CHAPTER THREE: THE NATURAL LAW PHILOSOPHY OF THE COMMON LAW I.

INTRODUCTION The Common law exhibits a philosophical orientation and approach towards law based on Classical Natural Law Theory. As such therefore, it could have been included as an aspect of the previous chapter on Classical Natural Law Theory. However, it has several features which entitles it to separate treatment. First of all, the Common Law is an actual legal system which originated in England and is a part of many other legal systems today. Hence, it is not just a higher law, but actual, judge-made, customary, positive law. Secondly, the influence of the Common Law is still greatly felt among Anglo-American judicial systems, including that of the Philippines. Indeed, the case of In Re Shoop (41 Phil. ; 29 November 1920) classified Philippine jurisprudence as a common law legal system. Finally, it is both instructive and insightful to consider how natural law philosophy was interwoven into the Common Law to become part of an existing and effective legal system. Hence, the philosophy of the Common Law deserves a distinct chapter. II. THE ORIGINS OF THE COMMON LAW The Common Law may be meant as a law common to an entire country, like England, or to the entire world or universe, as Natural Law claims itself to be. It is in this second sense of common law that it enjoys the status of a natural law. Although, strictly speaking, the Common Law merely refers to the law common to all of England, and later on of the entire United Kingdom, many lawyers, judges, and jurists used it to refer to a law common to all humanity. The Common Law originated in this manner: At the time of the Norman Conquest there was no central court which regularly administered a law common to the whole country. English law was, for the most part, administered in many different local courts; and the law thus administered was the customary law of the district. From the books of the beginning of the twelfth century which describe this law, we can see that it consisted of three main bodies of custom, which corresponded to the three main political divisions of the country at the time of the Conquest. There was the Mercian law, the Dane law, and the West Saxon law. They all varied in their contentsindeed, if their provisions were the same on any given point such agreement was thought worthy of note; and within these three districts the customs of different localities varied. These variations were also accentuated by another cause. At the time of the Conquest what we may call the national system of local courtsthe system of communal courtswhich administered this customary law, was overshadowed by the existence all over the country, of various franchise and other private jurisdictions belonging to the larger landowners, both lay and ecclesiastical. The result was that, at the time of the Conquest, England was covered with a network of competing courts and conflicting jurisdictions which had their roots in various principles, in various rights, the rights of the king, of the church, of feudal lords, of ancient communities. The political dissension which enabled the Normans to conquer the country was reflected in the diversity of the laws and the courts by which it was governed. The immediate effect of the Norman Conquest was to increase rather than diminish this confused mass of local customs. The twelfth century law books show that to them had been added an admixture of Norman laws and customs, and some elements of the canon and Roman law. Nor was there any change in the various local courts which administered these customs. But the Norman Conquest did give England what she most wanteda strong ruler with the power and the will to make his influence felt throughout the country; and this strong ruler governed through a royal court staffed by the ablest men of the day. Already at the

