresponds with a footnote in the left-hand margin and extending to the right across the bottom of the page. The footnote references, “f1 Inst./ 39.a/167.b/168.a. 2 Inst. 236. Finch. 459.”
13. This page contains a related maxim, “Judicium semper pro veritate accipitur.” Coke, Institutes, part 1, p. 39.a.
14. Here, Coke notes, “Quia judicia in curia Regis reddita pro veritate accipiuntur,” and “Interest reipublicae res judicatas non rescindi.” Coke, Institutes, part 2, p. 360.
15. On this page, Coke writes, “judicia sunt tanquam juris dicta, & pro veritate accipiuntur.” Coke, Institutes, part 2, p. 573.
16. The final page number is written in a darker ink and is out of sequence, likely having been added at a later time. On the referenced page, Coke writes, “Judicium pro veritate accipitur.” See Coke, Institutes, part 2, p. 380.
1. Coke, Reports, part 8, p. 59.a (Beecher’s Case). In a marginal footnote, Quincy repeats this reference, expanding it to include further related discussion on page 58. Quincy also cites to Fitzherbert, New Natura Brevium, p. 428 (regarding the writ of the assize of nuisance; relevance not apparent); Coke, Institutes, part 1, pp. 138.b–139.a (Ch. 11, Of Villenage, Sect. 208) (discussing nonsuit and retraxit and quoting the maxim on the latter page); Rolle, Abridgment, vol. 1, p. 584 (Default) (not quoting the maxim directly but containing two discussions entitled, respectively, “Retraxit” and “Le effect de ceo”); Croke, Reports, part 3, p. 551 (Dennis v. John Payne Sr.) (discussing a case of retraxit).
2. Coke, Institutes, part 1, p. 303.b (Ch. 9, Of Confirmation, Sect. 534).
3. Coke, Institutes, part 1, p. 283.a (Ch. 8, Of Releases, Sect. 485). In the margin, Quincy references a definition of “evidence” in a text identified as “Terms of Law,” most likely Jacob Giles’ law dictionary. See Giles, New law-dictionary (defining evidence as “used in the Law for some Proof, by Testimony of Men on Oath, or by Writings or Records”, and then going on to quote the same maxim, with slight variation in wording, as Quincy) (italics in original).
4. Coke, Institutes, part 1, 6.b (Ch. 1, Of Fee Simple, Sect. 1); Coke, Institutes, part 2, p. 362 (Statutum de Westminster secundo, Ch. 5) (containing similarly worded maxim). In a marginal footnote, Quincy includes a citation to Coke, Institutes, part 2, 118 (Statutum de Marlebridge, Ch. 9), which does not quote the maxim but states, “The Law doth ever favour possession as an argument of right, and doth incline rather to long possession without shewing any deed, then to an ancient deed without possession.” Additionally, the footnote references Trials per Pais, presumably referring to Samson Euer, Trials per Pais: or Law concerning Juries by Nisi Prius, etc. (1st edition, 1665), although the relevance of the cited pages (pp. 166, 220, 232, 233) is not immediately evident; it is likely that Quincy consulted a different edition than those consulted by me. For further bibliographical information on Euer’s work, see Maxwell, 375 (listed under heading of “Duncombe (G.)”).
5. Coke, Institutes, part 4, p. 279 (Ch. 64, Commissioners for Examination of Witnesses). An alternative translation for auriti is “ear witnesses.” Latin for Lawyers, p. 219.
6. Coke, Institutes, part 1, p. 232.b (Ch. 5, Of Estates, Sect. 377). In a marginal footnote, Quincy repeats this citation.
7. Coke, Institutes, part 1, p. 232.b (Ch. 5, Of Estates, Sect. 377).
8. Coke, Reports, part 10, p. 56.a (The Case of the Chancellor, Masters and Scholars of the University of Oxford) (nearly identical wording); Coke, Institutes, part 1, p. 78.b (Ch. 4, Of Knights Service, Sect. 103) (containing a related maxim).
9. Coke, Institutes, part 1, p. 373.b (Ch. 13, Of Warranty, Sect. 109); Coke, Reports, part 2, p. 48 (Magna Charta, Ch. 29) (discussing how the property of a man accused or indicted of treason or felony should not be seized before attainder, “for when a Subject obtaineth a promise of the forfeiture, many times undue meanes and more violent prosecution is used for private lucre, tending to destruction, then the quiet and just proceeding of Law would permit”); Coke, Reports, part 4, 71.a (Hynde’s Case). In a marginal footnote, Quincy repeats his citation to Coke on Littleton, citing this time to pages 373.a and b.
