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Why the History of English Law has not been finished

Published online by Cambridge University Press:  01 March 2000

J.H. Baker*
Fellow of St Catharine's College, Cambridge
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A lightly revised version of the Inaugural Lecture given by Profesor J.H. Baker as Downing Professor of the Laws of England on 14 October 1998.

Copyright © Cambridge Law Journal and Contributors 2000

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Inaugural lecture delivered in the Law School on 14 October 1998. This version has been lightly amended.


1 Due note has been taken that the first of them, Thomas Starkie, K.C., was accused by one of his audience of beginning every subject “too near the creation of the world”: The Memoirs of Sir John Rolt (1939), p. 54Google Scholar, referring to his lectures in the Inner Temple (“Starkie was not happy as a lecturer. His learning was great, and he began the history of any subject he touched upon too near the creation of the world. But he was replete with sound legal principle.”). Since Rolt considered John Austin “practical and business-like” by comparison, this must have been meant as quite a severe criticism.

2 T.F.T. Plucknett, “Maitland's View of Law and History” (1951) 67 L.Q.R. 179-194, reprinted in Early English Legal Literature (Cambridge, 1958), at pp. 13-14, 17. But a Downing Professor, at least in his inaugural lecture, is obliged to address his own Faculty.

3 Cf. Elton, G.R., Maitland (1985), pp. 2224Google Scholar, on the importance of legal history for historians. Yet in practice legal history is seldom taught in History departments; and, as Professor Milsom has remarked, “few historians deal with the law on its own terms”: Milsom, S.F.C., introduction to Pollock and Maitland, History of English Law before the Reign of Edward 1 (Cambridge, 1968), vol. 1, p. xxivGoogle Scholar.

4 Reprinted in Fisher, H.A.L. (ed.), Collected Papers of Frederic William Maitland, Downing Professor of the Laws of England (Cambridge, 1911), Vol. 1, pp. 480497Google Scholar.

5 Cf. Plucknett, “Maitland's View of Law and History”, Early English Legal Literature, pp. 1-18; Milsom, S.F.C., “F. W. Maitland” (1980) 66 Proceedings of the British Academy 265281Google Scholar (reprinted in Studies in the History of the Common Law (1985), pp. 261-277).

6 See Fifoot, C.H.S., Frederic William Maitland: a life (Cambridge, Mass., 1971), pp. 9293Google Scholar. Fifoot attributed the English reception to Bishop Stubbs, who had opened the matter in his inaugural lecture at Oxford in 1867 and published his Select Charters in 1870. The institution of the Rolls Series in the 1860s had an important impact on medieval scholarship; and the years immediately before Maitland's lecture saw the foundation of the Pipe Roll Society (1884) and the Selden Society (1887), and the Domesday Commemoration (1886).

7 Fifoot, Life of Maitland, pp. 58-62. Maitland attributed this addiction to Vinogradoff, whom he met in 1884; but Plucknett pointed out that he was already at that date “puzzling out manuscripts”: Early English Legal Literature, pp. 8-10.

8 And, some would say, of English history in general: see G.R. Elton, F. W. Maitland (1985).

9 Cf. his letter to Ames, 6 May 1888, printed in C.H.S. Fifoot (ed.), The Letters of F. W. Maitland (Selden Soc. Suppl. Series, 1965), no. 39, at p. 41 (“I very much wish I could train up a few Cambridge men to use the Record Office; but they all believe that they are going to succeed at the Bar.”). He was at this time Reader in English Law.

10 As Plucknett commented, the lecture was partly about “Why the Selden Society cannot find editors”, and Plucknett emphatically rejected the supposition that trained lawyers were the best potential legal historians: Early English Legal Literature, pp. 11, 13-14.

11 Maitland was himself assisted by a briefless barrister, G.J. Turner, who went on to edit several volumes but was rather more dilatory than Bolland.

12 Bolland was recruited by Pollock on L.W.V. Harcourt's death in 1909, and from 1920 until his death in 1927 he received a stipend of £200 a year: Centenary Guide to the Publications of the Selden Society (1987), pp. 24-25.

