3. Baker, the Law's Two Bodies, 60-90.Pdf

Lecture Three: Common Usage and Common Learning

University Press Scholarship Online Oxford Scholarship Online

The Law's Two Bodies: Some Evidential Problems in English Legal History John Baker

Print publication date: 2001 Print ISBN-13: 9780199245185 Published to Oxford Scholarship Online: January 2010 DOI: 10.1093/acprof:oso/9780199245185.001.0001

Lecture Three: Common Usage and Common Learning

J. H. BAKER

DOI:10.1093/acprof:oso/9780199245185.003.0003

Abstract and Keywords

This chapter considers how far it is possible for the legal historian to penetrate beyond the law reports to uncover the layer of assumptions lurking below the surface. It distinguishes two different kinds of legal assumptions off the record. First are those general propositions of law, good sense, and basic morality, and those usages in association to everyday dealings, guiding people in their everyday lives. Second is the detailed, scholarly, professional learning which is not shared by the public at large. The chapter also discusses conveyancing and plea rolls, offering limited assistance. It shows the changes in the early-modern period, including the common usage and learning.

Keywords: common usage, common learning, morality, conveyancing, plea rolls

In the first two lectures I pointed out some of the pitfalls in the way of historians or

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Before we turn to that evidence, it is necessary to distinguish between two different kinds of legal assumption ‘off the record’.1 On the one hand, there are those general propositions of law, good sense, and basic morality, and those usages in relation to everyday dealings, which guide and control the conduct of lay people in their different walks of life; and on the other there is the detailed, scholarly, professional learning which is not shared by the public at large. The former might be categorized as fact rather than law. Usage and custom are treated by the law as fact rather than opinion, and the general assumptions of society are facts. This is historically as well as legally sound. Judges did not invent contracts, or trusts, or bonds, or even (I suspect) contingent remainders, before they were used in real life. No more have our present generation of judges invented credit cards or electronic bills of lading.

(p.60) Lay Assumptions The factual assumptions of lay people can become law, or be incorporated into the law, by a process of recognition. It does not always happen immediately, because the courts cannot safely recognize what is not fully established.2 Nor does it happen indiscriminately, because the courts do not slavishly follow the facts of common usage or automatically incorporate usages into the law.3 Judges might well see legal difficulties in giving that effect to obligations or transactions which was intended by those who entered into them —as, for instance, when they are invited to enforce a contract made without consideration, or when Holt CJ was worried by the legal implications of promissory notes.4 But it is not the judges who invent the forms of obligation or transaction in the first place. Nor, for that matter, did the judges invent crimes and torts. Terms of art describing wrongs, such as larceny, trespass, or nuisance, like most terms of legal art, originated as ordinary words describing everyday wrongs which antedated the legal system itself. And the basic legal concepts which those words came to represent likewise originated in everyday usage. It does not need lawyers to discover that theft is wrong, or that a solemn word should be kept.

Some unwritten principles of law may have originated in local customs, though it does not seem, except in the sphere of commercial law, that custom in the technical sense has contributed much to legal doctrine since the thirteenth century.5 Custom remained of practical importance (until 1926) chiefly in relation to different forms of land tenure, though even there the forms of manorial records often concealed the (p.61) underlying reality.6 The relatively few local customs in the sphere of contract and tort that we find surviving in early-modern times were usually cast in procedural rather than substantive form. They were not to the effect that the men of London or Hereford are always liable

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It is plain that, one way or another, a good number of informal legal notions can be accounted for by the general sentiments of society, or of some particular section of society, prevailing at or before the time when they found covert expression in litigation and decision-making.8 It is not inappropriate to describe this sort of thing as ‘law’.9 Professor (p.62) Milsom has referred to it as ‘unofficial law’, and it operated in lawsuits not only through the use of fictional devices but also through the general issue in pleading, which left everything to the jury, law as well as fact.10 There was good sense in keeping substantial parts of the law unofficial, if anyone thought in such terms; for, once the notions of a particular age have become formally embodied in the law—‘embalmed in logic’—they are no longer so readily adjusted to the fluctuating assumptions of later ages.11 Incorporation of usage into the law is a unrepeatable performance,12 whereas informal law can change without breaking any formal rules.

It is not difficult to think of examples of unofficial law. I have mentioned several already in the context of fictions. The more or less universal belief that capital punishment should not be automatic for all felonies, or that entailed land should be alienable, or that the drawer of a bill of exchange should be answerable to the holder in course, or that a payment by mistake should be recoverable, surely originated outside the courtroom and outside the chambers of the special pleader. Some of the same root ideas found expression in other legal systems, even if the means of giving them legal effect differs greatly from one regime to another. The coincidences of result do not in most cases arise because the learned borrow doctrine from different systems of law, but because lawyers are not isolated from other people.

(p.63) Lawyers have to keep the law in touch with the realities of life, or at least have to consider how the changing realities of life may be accommodated within the law which they profess. Every legal system in the world today has to cope with credit cards, or electronic transactions, and it would be a brave judge or a blind one who ruled that such newfangled things were unknown to the law and could simply be ignored. Moreover, it is highly desirable—to say the least —that what are now global institutions should have the same effect throughout the world. In earlier centuries that was a consideration only in respect to maritime law and the law merchant; but the rest of the law was kept in tune with local real life through the jury. To the extent that new problems were resolved by resort to fictions, or hidden under the general issue, any doctrinal questions which they raised could in practice be sidestepped and the matter left at large to twelve good men

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 06 December 2014 Lecture Three: Common Usage and Common Learning and true, members of the community whose solution would be broadly acceptable to all concerned because it would reflect the general assumptions of their kind. The jury gave expression to the standards of the time and place, untrammelled by formal precedents.13 They might, it is true, do it in an arbitrary, unpredictable way, in which case their decisions might not be governed even by informal law; but they might do it by applying the well-established norms of a trade or profession, which look more like unwritten law. In either case, it was largely done off the record. Complex questions of commercial law could be hidden behind general forms; and even if they were brought to the surface, by pleading immemorial customs of merchants, these customs were facts which had to be tried from case to case.14 By such means, much of the commercial law of England remained in the breasts of city jurymen before Lord Mansfield CJ took deliberate steps to crystallize it out in the second half of the eighteenth century. The general principles of contract and (p.64) tort remained in the control of jurymen for even longer. It evidently suited judges, lawyers, and litigants, that it should be so. For Lord Mansfield and his successors, however, certainty and logical consistency in the law were higher values. Perhaps for a time they were actually achieved. But we might now question whether any supposed gains have not been offset by the descent into particularity and doctrinal artificiality caused by successive accretions of increasingly detailed case-law.15

Professional Thinking However pervasive and influential they may be, the values and assumptions of the thinking lay public will not explain the whole of the law, even in those areas where there is a broad consensus. If we turn to another family of fictions—those used to alter jurisdictional boundaries—we have more difficulty in attributing them to general social assumptions. They seem rather to arise from a professional consensus on certain procedural issues, for instance that contracts made abroad ought to be justiciable in England, or that (despite Magna Carta) private debts should be recoverable in the King's Bench and Exchequer. The root notions are still not a result of abstract scholastic reasoning. They represent a professional desire to speed the business of the client and (in the process) to increase the business of the lawyer and the profits of the court. A similar view might be taken of other procedural fictions, such as the use of ejectment to try freehold and copyhold title. Clients would have had no difficulty accepting and applauding devices which saved them time and money. But they would not have been equipped to think of the means themselves, guided only by common sense. In fact, nothing could be more remote from common sense than the fictitious action of ejectment in all its splendid absurdity, though its object was eminently rational and the fiction made it the cheapest of all actions (p.65) to commence.16 We are here in the borderline area between my two kinds of unwritten assumption.

Standing firmly on the other, professional, side of the line are the arcane doctrines of property law. The rule in Shelley's Case, for instance, could hardly have been incorporated from popular usage,17 although—such is the way of legal reasoning —it may have been adopted indirectly from the forgotten feudal assumptions of an earlier age. At any rate, it is impossible to explain all legal developments as merely the piecemeal reception of the general assumptions of society, or as a gradual accommodation of the law

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to the wishes of the generality of reasonable litigants.18 The institutions, language, and what might be called the grammar, of a legal system are necessarily artificial. They can only be understood by technical learning, just as the grammar and vocabulary of Latin can only be acquired by study and not by natural reason.19 Savigny attempted to bridge this gap by claiming that, although the most fundamental principles of law were derived from the volksgeist or general consciousness of the people, in a more developed legal world there was a second (p.66) branch of volksrecht in which professional lawyers could be said to represent the people at large.20 Professor John Chipman Gray pointed out that this was itself a fiction, because professional legal opinion may on some matters be out of tune with (or even quite contrary to) popular opinion: a prime historical example, he thought, being the reception of Roman law in Germany.21

It seems better, therefore, to regard professional opinion as a distinct source of law in its own right.22 Nevertheless, we in England distinguish it from the kind of opinion found in judicial decisions. That is because we nowadays attribute a special authority to the courts as speaking and acting on behalf of the state. What a judge says in court, provided it is necessary for the decision, partakes of this special authority; whereas what the same judge says out of court, even in a public lecture or printed book, ranks alongside other writings as a source of law. That distinction was understood by Vaughan CJ in the time of Charles II,23 and probably by Sir Edward Coke in the time of Charles I.24 But we cannot assume that it was always so clear,25 and the further we step back beyond Coke the less clear it seems to have been.

