Catalog 4: Imported Eighteenth-Century Legal Treatises in American Libraries, 1700-1799

Third edition of volumes 1-3, second edition of volume 4, first edition of volume 5. The list of booksellers varies somewhat from volume to volume. This work is more akin to a legal encyclopedia, containing cohesive treatments of whole areas of the law, with references to statutes and authoritative treatises, as well as decided cases (both in printed reports and from MSS), rather than simply an abridgment or digest of the reports. Probably that feature accounted for its great popularity, especially in America. Bacon likely built his abridgment on the unpublished writings of Baron Gilbert, with additional material drawn from MSS of Hale, Hawkins and D’Anvers. Bacon died before finishing the work, which was completed by Sayer and Ruffhead serially. Volumes one and two were first printed in 1736, the third volume in 1740, the fourth in 1759, the fifth in 1766. The first three volumes were reprinted in 1762. The next edition of volumes 1-4 is this one of 1768. The fifth volume was reprinted in 1770. Thereafter, new London editions came out in 1778, 1798, 1807, and 1832. There were also ten American editions published between 1809 to 1876.

Second edition. A massive work covering every subject of law important to the merchant, including ships and shipping, insurance, bills of exchange, money, banking, bankruptcy, piracy, prizes, and topics in public international law that affect trade. In addition to the legal topics, the Beawes wrote detailed descriptions of the commerce of particular countries and regions, including their customs and products. Although aimed at the lay merchant in addition to the lawyer, Beawes supported his discussion with citations to legal treatises and case decisions. Kent in his Commentaries wrote that the courts accepted Beawes’ opinions as evidence of the custom of merchants in several cases. Holdsworth considered the book so important that he gave a table of its contents in an appendix to volume 12 of his History of English Law. The work went through six editions in London by 1813 (the last edited by Joseph Chitty) and was reprinted five times in Dublin as well.

Sole edition of this second part. Brown was a clerk in the office of the protonotary of the court of common pleas, starting shortly after the Restoration. He was the author of several introductory works for aspiring clerks, books of precedents, and a manual for justices of the peace. The first part appeared in 1674, with a second edition in 1687 and a third edition in 1702. In the preface to this volume, Brown says he obtained most of the precedents from an eminent practitioner and that the book contains “the pleadings at large of many of the greatest and special modern causes,” though the only named case is Lane v. Cotton, an action against the postmaster general arising from the loss of some bills of exchange from a letter. Large groups include actions on the case for words, assumpsit, bills of exchange, debt by and against various assignees and successors, error, fines and recoveries. In addition to the declarations, there are also forms for pleas, both dilatory and substantive, and judgments. The precedents are in Latin; the notes and directions in the margin are in English. ESTC does not note the absence of 158-159 from the pagination, although 157 and 160 are on the recto and verso of the same leaf. Sweet & Maxwell record a pagination of [16], 315, [14], without noting any irregularity.

Dublin reprint of the fifth London edition. The first edition by Buller appeared in 1772, but it was based on an earlier work by his uncle Henry Earl of Bathurst. The book is divided into three logical parts: a discussion of the substantive law of each form of action (which forms the bulk of the book), a section on the law evidence, and a concluding section on trial procedure in general. Each cause of action is briefly defined in general terms, followed by a discussion of particular points of law and practice, which are usually illustrated by reported cases, taken from both printed and manuscript reports. Its compendious yet comprehensive coverage made it very popular, going through six London editions in the eighteenth century, as well as two Dublin and one New York edition. This is the edition found in Thomas Jefferson’s library.

Fifteenth and final edition by Burn. In England, justices of the peace had broad powers in both criminal and local administrative matters. For many petty offenses, they had power to try and convict the accused summarily, without a jury. For more serious crimes, they had the power to examine the alleged offender and to release, bail, or commit him pending trial. They also exercised authority concerning the licensing of inns and taverns, the poor laws, laborers, road maintenance, size, quality and price of various staple products, and a host of other matters. (To illustrate the extent of the justices’ responsibilities, Holdsworth inserted a list of the approximately 210 headings in the eighth edition of Burn’s “Justice.”) Those powers were spelled out in literally hundreds of statutes, and expounded upon in hundreds more judicial decisions, thus necessitated extensive treatises for the guidance of the justices, many of whom had little or no formal legal training. Most early American manuals for justices of the peace were more or less condensations of Burns’ work, since many of the English statutes did not apply while other duties, particularly in civil disputes, had been established by local legislation. Holdsworth considered Burn’s Justice to be one of a handful of legal classics produced in the eighteenth century.

