The sources of The Genius of the Common Law

1. Anglo-Saxon historical writings Kemble 3 neutral 3 citations · 1 passage

   ch. 1

   Kemble's writings are named as a possible authority the author explicitly does not invoke.

   It is not our business either to support or to contravene the Anglo-Saxon zeal of a Kemble, a Kingsley or a Freeman, when we can find everything we need for our particular purpose without going outside the text of Tacitus and the judicial caution of Gibbon’s comment thereon.

2. Francis Bacon 2 authority 2 citations

   iv.: enemies in the gate · v.: rescue and ransom

   Explicitly quoted and named alongside Smith as a competent authority on Tudor jurisdiction.

   and Bacon speaks in like manner of ‘maintenance or headship of great persons’ as one chief reason why jurisdiction of this kind was needful and politic;

3. Germania Tacitus 1 authority · 1 neutral 2 citations · 4 passages

   ch. 1 2 passages anchored here · viii.: the perpetual quest 2 passages anchored here

   The 'Germania' of Tacitus is explicitly named and repeatedly relied upon as the historical authority for describing the Germanic tribes.

   It is not our business either to support or to contravene the Anglo-Saxon zeal of a Kemble, a Kingsley or a Freeman, when we can find everything we need for our particular purpose without going outside the text of Tacitus and the judicial caution of Gibbon’s comment thereon.

4. Sir Frederick Pollock 2 authority 2 citations

   viii.: the perpetual quest 2 passages anchored here

   The author cites his own treatise on torts as a further source of examples on the point discussed.

   The learned reader may see a few examples collected in a footnote, Pollock on Torts, 8th ed.

5. Commentaries on the Laws of England Blackstone 1 authority · 1 extended 2 citations · 3 passages

   iii.: surrebutter castle · v.: rescue and ransom 2 passages anchored here

   Pollock reports and builds upon Blackstone's account of the eighteenth-century licensing of the general issue to develop his own argument about the piecemeal history of pleading reform.

   The partial reforms in pleading effected in the early part of the eighteenth century and commemorated, as we have already seen, by Blackstone, are almost as little remembered at this day.

6. Statute of Labourers medieval Parliament of England 1 neutral · 1 refuted 2 citations

   iv.: enemies in the gate · ch. 7

   Explicitly named as the earliest example in the series of statutes discussed.

   From the Statute of Labourers downwards the legislature has constantly imposed on the Courts its own solution of the novel problems raised by social and economic changes.

7. The Pilgrim's Progress John Bunyan 1 neutral · 1 extended 2 citations · 3 passages

   ch. 1 · ii.: the giants and the gods 2 passages anchored here

   Bunyan's allegorical work and its characters are directly invoked as a comparison.

   John Bunyan made a pretty bad mistake when he represented Giant Pope as decrepit;

8. A. V. Dicey 1 authority 1 citation

   ch. 7

   Dicey's work is explicitly credited with having admirably set forth the rise and decline of the doctrines discussed.

   Whatever may be the ultimate fate of the doctrines it sprang from (whose rise and decline in their influence on British legislation have been admirably set forth by my friend Professor Dicey), I do not think this is such an answer as our lady the Common Law has ever committed herself to, or indeed very well could.

9. Homer 1 neutral 1 citation

   ch. 1

   Homer's depiction of the Greeks is directly invoked as a comparative historical source.

   The Greeks described by Homer, for example, are much nearer to the Germanic ideal than Plato’s contemporaries;

10. Jeremy Bentham 1 authority 1 citation

    iv.: enemies in the gate

    Relied upon as the criterion applied to assess Morris's utopia, indicating an authority stance.

    Such a society might claim to justify its name of anarchist in so far as it knew nothing of a formal court or of those ‘names of office’ which Bentham considered the most decisive mark of established government.

11. News from Nowhere William Morris 1 neutral 1 citation

    iv.: enemies in the gate

    Described admiringly but examined analytically without a clear endorse or refute stance, hence neutral.

    William Morris, for example, as shown by his ‘News from Nowhere,’ which, whatever else it be, is the most delightful exposition of pacific anarchism in our language.

12. William Shakespeare 1 neutral 1 citation

    ii.: the giants and the gods

    The Shylock and Antonio suit clearly identifies Shakespeare's play, cited as a comparative example of accepted dramatic legal irregularity.

    Wagner took no more license than many other dramatists have taken, surely none so great as the wholesale violation of natural as well as legal justice which is accepted without demur — such is Shakespeare’s art, in the suit of Shylock against Antonio.

