1 6 The Serjeants habitually paid for their degree. In 1614 Whitelocke notes that each of the newly made Serjeants had given £600 to the king; and that George Croke was left out because he refused to give it. The judges sometimes gave money to the king or to the reigning favourite. It is probable that the gift to Buckingham's nominee of the post of clerk of the King's Bench was the price which Mountague paid for the post of Chief Justice of the King's Bench, when Coke was dismissed in 1616.3 There were rumours that Richardson gave money for his post of Chief Justice in 1626, and Vernon for his post of Baron of the Exchequer in 1627.* It is quite certain that the Mastership of the Rolls was sold to Sir Charles Cæsar in 1639.5 The prevailing corruption is strikingly illustrated by the curious tale which Henry Yelverton told Whitelocke as to his own appointment to the post of attorney-general. Yelverton was warned that unless he conciliated Buckingham he would run a risk of losing the place. But, in spite of this warning, Yelverton refused to approach the duke. Then Buckingham sent for him and told him that he did not mean to oppose his appointment, though Sir James Lea had offered him £10,000 for the post; but that he expected to be approached that the world might think that he had had some share in the appointment. He then took the warrant under which Yelverton was to be appointed, and got the king's signature to it. Yelverton therefore got his post without paying for it. "But when the businesse was done, and no expectation of anything he went privately to the king, and told him he did acknowledge how like a good master and worthye prince he had dealte with him, and, althoughe ther was never mention, speeche, or expectation, of anything to be had for his having of this place . . . yet . . . he wolde give him 4000l. readye money. The king toke him in his armes, thanked ... 1 Liber Famelicus (C.S.) 44—“ It is not to be forgotten that the Serjeants-at-Law gave eache of them 600l. to the king, and sum of them were not worthe the money, and sum never likely to see it halfe againe in thear practise "; in Trinity term 1623 they gave £500, Bramston, Autobiography (C.S.) 6, 7; S.P. Dom. 1619-1623 623, cxlvii 80; in 1624 it was said that there was some one prepared to give 1000 marks for the place of king's serjeant, ibid 1623-1625 356, clxxiii 54; in the same year Zouche wrote that the making of serjeants for money was complained of in the House of Commons "by the greatest lawyer in the House," ibid 257, clxv 48. 2 Liber Famelicus (C.S.) 44. 3 Foss, Judges vi 169; Liber Famelicus (C.S.) 59; there were also rumours that he had given £15,000 for the place, Yonge's Diary (C.S.) 29; for that office and its value see vol. i 257-258. 4 Yonge's Diary (C.S.) 97, 98; Liber Famelicus (C.S.) 108; Foss, Judges vi 369. 5 Ibid 273; cp. S. P. Dom. xxvi-xxvii. 6 Liber Famelicus (C.S.) 55-57; in 1620 Chamberlain wrote that large sums were offered for the attorney-general's place, "which in this golden age will probably be accepted," S.P. Dom. 1619-1623, 157, cxvi 112. VOL. V.-23 him, and commended him mutche for it, and tolde him he had need of it, for it must serve even to buy him dishes, and bad him pay it to his servant Murrey, which he did, and shewed me the acquittances for it." The result, as Clarendon points out, was to bring both the judges and the law into contempt; and this result contributed in no slight degree to the excesses committed by the Long Parliament.1 The judges, who had shown no mercy to those who opposed prerogative government, got none when its opponents came into power.2 Jenkins, the Welsh judge who wrote the Eight Centuries of Reports,3 was a firm royalist; and, in his preface he tells us how, "amidst the sound of drums and trumpets, surrounded with an odious multitude of barbarians, broken with old age and confined in prisons, where my fellow subjects wild with rage detained me for fifteen years together, he bestowed his watchful hours upon this performance." Clarendon blamed the government for making the judges their assistants in the carrying out of their policy, and contrasted it with the policy of the Tudors. But in truth it is difficult to see what else the government could have done. We shall see that the constitutional questions as to the extent of the prerogative, and as to its relation to the law, were treated by the Parliamentary opposition as legal questions to be answered by an appeal to the law. Both the Parliament, and the public opinion which backed it, made it necessary to submit these questions to the arbitrament of the law; and the government consequently did what they could to secure a verdict favourable to themselves. We have seen that in the Middle Ages the judges sometimes found themselves involved in politics when the political questions which divided the state assumed a legal aspect." It was hardly possible that they should not have been involved in politics, when the great 5 1 History of the Rebellion 29-" And here the damage and mischief cannot be expressed, that the crown and state sustained by the deserved reproach and infamy that attended the judges, by being made use of in this and the like acts of power; there being no possibility to preserve the dignity, reverence, and estimation of the laws themselves, but by the integrity and innocency of the judges. And no question, as the exorbitancy of the house of commons this parliament hath proceeded principally from their contempt of the laws, and that contempt from the scandal of that judgment [The Case of Shipmoney]; the peers never consulted them as in past times, thinking it a just reproach upon them (who out of their gentilesses had submitted the difficulties and mysteries of the law to be measured by the standard of general reason, and explained by the wisdom of the state) to see those men make use of the licence they had taught, and determine that to be law, which they thought reasonable, or found to be convenient"; in S.P. Dom. 1629-1631 423 there is a paper by Heath, the attorney-general, which states that the judges "have of late been much undervalued." 3 Below 361; cp. Wallace, The Reporters 69-72. 2 Vol. vi c. 6. 4 Above 346 n. I. 5 Vol vi. c. 6. political questions which divided the nation were regarded by both parties as questions to be answered by an appeal to the law. 1 Both the political events of the seventeenth century and the corruption of the court influenced for the worse the quality of the Bench. But these influences naturally took time to produce their full effect. In the earlier part of the century the older system of legal education and the older traditions still lived on. The judges appointed had been educated under the old system. They were learned men and administered the law fairly as between party and party; and, as we have seen, they occasionally ventured to oppose the wishes of the Government.2 We shall see that after the Great Rebellion the old system of legal education disappeared,3 and that the outstanding political questions of the day still continued to influence the selection of the judges.