10. Coke, Institutes, part 1, p. 39.a (Ch. 5, Of Dower, Sect. 48); Coke, Institutes, part 2, p. 360 (Statutum de Westminster secundo, Ch. 5), p. 380 (Statutum de Westminster secundo, Ch. 11), 573 (Articuli Super Chartas, Ch. 19). All of these pages contain related maxims, with none directly quoted by Quincy. In the margin, Quincy also cites to Coke, Institutes, part 2, p. 236 (Statutum de Westminster primer, Ch. 37), which may be relevant due to its mention that “the Court ex officio ought to inquire of the force; but if they doe not, it is not error, as it hath been adjudged.” In a marginal footnote, Quincy repeats two of the citations listed above (Coke, Institutes, part 1, p. 39.a; Coke, Institutes, part 2, p. 236) but also provides new citations to Coke, Institutes, part 1, pp. 167.b–168.a (Ch. 1, Of Parceners, Sect. 248) (stating a similar maxim: “Judicium est quasi juris dictum, so called, because so long as it stands in force, pro veritate accipitur, [it] cannot be contradicted”) and to Finch, Discourse, p. 459 (Lib. IV, ch. 45, Of Judgments) (discussing the nature of judgments and noting, “Judgment is the court’s final determination of that suit. Upon judgment against the king in a petition, he is presently out of possession … In a writ of right the judgment after issue joined is final on either side, not only when it passeth by verdict, or vanquishing of the other’s champion, but where the demandant is (a) nonsuit, or the (b) tenant maketh default, or the (c) vouchee after such an issue joined by him, departeth in spite of the court”). Finch, Discourse, pp. 459–60.
1. A superscript b preceding this maxim corresponds with a footnote in the left-hand margin reading, “bKely/49.50.” Quincy evidently started with b and proceeded to d with the anticipation of later adding additional citations to other maxims on the page.
2. Coke writes, “probationes oportent esse luce clariores.” Coke, Institutes, part 3, p. 25. Quincy’s page citation appears to be off by one page.
3. A superscript d preceding this maxim corresponds with a footnote reading, “d3 Cro. 176.”
4. Underlining here and below in original.
5. A superscript x mark preceding this maxim corresponds with a marginal note reading “xvid Co Lit/232.b. p 171 Max 3.” Quincy records the same maxim, with slight variation, on page 153, maxim [4], but cites there to Justinian’s Digest.
6. Quincy has crossed out the last letter of this word and inserted an s with a caret.
7. This maxim appears to have been inserted at a later time, as Quincy has compressed much of it into the left-hand margin of the page.
8. Coke writes sapentiorem. Coke, Institutes, part 1, p. 97.b.
9. In the left-hand margin, Quincy has drawn a hand with the index finger pointing toward this maxim.
10. There appears to be a small, upward-pointing arrow here, perhaps related to another upward arrow preceding maxim [9].
11. These two words were inserted interlineally with a caret.
12. To the left of this maxim is a marginal note that reads “vid/p 178/172”. Quincy recorded the same maxim, in an abridged version, on page 178, maxim [7], and the mention of page 172 may reference maxim [8], which indicates that one need not expose oneself to danger.
1. Coke, Institutes, part 2, p. 178 (Statutum de Westminster primer, Ch. 12), p. 453 (Statutum de Westminster secundo, Ch. 39).
2. Quincy cites to Coke, Reports, part 11, p. 38; while the maxim does not appear to be located on that page, the page does contain a discussion of confession. The maxim is quoted, however, in Quincy’s second source: Coke, Institutes, part 4, p. 66 (Ch. 5, Court of Star-Chamber).
3. Coke, Institutes, part 3, p. 26 (Ch. 2, Petit Treason), p. 210 (Ch. 100, Of False Imprisonment). The former page offers a slight variation on the maxim, while the same wording as that quoted by Quincy is found on the latter page.
4. Coke, Reports, vol. 5, p. 109.b (Foxley’s Case). Quincy also cites to Coke, Institutes, part 3, p. 188, but this maxim does not appear to be located on that page. Because fatetur is passive, it may be more appropriate to say, “A crime is confessed” or that the fleeing person “manifests a crime.”