beginning of the twelfth century this royal court was making its influence felt upon the law of the country. The most important of these twelfth century law booksthe Leges Henrici Primirecognized the law of this court as a fourth species of law, superior to the tribal customs of the West Saxons, the Mercians, and the Danes in its universality, its stability, and its power. Under Henry I, this strong central court was beginning to get some definite organization; but as yet much depended on the personality of the king. Under a weak king like Stephen, the nascent central government disappeared. But under Henry II, it was so revived and strengthened that we can see the beginnings of distinct departments of government; and what is most important from the point of view of legal history, its jurisdiction was so strengthened and extended that we can see the beginnings of a centralized judicial system which administered a law common to the whole country. It is this centralized judicial system which will gradually reduce the local courts to insignificance, and substitute one common law for that confused mass of local customs of which the law of England had formerly consisted. The beginnings of this centralized judicial system and this common law were due to the powers of the crown. But the abuse of the large powers of the crown by John produced a national uprising which resulted in the granting of the Magna Carta. Naturally, some of the clauses of Magna Carta dealt with the new centralized judicial system which had just begun to make its influence felt. A few of these clauses represented the views of the great nobility who disliked a system which was the most efficient curb on the feudal disorder. But, for the most part, the new central organization was regulated, not destroyed. Its continued existence was taken for granted; and thus the future of a centralized judicial system and a common law was assured.1 The judges who administered this law common to the whole country were itinerant judges who traveled from shire to shire dispensing the kings justice. We have seen that in the twelfth century itinerant judges travelled round the country, and that they were commissioned to perform many governmental functions, judicial and administrative. We have seen too, that the character of the commissions under which they acted varied. Some gave them wide judicial and administrative powers, and others gave them only a limited judicial authority. During the first half of the thirteenth century there was no great change. Bracton tells us that the circumstances under which and the forms in which such commissions were given to these justices were infinitely various. But we can see from his book that a distinction was growing up between the justices commissioned to hear all pleas, and those commissioned only to take the assizes or to deliver a gaol. It is not, however, till the end of the thirteenth and the beginning of the fourteenth century that these commissions were regularly issued at definite dates, or that that their forms were definitely fixed. We shall see that some of these commissions became obsolete at an early date, while others continued to be issued right down to modern times; and the courts held by the justices under the latter class of commissions gradually came to be integral parts of the judicial system, closely linked up with the common law courts.2 A circuit system was soon established wherein the itinerant judges played an important part. The circuit system avoided two disadvantages a decentralized judicial system would have wrought. We have seen that, but for this (circuit) system, the extremely centralized judicial system, which was the result of the victory of the common law courts over the older local courts, would hardly have been tolerable either to litigants or to jurors. This system provided some

Sir William Holdsworth, A History of English Law, Vol. I, ed. by A.L. Goodhart and H.G. Hanbury, London: Sweet and Maxwell, 1903. 2 Id., p. 264.

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relief without any appreciable decentralization, and without the two great disadvantages which decentralization would have entailed. The first disadvantage of too extensive a measure of decentralization would have been the danger that local differences in the rules of law substantive and adjective would have sprung up. This would have been a real danger at a time when difficulties in means of communication, and difficulties in the diffusion of knowledge, somewhat easily led to the formation of local customs. It was, as Hale had pointed out, met completely by the circuit system. For those men are employed as justices, who, as they have had a common education in the study of the law, so they daily, in Term-time, converse and consult with one another; acquaint one another with their judgments; sit near one another in Westminster Hall, whereby their judgments and decisions are necessarily communicated to one another, either immediately, or by relations of others. By this means their judgments, and their administration of common justice, carry a consonancy, a congruity, and uniformity to one another: whereby from that confusion and disparity that would unavoidably ensue if the administration was by several incommunicating hands, or by provincial establishments. The second disadvantage of decentralization, which was prevented by the circuit system, was one which would have been felt at all times, and acutely felt both in the Middle Ages and right down to the end of the seventeenth century. The circuit system helped, as Hale points out, to prevent factions and parties in the carriage of business, which would soon appear in every cause of moment, were the trial only before men residing in the counties; and its efficacy in this direction was helped by the rule that the judges of assize must not exercise their jurisdiction in the counties in which they had been born, or in which they resided. That it did not entirely prevent factions and parties in the Middle Ages and later we shall see; but there can be no doubt that it exercised a powerful influence in this direction. The maintenance, then, both of uniformity and impartiality in the administration of the law were the two great legal advantages which resulted from the circuit system. Its chief political advantage was that it provided the central government with a means of controlling the conduct of the local government, which was exercised by judicial officers and to a large extent under judicial forms. We have seen that the judges of assize inherited some of the old political functions of the justices in eyre; and these functions were exercised, like those of their predecessors, under the judicial forms of indictment and presentment. Obviously this tended to strengthen the belief, inculcated by many mediaeval lawyers and political philosophers, that the maintenance of a supreme law was the great aim of government. It is a belief which is a condition precedent for the stability of any sort of constitutional government; and the fact that it was very universally held in the seventeenth century was of priceless value to those who fought the battle for constitutional government in that century. That it was then universally held was due in no small degree to the manner in which the working of law to be no mere technicality of the lawyers or abstraction of the philosophers, but an article in the political creed, and a part of the political instinct of all Englishmen.3 III. THE DECLARATORY THEORY OF PRECEDENT That the Common Law derived from a natural law philosophy was due in essence to the declaratory theory of precedent. As such, it postulated that the judges, when they decided cases, were not making, creating or developing law; rather they were discovering or uncovering it. Related to the Declaratory Theory is the Traditionary Theory, that law is common, immemorial custom. Law, to Blackstone, is the accumulated wisdom of the ages.4 For the Common Law of England is nothing else but the Common Custome of the Realm . . . it cannot be made or created either
3 4

