The Common Law Mind: Medieval and Early Modern Conceptions 0801862094, 9780801862090

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"

lc

COMMON LAW

MIND

Medieval and Early

Modern Conceptions

W. T LI BBS

J.

cholars of comparative law and English

L y legal history have traditionally distinguished the

civil

laws emphasis on legislation

the primary source of legal authority

common law. In

law’s

from the

emphasis on custom and on case

The Common Law Mind lawyer and ,

cal scientist

support

this

as

James Tubbs

politiBOSTON

finds little evidence to

and other traditional understandings

Boston,

Copley

of English jurisprudence.

Examining thousands of legal and

uments

for references to the nature

judicial

doc-

PUBLIC

MA

and authority Square

of custom, case law, statutes, equity, and reason,

Tubbs depicts the tensions within and the evolution of English legal thought between the twelfth

and seventeenth centuries. Most lawyers, he concludes, never thought of

tomary

in nature

common

all

English law as cus-

and never understood the

law to be

a

fundamental

law, superior

to statute. Instead, statute law was

much more

central to English jurisprudence than has

usually been believed, and

stood to be superior law.

it

was always under-

in authority to the

The Common Law Mind revises

tion of thinking about the nature

ment of common law and interpretation.

its

a

common

whole

tradi-

and develop-

role in statutory

02116

LIBRARY

Digitized by the Internet Archive in

2016

https://archive.org/details/commonlawmindOOjwtu

s

THE

COMMON LAW MIND

sr.

THE

COMMON LAW MIND

Medieval and Early Modern Conceptions

J.

IV

Ttibbs

*

The Johns Hopkins University Press Baltimore and London

© 2000 The Johns Hopkins

University Press

2000

All rights reserved. Published

Printed in the United States of America

on acid-free paper 9 8 7 6 5

The Johns Hopkins 2715

4

3

2

1

University Press

North Charles

Street

Baltimore, Maryland 21218-4363

www.press.jhu.edu

Library of Congress Cataloging-in-Publication Data will

be found

at the

A catalog record

end of this book.

for this

book

is

available

from the British Library.

isbn 0-8018-6209-4

CONTENTS

Acknowledgments Introduction

ONE

TWO THREE

vii

ix

Conceptions of English

The Jurisprudence

Law

in the

of the Year Books

FIVE

22

Legal Theory in Fortescue, Littleton, and Fifteenth-

Century Readings and Moots

FOUR

Medieval Treatises

53

The Early Sixteenth Century: Christopher St. German 71 Plowden’s Commentaries and the Sixteenth- Century

Law

Reports

no

Common Law Mind

SIX

Sir

John Davies and the

SEVEN

Sir

Edward Coke and His Contemporaries

EIGHT

Reason and the

NINE

Common Law Maxims

173

The Common Law Mind: A Summary and Commentary 179 Notes

197

Bibliography

Index

249

237 ,

129 141

ACKNOWLEDGMENTS

I

owe enormous

intellectual debts to Professors

Woodford Howard

J.

and J. G. A. Pocock of Johns Hopkins University, who through their examples gave

me

arship, even if

I

a

glimpse of

am

me

to approach legal

and

historical schol-

unable to match their high standards.

be grateful, too, for the to

how

many

I

shall always

personal kindnesses that they have

shown

over the years.

Early in this project

I

was substantially aided by

a fellowship at the

Folger Institute Center for the History of British Political Thought.

Norman Doe provided a close stage and made many very helpful

Professor

an early

reading of the manuscript at suggestions.

My former col-

leagues John Rohr, Patrick Neal, and Robert Taylor also read the script, in part or in

manu-

whole, and their encouragement and suggestions are

appreciated. Finally, the

whole project would have been impossible without the

love and long-suffering support of

my wife, Virginia.

>»

INTRODUCTION

his

T

is a selective historical

study of

common

fore the middle of the seventeenth century.

more than one common meaning. In roots it means the science or study of law legal

for law.

The term jurisprudence

the sense closest to

has

somewhat pretentious synonvm

law jurisprudence be-

in general. It

More

its

Latin

also used as a

is

technically,

it

refers to

philosophy or theory, or the product or activity of thinking about

or examining questions or problems having to do with law’s nature, sources,

its

authority,

its

elements and their relation to each other,

lation to morality, equity, or justice,

and so on. This work

with jurisprudence in the third sense; tive legal doctrines

it is

may

re-

concerned

not concerned with substan-

of property, contract, and the

discussion of such doctrines

is

its

its

like,

except where

a

shed light on the more abstract and

fundamental questions of jurisprudence being investigated.

The

study

is

selective because a completely

thorough discussion of

English approaches over several centuries to even one of the fundamenquestions of jurisprudence — say, the problem of authority — could

tal

easily tial

amount

to a large book.

I

concentrate on some of the jurisprudeh-

questions that traditionally are grouped together under the heading

sources of law.

Like jurisprudence

itself,

the term source

ent senses by writers on jurisprudence historic event, practice, or

or principle of law in

1

.

of' law is

used in several differ-

may be

used to refer to some

It

borrowing that

a particular

that the source of a particular

led to the existence of a rule

system. For example,

common

law

maxim

it

is

might be

said

the civil law.

In a quite different sense, Percy H. Winfield primarily uses the phrase to refer to the “available oral or

any

fact in issue .”

1

documentary evidence

for the existence of

In other words, he uses the term to refer to the stat-

IX

Introduction

X

and so on

utes, reported cases, public records,

at

and obtain information about the law Although 3

which one could look

concerned with the historical origins of particular cepts, or tirely

modes of conceptualization, and my

frequently

is

con-

legal practices,

discussion

almost en-

is

based on sources of law in Winfield’s sense, such sources are not

the subject of

my

what used to be

investigation. Instead,

on

I

am concerned

primarily with

These

called the formal sources of the law.

which “by reason of force

book

this

.

are sources

their accepted authority, confer validity

principles or rules

drawn from them. They

law- creating and law- declaring agencies

and

legal

are the recognized

from which come

valid rules of

law .” 4

One

of the timeless questions in jurisprudence, asked both abstractly

and philosophically,

is,

What

matically, this question can

is

law? Asked

become,

more concretely and prag-

Is this rule

or principle

now

being

alleged to cover the facts of this case an authoritative, binding legal rule

or principle?

A time-honored means of answering the latter question in-

volves posing and answering a further question:

come from dence

at

a

Does the purported

rule

recognized formal source? In Western European jurispru-

one time and place or another, the recognized sources of law

have included custom, legislation, judicial precedent, reason, equity, and

two thousand years

natural law. For

the twelfth century in the

in the civil law,

common

law, jurists

and since the end of

have explicitly debated

and discussed what the authoritative sources of law are and the theoretical justifications for

considering them to be sources and have compared

and ranked admitted sources in terms of their

One who

reads

many of the

classic

works

relative authority.

in historical

comparative

ju-

way of knowing from the evidence presented whether the modes of thought reported in them were ever actually used by anyone. It is even harder to determine whether modes of thought asrisprudence has

little

serted to be representative of their time and place really were. sic

The

clas-

nineteenth-century and early twentieth-century works in English

tend to be long on assertion and short on documentation. Frederic

comment to Frederick Pollock on the historical work of Sir Henry Maine could be made about any num-

Maitland’s disparaging

accuracy of the

ber of such works: “You spoke of Maine. Well, reluctance, for

I

that played

once read .”

5

always talk of

on the few occasions on which

statements of fact

memory

I

came

him

I

sought to verify his

to the conclusion that he trusted tricks

and rarely looked

him with

at a

book

much

to a

that he had

Introduction

xi

s The two classic works in English on the formal sources of law are John Chipman Gray’s The Nature and Sources of the Law and Sir Carleton 6 Allen’s Law in the Making Historical claims are made in both, but nei.

ther

is

Allen shift

easily,

and without warning, from their own analytical schema

and normative theoretical claims to Allen far surpasses

work

is

Gray and

primarily historical in intention or execution. Both

Gray

and back again.

historical assertion

in historical scope

and documentation, but

his

primarily analytical in focus, not historical.

Maitland’s revolutionary approach to legal historical scholarship, with exhaustive examination of original sources and clear documentation,

its

still

has not completely taken root a century

the last generation found

it

Towering

later.

common

acceptable to write treatises on

The

history with only the merest skeleton of documentation. sions reached in such works

may be

legal historiography has always

on acceptable and perhaps

this

is

openly

a

work not

because

I

much

if

The

a substantial literature

a

great influence

many

to the kind of history of political and legal as

J.

G. A. Pocock, Quentin Skinner,

7 .

historian following this approach seeks to guard against erro-

detail as possible the context in

speaker

made

a statement.

A

as

it

others.

or a

him from saying

Other important parts of the context include the

and institution or peculiar to

the context of the discourse he

is

common

a particular author.

the practice of a historian of political discourse

measure of our

a text

worked and which

possible to say certain things and prevented

large

richness of

substantial part of this context consists in

philosophical, juridical, or political assumptions

It is a

much

which an author created

the linguistic conventions within which the author

place,

legal histori-

of those historians see as the

neous interpretations by trying to reconstruct with

made

on

been

not always in execution, the approach

thought advocated by such scholars

Dunn

Although work

have found recent writings on historiog-

raphy helpful; and in conception

and John

faith.

ideas but institutions and practices. But since

study of ideas,

taken here owes

conclu-

desirable approaches to the history of ideas has

at least partly

subject of their

them on

been sparse,

produced. This literature has not had ans,

law

correct and profound, but even ex-

perts in the field frequently have to take

on

figures of

examining:

who

is

theological,

to a time,

Pocock describes seeking to

know

'

historian’s practice to learn to read

and

recognize the diverse idioms of political discourse as they were

xii

Introduction

v?

available in the culture

them

and

time he was studying: to identify

at the

they appear in the linguistic texture of any one text, and to

as

know what

they would ordinarily have enabled that text’s author to

propound or

“say.”

The

extent to which an author’s

them was out of the ordinary comes first

later.

The

historian pursues his

goal by reading extensively in the literature of the time and by

sensitizing himself to the presence of diverse idioms

The

employment of

8 .

historian’s claim that he has correctly identified a language, rheto-

mode of thought will always be open to challenge, but the greater the number and diversity of instances that he can document, the greater the number of actors, texts, and contexts in which he can locate the idiom or mode of thought, “the more the hypotheses erected by those who would imprison him within the hermeneutic circle must come to ric,

or

resemble

Ptolemaic universe, consisting of more cycles and epicycles

a

than would satisfy the reasonable mind of Alfonso the Wise; in short, the

1

more

it

will exhibit the disadvantages of non-refutability.”

Of course,

it is

much

than actually to do

it

easier to prescribe

well.

A

description

'

how to do a study of this kind of how I went about studying a better sense of my own ap-

common

law jurisprudence

proach.

read most extant works on English law, not including case re-

I

ports, written

may

provide

between the twelfth and seventeenth centuries. Beginning

with the Year Books from the reign of Edward the fifteenth century,

I

read

all

I

and continuing through

the cases reported for entire years, select-

ing years at regular intervals — a total of about five thousand Year cases. I read all the cases reported in

sixteenth century and of the tury.

As

first

three decades of the seventeenth cen-

notes of any statements that have the sources-of-law questions that

common

most of the named reports of the

read the case reports and other legal literature,

I

law,

common

right,

Book

a I

I

kept detailed

bearing on general legal theory or

was examining: statements about

common

erudition, custom, reason, law

and reason, time, time of memory, time immemorial, usage, prescription, equity, hardship, mischief, inconvenience, statutes, interpretation,

precedent, and so on.

Next,

I

compiled comprehensive indexes of what

I

found.

The

pur-

pose of these exercises was to understand the idioms, rhetorics, and

modes of discourse amined

in

available to the

common

lawyers in each period ex-

order to be familiar enough with their ways of talking and

Introduction thinking to he able to recognize nuances, to

tell

when

shifts in

xi 11

ways of

speaking and thinking were occurring, and to say with some confidence

whether time I

in

a particular

which

it

had conducted

was

statement about the law was representative of the

was made or whether a similar

it

was out of the ordinary. Because

study of civilian jurisprudence of the period,

in a positron to judge

with reasonable confidence which,

sources-of-law approaches or theories are peculiar to the

mind.

if

common

I

any,

law

’

S'

THE

COMMON LAW MIND

s

’sr


(

V.

—

CHAPTER ONE

W*

w-

w

V'

s

Conceptions of English

Medieval Treatises

in the

O

ne

who

sets

out to investigate medieval ways of thinking and talk-

ing about the nature and sources of English law will find

tematic discussion of general jurisprudence in the

of the period. parts of

A

few paragraphs in Glanvill

a

Sir

find

enough

to

few pages in Bracton, and

1

.

in trying to

common

ment of

Most appear content

because the medieval

common

literature of the sort so

no

law

law courts and the develop-

lawyers did not develop

to

assume that

a jurisprudential

among contemporary

civilians

and

characteristic understanding of the nature

and

widespread

sources of English law, or

if

they did, they

left little

Other historians believe that there was, cussion of jurisprudence in the period

The common

is

dominant medieval

we do not

find

much

dis-

that everyone took this theory

lawyers, Charles

ers assert, conceived of law as a

trace of it.

in fact, a

English theory of law and that one reason that

for granted.

common

understand and explain

the practices and procedures of the

substantive legal doctrine.

legal the-

widespread assumption that

a

In any event, historians of the

occupy themselves

canonists, they had

field. Little

comprehensive history of medieval English

to write about

sys-

little

common law literature

John Fortescue almost exhaust the

ory has not been written: there has been is little

a

,

two works by

wonder, then that

there

Law

Howard Mcllwain and

oth-

body of immemorial custom, which was

discovered or declared by kings, judges, or parliament and was not created or made. This

immemorial customary

law,

Mcllwain adds, was un-

derstood to be fundamental in the sense that rules inconsistent with

were void

2 .

Even scholars who know very

well that the

common

law

it

is

not the custom of the English people take the viejv that whatever the real

nature of that law, English lawyers have always understood

custom. Pollock,

for,

example, writes that “the

Common Law

to be

it

is

a

cus-

i

The Common Law Mind

2

tomary law lief

if,

in the

course of about eight centuries, the undoubting be-

and uniform language of everyone who had occasion to consider the

matter were able to make

This greatly overstates the evidence,

it so.”'

even from the sixteenth and seventeenth centuries, when several promi-

common

make statements with custom. 4 An argument can be made nent

common

lawyers did

lawyers understood the

common

identifying the that at least

common

law

some medieval

law to be custom, but the ev-

idence from the literature of the period, particularly in the Year Books, is

too mixed to establish custom as the only or even the primary way of

conceptualizing the

common

law.

The Twelfth Century Two

twelfth-century books set out to describe contemporary English

The

law.

known,

first,

the Leges Henrici Primi

not an

is

,

despite the

title

by which

it is

compilation of the legislation introduced by

official

disorganized book,” 6

Henry I. “An untidy and 5

it

collects English laws of

various kinds, emphasizing the importance of the royal jurisdiction but also describing the division of English law into three geographical areas:

“one

is

the law of Wessex, another

Danelaw” differ evil

is

the law of Mercia, and the third the

adds that the “laws of the counties themselves

{Leges, 6, 2). It

very often from shire to shire, according as the rapacity and the

and hateful practices of lawyers have introduced into the

tem more serious ways of variations

among

inflicting injury” {Leges, 6, 3a).

There

the courts of hundreds, boroughs, and lords.

bination of the multiplicity of jurisdictions and

human

legal sys-

also are

The com-

perversity, the

Leges notes, produced great confusion and uncertainty in the law:

There

is

so

much

perversity in

human

affairs

and so much profu-

sion of evil that the precise truth of the law or a settled statement of the legal

The

remedy can seldom be found.

{Leges, 6, 4)

vexations of secular legal proceedings are beset with wretched

anxieties of such

many

number and magnitude, and

are enveloped in so

fraudulences, that these processes and the quite unpredictable

hazard of the courts seem rather things to be avoided.

As

a

balance against

its

{Leges, 6, 6)

recognition of diversity in jurisdictions, and of

the bad consequences that followed

from

it,

the Leges draw special atten-

English

tinual

in the

Medieval

Treatises

tremendous authority of the royal majesty tremendum

tion to “the

[

imperium which we

maiestatis

Law

worthy of attention

stress as

and beneficial pre-eminence over the laws”

of the king’s preeminence over the laws

is

dinance, recently restated by the king’s

3

regiae

for its con-

Evidence

(Leges, 6, 2a).

to be found in the ancient or-

command,

“that the general

courts of the counties should meet at fixed places and terms and at an

appointed time throughout the several counties of England, and that they should not be harrassed by any burdens of further meetings until

own need

the king’s

or the

more

require that they be held

though,

common

advantage of the kingdom should

often” (Leges,

7,

1).

the principle that the law of the king’s court

is

More is

important,

superior to the

three kinds of English law and to the law administered in the local courts: “over

and above everything stand the pleas of the royal court,

which preserves and in

all

While

its

usage and custom [usus

et

consuetadines ] at

all

times

places and with constant uniformity” (Leges, 9, 10a). it is

notable that the pleas of the royal court are described as

usage and custom,

it

should not be concluded that the author of the Leges

therefore conceives of

all

English law as custom. In the

first

place, the

Leges does not treat the placita curiae regis as being the equivalent of

the expression “the law of the land.”

It

describes with considerable

specificity the jurisdictional rights of the king, including matters in-

volving the peace and security of the realm, treason, contempt of the

commands, outlawry, military

king’s writs or

matters, cases involving

the king’s land or money, failure of justice, and violation of the king’s

law (Leges,

10,

1).

This description of the jurisdiction of the royal court

is

considerably narrower than the scope of the law of the land as described in the Leges.

(Furthermore, the expression “the king’s law”

[legis regie]

suggests legislative activity by the king, not the operation of usage and

custom.) Second,

when

the Leges does speak of the law of the land,

does not appear to describe

it

in

terms of custom or usage. Speaking of

the operation of the hundred courts,

For nothing

shall

plication of law

says:

[iure et ratione ], in

law of the land [per legem

terre]

of the court, as has been

laid

tion

it

be expected or taken by anyone except by the ap-

and reason

and

justice

down

on the part of the barons and

and the honest judgment

after the

their

accordance with the

most careful delibera-

worthy predecessors

in the

whole realm, and approved by the great assembly of God’s servant and wise

men

it

of the whole kingdom. (Leges,

8, 16)

The Common Law Mind

4

Even

if this

lished

may

passage

by being

“laid

not suggest that the law of the land

down”

after deliberation

proved” by the great assembly,

it

with the law of the land was sembly. This,

does suggest that the cardinal legal

down by

would seem, makes

it

Leges conceives of

The second

laid

all

estab-

by the barons and “ap-

hundred court decisions are to be made

principle that

is

it

in

accordance

the barons and approved in as-

impossible to conclude that the

English law as customary. 8

twelfth-century book, Glanvill

a

considerably greater

and more systematically organized jurisprudential achievement, was written near the end of the reign of Henry II

(ca.

1187-89) and primarily

gives an account of the writs used in the king’s courts and the proce-

dures that flowed from them. 9 Virtually everything Glanvill has to say of

nature concerning English law

a theoretical

graphs in

its

is

few para-

set forth in a

prologue, which are worth quoting in substantial part:

Not only must

and nations which also fitting that

power be furnished with arms against

royal

it

rise

rebels

up against the king and the realm, but

should be adorned with laws

nance of subject and peaceful peoples.

.

[leges]

it is

for the gover-

.

.

For truly he does not scorn to be guided by the laws and customs [leges et

consuetudines of the realm

which had

and have long prevailed; and, what

is

their origin in reason

more, he

is

even guided by

those of his subjects most learned in the laws and customs of the

realm

[iuris et regni consuetudinibus]

whom

he knows to excel

all

oth-

wisdom and eloquence, and whom he has found to most prompt and clearsighted in deciding cases on the basis

ers in sobriety,

be the

of justice and in settling disputes, acting

now with

severity and

now

with leniency as seems expedient to them.

Although the laws

seem absurd to have

to call

[leges]

of England are not written,

them laws

[leges]

those, that

been promulgated about problems

is,

it

does not

which are known

settled in council

on the

advice of the magnates and with the supporting authority of the

prince for this also

is a

the force of law.” For

deemed

to be laws

written laws tice

of him

them.

if,

[leges],

[leges] a

who

law

[lex],

that

“what pleases the prince has

merely for lack of writing, they were not then surely writing would seem to supply

force of greater authority than either the jus-

decrees them or the reason of

him who

establishes

Law

English

in the

however, utterly impossible for the

It is,

Medieval Treatises

leges et iura

5

of the realm

to be wholly reduced to writing in our time, both because of the ig-

norance of scribes and because of the confused multiplicity of those

same

But there are some general rules frequently ob-

leges et iura.

served in court which

me presumptous

does not seem to

it

to

com-

mit to writing/ but rather very useful to most people and highly necessary to aid the

have decided to put into writing at

I

of these general rules, adopting intentionally

least a small part

commonplace

memory

style

and words used in court

in order to provide

knowledge of them for those who are not versed elegant language.

(

a

in this kind of in-

Glanvill 1-3) ,

In this passage Glanvill makes several statefhents about English law: that

first,

it is

power be adorned with

fitting that the royal

government of the people; second, guided by the

the

that the king does not scorn to be

of the realm which had their origin in

“leges et consuetudines

reason and have long prevailed,” third, that the king

who

leges for

is

guided by those

are learned in the iuris et regni consuetudinibus; fourth, that although

the leges of England are not written, “it does not

them

leges ” (at least

seem absurd

to call

those promulgated about problems settled in council

on the advice of the magnates and with the supporting authority of the prince), for if English laws are not

deemed

to be leges merely for the lack

of writing, then the absence of writing has more weight than either the justice or reason finally,

that

it is

of the king

who

decreed or established them; and

impossible to reduce

all

the leges et iura to writing be-

cause of their “confused multiplicity”

Although

from

summary

aim of the prologue

is

not to provide an analysis of the sources of English law but to give

a

it is

clear

this

that the

body of English law

justification for putting part of the

prologue does provide several clues about the nature of English law. clearly takes

Glanvill

much

is

Roman

a variation

The

first

law as

its

on the

first

is

the fact that the prologue

starting point.

of the remainder of the prologue evidently

the law books of Justinian."’

When,

leges” he almost certainly

is

first

sentence of

Institutes

,

and

written with an eye

civilians,

which

is

based on

for example, Glanvill insists that “al-

though the laws of England are not written,

them

The

sentence of Justinian’s

toward the jurisprudence of contemporary

call

author’s understanding of

its

of these

into writing, the

is

it

does not seem absurd to

responding to several specific texts

The Common Law Mind

6

found

in the Corpus Juris. Texts are

unwritten

(jus

divide

t ^iat

Institutes (1.2.3)

all

both the Digest

in

law into the written

and canonists

civilians

who was exposed

naturally have

felt

to the

some pressure

new

legal learning

it

un-

The

author of

of Europe, might

to defend the validity

the unwritten English law and to assert that

1

conditions, both

traditions tended to give that law secondary status. 12 ,

non scriptum.

ius

some

t ^ie

and the

in principle recognized that

written usage could operate as law, at least under

Glanvill

an d

1.6.3)

(jus scriptum )

non scriptum ) and that accept custom as

Although both

(i.

and prestige of

was not absurd to

call

the

laws of England “laws.” 13

But how does he understand the nature of the unwritten laws that he is

defending?

When

he speaks of the “laws and customs of the realm,”

his reference

only to the

statutory and

common

common

law, or

does he have in mind both

Does he understand

law?

is

the unwritten English

law to be essentially customary in nature? His inconsistent use of legal

terminology complicates the resolution of such questions.

The civilians and canonists to whom the prologue is a response most commonly use the word lex to refer to enacted law and the word ius, in its widest sense, to encompass the whole of the law, both legislation and cus-

tom. 14

If the

author of Glanvill is following standard usage

tions the unwritten

that he

means

and customs of the realm,” we might expect

leges

to signal that English law

and customary fact that

u

law.

when he men-

The problem with

he appears to use

ius

and

is

composed of both enacted law

this interpretation

begins with the

lex interchangeably: in the

same sen-

tence he speaks both of the “leges and customs of the realm” and of the “iuris

and customs of the realm.” Later, when he

insists that the

unwrit-

ten English laws really are entitled to be called laws, he drops the

custom altogether and refers to

whether in using the phrase

them simply

as leges raising the ,

“leges et consuetudines regni ”

distinguish between leges and consuetudines: 15

We

word

question

he even means to

cannot,

it

seems, draw

any firm conclusion about how he understands the nature of English law based upon the standard meanings of the Latin terms he uses to describe it.

It

may

be, as

Maitland suggests, that English lawyers of

not carefully discriminate

had technical meanings

among ius,

lex,

in the “learned

consuetudo,

his

time did

and other terms that

law” of Europe because as yet

they had no clear theory “as to the relationship between enacted and un-

enacted law, [andl the relationship between law and custom.” 16 If the

Latin terminology of the prologue provides no sure guide to

its

English

Law

in the

Medieval

Treatises

7

s author’s understanding of the nature of English law, does the fact that that law all

is

uniformly described

as

unwritten suggest that he conceives of

English law as customary? After

prologue

partially

is

ary in origin.

1

On

upon which

the Institutes

all,

,

modeled, describes unwritten law

as

being custom-

balance, the prologue does not appear to treat

glish law as customary.

The

sentence that asserts that

it is

all

clear that the status as lex

is

not being claimed for

En-

not unreason-

able to call the unwritten English laws leges adds limiting clauses to it

the

make

English laws but

all

only for those “known to have been promulgated about problems settled in council

on the advice of the magnates and with the supporting au-

thority of the prince

— for

this also

is

a lex, that

^

has the force of law.’”

‘what pleases the prince '

This passage suggests that when the author of Glanvill refers to the unwritten laws of England he has in mind the conscious enactments and decisions of the king,

made on

the advice of the council, that have not

been reduced to writing. The quotation of the famous Roman maxim

Quod

principi placuit legis hahet vigorem in justification

may

unwritten English laws force this interpretation rectly

makes the

(

of the claim that

reasonably be called laws appears to rein-

Digest 1.4.1; Institutes, ,

will of the prince the

1.2.9).

determining

^

t ^ie

factor,

Digest cor-

then the en-

actments or decisions of the English prince have the force of

whether they are

The

in writing or not.

author’s concern appears to have

been to establish the validity of English royal law despite character, rather than to defend

it

as

law,

customary

its

unwritten

law.

Bracton The

greatest medieval treatise

tributed to

on the common law

Henry de Bracton and goes by

his

name.

is

It

traditionally at-

was long thought

to have been written about halfway through the thirteenth century, but

much

of recent opinion holds that the original manuscript was written

some twenty years

earlier

and that the versions we know passed through

the hands of revisers, one of

whom may

Glanvill’s example, Bracton begins is

unwritten

it

have been Bracton. IS Following

by arguing that although English law

nonetheless deserves the

title

of law: *

Though turn,

in almost

all

lands use

is

made of the

leges

and th ejus scrip-

England alone uses unwritten law and custom. There law de-

The Common Law Mind

8

rives

from nothing written

Nevertheless,

it

will

from what usage has approved.

[but]

not be absurd to

call

English laws

leges,

though

they are unwritten, since whatever has been rightly decided and ap-

proved with the counsel and consent of the magnates and the general

agreement of the

having been

res publica , the

authority of the king or prince

added thereto, has the force of

first

law.

England has

many local customs, varying from place to place, for the Enhave may things by custom which they do not have by law, as

as well

glish

in the various counties, cities, boroughs,

and

vills,

ways be necessary to learn what the custom of those

who

Eminent

allege

it

use

it. ( Bracton 2: 19)

is

will al-

and how

19

Mcllwain,

who

assert the identity of

law in medieval England, see this passage as the 20

a place

it

scholars disagree radically over the interpretation of this pas-

sage. Historians like

trine.

where

Others,

with custom

is

who

locus classicus

custom and of that doc-

believe that the medieval tendency to identify law

overstated, see in this passage proof of their point of view.

Let us examine

it.

Part of the passage clearly significant additions

is

a

paraphrase of Glanvill, but there are

and modifications. The Bracton passage magnifies

the theoretical significance of the advice of the magnates mentioned in Glanvill because

it

ties it to

the idea of consent: “Since whatever has

been rightly decided and approved with the counsel and consent of the

magnates and the general agreement of the the king or prince having been (

Bracton 2:19).

A

little

first

res publica , the

authority of

added thereto, has the force of law”

farther along, Bracton again emphasizes the role of

consent in giving English laws their authority: “Since they have been ap-

proved by the consent of those cannot be changed without the

who

use them [consensus utentium ] they

common

consent of all by whose counsel

and consent they were promulgated. They cannot be their consent, but

At

first

may be changed

for the better”

(

nullified

Bracton

without

2:21).

glance, the clause that asserts that English laws “have been ap-

proved by the consent of those claim that Bracton

modeled on

a

classifies

famous

use them” appears to support the

English law as custom.

The

clause clearly

text in the Institutes tying the authority of

ary law to the consent of those

which usage has established; the consent of those

who

who

who

use

it:

custom-

“The unwritten law

is

that

for ancient customs, being established

use them, are like

is

leges ” (Institutes 1.2.9).

by

T his

Law

English

text

seems straightforward enough, and

Medieval

in the

Treatises

9

were the only passage in the

if it

Corpus Juris bearing on custom and consent, civilian constitutional the-

ory might be considerably

less

complex.

Walter Ullmann claims that medieval tion, base the ple.

A

21

One

jurists,

binding force of custom upon the

series of texts in the Digest

text, attributed to the

almost without excep-

tacit

seems to make

second-century

consent of the peo-

this

point explicitly.

jurist Julian,

argues that be-

cause statutes themselves are binding only because they have been ac-

cepted by the people through their votes,

it is

people approve through the substance of

its

on everyone ( Digest third-century

a late

their being “a tacit

1.3. 32.1).

Another

jurist, also

also fitting that

what the

actions should be binding

Hermogenian,

text, attributed to

bases the binding force of customs on

agreement of the citizen” ( Digest

1.3.35).

The

civilian

knew these texts well, and as a gloss in the Brachylogus makes “ they also knew Cicero’s definition of customary law: Consuetudo is

glossators plain,

thought to be that which lapse of time has approved by the

common

consent of all without the sanction of statute.” 22 This doctrine

may seem

self-evident merely

from the

definition of

custom — as Ullmann remarks,

the very idea of customary law presupposes the participation of the

people. Nevertheless, other ideas keep cropping up.

The

jurist-theologian Francisco Suarez, a few centuries later,

great Spanish

felt

the need to

take considerable pains to refute the idea that the long continued practices

of a single person, even

customary

law.

2 -

if

that person were the ruler, could establish

But to say that customary

presupposes the participation of the people

law, as a definitional matter,

Ullmann

does, that technically

it is

is

not necessarily to

say, as

the voluntas populi rather than the vol-

untas principis that gives legal character to custom. Medieval doctrine

on

the critical element in the transformation of customary practices into

binding rules

legally

Some sent

is

is

more complex than

of the earlier medieval

jurists

that.

24

do indeed hold that popular con-

the element that gives legal force to customary usages. Vacarius, a

who is most famous for having been the first known expositor of Roman law in England, takes that position in a gloss on the words tacito consensu in Digest 1.3. 32.1. 25 The twelfth-century glossator educated

at

French

jurist

Petrus de Bellapertica

ions of

some

glossators that there

ship between usages

(:

is

Bologna,

(d.

1308), reacting against the opin-

a direct

cause-and-effect relation-

mores) and customary law ( consuetudo ), insists that

the actions of usage of themselves produce

no

legal force; the

binding

ef-

io

The Common Law Mind

*

custom comes

feet of “ JJsus

On

non

est

from the

solely

tacit

consent or will of the people:

26 causa consuetudines, sed tacita voluntas populi?

number of

the other hand, because a substantial

emperor “held

postglossators taught that the

Romanus

that the populus

as the result

,

the people’s consent

2

It

.

laws in his breast” and

lex regia

,

methe legal effect of customary law comes from was sometimes claimed that a fragment from

the Institutes of Ulpian, reproduced twice in the Corpus starting point of

century.

Romanist doctrine on government

The argument was two quite

basis for

glossators to

thority

all

is

no longer held

an overstatement to say that virtually

it is

dieval jurists agreed that

and

complete and irrevocable

a

emperor through the

transfer of imperium to the

any lawmaking power,

of

all

glossators

all

Jims was ,

the

after the twelfth

based on the fact that that text served

different constitutional theories. It

is

as the

hard for the

deny that the immediate source of imperial power and au-

an act of transfer by the populus Romanus of that potestas and

much

imperium since that ,

stated clearly

is

in Justinius’s Corpus Juris}*

enough

in at least four places

But there their agreement ends.

It is

possi-

ble to interpret the lex regia as the basis either of imperial absolutism

or of popular sovereignty. In the lex regia

is

its

immediate context

in the Corpus Juris,

quoted in support of the claim that “what the emperor

pleases has the force of law,” but the texts speaking of the lex regia

not say whether

and permanent

a full

thereby made or whether individual

only

emperorT Some of the

a definitive alienation

for good,

it is

and

not resume

its

it

limited and revocable concessio to an

leading glossators hold that there was

30 .

its

power

In this view, even the custom of the peo-

make and unmake law 31 Other glossators, howas a mere concessio whereby an office and a usus are

to

.

,

created but the substance of the imperium remains with the ple.

is

no longer held lawmaking power and could

former power

ever, see the lex regia

of imperium and potestas

whereby the Roman people renounced

as a result

power

ple loses the

a

translatio

do

Roman

peo-

Bulgarus, Johannes Bassianus, and most significantly for our pur-

poses because of his influence on Bracton’s jurisprudence, Azo, hold that the people did not totally and irrevocably alienate their

power

32 .

This divergence of views among the glossators may be traced stantial part to the particular set of Justinian’s texts that a writer

to emphasize.

One who

—a

chooses

concentrates on one set of texts might naturally

be led to think of the emperor istrator of the law

in sub-

ruler

as the sole

maker, interpreter, and admin-

bound by no

legal limitations, particularly

Law

English

in the

Medieval

n

Treatises

s any limitations tied to

Another

of power or authority in the people.

a reservoir

writer, focusing

on

a different set

of texts, might

come

to think

of the emperor as limited in power and authority, bound by the law, and sharing his lawmaking power with the people, at least in the sense that

customs have the power to become

their

The famous

statement of Ulpian, “quod principi placuit, legis habet

vigorem” ( Digest

mean

that the

emperor has the power to do whatever he

Justinian can be read as

making

By the present enactment,

who

plaining

taken by few medieval

1.4.1; Institutes 1.2.6), is

imply that the emperor alone can make

For

law.

law.

peror

does not

However, an enactment of

the

emperor alone can make

laws.

.

.

them

to

all

persons, except he

shall justly

be regarded

who

alone

permitted to be

is

doubts being cast aside, the

as the sole

maker and interpreter

1.14.11)

em-

these texts are considered with others proclaiming that “the is

not bound by the laws” ( Digest

prevail against statutes

(

Code

1.3. 31)

and that custom

(as

long

as

it is

assumed that these

will

not

can be made that

8.52.2), a plausible case

the people’s transfer of political and lawmaking

manent

.

appears to be capable of solving legal enigmas, and ex-

of the laws. ( Code

When

likes; it

precisely the latter claim:

legislator? Therefore, these ridiculous

emperor

33

jurists to

power

is

total

and per-

texts are as dispositive of the

allocation of political and legislative authority in medieval

Europe

as in

sixth-century Constantinople). 34 Justinian can be read, then, as supporting both “ascending” and “descending” conceptions of government, to use Ullmann’s famous terminology — conceptions in which consent critical

and conceptions in which

difficult to settle

it

plays

no

part.

35

This

fact

makes

is it

with certainty the jurisprudential implications of Brdc-

discussion of the place of consent in English law.

ton's

Matters are complicated by the fact that in the same sentence in Bracton

we

who and

find

both

a

reference to laws “approved by the consent of those

use them” (clearly drawn from the a

mon

Institutes' s

discussion of custom)

statement that English laws cannot be changed “without the com-

consent of

gated” (evidently

all

a

the earlier passage

by whose counsel and consent they were promul-

reference not to the people’s usage of a custom but to

making the

validity of English laws

counsel and consent of the magnates"). plausibly

may be

A

depend on “the

reference to consent, which

read as suggesting that English law

is

customary,

is

thus

The Common Law Mind

12

joined with another that reflects the feudal idea that the king’s

make

laws

power

to

conditioned on the counsel and consent of the great barons

is

or magnates of the realm. 36 While there can be no disputing the importance of consent in the latter passage, there a

claim that Bracton conceived of

all

is

no way

to use

it

to support

English law as customary. There-

fore,

although the passages on consent do not uniformly point in the

same

direction,

on balance we must conclude

the claim that Bracton characterizes

do not support

English law as custom.

made even clearer in the discussion of the role of consent in creation of new writs. The assumption that runs throughout Brac-

This the

all

that they

ton' s

is

discussion of writs

is

that the stock of

common

law writs

is

not

some long forgotten customary practice but is evolutionary and growing. There are standard original writs “formed on specified cases” which are “of course” Bracton 4:285)* These are the static

or fixed by

(.

writs “granted and approved by the counsel of the whole realm totins regni\

and

[that]

can in no way be changed without their consent

and agreement.” Considerable room writs to

[consilio

is left

for the

development of new

meet circumstances not encountered before

in the law if

such

a

writ “is in accordance with reason and not contrary to law” and “pro-

has been granted by the king and approved by his council.”

vided

it

know

that the creation of

bility:

new

We

writs was not merely a theoretical possi-

the registers of writs that contained 50 or 60 writs at the begin-

ning of Henry IIEs reign grew to about 120 decade of the fourteenth century

it

When we consider that for both primarily found in the

common

had grown to 890

his council”

ity that the

customary.

goes

a

By

writs.

the second

37

Glanvill and Bracton legal authority

is

law writs, 38 the assertion that newly in-

vented writs are valid in English law

proved by

at its end.

if

“granted by the king and ap-

long way toward eliminating the possibil-

author of Bracton understands English law to be essentially It

removes any possible doubt that he well knows that new

writs are drafted and approved by identifiable royal officials to deal with particular factual and legal circumstances.

Bracton to suggest that

its

There

is

nothing elsewhere in

author conceptualizes the creation and adop-

tion of writs as an essentially customary practice, even

understood only

as the

if

that practice

is

“custom of the courts” and not the more encom-

passing “custom of our realm of England” often mentioned in contem-

porary writs. If the texts

we consider do not support

the claim that Bracton treats

Law

English

Medieval Treatises

in the

13

s English law as being entirely, or at least essentially, customary, what

then are

we

to

make of

the fact that the treatise asserts that “England

alone uses unwritten law and custom” (Bracton

speaks of “English laws and customs” {Bracton

2:19),

that

it

repeatedly

2:19, 21), that it states that

law in England “derives from nothing written but from what usage has

approved” ( Bracton classified as ethics

and that

2:19),

holds that

it

or moral science “since

it

all

of

De

Legibus

must be

customary princi-

treats of

ples of behavior” {Bracton 2:20)?

One when

possible solution

is

found

the author of Bracton asserts that “England alone uses unwritten

laws and custom,” he

drawing

is

consuetudines

were

a distinction

local customs.”

terms, Tierney argues, there

39

meaning of consuetude

to the

and consue-

whole king-

to suppose that he uses

Tierney

to local

leges

Bracton having thus defined his

no reason

is

different senses elsewhere in his work. limit the

between

body of laws common

tudines: “ Leges constituted the

dom;

in Brian Tierney’s contention that

is

them

in

led into his attempt to

customs by

his

concern to refute

Mcllwain’s argument that because the word consuetudo does not appear in

power of the king “to cause the

the Bractonian text setting forth the et constitutiones et assisas

observed” {Bracton

tomary

law.

40

refers to laws

provided, approved, and sworn in his realm to be

2:22),

the king

Tierney’s point

governing

all

is

shown

is

that

to have

the term that in Bracton

if leges is

of England (that

no authority over cus-

is,

the

Mcllwain’s primary proof text for his claim that the

damental law in the sense that

shown not

leges

it is

common law), then common law is fun-

beyond the control of the king

is

to support his thesis.

The Tierney

interpretation of what Bracton

means by the terms

suetudo and leges has a certain textual plausibility, particularly

ignores the

common

law tradition, running at least from the

if

con-

one

late thir-

teenth century to Blackstone, of explicitly distinguishing between general

and particular

have

its

seems

(or local)

customs — a tradition widely thought to

foundation in BractonT However, another reading of the passage

just as plausible textually

speaking about custom used by

and yet conforms to the standard way of

common

lawyers from the Middle Ages

When

Bracton states that “it will not

through the seventeenth century. be absurd to

on to add

call

that

English laws

“England has

leges

,

as well

though they be unwritten” and goes

many

son to suppose that the intention of the limited, technical definition of the

local custorhs,” there latter

word

statement

is

is

no

rea-

to provide a

consuetudo, distinguishing

it

The Common Law Mind

H from

leges.

seems

It

merely to make

when

just as plausible to

suppose that the intention

between general and

a distinction

local

is

customs and that

discussing the unwritten laws of England Bracton intends to in-

clude the general customs of the realm. the passage relied

On

this reading, the

on by Tierney should be on the word

emphasis in

local,

pointing

out a distinction from customs governing the entire realm. If

Tierney misunderstands Bracton

customs. In the leges

Bracton

,

mistaken in concluding that the word

at least as

word

use of the word consuetudo he

s

consistently

resists the

using the word

wrong passage

is

suspect; there

almost universal

leges in a

does not encompass

assumption that Bracton uses the

place, Tierney’s

first

leges

is

no reason to suppose that

is

of his time — of

juristic practice

variety of ways. 42 Second, Tierney relies

on the

for his definitions; Bracton includes a clearly labeled

definition passage a few paragraphs farther along:

What

law

is

and what custom.

command,

general

We

must

Law

see

what law

is.

the decision of judicious

men, the

restraint of

is

a

offenses knowingly or unwittingly committed, the general agree-

ment of

the res publica. Justice proceeds

justice lies in the creator

jus from man], and thus

synonymous. And though law be everything that

said to just

{lex)

may be

read {legitur)

is

use

it, is

where

it is

sometimes observed

passage rests heavily on

defined,

“Lex

est

is

and

lex are

its

special

its

meaning

opposite.

be

is

a

Custom,

approved by the practice of those as,

the authority of custom and long use

The

jus

that

in the broadest sense

sanction ordering virtue and prohibiting

in truth, in regions

who

from God, assuming

Roman

and takes the place of lex. For is

not

law.

slight.

The

first

Bracton 2:22) 43

(

part, in

an almost exact quotation from the Digest

commune praeceptum, virorum prudentum

which

which

1.3.1,

lex

is

reads:

consultum, delic-

torum, quae sponte vel ignorantia contrahuntur, coercitio, communis reipublicae sponsio.” Bracton' s discussion of ius and lex

is

taken from Azo: “auctor

secundum hoc

tom

iuris est

idem

ius et lex

significant.”

in this passage, while itself

relation of els. Its

custom to

lex.

In

homo, acutor 44

its

connection with

iustitiae est deus, et

Bracton' s treatment of cus-

not quite a definition, does set forth the

this, too, Bracton is

following

Roman mod-

treatment parallels an excerpt of Julian in the Digest

1.3.32:

In any kinds of cases in which there are no written laws the rule that

ought to be observed

is

that

which has come to prevail by use and

Law

English

Medieval Treatises

in the

15

/*•

custom. ...

Immemorial

1.

( inveterata )

not unreasonably; and this

what

is

is

custom

is

observed pro lege,

called the law established

by

/

usage. 45

Because Bracton

s

Roman models

do not limit the use of

for this passage

the term custom to -local customs,

it

seems highly unlikely that

has only local customs in mind. If the Tierney thesis

author

its

accepted, one

is

must ask what Brae tons author thinks about the relationship of general customs to

law.

That general customs hold no place

seems inconceivable, considering

The

in his legal

Roman

his learning in

law.

system

46

fact that the treatise repeatedly refers to the “leges et

consue-

tudines” of England surely reflects an understanding that custom

portant in the English legal order, but withouEmore that

its

author understands

it

is

im-

does not suggest

of English law to be customary or even

all

that he conceptualizes the unwritten law applied in the king’s courts as

custom. Although

it

may be

linguistically possible to read the phrase as

suggesting an identity between

most natural reading. There compels the conclusion that

is

its

and

leges

consuetudines, that

is

not the

nothing stated in the Bracton text that author understands

all

of English law to

be customary. In the end, to prove that the author of Bracton understands all

of English law to be customary, one must rely on presumptions or

evidence brought in from outside the Bracton text and argue that, in the light

of those presumptions or extrinsic materials, Bracton “must”

what one

claims.

Leading

mean

47

common

lawyers repeatedly, from the fourteenth through

common

the seventeenth centurv, describe the

law as the

common

or

general custom of the realm. Although this should not be ignored by one

who

is

trying to understand Bracton

'

s

jurisprudence,

tablishes that the treatise takes that position.

tradition concerning the nature of the lar tradition exists is

no proof that an

author of Bracton does. greatest medieval

Many

earlier

its

law,

work

work

later lawyers

is

by no means is

more than one

and that

a particu-

in that tradition (in

itself). It is

particularly

hold a certain view, the

of the qualities that

make De

rest

of Europe,

its

Legibus the

interest in general ju-

attempt to systematize and rationalize English law — are

unimportant to the generations of common lawyers that

from the

es-

work on the common law — its awareness and knowl-

edge of the learned law of the risprudence,

There

common

the absence of convincing evidence in the

dangerous to assume that because

48

it

follow.

literature these later lawyers left behind, they

Judging

appear to be

i6

The Common Law Mind

«}

largely unread in the the learned law little

and jurisprudence and interested in

beyond pleading and procedure. As T.

F.

T. Plucknett notes, some-

one reading the Year Books of the next two centuries would have reason to suspect that

The

book

a

Bracton that

poraneous

all

English law

writs.

De

customs” because

had been written. 49

like Bracton

extrinsic evidence that is

little

most compellingly supports customary

is

reading of

a

in the formulas of

contem-

Legibus almost certainly uses the phrase “laws and

its

subject

is

principally the law that has

grown up

around the writs used in the central courts, and those writs commonly use as a formula a variation on the phrase “according to the custom of

our realm of England”

(

secundum consuetudinem regni

Clauses in which the law applied by the royal courts

is

nostri Anglic)

called

A

“custom”

appear to be used interchangeably, from one writ to the next, with clauses in

which the person to

whom

the writ

directed

is

is

ordered to do

and custom of our realm” {secundum

justice “according to the law

lege?n

consuetudinem regni nostri ), or “according to the law and custom of

et

England” {secundum legem

et

consuetudinem Anglie) {Early Registers 55, ,

148, 166). If the writs at the very heart of the developing

common

law

use the phrases “custom of England” and “law and custom of England” interchangeably, then

it is

who

drafted

built

around

plausible to conclude that those

the writs, and the lawyers and judges

whose practice was

them, understood the law comprehended in the phrase “law and custom of England” to be customary law.

The

author of Bracton in writing of the

“law and custom of England” would be well aware that in the law writs that phrase land,” las

and so

it

common

used interchangeably with “the custom of Eng-

is

seems entirely plausible,

if

we only consider

the formu-

of the writs, that he might understand the law used in the central

courts to be customary.

The

difficulty

with such

conclusion, however,

a

tonian passages that are hard to reconcile with

it.

is

that there are Brac-

How does

one, for ex-

ample, explain the statements that in order for laws to have force they

have to meet several tion and

whom

tests,

which look to us

would certainly have so appeared

Bracton draws

much

make of those passages

that

like

conditions upon legisla-

to the medieval civilians

of his jurisprudence? 51

may be

And what

is

from

one to

read as suggesting that prior judicial

new law

may be considered a source of law, or of those suggesting that may be created upon new and unusual matters by reasoning a

similibus

ad similiaV 2

decisions

English

Law

in the

Medieval

Treatises

17

/*

Pollock and Maitland write that the English lawyers of Bracton’s time

had “no definite theory

between enacted and une-

as to the relationship

nacted law, the relationship between law and custom, the relationship

between the law strong

a

as

it is

and the law

as

it

ought to be.” 53 This may be too

statement in regard to Bracton himself. But

more can be

little

confidently said of Bracton’s explicit discussion of custom than that he

holds that its

it

sometimes observed

“is

authority “is not slight,” and that

as,

and takes the place of

cannot be changed or abrogated

it

without the consent of those by whose consent

no claim that custom stands assuming that custom

is

absurd” to regard

it

it

was adopted. There

in a superior position to

always what Bracton has in

to ins non scriptum. Bracton as law.

is

lex,” that

is

enacted law, even

mind when he

merely concerned to assert that

refers

it is

“not

54

Bracton and Case Law If

the characteristic medieval and early

ing English

common

modern approach

to distinguish-

law from Continental law involves contrasting En-

glish lex non scriptum with the Continental lex scriptum, the characteristic

approach of modern scholars of comparative law asserts

tween the

common

law as a case law system, governed by binding prece-

dent, in which the standard

mode

ticular cases to general rules,

in fixed

contrast be-

a

and authoritative

of reasoning

and the

texts

civil law',

and arrived

at

is

by induction from par-

whose

embodied

rules are

by means of deductive rea-

soning from general principles. Although one commentator

may em-

phasize the case law aspect of English law, a second, the role of binding

precedent, and

a third,

the theory of inductive reasoning,

most would

generally agree with the formulation. 55

Arthur L. Goodhart rightly observes that precedent in the Oxford Dictionary sense of “a particular instance or case which taken as an example or role for subsequent cases” systems. 56 But

more

is

The famous

sums up the modern theory of case

followed in

1833 case of Mirehouse

may be all

v.

legal

in the

Rennell

law:

law system consists in the applying to

new combi-

we

derive from

nations of circumstances those rules of law which legal principles

or

sometimes claimed for the role of precedent

English system of case law.

Our common

is

is

and

judicial precedents;

and for the sake of attaining

The Common Law Mind

i8

uniformity, consistency, and certainty,

where they cases

which

abandon

all

we must apply

are not plainly unreasonable

and we are not

arise;

those rules,

and inconvenient, to

at liberty to reject

all

them, and to

analogy to them, in those to which they have not been

judicially applied, because

and convenient

as

we

we

think the rules are not as reasonable

ourselves could have devised

5 .

Once a prior case directly in point is found, it “is no longer one which may be used as a pattern; it is one which must be followed in the subsequent case .”- 8

There

is

about

a small dispute

just

when

hold in English law. Carleton Allen dates while Holdsworth says that

it

this

modern theory took

in the nineteenth century,

it

was “reached substantially by the end

of the eighteenth century.” 59 Nevertheless, there

throughout most of its history the

common

little

is

dispute that

law operated without

ory of binding precedent. Except for Bracton, there

no

virtually

is

a the-

tion of earlier decisions by early English legal treatise writers.

Chipman Gray Britton,

,

and only eleven in

contains about

John

one reference each in Glanvill and Fleta none

finds

Littleton’s Tenures

60

his

notebook; his trea-

hundred references to cases

five

in

.

Bracton collected some two thousand cases in tise

cita-

61 .

There

is

some

question whether, in citing cases, he merely follows contemporary practice

or whether he invented such a practice. Plucknett, cautioning us

against assuming that Bracton’s use of case law

is

any part of contempo-

rary legal thought, argues that certainly his use of plea rolls since access to

them was

virtually impossible to obtain

62 .

garded

as

trates the

law to be case law or for

binding authority;

if

custom of the court.

leged in court, but as

a

used

a

is

far

merely

occasions, precedents

63 .

evidence that by the citation

was frequent

Whatever

al-

feel is

bound strong

quarter of the thirteenth century the practice of

64 .

the standard practice of his time, the author of Bracton in

addition to his dicial

may be

on the other hand, claims that there

Allen, last

illus-

general rule the judges regard themselves as

having implicit knowledge of the consuetudo curiae and do not to argue past cases

too early

previous judgment to be re-

at all, a prior decision

On rare

unique,

Maitland takes

an even firmer stance, holding that the thirteenth century a date for the

is

,

own custom

decisionmaking that

of citing prior cases, lays

is

frequently taken as the

down first

a rule

of ju-

English state-

English

Law

in the

Medieval

Treatises

19

s ment of the doctrine of precedent and of legal reasoning by analogy: “If new and unusual matters arise which have not before been seen in the realm, if like matters arise let them be decided by like (si tamen similia ergood one

for pro-

inerint per simile iudicentur), since the occasion

is

ceeding a similibus ad similia

ironic that this passage

’

(Bracton 2:21). It

is

a

should be considered the foundation of the doctrine that, more than any

common law from Roman law, for it clearly Roman legal doctrine. An excerpt of Julian’s

other, distinguishes English

on standard

rests heavily

reads:

When

a rule is laid

down

in the first instance, a

more

precise pro-

vision has to be made, either by interpretation or else by direct legislation. It is

.

.

.

impossible for every point to be expressly comprehended in

statutes or senatorial decrees;

meaning of the enactment

still

if in

clear, the

is

any case that

arises, the

presiding magistrate ought

to extend the rule to analogous cases to the one expressed and lay

down

the law accordingly. (Digest

Another

parallel

is

found

1.3.11,12)

Summa

in the

of the great civilian glossator

Azo:

Sometimes affair is to

of a law.

It

be

settled;

If the

consulted, ble,

in court proceedings there

if

he

sometimes there

doubt concerns present and

is

one must proceed de

must be understood

de similibus ad similia

seen,

is

new

if it is

similibus

is a

doubt about how

a

novel

doubt about the meaning

affair

the

Emperor

possible. ... If

ad similia

that, for Bracton’s

it is

is

to be

not possi-

65 ,

Roman

models, proceeding

means emphasizing the authority not of any

particular but of a series or

we have

a

is a

group of cases creating

a practice.

66

case in

This, as

not true of the modern English notion of case law and

precedent, wherein every court

is

cisions of courts superior to itself

held to be absolutely

bound by

all

de-

and generally bound by the decisions

of coordinate courts “in the absence of strong reasons to the contrary.” 67

We

do not know

dent, but

it

is

if

Bracton entirely accepts the

quite clear that he does not hold the

which the most recent case

While he

Roman view

in point

is

modern

entitled to the

freely uses prior cases in his treatise, they

of preceview, in

most weight.

were old

cases;

and

20

The Common Law Mind

fj

he uses them for the purpose of criticizing more contemporary cases that he thinks perverted the old law. His cases are carefully selected to

show what

the law ought to be, not because he thinks they have any

binding authority 68 .

Still, his

use of decided cases accustomed lawyers of

the thirteenth and early fourteenth centuries to discussing cases, and this

is

a significant step in the

development of

a case

law system.

Bracton’s Revisers

The

unsettled state of English legal theory near the end of the thirteenth

may be

century

breviation of

whole law

seen in the fact that Bracton' successor, Britton an ab,

De

Legibus written in the time of

as statutory

— that is,

as

Edward

I,

represents the

proceeding from the king’s authority

and direction:

Edward by

God

the grace of

have caused such laws

... to

all

his faithful people.

will

.

We

have heretofore been used in our realm to

as

be reduced into writing according to that which

And we

.

.

is

here ordained.

and command, that throughout England and Ireland

they be so used and observed in

all

points, saving to the

power of

we

repealing extending restricting and amending them, whenever shall see

good, by the assent of our earls and barons and others of

our Council; saving also to

all

persons such customs as by prescrip-

tion of time have been differently used, so far as such customs are

not contrary to law 69 .

In this view, the law depends

even repeal here

is

it

upon

the king’s will, and he can change or

subject to the assent of his council.

The custom mentioned

clearly that of local, particular usage in derogation of the law of

the land. instead,

There

custom

certainly is

no idea here of custom

is

as a

fundamental law;

subordinate even to the law created by the king’s com-

mand. The necessary assent of the council provides some the king’s actions, but there

At about the same time the

work known

revise Bracton in tial

as Fleta.

is

no notion of the rule of law

as Britton

,

upon

restraint

in Britton.

an anonymous royal

official

wrote

His primary purpose appears to have been to

view of the legislation of Edward

I.

From

a

point of view, the most significant contribution of Fleta

jurisprudenis its

treatment of the law courts. Although mostly based on Bracton

,

original its

pro-

English

Law

in the

Medieval

Treatises

21

s logue, containing

most important discussion of the

its

fact that

some

English laws were unwritten, follows not Bracton but Glanvill:

The call

laws of England, although unwritten, leges— since lex

may

considered to be

if,

solely for

so, the

them This or

is

in council,

agreed should be

by the advice, that

is

who

want of being written, laws were not

same laws would seem

greater authority from the

of him

it is

magnates and with the prior or subsequent authority

of the prince; for

tice

which

laws, to wit,

promulgated upon doubts resolved to say, of the

not unreasonable to

thus be defined, “the prince’s pleasure has

— those

the force of law”

it is

to be fortified with a

mere writing of them than from the

decrees them or the reason of

*

70

him who

jus-

establishes

.

so close a paraphrase of Glanvill that nothing by

commentary needs

to be added here to

what was

way of

analysis

said of GlanvilPs

treatment of custom. All the medieval treatise writers

whom we

consider (except the author

of Britton) take pains to claim for English unwritten laws leges,

but none of them unambiguously claims that

written or customary. Moreover, none of is

fundamental, either in the sense that

that the king

There

is

is

subject to lex

no support

in these

,

is

most of its

English law

that

is

un-

customary law

1

It is

true that

all

of them hold

but they do not restrict lex to custom.

works for the doctrine that law cannot be

created or for the idea that custom council. Thus, in

them claim

standing as

cannot be changed or that con-

it

trary actions or enactments are invalid.

all

full

is

superior to law created by king and

aspects, the doctrine of immemorial

not to be found in these writers.

custom

W/

V

CHAPTERTWO

b-

The Jurisprudence

T

he philosopher imagine that

of the Year Books

political

movement had taken power

and abolished the teaching of science, executing stroying

all

scientific

fc.

Alaisdair MacIntyre once asked his readers to

know-nothing

a

V

law expression of the length of the time is

no memory.” 21 The

“cuius

non

Thomas

“from time whereof there

similarity of this expression to the canonists’s

memoria hominum”

exstat

is

striking.

is

Littleton’s explicit recognition, near the

period, that custom’s required time of usage

“And note

well, that

been used by

memory

no custom

less striking is Sir

end of the Year Book prescriptive concept:

is a

custom

allowable, but only such

is

of prescription, that

title

No

is

to say,

from time whereof the

man runneth not to the contrary.” 22 Once the common lawyers adopt the civilian-canonist of

do the

mean. In

civilians

23

“But divers opinions have been concerning

Littleton’s words,

Some common

of prescription, which

title

lawyers argue that time of

(September

to the time of Richard

I

Statute of Westminster

I (1275) as a

argue that what

is

time whereof the that

no man then

trouble

and canonists in agreeing about what the formulas

time of memory, &c, and of law.”

formulas for

much

the time necessary to establish customs, they have just as as

as has

limitation

meant by saying

memory alive has

of

memory

1189), the date

3,

that

is all

one

in the

extends back

provided in the

on writs of

Others

right.

custom has been used “from

man runneth

not to the contrary”

knowledge to the contrary. 24 The

is

only

latter inter-

pretation imposes a considerably less onerous burden of proof regarding

customs than the former, but

it still is

twenty years’ “time of memory”

The Year Books

more burdensome than

common among medieval

civilians.

only report the application of the “time of

test to local, particular

customs, not to the

common

law.

the ten or

memory”

did find one

I

instance in which a lawyer objects that a claim based on the law and cus-

tom of

the realm

fails

to allege that the

custom existed from time im-

memorial, but the court rejects the argument out of hand. 2

The

greatest difference in the

usage of custom and that of the

Middle Ages between the

common

lawyers does not

ception each tradition has of the elements that tests for

the for

proving custom.

common its

The

'’

make

valid

lie

civilians’

in the con-

custom or the

conceptions are naturally very close, since

lawyers borrow their definition of custom and their tests

validity

from the Roman

law, either directly

indirectly through the canonists.

The

from the

great difference

civilians or

lies in

the fact

that the civilians engage in a detailed theoretical examination of the na-

ture of custom, the bases of

its

binding force

sources of law, and so forth and that the

nothing to say about these matters. 26

as law, its relation to

common

other

lawyers have virtually

The Jurisprudence of the Year Books

29

s

The Common Law and Legal Change If

there

mon

is little

support in the Year Books for

law as immemorial custom, there

is

conception of the com-

a

even

less for

the contention

that medieval lawyers consider

it

to be immutable. In case after case, be-

ginning in the reign of Edward

I

and running through the fifteenth cen-

tury, lawyers

and judges openly recognize that

no longer what

it

a

is a

A

statute.

lawyer

custom which he

the

or doctrine

few examples make the point clearly

(Isle) asserts,

alleges in his favor

the Statute of Merton, everyone then

was the

common

law before

havingcommon, and the ten-

ant being able to prevent the land from approving: but that

mon law is

is

has once been. In most instances, the recognized in-

strument of change enough. In 1292,

a legal rule

altered

com-

by the Statute of Merton which allows the lord to

approve against his tenant. 2 In 1305, a lawyer (Lanfar) states, “Before the Statute [Westm. I c. 2]

party might

a

make

default

and the form of pleading

statute,

From time

.

.

is

now that process much changed.” 28 .

but

to time, a particular legal rule

is

is

2, 13

Edw.

abridged by

said to have always existed

unchanged. For example, in 1339 Justice Shareshulle announces that “the course of law has always been that the plaintiff should have a writ to the bishop without affirming any other disturbance in him,” and in 1343 Justice Shardelowe says, “It has always been held for law that no one shall have

29 Such statements, Warrantia Chartae but tenant in demesne.”

a

however, should not be understood as assertions that the a

whole

is

immutable. There are

nition of change in the

common

lawyer,

of an immutable

The varies,

common

no matter how

common

law.

-

just

too

many

common

instances of

law as

open recog-

law for us to conclude that any medieval insular his outlook, believes in the

myth

0

reaction of a particular lawyer to a change in the

not surprisingly, according to whether his ox

is

common

law

being gored, but

one does not get the impression from the Year Books that bench and bar generally take the attitude that changes in the

common

law are likely to

be bad or dangerous — an attitude most famously held some centuries later

by

Sir

Edward Coke and

be characteristic of the times. Instead,

that

common

one frequently

unwary

historians therefore take to

law mind in medieval and early

finds a recognition that a

modern

change

in the

30

The Common Law Mind

§

law

is

made

to

remedy some problem with the common

alter the existing

common law are

law. Statutes that

frequently explained in terms of an at-

tempt to remedy some hardship, mischief, or lack of reason

mon

in the

com-

For example, in 1294 Justice Bereford, responding to an asser-

law.

tion of counsel, says,

As

for

that

your statement that the writ takes

is

true; but

Statute;

it

was

its

origin

from the

Statute,

to provide for a case occurring before the

and to remedy hardships which occurred before the Statute

that the writ

was provided. 31

In 1308, Scotre describes a statute under discussion in very similar terms:

The

statute

common

was made to remove the hardship that there was

law in case a presentation was made while heirs were

women

under age or writ of right. statute

in the

were covert, who had no remedy except by

was because of

It

hardship (duresse) that the

this

was made. 32

In 1310, Chief Justice Bereford explains

a

change

in the law

by saying,

“you should understand that the statute was not made for nothing, but because a remedy accordant with

The Year Books

ley

was not ordained by the old

thus leave no doubt that the

common

changed or abrogated by statute and that when there

tween the two forms of law, statutes

prevail.

To

make

common

it

'

3

law can be

a conflict

say this, of course,

say that the cases reported in the Year Books

lawyers of the period do not understand the

is

law.”

beis

to

clear that the

law to be funda-

mental law to which other forms of law are inferior in authority. 34 Statutes are not the only recognized dieval England.

Sometimes there

is

form of

legal

change

in late

me-

an open acknowledgement in the

Year Books that the practice of the court has changed, without identifying any specific case or judge as the occasion for the change. For example,

Malore,

J.,

says,

“Formerly when people were commonly with the

king in war we more readily allowed the essoin than we do now.” 35 But

it is

also clear

‘in

the king’s service’

from the arguments sometimes

made by counsel that it is not unheard of for the judges amend the common law, especially when they are convinced chief” will result from the application of the existing statute law.

