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Anthony Fitzherbert

brass monument in chancel floor of Norbury church to Anthony Fitzherbert and his wife
Born 1470
Norbury
Died 27 May 1538
Resting place Norbury
Nationality English
Education unknown
Occupation Judge
Religious beliefs Catholic
Spouse(s) Dorothy Willoughby
Matilda Cotton
Parents Ralph Fitzherbert and Elizabeth Marshall

Sir Anthony Fitzherbert (1470 – 27 May 1538) was an English judge, scholar and legal author, particularly known for his treatise on English law, New Natura Brevium (1534).

Contents

Biography

He was the sixth son of Ralph Fitzherbert of Norbury, Derbyshire, and Elizabeth Marshall. His brothers died young so he succeeded his father as Lord of the manor of Norbury, an estate granted to the family in 1125. Wood states that he was educated at Oxford, but no evidence of this exists; nor is it known at which of the inns of court he received his legal training, though he is included in a list of Gray's Inn readers [1] He was called to the degree of serjeant-at-law, 18 November 1510, and six years later he was appointed king's serjeant.

He had already published (in 1514) his great digest of the Year Books which was the first systematic attempt to provide a summary of English law. It was known as La Graunde Abridgement and has often been reprinted, both entire and in epitomes, besides forming the foundation of all subsequent abridgments. He also brought out an edition of "Magna charta cum diversis aliis statutis" (1519). In 1522 he was made a judge of common pleas and was knighted; but his new honours did not check his literary activity and in the following year (1523) he published three works: one on law, Diversité de courtz et leur jurisdictions (tr. by Hughes in 1646); one on agriculture, The Boke of Husbandire; and one of law and agriculture combined, The Boke of Surveyinge and Improvements. All three were frequently reprinted and though Sir Anthony's authorship of the Boke of Husbandrie was formerly questioned it is now regarded as established. Meanwhile his integrity and ability caused much business to be entrusted to him.

La Graunde Abridgement was a collection of cases compiled out of the Year Books and published by Sir Anthony Fitzherbert; this edition was printed in 1577.

In 1524 Fitzherbert was sent on a royal commission to Ireland; Archbishop Warham appointed him by will sole arbitrator in the administration of his estate; and in 1529 when Wolsey fell, he was made a commissioner to hear chancery causes in place of the chancellor, and he subsequently signed the articles of impeachment against him. As one of the judges he unwillingly took part in the trials of the martyrs Fisher, More, and Haile, but he strongly disapproved of the king's ecclesiastical policy, particularly the suppression of the monasteries and he bound his children under oath never to accept or purchase any abbey lands. In 1534 he brought out "that exact work, exquisitely penned" [2], La Novelle Natura Brevium, which remained one of the classical English law books until the end of the eighteenth century. His last works were the constantly reprinted L'Office et Auctoryté des justices de peas (1538), the first complete treatise on the subject, and L'Office de Viconts Bailiffes, Escheators, Constables, Coroners. Sir Anthony was twice married, first to Dorothy Willoughby who died without issue, and secondly to Matilda Cotton by whom he had a large family. His descendants have remained Catholic and still own his estate of Norbury as well as the family seat at Swynnerton.

Cases and works

  • It was held by Fitzherbert J, as early as 1536 (YB 27 Hy VIII Mich pl 10) that a member of the public could sue for a common or public nuisance if he could show that he had suffered particular damage over and above the ordinary damage suffered by the public at large. To the present day, causing a public nuisance has been treated as both a crime and a tort, the ingredients of each being the same.[3]
  • Attributed in Year Book 26 Hen 8 TT, p 4 c 15 (ed 1679) to Fitzherbert J: "for one can create common appurtenant at this day, and one can alienate it, and sever it from the land to which it is appurtenant ..." The author comments, at p 273, that "the passage ... must be understood as applying only to common appurtenant for a certain number".[4]
  • Fitzherbert, in his new Natura Brevium (1534) 94D, says that:"If a smith prick my horse with a nail, I shall have my action on the case against him, without any warranty by the smith to do it well"; and he supports it with an excellent reason: "for it is the duty of every artificer to exercise his art rightly and truly as he ought".[5]
  • In the note to Fitzherbert Nat. Brevium, 128, which is attributed to Lord Hale, it is said, “If A. and B. have lands adjoining, where there is no enclosure, the one shall have trespass against the other on an escape of their beasts respectively, Dyer 372, Rastal Ent. 621, 20 Ed. 4. 10, although wild dogs, &c., drive the cattle of the one into the lands of the other.” No case is known to us on which in replevin it has ever been attempted to plead in bar to an avowry for distress damage feasant, that the cattle had escaped without any negligence on the part of the plaintiff, and surely if that could have been a good plea in bar, the facts must often have been such as would have supported it.[6]

See also

Notes

  1. ^ (Douthwaite, Gray's Inn, p. 46.)
  2. ^ (Coke, Reports X, Pref.)
  3. ^ R. v Rimmington [2005] UKHL 63, per Lord Bingham [7]
  4. ^ Bettison v. Langton [2001] UKHL 24, per Lord Scott
  5. ^ per Denning LJ, Candler v. Crane Christmas & Co. [1951] 2 K.B. 164, 180
  6. ^ per Blackburn J, Rylands v. Fletcher (1865-66) L.R. 1 Ex. 265, 282

References

  1. ^ (Douthwaite, Gray's Inn, p. 46.)
  2. ^ (Coke, Reports X, Pref.)
  3. ^ R. v Rimmington [2005] UKHL 63, per Lord Bingham [7]
  4. ^ Bettison v. Langton [2001] UKHL 24, per Lord Scott
  5. ^ per Denning LJ, Candler v. Crane Christmas & Co. [1951] 2 K.B. 164, 180
  6. ^ per Blackburn J, Rylands v. Fletcher (1865-66) L.R. 1 Ex. 265, 282
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