In the fifteenth century, the functions of expounding and developing the principles of the common law were not appropriated exclusively to the courts, and we saw in the first lecture how the medieval courts tended to avoid a declaratory role. It is true that the medieval courts did from time to time declare doctrine, and one can certainly distil (p.67) rules of law from the medieval year books.26 But it can take a deal of boiling. We have seen how ill-adapted the reports were for the purpose, and it seems incredible that anyone could have acquired a coherent—or even practically manageable—view of the common law solely from their pages.

Common Erudition As Professor Dawson once wrote, ‘ingenious solutions in particular cases do not add up to a body of law unless someone can be found to do the adding’.27 Where the year books seem to fail in terms of doctrinal exposition—and it was only a failure if we wrongly regard it as their object—the gap was filled by professional tradition. And much of the learned tradition of the English legal profession, at least from the mid-fourteenth century, was generated and nurtured out of court rather than in the hall of Westminster Palace, where it was given practical effect.

The conceptual framework which was handed on by tradition, whether or not it was reflected in the reported cases in year books,28 is best described by the lawyers' own phrase, common erudition, common learning,29 though the term (p.68) was normally applied to particular pieces of learning—as when it occurs with an indefinite article, to

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describe a fundamental doctrine or maxim.30 The phrase was in use by the 1440s, and we find the Latin communis opinio in earlier year books.31 ‘Erudition’, however, has a more specific meaning than mere opinion, even widely shared opinion—it is something learned, acquired as a student. Presumably the whole body of common learning, as an ideal conception, should have been comprehensive and coherent, like the learning so neatly displayed in Littleton, in contrast with the mass of disjointed and heavily abbreviated snippets jumbled up in the year books. Yet it would be a myth to suppose that a complete corpus of coherent common-law doctrine ever reposed in all the legal minds of the time. Law cannot be as exact a system as logic or mathematics,32 and I am not suggesting anything so perfect. Some common ‘learnings’ were indeed maxims, principles beyond reasonable dispute. We also hear of ‘good learning’, which may be nearly the same kind of thing.33 But not all common erudition is so fixed or sound. Some of it is ‘fuzzy’, not so much a mass of certain (p.69) doctrine as a body of received wisdom about how questions can be framed and what kind of answers are permissible or likely to find acceptance. Moreover, the learning which is common to one generation is not so common to the next, and after a century or two may be wholly evaporated.

No doubt much common learning was secreted in the year books,34 but we have seen that it was difficult to extract, and there must have been a distinction between the sudden or variable opinions thrown out in the rush of litigation and commonly accepted principles. How, then, if at all, shall we begin uncover this evanescent common learning, in so far as it is not revealed in legal scripture? For a start, we do not in medieval England, apart from some stray examples—of a rather special kind35—in the thirteenth century, find the equivalent of consilia. Before the Elizabethan period, the opinions of counsel were given orally, often in Westminster Hall, or the Guildhall,36 or St Paul's,37 or over a good spread at the Cardinal's Hat.38 I am sorry to say that we can more easily reconstruct what counsel ate and drank in conference than what they said. Since the opinions were hardly ever (p.70) minuted by the client,39 that regular expression of common learning is now lost.

Plea Rolls The plea rolls of the courts, though vast in bulk, offer but limited assistance, as do the printed and manuscript books of entries derived from them. They show us the common forms of pleading and litigation practice, and that is essential background knowledge, but do not often reveal the thinking behind the forms or the ways in which their apparent operation was modified through fictions and conventions. Sometimes the rolls can teach us rather more when we find a careless or bold pleader trying out a new form, and perhaps putting onto the record what wiser practitioners kept in their heads. For instance, the standard pleading in a trespass action was for the plaintiff to count on a wrong committed with force and arms, spelt out routinely as fictitious swords and staves, and for the defendant to plead Not guilty. None of the facts which mattered were pleaded at all, and this economy of detail misled later generations into thinking that the law of tort was distinctly primitive and that liability was strict. It even misled some into thinking that trespass was solely about armed violence, though we know that a battery with swords and staves could include being knocked down by a frisky horse,40 while in trespass to

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Conveyancing More visible and macroscopic is conveyancing practice, the area where land law was applied to a client's needs. Here the individual precedent is of limited value for a different reason, and not merely because some experiments—such as that which occasioned Shelley's Case—were seldom if ever repeated. The problem with conveyances is that we can only understand them fully when we know, not only the underlying legal theory,42 but also the underlying strategy—and that usually means studying a family's property arrangements over a generation or two. As with pleadings, the strategy is not always visible on the surface. We have only to remember the trust, which makes so many late medieval deeds of feoffment almost meaningless. If we did not know about secret trusts, and took these documents at face value, we might conclude that the lawyers of late- medieval England owned more land than all the monasteries together. And in case anyone should think this just another example of medieval (p.72) obscuration,43 those familiar with modern Chancery arcana —not to mention readers of Sarah Caldwell's detective story The Sirens Sang of Murder (in which the hero is a legal his-torian)—may assure them that settlements of property in which the beneficiaries are unidentified did not disappear with the Middle Ages.44 An even stronger modern example would be provided by a complex tax avoidance scheme, the individual components of which would be incomprehensible or wholly misleading if taken out of context.45 A future legal historian who tried to make sense of the constituent transactions without finding a contemporary picture of the jigsaw, as revealed by a full factual inquiry by the revenue, or by a court of law, would be unlikely to guess correctly how or where the various pieces fit. Yet we all run risks of a similar nature, if not perhaps of such grand proportions, when we try to interpret deeds and muniments isolated from a context which may no longer be recoverable.

It is scarcely a cause for wonder that no one has yet attempted a history of conveyancing. On the one hand we have too much evidence, and on the other too little understanding. We possess conveyancing instruments in great profusion, because every landowner had good reason to preserve them, but little in the way of correspondence or recorded discussion which might reveal the precise effects which they were thought to have, let alone their strategic objectives, or why one arrangement might be preferred to another. As it happens, there is some doctrinal exposition of conveyancing to guide us. The subject of conveyancing was taught in the medieval business school at Oxford between the thirteenth and the mid-fifteenth centuries, and many of the lecture-notes survive, though they have yet to (p.73) find an editor.46 But the Oxford course was not for intending barristers, and it did not address the interesting questions in estate planning: tellingly

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enough, it passed completely over the subject of trusts.47 The lectures were aimed at the lower sort of penman, the scrivener.48 And in any case we should distinguish practice, usage, and practical ‘experience’49 from ‘erudition’. Conveyancing practice carried weight, even in a court of law, not because it emanated from scholarly minds but because of the importance of certainty and security in property transactions: ‘in these common assurances’, wrote Coke, ‘praxis jurisperitorum is to be observed … it would be too dangerous a thing to make any construction against the general allowance in common assurances’.50 To that extent it belongs with the informal body of law which I have been seeking to identify. But for the common learning which held it all together we must look to another law school.

The Third University Barristers had their own course. Indeed, the title ‘barrister at law’ represented a degree in the elaborate and demanding learning system of what came to be colloquially known as the Third University of England.51 Here, until its closure (p.74) in 1642, we may seek the formal source of common erudition. This was where legal learning—both detailed doctrine and general modes of thought and discourse—was implanted in the heads of the initiates through a largely oral process of transmission. It was what Serjeant Kebell in 1493 called ‘the old learning of court’,52 meaning the inns of court. In 1492 an Inner Templar referred to the ‘common learning in moots’;53 but it was also to be found in the lectures. Indeed, the lectures contain the principal doctrinal exposition of English law between Bracton and the seventeenth century.

