The Legal Philosophers, Or The Jurists:

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THE LAW BOOKS

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-A-

Anson, William R (1843-1914)

Anson was the M.P. for Oxford University from 1899. Anson is noted for his scholarly books on the law, particularly his on contracts (1884) and on the constitution (1886-92); they have both become legal classics.

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-B-

Bacon, Francis (1561-1626)

Bacon was the lord chancellor of England; his removal in 1621 makes for a most interesting story. For legal philosophers, however, Francis Bacon is most well known for his delineation of the principles of the inductive scientific method, which constituted a breakthrough in the approach to science. Bacon was the originator of the expression, "Knowledge is power."

Bagehot, Walter (1826-77)

Mr. Bagehot was a mathematician; a moral philosopher; a political economist; a trained, though not a practising, lawyer; a banker; a shipowner; and, from 1860 till his too early death in 1877, the editor and manager of the Economist. Primarily, however, Bagehot was a reader and critic of books. I have a number of Bagehot's books including: Biographical Studies (1867) (London: Longmans, Green; 1889), Literary Studies (Everyman's Lib., #520-1, 1932), Lombard Street (New York: Scribner, Armstrong & Co., 1874) and The English Constitution (1867).
Birrell wrote an essay on Bagehot.

Bentham, Jeremy (1748-1832)

In Bentham's writings, politicians, beginning with those of the early 19th century, found legitimization in their most favoured activity: the business of making laws; and, they have been doing it in great quantities ever since. Bentham figured that laws should be socially useful and not merely reflect the status quo; he thought it to be a "sacred truth" that "the greatest happiness of the greatest number is the foundation of morals and legislation."

Birkett, Sir Wm. Norman, Lord Birkett of Ulverstron (1883-1962)

Before being knighted and raised to the bench in 1941, Birkett had been one of the most well paid and well recognized trial lawyers at the bar in England. In 1946 he was one of the two judges appointed by the British to go to Nuremburg.

Blackstone, Sir William (1723-1780)

Not being able to make a living at the bar, Blackstone went over to the academic side and became a professor at Oxford, his Alma Mater. (He was the first at a British university to teach English law, as opposed to Roman law.) Blackstone was to become, eventually, a Member of Parliament; and then, later, a Judge of the Common Pleas. Blackstone is singularly known for his Commentaries, a work which earned him a fortune. In my copy of the Commentaries on the Law of England (1765-9), (New York: W. E. Dean, 1836) there is a 14 page biographical sketch at the front of the book, pp. v-xviii.

Bourinot, Sir John George (1837-1902)

A Nova Scotian, Bourinot was a legal historian with a special expertise in the practices and procedures of the parliament of Canada.

Brandeis, Louis D. (1856-1941)

Brandeis was born Louisville, Kentucky. He obtained a LL.B. at Harvard in 1877 and was appointed an associate justice of the United States Supreme Court in 1916, and remained there until 1939. A Boston public interest attorney, he revolutionized legal practice by introducing sociological and economic facts (his presentation to the court in this regard became know as a Brandeis brief, first used before the Supreme Court in Muller v. Oregon [1908].) An enemy of industrial and financial monopoly, he formulated the economic doctrine of Woodrow Wilson's New Freedom. He earned a high reputation for judicial liberalism, and after 1933 he was one of the few justices who voted to uphold most of the "New Deal" legislation.

Brougham, Henry (1778-1868)

Born in Edinburgh, Henry Brougham, after being educated at the University of Edinburgh, was, in 1800, admitted to the Scottish bar; in 1802 he helped with others to create the "Great Gun" of the Enlightenment, the Edinburgh Review. In 1806, he settled in London; in 1808 called to the English bar, and by 1810 had entered parliament; he was active in the anti-slave movement. Brougham, in 1810, defended Leigh Hunt in a libel action following the publication of an article on military flogging. In 1821 he defended Queen Caroline, the wife of King George IV, on a divorce bill before parliament; the population was firmly behind the Queen, and as a result Brougham became a popular idol of the people. Brougham did much for education; he established the London University, the first Mechanics' Institute and of the Society for the Diffusion of Useful Knowledge. He eventually became a judge.
G. M. Trevelyan [Lord Grey of the Reform Bill (London: Longmans, Green and Co., 1929, 2nd ed. at p. 190)] was of the view that Brougham was one of the "most remarkable and entertaining" men of the time. He thought that "Brougham was the embodiment of plebeian self-confidence, self assertion, and vitality."

