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Famous English Canon Lawyers: V

Henry Swinburne, B.C.L. (1624)

Published online by Cambridge University Press:  31 July 2008

J. H. Baker
J. H. Baker
Affiliation:
Professor of English Legal History, Cambridge
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The first post-Reformation English canonist in our series seems, on the face of his curriculum vitae a very different kind of lawyer from the medieval writers previously described. He was not a doctor of law, and seems to have spent a mere three years at university. He went up to Oxford as a relatively mature student (in his early 20s) in 1576, having already served an apprenticeship as clerk in the registar's office at York and having become a notary public and actuary of the Consistory Court in the early 1570s. He was a local boy, born and educated in the city of York, and came to the attention of the ecclesiastical authorities as a promising clerk at about the age when more fortunate youngsters were sent to Oxford or Cambridge. Swinburne's study therefore began in the office, and in the routines of clerical writing: a preparation which, in other spheres of law also, could prove as valuable as college life for the true scholar.

Type
Research Article
Information
Ecclesiastical Law Journal , Volume 3 , Issue 12 , January 1993 , pp. 5 - 9
Copyright
Copyright © Ecclesiastical Law Society 1993

References

1. Testaments (1591), sig. B2.

2. The suggestion is made by Marchant, R. A., The Church under the Law (1969), pp. 43, 45Google Scholar; and see Derrett, J. D. M., Henry Swinburne, Civil Lawyer of York (Borthwick Papers no. 44, 1973), p. 6.Google Scholar What follows is based very largely on Marchant and Derrett.

3. Wood, A., Athenae Oxonienses (1815 ed.), II, col. 289.Google Scholar

4. In York Minster there were formerly a number of monumental inscriptions to ‘advocates of the court of York’, dating from 1406 onwards: Drake, F., Eboracum (1736), pp. 495Google Scholar (Alan of Newark, 1412) and 497 (John Harewood, 1406). Likewise the proctors: Ibid., pp. 497, 500.

5. The only degree required by written constitutions was the B.C.L., added in the 1340s to the require ment of at least four years' legal study and a year's attendance on the courts: , P. Brand, The Origins of the English Legal Profession (1992), p. 149.Google Scholar However, the requirement of a doctorate was established by the 16th century and was said by Ayliffe and Burn to be a custom of England.

6. , Marchant, op. cit., p. 249Google Scholar (in 1637). He proved to be a papist delinquent: , Derrett, op. cit., p. 9.Google Scholar

7. In Durham Cathedral MS. Raine 124. One of them is printed in , Derrett, op. cit., p. 29.Google Scholar

8. , Marchant, op. cit., p. 120.Google Scholar

9. Line. Inn MS. Misc. 577.

10. The date on the title-page is 1590, but the colophon is dated 1591.

11. The name is spelled Swinburne at the end of the dedication and the preface, and this is the spelling usually preferred.

12. , Derrett, op. cit., p. 11.Google Scholar

13. 25 Hen. VIII, c. 19, s.2.

14. Testaments, ff. 54v–60v.Google Scholar

15. Testaments ff. 162–164.Google Scholar

16. Testaments fo. 164v.Google Scholar In the case of aged men, the learning was not that they could not perform sexual acts, but that they could not procreate: Spousals p. 50.Google Scholar

17. Testaments fo. 166.Google Scholar

18. Arber, E. ed., The Term Catalogues 1668–1709 I (1903), p. 286.Google Scholar The second-hand price of the older editions had been quoted in the 1670s as 10s.: The General Catalogue of Books printed in England …. Collected by Robert Clavell (1675), p. 62.Google Scholar

19. The editor of the 1686 edition says that Swinburne left unfinished notes on these portions. Spousals itself contains forward references to the unfinished part.

20. Spousals pp. 8, 205.Google Scholar The words here omitted show that “Canon shot” was meant as appalling pun.

21. Spousals p. 42.Google Scholar

22. Spousals p. 50.Google Scholar

23. Spousals p. 209.Google Scholar

24. Squibb, G. D., Doctors' Commons (1977), p. 88Google Scholar, questioning Derrett, , op. cit., pp. 18, 32.Google Scholar

25. There is a very inaccurate whole-page engraving of the monument in Drake's, Eboracum (1736).Google Scholar

26. Roman Canon Law in Reformation England (1990), esp. ch. 4.Google Scholar