Notes of these lectures and moots survive in some profusion, albeit they are, like all student notes, of variable quality.54 Mooting, which occurred daily in the inns of court and of chancery throughout the legal year, including two of the vacations, acquainted students and barristers with a wide range of doctrine and equipped them with professional techniques. The readers achieved some measure of order in arranging, consolidating, explaining—and simply repeating—the unwritten principles which lurk and run about below the surface of the reports. They established a tradition as to what was received learning and what was dubious. This was especially true of the older readings, which were not just individual opinions but the collective and growing wisdom of the profession.55 To be sure, the readers—and their learned audience—were always testing, by disputation, the borders of that common understanding. It was part of their function to keep alive doubts and to raise queries. That was the ‘fuzzy’ part of their common learning.56 But the main function by far was to preserve and elaborate the settled learning concerning real actions and real property, and it (p.75) was in that sense that (in Maitland's famous phrase) the law schools made tough law.57

As Maitland's remark assumes, law can be ‘made’ not only by acts of legislation and judgment, but also by shaping and refining the common thinking of the profession which will produce the legislators and judges of the future. The common opinion of the serjeants at dinner, or of the benchers at a moot, or of the readers in their lectures—especially an opinion which had often been repeated without challenge over the years58—was good evidence as to the state of legal doctrine, and might arguably be more cogent evidence

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 06 December 2014 Lecture Three: Common Usage and Common Learning that the unprepared speeches and sudden remarks of the judges in banc. Although the opinions of eminent judges carried more weight than the opinions of individual serjeants or apprentices, this seems to have been a function of their personal reputation as much as of their rank. The inns of court were a law school in which the lecturers of one generation would provide the judges of the next,59 and the judges routinely visited their former inns in the learning vacations to take part in the debates. In some of the reports and notebooks of the early Tudor period, such as those of Port and Spelman, we find dicta from learning exercises mingled so freely with dicta from the courts that it is not always easy to disentangle the contexts. Doubtless there was no need to do so. No less weight attached to what Sir John Fyneux stated as law if he said it in Gray's Inn rather than the King's Bench;60 and, conversely, it often seems that more weight (p.76) was given to what an eminent counsel such as Serjeant Kebell stated at the bar—making due allowance for his position as an advocate ex parte—than what fell from a minor puisne in the course of discussion.61

We noticed in the first lecture the dearth of specific citations before the Tudor period.62 We should not rush to condemn this as laziness on the part of the reporters, or indeed of counsel. It was simply not necessary to distinguish forensic case-law from the stock example: everyone steeped in the common learning knew where the cases came from. If a proposition or maxim derived from common learning was right, it was not because Bereford or Gascoigne or Littleton had affirmed it, though that might tip the balance if a point was unclear. It was because the proposition was commonly felt to be right— because no one who had taken the course could think otherwise.63 In some areas of law where the year books were deficient—for example, criminal law, forest law, and other branches of public law—the readers were arguably making law in a more positive and creative sense. On the other hand, the learning of the inns of court had its own conventional limitations, resulting in further layers of thought. The understanding of fictions, for instance, seems generally to have lain outside the taught curriculum.64 The readers on De donis do not mention common recoveries, and the readers on benefit of clergy do not indicate that the neck-verse is anything other than a real literacy test.65 Some things have to be learned in practice. This is still the case, since much of modern legal education is predicated upon the assumption that the law consists entirely of statutes and cases.

(p.77) ‘Doctrine’ and ‘Jurisprudence’ I do not wish to be taken as overstating my case by suggesting that the doctrine of the inns of court was somehow superior to the jurisprudence of the courts. That was certainly not the formal position. Judicial opinions from former times had been accorded an authoritative status since the very earliest days of law reporting,66 and beyond.67 And if specific authority was cited in court, be it in the medieval period or the early modern, it was in the form of cases rather than readings. There is only one explicit reference to a reading in the whole of the year books; and citations to readings are not frequent thereafter.68 Again, when it came to printing, it was cases rather than doctrinal literature which went to press;69 and presumably the law printers knew what the profession required. Judicial statements of the law, especially when they governed judgments

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But the body of canonical authority was not coextensive with the body of known law at any time. Law cannot consist simply in random single instances.70 Indeed, authorities—in (p.78) the form of reported pronouncements in particular instances —have no coherence in themselves. They make little sense except in the context of a pre-existing framework of principle and procedure.71 Individual pronouncements may either confirm that framework or signal attempts to adjust it; but for the framework itself to change requires both general acceptance of the adjustment and ‘someone to do the adding’. Nowadays the judges do much of the adding themselves, in their judgments—which are far longer than in the past and often written. In the year-book period they rarely did so; and in any case the bulk of the law reports were not taken up with reasoned decisions at all. If there was a reasonable, coherent body of English law, it was not to be found in the law reports. That brings us back to legal education.

The inns themselves called their learning exercises eruditiones,72 and the word has an academical ring to it. As I have said, that does not mean that their learning was necessarily perceived as separate from the law found secreted in the year books,73 but rather that the principal means of transmitting doctrine was not the cut and thrust of litigation. Note again how different Littleton's Tenures is from the year books. It shows a judge, formerly a student and reader of the Inner Temple, capable of expounding the law as a coherent entity, largely independent of procedure and pleading, and with (p.79) hardly a reference to a decided case.74 Littleton is our most polished specimen of late- medieval common learning captured in writing, and—unique as it admittedly is—the governing style is that of the inns of court readings rather than the year books. The author, indeed, acknowledges this in one passage where he offered to ‘prove’ a proposition by saying that he had ‘often heard it’ in the readings on Westminster II, c. 3.75 The reference is not to a specific performance, but to a repeated assertion. The constant repetition of a point, without challenge, made it common learning.76 It transcended or trumped single instances.77 And for Littleton it was not mere opinion but a proof of the law.

The Learning of The Coif A more limited species of common opinion was nurtured in the two serjeants' inns, where the judges and serjeants ate together and discussed law at their table.78 The serjeants' (p.80) inns had no educational functions, but, as in the inns of court today, the senior bench and bar naturally shared their legal problems when they met for meals.79 Hale thought it an important feature of the common-law system that the judges ‘daily in term- time converse and consult with one another’, which was one of the factors helping to preserve the law ‘from that confusion and disparity that would unavoidably ensue, if the administration was by several incommunicating hands, or by provincial establishments’.80

We have only limited evidence as to the content of these private conversations, and we do not know how formal the discussions were, though Spelman, Yorke, Dalison, and Dyer,81 all regarded the views settled or exchanged at table as worthy of reporting.

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Nevertheless, this was not quite the same as the common learning of the third university. At best these discussions might be regarded as private counterparts to the more public assemblies of all the judges in the Exchequer Chamber,82 which by the sixteenth century were also sometimes held in one of the serjeants' inns.83 In these assemblies the general consensus of the judges—though in a sense expressed extrajudicially84—bore considerable precedential weight.85 It is very probable that even the private (p.81) post-prandial soundings often directly influenced decisions in real cases. But these were not assemblies of the whole judiciary, for there were two separate societies, and they were concerned (like the courts) with specific instances rather than coherent doctrine.

Changes in The Early-modern Period In the Tudor period there is a seeming shift of focus. Reasoned decisions in particular instances are what the sixteenth-century law reporter increasingly wants. We still find references to common learning and erudition in the second half of the century,86 and the phrase lingered on after the demise of the active legal university in the inns of court in the mid-seventeenth century,87 usually as a synonym for maxim or ‘ground’.88 As a description of accepted legal wisdom, we find less academical expressions such as common or received ‘opinion’.89 The sense may have been subtly changing. Common learning or opinion is no longer something outside and beyond the books. For Coke and Walmsley in the 1590s it is ‘the common learning in our books’: in other words, just another way of describing (p.82) precedents.90 ‘Our book cases,’ wrote Coke, ‘are the best proof of what the law is.’91 Coke listed the communis opinio jurisprudentium as only the ninth of the twenty fountains of the common law which he identified in Littleton.92

Readings in the inns of court had slipped even further. They had, Coke noted, possessed some authority in Littleton's day, but ‘new readings have not that honour, for that they are so obscure and dark’.93 So Coke admitted lectiones jurisprudentium very grudgingly as the twentieth and last of the Littletonian fountains of the common law.94 They were no longer transmitting common learning, in the old sense, but had become idiosyncratic performances of variable weight.95 Students in Coke's day might still make notes from readings in their annotated Littletons,96 but in his own published Commentary upon Littleton (1628) Coke made no explicit use of the many available readings on property law. They may have influenced his thought, but they did not fit his canon of authority. This was not Coke's own doing, but one of the many changes in legal method that had begun in the sixteenth century. The enhanced role of the judicial function in declaring the law ex cathedra was already quite evident from the form and content of Plowden's Comentaries (1571), which, as the author boasted, deliberately omitted inconclusive discussions and included only reasoned judicial decisions—in which, said Plowden, (p.83) there was ‘most firmness and surety of law’.97 A century later it was explained by Vaughan CJ that an extrajudicial opinion, whether given in or out of court,98 did not carry the deliberation and commitment of an opinion governing a judicial decision, because that was in effect given under the judicial oath.99