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-C-

Campbell, Lord, John (1779-1861)

Campbell initially studied for the church but turned to the law and journalism; he was elected to the bar in 1806. Campbell was a Whig member of parliament (1830-49). He was knighted and made the solicitor-general in 1832 and attorney-general in 1834. As a judge he rose to be the chief justice of the Queen's Bench (1850) and lord chancellor in 1859. Chambers concluded that Campbell "disfigured" his work "by the obtrusion of himself, and his later volumes by inaccuracy." The work he is noted for, of course, was Lives of the Chief Justices, From the Norman Conquest Till the Death of Lord Tenterdon. In this multi-volumed work, beautifully bound and lithographed, one will see numerous biographical notes and illustrations of not just the judges of the time but also of their places, such as Lincoln's Inn, Clifford's Inn, and The Court of King's Bench. In this work, we will see a number of the great English figures of history, including: Wolsey, Moore, Raleigh, Croke, Coke (colored lithograph), Francis Bacon and Oliver Cromwell. Further, we will see judges in their robes (colored lithographs), The Trial of Charles 1st, Matthew Hale (colored lithograph), Edward Hyde; Queen Ann, George 1st, Charles (the young pretender), George 2nd; Joseph Addison, Marborough, Edmund Burke, Lord Chatham, George 3rd, Lord North, Lord Cornwallis, Pitt (the younger), Lord Ellenborough (colored lithograph), Warren Hastings, Jeremy Bentham, Wellington, Robert Peel, Lord Tenderten (colored lithograph), Lord Canning, Lord Russell, etc. There has been more than one edition; mine (Long Island New York 1894-99) is edited by James Cockcroft and is in five volumes and includes 14 cold plates.

Cardozo, Benjamin Nathan (1870-1938)

Cardozo was born in New York city in 1870; he died in 1938. Educated at Columbia University (1889); he practised law in New York city. He was appointed an associate justice of the United States Supreme Court in 1932; he remained there until 1938. (Herbert Hoover, a noted humanitarian, was the President in 1932.) Cardozo in his decisions was an eloquent and influential supporter of liberal social and economic views. His published lectures are considered classics of jurisprudence. For a sample of Cardozo's political views, see a piece of his work published within these pages "The Altruist in Politics."

Coke, Sir Edward (1552-1634)

Educated at Cambridge; Coke was called to the bar in 1578. His rise during the times (Elizabethan) in which he lived, was impressive; after a series of appointments he became: a member of the House of Commons (1589), solicitor-general (1592), Speaker of the House (1593), attorney-general (1594), judge (1606), and Chief justice (1613). As the solicitor-general he prosecuted Essex and Raleigh, with "much rancor." In 1617, he was removed from the court on "trivial grounds," the situation having been "aggravated by a quarrel with his wife." Eventually he fell entirely out of favor with the court, and, indeed, ended up, at the age of 70, spending nine months' of imprisonment in the Tower. The work for which Coke shall ever be remembered for by legal historians is Institutes of the laws of England (1628-44) this work deals "with tenures, statutes, criminal law and the jurisdiction of the several law courts." See Catherine D. Bowen's The Lion and the Throne (Boston: Little, Brown; 1957), a biography (winner of the National Book Award). In addition to dealing with the life of Coke, Bowen deals with kindred topics, such as: Queen Elizabeth, The Inner Temple, The Impeachment of Bacon, Trial of Essex, Trial of Sir Walter Raleigh, The Gun Powder Plot, Common Law, and The Institutes.