Fourth edition in English. Eight more editions followed. De Lolme gave high praise to many constitutional features that the framers of the American constitutions incorporated, such as the separation of executive and legislative powers, popular election of legislative representatives, the liberty of the press, trial by jury, and the supremacy of law over even those clothed with government office.

Dublin reprint of the 1771 London edition. “A System of Pleading” is founded on “Doctrina Placitandi,” printed in 1677, but written in law French much earlier. Holdsworth praised it as being the only systematic treatment of the subject until Stephen’s “Pleading,” published in 1824, and notes that it was closely studied by students as late as the latter half of the eighteenth century. The text is arranged under alphabetic headings, covering the forms of action, types of defensive pleading, and particular topics in pleading, such as “Colour” and “Negative Pregnant.” The authorities cited are mainly from the seventeenth century and earlier, although the eighteenth century editor has inserted references to subsequent statutes as well as a few more recent cases and treatises, including Blackstone’s Commentaries.

First edition, the only one printed at the Clarendon Press, in its elegant style. Holdsworth called Foster’s book the “most remarkable and most scholarly of all the reports” of the eighteenth century. The four discourses (on high treason, homicide, accomplices in capital offenses, and observations on some passages in Hale’s History of the Pleas of the Crown) have always been considered of high authority. This copy includes the four-page “Advertisement” (sheet c) regarding the manuscript and printed texts of Hale’s History of the Pleas of the Crown; this was evidently inserted after printing had been completed, since the catchword immediately before it (on b2v) matches the first word on following gathering (A2r).

Sole Dublin edition; London editions were published in 1730, 1738, 1757, 1796, and 1824. Holdsworth observes that Gilbert’s treatise assumes a basic understanding of feudal tenures and shows that it is the basis for many of the technical rules of English land law. This Dublin edition omits the second part of the treatise, which dealt with copyhold tenure.

Fourth edition of the first volume and first edition of the second volume. Volume 1 was first published in 1732, with subsequent editions in 1734 and 1739. Both volumes were reprinted once more in London in the eighteenth century, with a further edition in Dublin. The two volumes were considered of unequal merit, the first being received as a high authority and the second with much greater caution. Authorship of the volumes is uncertain, although Viner thought the first volume was the work of a Mr. Pooley.

The best early English edition, with the valuable notes of Barbeyrac. Despite the errors in pagination and the absence of B in the register, the text is complete.

First edition.

Half of the volume consists of William Hudson’s “A Treatise on the Court of Star-Chamber.” Bound at the end is a “Register of Law Publications” for Easter Term 1791 through Hillary Term 1792, 26 pages, separately numbered.

Sole Dublin edition. The first edition was published in London in 1711, reaching an seventh in 1751. William Hawkins is best known for his treatise on criminal law, published 1716-1721. This abridgment of Coke’s First Institute won praise for its accuracy and clarity.

