Comparative legal teaching in eighteenth-century Oxford: an analysis of Thomas Bever’s Appendix to his lectures

Abstract

Introduction

Comparative law as a subdiscipline of jurisprudence was created in the late nineteenth century. Its roots are traditionally traced to the historicist movement and the development of international trade in the first half of the same century. However, some scholars trace the origins of legal comparativism to ancient Greece.¹

The tendency to compare legal systems increased at least since the late Middle Ages. In France, for example, the multiplicity of local customs forced jurists to compare and standardize local legal solutions.² In England, on the other hand, the comparison of the spiritual and temporal jurisdictions was undertaken by generations of jurists.³

Nevertheless, even the leading authors, including those writing on common law and civilian institutions, writing on the history of British comparative law do not cover the period before 1800.⁴ Among authors who have published their works recently, David S Clark’s work dealing with comparative law in colonial America is noteworthy. In his article, he briefly discusses English comparative law in the period before 1800.⁵ He lists among the English authors who used comparative methods Christopher St German, William Fulbecke, Thomas Wood, and William Strahan. This enumeration is far from precise. Even a brief analysis of seventeenth- and eighteenth-century English legal literature would yield some additional and obvious names such as John Cowell, Arthur Duck, or Samuel Hallifax. It is also important to note that such major common law scholars as John Selden or William Blackstone used comparative approaches in their treatises as well. We may bring to light even more English scholars who discussed legal problems from a comparative perspective. One of the most significant examples, a scholar little known today, is Thomas Bever.

In this article, part of Bever’s civil law lectures will be analysed. In the 1760s and 1770s, Bever delivered a course primarily devoted to civil law matters on a regular basis. Bever’s lectures probably did not differ much from the other civilian lectures offered at Oxford and Cambridge during that period. Bever’s method of teaching civil law was fairly traditional. However, the final part of Bever’s lectures (the so-called Appendix) was devoted to the analysis of the dozens of constitutional and legal systems of Europe (and Turkey). As mentioned, Bever was not the first English scholar to commit himself to undertake semi-comparative analysis of foreign legal systems. But the systematic character of his analysis clearly shows that, at least for the mid-eighteenth century, his effort to enter the world of comparative analysis was unusual. The structure of the Appendix as well as its narrative and numerous bibliographical references make it an outlier among contemporary comparative law texts, and justifies closer analysis of this part of his lecture, which also differs substantially from the rest of Bever’s writings.⁶

Thomas Bever—lecturer

Bever was born in Stratford Mortimer (Berkshire) in 1725.⁷ His parents were Thomas Bever Senior and Ann Garway.⁸ After studying at Eton, Bever moved to Oxford in 1744. He studied arts at Oriel College, but when he obtained a fellowship at All Souls College in 1749, he began to study civil law. Eventually, he obtained the BCL degree in 1752 and the doctoral degree in 1758. In the same year, he was admitted to the Doctors’ Commons, but he did not give up his Oxford fellowship.⁹

Shortly after being admitted to the College of Advocates, Bever prepared a small work bearing the title A Short History of the Legal and Judicial Polity of Great Britain.¹⁰ Written in 1759, it was dedicated to Richard Pennant who quite probably should be identified as the future Baron of Penrhyn.¹¹ Bever’s small treatise was clearly of a didactic character, although it was not the outcome of any teaching endeavour. Bever explained that his work was written ‘for the use of the young Gentlemen to whom it is addressed, who were then going upon a Tour into Scotland and wanted some general comparative view of the Constitutions of both Kingdoms’.¹² Bever directly acknowledged that his work was largely based on Blackstone’s lectures, but he also admitted that many of the observations were his own. For the purpose of this article, it seems to be especially noteworthy that Bever discussed the Scottish constitution in comparison to the English one.

His proper teaching career started a few years later, in 1762, when he began to deliver a civil law course. The initial reason for this decision is stated in the printed version of Bever’s introductory lecture. The ill health of the Regius Professor, Robert Jenner, prevented him from delivering the statutory lectures on civil law. Bever seemingly wanted to act as Jenner’s informal deputy, but his lectures remained of a private character. In the Advertisement of the printed version of his introductory lecture, Bever called himself ‘a voluntary adventurer in the common cause of learning’.¹³ Despite Jenner’s death in 1767 and the appointment of the new Regius Professor, Robert Vansittart, Bever continued to deliver his own lectures.

There is no surviving information on Bever’s behaviour as a lecturer. There are few traces of people who had attended his course. Among them, it is possible to identify William Scott (later Lord Stowell)¹⁴ and Jeremy Bentham.¹⁵ It may be that neither Jenner nor Vansittart taught regularly, so there is a chance that many who wanted to study civil law were forced to attend Bever’s private lectures.

Appendix

Bever’s treatment of his course is intriguing and deserves closer analysis. There are two sets of lecture notes—one preserved in All Souls College¹⁶ and an alternative version held by the University of Edinburgh.¹⁷ In addition, a fragmentary set covering only four lectures is in the possession of Trinity Hall, Cambridge¹⁸ while an anonymous summary of the notes is currently owned by John H Baker.¹⁹ Therefore, the following analysis is based on two full sets of Bever’s lecture notes. Both are directly associated with the civilian himself. They were written by him (Oxford manuscript) or at his request (Edinburgh manuscript).

Lecture notes

The All Souls lecture notes are a 10-volume set prepared by Bever. These were his private notes which he had read to the students. The style of the notes is inconsistent. The first version of the notes was prepared between 1762 and 1764 and it was written in a clear hand. However, in numerous places, Bever added new paragraphs or heavily changed the text. When that happened, the handwriting starts to become smaller and harder to read. Over the years, more paragraphs also appeared on the verso pages. At least once, in the case of Lecture IX, the changes were so considerable that Bever decided to rewrite the entire lecture.²⁰

In 1769 Bever was planning to redraft the entire set of notes. In a comment that can be found on the front page of volume X, it was specified that:

[the] Course was first opened on May 10. 1762 before a private audience of young Gentlemen of the University, in the Vinerian Law School, and from that time continued annually. In 1766 the Introductory Discourse was printed, and the whole having been frequently improved and enlarged, particularly the Historical Parts, is now begun to be transcribed the second time. Feb. 1 1769. T.B.²¹

The above-mentioned volume contains an Introduction to the lecture and new versions of Lectures I–III. In fact, what should be a new and clean version is once again heavily altered. The text is crossed out in many places. It is interesting to observe that an almost identical comment was placed at the beginning of Edinburgh’s version of the lecture notes by the anonymous author of the new transcription.²² It is then possible that Bever ceased to execute his original plan and commissioned someone else to take up the task of transcribing his edited notes.