The

following colloquy illustrates this point:

to suddenly

that a “mis-

common

and

The Jurisprudence of the Year Books

31

s Sharshulle J. ... he ,

is

common law; and no joinder wherefore & c. Mohray. Sir, when you

not aided by the

is

given to him by the Statute;

see the mischief to be so outrageous in our behalf,

not admitted,

common

it

law, as

infant under age

of

full age,

seems that you

you did

joinder be

admit us in amendment of the

will

another case

in

if this

at

common

law,

when an

was vouched, and the demandant said that he was

and prayed that he might be viewed, and you granted to

the tenant a Venire facias and after that a Distringas and an Alias ,

,

was

Distringas and a Pluries Distringas, and so that the process ,

in-

by reason of such mischief you then granted to the tenant

finite,

Sequatur

should not

\suo periculo ] if the infant

Distringas;

wherefore

it

seems that

reason of this great mischief,

come

in this case. also

amend

a

at the Pluries

you can

by

well,

the law, &c. 36

Judges sometimes recognize that their decisions have the effect of

new

creating

law. In

one of the clearest of such instances, Bereford,

announces, “And by

decision on this avowry

a

we

throughout the land”; and pleased with the court’s

shall

people.” 3

For every example of open

new

role in creating asserts that

desirable

it

hard line on

law

law for poor

judicial recognition of the court’s

might be to have

no power to change the

a particularly

a

however, one can find another in which

no matter how

the judges have

have taken

law,

a

he adds, “For

effort,

twenty years there has not come into England so good

make

C.J.,

a

judge

a different rule,

law. Justice Hillary

seems to

this matter. In the sixteenth

year of

Edward III, he tells one Thorp that he would have to wait for a writ. Thorp protests, “Then I shall be delayed without cause, and shall not recover damages.” Hillary’s response

“What

is

of that?

We

will

not and

cannot change the ancient usages.” 38 In a case a few years at least a

for

later,

Chief Justice Stonore appears to argue for

circumvention of the normal

any judgment of this court ever to

Hillary replies, fect

“What

ut

Bereford changes

it to:

“judgments should be based not on examples but on reason.” In quoting Bracton, Bereford apparently

where Bracton

relying

on

refers to “law,” Bereford’s

indication of just

a telling

is

how

memory, and

his

the fact that

memory substitutes

“reason”

strongly he identifies law with reason.

opinions” are to be trusted, not blindly because they

If the “ancient

are old but because of the reason they presumptively represent, then is

not necessary to read expressions of faith in them

patible with a series of Year

new

Book

cases in

as logically

law. In Venor v.

it

incom-

which judges announce,

manner, that the decision they are

a straightforward

create

is

now making

in

will

Blund for example, Chief Justice Bereford ,

announces:

And by

A

the land.

man

decision]

[a

do

to

through

bad

suit,

on

this

avowry we

rascal of a bailiff or

is

this false possession.

needed to make

compatible with

make

a

law throughout

hayward might cause

and thereby he would remain charged for .

not come into England so good All that

shall

this

.

a

.

a

poor

all

time

For twenty years past there has law for poor people. 124

proclamation of the creation of new law

a respect for ancient

opinions

is

a

conclusion by Bere-

ford and the other judges that in this particular instance the presumption that the ancient usages reflected reason failed. It is

one thing, however, to conclude that some of the most important

common

lawyers in the Year

Book period understand law

another to infer from that that medieval hold this conception of law.

mon

law or

civil

I

common

have yet to find

law traditions in which

all

a

this

way and

lawyers uniformly

period in either the com-

the lawyers agree

on any-

52

The Common Law Mind

$

thing.

A

generation after Bereford proudly makes

new law

in Venor

v.

Blund, another judge emphatically refuses to do so, saying, “It was law

we were born make a new law.” 125 before

...

we cannot change

it

... so sue to Parliament to

common lawyers no doubt differ among themselves about the nature of the common law and how it is to be known. For almost any statement in the medieval legal literature about common law jurispruMedieval

dence one can find others that appear to contradict ferences

may be more

apparent than

real.

it.

Some

But when,

of these

dif-

in a single case,

three leading jurists express three different opinions about the nature

of the

common

law,

one cannot deny that

end, therefore, any attempt by a

modern

real differences exist. In the

legal scholar to claim that in the

common law is essentially common or the common erudition j3f the legal elite

conception of medieval lawyers, the custom, or case law, or reason, is

to

impose

common

a

theory from the outside rather than to find the medieval

law mind.

v.

CHAPTER THREE

v.

w'

v*

v

S

Legal Theory in Fortescue, Littleton,

and Fifteenth- Century Readings and Moots

Sir Sir

John Fortescue

the

is

John Fortescue

first

common

lawyer after Bracton to write

works containing overtly theoretical discussions of jurisprudence first

1

.

His

book, De Natura Legis Naturae written with the ultimate aim of ,

showing how the Lancastrian claim to the throne was ples of natural law, contains in the first

the law of nature and

its

relation to

Laudibus Legum Angliae, presents

volume

human

itself as a

law

by princi-

a

lengthy discussion of

2

His second book, De

dialogue in which Fortescue,

young prince about

as chancellor, instructs the

.

justified

the features of English

law that are important for him, as the future king, to understand.

The

first

thing that the prince needs to

Fortescue teaches,

depend upon the

is

that unlike the law in

will of the

For the king of England

dom

at pleasure, for

also

is

is

the case

far is

a

does not

government not only

were to preside over them with

tallages

the sort of

state that

because he

it

a

power

would be able to change the laws of his realm and

when they is

land,

not able to change the laws of his king-

he rules his people with

impose upon them

ing them; this

some other

law,

king alone.

regal but also political. If he

entirely regal, he

know about English

and other burdens without consult-

dominium which

What pleased

the civil laws indicate

the prince has the force of law.

But

otherwise with the king ruling his people politically,

not able himself to change the laws without the assent

of his subjects

3 .

In a later work, Fortescue

makes more

explicit his distinction

between

two kinds of political arrangements:

53

54

The Common Law Mind

$

Ther

bith

kyndes off kyndomes, of the wich that on

ii

dominium

callid in laten

And

politicum et regale. his peple sett self,

withowt

,

and that other

is

thai diuseren in that the first

by such lawes

vppon thaim

regale

tayles

as

he makyth

hym

self.

And

is

a lordship

callid

dominium

kynge mey rule

and other impositions, such

thair assent.

that,

is

a

kingdom politicum

et regale.

Just

he

as

The secounde kynge may

people by other laws than such as thai assenten unto

England

mey wol hym

therfore he

not rule his

4 .

what Fortescue means by

and by suggesting that the English king is not free to change the law

without the people’s consent,

is

the subject of considerable controversy

among modern commentators. Charles Plummer,

in his introduction to

the Governance of England, takes the view that by his dominium politicum

Fortescue means

regale

a constitutional

limited by the coexistent

wain and Stanley advocating

B.

monarchy

in

which the king

et is

power of parliament.' Charles Howard Mcll-

Chrimes, on the other hand, understand him to be medieval theory of

a typically

a

king limited by law — not

a

law manifesting parliamentary control, but customary law 6 .

As Walter Ullmann points out ent of customary law

people to adhere to 7

rule .” If law

is

is

in another context, a material ingredi-

“the will and consent of the relevant group of

a particular practice

and thus turn

it

into a binding

primarily thought of as customary, then the “assent of the

people” might be expected to be manifested not through acts of parlia-

ment but through

a

change in usages and practices. There

dence, however, that Fortescue thinks of the

The

of the consent of the community.

tween consent and

a

form of English law

common

law

no

is

as the

evi-

product

only connection he makes beis

with statutes, which, he says,

made not only by the prince’s will, but also the assent of the whole realm.”* In De Natura Legis Naturae he just as clearly associates the con“are

sent required in tion:

a

dominium politicum

et regale

with parliamentary

legisla-

“For in the kingdom of England the kings make not laws, nor im-

pose subsidies on their subjects, without the consent of the Three Estates of the

Realm .” 4

There can be no doubt In

De Natura he

writes, “For laws put forth

toms or Statutes .” 10 Given

mon

common by men are

that he classifies the

this limited classificatory

law could only be custom.

He

is

law as custom. all

either

Cus-

scheme, the com-

concerned to praise English

law,

Fortescue Littleton, Readings ,

including

its

customary

law, in

,

and Moots

55

comparison to the laws of other nations.

In a form of argument that certain

common

lawyers in the

first

decades

of the seventeenth century were to find particularly appealing, he claims that English customs are the best because they are the

customs:

most ancient of all

they were not the best, someone in the long succesion of

if

kings would have abolished

them

“for the sake of justice or

by the im-

pulse of caprice.” 11

But though he praises English custom, he does not give

it

pride of

place in respect to statute law. If anything, he holds the opposite view, for he states that statutes.

praising are

He its

is

customs are strengthened when they are reduced to

just as interested in praising English statutory

law as in

customs. English statutes are the best, he says, because “they

made not only by

the prince’s will but by the assent of the whole

realm” and “promulgated by the prudence not of one counsellor nor of a

hundred

There

only, but of is

more than

three hundred chosen men.” 12

nothing in De Laudibus that suggests that Fortescue regards

customary law to be fundamental king or parliament. In

De

in the sense of putting limits

Natiira,

on

either

he does ascribe to the law of nature

the kind of superiority that Alcllwain and

Chrimes think he

ascribes to

custom:

Oh how great and which

all

This law

is

to

to be extolled with

human the

all

praise

is

that law of nature

laws are obedient.

mother of

all

human

law s, and r

if

they degenerate

they deserve not to be called laws.

For we said above that human customs and constitutions are subject to the rules of the law of nature, and having issued aries

do so partake of

its

nature that

if

from

its

bound J

not ratified thereby, such

customs and constitutions deserve not to be called laws, but rather corruptions. 13

Fortescue does not say whether this theoretical proposition

is

to he ap-

common law and statutes and, if so, who would have the authority to do so. What is clear is that he never attributes an equivalent superiority to the common law, even at the level of plied in practice to the English

The Common Law Mind

56

Thomas Littleton

Sir Sir

Thomas

glish law

Temurs has

Littleton’s

book

since Bracton

.

been called the

justly

H Probably written

great

En-

in the third quarter of

summary of English

the fifteenth century, this lucid

first

real

property law

was for three centuries the standard introduction to the study of land law.

Although

1 -

general jurisprudence,

we

draw

are able to

from what he

dential significance his

purpose surely was not to write

Littleton’s

writes,

a

a

work on

few conclusions of jurispru-

most particularly concerning

understanding of the sources of authority for the rules of English

land law. It

be true,

Plucknett says, that cases play a large role in the

as T. F. T.

disposition of the law that Littleton describes. 16 But one

know as

from what he

that

evidence for

This rarity

a

would hardly

writes; although he does occasionally cite a case

proposition that he

is

because

itself is interesting

much

so easily and without fanfare in

medieval Year Books. For example, in

a

advancing, he does so only rarely.

when he does

he does

cite a case

the style frequently found in the

discussion of Estates

upon Con-

dition he notes:

An

of novel disseisin was sometime brought against A.,

assise

pleaded to the case

is

assise.

bound by

.

.

.

Mowbray

the law to

death of his testator, and

and so there was

it is

the sale as soon as he

may after

the

sale,

him; and so by force of the devise he

the profits of the lands to the use of the dead,

found that he took them to

default in him.

recover.

all

Justice, said, the executor in this

found that he refused to make

it is

a default in

was bound to put and

make

,

who

Wherefore

it

own

use,

and so another

was adjudged that the

plaintiff should

his

1

There appears

to be

no

clear reason

handful of instances in which he does so regarding

all

why so,

he cites case authority in the

nor

why he

refrains

the other points of doctrine he advances.

from doing

The

reason for

the widespread absence of case citation cannot be a belief that cases do

not constitute evidence of the law, for on one occasion he sertion by saying: Ill, in a writ

“And

that this

is

the law

you may

see in a plea

an

M.

31

as-

E.

of formedon in the reverter.” 18

Littleton’s citation of cases

is

better understood as an endeavor to

provide evidence of the consuetudo curiae or the ,

bench and

justifies

bar,

common

learning of the

than as an early reliance on the doctrine of binding judi-

Fortescue, Littleton Readings ,

,

and Moots

57

s precedent

cial

19 .

common

of the

This may be seen

— an

law”

in a series of references to “the course

expression that suggests a practice, usage, or

may

understanding that has become established.

It

too, in Littleton’s frequent reference to the

“entendment [understand-

ing] del ley” is

and

in his use

justification of a conclusion

dition”

in the Tenures

is

question were

been given on

now being

decided for the

implication of this passage

issues according to their able; they

own

known

is

been given on

this question.”

many judgments have it is now the law, and

20 .

ideas of what

in this instance

would be reasonable or

“is

now

“because

broader than the

in the

is

common

an issue that he

statute.

desir-

cur-

is

many judgments have

But the judgments establish the law not be-

doctrine of binding judicial precedent but because they show

law that Littleton

cusses the

What

the law.”

what the usage of the courts have been: “usage makes the

If

goods of

that judges are not free to decide legal

must decide according to what

rently the law

a

is

my

time, in

first

plaintiffs take the

and because

this question,

usage makes the law without reason, etc

The

eru-

most unambiguously

stated

the execution themselves. But because so

cause of

common

“un

but in an argument reported in the Year Books:

opinion no judge would decide that the

The

it is

to be.

it

perhaps the clearest of such expressions. Littleton’s association

is

If the

to understand

by asserting that

of the law with the usage of the the court

not

be found,

of similar expressions suggesting that the law

what the judges and practitioners have come

The

arguably

is

common

concerned with explicating

law;

examining law; if

it is

is

it is

later

governed by the

covered by

not understand the

made famous by

common

in his Tenures

is

English law regarding real property.

Nothing that he writes suggests

manner

law.”

Sir

common

a statute,

law,

he dis-

he discusses the

that he idolizes the

Edward Coke. He

common

law

certainly does

law to be superior to statutes either in au-

thority or reason, nor does he suggest that

it

exists

immemorial. Instead, he follows the practice of

unchanged from time

his

contemporaries, ex-

tremely widespread in the reading and moots of the period, of openly recognizing that statutes frequently change the

Tenant

in fee tail

is

common

law:

by force of the statute of Westminster

for before the said statute,

all

II, cap

inheritances were fee simple; for

,

i;

all

the gifts which be specified in that statute were fee simple conditional at the

common

law, as

appeareth by the rehearsal of the same

The Common Law Mind

58

statute.

that

And now by

this statute, tenant in tail

to say, tenant in

is

tail

general and tenant in

two manners,

in

is

tail

special

21 .

common contemporary practice of referstatutory change of a common law rule as an ef-

Littleton does not follow the

ring to the cause of the

remedy a “mischief” or “inconvenience,” but he does occasionally

fort to

“remedy” of the existing

refer to a statutory rule as a

the

common

Also

at the

law.

common

law, before the statute of Gloucester, if tenant

by the curtesy had aliened

was

a

state of affairs at

bar to the heir

.

.

.

in fee with warranty, after his decease this

but

it is

remedied by the same

the warranty of tenant by the curtesy shall be

statute, that

no bar to the heir 22 .

In addition to justifying his conclusions by referring to previous deci-

common understanding or opinion

sions, statutes,

and the

sion, Littleton

sometimes supports

a rule

nience” would otherwise threaten.

He

of the profes-

by asserting that an “inconvediffers considerably

from the

prevailing practice in not alleging potential “mischiefs” to support his

maxim, “the law would sooner

positions. In citing the

than an inconvenience,” he recognizes

gues that

as the

common

between mischiefs

a distinction

and inconveniences, but he does not define the terms

suffer a mischief

23 .

Norman Doe

ar-

lawyers of the period use the terms, “inconve-

nience” involves repugnancy between cases or inconsistency with established practice,

and “mischief”

is

wrong, most usually that of being legally or justly

due

24 .

Doe

associated with the occurence of a left

without

remedy when one

a

arrives at these definitions primarily

is

though

an analysis of the situations in which the terms are used in the fifteenth-

century Year Books, and in the main he

is

persuasive. Littleton’s use of

“inconvenience” can generally be explained in terms of Doe’s analysis, although sometimes

it

may

plausibly be read in terms closer to Doe’s

definition of “mischief.” For example, in his discussion of villenage Lit-

tleton states:

Also,

him

if a villein

be made

as his villein,

and

a secular chaplain, yet his lord

seise his goods, &c.

But

it

may

seemeth, that

and

is

professed, that the lord

take nor seise him, because he

is

dead in

villein enter into religion,

law.

.

.

.

And

lord have an action against the sovereign of the house,

and admitteth

his villein to

so

seise if

may may

the

not the

which taketh

be professed in the same house, without

the license and leave of the lord, and he shall recover his

damages

to

Fortescue, Littleton Readings ,

,

and Moots

59

s the value of the villein. For he which

monk

professed a

is

be taken for term of his natural

shall

life,

monk, and

as a

unless he be de-

railed by the law of holy church. And he is bound by his religion to keep his cloister, &c. And if the lord might take him out of his house, then he should not live as a dead person, nor according to his religion,

Although

which would be inconvenient,

this

passage certainly

nience that would result

if a

may be a

the law’s recognition that a professed a

such

fact that

25 .

read as attributing the inconve-

lord could take or seize one

and enters into religion and becomes

seems to be

Sec

power

would

in the lord

harm

one occasion Littleton closely associates

nience” with

a lack

is

connected with the

interfere with the

gious duties and thus would bring a wrong or

On

professes

monk to an incompatibility with monk is “dead in law,” there also

suggestion that the inconvenience a

who

of reason and, in doing

to the

his use

monk’s

reli-

monk. of “inconve-

seems to have in mind by

so,

“reason” the internal reason or coherence of the law. 26 His use of “reason,” however, tency.

not limited to an attempt to maintain the law’s consis-

is

His most

common

reference to reason

in assessing the validity

is

of some manor, borough, or other local customary rule that diverges

from the general law of the

land.

Such customs have to be evaluated

for

compatibility with reason, but by definition their reason or lack of

it

does not depend upon their agreement with the general law of England. In the absence of established and clearly defined tests for the reason of

such a custom, Littleton seems to resort in some instances to ad hoc

common

a

kind of

sense assessment of the custom’s reasonableness. For ex-

ample, he writes of the custom of gavelkind in the county of Kent, which diverges from the primogeniture of the

there,

common

law, that

where by the custom and use out of the mind of man, the

sues male ought equally to inherit, this custom it

standeth with

as the eldest

valor.

some

son

is,

reason; for every son

and perhaps

will

grow

is

is-

allowable, because

as great a

gentleman

to greater

honor and

is

27

This example

fits

well with Doe’s suggestion that a primary

reason for fifteenth-century sense,” hut

common

what makes good sense

Littleton’s conclusion

is

lawyers

is

meaning of

sofnething like “good

not self evident. 2S

about the the reason of gavelkind seems to be

founded on the commonsense observation throughout human history

6o

The Common Law Mind

V

that virtue or

accomplishment

argument

their birth; his

younger sons may be is

as

is

in children

that gavelkind accords with reason because

honorable or valorous

arguable, however, that his reasoning

moral premise

lated

younger

is

not fixed by the order of

is

supplied

son’s equal valor or

Littleton’s discussion of

— one

as their elder brothers. It

makes sense only

an unarticu-

if

connecting the possibility of

honor with the right to inherit

borough English

also

may

a

land.

be read as making

an attribution of reason on the basis of what might be called good sense, but

too,

it,

may

contain an unarticulated moral premise:

Also, where by the custom called

Borough English,

ough, the youngest son shall inherit

tom son

also stands (if

least

some bor-

in

the tenements, &c., this cus-

all

with some certain reason; because that the youngest

he lack father and mother) because of his younger age,

of

all

his

brethren help himself,

&c

may

29 .

This argument reduces to the claim that the custom that prescribes that the youngest son shall inherit everything

is

reasonable because of his po-

on the moral

tentially greater need. Arguably, this conclusion rests

premise that greater need

The problem these

justifies inheriting everything.

with concluding that Littleton’s attribution of reason in

two examples

rests

on unarticulated moral premises

is

that the

customary rules of inheritance that he declares to be reasonable are consistent with each other (and with the to be reasonable too).

Most

likely,

common

Littleton

made explicit by Christopher St. German tom satisfies the criterion of reason when

God

is

law,

which

its

it is

“neither against the law of reflects standard

principles are quite general (for example,

man) and “cannot be applied great diversity of human

to

affairs,

all

assumed

in the next century, that a cus-

nor the law of reason .” 30 This position

nations,

in-

operating on the theory,

natural law theory, which holds that although natural law all

is

two

is

medieval

common

to

do harm to no

people in the same way because of the

and hence

arises the diversity

of Positive

Law among different peoples .” Further, according to this doctrine, although human law is derived from natural law by reason, reason can31

not deduce from the general principles of natural law rules necessary in particular societies

32 .

all

the detailed

This means that there could be,

consistent with natural law and with reason, a wide variety of schemes

among human St.

German,

societies regarding the inheritance of land. after noting the inconsistent

arrangements found in En-

Fonescue Littleton Readings, and Moots

61

,

,

/*

gland for the inheritance of land (“the lawe of Englande by dyuers cus-

tomes doth sometyme gyue the lande hollye to the eldest sone/some-

tyme

to the

Nor

is

yongest/& sometyme to

there need to labour

much

all”),

remarks:

in these cases, for practically the

whole body of the law consists of cases of lawyers hold that where there

is

and so English

this sort;

any law duly had and ordained for

the disposition of things real, personal or mixed, which law

r

contrary to the law of

binding upon

This

is

all

God

is

not

or the law of reason, then that law

is

that are subject to it.”

perhaps the best way to understand Littleton’s comment, in the

paragraph immediately following his discussjpn of gavelkind and bor-

ough English, nor

will

The

it

that a prescription “if

it

be against reason, this ought not,

be allowed before judges; quia malus usus abolendus est

practical effect of such an understanding of the limitation placed

reason on custom would be that

it

the

a

ates as a limitation

might think

on the

What

validity of

is

how

reason oper-

customs may help explain how he

it still

leaves a large hole in our understanding of

common

against the law of

lawyers assess the reasonableness of

God

and of reason

not beyond controversy, and yet we are given very the lawyers reason about such questions.

Do

is

little

itself certainly

evidence about

they ask themselves,

think of any principle of the law of God or reason that this custom

violates?

Do

able?

derived

two contradictory customs both to meet

possible for

it

Littleton and other

I

is

conflict with those laws.

the test of reason, but

how Can

custom

a

This interpretation of Littleton’s understanding of

custom.

by

higher law; the judges would only have to be persuaded that

custom does not

how

M4

would not have to be proved by de-

duction from the law of God, nature, or reason that

from such

.’

And

if

the answer

is

they ask themselves,

no, do they proclaim the

Can

I

custom reason-

conceive of a plausible scenario in

which these customary rules of inheritance

will

not be completely arbi-

And if the answer is yes, do they proclaim the custom to be reasonable? Or are their conclusions about the reasonableness of customs less reasoned and more intuitive? Such as, I may not be able to define reason but I know it when I see it? Neither Littleton nor the other fifteenthtrary?

century sources provide sufficient information to support

a

confident

answer to such questions, and again we are reminded of the difficulty in fully

understanding the

legal

thought of the medieval

common

lawyers.

62

The Common Law Mind

i?

Readings and Moots Advanced

common

law education in the fifteenth century centered on

the four great Inns of Court. Organized instruction was oral and consisted of readings

and disputations.

3 -

The

readings,

which are analogous

were presented during the two learning vacations

to university lectures,

by persons selected by the benchers from among the utter

We

barristers.

36

have no detailed fifteenth-century description of the readings and

their place in the learning

regimen of the Inns. Our best evidence about

them, apart from surviving manuscripts of the readings, 1540 report of

is

found in the

Thomas Denton, Nicholas Bacon, and Robert Cary

King Henry VIII on

the organization of the Inns of

Court and the

legal

training provided there:

First,

Reader and the Ancients appoint the eldest utter-

the

barrester in continuance, as one that they think

roome

to reade

amongst them openly

Summer-Vacation.

.

.

.

8 of the clock, he that

fore

all

the

shall please

And is

then the

in the

first

day

most able

for that

House during

after Vacation,

the

about

so chosen to reade openly in the Hall be-

company shall reade some one such act, or statute, as him to ground his whole whole Reading on, for all that

Vacation; and that done, doth declare such inconveniences and mischiefs as

were unprovided for and now by the same statute be

amended; and then reciteth certain doubts and questions which he hath devised that

may grow upon

the said statute, and declareth his

judgement therein. That done, one of the younger utter-barresters rehearseth one question propounded by the Reader and doth by

way of argument labour to prove the Readers opinion to be against the law; and after him the rest of the utter-barresters and Readers, one

after the other in their ancienties,

and judgments

in the same;

doe declare their opinions

and then the Reader who did put the

case indeavoreth himself to confute objections laid against to confirm his

own

opinion, after

whom

any be present, declare their opinions.

him and

the judges and serjeants,

And

if

after they have done,

the youngest utter-barrester again rehearseth another case, which

is

ordered as the other was. Thus the Reading ends for that day; and this

manner of Reading and

or thereabouts. 37

to

disputations continue daily two houres,

Fortescue, Littleton, Readings,

From

this description

sitions of the statutes.

quence so that

begun is

may be seen that readings are primarily expoThey normally are organized in a definite seexposed to

is

3s period of study at the Inn.

his

again.

At

63

it

student

a

and Moots

least until the

all

Once

the important statutes during

the sequence

completed,

is

middle of the fifteenth century,

a

it is

reading

not expected to be original:

A lawyer called

upon

do more than

to

for a reading

reflect the

seems not to have been expected

work of

his predecessors

who

the particular reader was.

agreed with the reading and any

we

.

Since the

it

names and arguments of those who

for a hearer to note the

Since

It

.

made little differwas rather more important

reading thus remained substantially the same,

ence

.

new

dis-

pointsj:hat they might make.

are searching not for originality but for evidence of standard

jurisprudential assumptions

among

the fifteenth- century

common

law-

an examination of the readings and disputations should serve

yers,

39

as a

useful supplement to our study of the case reports and treatise literature.

The

fact that the

formal lectures presented

expositions of statutes rather than of the

ported in the Year Books

no similar formal

body of

orderly

tem

suitable for

is

most

at the

Inns of Court are

enormous body of case law

interesting.

So

far as

we know,

re-

there are

lectures that seek to reduce the Year Books’ great, dis-

legal discussions

and debates to an understandable sys-

mastery by students

at the Inns.

A.

W.

Simpson hy-

B.

pothesizes that the readings given as part of the learning exercises at the

may be concerned with

Inns of Chancery least

one of the functions of a Chancery reader was to read year books.” 40

Most

who examine the matter find this suggestion unpersuasive, among other reasons, the contents of the Year Books, concerned

scholars

because as

they are with the niceties of pleading, are too difficult for the kind of

elementary students found Ives writes, even

when

meaning

is still

Books

important for

are is

the Year Books and “that at

is

in the

the law-French text of a yearbook

a proficient lawyer,

One

why

If so, just

the statutes

is

is

as E.

W.

clear, the

not

at the

one must wonder why there

Inns of Court.

One

method of studying reports was

that “the accepted 42

if,

often obscure and mastery of the contents of the Year

no readings on the Year Books

place.”

Inns of Chancery. 41 But

that

is

explanation

to

common-

acceptable for the Year Books but not for

clear.

possibility

is

that the content of the learning exercises in the

The Common Law Mind

64

Inns of Court reveals something fundamental about

how

Book reports — that whatever

lawyers understand the Year

of these documents, they are not understood to reflect

common

the

the interest

a legal

authority

that has to be followed, in the sense that statutory authority has to be

made

followed, and thus they are not

Mastery

central to the curriculum.

of pleading seems to be learned from two principal sources: attendance

where the practice of experts can be observed, and the

at the courts,

mooting

exercises at the Inns,

Common

oral pleading at the

“which mirrored the process of ‘tentative’ Pleas .” 43

The

cases argued at these exer-

We

how

they

were used during learning vacations; in term time, exercises were

also

cises are constructed for pedagogical purposes.

have seen

conducted in the “arguing and debating of cases

after

moting

as is heretofore pre-

used and kept in

after supper,

like

forme

dinner and the

scribed in the Vacation-time .” 44 If the cases that serve as the basis artificial

of the disputations in the Inns are

constructions, designed to raise difficult questions and to train

students “to find the correct procedure to adopt in court,” at least the

members in discussing so-called readers Year Book cases in support of a proposition being

readings themselves, and the cases, occasionally cite

defended

45

It

.

cannot be said that reference to an actual case

method of establishing

cipal

way

correct

common in the

quent

either the

common

law on

a

the prin-

question or the

to read a troublesome statutory passage, but

in these learning exercises as in the court

is

it is

as least as

arguments reported

medieval Year Books. Such citations are considerably more frein the disputations of readers’ cases

readings themselves

sometimes

46

Just as in the Year Books, citations of cases are

.

without even

indefinite,

reign the case was heard.

been adjudged

that,”

has been held in

than in the fifteenth-century

a reference to the

The most common

king in whose

of such locutions

without further identification.

A

is,

variation

some books,” or “That has often been adjudged

books .” 47 The reporter comments, regarding the

last assertion,

“It has is,

in

“It

our

“But he

did not say where. Note.” This, and the fact that most of the case citations in the Inner this

Temple arguments

point in the fifteenth century the expectation

when

a case is cited it will

is

It is

supplied. clear

that

is

specified; as often as not, the regnal

4S

enough

they think they

may be growing

be identified. In the great majority of in-

stances at least the reigning king

year

are identifiable, suggests that at

made by disputants because contentions more persuasive. It is not so

that case citations are

make

their

Fortescue Littleton Readings

-

,

,

clear that a prior case, or even a series of cases,

,

tfW Moots

regarded as

is

a

65

binding

authority:

Therefore

tenant for

if a

life

disseised, the disseisee shall not

is

avoid the lessor in a writ of waste, because the disseisor or the dis-

continue do not hold of the donor, be held of the donor. Yet

may, which It

is

est

But

I

has been held in

it

some books

formedon

that

would not agree with

men nowadays

is

that,

to the contrary.

might

differ

but

it is

some books

lies

avowson

in

and the opinion of the wis-

what has been

to be that

for an

that he

49

cases might occasionally be regarded as a matter,

estate in fee simple can

my mind.

The assumption seems on

no

clearly not the law to

has been said in

gross.

since

said or held in earlier

good evidence of what the law

is

not the same as the law, and on occasion the law

from what

is

reported in the books.

It

might

differ

because

the law has changed (the “nowadays” in the last quoted statement

Or

reflect that conclusion).

it

might

may

because the lawyers and

differ

judges quoted in the Year Books are mistaken about the true state of the law. If the latter

derstanding

is

is

the assertion,

we may properly wonder what

the un-

concerning where the correct law could be found.

The

disputations associated with the readings contain several promising candidates for the repository of the law of England, and in the end

conclude that there the law

One

is

no

to be found or

is

single, universally

how

it is

to be

accepted theory about where

known.

of the most promising candidates

is

the

common,

or established,

learning of the elite bench and bar. This seems to be what it is

argued that despite what

the wisest

port of

a

eruditio ),

men nowadays

contention that

common

is

said in

some

contrary.”

is

common

It is

is

meant when

case reports, “the opinion of

repeatedly asserted, in sup-

learning ( comen erudicion or communis

understanding ( comen entendment ), or

common

ion (comen oppinion or communis oppinio) supports the claim.

adds references to

common

experience and to

dence seems very strong for

a

common

view that the law

is

of communal understanding within the profession. is

not to be entirely clear about what such

like

or

how

it is

created, and

it

may

we may

a

to be

To

opin-

When

one

sayings, the evi-

found

in a

kind

say this, however,

commonality of opinion

suggest the presence of

a

is

wider con-

sensus in the profession than ever existed. 50

We

should not be too quick to entirely dismiss the idea of case au-

The Common Law Mind

66

thority. In

one interesting passage, the reporter of a disputation notes

regard to an assertion by Frowyk: “Query

common

in

amazing, the

this, for it is

opinion being to the contrary. But he said that he knows of au-

thority [auctorite] to support his opinion.”'

!

Here we have the common

opinion of the profession set against alleged authority (evidently case authority).

What

this

means

to the writer

we can only

possible that the notion of case law as authority

part of the fifteenth century.

and the citations of cases

One

is

guess, but

seems

it

incipient in the latter

reading the Year Books of the period,

in the disputations at the Inns, gets the impres-

sion that occasionally a lawyer believes that in citing a case he has settled the matter at issue. This

is

not to suggest that one cannot also find in-

stances of the citation of cases in which the lawyer citing a case uses

merely

common

pears

to have

still

The most widely held view

in.

ap-

been that prior cases constitute evidence of the com-

erudition, but ambiguities regarding case authority

creeping

may

have been

52

Alleging that

a legal rule is a

ground, principle, or maxim appears to

have been an even stronger claim of legal authority than to allege that is

a

is

subject.

opinion held by the court in 10 Edw. IV.”

mon

learning or opinion

For example, Grantham says that “the opinion in 14 Hen. that the writ is not allowable for either of them. That clearly is the

on the

IV is

an example to show what the

as

it

common

two

learning, although the

While references

ideas are closely associated. 53

to principles or grounds are fairly

putations, they are

made

in a

it

summary manner

common

that affords

in the dislittle

basis

for assessing their jurisprudential meaning.'’ 4 For a fuller understanding

common

of the place of maxims or principles in fifteenth-century thought,

we must turn

Fortescue.

A

case

from

Books of the period and to John

to the Year

YB

13

Hen. VII suggests that principles are un-

derstood to be very firmly established Kebell:

And

it

me

seems to

common

that one could

erudition:

impose upon

fee simple the condition that he could not alienate.

a feoffee in

Bryan

ff] inter-

rupted him, and said that they did not wish to hear him argue conceit, because

and E.

W.

is

now,

it is

plainly contrary to our

in a sense, a principle [in

Ives argues that the

and “maxim”

as

law

common

common

maner an principle

]

this

erudition,

V

lawyers sometimes use “erudition”

synonyms. 56 But the case upon which he principally

re-

Fortescue Littleton Readings ,

,

for this claim

lies

seems to support

,

and Moots

67

between the terms

a distinction

rather than an equivalence:

Yet the law as

is

not

an erudicion:

as I

understand in

WTere

the party.

nor erudicion for what you say the party shall only have. I

Ives

have never heard

makes

“maxim.”

his

see

I

The

.

.

.

.

Kebell:

no

T here

is

been held

neither ground

but this has been an erudicion that

.

,

But

this erudicion

of which you speak,

before."

argument by translating basis for

seems to be drawing dicions.

it

.

.

.

.

this case, for this has

doing

erudicion in each instance as

so; instead, Kebell, in his first

between grounds

a distinction

(or

sentence

maxims) and eru-

interpretation of principles as very firmly established erudi-

tions accords with John Fortescue’s

more

detailed explanation of

common lawyers’

use of

about reasoning, describes them

as the

earlier in the century. Fortescue, associating the

maxims with

Aristotle’s teaching

maxims

foundational principles from which legal reasoning must proceed, and

quotes Aristotle for the propositions that force of

argument nor by

for holding

it.”"*

logical demonstrations” but “is its

Quoting

known by own ground

“not

a principle is

Aristotle again, Fortescue asserts that there

could be no arguing with those

who deny principles. The

reason for

this,

apart from the fact that Aristotle says so, seems to be that since principles or

grounds are understood to be the most firmly established points

of the

common erudition of in YB 13 Flen. VII) do

Bryan,

the profession, the judges (for example,

not wish to waste time with an argument

59 that seeks to overturn the existing paradigm.

Though

“erudition”

is

not used as an exact equivalent of “maxim,” one

anonymous argument does use in

“positive law” in precisely the

same sense

which Fortescue uses “maxim”: 1

And

the court said that writs of right, of

[of novel disseisin],

mon

formedon, and other such writs

law, are positive law [ley positif]

available to

There

is

no

;

as

w ere r

[such]

at

assize

com-

and no answer whatsoever

deny them, or to prove why they are writs of

what law provides them, or why '

mort d’ancestor and

their nature

is

is

right, or

such, and so forth.

answer because they are positive law which can-

not be denied. But in other writs, which are provided by statute,

one may make answer and have the benefit of denying and disproving

them

in cases

where they are not warranted by the

statute. It

is

The Common Law Mind

68

upon formedon upon

the same

because

a record,

not positive

it is

law but special or temporal law 60 .

This

most unusual usage and turns on

a

is

its

and early modern usage of the term “positive that

which

is

found

in Stowell

v.

Lord Zouch

a

head the normal medieval law.”

The normal

few decades

later:

usage

is

“Acts of

Parliament are laws positive .” 61 Examples such as this one, demonstrably

out of the mainstream of legal historian to

there

from

a small

a

reminder to the

sample of usages of terms, particularly

no trustworthy way

is

law usage, serve as

be cautious and modest in his efforts to draw jurispru-

dential inferences

when

common

to check the representativeness of a

particular usage. Justifications of legal assertions are occasionally based

that the rule

more commonly, ever, the Statute

their authority

is

common

law.”

Even

attributed to usager “Because,

how-

established “by the course of the

is

of Marlborough has been confirmed in another form,

and the law has always been used to the contrary,

makes

a

law.” 62

It is

this

usage makes

unlikely that these expressions reflect a conceptual-

ization of legal authority as is

on the claim

customary

in character, unless that

custom

understood in terms of the accumulated experience and learning of

the profession.

In addition to explanations of their conclusions in terms of prior cases,

common

erudition or opinion, maxims, and

common

usage — all

of which arguably are associated with the developed consensus of the profession on an issue rule

— the

lawyers sometimes argue that a different

would offend against reason or produce

legal rule

harm

is

is

of

a different

claim depends if so,

A

claim that a

required by reason, violates reason, or produces or avoids a character from one that relies on a correct repro-

duction of accepted opinion.

and,

a mischief.

upon whether

there

how accurately it is

essentially factual in nature.

The

persuasiveness of the latter sort of is

an accepted opinion on the subject

mirrored by the asserted

Claims that

a

mischief or

rule.

The

harm

will

claim

is

be suf-

fered because of, or in the absence of, a rule are highly fact-dependent

but also require an assessment of whether the mischief

Claims that the rule

at issue

is

some normative

likely to occur.

either reasonable or contrary to reason

require a different kind of evaluation the rule against

is

— one

that depends

upon

testing

standard. Such a standard could be one

that merely seeks to maintain a kind of doctrinal order and coherence in

Fortescue, Littleton Readings

,

,

the law,

it

could be as amorphous as an appeal to

could be one that,

ported from

kind of claim

and moots. all

is

It is

law. It

is

common

69

sense, or

it

enforce moral norms im-

at least implicitly, seeks to

system outside the

a

and Moots

not always possible

tell

what

being made in the references to reason in the readings clear that

no

single conception of reason runs

through

the references^

An

assertion of lack of reason that seems to appeal to the felt need for

maintaining

a rational

consistency in the law

is

found in an argument

made by Thomas Kebell in response to the question, Three joint tenants make a lease for life reserving the rent to one of them: is that reservation good or not? Kebell argues

There

is

in the affirmative, saying in part:

also another reason, for a gift in tail

tenants, reserving the rent to

reserved were to have

it

one of them,

if

made by

the one to

as reserved, as in the case

of

three joint

whom

a lease for life,

whom

then the tenant [would hold] by two services: of the one to the reservation

other two to

is

made by

virtue of the reservation, and also of the

whom no rent is reserved,

hold over, which

is

against reason [quell nest

on the same

is

of the creation of an “inconvenience,” as

injustice

as

they

lack of reason

made

gift,

which

is

my raw?]. 63

This sort of assertion of lack of reason

that the point being

by the same services

another kind of tenure, and so the land would be

held by several services and tenures

Sometimes

it is

is

is

sometimes expressed

we have

that the offending rule a

terms

seen.

asserted in contexts that

being done. For example

in

make

would

it

appear

result in an

lawyer argues, “Therefore,

if

he has

had the punishment and done that for which the action was brought against

him

it is

that ought to be

not reson that he should remain in prison for something

done by someone

else .”

64

The

point of this use of reason

seems to be broader than the idea underlying the assertion sometimes

made that a particular rule would result in a mischief; it seems to be more closely analogous to a notion of justice or desert 65 This is perhaps seen more clearly in an argument made in response to a Middle Temple .

hypothetical question: “If the aunt recovered the place wasted, then the niece would have been able to enter with the aunt and hold in

and

it

would be against reason

where she had no

Doe

loss .”

common,

for the law to give her such an advantage

66

suggests that the

common

lawyers’ use of “reason” has things in

The Common Law Mind

7°

common with

the iustitia of the medieval theologians and civil and canon

lawyers, although the concepts are not identical correct, with the qualification that

67 .

This seems essentially

some of the common

lawyers’ usages

of reason address concerns that overlap with those of iustitia but some do not. Certainly, the lawyers in the last

two examples from the Inns’ learn-

ing exercises appear to be making the point, by alleging a lack of reason, that

someone

that

is

is

being treated unfairly — either by being given something

undeserved or by being compelled to bear an unmerited burden.

This usage of “reason” seems very close to the conception of widespread in medieval theory, son,” used in this sense, in

for a rule

mischief than to what they itself (for

rendering to each his due

seems closer to what the

mind when they argue

word “reason”

as the

common

on the ground

mean on

that

it

justice,

68 .

“Rea-

lawyers have

would avoid

a

other occasions by the use of the

example, the maintenance of intellectual consis-

tency in the law).

The readings and arguments at the Inns of Court suggest that a lawyer who wishes to claim that a particular rule or interpretation is or is not the law has a variety of proofs at his disposal: he could allege a previous

court decision, claim that his view or opinion, quote

a

is

is

of law

arranged in

a

the law, and

to a situa-

What we do

on one occasion

said or decided in an earlier case

lawyer seems to suggest that

a

it is

what reason requires and what the law requires might

impression created by

disputations

is

a series

not

is

conceiv-

differ

69

.

of statements in the readings and

that previous cases will be

erudition or by maxims. it

opposes an outcome.

erudition

heirarchy of authority. Occasionally a speaker ac-

knowledges that what has been

The

common

any grand theoretical statement in which each of the sources

not find

able that

with

maxim, assign mischief or inconvenience

tion, or assert that reason supports or

is

in accord

overcome by present

common

We have seen in our discussion of Littleton that

was an established principle that “the law

will

sooner suffer

a

mischief

than an inconvenience.” Although there might be considerable debate over what a particular statutory provision means, there seems to have

been universal agreement that ing and import

is

if

there

is

a statute

on

a subject its

mean-

What we cannot tell from the available how the lawyers of the period understand

controlling.

fifteenth-century evidence

is

the authoritative weight of reason in comparison with other recognized

sources of law.

CHAPTER FOUR

The

Early Sixteenth Century Christopher

F

ollowing fortescue, English law by

a

death. St.

German,

German

the next explicitly theoretical discussion of

common

German’s Doctor and

St.

lawyer

is

to be

found

in

Christopher

St.

Student, published half a century after Fortescue’s

a barrister

of the Inner Temple, was well read in the

canon law and medieval philosophy and theology. Doctor and Student consists of

the

two dialogues between

common law. The

first

was published in English

a

doctor of divinity and

student of

a

dialogue appeared in Latin in 1523; the second

The

in 1530.

dialogues were not printed to-

German intended that they together should make up one coherent work. Our concern here is primarily with the first dialogue, which, as St. German gether until after

tells

St.

German’s death, and

us in his prologue, “shows

it is

doubtful that

what are the principles or grounds of the

laws of England, and how conscience ought in

many

cases to be fanned in ac-

cordance with those same principles and grounds.” St.

St.

German’s treatment of English law

is

1

only understandable in the

context of his general jurisprudence. This general jurisprudence

out largely by the doctor, who, in an exposition that owes

much

set

is

to the 1

schoolmen, Gerson, and the canon lawyers,. divides law into four kinds: law eternal, the law of nature (“the which as

them

that be learnyd in the law of

I

haue heard saye

is

called

by

England the lawe of reason”), the law

of God, and the law of men. 2

Law eternal the doctor describes God — the wisdom by which God good end. This law eternal all

other laws and because

is

all

God shows

supreme wisdom of the law of

wills that all things

called the first law because

he guided to it

other laws are derived from

except the blessed souls that see

law eternal, but

as the

as

God

as

is

existed before it (9).

No man

entirely

know

this

necessary to man.

Man

has

face to face

much

may

a

71

The Common Law Mind

72

knowledge of eternal law

known

Man

way

known

man by the

is

called the law of reason (or nature).

is

God.

Finally, eternal law

may be shown

order of a prince or of a secondary governor, and then

an ambiguity in England.”

man

it is

(n).

St.

When

When

used in connection with eternal law of,

it

appears to refer

and to the ultimate authority

it

seems to signify only the means by which

know the ultimate law. The law of nature, according

ways — generally and

specially.

by nature to

Considered

all

men

may be understood in two Considered generally, k refers to certain

living creatures, reasonable

specially, the

contrary to

grounded

him by it is

law of nature

is

the natural light of reason.

and unreason-

the knowledge of the

in this law, including the law of

The

will of

Any

man and

statute or

custom

void (13-19). All other laws except the law eternal are

as a certain law, given

them the

can come

to the doctor,

eternal law in a rational creature, written in the heart of every

revealed to

English

for,

used in reference to the three other kinds of law identified

by the doctor,

rules given

is

German’s use of the phrase “grounds of the laws of

both to the ultimate source

able.

and when

evident from the doctor’s exposition up to this point that there

It is

to

light of natural reason,

the eternal law through “heavenly revelation,” and the

called the law of

called the law of

laws.

by the

the eternal law

knows

also

law so to

this

first

God

God, which the doctor

defines

by revelation to reasonable creatures, showing

(21).

law of man, or positive law,

is

derived by reason as necessarily and

probably following the law of reason and the law of God; every well-

made

positive law contains

of the law of

The

God

something of the law of reason (nature) and

3

(27).

doctor concludes his exposition by saying that he has shown the

general grounds of the law of England, on which

based the

if it

more

Where

all

English law must be

be good law, and then he invites the student to explain to him particular grounds of English law

(31).

Fortescue finds three grounds of the law of England,

man’s student finds

six:

the law of reason, the law of

toms, maxims, particular customs, and statutes. signs the law of reason as the

first

St.

God, general

Of these,

Gercus-

the student as-

and principal ground of the law of

England: It is

not vsed amonge them that be lernyd in the lawes of Englande

to reason

what thynge

is

commandyd

or prohybyt by the lawe of

The Early Sixteenth Century nature and what not: but this

maner:

as

all

the resonynge in that behalfe

when anythyng

is

in the law of

vnder

groundyd vpon the lawe of nature:

they say that reason wyll that such a thyng be don.

Those learned

is

73

(31, 33)

England, he continues, divide the law of

reason into the law of reason primary and the law of reason secondary.

The law of reason primary is commanded or prohibited by without the addition to

it

so called “because the things which are that law are derived

of any other law”

(33).

from reason

For example,

murder, perjury, deceit, and the breaking of the peace.

secondary

prohibits

law of reason

divided into two branches, secondary reason general

is itself

and secondary reason “is

The

it

alone,

The

particular.

law of secondary reason general

groundyd and deryued of that generall l^we or generll custome of

proprety whereby goodis mouable and vnmouable be brought in to certayne propretye so that euery

man may knowe

law of reason secondary particular

“is that

his

owne

lawe that

is

ordeyned and held

in this

son secondary particular because only held for law in

The

realme”

(35). It is called

reason

its

a particular realm,

is

all

derived of a law that

maxims of

the law of the realm

law of reason, but the student does not think that this

with such

he

a claim,

says, lies in the fact that

reason secondary particular

is

difficult to

come

is

the realm) that

provable by the

is so.

'The problem

knowledge of the law of by, derived as

it is

from

To deduce secondary reason from them is not because much depends upon the manner and form of English legal

maxims of English easy

is

the law of rea-

so full of such secondary rea-

sons (derived out of the general customs and that

maxymes &

and in no other.

student admits that English law

some men have affirmed

is

The

thynge.”

dyryuyed vpon

dyuers customes general and pertyculer and of dyuers statutes

a

argumentation

law.

(37).

We

return to this discussion of the relation of rea-

son to English law when we come to

St.

Germans

discussion of general

customs and maxims. T he law of God

One must assume that it holds the same meaning for him as it does for the doctor. Any statute or general custom directly against the law of God the student holds to be void

(41).

is

not defined by the student.

General customs, the student’s third ground of English

law,

are defined as those

of olde tyme vsed through

all

the realme: which haue

and approuyd by our soveraygne lorde the kynge and

ben acceptyd his

progeny-

The Common Law Mind

74

tours and

theyr subgettes.

all

And

because the sayd customes be

neyther agaynst the lawe of god not the lawe of reason alwaye taken to be good and necessarye for the

&

haue ben

common welth of all

the realme. Therfore they haue optayned the strengthe of a lawe in

so

moche

them doth agaynst Iustyce and

that he that doth agaynst

And these be tho customes that proprely be called the common lawe. And it shall alwaye be determined by the Iustyces whether

law.

there be any suche law or generall custome as alleged, or not and

not by

The

.xii.

men.

(45, 47)

fourth ground of English law, says the student, “standyth in

maxymes realme” (57). The

dyuers pryncyples that be called by those learned in the lawe the which haue ben alwayes taken for law in this identification of

uct of

St.

maxims

ground of law

is

seen as the prod-

German’s confusion of the formal and material sources of the

law: Stanley

Chrimes and Stephan

concluding that there rate

as a separate

is little

Siegel are not entirely mistaken in

reason for designating maxims as a sepa-

ground from general customs. 4 The student himself

says that

all

maxims of English law “might be conveniently numbered among the said general customs of the realm” and distinguishes maxims from customs on the ground that while customs

are

known

generally throughout

maxims

the realm by the unlearned as well as the learned,

only in the king’s courts or law”-

Chrimes contends

of maxims are accurate. St.

all

among them

that the

numerous examples

known by

— very

from the standpoint of

difficult to see the utility

German

is

common

St.

gives

not quite law rules,

arcane and technical rules

the general public. All the same, while

be analytically useful to distinguish maxims law,

German

St.

pithy statements of general customs. This

but those rules are of a particular type

“known

that take great study in the

German’s examples are statements of

not likely to be

are

as a subclass

it

of customary

German’s general jurisprudence,

of assigning them as

a

may it is

separate ground. 6 St.

speaks of customs and maxims interchangeably in his discus-

sion of the imperfect participation of customs and

maxims

in the law of

reason, and this presents a problem in relation to the authority of these

grounds

The

as law.

fifth

ground of English

law, the student says,

is

particular cus-

toms. These differ jurisprudentially from general customs only in the fact that their jurisdiction

is

geographically limited.

The Early Sixteenth Century

Most of

75

the law of England, according to the student, depends

Customs provide not only

general customs or maxims.

large part of the substantive and procedural law of basis of authority for

all

the content of a

England but

the king’s courts. Although

some

also the

institution of the courts or that they should exist at

custom of the realm upon which

“all

is

the

The

all.

ground and beginning” of the

king’s courts depends “is of so high authority that the said courts

may

their authorities

Parliament”

Indeed, no general customs of the realm that have ob-

(47).

student

may

be changed without Parliament (49).

very careful to maintain that even the customs that

is

have obtained the strength of a law cannot be proved only by reason

How

57).

can

it

and

not be altered and their names changed without

tained the force of law

The

not

England” that provides either for

statute nor law written in the laws of first

and

statutes

books of English law mention the authority of such courts, “there

the

upon

(55,

be proved by reason, he argues by way of example, that

only the eldest son

may inherit at all, and

ters shall inherit the land? In

there

if

is

no son,

all

the daugh-

view of this imperfect connection between

made

general customs and reason, a statute

against general

custom

is

valid law (57).

There

is

evidence that

German

St.

recognizes that he has created a

theoretical predicament for himself concerning the source of authority

of general customs.

He

twice approaches this problem — once in his dis-

cussion of general customs and once in his treatment of

never satisfactorily resolves tent that any law

is

In

it.

entitled to the

St.

maxims — but

German’s jurisprudence, to the ex-

name

“law,”

derived from God’s will — the eternal law.

it

must be grounded

God makes

in or

his eternal law

man through three agencies: reason, revelation, and the order of a prince (11). The student assents to the doctor’s statement that the law of man — customs, maxims, and statutes — “is deryuyed by reason as known

a

&

to

thinge whiche

is

necessaryly

of the lawe of god”

&

probably folowyng of the lawe of reason

But the student also says that many English

(27).

customs cannot be proved only by reason to have the strength of (57).

not

The most important

a

law of reason but

a

law of England, the law of property,

greatest part of the law of

name

The England may be

law of custom.

problem, then,

is

is

a

law

itself

how

the

said to be entitled to the

“law.”

This

S is

not

a

new problem

and Fortescue are

all

in

English jurisprudence. Glanvil, Bracton,

concerned with establishing the authority of En-

The Common Law Mind

76 glish

customs

For them, however, the primary problem lay in the

as law.

was largely unwritten,

fact that English law

prince. For St. difficulty lies

when

England, following the Corpus

legal culture outside tinian, primarily

time

at a

European

the

luris Civilis

of Jus-

conceived of law as written and promulgated by the

German

the problem

is

not in being able to make

different

and more

a plausible case for

difficult.

The

unwritten law

but also in maintaining the coherence of the whole jurisprudential scheme,

which

he, uniquely

among common

nub of the problem

lies in

general customs and

The doctor

lawyers, sets out in great detail.

the question of

maxims — might be

how

The

the bulk of English law —

tied to the eternal law.

brings up the problem in a question directed to the

student: I

pray thee show

me by what

authority

is it

proved in the laws of

England that the cases of general customs of the realm

.

.

.

and such

other which thou callest maxims ought not to be denied

.

.

.

for

since they cannot be proved by reason as thou agreest thyself they

cannot, they

some

may

be denied

as lightly

as affirmed unless there

be

statute or other sufficient sufficient authority to approve

them. (69)

The

student’s response does not directly answer the doctor’s question.

Instead,

it

consists of an

argument that many of the customs and maxims

of English law are so well

known

that

it is

writing, and those that are less widely

not necessary for them to be in

known among

may

the people

be

known partly by the law of reason:

&

gland called years and terms in the king’s courts

and

partly by the books of the laws of En-

partly by divers records remaining

&

in his treasury ...

&

also

by divers statutes

wherein [many of] the said customs and maxims be

oft recited. (69,

7 1)

This

is

not

a

convincing answer to the doctor’s question, which assumes

that unless customs can be proved

some “other fact that

sufficient authority.”

What

is

not demonstrated

is

why

the

customs are widely known, or that some of them may be found

in certain books,

them

by reason they have to be proved by

as law.

may be

What is

regarded as “sufficient authority” to establish

needed

custom to the eternal

law.

is

some theory connecting

these facts about

The Early Sixteenth Century

when

Fortescue,

77

faced with the problem of setting forth the grounds

for the legitimization of custom, argues that

through

succession of five

a

nations “the realm has been continuously ruled by the same customs as is

now, customs which,

would have changed

if

they had not been the best, some of those kings

for the sake of justice or

and totally abolished them.”*

by the impulse of caprice,

G. A. Pocock reads

J.

argument of

this

we now

Fortescue’s as an attempt to deal with the very problem that St.

it

find

faced with — the Aristotelian problem of getting from ab-

German

stract universal propositions to particular rules for the resolution of

concrete

human

problems. 9

From

universal propositions reason can de-

duce further propositions, but only abstract universal can be deduced

from abstract

universals. Plato’s question remains:

be made to

the particular? Aristotle’s answef

fit

is

How may the

his

to be

done by

suggests, in

making

that

means of “common experience.” Fortescue, Pocock

it is

argument concerning the antiquity of English customs

variation of Aristotle’s appeal to

common

number of men whose experience firming of

a particular rule,

rational in the sense that

natural law.

The

making

a

higher the

has gone into the making and conis

consonant with the abstract universals of

it is

deduced, from the fact that

If

experience.

is

the greater the probability that that rule

The consonance

proved from so

general

of English custom

may be

inferred, but not

has survived so long and has been ap-

it

many men.

Fortescue intends his argument about the antiquity of English cus-

toms to be an Aristotelian resolution of the problem of universals and

German, who knows De Laudibus gives no indication Fortescue that way or finds the argument from antiquity

particulars, St.

that he reads

,

useful for tying the

common

law to the eternal law.

St.

German

uses

“the olde custome of the realme” and “the ancient custome of the

realme” as synonyms for the

common

law, but

he makes no attempt to

common law. 10 Inof the common law,

develop any theory concerning the antiquity of the deed, he shows no interest at

even If

if

he does describe

it

all

as “olde

in the antiquity

custom.”

general customs are not immemorial for St.

they immutable. This the law of reason.

is

German,

neither are

so because they do not exactly correspond with

A statute

made agaynst suche

[general]

customes

is

perfectly valid

and ought

to be obseruid as law (because they be not merely the lawe of rea-

78

The Common Law Mind

*

And

son.)

certain

that there

it is

reason that could be changed. there

no

is

is .

.

.

not,

and never has been

And

it is

And

holden for lawe.)

therefore after

lawe: (ne

theym

why

them

may

be thought

a little

setting out a universal

they shuld be

the only and

is

in that behalfe. (57)

many pages

strange that after devoting so

scheme of law

to

beginning with

in great detail,

and working downward to the particular human laws of En-

God’s

will

gland,

when

St.

German

gets to the

ground upon which, he

pendyth moste part of the lawe of this realme” thority as law only by saying, in effect, that offers

begyn-

that be lernyd in the

lawes of the realme: the old custome of the realme

suffycyent auctorytie to

law of

to be vnderstande that

statute or other written law that treateth of the

nyng of the sayd customes of English

It

a

no suggestion

why

as to

(47),

he can justify

it is its

this justification

suasive, except that those learned in the law of

says, “de-

own

its

au-

authority.

He

should be thought per-

England believe

it.

Unlike

Coke, he makes no argument about the importance of giving weight to the opinions of a succession of learned men. that he

is

is

tempted to conclude

stumped by the problem of showing how, within

dential scheme, the

The

One

sixth

and

common

final

his jurispru-

name of law. ground of English law named by the student is law

is

entitled to the

that

of

dyuers statutes made by our soueraygne lorde the kynge

&

hys pro-

genytours and by the lordes spyrytuell and temporall and the com-

mons of

the whole realme in dyuers Parlyamentis in such cases

where the lawe of reason the lawe of good customes maxymes neother groundes of the lawe of England semyed not to be suffycyent

For

St.

(to

punish euyll

German,

natural law; they

men and

to reward

good men).

(73)

do not merely declare existing customary or

statutes

make new

to be superior to custom: “a

law.

Furthermore, he explicitly holds statutes

custom

in this realm prevaileth not against a

statute as to the law” (163).

There

common tion

is

evidence that

German’s professional colleagues hold the

St.

law in higher esteem than he does. In

a tract entitled

A

Replica-

of a Seiyaunte at the Laws of England, written anonymously as a re-

sponse to Doctor and Student and particularly against ,

St.

German’s sug-

The Early Sixteenth Century gestion that writs of subpoena and

from the chancery that

no

relief

thor argues,

is

a serious

problem

is

common

law.

common In the

1

law,

first

it is

argued

place, the au-

German’s student himself has “righte well shewede howe

St.

the lawe of Englande

This

of conscience might be obtained

to mitigate the rigor of the

needed from the

is

bills

79

groundede upon the lawe of reason”

is

overestimation of

St.

German’s accomplishments. The

common

not any defect in the

(Rep. 99).

law but

a lack

of knowledge on

the part of the chancellor “of the goodnes of the lawes of the realme” (Rep. 101). is

The

chancellor

not lernede in the lawes of the realme, for

when suche

a bill

is

hym to be a matier of grete conreformation. And tlje matier yn the bill ap-

putte unto hym, yt apperithe to science and requyrethe

hym, because

perithe so to

that he

ferre

is

from the understanding

and the knowledge of the lawe of the realme, and the goodnes therof.

the

But

if

he drawe nere to the knowledge and understanding of

commen

perfite

may cumme

lawe of the realme, so that he

knowledge and goodnes of yt, he

matier conteynede in the

him

putte to

bill

shall well

in the

to the

perceyve that the

chauncerye

is

no

matier to be refourmede there. (Rep. 102) In an argument reminiscent of Fortescue and that foreshadows Coke,

wisdom of

the sergeant contends that the

than the discretion of one man, even the virtues of

good law

is

its

if

the

that

common

man

law

is

chancellor.

is

greater

One

certainty, but “if the subgiettes of

of

any

realme shalbe compellede to leve the law of the Realme, and be ordered

by the discretion of oon man, what thing may be more unknowen or

more uncertayn?” single

man, even

if

sumes much more

common

law,”

(Rep. 101). If the law

that

man

is

1531, St.

cerning

V/i'its

common

wiser than the discretion of a

the chancellory St.

German’s student pre-

in thinking that his “conceit

and leaving “the

common

goodnes, ne of no reputacion” (Rep. In

is

German

lawe as

is it

1

were

a

than the

thing of no

103).

responds to the Replication in

of Subpoena.

far better

A

Little Treatise

Con-

Regarding the sergeant’s argument that the

law has the advantage over the discretion of the chancellor in

respect to certainty,

St.

German

asserts that in fact the law of

God

and

the law of reason, which are to be the grounds of the chancellor’s decrees, “are

moche more evydente and

apparaunte* to gyve Jugemente

The Common Law Mind

8o

upon then the

realmeT

1

simply

It is

lor s decrees will

bound

of

he contends, to suggest that the chancel-

false,

be uncertain because they are based on the unbridled

discretion and conscience of one is

summe customes

maximes, and

ar the generall grounds,

to follow

is a

man,

for the conscience the chancellor

conscience “groundede upon the lawe of God, and

the lawe of reason, and the law of the realm not contrary to the saide

lawes of

realm there

God

nor to ye lawe of reason.” Even

if

one takes the law of the

law grounded upon the law of reason and the law of God,

as a

an imperfect correspondence between the law of England

still is

and the higher laws, for the English law

remedy when he has

a right

not always give

will

a

man

a

14 .

Equity and Conscience The

ancient Greeks noticed that there was a problem with law and pro-

posed

means of dealing with

epieikeia as a

epieikeia

orates

:

justice requires

on

All law

fundamental idea of

expressed by Plato in the Statesman legal generalizations are

is

never adequate to take into account

and thus

A

it.

this idea in a

some supplement

famous passage

some

universal, but about

is

circumstances and contingencies,

all

to legal rules.

1

'

Aristotle elab-

in his Nico?nachean Ethics:

things

not possible to make

it is

a universal

statement which shall be correct. In those cases, then, in

which

necessary to speak universally, but not possible to do so

it is

though

correctly, the law takes the usual case,

the possibility of error. is

And

none the

not ignorant of

less correct; for the

error

not in the law nor in the legislator but in the very nature of the

thing.

which

.

.

is

When

.

the law speaks universally, and a case arises

not covered by the universal statement, then

where the

legislator failed us

correct the omission.

.

.

correction of law where fact, this is the

reason

about some things is

it is

it is

needed. For

nite, like the

it is

when

.

And it is

why

all

it is

on

it

right

and has erred by oversimplicity, to this

is

the nature of the equitable, a

defective

owing

to

its

universality. In

things are not determined by law, that

impossible to lay

the thing

is

down

a law, so that a

indefinite, the rule

is

decree

also indefi-

leaden rule used in making the Lesbian moulding; the

rule adapts itself to the shape of the stone

too the decree

is

adapted to the facts

16 .

and

is

not

rigid,

and so

The Early Sixteenth Century Aristotle’s point

very nature

it

that

is

no matter how carefully

must be written

words of the

it

with

drawn, by

some

its

cases pre-

text will not resolve. In

,

,

made

it

a

crime to injure

a

weapon, and of necessity that law spoke in general terms for

a

would take

make

a lifetime to

of weapons with which

man

in

is

time in his Rhetoric Aristotle illustrates

epieikeia this

the difficulty with an example: Athenian law

man

This

in general terms.

sents a difficulty that resort to the

another passage on

a statute

81

it

of

a list

the different sizes and shapes

all

would be possible to

with nothing more than

inflict

wounds. Suppose

a

ring strikes another and injures

a finger

him? According to the words of the law he apparently would be guilty of the crime. Equity, says Aristotle, would correct the law to achieve the

correct result, namely, that such an actor would be innocent of the crime

*

of injuring with a weapon.

Aristotle here identifies a fundamental conceptual and practical prob-

lem with attempts

What

is

at a literal interpretation

of authoritative legal

needed in cases in which the law speaks

means by which

it

may be

decided

how

terms

in general

the general provision

texts.

is

is a

to be ap-

plied to the wide variety of particular circumstances presented in actual cases.