Id., pp. 283-284. Sir William Blackstone, Commentaries on the Laws of England, i. p. 67.

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by Charter, or by Parliament . . . but being only matter of fact, and consisting in use and practice, it can be recorded and registered no-where but in the memory of the people.5 According to Hale, the doctrines of the common law are grown into use, and have acquired their binding Power and Force of Laws by a long and immemorial Usage, and by the strength of Custom and Reception in this Kingdom. The Matters, indeed, and the Substance of those Laws, are in Writing, but the formal and obliging Force and Power of them grows by long Custom and Use.6 Gerald J. Postema concluded: That is, the law now exists and has its authority, its formal and obliging Force, by virtue of general use and acceptance. The law reports, on this view, are the public record of this use and practice, having recorded the decisions, actions, and opinions of those most extensively involved on a daily basis with all segments of it . . . On this view, both the meaning or normative content and the authority of the precedential case rest on its being recognized as an integral part of the collective expereience (or wisdom) of the community, of which the law is the repository. Legal precedent is simply the formal memory of the people.7 Sir Matthew Hale formulated elegantly the declaratory theory of precedent. He asserted that the decisions of courts cannot make a law properly so called, for that only the King and Parliament can do; yet they have great weight and authority in expounding, declaring, and publishing what the law of this Kingdom is, especially when such decisions hold a consonancy and congruity with resolutions and decisions of former times, and though such decisions are less than law, yet they are a greater evidence thereof than the opinion of any private persons, as such whatsoever.8 The Declaratory Theory is further elaborated upon thus: The declaratory theory receives its most authoritative exposition in Blackstones Commentaries on the Law of England. Blackstone claimed that judges are the living oracles of the law, obliged to decide in all cases of doubt according to the law of the land. Their judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form part of the common law. . . . For it is an established rule to abide by former precedents, where the same points come again in litigation . . . The judge possesses delegated authority not to pronounce new law but to maintain and expound the old one. He does not alter or vary law which has been solemnly declared and determined; he does not decide according to his private sentiments or his own private judgment. Thus the judge searches the records, discovers the law previously recognized, declares and expounds it, and applies it to the dispute before him. It is the province of the judge, stated Parke B. in Egerton v. Brownlow, to expound the law only; . . . the unwritten or common law from the decisions of our predecessors and of our existing courts, from text-writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference . . . Previous decisions have become part of the recognized law, and we are therefore bound by them, but we are not thereby authorized to establish as law everything which we may think for the public good, and prohibit everything which we think otherwise;. It is not the province of the judge to speculate upon what is the best, in his opinion, for the advantage of the community.9
5 6

Sir John Davies, Irish Reports (1612), Introduction. Sir Matthew Hale, A History of the Common Law, 3rd edn. C. M. Gray (Chicago, 1971), p. 17. 7 Gerald J. Postema, Some Roots of our Notion of Precedent, Precedent in Law, ed. by Lawrence Goldstein, Clarendon Press, Oxford, 1987, p. 16. 8 Sir Matthew Hale, supra., n. 6, p. 90. 9 Peter Wesley-Smith, Theories of Adjudication and the Status of Stare Decisis, Precedent in Law, ed. by Lawrence Goldstein, Clarendon Press, Oxford, 1987, pp. 73-74.