* The result was that the deterioration in the character and learnof the Bench became more apparent. No doubt upright and learned men still found a place there; but it was not till after the Revolution had settled the political questions at issue in the seventeenth century, and restored security of tenure to the judges, that the Bench as a whole attained the standard which it had reached in the sixteenth century. But we must now turn to the history of those judges and lawyers whose names are still familiar to us, because, in the Reports which they wrote or edited, they have made that permanent record of the life work of themselves and their companions, to which we still appeal for authoritative information as to the growth and contents of the principles of the modern common law. The Reporters In the sixteenth century we pass from the period of the anonymous Year Books, to the period of Reports written by, or ascribed to, named authors, most of whom were eminent judges. or practitioners. There are some forty sets of reports, containing cases decided before and during this period, which were either written and published contemporaneously, or published after its close. It would be obviously impossible to describe all these reports separately and in detail. Nor would this be necessary, as Mr. Wallace in his book on the Reporters has given us a very adequate description.5 I shall therefore only set 1 Gardiner, op. cit. vii 361-" As far as the administration of justice between man and man was concerned they stand in no need of defence. There were no takers of bribes amongst them. They were never charged with incapacity or negligence." 4 Ibid. 2 Above 352. 3 Vol. vi c. 8. 5J. W. Wallace, The Reporters arranged and characterized. Fourth Ed. by F. F. Heard. out in tabular form the list of the reports of this period, together with their chief characteristics. Then I shall endeavour to state shortly the points in which these reports resemble, and the points in which they differ from the Year Books on the one hand, and from their successors of the eighteenth and nineteenth centuries on the other. Lastly I shall say something of the epitomes and indexes to these reports which soon began to appear, and of Rolle's Abridgment-the earliest of the Abridgments which summarize the contents of the modern reports, the successor to those Abridgments of the Year Books which have been already described,1 and the precursor of a new stage in the history of these Abridgments. 3 2 In the following Table I have arranged the reports of this period in the chronological order of their publication. I have included in this list many reports which were published in the latter half of the seventeenth century, because they contain cases decided in this period, or during the period of the Commonwealth. The Table shows that we cannot as yet divide the reports very accurately according to the courts in which the cases reported were decided Many of them contain cases decided in all the common law courts; and some of them contain cases decided in the court of Star Chamber, in the court of Wards and Liveries, and occasionally even in the court of Chancery. The state of the reports thus illustrates what I have said above as to the penetration of the common lawyers into some of the courts outside the sphere of common law jurisdiction. When they penetrated into these courts they naturally introduced their habit of reporting the cases there decided. There can be little doubt but that if the Star Chamber and the court of Wards had had a longer life, we should have had a series of reports of their doings, similar to the series of reports of the doings of the common law courts and the Chancery. It is clear also from the Table that some of these reports were published by their authors; that others were published after, and, in some cases, long after their authors' death; and that, in many cases, no sufficient account is given of the MS. from which they were published. We shall see that all these are circumstances very material to be considered in estimating the authority which is or should be attached to these reports in our modern law. Finally, the fact that most of these reports were, except during the period of the Commonwealth, written in the first instance in law French, illustrates the 'Vol. 11 543-545. 2 The only deviation from the chronological order which I have made is in putting the last two parts of Coke's Reports with the first eleven parts; for these reports see below 461-465. 4 Above 163. 3 Vol. iv 270-272. 1 e E long life of this language in the law;1 while the dates at which some of them were translated give us a very accurate idea as to when the lawyers really ceased to think in and write this peculiar tongue. With these introductory remarks I shall let the Table (see pp. 358-363) speak for itself. 2 If it were true that the Year Books were official publications, it is clear that there would be little in common between them, and these collections of cases, privately reported and separately published. But, as it can now be taken as certain that the Year Books were not official publications, the transition from them to these reports loses much of its abruptness. And in fact, although there are great differences between the reports of this period and the Year Books, there are also strong resemblances; and these resemblances are the more striking in some of the earlier reports than in the later. I think that these resemblances, which I shall now describe, create at least a presumption that the later Year Books, like the earlier, owed their origin, not to official action, but to the needs and energies of the legal profession. We shall see that the differences, which in the course of this period begin to emerge, can be accounted for, partly by the different conditions. of publication which the introduction of printing involved, partly by changes in legal procedure, and partly by the hardening of the view of the common lawyers as to the binding force of decided cases. And, in this connection, it is important to remember that there is a certain amount of continuity in the organization of the trades associated with the production of books before and after the introduction of printing. The older association of writers of text letters and limners became the craft of the Stationers, and, on the introduction of printing, joined with the printers, and became the company of Stationers. It is therefore a probable inference that, in the particular case of the production and publication of law reports, though there were changes, there was no entire break between the period of the Year Books and the period of the reports. 3 The reports of this period resemble the Year Books (i) in the manner in which most of them originated; (ii) in the circumstances under which many of them were published; (iii) in the existence of MS. authority far more authentic than that upon 1 The Reports published during the Commonwealth were published in English in accordance with the legislation of the Commonwealth, vol. vi c. 6; but this was an interlude; at the Restoration there was a reversion to French-indeed Style, who reported cases in the upper Bench, is very dubious as to the value of these English reports, see Preface to his Reports. 2 Vol. ii 532-536; vol. iv 262. 3 Vol. vi c. 7. |