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 Page 1 of 27 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 lawyers who rely for their legal information solely on the records and reports of goings on in court. In the remaining lecture I shall be considering 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. To some extent, of course, the unwritten assumptions of previous ages are beyond clear proof by direct evidence. Yet all is not lost. There are various sources of law besides the law reports and statutes which may come to the aid of historians. 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 Page 2 of 27 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 on covenants made informally, or that the men of Ipswich are always liable for defamation, but that actions of covenant may be brought in London or Hereford without producing a deed, or that defamation actions may be brought in the borough court of Ipswich. They did not therefore affect the administration of justice in the central courts, except to the extent of protecting local judgments against writs of error. Londoners and men of Hereford were treated at Westminster like everyone else; local law was kept geographically in its place. Yet the central courts had little difficulty accommodating customs of this kind;7 and it is clear that some well-known customs—including those of the kind just mentioned—preceded a more general remedy at common law. 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 Page 3 of 27 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).