5. Coke, Institutes, p. 212 (Ch. 101, Of Judgments and Executions); Coke, Reports, part 4, p. 33.b (Mitton’s Case).
6. Coke, Institutes, part 1, p. 24.a (Ch. 2, Of Fee Tail, Sect. 21).
7. Coke, Institutes, part 1, p. 70.b (Ch. 3, Of Escuage, Sect. 96). In a footnote, Quincy also cites to Coke, Institutes, part 1, p. 232.b (Ch. 5, Of Estates Upon Condition, Sect. 377), although this maxim does not appear to be located on that page. Quincy may be referring to Coke’s discussion of how “by reasoning and debating of grave learned men the darkness of ignorance is expelled, and by the light of legal Reason the Right is discerned and thereupon Judgment given according to Law, which is the perfection of Reason.”
8. Coke, Institutes, part 1, p. 191.a (Ch. 4, Of Tenants in Common, Sect. 301).
9. Coke, Institutes, part 1, p. 78.b (Ch. 4, Of Knights Service, Sect. 103).
10. Coke, Institutes, part 1, p. 97.b (Ch. 6, Of Frankalmoigne, Sect. 138).
11. Coke, Institutes, part 1, p. 97.b (Ch. 6, Of Frankalmoigne, Sect. 138).
12. Coke, Institutes, part 1, p. 161.a (Ch. 12, Of Rents, Sect. 237) (quoting the maxim and indicating that a man who cannot enter and manure his land has been disseised from the land itself).
13. Coke, Institutes, part 1, p. 161.a (Ch. 12, Of Rents, Sect. 237).
14. Coke, Institutes, part 1, p. 162.a (Ch. 12, Of Rents, Sect. 240). In a marginal note, Quincy also includes a crossreference to pages 172 and 178 of his maxim collection.
1. An arrow pointing upward corresponds to a footnote in the left-hand margin reading, “vid/p. 172,/max. 9/173/max 8/p 177./max 7.” It is not immediately clear why Quincy is cross-referencing his page 172, maxim [9], which refers to fears that afflict men of constancy. It is possible that Quincy added additional maxims after cross-referencing maxim [9], and that the intended maxim therefore is found further down on the page. For instance, maxim [11] refers to the use of an agent for carrying out an action, which is related to the idea of forbidding something to be done indirectly. A similar issue arises with Quincy’s internal reference to page 177, maxim [7], as the more relevant maxim on that page appears to be maxim [8]. On this page, it seems plausible that maxim [5] may have been inserted at a later time, thereby changing the sequence, or that Quincy may have overlooked maxims [4], [5], or [6], all of which are brief one-liners, while counting down the page. Quincy’s cross-reference to page 173, maxim [8] is more straightforward, as the same maxim is recorded there.
2. A superscript x mark corresponds with a marginal note reading, “xvid/p 175./maxs 1. 2. 3.” Quincy is cross-referencing three additional maxims related to the interpretation of words. See Quincy’s page 175, maxims [1–3].
3. The expected word is comunis or communis.
4. The second m was inserted with a caret.
5. The expected word is recedendum. See, e.g., Coke, Institutes, part 1, p. 364.b.
6. The maxim starting Minime mutanda sunt also appears, with slight variation, on p. 153, maxim [5], although Quincy provides no internal reference.
7. Quincy’s citation, which appears to have read “Ibid. 368.b” has been eliminated with cross-hatches, likely being replaced with an internal reference once Quincy discovered that he had already quoted the maxim elsewhere in this volume.
1. Quincy cites to William Hawkins, Summary of the Crown Law (1st edition, London, 1728), vol. 1, p. 223. While this maxim is not directly quoted by Hawkins, the text discusses how a defamatory statement identifying only part of an individual’s name will nevertheless be classified as libelous if it is clear from the context who is intended to be the target of the remarks. See Hawkins, p. 223 (Sect. 4). For further bibliographical information, see Maxwell, p. 363.
2. Coke, Institutes, part 1, p. 168.a (Ch. 1, Of Parceners, Sect. 248).
3. Coke, Institutes, part 1, p. 182.a (Ch. 3, Of Joyntenants, Sect. 282). For the translation of jus accrescendi as “right of survivorship,” see Latin for Lawyers, p. 179.