Unless

it

can be shown that such

a

means

exists,

much

of the cer-

tainty and predictability that constitutes an important part of the rationale for the existence of law at

Aristotle

is

interested in the

would appear to be unattainable.

all

problem of whether the particular

facts

of

an individual case could and should be subsumed under the law’s state-

ment of a general rule, not just as a technical problem of legal reasoning and decision making but because justice requires some rather subtle discriminations between the facts presented by different cases. justice into legal justice tice that

about is

all

and equity; equity

goes beyond the written law.

how

a

judge

is

to determine

what

1

is

He

the particular kind of jus-

Unfortunately, he

it is

divides

unclear

is

that equity requires

employed to make subtle distinctions between

when

it

different sets of facts,

of which arguably are covered by the general words of the law. Fol-

lowing

his discussion in the Rhetoric

of the hypothetical case of injury by

finger ring, he provides several aphoristic statements of the require-

ments of equity, not The second kind fects of a uity;

all

of which have

[of right

common

underlying principles:

and wrong conduct] makes up for the de-

community’s written code of law. This isywhat we

people regard

it

as just;

goes beyond the written

law.

it is, .

.

.

call

in fact, the sort of justice

eq-

which

Equity must be applied to forgiv-

The Common Law Mind

82

able actions;

and

it

must make us distinguish between criminal

acts

on the one hand, and errors of judgment, or misfortunes, on the other.

.

.

Equity bids us to be merciful to the weakness of human

.

nature; to think less about the laws than about the

them, and

man who framed

about what he said than about what he meant; not to

less

much

consider the actions of the accused so

much

as his intentions,

nor

ber benefits rather than injuries ... to be patient

rememwhen we are

— for

an arbitrator

this or that detail so

wronged

this

as if

it is

story. ... It bids us

judge by the strict law

a case, a

treatment of equity lacks in coherence

Some medieval jurists,

fertility.

whole

... to prefer arbitration to litigation

goes by the equity of

What

as the

nothing more than

law; others focus

18 .

it

makes up

for in

citing Aristotle as authority, treat equity

a technical

means of

on what we may loosely

concentrate on equity as mercy for

filling

lacunae in the

call equity^as-fairness.

human

Some

weakness, while others see

the primary function of equity to be to emphasize a legislator’s intentions over his words.

Some of Aristotle’s conceptions of equity are common in ancient Roman law. They appear to have been imported into Roman legal thought through the

Roman

at least

rhetoricians.

two intermediaries, the Stoic philosphers and

The

rhetoricians were

much more

interested in

developing a wide variety of arguments about interpretation, which

might be used by advocates terpretation.

on both cero’s

They were

sides of

De

in legal cases, than a scientific theory of in-

pragmatists,

any question.

Inventions,

which

is

who

taught their students to argue

We see this most clearly in works like Ci-

a slight

reworking of a textbook of rhetoric

widely used in the time of his youth. In De Inventions noting that con,

troversy often arises between those defending the letter and those de-

fending intent, Cicero presents

a series

who

a

have the task of persuading

of arguments useful to speakers

judge to adopt

a strict,

or

literal,

read-

ing of a legal text. Then, playing no favorites, he sets forth corresponding arguments useful to speakers table, interpretation

The there

who need

to argue for a freer, or equi-

19 .

rhetoricians were primarily interested in forensic advocacy, and

is little

evidence that they preferred one set of arguments about in-

terpretation to the other.

The Roman

jurists,

ated their arguments, soon

came

one side or the other

to take

however,

who

appropriin

dead se-

riousness, and this tendency

arguments compose

cians’

a

The Early Sixteenth Century

83

The

rhetori-

continues

still

among

jurists.

major part of the arsenals of both camps

our current disputes over approaches to the interpretation of legal

To

suggest that the rhetoricians were

advocacy than in jurisprudence

more

in

texts.

interested in techniques of

not to say that their arguments do not

is

contain points that deserve to be taken very seriously by legal theorists.

Many

of the rhetoricians’ standard arguments in favor of

a freer inter-

men-

pretation take into account problems with strict interpretation

tioned by Aristotle in his discussion of equity, and their arguments in

support of

strict interpretation identify serious

tation that

is

controlled by considerations of equity.

minor declamations contains

a

skillful

purpose [rationem] of

*

mean what

it

says.

pernicious. For

in laws to find

what

.

.

.

Before

this particular statute [legum ]

one remark to make to the court, that is

is

just,

if

this

the court

what

is

when it

always properly seeking

is

lives.

and

is fitting,

may have been

be, a definite

minds

a

settle

in different ways,

with certainty what

form of law was established

That form the authors of statutes expressed

if

what

equitable, and

justice appealed to different

was therefore impossible to

ought to

have just this

the law was nothing but a kind of simple [nudam] justice.

But because

and

examine the

I I

,

It

kind of so-called inter-

then statutes are completely superfluous. There time

of Quintilian’s

advocates would have us “interpret” this statute.

does not, they claim,

pretation

One

powerful statement of the problem with

equitable interpretation:

Today

problems with interpre-

everybody

is

allowed to change

it

to govern our

in explicit words:

and pervert

purposes, the whole purpose and force of the law

it

is

it

to his

own

torn away. 20

Several themes in this short oration have been repeated time and again

over the centuries. Perhaps central

mary purpose of law our

lives

is

is

the idea that a pri-

to provide a sure, predictable standard for living

and doing business

in society.

by the use of written laws expressed fail as

among them

Such certainty

in explicit words.

is

to be achieved

Equity and

justice

guides to interpretation because they “appeal to different minds in

different ways.” 21

For the past two thousand years there have been of

jurists

who

a substantial

number

have thought this line of reasoning compelling, and

easy enough to see

why

this

is so.

Whether or not we

it is

believe that there

The Common Law Mind

84

and equity, our history and experi-

exist universal principles of justice

ence teach us that if

having

a predictable

tions against

provide

men

is

not agree about what they

But the case for preferring the

much

letter

of the writ-

of its compulsion unless

be shown that certainty and predictability are attainable by such ism. Aristotle fundamentally

and unless

a

is

possible.

means

sistency decide

exists

how

So

then justice and equity are unlikely to

us,

ten law to an unwritten equity loses

terminate text

are.

standard to measure our anticipated future ac-

important to

consistently.

it

will frequently

undermines the idea that

The

a

it

can

literal-

completely de-

law by necessity speaks in general terms,

by which judges may with certainty and con-

the general provisions are to be applied to the wide

variety of particular fact situations presented in actual cases,

much

of the

certainty and predictability that constitutes an important part of the rationale for strict interpretation (and ultimately for the existence of law itself)

would appear unattainable.

Just as there have long been adherents of a jurisprudence of strict interpretation, there have also been jurists

who

support

a freer, equitable

interpretation. Several distinguished students of ancient

claim to have detected a steady

movement

in

Roman

law

toward the triumph of

it

the equitable approach to interpretation, but this

is

controversial.

Most

we know about the classical Roman jurisprudence of interpretacomes from texts preserved in Justinian’s sixth-century codifi-

of what tion

cation,

and there, despite Justinian’s claim to have eliminated

dictions, apparent contradictions

on the subject of

interpretation abound.

A

“what the people enact

at the request

statute

cord, an excerpt in the Digest

is

“the sole

(1.14.11.1)

of

from the

and their

a senatorial magistrate.” In ac-

holds that statutes

jurist Julian

by the people. Yet

holds that the emperor

maker and interpreter of the

statutes

contra-

defined in the Institutes (1.2.4) as

are binding only because they are accepted

passage of the Code

all

is

a

famous

to be regarded as

laws.”

Several passages, including the one quoted above, provide that the

emperor

is

the sole interpreter of the law.

Martian commands that these laws,

and

a

it

if

The emperors Valentiman and

“anything should be found to be obscure in

must be explained by the interpretation of the emperor,”

constitution of Constantine holds that “it ...

to interpret questions involving law and equity” tinian, in

an attempt to limit

all

hibited the interpretation of, or

(

is

lawful for

Code

1.14.9;

1.

Us

alone

14. 1). Jus-

law to the text of his codification, pro-

commentary

on, that text, but within

The Early Sixteenth Century

his

own

commentaries, abridgements, and gen-

lifetime a profusion of

summaries appeared. His own Digest contains excerpts from the

eral rist

85

Julian explaining

why

interpretation

is

ju-

unavoidable:

way that all cases which might at any time occur are covered; it is however sufficient that the things which very often happen are em-

Neither statutes nor senatus consulta can be written in such

a

braced.

And, therefore

... [in such cases]

made

[juristic]

gest

either

1. 3.

This

by

is

interpretation or by a legislative act.

is

the

same rationale

for the necessity

rff

(

Di-

interpretation that Aris-

need to deal with the problem of the omitted

But the Digest solution (again taken from Julian) to

case.

must be

exact provision

10; 1.3.11)

totle gives in his Ethics: the

first

more

problem

this

at

glance appears to be quite different from Aristotle’s solution, which

to appeal to equity to

the gap in the law.

fill

Some

explicitly invoke the principle of equity, but they

problem of the omitted

to the

mentioned

as a principle,

case. Instead,

when

equity

and equity, rather than the

things, the principles of justice

law should be observed” ( Code

do not do so

in respect

explicitly

is

set in opposition to strict law: “in all

is

it

Corpus luris texts

3.1.8).

strict rules

Consideration of equity

is

of

not to be

reserved for cases in which the legislator blunders or shows lack of foresight;

it is

to be considered “in

all

matters, and especially those relating

to the law” (Digest 50.17. 90). This conjunction of equity less like Aristotle’s

view of equity

enunciated in his Ethics and more ,

as a principle

and

justice looks

of interpretation, as

like his description, in the Rhetoric,

of

equity as eternal and immutable.

The

Digest

remedy

for the overgeneral statute or the omitted case

not equity but analogy: “It

hended

is

not possible for every point to be compre-

in statutes or senatus consulta;

meaning of the enactment

is

1.3. 12).

still, if

clear, the

proceed by analogical reasoning (ad ingly” (Digest

in

any case that

similid)

Analogical reasoning

makes

a

connection. In

comparison, after asserting that what

is

arises, the

presiding magistrate ought to

and declare the law accord-

may

at first

have nothing to do with equity, but Cicero, some fore Justinian,

is

a

six

glance appear to

hundred years be-

discussion of arguments by

valid in respect of

one of two

equal cases should be valid in the other, he adds, “Equity should prevail,

86

The Common Law Mind

-c

which requires equal law

in equal cases.”

22

This statement reminds us

immediately that one of the fundamental ideas of (species, as Aristotle notes, of the

quired to be treated

alike.

same genus)

is

justice

and equity

that like cases are re-

Therefore, even though the Corpus Iuris does

not deal with the problem of the omitted case by explicitly referring to equity,

its

solution to the problem implicitly draws

upon one of the fun-

damental concepts associated with equity.

The

use of analogy presupposes consistency in the law. iMore pre-

cisely, in

reasoning by analogy

to another

upon

is

drawn from one instance

the assumption that a generic rule (often called a princi-

The

cover both cases.

ple) is discoverable that will

became

conclusion

a

universally self- conscious in the

search for such

Middle Ages and indeed

a rule is

one

of the identifying marks of the jurisprudence of the fourteenth- century postglossators of the tests

demanding

Roman

But in

law.

that jurists proceed

classical

Roman

law, despite the

by analogy and despite the

fact that

make up Justinian’s

the collection of juristic fragments and statutes that

Corpus luris was put together with the purpose of bringing coherence

and consistency to

Roman

law (and hence presupposed a theory consis-

tent with the use of analogy), at least

two

texts

seem

to

deny that

legal

interpretation by analogy can or should work.

One

Digest text (1.3.20) holds that

ciple of every rule of law laid

adds the next text

be inquired into, there

(1.3. 21),

“impossible to assign the prin-

down by our

forefathers.”

For

down ought not to may not be inquired

of laws

can be no basis for proceeding ad similia; one

The

is left

,

of

a rule to

all.

how-

an omitted case by analogy,

not the theoretical basis of such an operation but whether at

with only

greatest question raised in the Digest

ever, in respect to the extension

done

this reason,

“the reasons of the law laid

into.” If the principles or reasons

intuitive comparisons.

is

it is

it

should be

Despite the texts quoted, and another attributed to Papinian

(Digest 22.5.13) that holds that

“what has been omitted by the laws should

not be omitted by the conscientious judge,”

at least

one text refuses to

permit such an extension: “The law only speaks of the husband and heir.

Nothing

cessors;

is

mentioned with reference to

and Labeo notices

stances, therefore, the law

is

this as

a

his

father-in-law and his suc-

having been omitted. In these in-

defective,

and not even

a

praetorian action

can be granted” ( Digest 24.3.64.9).

Most of the

discussions of interpretation preserved in the Corpus luris

are not about the extension of

words by analogy but about whether the

The Early Sixteenth Century

words themselves, or the intention and

will

87

of the legislator, are to be the

primary concern of the interpreter. Hence there

also a

is

connection

with equity because one of the defining characteristics of equity for Aristotle lay in

its

attention to the legislator’s intent rather than to his

words. In terms of sheer numbers of texts, the Corpus luris seems to favor spirit

and intention over the

letter

or the word.

The

following are repre-

sentative texts:

To know

the statutes does not

mean

to have got hold of the actual

words, but to be acquainted with their sense and application. ( Digest i-3- r 7)

Statutes ought to he interpreted indulgently so as to preserve the

intention [voluntas]. ( Digest

1.3.18)

There

is

violates the law

letter,

attempts to destroy

apply to

A

no doubt that he

all

its

spirit.

.

.

.

who, while obeying

We

legal interpretations in general.

(

order that this shall

Code

1.14.5)

few texts are included that unambiguously prefer

the law to the

demands of

Ulpian holds that

a

equity.

its

For example,

a literal

reading of

a text attributed to

law imposing limitations on the right of

a

woman

separated from her husband to alienate her property “is to a certain extent a hardship, but

The

it is

the written law” ( Digest 40. 9. 12. 1).

richness of the variety of Corpus luris texts

on interpretation and

equity was to have great influence on the legal theory of the Middle

Ages, not only ians.

among

Not only was

the civilians but also

among

canonists and civil-

the Corpus luris a fertile source of inspiration for

dieval thinkers about law,

it

me-

was the source of much of the controvery

that arose about interpretation.

Equity and Interpretation To

a

drew

considerable degree, medieval civilians, canonists, and theologians their ideas about equity

from the same

common

store

— principally

Aristotle and the Corpus luris— but since these sources presented

more

than one idea about the nature of equity, the potential existed, with the emphasis of one passage rather than another,

for considerable

disagreement.

Unlike philosophers such

as

Aquinas, medieval civilians do not

feel

The Common Law Mind

88

free to discuss equity in the abstract; their glosses are constrained

need to take into account and to harmonize the authoritative

by the

texts of the

Corpus Iuris— texts that are not philosophical in nature, that often appear contradictory, and that do not appear in their original context. that original context

theory of

it is

unlikely that they are

and interpretation.

justice, law,

It is

embedded

Even

in

in a general

not surprising, then, that

thinkers like Aquinas were freer to attempt a coherent theory of justice

and law into which equity

fit.

While Aquinas,

on

too, bases his theory

who is attempting to He draws upon Roman legal texts, but he

certain texts, he uses those texts as a philosopher

construct a theory of law.

draws upon them

selectively,

quoting those that support his point of

view 23 .

Bound

they were to the disparate texts of the Corpus Iuris

as

,

surprising that the glossators

come

it is

not

to different conclusions about the

nature and process of statutory interpretation and the role of equity in that process.

As

early as the

first

founder of the famous school

at

generation after Irnerius, the reputed

Bologna,

a division

developed between

two of the four leading doctors, Bulgarus and Martinus Gosi, over and equitable interpretation. This dispute polarized medieval their contemporaries other.

The

and

tend to

later jurists

fall

into one

his

Bulgarus

is

for equity,

camp or

the

not entirely

clear.

contemporaries and modern scholars sometimes talk

as if

of the law, allowing no place

at all

defending the

strict letter

whereas Martinus

is

is

described as a committed champion of a

by what the law actually

free, equitable interpretation unfettered

The

civilians;

dispute generated a lot of heat between the followers of the

two men, but the precise nature of the disagreement Both

strict

says.

followers of Bulgarus (who include Johannes, Azo, Accursius, and

usually Jacobus, Hugolinus, and Odofredus) refer to themselves as nostri doctores

and to the followers of Martinus Gosi (who include Vacarius,

Rogerius, Placentinus, and Pillius) as the Gosiani. attack the aequitas Martiana

,

calling

“ it

feta ,”

by maintaining that to

nostri doctores

“ bursalis,” “capitanea”

contemptuous expressions suggesting arbitrariness their interpretation

The

24 .

The

—

Gosiani defend

stick to the strict letter of the

law often leads to injustice. In other words, the argument, at least at this level of polemics,

ducted in the same terms taught to

thousand years

more

earlier.

all

students of rhetoric

is

con-

more than

Beneath the superficial invective, however,

a

lies a

serious and thoughtful dispute about the nature and relationship

The Early Sixteenth Century

89

of law and equity and more agreement than frequently appears on the surface of the dispute.

Summa

In his statutes

Codicis

Irnerius sets forth the general principle that

,

must be given an equitable reading by judges:

Written laws are more richly understood when one pays heed to the

when they are read out of harmony only when the written laws are adjusted to the

insight they possess, and not

and equity. For

it is

from them

principle of equity that true legal rules can be gleaned

by the judge. 25 Bulgarus fully accepts this view. In commenting on Digest 50.17.90, a quotation from the jurist Paulus that says that “in ularly those relating to the law equity serts that

and

we must always consider not,

if it is

strict law.

it

is

matters and partic-

all

Bulgarus as-

to be'tonsidered

carefully

whether any law

is

equitable;

must be abolished. The judge must prefer equity to

26

Bulgarus’s central dispute with Martinus

important but over what

it is

and how

Irnerius distinguishes between

which has no textual

is

not over whether equity

to be

it is

known and understood.

two kinds of equity, and

this distinction,

books of Justinian,

basis in the law

is

to

dominate

civilian discussions of equity for centuries. First, says Irnerius, there

aequitas constituta is

— top\\x.y reduced

is

to writing in the law. 2

is

Second, there

aequitas rudis— equity not yet enacted into law, or natural law. Because

not

all

law

is

aequitas constituta the law ,

unjust. In such a case, the law has

immediately to abrogate law to make

it

it.

The

no

is

sometimes inequitable and even

force,

and the lawmaker

judge, however, has

is

required

no power to modify

accord with equity. In accordance with Code

1.14.1,

Irner-

concludes that “the interpretation that reconciles these differences

ius

(between equity and

law),

making equity into

law,

is

reserved to the

princes only.” 28

Both Bulgarus and Martinus accept aequitas constituta tion. vail

over

Thus in

When

masters distinction between

and aequitas rudis but they ,

differ

regarding

its

applica-

Bulgarus and his followers proclaim that equity should pre-

strict law,

they have in mind equitas constituta not aequitas ,

for Bulgarus to say that the judge

no way to suggest that

form

their

a

judge

to his understanding of

rudis) requires.

2 ''

is

to

is

rudis.

to prefer equity to strict law

is

modify or correct the law to con-

what natural law or natural

justice

aequitas

(,

Instead, he begins with the assumption that the Corpus

The Common Law Mind

90

Juris already

is

aequitas constituta. Because this

is

so, the task

by identifying

that equity prevails over strict law could be accomplished

the ratio

legis

of seeing

(purpose) of the text being interpreted. Scholars differ over

whether Martinus holds that Code

means

3.1.8

that a judge, as well as the

emperor, can apply aequitas rudis in preference to the

strict law.

30

Maniana suggests the contemporaries understand him to be suggesting

The

heat of the medieval attack on the aequitas

likeli-

hood

that a

that his

judge holds that power. 31 Occasionally, a jurist might appear to waver between the two positions: Vacarius, a student

of Irnerius

who brought the new civilian

learn-

ing to England, states as a general proposition that even rude equity,

where

it is

clear, is to

be preferred to

terpretation of the judge, though

it

law.

32

But he also

resolves the case

states,

“The

between the

in-

parties,

should not attempt to reconcile equity and law for fear of prejudicing the case of others.” 33

The argument can be made

that there

read these two glosses as being inconsistent. Bulgarus,

might be

said,

perior to law.

it

is

no need

quite correctly

would be perfectly happy to grant that aequitas

The

question for

him

to

rudis

is

su-

whether the emperor alone can

is

apply rude equity to the law or whether judges also have that power. Since Vacarius clearly says that judges are not to try to reconcile equity

and the

can be made that he says nothing inconsistent with

law, the case

the position of Bulgarus.

A

plausible case

Vacarius

is

taking

might a

be made, however, that in the two glosses

also

consistent Gosian position

the right to interpret legal texts

on the

— one

according judges

basis of rude equity. Vacarius

does not simply state the abstract proposition, with which no medieval civilian

ten

would disagree, that rude equity

human

argued,

is

law; he adds the clause

a critical addition, it

rude equity

“clear,”

because

is

is

it

it is

clear.”

superior to writ-

This,

it

might be

would be pointless and even mis-

attempt to subject the written law to

never be clear in the abstract; reading

“where

is

not contemplated that someone would actually,

leading were is

(natural law)

it

can only be clear in

a

it.

when

Equity can

concrete case. This

abetted by the fact that Vacarius does not say that rude equity

superior to law; he says that

it is

to be preferred to law. Preference sug-

gests action in a particular case rather than an abstract

judgment about

the merits of equity.

The second

gloss presents

terpretation, but

it

may

more

difficulty for

not altogether

an attempted Gosian in-

resist one.

A

Gosian interpreta-

The Early Sixteenth Century tion of the gloss

would see

it

91

not as an attempt to bar judges from resort-

ing to equity in their interpretation the law but as a statement of the

maxim non

exemplis

,

which proclaims that

based on the law and not on precedent ( Code develops from this

maxim

is

be

judicial decisions are to 34

7.45.13).

The theory

that

that the interpretation of a judge in a case

establishes the rule for that case, but for that case only,

and

in future

cases the judge will again need to refer directly to the law to find the rule for the case; he cannot rely

earlier interpretations.

This interpreta-

becomes more convincing when the whole

tion of the second gloss is

on

examined. 3 Vacarius begins by saying that the emperor -

thor and interpreter of the laws. (for

example, judges)

may have

The

to lay

law comes from his

down

judge interprets the law, his interpretation

him and then only to the extent against him. So when Vacarius goes on fore

is

gloss

the sole au-

will,

but others

When

the law by necessity.

a

only the litigants be-

biirtfs

that they have

no

legal

remedy

to say that the interpretation of

the judge should not attempt to remove any discrepancy between equity

and

law, his point

seems not to be that the judge

is

forbidden from con-

sidering rude equity in deciding cases but that judicial interpretations

bind no one but the present another

gloss:

“Sed

Vacarius supplements this point in

litigants.

iudicis interpretatio unius de

qua cognoscit tantum

36 cause, imperatoris uero et consuetudinis interpretatio perpetua est.”

The

position that gained ascendancy

among medieval

civilians

is

that

the equity to be preferred to strict law and to be applied by persons

other than the lawmaker ten into the law

itself,

is

the aequitas scripta or constituta

not equity that

is

the product of someone’s per-

Christopher

sonal understanding or invention.'

— equity writ-

St.

German

adopts

version of this view regarding the role of equity and conscience in

a

En-

glish law. 1

The Canonists

The

canonists were greatly influenced by the civilians’ formulations

regarding equity, although

a strain

runs through their writings that em-

phasizes the connection of equity with mercy. 3K Gratian adopts the stan-

dard civilian doctrine that the lawmaker cannot legitimately in disregard of equity. legal decisions are

3< '

His views on the place of equity

more complex.

On the one hand,

tence contrary to equity has the same force as the subject to

do

evil, for

obedience

is

a

make in

a

law

ordinary

he states that “a sen-

law which would oblige

not due to prelates in matters that

92

The Common Law Mind

J!

illicit .”

are law:

40

But he rejects the idea of judges using equity to correct the

“These things

are to be considered at the time the law

once the law has been enacted,

made, for

is

not possible to judge concerning

it is

them, but judgment must be made according to the law

” 41

In explana-

tion of these apparently inconsistent positions, the canonists adopt the

between rude equity and equity that has been

civilians’ distinction

duced to writing

in the law. It

ever, that relaxing the rules

re-

becomes common canonist doctrine, how-

of the law

not the same

is

changing the

as

law: rude equity can soften the rigor of the law, but only written equity

truly governs and can alter the law 42 .

Medieval Theological Literature

The most important

medieval philosophical treatment of equity

is

that of Aquinas. Following Aristotle, he explains the need for equity in

terms of the impossiblility of laying down

a rule for

he writes, “rather take into account what

lators,”

and formulate the law accordingly.” But, lowing

a legal rule

made according

at least in

to follow the to “follow

ordinarily the case

some

situations, fol-

to that principle runs counter to

and the public good intended by

“justice

is

every case. “Legis-

all

law.”

words of the law “would be an

When

evil,”

and

that

it

the case,

is

would be good

what the meaning of justice and the public good demand,

let-

ting the letter of the law be set aside .” 43

As

to Aristotle’s statement that epieikeia

suggests that

taken in (that

is,

its

some

we understand

understood

“it is a

norm

“legal justice” to involve is

a part

Aquinas

of justice

of the law ”). 44 If

obeying both the

is

letter

form of legal

and the justice.

better than the legally just

just; for this

from natural

reason

it

45

surpasses

This

raises

question that greatly concerned medieval thinkers about equity:

Were

legal justice a

when

letter

the principal

contained under the naturally

is

justice,

over and above legal justice”

Elsewhere, Aquinas states that the equitable is

form of

“obedience for the

as

intent of the legislator, the epieikeia

and

a

distinctions need to be made. It

widest sense, but

justice

is

men in

so

when

.

the

two

differed? Aquinas’s position

in principle the strict letter should not be followed

would damage the all

justice

general, and judges in particular, to act in accordance with equity

rather than law

though

legal justice departs

the

same notice

common this: if

is

that al-

when doing

welfare,

observing the letter of the law does not

involve a sudden danger calling for instant decision and to be dealt

The Early Sixteenth Century with

at

once,

it is

not for just anybody to interpret what

the state and what

who

not but

this is solely for the rulers [principes]

46

when

only in the case of sudden danger,

there

to the rulers, that- the requirements of the law

“the very necessity carries a dispensation with law.”

useful for

because of such cases, have the authority to dispense with the

law's.

It is

is

is

93

is

no time

may be

it,

for recourse

dispensed with:

for necessity

knows no

47

Jean Gerson, equity through

who

influenced the

common

German’s Doctor and

St.

lawyers’ understanding of

Student, also sees

it

largely in

Aristotelian terms as a kind of justice that takes account of individual

when

circumstances

dealing with general legal rules, interpreting gen-

eral laws in their application to singular cases.

describes equity in terms that

combine

48

Occasionally,

this Aristotelian idea

emphasis on mercy found in some canonists: “Equity having weighed

all

the particular circumstances

is

Gerson with the

justice

which

tempered with the

is

sweetness of mercy.” 49

Gerson does

differ

from Aquinas on the question of who has the right

to apply equity: whereas Aquinas reserves that

power

to the principes ex-

cept in cases of necessity, Gerson extends the power to invoke equity to the

u

praesidentes of

whatever status

in the ecclesiastical heirarchy.”

50

Christopher St. German on Equity and Conscience Before the sixteenth century, no

about equity as

and

in Bracton

equity

is

a juristic

Sir

common lawyer had

written extensively

concept, although short discussions are found

John Fortescue’s De Natura

opposed to “the law

in

all its

Legis Naturae. In Bracton,

rigor” and

is

defined as “the bring-

ing together of things, that which desires like right in like cases and puts all

things

on an

matters of

equality.

fact, that

is,

Equity

is,

so to speak, uniformity, and turns

on

the words and acts of men.”"

This very brief discussion of equity associates different notions, both of

it

with two somewhat

which are ultimately traceable to

Greek and Roman discussions on the

subject.

The

first,

classical

which opposes

equity to strict law, runs back to Aristotle’s treatment of epieikeia as “the sort of justice

which goes beyond the written law”

(fyracton 2:25).

52

The

second, which “turns on matters of fact” and “desires like right in like cases,” resonates

with Aristotle’s insistence that the kinds of general or

94

The Common Law Mind

>

universal statements necessarily found in the law cannot always take

account of the wide variety of differences possible in factual circumstances and that justice requires like cases to be treated alike and differ-

ent cases differently. idea

made by

is

The

classical association

of equity with the latter

Cicero: “Equity should prevail, which requires equal

laws in equal cases .” 53

More

than two centuries after Bracton this general ,

By

principle resurfaces in the doctrine of the equity of a statute. fifteenth century, that doctrine

sion of a statute beyond

is

sometimes used to describe the exten-

words to cases which were

its

in the

same mis-

chief that had led to the adoption of the provision: “This statute larges the in the

common

law

.

.

and

.

the

if so,

.

en-

.

.

should be taken largely, and cases

same mischief included by the equity.” 54

Fortescue frames his discussion of equity in terms of the king’s power to rule “regally”; as part of that regal power, the king has discretion in

certain matters, including the mitigation of criminal punishments and

the application of equity: “Equity (epikaia) also the strictness of the law, confounding the

common good .” 55 The

its

is left

to thy sagacity, lest

intent [mentum \

,

should hurt

attribution to equity of the function of pre-

serving the law’s intent in preference to the strict application of

words has roots that go back to

Aristotle. Fortescue cites Aristotle later

in the chapter, but this sentence’s

serve the lustrate

common good

how

its

presumption that the

law’s intent

gives his treatment a Thomistic flavor.' 6

equity, in preserving the law’s intent, serves the

is

to

To

il-

common

welfare, Fortescue recites the ancient example of a law forbidding the

scaling of the city walls and contends that such a law should properly be

understood not to have been violated by one repel the sudden attack of the

enemy because

would have swallowed up the law along with

The

equitable function

tentimes the written law

is

who

climbs the walls to

“the observance of the law

its

authors.”'

necessary, Fortescue suggests, because “of-

lies as it

were dead under

a

covering of words”

and because frequently “the mind of the lawgiver did not perceive that the

words of the law embrace.” The

latter

all

claim seems to suggest, as

does Fortescue’s example concerning city walls, that the function of equity

is

to take exceptions

from overly general statutory language.

It is

not clear whether he also thinks equity should extend the words of

a

narrowly drawn

from

law. Equity, in rousing the law’s “vital spirit as if

sleep” does not violate the law or detract

the hands of the prince

it is

a

from

legal justice,

too

although in

“superior authority” that has “absolute

The Early Sixteenth Century power.” Instead, nature, which

function

its

is

“to

is

fulfill a

95

law ... by reason of the law of

natural equity.” Fortescue has already described the

function of equity as that of reviving the spirit or intent of the law; just

what the law of nature has to do with that function he

The

treatment of equity in Bracton

borrowed from the

is

civilian

Azo;

appear to be Aristotle and Aquinas; in

in Fortescue, the chief sources

German’s Doctor and Student the principal direct ,

theological writers. St.

leaves unclear.

intellectual debt

St.

is

to

German’s doctor, following Gerson, defines eq-

uity as “a ryghtwysenes [rightousness] that consideryth

culer cyrcumstaunces of the dede the whiche also

the perty-

all

temperyd with the

is

swetnes of mercye.”"* This definition combines Aristotle’s concern with particular circumstances with the canonists’ association of equity with

mercy.

1

he explanation of

cumstances

is

why

is

concerned with particular

in dyuers

men

for

maners infynytlye.

generall rewle of the lawe but that

whiche lawes ben ordayned

It is

not possyble to make any

shall fayle in

it

some

therfore makers of lawes take hede to such thynges as

come and not they wolde.

some It is

cir-

purely Aristotelian:

Syth the dedes and actes of

happen

equity

And

case.

may

often

to euery particuler case for they coulde not though

And

therfore to folowe the wordes of the lawe were in

case both agaynst Iustyce

the part of equity, St.

&

the

German

common welthT

continues, to leave the words of

the law and to follow what reason and justice require

mitigate the rigor of the law. Equity

is

called

by some

“

— to

temper and

epicaia ,”

which

is

an excepcyion of the lawe of god or of the lawe of reason from the generall rewles of the lawe of

man: when they by reason of theyr

generalytye wolde in any partyculer case luge agaynste the lawe of

god or the lawe of reason the whiche excepcion

secretely vnder-

is

stande in euery generall rewle of euery posytyue law. 60

The

part of St.

German’s

earlier definition of equity,

which emphasizes

“the sweetness of mercy,” and his attribution in this passage of equity’s role in keeping the

human

law in

harmony with

the law of

God

and of

reason came to have more application to the chancellor’s equity than to the equity frequently cited by

common

lawyers later in the century in

connection with the interpretation of statutes.

The

often discussed in the sixteenth-century reports,

is

Equity of

a statute,

cited to justify either

The Common Law Mind

96

extending the words of an act to cover or, less it

commonly,

restricting the application of general language so that

does not include

uity

commonly

they do not mention

a situation

a situation

it

appears to cover. In neither usage

explained in terms of an attempt to

make

is

eq-

statutory

words agree with the law of

God

of the equity of a statute

most commonly associated with the Aris-

totelian

is

or the law of reason. Instead, the idea

problem of the impossibility of writing laws that take into

count the great particularity of human frequently tied to St.

German

a

ac-

This problem, in turn,

affairs.

is

search for legislative intent.

himself, in a later passage, says that “equytie rather folo-

weth the intent of the lawe then the wordes of the lawe .” 61 Medieval theologians have a comprehensive explanation of the law of

God

and of reason are

all

the law of

God

mind

words of the law is

good — a good presumed

and reason

62 .

and

equity, intent,

tied together. Aquinas, for example,

in writing of the intent of the legislator, has in

to legislate for the public

how

Therefore,

when

the assumed intent

to be in accord with

equity departs from the

in order to accomplish the legislator’s intent, its effect

to uphold the law of

God

and reason.

St.

German may

hold

a similar

comprehensive view of the connection between equity, the law of reason, and legislative intent, but

Although

St.

German

if so,

he does not set

ties

forth clearly.

occasionally associates epicaia with the function

of applying the law of God and the law of reason to

more frequently

it

human

law,

he

much

those higher laws to the idea of conscience. His dis-

cussion of the relationship between equity and conscience

is

not always

clear;

he defines them in ways that distinguish between them, but he also

shifts

back and forth between them in

that he sees

German The

them

a

manner occasionally suggesting

as interchangeable principles

63 .

In his prologue,

St.

states his authorial intention:

present dialogue shows what are the principles or grounds of

the laws of England, and

formed

in

how

conscience ought in

many

cases to be

accordance with those same principles and grounds.

It

likewise discusses briefly the question of when English law ought to

be rejected or not on account of conscience.

knowledge of English law and

its

grounds

direction of conscience in this realm

.

is

The theme

is

that a

essential for the

good

.

.

64 .

In setting out to examine these questions concerning conscience, St.

German

is

pursuing both an interest in the proper ordering of the indi-

The Early

Sixtee?ith

Century

97

vidual consciences of Englishmen and a concern about the appropriate role of conscience in the English legal system.

Conscience had become

a jurisprudential

concern

England by the

in

Middle Ages. In 1414 the Commons complained that the chancellor, by means of writs of subpoena, was interfering with matters deterlate

minable

common

at the

law and was determining them according to the

*

procedures of the law.

65

By

civil

the reign of

common

law and the church in subversion of the

Edward

IV, the Year

Book

reporters are noting

that the chancellor claims to proceed according to conscience or ac-

cording to the law of nature. 66 By the fifteenth century, then, the chancellor

is

intervening in

common

law matters and justifying his actions in

terms of conscience. Cardinal Wolsey,

German’s contemporary,

St.

takes a strong view of the role of the the chancellor in regard to con-

science and the law:

The

king ought for his royal dignity and prerogative to mitigate

the rigour of the law, where conscience hath the

more

force;

and

therefore in his princely place he hath constituted a chancellor to

And

order for him the same.

been commonly risdiction to

therefore the court of chancery hath

called the court of conscience; because

command

the law in every case to desist

it

hath ju-

from the ex-

ecution of the rigour of the same, whereas conscience hath the

most Given

effect.

this

67

background,

St.

German’s question about “when English law

ought to be rejected or not on account of conscience”

is

more than an

abstract one. His treatment of the subject, near the end of the period in

which the Court of Chancery was cellor,

in the

hands of the

ecclesiastical

chan-

provides both justification for the continued operation of the

chancery

as

a

court of conscience and

a

rationale for limiting the

chancery’s power to regulate English secular law. St.

German’s understanding of conscience

is

strongly influenced by

medieval theological and canonist treatments of the subject and be confused with conscience’s modern definition as

perhaps subjective, of right and wrong. For

knowledge that enables

a

St.

is

not to

a person’s sense,

German,

it is

a

kind of

person to translate the dictates of the law of

nature into specific rules of conduct. Following conventional medieval theory, St.

German

ciples of natural law.

distinguishes between primary and secondary prin-

The primary

principles are infallible but very gen-

98

The Common Law Mind

eral (for

example,

them

into

more

“Do good and

practical guidance for

of the rational soule euyll.”

68

The problem

.

.

.

mouynge and

moral action in the world.

sterrynge

Men

to

it

good

&

abhor-

recognizes and embraces the basic moral

principles of natural law. In Gerson’s phrase, ural inclination to

it

“receives a certain nat-

good immediately from God.” 69

Sinderesis, writes St.

major premise (“No 0

to translate

Sinderesis, thus understood, functions as a nondelibera-

tive intuition that infallibly

science.

is

by sinderesis, an innate “naturall power or motive force

are aided in this

rynge

avoid evil”).

German, can be understood

evil is to

Conscience has no

be done”) in

forming the

as

a syllogism

about con-

difficulty in correctly assenting to this

premise; the problem comes in descending to a minor premise that ap-

major premise to some particular case or

plies the

“This

is evil.”

because

it

The minor premise

is

fact in the form,

formed by “inferior reason” and,

has to deal with particular circumstances,

is

not always true.

1

Conscience assents to the minor premise and draws the conclusion:

may err in drawing the minor premise, it is possible that conscience may reach a false conclusion by assenting to that premise. Error in conscience may come from a variety of “This

is

not to be done.” 72 Since reason

causes, including negligence

concerns

German comes through

St.

rance of the the law."

upon some

The about

and pride, but the error that particularly

law.”

law of

3

ignorance, and especially igno-

“All conscience,” he holds,

“must be grounded

74

God

and the law of reason,

a matter, are the preferred

if

they have something to say

foundations for the operations of con-

science, but they are frequently silent about the kinds of issue typically

contested in English law, such as

when conscience the lawe of

god

man serue not there is no grounde case may be groundyd” (163). The con-

... if the law of in this

science of an English subject, then,

is

to be ruled not only

by the law of

and the law of reason,

but also of the lawe of man that

nor the lawe of god: but that ter

land shall descend. Therefore,

“can no be groundyd vpon the law of reason nor vpon

wherupon conscyence

God

how

orderyng of the

common

is

it is

not contrary to the lawe of reason

superaddyd vnto them for the bet-

welth for such a law of

to

go fro

it

is

alwayes

it is

not lawfull for no

on the one syde ne on the other

for suche a lawe of

to be sett as a rewle in conscyence so that

man

man

The Early Sixteenth Centrny

man

hath not only the strength of mannes law but also of the lawe

of reason or of the lawe of god wherof

man whiche haue

by

99

it is

dyryved for lawes made

receyued of god power to make lawes be made

of god. (iio-ii)

The

principle that in

England conscience must normally be ordered by

the rules of English secular law applies not only to the ordinary subject

but also to the the chancellor himself:

“The

lorde Chauncellor

must

ordre his conscyence after the rewles and groundes of the lawe of the

realme” (104-5).

German’s

St.

initial

question concerning

be rejected on account of conscience

is

when English law ought

an important one:

lor could interfere

with the ordinary course of the

straining a litigant

from pursuing

a

claim on

tfte

from the

cellor’s

own

the situation

rules of the

common

the chancel-

common

law by re-

ground that the remedy

sought by the litigant offends against conscience — not rived

if

to

conscience de-

a

law but one informed by the chan-

personal sense of what justice or rightousness required in

— then

the chancellor’s conscience could reasonably be seen

as a threat to the legal

and even constitutional rights of Englishmen.

The

limited to writs of subpoena issued before judg-

practical

ment

is

entered in the

Henry IV '

for

is

common

if

a statute

from the reign of

from providing

relief after judg-

law courts;

prohibits the chancellor

ment. 7 But of the

problem

the chancellor’s conscience can interfere with the course

common

law up to the point of judgment, that

some of the common

lawyers. St.

is

threat

German’s treatment of conscience,

including the principle that even the chancellor’s conscience

ordered after the rules of the

enough

common

law,

can be seen

is

to be

as a substantial

common law by an unconfined common lawyers were reassured. The

mitigation of the danger posed to the

Not

chancellor’s conscience.

opening for

a

all

continued concern

is

provided in

St.

German’s statement

that

it is

also to be

understood that the law

is

to be left aside in favour of

conscience in such particular cases as those mentioned before in chapter

15

which are excepted from the general rules of English law

by equity, the law of reason, or the law of properly speaking,

it

God — cases

wherein,

cannot be proved that the law willed those

things thus excepted. 76

The Common Law Mind

ioo

Here, equity:

seems,

it

when

we

are brought full circle back to a consideration of

the law

to be set aside in favor of conscience,

is

chancellor does in exercising that conscience

appear to be deep ambiguities in

Some law’s

passages suggest that

its

There

to apply epieikeia.

German’s treatment of

St.

function

is

what the

is

equity.

to enforce the ratio legis or the ,

purpose or intent, when the general words

fail

to capture

77

it.

Such

statements link up with the part of the passage just quoted, which asserts that the law

speaking,

to be left for conscience in “cases wherein, properly

is

cannot be proved that the law willed those things thus ex-

it

Other passages, though, assign to equity the task of taking

cepted.”

exceptions from the general rules of the law ular cases “luge agaynste the lawe of

Those passages

when they would

in partic-

god or of the lawe of reason”

(97).

are also associated with leaving the law in favor of con-

science (116-17). St.

German

evidently believes that any tension between these two

rather different descriptions of the functions of equity his

statement that exceptions based on the law of

God

is

resolved by

or the law of rea-

son are “secretely vnderstande in euery generall rewle of euery posytyve lawe” (96-97). His acquaintance with civilian and canonist legal theory

medium

appears to have been indirect, through the ers,

and so he does not seem to have been applying, in

famous distinction between aequitas the idea that

all

human

of evidence that he

would make no

is

sense:

law

is

that of aequitas rudis

But

aequitas constituta).

it

is

(under

is

is

distinction, since the

to apply the ratio or purpose of a law, and

to hold positive law to the standards of natural

his

conscience by applying equity,

to take both into account.

if this is a

not

constituta

Apart from the absence

would have obliterated the

and the chancellor, exercising

evidently

and aequitas

German’s description, performs both of those func-

law. Equity, in St.

tions,

rudis

this statement, the

familiar with the distinction, such an application

function of aequitas constituta

it is

of theological writ-

correct reading of the passage that

at all clear

what

St.

German

has in

sizing that the chancellor’s conscience

grounds of English

law.

Or

to put

it

is

we

are considering,

mind by repeatedly empha-

to be ordered

the other

by the rules and

way around,

cellor, in his application

of conscience and equity,

English law in terms of

its

is

if

the chan-

limited to assessing

underlying purpose and intent, what can be

meant by

attributing to equity the function of taking exceptions

the law to

make

it

agree with the laws of

God

and nature?

from

The Early Sixteenth Century

One

possibility

is

that St.

German, although holding

oretical principle that “equity

IOI

as a general the-

must always be observed

in every law of

man,” really does mean the chancellor’s application of equity to be limited to discovering his

meaning, he manages to obscure

sibility is that in

it

quite well (94-95).

holding that the chancellor’s conscience

by the rules of the is

and enforcing the law’s reason or purpose.

common

law,

is

If this is

Another posto be ordered

he merely means to point out that that

what the exercise of conscience comes down to

of cases, since neither the law of

God

in the great majority

much

nor of reason has

to say

about land law or the appropriate form of contracts, and conscience has to be founded

And

on some

law:

there can be none other cause assygned^why conscyence in the

fyrst case

is

with the eldest brother

&

brother and in the thyrde case with

in the all

second with the yonger

the bretherne but bycause

the lawe of England by reason of dyuers customes doth

gyue the land hollye to the

somtyme

Nor

to

eldest sone

to the yongest

&

all. (121)

much

there need to labour

is

somtyme

somtyme

in these cases, for practically the

whole body of the law consists of cases of lawyers hold that where there

is

this sort;

and so English

any law duly had and ordained for

the isposition of things real, personal or mixed, which law

contrary to the law of

binding upon

all

God

is

not

or the law of reason, then that law

that are subject to

it,

is

in the tribunal of conscience.

( I2 9)

Such an interpretation

leaves

open the question of what

is

to be

done

in

those cases that the law of England does not cover or in which English

law conflicts with the law of reason or the law of God. swer, in the

Second Dialogue,

is

far

from

a

St.

German’s an-

model of clarity. The student,

having been asked by the doctor to explain the reason for the law’s

lowing

a

husband to be tenant by the courtesy of

repeats his earlier assertion that

maxim of

it is

it

rent but not of land,

unnecessary to assign

the law but only necessary that the

taken for law and that

a

al-

a

reason for a

maxim

has been always

God

and reason. The

not be against the law of

student adds, “and therfore yf the husbande in this case be not holpen by

conscyencce he can not be holpen by the lawe [since the law was against him].”

To

this the

doctor responds:

io2

The Common Law Mind

*

And

yf the lawe helpe

it

not: conscyence can nat helpe

hym

in

conscyence must alway be grounded vppon some law

this case for

and

hym

can not in

this case

be grounded vpon the law of reason nor

man

vpon

the law of god for yt

shall

be tenaunt by the curtesy but by the custome of the realme.

And

not dyrectely by those lawes that

therfore yf that custome helpe

in thys case

of

is

man

nothynge haue

not: he can

by conscyence for conscyence neuer resysteth the lawe

nor addeth nothing to

selfe dyrectely

than properly

agaynst the law of reason or it

can not be

law but

a

agaynst the said lawes ... or

prouyded for

but where the law of

it

hym

a

els

And

in

where there

in

it-

any partyculer case is

no lawe of man

by the lawe of rea-

than somtyme there

to execute that in conscyence as

is

corrupcyon, or where the

that hath ryghte to a thynge

son or by the law of god.

man

the lawe of god and

els

man worketh

generall groundes of the law of

gyuen

hym

a

by

is

remedye

sub pena but not in

a

all

somtyme it shall be referred to the conscyence of the partye and vppon this grounde (that is to saye) that whan there is no tytle gyuen by the comon lawe: that there is no tytle by conscyence.

cases for

(207)

German

St.

asserts in this passage that

when

the law does not provide

for a claimed right, conscience will not help the claimant because “con-

science never resisteth the law of

man

principle appears to be qualified a

little later,

nor addeth nothing to however:

if

it.”

This

someone has

a

right

by the law of reason or the law of God, then he sometimes may

have

a

may

appear, at

remedy

in conscience

by

a

writ of subpoena.

The

qualification

glance, to be inconsistent with the principle that

first

conscience never adds anything to the law, but the idea seems to be that

when

the right itself

privation, then

science

may

if

may be found

there

provide

a

is

in the law, but

also a right to a thing

remedy by

a writ

of

subpeona may

God St.

also be

had

if

for

its

de-

by the law of reason, con-

of subpoena from the chancery.

Less complex, but perhaps more interesting, that a

no remedy

English law

is

the evident suggestion

is

directly against the law

or law of reason.

German seems

science (and equity)

to hold, then, that in the vast majority of cases conis

limited to the task of seeing to

the law does not incorrectly induce a departure

would be so

in nearly

all

it

that the letter of

from the

ratio legis.

situations because “practically the

This

whole body

The Early Sixteenth Century of the law” consists of rules on subjects about which the law of

103

God

and

the law of reason have nothing to say but which are not inconsistent with

those higher laws. In the rare instance, however, in which a rule of English law conflicts with the higher laws,

it

would

also be appropriate for

What is not clear is the standard case. St. German never says that the

to be used in

conscience to intervene. this

second kind of

of reason in fashioning

in

is

a

remedy.

He

so often emphasizes that the chan-

to order his conscience after the law that

mind here

is

also

something

like a

most

likely

search for the ratio

what he has

legis

— perhaps

one that focuses on the reason or purpose of a whole area of the just

is

draw upon his own understanding of the requirements of the law

free to

cellor

chancellor

law,

not

of the troublesome rule.

Such cellor,

a

if

taken seriously by the chan-

in practice severely limit the

scope of operations of the

theory of conscience and equity,

would

Court of Chancery by

shifting the inquiry

concern with the requirements of abstract

from the kind of unbounded which sometimes un-

justice,

derlay the decrees of the ecclesiastical chancellor, to a concern about the the

meaning and purpose of

a

common

law or statutory rule. Over the

next century and a half, the Court of Chancery was transformed into

another law court with established procedures and precedents, and

it

can be plausibly argued that

a

developing body of

German’s treatment

St.

of conscience greatly influenced that transformation.

Not

all

of the

common

lawyers’ concerns about the chancellor’s appli-

cation of conscience to English law are assuaged by Doctor and Student.

Although

it is

common law many common

possible to overstate the opposition of the

bar to the chancellor’s equitable jurisdiction — after

lawyers eagerly take advantage of

— nevertheless

it

all,

there

is

considerable

evidence that some lawyers find the interjection of the chancellor’s conscience into matters normally determinable at the

of professional

undesirable, and not merely for reasons

anomymous author of The

common

Replication of a Serjeant at the

law to be

jealousy.

The

Laws of England

states serious jurisprudential objections to the nature of the chancellor’s

conscience — objections that

St.

German

never sucessfully addresses,

ther in Doctor and Student or in his reply to the Replication in Treatise Concerning Writs of Subpoena

The fundamental problem cellor’s conscience,

with

Little

78 .

St.

German’s treatment of the chan-

argues the sergeant,

as the basis for intervention in the

A

ei-

is

that

if

course of the

that Conscience

common

is

law, “it

used

must

The Common Law Mind

104

common

needs follow that this good

law must be

made

as void

and

set at

naught.”™ This conclusion follows, the sergeant suggests, from observa-

how

tion of

common

conscience has operated in actual cases. For example,

law

who

debtor

a

a written acquittance

if

by

the debtor has

if so,

,

a

writ of subpoena in chancery.

subpoena the obligee

a

no common law remedy.

and Student indicates that in such

in Doctor

might be helped by that

has paid his debt on time but neglects to get

may, despite his payment, be sued in an action of

debt by the obligee, and

German,

of debt, and the obligor

The

common

law:

St.

debtor

a case the

sergeant argues

prohibited from pursuing the action

is

admit in chancery to plead payment of the

is

obligation without a writing, the inescapable effect would be to

void the

at the

“So that

if it

must be admitted

for law, the

make com-

mon

law, that

laws,

one being contrary to the other, cannot stand together, but one of

is

contrary to that, must needs be no law. For these two

them must stand

By

may

this

as void.”

example, then, the sergeant shows that whatever

say about the chancellor’s conscience being ruled by the

law, in practice the chancellor

mon thus a

would be making

law rules “void and of no is

be able to substitute

effect.” It

a different

law that the sergeant contends

laws of

God

is

is

Englishmen

will

German

common

clearly established

bad enough

if

com-

the chancellor

law for established English law —

reasonable and in accord with the

and reason — but the situation actually

the chancellor’s conscience that

St.

is

worse because

if

to determine such cases, the result will be

is

be ruled by no law

at

gues, because the chancellor’s conscience

all. is

This

is

so, the

sergeant ar-

no more than the discretion

of a single man: the chancellor,

own

regarding no law, but trusting to his

judgment

as

it

wit and wisdom, giveth

pleaseth himself, and thinketh that his judgment,

being in such authority,

is

far better

and more reasonable than the

judgment’s that be given by the king’s justices according to the

common

law of the realm

80 .

Saying that conscience depends upon the chancellor’s discretion other

way of saying

Conscience

is

a

that

it is

an-

uncertain and unpredictable:

thing of great uncertainty, for

they tread upon two straws that science;

is

and some man think

if

lie

some men think

across, that they offend in

he lack

if

con-

money and another have too

The Early Sixteenth Century

much, he may take part of

his

And

with conscience.

io 5

so divers

men,

divers conscience.

If

law)

the Chancellor’s conscience (which is

may

in practice override the

so uncertain, then suit by subpoena in chancery works against the

common

weal of the realm,

common

for the

well of every realm

the subjects of the realm plain

is

may be justified by

and open that law

is,

good

to have a

the same; and the

well of the realm. But

leave the law of that realm,

one man, what thing

At

least

shall

more

and the more knowledge and under-

standing that the subjects have of that law, the better

common

law, so that

if

it is

for the

the subjects shall be compelled to

and to be ordered by the discretion of

be more

unknown and

from the time of the Roman rhetoricians,

uncertain?

a

standard argument

against equitable interpretation has been that since equity depends

the understanding and discretion of the one

who

applies

it, it

upon

threatens

one of the central benefits of rule by an established law — the security of having legal rules certain enough and plain enough that citizens can

know

their rights

Replication fits

is

common

duties.

We have no evidence that the author of the

acquainted with this tradition of argument, but this passage

neatly within

ment an

and

it.

While

it

may be

inappropriate to see in this argu-

anticipation of the conceptualization in the next century of the

law as

a

repository of the constitutional rights of Englishmen,

and of the jealousy against royal encroachment that accompanied that conceptualization, in the Replication

it is

may

not hard to see

how

the kind of thinking reflected

have helped lay the foundation for some of the

constitutional thought of the seventeenth century.

Those passages conscience

understood decrees.

is

and Student that hold that the chancellor’s

to be ordered after the rules of English law

may

partly be

an attempt to mitigate any uncertainty in the chancellor’s

as

The

in Doctor

sergeant does not address those passages directly, but he

does attribute

much

of the uncertainty of the chancellor’s conscience to

lack of knowledge of the law. If the chancellor really understands English law, he argues, a

he would understand that rules such as the one requiring

writing for the discharge of debt are not unjust but operate for the

public good:

The Common Law Mind

io6

For most commonly the Chancellors of England have been

men, that hath but and when such

superficial

spiritual

knowledge of the laws of the realm;

hath been made unto them, that such

a bill

a

man

should have great wrong to be compelled to pay two times for one

knowing the goodness of the common

thing, the Chancellor, not

inconvenience that might ensue by the said suit of

law, neither the

subpoena, hath temerously directed

commanding him

the king’s name,

subpoena to the

a

plaintiff in

to cease his suit that he hath be-

fore the king’s Justices.

It is

because of the chancellor’s ignorance of English law, and thus of

goodness, the sergeant suggests, that he

is

tempted into “trusting to

its

his

own wit and wisdom.” To

the sergeant’s charge that compelling English subjects to be or-

dered by the chancellor’s conscience placed them in uncertainty, St.

German responds

that although

a

position of great

some men’s consciences

might err by being overscrupulous, and others by being too

lax,

there

is

no reason to be concerned about the chancellor’s conscience because he is

always appointed by the king “as a

man

of singular wisdom and good

conscience” and therefore he “will not be deceived through such errors in conscience, shall

have

” sl

having so

The

strait rules to the

order of his conscience as he

rules that are to guide his conscience are those of “the

law of God, and the law of reason, and trary to the laws of

God, nor

.

.

.

the law of the realm not con-

to the law of reason.”

The

fails

part of this

wisdom and good

response, which asks the reader to take on faith the

conscience of the chancellor,

first

entirely to address the Replication

s

concerns: the chancellor might, however great his wisdom, reach conclusions at variance with the law of England, and this possibility inevitably leads to uncertainty.

The second

claims that the chancellor’s conscience

only persuade those

who

is

part of the response, which

confined by “strait rules,” will

are convinced that the rules of the law of rea-

son are plain and certain enough to eliminate the possibility of error. St.

German

pursues three lines of argument in justification of the

chancellor’s intervention by

means of writs of subpoena. In the

contended that the chancellor its

deeper reason.

this rationale will

much

The

merely following the

sergeant’s

not explain

like rejections

is

all

argument makes interventions;

it

first, it is

law,

bringing out

clear,

though, that

some simply look too

of established law. For such situations

St.

German

The Early Sixteenth Century

107

has two other explanations not entirely consistent with each other and neither of which

The

first

of these

and repeated will

not

universally applicable.

is

is

the distinction, introduced in Doctor and Student

in the Little Treatise

,

to give a petitioner a

lie

between right and remedy. Subpoenas

new

no remedy, the chancellor’s conscience

right exists but

where

a legal

at least

some-

right in the law, but

The example St. German gives is drawn Quia emp tores. 82 The statute, he notes, gives a right to

times might supply the want.

from the

statute

every free

man

this is that

no rent service can be reserved on

make

to

of his lands.

a free alienation

a fee

A

consequence of

simple grant because

the grantee holds not of the grantor but of the grantor’s chief lord. 8

Any

-

agreement under which the grantor takes no deed and keeps no reversion, therefore,

is

not enforceable

common

at the

argues that nevertheless such an agreement

reason and enforceable by subpoena. law only denies the remedy; reservation.

There

is

it

The

is

a

German

consistent with the law of

reason, he suggests,

is

that the

does not deny the right to make such

a right to the reservation

not specifically say that such

law, but St.

a

because the statute does

reservation will be void;

if it did,

there

could be no subpoena.

Such

remedy

a

conception of rights

distinction

cretion. Indeed,

is

so expansive that the use of the right-

would place few constraints on the chancellor’s

one who closely reads

St.

German’s treatment, here and

elsewhere, of the right-remedy distinction

may

he does not make serious application of

but uses

conceal

a reliance

dis-

it

get the impression that it

as a

subterfuge to

on what he understands the law of reason to

require.

In the case under Quia emptores, he argues the appropriateness of a sub-

poena because “though yet

it is

it

be void

as for

good by the law of reason.” 84 In

German

indeed examines the law to see

any remedy

his

at the

common

law,

reasoning in such matters,

if it

St.

provides the remedy at issue,

but he does not engage in a similarly close examination to determine

whether the law of the realm cellor

is

to rely; his

really protects the right

presumption appears to have been that

protected by the law of reason, St.

German

on which the chan-

it is

if it is a

right

protected by English law.

does not rely on the right-remedy distinction to justify

the use of a subpoena to forestall an action of debt by a creditor

who

has

already been paid; instead, he maintains that different courts have differ-

ent rules and the the

common

law,

maxim

requiring formal acquittance only has force “at

and that only

in courts of record,” not in the

chan-

The Common Law Mind

io8

ceryT D. E. C. Yale writes of single

body of law, then we might charge

central crux, but

minimum may

at a

St.

notion that

just this

it is

expounds the idea of different laws

man

argument: “If we are to think of

this

German with evasion of the St. German denies when he

is

to be ruled

“For there

rectly against a statute, nor directly against the lie,

And

therefore as a

statute

lieth

no subpoena

maxims of the

To emphasize

if it

were enacted that

pilgrim and died, that

all

if

law, for if

may not

this point,

an alien came through the

goods should be

his

were against reason and not to be observed

yet there should

no subpoena

lie

rectly against the statute,

statute be not good,

it

forfeit, this

in conscience,

for the executors of the pilgrim,

judgment

for if there should, then should the Chancellor give

and that may not be in no wise; but

must be broken by parliament

German’s principle sems to

St.

di-

statutory example:

a

realm

by the maxims of En-

then the law should be judged to be void, and that

be done by no court, but by the parliament .” 87 he gives

Ger-

If so, St.

be charged with equivocation of the issue of

glish law, for in Little Treatise he writes,

should

86

for different courts .”

whether the chancellor’s conscience

it

a

as

be, then, that writs of

it

if

di-

the

was made.

subpoena do not

maxims of the law, even when they are against reason, unless they happen to be the kind of maxims that are binding only in common

lie

against

law courts of record and not in chancery. standing that makes sense of

must conclude that

St.

this,

German

If St.

German

he does not explain

fails

it.

has an under-

In the end, one

to produce a reasoned, coherent set

of criteria for the interposition of the chancellor’s conscience into com-

mon

law matters.

John tional

Guy

and

J.

view of the

H. Baker provide

common

a service in correcting the tradi-

law courts and their personnel as locked in

near mortal combat with the Court of Chancery and the other courts of

conscience

at the

that the balance

beginning of the sixteenth century, but

may

have tipped too

the Replication speaks for

many

far

88 .

of his fellow

I

it is

possible

suspect that the author of

common

lawyers in express-

ing an outlook at odds with an English jurisprudence in which courts of

equity and conscience are thought necessary to supplement the

law and the

common

law courts. For these

common

common

lawyers, the

com-

mon

law

who

have “the very and trewe knowledge of the lawes of the realme .” 89

is

sufficient for

all

exigencies

if

only

it is

administered by

men

The Early Sixteenth Century

St.

German, though

a

common

lawyer,

may

109

thus be seen as a figure

the question of the nature of the

common law thought, especially on common law and its place in the entire

system of English jurisprudence.

The

slightly outside the

mainstream of

tematic treatise on jurisprudence that cal

is

itself

enough

lawyers of his time. the

common

law,

to distinguish

And

he set out to write

fact that is

more philosophical than

him from

the other

all

a sys-

practi-

common

the fact that he denies the perfect reason of

and denies that the

common

in the law of reason, serves to separate

law

is

perfectly

grounded

him from the growing ideology,

stemming perhaps from Fortescue and pointing toward the extreme views of Sir John Davies, that glorifies the

common

law.

CHAPTER

FIVE

Plowden’s Commentaries and the Sixteenth-

Century Law Reports

E

dmund plowden, now

universally regarded as the best

law reporter of the sixteenth century, set

passed for

many

generations

1 .

them) that we turn for

calls

It is

a

common

standard that was not sur-

to his reports (or commentaries, as he

a sense

of

how

the

common

law bench and

the practicing bar of the mid-sixteenth century conceptualize the

com-

mon law, including how they understand the relation of general custom to common law, how they view the relation of both to reason and the law of nature, and their approach to statutes and their interpretation.

Common

said that “there are three

Kinds of

Realm of England, by which the King’s People

are gov-

In the case of Reniger

Laws

in this

erned,

viz.

Law, Custom, and Reason

the

Law

v.

Fogossa

it is

general, Customs, and Statute

part division of English law, after the St.

German’s

division

human and

is,

Law.” This 2

manner of Fortescue,

six-part division did not take hold.

The

three-

indicates that

Reniger

v.

Fogossa

however, not the same as Fortescue’s. Fortescue divides

all

laws, including those of England, into the law of nature, customs,

statutes.

realm (the

His customs encompass both the general customs of the

common

law)

and

local customs. In the Reniger

scheme, the word “customs” refers only to the “law general” refers to the

common

local, particular

law.

This

is

made

v.

Fogossa

customs, and

clear in a pas-

sage a few lines later that repeats the three-part division in slightly different language:

“And so we

see that

some Cases

shall

be construed con-

trary to Statutes, contrary to Customs, and contrary to the ordinary

course of the

One no

finds

common two

Law.”

'

different statements of the nature of the

common

law

Plowden s Commentaries

Plowden, one identifying the

in

identifying

with usage.

it

The

common

iii

law with reason and the other

statements identifying the

common Law ... is no other common Law is no other than pure

common law common rea-

with reason vary: “the

than

son” and “the

and tried reason.” 4

There

is

no elaboration of what

pure and tried reason.

I

meant by

is

common

either

common reason common erudition

suspect that

reason or

used as

is

syn-

a

onym

or parallel expression for the

in the

Year Books and Inns’ learning exercises of the fifteenth century.-'

Common

often mentioned

lawyers of the late fifteenth and early sixteenth centuries

still

had no doctrine of binding precedent. Their appeals to authority take

form not of

the

appeals to the

citations to the rulings of judges in earlier cases but of

common

learning acquired by

sion at the Inns of Court.

common

the

reason

law

What is common

all

members of

about the reason with which

identified in Plowden’s reports

is

is

not so

held for law throughout the entire realm but that

is

common

by the

legal profession.

Edward Coke, who

the profes-

Here we have

a

much

it is

that

held in

foreshadowing of Sir

identifies the “artificial reason” of the law with the

long training and experience of the lawyers. Still,

synonym of not merely being idiosyncratic when

the term reason as used in Plowden, ,

common

erudition. St.