13 Centenary Guide, p. 28; and for earlier women editors, mostly from the United States, see pp. 25-26.

14 Plucknett went so far as to deduce that Maitland was suffering from “acute depression” as a result of illness: Early English Legal Literature, p. 13. But cf. Milsom, introduction to Pollock, and Maitland, , History of English Law, vol. 1, p. xxiiiGoogle Scholar (“Each generation has produced its handful of scholars … And yet … our own great stores of evidence are largely neglected”).

15 Co. Litt. 11b. His distinctions, needless to say, are not akin to those drawn in this lecture.

16 See Judicial Records, Law Reports, and the Growth of Case Law (5 Comparative Studies in Continental and Anglo-American Legal History [CSC], Berlin, 1989); Wijffels, A. (ed.), Case Law in the Making (17 CSC, Berlin, 1997)Google Scholar.

17 Kiralfy, A.K.R., The Action on the Case (1949), p. 147Google Scholar; Baker, J.H., introduction to The Reports of Sir John Spelman, vol. 2 (94 Selden Soc., 1978), pp. 262, 265, 266, 269Google Scholar; Palmer, R.C., English Law in the Age of the Black Death 1348-1381 (Chapel Hill and London, 1993), pp. 142, 177, 182-183, 299Google Scholar. Nevertheless, only one judgment has been found in the rolls: Athelingflet v. Maydeston (1362) K.B. 27/408, m. 3d; Palmer, op. cit., p. 329.

18 Stepneth v. Lloyd (1598) Cro. Eliz. 647, 4 Co. Inst. 97, 12 Selden Soc. xxxix; A.K.R. Kiralfy, A Source Book of English Law (1957), p. 301.

19 Milsom, S.F.C., Historical Foundations of the Common Law, 2nd ed. (1981), pp. 6970, 333, 350-352Google Scholar; J.H. Baker, “New Light on Slade's Case” [1971] C.L.J. 51-67 (reprinted in The Legal Profession and the Common Law (1986), pp. 393-432); Introduction to English Legal History, 3rd ed. (1990), pp. 53-56, 391-393, 450, 482-483.

20 Now that the House of Lords considers itself free to depart from its own previous decisions, there is official sanction for the notion that there can be principles of the common law which run counter even to the highest judicial pronouncements.

21 Soon after the delivery of the lecture, this phenomenon was considered by Lord Browne-Wilkinson in Kleinwort Benson Ltd. v. Lincoln City Council (1998) Times, 30 Oct., p. 38 (“Much commercial and property activity [occurs] on the basis of law not laid down by judicial decision”).

22 B.P. Exploration Co. (Libya) Ltd. v. Hunt (No. 2) [1983] 2 A.C. 352. The academic treatment began with G.L. Williams, The Law Reform (Frustrated Contracts) Act 1943 (1944).

23 See J.H. Baker, “Records, Reports, and the Origins of Case-law in England”, in Judicial Records, Law Reports, and the Growth of Case Law, 5 C.S.C. 15-46.

24 Centenary Guide, pp. 33-41.

25 Curia Regis Rolls (H.M.S.O., 1922-1991), 17 volumes; Brand, P. (ed.), Curia Regis Rolls 27-30 Hen. III (Woodbridge, 1998)Google Scholar. In the lecture it was asserted that the series had been discontinued, but it is pleasing to correct this by noting the recent continuation by a private publisher; and another volume is believed to be nearing publication.

26 Vol. 1.

27 Vols. 100, 103; Vol. 101.

28 But see Vol. 114.

29 T. Mathew, 54 L.Q.R. 368, quoting Pollock C.B. Cf. Small v. Nairne (1849) 13 Q.B. 840, 844, per Lord Denman C.J.

30 The first such venture seems to have been the King's Bench Term Reports (1785-1800). Although Plowden and Coke put out some very recent reports, their published volumes were essentially selections from notebooks kept over many years.

31 From this should be excepted Plowden and Coke, who edited their own reports for the press; but very few other reporters did so.