The change was facilitated by the growing bulk of printed case-law, which enabled standard citations across the whole spectrum of the common law, and by the printed

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Eclipse of the Third University The seal was finally set on the new order of things by the temporary closure of the inns of court at the onset of civil war in 1642. Readings and moots ceased for a time, never to regain their former status. But here again we must not read the past backwards. The collapse of the old learning exercises was the end of a process of legal revolution, not its cause. The law school which had once generated common erudition could not have been allowed to disappear had it retained its medieval status. Its law-making role had, however, already passed to the judges before 1642; its learning exercises were just examinations, ‘rather problemata than dogmata’.101 Neither the school, nor its earlier role, could be effectively revived in the Restoration period. Valiant attempts were made. But there was widespread reluctance to accept the office of reader, especially since the reader was expected to treat his audience to more material and expensive pleasures than mere instruction.102 In the heyday of the inns, readership had been well worth the outlay, for it was the one path to the coif and the bench. But that was no longer so in the 1660s, and reading was seen as imposing a burden on speakers and listeners alike, with little or no compensating benefit. It was not the best designed scheme for legal (p.85) education which expected the teachers not only to lay aside their practice in order to prepare their one and only performance, but also expected them to pay handsomely for the privilege. In any case, there was no longer any practical need for legal education in the medieval form in which it had collapsed, and there was insufficient impetus to set up a new system of public academical training in seventeenth-century law and practice.103 Education therefore went into chambers,104 and—the readings and moots having largely escaped the printing press105—the English law library would soon consist chiefly of printed law reports.

Precedent became everything. The guiding principle was now stare decisis, an expression apparently first promoted by Hale CJ in the 1670s,106 and bearing a more authoritarian stamp than the older principle Judicandum est legibus non exemplis.107 Despite his immense learning, and skill in the analysis and exposition of the common law, Hale never himself had the opportunity to read in his inn of court, but (p.86) witnessed the disappearance of the old system of learning.108 Shortly after his time, in 1692, Sir Bartholomew Shower classed opinion from readings and moots together with judicial obiter dicta as examples of extrajudicial opinion having little authority.109 By that time it was a very sound distinction. The views of individuals, however eminent, could not have

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Common Opinion Replaces Common Erudition By the early nineteenth century, the role of common opinion seems to have undergone a further change. Lord Ellenborough CJ observed in 1815 that ‘communis opinio is evidence of what the law is, not where it is an opinion merely speculative and theoretical, floating in the minds of persons, but where it has been made the ground-work and substratum of practice’.110 Thus common opinion no longer carried weight proprio vigore as a body of learning, or professional understanding, but only in so far as it had in fact become embedded in usage and relied upon. Its effect depended on a kind of estoppel by reliance. It had no greater status than conveyancing practice: it was not authoritative as such, but carried weight by reason of the detriment which would be suffered by a great many people if it were overturned by the courts.111 Old readings in the inns of court, likewise, had (p.87) no authority in themselves, being regarded merely as the opinions of individuals,112 though they might acquire it by professional acceptance.113

The result of these changes, for the legal historian who would discover common opinion, is another dark shadow. The gloom is less oppressive than in the age of the year books, because law reports now contain authoritative expositions of the law by the judges. If judgments are to be the only written sources of common law, they had best be self- sufficient and educative. Nevertheless, despite the outward appearances and the judicial theory, there was still a world of law outside the books, typified by the legal fiction—which was as active as ever in the seventeenth and eighteenth centuries. Moreover, whatever Lord Ellenborough might say, opinion in the inns of court could still be a body of unofficial law. I do not propose to say so much about this later period. But there do emerge new sources of insights into chambers practice.

Most obvious among them are written legal opinions. They seem to begin in the later Tudor period,114 and came rapidly into regular use as the practice of public consultation waned and counsel retreated into chambers.115 Written opinions exist in some profusion from the seventeenth century onwards,116 though they have never been systematically studied by legal historians. The opinions were usually written in autograph by counsel at the foot of the case (p.88) submitted to them,117 and signed, usually with a place and date. This remained the usage of the Bar well into the twentieth century,118 when the typewriter took over. It does not seem to have been a common practice for counsel to keep a copy,119 unless the opinions were given in an official capacity,120 and the only archive of private autograph opinions known to me is that kept by Sir Matthew Hale in 1658–60, now in Los Angeles.121 Opinions have therefore to be sought after one by one, as ephemeral survivals, or in the muniment rooms of the clients to whom they were sent. When found in the latter sort of context, they are usually on points of land law; but the context adds to their value, in that they are often preserved together with the documents of title to which they refer.

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In the eighteenth century it also became a common practice for opinions to be transcribed into volumes for future reference. How and why this practice began requires further research. In some cases it seems to have been the work of attorney clients, who took their copies before sending the opinions on to their lay clients or depositing them in their (p.89) clients' muniment boxes. In others, it may have been the work of pupils in chambers. Sometimes we have more than one copy of the same opinions, suggesting that they were lent for copying, either for educational purposes or for reference. So many of these manuscript volumes survive that they might seem to constitute a body of written communis opinio.122 That would, however, be to elevate them too far. Although there were some eminent counsel whose opinions were accorded immense respect, what a single barrister thought can only be of limited weight as evidence of general opinion. Still, opinions show us what was thinkable and arguable, or what was thought safe and reliable, throw light on branches of law and practice which are not well covered in the law reports,123 and give us a direct insight into the practitioner's mind.

Similar evidence may be provided by correspondence between attorneys or solicitors and their clients, though I am not sure that much of real value has yet been uncovered between the fifteenth and the nineteenth centuries. The legal advisers of government departments, corporations and business concerns sometimes left archives which would repay contextual study. From the Georgian period onwards we have a still wider range of revealing printed sources, such as journals containing comments on recent cases and essays criticising the law, academic literature, and even lectures. But if I go on much further I shall be in the present century (whichever it is), and that is not my intention—if only because the point has been made far better than I could make it by Professor Simpson and his leading cases.124

(p.90) Conclusion As I said in the first lecture, my object has not been to unfold a new theory of law but to explore some of the practical problems for legal history which arise from the multidimensional nature of the sources. The moral is not that legal historians should stop reading law reports or plea rolls. On the contrary, we should be looking for still more of them. A gap in the reported case-law can often be filled most effectively by the discovery of some previously unknown report or record. Nor am I preaching a resigned pessimism about how much we can learn from the reports in understanding the legal thought of the past. There is more than enough to keep us all busy for another century. But formal decisions are not everything.

The essence of my case is rather that we should beware of treating case-law, and the statute-book, as if they constituted a complete corpus juris Anglicani.125 They are not today, and they never were. There is another body of law, less visible perhaps, sometimes deliberately obscured, but real enough in its effects—and, even for earlier periods, not wholly beyond our range of perception. (p.91)

Notes:

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(1) This is not, however, a sharp distinction, because the categories shade into each other.

(2) See Lord Radcliffe, ‘The Place of the Courts in Society’ (1953 broadcast), reprinted in Not in Feather Beds (1968), 27–35, at 34 (‘I do not believe that judges will aid the development of the law if they try to force the pace by guessing at directions before society itself has made up its mind’).

(3) See J. H. Baker, ‘The Law Merchant as a Source of English Law’, in The Search for Principle: Essays in Honour of Lord Goff of Chieveley, ed. W. Swadling and G. Jones (Oxford University Press, 1999), 79–96.

(4) J. S. Rogers, The Early History of the Law of Bills and Notes (Cambridge, 1995), 177– 86.

(5) See J. H. Baker, ‘Custom and Usage’, in Halsbury's Laws of England, ed. Lord Mackay of Clashfern, vol. 12(1) (4th edn, 1998), 153–98.

(6) See M. M. Postan, ‘The Charters of Villeins’, reprinted in Essays in Medieval Agriculture (1973), 107–49, at 145; discussed further (and for a later period) in J. Whittle, and M. Yates, ‘Pays réel or pays légal? Contrasting patterns of land tenure and social structure in eastern Norfolk and western Berkshire, 1450–1600’ (2000) 48 Agricultural History Rev. 1–26.

(7) See, e.g., as to covenant without a deed in Hereford, Welssh v. Hoper (1534) 94 Selden Soc. 324.