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-D-

Denning, Lord (1899-1999)

Lord Denning was one of the leaders of the English bench and bar. Educated in Oxford, Lord Denning was called to the bar in 1923 and appointed a judge in 1944 and was to eventually become the Master of the Rolls (1962-1982). He was responsible for many decisions, often controversial; and, thus, became the darling of law students. Books, of which I am familiar, written by Denning, include: The Changing Law (1953), The Road to Justice (1955), The Discipline of Law (1979) and What Next in the Law (1982).

Dicey, Albert Venn (1835-1922)

Professor of Common Law at Oxford, Dicey was to become one of the most respected English legal writers, ever; especially, in respect to constitutional law. Dicey was very much concerned "to the modern threat to freedom in the incursions that were being made into The Rule of Law." Dicey concluded that "the twin pillars upon which our system rests," to quote Professor Keeton (The Passing of Parliament), "are the sovereignty of Parliament and the supremacy of the common law, administered in the ordinary courts independent of the executive over everyone within the realm, whether public official or private citizen." Dicey's Law of the Constitution (1885) has a "comprehensive and luminous introduction." Other works of Dicey's which I have: Conflict of Laws (1896), The Privy Council (1887) and Lectures on the Relation Between Law & Public Opinion In England (1905).

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Frankfurter, Felix (1882-1965)

From Vienna, Frankfurter arrived with his parents from Vienna at the age of 12. He attended Harvard Law School and graduated at the top of his class. He worked at the New York office of United States Attorney which led to him going to Washington, there to become Secretary of War under Taft. In 1939, Frankfurter was appointed to the Supreme Court. The book I have about Frankfurter is Felix Frankfurter Reminisces. This book is not a biography but rather snippets taken from a taped oral interview conducted by Dr. Harlan B. Phillips of Columbia University in 1953 (New York: Reynal & Co., 1960).

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-G-

Grotius, Hugo (1583-1645)

Grotius was born in Delft. In 1618, he found himself on the wrong side of a religious dispute and was condemned to life imprisonment. He was to escape however, and was to find refuge in Paris in 1621, and, indeed, was to receive a pension from Louis XIII. In 1625, Grotius was to bring out his legal masterpiece, De Jure Belli et Pacis (On the Law of War and Peace); it is considered to be the first great contribution to modern international law. In this work Grotius asserted that the answer to getting over individualistic laws, which vary from country to country, was to resort to natural law. He struck upon the notion of social contract (Grotius' work was in turn picked up in England by Hobbes and Locke) thinking that this be the rational basis for rational principles that would guide nations to adopting a proper system of laws. Grotius eventually returned to Holland: there, he died, at Rostock.

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-H-

Hallam, Henry (1777-1859)

Educated at Eton and Christ Church, Oxford and called to the bar in 1802, Hallam is most famous for his exposition of English constitutional law. Hallam wrote The Constitutional History of England from Henry VII [1457] to George II [1760] in 1827. (New York: Harper.) (For a sample of Hallam's writing see his essay, "The English Constitution.")

Hanbury, Harold Granville:

All I know, unfortunately, of Hanbury, is, that he was of Lincoln's Inn and taught at both Oxford and London (likely all we need to know about him). As any second year law student would know, Hanbury is the author of Modern Equity. So, too (I was to find out many years later) Hanbury was the author of English Courts of Law (1944) (Oxford University Press, 1957).

Hastings, Sir Patrick (1880-1952)

Sir Patrick, as a British barrister, gained quite a reputation on account of his involvement in criminal cases [Vaquier (1924) and Rouse (1931)]. He eventually became a M.P. and was knighted in 1924. The work of Sir Patrick which I happen to have is Famous and Infamous Cases; (Ann Boleyn, Sir Walter Raleigh, Charles I, Captain Kidd, Divorce case of Queen Caroline, The Tichborne Claimant, Osgar Wilde, et al.) (London: Heinemann, 1950).