Fifth edition of the Law-Dictionary; first edition, variant format, of the Law Grammar. Neither Sweet & Maxwell nor ESTC record a folio edition of the Law Grammar before 1767. Evidently, Aaron Ward, the publisher of the 12mo edition of the Law Grammar, also commissioned a folio version to be bound with copies of the Law-Dictionary, of which he was one of eight publishers. Such a copy is held by the Yale University Library. Cowley also records a copy of the Law Grammar and Law Dictionary at Harvard which has a collective title-page and the Grammar bound before the Dictionary. Although Jacob was the author of over two dozen legal publications, his law dictionary was by far the most successful. First published in 1729, it reached a tenth edition by 1782; revised editions continued to be published well into the nineteenth century. Its success, according to Holdsworth, was due to the fact that it combined a law dictionary with an abridgment. This fifth edition was the last to be published during Jacob’s lifetime. In his preface to the Law Grammar, Jacob explains that the title was inspired by Fortescue’s likening the study of Latin through its grammatical elements to the study of law through its grounds and principles. The work itself is in six parts: an introduction summarizing the scope, analysis and sources of law; a summary of criminal law; a selection of maxims with a summary of property law; an outline of the adjectival law, describing the courts and the course of their proceedings; definitions of certain key terms or legal concepts; a short discussion of fiction, intendment and presumption. . Title continued: Law-dictionary: “Together with such informations relating thereto, as explain the history and antiquity of the law, and our manners, customs, and original government. Collected and abstracted from all dictionaries, abridgments, institutes, reports, year-books, charters, registers, chronicles, and histories, published to this time. And fitted for the use of barristers, students, and practisers of the law, members of parliament, and other gentlemen, justices of peace, clergymen, &c.” Law Grammar: “For the particular instruction of all young gentlemen, either at schools, colleges, or the universities, or if privately educated, attornies clerks, and other persons; whereby they will acquire a great deal more useful law-learning, than by any of the books yet publish’d.”

First edition. In this little book, Jones gave an analytic, historical, comparative and synthetic view of the law of bailments, a subject still unsettled in the context of the common law forms of action. After Jones’ death it was reprinted several times in England and America under the auspices of different editors. Holdsworth thought Jones on Bailments was possibly one among a handful of legal classics produced in the eighteenth century.

Third edition. The first edition was published in 1790, the second in 1791. This third edition is expanded by nearly one hundred pages over the second. There was also an American reprint in 1798. Holdsworth said it stated the law accurately and clearly, and points to Kyd’s works in general as examples of the improved quality of legal literature in latter part of the eighteenth century. Kyd stated that he meant his work to be comprehensible to merchants and students, without “disgusting the professional reader.” Kyd’s method was to divide the subject logically and then state clearly both the rules and the doubtful points under those headings, with citations in the margin to his authorities, mainly case reports. Although Bayley’s treatise, first published in 1789, in its later editions became the more accepted work, it was much briefer in its beginnings and was not reprinted in America until well into nineteenth century.

Married set, first volume from second issue, second volume from first issue. The first volume was first published in 1734 and the second in 1735; both were reissued with a new title-page in 1741. ESTC locates only two copies with the 1741 title-page, which changed the name of the publisher from Gosling (who died January 4, 1741) to Woodward, Shuckburgh, and Stagg. The volumes offered here each contain a different four-page list of subscribers. In the second volume, the tables are bound at the rear. The first volume covers “Abatement,” “Account,” “Audita Querela,” and “Action on the Case”; the second volume covers “Covenant,” “Debt,” “Detinue,” and “Prohibition.” A third volume on “Quare Impedit” and the rights of patrons was issued in 1737; according to Worrall, it was also sold separately. From the prefaces to the first and second volumes, it seems that publishers had intended that quare impedit would be included, but the length of the title and related matters precluded that. The third volume originally intended to cover replevin, trespass, and waste and general entries, but no such volume was ever published. It is not merely a book of forms, but also a legal abridgment bringing Rolle up to date to the extent not covered by D’Anvers, as well as containing an index to the other books of entries.

Sole edition. The first leaf is an advertisement for volumes II & III, then in the press. Most writers have adopted the criticisms of Charles Viner, who in 1742 wrote in the preface to volume 13 of his Abridgment that Nelson was frequently mistaken in digesting of the cases, or that he added things that were not in the original, and that parts of it were transcribed (and not accurately) from Hughes’ Abridgment (1660). Although Viner’s strictures on Nelson are harsh, three things should be noted: first, Viner himself says that when Nelson’s Abridgment first came out, he left off abridging what Nelson had done, so it cannot be that Nelson’s work was so wretched as Viner suggests; second, Nelson published an abridged version of Lutwyche’s Reports (omitting the entries) that contains extremely harsh criticisms of the judge’s work, so it may well be Viner thought Nelson had earned calumny; third, Viner was, of course, hoping to sell subscriptions to his massive undertaking, so the deprecation of his most recently-published competition (considering Bacon’s “Abridgment” as more encyclopedia than comprehensive digest) would seem a logical marketing tool.