German

is

is

not always

a

he identifies reason with the law of nature. In several instances recorded in

Plowden,

common

lawyers use reason to

mean

natural law. In Colthirst

Morgan states that “there are two principal Things from whence Arguments may be drawn, that is to say, our Maxims, and Reason, which is the Mother of all Laws.”

v.

Bejushin

(

Commentaries

1:27) for

example, Serjeant

Maxims, the immediate foundations of the common ular English “conclusions” of universal reason, and

law, are the particit is

for this reason

that they “ought not to be impugned, but always admitted”

(

Commen-

taries 1:27). 1

Sharington

v.

Strotton contains several unusual

the law of nature as one of the foundations of

common The .

.

.

and all

explicit citations

laws, including the

law.

Philosophers have searched so deeply for the

and

in their

Laws have commended us

Law

of Nature

to follow Nature, and

have taken Nature to be one of the Foundations whereupon

Laws

are based ...

Law were

we ought not

to think that the

remiss in searching after the

Law

of

all

Founders of our

of Nature, or that they

1

The Common Law Mind

12

were ignorant of greatest and

For there

also.

.

They who made them were Men of

as

with the

Law

Maxim

of the

common Law

.

.

.

and

Consideration of Nature ... so that

from Nature

is

Law of God God ... so that

of

this is

shall

be charged

grounded upon the

Consideration proceeding

a

Consideration in our Law. (Commen-

a sufficient

explicit citation of the law of nature

is

extraordinary. St.

correct in observing that the practice of the stitute reason for nature.

The

with

as well

1:304-6)

taries

The

Law

nothing ordained in our

is

the

of Reason, and the

Advancement of the Daughter the Father

for the a

.

.

most profound Judgment, and acquainted

Law of Nature,

the

by

it.

common

German

lawyers

is

is

to sub-

6

claim that nothing

is

common

to be found in the

trary to the law of reason or nature conflicts with

law that

what

St.

con-

is

German

taught earlier in the century. Indeed, this claim represents a minority

view even

in Plowden’s time. In Willion

v.

Berkley for Example, ,

it is

said

common Law did suffer it, nevertheless it was Wrong. And some Things the common Law does

that “notwithstanding the

not well done, but

a

permit to be done, which are tortious and wrong” ( Commentaries In Wimbish

For

v. Tailbois it is

at the

said of the Statute of

common Law

the Intent of the

Donor was

eluded, which was contrary to right and

therefore the Statute, being

made

Westminster

be extended by Equity

.

.

.

infringed and

to restrain that vicious Liberty of

for the

common

not permit him to be received, suffered I:

II:

good Conscience, and

breaking such Intents, which was suffered by the shall

1:247).

a

common

Law,

Law, which would

Wrong.

(

Commentaries

53)

It

might be thought that the apparent disagreement among sixteenth-

century

mon

common

lawyers on the question of the congruence of the

law with the law of nature can be explained

versal practice of advocates to

to help

win the case

at

make

as a

com-

product of the uni-

use of any arguments that promise

hand. But the arguments in Plowden’s reports on

this issue are

hardly extemporaneous inventions — they are

clearly part of the standard

equipment of the lawyers. LTless we are pre-

both sides of

pared to assume complete cynicism on their part, this suggests that the

common

lawyers are ambivalent about the relation of the

common

law

to a higher, universal law (whether conceived as reason, natural law, or

n3

Plow den ’s Commentaries

the law of God). VVe find this ambivalence throughout the history of the

common law. Besides common reason, and reason as the law of nature, the common law is also described in Plowden as “no other than pure and tried reason.”

This locution suggests

argument that English laws

similar to that represented in Fortescue’s

the best of

all

human

— one

a different idea altogether

laws, because they have

been

tried

through

are

a suc-

cession of English kingdoms and would have been rejected otherwise.

The

conceptualization of the

seems to be linked to identifies the

This

1:195).

reason” equivalent

second

a

law as “pure and tried reason”

set of statements in

Plowden, which

common Use” ( Commentaries two questions: Are “common use” and “common terms? Are they tied to the concept of common eru-

common raises

common

law as “nothing but

modes of reasoning, and cuscommon law beneh^md bar)? Despite the re-

dition (understood in the sense of learning,

tom or

practice of the

peated use of these terms in the cases reported by Plowden, to judge with assurance the

the identification of the is

made

meaning they had

common

law as

the phrase in question

— very much

as if

use or

v.

Adams Brown, ,

J.,

common

reason

few clues to the meaning of

counsel and judges are reciting

by rote tags of jurisprudence remembered from their case of Wrotesley

difficult

for their users. Typically,

common

cryptically, in a context providing

it is

and Dyer,

statement reported by Plowden identifying

C

.J.,

common

training. In the

make

the fullest

common

law with

use:

A Farm

is a

together,

collective

Word

whereof one

is

a

consisting of divers Things collected

Messuage, and the others are Lands,

Woods, Commons and other Things lying or appertaining thereto. And yet all this does not make it be called a Farm, if it has not another Thing also; and that is, that it has been

Meadows,

Pastures,

.

.

.

or demised to another for Life, for Years, or at Will. ... So

let

Farm contains and

it is

divers Things, as hath

a capital

Alessuage and

and demised, and so

Reason the Law

also

Is

is

nothing but

Grange

does;

Demesn which have been

let

commonly taken in every Place. For which says it is so, for the Law is the Custom in rela-

common

and Judgments, and the

Use. ( Commentaries

the law referred to as “the

Pleas,

said, as a

it is

tion to Letters, Counts, Pleas,

Law

great

a

been

a

Custom

and Judgments” thought of

common

1:195)

77

in relation to Letters, I

as different

from the

Counts,

common

law,

The Common Law Mind

n4 which

said to be “nothing but

is

erences in the passage are to the

one asks what kind of “the

Custom

law, in the three-part division

in relation to Letters,

not statutory law but

tom

common

pleas,

is

is

no

The custom

not the custom of the

is

It is

local, particular cus-

and judgments. Therefore,

law of the realm.

and judgments

of English law,

Counts, Pleas, and Judgments .”

form of custom. There

a

in respect to counts, pleas,

only be the

common Use?” I submit that both refcommon law. This becomes clear when

law can

this

in respect to counts,

folk.

Only lawyers and

judges have customs or usages in respect to these matters. This custom,

may also be understood

then,

bench and

son, of the

as the

common erudition,

common

Use”? Does

bench and

does

bar, or

common rea-

is

“nothing but

bar.

But what about the statement that the

common

or

it

have

a

common

law

use refer only to the

common

usages of

We cannot be sure. In

wider application?

the Wrotesley Case the judges state in respect to their definition of “farm” ,

that “so

it is

commonly taken

argument on the

basis of a

in every Place,”

common

and

this

appears to be an

usage broader than that merely of

judges and lawyers. This interpretation of the judges’ dictum in Wrotesley is

strengthened by an argument in Reniger

[YB 26 Hen. ment,

& c.

and

mon Usage at certain

ferred to

8] is in

this

is

agreement

after”

is

“Which

Payment or Agree-

intended to be executory, as the com-

usual to

clearly the usage of the vicars, parsons, is

and others

a

who

are

not the usage of lawyers in applying the

Lawyers, then, are accustomed to using the phrase

usage” in

Statute

make an Obligation for the Payment ( Commentaries 1:9). Here the common usage re-

it is

the subjects of the statute and statute.

Fogossa:

the disjunctive, and speaks of

proves, for

Days

v.

“common

sense that includes the usages of people in the ordinary

course of living and doing business.

It

seems most natural to read the

“commonly taken in every Place” in this sense. But we must remember that our question is whether sixteenthcentury lawyers, and particularly Justices Brown and Dyer, identify the Wrotesley phrase

common law with such standard practices of laymen. Wrotesley suggests that the common usages of the people indeed make up part of the common law, for Brown and Dyer add to their statement that the meaning they ascribe to “farm” sion, “for

is

“commonly taken

which Reason the Law

lematic association of the

also says

common

in every Place,” the conclu-

it is

so.”

A somewhat less prob-

law with custom

is

found

in the re-

cently published reports contained in the notebooks of Sir James Dyer.

In a 1558 case,

it is

Plowden V Commentaries

n5

common

law and

held that “by the custom of the

may be

order of the realm, and of that that court, no interest

granted by

letters patent.”

What may we now say of the sixteenth-century conception of the common law, if indeed a single such conception existed? In Plowden’s reports the common law is identified with both reason and usage. Reason is used in two senses: the common erudition of the legal profession and the law of nature. Usage

is

also used in

two

senses: the usage of those

learned in the law and the usage of the people.

weld these disparate ideas into

It is

tempting to try to

coherent sixteenth-century theory of

a

common law. It might be suggested, for example, that sixteenthcentury common lawyers assume, when they use any one of the several formulas found in Plowden, that their fellow lawyers possess a common the

jurisprudential framework, in which each sucjj formula has

its

heirarchy of concepts — much as in Doctor and Student. But

I

much

if

many

sixteenth-century

common

lawyers, any

place in a

doubt very

more than

counterparts today, had a conscious, coherent theory of the

their

common

law.

A

few lawyers, of course, such

century and

Thomas Hedley

as St.

German

shortly after

at the

its close,

beginning of the

had theoretically so-

phisticated understandings of the place of usage and reason in the

mon

law in the English legal system

as a

com-

whole. 8 Plowden’s Commentaries

themselves, by virtue of the fact that they report a few snatches of explicit jurisprudential discussions, fail into this exclusive category.

contemporary law reporters such

as Sir

James Dyer seldom report

cussions about such jurisprudential questions as the nature of the

mon

law, usage,

custom or

legal reason.

Other

g

dis-

com-

possible that such discus-

It is

sions frequently occurred in court and are unreported because the re-

porter assumed that every lawyer had received a solid grounding in the

fundamentals of jurisprudence Court. 10 Phis, however,

is

at the

Inns of Chancery and the Inns of

not the impression one gets from reading

wide range of sixteenth-century reports. profession with very

little

The

interest in legal philosophy,

go to the trouble of attempting to formulate

The

mon

profession has available to

law, several possible

description

pends

less

is

impression, instead,

it,

a

its

one that does not

out of the long history of the com-

ways of describing that

user’s sense of

of a

coherent jurisprudence.

law.

chosen for employment in any given

upon

is

a

what

a

Which

legal

particular

argument de-

coherent jurisprudence re-

The Common Law Mind

ii6

quires than

upon whether

present difficulty.

imagine

how

The modern

scholar can, by straining his ingenuity,

the sixteenth-century English lawyer might fashion a co-

herent theory of the little

that description will help his client out of his

common

law out of the materials

at

hand. There

is

evidence for such a theory in the sixteenth-century reports.

Equity, Statutes, and Interpretation St.

German’s principal concern with equity involves

remedies in the court of conscience, but

use as a basis for

its

century un-

as the sixteenth

folded, practitioners, in their court arguments, increasingly

on equity

as a principle

come

to rely

of statutory interpretation. By the fifteenth cen-

tury, the idea of the equity of a statute as a guide to interpretation a basis for

extending or restricting the words of a law came into

use,

and an understanding about

The

sixteenth century, though,

ration and development

In the classic

its

is

meaning and

limits

and

as

common

was developing.

the period of the idea’s greatest elabo-

11 .

modern treatment of

sixteenth- century

common

law

approaches to statutory interpretation, Samuel Thorne contends that “in a very real sense the history of statutory interpretation begins in the

sixteenth century.” 12 This that statutes

is

so,

he suggests, because

began to occupy

a

words of an

was only then

position roughly comparable to that

which they hold today and that judges in restricting the

it

first

became conscious

act ... or extending

them

that

to include

equally deserving but unmentioned cases, they were performing

something more than an incidental, routine function of

judicial

administration.

Although by the equity of

fifteenth century judges rely

a statute to justify

on the doctrine of the

the extension of a statute

beyond

its

words

and begin to develop rules to put some boundaries on the application of that doctrine, they as in

do not think of the process of applying the doctrine

any way involving

cial authority;

of justice

13 .

a potential conflict

they merely see

it

as a facet

In fact, although several rules

between

legislative

and judi-

of the routine administration

— such

as the

one holding that

penal statutes would not be taken by the equity — are announced in fifteenth-century cases, in practice the only principle that

extensions by the equity

is

lies

behind

the one stated by Paston: “lex beneficialis rei

Plow den ’s Commentaries

consimili

non

remedium

extendit.” It

is

praestat, odiosa

autem casu quo

only after acts of Parliament gain

acts

become

new

status

common

clear that in the sixteenth century

It is

of importance

a rule

lawyers

when

legislation

and au-

one be-

14 .

show an un-

precedented interest in problems of statutory interpretation. the Middle Ages,

7

efficitur vlterius

thority, in the sixteenth century, that such distinctions as the

tween penal and beneficial

11

1

'

Unlike in

“the government’s vague reply to

is

vaguely worded complaints,” constitutional developments in legislative

procedure lead “to an increased concentration on the text of

bills, as

containing the propositions to which each house in turn was asked to give

assent,” with the result that a text

its

is

16

produced that has been con-

sidered

word by word by the lawmakers

Thorne

suggests that the evolution of doctrine about statutory interpre-

.

But

it is

not nearly

principally driven by such changes irup'arliamentary procedure.

tation

is

While

it is

plausible to conjecture that such constitutional developments

should have an effect on judicial thinking about statutes, to say with confidence just

do not

as clear as

what that

explicitly discuss statutes in

opments.

very

It is

clear,

effect

is

it is

impossible

common

since the

lawyers

terms of those parliamentary devel-

not only from the treatises but also from the

case reports, that lawyers’ views

on interpretation

are also being influ-

enced by exposure to the writings of Aristotle (sometimes through the

medium civilians

of

a

medieval commentator), of

and canonists

Roman

rhetoricians,

and of

1 .

The most striking difference between

the later Year

Books and the

re-

ported cases in the second half of the sixteenth century in the treatment of issues of statutory interpretation involves the degree to which the

six-

teenth-century lawyers frame such issues in terms of the intent of the

makers

(lentent del feasors)?*

nouncements that those

There

are occasional fifteenth-century pro-

statutes are to be construed according to the intent of

who made them,

but in Plowden’s reports the intent becomes

predominant focus of interpretation

words of an

act,

19 .

a

Questions about extending the

or of taking exceptions out of them, are

still

frequently

discussed in terms of the equity of a statute, but then, as likely as not,

what that equity requires In Reniger

v.

Fogossa

,

is

made

to

depend on

legislative intent.

Saunders, one of the king ’s sergeants, even ex-

plains the force of the principle that the makers’ intent

is

to guide to in-

terpretation in terms of legislative intent: “It has always been the

mind

of the legislature, that their intent should be observed in the construe-

ii8

The Common Law Mind

$

tion of statutes”

makers an

(

Commentaries

1:82).

He

goes on to cite the intent of the

as a general justification for taking exceptions

out of the words of

act:

Where

the words of a statute are general, as they are in this case,

all

things which are within the general words are not taken within the

purview of the

statute; but

such things as the makers of the statute

meant; so that the intent of the legislature

and

shall abridge the generality

The words

of a statute,

For example, in Reniger

the judge of the words,

of xhem.(Co?mnentaries

1:10)

frequently said, do not settle what the law

it is

v.

is

is.

Fogossa Serjeant Pollard states:

For in every law there are some things which when they happen

man may break the words

of the law and yet not break the law

and such things are exempted out of the penalty of the

a

itself;

and the

law,

law privileges them although they are done against the letter of it,

for breaking the

words of the law

the intent of the law

is

is

not breaking the law, so as

not broken. ... So that the efficacy of

statutes consists not only of the words, but in the intent thereof,

which intent ought always to be considered, and made agreeable with the words. rects the words,

.

.

.

And

so the intent of the makers of statutes di-

and the equity of them. ( Commentaries

In a similar vein, Saunders, in Panridge that “words,

which

are

v.

Stange and Croker, asserts

no other than the verboration of the

constitute the statute, but are only the image of statute rests in the

1:18)

it,

and the

minds of the expositors of the words, that

ers of the statutes”

(

Commentaries

such statements justifying

a

1:82). It

air,

life is

do not of the

the

mak-

should not be imagined that

departure from the words of an act on the

basis of legislative intent are limited to advocates seeking to avoid the

evident meaning of a law; the judges frequently express a similar ap-

proach to statutory interpretation. In Stradling all

v.

Morgan

,

for example,

of the barons of the exchequer agree that although “treasures, re-

ceivers, or ministers

accountant of

words of the statute (YB

7

common

persons” are within the

Edw. VI), they are not within

its

purview or

penalty because “the intent of the makers of the Act was only to punish the treasurers, receivers, and ministers of the King, and not of

persons”

(

Commentaries

1:203).

20

common

After citing several precedents for de-

parting from the letter of statutes, Saunders, Chief Baron, concludes:

n9

Plozvden V Commentaries

From which

cases

appears, that the sages of the law heretofore

it

have construed statutes quite contrary to the letter in some appearance, and those statutes which

comprehend

things in the

all

letter,

they have expounded to extend but to some things, and those which generally prohibit

people from doing such an

all

terpreted to permit

some people

to

do

it,

they have in-

act,

and those which include

every person in the letter they have adjudged to reach to some persons only, which interpretations have always been founded upon ( Commentaries 1:205).

the intent of the makers. Finally, in Eyston

Studd

v.

the intent of the makers

For they took

all

is

the judges of the

Common Bench agree that

determinative in statutory interpreteation:

that the intent of statutes

it

than the precise

letter

is

more

to be regarded

of them, for oftentimes things, which are

within the words of statutes, are out of the purview of them, which

purview extends no further than the intent of the makers of the Act,

and the best way to construe an Act of Parliament the intent rather than according to the words.

(

a statute for the

letter is unclear,

it is

makers’ intent

sometimes

is

according to

Commentaries 2:464)

Although the understanding may not be that words of

is

a

search beyond the

appropriate only

said that the intent sould

when

be sought

the

if

the

words are unclear: [Montague, terms and

C.J.:] First,

letter

we have

a

learning in our law, that

of any statute are obscure and

difficult to

we ought to have recourse to the intent of thereby we shall come at the meaning of the letter. statutes have always

the the

be under-

the makers, and

stood,

ambiguous words of

if

.

.

.

And

thus the

been expounded accord-

ing to the intent of the makers ... so that the intent of the legislators

is

to be sought for in the exposition of the

statutes, I:

and the

letter shall

ambiguous words of

be aided by the intent.

(

Commentaries

—

57 58)

The

author of A Treatise Concerning Statutes gives the intent of the legis-

lators a similarly central place in interpretation:

For when the words express not the intent of the Makers, the Statute must be further extended than the bare words, but ever

it

must be thought that the meaning of the Makers'was such, when

The Common Law Mind

120

there

is

any proceeding other than the words

surd thing to

make an

bear, for

it

were an ab-

exposition go further than either the words,

or the intention of the Statutaries reached unto. 21

Of

course,

intent, cise

and

if

if

statutory interpretation

that intent

is

to be

is

more than

by the makers’

to be guided a fictional

cover for the exer-

of judicial discretion, eventually consideration has to be given to the

how the intent can be known. In the second half of the sixcentury, we are still far from anything like a scientific approach to

question of teenth

uncovering

legislative intent,

that intent

is

slight, that

not least because documentary evidence of

generally unavailable; but there

common

some evidence, even

is

lawyers are beginning to think about such prob-

lems. For example, after Saunders argues, in Panridge ker,

that “the

words, that

Strange a?id Cro-

v.

of the statute rests in the minds of the expositors of its

life

is,

if

the makers of the statutes,” he adds, “and

persed, so that their

they are dis-

minds cannot be known, then those who may ap-

proach nearest to their minds sages of the the law

if

whose

meritaries 1:82). Saunders

is

shall

construe the words^and these are the

talents are exercised in such matters”

(

Com -

proposing no investigatory technique in thus

suggesting that questions about legislative intent be

left

standing of the judges, but his statement does show

a

to the under-

recognition that

questions might exist concerning what has been in the minds of the

makers.

Sometimes,

as in Fulmerston v.

Steward the suggestion

is

,

made

intent “must” be as the lawyer contends because anything else

unreasonable:

“it

avoid leases newly it is

would be

cannot be reasonably taken that such was the intent of

the makers of the statute, for

Morgan ),

that the

it

would be against

made” ( Commentaries

1:109).

all

reason and equity to

Other times ( Stradling

v.

openly acknowledged that the intent of the makers regard-

ing particular words has been established by presumption: “and so they [the judges]

have qualified the rigour of the word (presently) according to

reason, in such

manner

as the intent

presumed to be” ( Commentaries

of the makers of the Act might be

1:205).

Edmund

Plowden’s

bution to the problem of identifying the makers’ intent

commentary on

And

the case of Eyston

in order to

restrained,

form

a right

v.

is

own

contri-

found in

his

Studd

judgment when the

and when enlarged, by equity,

it is

a

peruse a statute, to suppose that the law-maker

letter

of a statute

is

good way when you is

present, and that

Plow den

you have asked him the question you want equity, then

Commentaries

's

to

know touching

you must give yourself such an answer

he would have done,

if

legislative intent. In

as

the

you imagine

he had been present. ( Commentaries

more empirical approach

Occasionally, a

121

is

suggested for determining

perhaps the most famous of these, Dyer,

Stowell v. Lord Zouch, describes the preamble of an act as “a key to

C.J., in

pen the

minds of the makers of the Act, and the mischiefs which they intended to redress” ( Commentaries 1:369). Saunders, Chief Baron, after describing in Stradling

v.

Morgan how

the judges sometimes construe statutes

more

widely and sometimes more narrowly than their words, and stating that

such expositions “have always been founded upon the intent of the Legislature,”

adds that the intent

is

“collected sometimes by considering the

cause and necessity of making the Act, sometimes by comparing one part

of the act with another, and sometimes by foreign circumstances” (Commentaries 1:205).

The

author of

A

— the problem of collective

the fact that in considering the

legisla-

intent, or, as the author phrases

mind of

the problem that “so manie heades as statute makers, so

and Understandinge of

one of the sources of modern disputes about

Statutes anticipates tive intent

Discourse upon the Exposition

it

it,

the legislature one encounters

were, so

many

many myndes.” 23 Notwithstanding

wittes; so

this

many

problem, the

author contends, there are ways of knowing legislative intent. For example, there is

always the possibility that the makers of a law

may have

ex-

pressed their minds on an issue, and “if they have not gyven any declara-

cion of theire myndes, then in use,

is

to be sene

how

the statute hathe bene put

and theire authoritye must persuade us that were moost neerest

the statute.” 24

In the cases reported by Plowden, extensions and restrictions of the

words of statutes are often islators.

On

justified

by reference to the intent of the leg-

other occasions, however, such departures from the letter

are explained in terms of the equity of a statute.

how

The

question, then, of

the principle of interpretation by makers’ intention

to relate to the doctrine of the equity of a statute

Plowden reports no equity.

Sometimes

it

is

is

understood

most

interesting.

explicit discussions of the relationship of intent

appears that the two terms are viewed as essentially

equivalent. Serjeant Pollard, for example, arguing in Reniger that a statute

is

and

v.

Fogossa

penal, protests against an interpretation that goes be-

The Common Law Mind

i22

yond the

on the ground

letter,

wrests the words to

Molineux,

J.,

a

that

the coverage of the statute, “and

mentaries

it

“puts

a gloss

upon

the text, and

kind of intent and equity” ( Commentaries

once argued ( Wimbish

statute, then ...

it

v. Tailbois)

if it

1:17). is

within

letter

of the

that a situation

was not within the

And

should be within the equity and intent of

it”

(

Co?n -

1:50).

The problem with not quite the same

these examples

as the “intent

notes a purposive state of

is

that the “intent of the statute”

of the makers”; the latter phrase con-

mind on

the part of the legislators, but in the

sixteenth and seventeenth centuries the former likely

more than “the meaning of

is

the statute.”

We

come

meant nothing

closer to an explana-

tion of the connection between equity and the intent of the makers in

an argument by Saunders, in Partridge

though

The

a statute is penal,

statute

is

it

v.

Strange and Croker that even ,

should be interpreted equitably

penal, but because the expositors of the statute took

the intent of the makers of cases of like nature, that

to be such, viz. to give

it

the reason thereof.

is

And

damages

in

so the intent of

the makers of statutes directs the words, and the equity of them. (

Commentaries

There is

is

1:82)

reason for thinking that this view (that

that legislative intent

is,

the guide to the content of the equity of a statute) was the most

mon

understanding in the

late sixteeth century.

Treatise Concerninge Statutes

,

tion of statutes into

two

“according to equity”

2 -

The

com-

author of the

for example, after dividing the interpreta-

sorts

— “according

— immediately

to the precise

adds: “For

when

words” and

the words express

not the intent of the Makers, the statute must be further extended than the bare words.” 26 This ders,

who

is

consistent with the analysis of Serjeant Saun-

argues in Reniger

v.

should be taken by the equity mentaries

Fogossa that although a statute if

such are the minds of

its

is

penal,

it

makers ( Co?n

1:10).

Plowden, in

pended to

his

famous discussion of interpretation and equity ap-

his report

of Eyston

v.

Studd seems to have ,

a similar

under-

standing. After stating that the general words of statutes are often cor-

rected and abridged by equity, he gives as an example of equitable interpretation the case of an undersheriff

who took twenty pence more

than permitted by statute from prisoners in his custody, an action upheld by the court. Plowden contends that

Plowden V Commentaries

the

payment of

and

it

with reason and good conscience,

this fee stands

was not the intent of the makers of the Act to take

From which

case

it

123

it

away.

appears that equity or epichaia puts an excep-

tion to the generality of the text of the statute law.

(

Commentaries

2:465) /

As another example of equitable the Statute of Westminster at sea that if a

I,

interpretation,

cap. 4,

which provides regarding

“man, dog, or cat” should escape

goods found were to be held

Plowden considers

and

for a year

from

alive

a

wreck any

a ship,

a day, to give the

owner an

opportunity to seek their return, and penalties are to be imposed for an

But what of perishable goods that

earlier disposal of the goods. last for

the time prescribed by the statute? If the sheriff immediately

them, Plowden

says,

goods within

has punctually observed

a year, yet it,

ports

is

that the

to be

happening

common

tional learning: that

^the

as

law.

(

he has observed the intent

Commentaries 2:466)

in the period

lawyers

words of the law by

he has not broken the law, but

inasmuch

and meaning of the makers of the

What appears

sells

he should not be punished because

although the sheriff has done contrary to selling the

not

will

covered by Plowden’s re-

uneasily hold

still

on

any departure from the words of

described in terms of the equity of a statute.

The

to their tradi-

a statute

is

to be

fifteenth-century con-

ception of that equity as merely having the function of extending the

words of the law to cases

in the

same mischief is on the way to breaking

down, however. In several cases the judges are willing to depart from the words of

a

rectly rely

law by taking exceptions to

it;

on the intent of the makers

statute, they

move beyond

in the next century,

still

beyond

by coming to

that,

di-

in establishing the equity of a

the de similibus principle.

It is

true that Coke,

defines equity in fifteenth-century terms, but

the judicial practice after the middle of the sixteenth century does not reflect so limited a

In the

view of the doctrine. 2

many references

the principle of similarity

found

in

to the equity of a statute in Plowden’s reports, is

seldom mentioned. 2 *

Robert Brook’s argument

in Reniger

v.

One

such reference

Fogossa in ,

is

which he says

of an old decision that “the ancient fathers of the law, seeing that those cases were in equal mischief, took

them

to be in like law, and in such

sense they construed the minds of the makers of the statute, out of mere

The Common Law Mind

124

necessity to avoid a mischief” trates

Commentaries

(

what appears to be happening: the search

the cause of the

making of the

statute

is

may

not certain; an important element

illus-

for the mischief that

was

being reconceptualized as

search for the intent of the legislators. Just what is

This passage

1:13).

is

a

driving this evolution

be the developing understand-

ing of the place of Parliament in the English constitution.

Despite the growing importance of the intent of the legislature in law interpretive practice and theory — and of the close associa-

common

tion of that interpretive principle with the doctrine of the equity of a statute

— it

should not be thought that the

bethan England settled on

Sometimes the equity of

makes

seem

less like a principle

ing at an outcome that seems

Robert Brook, for example, ster, cap. 3

(Reniger

v.

a statute

is

lawyers of Eliza-

view of the equity of a

a single, consistent

statute. it

common

described in a

way

that

of interpretation than a basis for arrivreasonable, or merciful to the judges.

fair,

states in regard to the Statute of

Westmin-

Fogossa ):

But the ancient fathers of our

law, considering the said statute,

saw

should be taken according to the words, great inconvenience

if it

would follow from thence

.

statute according to equity

allow of

some

.

.

and therefore they construed the said

and reason, although the words did not

but seemed against

it,

it;

so that in

all

statutes there are

private cases excepted out of the general provision by equity

of reason, in avoidance of a greater mischief. ( Commentaries

1:13)

Serjeant Pollard, in the same case, asserts:

And

therefore the words of the law of nature, of the law of the

realm, and of the law of

some that

acts

is,

God

also will will yield

and give way to

and things done against the minds of the same laws, and

where the words of them

are

broken to avoid greater incon-

veniences, or through necessity, or by compulsion, or involuntary

ignorance.

Montague, tial

(

Commentaries

C.J.,

1:18)

on more than one occasion openly considers poten-

mischief and hardship in arriving

Dive

v.

great,

Maninghatn he

it

states,

(

an interpretation of a statute. In

“And therefore seeing the mischief was so

cannot be taken but that

statute to cure it”

at

Commentaries

it

was the intent of the makers of the

1:67).

And

in Partridge

Croker he says, “For to construe the statute, that he,

who

v.

is

Strange and

in possession

Plow den

shall

not make

v.

all

would be

reason and equity” ( Commentaries

Lord Zouch, Brown,

Commentaries

I2 5

bargain, or feoffment, except he has been in pos-

a lease,

session, or taken the profits for a year before,

contrary to

's

J.,

a

hard law, and

1:88). Finally, in

Stowel

urges the general interpretive principle that

the mischiefs and inconveniences, which are in the

letter,

are to be

considered and avoided by the application of reason, and by putting

such construction on the law positive

as shall exclude all rigours

mischiefs, and stand with equity and

and

good reason. ( Commentaries

0363)

To modern

eyes, a theory of interpretation in

judges to read statutes in such mischiefs

may be

is a

way as to avoid hardships, rigor, and enormous discretion to judges and that

a

theory that grants

difficult to reconcile

which equity requires

with the frequently stated rule that equi-

table interpretation involves following the intept of the legislators.

implication in 1615:

is

This

recognized by Lord Ellesmere in The Earl of Oxford's Case

“And the judges themselves do play the Chancellors Parts upon

Statutes,

making Construction of them according

to Equity, varying

from the Rules and Grounds of Law, and enlarging them pro bono publico against the Letter and Intent of the Makers.”-

The

great interpretive discretion of judges

9

is

widely acknowledged in

the late sixteenth and early seventeenth centuries.

The

author of the

contends that

Treatise Conceiving Statutes

the Sages of the law

whose wits

are exercised in such matters, have

the interpretation in their hands, and their Authority

taketh in hand to control: wherefore their Power high, and

we seek

,

is

no man

very great, and

these Interpretations as Oracles from their

mouthes. 30 Justice If

Hobart makes

a similar

assessment:

you ask me then, by what

this diverse exposition

swer,

it

rule the judges guided themselves in

of the self-same word and sentence?

I

an-

was by that liberty and authority which judges have over

laws, according to reason

and best convenience, to mould them to

31 the truest and best use.

Not every lawyer of the discretion a

good

period thinks the exercise of such interpretive

thing, even

if

the Elizabethan case reports are remark-

The Common Law Mind

u6

ably free of reported

demands

for strict interpretation

and of protests

about the dangers of departing from the statutory words. 32 Ellesmere, noting that judges “played the Chancellor’s part” in construing

after

statutes, suggests that

cellor sits in

Power, and

is

it is

Chancery according

to an absolute

to judge according to that

the judges of the

“The Chan-

inappropriate for them to do so:

Common Law are

dinary (or limited) Power.” 33

It is

which

is

and uncontrollable

alleged and proved; but

to judge according to a strict

established doctrine, says Ellesmere,

that “the Acts and Statutes of Parliament ought to be revers’d

ment

(only)

It is

power

and or-

by

Parlia-

and not otherwise.” 34

unclear whether those lawyers and judges to enlarge or restrain the

who

advocate

words of statutes pro bono

a judicial

do so

publico

because of their understanding of the nature of equity or whether this

view of the

judicial role

There does appear

is

unconnected to how they understand equity.

to be in the Elizabethan period a substantial dis-

agreement about the nature of the equity that guides interpretation the

common

law courts.

more

surface, to

easily

The view

of equity that appears,

on the

support the use of wide judicial discretion

Aristotelian conception cited by Catline, C.J., in Stowel

“And Catline

at least

said, that Aristotle defines

rectio justae legis qua parte deficit

v.

in

is

the

Lo?'d Zouch:

equity thus, Aequitas est cor-

quod generatim

lata est”

(

Commen-

taries 1:375).

This understanding of equity rects

it is

Eyston

v.

as

something outside the law that cor-

repeated and elaborated by Plowden in his

Studd.

Plowden suggests that equity operates

applies the de similibus principle

first

commentary on in

two ways: one

described in English law by Bracton

and that was the staple of the fifteenth- century Year Books; the other “enlarges or diminishes the letter according to

its

discretion” and

is

the

kind described by Catline in the Stowel Case ( Commentaries 2:467, 465).

The

equity that worked a “correction of the general words

in the law of England,” a

way

uity,

Plowden

asserts,

is

called

by some epichaia

generality of the text for

.

.

much

used

and he goes on to describe

that gives considerable latitude to those

which

is

.

some reasonable

who would

apply

it:

it

in

“Eq-

often puts an exception to the cause.” Unlike the other kind

of equity, which applies the reason contained within the law, this equity,

Plowden

says, “is

no part of the

the law,” and judges, in using

it,

law,

but a moral virtue which corrects

“have softened the severity of the text

and made the law tolerable” {Commentaries 2:466).

Plow den's Commentaries

Edward Hake,

I2 7

in his Epieikeia takes pointed issue with Plowden’s ,

un-

derstanding of equity.? 5 Loveless, a character in Hake’s dialogue, expresses concern about judicial discretion:

A man

would thincke that where the lawe

discretion of ye judge

above ye lawe

(as

it is

is

any waye

lefte to the

either for that the judge hath authoritie

to alter ye lawe at his discretion) or els that in the

exposition of ye lawe hee hath power to use or not to use Equity ac-

cording to his discretion

36 ,

Hake, the character who speaks for the author, attempts to assuage these concerns by describing an understanding of equity that

differs

markedly

from Plowden’s Aristotelian conception:

Whereas

Equity

is

bated that that saying

were

a

be adhibita

said to

legi, it

hath bin therein also de-

not so to be understood as thoughe Equity

is

thing owt of the lawe of beside the lawe, or as

were the

if it

Equity of the judge, and not of the lawe, but that the Equity thereby

ment

is

to be taken (as

Equity, in this view, side the law (possibly failed; it is

This

is

is

it is

indeede) to be within the lawe

3 .

not something that the judge brings from out-

from

his

own

discretion) to correct

found within the law and expresses

the position taken by St.

German

its

it

when

it

has

underlying reason.

earlier in the century.

Of

course, the assumption that such a conception of equity would in practice

impose serious

limits

on

judicial discretion

is

questionable at best;

lawyers and judges could be just as ingenious at imagining a

accord with their inclinations as

at

ratio legis in

concluding that equity supports their

views.

know whether the Plowden version or the Hake verwas more widely accepted by practitioners of the period;

It is difficult

sion of equity

to

with the exception of Chief Justice Catline, they do not express themselves

on the subject

of equity as

a

in court

argument.

It

might be argued that the view

moral virtue that corrects the law

is

more

theoretically

compatible with the practice of shaping interpretation to lessen hardship or mischief. In practice, though, under the other view, an inventive

lawyer or judge could just as easily argue that is

a central

reason of the law

to abate the kind of hardship at risk in the case.

Just as in the fifteenth century, the doctrine of the equity of the statute serves in the sixteenth century as a justification for avoiding a

The Common Law Mind

u8

rigid, literal statutory interpretation. It

is

difficult to avoid the

sion, however, that despite the frequent references to is

not

tion.

a

it

impres-

in the reports,

it

doctrine that serves an important analytical or ideological func-

One

does not find in the sixteenth- century reports

much

evidence

of the kind of sharp ideological division over strict and equitable inter-

among Roman lawyers of certain periods or among medieval civilians. And despite the evidence that at least certain

pretation that one finds

of the lawyers are familiar with the writings of Aristotle, the classical rhetoricians, and civilians

to use very

little

those sources.

and canonists, the discussions in the cases put

of the arsenal of arguments and analysis to be found in

CHAPTER

Sir

J.

SIX

Common Law Mind

John Davies and the

G. A. Pocock’s description of the common law mind has

for

more

common common law

than forty years dominated scholarly discussion of the way lawyers of the early seventeenth century understood the

and

its

place in the English legal and political order. Central to his inter-

pretation of the

he

calls the

common

lawyers

s

jurisprudence of that period

is

what

doctrine of the ancient constitution. This doctrine, he ar-

gues, was shaped by the assumptions, first,

that

all

the law in England might properly be called

law; second, that

common

law was

common

common

custom, originating in

the usages of the people and declared, interpreted and applied in the courts; third, that

all

custom was by definition immemorial, that

which had been usage and law since time out of mind, so that any declaration of law, judgment or (with not quite the same certainty) statute,

was

immemorial

The common came

a declaration that its

content had been usage since time

1

.

lawyers,

Pocock contends, “holding that law was custom,

to believe that the

common

law,

and with

it

the constitution, had

always been exactly what they were now, that they were immemorial .” 2

Pocock supports tion,

his thesis

and the mentalite he

about the doctrine of the ancient constitu-

calls the

common

law mind, almost entirdy

with quotations from Sir Edward Coke and Sir John Davies, but he holds that the doctrine and the outlook were widely shared by

common

lawyers of their time:

But by Coke’s time the increasing activity of

monarchy had made

it

seem

to

most

common

nearly sovereign

a

lawyers that

if a

right

y

129

I

The Common Law Mind

3°

was to be rooted .

.

The

.

in

idea of the

custom

...

it

must be shown to be immemorial.

immemorial therefore took on an absolute

oring. ... It ceased to be a convenient fiction

serted as literal historical truth

common

Important

and was heatedly

same lawyers and

3

lawyers in the early seventeenth century certainly

“common

they had Pocock’s

their equally

quently spoke of the

as-

.

did sometimes talk and write in ways that plausibly as suggesting that

col-

prominent

common law in ways

legal

may be

interpreted

law mind,” but those

contemporaries also

fre-

that are hard to reconcile with

the Pocockian interpretation.

At the beginning of the seventeenth century, Pocock argues, the com-

mon

lawyers came to conceive of the

common

law as the

common

cus-

tom of the realm, and the myth of the law’s immemorial antiquity became central to that conception. The strongest basis for this contention is

found in

Sir

identifies the

John Davies’s preface

common law more

lawyer before or since

strongly with custom than any

which he

common

4 .

Common Lawe of England is nothing else but the Common

For the

custome of the Realme; and force of a lawe,

made

to his Irish reports, in

is

a

custome which hath obtained the

always said to be lus non scriptnm; for

it

cannot be

or created, either by Charter or by Parliament, which are Acts

reduced to writing, and are alwaies matter of Record; but in use and practise,

it

can be recorded and registered no where, but in the

memory of the For

a

people.

Custome taketh beginning and groweth

When

this

manner:

and

beneficiall to the people,

position, then

a

reasonable act once done,

do they use

it

is

to perfection in

found to be good

and agreeable to their nature and and practise

it

dis-

againe, and againe; and

so by often iteration and multiplication of the act,

it

becometh

a

Custome, and being continued without interruption time out of mind,

it

And lent,

obtaineth the force of a law.

this

Customary Lawe

is

the

for

the edicts of Princes,

perfect,

and most excel-

make and preserve a the written lawes which are made eyther by or by counsells of Estate, are imposed upon

and without comparison the

Common-wealth;

most

best, to

the Subject before any Triall or Probation made, whether the same

Sir John Davies

be

fit

breed any inconvenience or no. But

will

doth never become

law to bind the people, until

a

and approved time out of mind; during thereby arise no inconvenience, for nient at any time,

consequently

I

had

it

if it

all

lost the virtue

common

of talking about the

had been found inconve-

law

is

“nothing

common

law,

identifies the English

identification

is

else

Common

but the

but he departs from tradition in

common law as common usage the usage or

law."

following an established

is

an important way. Unlike sixteenth-century

mean only

hath been tried

which time there did

and force of a

custome of the Realme,” Davies arguably

describing the

it

Custome

a

had been used no longer, but interrupted, and

it

In asserting that the

always

3

and agreeable to the nature and disposition of the people, or

whether they

mode

I

common lawyers, who in or common custom nearly

custom of the bench and

people as the source of the

an occasionally recurring fiction

several centuries, but in appearing to take this

bar,

Davies

common law. Such an in the common law for

and other

fictions liter-

how the characteristics of the comfictions make the common law “the most

Davies attempts to demonstrate

ally,

mon

law represented in those

perfect,

and most excellent, and without comparison the best” law in the

world. 6 In the fifteenth century, Sir John Fortescue claims that English

customary law

is

does not compare finds it is

it

better than any other nation’s

to be better than statute law because statutes are

known whether

no,” while a

law, but he

favorably to English statutory law. Davies does, and

it

they are

sition of the people, or

it

customary

“fit

imposed before

and agreeable to the nature and dispo-

whether they

will

“custome doth never become

a

breed any inconvenience or law to bind the people untill

hath bin tried and approved time out of mind”

(

Works

2:251).

Davies pursues two distinct lines of argument in praising English cus-

tomary

law.

The

first

and disposition of framed and

holds that law must be appropriate to the nature

a people.

fitted to the

English customary law, he claims,

(

Works

2:255).

^

the English people’s particular nature because they “have

that formeth

course, vides

is

all

their

her

wisedome and experience

web out of her

selfe only).”

(like a

ls

it

fated to

made

their

silke-worme

This argument, of

directed at the advantages of customary law in general;

no reason

“so

nature and disposition of this people ... so as

cannot possibly be ruled by any other law”

owne Lawes out of

is

it

pro-

to prefer English to French or any other national cus-

132

The Common Law Mind

>

tomary

second

law. In his

of argument, Davies suggests that because

line

custom, by definition, does not become law until

approved time out of mind,

it is

bound

a

has been tried and

and incon-

to have fewer defects

veniences than laws instituted without long

Davies finds

it

trial

and experience. 8

kind of wisdom and reason in custom that surpasses

anything an individual or legislature can devise. In extolling the com-

mon

law for

its

reasonableness, he

civil

more reason

and canon law)

qualify

as law.

it

g

for the

After

common

of reason” (Works 2:259). If the

all

mere presence of reason

there are

it is

law

law, that

common

in the

First, the

not likely to match (Works

vantage the lie,

law.

is

is

necessary to

nothing but

no

2:255).

common

a rule

special merit in

common

many

trialls”

wisdom and.reason

Th e common this respect,

law

neces-

that legis-

is

no better

however.

The

ad-

law has over the other systems of customary law

then, in the peculiar

“England having had

law

civil

According to Davies,

“long experience and

than any other nations customary law in

must

“law

reason, there

is

sary to produce customary law ensured a is

minimum

two things that make the wisdom and reason of the

law extraordinary.

lation

reasonable. But he wants to

law than the

common

maxim, appropriated by the

reasonableness; a custom

is its

he himself quotes the standard

all,

law

law definition of customary law

can never attain the status of law unless claim

common

squarely within the

common

tradition. Indeed, part of the

(imported from the

is

a

wisdom and

virtue of the English people:

good and happy Genius from the beginning,

hath beene inhabited alwaies with

a

vertuous and wise people,

embraced honest and good Customes,

full

who

ever

of reason and convenience”

(Works 2:254). 10

Pocock suggests pure sense

in

upon custom, in word than upon the activity of

that “Coke’s emphasis

which Davies uses the

judges in constantly refining the law.”

1

It is

is

less

certainly true that in the

common

law

is

customary law and

is

cerned to draw implications from that conception. In preface, the active agents in the shaping of the

the

first

several pages of his preface to his Irish reports Davies concentrates

the idea that the

the

on

primarily conthis part

of his

common law appear to

be

the wise and virtuous English people. But in the remainder of the pref-

ace

it is

not the people

wisdom, is

gravitie,

not explicit on

labor: the people

preserve

it:

who

get the credit but rather “the great learning,

and constancies of our Judges” (Works this point,

form the

2:261).

Davies

but he seems to have in mind a division of

common

law,

and the judges articulate and

Si?- John

and the Law, which

If therefore Justice,

Justice,

no

ilie,

be so necessary for city,

all

hut

a rule

how

needful it

the service of learned

is

the rules of the Law,

ing, or the course of

if

proceeding

men

cannot possibly stand?

selfe

no man did study the reason of the Law,

memory

or lesson of

persons, times and places, as no fam-

the law, without which Justice if

133

no common-wealth, no kingdome, can stand without

the support thereof;

For

is

Davies

if

.

no man kept

in .

.

in

no man knew the forme of pleadin the law,

the publique Justice in a short time, or

how

what would become of

should the benefit of the

law be derived and communicated unto the people? For as in

a nat-

body the reasonable soule cannot use or transmit any of her

urall

powers, but by speciall organs of the same bodie, disposed and

by nature for every function,

fitted

as the eye to see, the eare to

heare, the tongue to speake, and the like of the rest: so in the

Common-Wealth,

of a

politique

thereof, produceth

no

Law, which

the

effect or operation at^all, but

is

body

the soule

by such of her

Ministers as by art and experience are enabled and qualified for her service.

(

Works 2:275)

In the preface to his Irish reports, Davies writes “to vindicate the use

of English law in Irish courts,” but in The Question Conce?~ning bnpositions, Tonnage Poundage Prizage Customs &c., he writes for

pose— to law in

a

,

,

,

,

vindicate the king’s prerogative

very different

to exalt the

common

light.

12

In the

presents the

situation,

first

law; in the second,

— and

it

a different

does not.

it

suits his

The

pur-

common purposes

technical ques-

tion he sets out to answer in the second chapter of The Question Concern-

ing bnpositions instituted

is

by the

whether the customs duties payable to the Crown were

common

law or by statute. In the course of answering

common law that may lead us to wonder whether his description of the common law in his Irish reports should best be seen as a reflection of the common law mind or this question,

merely

Davies says some things about the

as the effort

the task at hand. the

of an advocate

Much more

power of the king

is

who is making the

at stake in the

best case he can for

impositions debate than

to levy impositions; the broader question concerns

the nature and sources of the king’s authority and

power

in

and the relationship of that authority and power to English In this dispute, Davies

comes down

solidly

prerogative unconstrained by England’s laws. the

common

on the

He

government law.

side of a royal

argues that neither

law nor statutes gives the power to collect customs to the

134

The Common Law Mind

•

Crown; they

arise

from the law of nations.

proposition that “Jus Gentium equal force in

Law ity

all

Kingdoms,

of Nations” ( Impositions

9).

quotes Justinian for the

or the generall

,

for

He

all

Kingdoms had

From

Law

of Nations,

their beginning

of

is

by the

the origin of kingdoms by author-

of the law of nations, Davies not only draws conclusions about the

king’s legal right to duties and impositions; he also draws

more funda-

mental conclusions about the king’s relationship to the laws of England,

both statutory and customary. His authorities on the question of the

England

king’s prerogative and of his relationship to the law of

most without exception, Roman law

many

prerogative in England find that

power support admirably the

authorities.

of the

are, al-

Defenders of the royal

Roman

texts

on imperial

king’s claims of prerogative if “king”

substituted for “emperor.” Indeed they find that civilian jurists their path easier

dom est

by creating the doctrine that

a

is

made

own king-

king has in his

those powers that the emperor holds in the empire ( Rex in regno suo

imperator). Davies defends his position against the charge that the

rules of imperial law he uses as authorities apply only to the

emperor and

not to the king of England by quoting “a learned Civilian”: “Plus habet Rex in Regno

quam Imperator

regnum ad successionem quod non

in imperio, quia

facit

Rex

juris

transmittit

imperator, qui est tantum elec-

tionis, &c.” (Impositions 21). It is

important for those

or to expand

it

at the

who

set

out to defend the royal prerogative,

expense of statute and

common

law, to establish its

origins and authority as independent of any customs of the people or any

parliamentary grant. As in the case of the

time

a royal

ple, there is

power

is

lex regia in

Roman

said to derive, directly or indirectly,

also be

withdrawn. That

pains to claim that the king’s prerogative

is

any

from the peo-

always the possibility that the argument can be

what has been granted can

law,

made

why Davies

that is

at

comes from the law of nations:

Law of Nations was before Kings, for Kings were made by the Law of Nations, Ex jure Gentium Reges originem traxerunt saith Baldus; So Kings were no sooner made by the Law of Nations, but presently the same Law which is the Law of Nature or NaFor

as the

,

.

tions

.

.

.

.

.

did annex this Prerogative to their several Crowns. ( Impo-

sitions 10)

Like the medieval popes and emperors

who wished

to leave

no doubt

about their authority, English defenders of the royal prerogative

fre-

Sir John Davies

J

quently claim that their kings received their authority directly from

means of human

rather than indirectly through the people by is

the point Davies

is

making when he

law.

35

God This

identifies the law of nations with

the law of nature and says that kings are

made by

the law of nations.

Roman

Davies again resorts to the imperial language of

law to

make

the claim that, regarding his prerogatives, the king has absolute power:

“wherein the King hath sole and absolute power merum imperium

mixtum ”

(Impositions n).

At

first,

says Davies,

King had an absolute and unlimited power ( Impositions

25).

by Bracton,

in

a result

In contrast to the medieval

which the king receives

Law

“by the in

all

of Nations the

matters whatsoever”

common

his authority

never has absolute power because he

& non

law doctrine taught

from the

law,

and

as

subordinate to the law,

is

Davies claims that the king had an absolute power in

all

matters before

England had any particular law of its own:

Hereupon by

came due

to the

Government tract,

the

.

.

.

same Law of Nations, Tributes and Customes be-

King or Prince and

all

to maintain

him

these things, namely Property and

and Kings, and Customes, were before any positive

made; then came the positive Law, and limited the whereas by the

power

ited

Davies

is

in

Law of Nations

all

Law

Con-

Law was

of Nations,

the king had an absolute and unlim-

matters whatsoever. ( Impositions 2 4, 25)

quite explicit about the chronology of the development of

the English constitution. At

held in

in his place of

common

first,

by the law of nature,

all

things were

and there was neither king nor subject; then, with the

inauguration of the law of nations, the law of nature was limited and

property was established.

The

existence of property requires the institu-

tion of kings and rulers to protect

the chronology, there

is

it ( Impositions

no law of England, whether statutory or cus-

tomary. There are no legal limits on the king. the king exist not by the law’s operation

voluntary creation this left

is

the

Roman

of,

or acquiescence

positive

his absolute

Law,

in

in,

Any

legal restrictions

on the king but by the

Law

the

is

on

king’s

law that has that effect. That

imperial theory of the ruler’s relation to the law

to the reader’s inference; Davies

By the

24). Until this point in

is

not

explicit:

King himself was pleased

to limit and stint

power, and to tye himself to the ordinary rules of the

common

and ordinary

cases, worthily

and princely, accord-

The Common Law Mind

136

ing to the

Roman Emperour, Dignissimum

ibus confiteri retaining ,

Principe se alletatnm leg-

and reserving notwithstanding in may points

that absolute and unlimited

power which was given unto him by the

Law

of Nations, and in these cases or points, the King’s Preroga-

tives

do

him by

were not granted unto

consist; so as the king’s prerogatives

when

the people, but reserved by himself to himself,

was

positive law

established;

first

and the King doth exercise

dou-

Merum Imperium when

ble power, viz. an absolute power, or

doth use Prerogatives onely, which

a

the

,

is

he

not bound by the positive

Law; and an ordinary power of Jurisdiction, which doth co-operate with the Law, and whereby he doth minister Justice to the people, according to the prescript rule of the positive Law. (Impositions

Davies

power he

is

nice in his choice of language describing the

25)

two kinds of

attributes to the king. In regard to his prerogatives, the king

has an “absolute power

.

.

.

which

is

not bound by the positive law.” 13 In

regard to his power of ordinary jurisdiction, he

may

have “tied” himself

to the positive law, but only in the sense that he will “cooperate” with

not in the sense that he

is

bound by

it,

it.

This distinction of two powers held by the English king, one absolute

and one ordinary, ambassador, in

by no means original with Davies. 14 The Venetian

is

1551, writes

gland exercises two powers dinary and

from

legal.”

1612 to 1628

mon

1 -

Sir

of the English monarchy: “the king of En.

.

.

the one royal and absolute, the other or-

John Dodderidge,

a justice

of the King’s Bench

and among the most learned and distinguished com-

lawyers of the early seventeenth century, late in Elizabeth’s reign

distinguishes between the “absolute” and the “ordinate” king.

16

made

The most famous

English statement of the king’s double power

by Chief Baron Fleming

in 1606

power of the

in deciding Bate 's Case (or the

“Case of Impositions”) in the Court of Exchequer:

The

King’s power

several lawes

is

double, ordinary and absolute, and they have

and ends. That of the ordinary

is

for the profit of par-

ticular subjects, for the execution of civil justice, the

meum; and

this

courts, and

by the

common

law:

is

determining of

exercised by equitie and justice in ordinary

civilians

is

is

nominated jus privatum and with

and these laws cannot be changed, without

us,

parlia-

ment; and although that their form and cause may be changed, and interrupted, yet they can never be changed in substance.

The

ab-

Sir John Davies

solute

power of the King

is

not that which

is

converted or executed

to private use, to the benefit of any particular person, but

that

which

is

applied to the general benefit of the people and

populi; as the people

the body, and the

is

King

is

and

most properly named Policy and Government; and

is

constitution of this

which direct only

at the

body varieth with the time, so varieth

solute law according to the

wisdome of

the King, for the

good; and these being general rules and true as they

done within these

rules are lawful.

only

is

salus

common

is

rules,

is

the head; and this

power

guided by the

137

law,

as the

this ab-

common

are, all things

1

Statements by royalist lawyers in support" of the king’s prerogative agree that the king has both an ordinary and an absolute power, but they

vary in the extent of the claims made for both kinds of power. Davies’s statement of the doctrine of the two powers does more to subordinate the law to the king than does Fleming’s judgment.

own wisdom

ing to Fleming the king’s

do within the scope of rules are lawful.”

his absolute

But Fleming

dinary power, the king

is

true that accord-

It is

the only limit

power:

“all

things done within these

also suggests that in the exercise of his or-

subject to the dictates of the

is

on what he may

common

law as

applied by the ordinary courts and that he cannot change that law with-

out parliament. There

is

no suggestion

in Fleming’s

judgment that

ordinary power the king “cooperates” with the law because

him

to

do

so,

with the implication that

if at

it

in his

pleases

some point he should no

longer be pleased to follow the law he would be within his rights to act

contrary to

This

is

it.

precisely the implication to be

drawn from Davies’s descrip-

tion of the king’s ordinary power: the king

is

law even in the exercise of his ordinary power. In is

fact, the

permitted to exist only by the king’s grace: “the King doth suffer the

customary law of England to have her course” ( Impositions assign to the

common

law

a

Edward Coke, who

stoutly defends the king’s prerogative, attributes to that “the

common

remaines

still.”

also it

law has no controler in any part of

count of parliament; and

26).

This

is

to

very different role in English constitutional

jurisprudence from that which

it

common common law

not bound by the

if it

on occasion

when he it,

asserts

but the high

be not abrogated or altered by parliament,

IH

Davies’s attempt to separate the king’s prerogative from the

common

The Common Law Mind

138

and

law,

common

his claim that the

king’s permission had

law’s existence

any, support

little, if

depends upon the

lawyers of his day, even from those like Bacon and Ellesmere, ally

Case expands at ,

some length on

usu-

Crowne and sometimes called,

.

the King, .

sometimes

it is

Lex Regia.

.

.

the nature of the

Lex Anglicanae

called

it is

When

.

.

Chamber concerning

common

Calvin's

law and what

common law into three aspects: “When it

encompasses and divides the

respects the church,

is

who

could be counted on to support the king’s interests. Lord Chancellor

Ellesmere, in his speech in the Exchequer

it

common

from the leading

it

called

.

.

.

When

respects the

it

Lex Coronae.

.

common

respects the

.

.

and

.

subjects,

.

.

it

Lex TerraeL 19

Ellesmere’s successor as lord chancellor, Sir Francis Bacon, on the oc-

casion of the swearing in of Sir

Thomas Chamberlain

as a

judge on the

King’s Bench, shows exasperation at the suggestion that the king’s preV,

rogative

is

not based on the

common

law:

The Lord Chancellor took occasion to enlarge himself much upon the Prerogative and how near it was akin and of blood (as he termed it)

to the

common

law; saying further, whatsoever

lawyers might prattle, that tion of the

To add one

common

was the accomplishment and perfec-

it

law 20 .

final authority, Sir

author of what

is

some unlearned

Henry

Finch, a sergeant-at-law and the

arguably the most distinguished English legal treatise

of his time, takes what seems to be the standard of the relationship of

common

common

lawyer’s view

law and prerogative in the early seven-

teenth century: It

must be remembered that the King’s prerogative stretcheth not

to the doing of any wrong; for

the

common

much

law,

is

as

it

groweth wholly from the reason of

were

a finger

differing in fashion (as the head

proportion) that it

and

it

if

you

them

set

of that hand, although so

and body can never be of one

in parallels together

to be law almost in every case of the King, that

a subject; yet for all that

common

law

is

their contrary course

shall find

law in no case of

they are not two, but one law: only the

primnm

as the

is

you

mobile

,

which draws

all

the planets in

21 .

Davies also uses planetary imagery in his discussion of the prerogative

and the

common

primum

mobile:

law, but for

him

the king, not the

common

law,

is

the

Sir John Davies

The Government and

ordering of Traffique, Trade, and

merce, both within the Land and without, doth rest in the

wherein the King

as a principall Prerogative,

which carrieth about

mobile,

Course, and yet doth suffer their divers

all

all

all

is

139

ComCrown

Primum

like to a

the inferior Spheres in his superior

the Planets underneath

him

to finish

and particular courses; or rather he doth imitate the

Divine Majesty, which in the Government of the world doth suffer things for the most part to passe according to the order and course

of Nature, yet

many

times doth show his extraordinary power in

working of miracles above Nature.

And

truly, as the

on the one

to have her course

mit, and give

way

King doth

suffer the

customary

side, so doth^the

Law of England

same law

yeeld, sub-

to the King’s Prerogative over the other.

( Imposi-

tions 26)

common

two pictures of the

Davies’s

law — the one found in his Irish

reports and the one drawn in The Question Concerning bnpositions — are

not entirely incompatible.

not inconsistent to praise the

It is

law as the most perfect law in the world and

by the king’s sufferance and

is

still

hold that

it

common

exists

subordinate to his prerogative. But

only

it is

a

common law mind, if by that phrase one means the understanding most common lawyers in the early seventeenth century have about the nature of the common law mistake to choose Davies as

and the place

it

a

representative of the

holds in English jurisprudence.

Davies because he

extreme in

is

mistake to choose

common law in the Irish that the common law is the

his praise of the

reports and uncharacteristic in his insistence ancient,

It is a

immemorial custom of the people and

seems to find in describing the

common

in the significance

law that way.

He

is

he

extreme,

too, even

compared

to other leading royalist lawyers, in seeking to di-

vorce the

common

law from the king’s prerogative and in making the

very existence of the

To

mon

say that Davies

law

is

common is

law subject to the king’s sufferance.

extreme

in the

not to suggest that one

views he expresses about the com-

may

not find in the

ature and reported cases of his day examples of says.

Pocock

is

common

many

law

liter-

of the things he

not imagining things when he finds claims about the com-

mon law in Coke’s writings that seem of a piece with Davies’s description of the common law in his Irish reports. But when one looks at the entire corpus of Coke’s writings on the law and of his judicial opinions, the portrait

of the

common

law that emerges

is

quite different

from the one

140

§

The Common Law Mind

Davies paints in the preface to his Irish reports. Similarly, although one

may

find references to the antiquity of the

mon

law as the

common custom

common

law, or to the

com-

of the realm, scattered through the sev-

enteenth-century case reports, one

who

systematically reads

all

these re-

ports and the legal treatises of the time cannot avoid the impression that

common law are not central to the of the common law. Most particularly,

the things Davies emphasizes about

leading

common

lawyers ’s vision

Davies and Coke are unusual in the extent to which they

worthy

qualities of the

common

law to

its

tie

the praise-

antiquity or to immemorial

CHAPTER SEVEN

Sir

Edward Coke and His Contemporaries

The Antiquity of the Common Law J.

G. A. Pocock writes: If

the idea that law

is

custom implies anything,

it is

that law

constant change and adaptation, altered to meet each

ence in the

life

of the people; and

theory more likely to lead to law.

Yet the fact

is

in

experi-

might seem that there was no

a historical

conception of the nature of

common lawyers, holding that law was that the common law, and with it the con-

that the

custom, came to believe stitution,

it

new

is

had always been exactly what they were now, that they

were immemorial: not merely that they were very were the work of remote and mythical

were immemorial

old, or that they

legislators,

but that they

in the precise legal sense of dating

from time be-

yond memory — beyond,

in this case, the earliest historical record

that could be found. This

is

myth of

the doctrine or

the ancient

constitution, which bulked so large in the political thought of the

seventeenth century

1

.

Sir

Edward Coke

mon

law

is

is,

like Sir

John Davies, anxious

to claim that the

the best law in the world, and he ties

its

com-

excellence to

its

antiquity: I

say to thee (gentle reader) next to thy duty and piety to

his anointed, thy gracious Sovereign,

ents, yield

and thy honour to thy par-

due reverence and obedience to the

England: for of all laws

(I

common

laws of

speak of human) these>are the most equal

and most certain, of greatest antiquity, and beneficial

God, and

and easy to be observed. ...

least delay,

If the

and most

ancient laws of this

142

The Common Law Mind

$

noble island had not excelled

all

others,

it

could not be, that some of to say, the

Ro-

mans, Saxons, Danes, or Normans, and especially the Romans,

who

the several conquerors and governors thereof, that

(as

they justly may) do boast of their

them might) have

altered or

civil laws,

changed the same

is

would

every of

(as

2 .

In these passages, Coke, following Fortescue, asserts that the

common

law has survived a thousand years of conquests by other peoples without

having been changed in any way.

He

compelled to admit that

is

it

has

been modified since the time of William the Conqueror, but he argues that such changes have

Out of

all

been for the worse:

these books and reports of the

common

law, I

have ob-

some time by acts of parliament, and some time by invention and wit of men, some points of the ancient common law have been altered or diverted from his due course, yet in revoluserved that albeit

tion of time, the

same

(as a

most

skilful

and

faithful supporter of the

commonwealth) have been with great applause,

many

inconveniencies, restored again

for the avoiding of

3 .

common

Since Coke’s belief in the immemorial antiquity of the

has

come

law

to be regarded as a central part of the seventeenth-century

common law mind,

let

us examine the extent to

the leading lawyers of his time.

antiquity of the

common

It is

which

it

was accepted by

certainly true that references to the

law are scattered through the case reports of

the early seventeenth century, although their concentration in cases re-

ported by Coke and their relative paucity in other early seventeenth-

century case reports the cases actually

raise the question

whether the lawyers and judges

made them or whether most of them

in

are the product of

common law 4 It is not un-

Coke’s

own preoccupation with

known

for a lawyer arguing a case to raise doubts about the unaltered

antiquity of the

common

law.

the age of the

.

For example, Sherley, Serjeant, argues in

The Case of Modus Decimandi that

judgments and precedents

in the

time of Ed.

2

E.

1.