32 For the printing of the year books, see J.H. Baker, “English Law Books and Legal Publishing, 1557-1695” in History of the Book in Britain, Vol. 4 (forthcoming).

33 Even the Selden Society editors have been guilty of this, since they silently edited out the criminal cases found in the Edward II reports, presumably as not fitting into their concept of a year book: see J.H. Baker, “Some Early Newgate Reports (1315-28)” in C. Stebbings (ed.), Law Reporting in England (1995), pp. 35-53.

34 For a fuller account of these projects and their prehistory, see “Editing the Sources of English Legal History 1800-1996” (1996) 37 Bulletin de la Commission Royale pour la publication des Anciennes Lois et Ordonnances de Belgique 71-85.

35 See Centenary Guide, pp. 19-22.

36 Ibid., p. 20 (1896).

37 Namely, one volume of Hen. VI (1422) and one of Edw. IV (1470) (Vols. 50, 47). See also M. Hemmant (ed.), Select Cases in the Exchequer Chamber before all the Justices of England, taken from the year books of Hen. VI to Hen. VII (Vols. 51, 64). The writer has ventured into the 16th century with an as yet unpublished edition of 12-14 Henry VIII. An experiment in producing a shorter interim edition of a year book is R.V. Rogers (ed.), Year Books 9-10 Henry V (1421-22) (privately printed, Würzburg, 1948), a slim volume with no translation or records.

38 “Unprinted Sources of English Legal History” (1971) 74 Law Library Jnl 302, 309. It is embarrassing to read, on the same page, the estimate that Edw. II might be finished by the year 2010; the Society no longer has any editors working on the year books of that reign.

39 Pollock, F. and Maitland, F.W., History of English Law before the Time of Edward I (1895), Vol. 1, p. xxxvGoogle Scholar.

40 The Selden Society began in 1954 with Mr. Yale's edition of Lord Nottingham's reports of Chancery cases, 1673-82 (Vols. 73, 79). More recently the society has published editions of Sir John Spelman's reports (Vols. 93-94), Sir John Port's autograph notebook (Vol. 102), Reports from the Lost Notebooks of Sir James Dyer (Vols. 109-110); and Reports of Cases by John Caryll, Part 1, 1485-1499 (Vol. 115). These reports were previously unpublished, apart from the later cases in Caryll (which are in Keil.).

41 See Baker, J.H., “The Dark Age of English Legal History, 1500-1700” in Jenkins, D. (ed.), Legal History Studies 1972 (Cardiff, 1975), pp. 127, 11-20Google Scholar (reprinted in The Legal Profession and the Common Law, pp. 446-457); D. Ibbetson, “Coventry's Reports” (1996) 16 J.L.H. 281-303.

42 A.W.B. Simpson, “The Reports of John Spelman” (1957) 72 L.Q.R. 334-338; J.H. Baker, “Uses and Wills” in 94 Selden Soc. 192-203.

43 For Coke's notebooks, see J.H. Baker, “Coke's Notebooks and the Sources of his Reports” [1972A] C.L.J. 59-86. For Dalison's reports, which are difficult to disentangle from Harpur's, see idem, “The Dark Age of English Legal History” (in The Legal Profession and the Common Law), pp. 449-450; Abbott, L.W., Law Reporting in England 1485-1585 (1973), pp. 104141Google Scholar.

44 There are a few earlier circuit notebooks of a different kind. See Baker, J.H., Reports from the lost Notebooks of Sir James Dyer, Vol. 1 (109 Selden Soc., 1993), pp. xciixcviGoogle Scholar; Vol. 2 (110 Selden Soc., 1994), pp. 400-469.

45 Oldham, J., The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill and London, 1992)Google Scholar. Note also the more revealing circuit diary of Ryder C.J. (1754-56): Langbein, J.H., “Shaping the 18th Century Criminal Trial: a view from the Ryder sources” (1983) 50 Univ. Chi. Law Rev. 1136Google Scholar. Ward C.B.'s earlier but considerably thinner circuit diary (1695-1714) is in Lincoln's Inn, MS. Misc. 582.