First edition. A common recovery was a feigned action for land, the judgment in which had the intended effect of cutting off future interests in the land in question. According to Holdsworth, this learned book deals clearly and comprehensively with every aspect of its recondite subject.

Second edition, star-paged to the original. A common recovery was a feigned action for land, the judgment in which had the intended effect of cutting off future interests in the land in question. According to Holdsworth, this learned book deals clearly and comprehensively with every aspect of its recondite subject. Serjeant Wilson edited this second edition.

Sole Dublin edition, a reprint of the second London edition of 1787; the first edition was published in 1785. Powell was a student of Charles Fearne, author of a celebrated treatise on contingent remainders. Powell dedicated his book on mortgages, his first, to Fearne. Powell also published three more well-regarded treatises, on powers (1787), devises (1788), and contracts (1790).

First Dublin edition, from the first London edition of 1780, which was published without the author’s name. When Mitford (later Baron Redesdale) first undertook to write his treatise, there had been no systematic treatment of equity pleading and the reported cases were inadequate. Mitford’s book was, according to Holdsworth, concise and clear and accepted as authoritative. When Joseph Story came to write his treatise on equity pleadings, he transferred much of Mitford with the language unchanged, because he could not presume to be able to improve upon it. Starting in 1793, Mitford was successively solicitor-general, attorney-general, Speaker of the House of Commons, and then, in 1802, made Lord Chancellor of Ireland and created Baron Redesdale.

Second edition; the first edition ended with the reign of Henry VII. Reeve’s History of English Law was the first to be attempted; it seems to have been well-regarded, if not well read, by contemporaries and into the nineteenth century. However, as Holdsworth notes, it has a number deficiencies when viewed from a modern perspective: it is an internal history, drawing solely on legal sources without attempting to relate it to wider social, economic and political currents; it does not make use of manuscript or record sources; it dwells on the minutiae of procedure, while stating doctrine in bare terms, without contemporary illustration. Still, for a hundred years, it occupied the field. In the collation, the cancellations are taken from the directions to the binder, which in this copy are visible as offset to the verso of the plate in volume 2. The cancellans also appear offset on the prelimary leaves of several of the volumes.

First eighteenth century edition. There is some doubt whether the work is Sheppard’s. Originally published in the mid-seventeenth century, it had fallen into obscurity until Chief Justice Willes spoke favorably of it from the bench. In his preface to this edition, Hilliard minimizes his contribution; however, his notes, some extensive, appear at the foot of almost every page.

First editions of the first three volumes to be published, though the thirteenth, fourteenth and fifteenth in alphabetical order. Each volume bears the same generic, undated title-page; probably these volumes were sold by Oxford from the stock bequeathed by Viner. Viner’s Abridgment was self-published and sold largely by subscription. Viner willed the remaining stock to Oxford to found the Vinerian Professorship in the Common Law. Oxford published the last two volumes (the index and “Evidence”) and halved the price of the set in order to liquidate the stock. Viner began publication in 1741 with the letter F, since that was where D’Anvers had left off his abridgment. Though criticized for its antiquated organization and lack of cohesion in exposition, it is nevertheless valued because of its comprehension of every decision reported to the time of publication. Volumes 13 and 14 are printed on paper watermarked in the corner; no watermarks are visible in volume 15.

First edition of the second volume to be published, although it is the fourteenth volume in alphabetical order. This copy has the first-issue title-page. Viner’s Abridgment was self-published and sold largely by subscription between 1742 and 1756. Viner began publication with the letter F, since that was where D’Anvers had left off his abridgment. Though criticized for its antiquated organization and lack of cohesion in exposition, it is nevertheless valued because of its comprehension of every decision reported to the time of publication.

First edition of the first volume in alphabetical order, though the eleventh volume to be published. Includes the dedication, “advertisement” defending the work against various criticisms, and lists of subscribers from England and Ireland. In this copy, the dedication is bound facing the list of subscribers. Viner’s Abridgment was self-published and sold by subscription. He began with the letter F, since that was where D’Anvers had left off his abridgment. Though criticized for its antiquated organization and lack of cohesion in exposition, it is nevertheless valued because of its comprehension of every decision reported to the time of publication.