H. John, R.

and more ancient are not authorities or precedents to be now lowed, unless that they concur and agree with the law, and

experience and practice at this day; for (and

some of them not

extant) have

many Acts

fol-

common

of Parliaments

changed the ancient laws

divers cases: and desuetude has antiquated and time and

hath taken away divers others.-

1

in

custom

Edward Coke

Sir

In his speech in Calvin's Case, a

appears not at

all

much

changed over time but

also that

it is

Lord Ellesmere,

greater lawyer,

reluctant to admit not only that the desirable that

it

H3

common

had done

so.

law has 6

Upon this reason it is, that some lawes, as well statute lawe as common law, are obsolete and worne out of use: for, all humane lawes are but leges temporis:

and the wisedome of the iudges found them to

bee unmeete for the time they lived essarie for the time

humanae nascuntur, .” ortum, statum, et occasum and upon

this rule also,

although very good and nec-

And

wherein they were made.

saide “leges

By

in,

therefore

it is

vigent, et moriuntur, et habent

this

reason

that often

it is,

it is

that

auncient lawes are changed by the interpretation of the judges, as well in cases criminall as civile. Later, in

one of

common

lawes are soe

Ellesmere laments that “the auncient

his law tracts,

much

neglected, contemned, and almost

obsolete and out of use that for the most part

but the shadow of the auncient

Common

we haue not the substance

lawes.”

s

Although

instances his attitudes toward the changes time has

mon

law

may

differ,

he

is

grown

wrought

in these in the

two

com-

emphatic in both that the law has greatly

changed.

common

References to the antiquity of the

made tury.

law are also frequently

in the parliamentary debates of the first three decades of the cen-

This

is

especially true of the

references are

made without

Commons

Debates of 1628. Most such

elaboration as assertions that particular dis-

puted liberties of the subject have long existed in English law and not affirmations that the

from remote

common

law as

a

whole has continued unchanged

antiquity. Occasionally, however,

more sweeping claims are Sir Dudley Digges, one of

made about the antiquity of the common law. four members appointed by the Commons to speak the Lords

on April

ment without

7,

1628,

on the question of the

at a

conference with

legality of imprison-

the assignment of cause, asserts that

the laws of England are grounded

books, consisting

much

on reason more ancient than

in unwritten customs, yet so full of justice

and true equity that your most honorable predecessors and ancestors

propugned them with

a

as

nolomus mutare and so ancient that

from the Saxon days, notwithstanding the

,

injuries

time, they have continued in most parts the same, as

and ruins of

may

appear in

The Common Law Mind

H4

old remaining

monuments of the

laws of Ethelbert, the

tian king of Kent; Ina, the king of the

West Saxons;

Mercians; and Alfred, the great monarch.

.

.

.

And

first

Chris-

Offa, of the

here,

my

Lords,

by many cases frequent in our modern laws strongly concurring with those of the ancient Saxon Kings,

more

might,

I

time were not

if

precious, demonstrate that our laws and customs were the

same. 9

Despite the Commons’s designation of Digges to speak for conference, the is

it

would be

a

common law survived

it

at the

mistake to presume that his contention that largely

universally believed by the

unchanged from the days of the Saxons

common

House of Com-

lawyers in the

Commons

mons. Another of the four speakers representing the

at the

John Selden (1584-1654), whose task is “to insist on the remedy when the law is violated, and shall cite the precedents and anconference

is

member who

swer the objections against them.” 10 That he should be the is

given the task of searching out the legal precedents and then of pre-

senting and defending his peers

them

to the lords shows

something of the respect

have for his legal learning.

Selden, like

many

other speakers in the 1628 Parliament, occasionally

claims antiquity for a particular legal rule, but in a series of works published

between 1610 and 1618 he demonstrates that the myth that the

common

law survived unchanged from pre-Norman times to the seven-

teenth century

is

historically unsupportable.

although particular

common

11

Selden’s position

law rules survived the

is

that

Norman Conquest

unchanged, many other rules were afterward added or modified. For example, in his Jani Anglorum Facies Altera (1610),

a

work

in

cusses the traces of the laws of the Britons, Saxons, and

which he

dis-

Normans

that

can be found in English law, he writes: “For the times on

Normans entrance rights of

are so full of new laws, especially such as belong to the

Tenancy or Vassalage; though other laws have been

enough kept up from the time of the date.”

this side the

Saxons,

carefully

and perhaps from an

earlier

12

In 1616 Selden prepared a

new

edition of Sir

John Fortescue’s De

Laudibus Legum Anglie, the direct authority for Coke’s claim in the prefaces of his Second and Third Reports that the eral foreign

common

law survived sev-

conquests unchanged. In his notes thereto, Seldon rejects

Fortescue’s history:

Edward Coke

Sir

But questionless the Saxons made

H5

mixture of the British customes

a

with their own; the Danes with old British the Saxon and their own; ,

and the Normans the

The

like.

old laws of the Saxons mention the

Danish (Danelage) the Mercian law (Mercenlage) and the Westsaxon law (Westsaxonlage) of which also some Counties were governed by

some by

one,

More

another.

'

important, Selden goes on to reject the premise that the excel-

lence of laws depends

But

1

in truth,

upon

their antiquity:

and to speak without perverse affectation,

all

general are originally equally ancient. All were grounded

and no Nation was, that out of

ture,

nature being the same in

same.

.

.

.

all,

it

laws in

upon na-

took not their grounds; and

the beginniil^ of

all

laws must be the

But the divers opinions of interpreters proceeding from

mans reason, and the several conveniencies of dihave made those limitations, which the law of Nature

the weakness of vers States,

And hence

hath suffered, very different.

which have come

all

that those customs

is

out of one fountain, Nature, thus vary from

and cross one another tions, as divers

it

in several

men, have

Commonwealths.

their divers collections

and so make their divers laws to grow to what they

we have now

and the same root.

Infinite laws

on D. years

Then were many

since.

.

.

.

Divers

Na-

and inferences, are,

out of one

that were not thought

that D. years before had

no

being, and less time forward always produced divers new; the be-

ginning of all here being in the

by nature being

civil

first

creatures

peopling of the land,

grew

to plant a

when men

common

society.

This rationally considered, might end that obvious question of those,

which would say something against the laws of England

they could. ’Tis their

mon

laws

trivial

Questionless

all

a State in that land which the ,

ural laws limited for the

limitations have been

demand, When and how began your com-

its fittest

in like kind as the laws of

answered by affirming, when and

other States, that

When

there

was first

common law now governs: then were

from thence, increased, are;

nat-

altered, interpreted,

although perhaps, (saving the meerly

immutable part of nature) now,

in regard of their first being, they

are not otherwise than the ship, that first

is,

conveniency of civil society here, and those

and brought to what they

of the

if

by often mending had no piece

materials, or of the house that’s so often repaired, ut nihil

The Common Law Mind

146

ex pristina materia supersit

counted the same

still.

.

which yet (by the Civil law)

,

honor or

Little then follows in point of

.

.

to be ac-

is

excellency specially to be attributed to the laws of a Nation in general,

by an argument thus drawn from difference of antiquity, which

in substance

is

Those which

best

name of the

alike in

Neither are laws thus to be compar’d.

the state wherein they are, clearly deserve the

fit

best laws. 14

Glenn Burgess attempts lier

all.

to

minimize such statements

works, arguing that taken as

model” of English

legal history,

that English laws are derived tinuity.

model”

1

Burgess provides

'

is

a

whole

his writings

support

a

which includes Gothicism

“standard

(the belief

from the Saxons), immemoriality, and con-

little

persuasive evidence that his “standard

among common

indeed standard

in Selden’s ear-

lawyers of the early seven-

teenth century. His proofs are largely limited to the later writings of

John Selden, but the passages on which he Selden accepted the “standard model.”

relies

He

do not suggest that even

pulls together three passages

Ad Fletam Dissertatio, saying that they “form a very neat sketch of English common law seen as originating among the customs of the Saxfrom

ons and having

a

continuous history therefrom

(in spite

of subsequent

invasions and conquests).” 16

The Anglo-Saxon

invaders of England used neither this [the

Theo-

dosian Code] nor any similar code, but only their native Germanic

customs, differing in this respect from the other northern invaders

who

penetrated farther south.

About

the time

when Lothair and

his successors

introduced the law

of Justinian into public government, or just after the Anglo-Saxons, the

Danes and the Normans had

in succession,

during

a

period of

about 740 years, used their own laws (/>., our English common law) without any Roman admixture, then the imperial law, in the form of the

Codes of Theodosius and

Justinian,

was brought into England

where previously they had been almost completely unknown.

There

are

two reasons why the

own and quoted the reign of

with

Edward

it,

III]

civil law,

had no greater

however mixed with our

effect in this period [before

of its public use by our lawyers.

unconcealed aversion which our ancestors had to

it,

One

so far as

it

is

the

con-

Sir

cerns principles of government. in

which the English or

faithfulness to

as

common

other

147

the remarkable esteem

is

law was held, and our constant

something immemorially

fitted [antiquitate

adap-

the genius of the nation. 17

tata] to

Nothing

mon

it

The

Edward Coke

in these passages suggests that

Selden believes that the com-

law originated with the Saxons and has a “continuous history,” or as

Burgess describes

it

earlier, a

“constant unbroken evolution” thereafter. ls

Normans in succession used their own laws for a long period before Roman jurisprudence was introduced into England.' To say that each used its own

To

the contrary, he writes that the Saxons, the Danes, and the

1

'

to imply nothing about transmission of legal ideas,

laws in succession

is

rules, or practices

from the Saxons to the Danes to the Normans.

Burgess appears to be misled in his reading of Fleta?n partly tate

by the

translator’s

The

way the common lawyers use

20

is

the

word “immemorial.”

,

The word “immemorial”

in the law implies this

paradigm usage “immemorial” means only

“a

unbroken evolution .” 21

common makes

it

He

in usage. After defining

lose their

Selden and

in its

rules in constant

custom

Coke

custom

as “a law or

which being established by long use and the consent of is

daily practised,” he adds, “and for usage,

the efficient cause, or rather the

common

body of

clear that he, at least, does not have an understanding of

our ancestors, hath been and

scription

and contends that

provides, however, not a single example of a

would permit any gaps

is

an unbroken usage

lawyer giving that meaning to the word. Sir Edward

right not written

that

Selden’s antiqui-

non exstat memoria hominum not antiqui-

from time beyond memory. Burgess denies

that

Ad

Latin phrase normally used in the law to convey the idea of im-

memorial usage or custom .

unhappy rendering of

passage from

adaptata as “immemorially fitted” and partly by his evident misun-

derstanding of the

tas

this

life

of both; for custom and pre-

being if usage fail

many

,

of his contemporaries certainly believe that the

law has been in constant evolution over the centuries, but they

do not attach that belief

to the notion of immemoriality. In

view of the

— that many prominent common lawyers of the period recognize that the common law has undergone substantial change over the centuries — it is inaccurate to define the common la\y mind in terms of a belief in the unchanged, immemorial antiquity of the common law. evidence

The Common Law Mind

148

The Common Law, Custom, and Reason Some

leading lawyers, like Coke, have a great deal to say about both

time of usage and reason in their discussions of the nature of the com-

mon

law.

Others, like Sir

Henry

Finch, mention both elements but de-

vote their attention almost entirely to the element of reason. like Sir Francis

Bacon, show no interest in the age of the

Still

others,

common

law.

Except for those of Coke and Davies, the theoretical writings about law concentrate on the element of reason in the

time of usage. Even though reason

its

ments

is

common

law rather than on

one of the two necessary

is

no evidence

in the

rate discussions of the relationship

between the

common

for proving custom, there

ele-

sometimes elabolaw and reason

works of Finch, Dodderidge, Bacon, or Ellesmere that the atten-

in the

tion given to the idea of reason have anything to do with a perceived

need to prove the elements of custom. It

may

common Book

be that the

common

lawyers ’s association of reason with the

law — an association made from the time of the earliest Year

cases

— stems in part from a

tomary law and from the took over from

civil

tests for valid

customs

and canon law doctrine. But the widespread me-

dieval association of the

common

law with reason can as easily be based

on the standard medieval theological and is

based on the classical tradition, that

is

based on reason. It is likely

the early

all

common

who

juristic view,

in the

is little

and fourteenth centuries emphasize the

common

when Stonore announces

There

Chief Justice Stonore and the el-

law do so because they are trying con-

common

sciously to establish the customary validity of the

law. Instead,

that “ley est resoun,” he seems to be proclaim-

ing the essential nature and character of the universal medieval assumption that

more

in turn

law — not just customary law —

lawyers’s preoccupation with reason.

in the thirteenth

ement of reason

the

which

that both of these strands of thought mutually reinforced

textual support for the proposition that

others

common law as custhat the common law

conception of the

all

law

is

common

law based on the

based on

reason.-”'

When

theoretical of the seventeenth-century legal writers turn their

attention to the element of reason in the are explicitly based

rather than

on the

common

classical, scholastic,

law, their discussions

and

civilian traditions

on an understanding that they need to prove the

law’s reasonableness in order to establish

it

as

custom.

common

Sir

To make

common

century J.

these points

not to advance

is

law mind entirely

H9

model of the seventeenth-

a

odds with the one suggested by

at

G. A. Pocock. Coke and Davies certainly write passages that suggest

common

that the conception of the

law

immemorial custom

as

common

to their understanding of the essence of the

Year Books also contain is

Edward Coke

a series

and long usage.

common

possible to hold both ways of looking at the it

seems most

common law common lawyers

to conceptualizing the turies

and that the

two

likely that

critical

The medieval

common

of statements in which the

identified with ancient past practices

contradiction, but

law.

is

logically

It is

law,

law

without any

different approaches

existed side-by-side for

many

cen-

tended to gravitate to one view or

the other. This does not prevent a lawyer with one basic orientation

from occasionally speaking of the other orientation. writes that “the

I

take

it

common

common

that this

khv in the language of the

what

is

law of England

a

is

is

happening when Finch

law used time out of mind,

or by prescription throughout the realm” and then proceeds with an

common

elaborate examination of the nature of the gives

no attention to the length of its use or

Only

Christopher

St.

common

scription of the

German

is

largely unsuccessful in

common

Commons

in

To

at a de-

roles

is

found not in

Thomas Hedley

a

law case or

to the

House

1610T The key to Hedley ’s linkage of custom and rea-

to be found in the idea of “tried reason.” Early in his speech,

Hedley considers and law.

effort. In

law in which both custom and reason play

but in the famous speech of

legal treatise

one such

most successful attempt

complementary and equally important

is

24

law are compatible. In the sixteenth century,

the seventeenth century perhaps the

son

antiquity.

rarely does a lawyer feel the need to demonstrate that both con-

ceptions of the

of

its

law in which he

say that the

rejects several possible definitions of the

common

more correct than saying reason because

definition because not

that the

common

profitable for the

law

is

merely whatever the judges

that the truth

is

whatever the jury

be more correct to say that the

ceedings 2:173). It rnight

common

law

all

all is

law

reason

is is

reason, but this law. It

is

is

common will

wills

common

is

(

no

Pro-

law

is

not an adequate

even more correct to say

reason approved by the judges to be good and

commonwealth, but

statute laws are also reasonable

and good and profitable for the commonwealth, and yet neither the judges nor even the king could

Some might

suggest that

it is

make them

laws without the parliament.

the parliament that gives

form and force to

150

the

The Common Law Mind

>

common

law,

but that has matters backward: the parliament has

power from the common law

{Proceedings 2:174).

The proper

Hedley concludes, gets back to the idea of reason;

it

or the quintessence of reason”

The

can try reason

(

Proceedings 2:175).

its

definition,

“was tried reason, only thing that

is

human wisdom, learning and knowledge, and from whom all human laws receive their chiefest strength, honor and estimation. Time is wiser than the time,

which

is

the trier of truth, author of all

judges, wiser than the parliament,

Hedley proffers

when

time

his

way wiser than

conception of the

common law as

the doctrine of binding precedent

foothold in English jurisprudence.

peers are elaborating conceptions of the

common

elite.

tried reason at a

beginning to gain

is

time, too,

It is at a

reason and wisdom of the professional

the wit of man.

when

a

several of his

law as the

artificial

Hedley takes aim

at

both

tendencies:

And

if a

judgment once given should be preemptory and trench

succession to bind and conclude the law in that point or to vary

all

from

in

future judges from examining it,

common law could

then the

never have been said to be tried reason grounded upon better rea-

son than the statutes, for

The

wisdom

then should be grounded merely upon

3

reason that serves as the ultimate ground of the

be proven to be real by stuff

To

and no part of the say that Hedley ’s

tempt to build an

come

or 4 judges, which must needs of the parliament. {Proceedings 2:178-79)

the reason or opinion of

short of the

it

“trial

of time”; otherwise,

common is

the

law” {Proceedings

common

“it is

law must

but counterfeit

2:178).

most successful seventeenth- century

intellectually coherent theory of the

of the ideas on long usage, custom, and reason

is

common

at-

law out

not to suggest an ab-

sence of loose ends in his theory. For example, he at some points seems

common law with custom and at deny that the common law is custom. He

to identify the

others emphatically

seems to

defines the

common

law as “a reasonable usage, throughout the whole realm, approved time

out of mind in the king’s courts ... to be good and profitable for the

commonwealth” and,

tom of

a little later, says that

“the

common

law

is

the cus-

the realm approved in the king’s courts” {Proceedings 2:175,

Yet he also says, “I would not be mistaken, as though

I

meant

x

^ 2 )-

to con-

Sir

found the

common

Edward Coke

much

law with custom, which differ as

reason and bare precedents” ( Proceedings

l

5l

as artificial

2:175).

common law as custhe common law with

Part of his reluctance unequivocally to define the

tom

is

explained by his desire to avoid confusing

local customs:

Customs

and particular places,

are confined to certain

by

triable

the country, but their reasonableness or unreasonableness by the

and precedent,

judges, to be taken strictly according to the letter

and therefore admits small discourse of

art or wit. {Proceedings

2:

75-76) In distinguishing particular customs

and

by the country, Hedley

triable

on the grounds is

that they are local

merely making

a

his colleagues (for

example,

Coke and Finch)

that does not suggest that the

common

law

number of

More

interesting

is

wit,”

which the

make and

not customary in nature.

common

law,

which

broadly and even extended by equity), they leave ercise of “art or wit”

also

because particular customs are

his suggestion that

to be taken strictly (unlike the

is

point that any

is

to be interpreted

little

scope for the ex-

by lawyers and judges. 26 This “discourse of

common

law requires lawyers to engage

what Hedley,

earlier in the

Just what he

means by

same passage,

appears to be

refers to as “artificial reason.”

either of these terms he does not spell out, al-

though there are clues that what he has

Edward Coke’s famous

in,

art or

in

association of the

mind

is

closely linked to Sir

common

law with

artificial

reason. Because this and other important elements of Hedley ’s theory of

the

common

law appear to reflect the teaching of the

much more emi-

nent legal figure, perhaps the most productive approach to understanding

some of

the

more obscure

parts of

Hedley ’s discussion

is

to try to

understand Coke. 2 It is

hazardous to attempt to systematize Coke’s jurisprudence; con-

sistency and organization are not writer. Still,

it is

run throughout

among

his strengths as a thinker or

possible to discover fundamental ideas and themes that his

work, even

if it is

says to be consistent with those ideas

not possible to show everything he

and themes.

To understand Coke’s pronouncements on the nature of the common law, one must understand how he thinks the common law fits into the fabric of English law as whole. Part of the

enough: Coke repeatedly makes

a

answer to

this question

is

clear

three-part division of English law:

!

The Common Law Mind

52

common law, statutes, and

customs. 28

standard division of English law

law of England

parts;

i,

may be found

in his discussion of Little-

term “common law”:

ton’s use of the

The

A representative example of Coke’s

is

divided, as hath beene said before, into three

common law, which is the most generall and ancient law

the

of the realme, of part where of Littleton wrote; parliament; and

2,

statutes or acts of

particular customes (where of Littleton also

3,

maketh some mention).

tome of the realme,

say particular, for

I

it is

part of the

be the generall cus-

if it

common

law.

(Coke, Institutes

1:115b)

This division

den

in the

no invention on the part of Coke;

is

it is

reported by Plow-

middle of the sixteenth century.

To understand Coke’s jurisprudence, one next needs to know as nearly as possible just what Coke understands the common law, customs, and statutes to be and what their relationship is, one with another. The first thing to be learned from the passage just quoted is that Coke is careful to distinguish the common law from custom. When Coke speaks of custom, he means not the the

common

Kingdom

1:110).

local, special

customs derogating from the

law: “but a

law,

custom cannot be alleged generally within

of England; for that

This has always been the

word “custom.”

common

is

the

common

common

law” (Coke,

Institutes

lawyer’s standard usage of the

When one finds it unmodified in the Year Book cases,

in the reports of the sixteenth

or

and seventeenth centuries, the reference

always to local custom and not to the

common

is

law.

Apparently there was developing, in the early seventeenth century,

some looseness by the bar in the use of this terminology, however, for not only does Coke remark with considerable asperity on several occasions that

it is

improper to

leading lawyers

plead that there is

make is

a

the

allege a

same

custom throughout the realm, other

point. For example, Finch writes: “For to

custom among merchants throughout the realm

not good, inasmuch as that which

common

law,

is

.

current throughout the realm,

.

.

is

not custom.” 2 These remarks by Coke and Finch appear '’

to be directed only at getting lawyers to use the correct legal jargon, not at

making

a

substantive point about the nature of the

instruct lawyers not to say the

words

“a

common

law.

To

custom used throughout the

realm” because the proper way to make that allegation

is

to say that “the

Sir

Edward Coke

$

153

common law holds this” seems tacitly to agree, however, that the common law really is the common custom of the realm. But do Coke, Finch, and the other common lawyers of their time really conceptualize the common law as custom? For the common lawyers, just as for the civilians, the

tion.

The Year Book

concept basic to custom

discussions of local

is

that of prescrip-

custom focus on the prescrip-

elements of time and usage. 30 In the second half of the fifteenth cen-

tive

tury, Littleton

is

explicit

about the need for proof of the prescriptive

elements of custom:

And

note, that

no custome

hath bin used by

title

is

to bee allowed, but such custome, as

of prescription, that

is

from time out of

to say,

minde. But divers opinions have beene of time out of minde, &c.

and of title of prescription, which

Coke,

in

commenting on

one in the

is all

law.

this passage, distinguishes

31

between prescrip-

tion and custom:

Prescription

by the is

is

a title

law. ... In the

for the

taking his substance of use and time allowed

common law a

prescription,

most part applied to persons.

local, is alleged in

.

.

.

And

a

which

is

personal,

custome, which

is

no person, but layd within some mannor or other

place. (Coke, Institutes 1:113a, 113b)

He

goes on to say what was

common

to customs and prescriptions: “But

both to customes and prescriptions, these two things are incidents inseparable, viz. possession or usage, and time. Possession qualities:

it

must be long, continual, and peaceable

”

must have three

A little earlier in the

same work he describes the prescriptive elements of custom different language:

“Of every custome

and usage; time out of minde,

(as shall

there be

two

common

law.

His

uity” of that law.

that

Coke

is

a

”

(Coke, Institutes

1:110)

preoccupied with the age of the

legal writings are filled

On

essential parts, time

be said hereafter) and continuall

and peaceable usage without lawfull interruption

There can be no doubt

in slightly

with references to the “antiq-

very few occasions he also uses the traditional

formulas for alleging time of usage in describing the

common

law.

32

perhaps the most striking of such instances he writes: That by like time there had been writs of assise and other original writs returnable into the King’s courts, which (seeing they be, as

In

The Common Law Mind

*54

Justice Fitzherbert saith in his preface to his

book of Natura Bre-

vium, the rules and principles of the science of the manifestly prove that the

out of mind of

man

common

law)

do

law of England had been time

before the conquest, and was not altered or

changed by the Conqueror. {Reports

The

common

3:vi—vii)

however, that Coke only rarely uses the traditional formulas

fact,

common law, but still very common law, suggests that his

customs when he refers to the

for alleging

frequently alleges the antiquity of the

common law is not good custom. What he is

interest in the age of the

directed at proving the

common law to be the common law’s superiority

interested in proving

sense that

it is

better or

Whether Coke

more

to other kinds of law

it,

common

law

is

common

superior to stat-

one of the most disputed aspects of Coke’s

jurisprudence and merits a brief discussion. There literature

is

under some circumstances, can overturn them

or declare them to be void

growing

in the

excellent than other kinds of law.

also believes that the

utes in the sense that

— superiority

is

is

and

a large

still

on Coke’s understanding of the relationship between

law and statute, fueled by the fact that Coke says, in different

times and places, things on the subject that appear difficult to reconcile.

3 -

Scholarly disagreement on the subject often begins with a discus-

how

sion of

Coke’s famous statement in Dr. Bonham's Case relates to

other statements of his that have sometime been read as implying legislative

And

supremacy. In the famous Bonham's Case passage, Coke writes: it

appears in our books, that in

will controul

many

cases, the

common

law

Acts of Parliament, and sometimes adjudge them to

be utterly void: for when an Act of Parliament

is

against

common

right and reason, or repugnant, or impossible to be performed, the

common

law will controul

it,

and adjudge such Act to be void.

{Reports 8:118a)

In a second version of the case, statutes are

any

man

made

Coke

is

reported to have said “that

against law and right, and so are these,

judge in his

own

cause

.

.

.

that this

is

a

if

any

which makes

void statute, for

it is

im-

pertinent to be observed.” 34 In contrast to the Bonham's Case dictum, in the part

4 of

his Institutes

tion of the parliament for

Coke

asserts that “of the

making of laws

transcendent and absolute, as

it

power and

in proceeding

by

jurisdic-

Bill, it is

so

cannot be confined either for causes or

persons within any bounds” (Coke,

Institutes 4:36).

Sir

Some

distinguished scholars,

limit

its

see in

Coke understands

the

law to be superior in authority to statute law and thus able to

common

scope and content or that he thinks that

might declare statutes to be void superior law — perhaps the

of reason. C.

perhaps natural law or the law

law,

common

Mcllwain, for example, contends that the

H'.

and that

law judges

they consider them to violate some

if

common

lawyers always understood the rior law,

155

more often than not American,

the Bonham's Case dictum evidence either that

common

Edward Coke

common

law to be

statutes, at least until the

Long

a

fundamental, supe-

Parliament, were un-

derstood not to make or change law but merely to affirm existing law. 35

Other

historians,

though not committed to

all

the parts of Mcllwain’s

agree that Coke’s Bonham's Case dictum does reflect his under-

thesis,

standing that statutes are limited by

a

higher^ fundamental law Edward r

.

Corwin, the distinguished American constitutional historian, agrees

common law — or at least the maxims or “fundamental points” of the common law. When Coke states that if Parliament makes an Act “against common right and reason” the common law would control it, Corwin asserts, ‘“common

with Mcllwain that fundamental law

right it is

and reason’

is

.

.

.

is

for

Coke

the

something fundamental, something permanent;

higher law.” 36 Corwin identifies the maxims of the

Coke’s jurisprudence, with his famous

“artificial

common

law, in

reason and judgment of

the the law,” and that, in turn, he identifies with the law of nature. 37 Lest it

be thought that only American scholars

glish law give such readings to

Coke,

who

are not experts

on En-

should be noted that T.

it

F.

T.

Plucknett, one of this century’s finest English legal historians, also interprets Coke’s

Bonham

's

Case dictum as representing “the idea of a funda-

mental law which limited

Crown and

he identifies that law not as the

Parliament indifferently,” although

common

law hut as the law of reason. 38

In contrast to these interpretations of Coke, Samuel tends, in

dictum

what has come to be the reigning view, that the Bonham's Case

reflects neither a belief in a

ity to statutes

power

nor

a

fundamental law superior

contention that the

to overturn statutes. Instead,

reflects the standard sixteenth-

tion that

Thorne con-

common

common

Thorne

law judges have the

argues, the dictum merely

and early seventeenth-century expecta-

law judges had wide powers of interpretive discretion,

which allowed them to enlarge or narrow the scope of

what

a literal

Coke

states that

in author-

reading of

when

its

words might seem to

a statute is

“against

repugnant, or impossible to be performed,

a statute

suggest.^'’

from

Thus, when

common right and reason, or the common law will controul

156

it

The Common Law Mind

?

and adjudge such an Act to be void,”

all

he means

is

that the judges will

use their natural powers of interpretation to restrict the words of statute “in order to reach

sound

results.”

40

This reading

key words in the passage are “repugnant” (that “impossible to be performed,” and that

Thorne

so,

to be void

continues,

the

is

power

all

that

is

asserts that the

self- contradictory)

Coke understands

and

these words to

common right and

reason.” If all this

meant by the power

to adjudge an act

be essentially equivalent to “against is

is,

a

way as

to interpret the act in such a

to

make

“inef-

fective” the parts that are inconsistent with the other portions of the act

or that are impossible to be performed. 41 Nothing

higher law invalidating parliamentary

is

implied about some

acts.

All of these interpretations of Coke’s understanding of the relation

between larly if

common

one

is

law and statute have plausibility and power, particu-

willing to put aside one’s

Coke’s writings that It is

may

raise

doubts about

even possible to construct

statements by

Coke

that at

memory

first

of other passages in

a particular interpretation.

a plausible story or

may seem

blush

scheme

in

which

to be contradictory are

revealed in their true light to be consistent. Nevertheless, although

may

be true,

as

one scholar urges, that we ought to presume continuity

in Coke’s works, the

danger

exists that the interpretation that

Coke’s disparate statements part of the scholar’s

own

a

seamless theoretical

I

tween

know what

common

web

ingenuity rather than Coke’s understanding. 42

nearly as certain as other readers of Coke’s that

it

is

makes

reflects 1

am not

work sometimes appear

to be

the correct reading of his view of the relation be-

law and statute, but

a close

comparative reading of the

whole body of Coke’s published word seems to support the view expressed by Glenn Burgess that there are deep ambivalences or tensions, if

not outright contradictions, in Coke’s expressed beliefs on the sub-

ject.

43

This

is

not to deny the possibility that one of the standard inter-

pretations of Coke’s theory has exactly captured his thought but only to

suggest that there are reasons for being skeptical about the adequacy of

any of those standard interpretations.

Mcllwain makes an important contribution

to our understanding of

Coke’s thought about Parliament by emphasizing that Coke and his contemporaries think of Parliament

as a court,

sustained discussion of Parliament

is

not

found

a legislature.

Coke’s most

in his Fourth Institutes— the

part of the Institutes devoted to a discussion of English courts — and

appears there under the chapter heading,

it

“Of the High and Most Hon-

Sir

orable Court of Parliament.”

Edward Coke

his general practice,

It is

discussions of Parliament to refer to

Coke’s classification of Parliament as

it

new law — that statutes

common (as is

common lawyers

the time of Coke, the

own

lawyers do

appropriate for

the judgments of courts) are merely declaratory of existing

By

moreover, in

court through the lens of his

a

57

But Mcllwain reads

as a court.

mistaken theory that medieval and early modern not admit that statutes make

1

common

law.

have for centuries openly rec-

ognized that statutes make new law, often directly contradictory to the then existing

common

that Parliament’s isting

common

Coke himself repeatedly recognizes

law rules.

lawmaking power goes well beyond memorializing ex-

He certainly common law:

thinks that certain statutes are largely

law.

declarations of the

do affirm that the statutes of Magna

I

Merton, Marlebridge

.

.

.

Clfarta,

Charta d Foresta,

and some few others that be ancient

.

.

.

common law) of the common

(which for the most part are but declarations of the .

.

.

are the very body,

and

as

it

were the very

text

laws of England. (Repons 8:preface)

But he does not conceptualize statutes est court,

which declares what the

as written

common

In his discussion of acts of Parliament,

ment, some be introductory of new law, law,

is.

Coke writes, “Of acts of parliasome declaratory of the ancient

and some be of both kinds by addition of greater penalties or the

like” (Coke, Institutes 4:25).

making laws law,

law

judgments of the high-

44

He

repeatedly cautions about the danger of

that alter or abolish the fundamental points of the

but he does not suggest (unless that

a statute that alters the

common

law

or would not be binding. 45 In Rowles

is

v.

his point in

is

Bonham

's

common Case) that

beyond Parliament’s competence

Mason Coke ,

as chief justice states

the very function of statute law to be that “which corrects, abridges and

makes

it

common

and in the preface to Part 4 of his Repons clear that he understands conectio legum to be the same thing as

explains the

altering or changing

it

law,”

(Repons 4:vi,

ment can make new law change the

common

,

law,

ix).

46

Since

Coke

believes that Parlia-

that, admittedly at considerable hazard, it is

hard to see

how

can

recognizing that he con-

ceptualizes Parliament as a court helps to reconcile the Bonham's Case

dictum with the is

Institutes'

claim that Parliament’s power of making laws

“so transcendent and absolute, as

it

cannot be,confined either for

causes of persons within any bounds” (Coke, Institutes 4:3b). 47

158

The Common Law Mind

*

The argument

that Coke’s

dictum

in

Bonham's Case need not be seen

with his statements about Parliament’s lawmaking powers

as conflicting

because Coke, in Bonham's Case only has in mind

a

,

tory construction on the part of the sibility.

The

Because

statu-

law judges has great plau-

great interpretive discretion of judges was widely acknowl-

edged in the 5).

common

power of strict

late sixteenth

this

is

and early seventeenth centuries

(see chapter

within the bounds of the then avail-

so, it certainly is

able legal discourse to read Coke’s remarks as an exercise of strict inter-

pretation.

What we

cannot

know

for certain

is

whether such

a limited

reading captures Coke’s intentions. There are other modes of discourse besides that of statutory construction in which the Bonham's Case state-

ment would be

of discourse in Calvin's 1.

Coke himself engages Case when he argued,

intelligible.

That ligeance or obedience of the

by the law of nature: England:

That

3.

2.

That

this

subject to the sovereign

law of nature

is

That

the law of nature

due

is

pact of the laws of

the law of nature was before any judicial or

nicipal law in the world: 4.

form

in an alternative

is

mu-

immutable, and

cannot be changed. ( Repons 7:4 6) law of nature (or reason, as

If the

lawyers)

is

attempts to change

case, as the statute at issue in

to be against is

often

part of the laws of England, and

a statute that

Coke

it

common

right

it

if it

by making

by the

common

cannot be changed, then a

man

a

judge in his

own

Bonham's Case does, might plausibly be said

and reason, and hence void.

not the only distinguished

ciate English law

called

is

common lawyer of his time

to asso-

with the law of reason or nature. Sir Henry Finch,

writing of rules of reason deduced from the law of reason, asserts,

such

is

their singular

mount they

rule

and incomparable use,

that, as lords para-

and over-rule the grounds themselves: and rather

than that any of these (rightly understood) should

maxims and

states,

the very

principles of the positive law will yield, as to a higher

and more perfect Finch

fail,

law.

4*

even more

directly, that “it

is

truly said

&

all

men must

agree, that lawes in deed repugnant to the law of reason are as well void as those that cross the

law of nature.” 44 Chief Justice Hobart, only

years after the decision in Bonham's Case asserts in ,

Day

v.

a

few

Savadge that

“even an Act of Parliament, made against natural equity, as to make

a

Sir

man

own

judge in his

case,

is

void in

Edward Coke

159

for jura naturae sun im-

it self,

mutabilia, and they are leges legum.” 50

Coke cannot be making an appeal

Assertions that

to the law of nature,

the law of reason, or natural equity are surprisingly

Thorne’s principal argument, apart from is

that if

Coke

his defense

Case he would cite

St.

German and would make

asserts that judicial review

name of natural law

common

mental

for

law of England.”' 2 His proof

is

entirely

founded on

lawes are aptly and properly called the lawes of England, because

government

mind

the law of England

in is

Coke cannot have

natural law or nat-

Bonham's Case because he elsewhere claims that not dependent upon any foreign law. But Coke

never identifies natural law or equity as “foreign law”

— as may be seen in

famous association of the law of England with the law of nature

Calvin's Case.

The

natural law theory

interpretation of Coke’s dictum; after the

for

Institutes 2:98).

Burgess’s point seems to be that ural equity in

fit

and have no dependency upon any forreine law

thereof,

whatsoever” (Coke,

his

same

The

sorts of reservation as

suggestion

excluded as

is

is

mind

in

is

subject to

the theory of interpretation argument.

may

not be as easily

what Coke has

in

the idea that judicial review of statutes can be

is

common

law courts “in the

name of

the fundamental

law of England.”' This interpretation, unlike Mcllwain’s, does '

a basic

way on

the conception of Parliament as a court, nor

presume that Parliament can only declare existing

carried out by Burgess,

means when he right

this interpretation

only that the natural law theory

Bonham's Case

not depend in it

all,

not offered here as the correct

for our consideration the claim that

conducted by the

common

is

is

in

sometimes thought.

There remains

does

a

“Our com-

they are appropriated to this kingdome of England as most apt and the

5

Coke “not conducted in but in the name of the funda-

is,

or natural equity,

in Calvings Case.

serious misreading of a statement in Coke’s Second Institutes:

mon

theory,

the kind of direct state-

ments about natural law that he made two years before the

own

of his

appealing to the law of nature or reason in Bonha?n's

is

Glenn Burgess

defended.

ill

it

says that

and reason

.

.

.

the

law. Instead, as

proceeds by means of an analysis of what Coke

“when and Act of Parliament is

common

law will controul

it,

against

common

and adjudge such

an Act to be void.” For Burgess, the central interpretive problem

termine what Coke means by

and thoughtful

analysis,

“common

right

Burgess shows that

and rgason.” In

“common

reason”

is

to de-

a careful is

widely

i6o

The Common Law Mind

5?

used in the sixteenth and seventeenth centuries as

common

54

law.

He

a

synonym

wishes to claim the same thing for

for the

“common

right,”

although he admits that one can find seventeenth-century examples in

common right and common

which

The

issue,

Institute

the

though,

how Coke understands

the terms, and in the First

he asserts that they are equivalent: “of common right, that

common law”

as far as

it

Coke

that

is

reason are distinguished.

goes. is

(Coke, Institutes 1:142a). This

The problem

is, it is

persuasive argument,

is a

on the

built

explicit

Coke’s discussion of

toms

in

common

common

is

The

two

senses.'’"’

about the validity of

raises questions

Burgess’s whole argument, as impressive as the validity of customs. 56

at least

right as a test for the validity of local cus-

The Compleat Copyholder

The second

presumption

precise and consistent in his use of terms, although Burgess

concedes that Coke uses the word “right” in

later

by

is,

first,

he

it is.

Coke

says, is that

it

lists six tests

for

must be reasonable.

that “customs and prescriptions ought to be according to

right.”

Coke then

gives an example to illustrate

by the requirement of accord with

common

right:

what he means

“And therefore

if

the

lord will prescribe to have of every copyholder for every court he keepeth, a certain

according to

sum of money,

common

this is a void prescription,

right; for

because

he ought for justice to do

it

it is

gratis T

not

51

should be noted that holding local customs, or customs of the

It

manor, to the standard of accordance with

common

right cannot

mean

common law. Such customs, almost by definition, differ from the common law. It is clear from Coke’s example that he means by common right not the common law but justice or natural equity — the very thing that Burgess claims he cannot mean by his reference to common right in Bonham Case. of divergence from the

a lack

’s

One

lesson to be

drawn from

ing of the relation between ject,

examination of Coke’s understand-

common

law and statute

is

that

on

this sub-

and on many others concerning Coke’s jurisprudence, scholarship

may help is

this

us narrow the range of his possible meanings, but his language

so rich and ambiguous, and his writing so unsystematic, that he cannot

be pinned law

is

down

exactly.

When

Sir

John Davies claims that the

superior to statute law because

it

does not become

had been tried and approved time out of mind, during there did thereby arise

ment

no inconvenience,” he

is

a all

common

law “until

which time

echoing Coke’s state-

that “if the ancient laws of this noble island had not excelled

others,

it

it

all

could not be but that some of the several conquerors and gov-

Sir

ernors thereof

.

.

would

.

.

.

.

Edward Coke

161

8 have altered or changed the same.”'

To

common law not only constitutes proof of the

Coke, the antiquity of the

absence of inconveniences the law occasions,

shows that law to

also

it

contain a kind of wisdom not available to the wisest individual men, or

even to groups of such men. In Calvin's Case he notes: ,

We

are but of yesterday, (and therefore had need of the

those that were before us) and had been ignorant ceived light and knowledge from our forefathers)

wisdom of

we had not reand our days upon (if

the earth are but as a shadow, in respect of the old ancient days and

times past, wherein the laws have been by the excellent

men,

in

experience (the

many

wisdom of

the

most

successions of ages, by long and continual

of light and truth) fined and refined, which no

trial

man (being of so short a time) albeit h^had in his head the wisdom of all the men in the world, in any one age could ever have effected or attained unto. And therefore it is optima ?‘egula ... no man one

ought to take

upon himself

it

to be wiser than the laws.

(

Reports

7:6-7) If

one compares Coke’s discussions of the antiquity of the

common

law in the prefaces to his Reports and in his report of Calvin's Case with his later discussions in his Institutes

there

is

a

it is

,

easy to get the impression that

considerable evolution over time in his views about the sig-

nificance of the law’s antiquity. In the prefaces and in Calvin's Case his

treatment of the law’s antiquity

common law is shown to Had it not been the best

is

a reprise

of Sir John Fortescue: the

be the best and wisest of laws by it

would

it

would not

still

of Coke’s Institutes published in 1628, there

part

1

allel

to the one

I

rate

and refine

his

is

a

,

quote from Calvin's Case. In

law consists in “an

And

this is

artificial

itself is

artificial

be around. 59 In the passage that

is

par-

to elabo-

common

law: that

perfection of reason.”

another strong argument in law, Nihil quod

nothing

very age.

Coke appears

conception of the wisdom of the

tione?n est licitum; for

law

it

its

reason

is

the

else but reason,

life

est

contra ra-

of the law, nay the

common

which

is

to be understood of an

perfection of reason, gotten by long study, observation,

and experience, and not of every man’s naturall reason; nascitur anifex.

the reason that

This is

legal reason est

dispersed into so

for,

Nemo

summa ratio. And therefore if all many several heads, were united

\

The Common Law Mind

6z

into one, yet could he not

make such

a

law as the law of England

is:

many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long exbecause by

perience grown to such

a perfection, for

the

government of

this

may justly be verified of it, Neminem oportet legibus: no man out of his own private reason ought

realm, as the old rule sapientiorem

esse

to be wiser than the law,

which

the perfection of reason. (Coke,

is

Institutes 1:97b)

The

law has not arrived by chance

which,

if altered,

at this exalted state

of perfection,

inevitably leads to dangerous consequences.

It

has not

even done so through the accumulated wisdom of the folk — a plausible

way of reading the passage in Calvin's Case. In his commentary on Littleton, Coke does not, like Davies, view the common law as the kind of custom

that,

“being only matter of

fact,

and consisting in use and prac-

memory of the people.” Here, the repository of the common law is not the “memory of the people” but certain “grave and learned men” — the common law judges and lawyers. 61 The “reason” of the law is not, like that of St. tice

.

.

.

can be recorded and registered no where but in the 611

German’s doctor, “written artificial

in the heart of every

man”; instead,

it is

“an

perfection of reason” gotten only by “long study, observation,

and experience.”

The

hypothesis that between the time of his early Repons and the

writing of the part

ception of the

A

of his

common

Coke

evolves or discovers his con-

artificial

perfection of reason does not

Institutes

law as an

famous account of a 1608 colloquy ( Case of ProhiDel Roy) between himself and King James is to be believed:

hold up, however, bitions

1

if his

controversy of land between parties was heard by the King, and

sentence was given, which was repealed for to the

common

law: then the

King

said, that

this,

that

it

did belong

he thought the law was

founded upon reason, and that he and others had reason,

as well as

the Judges: to which

was, that

God

it

was answered by me, that true

it

had endowed His Majesty with excellent science, and great

endowments of nature; but His Majesty was not learned

in the laws

of his realm of England, and causes, which concern the

life,

or in-

heritance or goods, or fortunes of his subjects, are not to be decided

by natural reason but by the

artificial

judgment and reason of

law,

Edward Coke

Sir

which law

is

fore that a

man

Thus

it

an act which requires long study and experience, be-

can attain to the cognizance of it. (Reports 12:64)

appears that

Coke

arrived at his conception of the

common

reason by the time his early Reports are published. 62

as artificial

case, however, that

Coke much more frequently

law with reason in his as

Institutes

shifts the focus

61 .

This suggests

reason increases

as

of his conception of the

its

hold on

common

from the element of time and toward the idea of reason. Time part in his conception of the

common

law, but

It is

law the

common

identifies the

than in his Reports

time passes, the idea of che law

and that he

a

163

that,

Coke

law away still

plays

plays that part in the

it

service of reason.

There

are several scholarly interpretations of Coke’s

meaning when he

writes of the artificial reason of the law. Pococlc, for example, emphasizes the passage from Calvin's Case in which the laws by “excellent point,

Pocock

finds,

Coke speaks of the refinement of

men” by “long and

is

continual experience.” 64 Coke’s

that “philosophic reason could not

forts reconstruct the law, because the law’s origin

is

by

its

own

ef-

not in any philo-

sophic assumption but in a multitude of particular decisions.” In addition,

Coke

general principles since another,” with each

is,

it

arises

intellect

cannot reduce the law to

from “one emergency following upon

emergency being unique. By

wood Lewis concludes law; that

human

believes that the

that Coke’s concern

is

contrast,

John Under-

the reasonableness of the

with “the internal consistency of English law

as a

system and

not, primarily, with a defense of the notion that a law should be defined in

D. E. C. Yale, is,

65

In this view, further elaborated by

common

law not primarily as case law (that

terms of reason rather than

as the

Coke

sees the

will.”

product of individual emergencies) but

sense that

it

represented the product of

a

professional

refinement and co-ordination of social habits into

There readings.

is

To

a

skill

working

say that, though,

is

system of rules.” 66

to identify a further set of problems that

in the large

are dozens of references to reason

body of Coke’s writings there

and the law and that these references,

not inconsistent, make several different points, to what extent

sible to say that

law? 67

Do

a

language in Coke’s writings that appears to support both

need examination. Given that

if

as reasonable “in the

he has

a

his statements

is it

pos-

coherent pattern of beliefs about reason and the

about the

artificial

reason of the law add up to a

The Common Law Mind

164

coherent vision? In what ways

is

Coke’s exposition of the relationship

between law and reason different from that of raries,

and

what respects

in

doctrine of the

vented or that

is

common

similar? Is

it

contempo-

accurate to speak of “Coke’s

reason of the law” as

artificial

if it is a

doctrine he in-

peculiar to him?

no innovation

It is

is it

his leading

for

Coke and

his

contemporaries to hold that the

law must be in accord with reason. In being held to this stan-

common law is no different from statute law or local custom: common lawyers early on accept the civilian and canonist doctrine

dard, the

the

no purported law

that

is

really law if

it is

contrary to reason. This idea

reflected in the case reports of Coke’s day

is

by statements of the general

necessity for the law, whether customary, statutory, or

common

be in harmony with reason. Consonance with reason

one of two stan-

is

law, to

dard tests that an alleged local custom has to pass in order to be held valid. In a

void

68 .

few instances, Coke also

states that statutes against reason are

In the case reports, a typical recognition of this. principle justifies

the rejection of a rule or interpretation contrary to reason, but

times a rule or interpretation

son

69 .

Finch

states

more

fully

is

upheld because

it

some-

comports with rea-

than Coke the general requirement that

laws be consonant with reason:

The

law of nature and of reason, or the law of reason primary and

secondary, with the rules framed and collected thereupon; which three are as the sun and the to

all

moon and

the seven stars, to give light

the positive laws in the world.

Positive are laws framed in their light; and

grounds and maxims of

common

law

is

not

a

all

common

word new and

from thence came the

law: for that

it,

call

strange, or barbarous, and

proper to ourselves, and the law that we profess, learnedly would have

which we

but the right term for

all

as

some un-

other laws.

.

.

.

Therefore laws positive, which are directly contrary to the for-

mer

[the

at all

.

law of nature and reason], lose their force, and are no laws

70

Although there this generally

is

evidence from the case reports that

Coke recognizes

accepted principle, none of his statements about reason in

his Institutes clearly reflect

it.

He

does quote two standard Latin maxims

often used for stating that principle, but he goes on to gloss the in such a

way

as to suggest that the

reason he has in mind

is

maxims

not the law

Sir

Edward Coke

i6 5

of reason (or nature) but “the reason of the law,” which he says

understood of an

perfection of reason.”

artificial

“is to

be

1

Just as the case reports contain a series of references to reason that

may

best be understood as reflections of the principle that

be in harmony with the law of reason, they also contain in

law must

all

many

passages

which the references are much closer to Coke’s treatment of reason

his Institutes they

in

have to do with the reason of the law rather than the

law of reason. 72 As Coke informs King James in the Case of Prohibitions, this

reason of the law

is

not everyman’s natural reason but the

judgment and reason of law” ( Repons

why

“artificial

he

this conversation

12:64).

is

make legal judgments: he does not have the “artificial” reason necessary for making such judgments. In a parallel passage in the part of his Institutes Coke extends this idea; judgments not only have to be made by means of this artificial reason, “the common explaining

the king cannot

1

law

itselfe is

artificial

,

nothing

but reason; which

else

is

to be

understood of an

perfection of reason, gotten by long study, observation and ex-

perience, and not of every man’s natural reason” (Coke, Institutes 1:97b).

Coke law

explicitly contrasts the artificial reason of

which the

common

composed, and which has to be known and mastered by anyone

is

who makes

a legal

judgment, with natural reason. This helps us put some

may mean by

boundaries on what he possibly

may be opposed

calling legal reason “arti-

more than one sense. One such sense, that of something feigned or fictitious, Coke clearly does not have in mind. Relying on another sense of the word, ficial.”

But the

artificial

to the natural in

Charles Gray writes that the “expression stitute for reason.”

to describe

^

It is

in

is

is

a substitute for,

ing.

specific refers to

The

“artificial

sub-

may be

used

of,

the real or

reason” that suggests that

as a substitute for natural reason.

standard senses of “artificial” that

more

or imitation

a

nothing in the contexts of the several passages

which Coke uses the expression

he sees legal reason

reason suggests

true that the adjective “artificial”

something that

natural thing, but there

artificial

Coke may have

in

There

mind.

The

are

two

first

and

something attained to only by education or

Oxford English Dictionary uses

lustration of this sense:

“Not

.

.

.

a

quotation from

Coke

train-

as

an

il-

understood of every unlearned man’s

reason, but of artificial and legal reason” (Coke, Institutes 1:62a). In

Coke’s references to tion 138 of artificial

On

artificial

Littleton

,

reason in the Case of Prohibition and in sec-

his point clearly is that

and not natural

is

the fact that

what makes

legal

no one possesses

it

reason

sponta-

1

66

The Common Law Mind

§

No

4

neously.

how

matter

great that persons natural gifts,

it

can be de-

veloped only through education, training, and experience.

There

are reasons, however, for not limiting our reading of Coke’s ex-

pression “artificial reason” to reason produced by study or education.

understand Coke’s doctrine of the

make is is

artificial

To

reason of the law one must

Coke himself does not make clearly, although it implicit in what he says. That distinction is between how legal reason to be learned by those who will practice law and make legal judgments a distinction that

how that grew to much and

legal reason

reason

reason got to be what

by

legal professionals

skill

of lawyers.

is

It is

a natural process,

is

play a critical role.

I

am

Littleton

it

the knowledge of

artificial:

constructed by the art and

Coke sometimes

common

law grew to

not one in which

human

talks as if the

its

state of per-

artifice

and

skill

thinking of those passages injwhich he empha-

formation of the law — for example,

“by long experience growne to such realme” (Coke,

it is

true that

sizes the role of experience in the

this

how

Coke’s language,

not spontaneous or innate, and the

sense that

process by which the reason of the fection

— in

perfection. Both processes are

itself is artificial in the

professional

it is

Institutes 1:97b).

a perfection, for the

75

But there

is

government of

another passage, in

On

that portrays the reason of the law as the product of an active

,

exercise of the professional craft and skill of lawyers:

And by

reasoning and debating of grave learned

of ignorance

is

expelled,

and by the

discerned, and thereupon judgment is

The

men

the darkness

light of legall reason the right is

is

given according to law, which

the perfection of reason. (Coke, Institutes 1:232b) fining

shown

and refining of legal reason by grave and learned

men

to be an active, perhaps even unruly, constructive process

a passive ratification

Coke

is

is

thus

and not

of previous experience.

not being original or idiosyncratic

when he

links the “reason-

ing and debating of lawyers” with the “artificial reason of the law.”

When Thomas son, he

is

Hedley

ties

the “discourse of art or wit” to artificial rea-

making the same point

in slightly different language.

76

The

most complete discussion associating the disputations of lawyers artificial

The

reason, though,

efficient cause

is

written by Sir John Dodderidge:

of Rules, Grounds, and Axiomes

natural reason sifted

is

the light of

upon disputation and argument. And hence

it

to

Sir

is,

that the

Law

...

hend the same; but

is

Edward Coke

reason; not for that every

wisedome, learning, and long experience are

their

of men, and

fairs

know what is

fit

skilfull in the af-

and convenient to be held and ob-

served for the appeasing of controversies and debates

Both Hedley and Dodderidge

ment of

common

the

tie

can compre-

reason; the reason of such, as by

artificiall

it is

man

167

the role of

argument

among men. in the develop-

and the attainment of knowledge about

law,

to

it,

the determination of secondary principles of reason. In the Aristotelian logic in

which they were

primary conclusions of reason are uni-

and are to be accepted without question or demonstration

versally true (191).

trained,

Secondary

principles, though, are contingent

and only probably

Most common law

rules,

Dodderidge teaches, are secondary prin-

ciples and, as such, rest

upon

“discourse of Reason deducted in argu-

true.

ment”

(196).

Even though

at first

may seem

highly probable,

false (207).

This

is

doubtful question bate,

upon consideration they may prove

where the

“to find out the truth by is

glance the truth of such propositions

art of logic proves valuable;

argument and disputation”

proposed, the truth

and discourse of reason on both

is

it

teaches

whereby the corn

To summarize, one of

is

parts, as in

all

our law arguments

and

artifice

This

art

was passed down to them in

whom

they learned

dialectic, occasionally rhetoric, (ars disserendi).

78

the fact that for

it

be

said to

common

as the

law-

product of

and, particularly, the product of the art of argument.

skill

authors from

The

because they see

is

(63).

the reasons seventeenth-century is

a

found out by Argument, de-

severed from the stubble”

yers call legal reason artificial

how

“When

(62).

appeareth; and therefore such debate and conflict of reason the flayle

to be

a

it

long tradition from Aristotle.

sometimes

call it logic,

and more generally, the

The

sometimes

art of discourse

Perhaps most interesting, though, for our purposes

many

centuries

it

was

is

called ratio artificialisC

passages from the legal literature of the seventeenth century that

more about why Coke and other lawyers

we examine here

tell

reason of the law

artificial

of the answer

is

us

than about

summed up

in

why Coke

calls the

call

the

law reason. Part

Hedley ’s expression “tried reason.” Coke,

Hedley, and to some extent Davies understand the law to be reason,

indeed perfect reason, because long

trial

and experience shows

it

to be

The Common Law Mind

i68

reasonable — perfectly fitted for England and insufficient to tell us just

common lawyers of the

how widespread

people.

its

The

is

among the do know that sev-

theory was

this

early seventeenth century.

We

of the period’s most prominent lawyers do not espouse

eral

evidence

Two

it.

of

them, Sir Henry Finch and Sir John Dodderidge, wrote books containing substantial sections on general jurisprudence. 80 Both efforts to locate the

explain

common law in

serious

a larger jurisprudential universe

place not only in respect to other

its

make

human

— to

laws but also in re-

gard to the laws of nature and reason. Finch, in a line of argument that owes

man,

is

concerned to connect the

reason, to the law of nature.

The

of Adam’s

sult

common

to Christopher St.

law,

law of nature

men’s nature “which ministereth

These common

much is

by means of the idea of a

kind of reason fixed in

common principles

of good and

principles are self- evident and very general.

fall,

the originally perfect

human

and are reflected

arguing of any case”

81

the re-

still

percep-

our course in the

in the rules of reason that “direct

(5).

As

evil.”

ability to discern these

principles has been greatly weakened, but the principles are tible

Ger-

Indeed, Finch states, the “law of nature and of

reason, or the law of reason primary and secondary, with the rules

formed and collected thereupon,” of the grounds and maxims of

are the source of

common law (74). Finch does not limit English common law: references to the

“common

common

laws of Greece by Euripides and Plato

law” to the

term and prove the

This

common

reason

common is

law to be nothing but

He

explains

reason by quoting Cicero and Plato:

nominatur

cometh of

all.”

show

rite sapientia , as

“

reason.

what he means by refined

Quae cum

adolevit atque perfecta

How?

— is

it

test for the pri-

dialectal reasoning proceeds.

although Finch does not explicitly say

when

’’generally received

nothing else than Aristotle’s

mary premise from which

it,

generally received by the consent

His gloss on the meaning of these authors — all”

common

Tully saith, and as Plato hath

to be opinio or decretum.

by the consent of

the antiquity of

“not that which every one doth frame unto

himself, but refined reason” (75).

est

and

all

the term

the

positive laws

all

so, that

This suggests,

he means by refined rea-

son the maxims or grounds of the law — a standard understanding

among

the lawyers of his time.

1 here

is

the whole

no hint

in

Finch of the strand of thought, running through

body of Coke’s

judicial opinions

and

legal writings, that asso-

Sir

ciates legal reason with the antiquity of the

experience that antiquity represents.

with the existence of

a

Finch shows no interest in the age of the sion of legal philosophy

conform

Such are the so

appears only to be concerned

is

it

self

con-

common

His entire discus-

law.

directed at showing that

all

positive laws

s:

must

Unlike Coke, he

in altering established rules of law:

common

many laws: and

and the

a

takes to be achieved. Indeed,

to the law of nature and the law of reason.

no danger

sees

law and with the

not with the process by which such

arrived at or the length of time

is

common

169

consensus in support of any ground from which

legal reasoning will proceed,

sensus

He

Edward Coke

laws of England; and almost so

as those laws are diverse

same laws may be

long as no alteration

is

altered

many people

from one another, so one

and changed

in themselves, so

permitted against the two main laws of na-

ture and reason. 83

Dodderidge’s The English Lawyer remains to

this

day one of the most

comprehensive treatments of the relationship between law and reason English; in his 84

He

own

time, there was nothing to which

it

in

could be com-

Coke and other contemporaries in associating English law with reason. The laws of England “are grounded upon the depth of reason and invested oftentimes by the name of reason in our

pared.

agrees with

Reported Cases.”*' Like Finch, however, he shows no inclination to praise the all

common

1

law in comparison with other peoples laws. Because

laws “are derived from the

in the principles of

great agreement the

common

of Nature, and do concurre and agree

Nature and Reason,”

among them

(158-59).

it

follows that there

This may be seen

must be

in the fact that

law borrows “some thousand Axioms and Conclusions of

Reason” from the

Doddridge has

common

Law

civil law. little

sympathy with

common

lawyers

who

praise the

law largely for the long accretion of experience, gotten through

the decision of the thousands of particular cases that the experience represents. It

is

better,

he argues, to begin with general rules and proposi-

tions and reason our

way

to particular conclusions.

Things proposed

in

known and most familiar to our understanding; our memory better. They are the precepts of art and

their generality are best

they also stick in

therefore are called perpetual and eternal (140).

sentence repudiating

much

that

Coke

stands

for,

On

the same page, in a

h^ adds:

The Common Law Mind

170

For the orderly proceeding of every Art, Methodically handled,

from the due regard had of the

generall, to descend vnto the spe-

cials contained vnderneath the same: wherefore

knowledge: for experience, which

is

it

ensueth hereof,

most speedy instruments of

that generall Propositions are the

wholly gotten by the observa-

tion of particular things (being deprived of speculation) blinde, doubtfull,

is

is

slow,

and deceiueable, and truly called the mistress of

fools.

He

does not, however, draw the conclusion that the laws of England

should be published, after the manner of the

with their conclusions.

cial rules

It is better,

deliberation and debate of reason, by

on the occasions of cases

ultie”

than to try to decide

tion,

positive laws (241).

all

men

civil law, as

general and spe-

he

frame

says, “to

skilful

Law upon

and learned in that

fac-

arising that required judicial determina-

cases in advance through the

enactment of

Having deprecated experience, Dodtieridge proceeds

common law“not for that every man can com-

to demonstrate that he can be as inconsistent as the next yer.

The

law

is

called reason, he writes,

prehend the same; but

reason; the reason of such, as by

it is artificiall

wisedome, learning, and long experience are

their

skillful in the affaires

of men” (242).

Although Finch and Dodderidge do not

mon it,

find the reason of the

com-

law proved by the English people’s long and happy experience with

they do join with the adherents of that view in deriving from the Aris-

much

totelian tradition

reason to law. All

Christopher

St.

of their understanding of the application of

common

lawyers

who

German were exposed

logic and rhetoric, even if they had

read Sir John Fortescue and

to the Aristotelian tradition in

no formal university

training.

86

By

the mid- sixteenth century the Inns of Court were attracting substantial

numbers of students who had studied academic philosophy sities.

and

8

Coke himself attended

a half years,

Trinity College, Cambridge, for three

and afterward emphatically recommended university

training in logic as a basis for studying the

By

this

essary

argument it is

at the univer-

logically

drawne a

common

divisione

,

it

law:

appeareth

how

nec-

come from one common law, where he may

that our student should (as Littleton did)

of the universities to the studie of the

learne the liberal arts, and especially logick, for that teacheth a

man

not onely by

just

argument to conclude the matter

in question,

Sir

Edward Coke

but to discerne betweene truth and falsehood, and to use

method and

is

and probably to speake to any

in his studie,

defined thus, dialectica

whereby

disserendi,

est scientia

appeareth

it

how

171

a

good

legall question,

probaliter de quovis themate

necessary

it is

for our student.

(Coke, Institutes 1:235a)

common

Dodderidge

also urges

Responding

to the objection that natural reason

lawyers to apply logic to their study.

derstanding of law, he writes: “Reason Art, and therefore is

is

is

is

un-

sufficient for the

naturall, but yet

best by the Art of Reason, which

is

it is

polished by

Logicke A

88

Logic

necessary to the study of law because:

The Art

of Logicke

is

the Art of reasoning, Ars argumentandi, as

one of the properties thereof, teaching

ment and

ter find

out truth by argu-

Common Law of this Land

disputation. But the

name of common

often stiled in our Bookes by the

(which

reason)

is

is

de-

duced from principles evident and knowne, for the decision of such things as are drawne into doubt, and are

thereof are taught by Logicke.

.

.

man

Againe, Logicke teacheth a ples,

.

grounds and rules observed

unknowne. The precepts

to collect the

in that

Axiomes, princi-

Art which he studieth, and

being so collected aptly to dispose the same. 84

The

recommended by Coke and Dodderidge

Aristotelian logic

foundation for

common

mon

claim that

lawyers

reason and

is

s

law reasoning provides

common between

knowledge. Scientific knowledge tion (demonstration)

by

from which

scientific is

attained through syllogistic deduc-

logical necessity

scientific

and practical reasoning and

from

first

91 themselves demonstrable. This

principles.

90

The

first

reasoning proceeds are true, universal,

and primary, but their truth and status

certain,

is

the

not arbitrary.

Aristotle distinguishes

principles

comfounded on

a rationale for

law decision making

as a

is

as first principles are

not

so because in order for principles to

be proved by syllogistic reasoning, other more fundamental priciples

must

lie

behind them to serve

principles are apprehended

known

as the

premises for that reasoning:

first

by induction from experience, and are

92 Neither their existence nor to be true by intellectual intuition.

their truth can be established

by reasoning or proof. Instead, they are

self-evident: “in regard to first principles

it is

improper to ask any

fur-

The Common Law Mind

172

why and the wherefore of them; command belief in and of itself.” 93

ther for the

should

The knowledge certain, law.

each of the

first

principles

acquired through demonstration, though true and

not immediately applicable to questions concerning

is

Human

affairs are

human

made up of too many complex combinations and

arrangements of particulars to admit of exact reasoning leading to certain truths

94 .

In theoretical science, reasoning “by demonstration” starts

from premises that are cal science,

true, universal,

immutable, and certain; in practi-

reasoning starts from premises that are only probable.

are probable in the sense that they are “generally accepted”

or by the majority or by the philosophers

— i.e.,

by

or by the most notable and illustrious of them.”''-

all,

They

by “everyone

or by the majority

CHAPTER EIGHT

Reason and the

T

he

common law

Common Law Maxims

of England, made up as

it is

of a huge, chaotic, ap-

parently inconsistent mass of particular rules and cases, to

mon

noncom-

lawyers often seems to be incapable of being even an Aristotelian

practical science.