It seems relevant that, according to Bever, he was giving lectures at the ‘Vinerian Law School’—a term that was not widely used, if used at all. At first sight, it refers to All Souls College. But it may also suggest that Bever was more associated with Blackstone’s legacy as a lecturer of English law than with the civilian activity of the Regius Professor.²³ In one of his letters, Blackstone clearly states that Bever was his protégé.²⁴ This letter was written in 1769, ie two years after Vansittart replaced Jenner. Perhaps Bever’s reference to ‘Vinerian Law School’ should be interpreted as an attempt to set himself apart from the position of the civil law lecturer.²⁵

As for the manuscript possessed by the University of Edinburgh, its character is very different. The lecture notes were not written by Bever, but by a person whose initials are ‘P.S.’. The Edinburgh version of the notes was produced several years after the original. It is explained at the beginning of the first volume that the notes were prepared during the academic year 1772–73,²⁶ but as is revealed at the end of volume five of the manuscript, they were finished sometime after February 1774—nearly two years after the transcription was initiated.²⁷

Regarding the mysterious ‘P.S.’ who was responsible for preparing the notes, there is one clue as to who that person could be. An analysis of the Alumni Oxonienses is not helpful. There was no civil law student who could potentially have attended Bever’s lectures in the early 1770s who had those initials. It is possible that Bever asked for help from someone who was already a fellow of All Souls College. The person could be Salusbury Price, who was admitted to the college in the same year as Bever.²⁸ Nothing significant is known about his life and this assumption cannot be verified. Furthermore, it is not known how the manuscript was acquired by the University of Edinburgh. Reference numbers suggest that the manuscript was acquired in the first half of the nineteenth century. In all five volumes of the manuscript, it is possible to locate the handwritten name ‘J. Keir’ on the front pages. It is plausible that the manuscript was owned by James Keir, an Edinburgh physician who obtained a doctoral degree in medicine from the University of Edinburgh in 1802.²⁹ It is impossible to determine how Keir would have come to possess the manuscripts.³⁰

The composition of Edinburgh’s version is generally the same as that of the Oxford manuscript. An obvious difference is in the quality of the notes. They are all written in a tidy fashion. The Edinburgh manuscript does not have cross-outs, deletions, and changes in the main body of the text. It brings together all developed versions of the Oxford manuscript. Nevertheless, it is interesting that within the notes, several small sheets of paper can be found. They look like the lecturer’s supplementary comments. They were written by a different hand than the manuscript and the handwriting may suggest that they were made by Bever. It would mean that Bever used these lecture notes, too.

Appendix—composition

The Appendix is the final part of the lectures delivered by Bever. Thanks to the analysis of the syllabuses, it is known that over the years it expanded. In the early years, it was presented at one lecture meeting. By 1773 the Appendix’s content was spread out over three meetings. In both versions of the manuscript, the Appendix bears the title ‘Of the Progress of the Civil, Canon and Feudal Laws in later Ages’.³¹ It is clear that the character of the Appendix, ie its construction, narratives, and bibliographical references, distinguish it from the main corpus of Bever’s lectures.

Before Bever started to present the development of different European legal systems he offered a detailed introductory essay where he explained the goals of the Appendix. He was quite clear that the Appendix should be treated as a continuation of the earlier discussions devoted to the problems of civil law. He explained that the core part of the civilian lecture was designed as a synopsis of the historical development of civil law and its studies until the twelfth century.³² The Appendix focused on the later development of civil law. However, at this point, Bever suddenly changed the subject of his narrative and he turned back to the early medieval period to focus on the German invasions (of the ‘the Northern nations’) in the southern part of Europe—the former Roman Empire as well as the areas that were not under Roman control.³³

This early history of Europe justifies the similarities of European constitutions. According to Bever, the ‘military’ form of governance that appeared in early medieval times lasted for centuries, even when the imminent danger vanished,³⁴ which seems to be quite important for the comparative analysis he carried out. The common origins of the systems can be understood as a crucial factor in determining their comparison. In fact, he unintentionally used the principles of what some modern scholars would call a functional approach to comparative law.³⁵ However, it should be noted that this approach observed in the introduction was not repeated in the rest of the Appendix.

Among the other ‘methodological’ comments that Bever included in the introduction to the Appendix, there is also a vision of what is nowadays known as the migratio gentium (known also as migration age).³⁶ Bever returned to this phenomenon on several occasions, and he treated it as a major event in early European legal history. In his opinion:

the whole Body [of people] moved about under the Guidance and Direction of one Chieftain or Patriarch who, in consideration of his Years, Courage, or some other eminent Qualities had received the compliments of this Preference. This great Person then, by whatever Name we call him, was the principal Leader of their Armies, under which Character they owed him a strict Military Obedience.³⁷

In the later part of his statement, Bever talked about parcelling the land between the lords, strengthening the power of the leader, and ‘vesting the Dominium Directum of all Landed Property in the Head’.³⁸ Although Bever spoke in a general context, it seems that the method of describing the early history of feudal states is largely based on how William the Conqueror acted soon after his arrival in England in 1066.³⁹

Bever argued that the initial system could have one of two outcomes. In some cases, the gradual rise of the royal powers led to a transformation of the constitutional system into tyranny as in France and Spain,⁴⁰ while in others the number of administrative officials could deprive the monarch of real power and could make him ‘a great Cypher of the State’. In such a situation, the early feudal state would be transformed into an aristocratic system as exemplified in the situation of Poland or to some extent that of Scotland.⁴¹ Bever also added that in the case of some European countries, including England, it is possible to observe a state of equilibrium between tyrannic and aristocratic models.⁴²

After these deliberations, Bever once again returned to the foundations of comparative analysis. He proclaimed that it was not his intention to focus on the origins of feudal systems in individual states. Instead, he wanted to talk about them as a means to ‘abstract it [ie, the concept of feudal law] from all the Alterations it has undergone in the several Countries wherein it has been respectively admitted, and consider only what was the occasion of its being introduced at all into any’.⁴³ As discussed in more detail below, Bever’s focus on feudal law was in line with the resurgent interest in feudal history among lawyers as well as some politicians in the eighteenth century.⁴⁴

In the last part of the essay, Bever mentioned the importance of the relationship between the feudal law and the legacy of civil law. He suggested that the Appendix would explain the extensive use of civil law in certain European countries. Bever admitted that similar work had already been done once ‘by a learned Civilian’, Arthur Duck, but that work was, in his opinion, outdated.⁴⁵

Then Bever moved to the key subject of the Appendix, ie, the presentation of the legal and constitutional systems of the selected countries. The original sequence of the countries was: (1) Germany, (2) France, (3) Holland, (4) Italy, (5) Spain and Portugal, (6) Poland, (7) Prussia, (8) Sweden, (9) Denmark and Norway, (10) Russia, (11) Turkey, (12) Scotland, (13) Ireland, and (14) England. Somewhere between 1764 and 1767, Bever added Switzerland between his descriptions of Holland and Italy.

The order of the countries was not accidental. Reading the lectures allows one to distinguish five groups of countries. The first group consists of countries described as one of the ‘Imperial title’ (1–5 and Switzerland). Then the second group is composed of countries of the ‘North-Eastern continent of Europe’ (6–9). The third group was chosen as those countries that did not have any contact with the civilian tradition (10–11). The fourth group consisted of countries that were subjected to the British Crown (12–13). Finally, Bever described the constitution and law of England.

This structured presentation was dictated by Bever’s preliminary plan to equip his students with a coherent description of foreign systems that would be crowned by the description of the legal order of their native land. However, the part devoted to England was enlarged, quite extensively, over time. Originally, the lecture on England was a composition of various threads mainly related to the presence of Roman law in England. This changed after 1767, when Bever expanded this part by devoting much time to the issues of the organization of the Church of England.