First edition of the last volume of the Abridgment to be published, though the twelfth in alphabetical order, constituting the entirety of the title “Evidence.” Viner’s Abridgment was self-published and sold by subscription. This volume and Viner’s index were published after Viner’s death by Oxford (to which Viner bequeathed the Abridgment in order to found a professorship in the common law). In addition to being sold as part of the set, it was also sold separately, both by Oxford and, according to Worrall, by booksellers. Viner had began publication with the letter F, since that was where D’Anvers had left off his abridgment. Though criticized for its antiquated organization and lack of cohesion in exposition, it is nevertheless valued because of its comprehension of every decision reported to the time of publication.

First edition. ESTC says that each volume is separately signed; however, in this issue the register seems to continue the former volume. Wood divided his Institute into four books: persons, things, crimes, and courts of justice. This volume contains the last two chapters of the second book, dealing with goods and chattels and how they may be acquired, and the books on crimes and courts of justice. The last of these fills more than half the volumes and includes discussion of the forms of action and the procedure of the courts, including trials. Wood’s style is to heap together a mass of detail, which, although aided by a good organization (in contrast to Coke’s method), is not made cohesive by any discussion of principle or literary merit (in contrast to Blackstone).

Third edition. The only substantial introductory work in a systematic order to appear between Finch’s Law and Blackstone’s Commentaries. Although Blackstone praised Wood for putting the law in a regular order, he criticized his style as lacking proportion in the titles, being too contracted in some areas and too diffuse in others.

First Dublin edition and one of the first English law books to be reprinted in Dublin. Includes the list of subscribers and “Some thoughts concerning the study of the laws of England in the two universities,” which was first published anonymously in 1708. Although Blackstone praised Wood for putting the law in a regular order, he criticized his style as lacking proportion in the titles, being too contracted in some areas and too diffuse in others.

Ninth edition, the first to compete with Blackstone’s Commentaries. (In fact, the ad leaf for law-books sold by Worrall and Tovey includes Blackstone’s Commentaries.)

Tenth and final edition, the first to published after Blackstone’s Commentaries. In fact, it seems that the anonymous revisor mentioned in the title thought very highly of the Commentaries, for he says in a footnote to the last paragraph of the introduction, concerning the objects of the law (p. 11): “Under these four large Heads, the learned Judge has with the greatest Perspicuity arranged his most elegant Commentaries on the Laws of England, which will be read, not only by Lawyers, but Englishmen of every Degree, Rank or Profession, who have any Regard for the Preservation of the Laws and Constitution of the British Empire, with infinite Pleasure and Delight, so long as those Laws and Constitution endure. Faxit DEUS in Secula Seculorum!” A casual perusal shows that a great many references to books published in since the prior edition have been added in the margins in this edition, including Blackstone’s Commentaries, Burn’s Justice in four volumes, Burrow’s Reports, Wilson’s Reports, and Vesey’s Chancery Reports, as well as to the newly-fashionable seventeenth-century work, Sheppard’s Touchstone of Common Assurances.

Third edition, the last in the author’s lifetime and the first to contain the “Treatise on the first principles of the law.” In the main work, Wood describes the civil law on its own terms, according to the Insitutes of Justinian, and gives comparative notes on English law. The preliminary treatise is much more theoretical and synthetic. Wood was learned and industrious, but lacked literary genius; like his Institute of the Common Law, the main work dwells much on detail while neglecting broader principles. Perhaps the work prefixed to this edition was meant to answer that criticism. Despite his short-comings, Wood is credited with recognizing the contribution of the civil law to the form and content of the common law, without giving it undue primacy. Dudley Hussey was a lawyer active in Dublin in the second half of the eighteenth century; he was elected recorder (a judicial office) of that city in 1784 and died the following year.

Third edition, first published in 1730. Holdsworth describes the book as a lucid summation of the historical basis of the English land law in the learning of the continental feuds, researches that had been instituted at the beginning of the seventeenth century by Spelman and Zouche and kept alive by the school of historical lawyers, such as Selden, Hale and Madox.