(8) See Lord Radcliffe, ‘The Lawyer and his Times’, at 270–5. In ‘The Place of the Courts’, 29, he described the common law in general as ‘the ancient rules of civil life which the judges have recognized in the courts and gradually worked into a system’.

(9) Justice Cardozo referred to ‘the customary forms and methods of business and of fellowship, the prevalent convictions of equity and justice, the complex of belief and practice which we style the mores of the day. They may lack an official imprimatur, but this will not always hinder us from resting securely on the assumption that the omission will be supplied when occasion demands. Unless and until our expectation is disappointed, a standard or rule or principle so verified is treated as law in the governance of conduct, and may fairly be characterized as law in the governance of speech’: The Growth of the Law, 53.

(10) ‘Law and Fact in Legal Development’, reprinted in Studies in the History of the Common Law, 176–9, 188–9. This is the best historical discussion of the legal consequences of lawyers thinking ‘off the record’ and of legal thought outstripping the legal forms.

(11) See S. F. C. Milsom, ‘The Past and Future of Judge-made Law’ (1981) 8 Monash Law Rev. 1–14, reprinted in Studies in the History of the Common Law, 209–22. On p.

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211, much of the common law of real property is characterized as ‘the practical assumptions of a feudal society … embalmed in logic’. Note also M. S. Arnold, ‘Law and Fact in the Medieval Jury Trial; Out of Sight, Out of Mind’ (1974) 18 American Jnl of Legal Hist., 267–80, esp. at 278–80.

(12) Baker, ‘The Law Merchant as a Source of English Law’, at 88–95. Note, however, Muprhy J.'s suggestion that the courts ought to modify the law if juries have made clear they regard it as unfair: Taouk v.Bunt (1976) 9 ALR 383 (High Court of Australia).

(13) See, on this theme: Arnold, ‘Law and Fact in the Medieval Jury Trial’ (n. 11, opposite), at 278–80; Milsom, ‘The Past and Future of Judge-made Law’, 214–15.

(14) See Baker, ‘The Law Merchant and the Common Law before 1700’ (1979) 38 CLJ 295–322 Baker, ‘The Law Merchant and the Common Law before 1700’ (1979) 38 CLJ 295–322, reprinted in The Legal Profession and the Common Law, 340–68.

(15) See, Milsom, ‘The Past and Future of Judge-made Law’, at 218–22.

(16) Since the nominal defendant did not exist in reality, there was no need for mesne process. The proceedings were commenced by an informal letter from the non-existent defendant to the real defendant (supposed to be his lessor).

(17) Gray, The Nature and Sources of Law, 294. For the real influences lurking behind the decision, see A. W. B. Simpson, Leading Cases in the Common Law (Oxford, 1995), 13–44.

(18) Cf. W. Fulbeck, A Direction or Preparative to the Study of the Law (1829 edn.), 120 (‘So the law doth conceive and conclude many things of ordinary contingents, which common sense cannot perceive, but rather imagineth them to be clean contrary to the truth …’); M. Hale, preface to Rolle's Grand Abridgment (1668), vol. 1, sig. bv–[b2]: ‘But in matters moral and civil (the common subject of laws), though possibly the generall and common notions of them, or whereupon they are founded, are in a great measure common to all men of understanding, yet the applications and particular deductions and conclusions are not so clear, constant, and determinate, as consequences and conclusions in logick or mathematicks are; for as the natures of morall actions are in themselves much more indeterminate then the subjects of those arts and sciences, so they most commonly are strangely diversified by infinite circumstances; and therefore men agreeing in the same common notions of justice and morality, oftentimes deduce different conclusions from them, and applications of them, even though interest and partiality of mind (which are very incident to mankind) do not interpose’).

(19) Hale makes this point with characteristic eloquence in his preface to Rolle Abr. (1668), vol. 1, sig. [b2].

(20) F. C. von Savigny, System des heutigen Römischen Rechts, vol. 1 (Berlin, 1840), 45; translated in Gray, Nature and Sources of Law 91.

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(21) Ibid. 91–3.

(22) Ibid. 260–82 (‘Opinion of Experts’). For Gray, this meant treatises and textbooks.

(23) Bole v. Horton (1673) Vaugh. 360 at 382, noted below, p. 83.

(24) See Co. Litt. 130a (‘The King judgeth by his Judges, and they are the speaking law, lex loquens’); 254a (‘Book cases are principally to be cited for deciding of cases in question, and not any private opinion’); and below, p. 82. He does not, however, explicitly distinguish judgments from extrajudicial opinions expressed by judges.

(25) Cf. Johnes v. Johnes (1814) appendix F, no. 17, per Lord Eldon LC (‘one who had held no judicial situation could not regularly be mentioned as an authority’).

(26) And so they thought at the time: e.g., YB Mich. 6 Ric. II (Ames Fdn), 117–18, pl. 25, per Belknap CJ (‘est un general reul de la ley en noz ancienz termez …’, termez here meaning books of terms or year books).

(27) Dawson, Oracles of the Law, 174.

(28) Cf. Ibid., p. 59 (‘Most of the rules [in the year-book period] were surely rules of case law, unless one identifies case law with modern methods of citation … But the ideas used in particular cases could survive as law only as they were absorbed into the common learning of the [judges and serjeants]’). Dawson did not associate common learning directly with the exercises in the inns of court.

(29) For use of this phrase in the fifteenth-century year books, see YB Mich. 20 Hen. VI, fo. 5, pl. 16, per Markham sjt (‘ceo est un comen erudition en nostre ley’), translated in appendix F, no. 2; Mich. 33 Hen. VI, fo. 54, pl. 42 (‘nostre auncien erudition’), translated in appendix F, no. 3; Hil. 4 Hen. VII, fo. 1, pl. 1; appendix F, no. 5, per Fyneux sjt; Trin. 4 Hen. VII, fo. 9, pl. 2; appendix F, no. 6, per Bryan CJ; Pas. 8 Hen. VII, fo. 11, pl. 1; appendix F, no. 8, per Huse CJ; Trin. 9 Hen. VII, fo. 4, pl. 4; appendix F, no. 11, per Bryan CJ; and for early sixteenth-century examples, see 94 Selden Soc., intro., 161, n. 1. For its use in Inner Temple exercises, see also 105 Selden Soc. 272 (1492), 273 (1493), 298 (c.1496); appendix F, nos. 7, 9, 13. For the English expression, see YB Hil. 11 Edw. IV, fo. 10, pl. 5; appendix F, no. 4, per Catesby sjt (‘common learning’); 105 Selden Soc. 320 (‘bon lernyng’); 113 Selden Soc., intro., p. xxi n. 73.

(30) e.g. YB Mich. 20 Hen. VI, fo. 5, pl. 16 (previous note); moot in the Inner Temple (c.1490) 105 Selden Soc. 155; Moyle v. Abbot of Battle (1494) Caryll's reports, 115 Selden Soc. 266 (‘il est un commen lerning’), translated in appendix F, no. 12; Note (1521) 116 Selden Soc. 660, per Fitzherbert sjt (‘ceo ad estre un common erudition et diversité’); Speke v. Flemyng (1522) YB Pas. 14 Hen. VIII, fo. 25, pl. 7, at fo. 28, per Pollard J.; Middle Temple moot (c.1530) Brit., Lib., MS. Add. 35939, fo. 218; and cf. p. 81, below.

(31) Anon. (1343) YB Mich. 17 Edw. III, fo. 58, pl. 48 (‘contra communem opinionem’). The

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(32) See Hale's remarks to the same effect, above, p. 65, n. 18.

(33) It may, however, sometimes betoken a display of ingenuity or subtlety rather than common acceptance: see Gray's Inn cases, Bodl. Lib. MS. Rawlinson C. 705, fo. 68 (‘Nota ycy plusourz notablez et bon lernyng[s] sur un case que ne fuit dout en ley’). See also argument in Inner Temple (1480s or 1490s), ibid., fo. 59v; 105 Selden Soc. 319 (‘quod nota, bon lernyng del jugement’); argument in Gray's Inn (1490s), ibid., fo. 117v (‘Nota ceo bien pur bon lernyng ut credo’); argument in Inner Temple (1492), 105 Selden Soc. 268 (‘quod nota, quar bon erudition’). Cf. Wotton's argument in Gray's Inn (c.1500) that a particular proposition would be ‘encontre tout lernyng’: MS. Rawlinson C. 705, fo. 86v.

(34) It is evident from the texts in app. F that ‘common learning’ does sometimes refer to a body of opinion found in the books.

(35) The identifiable examples were written by or for judges, rather than by counsel for clients: see P. Brand, The Making of the Common Law (1992), 393–443.