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Under this theory, the judge plays an intrinsic role as the living oracle of the law. The judiciary is a major player in the legal drama as conceived by Common Law theory, yet the role is that of the living oracle of the law (1 Comm. 69), an expert witness to it, not its creator. 'Judex est lex loquens, Coke insistedthe judge is the mouthpiece of a law which transcends the judiciary. Judicial decisions bind the parties to a case, Hale asserts, but they do not make Law properly so called . . . yet they have a great Weight and Authority in Expounding, Declaring, and Publishing what the Law of this Kingdom is especially when such Decisions hold a Consonancy and Congruity with Resolutions and Decisions of former Times; and tho such Decisions are less than a Law, yet they are a greater Evidence thereof than the Opinion of any private Persons, as such, whatsoever. The office of the judge is not to make, but publicly to expound and declare, the law; jus dicere not jus dare. In the latter activity they are the recognized authorities. Judicial opinions, expounding and declaring the law, then, are not themselves law but only the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form aprt of the common law (1 Comm. 69, emphasis added). In the course of reaching and attempting to justify a decision, the judge must seek to formulate the law on the matter in dispute. His opinion must be regarded as the best judgment of one skilled in discovering and formulating such rules of law. The authority and weight of judicial opinions, then, is the authority of an expert reporting his or her findings, not the final or formal authority of an official whose saying makes it so. (The holding has such final authority, but the formulation of the law on which the holding is supposed to rest does not.)10 Opposed to the declaratory theory is the positivist theory, which locates the law in the judges will. (The declaratory) theory has been widely condemned. Austin castigated it as a childish fiction and Bentham poured scorn upon it for its apparent similarity to the method adopted by the dog-owners, when training their pets. The common law, said the positivists, existed (if it existed at all) because it was laid down by judges who possessed law-making authority. Law was the product of judicial will. It was not discovered but created. IV. THE COMMON LAW AS REASON That the Common Law is a natural law is based on the doctrine that the common law represents reason. At the same time, acceptance manifests and is based on a sense of the reasonableness of the rules of the Common Law. Reason is the life of the law, Coke said, nay the Common Law itself is nothing else but Reason. A.W.B. Simpson summed up the doctrine this way: In the common law system no very clear distinction exists between saying that a particular solution to a problem is in accordance with the law, and saying that it is the rational, or fair, or just solution. We must take care not to misstate the view. The view is not that the rules and provisions of Common Law each uniformly commend them to the people as conforming to some independent standards of justice or reasonableness, and for that reason win their approval. Rather, Common Law is seen to be the expression or manifestation of commonly shared values and conceptions of reasonableness and the common good. The principles of Common Law are not themselves validated by reason; but they are the products of the process

10

Gerald J. Postema, Bentham and the Common Law Tradition, Oxford: Clarendon Press, 1986, p. 9; italics Postemas.

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of reasoning, fashioned by the exercise of the special, professional intellectual skills of Common Lawyers over time refining and co-ordinating the social habits of a people into a coherent body of rules. In this sense, Coke seems to be saying, it is in the nature of law to be reasonable, but at the same time the law, emerging from this unique intellectual process, constitutes the standards by which the community judges the reasonableness or unreasonableness of actions. The visions of good and evil by which a society judges its life and dreams its dreams are drawn from the past and given concrete pubic expression in its law.11 There exist two conceptions of the reasonableness of the Common Law. particularistic kind of reason, based on a special, artificial reason. The first kind is a