Herbert, Sir Alan Patrick (1890-1971)

Though called to the bar, Herbert never practised. A successful author and a member of parliament (1935-50), Herbert wrote many humorous articles; he wrote for Punch. Herbert campaigned against jargon and officialease; did much through parliament to improve the English divorce laws. Two of works of Herbert's which I have, are, Still More Misleading Cases (London: Methune) and Uncommon Law (1935) (New York: Dorset).

Holmes, Oliver Wendell, Mr. Justice (1841-1935)

Holmes was a judge of the United States Supreme Court and should not be confused with his famous literary father, the writing doctor. Holmes taught law at Harvard, served on the Massachusetts Supreme Court, then, in 1902, was appointed to the United States Supreme Court. The book Justice Holmes is known for is The Common Law (1881); my copy (Boston: Little, Brown; 1990) is the 56th Printing.

Howard, John (1726-90)

Sixteen year old Howard was left a fortune by his father, a successful upholsterer. With no need to work, Howard traveled extensively. In 1756, the year France and England went to war (Seven Years War) on a sailing trip to Spain, Howard's vessel was captured by a French privateer. In the result, Howard ended up spending time in a French prison; not long, but long enough for Howard to experience, first hand, the terrible conditions of a prison. On his return to England, Howard was to take up duties as an English Sheriff, a judicial officer of considerable influence. He made a point of traveling throughout England and made notes on the prison system as it then existed. In those days when one found themselves in prison, without having the benefit of a trial, or not, he could not secure his release until he or his friends paid the jailer his fees; it being then, apparently, a user pay system. The results of Howard's research were soon to become known and eventually there was to be enough pressure brought to bear such that parliament, in 1774, passed two important prison reform bills. One provided for fixed salaries for jailers; the other, for enforcing cleanliness.

Hunter, Wm. A.:

Of the Middle Temple, Hunter wrote Hunter's Introduction to Roman Law (1934) (London: Sweet & Maxwell, 9th ed., 1955).

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-L-

Leoni, Bruno (1913-67)

A professor of the University of Pavia, Italy; President of the Mont Pelerin Society, Leoni's work which is to be read by those at all interested in the subjects, Freedom and the Law. Leoni demonstrates, through historical evidence, the role of law in a Free Society; and how common law, which among individuals encourages "spontaneous adjustment" by its tradition, tacit rules and private arbitration, is being replaced with written, or legislative law, a type of law which leads to the destruction of individual freedom. (Indianapolis: Liberty Press, 3rd Ed., 1991.)

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-M-

Maine, Sir Henry Sumner (1822-88)

Sir Henry Sumner Maine was a professor of International Law, Cambridge. Maine, more than any other man, brought legal historians around to the belief that law and legal institutions must be studied historically if they are to be understood. Maine was of the view that people worked with one another in civilized society because of consent, tradition, inertia, or mutual advantage; versus, force (cf. Stephen's view that force was ultimately needed.) Through Maine's historical analysis it can be seen that optimum fairness or justice is achieved by people in civilized society through contract, not status: words for which Maine became known for -- contract versus status.

Maitland, Frederick William (1850-1906)

Maitland became a barrister in 1876 and then passed on into the academic halls to become a reader in English Law at Cambridge. Maitland's contribution to legal literature is the History of English Law (1895) (Cambridge University Press, 1908) which he wrote in collaboration with Pollock.

Mansfield, Lord, William Murray (1705-93)

Lord Mansfield came from an aristocratic circle. After being educated at Christ Church, Oxford, Mansfield raised himself through the political system; serving as an MP he held positions as the solicitor-general and attorney-general, as well as becoming a member of cabinet; in 1756, he became Chief Justice of the King's bench. "He was impartial as a judge, but his opinions were unpopular. ... During the Gordon riots of 1780 his house was burned down." (Chambers.)

Montesquieu, Charles Louis de Secondat, baron de la Brède et de (1689-1755)

French philosopher and jurist, Montesquieu spent two years (1729-31) in England where he studied the political writings of John Locke. He went back to France much impressed by the British Constitution which he was to hold up to the admiration of the world. Montesquieu believed in the necessity in the separation of powers, a doctrine that was picked up the framers of the American Constitution. Montesquieu's great work is The Spirit of Laws published in 1748; in it, Montesquieu compares the republican, despotic, and monarchical forms of government; in it Montesquieu reveals the influence that John Locke had on him. (Incidently, it was Montesquieu who said, "Useless laws weaken the necessary laws.")