The Appendix finishes with the conclusion. Bever explained that ‘The substance of this conclusion is printed in the introductory discourse 1766’.⁴⁶ Another version of the conclusion was added in the new part of the Appendix that was prepared in 1767⁴⁷ and repeated in 1774.⁴⁸

Comparative methods

As stated, Bever adopted a comparative method. Besides the introduction, a closer analysis of the Appendix enables a careful reader to envisage several comparative strands. First, its comparative character can be attributed to its subject at large. After deliberating on Roman civil law, in the Appendix Bever produced a relatively new area of legal analysis. The enumeration of different states and the presentation of their legal and constitutional systems was quite rare. His inspiration to examine foreign legal systems was Duck’s work published in London in 1653. As has been mentioned, he referred to the book briefly in the Introduction but regarded it as outdated. He did not refer to it in any other place in the Appendix. There was one difference between Duck’s and Bever’s approaches. Duck was interested in the development of the civilian tradition in Europe while Bever was much more focused on the historical development of European legal systems as well as their modern condition. Therefore, the first comparative layer of Bever’s work is the exposition of how the legal and constitutional legal systems can differ.

The second layer is a more advanced comparison. It is possible to observe some form of tacit undertaking of the functional comparative approach, but in most cases Bever’s remarks were primarily of a structural character. He compared small elements of legal systems. It is characteristic that he was much more interested in similarities than in differences. A good example of this kind of comparison is the one made between the Roman Rota and the Court of Chancery.⁴⁹

The third layer is the lexical one. This layer is not as obvious at first sight, but it can be observed in Bever’s notes. Occasionally, Bever explained foreign institutions not by comparing them to English equivalents but rather by indicating broad parallels with English institutions, eg he described German law as the ‘common law’ of the Empire.⁵⁰

Generally speaking, Bever’s comparative method is still rather vague. There is no doubt that the foremost aim of Bever’s enterprise was to show and explain the differences between constitutional and legal systems across national boundaries. Still, the above-mentioned comparative methods are worthy of appreciation

Content of the Appendix

For a better understanding of the Appendix and its importance, it is necessary to outline the main elements of the narrative arranged in 15 sections.

Bever started his deliberations with Germany, the first of the countries associated with the ‘Imperial title’. He began by analysing the early history of Germanic medieval kingdoms. His narration was primarily based on the relationship between popes and German rulers. He started with the fall of the Exarchate of Ravenna and the help that Charlemagne offered Pope Hadrian I in ad 774. This fact is important because it shows that early European history was regarded by Bever as transnational.

More elaborate and speculative discussion of German law begins with this statement: ‘The German Emperors considering themselves as the Representatives of the ancient Roman princes, always affected a great veneration for the Roman Constitution’.⁵¹ Undeniably, this statement is true and of great importance for understanding the development of law in Germany. It allowed Bever to weave the thread of the history of Roman civil law studies. He mentioned that the study of Roman law was encouraged by Charlemagne and his successors, ‘under whose Patronage the study of it flourished, and the Professors met with great encouragement’.⁵² This overstatement fits well into one of Bever’s characteristics as a lecturer, ie, to compress issues and simplify the development of concepts. This mechanism may be observed in his lectures on many occasions. While talking about regnal powers, he noted that ‘the office of Prince & Judge were inseparable. The same was antiently the case with the Court of Common Pleas in England’.⁵³ This would allow Bever to focus on the creation of Reichskammergericht in 1495 by Emperor Maximilian I.⁵⁴

Bever finished the section by referring to the region of Saxony.⁵⁵ The local body of law, which, according to Bever, was created much earlier than Charlemagne’s promotion of the study of civil law, dominated most of the German Empire up to the introduction of civil law (it is not clear, but it seems that Bever was thinking about the supplementary role of civil law in the jurisprudence of the Imperial court). Despite that, even from the perspective of Bever’s time, Saxon law, together with the law of Culm and Lübeck, supposedly formed the chief body of the law in Germany.⁵⁶ He did not clearly distinguish imperial and municipal laws, but he admitted that civil law rather than municipal founded ‘the fundamental, or Common Law of the Empire in matters principal of private Property and Judicial Proceedings especially’.⁵⁷

The second country to which Bever devoted as much attention as he did to Germany was France.⁵⁸ The history of the countries described by him as belonging to the ‘Imperial title’ can be described as transnational. At the very beginning of the new section, Bever pronounced that even if both countries developed into two separate entities, their laws remained similar.⁵⁹ After a paragraph related to the development of monarchy and the real power of French kings, Bever presented a short comment on the diverse legal traditions of France. He pointed out that the southern and eastern parts lived according to a custom based on civil law. The northern parts of France were predominantly governed by royal edicts and ordinances. Bever was sceptical regarding the reforms undertaken in France over the centuries. In his opinion, only reforms introduced during the reign of Louis XIV were successful.⁶⁰

According to Bever, in the past, the French acknowledged the right of kings to rule over them, but at the same time they lost their right to participate in governing. With time they started to recover these rights and started to be assembled in what is known as the Parliaments of Nation—jurisdictional bodies that were responsible for the ‘administration of private justice’. To better explain the character of these assemblies, Bever declared that the Parliaments were composed of ‘Great Men, or chief Lords, both Spiritual and Temporal, who as in England before the Conquest, sat together, and had only one joint interest’.⁶¹ He finished by developing the story of Cardinal Richelieu’s impact on parliaments that eventually was ‘fatal to the Liberties of the Gallican Constitution’.⁶²

Holland was ‘likewise another portion of the ancient Empire of the Germans or Franks’.⁶³ Originally, Bever observed only that civil law is the ‘Common Law of the Country’⁶⁴ and then recommended several works to be read. A longer discussion on Holland can be found in the Edinburgh manuscript. It seems that Bever intended to focus on the constitutional development of the country, but most of the two-folio deliberations were devoted to the political changes of Holland rather than to law. Only in the last paragraph of the section does he briefly refer to the States General—the Dutch assemblies—and to the mechanism of convoking them.⁶⁵

An addition to Bever’s original list of countries and regions was Switzerland.⁶⁶ It is interesting that Bever honestly declared that the history of Switzerland is barely known and that no one could be properly called a historian of that country.

His initial reservation was confirmed when he attempted to present the history of the Swiss nation. A relatively large passage is devoted to the wars between the Romans and the Helvetii, a history based on ancient sources. Later history is limited to several short comments on the medieval history of Switzerland and the establishment of the United Cantons. As in the case of Holland, Bever predominantly focused on the importance of the representative body known as the Swiss Diet⁶⁷ and made some comments on the systems of government of cantons.⁶⁸

With regard to the Swiss legal system, Bever was apparently making guesses, like explaining that the early contacts of the Helvetians with the Romans must have familiarized the Swiss people with the civil law—‘it is most probable that this is the principal foundation of all their Jurisprudence’.⁶⁹

The fifth country was Italy. The structure of the section resembled that of Germany and France. Bever started with the fall of the Roman Empire. An important consequence of that event was the partition of Italy into many separate states.⁷⁰ Bever once more simplified his narrative. The partition, as described, was directly connected to the development of the Italian city-states in the late Middle Ages and the Renaissance. For this reason, he divided the section into parts corresponding to Rome (the Papal States), the Duchy of Savoy, the Republic of Venice, and the Kingdom of Naples.