Each stands at a single passage. The chapter carries the anchors.

ch. 1 7 sources

Fortitude · Monarchy · Purgatorio · Tenures · his account of the Teutonic system · his comment on Tacitus's Germania · his history of English law

ii.: the giants and the gods 9 sources

Bible (Book of Isaiah, on kings as nursing fathers) · Domesday Book · Gotterdammerung · Holmes's account of the rational external standard · Jhering's dictum on form and caprice · Maitland's account of the nature of the Year Books · The Twelve Tables · the earlier Year Books · the treatise attributed to Glanvill

iii.: surrebutter castle 7 sources

Crogate's Case (8 Co. 66) · Crogate's Case: a dialogue in the Shades on Special Pleading Reform · Meeson and Welsby's Reports · Saunders' Reports · Stephen on Pleading · the Common Law Procedure Acts, 1852 to 1875 · the New Rules of 1834

iv.: enemies in the gate 21 sources

Charter of Pennsylvania (1681) · Chief Justice Fortescue's characterization of lawful government as 'political' · De Republica Anglorum · English Law and the Renaissance · Mr Phelps's phrase on equality of legal rights · Mr. Carter's critique of an ill-framed legislative project · Napoleon's codes · Provisions of Oxford · Sir Edward Coke's jurisprudential authority · Statute De Donis · Statute of Quia Emptores · Statute of Uses · Statute of Wards and Liveries · Statute of Westminster · address to the American Bar Association on state legislation · statutes against forcible entry · the 'Blue Laws' of Connecticut · the Canon Law · the Mosaic law (the Pentateuch) · the Paston Letters · the dooms of Anglo-Saxon kings

v.: rescue and ransom 7 sources

Assize of Novel Disseisin · Coke's Reports · Derry v. Peek · Judicature Act(s) · Junius's denunciation of Lord Mansfield's reforms · Quo Warranto · conjecture connecting Assumpsit to the writ of Covenant

vi.: alliance and conquest 11 sources

An essay on the superiority of the Anglo-Saxons · Bill of Rights · Blackstone's statement on the law merchant · Corpus Juris (Roman law compilation) · Doctor and Student · Indian Penal Code · Langdell's warning on Chancery's Roman learning · Maitland's characterization of the Common Law · Malynes's account of Chancery mercantile practice · Penal law of the Koran · Statute of Frauds

ch. 7 9 sources

Employers' Liability Act of 1880 · Song of Songs · Trade Disputes Act of 1906 · Workmen's Compensation Act · case fining the Norwich chandlers for a price-fixing covenant (1299 or 1300) · decisions forcing the fellow-servant doctrine on Scotland · draft Civil Code of New York · earliest classical authority on the necessary toleration of competition (rival schoolmasters' case) · leading Massachusetts judgment establishing the fellow-servant doctrine

viii.: the perpetual quest 29 sources

A History of the Criminal Law of England · Anglo-Saxon dooms (ed. Liebermann) · Codex Diplomaticus Aevi Saxonici / Essays in Anglo-Saxon Law · Commentaries on the Laws of England (vol. iii) · Commentary on Dante's Paradiso (canto xx) · Deutsche Rechtsgeschichte; Forschungen zur Geschichte des deutschen und franzosischen Rechts · Encyclopaedia of the Laws of England, s.v. 'Commercial Court' · English Common Law in the Early American Colonies · Eyre of Kent, 6 and 7 Edward II (Selden Society, 1910) · Fortescue on the Governance of England (Oxford, 1885) · Geist des romischen Rechts (4th ed., 1883) · Hayesiana · Law Quarterly Review, vol. IX (1893) · Leet Jurisdiction in Norwich · Origines Juridiciales · Paston Letters (No. 420) · Stephen on Pleading (Principles of Pleading in Civil Actions) · Suggestion on Ahab and Naboth (attributed) · Supposed Roman maxim ('personal actions die with the person') · The Cinque Ports · The History of Pendennis (chapter xxix) · The History of the Decline and Fall of the Roman Empire (chapter ix) · The Letters of Queen Victoria · The Rule against Perpetuities (section 26) · Trial by Combat · Verses in praise of Liberty · Year Book, 20 Edward III (Rolls Series) · Year Book, 42 Edward III, 4, pl. 14 · Year Books, 18-19 Edward III (Rolls Series, ed. Pike, 1905)