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Pollock, Sir Frederick (1845-1937)

Called to the bar in 1871; Professor at University College at London (1882) and then at Oxford (1883); Editor of law reports and Judge of Admiralty Court; one of the most famous English law writers and much respected in the profession, his works include: Principles of Contracts (1875), Spinoza (1880), Law of Torts (1887).

Pound, Roscoe (1870-1964)

The "Dean of American jurisprudence," former Dean of the Harvard Law School, Roscoe Pound is remembered for his The Spirit of the Common Law. Another of his works which should be required reading by anyone fixed with the responsibility of setting government policy is, Administrative Law.
"... Roscoe Pound, a native of Nebraska who was a great botanist before he became a great legal scholar. He had been professor and dean of the University of Nebraska Law School. From there he moved to Northwestern University Law School then to Chicago Law School, and finally he was brought on to the Harvard Law School. He was an American legal scholar who was widely read not only in German juristic literature, but Pound spelled it out, applied it and amplified it, that law isn't something that exists as a closed system within itself, but draws its juices from life. Life was being studied, sought to be understood by scholars in other fields, sociology, economics, anthropology, and Pound was a great fellow for associating with students in other fields instead of treating law as a closed system with premises of its own i relation to its own ends." [Felix Frankfurter Reminisces (New York: Reynal & Co., 1960) pp. 167-8.]

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-S-

Saleilles, Raymond:

Professor Saleilles is of the University of Paris. His work is The Individualization of Punishment. This is the classical theory in respect to French penal legislation with specific reference to the French Penal codes of 1791 and 1810. My copy (Boston: Little, Brown & Co., 1911) has an introduction by Roscoe Pound.

Stephen, Sir James Fitzjames (1829-1894)

Lawyer, professor and judge: Stephen wrote History of the Criminal Law (1883) which became the standard work. Two other works of Stephen's which I have on my shelf are Liberty, Equality, Fraternity (1873) and A Digest of Criminal Law (Crimes and Punishments) (c. 1877). Stephen, in his writings, attacked classic liberalism as is represented in the writings of John Stuart Mill. Indeed, Stephen was of the view that the "theories advanced ... in most of his later works are unsound." (See Liberty, Equality, Fraternity, p. 53.) The Liberty, Equality, Fraternity was written in response to that cry, that democratic creed - Give me liberty, equality and fraternity. "There are a vast number of matters in respect of which men ought not to be free; they are fundamentally unequal, and they are not brothers at all ..." [Liberty, Equality, Fraternity (1873); (University of Chicago Press, 1991) at p. 262.] It is worth while to note Stephen's philosophy on life: "We stand on a mountain pass in the midst of whirling snow and blinding mist, through which we get glimpses now and then of paths which may be deceptive. If we stand still, we shall be frozen to death. If we take the wrong road, we shall be dashed to pieces. We do not certainly know whether there is any right one. What must we do? 'Be strong and of a good courage.' Act for the best, hope for the best, and take what comes. Above all, let us dream no dreams, and tell no lies, but go our way, wherever it may lead, with our eyes open and our heads erect." [Liberty, Equality, Fraternity (1873).]

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-W-

Wigmore, John H.:

See my work on Wigmore elsewhere.

Williams, Glanville Llewelyn (1911- )

A renown scholar, educated at Cambridge, called to the bar at the Middle Temple in 1935, Williams taught as a professor of law at University of London (1945-55) then went on to Cambridge. In the 1950s he was a visiting professor at Columbia University. I felt fortunate when I ran across Williams' work, The Sanctity of Life and the Criminal Law. In this work the reader will find the author's views on sterilization, abortion, suicide, and euthanasia; (New York: Knopf, 1970).

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