Unlike the previous sections, Bever devoted most of his concerns to the question of law rather than the constitution. Due to the Roman legacy, most of the comments concerned the current state of civil law in Italy. In the case of Rome, he noted that ‘the Civil Law is the general Law in all Civil Cases, except where corrected by the Canon Law; tho’ the Equity of the former is always preferred to that of the latter in the Roman Rota, a Court of Civil Judicature, answering, in many Instances, to the Court of Chancery in England’.⁷¹ He also noted that civil law is a fundamental principle of the legal systems of other Italian city-states. Whenever local laws were not consonant with those of the Romans, Italians were anxious to dissolve their own institutions to comfort themselves with rules based on Roman law.⁷²

In relation to the remaining parts of Italy, Bever highly appreciated the reforming efforts of Victor Amadeus II of Savoy and his collection of ‘edicts and constitutions of his predecessors […] and they been a great similitude to the Civil law’.⁷³ In contrast, Venice was the part of Italy that did not follow the Roman example. The mercantile city was governed by ‘Venetian laws’. However, those cities that were subjected to Venice, like Padua, were, like the rest of Italy, under the influence of the Roman tradition.⁷⁴ In the end, Bever focused on Naples. He observed that the law of the Kingdom of Naples was diverse. But the reforms of Charlemagne created a body of law called ‘the Common Law of that Country’ which was later replaced by Justinian’s law during the reign of Emperor Lothar.⁷⁵

The final section devoted to the countries of the ‘Imperial title’ was dedicated to Spain and Portugal. The section experienced significant changes, perhaps at the same time that Bever was expanding the sections on Holland and Switzerland. The inserted changes made this part of the Oxford manuscript barely readable. In the early version, the history of the Iberian Peninsula was short and Bever quickly moved from the Roman province through the ‘Moors or Saracens’ to the restoration of the country under the auspices of Aragon in 1492.⁷⁶ This passage was completely crossed out and replaced by a much larger section that covered the next several pages of the manuscript.⁷⁷ The new version contained a much more detailed history of Spain since the early medieval period, with the invasions of the Goths and other German-origin tribes up to the unification of Spain under Ferdinand II of Aragon and Isabela of Castile.⁷⁸

Regarding the legal system, Bever indicated that it was based on civil law. He also admitted that both the Spanish and Portuguese systems ‘have undergone a variety of changes’.⁷⁹ He acknowledged the existence of Gothic law and its collections as well as the impact of the Theodosian Code on the law of Spain. He pointed out that at a certain point the Spanish people abandoned Roman law. In another place he mentioned the importance of the compilation of the law dated to ad 631 which eventually was ‘much studied by the Spanish Lawyers, under the title of Fuero Juzgo’.⁸⁰ Although it cannot be said that Bever’s statements are inaccurate, the lack of a broader contextualization of the stages of Spanish legal development makes the entire paragraph difficult to understand. Especially so, as he hardly comments on these developments. Instead, he discusses further advances in the field of legal collections of medieval Spain.⁸¹ He claims that the final reforms of Spanish medieval law were undertaken by Ferdinand, who was responsible for the proclamation of the heavily Romanized collection Leyes de Partidas.⁸² In reality, the collection known more commonly as Las Siete Partidas was compiled during the reign of Alfonso X of Castille in the second half of the thirteenth century. Bever speaks about the Roman influence on the compilation with high regard.⁸³

The legal history of Portugal is not discussed. Bever firmly declared that ‘Portugal is no more than a distinct province of the Spanish continent’.⁸⁴ He prepared an expanded paragraph on the political history of Portugal but did not engage in detailed analysis.

Reading the text of the lecture on Spain and Portugal is a very different experience from reading the earlier sections. There is a constant feeling that Bever did not know much about the subject. This can explain the numerous changes that he inserted into the original text. Maybe he was trying to improve the lecture. It is also striking that Bever did not furnish this section with the usual reading recommendations for students.

The second group of countries was labelled as that of the North-Eastern continent of Europe. Poland was the first in this group.⁸⁵ The beginning of the section is written in a similar way to the early parts of the sections on Germany and France. However, the geographical shift at this point in the narrative forced Bever to sketch the early history of Eastern Europe. For this reason, he described an unspecified early period of the development of what would become Poland. He pointed out once again the phenomenon of the Age of Migration. Then he mentioned the existence of an eastern nation known as ‘Polaey’. The term corresponds to the modern term Polans. Again, Bever simplified the narratives. In just a few sentences he moved from the ancient migrations, through the appearance of the Polans, to the development of the late medieval Polish nobility government.⁸⁶

It must be emphasized that Bever talked briefly about medieval Polish law and the constitution, but most of his descriptions correspond to the reality of the sixteenth and seventeenth centuries. However, he correctly specified several important events in Polish legal history: the proclamation of Piotrków–Wiślica statutes (the first codification of Polish law), the reforms of Sigismund II, and the creation of the Crown and Lithuanian Tribunals by Stephan Báthory.⁸⁷ It must be remembered that despite the factual correctness of these events, their time span was spread over more than two and a half centuries.

The later part of the section was devoted to discussing the current situation in Poland. He spoke about the miserable position of King Stanislaw August Poniatowski and about the coming spectre of the partitions.⁸⁸

Another state Bever discussed was Prussia. After this section, Bever’s observations gradually decreased in length. It may suggest that for Bever the most important aspect of his comparative approach was to demonstrate the intermixed development of the Western legal systems.

As for Prussia, Bever treated his observations as a continuation of earlier remarks on Poland and Germany. He admitted that in the past Prussia was dependent on the Polish Crown and later the Electorate of Brandenburg. And only at the beginning of the eighteenth century did Prussia attain an independent status.⁸⁹

Regarding the law, he noted that Prussia was governed by the ‘mixture of feudal, Saxon and Roman law; the likewise those of Culm & Lubec’.⁹⁰ The amalgamation of different legal traditions led to uncertainty. Bever spoke quite fondly of the present monarch of Prussia, Frederik II the Great.⁹¹ He referred to reforms undertaken during his reign. In the final part of the section, he indicated that Prussian law was codified in what he called the Frederician Code (Corpus Iuris Fridericianum)—a collection drafted by Samuel von Cocceji.⁹² He did not mention, however, that the code never came into force.⁹³ The codification, the one that Bever described as intended by Frederik II, was eventually finalized only in 1794 in the form of Prussian Landrecht.⁹⁴

Without any significant introduction, Bever skipped to another section devoted to Sweden. Initially, he spoke about the early development of the law of Goths who were supposedly the ancestors of the Swedes.⁹⁵ This description chimed with the popular historical and cultural movement present in Scandinavian culture since at least the fifteenth century, which gradually developed into what was known as Gothicism.⁹⁶

Bever indicated that Swedish law was reformed by King Charles-Frederic. Further information implies that he was talking about Frederick I of Sweden (king from 1720 to 1751). During his reign, Sweden legislated two legal collections. The first one, focused on public law, was known as Sueciae historia pragmatica quae vulgo jus publicum dictui e traditionibus historicis (1731) and the second one, focused on private law, and titled Codex legum sveciarum (1734). Bever noted that it is possible to locate only a residual impact of the civilian tradition in both texts.⁹⁷ In addition, despite Bever’s clear division of public and private laws, Codex legum sveciarum contained regulations related to crimes.⁹⁸

The remaining part of the section was dedicated to the political changes that occurred in Sweden in the eighteenth century, including overthrowing the absolute monarchy in 1720 and re-establishing it in 1772. Bever wrote that the ‘late surprizing Revolution […] happened no longer ago than Aug.st 19. 1772; and as no regular account have yet reached us, except thro’ the public paper, it is no easy […] to explain to you its true motive’.⁹⁹ This statement is proof that Bever was constantly changing and adjusting his lecture according to current political affairs.