According to this conception, the reason of the law is entirely concrete and particular, inseparable from the particular situations brought to the law, and resolved by it. It is the reason not of rules and principles, but of cases. Thus, the reason of the law is guaranteed, not by any external principles or criteria of rationality to which it allegedly conforms, but rather by its own internal coherence and completeness, by the fact (or rather the presumption) that the myriad of particulars fit together into a coherent whole. The reason of the law consists in the fact that it makes possible a special kind of reasoning. Lawyers are connoisseurs of cases in point, cognoscenti of matters at hand. Neither deductive nor inductive, their reasoning is analogical, arguing from particular cases to particular cases, reflecting upon the likenesses and dissimilarities of particular instances either actual or hypothetical, particular to particularsimilia e similibus as Bracton called it. Analogy is the stuff of law, according to Charles Fried because it is the only form of reasoning left to the law when general philosophical structures and deductive reasoning give out, overwhelmed by the mass of particular details. Analogy is the application of a trained and disciplined intuition where the manifold of particulars is too extensive to allow our minds to work on it deductively. This is not a denial of reason; on the contrary, it is a civilized attempt to stretch reason as far as it will go.12 It is the other conception of reason that I am interested in, since this is the conception which provides Common Law Theory its naturalistic character. But there is at work in classical Common Law theory another conception of reason which becomes especially important by the mid-eighteenth century. This conception gives reflective reason a much wider scope in the law and portrays the Common Law as a rational science based on first principles, or at least potentially transformable into such a science. This conception links reason with general justifying principles which are instanced in, and illustrated by, particular decisions and settled rules. One can find this conception clearly at work in Blackstones Commentaries (sometimes alongside the particularist conception). The law of England acts upon general and extensive principles, he maintains (1 Comm. 425). Although we normally find no need in daily life to inquire after the reasons or grounds of laws governing our common life and the use and disposal of our property, yet it is possible to consider law not only as a matter of practice, but also as a rational science . . . [and] to examine more deeply the rudiments and grounds of these positive constitutions of society (2 Comm. 2). At least in part the task of the Commentaries was that of examining the great outlines of the English law, and tracing them up to their principles (4 Comm. 5).
11 12

Postema, supra., n. 10, p. 7; italics Postemas. Id., pp. 30-31, italics Postemas.

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The study of the principle underlying the law was especially important for students, and future practitioners of the law. Blackstone attacked the apprenticeship system which exposes lawyers only to practice, and not to its underlying principles. Not only will such lawyers fail to understand the foundations of their own law, he argues, but they will be ill-equipped for the practice of law except in routine cases. If the student is uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established principles will totally distract and bewilder him . . .. He will be unable to comprehend any argument drawn from the spirit of the laws and the natural foundations of justice (1 Comm. 32). Students must have impressed on them, the sound maxims of the law of nature, the best and most authentic foundations of human laws (1 Comm. 33). Nevertheless, Blackstone was somewhat ambivalent about the role of natural law notions in the Common Law of England. On the one hand, one finds appeal to natural law considerations with some frequency in the Commentariesfor example, in his defense of the institution of property (2 Comm. 1-15) and of the states right to punish (4 Comm. 5-9). Yet, when he took the Bench, he was much less willing to make such appeals and, in fact, was severely critical of those, like the activist Mansfield, who sought to utilize natural law language to introduce considerable innovations in the Common Law. And there is much in the Commentaries to support this conservative reaction. Mansfield was, of course, the most vigorous advocate of this conception in the Common Law among the judiciary in the eighteenth century. The law would be a strange Science, he argued if it rested solely upon cases; and if after so large an increase of Commerce, Arts and Circumstances accruing, we must go to the time of Richard I to find a Case, and see what is Law. Precedent indeed may serve to fix Principles, which for certaintys sake are not suffered to be shaken, whatever might be the weight of the principle independent of the precedent. But precedent, though it be Evidence of law, is not Law itself; much less the Whole of the Law. This, in some respects, goes no farther than the view we saw Hale embrace. But Mansfield insisted that the law does not consist in particular cases; but in general principles which run through the cases and govern the decision of them. And this may go farther than Hale would have been inclined to go, especially since Mansfield did not scruple to identify these principles with natural justice, equity, and common reason. As David Liebermann has pointed out, Mansfields decisions provide some of the most forceful statements of the place of natural law in English jurisprudence in the eighteenth century. It appears that the Common Lawyers in the eighteenth century did not refuse to appeal to general notions of justice, convenience, and common good (often framed in the language of natural law) when the particular, black letter resources of the law were found inadequate to the task.13 Hence, it is not surprising that this has been said of the Common Law: The common law is the absolute perfection of reason.14 Fr. Figgis adds: The Common Law is pictured invested with a halo of dignity peculiar to the embodiment of the deepest principles and to the highest expression of human reason and of the law of nature implanted by God in the heart of man. As yet men are not clear that an Act of Parliament can do more than declare the Common Law. It is the Common Law which men set up as an object of worship. They regard it as the symbol of ordered life and disciplined activities,
13