(36) Baker, The Legal Profession and the Common Law, 102. Sir William Dugdale (Origines Juridiciales, 142) wrote that this was still the practice in 1666.

(37) As Chaucer and Fortescue indicated, this was at the ‘parvise’, whatever that means: Baker, The Order of Serjeants at Law (1984), 102–3. There is a reference to the parvise of Paul's as a place for legal consultation in Bryt's manuscript year book of 1411: Cambridge Univ. Lib., MS. Gg.5.8, fo. 10; Baker, The Common Law Tradition, 192 (‘Un home de Loundres … ala a l’esglise de Seinct Paule de Loundres de parler ove gentz de son consell en le parvise’). Cf. the vulgate report in Y.B. Pas. 12 Hen. IV, fo. 21, pl. 10 (‘un home de Westm. que soy en ala a Powles pur counseile’).

(38) The Cardinal's Hat, a tavern near the Old Bailey, was said in 1482 to be ‘a place accustomed for lerned men in the lawe to comen [i.e. discuss] maters concernyng the lawe’: The Tropenell Cartulary, ed. J. S. Davies (1908), vol. 2, 348. See also The Paston Letters and Papers, ed. N. Davis (Oxford, 1971–6), vol. 2, 594–5 (payment for wine at the Cardinal's Hat, 1471); and other references in Ives, The Common Lawyers of pre- Reformation England, 106. The tavern is said to have been part of Willoughby's Inn, formerly an inn of chancery: E. Williams, Early Holborn and the Legal Quarter of London (1927), vol. 1, paras. 136–9.

(39) For some fifteenth-century exceptions, revealed by correspondence, see appendix G, nos. 1–3. An earlier but vaguer example, in a recently published letter of c.1430, refers to counsel given by ‘Harry Thawytes, the man of court that ye spak with in the

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Temple on Friday’: The Armburgh Papers, ed. C. Carpenter (Woodbridge, 1998), 110. This is probably the Henry Thwaytes (d. 1479/80) who was retained by numerous Yorkshire clients between the 1440s and 1470s, but, if so, he must have been a very young man in 1430.

(40) See, e.g., Gibbon v. Pepper (1695) B. & M. 335.

(41) Case of Thorns, Hulle v. Orynge (1466) B. & M. 327, esp. at 328, per Choke J. (‘he should show what he did to prevent the thorns from falling, so that we can judge whether or not he did enough to excuse himself’); Ustwayt v. Alyngton (1534) CP 40/1083, m. 323; 94 Selden Soc., intro., 223–4 (issue on plea of contributory negligence); Weaver v. Ward (1616) B. & M. 331 (the defendant should have ‘set forth the case with the circumstances so as it had appeared to the court that it had been inevitable and that the defendant had committed no negligence to give occasion to the hurt’); Gibbon v. Pepper (1695) B. & M. 335; 4 Mod. 405 (‘if the horse ran away against his will he would have been found not guilty, because in such case it cannot be said with any colour of reason to be a battery in the rider’).

(42) Cf. Co. Litt. 212a (‘the best meane is, in all assurances [i.e. conveyances] to take counsell of learned and well experienced men, and not to trust only without advice to a president’).

(43) Cf. Chambers's remarks on the common recovery, above, p. 35.

(44) Note a different form of secrecy in Colombine v. Penhall (1853) 1 Sm. & G. 228 at 238, where it is said a draft settlement was prepared with fictitious names ‘to conceal the real parties from the pupils in the chambers’.

(45) The courts themselves recognize the importance of context, and of viewing a string of transactions in its entirety: W. T. Ramsay Ltd v. Inland Revenue Commissioners [1982] AC 300.

(46) See Baker, ‘Oral Instruction in Land Law and Conveyancing, 1250–1500’, in Learning the Law: Teaching and the Transmission of English Law, 1150–1900, ed. J. A. Bush and A. Wijffels (London and Rio Grande, 1999), 157–73.

(47) Doubtless because trusts were rarely created expressly by deed, and the lecture course was based on precedents.

(48) For the distinction between conveyancing by learned counsel and by common scriveners, see the letter of c.1420 printed in The Armburgh Papers, ed. C. Carpenter (Woodbridge, 1998), 83.

(49) For ‘experience’, apparently meaning direct observation of legal practice, see 94 Selden Soc., intro., 124, 300. Cf. 105 Selden Soc. 239 (‘common use dexperience’).

(50) Lord Cromwell v. Andrewes (1601) 2 Co. Rep. 69 at 75. See also Hunt v. Gateley

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(1591) 4 Leon. 150 at 156, per Popham Att.-Gen. (‘for the common repose of many the strict rules of law ought to yield to common practice for the avoiding of a common inconvenience’); Mary Portington's Case (1613) appendix A, no. 15; Herbert v. Binnion (1615) Herbert v. Binnion Ibid., no. 16.

(51) See Baker, The Third University of England (Selden Soc. lecture, 1990), 1.

(52) Hulcote v. Ingleton (1493) appendix F, no. 10.

(53) Appendix F, no. 7 (Inner Temple, 1492). See also Hulcote v. Ingleton ibid., nos. 1, 14.

(54) For readings, see Baker, Readers and Readings in the Inns of Court and Chancery (Selden Soc. Supp. Series, forthcoming 2001). For moots, see id., intro. to Readings and Moots at the Inns of Court, vol. 2 (105 Selden Soc., 1990), pp. lxxvii–cx.

(55) For what Professor Thorne has called the ‘inherited core’ of learning, see Readings and Moots, vol. 1, intro., at pp. lx–lxviii; Spelman's Reading on Quo Warranto, 113 Selden Soc., intro., pp. xvii–xx.

(56) For this contemporary expression, see below, p. 81.

(57) F. W. Maitland, English Law and the Renaissance (1901), 25. See further Baker, ‘The Inns of Court and Legal Doctrine’, in Lawyers and Laymen: Studies in the History of Law Presented to Professor Dafydd Jenkins, ed. T. M. Charles-Edwards et al. (Cardiff, 1986), 274–86; reprinted in The Common Law Tradition: Lawyers, Books and the Law (2000), 37–51.

(58) See below, p. 79.

(59) Only a reader could become a serjeant, and only a serjeant could become a judge.

(60) See, e.g., YB Trin. 15 Hen. VII, fo. 11, pl. 21 (‘In lectura Thatcher cest cas fuit dit per ley per Fineux Chief Justice’); Spelman's reports, 93 Selden Soc. 140 (‘Note that my lord Fyneux C.J.K.B. said in Gray's Inn for law …’). His most important dictum in Gray's Inn was his observation in 1499 about assumpsit for nonfeasance: B. & M. 401.

(61) For Kebell's prominence in the year books, see E. W. Ives, The Common Lawyers of pre-Reformation England (Cambridge, 1983), 3, 149–51. However, as Ives remarks, it may be due in part to bibliographical accident.

(62) Above, p. 10.

(63) See Baker, ‘The Inns of Court and Legal Doctrine’ (1986), reprinted in The Common Law Tradition (1999), 37–51; Readings and Moots at the Inns of Court, vol. 2, 105 Selden Soc., intro., p. lxxii.

(64) For readings touching on linguistic fictions, however, see appendix D.

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(65) See Kebell's reading in the Inner Temple, appendix C, no. 6.

(66) Note The Abbot of Barlings’ Case (1278/89) 112 Selden Soc. 348 at 350, per Saham J. (‘Ow devums crere les auncienes opiniouns e le justices ki furunt devant nus e de ky nus appreimus la ley ow vos noveles opiniouns? Jeo crey ky les aunciens opinions.’). On p. 349 the remark appears as an exchange with Serjeant Higham. Saham J. asks whether the court should give judgment according to the old laws used in the time of those who went before, or according to the new laws suggested by the serjeants; Higham replies, according to the old laws.

(67) For the use of cases (from the rolls) in Bracton, see T. E. Lewis, ‘The History of Judicial Precedent I’ (1930) 46 LQR 207–24 at 209–12.

(68) YB Trin. 15 Hen. VII, fo. 11, pl. 21 (‘lectura Thatcher’, i.e. Thomas Thatcher of Gray's Inn); Readers and Readings, 139.

(69) A limited number of early-modern readings reached the press in the seventeenth century. The first to be printed appeared as J. Dodderidge, A Compleat Parson (1630). Calthrope's reading on copyholds was printed in 1635. Sixteen readings were then printed between 1640 and 1670, the earliest text being John Densell's reading on final concords (1530): Readers and Readings, 605–12.

(70) Cf. Jones v. Randall (1774) Cowp. 37, per Lord Mansfield CJ (‘The law of England would be a strange science if indeed it were decided upon precedents only. Precedents serve to illustrate principles … and these principles run through all the cases’).