The following section dealt with Denmark. Bever noted that Denmark had joined with Norway being at the time one state, but he explained that Norway was an independent entity in the past. However, there is no information in Bever’s statement that at the time Denmark and Norway were politically united. They had close yet different legal systems (codified respectively in 1683 and 1687).¹⁰⁰ In addition, he acknowledged the common origins of Denmark and Sweden and referred to them as ‘Gothic nations’.¹⁰¹

Regarding the history of law, Bever pointed out that ‘the Danes were strangers to all written systems until the middle of the 13th century’. He referred to the enactment of the Jutland Code (Codex Holmiensis) by Valdemar II in 1241. He also mentioned that there are likely to be some traces of the civilian tradition in the southern parts of Denmark which were under the influence of German law.¹⁰²

Without further analysis regarding the Middle Ages, Bever skipped to the seventeenth century. He proclaimed that at that time the Danes decided to resign their liberties and acknowledged the authority of King Frederik III to avoid ‘aristocratical slavery’.¹⁰³ He emphasized that the monarch’s rule was of an absolute character. Consequently, Bever declared that the common approval of the transformation from aristocracy to absolute monarchy was exceptional, but it led to some positive results.¹⁰⁴

Regarding the law, Bever noted that Frederik III’s reforms were continued by his son, Christian V. He abolished all old laws and promulgated a new code (Danske Lov) in 1683.¹⁰⁵ Bever did not provide any in-depth explanation regarding the circumstances of the reforms, but he instead emphasized the bottom-up character of them, initiated and desired by the commoners rather than by the king himself.

Bever’s reflections on Denmark’s legal history were rather vague. Despite the seemingly historic and orderly introduction, Bever merely focused on the consequences of the state of emergency and the constitutional transfer of power from elective to absolute monarchy.

The following two systems represent the group of countries that were not influenced by the civilian tradition. The first of these countries was Russia. Bever believed that he needed to explain the reasons behind the decision to include Russia on the list. He admitted that Russia had never been under any Roman authority, but noted that it had become an influential state that could lead to a change of power on the continent in the future.¹⁰⁶ Its omission would be a ‘high affront to so illustrious nation’.¹⁰⁷ These explanations are missing from the original version of the notes. Oxford’s manuscript contained a brief paragraph on Russia, which Bever later erased. In the Edinburgh manuscript, there is a footnote that seems to be an explanation for this. Bever stated that ‘three Russian young Gentlemen; then supported at Oxford by the Empress of Russia […] honoured the lecturer with their attendance on his course in 1769–72–73’.¹⁰⁸ The students mentioned in that passage were members of one of the three groups deployed by Catherine the Great in 1765 to the universities at Oxford, Leyden, and Göttingen. The group under the curatorship of Vasily Nikitin travelled to Oxford in 1766 and stayed there for several years.¹⁰⁹

In Bever’s opinion, England learned about Russia only after 1553 when Richard Chancellor arrived at the Archangelsk port. This statement is accurate in the sphere of diplomatic and commercial relations rather than general knowledge.¹¹⁰ Although Bever tried to focus on Russia’s origins, he admitted that ‘the only period of Russian history and constitution, which demands the attention of other Europeans, commences with Peter the Great’.¹¹¹ Notwithstanding, he did not talk about Peter’s reign. He focused on the reign of Empress Catherine, about whom he was most favourable. This is striking, since Bever rewrote this section at a time of increasing tension between Poland and its eastern neighbour (Bever spoke very positively about Poniatowski), but the presence of Russian students in the lecture hall may provide an explanation. No information was provided on the current state of the law and constitution in Russia.

The subsequent section on Turkey was very different. Bever enumerated some authors on whose works he based his narration. He began with a historical introduction, and then he discussed the development and current state of the law and constitution of the country. He stated that the Turks succeeded ‘the Grecian Empire’. He noted that a Greek version of Justinian’s Code was in use in Turkey among the Greek Christians.¹¹²

Regarding the Turkish constitution, Bever presented a vision of despotic authority of the Sultan and the pashas. He observed that ‘the Turks do actually enjoy something like a system of laws’.¹¹³ He emphasized that Turkish law has its origins in the Koran which at the beginning contained the rules of civil and ecclesiastical character. However, over time, the territorial development of the Islamic world made it impossible to sustain one interpretation of the Koran. In Bever’s opinion, the modes of operation carried out by Muslim scholars were similar to the glossing of Justinian’s codification by western scholars.¹¹⁴

Regarding the relationship between the constitution and religion, Bever emphasized that the Sultan, despite his authority, is bound by the law. Evidence of this could be that Sultans used to request advice from the (Grand) Mufti who is considered by Bever to be the equivalent of a pope.¹¹⁵ The section ends with a relatively long discussion on the position of the pashas and their importance in the military and feudal structure of the Empire.¹¹⁶

The last group are ‘kingdoms that are subject to the British Crown’. Scotland and Ireland are discussed in short sections while England, in its final form, is described in a comprehensive way (in the Edinburgh manuscript England is described in 30 folios). An increase in the English material occurred like other additions to the Appendix in 1767.¹¹⁷

In the case of Scotland, Bever began his discussion with a general statement that for many centuries England and Scotland had two different governments, but their constitutions shared some commonalities.¹¹⁸ The early history of Scotland is briefly discussed. Bever explained that the clans contributed to the development of patriarchal government, and he pointed out that the elements of feudal organization had been introduced in Saxon times.

Regarding the law, Bever mentioned Malcolm III as a king who compiled a collection of customs.¹¹⁹ The most important event in Scottish legal history, according to Bever, was the reduction of Scots law to writing in the Regiam Maiestatem, which was compiled in the same manner as Glanvill’s De legibus.¹²⁰ Leaving aside some minor issues, the most important observation was the one on the presence of civil law in Scotland. Bever proclaimed that Roman law gained ‘a very extensive authority, as much at least, if not more than it enjoys in other kingdoms of Europe’.¹²¹

A slightly lengthier section was prepared on Ireland. Bever initiated it by describing territorial and family-based divisions of Ireland (four provinces, families, and septs).¹²² He also briefly discussed the early history of Irish chieftains and the old Brehon law as well as the system of tenure of lands known as tanistry.¹²³

The later part of the section was devoted to political history. Bever mentioned an alleged conquest of Ireland by King Edgar as he discussed Henry II’s campaign of 1171 and the short-lived consequences of it. A relatively long passage described Irish–English relations during the Middle Ages. Bever described this period as characterized by a lack of a coherent administrative network that led to abuses by the nobility.

