* 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.

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.

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.

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.

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:

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.”

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.

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.

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.

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.

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.

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.

1. “Arbitrament” is from the Norman French “arbitrement” meaning “the award or decision of arbitraments.” Jowitt, supra, p. 144.

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.

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.

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.

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.

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.

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.

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 y^e 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.

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.

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.”

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.

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.

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.

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.

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].

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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 “y^t” 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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 “L^ttor” for “lessor,” “L^ttsee” 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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.”

1. In the original, Quincy writes in huge letters, “what was y^e 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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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.”

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.

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.

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.

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,” “ag^t” 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.

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.

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.

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.

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.”

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.

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.

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.

1. A citation to Hawkins’s, Abridgment, p. 258. See page [8], note 1. Quincy closely paraphrases Hawkins’ text.

2. “Estranger” for “stranger.”

1. “Condon” for “condition.”

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.

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.”

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 y^t [that] be brot ag^t 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.

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.

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.

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.

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.

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 y^e 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 ag^t 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?

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.

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.

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.

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.

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.

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.

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.

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.”

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.