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reason the contents of the rules of equity, and therefore the relation of equity to the law, continued to depend to a considerable extent upon the conscience of the chancellor. We can only see the remote beginnings of the causes which will, by settling the contents of these rules, make the court only technically a court of conscience; and, in these last days, enable a judge of the Chancery Division of the High Court to deny that it is in any sense a court of this character.1

In the chapter in which the history of the enacted law of this period is described, we saw that the political, economic, religious, and social changes of this period had necessitated large changes in and additions to the statute law. But these statutes necessarily left much scope to the courts which were entrusted with their enforcement and interpretation; and they did not cover by any means the whole ground. In this and the preceding chapter we have been chiefly concerned with the manner in which the courts, whose jurisdiction lay outside the sphere of the common law, seconded the legislature in the work of adapting the law of the state to the new conditions. We have seen that the courts and the lawyers administering the civil law helped to introduce English law to the new international law, and to improve both legal literature and legal theory; that both these courts and all the other courts of the state took a share in the foundation of some of the principles of our modern maritime and commercial law; that the Council and Star Chamber gave material assistance to the legislature in its efforts to improve the criminal law; and that the court of Chancery gave a legal recognition to many new social relations and business transactions which the strict rules of law could not or would not give. As a result we see, growing up by the side of the common law, new and rival bodies of law, and new and rival bodies of legal literature. But, during the latter part of the sixteenth and the beginning of the seventeenth centuries, there was a marked revival of the common law, and a consequent tendency on the part of the common lawyers to contest the claims of these rival courts to the spheres of jurisdiction which they had occupied. None of these spheres of jurisdiction was quite precisely defined; so that both the conflicting claims of these rival courts, and more especially the claims of the common law courts, provoked furious controversies in the English legal system. The revival and development of the common law, and the controversies to which they gave rise, are the subjects of the following chapter.

1"This court is not a court of conscience," per Buckley J. in re Telescriptor Syndicate [1903] 2 Ch. at pp. 195-196.

CHAPTER V

ENGLISH LAW IN THE SIXTEENTH AND EARLY SEVENTEENTH CENTURIES (Continued)

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THE DEVELOPMENT OF THE COMMON Law

N this chapter I shall, in the first place, give an account of the development of the common law during this period; and, in the second place, describe the relation of the common law to its rivals. With this second topic the name of Edward Coke must be coupled. His literary work and his judicial and political career were the decisive factors in settling permanently the nature of that relation, and thus give him a claim to be considered the central figure in English legal history.

I. THE DEVELOPMENT OF THE COMMON LAW Something has already been said of the conditions under which the common law was being developed. We have seen that the professional training given by the Inns of Court was so thorough that it enabled the common lawyers, not only to hold their own, but also to influence the development of the new bodies of law which were growing up in those rival jurisdictions which have just been described.1 On the other hand we have seen that the law administered in these rival jurisdictions influenced the common law. The new ideas thus introduced into the law tended to emancipate the common lawyers from that rigid technicality which had characterized their work in the fifteenth century, and to make them ready to expand their system in many different directions. Thus we have seen that the law administered in the Star Chamber and the Chancery was influenced by the common law, and conversely that the new ideas and principles applied in those courts influenced the common law; and that even in the Admiralty and Ecclesiastical jurisdictions, where the law administered depended mainly on the civil and canon law, this reciprocal influence exercised a smaller but still an appreciable effect. We have seen that the common law began to apply some of those rules of the Law 3 Above 188-196, 300-302, 321-322.

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1 Vol. iv 270-272. 2 Vol. ii 588-591.

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Merchant which had come through the Admiralty;1 and that the enforcement both of the statutes upon which the Reformation settlement depended, and of other statutes upon ecclesiastical matters, introduced a good many topics of ecclesiastical law to the notice of the common lawyers.' On the other hand, the practitioners in the court of Admiralty and the ecclesiastical courts were always obliged to keep before their minds those statutes and rules of the common law which created or defined or limited their jurisdiction. Moreover, we have seen that the legislature had added new branches to the common law, and had increased the complexity of some of its existing branches.* Under these various influences the common law all through this period, maintained a vigorous life and a continuous growth. The vigour of that life and growth increased, with the increase of the prosperity of the country, in the latter part of the sixteenth century; and it was well maintained during the first half of the seventeenth century.

In this section I propose to give some account of the manner in which this life and growth of the common law was fostered by the common lawyers during this period, and to summarize the results of their work upon the law itself. The subject will fall under the following heads :-The Serjeants and the Judges; The Reporters; The Literature of the Common Law; The Condition of the Common Law.

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The Serjeants and the Judges

During the earlier part of this period the Serjeants and the Judges continued to be the recognized heads of the legal profession; and we have seen that the memory of the old order lived on in the rule, which was not repealed till the Judicature Act of 1873, that the degree of Serjeant was a condition precedent to a seat on the bench." But, from the middle of the sixteenth century, there are signs of a change in the position of the Serjeants. Though the degree of Serjeant was still a condition precedent for a seat on the bench, it was beginning to be conferred merely as a formal preliminary to a judicial appointment.

2 Vol. iv 488-492.

1 Above 143-148. 3 Above 21, 143; thus James Whitelocke (the future judge of the King's Bench) tells us that at Oxford he " began to joyne the study of the common law withe the civill, being encoraged mutche thearunto by a book set out by dr. Cosins, the dean of the arches, intituled, 'An apologye of the ecclesiastical proceedings,' in whiche I saw how great use he made of his knoledge of the common law to upholde the authority of his owne profession, and to direct others of his place," Liber Famelicus (C.S.) 14.