46 Examples of cause papers, including “paper books” (draft pleadings) and notes for judgments, are Lincoln's Inn, MS. Misc. 510-530 (Ward C.B., 1674-1714); Yale University Library, Osborn shelves, Lee boxes (Lee C.J., 1730-54); Lincoln's Inn, Dampier MS. 1 (Ashhurst J., 1769-85); MS. 2 (Buller J., 1778-96); MS. 3 (Lawrence J., 1794-1801); MS. 4 (Dampier J., 1803-06).

47 For the large quantity of reports of trials after 1660, in pamphlet form, see Beattie, J., Crime and the Courts in England (1986), pp. 2325, 649-651Google Scholar; T.P. Gallanis, “Review Article” (1998) 19 J.L.H. 84-87. For the Old Bailey Sessions Papers, see J.H. Langbein, “The Criminal Trial before the Lawyers” (1978) 45 Univ. Chi. Law Rev. 263, 264-267. For earlier evidence in the form of chapbooks, see Langbein, J.H., Prosecuting Crime in the Renaissance (1974), pp. 4555Google Scholar.

48 See Simpson, A.W.B., Leading Cases in the Common Law (Oxford, 1995)Google Scholar; and also his Cannibalism and the Common Law (Chicago, 1984)Google Scholar.

49 See R. v. Wilkes (1770) 4 Burr. 2527, 2566, per Lord Mansfield C.J. (“Matters of practice are not to be known from books. What passes at a judge's chambers is matter of tradition: it rests in memory”).

50 In uncovering the secrets, we are heavily reliant on the private notebooks of prominent judges: see Baker, “Coke's Notebooks” (in The Legal Profession and the Common Law), pp. 201-203; Reports from the lost Notebooks of Sir James Dyer, vol. 1, introduction, pp. xliv-lxxxv.

51 An obvious example is the origin of the trust, in its post-1535 form. This cannot be traced from the law reports; but Dr N.G. Jones has shown how it can be reconstructed from the Chancery records and surviving deeds.

52 Simpson, , Leading Cases in the Common Law, pp. 1344Google Scholar.

53 For what follows, see J.H. Baker, “English Law and the Renaissance” [1985] C.L.J. 46-61 (reprinted in The Legal Profession and the Common Law, pp. 461-476).

54 Professor Milsom has referred to “the difficulty of getting answers from the Year Books, and the extraordinarily hesitant and oblique way in which fundamental questions are treated in them”: S.F.C. Milsom, “Law and Fact in Legal Development” (1967), reprinted in Studies in the History of the Common Law, at p. 189.

55 For the ownership and circulation of year-book manuscripts, see A.W.B. Simpson, “The Circulation of Yearbooks in the Fifteenth Century” (1957) 73 L.Q.R. 492-505; Baker, J.H., “Books of the Common Law, 1400-1557” in History of the Book in Britain, Vol. 3 (Cambridge, 1999)Google Scholar.

56 For Doige's Case (1442) and Lord Dacre's Case (1535) see Baker, J.H. and Milsom, S.F.C., Sources of English Legal History: private law to 1750 (1986), pp. 391, 105Google Scholar.

57 Fortescue, J., De Laudibus Legum Anglie, ed. Chrimes, S.B. (Cambridge, 1942), p. 114, line 27Google Scholar.

58 “Law and Fact in Legal Development”, in Studies in the History of the Common Law, pp. 176-179, 188-189, where there is an illuminating discussion of the legal consequences of lawyers thinking “off the record” and of legal thought outstripping the legal forms.

59 See, e.g., Green, T.A., Verdict according to Conscience (Chicago, 1985)Google Scholar.

60 See Oldham, J.C., “The Origins of the Special Jury” (1983) 50 Univ. Chi. Law Rev. 137221Google Scholar.

61 In some instances, the immediate source of a common-law idea was a local custom, especially a custom of London. Many apparent legal inventions were “just early appearances in royal courts of claims familiar elsewhere”: S.F.C. Milsom, “Reason in the Development of the Common Law”, in Studies in the History of the Common Law, p. 164.

