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of false judgment to produce a record of a given transaction; but this record may be disputed-the doomsmen who have brought up the record may even, in early times, be compelled to fight in its defence.1 It is the infallibility of its formal record which is the earliest mark of a court of record. But gradually the court of record developed other characteristics. Its record was kept upon a parchment roll. The method of questioning its decisions was a writ of error, while the method of questioning the decisions of courts not of record was a writ of false judgment. It alone could fine and imprison; and this characteristic, which was perhaps one of the latest to be developed, is its most important characteristic at the present day.1

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It is clear that courts which possessed these characteristics had many advantages. In the Middle Ages the common lawyers found that they gave both to their central courts and to other royal courts, considerable assistance in their struggle with competing local jurisdictions. Therefore they dwelt upon and elaborated them, and thus made the distinction between a court of record and a court not of record a technical distinction. And, as often happened in the fourteenth and fifteenth centuries, the lawyers, without altogether losing sight of the fundamental principle upon which the technical distinction was based," tended to lay most stress upon the manner of keeping the record and upon the other consequences which the status of a court of record

waged a record was kept of this per assisam domini regis, ibid; "item recordum habet comitatus de pledgiis vel plagis datis et receptis in ipso comitatu vel similibus," ibid viii 10.

1 1 P. and M. ii 664, 666, 667; this was not so in Glanvil's day; the suitors might be compelled to fight in defence of the judgment of the court, but not in defence of the correctness of its record, Glanvil viii 8; vol. i 308; but apparently the records of these local courts would, if certified under the Great Seal, become true records, Y.B. 6, 7 Ed. II. (S.S.) xxv-xxvii.

2 P. and M. ii 664, 665; Co. Litt. 117b.

3 Below 159 n. 3.

4 Halsbury's Laws of England, Courts, pp. 9, 10.

5 That other royal courts, besides the central courts of common law, were regarded as courts of record is clear from Y.B. 10 Hy. VI. Mich. pl. 22; in that case a court leet was considered to be a court of record; but Coke, in Godfrey's case (1615) II Co. Rep. at p. 43b drew a further distinction between courts, like the central courts of common law, which could both fine and imprison, and courts, like courts leet, which could fine but not imprison; and he laid it down that the true court of record must be able both to fine and imprison; I have not been able to find any authority for this, see below 159 n. 3; and Prof. Hearnshaw, Leet Jurisdiction in England 134, thinks that Coke was the first to lay it down that the leet could not imprison; Coke's view does not seem quite consistent with his statement in Co. Litt. 117b where he says that, "Every court of record is the king's court albeit another may have the profit"; the court leet was the king's court of which another had the profit, vol. i. 134-137.

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6 Thus Coke, Second Instit. 71 says, "It is called a record, for that it recordeth or beareth witness of the truth. It hath this sovereign privilege that it is proved by no other but by itself”—the infallibility of the king is communicated to the records of his court.

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had come to involve. Thus the Termes de la Ley defines a court of record simply by reference to the formal characteristics of its records; a Year Book of Henry VI.'s reign emphasizes the fact that unless a court is a court of record no writ of error lay to correct the mistakes which it has made; 2 and Coke deduced from certain vague dicta in the Year Books as to the powers of courts of record the new rule that it was only a court of record which could fine and imprison.3 As we have seen, the Doctor and Student attached another and a more important consequence to the possession by a court of a formal record. Unless it had such a record the law laid down by it could not be considered as a part or a ground of the law of England.

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Now it was only the courts of common law, or other royal courts which proceeded in accordance with the rules of the common law, which kept a formal Latin record enrolled on parchment. It followed that all the newer courts which the common lawyers regarded as their rivals—the Council, the Star Chamber, the Chancery acting as a court of equity, the Admiralty, the ecclesiastical courts-were not courts of record. And, if Coke's view that only a court of record could fine or imprison was correct, these courts had no legal right to exercise such powers." Coke's view was obviously designed to cripple these rival courts; 7

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1" Record est un Escript en Parchment, ou sont enroll Pleas de Terre, ou Common Pleas, Faits, ou Criminal Proceedings en ascun Court de Record; mes en Courts nient de Record come Admiraltie, Courts Christian, Courts Baron, etc., lour Registrie de Procedure ne sont proprement dits Records: Mes courts de Ley teign per Grant del Roy sont Courts de Record," Termes de la Ley sub voc. Record.