As

common

a result,

charge that certainty of decision

is

lawyers are forever rebutting the

impossible. Beginning with Sir

John

Fortescue in the late fifteenth century, and for the next two centuries,

many common

lawyers respond in Aristotelian terms: they can reason

way to sure conclusions because there exist fundamental principles of law — maxims — that are accepted without question by the profession. Quotation of maxims, in the modern sense of short, pithy statements or showy proverbs, is common among medieval common lawyers and judges, but until Fortescue, there is no evidence that the common lawyers conceive of maxims technically as the principles from which correct their

legal reasoning legal

maxims

can with assurance proceed

1

.

explicitly to Aristotle’s teachings

Aristotle, in the first

book of the

Fortescue

ties the

about reasoning:

Physics says that ,

We

think

we know

anything when we know the causes and principles of it as far as the

On

ments of it.

this the

Commentator observes

by principles effective causes final causes ,

,

form. In the laws, indeed, there

is

,

and

use of

that Aristotle

meant

by elements matter

no matter and form

ele-

,

as there

and is

in

physical things and in things artificially devised. But nevertheless

there are in

them

certain elements out of which they proceed as out

of matter and form, such as customs, statutes, and the law of nature,

from which

all

the laws of the realm proceed as natural things do

out of matter and form, just as

which are

also called elements.

all

we read comes out of

The

the letters

principles, furthermore,

which

*73

*74

The Common Law Mind

is

the

Commentator

said are effective causes, are certain universals

which those learned alike call

maxims,

just as rhetoricians

These

ians of rules of law.

force of

argument nor by

quired, as

first

speak of paradoxes, and

logical demonstrations, but they are ac-

taught in the second book of the Posteriora by induc-

is

,

book of

memory. Wherefore

Aristotle says in

the Physics that Principles do not proceed out of other

things nor out of one another, but other things proceed out of them.

book of the

in the first

ground for holding

whoever

written that Any principle

it is

For that reason, Aristotle

it.

as

,

Ethics, there

is

final causes, to

principles.

its

which one

it is

is

is its

own

no argu-

written in the sixth

is

any branch of knowledge must

For out of them are discovered the

brought by

a

process of reasoning

upon

knowledge of principles. 2

Throughout the sixteenth and seventeenth yers continue to speak of

and

totelian logic

dialectic

maxims

and to see them

3

stitute,

more than once

maxime

is

describes

Sir

maxims be of

a proposition, to

common

centuries,

law-

in the technical language of Aris-

argument and reasoning. For example,

A

says, There

Hence

no rational ground for principles. Therefore,

are anxious to understand

learn thoroughly

a

Topica

who deny principles because,

ing with those

book of the

civil-

known by

principles, indeed, are not

tion through the senses and

the

England and mathematicians

in the laws of

all

as a starting point for legal

Edward Coke,

in his First In-

in such terms:

men

confessed and granted

without proofe, argument, or discourse. Contra negantem principia non

est

disputandum.

Maxime,

i.e.

a

.

.

sure foundation or ground of art, and a conclusion of

reason, so called quia atque quod

.

maxima

est ejus

maxime omnibus probetur, so sure and uncontrollable

And

they ought not to be questioned.

and in other places calleth ple;

and

dignitas et certissima authoritas,

it is all

axiome, and

it

one with

a

that

which our author here

maxime, hereafter he

a ride, a

that

common ground,

calleth a princi-

postulatum, or an

were too much curiositie to make nice distinctions

betweene them.

And

it is

well said in our bookes, n

Pancient principles del ley. (Coke,

The problem with

the

Institutes 1:67a,

common

}

est

my

a disputer

iob-na)

lawyers’s reliance

guide to the Aristotelian understanding of principles

on Fortescue is

as a

that Fortescue

Common Law Maxims

Reason and the

defines the science.

maxims of

Not only

is

fit

this a

misunderstanding of Aristotle, the ideas thus

common

law do not

well with other parts of the received understanding about the

To be

law.

15

the law according to the principles of theoretical

enshrined as part of the standard description of the always

l

sure, applying Aristotle’s notions

oretical science to legal

combat the charge

maxims hold

that the

common

about the principles of the-

who wish

attractions for those

law

to

radically indeterminate. It al-

is

lows the lawyers to attribute to their maxims universality, perfection, certainty,

and self-evidence. Further,

H.

as

F.

Jolowicz writes about Sir

Edward Coke, it is convenient for those of authoritarian temperment “who perhaps did not wish people to inquire too closely into their [the maxims’s] antecedents.” 4 Unfortunately, repeated assertions that

maxims

“without proofe, argument, or discourse” (Gbke,

are to be accepted

Institutes 1:67a)

do not

keep disputes from arising concerning alleged maxims. Disagreements 5

concerning maxims are predictable, for

as St.

German

has his doctor of

divinity point out, “sythe they cannot be proued by reason as thou

agreest thy selfe they can not they

onles there be

some

them.” 6 This

a

is

may

as lighty

be denyed

as affirmed

approue

statute or other suffycyent auctorytie to

problem that demanded

a solution,

because

if

maxims

are to be the reliable starting point of legal reason, there has to be agree-

ment about what they mining

their validity.

or at least

are,

The common

German and Dodderidge, seem

some accepted method of

deter-

lawyers, with the exception of St.

content to rest on their assertion of the

nondisputability of maxims.

Dodderidge ’s treatment of the disputability of maxims ably

more complex than Coke’s or even

whether is

a

a

maxim can be

primary or

a

Sir Francis Bacon’s.

contested depends principally

secondary conclusion of reason.

clusion of reason, then

it is

If

consider-

is 8

For him,

upon whether

it is

a

it

primary con-

imprinted on the mind of every person by na-

ture,

needs no proof, and cannot be disputed (Lawyer 191-93). Most com-

mon

law maxims, though, are secondary principles of reason, derived

from general customs or the primary conclusions of the law of nature

(

Lawyer 194). 9 Dodderidge follows standard medieval and early

modern teaching on logic in asserting that knowledge of such secondary principles is more problematic, due to “the weaknesse of men’s understanding and the difficultie of the matter” (Lawyer 207). Indeed,

“much

of the manner and forme of Arguments in the Lawes of England” are

176

$

The Common Law Mind

produced by those obstacles ( Lawyer

presumed

to be true,

and the law

194).

will

Some secondary principles

are

“permit no allegation to impugn

them, or any speech or averment to impeach their credit,” even though

do containe manifest and apparent falshood” (Lawyer

in fact “they

204). But

more commonly, secondary

known by

principles are

197,

“dis-

course of reason conducted in argument” and are permitted to be challenged and to be “restrained by exceptions” (Lawyer 196, 207-9). 10 scarcely possible,” says Dodderidge, “to

Law, but that

it

shall faile in

some

"h

ls

make any secondary* Rule of

particular case.”

By reason whereof they doe permit the Rules, Axiomes, and Propositions of the common Law, upon discourse & disputation of reason, to be restrained by exceptions; which are grounded upon two causes. The one is Equity: the other is some other Rule or Ground of Law, which seemeth to encounter the Ground or Rule proposed: wherein, for conformities sake, and that no absurdity or contradiction be permitted, certain exceptions are framed. (Lawyer 209)

might appear that Dodderidge,

It

basis for disputing legal

maxims

that

maxims,

is

in holding that equity can serve as the

radically

undermining the certainty

are alleged to provide as premises for legal reasoning

thus undermining the claim of the law to be called reason. stead, that equity serves to increase the reason of the law a

check to keep secondary principles of

sult

law,

which are

of man’s imperfect reasoning capacity, in

fully

He argues,

He

in-

by operating

fallible as

harmony with

and perfect reason of the law of God and nature.

— and as

the re-

the higher

shows himself to be

aware of the hostility that some of his colleagues hold toward equity

by citing the

common

be controlled

contentions that “if

as often in

should be ... no

all

Lawes should change and

every case as equity would require, then there

Law certaine,” and

all

cases

would be decided according

to “the Arbitrary conceipt of the Iudge” (Lawyer 212).

compromise (which surely would not which “the

common Law in some

the constancy of the law

cases,

proposes

a

satisfy the critics of equity) in

should follow equity, as farre as

would permit, and

one Rule thereof with another: which

He

for the better conformity of

common Law againe in other cases

should refuse equity for the better avoiding of confusion.”

As

his

second basis for permitting

for subjecting

them

to exceptions,

rienced lawyers know, but

many

legal

maxims

to be questioned, and

Dodderidge points out what

all

expe-

nontheless deny: that in a legal system

Reason and the

Common Law Maxims

177

developed over sevefal centuries one will find rules and principles that conflict with other rules

and principles. Serjeant Morgan, in

sixteenth-century discussion of

common

his

famous

law maxims, partially antici-

pates Dodderidge:

But maxims are the foundations of the

law,

and the conclusions of

reason, and therefore they ought not to be impugned, but always to

be admitted; yet those maxims

may by

the help of reason, be

com-

pared together and set one against another (although they do not vary) where to

may

it

be distinguished by reason that

a

thing

is

nearer

one maxim than to another, or placed between two maxims, yet

nevertheless they ought never to be impeached or impugned, but al-

ways to be observed and held

as firm principles

and authorities of

themselves." #

Morgan opens

the door slightly for the examination of

maxims by

permitting the comparison of two maxims for the purpose of determining whether a factual situation

fits

other, but he contends that such a conflict.

comparison

Although Dodderidge claims that he

gan’s statement, he clearly goes

maxims

better under one

are false,

maxims (Lawyer

some

beyond

it,

conflict with equity,

is

will

maxim than

the

never show them to

simply elucidating

freely admitting that

Morsome

and some conflict with other

229). It is for these reasons that

he says that some sec-

ondary principles can be impeached and that exceptions can be taken to them.

The Morgan-Coke

doctrine of the nondisputability of legal

maxims

can be traced back to Fortescue’s fifteenth-century pronouncement that

who deny holding it. 12 The

there can be no arguing with those ciple

is its

own ground

for

principles, because a prin-

doctrine has

its

origins in

Fortescue’s confusion of Aristotle’s description of the principles of theoretical science (which are absolutely true but

cannot be demonstrated

by reason and, hence, cannot be the basis of a reasoned dispute) with the principles of a practical science (such as law),

which are only probably

true and that are properly the subjects of reasoning and argument.

consequence of the

common

As

a

lawyers ’s confusion about the logical the-

ory on which they explicitly rest their treatment of legal maxims, their statements about those maxims sometimes appear to be incoherent. For

example, they frequently assert that maxims are “the conclusions of reason,” but they also hold that they are to be accepted without proof, dis-

The Common Law Mind

178

cussion, or tle

argument on the

that “there

no

is

basis of Fortescue’s quotation

rational

ground

sion and debate

14 .

Coke

for principles .” 13

takes the position that the preeminent

from Aristoordinarily

method of legal reason

is

discus-

But he apparently sees no need to explain why, since

he says that maxims are the conclusions of reason. the reason that underlies

maxims

is

not

He

also insists that

of debate,

a legitimate subject

discourse, or evaluation.

Dodderidge’s sophisticated understanding of the philosophical tradition that underlies his treatment of realistic

maxims

allows

him

to give a

common

and theoretically coherent account of the reason of the

many

law than that offered by

of his contemporaries.

He

more

can admit that

parts of the law are uncertain, inequitable, wrongheaded, or in conflict

with other parts and yet claim that the law

as a

whole

is

reasonable be-

cause of the reason worked out artificially through the debate and dis-

course of lawyers. Although

Coke

at

times also speaks of the the

reason of the law in terms of the erudition and plied to the law through debate

and argument,

scribes that reason in terms of the

skill

at

artificial

of the lawyers ap-

other times he de-

happy experience, without inconve-

nience, that generations of Englishmen have with the law. This suggests that even if he in attaining It is

rigor,

is

concerned with theoretical coherence, he has

it.

not surprising that Coke, with his notorious lack of theoretical

should

feel

no need to harmonize the apparently inconsistent parts

of his discussion of maxims, reason, and the a

difficulty

common

law. It

is,

however,

testament to the hold that the formulations of the traditional ideology

of the

common

law had on the lawyers of the era that

cally acute as Francis

Bacon should pay

a

man

at least lip service to

as theoreti-

them

at the

momment when he is reinventing the conceptualization of maxims the common law. Bacon was instrumental in shifting the common

very in

law conception of maxims from that of “a body of absolute and unquestioned detailed rules” to that of “broad premises for legal reasoning.”

'’

1

Despite this great innovation, however, he illustrates the hold of traditional

common

law ideology on the lawyers of his time because he de-

clines to disclose the reasoning or evidence that lies

of the

new kind of maxims he

undue and preposterous

behind

his

proposes, saying, “I judged

to prove rules and

examples a

it

maxims; wherein

I

matter

had the

example of Mr. Littleton and Mr. Fitzherbert, whose writings are the stitutions of the laws of

England .” 16

in-

CHAPTER NINE

The Common Law Mind

A Summary and Commentary

Case Law Writers on comparative jurisprudence have long stressed attitude toward precedent as the

mon

law and

Roman

a difference in

primary disfinction between the com-

John W. Salmond

legal traditions.

states the stan-

dard view:

T he importance of

judicial precedents has always

guishing characteristic of English law. ever,

.

.

.

been

Nei ther Roman

a distin-

law,

how-

nor any of those modern systems which one founded upon

it,

allows any such place or authority to precedent.

They

further or no other influence than that which

possessed by any

other expression of expert opinions

it

no

1 .

begun

Recently, comparative lawyers have

is

allow

modify

to

this

view of the

standing of precedent as a source of law but only because they conclude that courts

on the Continent began openly to

reaching their decisions. ditions

on the

The

is

on

earlier cases in

standard distinction between the two tra-

basis of their attitudes

element of truth but

rely

toward precedent

based on an

is

extremely misleading, both historically and

jurisprudentially.

The germ emperor

Roman jurists

is

of truth the sole

lies in

the fact that Justinian, by decreeing that the

maker and interpreter of the law and reducing

jurisprudence to a written code, attempted to keep judges and

out of the business of developing the law by further decreeing that

“decisions should be based not

on precedents but on

dle Ages, the civilian jurists took the

and universally taught that

a judicial

maxim non

decision

is

laws.”

:

In the

Mid-

exemplis very seriously

binding only on the par-

179

The Common Law Mind

i8o

ties to the case in

which

since “other judges It is likely,

it is

made but can have no other

must not decide according

legal effect,

to that example.”

however, that as faithful as civilian

jurists

were

3

in repeating

the non exemplis formula, case law always played an important part in the

development of

how

Roman

legal doctrine. If judges

similar cases were decided, there

dictability in the law.

would be

never paid attention to little

coherence or pre-

This would lead to the violation of what has been

regarded as a central requirement of justice since the time of Aristotle — that similar cases be treated similarly. Therefore

nental judges were always aware of what

Medieval

civilians easily

hibition against a reliance

found

a

way

w as done r

I

suspect that Conti-

before in similar cases.

to justify circumventing the pro-

on precedents. Even though precedents them-

selves could not serve as authority for judicial decisions, these civilians

developed the doctrine that lish the existence

it

takes only

two

judicial decisions to estab-

of a legally binding custom. In other words,

upheld in two decisions,

it is

proved to be

a

if a

rule

is

custom. Since the civilians

agreed that customs were “law” within the meaning 5 f Justinian’s Code 7.45.13,

two

earlier judicial decisions could serve as legal authority for

present decisions. If the civilians’ avoided their rule against the authority

of earlier decisions by the exercise of a jurisprudential sleight of hand, the

common lawyers,

contrary to widespread

doctrine of binding precedent. Bracton

is

belief,

alone

had for centuries no

among

the early treatise

writers in showing any interest in decided cases, referring to several hun-

dred cases in De Legibus and collecting some two thousand cases in his Notebook. But Bracton did not intend his cases or case citations to be re-

garded

A

as

having binding force in future cases.

workable doctrine of the binding authority of earlier cases

difficult to achieve

Within it

a

very

is

without reliable reports of what those cases hold.

generation of Bracton’s death the Year

continued until the sixteenth century.

Book

series began,

The Year Books

and

are crude law

reports, but they were not designed for the purpose of recording precedents. Instead, they

were used for teaching law students and lawyers the

techniques of pleading.

The judgment

users of the Year Books, and so

it is

in a case

was of no interest to the

not ever reported.

The

object of

pleading was to determine the issue, which was then decided as a question of fact.

The

idea

was to

arrive at an affirmative proposition

coun-

tered by a direct negative. Pleading was done orally and tentatively; no

written record was

made

until the

end of the term. Pleas could be

tried

Summary out and withdrawn

if

arid

Commentary

181

problems were encountered. The Year Book

re-

porters were interested in what happened to particular pleas and in the

arguments surrounding the pleas and demurrers.

As long

as the interest

of the profession concentrated on the formula-

tion of the issue rather than

was

on the decision of

pressure for the kind of accurate reporting that the theory of

little

binding precedent requires. Such pressure

ment of

come only with

the develop-

the view that particular decisions are authoritative in regard to

the issues they decide.

from

particular points, there

The

shift,

beginning in the fifteenth century,

oral pleadings to written pleadings “enabled the point at issue to be

defined

more

clearly,

and concentrated attention more firmly upon the

decision of that point.” 4 This in turn led a shift in interest from the for-

mulation of the issue to the decision of the est

from the debate

the growth of the cases and to the

According to the Year

Books

in court to the decision

modern view

issue.

as to the authority

is

in fewer than

the shift in inter-

ofThe court eventually led to

growth of the practice of citing

my count,

And

of particular decided

cases.'

one of twenty cases reported

in

there any mention by counsel, judge, or reporter of

any earlier case. Reference to an earlier case specific enough for identification

is

much

rarer.

more frequently

As the Year Book period came

to an end, cases are

cited than in the earlier Year Books, “but at

were the citations

sufficiently

practice of relying

on

numerous

judicial decisions.”

to say that there

was

no time

a general

6

After 1535 the Year Books ceased, but they were replaced by reports of cases compiled

by named reporters. Some of the early reports, such

those of J. Dyer, closely resemble the Year Books.

Commentaries which cover ,

are very different

much

and establish

a

Edmund

as

Plowden’s

of the same period as Dyer's Reports,

model

for accurate, detailed, clear re-

porting of the questions at issue, the debates of council, the judgments,

and the reasons for the judgments. Although Plowden’s reports were greatly admired, they were not emulated until Burrow's Reports of the

mid- eighteenth century. And

until accurate reports

were

available, the

modern theory of case law and precedent, which holds that a case once decided binds a court to make the same decision in a future similar case, could not be fully established in practice. "Phis

is

not to suggest that the

view that particular decisions are binding was arrived can see

its

at

suddenly.

We

foreshadowing in the sixteenth and seventeenth centuries.

Neither Plowden nor Dyer contain assertions that precedents are bind-

1

The Common Law Mind

82

both continue the practice, begun in the

ing, but

creased citations of earlier cases. 8

Some

den contain more than twenty case

coming

By

the time of

Coke and Bacon

common

of the cases reported by Plow-

common

for

were

lawyers.

in the early seventeenth century,

became

authoritative.

But seventeenth-

lawyers like Coke, Bacon, and later

Matthew Hale do

prior decisions unquestionably

century

Year Books, of in-

citations. Clearly, decided cases

much more importance

to have

later

not regard individual decided cases as law; they see cases as the “evi-

dence” or “proof” of law. “Our Booke Cases,” writes Coke, “are the best proofes of what the law

by

Sir

0

is.”

This understanding

is

stated in

more

detail

Matthew Hale: the Decisions of Courts of Justice, tho’ by Virtue of the

It is true,

Laws of

this

Realm they do

bind, as a law between the parties

thereto, as to the particular

Case

or Attaint, yet they do not

make

in Question, a

Law

’till

revers’d

by Error

properly so called, (for that

only the King and Parliament can do); yet they hav^a great weight at

Authority in Expounding, Declaring, and Publishing what the

law of this kingdom

is,

especially

when such Decisions hold

a

Con-

sonancy and Congruity with Resolutions and Decisions of former times; and tho’ such Decisions are less than a Law, yet they are a

greater Evidence thereof than the Opinion of any private Persons, as such, whatsoever.

The view parties

is

10

that individual legal decisions are binding only identical to the civilian

sions. Just like the civilians, the

bound to give Vaughan put it If a

cording to law. For

my

judicially,

This sounds

lawyers teach that judges are

As Chief

Justice

like

a like cause.

is

not bound to

first

given was ac-

another Court

think that judgment

in another

sworn to judge according ought not to give the

it

Court may

judgment given

having

common

in 1670:

give like judgment, unless

man

view of the authority of judicial deci-

their decisions according to the law.

Court give judgment

ceives a

between the

err

.

.

.

Court

to law, that

therefore,

if a

judge con-

to be erroneous, he being

is,

in his

own

conscience

judgment, for that were to wrong every

11

like a civilian gloss

on

Justinian’s decree that “decisions

should be based not in precedents but on laws.”

Summary and Commentary Undoubtedly, the history,

much more

cided cases.

mon mon

It is

common

law has always been,

at

.83

every point in

its

receptive than the civil law to the influence of de-

case law rather than

book

law.

But when leading com-

lawyers and judges feel called upon to announce the official

com-

law theory regarding the authority of precedents, they usually say

something that

have no quarrel with. Sometimes they

civilian jurists

even quote from Justinian,

when Chief Justice

as

Bereford, in the early

fourteenth century, states a garbled but clearly recognizable version of the

maxim non

T If there

is

an important difference between the

common law doctrines of precedent, it lies in the fact that common lawyers do not teach that judges have to ignore precedent.

civilian

the

exemplis

and

They hold hold that

that precedent has to

it is

conform

to reason and the law, and they

the law and not precedent that constitutes the authority for

judicial decisions.

But they are always open

yers and judges might learn something

from

to.

the possibility that law-

earlier cases.

Common Law and Statute The common

lawyers never accepted the view that general custom can

abrogate statutes, notwithstanding Mcllwain’s thesis that the medieval

common

common

lawyers regarded the

fundamental law to which

all

mon

To

a

Not

a

other forms of law are subordinate.

by

single statement of that doctrine

found.

law (conceived as custom) as

a

medieval

the contrary, the Year Books

make

it

common

lawyer

is

to be

very clear that the com-

lawyers universally held that statutes controlled the

common

law in

cases of conflict.

In the seventeenth century, in Dr. livered himself of

some remarks

will

it

that are

common

that he understands that the

And

Bonham V law

appears in our books, that in

Case, Sir

Edward Coke

sometimes taken is

as

de-

evidence

superior to statute:

many

cases the

common

law

controul Acts of Parliament, and sometimes adjudge them to

be utterly void: for

when an Act of Parliament

is

against

common

right and reason, or repugnant, or impossible to be performed, the

common In Rowles

v.

law will controul

Mason,

a later case

law and local custom, the

common

it,

Coke

and adjudge such Act to be void. 13

involving a conflict between the

sets

common

out to explain the relationship between

law and the other two kinds of English law:

184

The Common Law Mind

§

Fortescue and Littleton and sists

others are agreed that the law con-

all

common

of three parts. First,

Secondly, Statute Law,

law.

common

which corrects, abridges and explains the

Custom, which takes away the common corrects, allows

law:

law: the third,

But the

common

law

and disallows both statute law and custom, for

if

there be repugnancy in a statute, or unreasonableness in a custom, the

common law disallows

and rejects

it,

as

Bonhams

appears by Dr.

Case. 14

some

cir-

law will override the authority of statutes.

Un-

Both of these statements do appear to hold that cumstances the

common

fortunately for those the

common

liament,

law as

who contend

a

“power and

in these cases

Crown and

Par-

which are established by Parliament” and that the

jurisdiction of the Parliament, for the it

causes within any bounds.”

Coke

1 -

and he may well be on

discover pretty

much what

Those disposed

to see

Bonham's Case that the

all

is

“so

cannot be confined either for persons or is

manifestly capable of being incon-

this subject. Scholars find

as a theorist

possible to

it

of

a

fundamental law superior

other law find support in the statement in

common and

void, acts of Parliament,

making of laws”

they want to discover in these passages.

Coke

to king, parliament, and

law will sometimes control, and even

in the Rowles statement that the

law corrects, allows, and disallows other law. Those as

presenting

is

and most binding laws

asserts that “the highest

transcendent and absolute as

sistent,

Coke

fundamental law that limits both

Coke elsewhere

are the statutes

that

at least in

who want

common

to see

him

an advocate of parliamentary sovereignty happily notice that in Rowles

he says that statute law corrects the tutes

common

law and that in the

Insti-

he asserts that the highest laws are those made by Parliament.

Perhaps the most plausible interpretation based only on

a

reading of

Coke tries out the fundamental law idea and then either changes his mind or is pressured into offering a different view. 16 Although in chapter 7 I attempt to show how hard it is to be certhese four passages

is

that

tain about Coke’s views, in Botihatn 's Case

I

tend to side with those

Coke never

teaches that the

authority to statute, although

from

A

theirs.

my

reasons

who contend

common

may

law

is

that even

superior in

be somewhat different

17

passage in Justinian’s Digest

interpreter of statutes.”

Even

(1.3.37)

holds that “custom

civilians like

is

the best

Lucas de Penna, skeptical of

Summary and Commentary

185

custom’s powers to abrogate statutory law, allow custom considerable

scope in interpreting and supplementing statutes. Similarly, although

common law was always that legislation is suthe common law, the common law is frequently

the settled doctrine in the

perior to custom or to

said to be the best interpreter of statutes. In the sixteenth century,

common

lawyers and judges became increasingly interested in the prob-

lems of statutory interpretion and developed rules to guide their interpretive practice.

tation holds that the best interpretation

18

is

Byzantine network of

a

One

of the rules of interpre-

most consistent with

the one

reason — not reason in the abstract but the reason of the

“And

also statutes

common

law.”

1

common

law:

ought to be construed according to the reason of the

Perhaps because the judges were losing the power they

''

once possessed to openly exercise discretion in interpretation, they begin to show

a willingness to find that statutes fail the test

When

ableness.

they find

a statute to

read

it

Stowell

in a

manner

would make

that

it,

Lord Zouch three judges say

v.

be unreasonable or to create mis-

do not declare

chiefs or inconveniences, they

,

of reason-

it

in their

to be void; they simply

judgment, reasonable. In

that:

Acts of Parliament are laws positive which consist of two parts. first is,

the words of the Act, the other

is

the sense, for the letter

without the sense does not make the law, but the together.

.

common

law,

.

.

And

and has

said),

the

which a

way

is

to

letter

apprehend the sense

is

and the sense

to consider the

the ancient of every positive law (as

Brown

place in the exposition of the law positive; and

thereby the mischiefs and inconveniences, which are in the

letter,

are to be considered and avoided by the application of reason,

by putting such construction on the law positive rigors

as shall exclude all

v.

Steward also upholds the power of the

judges to construe statutory language differently from in order that the statute

might meet the

“And so the Judges have expounded the particular, which exposition is contrary contrary to reason. statutes,

.

.

.

And

common

text

test

which

is

common its

law

apparent

of reasonableness: general to be but

to the text, because the text

is

so reason shall guide the exposition of

and the equity of them.” 21

of the powers of the against

and

and mischiefs, and stand with equity and good reason. 20

Fulmerston

meaning

The

common

When Coke

speaks in Bonham's Case

law to control statutes

when they

are

right or reason, or repugnant, or impossible to be per-

The Common Law Mind

i86

formed,

mon

suspect but cannot prove that he

I

law

is

common I

know

common

superior to statutes or that the

power of judicial review; he

not claiming that the com-

is

law judges have the

merely continuing to assert the power of

is

law judges to interpret statutes in ways consistent with reason.

of no sixteenth- or seventeenth-century

common

law case in

be void.

We

today, having been ex-

posed to the jurisprudence of legal realism,

may

feel inclined to say that

which the judges hold

a statute to

power hardly distinguishable from the

common

approach to interpretation gives the

in fact this

common

that of judicial review

law judges

and

a

that, if

law truly does provide the measure for the reasonable-

ness of statutes, then

That, however,

is

a

conclude that

fair to

it is

view from the outside.

his sixteenth- century

models looked

it is

doubtful that

It is

at the

superior to statute.

Coke and

matter in that way.

Custom Medieval

civilian jurists

took

They concern

thoritative source of law. as

what custom

is,

as a given that custoiti

it

thority

status as law

its

might have once

it

There were two dence about theories has

The major

to create law,

what

by whose aulegal effect

it

attained legal force, and as usual each of those

origins in apparently incompatible Corpus Juris texts.

on custom base custom’s

Some of the

on the

legal authority

texts,

however, assert that only the emperor

earlier

medieval civilians took very seriously

the Digest texts that hold custom’s binding authority derived people’s agreement or consent

(1.3.32. 1

and

1.3.35)

the medieval civilians was to the contrary;

they taught, had by means of

a lex regia

from the

an d taught that

voluntas populi that gives legal character to custom.

among

law,

basic and quite different theories in civilian jurispru-

Digest texts

law.

power

might become

has been established.

consent of the people; other

can make

its

it

might be established, and what

how customs its

themselves with such questions

under what circumstances

theoretical justifications underlie

could be an au-

sometime

lawmaking power

it is

the

The majority view the Roman people,

in the distant past ir-

to the emperor,

and

revocably transferred

all

therefore ultimately

was only the emperor’s consent, either express or

tacit, that

it

could give legal force to custom.

Not many medieval the

their

most committed

civilians held either

imperialists

theory in

its

were impelled to find

pure form. Even a place for

popu-

Summary lar

a?id

Commentary

187

action and consent in the development of customary law because the

very idea of custom presupposes the people’s action and participation.

By

the fourteenth century nearly

remote

(or intermediate,

legal force

civilians accepted the

depending upon the

view that the

cause of custom’s

jurist)

the people’s usage and the proximate or primary cause

is

the sovereign

is

power of the emperor.

common

Although the the tests for

all

its

validity

lawyers borrowed the concept of custom and

from the

civilians,

they did not borrow

its justi-

They certainly never based its authority on the idea of popular consent. The early treatise writers clearly feel a burden to estabficatory theory.

lish that the

unwritten laws of England have the status of binding law,

but they are satisfied that paraphrasing civilian texts that recognize that

To

laws could be unwritten accomplished that purpose.

the extent that

they take into account the theory behind those civilian texts, they support the imperial theory rather than the theory of popular consent. Glanvill, in its twelfth-century defense of the legal authority

glish unwritten laws, asserts that

not absurd to

it is

call leges

of En-

those laws

that were settled in council with the supporting authority of the prince.

To make

certain that

ity that gives

no one misunderstand

that

it is

the king’s author-

English laws their legal character, Glanvill immediately

quotes the famous

Roman

maxim, “What pleases the prince

imperialist

has the force of law.” Half

a

century

later,

Bracton also attributes the

authority of English unwritten law to the king’s approval.

argued that both Glanvill and Bracton developed their

what eventually came to be standard

civilian doctrine

own

It

might be

versions of

about the source

of the authority of customary law, for they both suggest that English

unwritten laws originate in the decision and approval of the magnates (remote cause) but get their authority from the approval of the king (proximate cause). This interpretation does not work, however, because if

the unwritten laws originate with the magnates’ decisions and ap-

proval,

we

clearly are not talking about

custom but about proposals

for

At the end of the thirteenth century an abbreviated version

legislation.

of Bracton s De Legibus appeared. several centuries,

it

represents

Known

all

as Britton

,

and widely used for

English law as proceeding from the

king’s authority.

There

is

no discussion of what gave custom

Year Books.

shown

It is

its

authority as law in the

true that a custom, in order to be held valid, needs to be

to be reasonable. Therefore,

it

might be

said that the

common

The Common Law Mind

188

lawyers in the fourteenth and fifteenth centuries held that reason

reasonableness

law’s validity;

binding

it is

necessary background condition for any

just a

not the primary or proximate cause of

common

Sir

John Fortescue

status as

lawyers praise the

in the fifteenth century, a succes-

common

law for

and should they have perceived

law, they

might have argued that people ought to obey

all

human

laws.

a

need to

However, unlike the

and Bracton, they evidently

felt

wisdom and

its

cellence,

best of

its

law.

Beginning with sion of

is

the

But for medieval lawyers, both English and

basis of custom’s authority. civilian,

is

ex-

justify its authority as

civilians,

it

because

it is

the

and unlike Glanvill

no need to provide any

theoretical basis

for the binding character of English custom.

Christopher

St.

and early modern

German

is

common

an interesting exception to the medieval

lawyers’ almost total lack of interest in legal

theory, and in an exposition that

primarily dependent on medieval

is

theology, he locates the general custom of England in a hierarchy of laws.

this far,

it

should have

him to model his theory of custom’s authority on teachings of someone like Aquinas. He does not. Instead he merely

been the

Having followed the medieval theologians relatively easy for

says that

By

custom

itself is the

the sixteenth century

doubt that custom or the

only authority for

it

its

status as law.

no longer occurred to

the seventeenth century too, but sometimes,

like Sir

common

when

is

bind-

generally true of

there was a conflict

law and the king’s prerogative, royalist lawyers

John Davies would

common

lawyers to

common law is law or to imagine that the

ing legal character of either needs exploration. This

between the

common

feel the

need establish the dependence of the

law on the king’s authority and consent. In making this case,

royalist lawyers rely heavily

Corpus Juris of Justinian.

and

Had

explicitly

Davies

on

known

imperialist passages in the Glanvill and Bracton better,

he could have built his case from English materials. Most of Davies’s peers rejected out of hand his claim that the king’s prerogative

is

not

common law, but if they objected to Davies’s assertion that common law itself is allowed to exist only by the king’s grace, they

part of the

the

leave

no record of it.

With only

a

few exceptions, from the

late twelfth

century on, the

common

lawyers recognize custom as an authoritative source of law 22

They do

not, despite

all

.

English law

is

what C. H. Mcllwain and others claim, think that

customary

in nature.

Summary and Commentary

Two

may

things

be said with assurance about the authors of the

twelfth- and thirteenth-century Bracton:

what

little

common

law treatises, Glanvill and

they have to say about the nature of customary law

borrowed or derived from the writings of civilian

much

have

189

is

and they do not

jurists,

Both Glanvill and Bracton are concerned to claim for

to say.

the unwritten English laws the status of law. So far as their authors knew, for the entire civilized world outside of England, the

primary source of

law was legislation. Unwritten customs, they were taught by the civilian authors they read, could only be a secondary source of law. So what of

England,

in

laws? This

which

is

laws are unwritten?

all

Must

it

be said that

has no

it

the threshold question that Glanvill and Bracton set out to

on Roman

answer. Relying

legal sources,

they both conclude that the

law was not reduced to writing does not keep

fact that English

it

from

being law. It is far

from

clear that either Glanvill or Bracton conceive of

English laws as custom.

More

precisely,

it is

all

the

not clear that either con-

ceive of the general law of the whole realm as custom. If they do, their

conception of custom

of

all

different

common

civilians or all of the

One cannot say with

is

from that held by either the medieval

lawyers only

a half

century after Bracton.

certainty that Glanvill and Bracton do not conceive

written laws as custom; both wrote treatises on “the laws and cus-

toms of England.” The mere use of the expression “laws and customs” tells

us very

however, about whether they conceive of all unwritten

little,

laws as customs.

The

phrase by

itself is

ambiguous; while

it

does not sug-

gest that English laws are equivalent to customs, neither does sarily suggest that laws

it

neces-

and customs are to be distinguished. In the only

unambiguous use of the word “custom” only to local customs.

When

to the laws governing

all

in either

work, Bracton refers

Bracton and Glanvill unambiguously refer

of England, they use the word

leges.

This alone

does not suggest that they did not conceive of the general law of England as

custom;

lex ius ,

glish lawyers.

that law

,

and

cotisuetudo are

But both works’ discussions of the law of the realm make

seem much more

like legislation

the medieval civilians and later

When

used interchangeably by early En-

common

than

like

custom

(at least as

lawyers understood custom).

they write of the unwritten laws of England, the Glanville and

Bracton make

it

clear that they have in

sions of the king,

been recorded

made with

in writing.

mind

the enactments and deci-

the advice of the magnates, which have not

190

The Common Law Mind

§

Glanvill and Bracton say very

and what they say

from

is

little

about the nature of customary law,

borrowed either directly from the Corpus Juris or

medieval glossators. Glanvill speaks of “customs of the realm

its

which had

and have long prevailed.” Here, in very

their origin in reason

general terms, are the two basic medieval civilian criteria for valid cus-

tomary law — long usage and reasonableness. Bracton does not hold custom to the standard of reasonableness, but

usage has approved. clearly based

on two

The

does identify

it

passage in which

Digest texts

reasonableness a test of custom

(1.3.1

and

it

it

with what long

defines lex and consuetudo

and

1.3.32),

may perhaps be

its

is

omitting to make

explained by the fact that

the Digest itself does not require that customs be reasonable.

During the Year Book period (from the teenth century) the

common

late thirteenth to the six-

law conception of custom

tinguishable from the medieval civilian conception.

about custom by virtually differ

all

common lawyers and

almost indis-

The

discussions

judges reported in the Year Books

have to do with the validity of alleged local customs, which

from the

rules established

biguous identification of the

common

is

common

by the

common

law literature or case reports

law.

The

law as custom that is

the last half of the fifteenth century. All

made by

human

Sir

I

first

unam-

found in the

John Fortescue

laws, he says, “are either

laws of nature, customs, or statues.” 23 Given these possibilities, the

mon law can only be custom.

in

com-

Fortescue praises English customs for their

antiquity and their reason, but he does not present either as a test of the

common

law’s validity.

Fortescue’s three-part division of law did not take hold

common

lawyers.

By

the mid-sixteenth century

it

among

became the

the

universal

practice to distinguish three kinds of law in England: “the law general (that

is,

the

common

law),

customs, and statute law.” 24 This distinction

was retained for centuries. By “customs” the sixteenth-century

common

mean only local custom. For a local custom to be allowed, proof had to be made that it had existed “from time immemorial” and that it was in harmony with reason — the standard civilian and medieval common law tests for the validity of custom. The increased frequency and lawyers

sharpness of challenges to customs for failing to meet these

compared ing

to the Year

less tolerant

Book

period, suggest that the courts were

tests, as

becom-

of local deviations from the law of the whole realm. In

any event, the sixteenth- and seventeenth-century reports are examples of customs being held

strictly to the

filled

with

time-of-usage and reason-

Summary and Commentary ableness standards, with

more than

a

few failing the

tests.

The

191

sixteenth-

how one

century reports, however, provide no more information about

know when the tests had been met than do the Year Books. The hardest question to answer about the sixteenth-century common law approach to custom is whether, despite the fact that it was now the could

universal practice to distinguish the

common custom.

lawyers

The

common

law from “customs,” the

really follow Fortescue in conceptualizing

still

evidence

is

it

as

inconclusive.

*

On mon

the one hand, the medieval practice of never examining the

law to see

met

if it

com-

the time-out-of-mind requirement of cus-

tom was continued. Indeed,

just as

with the Year Books, the sixteenth-

century reports contain not even an abstract statement of any require-

ment

common law rule must have been practiced for a of time. If the common law was really conceptualized as

that to be valid a

certain length

why was

custom,

never held to the central'Test for the existence of

Furthermore,

valid customs?

common

it

law suggest that

it

many of the

was thought of more

ing of the professional elite than as the

On the other hand, common which

law

it is

is

Plowden records

is

common

at least

one instance

common law is

learn-

common

which the

in

another in

use,”

usage which proves what the law

is,”

and

a

described as “the custom in relation to

third in

which the

letters,

counts, pleas and judgments

common

as the

custom of the realm.

described as “nothing but

asserted that “it

suggest that the

reported discussions about the

All these statements appear to

law was conceptualized as custom, but there

are reasons to be cautious about reaching that conclusion. Sixteenth-

century

mon

common

lawyers were accustomed to using the phrase “com-

One

usage” in two quite different senses.

refers to the usage of

those learned in the law, the other to the usages of the people.

one instance

in

which the term “common usage” apparently

usages of the people (when the reference

is

td the

I

found

refers to the

common

law rather 1

than to local custom); in the other instances, the phrase can more naturally

be taken to refer to the usages of the

case in

which the

common

clear that the reference

is

law

is

to the

said to be

common

law courts. In the

custom, the context makes

custom of the

common

it

law bench and

bar and not of the people. I

read this inconclusive evidence as suggesting that the sixteenth-

century ing the

common lawyers had available to them several ways of describcommon law, one of which is in terms of custom and usage. But

The Common Law Mind

192

if

some of them

ception has

did conceive of the in

little

common

Most important, they do not of prescription. Second, professional

Such

elite.

law as custom, that con-

with their conception of local custom.

common

insist that a

law usage have

a

time

the usage not of the people but of a tiny

it is

a

common

conception of custom not only

is

incompatible

common law description of custom, it is also incomRoman law doctrine from which that traditional de-

with the traditional patible with the

scription

drawn.

is

The common

law conception of the nature of particular custom, and

the tests prescribed for validating custom’s existence, did not change in

Custom

the seventeenth century.

is still

defined as a reasonable usage of

the people, continued time out of mind. But

if

custom did

the tests for

not change, the rigor with which they were applied greatly increased to-

common law judges became common law and began to ex-

ward the end of the sixteenth century. The zealous in supporting the authority of the

amine

local

strictness

customs very

strictly

26

.

The

historian

is

not

left

from the increasing frequency with which the courts found

that customs violated the reasonableness test; the rule stated that

In the

portant

to infer this

“when

first

a

custom

is

pleaded

it

shall

be pleaded

part of the seventeenth century, for the

common

is

frequently

stricti juris .”

first

time, an im-

lawyer began unequivocally to describe the

law as the custom of the English people.

have discovered, describes

it

in

He

also, for the first

terms of all the

tests that

27

common

time that

I

had before been

applied only to local custom. In the law reports of the second half of the

common law is sometimes referred to as the “com-

sixteenth century, the

mon custom of the realm,”

but

we

find little evidence that sixteenth-cen-

tury lawyers understood that phrase as referring to anything other than the learning of the judges and lawyers

With

Sir

law, as tices

John Davies,

all

common custom

who work

in the king’s courts.

that changed. Davies teaches that the

of the realm,

of the English people and

memory. Furthermore, he

is

is

common

created by the usages and prac-

recorded nowhere but in the people’s

explicitly describes the

common

law in terms

of the standard tests for valid custom: a reasonable act continued time

out of mind. Davies’s views are not representative.

Only

lawyer in the early decades of the seventeenth century make defining the

common

common

rarely does a a

point of

law as custom and then proceed to draw important

Summary and Commentary from that

jurisprudential or political conclusions

definition.

193

This

is

from

ticularly true of the period’s purely legal literature, as distinguished political tracts,

who was

posed by someone

I

believe

it

very likely that

pressed to classify the

common

common

if

Having

common

the typical

would have done so not because he made

mon

law.

he would have called

law,

be com-

Even Coke does not consistently

a lawyer.

emphasize the customary nature of the however,

may

speeches in parliament, and so forth that

par-

a fetish

it

said this,

lawyer was

custom.

He

of thinking of the com-

law as custom, or because in some deep way he understood

it

to be

custom, but because he lacked the conceptual tools for thinking of

human

Many common

law in any way other than as custom or statute.

make

lawyers said things that

it

clear that they well

understood that

call-

common law custom was a fiction. Even the way Coke underthe common law required a new classification and terminology lo-

ing the

stood

cated conceptually between custom and judicial precedent.

:s

common lawyers used two common law — “common erudition” and “common

In the fifteenth and sixteenth centuries, expressions for the

reason”

— that

might have served

captured the essence of

stood the

purpose

this

well, for together they

how many seventeenth-century

common law. Having gone

lawyers under-

through the process of education

at

the Inns of Court, apprenticeship at the bar, and practice and intimate intellectual association with the tiny legal elite, they

that if the

common

law was custom at

sense that custom of a borough or a lar rule existed at

common

common

vill

in the

was custom. Whether

since time immemorial.

it

same

a particu-

When a

puta-

law rule was being discussed in court, no one ever asked

whether the English people had practiced tice

was not custom

law did not depend upon factual proof that

the English people had lived by tive

all, it

understood clearly

it

or, if so,

whether that prac-

had continued without interruption time out of mind. Such ques-

tions were not even asked regarding so-called “customs of the court” (that

is,

the rules established by a court for the conduct of court busi-

ness):

“For the customs and courses of every of the King’s Courts are

a law,

and the

of them, and

common it is

law, for the universality thereof,

as

doth take notice

not necessary to allege in pleading any usage or pre11

scription to warrant the same.”-

The

'

reason no lawyer discussed the

time of usage of a consuetudo curiae or of any alleged

common

that he understood that the existence of such a rule

would be

,

law rule, settled

is

by

J

The Common Law Mind

94

“common

the

erudition” of the profession (the accumulated lore passed

on from one generation of lawyers

to the next) and

by “common reason”

(the accepted, artificial, reasoning of the profession).

The language for use in a

mon

common

of

more

realistic

erudition and

common

reason

may be

com-

conceptualization of the nature of the

law, but for a variety of reasons

it

was not used for such

apt

a reinter-

may be found in the enormous inEdward Coke. Although Coke himself frequently talks

pretation. Part of the explanation

fluence of Sir

common law in ways more consistent with its conceptualizathe common erudition of the legal profession than as custom, he

about the tion as is

the ultimate traditionalist and so occasionally

more important, from the

it

was very hard for the

calls it

common

lawyers to break away

as

name

fication for

is

why

explaining

they called

it

its

their law

Had

law be-

no theory worthy of

was authoritatively binding. As long

custom they did not need

authority, because

over Europe.

all

common

traditional descriptive terminology for the

cause, unlike their civilian counterparts, they had

the

custom. Perhaps

to provide a theoretical justi-

custom was

a

recognized source of law

they taken the position that the

common law really

not custom but rather the accumulated learning and accepted reason

of the legal profession or even of the judges, they would have to build justification

from the ground up. And that would require more jurispru-

them

dential innovation than their practice-oriented training provided

the resources for, especially since they had

mon

law or in the

nally, part

civil law, for a

common

no models, either

common

law in terms of

common

We

com-

lawyers did not formally

common

the fact that the law was developing in a direction that

eventual conceptualization as the

in the

theory of judicially developed law. Fi-

of the reason that the

reconceptualize the

the

a

sum of

erudition

lies in

would lead to

its

the precedents established by

law courts.

must conclude that the

legal literature of the early decades of the

seventeenth century does not reveal an understanding of the nature of

common law which was so dominant that it can accurately be called the common law mind. But if it is not possible to find a single, dominant common law mind, it is possible to identify two broad orientations toward the common law. Coke, Davies, and Hedley are representative of the

the

more

traditional of the

two orientations:

in

important passages,

not consistently, they emphasize the antiquity of the identify

it

common

if

law and

with custom. Bacon, Dodderidge, Finch, and Selden are rep-

Summary and Commentary resentative of those lawyers

who brought

l

95

either their educations in phi-

losophy, logic, and other legal systems or their training in the

methods

of humanistic scholarship to bear on their consideration of the

common

law; hence, they are less

formulas. the

We

common

prone to limit their discussions to traditional

cannot describe the jurisprudence of the great majority of lawyers because they

left

no record of

we can say, on the evidence we have, mon law mind ip the period, it was divided.

most

that

is

their thoughts.

that

if

there was

a

The

com-

NOTES

Introduction See John William Salmond, Jurisprudence nth

1.

ed., edited

,

(London, 1966), 109-12; Carleton Allen, Law

in the

Making 7th ,

by

P. J.

FitzGerald

ed. (Oxford, 1964),

1-66.

Percy H. Winfield, Chief Sources of English

2. J

9 2 5), 4 2

Ijrgal History

(Cambridge, Mass.,

-

William Holdsworth, Sources and Literature of English Law (Oxford,

3.

1925), also

takes this approach. 4.

David M. Walker, The Oxford Companion

5.

Frederic William Maitland, The Letters of Frederic William Maitland edited by

to

Law

(Oxford, 1980), 1156. ,

Cecil H.

S.

The

Fifoot (London, 1965), 222.

1901) says of Maine that “his inability for

Dictionary of National Biography (London,

drudgery shows

itself

by one weakness of his

books, the almost complete absence of reference to authorities.”

John Chapman Gray, The Nature and Sources of the Law (New York, 1921 [1909]); Allen’s Law in the Making was first published in 1927; Allen revised his book seven 6.

,

times.

See

7.

G. A. Pocock, “The History of Political Thought:

J.

quiry,” in Philosophy Politics ,

man

,

and

Society edited ,

by Peter Laslett and Walter G. Runci-

(Oxford, 1962), 183-202; Pocock, Virtue

1985), 1-34;

History

ing of Texts,”

Commerce and History (Cambridge, ,

New

Dunn, “The

in the

(1969): 3-53; Skinner, “Motives, Intentions,

Literary History

3

(1972):

393-408; Skinner,

Thought and Action,”

Analysis of Political

Political

Theory

History of Ideas,”

and the Understand-

“Some Problems 2 (1974):

in the

277-303; John

Identity of the History of Ideas,” Philosophy 43 (1968): 85-116.

8.

Pocock, Virtue Commerce and History

9.

Ibid., 10.

,

,

Chapter in 1.

,

Quentin Skinner, “Meaning and Understanding

and Theory 8

A Methodological In-

Norman Doe

fifteenth century in

,

9.

Conceptions of English Law the Medieval Treatises

i:

has done solid work on

Fundamental Authority

common

in Late

law jurisprudence of the

Medieval English

Law (Cambridge,

1990).

l

97

Notes to Pages

198

Howard Mcllwain, The High

Charles

2.

(New Haven,

1910), vii,

Court of Parliament and

A

First

Book ofJurisprudence, 6th ed. (London, 1929), 254.

For example, early in the sixteenth century

4.

Supremacy

Its

44.

Frederick Pollock,

3.

1-6

German wrote

St.

that “the thyrde

grounde of the lawe of Englande standeth vpon dyuerse generall Customes of olde

tyme vsed through

all

called the

common

Theodore

F.

a

.

.

And

.

these be tho customes that proprely be

lawe.” Christopher St.

German, Doctor and Student

common

law was “nothing else but the

Common

practice,

it

always said to be lus

can be recorded and registered no where, but

John Davies, The Works

ple.”

is

scripts

in Verse

Henry

1972),

2.

I,

.

.

but in use and

memory

of the peo-

and Prose Including Hitherto Unpublished Manu-

Leges Henrici Primi, edited and translated by L.

Downer

J.

(Oxford,

Hereafter, Leges.

6.

Theodore

7.

“They”

F.

T. Plucknett, Early English Legal Literature (Cambridge, 1958), 29.

refers to those

by the bishops,

mentioned

in the text:

earls, sheriffs, deputies,

“The meetings

shall

be attended

hundredmen, aldermen, stewards,

barons, vavassors, villege reeves, and other lords of lands it

in the

.

no?i scriptum;

of Sir John Davies, edited by Alexander Grosart (Blackburn, 1869-76), 2:251-52.

5.

to

custom of the Realme; and

cannot be made or created, either by Charter or by Parliament

it

edited by

the strongest of such statments in the seventeenth century, asserting

custome which hath obtained the force of a lawe,

for

,

T. Plucknett and John L. Barton (London, 1974), 45, 47. Sir John Davies

made perhaps that the

the realme.

who

shall

reeves,

with diligence see

that failure to punish evildoers or the viciousness of officials or the corruption of

judges shall not destroy those suffering under their accustomed afflictions.” Leges, 8.

If,

as

Liebermann

teenth century,

it is still

suggests, this passage difficult to

is

7,2.

an interpolation from the early thir-

conclude that

all

English law was understood in

the twelfth and thirteenth centuries to be customary in nature. See F. Liebermann,

Die Gesetze der Angelsachen (Halle, 1903),

The

9.

3:316; Leges 317.

identity of the author of Glanvill

is

the subject of considerable scholarly

may have been Rannulf de Glanvill or another royal judge, or it may have clerk who was familiar with the royal court. See Rannulf de Glanvill, The Trea-

dispute. It

been tise

a

on the Laws and Customs of the Real?n of England

Commonly

Called Glanvill, edited

G. D. G. Hall (Oxford, 1965), xxx-xxxiii. Hereafter, Glanvill. 10. Justinian, Institutes, translated by J. A. C. Thomas (Capetown, Institutes.

“The

imperial majesty should not only be

strengthened by laws, that the people

may

made

Krueger; translated by Alan Watson (Philadelphia,

P.

is

1975). Hereafter,

glorious by arms, but also

be properly governed in time of peace as

well as war”; Justinian, The Digest ofJustinian, edited by

hereafter as Code

by

Theodor Mommsen and Paul

1985). Hereafter, Digest.

Also cited

Justinian, Code, in The Civil Law, edited and translated

by Samuel

Scott (Cincinnati, 1932). 11.

Institutes 1.3.9:

“The unwritten law

[ras] is

that

which usage has established;

for

long- established customs [diutumi mores], being sanctioned by the consent of those

who adopt them,

are like

leges"-,

Digest

1.3. 32.1:

“Long-established custom

is,

not unde-

servingly, held pro lege." 12.

Irnerius, nearly a century before,

wrote that

ius is established

and by the necessity of nature. (“Quod constituitur turn

by

lege, turn

lex,

by custom,

moribus, turn et

Notes to Pages A

naturae necessitas induxerit, triplex jus esse constat”)

gloss

6-7

199

on Digest

1.3.40

is

quoted in Friedrich Karl von Savigny, Geschichte des Romischen Rechts im Mittelalter (Darmstadt, 1956),

vol. 4, chap. 27, n. 49.

Not

all

medieval civilians admit that custom

any longer had the force of law. See also Robert Warrand Carlyle and Alexander James

A

Carlyle,

History of Medieval Political Theory in the West (Edinburgh, 1903-36), 2:52.

Roman

Although the canonists accept from ciple that

jurists

and the church fathers the prin-

custom can be law (indeed, Gratian teaches that

in nature), they

do not believe that

custom

all

is

human

law

law and generally prefer

Common Law

C. Van Caenegem, The Birth of the English

all

,

is

customary

2d ed. (Cambridge, 1988),

Pope Gregory VII captures the tone of canonist skepticism about custom: suetudinem tas.’

Non

fortassis

dixit:

opponas, advertendum est quod Dominus

ego sum consuetudo, sed

Canonici (Leipzig, 1879, 1881), dist. classificatory

chap.

8,

scheme of the Roman

purposes. Gratian, in the

first

5.

3.

“Si con-

‘Ego sum veri-

dicit:

Emil Friedberg,

veritas.”

See R.

leges.

ed.,

Corpus Juris

Canonists borrowed from the Digest the

jurists and,

over time, adapted

part of his Decretum

(ca.

it

for their

own

1140; hereafter, Decretum) (see

Gratian, Concordance of Discordant Cations, in Friedberg, Corpus Juris Canonici), distinguishes various kinds of law and states the relationships

which

(dist. post.,

tiones

will, is

chap, n;

dist. 9,

of secular princes

law,

superior to both ecclesiastical law and the laws of princes

God’s

reflects

among them. Natural

chap.

1).

Church law

chap.

(dist. 10,

1).

is

Custom

superior to the is

at

the

leges

and

constitu-

bottom of the heirarchy,

subordinate not only to divine and natural law but also to the enacted law of the

church and of princes

(dist. 11,

para.

See

1).

J.

Gaudemet, “La doctrine des sources du

droit dans le Decret de Gratien,” Revue de droit canonique dieval

Canon Law (London,

A passage is

1995), 158-59.

in the Digest (1.3.32) suggests that the place

limited to situations in which there 13.

nizational ,

is

of unwritten custom in the law

no written law on

a subject.

made clear not only in the prologue but also in the basic orgascheme and method of the treatise and in some of its terminology. See

This exposure

Glanvill

Brundage, Me-

(1951); J.

1

xi, xv-xviii,

is

xxv-xxix, xli-xlii;

John L. Barton, “Roman Law

in

England,” in i

Romanum Medii Aevi (Varese, 1971), pt. 5, 13a, 8-13; Charles Donahue, Tus Commune, Canon Law, and Common law in England,” Tulane Law Review 66 (1992): 1751-52. R. C. Van Caenegem describes the substantive influence of Roman law on the Ius

treatise in Royal Writs in

dist.

15.

tis et,

silio,

the Conquest to Glanvill

Gratian, for example, asserts that ius

14.

tum,

England from

1,

chap.

quos

the genus and lex a species of

et

laudibilius est, talium

morum

16.

licet

ius.

Decre-

consuetudinibus de ratione introductis et diu obten-

uirorum

licet

subditorum non dedignatur regi con-

grauitate in perita luris et regni consuetudinibus peritissimos sue

sapientie et eloquencie prerogatiua alios nouit precellere”

Anglicanas

1959), 360-90.

2.

“Legibus namque regni

quod

is

(London,

non

scriptas leges appellari

(

Glanvill

non uideatur absurdum”

1);

(

“Leges autem

Glanvill

2).

Frederick Pollock and Frederic William Maitland, The History of English

Law

Time of Edward I, 2d. ed. (Cambridge, 1898), 1:175-76. Although the author of the Leges uses both lex and consuetudo in referring to English law, one can get no sure

before the

how he understands these terms. “The unwritten law is that which

sense of 17.

usage has established; for ancient customs,

Notes to Pages 7-10

200

who

being sanctioned by the consent of those

adopt them, are

Jolowicz asserts that for Justinian custom

1.2.9.

like leges." Institutes

essentially unwritten law, but

is

that view minimizes several passages emphasizing the length of usage (for example,

Digest 1.2.9,

1.3.33,

Digest

Digest 1. 3.

32.1).

ims,” in L'europa :

1.3.35,

Code 8.52.2) and the consent of those

romano: studi

in

them

use

“Roman Regulae and

See Herbert Felix Jolowicz,

e il diritto

who

memoria

{Institutes

English

di Paolo Koschaker, vol.

Max-

(Milan,

1

954 )18.

Bracton,

On

the

Laws and Customs of England edited by G. E. Woodbine and ,

E. Thorne, 4 vols. (Cambridge, 1968-77), 3:xiii-lii. Hereafter, Bracton. For a dense, learned, recent argument that Bracton is indeed the author of De Legihus see J. L. S.

,

Barton, 19.

“The Mystery of Bracton,” Journal of Legal History

“Cum autem

fere in

14 (1993):

omnibus regionibus utatur legibus

1.

et iure scripto, sola

Anglia usa est in suis finibus iure non scripto et consuetudine. In ea quidem ex non scripto ius venit

quod usus comprobavit. Sed non

erit

absurdum

leges Anglicanas

licit

cum leges cum legis vigorem habeat quidquid de consilio et consensu magnatum et rei publicae communi sponsione, auctoritate regis sive prinnon

scriptas leges, appellare,

cipis praecedente, iuste fuetit definitum et

approbatum. Sunt etiam

in Anglia

con-

secundum diversitatem locorum. Habent enim Anglici ex consuetudine quae non habent ex lege, sicut in diversis comitatibus, civitati-

suetudines plures et diversae plura

bus, burgis et

villis,

ubi semper inquirendum erit quae

sit lllius loci

consuetudo

et

qualiter utantur consuetudine qui consuetudines allegant.” 20.

A

See, for example, Carlyle and Carlyle,

History of Medieval Political Theory

,

H. Mcllwain, The Growth of Political Thought in the West (New York, 1932), Mcllwain, Constitutionalism: Ancient and Modern (Ithaca, 1940), 69-89; George L.

3:41-42; C. 192;

Haskins, “Executive Justice and the Rule of Law,” Speculum 30

(1955): 532.

Walter Ullmann, The Medieval Idea of Law as Represented by Lucas de Penna (London, 1946), 63. 21.

22.

Cicero,

De

Inventioine (Cambridge, 1949): 2:xxii, 67.

The

Brachylogus

two outstanding works of the early French offshoots of the school enly attributed by Savigny to Irnerius. See

Hermann Kantorowicz,

Roman Law (Cambridge, 1938), 43, 12-13. Francisco Suarez, De Legibus, Ac Deo Legislatore,

sators of the 23.

25.

1927).

Bologna, mistak-

Studies in the Glos-

Walter Ullmann, Law and

7,

chap.

in Selections from Three

Works of

9.

Middle Ages (London, 1975), 62. Vacarius, The Liber Pauperum of Vacarius, edited by F. de Zulueta (London,

To

this

may be added

Politics in the

his gloss

on the words

consensus fecit in Digest 1.3.40, in

which he interprets the agreement there spoken of as being that 26.

one of

1

Francisco Suarez (Oxford, 1944), bk.

24.

at

is

Petrus de Bellapertica, Lectura super primus

et

secunda parte

“in populo. codicis

"

(on Code 8.52.1)

(Prostat Parrhisijs, 1519). 27.

Irnerius, Placentinus,

centinus,

Summa

and Rogerius

Institutionum

Two Bodies (Princeton, 1966),

1:2.

all

took

this position.

For example, Pla-

For discussion, see Ernst Kantorowicz, The King's

103.

28. Justinian, Digest 1.4.1; Institutes 1.2.6;

Code

1.17.7.

29.

See Ernst Kantorowicz, The King's Two Bodies (Princeton, 1966),

30.

Irnerius, Placentinus,

and Rogerius

all

103.

take this position. For example, Pla-

Notes to Pages Summa

centinus,

Institutionum

tem

“Nam

(Augustae Taurinorum, 1973):

1:2

communem

principem transferendo

10-13

potestatem, nulla

sibi reservavit,

201

populos in

ergo potesta-

leges scriptas contendi, interpretandi, et abrogandi.”

31.

See, for example, Irnerius, gloss

on

Digest

“Loquitur haec

1.3.32:

lex

secundum

sua tempora quibus populus habebat potestatem contendi leges, ideo tacito consensu

omnium

per consuetudinem abrogabantur. Sed quia hodie potestas translata est in

imperatorem, 32.

The

desuetudo populi.”

nihil faceret

implication

strong in

is

Azo

sense, the source of legislative authority 3.53.6 33.

law,

and

Summa Azon is (Lyon,

1.14.8 in

T'he

word

placere

and

political

or proclaimed in an edict,

itself,

Novel

different twist in

is

without doubt

which added,

in the Institutes version,

letter or

decreed in

est.”

in

that

God made the laws themselves subject to men as a lex animata with the effect that he is

him

to

,

two inconsistent theories of government and law operated in the

Walter Ullmann,

power

descending conception, governmental authority and

law-creating power was thought to descend earth.

Civilis.

the same time. In the ascending conception, lawmaking

was ascribed to the people;

on

hearing

Justinian gives this idea a slightly

not subject to legal rules. Justinian, Novellae Constitutions, in Corpus luris

Ullmann shows medieval Europe at

a

105, asserting that

the emperor’s control by giving

35.

Codicis

a law.” Institutes 1.2.6.

“Princeps legibus solutus

1. 3.31:

Summa

1533).

“Consequently, whatever the emperor has ordained by

Digest

power. Azo,

was commonly understood to mean only the power to make

an inference drawn from the text

34.

some

that the people continued to be, in

downward from God

Principles of Government

and Politics

to his vice-regents

in the

Middle Ages (Lon-

don, 1961), 19-26.

and Theologian on Kingship,” Proceedings of Third International Congress of Medieval Canon Lave (1968).

36.

the

See Gaines Post, “Bracton

as Jurist

Law

Courts of Medieval England (London, 1973), 77.

37.

See Alan Harding, The

38.

See Plucknett, Early English Legal Literature 80. ,

It is a

mistake to think that for

English lawyers of the twelfth and thirteenth centuries legal authority was conceived as substantive rules

rules of pleading

of property or contract that were to be contrasted with ancillary

and procedure; the principles of the

the writs.

“What caused

common

law was the early tendency for the

had been issued

it

became

change the formula

known formula

to

the original writs to

if it

fit

a

39.

become fundamentally important formulae to become fixed. Once

was found serviceable.

his case, or apply for a ,

in large

measure to be found

in

A

plaintiff

new one

.

.

.

65.

a writ

reluctance to

had either to find

to be invented.”

(London, 1990),

a

to the

J.

H. Baker,

a

An

Legal authority, then,

recognized writs.

Brian Tierney, “Bracton on Government,” Speculum 38 (1963): 295-309. Phis

argument

is

seconded

in

Donald Hanson, From Kingdom

opment of Civic Consciousness

in English Political

Tierney’s interpretation has this in

reference

is

made

to

Commonwealth: The Devel-

Thought (Cambridge, Mass., 1970), 107-8.

40. Mcllwain, Constitutionalism: Ancient and 41.

law grew up around

precedent for the future, and there was

Introduction to English Legal History 3d ed.

was

common

its

Modem,

78.

favor: in almost

to “custom” in the medieval Year

all

Books and

the sixteenth and seventeenth centuries, that reference

is

instances in which

in the law reports

of

to local, particular customs.

