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Francis Moore's Reading on The Statute of Charitable Uses*
Published online by Cambridge University Press: 16 January 2009
Extract
The reading was an integral part of the education of the medieval law student, and a necessary exercise for the utter barrister who cast covetous eyes to the Bench of his Inn, the Order of the Coif and a judgeship in the Common Pleas or King's Bench. At one time each reader discoursed on one of the “old” statutes before Edward III (especially Magna Carta, Merton, Marlborough, Westminster I, Gloucester and Westminster II) but during the sixteenth century readers acquired a wider range of choice; so Coke and Bacon were to read on the Statute of Uses 1535 and Moore on the Statute of Charitable Uses 1601. The “antient readings” are said to have served the apprentices well, particularly as an introduction to the dark intricacies of medieval land law. Coke esteemed them as having five excellent qualities:
First, they declared what the common law was before the making of the statute, as here it appeareth. Secondly, they opened the true sense and meaning of the statute. Thirdly, their cases were briefe, having at the most one poynt of the common law and another upon the statute. Fourthly, plaine and perspicuous, for then the honour of the reader was to excell others in authorities, arguments, and reasons for proofe of his opinion, and for confutation of the objections against it. Fifthly, they read, to suppresse subtill inventions to creepe out of the statute.
How more favourable than their modern counterparts, mused Coke, which
having lost the said former qualities, have lost also their former authorities: for now the cases are long, obscure, and intricate, full of new conceits, liker rather to riddles than lectures, which when they are opened they vanish away like smoke, and the readers are like to lapwings, who seeme to bee neerest their nests, when they are farthest from them, and all their studie is to find nice evasions out of the statute.
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- Copyright © Cambridge Law Journal and Contributors 1967
References
1 Thorne, S. E., Readings and Moots at the Inns of Court in the Fifteenth Century, Vol. 1 (1952) 71 Selden Society ix-xviiGoogle Scholar; and the same author's lecture on “The Early History of the Inns of Court,” printed in Graya (1959) No. 50, M, 79.
2 Co.Litt. (London, 1832, ed.) 280–280v.
3 For example, Middle Temple Records, Vol. I (London, 1904), 136, 140, 182, 331, 337, 369, 398, 407Google Scholar.
4 (London, 1666), 207.
5 Middle Temple Records, Vol. I, 339 (Hilary Term, 1594). There are other instances in the records of the judges' concern to maintain the integrity and quality of the readings: see, for example, the orders reproduced in the Middle Temple Records, Vol. I, 200 (1574); and Dugdale, Origines Juridiciales, Chap. LXX.
6 See the answer of the Benchers of the Middle Temple, Middle Temple Records, Vol. I, 340; dated 22 April 1594.
6a Cf. now Prest's, W. R. recently published article, The Learning Exercises at the Inns of Court 1590–1640, (1967)Google Scholar IX Journal of the Society of Public Teachers of Law, 301. Prest argues that “the extent of the decline in the system of learning before 1642 has been exaggerated. The main causes of decline … were present but dormant. They had little effect on the workings of the system during our period.” There is no doubt that the system did operate in a formal fashion, but Mr. Prest has not convinced me that its workings were effective.
7 In the Middle Temple and the other Inns, readers who read but once were called single readers; those who read twice, double readers. The single reader always read in the summer: Moore was, therefore, such a reader. See Dugdale, Origines Juridiciales, 209.
8 For much that follows, see Dugdale, Origines Juridiciales, 219; J. W. Wallace, The Reporters (Philadelphia, 3rd ed., revised, 1855), 85–87; Dictionary of National Biography, Vol. XXXVIII (London, 1894), 348–349; W. H. Stevenson and Salter, H. E., The Early History of St. John's College, Oxford (Oxford, 1939), 319Google Scholar; A. Wood's Athenae Oxonienses, Vol. II (London, 1815, Bliss ed.), 304. These printed sources are supplemented by the information in C.U.L. MS. Hh. III. 2, ff. 1–5; on which see post, pp. 236–238.
9 For example, it is said that Francis Moore was the first man to practise the conveyancing device of lease and release: see Barker v. Keat (1677) 2 Mod. 249, 252, per Sir Francis North CJ. Holdsworth accepts this oral tradition: see History of English Law, Vol. VII (London, 1937), 360–361Google Scholar.
10 Middle Temple Records, Vol. II (London, 1904), 441–442Google Scholar. This Parliament was held at Winchester, during the Treasurership of Bartholomew Man, on 23 November 1603.
11 43 Eliz. 1, c. 4.
12 39 Eliz. 1, c. 6.
13 Lord Eldon once described it as a work of “great authority”: see Att.-Gen. v. Hartley (1820) 2 Jac. & W. 353, 371.
14 There are a few precedents and cases in Duke which are not found in Herne's second edition. So, for example, Duke's pp. 32–34, 41–54, 94 (Case 50) and 95–104 are not to be found in Herne. Duke's format is much more pretentious than Herne's, and also contains a fulsome dedication to Charles II.