2 Y.B. 37 Hy. VI. Hil. pl. 3 (p. 14), Prisot said, "Il est a voir al queux choses en Chancery on convient respondre illonques, issint que on poit avoir breve d'Error, et en queux nemy: Sir, en touts ples devant eux sur Patents, ples en Det, et hujusmodi, perentre eux del Place, la on avoit brief d'Error .. mes en user des breves del Subpona il n'est court de Record en eux cases, car il est forsque d'examiner le conscience."

3 Coke makes a great point of this in Beecher's Case (1609) 8 Co. Rep. at p. 6ob; and in Godfrey's Case (1615) 11 Co. Rep. at p. 43b; it seems to me that, with regard to the power to fine, he had a certain amount of authority in dicta such as those contained in Y.BB. 7 Hy. VI. Mich. pl. 17, and 10 Hy. VI. Mich. pl. 22 per Candish; and in F.N.B. 73 D; but the dicta are not very explicit, and the court is clearly thinking primarily of the distinction between an amercement which is affeered by the suitors, and a fine which is assessed by the judge, and not of a distinction between a court of record and a court not of record; it seems to me that Coke used these cases to give, if not a wholly new meaning to the latter distinction (see Y.B. 10 Hy. VI. Mich. pl. 22 per Newton) at least a new emphasis to it; with regard to the power to imprison the conclusion is contradicted by Y.B. 37 Hy. VI. Hil. pl. 3 (p. 14) where Prisot distinctly says that the court of Chancery, though not a court of record when acting as a court of equity, has this power; for other similar misstatements of Coke made with a view of magnifying the powers of the common law courts see below 431-432, 476-478. 4 Vol. iv 282 n. 4.

5 Coke, Second Instit. 71; Fourth Instit. 135; Godfrey's Case (1615) II Co. Rep. 44a.

6 As to the correctness of this view see above n. 3.

7 On the passage in Godfrey's Case (1615) 11 Co. Rep. 44a, in which he denies that the Ecclesiastical courts are courts of record, the writer of the Observations on Coke's Reports (for this work see below 478 n. 1) at p. 6, justly remarks that the point did not

and in Floyd and Barker's Case he further strengthened the position of the common law courts by deducing from their status of courts of record the consequence that their judges could not be questioned for anything which they did by the court of Star Chamber,1 It is clear that he was exaggerating this technical distinction in order to use it as one of the foundations of his arguments for the supremacy of the common law,2 and as a means to depress such rival courts as the court of Admiralty, and the ecclesiastical courts. Thus for political reasons the distinction gained an importance for which, historically, there was no warrant; and though these political reasons for its importance disappeared after the seventeenth century, it remained as technical distinction between courts. It still exists; but at the present day it is of little practical importance.3

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During this period Coke's views had little or no effect. The power to fine and imprison was habitually exercised by the Council, Star Chamber, Chancery, Admiralty, and High Commission. Indeed this power was absolutely essential to their efficiency, and, historically, was abundantly justified. They were just as much royal courts as the courts of common law—as we have seen, during the greater part of the fourteenth century, King's Bench and Council were intimately related; and the Council could control the proceedings of the King's Bench. In this period, indeed, the relations of these courts with the crown were a good deal more intimate than those of the courts of common law; so that they obviously came well within the original principle which had given to the courts of common law their superior status of courts of record. It is true that they did not comply with the later technical tests of that status. But their organization and procedure were almost as definite and settled as the organization and procedure of the courts of common law; and, though they kept no Latin records enrolled on parchment, they kept formal English records of a more adequate kind than

arise for decision, and that his words, "extend not only to the Bishops' Courts, but to the High Commission, the Provincial Councils, the Admiralty, the Court of Requests, and the authority of the Council Table itself.”

1(1608) 12 Co. Rep. at p. 25, "Insomuch as the judges of the realm have the administration of justice under the king to all his subjects, they ought not to be drawn into question for any supposed corruption which extends to the annihilating of a record or of any judicial proceeding before them except it be before the king himself; for they are only to make account to God and the king, and not to answer to any suggestion in the Star Chamber."

2 Below 428-433, 439-440.

3" Wherever desirable courts have been made courts of record by statute," see Halsbury's Laws of England, Courts 10 n. (m); for the statutes making the Admiralty a court of record see vol. i 547, 558-559.