62 Hulcote v. Ingleton (1493) Caryll's reports, 115 Selden Soc. 138, 139.

63 By 1500 the number of inns of chancery had settled at nine; but there were earlier inns which came and went.

64 For the educational system in its heyday, see Baker, J.H., intro. to Readings and Moots at the Inns of Court in the Fifteenth Century, Vol. 2 (105 Selden Soc., 1989)Google Scholar; The Third University of England: the inns of court and the common law tradition (Selden Soc. lecture, 1990); intro. to Spelman's Reading on Quo Warranto (114 Selden Soc., 1997).

65 Maitland, of course, did see it, though he did not have time to pursue it: see, e.g., “Why the History of English Law has not been Written”, Collected Papers, Vol. 1, at p. 488; English Law and the Renaissance (Cambridge, 1901), p. 25. Until recently, however, the received view was that the inns began merely as lodgings and did not assume academic functions until the 15th century: S.E. Thorne, “The Early History of the Inns of Court” (1959) 50 Graya 79-96 (reprinted in Essays in English Legal History, pp. 137-154).

66 See Brand, P., “Courtroom and Schoolroom: The Education of Lawyers in England prior to 1400” (1987) 60 Historical Research 147165Google Scholar; “The Beginnings of English Law Reporting” in C. Stebbings (ed.), Law Reporting in Britain (1995), pp. 1-14.

67 An extreme example is provided by James Hales’ reading in Gray's Inn (1537) on costs (23 Hen. VIII, c. 15), which includes a substantive account of the various personal actions mentioned in the statute, including actions on the case: Brit. Lib. MS. Hargrave 92, fo. 37v; translated in Baker & Milsom, Sources of English Legal History, pp. 345-351.

68 94 Selden Soc. 299-346; “The Refinement of English Criminal Jurisprudence, 1500-1848” in The Legal Profession and the Common Law, pp. 303-324.

69 To become a serjeant it was necessary in practice to have been a reader. On taking the coif, serjeants were required to leave their inns of court; but they retained close links with them.

70 The bibliography of readings which is being prepared for the Selden Society contains just over 2,000 items. Many of the later items are not texts of lectures as such, but notes of the readers’ cases—the examples used to illustrate the lectures and to provide a basis for disputation.

71 Note, however, that an anonymous Elizabethan writer urged that the readings be published, “to th'end that studentes might be resolved in doubtfull pointes of the lawe”: Brit. Lib., MS. Harley 4317, fo. 4.

72 As long ago as 1928, Holdsworth called for the publication of more readings, if they could be discovered; but he regarded them merely as “the best of commentaries on the Year Books and the early Reports”: Some Lessons from our Legal History (1928), p. 167, n. 4. He assumed the common law had always been case—law, augmented by “books of authority” and statutes: “The Importance of our Legal History” (a lecture delivered at Northwestern University), ibid., pp. 3-54.

73 Thorne, S.E. (ed.), Prerogativa Regis: tertia lectura Roberti Constable de Lyncolnis Inne anno 11 H. 7 (New Haven, 1949)Google Scholar; Readings and Moots at the Inns of Court in the Fifteenth Century, Vol. 1 (71 Selden Soc., 1952)Google Scholar. There are also some extracts from readings, and some readers’ cases, from the 15th century in J.H. Baker (ed.), Spelman's Reports (93 Selden Soc.), Port's Notebook (102 Selden Soc.), Readings and Moots, Vol. 2 (105 Selden Soc.), and Spelman's Reading (113 Selden Soc., appendix to the introduction).

74 Both are from the early 16th century: Putnam, B.H. (ed.), “Prima Lectura Magistri Thome Marowe”, in Early Treatises on the Practice of the Justices of the Peace (Oxford, 1924), pp. 286414Google Scholar (Inner Temple, 1505); J.H. Baker (ed.), John Spelman's Reading on Quo Warranto delivered in Gray's Inn (Lent 1519) (113 Selden Soc., 1997). For use of a 17th-century reading (Francis Moore's 1607 reading on charitable uses), see Jones, G.H., History of the Modern Law of Charity 1532-1827 (Cambridge, 1969)Google Scholar.

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