(71) This is apparently what Coke meant when he partnered ‘reason’ with ‘authority’ as faithful witnesses of the law: Co. Litt., proemium. See Co. Litt. 62a (‘[Reason] is not to be understood of every unlearned mans reason, but of artificiall and legall reason warranted by authority of law’); 97b (‘For reason is the life of the law, nay the common law it selfe is nothing else but reason, which is to be understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not every man's natural reason …’); 232b (‘by the light of legall reason the right is discerned’).

(72) Black Books of Lincoln's Inn, vol. 1, 99. And see the Lincoln's Inn order of 1502 printed in 105 Selden Soc. lviii (‘eruditio de le moote’).

(73) Common learning could be found in the books: Hulcote v. Ingleton (1493) Caryll's reports, 115 Selden Soc. 138, pl. 128, at 141, per Bryan CJ (‘il ne voet luy oyer a arguer a cest conceit, pur ceo que est merement encontre nostre auncient comen erudycyon et est a ore en maner un princyple. Par que par cest mesne nous duissomus transposer toutz nostre auncient presidentes’); Hungate v. Ardyngton (1504) Caryll's reports, 116 Selden Soc. 434, per Frowyk CJ (‘est un comon erudition en livers’).

(74) Cf., on this, Co. Litt. 16b: ‘[Littleton] citeth no authority but when the case is rare or may seem doubtfull … For he knew well the rule, that perspicua vera non sunt probanda. And the like observation is made of Justice Fitzherbert in his Book of Natura Brevium that

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he never citeth authority but when the case is rare or was doubtfull to him’.

(75) Tenures, s. 481 (‘de prover que le graund assise doit passer pur le demand-ant en le cas avauntdit, jeo aye oyé sovent la lecture de lestatute de Westminster le second, que commence In casu quo vir’). Coke commented (Co. Litt. 280b): ‘By the authority of Littleton, ancient readings may be cited for proof of the law; but new readings have not that honour, for that they are so obscure and dark’.

(76) Cf. the first reference to the inns of court in the year books (for 1356), where Willoughby J. says of a point of pleading, ‘we have often heard it among the apprentices in the inns (en hostelles)’: YB Mich. 29 Edw. III, fo. 47, translated in appendix F, no. 1; discussed in 105 Selden Soc., intro., pp. xxix–xxx; The Common Law Tradition (1999), 20.

(77) See Frowyk's remark in the Inner Temple (1493) appendix F, no. 9 (‘ad esté sovent adjudgé ambideux voyes, mes le comen erudition a ore est …’).

(78) 94 Selden Soc., intro., 135–7. The earliest reference to this practice seems to be in 1486, when Hussey CJ put questions to Sulyard and Townshend JJ ‘a son hostel puis manger’ (YB Hil. 1 Hen. VII, fo. 10, pl. 12), probably referring to the Fleet Street inn. Points of law were also discussed informally by the judges on the way to and from Westminster: e.g. YB Pas. 21 Edw. IV, fo. 30, pl. 24 (‘Et puis, ut ego audivi, les justices del Bank le Roy fueront demandes de ceo matter … Et ceo fuit veniendo de Westm.’).

(79) It should be remembered that dinner in the medieval and early-modern period was in the middle of the day, so that an after-dinner discussion was in the daytime.

(80) The History of the Common Law (1779 ed. C. Runnington), 288–9.

(81) For references in Dyer, see 109 Selden Soc., intro., p. xlv n. 96. There is an example of 1561 in appendix C, no. 10.

(82) See M. Hemmant, Select Cases in the Exchequer Chamber, vol. 1 (51 Selden Soc., 1933), intro., pp. xi–lxxxiii.

(83) The serjeants’ inns began to be used in the sixteenth century for formal meetings of ‘Exchequer Chamber’ type, presumably because it saved a return trip to Westminster after dinner. The practice may have begun with adjourned assizes: Maunde v. Staunton (1525) KB 27/1056, m. 31; 109 Selden Soc., intro., p. xlv n. 94. Spelman sometimes reports ‘the justices’ at serjeants’ inn (93 Selden Soc. 45, 208), but may be referring to informal discussions. Dyer mentions a serjeants’ inn case in 1560 adjourned from the Exchequer Chamber after argument by counsel: Att.-Gen. v. Donatt (1560) 109 Selden Soc. 49–50.

(84) Difficult cases were informally adjourned into the Exchequer Chamber for consultation with the other judges. The assembly of judges had no formal jurisdiction or power. It did not give judgment, and it kept no records.

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(85) The Common Law Tradition, 164 n. 150.

(86) e.g., Fulmerston v. Steward (1554) 1 Plowd. 102 at fo. 103v (‘il est common erudition que …’); Lord Zouch v. Bamfield (1587) 1 Leo. 75 at 77, per Peryam J. (‘it is a common learning that …’); Ognel v. Paston (1587) 2 Leo. 84 at p. 85, per Coke (‘It is a common learning in our law that …’).

(87) e.g., Foster v. Ramsey (1659) 2 Sid. 150, per Glynne CJ (‘le common learning del volunts’); R. v. Bishop of Worcester (1670) 1 Mod. 280, per Tyrrell J (‘it is a common erudition’); Gilby v. Copley (1683) 3 Lev. 139, per Levinz J. (‘it is common erudition’); R. v. Bishop of Llandaff (1735) 2 Stra. 1006 at 1011, per Lord Hardwicke CJ (‘The common learning is …’).

(88) In M. Hawkes, The Grounds of the Lawes of England (1657), intro., ‘eruditions’ seem to be synonymous with the ‘grounds’ (maxims) of the title. Coke preferred to speak of maxims and principles: e.g. Co. Litt. 10b, 11a, 67a, 152b, 343a.

(89) e.g., Pollard v. Jekyl (1553) 1 Plowd. 90 (‘common opinion amongst men learned in the law’); Dowman's Case (1586) 9 Co. Rep. 7 at fo. 11b (‘common opinion of men learned in the law, and common experience’); Palmer's Case (1605) 5 Co. Rep. 126 at 127 (‘Et hoc communi jursperitorum calculo comprobatur’); Sir George Curson's Case (1607) 6 Co. Rep. 75 at 77 (‘common received opinion’); Dell v. Brown (1649) Style 182, per Rolle CJ (‘against the received opinion’); Thin v. Thin (1664) 1 Sid. 190 (‘le constant practise et received opinion’).

(90) e.g., Hunt v. Gateley (1591) 4 Leo. 150 at p. 152, per Walmsley sjt (‘it is the common learning in our books’); Countess of Northumberland v. Hall (1597) 5 Co. Rep. 98 (‘a common learning in our books’). This was not, however, a novel figure of speech: see Hungate v. Ardyngton (1504) Caryll's reports, 116 Selden Soc. 434, per Frowyk CJ (‘est un comon erudition en livers’).

(91) Co. Litt. 254a, adding ‘argumentum ab authoritate est fortissimum in lege’.

(92) Co. Litt. 11a.

(93) Co. Litt. 280b.

(94) Co. Litt. 11a: ‘A lectionibus jurisprudentium, from the readings of learned men of law.’

(95) The new style of reading begins in the time of Henry VII, with Frowyk and Constable on Prerogativa regis and Dudley on Quo warranto, though for a generation or two it jostled with the older kind. These new readings in their turn became the basis for later readings on the same subjects.

(96) Readers and Readings, 238–9.

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(97) Prologue, quoted more fully in The Common Law Tradition, at 163. A similar kind of selection seems to have been made by the anonymous compiler of the year books 12–14 Hen. VIII: Ibid. 162.

(98) The expression ‘extrajudicial opinion’ was widely used for what we now call an obiter dictum in the course of judicial proccedings, or even in the course of a judgment: see, e.g., Earl of Derby's Case (1678) T. Jones 237 at 243; Anon. (1684) 2 Show. 349 at 352 (‘that is an extrajudicial opinion, for it was not the point in judgment before them’); Jones v. Earl of Strafford (1730) 3 P. Wms 79 at 88; Mansell v. Mansell (1743) Cas. t. Talbot 252 at 257; Bagshaw v. Spencer (1743) 2 Atk. 570 at 581; Caldwall v. Baylis (1817) 2 Meriv. 408 at 411, per Romilly (‘a mere extrajudicial opinion—a doubt entertained by Lord Northington in consequence of his little knowledge of equity he at that time possessed’); Skynner v. Spilsbury (1842) 10 Cl. & Fin. 340 at 358, per Rolfe B. (‘That opinion, however, was not necessary in order to support the judgment; it was, therefore, extrajudicial’); Boyse v. Rossborough (1856) 6 HLC 1 at 26 (‘That is all which the case decides, and the further observations of the Master of the Rolls are extrajudicial’).