4 Ibid 209-210.

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those of the common law courts.1 The absurdity of making the possession by a court of a Latin plea roll the crucial test of its possession of the status of a court of record was justly and forcibly pointed out by Shower in his argument in Rex v. Berchet.2 We have seen that in the course of the fourteenth and fifteenth centuries the Council tended to make more use of the writs and processes of the Privy Seal, and less use of the writs and processes of the Chancery, because the former were less formal, more expeditious, and more secret than the latter. We have seen that for this reason the former were used by the Council in criminal or semi-criminal cases, while the latter were used in civil cases; and that this difference in process had a large influence upon the separation of the jurisdiction of the Council from that of the Chancery. But the process of the Privy Seal had the defects of its qualities. The records of the office of the Privy Seal were carelessly kept.5 It was not until the time of the Tudors that they were collected into bundles; and the tradition of carelessness remained. Hudson tells us that at the beginning of the seventeenth century, the carelessness with which the records of the court were kept, and their informality, were leading many to the conclusion that the court was "rather a committee for such great causes as it pleased the king than a court of ordinary justice."7 But he points out that the court was careful to correct "the neglect of convenient form in him which complaineth;" and that the existing carelessness both in the custody and in the writing of the records of the court was of recent date, and was due partly to the age of Mills the clerk of the court, and, after his time, to the practice of entrusting the office to inexperienced deputies. However that may be, the

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1 For the inadequacy of the formal record as an account of the most material parts of the trial see vol. i 215-216, 317.

2 (1691) 1 Shower at pp. 119, 120-"Some will have the Star Chamber no Court of Record, because their proceedings are in English. But if that were an objection, then all the ancient Parliament Rolls and Acts of Parliament before Henry the Sixth which are mostly enrolled in French, not in Latin, and many charters, writs, and commissions enrolled in French; and the statutes since the first of Henry the Sixth, must be no records."

3 Vol. i 407-408; Baldwin, The King's Council 254-261.

4 Vol. i 407-408.

5" Characteristically of the methods of this office these [records] were briefly written, sparing of parchment, showing no sign of arrangement or care for their preservation," Baldwin, op. cit. 263.

6 Ibid.

7 A Treatise on the Court of Star Chamber, Collect. Jurid. ii 5.

8 Ibid 6; this is borne out by Hawarde, Les Reports, etc., see e.g. pp. 46, 54, 61,

82, 91.

9 Hudson, op. cit. 6, 7—" This negligence hath crept into the court of very late time, either in Mr. Mills' age, or since the office hath been executed by many deputies, one being thrust out by that time he understandeth the duties of the place, and another put in altogether unexperienced; yet in former times the judgments

VOL. V.-II

records of the court were allowed to remain in a state of chaos till our own days. In spite of recent efforts to sort and calendar the records, papers belonging to different cases and different reigns have been found together. Leadam tells us that "isolated papers belonging to suits of the period of Henry VII. are found sorted and indexed as parts of suits belonging to that of Henry VIII." 1 And, as he says, "confusion is by no means the most deplorable incident in the history of these records." The whole of the decrees of the Star Chamber have disappeared; 3 and that means that we have lost the whole of the first hand evidence as to the judgments given by the court, and the only means of checking the accuracy of contemporary reports of its proceedings. At the same time the Calendars prepared by the record office enable us to see the kind of cases which from time to time came before the court; and the records of the earlier part of this period, published by Leadam, enable us to form some conclusions as to its procedure and as to the law which it administered. A useful supplement to the records is to be found in the collection of forms of pleading for use by suitors in the court published by William West in his Symboleography."

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The loss of the decrees of the court is to some extent remedied by the contemporary reports of its proceedings. As in the case of the courts of common law, so in the case of the courts of Star Chamber and Chancery, the lawyers found it necessary to make reports of their proceedings for themselves. And, as is the case with the reports of cases in the common law courts, these reports often tell us a great deal more about the law administered by the court, and the principles upon which it was based, than the formal record. The existence of these reports of the proceedings of the Star Chamber and the Chancery shows more clearly than anything else the barrenness of the distinction drawn by the courts of common law between courts of record and courts not of record. The fact that these courts were royal courts, of at least as great importance as the courts of common law is decisively proved by the need which the lawyers found

before the king and his council were kept in such care, and remain in such order, as no records of the kingdom are of more use than those remaining in the Tower of London." 2 Ibid.

1 Select Cases in the Star Chamber (S.S.) i xi. 3 Ibid; in 1719 a committee of the House of Lords reported that "the last notice of them that could be got was that they were in a house in St. Bartholemew's Close, London."

For these calendars see the 49th Rep. of the Deputy Keeper of the Public Records 376-377; and for a calendar of a large number of cases of Henry VIII.'s reign see ibid 377-594; Les Reportes, etc. Introd. lii.

5(Ed. 1618) Pt. II. 337-350b; see ibid 311-336b for similar precedents for the Court of Wards and Liveries; for William West and his book see below 273-274, 389-390.

6 Vol. ii 536-541.

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