4 Vol. iv Chap. ii.

5 For the earlier history of the Serjeants see vol. ii 485-492. 6 Vol. i 197; 36, 37 Victoria c. 66 § 8.

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As early as 1545 Chief Baron Lyster was made a Serjeant, and, on the same day, Chief Justice of the King's Bench;1 and in 1555 there is another instance of the same kind. By the end of the sixteenth and the beginning of the seventeenth century it would seem that this was a recognized practice. In 1799 the fact that it was only possible to create a Serjeant in term time was found to cause some inconvenience when it was desirable to fill up a vacancy immediately; and so it was enacted that the king could for this reason create a Serjeant in the vacation, a power extended to the creation of a Serjeant for any other reason in 1826.5 That the practice had come to be recognized at the beginning of the seventeenth century was no doubt due to the fact that it was then becoming customary to raise the Attorney and Solicitor-General to the bench. These offices could not be held by a Serjeant, and their acceptance by a Serjeant involved the resignation of his degree." The fact, too, that these law officers of the crown were beginning to be regarded as the leaders of the Bar tended further to diminish the importance of the Serjeants; and this tendency was strengthened by the rise at the end of this period of the new order of King's Counsel,R We shall see that in the following period these causes entirely altered the position of the Serjeants in the legal profession, and that they were not without some influence, both upon the composition of the Bench, and upon the older system of legal education.9 As yet, however, these causes were only beginning to operate. The change from the old ordering of the legal profession to the new was as yet hardly perceptible.

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As in the preceding period, most of the Serjeants and the Judges lived very similar lives. They continued to be somewhat of a close body; and, though in no way an hereditary caste, they naturally intermarried and brought up their children to their own profession. In the lists of judges and distinguished lawyers we find certain names constantly recurring. Some are well known outside the sphere of merely legal history. Roper 10 has told us how Sir

1Wriothesley's Chronicle (C.S.) i 161-162; Foss's statement, Judges v 526, that the earliest instance in which this occurred was 1574 cannot be supported. 2 Dasent v 138.

3 Egerton in 1603 wrote to James I.-" I thynke yt not amysse to put you in remembrance that the late Queene, consideringe that most of the Judges are aged, and the Serjeantes at Lawe now servinge at the barre not so sufficynt to supplye judiciall places as were to be wyshed, (ne quid dicam durius,) made choyse of certen persons of great learninge and sufficiencye fitte to be called to that degree," Egerton Papers (C.S.) 372; see Whitelocke's account of his own creation preparatory to his being made chief justice of Chester, Liber Fam. (C.S.) 77-84.

39 George III. c. 113; Foss, Judges viii 200.

56 George IV. c. 95; Foss, Judges ix 8.

6 Vol. vi c. 8; Foss, Judges vi 32.

8 Ibid.

10 Life of Sir Thomas More.

7 Vol. vi c. 8.

9 Ibid.

Thomas More "whensoever he passed through Westminster Hall to his place in the Chancery by the court of King's Bench, if his father, one of the judges there, had been set ere he came, he would go into the same court, and there reverently kneeling down in the sight of them all, duly ask his father's blessing." Francis Bacon was the son of Lord Keeper Bacon.1 Lord Chancellor Clarendon, the famous historian of the civil war, came of a family which, in the preceding generation, had produced an Attorney to the Queen of James I. and a chief justice of the King's Bench.2

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These are names well known to general history; but, besides them, there are many others famous in legal history. Littleton, who was a chief justice and Lord Keeper in Charles I.'s reign, was the son of a chief justice of South Wales, the nephew of Chief Baron Walter, and a great-great-grandson of the famous author of the Tenures. George Kingsmill, a judge of the Common Pleas of James I.'s reign, was the grandson of the famous counsel John Kingsmill, who had held a similar post under Henry VII. Christopher Yelverton, a judge of the King's Bench of James I.'s reign, was descended from the Yelverton who had held a similar post under Henry VI. and Edward IV. Christopher's father, William Yelverton, was a reader of Gray's Inn, and Christopher's' son was Henry Yelverton, attorney-general and a judge of the Common Pleas in Charles I.'s reign." Sir John Hobart, Henry VII.'s attorney-general, was the great-grandfather of Sir Henry Hobart, who was attorney-general and chief justice of the court of Common Pleas in James I.'s reign, and the author of the reports which go by his name. Mountague, who had been chief justice successively of the King's Bench and the Common Pleas in Henry VIII's and Edward VI.'s reigns, was the grandfather of the Mountague who was chosen by James I. to succeed Coke as chief justice of the King's Bench.10 The elder Mountague had been fined and imprisoned by Mary for the part which he had taken in the duke of Northumberland's plot to put Lady Jane Grey on the throne. Lord Ellesmere, when the

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Foss, Judges v 447, says that there is little doubt but that John and Thomas Bacon, who were judges in the reigns of Edward II. and III., came from the same stock; but to what branch of the family they belonged has not been correctly ascertained." 3 Below 351. 5 Ibid 163.

2 Ibid vi 335.

4 Foss, Judges vi 343-344.

John Kingsmill's reputation is illustrated by the Plumpton Correspondence (C.S.) 134-135" Sir, for Mr. Kingsmel, it were well doon that he were with you, for his auctority and worship but, Sir, his coming wilbe costly to you."

7 Foss, Judges vi 203-206; 389-396; but Foss's account of Henry Yelverton should be corrected by comparison with the account in the Dict. Nat. Biog. 9 Ibid v 309-313.

8 Foss, Judges vi 328-331.

10 Ibid vi 167-172.

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