4. Coke, Institutes, part 1, p. 223.b (Ch. 5, Of Estates, Sect. 361).
5. Coke, Institutes, part 1, p. 279.b (Ch. 8, Of Releases, Sect. 479).
6. Coke, Institutes, part 2, p. 161; Statotum de Westminster primer, ch. 1.
7. Coke, Institutes, part 1, p. 322.b (Ch. 10, Of Attornment, Sect. 586).
8. This translation is taken verbatim from Latin for Lawyers, p. 253. Quincy cites to Coke, Institutes, part 1, p. 359.a (Ch. 12, Of Remitter, Sect. 684).
9. Coke, Institutes, part 1, p. 362.b (Ch. 12, Of Remitter, Sect. 691). This principle is known today as Ockham’s Razor.
10. Coke, Institutes, part 1, pp. 364.b–365.a (Ch. 13, Of Warranty, Sect. 697).
11. Coke, Institutes, part 1, p. 368.b (Ch. 13, Of Warranty, Sect. 701). See maxim [2] on Quincy’s page 179 for additional citations for this maxim.
Sir Edward Coke, Second Part of the Institutes of the Lawes of England (London, 1642), p. 315. See Quincy’s concluding maxim, Lex Angliae est Lex Misericorniae, Maxim [8], p. 427, infra, six lines up from bottom.
1. This page has been written on the inside back cover of the volume.
2. Quincy has paraphrased the English text here. See Coke, Institutes, part 1, p. 392.b.
3. A citation that appears to read “2 Inst. 43” has been eliminated with cross-hatching. As indicated by the internal reference, Quincy recorded the same maxim on page 172, maxim [1].
4. The letter n has been inserted with a carat.
5. This page contains a similar maxim: “Ignorantia Judicis foret calamitas innocentis.” Coke, Institutes, part 2, p. 591.
6. The maxim is not directly quoted here, but the text discusses how the king, ten years after the passage of an act that made rape punishable in some circumstances by merely fine and imprisonment, decided to make rape a felony once again. Coke observed, “it is benedicta expositio, when our ancient Authors, and our yeare books, together with constant experience doe agree”. Coke, Institutes, part 2, p. 181.
7. The same maxim, sans the word Omnis, appears on page 175, maxim [9], with additional sources cited by Quincy.
8. This maxim is written in a larger hand at the bottom of the page, separated from the rest of the maxims above. A fitting end to Quincy’s maxim collection.
1. Coke, Institutes, part 1, p. 392.b (Ch. 13, Of Warranty, Sect. 747).
2. Coke, Institutes, part 2, p. 287 (Statutum de Glocester, Ch. 1).
3. Coke, Institutes, part 2, p. 43 (Magna Charta, Ch. 26). See maxim [1] on Quincy’s page 172, [pp. 374‒75], for additional references for this maxim.
4. I.e., “Everything contains the seeds of its own destruction.” Coke, Institutes, part 2, p. 15. (Magna Charta, Ch. 5), p. 1.
5. Coke, Institutes, part 2, p. 30 (Magna Charta, Ch. 17), p. 591 (Statutum de Frangentibus Prisonam) (containing a similar maxim).
6. Coke, Institutes, part 2, p. 11 (Magna Charta, Ch. 3), p. 136 (Statutum de Marlebridge, Ch. 18), p. 181 (Statutum de Westminster primer, Ch. 13) (discussing a similar proposition). Quincy also cites to pages 10 and 139, but the maxim does not appear to be directly quoted there. It is possible that Quincy was consulting an edition with different pagination, or that he was referencing related examples as opposed to quotations of the maxim itself.
7. Coke, Institutes, part 2, p. 123 (Statutum de Marlebridge, Ch. 11).
8. Coke, Institutes, part 2, p. 315 (Statutum de Glocester, Ch. 9).
1. The Harvard College Library burned on the fateful night of January 14‒15, 1764, and most of the books were lost. The printed catalogue of 1723, perhaps used by Quincy, is available. See The Printed Catalogue of the Harvard College Library 1723–1790 (eds. W. H. Bond, H. Amory, Boston, 1996), pp. 3 ff.
2. The content of a lawyer’s library, as evidenced by estate lists, auctions, and other catalogues, is an often overlooked tool for a “greater understanding of the intellectual context of American law.” See H. H. Hoeflich, “Auctions and the Distribution of Law Books in Antebellum America,” 113 Proceedings of the American Antiquarian Society (Worcester, 2005), p. 160.