15 Herne was published by Timothy Twyford, Duke by Henry Twyford. On the Twyfords, see Plomer, H. R., A Dictionary of the Booksellers and Printers who were at Work in England, Scotland and Ireland from 1641 to 1667 (London, 1907), 183Google Scholar.
16 Post, p. 233.
17 The form of the Abridgment, as reproduced in Duke, significantly differs from that of the C.U.L. MS. of the Reading. The C.U.L. MS., which is, I believe, in Moore's own hand, is in the traditional form of case followed by explanation: post, p. 231. But the Abridgment reads more like a simple textbook on the law of charity as found in the statute; the principles of law are boldly and simply set out, divorced from their “case” context. There is much material in the C.U.L. MS. of the Reading which does not find its way into the Abridgment. But the Abridgment does add some new law which is not found in the C.U.L. MS.
A priori, it is not easy to accept that a lawyer as distinguished and active as Moore would take the trouble to abridge his original text into a form which would appeal and be of help to later generations. However, Twyford's claim that he is printing Moore's own MS. cannot lightly be dismissed; for the Abridgment is a sophisticated and coherent restatement of principles which are diffused throughout the Reading. But there is evidence in the printed text of the Abridgment of later interpolations. On balance I am prepared to accept that the Abridgment is, at least, based on Moore's own MS., even if not abridged by him.
18 Post, pp. 236–238.
19 Dugdale, Origines Juridiciales, 206.
20 Journals of all the Parliaments Held during the Reign of Queen Elizabeth (London, 1682).
21 Proceedings of the last four Parliaments of Queen Elizabeth (London, 1680).
22 D'Ewes, 657, 669.
23 Townshend, 285.
24 C.U.L. MS. Hh. III. 2. It is wrongly described in the C.U.L. Catalogue of Manuscripts (Cambridge, 1858), 272, as being upon the statute 43 Eliz. 1, c. 7, instead of 43 Eliz. 1, c. 4. The source of this mistake is Moore's MS. itself, f. 6, which appears to be in Moore's own hand: see post, p. 233.
24a By tradition the Autumn Reading began on the first Monday in August “unless this [these] day[s] be festival”: Dugdale, Origines Juridiciales, 206–207. It should at this time have lasted for three weeks; but readers often failed to last the course, much to the concern of the judges: see Middle Temple Records, Vol. I, 339–340 (1594).
25 Dugdale, Origines Juridiciales, 206, notes that a reader normally only had two benchers assistants, “being, for the most part, the two next precedent Readers.” Moore, however, had five (post, p. 233). Henry Montague, who had read the preceding autumn; Mathewe Dale, a double reader, who had read as long ago as 1576 and 1585: Thomas Pagitt (or Paget), a double reader, who had read in 1584 and 1594; Francis Walron (or Walrond), who had read in 1601; and George Writnighton (or Wrightnighton), who was Lent reader in 1605.
In all cases, and hereafter, the primary spelling is Moore's; the spelling in parenthesis is that adopted in other sources, which is frequently more acceptable. Moore was probably writing from memory or his own rough notes.
26 Cupboardmen were so named “because they were stationed at the cupboard, a square or oblong table placed near the Bench table and the centre of ceremonies in the Hall”: see The Middle Temple Bench Book, 2nd ed. (London, 1937), xixGoogle Scholar. The four cupboardmen were the four “ancienest Barristers of the House who were to dispute the cases with the reader”: see Dugdale, Origines Juridiciales, 203, for further details.
Moore's cupboardmen were Lawrence Hyde (or Hide), Will Swantone (or Swaynton); Francis Harvy (or Harvey); and Edward Cason: see post, p. 234, and Middle Temple Records, Vol. II, 487. All these were to become readers. This confirms that it was the practice of the Middle Temple at this time only to choose as cupboardmen those who resolved to read. The cupboardmen could appoint deputies to perform their duties, but only with due excuse. Robert Smith and Anthony Benn deputised for Moore's cupboardmen. Post, p. 234, Moore was a cupboardman in 1606 and 1607.
27 This privilege had been considerably abused. At this date the Middle Temple was making an earnest effort to control the reader's discretion. So it was the practice of that House to confirm in its Parliament the calls of its readers; to fine them for calling “unfit persons”; to disallow the calls; and to regulate the number of members its readers could call: Middle Temple Records, Vol. I, 189, 303 and 391.
Moore called to the Bar: John Mercer, Edward Latton and Francis Keate (or Keat): post, p. 234. Normally a single reader was allowed only two calls so that Moore was given a special privilege, which is not noted in the formal records of the Society. His calls were confirmed in the Parliament held on 30 October 1607: see Middle Temple Records, Vol. II, 484.