The subject of the law was mentioned by recalling the name of Sir Edward Poynings, Lord Deputy of Ireland, and legal acts passed during his service.¹²⁴ Bever explained that those laws were enforced only upon English subjects, while most of the Irish population was treated by English like ‘the savages of North America’.¹²⁵ Bever seems to be sympathetic to the Irish population. He proclaims that ‘the efforts […] so frequently made by the real Irish to rescue themselves from this intolerable yoke of oppression, are neither wonderful nor blameable’.¹²⁶ He also negatively commented on the fact that some English writers stigmatized ‘these spirited Patriots’.¹²⁷

Finally, he explained that the political situation in Ireland changed after James I’s conquest. Ireland became ‘the most valuable jewel in the British diadem’. Bever summed up by saying that the constitution, Church–State relations, and the role of civil law in Ireland are the same as in England.¹²⁸

The last country discussed was England. Bever’s ideas about the section changed with time. As noted, in 1767 he prepared a new, much longer version of the section.

As in many other sections, he started with a historical introduction. In the case of England, the introduction was relatively detailed. Bever started with a discussion on the ancient history of the Isles—its Celtic origins and the Roman invasion and domination of the Island. He did not forget about the legal context, including the presence of Emperor Septimius Severus in York being accompanied by the jurists Papinian, Paulus, and Ulpian.¹²⁹ He did not mention his inspirations to write this passage, but it can be safely assumed that he abridged the identical reflections of John Selden.¹³⁰ Later on, Bever discussed the Saxon arrival, the Danes’ invasion, and the Norman Conquest.¹³¹

Unlike the previous sections, Bever focuses predominantly on legal issues. He discusses the arrival of Vacarius, who supposedly taught Roman law in the second half of the twelfth century, in England.¹³² He mentioned fundamental treatises: Glanvill, Bracton, and Britton.¹³³ But at the same time Bever started to move away from the common law and his deliberations on English law started to be limited to ecclesiastical matters. He did not explain the reason for this change in subject. This is odd in comparison to all the previous sections. The most likely explanation is related to the professional prospects of his students, ie, a career in the ecclesiastical courts.

Bever finished his outline of English legal history by bringing his narrative up to the Reformation.¹³⁴ In the following part, he concentrated on the structure of English ecclesiastical law, its relation to pre-Reformation canon law, and its defects.¹³⁵ Then a relatively large portion of the section was devoted to the notion of ‘spiritual jurisdiction’, its different types and different forms of ecclesiastical courts.¹³⁶ At the end, he emphasized that almost all enumerated courts had a double jurisdiction, ie civil and criminal.¹³⁷

Bever did not focus on any aspect of the common law jurisdiction, and he mentioned admiralty jurisdiction only briefly.¹³⁸ It was suggested that Bever, especially after 1767, wanted to be associated with the Vinerian Professorship rather than with the Regius. After the death of Jenner, the Regius Professorship was taken by Vansittart, who might have wanted to deliver his own lectures. Bever’s further private teaching could have been endangered. It is plausible, though, that Bever wanted his lectures to be more complementary with Blackstone’s Commentaries, which were in the middle of the publication process (the first volume was published in 1765) or with the lectures of the newly appointed Vinerian Professor, Robert Chambers. Furthermore, this argument seems to be strengthened by two facts. First, Bever expanded the Appendix in 1767 (the year of Vansittart’s appointment). Second, Blackstone almost completely ignored ecclesiastical jurisdiction in his lectures. Although he discussed the organization of ecclesiastical courts in the third volume of the Commentaries, published in 1768,¹³⁹ Bever knew Blackstone’s lectures well as one of the first to record them.¹⁴⁰ He used them as a pattern for large passages of A Short History of the Legal and Judicial Polity of Great Britain.¹⁴¹ Finally, he deputized for Blackstone (together with Vansittart) in 1761.¹⁴²

An argument for the supplementary character of Bever’s section devoted to English ecclesiastical law appears to be strengthened by comparing it with Chambers’s lectures. Chambers succeeded Blackstone in 1766 when the latter decided to return to the practice of law.¹⁴³ He started to teach only after 1767. Chambers, however, did not follow Blackstone’s steps in relation to the structure of the lecture.¹⁴⁴ As John W Cairns demonstrated, the new Vinerian Professor rejected institutional systematics.¹⁴⁵ Similar to Blackstone, however, Chambers only briefly discussed ecclesiastical issues. In the first part of the lectures, Chambers talked about different types of ecclesiastical courts, but he devoted even less space to them than Blackstone.¹⁴⁶ Only Bever discussed ecclesiastical courts in detail (see Table 1).

Intellectual framework

Bever regularly informed his students about recommended readings that might improve their knowledge of the legal systems discussed. In addition, it is conceivable that Bever might have based his knowledge on private conversations. The clearest example of this is the description of his views about the Polish King Poniatowski. It is likely that Bever gained knowledge about the king through discussions with the Polish ambassador in London, Tadeusz Burzyński.¹⁴⁷

It must be emphasized that the list of references made by Bever for his students is most likely not fully representative. It might be assumed that Bever’s reading background was much wider than a first reading of the manuscripts might suggest. The most obvious work used by Bever was Duck’s De Usu et Authoritate. Another work that resembles Bever’s lectures, which might be considered as an alternative template, is Samuel Pufendorf’s treatise, An Introduction to the History of the Principal Kingdoms and States of Europe. The English translation of the book prepared by Jodocus Crull was published in 1682. The tables of contents of both works are similar and it is important to note that in Pufendorf’s work it is possible to find countries that were absent from Duck’s listing. In addition, Bever could have initially borrowed from Pufendorf the idea of dividing the countries according to a specific pattern. Pufendorf’s first chapter was entitled ‘Of the Ancient Monarchies, and most especially of the Roman, from the Ruins of which arose many later Kingdoms and States’. Bever did not copy this chapter, but the idea of discussing monarchies built on the ruins of the Roman Empire could be adopted by Bever. Another small detail in Pufendorf’s treatise is the title of the additional description of some Italian states. Pufendorf named it the ‘Appendix’. The term could have been borrowed by Bever and used as the title of the final part of his own lectures.¹⁴⁸

As to the literary works and sources, it must be emphasized that the intellectual framework of the section devoted to England is very different from the framework of the previous 14 sections. It is noticeable that Bever’s knowledge of non-English legal systems was basic, and he did not bother to deepen it. In addition, he did not intend to provide full citations to the works in the manuscript. For this reason, it can be a challenge to determine which work or which edition Bever was using.

Among the works that appear in the first 14 sections, it is possible to divide them into two categories: (i) historical works and (ii) legal works. Bever constructed his narratives primarily upon non-legal works.