202

Notes to Pages

\

14-16 Law

42. See Pollock and Maitland, The History of English

“Quid

43.

quod

lex est

Videndum

quid consuetudo.

sit lex et

secundum quod

tor iustitiae est deus, lex

idem

etiam quid

est

commune praeceptum virorum consultum

sponte vel ignorantia contrahuntur coertio,

Et

significant.

1:175.

,

prudentium, delictorum quae

publicae sponsio communis. Item auc-

rei

iustitia est in creatore.

dicatur lex

licet largissime

Et sciendum

sit lex.

Et secundum hoc

omne quod

ius et

tamen spe-

legitur,

sanctionem iustam, iubentem honesta, prohibentem contraria. Con-

cialiter significat

suetudo vero quandoque pro lege observatur in partibus ubi fuerit more utentium approbata, et vicem legis obtinet. Longaevi enim usus et consuetudinis non est

vilis

auctoritas.”

Summa super Institutis

44. Azo,

“De quibus

45.

moribus

et

1.1,

non utimur,

causis scriptis legibus

consuetudine inductum

merito custoditur

Summa Azonis.

in

hoc

et

est

.

quod

est ius,

.

.

1.

custodiri opertet,

id

Inveterata consuetudo pro lege

dicitur

quod

non im-

moribus constitutum.” Also see Code

8.53; Institutes 1.2.9.

46.

now

It is

generally accepted that Maitland greatly underestimates Bracton’s

learning in and reliance

The

47.

not Mcllwain’s method. Instead, he largely

is

ping argument. that of an

He

immemorial custom, which can be found but not made. His proof is

found

proof texts mean what he

manner

as the relation

view of

in

interpretation

says,

in the

this point.

is

for this

very texts we consider here. His knows that his

because that

is

how medieval

established his fundamental point, he

on such matters

meant

on the bootstrap-

relies

begins with the proposition that the medieval conception of law

sweeping proposition

in this

law.

use of extrinsic materials can certainly be helpful in the interpretation of

but that

texts,

upon Roman

moves

lawyers thought. Having

to other Bractonian texts,

of the king to the law, and shows what they must have

Then

he

in a position to

is

on the question of custom

is,

because he

show how correct

now

has

his original

many other

texts

con-

sistent with his original interpretation.

Edward

48. See, for example, Yearbooks of the Reign of King

(London,

Edw.

1883); hereafter,

Ill 506; St.

Year Books are referred to

German, Doctor and

as

YB:

the Third

YBB

Student, 45-47; Reniger

v.

18

Edw.

Ill 326, 19

Fogossa in

Plowden, The Commentaries or Reports of Edmund Plowden (London, The Works in Verse, 2:251. ,

Rolls Series

,

,

Edmund

1816), 1:9; Davies,

49. Plucknett, Early English Legal Literature, 94. 50. 1970), glie, is

Elsa de 1,

12.

Haas and George D. G.

Hereafter, Early Registers.

shorter version, Secundum consuetudinem

Registers, 21, 24, 25, 27, 55, 57, 38, 65, 67,

An-

143-46, 148, 170.

“Since whatever has been rightly decided and approved with the counsel and

consent of the magnates and the general agreement of the

res publica, the

the prince having been added thereto, has the force of law”

sage was heavily influenced by Digest

time read 52.

(London,

even more frequently used in writs roughly contemporaneous with the writing

of Bracton. See Early 51.

A

Hall, eds., Early Registers of Writs

this Digest text as

For example,

have turned

“I,

my mind

1.3.1,

which defines

Bracton 2:19). This pas-

a lex. Civilians

of Bracton’s

having to do with the prince’s legislative function.

Henry de

Bracton, to instruct the lesser judges,

to the ancient judgements of just

their decisions, consilia

(

authority of

and responsa ” ( Bracton

2:19).

men, examining

if

no one

else,

diligently

.

.

.

Notes to Pages Law

Pollock and Maitland, The History of English

53.

Bracton does not, in

54.

He

various forms of law.

,

203

1:176.

straightforward way, provide a hierarchical analysis of

a

does state that “justice proceeds from

justice “all rights \iura] arise”

17-22

(

God” and

that

from

Bracton 1:22-23). Thus, by implication at least, he takes

the standard contemporary view that a

human

law

subordinate to divine and natural

is

law.

See Peter Stein, “Logic and Experience in

55.

Roman and Common

Law,” Boston

Law Review 59 (1979): 433-35; Arthur L. Goodhart, “Precedent in English and Continental Law,” Law Quarterly Review 197 (1934): 40-42; Carleton Allen, Law University

in the

Making 7th ,

ed. (Oxford, 1964), 162.

56.

Goodhart, “Precedent

57.

Clark and Finnelly's Reports (London, 1847), 527, 546.

58.

Goodhart, “Precedent

59.

Allen,

Law

in the

in English

and Continental Law,”

41.

English and Continental Law,” 41.

in

Making

219;

Wiliam Holdsworth, “Case Law,” Law Quarterly

Review 50 (1934): 180. 60.

John Chipman Gray, The Nature and

the Sources of the

Law (New

York, 1921),

212, 213. 61.

See Allen,

62.

T.

343

F.

Law

in the

,

188, 189.

Concise History of the

Common Law

,

52d ed. (London, 1956),

-

63.

Pollock and Maitland, The History of English

64. Allen,

Law

in the

Summa

Making

Azo,

66.

Goodhart, “Precedent

67.

Holdsworth, “Case Law,”

69.

Britton

A

70.

non

habet vigorem,’ eas

and Continental Law,” 42.

181.

in

M. Nichols (Washington,

French it

in the

form of

a

1901),

1.

Hereafter, Britton.

code issued by royal authority.

was widely used for several centuries.

and translated by Henry G. Richardson and George O. Sayles

1955), 2:2-3. Hereafter, Fleta.

leges appellari

1:183, 184.

Concise History, 343, 344.

translated by F.

Fleta, edited

(London,

dem

in English

approximately 1290-92,

at

,

Codicis 1.12.

This book was written

Dated

Law

188.

65.

68. See Plucknett,

absurdum,

est

scilicet

“Leges autem Anglicanas,

cum hoc ipsum

lex sit

licit

non

scriptas,

‘quod principi placet legis

quas super dubiis in consilio deffiniendis, procerum qui-

consilio et principis auctoritate accordante vel antecedente, constat esse promul-

gatas. Si

minime censerentur maioris procul videretur accomodare scriptura quam decernen-

enim ob solum scripture defectum

dubio auctoritatis robur tis

A

T. Plucknett,

Making

ipsis legibus

legis

equitas aut ratio statuentis.” 71.

The

claim was not that

leges

could be altered or abolished only in

Chapter 1.

John

P.

Thomas

a

certain manner,

upon

certain conditions.

The Jurisprudence of the Year Books

Dawson, The

ceptions are Sir ton, 1903); Sir

2:

could not be altered or abolished but that they

Oracles of the

Law (Ann Arbor,

Littleton’s Tenures, edited

The principal exby Eugene Wambaugh (Washing1968), 47.

John Fortescue’s De Laudibus Legum Anglia e, edited and translated by

Stanley B. Chrimes (Cambridge, 1942); Christopher

St.

German’s Doctor and

Student,

Notes to Pages

204

edited by T.

F.

T. Plucknett and

22-25 (London, 1974); Henry Finch’s Law and John Dodderidge’s The English Lawyer (Lon-

John

or a Discourse thereof { London, 1627);

don,

L. Barton

,

1631).

T. Plucknett, Early English Legal Literature (Cambridge, 1958),

2.

T.

3.

See Ralph V. Turner, The English Judiciary

F.

(Cambridge,

Oxford

1

13—14.

Age of Glanvill and Bracton 235-36. Civil and canon law were taught at

1985), 36-38, 97, 150, 231-32,

in the

until 1234.

4.

See William Holdsworth, Sources and Literature of English

5.

T. F. T. Plucknett, Legislation of Edward 1 (Oxford, 1970),

6.

YBB

7.

I

Law

(Oxford, 1925),

30.

18-19 Edw. Ill 326; 19 Edw. Ill 506.

found only one other fourteenth- century case and in

clearly described as custom,

YB

the law and custom.”

Year Books are “

166) or to

a half

is

8.

12-13

The

it

Edw.

dozen references to usage du pays ”

(YB

1-2

Edw.

Ashton

is

YB

example,

30-31 Edw.

it

clear,

as

I

“custom

however, that the refer-

he

cieved.”

And

in

YB

as well

2-3

Edw.

YBB

Also see

who is under

1990),

age as he

who

Edw.

YB

statutory rule. For example, in aid yourself?

is

of

is

given to the heir

.

Wherefore by the

full

age ought to be re-

.

.

Herle complains, “Under the old law [aunciene

II 87,

33-35

“This action

says,

I

should have had

I

Edw.

554; 1-2

II 58, 77.

quently required counsel to choose between the former

YBB

Law (Cambridge,

he had no remedy.

before the writ ‘occasione cuuis vendicionis’ lessor.”

sans autre reason,” quoted in

fait ley

Medieval English

quoted in Doe, 25 1-2 Edw. II 80, Malberthorpe

the

is

YB

In

in Late

words of the statute

see

(for

some region of the country, not to the customs of the-whole realm. Fortescue, De Laudihus Legum Angliae, 37. In his capacity as chief justice of

[aunciene laye

you

law

to

where by the ancient law

any

common

which are usually translated

II 66),

context of most of these makes

Norman Doe, Fundamental Authority 9.

which the

through the fourteenth-century

Ill 304. Scattered

King’s Bench, Fortescue also states, “l’usage

23. J.

in

the reporter directly quotes the writ: “according to “

custom du pays ”

of the country.”

ence

6, 8.

32-33

Edw.

common

my

recovery against

Medieval judges

fre-

law rule and the

new

“How

will

ley]}"

Also

258, Bereford, C.J., asks:

I

by the old law or the new law [par novel ley or par aunciene

21-22 Edw.

I

326, 476. In

YB

32-33

Edw.

I

lei],

288, Scoter, in response to Herle’s

attempt to apply the statute to the case, says “You shall not get to that; for we are pleading on the old law [auncyen

our old law by the new law 10.

For example, in

YB

ley],

and you have pleaded and tried to drive us from

[novele ley]!'

12-13

Edw.

Ill 292, Shareshulle,

J.,

states that “the course of

course of law has always been that the plaintiff should have a writ to the Bishop with-

out affirming any other disturbance in him”; in “It has always

been held for law that no one

demesne”;

YB

in

12

Rich. II 72, Thirning,

shall J.

YB

17

Edw. 586, Shardelowe,

J.,

says,

have Warrantia Chartae but tenant in

asserts,

“and (the law) was never other-

wise.” 11.

YB

10

Edw. IV

38.

Catesby does not claim that the

alteration since the creation 12.

The

that the

Year Books are

common

common

law existed without

of the world.

filled

with evidence that medieval lawyers fully recognized

law had undergone great change.

T he Year Books

report several

Notes to Pages 26-28

no memory,” the most common ny ad memorie” (YBB 33-34 Edw. I 12-13; 33~35 Edw. I

variations of the phrase “from time of

of which

is

“du temps dount

204-5; 1-2 Edw. reporters 1

6 Edw.

of Gavelkind temps}."

32-33 1

81;

.

.

Also see

Edw.

I

The

is

phrase was so

common

(YB

to merely “du temps etc.”

it

Edw.

1-2

II 180,

which customs they have enjoyed from time immemorial

YBB

Book

that the Year

(Eyre of Kent), Passeley alleges that “they have divers customs

II 18

262-63,

Edw.

2-3

.

which there

2-3 Edw. II 62).

abbreviating

felt safe in

YB

In

81).

II 105;

il

205

12-13

Edw.

2 7 ° -7 b

430— Edw. Ill

II 62; 12-13

Edw.

Ill 216-17; 1 ;

Edw.

33-35

226, 227; 16

I

Ill 162-63;

I

7~ 1 ^ Edw. Ill 216-17;

204-5; 1-2 Edw. II 39, 82,

Edw.

[de tut

Edw.

Ill 552-52; 17-18

83, 180,

130, 131;

18-19 Edw. Ill 538, 539.

and Law

Fritz Kern, Kingship

13.

in the

Middle Ages, translated by

S. B.

Chrimes

(Oxford, 1948). Bracton (2:28) for example, states that “long

14.

custom

be ex-

[longa consuetude] will

plained below,” but the explanation never comes.

For an example of

15.

a

thirteenth-century work

Dominorum

several others, see Dissensiones 16.

YBB

17.

If

Edw.

33-35

I

Edw.

96, 554; 3-4

and

sejtting forth these positions

(Leipzig, 1834), 15 1. II

1

12-13,

I

3

-I 4

Edw.

Ill 24.

“long” means ten years with regard to prescription, they argue,

it

means

also

ten years regarding custom. Justinian, Novellae Constitutiones

18.

Azo

1973).

(d.

131,

chap.

6.,

in Corpus

Inns

1220) says that earlier civilians asserted times ranging

years; he asserts that

it

was an

obscure quaestionem

what was

Civilis

(Dublin,

from ten to

a longa consuetudo.

fifty

Summa

Codicis 8.53.2. “Ilia

19.

consuetudo praeiudicat

iuri

quae excedit

berg, ed, Corpus Juris Canonici (Leipzig, 1879

common

Although medieval

20.

x

hominum memorium .” A.

Fried-

88i), Deartals, I.4.11, gloss.

lawyers frequently identify the the

common

law

with reason, in doing so they never suggest that they are attempting to establish one of the required elements of valid custom.

“Du temps dount

21.

Edw.

Edw.

Ill 206-7;

il

ny ad memorie.”

Ill 162-63;

j

7 -i 8

YBB

Edw.

6 Edw.

tain

necessary,

if

you wish

to prove

is

against

common

J.,

says:

right

.

.

.

your estate by that custom, that you should main-

by long continuance of time [par long continuance de

it

(Eyre of Kent); 12-13

Ill 216-17. In 1304, Bereford,

“Since you affirm your estate by a custom which custom it is

II 18

tens ].”

YB

32-33

Edw.

I

264-65. 22.

Littleton, Tenures, sect. 170.

23.

Ibid.

24. Ibid. 25.

YB

2

Hen. IV

18.

The Corpus Juris ofJustinian does not provide a coherent theory about the relationship between customary law and legislation. Digest 1.3.32 and Institutes 1.2.11 pro26.

vide that statutes can be abrogated by falling out of use by

common

consent, but these

texts are not easy to reconcile with the imperial theory that the prince alone can law, or

with Code

8.52.2,

which, while admitting that the authority of custom

small, nevertheless holds that

Faced with the tension

custom cannot overcome either reason or

among

make is

not

statute.

these texts, medieval civilians give several different

Notes to Pages 29-30

2o6

answers to the question of whether custom can overcome or abrogate statutory law.

The answer perium

a

Do

resides:

given them

all

Roman

the

up by means of

people

a lex regia?

any lawmaking powers, or have they

retain

still

The more

imperialist of the civilians insist

no custom could abrogate statutory law or derogate from

that

peror could make or interpret law. Others teach that

can abrogate written law but that

tom

on where im-

particular jurist gives correlates highly with his position

bad

prevails over a

since only the

make

statute. Still others if

the

em-

general custom observed by

custom cannot. Others teach that

a local

the people intend to abrogate a statute:

a

it

a

all

good cus-

outcome depend upon whether

they follow a custom with knowledge that

not abrogated

is

contrary to the statute, then the statute

if

the people practice a contrary custom and are ignorant of the statute. See

abrogated, but a statute

is

it

is

Dawson,

The Oracles of the Law 129-30. Among the civilians, one of the strongest supporters of custom’s power to abrogate ,

statutes

He

Vacarius,

is

who was

instrumental in introducing civilian learning in England.

power

teaches that custom’s

to

overcome

statute

comes from the

consensu populi.

Vacarius, The Liber Pauperum of Vacarius, edited by Francis de Zulueta (London, 1927), gloss

Legem non ignorancium and

ently had

influence

little

gloss Generale et nature congruum.

His views appar-

on the common lawyers, who never accepted the view

that

general custom could abrogate statute law.

YB YB

27.

28.

20-21 Edw.

Edw.

33-35

alters the

common

86-87;

Edw.

96.

I

For additional examples of clear recognitions that

YBB

law, see

33-35

Edw.

400, 554; 1-2 Edw.

I.

YB

Edw.

30.

Examples of recognition of alterations

II 80; 2-3

320; 18-19 31.

32.

YB YB

terms of 33.

12-13

48, 152; 21-22 Edw.

Edw.

Edw.

Edw.

a

Edw.

saying that the shortly. In a

320, 322; 32-33

v.

Edw.

II 87; 12-13

Edw.

II

YB 17 Edw. Ill 586. common law include YBB

Edw.

in the

Edw.

I

288, 378; 33-35

Ill 266; 17

Ill

Edw.

Rich. II 127;

2; 7

Edw.

Ill 122, 12

I

20-21

96, 400, 554;

404; 17-18 Edw. Ill

Rich. II 48, 195.

322.

I

II 31.

remedy

Sampson

I

Ill 128, 202; 20

20-21 Edw. 1

II 58, 80; 2-3

Ill 292; Shardelow,

Shareshulle,

I

a statute

Ill 146.

29.

Edw. 2

354-56.

I

For an explanation of a statutory change

for a “mischief,” see

Grene

,

common

YB

3-4 Edw.

II

YB 1

in the

common

17-18 Edw. Ill 178.

12-13.

What Chief Justice

Bereford means by

we consider have said, “The cause

law does not ordain a remedy consistent with

second version of the

law in

case, Bereford

is

reported to

ley

of the statute was that this writ was not founded on any reason [sur nul resoun]” 34.

C. H. Mcllwain contends that the

and fourteenth-century

common

English statutes, in the

late

common F.

lawyers as having “supreme binding force” and that

Middle Ages, were made either to affirm the established

in Constitutionalism

and

the

“Magna Carta and

Changing World (New York,

1939), 132, 143.

T. Plucknett long ago pointed out that the Year Books do not support Mcllwain’s

position and that even The Mirror of Justices ally

law was regarded by thirteenth-

law or to remove abuses of the existing law. Mcllwain,

Common Law,” T.

common

,

on which Mcllwain

largely relies, actu-

proves the opposite of what he claims. Statutes and Their Interpretation in the First

Half of the Fourteenth Century (Cambridge, 35.

YB

32-33

Edw.

I

378.

1922), 28. Hereafter, Statutes.

Notes to Pages 36.

YB

37.

Venour

YB YB

38.

39.

i

7

16

Edw. v.

207

31-35

Ill 98.

YB

Blund,

Edw.

3-4 Edw.

II 161.

Ill 90.

17-18 Edw. Ill

12.

40. Justice Hillary’s hard line

on such questions

a little puzzling considering the

is

position he takes in a later discussion about the proper basis of judicial decision.

Thorp,

a pleader, says, “I

we do not know what of the

justices.”

YB

Edw.

YBB

Citation by

43.

20-21 Edw.

44. 1-2

Justice Hillary’s response

I

I

Edw.

22

I

528;

Edw.

was

fairly

Magna

354;

20-21 Edw.

II 71;

45. Mutford:

4 Edw.

Carta

YB

,

I

3-4 Edw.

454; 21-22 Edw.

“The

8; 13

Rich. II

49.

Edw.

law or

Statute of Merton

and

West.

II,

398 fStatute of Carlisle, 20 Edw. Ill 98.

Edw.

I

78, 230; 33-35

Edw.

80;

I

9.

him such

you

a writ.”

are out of the

YB

30-31 Edw.

words of the

I

412.

statute.”

YB

Ill 346.

Edw.

Ill 320.

32-33

Edw.

I

30-31 Edw. I

414;

400.

12-13

30-31 Edw.

I

common

I

232; Statute of Gloucester, 32-33

I

528; 32-33

statute does not give

I

48.

30-31 Edw.

105-6; 12-13 Edw. Ill 296; 16 Edw. Ill 516; 17 Edw. Ill 76;

II

Rich. II

2

I

30-31 Edw.

47.

YBB

law.)

30-31 Edw.

to be aided by the statute, but

16

Also see

II 85.

common. For example,

“You think

YB YB YB YB

the will [volunte]

is

xiii.

,

were sometimes called special

title

17-18 Edw. Ill 202;

46.

Statutes

284; Statute of Marlborough, 32-33 Edw.

YBB

“It

is,

they would have help of the law they must rely on

II 58: “if

special law.” (Statutes

Edw.

is.”

18-19 Edw. Ill 378.

42. Quotations in

YB

the law

Harold Dexter Hazeltine, preface to

41.

1-2

think you will do as others have done in the same case or else

290.

I

For other examples of the inspection of statutes see

226.

496; 33-35 Edw.

Edw

430, 532; 2-3

I

II 33; 16

Edw.

Ill 18; 17-18

YBB

Edw.

Ill

542, 550. 50.

See, for example, Statute of Westminster

II,

and

c.2

c.9; for discussion, see Stat-

utes, 134.

51.

Chief Justice Bereford explained the court’s abatement of

“If the statute ordains another writ then

was that of

it.”

Grene

v.

YB

3-4 Edw.

the court’s understanding that the

about

its

Staunton,

cial process.”

52.

II

1

12-13.

common

6-7 Edw.

II

(Eyre of Kent),

common 3,

Edward Coke, The Repons of Sir Edward

7 vols. (Dublin, 1792, 1793),

1

18.

53.

YB

Pasch. 8 Edw. Ill 26.

54.

On

this issue

55.

“E

401; 32—33

This statement suggests more about

law has to conform to reason than

“A statute does not change

said:

YB

il

est hors

Edw.

I

law writ:

abolished this one; the cause of the statute

understanding of the relationship between the J.,

common

was not founded upon reason, so that another was ordained instead

this writ

Sampson

it

a

Plucknett

Edw.

I

99.

law and statutes.

law process unless

See

does

it

gives spe-

Statutes, 131-34.

Coke, Knt. In English, in Thirteen Parts,

Hereafter, Reports.

entirely sound. Statutes, 68-71.

de cas de statut,”

99, 287; 33-35

cas de statut,” 32-33

is

134.

common

it

Edw.

1

YB

32-33

107; 1-2

Edw.

Edw.

II

I

29.

Also see “

104;

YBB

30-31 Edw.

Henghan,J Vous .:

estes

I

en

Notes to Pages 36-39

208

YB

56.

Edw.

31-32

254-55; also see 318-19. “Malberthorp. Although the Statute of

I

Westminster the second on which

this writ

founded gives the

is

suit to the king, yet

it

does not take away the suit of any other person for the statute does not say the king alone and no other person shall have the suit.”

YB

57.

may

21-22 Edw.

responds by pointing out that while the statute

326. Spigurnal

I

not have mentioned Mortdancester, neither did

58.

YB

59.

For cases during the reign of Edward

Edw.

33-35

YBB

and argued, see 30-31 Edw.

1

20-21 Edw.

I

326- 28, 344, 354, 356, 412, 434, 452, 454, 476, 528;

400, 412, 436; 32-33 Edw.

Such cases were

YBB 32-33 Edw. YB 3-4 Edw. II

61.

was not made

1

just as

YB

1-2

Edw.

It

was because of

idem

Also see statute ford,

YB

11

Edw.

YB

his

“the cause

why

Rouge, 1978),

YB

63.

“The

common

at the

cause of the statute was to

law in case

covert,

presentation was

a

who had no is

recovery save by

stand

32-33

Edw.

aid

“The

the cause

the same, quia ubi

intention of

by statute for each

writ.”

YB

was made was that where

it

est

eadem

him

2-3

at the

made

that

Edw.

II 38:

beginning

the

Berea

man

means

should be lawful for him to enlarge his court.” Also see

Walter C. Richardson,

in

it

better

YB

A

History of the Inns of Court (Baton

28-30.

I

Hengham, J.,

takes

umbrage

at a lawyer’s

made and remonstrates, “Do not gloss than you, for we made it.” YB 33-35 Edw. I 82.

has been

Edw.

33-35

statute and (said he)

I

we

30.

will

Also see not

YB

2-3

Edw.

now determine

II 33:

the

explanation of

this statute;

“Bereford,

meaning of the

J.,

we under-

looked

at the

statute; but in the

present case, because of the hardship which would otherwise ensue,

we

will

not de-

a statute,

he must

him of his voucher.”

66. In

show

And

415.

a statute

prive

was not

his court sufficiently large, then, if afterwards his

64. In a notable exception,

65.

II 31: Scotre,

ley

28-30.

I

King Henry VIII;

why

remedy accordant with

Report by commissioners Thomas Denton, Nicholas Bacon, and Robert Cary

62.

to

Edw.

a

hardship that the statute wasYnade.

this statute

household increased,

32-33

II.

“you should understand that the statute

Bereford, C.J.,

II 36:

had not the means to make

and

Edward

ins. ”

was that there should be

J.,

288, 398, 416, 426-30, 476, 496,

I

same here, and consequently the law

[of grievance] is the ratio ibi est

this

76-78, 98, 120, 174, 230, 254,

532.

women were

were under age or

I

in the time of

was made because

remove the hardship that there was writ of right.

I

12-13: Bereford, C.J.,

for nothing, but

heirs

common

290; 33-35 Edw.

I

ordained by the old law.”

made while

it.

which the words of statutes are cited

in

I

280, 284, 286, 290, 314, 318, 406, 450; 33-35 Edw.

60.

forbid

426-30.

I

126, 226, 232, 272,

532, 560, 586.

it

11

Edw.

that he

is

II 35,

in

Scrope

says, “If a

man wishes

to have help

by

circumstances wherein the statute operates for him, for

a statute

cannot be invoked in every circumstance where hardship can be assigned.” Scrope takes a similar view in another case later that year: “I cannot help the hardship of the law.”

67.

YB

11

Edw.

II 324.

The terminology

See also

YB

33-35

Edw.

I

434.

changed; lawyers in the reign of Edward III more

commonly

Notes to Pages speak of “mischief” in the kinds of cases that would have evoked in the

times of Edward

YBB

68.

12-13

492, 516, 538; 17

I

and Edward

209

39-43 a

claim of hardship

II.

Edw. HI 84, 98, 156, 302, 316; 16 Edw. Ill 16, 58, 226, 340, 350, 456, Edw. Ill 4, 40, 92, 94, 98, 306, 370, 542; 17-18 Edw. Ill 8, 32, 208,

246, 316, 326, 344, 422, 450, 506, 636; 18-19 Edw. Ill 300, 302, 490; 20 Edw. Ill 92.

Common

69.

lawyers as early as the time of

Edward

I

occasionally note a distinc-

between the rigorous and the equitable. Kyng, speaking of

tion

Berrewik, says

that.it is “de rigore

quam

YB

de equitate.”

the reporter applauds a statutory interpretation by Kave,

YB

ing to equity and law, and was good.”

20-21 Edw.

I

30-31 Edw. J.,

a I

judgment by 120-21. In 1292

saying “this was accord-

106-7.

Doe, Fundamental Authority, 104.

70.

72.

John Fortescue, De Natura Legis Naturae, vol. 1, chap. 24 (London, 1869). YB 4 Hen. VI 26. For discussion, see Doe, Fundamental Authority, 104-6.

73.

Choke, Illingworth, and Yelverton,

71.

cording to the intent of those that made

it,

YB

IV, Pasch. 4. All the judges agree in

“Every statute made must be taken ac-

JJ,:

when

21

words are ambiguous.”

its

Hen. VU,'Hil.

one must construe the intent of those that made the

YB

74.

Hen. VII

14

and Heyden’s Case,”

Hil.

7.

Quoted

in

Law Review

Illinois

YB 4 Edw.

28, that “in every statute

statute.”

Samuel E. Thorne, “The Equity of a Statute

31

(1936): 202, 21

1.

John Hamilton Baker and Samuel E. Thorne, eds. Readings and Moots at of Court in the Fifteenth Centuty (London, 1990), 1:43. 75.

Constantinus Rogerius, Tractatus de

76.

the Inns

iuris interpretation (1463), in Tractatus

Uni-

Hans Baade, “The Casus Omissus: A Pre-History of Statutory Analogy,” Syracuse Journal of International Law and Commerce

versi Iuris

(Venice, 1615), vol.

1

1,

pt. 6,

39or-39iv;

20 (1994): 4 5, 55-56. 77. Baker and Thorne, Readings and Moots,

YBB

247;

Mich.

18; 7

16, 6; 15

Hen. VI

Hen. VII

De Natura

in

5, 9;

14

The most prominent

78.

Edw. IV Pasch.

Hen. IV Pasch.

7

1:38, 181, 186, 198, 213; 2:237, 239,

Hil.

2,

Hil.

5; 11

A

Hil. 20;

3

Hen. VI

7.

fifteenth-century exception

Legis Naturae, vol.

Hen IV

240,

is

Fortescue’s brief discussion

chap. 24.

1,

79.

William Holdsworth,

80.

Plucknett, Early English Legal Literature, 102.

History of English Law, vol. 2 (London, 1936).

Holdsworth,

History, 2:553; a Eo see Plucknett, Early English Legal Literature,

82.

Holdsworth,

History, 2:555-56.

83.

Plucknett, Early English Legal Literature 103, 104.

81.

103.

84. Carleton Allen,

YB YB YB YB

85.

86. 87.

88. 22;

1

Edw.

32-33 16

I

80

Edw.

Edw.

I

in the

Making, 7th ed. (Oxford, 1964), 190.

(1292).

28.

Ill 6.

17-18 Edw. Ill 390. Also see

Hen. VI

YBB Edw.

I

I

152;

3-4 Edw.

II 28; 2 Rich. II 9, 11,

25.

Instances of these phrases can be found in

89.

Edw.

21

Law

36, 248,

300 (1304);

33

Edw.

I

YBB

378 (1305); 4 Edw.

22

II

Edw.

67-69,

I

1

502 468 (1294); 12-13

O3 10);

11

32

Edw.

Notes to Pages 44-46

210

II 97,

Edw.

(1317), 323 (1318); 16

256

O344), 444, 446, 452

Ill 534; 17

Edw.

Edw.

Ill 172, 186 (1343); 18

Ill 18

(1343).

90. Preface, Reports 10 (1793).

YB

91.

YBB

Edw.

32

Edw.

16

I

248 (1304); other examples of

Edw.

Ill 250, 530; 17

form of rebuttal

this

Ill 22 (1342-43); 19

Edw.

Ill

are

found

in

446, 448, 490, 492

6344-45). 92.

YB 4 Edw.

II

109

Similar rejoinders are to be found in

(1310).

YBB

19

Edw.

Ill

408, 490 (1344-45). Sometimes neither judge nor counsel cites the contrary case but the Year

Edw.

Book reporter

does, as in

4 Edw.

II

138-39

(1310), 17

Edw.

Ill 52 (1343),

and

18

Ill

634 (1343-44). 93. YB 6 Edw. II 189, 190; other examples may be found in YBB 32 Edw. I 28 (1304); 32-33 Edw. I 452; 4 Edw. II 127, 164 (1310); 17 Edw. Ill 172, 186 (1343); 18 Edw. Ill 282 6344), 538, 540 (1343-44);

13

Rich. II

94.

YB

95.

Long Quinto, M.f. no. Quoted

dent,” 96. (pt. 2)

97.

YB

in T. E. Lewis,

“The History of Judicial Prece-

Quarterly Review 47 (1931): 412-13.

YBB

18-19 Edw. Ill 392. Also see

12-13

Edw.

Ill 294; 16

Edw.

Ill (pt.

1)

230,

248; 18-19 Edw. Ill 390; 2 Rich. II 37, 78.

YBB

7 Rich. II 18; 16

YT

“Et

f.

custume

le

Edw.

Ill (Pt. 2) 430; 20

Edw.

Ill (pt.Y) 540; 12 Rich. II 162;

24b.

Long Quinto M.f. ,

99.

124 (1390).

18-19 Edw. Ill 490, 492 (1344-45).

Law

34 Hen. 98.

123,

et course

en un Court, ou Presidents en un Court font un

ley.”

109.

Dawson, The

Oracles of the

Law

3.

,

100. Ibid., 10.

lowing

Dawson finds explicit references to common erudition in the folYBB 20 Hen. VI 5 (1441); n Edw. IV 10 (1472); 4 Hen. VII 1 (1489); 16

63-64.

101. Ibid.,

cases:

Hen. VIII

16 (1501). It

the phrase

“common

is

my distinct impression that although

erudition” exists throughout the Year

gained widespread currency only in the

itself

the idea encapsulated in

Book

of the fifteenth century. In the

last half

fourteenth century the same idea was normally referred to as

“common

intendment.”

YBB

17

Edw.

the fifteenth century the expressions

“common

,

“common

Edw.

“common

Ill 252; 18-19

opinion,”

“common

2:155,

l

9 °i *98, 22 7

2 39

’

>

2

4^

opinion” or

Edw.

Ill 300. In

intendment,” and

erudition” appear to have been used interchangeably. This

clear in fifteenth- century readings

Moots

Ill 98; 17-18

period, the phrase

is

perhaps most

and moots. See Baker and Thorne, Readings and 2 7 2 > 2 73> 2 9 2

-

YBB Hen. VII 3 (1485); Hen. VII 10 (i486). 103. YB 21-22 Edw. I 430. Norman Doe, in his fine study of fifteenth-century common law jurisprudence, argues that medieval common law judges believed that “judicial consent alone shaped the common law.” Doe, Fundamental Authority, 26. He cites no evidence for this other than those cases that base the common law on usage of the court. Such cases, however, suggest nothing about what the common lawyers thought 102.

about

judicial consent. If

common 104.

1

1

law, they

they believed that consent

never say

“Every writ brought

common

law or statute.”

an important element of the

so.

in the King’s

YB

is

22

Edw.

I

Court ought

528. Also see

to be framed according to the

YB

3-4 Edw.

II

1

12-13.

u

L)enom:

Notes to Pages 46-50 The

common

statute does not abrogate the

YB 4 Edw.

law.”

II 85.

“

Bereford C.J.: ,

should understand that the statute was not made for nothing, but was

remedy accordant with remedy

gives a

cordant with 105. It

was not ordained by the old

ley

in the aforesaid case,

YB 4 Edw.

ley''

law, so

You

made because

inasmuch

a

as the statute

you must understand that the remedy

is

more

ac-

II 85.

would be interesting to know whether the two Year Book versions report the

same point

in the discussion

of the case.

It is

not

uncommon

cover the same point more than once in the discussion of

sometimes one reporter would

ment given

at

for judges

and counsel to

a case and, in

doing

so, to

When several reporters were taking down what was said in such in-

vary the language. stances,

211

one point

on

seize

in the discussion

a

variation of a judge’s pronounce-

and another reporter upon

a

second varia-

tion given at a different point in the discussion. 106. 107.

YB 17 Edw. Ill 98. YBB 11 Edw. II 105; Edw.

Ill 40; 17-18

108.

YBB

17

12-13

Edw.

Ill 84, 156, 316; 16

Ill 316; 18-19

Edw.

Ill

Edw.

Edw.

Ill 306; 30-31

I

490;

12

10; 1-2

Rich.

Edw:

Edw.

Ill 16, 58, 538; 17

Edw.

II 10.

II

44; 2-3 Edw.

II 33; 11

Edw.

II

324; 7 Rich. II 90. 109.

YB

Edw.

15

no. Aristotle,

Ill 126.

bk.

Politics,

into English , edited

3,

chap.

by William David Ross (London,

hi. Cicero, The Republic bk. ,

1

12.

Cicero, The Laws bk.

1

13.

Ibid.

14.

The

1

,

civil

16, in Artistotle,

1,

The Works of Aristotle Translated 1913).

chap. 22 (Cambridge, 1988).

3,

chap. 7 (Oxford, 1998).

law and the canon law (especially the canon law) were important

sources of medieval natural law theory. Pollock argues that the reason the lawyers speak of “reason,” instead of referring to the law of nature by name, fact that the

mon

lawyers

is

felt

threatened by, and jealous

1

17.

1

18.

The disagreement between

15.

116.

of,

the canon lawyers. Frederick Pollock,

in Jurisprudence

1961).

Hillary and the other judges repeats the argument

Summa

Theologica (60 vols.,

whether “law pertains not to the reason, but to the

120.

and Legal Essays (London,

1

of Question 90 of Aquinas’s

119.

the

sheer speculation.

YB 4 Edw. II 12-13. YB 19 Edw. Ill 376. YB 19 Edw. Ill 378.

1

lies in

canon law was the principal vehicle of the law of nature and that the com-

“The History of the Law of Nature,” This

common

YB YB

London, 1964-76) regarding

will.”

17-18 Edw. Ill 12 (1343). 15

Edw.

Ill 126. It

is

possible, of course, to read the qualifying clause, “ex-

cept where the contrary practice has been in use,” as limiting only the taking away of

mischief and not affecting the

demand

that law be in accordance with reason.

pect, though, that a qualification both of the

demands of reason and

I

sus-

also of the relief

of hardship better reflects standard judicial practice of the time. 121.

YB

21

and 22 Edw.

dent,” 349, 350. 122.

YB

16

Edw.

Ill 90.

I

430.

Quoted

in Lewis,

“The History of Judicial Prece-

Notes to Pages

212

123.

124. 125.

YB YB YB

8 3

8

Edw.

51-55

II 273-74.

and 4 Edw. II 161. Edw. Ill; quoted in Lewis, “The History of Judicial Precedent,”

350.

Chapter 3: Legal Theory in Fortescue, Littleton, and Fifteenth-Century Readings and Moots Chief justice of the King’s Bench (1442-61),

1.

castrian party and in exile,

went into

he never exercised

exile

with the queen; evidently named chancellor while

Thomas

IV and was

he submitted to Edward

office; in 1471

doned. His contemporary, Sir

Lan-

Sir John Fortescue joined the

Littleton, wrote a greater law

par-

book than any-

thing that Fortescue wrote, but that work, Tenures (edited by Eugene

Wambaugh

[Washington, 1903]) is a scientific doctrinal analysis of English land law that, while it undoubtedly carries jurisprudential implications, does not openly tackle questions of general jurisprudence.

Norman Doe, Fundamental Authority

2.

Late Medieval English

in

1990), provides a thoughtful treatment of Fortescue’s theory

the important influence of medieval theology

on

Law (Cambridge,

this subject

and shows

on Fortescue’s jurisprudence. For

cussion of Fortescue’s treatment of equity and

its

a dis-

4 of the

relation to law, see chapter

present work.

John Fortescue, De Laudihus Legum Chrimes (Cambridge, 1942), 25.

by

Angliae, edited and translated

3.

S.

B.

John Fortescue, The Governance ofEngla?id, edited by Charles Plummer (Lon-

4.

don, 1885), 109.

For another statement of this interpretation see R. Hinton, “English Constitu-

5.

tional

Theories from

Sir John Fortescue to Sir John Eliot,” English Historical

Review 75

(i960): 410, 412-17. 6.

Charles

Howard Mcllwain, The Growth

York, 1932), 359. In his Ancient and

Modem

last

jurisdictio.

(Ithaca, 1940),

politicum et regale Bracton' s

is

He

(New

published discussion of John Fortescue, Constitutionalism:

86-90, Mcllwain asserts that the central concep-

tion of the medieval English constitution

lum and

of Political Thought in the West

Bracton' s distinction

is

between gubemacu-

adds that Fortescue’s intention in using the phrase regimen

to identify his politician with Bracton' s jurisdictio and his regale with

gubemaculum. The problem with

this analysis

is

that there

is

no textual sup-

port in Bracton for Mcllwain’s distinction between jurisdictio and gubemaculum. Since

Mcllwain’s analysis of Fortescue assumes

every turn that Fortescue

at

is

lowing an intellectual tradition derived from Bracton his interpretation ,

tially

undermined. Stanley

B.

Chrimes, English Constitutional Ideas

merely is

fol-

substan-

in the Fifteenth

Cen-

tury (Cambridge, 1936), 319, 321, 339. 7.

Walter Ullmann, Law and

8.

Fortescue,

9.

John Fortescue, De Natura

10.

De

Politics in the

Laudibus, 41.

Ibid., 1:194. Similarly, in

Legis Naturae

De Laudibus

either laws of nature, customs, or statutes.” 11.

Fortescue,

12.

Ibid., 1:41.

Middle Ages (London, 1975), 62.

De Laudibus

,

1:39.

,

(London, 1869),

37,

1:205.

Fortescue says,

“all

human

laws are

Notes to Pages 13.

14.

De Natura, chap.

Fortescue, T.

T. Plucknett,

F.

A

chap

5,

Concise History of the

Common

a

judge of

15.

After 1628,

it

was principally read with

16.

Plucknett, Concise History, 278.

17.

Littleton, Tenures

18.

Ibid., sec. 702.

19.

The

,

3,

2I 3

10, 241.

was

277. Littleton

55-62

Common Law

5th ed. (Boston, 1956),

Pleas, 1466-81.

Edward Coke’s commentary.

Sir

sec. 383.

following are from

ibid., 41, 82, 132, 241, 365, 737; 2, secs. 103, 108, 229, 396,

647. 20.

in

YB

34 Hen. VI,

f.

24a.

21.

Littleton, Tenures

22.

Ibid., sec. 724; also see sec. 725.

23.

Ibid., 2, sec. 231; that this

,

3,

sec. 13.

was standard fifteenth-century doctrine may be seen

YBB 3 Hen. VI

44; 12 Hen. VI 7. 24. Doe, Fundamental Authority, 15 5-69. 25.

Littleton, Tenures

26.

“And so always upon

,

2, sec.

202;

3,

-

secs. 269, 478.

partition the lands given in frankmarriage remain to the

donees and to their heirs according to the form of the should have any of that which

convenience and

a

is

gift:

for if the other parcener

given in frankmarriage, of this would ensue an in-

thing against reason, which the law will not suffer.” Ibid.,

3,

sec.

269. 27.

Ibid., 2, sec. 210.

28.

Dot, Fundamental Authority,

29.

Littleton, Tenures,

30.

Christopher

St.

1,

sec. 21

113-20.

1.

German, Doctor and

Student, edited

T. Plucknett and

F.

L. Barton (London, 1974), 45, 47.

J.

31.

Summa Thcologiae, 60 vols. (London,

Aquinas,

1964-76): vols. 1-2,

q. 95, a. 2, ad.

also see Isidore of Seville, Etymologiae (Paris, 1983), 5:4.

3;

32.

Aquinas,

33.

St.

34. 35.

Summa

Theologiae, vols. 1-2, q. 95,

German, Doctor and

Littleton, Tenures,

Court

2, sec. 212.

For discussion of what

in the Fifteenth

is

known about

these educational exercises, see

36.

“The

space of

I

and

vol. 2,

the Early Stuarts

5;

John H.

Readings and Moots at the Inns of

Century (London, 1990); Walter C. Richardson,

Inns of Court (Baton Rouge, 1978), chaps. 4,

under Elizabeth

a. 2, c.

Student, 129, 121.

Baker and Samuel E. Thorne, introduction to

a

by T.

A

History of the

Wilfred R. Prest, The Inns of Court

(Totowa, 1972), 115-36.

utter barristers are they which, after they have continued in the house by

five

of barristers

is

of a

six

years and have profited by the study of law.

preferment or degree given to him for

.

.

.

his learning.

And

this

making

Also the benchers

are those utter barristers which, after they have continued in the house for the space

of fourteen or fifteen years, are by the elders of the house chosen to read, expound and declare

some

statute openly unto

cipal times of their learning,

all

the

company

which they

ing the time of his reading he hath the

call

of the house in one of the two prin-

the grand vacation in

name of

reader,

and

summer; and dur-

after of bencher.”

Report

written ca. 1539 on the customs and learning exercises of the Middle Temple, quoted in

Baker and Thorne, Readings and Moots

,

2:lix.

Notes to Pages 62-66

214

Report by commissioners

37.

King Henry VIII;

to

Thomas Denton, Nicholas

in Richardson,

A

A

Bacon, and Robert Cary

Histoiy of the Inns of Court, 414-15.

38.

See Richardson,

39.

Baker and Thorne, introduction to

History of the Inns of Court 102. ,

vol.

1,

Readings and Moots.

40. Alfred William Brian Simpson, Legal Theory and Legal Histoiy (London, 1987),

67-91, 80.

“The Purpose and Making of the Later Year Books,” Law Quanerly Review 89 (1973): 64; Desmond S. Bland, “Learning Exercises and Readers at the Inns of Chancery in the Fifteenth and Sixteenth Centuries,” Law QuarSee Eric William Ives,

41.

terly

Review 95 (1979): 245.

42. Ives,

“The Purpose and Making,”

66.

Baker and Thorne, Readings and Moots

43.

,

2:xlix.

44. Richardson, History of the Inns of Court, 418.

These were

45.

propounded without pleadings,

cases

statute and recited “certain doubts and questions

grow upon himself,

and

after the reader read the

which he hath devised that may

the said statute,” which were argued by the utter barristers, the reader finally

by any judges and sergeants who were present. Richardson, Histoiy

of the Inns of Coun, 418. See Baker and Thorne, Reading and Moots,

2:xlvi, lxiv-lxxiii.

46. In one of the few examples of the citation of prior cases in a reading, the case miscited: “But

now clear, by the

it is

equity of Gloucester, ca.

3,

that the warranty

Ewd.

is

is

no

bar without assets, as

Thorpe

where

length and said that in the eyre this case was [adjourned] before

it

was argued

at

says in 38 E.

10 or 25 [E.

3 [23];

3]

[really 15

Ill],

Herle and adjudged ut supra, and that he had no other reason except that Heng-

ham, who made the Lincoln’s Inn, Moots, 47.

statute, so interpreted

Autumn

on West.

1489,

First

it.”

II, cc.1-2, in

Reading of Robert Constable

at

Baker and Thorne, Readings and

1:181.

Ibid., 2:123, 2 ° 2 > 22 9> 2 3^’ 2 6°-

48. Ibid., 2:124, 228-30, 236, 244-45, 2 5^ 2 6°> 282, 288, 291-92, 297-98, 323. ?

49. Ibid., 2:202, 188.

reached inconsistent 50.

Obviously the

On

results:

occasion u

Frowyk:

common

it

was openly recognized that the cases had

has often been held both ways.” Ibid., 2:273.

it

training received at the Inns, the reading cycle re-

peated from one generation to the next, and the small size of the group of judges and sergeants at any one time would contribute to a commonality of outlook. For text references, see ibid., 2:47, 155, 190, 193, 198, 239, 248, 272, 283, 292. 51.

Ibid., 2:248.

52.

I

have in mind those passages in which

then cites

a case in

such

a

way

3.”

53.

Sir

These terms — ground, Institutes

principle,

and fee

is

Edw.

Ill, at the

13

Hen. VII,

is

and

saying Q.E.D.

beginning of quire

f,

folio 2

2 ^°-

and maxim — are used interchangeably. See

quoted as arguing “to the contrary: for

shall

P. pi. 9,

f.

it is

a principle

not pass out of anyone’s person without livery”

Baker and Thorne, Readings and Moots,

YB

a legal assertion

of the Laws of England (Buffalo, 1986 [1787]), 1:10b.

For example, Kidwelly

in law that freehold

55.

2

Baker and Thorne, Readings and Moots, 2:214,

Edward Coke,

54.

lawyer makes

that he creates the impression that he

For example, “And that was decided in or

a

23.

2:124; a ^ so see 2:II 9>

r

44>

237.

Notes to Pages “The Purpose and Making,”

56.

Ives,

57.

YB

58.

Fortescue,

59.

For

Hen. VII, H.

11

pi. 11,

f.

dence, see chapter

2I 5

68.

15.

De Laudibus, 21, 23. much fuller discussion of the

a

66-71

place of principles in

common

law jurispru-

8.

60.

Baker and Thorne, Readings and Moots 2:42.

61.

Edmund

,

Plowden, The Commeritaries, or Repons of Edmund Plozvden (London,

1816), 1:363. 62.

Baker and Thorne, Readings and Moots

63.

Ibid., 2:132.

Also see

IIO 2 3&> 289.

1:15; 2:105,

,

>

2:67, 236.

64. Ibid., 2:141.

make a variety of claims of harm or wrong, a claim of mischief most commonly was made in a situation in which someone would be left without a legal remedy or process that the law would ordinarily provide or in which some procedural burden, such as a delay, woul$j, result. “There is no doubt but While “mischief” could be used

65.

that the

first

may

lessor

enter because of the alienation, because of the mischief which

would otherwise follow

for him; for if he waited until the first lessee for

for breach of condition ... in the

occur so

as to bar his recovery.”

against the tenant even

to

if

meantime

“And

a collateral

as to the process infinite, that

he had never vouched, for

it is all

For an excellent discussion of the use of mischief

319.

warranty or

a

life

entered

descent might

mischief exists as

the same delay.” Ibid.,

2:121,

in the fifteenth- century

Year

Books, see Doe, Fundamental Authority, 155-61.

“Note

66.

that

which they hold issue

and

dies,

if

make

there are two coparceners, and they

in coparcenary,

and then waste

is

and the

lessee

a lease for life

of land

commits waste, and one of them has

again committed, the question

is:

if

the aunt and the

niece bring a writ of waste for the waste committed after the sister’s death, shall the

aunt recover the moiety of the place wasted, and damages accordingly, for the waste

committed 67.

Baker and Thorne, Readings and Moots

definition,

many

medieval theorists this conception had

reproduced twice

its

1. 1.

Bracton offers this definition

and Fortescue, noting the

word

civilian origin

69.

Kebell the

voucher

lies

Thorne, Readings and Moots,

Chapter

1.

Christopher

St.

own

See also

it

man

is

and In-

definition of justice,

of the definition (De Natura,

by reason, and

2:319.

[right].” Digest 1.1.10

for word^as his

says that justice “is the will that assigns to every “

origin in Ulpian’s famous

in Justinian, Corpus luris Civilis (Dublin, 1973): “Justice

steady and enduring will to render unto everyone his ins

stitutes

2:70.

Doe, Fundamental Authority, 120-21.

68. For

a

in her sister’s land?”

1,

chap. 35) also

his right” (chap. 39).

seems that

it is

law also.” Baker and

ibid., 2:188, 202, 319.

The Early Sixteenth Century: Christopher St. German 4:

German, Doctor and

Student, edited by

Theodore

F.

T. Pluck-

and John L. Barton (London, 1974), 3. 2. Ibid., 7. Although the device of the dialogue always puts distance between the

nett

reader and the author’s intention,

it is

as clear in Doctor

and Student

as

it

ever

is

in a

Notes to Pages 72-80

21

dialogue that both the doctor and the student speak for are given in text for passages

The term

3.

wider sense,

it is

from

ins positivum

this

used by the medieval canonists in two senses. In

is

used to distinguish

positive enactment. St.

human

German seems

law from

it

more

its

special-

used to refer to law created by some

it is

to use

ius naturale. In its

in the first sense.

See Stanley B. Chrimes, English Constitutional Ideas

4.

German. Page numbers

work.

and eventually more common, sense

ized,

St.

in the Fifteenth

Century

(Cambridge, 1936), 210-12; Stephen Siegel, “The Aristotelian Basis of English Law,”

New

York University

Law Review 56

German, Doctor and Student 59. can think of two arguments for treating maxims

5.

St.

6.

I

,

from general custom. same strength and

made

(i98i):i8, 23.

German

at

one point

ground of law separate

states that

maxims

are of the

effect in the law as are statutes. Since he also says that statutes

custom are

against general

proved by reason,

First, St.

as a

it

would seem

valid (57), because general

to follow that

customs cannot always be

maxims, being equal to statutes

in their

strength and effect, might also stand against contrary general customs and deserve

recognition as a separate ground. However, the student holds that maxims, like cus-

toms, are subject to being changed by statutes

(65),

so

have more strength in this respect than do statutes, after directly concerning the relative strength of

The second argument If

he

is

being

a

is

manner,

at

The

student says nothing

grounds only on the

portion of the eternal law, then

it

basis of separate

might be argued that maxims,

the erudition of legal specialists, should be assigned as a

separate ground. But although this

all.

German’s understanding of the term “ground.”

involves St.

known only through

turns out that they do not

maxims and customs.

to be understood to be assigning separate

means of knowing

it

St.

German

does sometimes use the term “ground” in

other times he uses the term as a

synonym

for “authority.” If

understood in the sense of “authority,” there appears to be no basis in

maxims from general customs. German, Doctor and Student 47. Page numbers are given

St.

“ground”

German’s

jurisprudence for distinguishing 7.

St.

from

this

8.

,

work.

John Fortescue, De Laudihus Legum Angliae, edited and translated by

Chrimes (Cambridge, 9.

in text for passages

See

J.

1942), chap.

St.

from

this

B.

17.

G. A. Pocock, The Machiavellian Moment (Princeton,

German, Doctor and Student

10.

S.

,

49. Page

numbers

1975), 14-22.

are given in text for passages

work.

11.

A

Replication of a Serjaunte at the

12.

A

Little Treatise

Laws of England (hereafter, Rep. in text) was written about 1530 and printed most recently in J. A. Guy, Christoper St German on Chancery and Statute (London, 1985), 99-105. Concerning Writs of Subpoena was most recently printed in Guy,

Christopher St German, 106-26. 13.

14. 15.

Ibid., 123.

Ibid., 109-10.

“Law could never

accurately embrace what

same time, and so prescribe what and their actions, and the

is just;

is

best and

for the dissimilarities

fact that practically

nothing in

most

just for all at the

between human beings

human

affairs

ever remains

Notes to Pages 80-89

prevent any kind of expertise whatsoever from making any simple decision in

stable,

any sphere that covers by C. 16.

21 7

all

cases and will last for

Rowe (Warminster,

J.

time.” Plato, Statesman, translated

all

1995), 294a-b.

The Works of Aristotle Translated

Aristotle, Nicho?nachean Ethics in

into English

edited by William D. Ross (London, 1913), 1137b. 17.

Aristotle, Rhetoric in Works i374a-b.

18.

Ibid., 1374a.

19.

Cicero,

20.

Quintilian, The

,

De

Winterbottom

Inventions (Cambridge, 1949), 2:xlii— xlviii.

Minor Declamations Ascribed

He

was

Quintilian, edited

(Berlin, 1984), secs. 264.7-264.9. Quintilian (35-95 A.D.)

of the most important school of oratory courts.

to

at

Rome and sometimes

by Michael

became head

pleaded in the law

great admirer or Cicero and hoped to raise the orators of his age to

a

the level of the age of Cicero. His most important surviving

work

is

the Institutio Ora-

(Cambridge, Mass., 1985) in twelve books. 21. English and American jurists have repeatedly jnade similar points. John Selden,

torio

the great seventeenth-century scholar and

“Equity [But]

is

a

roguish thing, for

Equity

is

[in]

law

common

we have

a

lawyer, spoke bitingly of equity:

measure to know what to trust

according to the conscience of him that

larger or narrower, so

is

equity.” Table-Talk

Supreme Court

in the 1798 U.S.

chancellor, and as that

is

(London, 1689), 49. Justice James

case of Colder

v. Bull,

to. is

Iredell,

rejected Justice Chase’s appeal

to principles of natural justice as bases for constitutional decisions, saying in re-

sponse:

“The

purest of

ideas of natural justice are regulated

men

have differed on the subject.”

3

22.

Cicero, Topica (Cambridge, 1949), 4.23.

23.

For example, Aquinas quotes Code

who by obeying

by no

fixed standard; the ablest

U.S. 386, 398 (1798).

1.14.5 (“he doubtless acts

contrary to the law

the letter goes against the legislator’s intention [voluntas]”) but ig-

The who

nores texts such as Digest 33.10.7 and 40.9. 12. 1, which do not support his point. civilians

knew 24.

could be selective, too, but always did so

the law books as well as they would catch

See

and

Hermann Kantorowicz,

other jurists

at the risk that

them

out.

Studies in the Glossators of the

Roman Law (Cam-

bridge, 1938), 88. 25.

Irnerius,

Summa

sunt benignius ut

praecepta tunc

Codicis (Berlin, 1894), 1.14.6:

mens earum

demum

a

“Conditae leges intelligendae

servetur et ne ab aequitate discrepent: legitima

iudice admittuntur,

cum

enim

ad aequitas rationem accompdan-

tur.”

26.

“Aequitas in singulis causis et negotiis spectanda

est,

inquirendum an decern pro decern

tia,

lex Fusia, lex Papyia,

est,

maxime tamenin

reddi, vel aliquid simile,

sit

iure,

hoc

aequum. Verba gra-

quae quia aequitatem non habet, tolluntur:

lex Falcidia, quae,

quia continet aequitatem, confirmatur. Vel dicit, in omnibus professionibus et artibus,

maxime

in iuris professione.

.

.

.

Maxime autem

aequitas, ut iudex earn stricto iuri praeforat.”

Alexander

J.

Carlyle,

A

in iuris professione, ut dixi, spectatur

Quoted

in

Robert

W.

Carlyle and

History of Medieval Political Theoiy in the West (Edinburgh,

1903-36), 2:15- 16. 27.

Apparently the concept of aequitas

civile est aequitas constituta."

constituta

came from Cicero,

Topica, 2.9: “Ius

2l8

Notes to Pages

V

28.

This gloss

is

reproduced

(Oxford, 1929), app. 4.

The

89-91 in Paul

Vinogradoff,

full gloss reads:

“Cum

enim proprium

versentur, differunt tamen. Equitatis

proponere. Juris autem idem proponere volendo, necti.

Quod

quam

equitas dictaverit continendo, partim plus

quoque

29.

modis equitas

aliis

fiat, solis

hominum

propter

lapsus

Rowan Law

est id

quod justum

quam

est simpliciter

aliquantum auctoritate sub-

ea distare contingit, partim minus

quam

operteat proponendo. Multis

et jus inter se differunt, cujus dissensus interpretatio, ut lex

principibus destinatur.”

See Peter Stein, “Vacarius and the Civil Law,” in Church and Government in the

Middle Ages, edited by Christopher Brooke (Cambridge, 1978), 30.

Medieval Europe

equitas et jus in hisdem rebus

scilicet

multum ab

in

Code

“Placuit in

3.1.8:

omnibus rebus praecipuam

119, 124.

esse iustitiae aequitatisque

rationem .” Stein argues that Martinus did not disagree with Bul-

stricti iuris

garus over whether judges or jurists could use aequitas rudis as a standard for the interpretation of written law; he agrees that jurists and judges were limited to the aequitas constituta in passing

Stein suggests, rule

is

on the equity of

that Martinus

The

difference

between them,

was willing to derive the equity pertaining to

given

a

from the entire body of established law whereas Bulgarus wanted to narrow the ,

down

issue

Law,” 124, 31.

to the ratio

legis

Azo,

Summa

Codicis

,

in

Summa Azonis Comm.

capitanea, aequites bursalis, martiniana

1533):

“Licet

M.

dedit

ei

ex sua

Decret. C.9.10. “et dicunt:

ficta

hae est aequitas

.”

William Cahill, “Development by the Medieval Canonists of the Concept of

Equity,” Catholic Lawyer 7 (1961): 33.

(Lyon,

actionem.” Odofredus, Dig. Vetus 50.4.5. “Dixit Martinus, de sua

aequitate et bursali .” Hostiensis,

32.

and the Civil

for that particular rule. Stein, “Vacarius

125, 129.

ficta aequitate

J

a legal rule.

115.

Vacarius, The Liber Pauperum of Vacarius, edited by Francis de Zulueta (London,

9 2 7)> l6

-

34.

“Non

35.

Vacarius, Liber Pauperum:

perator.

exemplis sed legibus iudicandum

Obseruare

(1)

“1.

est.”

Conditor autem

autem leges debent

tarn ceteri

et interpres

quam

legum

solus est im-

imperator. Sed ipse ex pro-

pria uoluntate, ceteri ex necessitate. Item, iudicis interpretatio nulla intelligitur,

preterquam

si

nullo ab his inter quos iudicat iuris remedio infirmetur,

eos tantum tenet.

2.

quo constructum

est.

Generale

reclamante interdum,

(2) et

nature

congruum

Reproduced

eo

modo

fieri

contingit et ualet.

Ergo

in Paul

Vinogradoff,

Roman Law

et durat ut a

in

principe

inter

soluatur quid

Imperatoris autem constitutionem inuito populo,

abrogari possit, nisi prius imperium et potestatem iat.”

est ut

quo casu

immo

etiam

nec per consuetudinem

amotam populus

recip-

Medieval Europe (Oxford Univer-

sity Press, 1929), p. 149. 36.

Ibid., 13.

37.

Azo,

Summa

Institutis, in

potius debet servare aequitatem, tate scripta,

non de

ea

quam

Azo,

quam

Summa

Azonis, 4:17,

jus scriptam.

Quod

2:

“Item in pronunciando

est

intelligendum de aequi-

quis ex corde sou inveniat: ut et majori reverentia vel

ti-

more serventur omnia aequitatis, seu justitae praecepta.” Brocardica, Rub. lxxvi: “Aequitatem dico, lege, non cujusquam ingenio excogitatam.” For discussion, see Carlyle,

A

History of Medieval Political Theory, 2:18.

Notes to Pages 91-93

This association has roots going back to Aristotle’s statement that “equity bids

38.

human

us to be merciful to the weakness of

found the idea

dieval jurists also

nius] interpretation

justice

is

nature.” Rhetoric in Works ,

1374a.

,

Me-

in Digest 50.155.2: “In penal cases, the milder [benig-

to be adopted.”

is

of Hostiensis: “Equity

43 1

219

The

classical canonist definition

tempered with mercy.”

of equity

is

Summa Aurea (Lugduni,

that

1556),

-

See Decretum Cau.

39.

25,

,

was the

first

1,

diet. p.c. 16.95.

Influenced by the civilians, Gratian

canon law systematically. The

to organize the sources of the

title

that he

chose for his work ( Concordia discordantium canonum ) reflects his intention to organize the law of the church into a harmonius system out of an great variety of diverse, even

contradictory elements. 40. Decretum, Cau.

Decretum Dist. 4, Medieval Canonists.” 41.

is

For discussion, see Cahill, “Development by the

diet. p.c. 2.

,

42. ‘“Equity

diet. p.c. 90.

11, 3,

the law’s law’

is

only true of equity, reduced to writing, for rude

equity only softens the rigor of the law.” Decretum Gratian i cum Glossa

Durham

Cathedral Ms. C.

II, fol.

Anonyma

49, quoted in Cahill, “Development by the

,

Me-

dieval Canonists,” 117. 43. Aquinas,

Summa Q.

Ibid., I la Ilae,

44.

Aquinas, In

45.

46. Aquinas, Ibid.

47.

Theologiae

120, 2; Aristotle,

V Ethic

Summa

,

(London, 1964-76):

la Ilae,

Q. 96,

if

(New

York, 1948-50).

6.

Aquinas uses an example that goes back

enemies are pursuing citizens outside the

violation of the letter in order to serve the

Cicero,

De

Invention

,

at least to

De

rieux (Paris, 1960-70), T. 9,

is

Cicero:

for the

walls, the gates

common

utility

a

law requires

common welfare,

should be opened in

intended by the lawmaker.

II, xlii.

48. See Jean Gerson,

49. Ibid., T.

6.

,

that the gates of the city be kept closed, and ordinarily this

but

Q. 96,

Nichomachean Ethics 113833.

Opera Omnia

lect. 16, in

,

la Ilae,

95-96.

2,

St.

Religionis in Oeuvres Co?npletes, edited ,

by Palemon Glo-

233-39.

German borrows

tion of the words “having weighed

all

this definition.

Rueger sees

in the addi-

the particular circumstances” to Hostiensis’s

famous definition evidence of an important difference between Gerson and the canonists. Zofia Rueger,

“Gerson’s Concept of Equity and Christopher

History of Political Thought

(1982): 10-11.

3

But the canonists long

tied the

St.

German,”

equity-m^rcy

idea to that of taking account of particular circumstances. Gratian traces this connec-

tion to Isidore of Seville in Decretum Dist. 29, ,

Medieval Canonists,” 50. isted

116.

Rueger, “Gerson’s Concept,” 14-15. Rueger sees more disagreement than ex-

between Aquinas and Gerson. Her evidence that Aquinas

of equity to the prince totle says, tent,

Proem. See Cahill, “Development by

is

the following text: “Further, the function of equity, as Aris-

seems to be to look to the

however,

is

legislator’s intent. Interpreting a legislator’s in-

competence of a

in the sole

ruler; thus Justinian says,

lawful for us alone to evaluate an interpretation

Aquinas,

Summa

limits the application

Theologiae Ilallae, Q. 120, ,

1.

It is

proper and

between equity and written

But reliance on

law.”

this text indicates a fail-

ure to recognize that the objections, or auctoritates presented at the beginning of a ,

Notes to Pages 93-98

220

discussion by Aquinas do not represent his views

Guy makes

John

in his responsio or corpus.

on the matter; these

same

the

slip in

are to be found

“Law, Equity and Con-

science in Henrician Juristic Thought,” in Alistair Fox and John Guy, Reassessing the

(New

Henrician Age 51. tutes

York, 1986).

