VOL. IX. No. 12.

DECEMBER, 1897.

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́T is perhaps one of the most curious coincidences in the history of law, if coincidence it were, that Littleton should have set himself to write a treatise dealing with the incidents of feudalism at the very moment when feudalism in England was waging that internecine struggle, the Wars of the Roses, which ended in its practical extinction. If Littleton had not compiled his invaluable work, the history, the law and the methods of feudalism would not have had for us that realism and vigor which they have come to possess under the hands of writers whose work in a great measure has been ancillary to the labors of the great lawyer who accomplished his magnum opus in the short interval between the epoch of modern Europe and the period of the middle ages.

One of the earliest productions of the printing press in England was the "Tenures" of Littleton, and there could be given no better instance of the irony of fate than that the agent that has, perhaps, more than any other, contributed to the character of modern civilization should have perpetuated as its earliest work the records of the society that it helped to destroy.

Thomas Littleton was born at Frankley House, Frankley, in Worcestershire, in the year 1402, and was the eldest son of Thomas Westcote, of Westcote, near Barnstaple. With the exception of Thomas, the members of the family bore their father's name of Westcote, despite the fact that their mother had contracted as a condition of her marriage that her inheritable issue should bear her name, de Littleton.

"She," says Sir Edward Coke, "being fair, and of a noble spirit, and having large

possessions and inheritance from her ancestors, de Littleton, and from her mother, the daughter and heir of Richard de Quartermeins, and other of her ancestors (ready means in time to work her own desire), resolved to continue the honor of her name ... and therefore prudently, whilst it was in her own power, provided by Westcote's assent before marriage that her issue inheritable should be called by the name of de Littleton."

This hint of the pride of the true feudal days is not without its historical value. The wife under such circumstances brought to her husband not only her love and her wealth, but endowed him also with a local habitation and a name. They lived on her property at Frankley, and her eldest son took her patronymic. took her patronymic. Despite these appearances to the contrary, her husband was also of gentle birth. The father of Elizabeth de Littleton was Thomas de Littleton, Lord of the Manor of Frankley, and successively esquire of the body to Richard II, Henry IV and Henry V. Elizabeth, who married Thomas Westcote, was the last of her race, and it was only natural that she should wish the name and ancient arms of her ancestors argent a chevron between three escalop shells sable to be borne by her eldest born. This bearer, through the female line, of an ancient feudal name was destined to write the epitaph and raise the monument of feudalism. The learned Camden thus writes of him: “Thomas Littleton, alias Westcote, the famous lawyer to whose treatise of Tenures the students of the common law are no less beholden than the civilians to Justinian's Institutes.'" Of the early

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life of this great judge we know little. find that he was entered as a member of the Inner Temple. This does not imply that he was originally intended to practice as a lawyer, for we know on the authority of Fortescue and others that at that time "it was the universal practice for the young nobility and gentry to be instructed in the originals and elements of the laws." (Bl. Comm., vol. 1, p. 25.) It seems probable, therefore, that having been sent to the Inner Temple in accordance with the educational custom of the period, he became enamored of the work that he found to his hand, and stayed to practice where he came to learn. This view is considerably supported by the fact that he, in early days, gave a learned reading at his Inn on the statute De Donis Conditionalibus, the manuscript of which is still extant. In 1445, we find that he was in practice as a pleader, and that at the same time, possibly owing to family influence, he was occupying positions requiring legal knowledge in his own county, such as the Escheatorship of Worcester. In 1447 he was made acting sheriff of the county under the hereditary sheriff, the Earl of Warwick. He seems also to have been previously the steward of the court of Marshalsea of the king's household. In 1450 he was created recorder of Coventry, and in 1453 he proceeded to the important degree of serjeant-at-law, and on the 13th of May, 1455, he became king's serjeant, and was appointed a justice of assize on the northern circuit. Before the death of Henry VI he obtained the office of steward of the Marshalsea Court. As a man who was, to some considerable extent, in touch with the court, it was impossible that he should have escaped from the social and political troubles of that terrible period. He seems, however, to have conducted his affairs with much astuteness, for we find that he was twice pardoned, and that on the accession of Edward IV, that monarch received him into great favor. In 1463-4 he In 1463-4 he

attended the king's progress progress through Gloucestershire; on the 27th of April, 1466, he was made justice of the Common Pleas, and rode the Northamptonshire circuit. On the 18th of April, 1475, he was made a Knight of the Bath "the same king, in the fifteenth year of his reign, with the prince and other nobles and gentlemen of ancient blood, honoured him with the Knighthood of the Bath." This was an honor bestowed, probably, as much in recognition of his gentle birth as of his laborious achievements in the field of law. He married Joan, widow of Sir Philip Chetwynd of Ingestre, in Staffordshire, and daughter and co-heiress of Sir William Burley, "of Broomscroft Castle in the County of Salop," the speaker of the House of Commons. This lady outlived her second husband, and died on the 22d of March, 1504-5, leaving by this marriage three sons ("Sir William, Richard the lawyer, and Thomas") and two daughters. The present noble families of Lyttleton and Hatherton are in direct descent from his marriage. Sir Thomas Littleton died at his own birthplace (at that Frankley which he had inherited from his mother), on the 23d of August, 1481, full of age and honor, having fulfilled his mother's ambition by the revival of her name and family, and the handing of it on to a remote and honorable posterity.