Historical works can be divided into two subcategories: (a) historical studies and (b) ego-documents. In the case of historical studies, Bever based lectures heavily on French literature. Among the works mentioned, it is possible to find the seminal work on French history written by Paul François Velly¹⁴⁹ and its later posthumous edition co-authored by Claude Villaret.¹⁵⁰ Another work of the same type was a study by Charles-Jean-François Hénault entitled Abrégé chronologique de l'histoire de France.¹⁵¹ Bever also mentioned the earlier French author Gabriel Daniel.¹⁵² Another work of French origin, but known to Bever through English translation (published in 1739) was Henri de Boulainvilliers’s An Historical Account of the Ancient Parliaments of France or States-General of the Kingdom in Fourteen Letters.¹⁵³ Besides the above-mentioned works, Bever recommended two other French-language studies, devoted to the history of Switzerland and Italy—Abraham Ruchat’s État et délices de la Suisse¹⁵⁴ and Charles-Hugues Le Febvre de Saint-Marc’s Abregé chronologique de l'histoire générale d’Italie.¹⁵⁵

The second group of texts available to Bever and recommended to students concerned the history of Italy. They were written in Latin and Italian. The leading work on that subject was De regno italiae written by Carolus Sigonius in the sixteenth century.¹⁵⁶ As to the history of Florence, Bever referred to two studies written by Francesco Guicciardini¹⁵⁷ and by Niccolò Machiavelli.¹⁵⁸ Another reading recalled by Bever in the Italian context, was Historia sui temporis by Jacques Auguste de Thou.¹⁵⁹ Bever also referred to Pietro Giannone’s work on the development of the Kingdom of Naples, but it is not clear whether he had read the original work published in 1723 or its English translation prepared by James Ogilvie in 1731.¹⁶⁰

Besides the above-mentioned Latin treatises, Bever also recommended a few other works published in that language. While discussing the history of Switzerland, he mentioned Josias Simmler’s Helvetiorum respublica (1627).¹⁶¹ After general criticism of Polish historians, Bever acknowledged the works of the Polish author, Gottfried Bogumił Lengnich.¹⁶² It seems that Bever also referred to Pufendorf’s work titled Commentatorium de rebus Suecicis libri XXVI.¹⁶³

Finally, Bever referred to British authors, three of whom wrote books respectively on the history of England (David Hume),¹⁶⁴ Ireland (John Davis),¹⁶⁵ and Scotland (William Robertson).¹⁶⁶ Additionally, he mentioned John Campbell’s book The Present State of Europe.¹⁶⁷ It is likely that Bever found the book interesting due to the constitutional analysis of different European countries. A work largely adapted to build the narratives of a section on Turkey was The Turkish History (originally written by Richard Knolles and published in the early seventeenth century). Bever, however, referred to the later version co-authored and enlarged by Paul Rycaut in the 1680s.¹⁶⁸ It is certain that Bever also used the work written by William Temple. Although it is not clearly stated which work he had on his mind, it can be assumed that he was referring to Observations upon the United Provinces of the Netherlands.¹⁶⁹ Even more doubts are linked with the German geographer, historian, and statistician Anton Friedrich Büsching. Bever mentioned his name in the section devoted to Russia.¹⁷⁰ It seems that he was referring to Büsching’s elaborate piece entitled Neue Erdbeschreibung.

Among the works gathered in the second subcategory (ego-documents), it is possible to enlist four pieces.¹⁷¹ The first such work was Memoirs of the House of Brandenburg, ie English translation of Frederick II’s memoirs.¹⁷² Another work of similar character was Lettres sur le Dannemarc written by Urbain Roger, secretary of Germano-Danish politician Count von Bernstorff.¹⁷³ The only literary work referred to by Bever in the section on Spain was a collection of letters written by Edward Clarke—chaplain of Earl Bristol, British ambassador in Madrid (in early 1760s).¹⁷⁴ The last work of this type was Sir James Porter’s memoir concerning his stay in Turkey as British minister to the Ottoman Empire.¹⁷⁵ Bever must have referred to the version entitled Observations on the Religion, Law, Government, and Manners of the Turks. The work was later nearly forgotten and was replaced in 1854 by a new edition published by his grandson.¹⁷⁶

The second major category of works exploited by Bever concerned law. As before, it is possible to divide this category into two smaller ones—(a) legal treatises and (b) law codes. Bever mentioned six legal treatises in 14 sections of the Appendix. The oldest among them was Simon Groenewegen’s work on the law of Holland.¹⁷⁷ Two other works published in the second half of the seventeenth century were written by Johan Stiernhöök on Swedish law¹⁷⁸ and Lord Stair’s Institutions.¹⁷⁹ Other works focused on the German tradition. Their authors were Johann Jacob Mascov (Principia iuris publicii Imperii Romano-Germanici)¹⁸⁰ and Christian Friedrich von Pfeffel (Abrégé chronologique de l’histoire et du droit public d’Allemagne).¹⁸¹ Finally, the last legal treatise is a two-volume work on Polish law written by Lengnich (Jus Publicum Regni Poloni).¹⁸²

The second subcategory—law codes—consists of one commentary and several compilations (or pre-codes). The first one was a popular commentary on Justinian’s Institutiones written by Hoppius.¹⁸³ With respect to the compilations, it must be emphasized that it is not easy to distinguish which ones Bever actually read and which ones he read about while reading other works. It is clear that he was acquainted with Christian V’s Danish law translated into Latin in 1710,¹⁸⁴ the English translation of the so-called Frederician Code¹⁸⁵ and the Codex legum sveciarum published in 1734.¹⁸⁶ In the case of the three remaining—the Spanish Fuero Royal¹⁸⁷ and Las Siete Partidas¹⁸⁸ as well as French Ordonnance Civile of Louis XIV¹⁸⁹—it seems that Bever was aware of their existence but it is doubtful that he ever read them.

In the case of England, the structure of the references is very different. It is possible to divide the works into four categories: (i) legislation and court decisions, (ii) works on English (predominantly ecclesiastical) law, (iii) historical works, and (iv) poetry. As to the first category, Bever referred to a wide range of statutes promulgated during the reigns of Henry VIII,¹⁹⁰ Edward VI¹⁹¹ and William III¹⁹² as well as to the collection of Anglo-Saxon legislation.¹⁹³ Twice, he mentioned King’s Bench decisions.¹⁹⁴ Among the works on ecclesiastical law, Bever referred to three established treatises used at the time in England, ie Richard Burn’s Ecclesiastical Law,¹⁹⁵ Edmund Gibson’s Codex Juris Ecclesiastici Anglicani,¹⁹⁶ and Thomas Oughton’s Ordo Judiciorum.¹⁹⁷ All three works functioned as points of reference rather than templates for building narratives. In addition to these treatises, Bever mentioned Edward Coke’s Institutes of the Laws of England in relation to royal powers regarding ecclesiastical jurisdiction.¹⁹⁸ He pointed out the importance of medieval treatises, but he did not discuss them thoroughly.¹⁹⁹

Bever referred to several historical works that were predominantly focused on the history of the Reformation. In the case of the first two of them, it is not entirely clear to what treatises he was referring, but it is most likely that he was recommending De rebus christianorum by Johan Lorenz van Mosheim (1753)²⁰⁰ and Jus ecclessiasticum protestantium by Justus Henning Böhmer (1714).²⁰¹ Among the other works that fall into this category are Izaak Walton’s biography of Richard Hooker²⁰² and Robertson’s work on the history of Scotland.²⁰³

Finally and surprisingly, Bever quoted poetry twice—a verse from Horace’s Epistle²⁰⁴ and an extensive passage from Samuel Butler’s satirical poem Hudibras.²⁰⁵

The analysis of this enumeration of the works and the data collected in Tables 2 and 3 allows us to specify Bever’s intellectual framework more closely (although future investigation of the entire set of lecture manuscripts will certainly bring much more extended analysis). In the entire Appendix, he referred to 47 printed works. This number almost certainly does not correspond to all the works used to build the narrative of the Appendix. It must be remembered that the Appendix was not a printed piece but a manuscript of lecture notes. This means that Bever did not have to provide an extensive bibliography.

