Dictionary of National Biography, 1885-1900/Fitzherbert, Anthony

FITZHERBERT, Sir ANTHONY (1470–1538), judge, sixth son of Ralph Fitzherbert of Norbury, Derbyshire, by Elizabeth, daughter of John Marshall of Upton, Leicestershire, was a member of Gray's Inn. Wood states that he 'laid a foundation of learning' in Oxford, but gives no authority. The date of his entering Gray's Inn and of his call to the bar are unknown. His shield, however, was emblazoned on the bay window of the hall not later than 1580, where it was still to be seen in 1671, but from which it has since disappeared; and he is included in a list of Gray's Inn readers compiled in the seventeenth century from authentic materials by Sir William Segar, Garter king of arms, and keeper of Gray's Inn library (Douthwaite, Gray's Inn, p. 46). On 18 Nov. 1510 he was called to the degree of serjeant-at-law, and on 24 Nov. 1516 he was appointed king's Serjeant. About 1521-2 he was raised to the bench as a justice of the court of common pleas and knighted (Dugdale, Chron. Ser. pp. 79, 80, 81; Letters and Papers, For. and Dom. of the reign of Henry VIII, vol. iii. pt. ii. p. 889). In April 1524 he was commissioned to go to Ireland with Sir Ralph Egerton, and Dr. James Denton, dean of Lichfield, to attempt the pacification of the country. The commissioners arrived about midsummer, and arranged a treaty between the deputy, the Earl of Ormonde, and the Earl of Kildare (concluded 28 July 1524), whereby, after making many professions of amity, they agreed to refer all future differences to arbitration, the final decision, in the event of the arbitrators disagreeing, to rest with the lord chancellor of England and the privy council, Kildare in the meantime making various substantial concessions. The commissioners left Ireland in September. On their return they received the hearty thanks of the king. During the next few years Fitzherbert's history is all but a blank. There is, however, extant a letter from him to Wolsey dated at Carlisle, 30 March 1525, describing the state of the country as very disturbed, and hinting that it was the 'sinister policy' of Lord Dacre to make and keep it so (State Papers, ii. 104-8; Letters and Papers, For. and Dom. of the reign of Henry VIII, vol. iv. pt. i. pp. 244, 352, 534; Hall, Chron. 1809, p. 685).

On 11 June 1529 Fitzherbert was one of the commissioners appointed to hear causes in chancery in place of the chancellor, Wolsey (Rymer, Fœdera, xiv. 299). On 1 Dec. following he signed the articles of impeachment exhibited against Wolsey, one of them being to the effect that 'certain bills for extortion of ordinaries' having been found before Fitzherbert, Wolsey had the indictments removed into the chancery by certiorari, 'and rebuked the same Fitzherbert for the same cause.' On 1 June 1533 he was present at the coronation of Anne Boleyn. In 1534 he was with the council at Ludlow (Cobbett, State Trials, i. 377; Letters and Papers, For. and Dom. of the reign of Henry VIII, vol. iv. pt. iii. p. 272, vi. 263, vii. 545, 581). He was one of the commission that (29 April 1535) tried the Carthusians, Robert Feron, John Hale, and others, for high treason under the statute 25 Hen. VIII, c. 22, the offence consisting in having met and conversed too freely about the king's marriage. He was also a member of the tribunals that tried Fisher and More in the following June and July. He appears as one of the witnesses to the deed dated 5 April 1537, by which the abbot of Furness surrendered his monastery to the king (Letters relating to the Suppression of Monasteries, Camd. Soc. p. 154). He died on 27 May 1538, and was buried in the parish church of Norbury.