The body of our author," says Coke, "is honorably interred in the cathedral church of Worcester, under a fair tomb of marble, with his statue or portraiture upon it." This tomb is on the south side of the cathedral, but, unfortunately, the brass, with its portrait of the judge, has disappeared. At his parish of Frankley an image of the great lawyer, wearing the coif and the scarlet robes of his office, formerly existed, but has long since vanished, as has also the window portrait of him in the parish church of Halesowen. The portrait by Cornelius Janssen, in the Inner Temple, is of an au

thentic character, as the painter was fortunately familiar with the presentations at Frankley and Halesowen. An engraving of the Halesowen portrait is given in the 2d edition (1619) of "Coke's Institutes," part I.

From the author we turn to his work. Coke tells us that it was not published till after the death both of the writer and his son Richard, the latter event taking place in 1518. The reason given is, that it is not cited as an authority earlier than 1534, when Sir Anthony Fitzherbert cites it in his "Natura Brevium," and if it had been published earlier it would have been cited in the various reports and in St. Jermyn's "Doctor and Student." Cole, therefore, thinks it was first printed about 1533. Modern researches into the history of printing have shown that Coke was in error in his attempt to date the first publication of " Tenures." It is clear from existing copies that the book was printed twice in London in the year 1528. Coke himself mentions an edition published "at Roan, in France, by William de Tailier (for that it was written in French) ad instantiam Richardi Pinson." Now this publication was, though undated, from internal evidence very much earlier than 1533. Indeed, it is conjecturally placed as early as 1495, and Pynson published about the same time another edition in London, still extant. There are, however, at least two earlier editions than these. The earliest known edition is the undated one produced by J. Letton and William de Machlinia, which Dr. Middleton, in "His Account of Printing in England," thinks was printed about 1481, or seven years after Caxton introduced the art into England. The colophon of this edition is as follows: "Expliciunt Tenores novelli impresse per nos Jahem Letton et Williem de Machlinia in civitate Londonarium juxta exclesiam omnium sanctorum." The writer of the article on Littleton in the "National Dictionary of Biography," thinks there is no data to support this conjecture. There is

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however, more evidence than might be expected. The period when Letton and Machlinia worked together is approximately known (Circa, 1481); the kind of type used in these early years is well known. The Chronicle of the Duchy of Normandy," dated 1487, and printed by Letton and Machlinia, gives us a still closer approximation. We may, in fact, date the book as not earlier than 1481 and not later than 1483. The next early edition we get was printed by Machlinia alone when he was "living near Fleet Bridge." The colophon is as follows: "Expliciunt Tenores novelli impressi per me Wilhelmum de Machlinia in opulentissima civitate Londonarium juxta Pontem qui vulgaritar dicitur Flete brigge." It is less rudely printed, and abbreviations are more rare, and modern black letter is used. The vast usefulness of the "Tenures" was at once recognized by the legal profession, and some twenty successive editions were published of the work during the sixteenth century. In more recent times many editions have been produced including, of course, Sir Edward Coke's monumental commentary on the work, published in 1628. It was not, however, until 1841 that Mr. T. E. Tomlins printed an authoritative edition collated from the various manuscripts and printed texts. The earliest manuscript extant (now at Cambridge) seems to have been in circulation as early as 1480. A note on the first page states: "Iste liber emptus fuit in coemeterio Sti Pauli, London, 27th die Julii, anno regis E. 4ti. 20m0. IOS. 6d." In other words, this paper MS. was sold in St. Paul's churchyard on the 27th of July. There is also a vellum MS. of the book at Cambridge.

This treatise on Tenures was written by Littleton for the use of his son Richard, the lawyer (the ancestor of Lord Hatherton). It contains, we are told, "a full and clear account of the several estates and tenures then known to English law, with their pecu

ever combined so much of the substance with so little of the show of learning, or so happily avoided pedantic formalism without forfeiting precision of statement" (Nat. Dict. Biog.). The book is to some slight extent based upon, or perhaps to speak more accurately, suggested by a short tract existing in Littleton's time, entitled "Olde Tenures," and another ancient document, "The Customs of Kent," may have been used in the compilation of the treatise. Mr. Tomlins adds these two ancient tracts at the end of

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'HERE is an odd similarity between the rivalship of Aaron Burr and Alexander Hamilton and that of Bacon and Coke. Both with regard to American and English history, a legal reader cannot, when conning the life of Burr, separate him in memory from Hamilton; nor in reading about Coke can he differentiate remembrances of him from those of Bacon. Burr was a Coke in chicanery, and Hamilton a Bacon in wisdom, as well as an author. Burr's fall, like that of Coke, was fatal and ignominious. Bacon lives most through his "NovumOrganum," and his essays; and Hamilton's fame rests greatly upon his contribution to the Federal Constitution the Novum Organum of the Republic-as well as his essays collected in the volume entitled "The Federalist."