David Irving, commenting on one of Bever’s books (The History of the Legal Polity of Roman State), declared that ‘Bever writes like a scholar and a man of ability; but he laboured under the disadvantage of being, in a great measure, unacquainted with the best civilians of the continent, more especially of the recent date’.²⁰⁶ This statement was expressed in a different context, but it displays Bever as a learned man of old-fashioned knowledge. This is not confirmed through the Appendix’s ‘case study’. Most of the works (59.6 per cent) which Bever recommended to his students were published in the eighteenth century. Many of them were published in the 1760s—the decade when he started to lecture. Seventeenth-century works represent the second major group of works (25.5 per cent). The remaining works (14.9 per cent) were printed or published before 1600. Therefore, Bever’s list of references was modern and hardly outdated.

For the origin of the works, less than half of them were printed in the British Isles (44.7 per cent). Besides that, there are only four countries from which there have come more than two works—France (6 works; 12.8 per cent), Germany (4 works; 8.5 per cent), Italy (4 works; 8.5 per cent) and Switzerland (3 works; 6.4 per cent). All remaining works (one or two works per country) were written or published in ancient Rome, Denmark, the Netherlands, Ireland, Poland, Sweden (8 works; 17 per cent). It shows that Bever used relatively varied works published in different countries and written in different languages (English, Latin, German, French, Italian).

In summary, it is hard to agree with Irving’s opinion of Bever. He was acquainted with what were broadly understood as the relevant legal works of the epoch. His choice of works was broad and varied. He did not limit himself to English-language and English-published works.

Conclusions

The Appendix was never published, but it can be presumed that Bever was thinking about it. In his will, he clearly stated that the original manuscript was not to be printed. However, this limitation did not concern the Edinburgh version. It is possible that ‘P.S.’ was preparing the printable version, although, for unknown reasons, this task was not completed.²⁰⁷

The analysis of the manuscripts leads to the observation that Bever should be put into the same category as other early English legal comparatists such as Duck and George Harris. However, for Bever, the civilian tradition was only one element of the broadly understood general history of law in Europe. Unlike Duck, Bever did not limit himself to the discussion of the reception of Roman civil law in different European countries. He was interested in constitutional and legal history across national boundaries. All this was happening despite Bever’s initial reservation that he would be primarily interested in the post-twelfth-century history of civil law. At the same time, he did not hesitate to proclaim that his aim related to the reconstruction of the abstracted vision of feudal law. Individual and compared feudal systems worked as an illustration of the processes common to the entirety of Western Europe. All of this seems to be aligned with eighteenth-century changes in jurisprudence. Civilian learning as it used to be known started to be steadily marginalized. At the same time English law started on the path towards becoming a scientific discipline. Bever’s comparative approach is still mostly narrative, but it undoubtedly foreshadows the development of comparativist jurisprudence of the nineteenth century.

Although the main corpus of Bever’s civil law lectures was not an object of this article, it must be emphasized that Bever remained suspended between the two worlds. He delivered the civil law lectures, but his desire to make it different is obvious. The Appendix itself is proof of that. Although a bit clumsy, Bever tries to divide his narrative into two large spheres—old Roman law, until the twelfth century, and its reception, the so-called tradition, since the twelfth century. As shown above, this scientific assumption was not rigorously executed. Nevertheless, it illustrates a certain novelty in Bever’s thinking.

Undoubtedly, Bever acted under the strong influence of his mentor, ie William Blackstone. Although he initially wanted to informally deputize for the Regius Professor, details of Bever’s Appendix suggest that over time he wished to be associated with the Vinerian Professor. It is possible that Bever was hoping for a Vinerian appointment. He wanted to mimic Blackstone’s style in many ways. He based his earliest work on Blackstone’s lectures. He delivered his lectures in a form largely similar to Blackstone’s early lectures. It is possible even that structure of some of the themes described by Bever remained in some dependence on Blackstone’s lectures.

Bever’s hopes to become Vinerian Professor, in fact, can be seen in a broader way. An orthodox narrative about the eighteenth century treats it as a low point in Oxford’s history, when the university was not a place of deep academic reflection. However, in recent decades this narrative has started to be revised. It has been pointed out that this idea of eighteenth-century Oxford teaching was the result of over-reliance on contemporary partisan critics of the university. Bever’s lectures, the Appendix, his willingness to teach, as well as his efforts to obtain a chair prove after all that eighteenth-century Oxford was not the dull academic centre it is usually proclaimed to be.²⁰⁸

Regarding Bever as an early comparatist, it is hard to talk about his method in detail. There is no doubt that he was attempting to enforce more elaborate methods of comparing legal systems, but they can be justified only from the perspective of the twenty-first-century’s developed discussion of the theory of comparative law. It must be emphasized that one of the key features of his work is the simplification of narratives. It is possible to imagine several explanations for this. First, manuscripts contain the text of the lectures rather than the final publishable product. Even if it is likely that Edinburgh’s version was prepared to be published, it is hard to imagine that it would not be equipped with additional critical apparatus. Second, it is easy to observe that Bever had limited access to literary sources. Although legal comparative literature did not exist at the time of writing the lecturers, there is no doubt that works devoted to specific legal and constitutional systems were accessible. Third, however, not all these works were easily available in England. Many were written in vernacular languages. This could be another obstacle. It seems that Bever’s knowledge of foreign languages was limited to Latin, French, and (possibly) Italian. Bever knew German works through their translations. Furthermore, some may note that Bever was not the only one who approached the discussed issues in a simplified way.²⁰⁹ It is necessary to remember that the second half of the eighteenth century was a time when the world (and knowledge about it) started to grow significantly. In such a situation, simplification can be seen as inevitable.

Was Bever a great comparatist scholar of the eighteenth century? From the perspective of the twenty-first century, the response to that question would be ‘no’. But from the perspective of the eighteenth century, Bever, undoubtedly, was a unique scholar who could probably have achieved more. His inability to take a decisive scientific step means that today he and his writings remain mostly forgotten.

This article is the result of research carried out in the archives of the University of Oxford and the University of Edinburgh. The research on Thomas Bever and the Appendix to his lectures was supported by the National Science Centre (of Poland) DEC-2020/04/X/HS5/00408. I would like to express my thanks to the archivists who generously shared their knowledge about the eighteenth-century manuscripts with me. Special thanks go to Gaye Morgan (Library of All Souls College) and Danielle Spittle (Centre for Research Collections, Main Library, University of Edinburgh). I also express my gratitude to fellow scholars who found time to comment on the draft version of the article: Christian R Burset, Thomas P Gallanis, Victoria Lacis, Mike Macnair, Thomas J McSweeney, and John Gwilym Owen.

Footnotes