Bracton, 2:24. Bracton's treatment of equity

Summa

borrowed from Azo,

is

Insti-

1. 1.

52.

Aristotle, Rhetoric 1374a.

53.

Cicero, Topica IV,

,

YB

54.

14 Hen. VII, Hil.

Heydon’s Case,”

Illinois

John Fortescue,

55.

23.

,

7.

See Samuel E. Thorne, “The Equity of

Law Review 31 (1936): 202, 208-11. De Natura Legis Naturae (London,

and

a Statute

1869), chap. 24. In associ-

ating equity with the king’s discretionary power, Fortescue appears to be following the canonist tradition of encouraging secular princes to intervene in cases in which

the positive law

though such

tem

is

inadequate. See introduction to

treatment of equity

a

which the creation of

in

St.

German, Doctor and Student. Al-

may be somewhat easier

legislation

is

to justify in a political sys-

understood to be wholly the province of

the prince (so that an equitable intervention can be understood as an adjustment that the lawmaker himself

lowed),

it is

makes to ensure

own

that his

intention in the law

is

possible to justify the king’s intervention, even in a system in

being

fol-

which the

king does not legislate alone, as necessary to recover the true meaning or intention of the law from the confusion sometimes found in

its

Fortescue teaches that the English king’s rule

not able to change the laws

De

Fortescue,

at his pleasure

Theologiae, la Ilae,

De Natura chap. 24. German, Doctor and Student

Fortescue,

58.

St.

Q. 96,

,

omnibus circumstantiis

95.

,

,

German, Doctor and Student

German’s discussion

tory of Political

1.

Thought 4

97. J.

,

95-96.

H. Burns shows that

“St.

Summa

of

St.

Theologiae

German, Gerson, Aquinas, and Ulpian,”

,

His-

(1983):

,

Ibid., 99.

62.

Aquinas,

63.

Introduction to

Summa

Theologiae Ilallae, Q. 120.

St.

,

German, Doctor and Student

German, Doctor and Student

Rot. Pari,

and Student

YBB

,

iv,

,

,

xlviii-xlix.

3.

84, No. 46. For discussion, see introduction to St.

9

German, Doc-

xl-xli.

Edw. IV

Edw. IV

4 Hen. VII 4. 67. Quoted in Albert F. Pollard, Wolsey (London, 1929), 96. 68. St. German, Doctor and Student 81. Chapter 13 is devoted to 66.

this part

443, 447. German, Doctor and Student 97.

61.

tor

9,

closely parallels Aquinas’s treatment in the

James H. Burns,

aequitas jus-

particularibus, dulcore misericordiae temper-

Regulae Morales in Oeuvres Completes T.

Ilallae, Q. 120.,

6.

Compare Gerson, “Est autem

ata.”

65.

is

,

pensatis

64. St.

he

but depends upon the assent of his people.

titia

St.

political:

1885), 109.

Summa

57.

60.

not only regal but

,

56. Aquinas,

St.

is

Laudibus, 25; Fortescue, The Governance of England edited by Charles

Plummer (London,

59.

words.

14; 8

8;

,

excellent discussion of the idea of synderesis in medieval and early

sinderesis.

For an

modern thought,

Notes to Pages 98-108

221

see Robert A. Green, “Synderesis, the Spark of Conscience, in the English Renaissance,” Journal of the History of Ideas 52 (1991): 195. 69.

Gerson, De Theologia Mystica,

70.

St.

German, Doctor and Student 88-89.

71.

St.

German

in

Oeuvres Completes 3:260-61. ,

,

no

distinguishes between the “higher part” of reason, which “hath

regard to transitory things or temporal things” (84-85) and the “lower part” which

“worketh most to govern well temporal things” (86-87). 88-89.

72.

Ibid.,

73.

“Error in conscience follows upon

defective application of Ibid., 132-33. St.

74.

in text for passages

YB 4 Hen.

75.

it

IV,

this

repeats this assertion

mained concerning whether such amining even

German

a

German

a

two

on

163.

Page numbers are given

recognizes that a theoretical problem re-

would prevent the chancellor from ex-

a statute that

judgment against the law of reason

provides

science, or a

work.

23. St.

c.

some

to an act.” Ibid., 90-91.

German

from

defect of knowledge of

a

is

conscience.

itself against

-part answer. First, he argues, if the chancellor or others

examine judgments of the king’s courts, lawsuits would have no end,

plaintiffs

be damaged and impoverished, and the inconveniences thus invited would be tially

greater evil than the occasional injury to a party. Second, conscience

trated

by such

a

self and, indeed,

must do so to save

German, Doctor and Student

“Equity rather followeth the intent of the law than the words of the

Page numbers are given

not frus-

Although

St.

in text for passages

this

work.

St.

and Student the two characters seldom take speak for the author.

from

law.” Ibid.,

German himself may have written the Replication is not German may favor the dialogue as a literary form, in Doctor

suggestion that

persuasive.

poten-

116-17.

77.

,

The

would

his soul.

St.

78.

might

law because the offending party can always redress the problem him-

76.

99.

is

a

St.

The

issue with each other,

and both appear to

character of the sergeant in the Replication as David E. C. ,

Yale notes, takes serious and acrimonius issue with

St.

German’s treatment of con-

science in Doctor and Student. David E. C. Yale, “St. German’s Little Treatise Concerning Writs of Subpoena ,” Irish Jurist 10 (1975): 326-27. For a thesis that St.

German may

more

favorable view of the

be the author, see Guy, Christopher St German 56-58. ,

reply to Doctor and Student written in the form of a dialogue between St.

student and

posed 79.

a

sergeant at the

in the early 1530s.

The

common

law, the Replication appears to

Guy, Christopher

Replication of a Serjeant at the

St.

German

A

German’s

have been com-

64.

Laws of England

in

Guy, Christopher St Ger-

man, 100. 80.

Ibid., 101.

The

following quotations are to be found on this page.

German, A Little Treatise Concerning Writs of Subpoena, St. German on Chancery and Statute, 123-24. 81.

St.

82.

Statute of Westminster III,

83.

Yale, “St.

84. St. 85.

German’s

German,

Ibid.,

1

A

YB

18

Edw.

Little Treatise',' 329.

Little Treatise, 109.

12.

86. Yale, “St.

German’s

Little Treatise," 330.

I, st. 1, c. 1.

in

Guy, Christopher

Notes to Pages

222

St.

87.

German,

A

108-112

Little Treatise, 116.

John Guy, The Cardinals Court: The Impact of Thomas IVolsey in the Star Chamber (Totowa, 1977). John Spelman, The Reports, edited by J. H. Baker (Longon, 1978), 88.

vol.

2.

Guy, Christopher St German

Replication in

89.

,

103.

Chapter 5: Plowden’s Commentaries and the Sixteenth-Century Law Reports Edmund Plowden, a lawyer with abilities of the first rank (Holdsworth suggests that he may have been the most learned lawyer of the century), reinvented the case re1.

port in the two volumes of his Commentaries, which cover cases from the 1550s to

1571.

Edmund Plowden,

See

1816).

The Commentaries, or Reports of Edmund Plowden (London, Hereafter, Commentaries. Although his Commentaries are more like the Year

Books than some of his contemporaries’ reports

arguments

in their interest in the oral

of counsel and judges, in other respects they are very different from the Year Books.

The Year

Books, concerned with the intricacies of oral pleading, ordinarily pay more

how

attention to

framed than to how they are resolved. The change from

issues are

toward the decision of an

oral to written pleading naturally directs interest so,

Plowden

the cases he reports are

tells us,

upon Demurrers or

special verdicts, copies

“upon points of law

tried

and

issue,

and debated

whereof were delivered to the judges, who

studied and considered them, and after great and mature Deliberation, gave Judgment

thereupon.” Commentaries

summarizes the

facts

argument on both

and

sides

Plowden ordinarily provides the written pleadings,

i:v.

legal issues,

summarizes the substance of what was

and by the judges (taking care to check

counsel and judges), reports the judgment, and often adds his tary.

For discussion of Plowden, see L.

W.

Abbott,

Law

1485-1585 (London, 1973), 198-239; William Holdsworth, (London, 1922-66), 5:364-66, 369-73. 2.

Commentaries

3.

Ibid.

law.

This passage

The

details

with both

learned

commen-

Reporting in England, History of English

Law

1:9. is

interesting as well for

precedents) were in the sixteenth century

mon

A

own

said in

still

its

suggestion that “cases” (judicial

not regarded as the same as the com-

notion that ancient precedents are not necessarily the law

is

found

also

The Case of Modus Decimandi Coke’s Reports 13:14, although there it is explained that the reason is that statutes often have changed the ancient law and that time and cusin

,

tom have 4. is

also altered

The

first is

it.

from

Platt

from The Case of Mines, 5.

in

v.

The

Sheriffs of London, in

Commentaries

Commentaries

For further discussion of the expression

“common 3

erudition,” see the discus-

of this volume; John Spelman, The

by John H. Baker (London, 1978), introduction to Ives The Common Lawyers of Pre-Reformation England (Cambridge, Reports, edited

to

Calvin's Case, early in the seventeenth century,

mind

in

which

explicit resort

is

made

the second

1:316.

sion of case law and precedent in chapters 2 and

6.

1:36;

is

vol.

2;

and Eric

W.

1977), 156-65.

the only other case that

to the law of nature for legal authority.

comes

Notes to Pages 115-117 James Dyer, Reports from Baker (London, 1994), 1:25. 7.

Thomas

8.

the Lost Notebooks of Sir James Dyer, edited

Hedley’s speech before the House of

of 1610, Proceedings

in Parliament

1610

2 vols.,

Commons,

1610.

223

by John H.

See Parliament

Reed Foster (New

edited by Elizabeth

Haven, 1966), 2:172-7 6.

James Dyer, admitted to the coif

9.

mon

in 1552,

Pleas in 1557. His reports extend from

was constituted

YB 4 Henry VIII

a

judge of the

Com-

to the time of his death

in 1582.

Plowden reports such

10.

by Dyer himself in the Wrotesle

Norman Doe, Fundamental

Also see

11.

a discussion

case.

Law

Authority in Late Medieval English

(Cambridge, 1990), 103-6.

Thomas

12.

Egerton,

A

Discourse upon the Exposicion

with Sir Thomas Egerton's Additions, edited by Samuel E. Ibid.,

13.

Understandinge of Statutes

Thorne (San Marino,

Thorne’s view that

this

his repeated

merely

as a facet

For the

15.

3.

the only principle regarding the equity

is

of a statute that really mattered for fifteenth-century judges must be taken on

must

1942),

45-46.

Ibid., 48-51.

14.

&

faith, as

claim that they viewed the application of the equity of a statute

of the routine administration of justice.

first

time, an abridgement devoted a separate

interpretation (Robert Brooke,

title

La Graunde Abridgment [London,

to statutes 1573]),

and their

the cases after

the middle of the century, especially those reported by Plowden, contain fuller dis-

cussions of interpretive questions than had ever been reported before, and two books

on

statutes

and their interpretation were written (A Discourse upon

the Exposicion

Understanding of Statutes, unprinted until 1942 and possibly the work of Sir

Egerton, and

A

Treatise Concerning Statutes, or Acts of Parliament

,

and

and

Thomas

the Exposition

Christopher Hatton and published posthumously in London

thereof, attributed to Sir

in 1677).

See Theodore

16.

T. Plucknett, “Ellesmere

F.

on

Statutes,”

Law

Quarterly Review

60 (1944): 242, 248. For the understanding that parliamentary legislation required the separate consent of king, lords, and commons, see John H. Baker, An Introduction to English Legal History, 3d ed. (London, 1990), 235-36.

Plowden, for example,

17.

identifies the doctrine of the equity of a statute

and in elaboration, quotes from

Aristotle’s notion of epieikeia,

tor

on

Aristotle. Eyeston

vide attribution,

many

v.

Studd, in Commentaries 2:465.

a

with

medieval commenta-

Although he does not pro-

of Sir Edward Coke’s Latin maxims on interpretation can be

we know, contained standard civilian and canonist texts as well as Roman works on rhetoric. See William O. Hassall, A Catalogue of the Library of Sir Edward Coke (New Haven, 1950). Hatton’s Treatise Concerning traced to civilian sources. His library,

Statutes evinces a familiarity with with civilian tion.

See Hans Baade, “T he Casus Omissus:

Syracuse Journal of International 18.

and canonist approaches to interpreta-

A

Pre-History of Statutory Analogy,”

Law and Commerce

20 (1994): 67-68.

Categorical assertions, such as the one by Baade, that reliance on the intent of

the makers of statutes

dominant one,”

is

not

a

illustrate the

“cardinal rule of statutory interpretation

let

alone the

hazards of making claims about what the cases hold

Notes to Pages 117-126

224

without the advantage of having read the cases. Baade bases his assertion on

a

count

of entries made in an index to Plowden’s Commentaries he found only three regarding ;

“The Casus Omissus 78. Even a casual reading of the would have uncovered many more statements of the rule that interpretation was

the intent of the makers. Baade, cases

to be governed by the intent of the makers. 19.

Christopher

St.

German,

whether ignorance was an excuse

in discussing

English law, remarks regarding one statute that

“it

in

hath alway been taken that the in-

terne of the makers of the said statute was that they that were ygnoraunt of the fyrste

reteynoure sholde not renne in any penalty of the statute.” Doctor and Student edited ,

by T. 20.

F.

T. Plucknett and

J.

L. Barton (London, 1974), 283.

For other examples of

1:50, 53,

on

judicial reliance

Commentaries

legislative intent see

54, 67, 87, 161, 162, 250.

21.

Hatton,

22.

Some of the

Treatise Concerning Statutes 28-29.

lawyers of Plowden’s time had begun to speak as

if

the equity of a

statute has the principal function of effectuating the makers’ intent. 23.

Egerton,

A

Discourse upon the Exposition, 15 1.

24. Ibid., 152. 25.

An argument

around, that

is,

by Serjeant Bromley does appear to put the matter the other way

to suggest that equity provides the basis for a conclusion about leg-

islative intent. “It

cannot be reasonably taken,” he contends, “that such was the intent

of the makers of the statute, for

it

would be against

avoid leases newly made.” Fulmerston

v.

Hatton,

Treatise Concerning Statutes, 28.

27.

“Equitie

is

statute, yet

construction

reason and equity utterly to

Steward, in Commentaries 1:109.

26.

a

all

made by

the judges, that cases out of the letter of the

being within the same mischiefe, or cause of making the same, shall be

within the same remedie that the statute provideth.” Edward Coke,

Laws of England (Buffalo, 1986 [1787]), 1:24b. 28. Such a reference is made by Hales, J., 1:54:

ful

“So we see where the

common

or prejudicial to another, and

in

Wimbish

a statute is

made

in

v. Tailbois,

law suffers anything to be done for the redress of

Institutes

.

.

it,

Commentaries

which

.

of the

is

hurt-

that by the eq-

uity of the statute a like thing shall be taken within the like purview.” 29.

Chancery Reports

30.

Hatton,

Treatise Concerning Statutes, 30.

31.

Sheffield

v.

1:12,

Ratcliffe in

in

The English

Reports, vol.

H. Hobart, The

Reports of that Learned Sir

Knight (London, 1641), report 346 (1616). 32. The dearth of arguments for strict interpretation occasionally a judge would citation of Cicero

show

48 (Edinburgh,

familiarity with the

and quotation of the maxim

is

33.

since

words of Cicero. See Saunders’s

summum jus summa

injuria in v. Tracy,

support in

Com-

1:161.

Chancery Reports

1:14-15.

The chancellor’s

expression of views such as

sociating the chancery with unlimited prerogative power, that goes

Henry Hobart

somewhat surprising

of following the intent rather than the words of deeds. Throckmerton mentaries

1932).

may

beyond the defense of res judicata why Coke and other

came embroiled

in a dispute

this, as-

help explain in a

common

way

lawyers be-

with chancery. For discussion of the dispute, see John

Dawson, “Coke and Ellesmere Disinterred: The Attack on Chancery

P.

in 1616,” Illinois

Notes to Pages Law Review

36 (1941): 127;

1616,” Irish Jurist

i

953),

Lawyers and the Chancery:

1:12.

Hake’s Epieikeia: A Dialogue

35.

Common

225

(1969): 368.

4

Chancery Reports

34.

H. Baker, “The

J.

126-132

was written

in

Three Parts edited by David E. C. Yale (London, ,

in the late sixteenth

century but remained unpublished until this

century. 36.

Ibid., 43.

37.

Ibid., 46. *

Chapter

6:

Sir

John Davies and the Common Law Mind

1.

John Greville Agard Pocock,

2.

J.

Politics ,

Language and Time (New York,

G. A. Pocock, The Ancient Constitution and the Feudal Law:

Retrospect

(Cambridge, 1987),

A

Reissue with a

36.

Ibid., 37.

3.

Davies (1569-1626) was sent by James

4.

to Ireland in 1603 as solicitor general; in

I

1606 he was appointed attorney general for Ireland; in 1609 he was made

The

1626 he was appointed chief justice, but he never took office.

published at Dublin in 1615 as Le Primer Repo?~t des Casses adiudges in 5.

scripts

1973), 209.

les

et

a

sergeant; in

Irish reports

were

Matters en Ley resolues

&

Courts del Roy en Ireland.

John Davies, The Works

in Verse

and Prose Including Hitherto Unpublished Manu,

of Sir John Davies, edited by Alexander Grosart (Blackburn, 1869-76), 2:251-52.

Hereafter, Works. Fictions and artificial conventions had a definite place in the

6.

has even been suggested that they were the glue that held

need, however, for lawyers to believe in

from the doctrine of trespass,

ple

trespass, or

them or take them

in the thirteenth

it

common

law;

it

together.

There was no

To

take an exam-

literally.

century the rule was that

a

claimed

wrong, could be heard in the king’s courts only upon an allegation that

the king’s peace had been broken. In nearly

all

cases of trespass, therefore, the plain-

wrong had been done him by means of force and arms, usually adding wit with swords and bows and arrows.” As the law of trespass expanded

alleged that

tiff

the words “to

to cover cases in client’s case

which no force or arms were used,

heard

still

lawyer

a

had to make the old allegations of vi

et

who hoped

to have his

armis although he and ,

the other legal professionals understood well that he was using a fiction. 7.

8.

John Fortescue claims that this argument is Aristotelian. The argument is plausible, but it is vulnerable to the following counterarguSir

ment from supporters of statutory statute law

enough

to

is

said to be

become law

law.

Customary

demonstrated by the

if it

law’s

fact that

it

supposed superiority to

would not have

lasted long

had contained important defects or produced serious

in-

conveniences. This claim can be challenged on a factual basis, as Sir Francis Bacon

we

accept the claim that immemorial custom has proved

did.

But even

free

from inconveniences, there remains the

if

upon may prove statute

on the

fact that

be

not every practice embarked

to be free of inconveniences. In weighing the merits of

scale of the inconveniences to

itself to

custom and

be found in each kind of law, should we

not take account of failed usages? According to Davies’s and Coke’s theory of custom,

22 6

Notes to Pages

x

usages and practices error. It

any

are

become

132-142

established as customs through a process of trial and

not self-evidently clear that errors that turn up in the usages of the people

is

less

inconvenient than misjudgments made by legislators.

One might

argue,

9.

too, that there

and

winnowing out process with

a

is

statutes just as there

is

with usages,

harmful or inconvenient usages are dropped, statutes that prove faulty are

just as

revised or repealed.

common

Davies asserts of the

law that “no

human Law,

written or unwritten,

hath more certaintie in the Rules and Maximes, more coherence in the parts thereof, or more harmonie of reason in

There

10.

law, in

is

Works 2:254.

it.”

no evidence that Davies recognizes that

comparison with other nation’s

laws, could be

his praise for the

common

reduced to the claim that the

English people are more virtuous and wise than other peoples. 11.

Pocock, The Ancient Constitution

12.

The

quotation

is

from

ibid., 25.

,

25.

For

of Davies’s aims in his

a general discussion

Repons, see Hans Pawlisch, Sir John Davies and the Conquest ofIreland (Cambridge,

Irish

1985). Davies’s Question Concerning Impositions

after his death. It 13.

reproduced in volume

common

Seventeenth-century

both statute and 14.

is

For

common

3

was unpublished

of Works. Hereafter, Impositions.

lawyers use the term “positive law” to refer to

^

law.

a fuller analysis

until 1656, thirty years

of the development of this doctrine, see Francis Oakley,

“Jacobean Political Theology:

The

Absolute and Ordinary Powers of the King,” Jour-

nal of the History of Ideas, 29 (1968): 323-46. 15.

1949),

Quoted

in

Margaret Judson, The

(New Brunswick,

112.

John Dodderidge, brary, London. 16.

17.

Crisis of the Constitution

Thomas

B.

Treatise on the King's Prerogative, Harl.

Howell,

A

ed.,

MS.

5220, British Li-

Complete Collection of State Trials (London, 1809),

2:387. 18.

Edward Coke,

19.

Louis A. Knafla, Law and

Institutes of the

Laws of England

Politics in

(Buffalo, 1986 [1787]), 1:115b.

Jacobean England: The Tracts of Lord Chancel-

(Cambridge, 1977), 216. 20. Sir Frances Bacon, The Works of Francis Bacon edited by J. Spedding

lor Elles?n ere

et

al.

(Lon-

don, 1874), 14:118. 21.

Sir

Henry

Finch, Law, or a Discourse thereof (London, 1627 [1759]),

William Holdsworth tional

book before Blackstone.” A

Chapter 1.

called Finch’s

J.

7:

Sir

the

History of English

(Cambridge, 1987),

Reports, preface to vol.

3.

Ibid., xvii.

institu-

1922-66), 5:399.

the Feudal

Law:

A

Reissue with a

36. 2.

For example, in Chudleigh's Case (Reports

made

Sir

Edward Coke and His Contemporaries

2.

ences are

most complete and best

Law (London,

G. A. Pocock, The Ancient Constitution and

Retrospect

4.

work “much

85.

to “the ancient

common

1:124a, 125a, 130a), at least three refer-

law”; in Caudrey's Case ( Reports

5),

mention

is

Notes to Pages 142-144 made of “the

227

*

ancient law of the crown,” “the ancient right and law,” and “the ancient

common laws of England” (15b, 38a, 39a); “the ancient common laws of this realm” (40b). Dozens

laws of the realm” (8b); “the ancient

good ancient laws”

(19a),

and “the

of such examples are to be found in the Reports. 5.

Reports 13:14.

6.

Lord Ellesmere’s contemporaries regarded him

See

as a great lawyer.

Thomas

The History of Worthies of England (London, 1662), 176. Elizabeth made him, successively, solicitor general (1581), master of the rolls (1594), and lord keeper (1596). Fuller,

James

I

made him Baron Ellesmere, and he assumed

1603.

He was

mon

law courts and the equity courts,

the

of lord chancellor in

title

Coke’s great opponent in the dispute over supremacy between the com-

teenth century. See Louis A. Knafla,

a dispute that

was revived

Law and Politics

at the

end of the

in Jacobean England:

The

six-

Tracts of

Lord Chancellor Ellesmere (Cambridge, 1977), 155-81; J. H. Baker, “The Common Lawyers and the Chancery: 1616,” Irish Jurist 4 (1969); John P. Dawson, “Coke and

The

Ellesmere Disinterred:

Attack on the Chancery in 1616,”

(1941): 127-52.

^

Thomas

7.

A

Howell,

B.

Co?nplete

Collection

Illinois

Law Review

36

-

of State Trials (London,

1809),

2:674-75.

“A Breviate or Direccion for the Kinges Learned Councell Collected by the

8.

Lord Chauncellor Ellesmere, Mense Septembris

Law and

Politics , 326.

Parliament of 1628, Commons Debates, 1628, edited by R. Johnson,

9.

M.

1615,” in Knafla,

Cole, and

W.

Bidweli

Ibid., 2:327.

10.

(New

M.

Keeler,

Plaven, 1977-83), 2:333.

Selden was recognized by his contemporaries as one of the greatest

English scholars of his time

ported in this land”

— and

methods to the study of

— John

Milton

was one of the

called first

him “the chief of learned men

common

re-

lawyers to apply humanist

he appears never to

legal history. Called to the bar in 1612,

have had a large practice, but from time to time he argued important cases that re-

He became

quired great learning.

engaged

in politics in 1621, before

he became

a

member of the House of Commons, by helping prepare the protestation of the Commons concerning the rights and privileges of Parliament. He was imprisoned for his pains.

In 1626, as a 1627,

member

he appeared

as

for refusing to lend

Commons

of Commons he participated in the attack on Buckingham. In

counsel to challenge the imprisonment of Sir

money

to Charles

The

I.

next year he took

a

Edmund Hampden leading role in the

debates over the legality of such imprisonments without assignment of

cause and without the availability of habeas corpus, serving as the chairmen of the

committee appointed to review the

legal

precedents in the matter. For further bio-

graphical details, see Dictionary of National Biography (London, 1901), 20:1150 -62;

David Berkowitz, John

Selden's Eoi'mative Years

Discourse on Ilistoiy Law, ,

and Governance

(Washington, 1988); Paul Christianson,

in the Public

Career ofJohn Selden, 1610-1635

(Toronto, 1996). 11.

Selden, in his speech

on April

7,

argues for “the ancient and fundamental point

of liberty of the person to be regained by habeas corpus

Parliament of 1628,

Commons

Debates, 2:356.

development of Selden’s argument

when any man

is

imprisoned.”

For excellent and detailed analyses of the

in his early

works, see Paul Christianson, “Young

Notes to Pages 144-147

228

John Selden and the Ancient Constitution, Philosophical Society, 128 (1984): 271-315,

John Selden, The Reverse

12.

cot (London, 1683),

sig.

and Christianson, Discourse on

common

Selden was not the only

Bacon

by R. West-

a3v-a4in Sir John Fortescue,

edited and translated by Stanley B.

gliae,

History.

or Back-face of the English Janus, translated

upon Fortescue,”

Selden, “Notes

13.

of the American

ca. 1610-1618,” Proceedings

asserts that English laws

De Laudibus Legu?nAn-

Chrimes (Cambridge, 1942

[1672]), 6-7.

lawyer of distinction to make this point. Francis

were

“as mixt as

our language, compounded of British,

Roman, Saxon, Danish, Norman customs.” See “A Proposition

to his

Majesty by

Sir

Francis Bacon, Knight, his Majesty’s Attorney- General, and one of his Privy Council

Touching the Compiling and Amendment of the Laws of England,” Works of Francis Bacon, edited by

common

Flakewill (1574-1655), a

J.

Spedding

lawyer with

et

al.

(London, 1874),

in

13:13.

who was a in the Comof the com-

law by asserting “that the laws of the Britaines were utterly extinct by the Ro-

mans; their laws again by the Saxons; and

much

altered.”

W.

by the Danes and Normans

Thomas Hearne (London,

Island,” in

A

Collec-

1571), 2.

upon Fortescue,” 15-18. In his famous metaphor, Selden plays meaning of the claim that the common law was the “same” in the

Selden, “Notes

14.

upon

fancifully

the

seventeenth century as into the

metaphor

had been for many centuries

it

a belief

seventeenth- century

on

common

law really was the

his point in writing the entire passage

all,

law

better than other laws because

metaphor, in fact

it

now

seems to me,

it

existed

it

medieval

common

law.

a

mistake to read

some deep metaphysical sense the same as the medieval common law.

is

to refute the claim that the

unchanged

longer. All he

once was, he concedes

speak of greatly altered ships and houses as

we might

is

to say that, having demonstrated that the

is

very different than

nally built, so

past. It

Selden’s part that in

After is

lastly, theirs

“The Antiquity of the Laws of this

Hakewill,

of Curious Discourses, edited by

tion

William

reputation for learning

a

member of the first Society of Antiquaries about 1600 and a participant mons Debates of 1628, criticized Coke’s contentions about the antiquity

mon

Bacon, The

if

that, just as

common

means by the

common

law

is

we sometimes

they were the same structures as origi-

modern common law as the same law as the which Selden refers in making this concession

also speak of the

The

recognizes the sameness of

civil a

law to

greatly modified ship not for the purpose of settling an

ontological dispute but to resolve questions about ownership and 15.

Glen Burgess, The

16.

Ibid.,

17.

John Selden,

Politics

liability.

of the Ancient Constitution (University Park, 1992), 58,

63.

63-64. Ioannis Seldeni

Ad Fleta?n

Dissertatio, translated

by D.

Ogg (Cam-

bridge, 1925), 105, 165.

of the Ancient Constitution, 6-7.

18.

Burgess,

19.

Although Selden believes that the use of Roman law

Politics

largely disappeared as the civil

by the beginning of Edward

Year Books of Edward

II

in the

Ill’s reign,

common

law courts

he recognizes that

as late

“one finds not only the very words and maxims of the

law as cited in pleadings before the king’s judges (although without express refer-

ences to their sources — a custom occasionally found today

among our

lawyers), but

Notes to Pages sometimes one

229

hangs on the interpretation of

also finds there that a question

Ad Fletam Dissert at io, 149. 20. Much more frequently, the common

47—1 5

i

civil

law”

memorie ne

lawyers used the law French “de temps dont

court. ”

21.

Burgess,

22.

Sir

Politics

of the Ancient Constitution 6-7. ,

Edward Coke, The Compleat

Copyholder.

in Three

;

Law

Tracts

(Abington,

^82), 59.

YB

23.

Edw.

19

Ill 378.

Law

24.

Henry

25.

Parliament of 1610, Proceedings

(New Haven,

Foster

,

or a Discourse thereof (London, 1627), 77. in Parliament 1610, edited

1966), 2:170-97. Page

numbers

by Elizabeth Reed

are given in text for passages

from

work.

this

26.

the

Finch,

“Whereas

same reason

27.

the

will

common

law

is

extended by equity, that whatsoever

be found the same

Although Coke’s voluminous writings

Reports q:vi;

(hereafter,

Coke,

Edward Coke.

Institutes);

v.

Mason

borough, Reports of Divers Choice Cases 29.

Finch,

30.

YBB

31.

Law

,

them

all

together in such

,

in

coherent way.

Laws of England 1:110b, 115b, 344a Richard Brownlow and John Goldes,

Law (London,

in

a

all

1675), 2:895

O^ 12 )-

or a Discourse 77. ,

6 Edw. II 18

Thomas

one place or another contain nearly

in

Institutes of the

Rowles

under

law.” Ibid., 2:176.

the pieces of Hedley’s theory, he never tied 28.

falleth

Edw.

(1313); 17

Ill 216,

Littleton, Tenures edited ,

224

(1343).

by Eugene

Wambaugh (Washington,

1903),

sec. 170. 32.

For example, Coke uses the expression “time out of mind” several times in the

preface to the third volume of his Repons. 33.

case

Thorne’s remark more than sixty years ago that “the literature upon Bonham’s

voluminous and repetitious”

is

is

even more apt today. Samuel E. Thorne, “Dr.

Bonham’s Case,” Law Quanerly Review 54 (1938): 543. Classic discussions include Charles H. Mcllwain, The High Coun of Parliament and Its Supremacy (New Haven, 1910);

Edward Corwin, The

win, The Higher

Doctrine ofJudicial Review (Princeton, 1914);

Law Background

of American Constitutional

MacKay, “Coke — Parliamentary Sovereignty or

Law

Edward Cor-

(Ithaca, 1955); R. A.

Supremacy of the Law,” Michigan T. Plucknett, “Bonham’s Case and Judicial Review,” the

Law Review 22 (1923): 215; T. F. Harvard Law Review 40 (1926): 30; John W. Gough, Fundamental Law in English Constitutional History (Oxford, 1955). More recent discussions are found in Raoul Berger, “Doctor Bonham’s Case: Statutory Construction or Constitutional Theory?” University

of Pennsylvania

ited,” Proceedings

Common Law and and

the

34.

Stuan

Law Review

117 (1969): 521;

Charles Gray, “Bonham’s Case Revis-

of the American Philosophical Association 116 (1972): Liberal Theory (Lawrence, 1992);

Constitution

(New Haven,

College of Physicians Case , in

Glenn Burgess,

Brownlow and Goldesborough,

36. 37.

Ibid.,

,

44-46.

James Stoner,

Absolute Monarchy

1996).

Mcllwain, The High Court of Parlia?nent, chap. Corwin, The Higher Law Background 47.

35.

35;

2.

Reports 2:265.

Notes to Pages 155-160

s

230

38.

Plucknett, “Bonham’s Case and Judicial Review,”

39.

Thorne, “Dr. Bonham’s Case.”

An

earlier version of this

Mackay, “Coke — Parliamentary,” although he cial strict

construction

Fundamental Law this

is

31.

also

argument

is

found

in

contends that the purpose of judi-

to limit statutes to the requirement of fundamental law. In

in English Constitutional History, a

work of very high merit

that

is

to

day the best and most thorough examination of the idea of fundamental law in

English history,

on the

Gough

largely agrees with the

Thorne

Gray argues when Coke announced his

interpretation.

basis of an unpublished report of Bonham's Case that

views from the bench he made his argument in terms of

a

theory of statutory

construction but that in rewriting his remarks for publication in his Reports he

strict

moved

further toward endorsing the idea of judicial nullification of a statute by a higher law

standard. 40.

E. Thorne, introduction to

S.

Thomas

Egerton,

and Understanding of Statutes (San Marino, 1942), 41.

Ibid.,

Common Law and Liberal Theory,

See Burgess, Absolute Monarchy,

44. Also see Reports 45. law, is

Discourse upon the Exposicion

88.

86-87.

42. Stoner, 43.

A

48.

181, 186, 192.

4:iii-iv.

For example, Coke states that “for any fundamental

it is

a

maxim

in policy

most dangerous.” Reports

and

poijnt

of the the

common

by experience, that the alteration of any of them

a trial

4:v-vi. Part of the danger comes, he teaches,

from

altering

what has been proved good by long experience, and part comes from the uncertainties that arise

when good

old laws are replaced by new. See Reports 2:preface, Reports

9:xii— xiii.

46. For Rowles

v.

Mason, see Brownlow and Goldesborough, Reports 2:197-98.

Coke himself does not gloss this statement at any length, but John Selden, who along with Coke was chosen to speak for the Commons in conference with the lords in the Parliament of 1628, suggests that Parliament’s power of making laws is so limit47.

less that

“were

made death

it

established here by act of parliament”

Commons

(New Haven, 1977), 2:576. 48. Henry Finch, Law, or a

would be lawful

for

it

to “be

and Coke says nothing indicating that he

to rise before 9 a clock,”

agrees. Parliament of 1628,

it

Debates, 1628, edited

by Robert C. Johnson

Discourse thereof (London, 1627),

diset

al.

5.

49. Ibid., 76. 50.

Henry Hobart, The

Reports of that Learned Sir

Henry Hobart Knight (London,

1641), report 87. 51.

A

Thorne,

argument from 52. 53. 55.

Discourse, 86.

silence. Berger,

Berger

is

convincing in showing the weakness of

this

“Doctor Bonham’s Case,” 528-30.

Burgess, Absolute Monarchy, 193. Ibid., 183.

Burgess

(ibid.,

184) says that “fortunately

with words as his great of both ‘reason’ and

critic

Coke was

Thomas Hobbes; and

in his

own

way, as careful

he defined carefully the legal sense

‘right.’”

56.

Coke, The Compleat Copyholder,

57.

Ibid., 61.

in Three

Law

Tracts

(Abington, 1982), 61-62.

Notes to Pages John Davies, preface,

58.

Irish Reports

,

The Works

161-163

231

and Prose Including Hith-

in Verse

Unpublished Manuscripts of Sir John Davies edited by A. Grosart (Blackburn, 1876),

erto

Coke

2:251.

translated by

Chrimes (Cambridge,

S. B.

Coke’s great

59.

makes

rival, Sir

The

stack of

of this line

long continuation:

its

Indians

mean

(I

wood, and so

“We

whole night

may

amples

17.

“Of Custom and Education,” of argument. It is not a custom’s wisdom

see also the reign or tyranny of custom,

the sect of their wise

sacrifice

themselves by

with the corpses of their husbands. will sit a

1942), chap.

Francis Bacon, in his essay

a telling implicit criticism

that explains it is.

paraphrasing John Fortescue, De Laudibus Leguni Angliae, edited and

is

.

.

.

men)

lay themselves quietly

Nay

fire.

till

upon

a

the wives strive to be burned

There be monks

in a vessel of water,

what

in Russia, for penance, that

they be encased with hard

ice.

Many ex-

be put of the force of custom, both upon mind and body.” Sir Francis

Bacon, The Works of Francis Bacon edited by J. Spedding ,

60.

Davies, preface to Irish Reports in Works, vol.

61.

This

,

is

as

it

law as custom. As

would have been had Coke

Thomas Hedley

et

al.

(London, 1874), 4:471.

2.

essentially conceived of the

notes, customs were “triable

which was the technical way of saying that

their existence

common

by the country,”

was to be determined

as a

matter of fact by ordinary inhabitants of the locality in which they were alleged to have force. Proceedings

in

Parliament 1610, 2:176. ,

Even Coke’s report of

62.

evoking the notion that

Calvin's Case contains a clause

it

wisdom of the professional elite, not of the English people, that forms the common law: “The laws have been by the wisdom of the most excellent men.” Coke's Rethe

is

ports 7:6-7.

In the prefaces to his Reports, Coke’s emphasis

63.

is

on the antiquity of the com-

mon

law and the wisdom produced and guaranteed by this antiquity. In the prefaces

to

of the

all

There

first

eight parts of his Reports, he repeatedly dwells

on the

law’s antiquity.

are scattered references to the law’s antiquity in his Institutes (1:115b), but refer-

ences to the law’s reason predominate there in

much

the same

way

that references to

antiquity does in the Reports. Important discussions of reason and the

its

are

found

64. 65. ficial

J.

in Institutes i:iob-na, 97b, 183b, 232b,

G. A. Pocock,

Politics,

common

law

394b~95a.

Language and Time (New York,

1973), 214-15.

John Underwood Lewis, “Sir Edward Coke (1552-1633): His Theory of ArtiReason’ as a Context for Modern Basic Legal Theory,” Law Quarterly Review 84

(1968): 334-35.

66.

D. E. C. Yale,

“Hobbes and Hale on Law,

Law Journal 31 (1972): 125-26. To say that Coke had a theory about

Legislation, and the Sovereign,”

Cambridge 67.

this

matter

is

to elevate his views to a

higher level of abstraction than perhaps his cast of mind allowed. This as a pejorative statement.

concerning laws have written either precepts

fair in

as

law. “All

who

Roman

bonds.” Bacon,

have written

philosophers or lawyers. T he philosophers lay

argument, but not applicable to use: the lawyers, being

subject and addicted to the positive rules either of the laws of their else of the

not intended

Bacon, with his usual clarity of mind, sees both advantages

and disadvantages in Coke’s characteristic approach to the

down many

is

own country

or Pontifical, have no freedom of opinion, but as

De Augment is,

in Works, vol. 9.

it

were

or

talk in

Notes to Pages 164-168

232

68. For example, Dr: Bonham's Case Coke’s Reports 8:652 (1609); Rowles

Brownlow and Goldesborough,

An

69.

would not William

,

Coke’s Reports 1:190 (42

Eliz.); a

it

was “repugnant to law and reason,”

doctrine was rejected because “the law

thing so absurd, and against the law of nature and reason,” Sir

let in a

Archbishop of York, Hobart, The Reports of Sir Henry Hobart report 459

Ellis v.

(17 Jac. I).

in

Report 2:895 (1611-12).

interpretation was rejected because

Corbet's Case

Mason

v.

,

“And they

said that this construction

was

just,

and consonant to reason and

equity.” Chudleigh's Case Coke’s Reports 1:320 (31 Eliz.). ,

Finch,

70.

“ 71.

Ratio

Law

,

or a Discourse thereof 74-75.

anima

est

legis"

(quoted in Coke’s Institutes 1:394b), and

contra rationem est licitum" (quoted in

In Ratcliff

72.

law

is

Coke’s

,

may be

collected

from the

common

law,

make

common

law, will not, against

the grant good”; Ferrer's Case

law”; Englefield's Case Coke’s Reports 7:430 (33 and 34 Eliz.): “and ,

common

Edward Coke,”

in Culture

Coke’s Reports

all

and

74. Coke’s Reports 12:64:

From Puritanism

Politics:

Perez Zagorin (Berkeley, 1980),

this agrees

The Jurisprudence

which

the

is is

life

man can

of Sir

31.

“Causes which concern the

reason and judgment of law, which law

reason

with

Enlightenment, edited by

to the

life,

or inheritance, or goods,

or fortunes of his subjects, are not to be decided by natural reason but by the

ence, before that a

common

law.”

Charles Gray, “Reason, Authority, and Imagination:

73.

,

which was remedied by the rule and reason of the

Eliz.): “all

common

said ancient authors of the law”; Bozoun's

,

the reason of the

est

Institutes 1:97b).

Case Coke’s Reports 4:972 (1584): “a non obstante of the

the reason of the

Nihil quod

Case Coke’s Reports 3:728 (1592): “And the reason of the

's

notable, and

6:266 (40 and 41

u

is

artificial

an act that requires long study and experi-

attain to the cognizance of it.” Coke’s Institutes 1:97b:

of the law, nay the

common

law

itselfe is

nothing

else

“For

but reason;

to be understood of an artificial perfection of reason, gotten by long study,

observation, and experience, and not of every man’s naturall reason.” 75.

Aristotle, in a

famous passage,

“Now

experience:

ties art to

art arises

from many notions gained by experience one universal judgment about jects is

produced.” Metaphysics, bk.

English, edited

1,

chap.

1,

by William D. Ross (London,

in

a class

when of ob-

The Works of Aristotle Translated

into

1913).

76.

Parliament of 1610, Proceedings, 2:175-76.

77.

John Dodderidge, The English Lawyer (London,

1631), 242. Solicitor general,

sergeant to the king, and a justice of the court of the King’s Bench from 1612 to 1628,

Dodderidge was

fully

Coke’s peer in knowledge of the

common

law and vastly his su-

perior in theoretical jurisprudence. Page numbers are given in text for passages from this

work.

78.

Eleonore Stump,

79.

See Alessandro Giuliani,

and Pleading,” Juridical Review 80.

Finch was educated

called to the bar in 1585

work on

his treatise

De topicis differentiis (Ithaca, 1978), 2^. “The Influence of Rhetoric on the Law of Evidence

Boethius's

at

7 (1962): 216-51.

Cambridge

in the

mid-^os and

at

Gray’s Inn; he was

and called to the degree of sergeant-at-law

toward the end of the sixteenth century;

it

in 1616.

was

law French in 1613 as Nomotechnia, cestascavoir un Description del

first

He began

published in

Common

Leys d'An-

Notes to Pages gleterre solonque les Rules del Art Parallelees ove les Prerogative

version was published posthumously, in 1627, entitled

systematic exposition of the

method served

method

it:

“Sir

Henry Finch’s

superior to

is

,

An

Roy &c., &c. ,

English

or a Discourse thereof.

Blackstone invidiously

discourse of law

that were before extant.”

all

2 33

As

work has been highly regarded.

law, this

as a basis for Blackstone’s Commentaries.

pares Coke’s Institutes with character; his

common

Law

le

168-172

is

a

Its

com-

of a very different

William Blackstone,

and Laws of England (Oxford, 1771), vi. Finch, Law or a Discourse thereof 4. Page numbers are given in text for passages

Tracts Chiefly Relating to the Antiquities 81.

,

from

this

work.

82.

Ibid., 76.

83.

Ibid.

,

Finch

many common

common

is

at pains to

claim that the

common

law of England

is

just

one of

laws in the world. Indeed, he says that the laws of every people are

laws and are “the golden and sacred rule of reason.” His point seems to be

that there

is

no

basis for invidiously

comparing the laws of different people because

if

they are truly law they will be in accord with the law of nature and the law of reason.

Dodderidge was

84.

a

man

of so

hard to say whether he was better called to be a sergeant in licitor general. In

that Sir Francis

many

parts that Fuller says of

artist, divine, eivil

or

common

him

was

that “it

lawyer.”

He was

1604 and in the same year was appointed to the office of so-

1607 he was obliged to resign his office in order to create a vacancy

Bacon might

fill.

As repayment, he was knighted and promised

on the court of the King’s Bench

at the first vacancy.

This occurred

in 1612,

a seat

and he

served on the court until he died in 1628. See E. Foss, The fudges of England

(New

York, 1966), 6:306-10.

Dodderidge, The English Lawyer,

85.

150.

Page numbers are given in text for pas-

sages from this work. 86.

men it

It is

probably true, as Stephen Siegel writes, that the thinking of

all

educated

of Coke’s time was influenced by Aristotelian epistemology, whether they knew

or not. Stephen A. Siegel,

versity 87.

Law

Review 56

Aristotelian Basis of English Law,”

New

York Uni-

(1981): 18, 30-31.

There undoubtedly were common lawyers who had no training

rhetoric, except for sisted

“The

what they had gotten indirectly

at

and

in logic

the Inns of Court, and

who

re-

such learning. William Fulbecke and Sir John Dodderidge ’s detailed arguments

for the utility of a liberal education for legal study

A

erwise. See Fulbecke and Dodderidge,

would be hard to understand oth-

Direction or Preparative to the Study of the

Law

(London, 1600). 88.

Dodderidge, The English Lawyer.

89.

Ibid., 62.

65.

;

90. Aristotle, Nicomachean Ethics bk. 6, chap. 6; Posterior Analytics, bk. ,

1,

chap.

2,

in

Works. 91.

Aristotle, Posterior Analytics, bk.

1,

chap.

3.

Dodderidge (The English Lawyer,

193)

echoes this point, saying of the primary conclusions of reason that “the manifest truth

and great Reason of which said Grounds

is

evident to any person of any Judgment,

and need no proofe for demonstration and establishing of them.” 92. Aristotle, Posterior Analytics, bk. 93.

See Aristotle, Nicomachean

1,

chap.

Ethics, bk. 6,

2;

bk.

chap.

2,

chap.

8; Topics,

19.

bk.

1,

chap.

1.

234

Notes to Pages

$

172-175

94. Aristotle, Nicomachean Ethics bk. ,

Dialectic is the

95.

1,

chap.

term that Aristotle uses

from opinions that are generally accepted.”

Chapter

8:

3;

bk. 6, chap. 8.

for the

Topics, bk.

branch of logic that “reasons chap.

1,

Reason and the Common Law Maxims

Such maxims were frequently borrowed from the

1.

1.

civil

or canon law.

W.

F.

Maitland even asserts that “when in any century, from the thirteenth to the nineteenth an English lawyer indulges in a maxim, he

be profoundly ignorant, quoting from the Sext. History of English

Law

Sext {Liber Sextus)

a

is

before the

is

generally,

though of

Pollock and

F.

Time of Edward /, 2d

ed.

F.

W.

this

he

may

Maitland, The

(Cambridge, 1898),

1:196.

The

compilation of decretals ordered by Pope Boniface IX and com-

pleted in 1298. Following the example of Justinian’s Digest

,

contains a

it

title

of regulae

,

many of which are taken from, or modeled on, the Digest. See Roscoe Pound, “The Maxims of Equity,” Harvard Law Review 34 (1921): 818-819 (1921); Peter Stein, Regulae luris: From Juristic Rules to Legal Maxims (Edinburgh, 1966), 148-55. 2. John Fortescue, De Laudibus Legum Angliae, edited by S. B. Chrimes (Cambridge, 1949),

21, 23.

For example, in

3.

Termes of the

Rastell’s

Law (London,

An Exposition

of Certain Difficult and Obscure Wordes and

1592), the discussion

of maxims

from Fortescue: “Maximes bee the foundations of the

tirely

of reason, and are causes efficient, that they

may not be

at

&

^borrowed almost enlaw,

and the conclusions

certain universal propositions so sure and perfect

any time impeached or impugned, but ought alwayes to bee

observed and holden as strong principalles and aucthorities of themselves although they cannot be proued by force of argument or demonstration logical, but are

by enduction by the way of sence and memory.” Tenninorum Legum Anglorum in

as Exposiciones

William were published Herbert

4. diritto

F.

in

nett and

J.

L.

his

son

and 1667.

English Maxims,” in L' Europa

St.

e il

,

,

Tracts of Lord Chancellor Ellesmere St.

German, Doctor and Student

7.

St.

German’s student are so well

no proof of them

is

,

England:

218.

69.

in the laws of

known by

Law and Politics in Jacobean

(Cambridge, 1977),

6.

many maxims

by

di Paolo Koschaker (Milan, 1954), 1:215.

jushin in Commentaries 2:44; Louis A. Knafla, ed.,

The

published

German, Doctor and Student edited by T. F. T. PluckBarton (London, 1974), 57; Serjeant Morgan, arguing in Colthirst v. Be-

Also see Christopher

5.

“Roman Regulae and

memoria

first

1527; editions translated

in 1567, 1579, 1592, 1595, 1602, 1641,

Jolowicz,

romano: studi

work was

Rastell’s

known

England gives

a

response in several parts:

the English people through usage and

custom that

known by the people can be known can be known through a variety of authoritative

necessary; others not so well

through the law of reason;

still

others

written materials such as the Year Books, records of the king’s courts and treasury,

and

69 and 71. John Dodderidge follows standard

statutes. Ibid., 8.

common

law practice in referring to the

propositions from which legal reasoning proceeds indiscriminately as grounds, maxims, principles, eruditions, and rules. The English Lawyer (London, 1631), 150-51. Page

numbers

are given in text for passages

from

this

work.

Notes to Pages

175-182

235

9.

This approach to secondary principles of reason, allowing deduction from English customs as well as from the law of nature, follows Doctor and Student and thus limits the

German, Doctor and Student

Dodderidge says that there were

10.

maxims

putable

in the

common

Colthirst v. Bejushin in

12.

Fortescue,

13.

See for example Rastell,

,

Coke’s

De

Laudibus,

,

law.

See

J.

in

which

L. Bar-

xxix.

many thousands”

“at the least

of such dis-

law.

Commentaries

11.

1:27.

21, 23.

An

Morgan

Exposition Serjeant ;

in Colthirst

Bejushin

v.

;

Institutes 1:11a.

“And by reasoning and debating of grave learned men the darknesse of igno-

14.

expelled, and

by the

Certaine

of

legall

reason the right

that in matters of difficultie the

more

seriously they are debated and argued, the

rance it is,

closer to Gerson’s treatment than to Aquinas’s,

secondary law of nature to deductions from the primary

ton, introduction to St.

more 15.

16.

is

is

discerned.

.

.

.

Roscoe Pound, “The Maxims of Equity,” Harvard Law Review 34 (1921): 833. Francis Bacon, preface to The Maxims of the kaw, in The Works of Francis Bacon

Chapter 1.

light

truely they are resolved.” Coke’s Institutes 1:232b.

edited by James Spedding et

1

is

German’s treatment

St.

9:

al.

(London,

,

1874), 14:184.

The Common Law Mind: Summary and Commentary

John W. Salmond, “The Theory of Judicial Precedents,” Law Quarterly Review

6 (1900): 376. 2.

“Non

3.

Irnerius, Questiones de Iuris Subtilitatihus des Imerius edited

exemplis sed legibus iudicandum

est.”

Code 7.45.13. ,

by Hermann Fitting

(Berlin, 1894), 3:1-2. 4.

William Holdsworth,H History of English Law (London, 1922-66),

5.

Ibid., 5:372.

6.

T. E. Lewis,

“The History of Judicial

Precedent,”

Law

5:371.

Quarterly Review 47

(193O: 411, 415. 7.

8. 10.

James Dyer, Reports (London, 1794), covers the period from 1537 to 1582. In Brett v. Rigden (a 1565 case found in the recently published James Dyer, Reports

by J. H. Baker [London, 1994], 1:111), Dyer denies cases vouched in Fitzherbert (A. Fitzherbert, La Graunde Abridgement the Lost Notebooks of Sir James Dyer, edited

from

[London, 1577]) and in Perkins’ Profitable Book asserting that the propositions contained in them “are absolutely repugnant to the grounds of the law, and none of them ,

may be found

Browne, J.,

in the year-books.” In Stucley v. Thynne, a 1567 case,

Year Book case that Bendeloes shows the court. “And

BROWNE said that if any rea-

son had been given in the year-book he would have given more credit to not see any reason in

it.

.

.

.

subdue

9.

my reason

Coke’s

it,

but he did

Nevertheless, since Jenour prothonotary said in 19 Hen.

VIII that there are many precedents will

rejects a

(as

he said there),

if I

can see such precedents

I

to the precedents.” Dyer, Reports from the Lost Notebook 1:128. ,

Institutes 1:254a.

Matthew Hale, The (Chicago, 1971), 45.

History of the

Common Law

of England edited by C. ,

Gray

23 6

Notes to Pages

$

182-193

John Vaughan, The Reports and Arguments of That Learned Judge Sir John Vaughan (London, 1677), 360, 382. 12. Whiteacre v. Marmion YE 8 Edw. II 27374. Bole

11.

Horton

v.

in

,

Coke’s Reports

13.

14.

Richard Brownlow and John Goldesborough, Reports of Divers Choice Cases

Law (London, Coke’s

15.

8:52, 653. in

1675), 2:895.

proeme;

Institutes , vol. 2,

2:25^ See T.

ibid.

F.

T. Plucknett, “Bonhams’s

Case and Judicial Review,” Harvard Law Review 40 (1926): 30. 16. Louis Boudin, “Lord Coke and the American Doctrine of Judicial Review,”

New

York University

17.

S.

6 (1929) 233.

E. Thorne,” Dr. Bonham’s Case,”

W. Gough, 18.

Law Review

Fundamental Law

Law

Quarterly Review 54 (1938): 543;

in English Constitutional History

John

(Oxford, 1955).

Plucknett wrote of these rules that “So great was their variety, and so diverse

were the

rules, that

almost any conclusion could be reached, simply by selecting the

appropriate rule.” T.

F.

T. Plucknett,

A

Concise History of the

Common Law

,

5th ed.

(Boston, 1956), 334. 19.

Reniger

20.

Commentaries

21.

Ibid. 1:172-73.

22.

One

sents

all

v.

Fogossa, in

Commentaries

1:16.

1:551.

exception

Britton a revision of Bracton in the timeTof

is

Edward

I; it

repre-

the law of England as being statutory — as proceeding from the king’s mouth.

John Fortescue, De Laudibus Legum Angliae, edited and translated by Stanley Chrimes (Cambridge, 1942), 37. 23.

24. Reniger 25.

The

v.

Fogossa in Commentaries ,

three cases are Wrotesley

in Commentaries 1:485; Wrotesley 26.

v.

custom

Adams,

in

in

in

Commentaries

Commentaries

of the

common

W. Leonard,

and penal

unreasonableness

is

Wray Justice was

laws.”

A

customs are reported

as

1:195.

law.

and Cases of Law (London, law shall be taken strictly, con-

typical instance of a

found in Stebbs and Goodlacks

that the

The Case of Mines,

Reports

1686), 3:526. Also see ibid., 4:846: “for three things in ditions, customs,

1:195;

in their treatment of equity decrees as well as in

in derogation

The Lord Cromwell's Case,

27.

1:9.

Adams,

This attitude was manifested

their treatment of

v.

custom was against

custom being rejected

Case, ibid., 1:92:

common

reason, and so void.”

Ratcliff's Case, 2:332 (32 Eliz.);

official

29.

and Jeroms

law had not yet

source of law, even

cases they decided

More

having been rejected for lack of reasonableness in Leonard’s

such cases are Leigh and Oakley and Christmass Case,

The common

for

“And the opinion of

Reports than in other reports of sixteenth- and seventeenth-century cases.

28.

B.

if

ibid., 1:286 (32 Eliz.);

Among

Devered and

Case, 4:787 (30 Eliz.).

come

to recognize judicial precedent as

an

medieval judges sometimes frankly admitted that the

made new law throughout

Lane's Case, Coke’s Reports 2:16b.

the land.

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INDEX

abridgement,

on

title

statutes,

223m

159-60;

15

common

right and reason,

159-60; natural law or equity, 159

(117)

advice of magnates, in Glanvill, aequitas, constituta

and

nidis,

Burns, James H., on

4-6

German and

St.

Aquinas, 22on. 59 (95)

89-90, 100

ancient constitution, Pocock on, 129-30 antiquity of

Coke

146-47; 143;

common

law: Burgess on,

Calvin's Case

on, 141-42; Digges on,

Ellesmere on, 143; Pocock on,

141;

Selden on, 144-47

Aquinas, on equity, 92

on

Aristotle:

knowledge

and English artificial

Azo,

170-71; logic, rhetoric,

9, 19,

20m.

reason,

on custom, 26-28, 1990. 12 (6); on equity, 91-92; influence on English

canonists:

maxims, 234m

1

(173)

case law and precedent: authority of

prior cases, 45; Bracton and, 17-20;

Coke on common law

common

162-67;

artificial

161-63

legal

law, 170-75

reason:

Coke on

jurisprudence, 48; as source of English

equity, 80-82, 95; lawyers’ of,

,

as,

erudition and, 50-51

case citation in Year Books, 42-44; in

Inns of Court disputations, 64-66;

on scant case

Littleton

32 (10)

citation, 56;

practice of distinguishing cases, 44;

Baade, Hans, on intent of makers, 223m

Bacon, Francis: on Coke’s approach to

23m. 67

23m. 59 others,

(163); criticism

(161);

228m

of custom,

English laws mixed with 13

Vaughan on,

182

literature on,

229m

in, 155-61;

influence on, 16; counsel and consent, law, 12-17; equity, 93;

unwritten law, 7-8; writs, Britton, king’s authority

82 civilian jurists:

on consent, 9-1 1; on cus-

141-42, 153-54,

law,

20

J 6i;

Bonham's Case

law,

,

155-61; Calvin's Case 161-63; case ,

authority, 182;

on

common

law:

—as

reason, 162-67, 2 3 2n 74 (166);

artificial

12

makes

202n. 51 (16); on interpretation, 88-91

Coke, Edward: antiquity of common

33 (154)

Bracton, 7-20: case law, 17-20; civilian

customary

Cicero: on equity, 94; on interpretation,

tom, 26-28; influence on Bracton,

(145)

Bonham's Case: Coke’s meaning

8-12;

on, 179-83;

chancellors, conscience, 103-9

18 (117)

law,

summary

-

— nature

of, 151-67;

—and

statute,

Bulgarus, dispute with Martinus, 88-90

154-61; custom, 132, 152-54; equity of

Burgess, Glenn: on Bonham's Case

statute,

,

224m

27 (123);

maxims, 174-75;

250

Index

§

Coke, Edward ( continued

on natural custom,

223m

tion,

on prescription and

law, 159;

153;

Digges, Dudley, 143

on statutory interpreta(1 17);

17

study of logic,

common

erudition: cited in Inns of

Court

Readings, 65; and maxims and princi-

66-67; i n Year Books, 50, 2ion.

common

law: altered

Coke

183-86;

by

8 (4); differing

Doe, Norman: on Fortescue, 212m

on

1

8 6-95, 198ml.

medieval ideas

Egerton, Francis. See Ellesmere Ellesmere, Lord:

144-47; and reason,

227m 6

162-72; St.

German

148-50,

132,

on, 78-80;

wisdom

law mind:

as

immemorial cus-

tom, 129-30; Pocock on, 129-30

law, 143; biographical

com-

summary,

on equity

(143); Discourse , 121;

88-91; and conscience, 93-109; and interpretation, 87-93, 80;

consent, and customary law, 8-12

83

Corpus Juris. See Justinian 155

custom: antiquity

of, 141; Bracton

(123);

law, 12-17; civilian

Coke

26-28;

Plowden on,

equity of

Corwin, Edward,

on,

132,

and cus-

152-54; and

law, 1-3, 6-17, 77, 129-33,

fictions, legal,

225m 6

memorial,

on prerogative,

75-78; in St.

129-30, 141-47, Littleton on, (74);

224m

27

5;

and

and reason,

German, 74-78; and

(131)

Finch, Henry: biographical summary,

mon

maxims, 2i6n. 6

on,

century cases, 121-28

on, 131-32; Fortescue on, 54-55; im-

12 (25);

Coke

medieval view, 40-42; in 16th-

reason, 168-69;

25,

Plato on,

121-23; Quintilian on,

a statute:

98nn. 4 (2) & 8 (4); common law idea of customary law, 26; Davies

1,

n 6-28;

treatment

x

204~5n.

antiquity of

and interpretation, 125-26

conscience, 96-99, 101-7

common

on

equity: x\ristotle on, 80-82; civilians on,

of, 79, 132

186-95,

on

4

mon

of,

2 (53);

judicial consent, 2ion. 103 (46);

hardship, 30; and legal change, 29-31,

tomary

136

8 (182)

about, 52; Fortescue on, 53-55; and

common

on powers of king,

75~78;

Dyer, James, on authority of cases, 235m

statute, 29-31,

on, 151-67; as custom,

1-3, 6-17, 77, 129-33,

&

i

mischiefs, 215m 65 (69)

101 (46)

(2)

mary, 232m 77 (167), 233m 84 (169); on logic and common lawyers, 171-72;

maxims, grounds, and reason, 166-71,

170-71

ples,

Dodderidge, John: biographical sum-

232~33n. 80 (168);

on custom and com-

on law of reason,

law, 152-53;

Fleta law ,

on common law and

158;

138

dependent on king’s

will,

20

Fortescue, Sir John: on Aristotelian idea

of principles and

common

law maxims,

statute in civil law, 205~6n. 26 (28);

173-74; biographical summary, 212m

summary

(53);

on, 186-95; i n Year Books,

24-32

Davies, Sir John: biographical summary,

225m 4

(130);

custom,

— and views

on common

131-32;

reason, of,

law:

—as

on

common

law as custom, 54;

on consent, 54; on customary law, 54-55; on equity, 93-95, 22on. 55 (93); Mcllwain on, 54; on statutory law, 55

—prerogative, 133-40;

132;

—two

contrasting

139-40; customary law, praise

of, 131-32, 22$n. 8 (132)

1

Gerson, Jean, on equity, Glanvill: advice of

tomary

93, 95

magnates, 4-6; cus-

law, 7; enacted law, 6; leges et

Index consuetudines, 4, 6; reliance

on unwritten

law, 5, 6;

Gratian: on custom, equity, 91-92

on Roman

199m

12 (6);

law of nature: canon law influence re-

De Natura,

on

75-76; in

Coke and

German, 72-73

St.

Leges Henrici Primi: and

artificial

reason, 165

custom and

usage, 3-4; legislation,

grounds. See maxims

Littleton, Sir

and

Hake, Edward, Epieikeia 127 ,

Hakewill, William, on antiquity of com13

3;

in

medieval Year Books, 32-35

by,

2i9~2on. 50 (93)

228m

3

and Leges Henrici Primi,

legislation:

Guy, John, misreading of Aquinas

law,

on, 159; Fortescue’s

and law of reason, 72-73,

53;

'

Gray, Charles, on

mon

Coke

garding, 48;

law, 6, 7

251

§

Thomas: on common law few cases

statute, 57-58;

cited, 56;

on inconvenience, 58-59; jurisprudence in Tenures, 56; law and usage, 57; on reason, 59-61; Tenures, 56-61

(145)

Hale, Sir Matthew, on case authority, 182

hardship and statutes, 2o8n. 61

Hatton, Christopher, Statutes,

in

,

125,

Treatise Concerning

223m

Hedley, Thomas, on

Mcllwain, C. H.: on

(37)

17 (117)

common

law, cus-

tom, and reason, 149-51, 166-67

Hobart, Sir Henry (chief justice), on nat-

damental

argument, 202m 47 (14) Martinus, dispute with Bulgarus, 88-90

16th-century cases,

on, 174-75;

erudition, 66-67; D°cl-

interpretation of law: Cicero on, 82; and

214m

53 (66); as legal authori-

66; and positive law, 67-68;

ties,

Rastell on,

234m

171—78; Serjeant

Egerton’s Discourse on the Exposicion,

in and

Coke

interchangeable term with principle and ground,

117-28

;

common

178;

on, 173-74; and general customs, 74; as

intent of makers of statutes: Baade on, 18 (117); in

of bootstrapping

deridge on, 166-71; 175-78; Fortescue

Readings and Moots

223m

155,

1,

as court, 156-57; use

and Inns of Court learning exercises. See

law as fun-

2o6n. 34 (30); on Fortescue, 11m. 6 (54); on parliament law,

maxims: Bacon on,

ural equity, 158-59

common

equity, 87-93; an