28 The others mentioned by Moore are: Robert Knollys, George Wattnighton (?) (post, p. 234); a Mr. Smith; and a Mr. Angell (or Aungell). The Middle Temple Records, Vol. II, 483, also give the name of Richard Lewknor. In none of these cases, save Angell's, was a fine demanded from the member. Those members of the Inn who were specially admitted would generally wish to be admitted for purely social reasons. The Inns at this time were one of the fashionable meeting-grounds of London, most desirable clubs to which young gentlemen would aspire to belong.
29 Transcribed post, pp. 233–236.
30 Dugdale, Origines Juridiciales, 207, narrates: “although it be called the Readers Feast, yet he bears no part of the charge, the same being imposed on four gentlemen of the House; whom they call Stewards of the Feast; whereof two are Utter-Barristers, and the other two under the Bar, whose charge is now at the least x1 a piece; but heretofore less: for by an Order made 34 Eliz. they were to be at no farther charge than five pounds a man.”
By an order of the Middle Temple Parliament, dated 4 November 1586, the Stewards were required to bear the costs equally between them: see Middle Temple Records, Vol. I, 287. In fact Moore's Stewards contributed £8 a piece, and “I performed the feaste at myne own costes.” Post, p. 234.
31 What follows is a summary and not a transcription of Moore's seven divisions, which are set out in full in f. 6. The divisions are thereafter only noted in marginalia in the body of the MS.
32 Two examples should suffice: division six (ff. 244–280v) follows division seven (ft. 205–241) in the C.U.L. MS.; again, ff. 17–18v should follow ff. 11–14, being a part of the discussion of Moore's second case and not his third case, ff. 15–15v. F. 16 is blank.
33 ff. 7–10v. The translation is my own.
34 ff. 47–48. The translation is my own.
35 Black Books of Lincoln's Inn, Vol. II (London, 1898), 293. (This event is recorded as having happened in 1630, when the reader from Lincoln's Inn arrived at Furnival's Inn.) On the Inns of Chancery, see Sir Cecil Carr's introduction to the Pension Book of Clement's Inn (1960) 78Google Scholar Selden Society, passim.
36 Twelve cases appear to have been argued by the cupboardmen: they are 1–2 (Division I, Case 2) (f. 11); II–1 (f. 47); II–3 (f. 55); III–2 (f. 91); IV–2 (f. 131); V–1 (f. 167); V–2 (f. 170); V–3 (f. 173); VI–3 (f. 252); VI–6 (f.264); VII–2 (f. 209); VII–6 (f. 225).
On the whole, these cases are more complex than those which were not argued. It is significant, too, that division five, where Moore considers which colleges and cities, etc., were exempt from the statute, was the subject of the greatest debate.
37 Dugdale, Origines Juridiciales, 206.
38 But after dinner there might be further disputation and discussion. The scene at the reading is well set by Dugdale, 203 et seq., and by Edward Waterhous in his Fortescutus Illustratus (London, 1663), 544–546.
39 See, for example, ff. 43–43v, 51–53, 95–96v, 173–174v, 193–193v, 197–198v.
40 I shall attempt this task in a forthcoming book on the history of the English law of charity.
41 Reading on the Statute of Uses, 1535 (27 Hen. 8, c. 10): B.M. M.S., Stowe, 424.
42 Reading on the Statute of Uses, 1535 (London, 1804, Rowe ed.).
43 Ante, p. 229, n. 25.
44 Ante, p. 229, n. 26.
45 Ante, p. 229.
46 Ante, p. 230.
47 Ante, p. 230.
48 In all probability this was George Wrightnighton, son of the single reader and Master of the Bench; ante, p. 229.
49 The donors included relatives and friends of Moore, members of his Inn, and others, like the corrector of the law print, Smith, whose son he had admitted, who were in one way or another indebted to him.
50 13 Eliz. 1, c. 4, and 27 Eliz. 1, c. 3.
51 35 Hen. 8, c. 4; 13 Eliz. 1, c. 7; 1 Jac. 1, c. 15. Although Moore was not to read on these statutes, he did incidentally discuss some of their provisions: see, for example, ff. 35–35v, 128, 209–212v, 217–218v, 252–254v. He was no doubt determined that his skirmishing researches should not be wasted.
52 Psalms, xxxvii, 18:
Quoniam ego in flagella paratus sum,
et dolor meus in conspectu meo semper.
53 Query if Moore intended to quote Petronius' Satyricon, 130: “numquam tamen ante hunc diem usque ad mortem deliqui: habes confitentem reum.” (I am indebted to Mrs. W. A. F. P. Steiner for this suggestion).
54 Psalms, ii, 10:
Et nunc, reges, intelligite;
erudimini, qui judicatis terram.