But let us rest with consideration of the rivalship between Bacon and Coke, and their companion careers; for the closer these are placed in juxtaposition the greater interest attaches to the shortcomings of both as well as to their beneficial achievements. All which the legal reader will discover who shall put Lord Campbell's sketches of ChiefJustice Coke in his one volume, and those of Lord Chancellor Bacon in the companion

volume by that diffusive but painstaking author.

As the letters B and C are alphabetical companions, Bacon and Coke were ever pari passu in life. They began the world together; the two were rivals; together they fought for distinction, and were even as youths competitors in love. Both were devoured with insatiate lust for wealth and honors. Both gained the objects of their fiery desires; and neither, it may be accurately stated, found happiness in the acquisition. Both lives warningly teach the legal profession how much there may co-exist of intellectual grandeur with the most glaring moral turpitude. And, oh, how both paid homage to virtue by, when in disgrace, seeking refuge in tranquil pursuits which unexpectedly to themselves gave an immortality which they did not seek.

How dramatically meet the brutality of Coke and the baseness of Bacon in the trial and fate of the gallant and unfortunate Essex. There was in public view the cruel arrogance and atrocious bearing toward the Earl from Coke; while behind the scenes Bacon was endeavoring to secure the conviction of that Essex who had used his best efforts towards obtaining for Bacon the very

office of attorney general that Coke obtained. It was partly hatred of Bacon for having sought that office, and partly hatred of Essex for having tried to aid Bacon and to disadvantage Coke, which united to nerve Coke in the prosecution of Essex. While at the same time at court Bacon was furtively, diplomatically aiding the conviction. of his benefactor. Were there ever such contretemps of motives in human actions?

We can bring to mind Coke at his chambers in Clifford's Inn burning the midnight oil over legal studies, while Bacon did the same in Gray's Inn. Bacon had taken a degree at the University; Coke quitted it without fully qualifying for one. Bacon had genius plus plod. Coke had great plod minus genius. Coke, stony-hearted and stony-minded, loved neither pleasure nor poetry; but Bacon could combine love of all the Muses with his toil. To Coke, Spenser was practically a myth; but Bacon would linger over that poet's "Daphnaida." One of Coke's biographers has epigrammatically said: "At the commencement of his career he resolutely foreswore friendships not convertible to cash; and he was blessed with none at its close." Bacon sought friendships for their own sake, even if he betrayed them. Bacon could also taste the sweets of vengeance.

In 1594, when the office of attorney general. became vacant, both Bacon and Coke contended for it. The former was six years the younger and lost "because," wrote Coke, "a precedent of so raw a youth being promoted to so great a place it was impossible to find." Nevertheless, Coke could have made Bacon solicitor general; who would have accepted the subsidiary post, but Coke refused to give it, and then it was Bacon swore vengeance. Four years later Coke lost his wife, and in a diary that afterwards saw the public light he annotated her virtues much as he would have collected authorities for his reports. But before a third of the traditional year of mourning

had expired Coke moved for and obtained a new trial in the court of Hymen by wedding widow Lady Hatton, niece-at-law of Lord Chancellor Hatton. She was twentysix years Coke's junior; but her youth and beauty were not his beckoners, for these lay in the fact that she had a large fortune, was Bacon's cousin and had been sought by Bacon in marriage. Coke broke the law by a secret marriage, and the gossips said he did so fearing that public attention might direct Bacon to successful accomplishment of suit. The latter had his first revenge of Coke in that Madame Coke (for the husband had not yet been knighted) spurned his company and his dry pursuits, retained her widowed name of Lady Hatton and went to the Continent to live a life of pleasCoke on the rights and duties or institutes of marriage was therefore a volume never written.

ure.

Both Bacon and Coke became obsequious to her who was (whether ironically or not is a question for debating societies) called "Good Queen Bess," but doubtless Coke best practiced on the Shakespearean line about "thrift following fawning." When James succeeded to the crown Coke deepened obsequiousness and for a time believed in royal prerogative. The king continued him as attorney general, and made him Sir Edward. Edward. He who had badgered one favorite of Queen Elizabeth in her reign by a bullying prosecution, now in the reign of her successor was called upon to exhibit fresh arrogance and official brutality in the trial of Sir Walter Raleigh—if the word trial can be applied as understood in modern times. It was presided over by "that reformed highwayman, Judge Popham, who made amends for the delinquencies of his youth by hanging every criminal within his reach." Says another biographer of Coke, referring to his disgraceful bullying of the high-souled prisoner on the occasion: "So long as Coke could find payment for unclean work he betrayed no uneasy desire to wash