English Law and the Renaissance / The Rede Lecture for 1901

by Frederic William Maitland

[49] The cessation of the Year Books in 1535 at the moment when the Henrician Terror is at its height is dramatically appropriate. A great deal, however, has yet to be done before the relevant facts will be fully known. Mr C. C. Soule’s Year-Book Bibliography, printed in Harvard Law Review, vol. XIV., p. 557, is of high importance. If by ‘the Year Books’ we mean a series of books that have been printed, then the Year Books become intermittent some time before they cease. The first eleven years of Henry VIII are unrepresented, and there are gaps between years 14 and 18 and between 19 and 26. It remains to be seen whether there are MSS. more complete than the printed series. Then we have on our hands the question raised by what Plowden says in the Preface to his Commentaries touching the existence of official reporters. Plowden says that he began to study the law in 30 Hen. VIII, and that he had heard say that in ancient times there were four reporters paid by the king. His words make it clear that the official reporters, if they ever existed, came to an end some considerable time before 30 Hen. VIII. The question whether they ever existed cannot be raised here. Mr Pike’s investigations have not, so I think, tended to bear out the tale that Plowden had heard; and if the king paid stipends to the reporters, some proof of this should be forthcoming among the financial records. The evidence of Francis Bacon is of later date and looks like a mere repetition of what Plowden said (Bacon, Amendment of the Law; Spedding, Life and Letters, vol. V., p. 86).

Decline of law reports.

But, be all this as it may, the fact seems clear that the ancient practice of law reporting passed through a grave crisis in the sixteenth century. We know the reign of Edward IV and even that of Edward II better than we know that of Edward VI. The zeal with which Tottell from 1553 onwards was printing old reports makes the dearth of modern reports the more apparent. Then Plowden expressly says that he reported ‘for my private instruction only,’ and Dyer’s Reports (which comprise some cases too early to have been reported by him) were posthumously published. The total mass of matter from the first half of the century that we obtain under the names of Broke, Benloe, Dalison, Keilwey, Moore and Anderson is by no means large, and in many cases its quality will not bear comparison with that of the Year Books of Edward IV. (J. W. Wallace, The Reporters, ed. 4, Boston, 1882, is an invaluable guide; see also V. V. Veeder, The English Reports, in Harvard Law Review, vol. XV., p. 1.)

Burke on law reports.

[50] Burke, Report from Committee appointed to inspect the Lords’ Journals: ‘To give judgment privately is to put an end to reports; and to put an end to reports is to put an end to the law of England.’

The Students’ petition in 1547.

[51] Acts of the Privy Council, 1547-1550, pp. 48-50. Petition of divers students of the common laws to the Lord Protector and the Privy Council: ‘Pleasith it your honorable Lordships to call to your remembrance that whereas the Imperial Crowne of this realme of Inglande and the hole estate of the same have been alwayes from the beginning a Reame Imperial, having a lawe of itself called the Commen Lawes of the realme of Inglande, by which Lawe the Kinges of the same have as Imperial Governours thereof ruled and governed the people and subjectes in suche sorte as the like thereof hath nat been seen in any other.… So it is, if it like your good Lordships, that now of late this Commen Lawes of this realme, partely by Injunctions, aswel before verdictes, jugementes and execucions as after, and partly by writtes of Sub Pena issuing owte of the Kinges Courte of Chauncery, hath nat been only stayed of their directe course, but also many times altrid and violated by reason of Decrees made in the saide Courte of Chauncery, most grounded upon the lawe civile and apon matter depending in the conscience and discrecion of the hearers thereof, who being Civilians and nat lerned in the Comen Lawes, setting aside the saide Commen Lawes, determyne the waighty causes of this realme according either to the saide Lawe Civile or to their owne conscience; which Lawe Civile is to the subjectes of this realme unknowne, and they nat bounden ne inheritable to the same lawe, and which Jugementes and Decrees grownded apon conscience ar nat grounded ne made apon any rule certeine or lawe written.…

Incroachment of the civil law.

And for a more amplyfyeng and inlarging of the jurisdiction of the saide Courte of Chauncery and derogacion of the saide Comen Lawes there is of late a Commission made contrary to the saide Commen Lawes unto certaine persones, the more part whereof be Civilians nat learned in the saide Lawes of this realme, autorising them to heare and determyne all matters and cawses exhibited into the saide Courte of Chauncery, by occasion whereof the matters there do daily more and more increase, insomuch as very fewe matters be now depending at the Comen Lawes.… And by reason thereof there hath of late growne such a discourage unto the studentes of the saide Commen Lawes, and the said Commen Lawes have been of late so little estemed and had in experience, that fewe have or do regarde to take paynes of the profownde and sincere knolege of the same Lawe, by reason whereof there ar now very few, and it is to be doubted that within fewe yeares there shall nat be sufficient of lerned men within this realme to serve the king in that facultie. It therfore may please your honorable Lordships to make suche speady reformacion in the premisses as unto your Lordships shall seem moste mete and convenient.’

Civilians as judges.