On this footing, a year-book case could be dismissed as ‘extrajudicial’: e.g., Mitchell v. Reynolds (1712) 10 Mod. 85 (‘but the extrajudicial opinion of a single judge’).

The term obiter dictum is perhaps itself a symptom of the change here discussed. It is not much used before the nineteenth century, but see King v. Melling (1672) 2 Lev. 58 at 59, per Levinz; Parker v. Langley (1714) 10 Mod. 209 at 210; R. v. Mayor of Shrewsbury (1735) Cas. t. Hard. 147 at 152.

(99) Bole v. Horton (1673) Vaugh. 360 at 382; Hale, History of the Common Law (1779 ed. Runnington), 67.

(100) Though first printed in 1481, the year of Littleton's death, it was probably written around 1470.

(101) Edward Bagshawe's preface to the 1660 edition of his reading of 1640, quoted in Readers and Readings, 606. His reading had been stopped by the intervention of Archbishop Laud, and he was making the point that no subject was unfit for academic disputation, since the readers had no power to decide the law by judgment.

(102) i.e. of an alimentary nature: see Readers and Readings, 7, 228.

(103) Though it was suggested: The Legal Profession and the Common Law, 35; and note Sir Peter Ball's proposals for reforming legal education in the 1640s (in Brit. Lib. MS. Add. 32096, drawn to my attention by Professor W. R. Prest). Readings were kept up at New Inn (under the auspices of the Middle Temple) until the nineteenth century, and a series of moot books from 1748 to 1809 has been preserved: Middle Temple archives, MT 12/MOO1–3.

(104) This could sometimes be more academic in nature than it later became. Pupil- masters might arrange formal exercises, or debates, and so might groups of students:

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Baker, 105 Selden Soc., intro., p. lxxvi.

(105) For the few printed readings, see above, p. 77, n. 69. The only reports of moots to be printed were the Inner Temple series occurring in Keil. 102v–137, where they are described as ‘Casus incerti temporis’. Les Cases de Greys-Inn (1680) was a collection of medieval moot-cases, without argument.

(106) See Hanslap v. Cater (1673) 1 Vent. 243 (‘Hale consented that it should be reversed according as the later precedents have been, for he said it was his rule, stare decisis’); Kirkbright v. Curwin (1676) 3 Keb. 611 (‘Hales Chief Justice doubted, but it's best stare decisis’).

(107) Hale's colleague Vaughan CJ apparently preferred the older maxim: Bishop of Oxford v. Edes (1667) Vaugh. 18 at 27. Likewise Heneage Finch (later Lord Nottingham): see Harris v. Colliton (1658) Hard. 120 at 122; Nevill v. Stroud (1660) 2 Sid. 168 at 170 (above, p. 7). The maxim was also known to Coke: Mitton's Case (1584) 4 Co. Rep. 32 at 33. Lord Mansfield CJ was fond of saying that the law consisted not in precedents but in principles: e.g. Jones v. Randall (1774) Cowp. 37; Rust v. Cooper (1777) Cowp. 629; R. v. Bembridge (1783) 3 Doug. 327.

(108) Hale was, however, educated under the old system. He kept reports of moots in the inns of chancery in 1634–5 and (following his call to the bar in 1636) of moots and bolts in Lincoln's Inn in 1637–8: Readings and Moots, vol. 2, 105 Selden Soc., intro., p. xcv, no. 103; p. cviii, no. 174. He argued a case at Rigby's reading in Lincoln's Inn in 1638: Trinity College Dublin MS. 719, fo. 180v; Readers and Readings, 588. The system collapsed before his own turn came to read.

(109) R. v. Bishop of London and Burch (1692) 1 Show. 413 at 418 (‘I never read … not so much as in a moot case, or any extrajudicial opinion of any judge, or any reader upon a statute’).

(110) Isherwood v. Oldknow (1815) 3 M. & S. 382 at 397.

(111) See Hodgson v. Ambrose (1780) 1 Doug. 337 at 341, per Lord Mansfield CJ.

(112) Tolson v. Kaye (1822) 2 Brod. & Bing. 217 at 220, per Burrough J. (‘I object to Brooks’ readings as authority. They were no more than lectures …’).

(113) Dore v. Gray (1788) 2 TR 359 at 365, per Buller J. (‘Callis's Readings … has always been admitted as good authority’).

(114) An early example is the opinion by Roger Manwood (c.1559/70) in the Folger Shakespeare Library, Washington, MS. X.d.143. I have not been able to find a clear sixteenth-century example in the British Library.

(115) The withdrawal into chambers was complained of at the time, as rendering counsel less accessible, but was felt to be necessary because of the increasing business of the

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Bar. It may have been directly responsible for the rise of common solicitors: The Legal Profession and the Common Law, 102.

(116) The expression ‘to take counsel's opinion’ seems to have entered common usage by the mid-eighteenth century: see, e.g., Le Neve v. Le Neve (1747) Amb. 436 at 441; Hervart v. Guis (1752) 1 Lee 160 at 165.

(117) Sometimes they were appended to a draft conveyance or pleading on which advice was sought: e.g. appendix G, no. 5 (will of 1627).

(118) Sir Robert Megarry recalls that Wilfrid Hunt, bencher of Lincoln's Inn, still wrote his opinions in this manner in the 1950s.

(119) Note, however, Brit. Lib. MSS. Hargrave 143–144 (two volumes of opinions of Beversham Filmer, 1744–58).

(120) e.g., opinions of the law officers, as found in (e.g.) Brit. Lib. MS. Hargrave 145 (Sir Edward Northey, att.-gen.); MS. Add. 22675 (Sir Thomas Pengelly, K.Sjt); MSS. Add. 36134–36144 (Sir Philip Yorke, sol.- and att.-gen.); H. E. Huntington Lib., MS. HM 220 (William de Grey, sol.-gen.); Harvard Law School MS. 1144 (admiralty, ecclesiastical and international law, 1862–86). See also Law Officers’ Opinions to the Foreign Office, ed. C. Parry (Farnborough, 1970–3), 97 volumes.

Also circulating in the profession were collections of opinions by the law officers and other counsel on particular topics in public law. For customs and excise matters see, e.g., Brit. Lib. MSS Hargrave 141, 222, 275, 293; manuscript offered for sale by Richard Hatchwell in 1992 (1671–83); Harvard Law School MS. 5018 (1672–1754); Brit. Lib. MSS Add. 11762–11763 (1673–); manuscript offered for sale by Peter Eaton in 1992 (1760–1865); Lincoln's Inn MS. Misc. 1020 (1884–1909). And see G. Chalmers (ed.), Opinions of Eminent Lawyers on Various Points of English Jurisprudence, chiefly concerning the Colonies, Fisheries and Commerce of Great Britain (1814; 2nd edn, 1858), two volumes.

(121) Unnumbered item in the W. A. Clark Library: Baker, English Legal Manuscripts in the U.S.A., vol. 2 (1990), 32, no. 251. They are supplemented by another group acquired in 1992 by Lambeth Palace Library (MS. 3476).

(122) Three were printed: Cases in Law and Equity, with the Opinions of eminent Counsel thereon, selected from the Papers of a Barrister at Law, lately deceased (1776); Cases, with Opinions of Eminent Counsel, in Matters of Law, Equity and Conveyancing: alphabetically arranged and digested under distinct heads (1791), two volumes; Chalmers, Opinions of Eminent Lawyers (1814), two volumes, cited in n. 120 above.

(123) e.g. constitutional questions: see appendix G, nos. 6, 8, 10; and the law officers’ opinions cited opposite, n. 120. For a revealing brief discussion of the law of sale, see appendix G, no. 9.

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(124) A. W. B. Simpson, Cannibalism and the Common Law (Chicago, 1984); In the Highest Degree Odious (Oxford, 1994); Leading Cases in the Common Law (Oxford, 1995). It is said that his technique is now known as ‘doing a Simpson’: K. O’Donovan and G. R. Rubin, introduction to Human Rights and Legal History: Essays in Honour of Brian Simpson (Oxford, 2000), 7 (where they refer to it with justice as ‘pathbreaking unorthodoxy’).

(125) Cf. M. Hale, preface to Rolle Abr. (1668), vol. 1, sig. b (‘It were to be wished that some compleat Corpus Juris Communis were extracted out of the many Books of our English Laws, for the publick use, and for the contracting of the Laws into a narrower compass and method, or at least for ordinary study. But this is a work of time, and requires many industrious and judicious Hands and Heads to assist in it’).

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