Fitzherbert married twice: first, Dorothy, daughter of Sir Henry Willoughby of Wollaton, Nottinghamshire; second, Matilda, daughter and heir of Richard Cotton of Hamstall Ridware, Staffordshire. He had no children by his first wife, but several by his second [cf. Fitzherbert, Nicholas and Thomas]. The manor of Norbury is still in the possession of his posterity. The family has been settled at Norbury since 1125, when William, prior of Tutbury, granted the manor to William Fitzherbert. Though he never attained the position of chief justice, Fitzherbert possessed a profound knowledge of English law combined with a strong logical faculty and remarkable power of lucid exposition. His earliest and greatest work, 'La Graunde Abridgement,' first printed in 1514, is a digest of the year-books arranged under appropriate titles in alphabetical order; it is also more than this, as some cases are there mentioned which are not to be found in the year-books, but which have nevertheless been accepted as authorities in the courts. Coke (Rep. Pl. pref.) describes it as 'painfully and elaborately collected,' and it has always borne a very high character for accuracy. It was the principal source from which Sir William Staunforde [q. v.] derived the material for his 'Exposition of the King's Prerogative,' London, 1557, 4to, and is frequently cited by Richard Bellew [q. v.] in 'Les Ans du Roy Richard le Second.' Besides the first edition, which seems to have been printed by Pinson, an edition appeared in 1516, of which fine specimens are preserved in the British Museum and Lincoln's Inn. The work is without printer's name or any indication of the place of publication, but is usually ascribed to Wynkyn de Worde, whose frontispiece is found in the second and third volumes. A summary by John Rastell, entitled 'Tabula libri magni abbreviamenti librorum legum Anglorum,'was published in London in 1517, fol.; reprinted under a French title in 1567, 4to. The original work was reprinted by Tottel in 1565, and again in 1573, 1577, and 1786, fol. Though not absolutely the earliest work of the kind, for Statham's abridgment seems to have had slightly the start of it, Fitzherbert's was emphatically the 'grand abridgment,' the first serious attempt to reduce the entire law to systematic shape. As such it served as a model to later writers, such as Sir Robert Broke or Brooke [q. v.], whose 'Graunde Abridgement' is indeed merely a revision of Fitzherbert's with additional cases, and Henry Rolle [q. v.], chief justice of the king's bench in 1048, whose 'Abridgement des Plusieurs Cases et Resolutions del commun Ley,' published 1668, was designed rather as a supplement to Fitzherbert and Brooke than as an exhaustive work (Preface, 4). Two works addressed to the landed interest are also attributed to Fitzherbert, viz.: (1) 'The Boke of Husbandrie,' London (Berthelet), 1523, 1532, 1534, 1548, 8vo; (Walle) 1555, 8vo; (Marshe) 1560, 8vo; (Awdeley) 1562, 16mo; (White) 1598, 4to. (2) 'The Boke of Surveyinge and Improvements,' London (Berthelet), 1523, 1539, 1546, 1567, 8vo; (Marshe) 1587, 16mo. 'The Boke of Husbandrie' is a manual for the farmer of the most practical kind. 'The Boke of Surveyinge and Improvements' is an exposition of the law relating to manors as regards the relation of landlord and tenant, with observations on their respective moral rights and duties and the best ways of developing an estate. It purports to be based on the statute 'Extenta Manerii,' now classed as of uncertain date, but formerly referred to the fourth year of Edward I. This is important, because we know that Fitzherbert selected that statute as the subject of his reading at Gray's Inn. This book is therefore in all probability an expansion of the reading. The authenticity of the 'Boke of Husbandrie' has been called in question, and Sir Anthony's brother John has been suggested as its probable author on two grounds: (1) That Fitzherbert's professional engagements would not permit of his acquiring the forty years' experience of agriculture which the author claims to possess; (2) that the author is described in the printer's note, not as Sir Anthony, but as Master Fitzherbarde. The latter argument applies equally to the 'Boke of Surveyinge,' which is also stated to be the work of Master Fitzherbarde. In the prologue to the latter treatise, however, the author distinctly claims the 'Boke of Husbandrie' as his own work. He says that he has 'of late by experience' 'contrived, compiled, and made a treatise' for the benefit of the 'poor farmers and tenants and called it the book of husbandry.' There seems no reason to doubt that this claim was honestly made. The argument from the designation 'Master' is of no real weight. A clause in Archbishop Warham's will (1530) provides that all disputes as to the meaning of any of its provisions shall be referred to the decision of 'Magistri FitzHerbert unius justiciarii, &c.' (Wills from Doctors' Commons, Camd. Soc. p. 25), and Cromwell, writing to Norfolk on 5 July 1535, refers to Fitzherbert as 'Mr. FitzHerberd.' Even less substantial, if possible, is the argument from the claim of forty years' experience put forward by the author. Considering how much of the legal year consists of vacation, and how comparatively light the pressure of legal business was until recent times, there is nothing startling, much less incredible, in the supposition that Fitzherbert during forty years found leisure to exercise such general supervision over his farm-bailiffs as would entitle him to say that he had had practical experience of agriculture during that period.

Other works by Fitzherbert are the following:

  1. 'La Novelle Natura Brevium,' a manual of procedure described by Coke (Reports, pt. x. pref.) as an 'exact work exquisitely penned,' London, 1534, 1537; (Tottell), 1553 8vo, 1557 16mo, 1567 8vo, 1576 fol., 1567, 1581, 1588, 1598, 1609, 1660, 8vo; another edition in 4to appeared in 1635, an English translation in 1652 (reprinted 1666), 8vo. The translation (with marginalia by Sir Wadham Wyndham, justice, and a commentary by Sir Matthew Hale, chief justice of the king's bench, 1660) was republished in 1635, 1652, 1718, 1730, 1755, 4to, and 1794, 8vo.
  2. 'L'Office et Auctoritie de Justices de Peace,' apparently first published by Tottell in the original French in 1583, 8vo, with additions, by R. Crompton, republished in 1593, 1606, and 1617, 4to. An English translation had, however, appeared in 1538, 8vo, which was frequently reprinted under the title of 'The Newe Booke of Justices of Peas made by A.F., Judge, lately translated out of Frenche into English.' The last edition of the translation seems to have appeared in 1594.
  3. 'L'Office de Viconts Bailiffes, Escheators, Constables, Coroners,' London, 1538. This treatise was translated and published in the same volume with the translation of the work on justices of the peace, in 1547, 12mo. The original was also republished along with the original of the latter work, by R. Crompton, in 1583.
  4. 'A Treatise on the Diversity of Courts,' a translation of which was annexed by W. Hughes to his translation of Andrew Horne's 'Mirrour of Justices,' London, 1646, 12mo.
  5. 'The Reading on the Stat. Extenta Manerii,' printed by Berthelet in 1539.

[Bale's Script. Illustr. Maj. Brit. (Basel, 1557), p. 710; Pits, De Rebus Anglicis (Paris, 1619), p. 707; Fuller's Worthies (Derbyshire); Wood's Athenæ Oxon. (Bliss), i. 110; Biog. Brit.; Foss's Lives of the Judges; Bridgman's Legal Bibliography; Ames's Typogr. Antiq. (Dibdin), ii. 210, 465, 506-8, iii. 287 n., 305 n., 328, 332, iv. 424, 431, 437, 446, 451, 534, 566; Marvin's Legal Bibliogr.; Brit. Mus. Cat.; Nichols's Leicestershire, iv. pt. ii. 853; Notes and Queries, 6th ser. ii. 392, iii. 196, iv. 467.]

J. M. R.