Id.,pp. 33-35; italics Postemas. Reference is made to Sir William Blackstones Commentaries on the Laws of England. 14 2 Co. Inst., p. 179.

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which are to replace the license and violence of the evil times now passed away. . . . The Common Law is the perfect ideal of law; for it is natural reason developed and expounded by a collective wisdom of many generations. . . . Based on long usage and almost supernatural wisdom, its authority is above, rather than below that of Acts of Parliament or royal ordinances which owe their fleeting existence to the caprice of the King or to the pleasures of councilors, which have a merely material sanction and may be repealed at any moment.15 V. THE COMMON LAW AS MORALITY AND JUSTICE Another way of characterizing the Common Law is as a fount of morality and justice. This once again traces its connection or communion with natural law. Even outside the family law, the law of nature is not altogether banned. For instance, in 1768, in an appeal from a decision of Lord Mansfield, a unanimous judgment of the Court of Exchequer said: The law of Nature is the law of God. . . . we mean to bottom this judgment upon the law of God, the principles of reason, morality, and the common law. . . . It is interesting to note how the Court bundles all the terms together, as though they meant the same thing. This seems to be the characteristic of the mentality of English judges. But their hearts are in the right place. They are practical, and they do not care much for names.16 Wu also noted the Common Laws intrinsic connection with Christian morality. The common law is too deeply rooted in Christianity to be cut loose entirely from the natural-law tradition. It has a noble idea of man, of the human person. It sets the highest value on human life and human liberty, on the rational and social nature of man. It has not worked out an explicit scale of values, but if we look at it as a whole, we should see that it sets a much higher value on the interests of personality than on the interests of property.17 He adds: Needless to say, no system of human law can be perfect, or even nearly so. But it is no exaggeration to say that Anglo-American jurisprudencethe common law of England before the nineteenth century and the common law of America since the eighteenth centuryis permeated with the spirit of Christianity to a greater degree than any other system of law except Canon Law. You find dark spots here and there; but where the common law is at its best, you feel that Christ Himself would have smiled upon its judgments. It is so because in many cases the judges have not hesitated to draw their inspiration and light from the words of Christ and His Apostles, particularly St. Paul. In American jurisprudence especially, you find traces of the Christian influence wherever you may turn.18 Barnard had this to say. According to him, the common law having a principle of growth and progress in itself . . . is already . . . the most complete and admirable system of lawthe most healthy and vigorous in its principles, the most favorable to civil liberty, standing the nearest to the divine law, and the best fitted to be the auxiliary and helper of religion itself in the government of individual men and of human societythat has ever existed on earth.19

15 16

Figgis, Divine Right of Kings (2d. ed. 1914), pp. 228-230. John C. H. Wu, Fountain of Justice, New York: Sheed and Ward, 1955, pp. 104-105; citing Low v. Peers, Wilmots Reports, pp. 364, 371, 374 (1770). 17 Id., pp. 104-105. 18 Id., p. 168. 19 Barnard, Discourse on the Life, Character, and Public Services of Ambrose Spencer, 1849, p. 52.

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VI. THE LAW REPORTS There can be no effective system of precedent if there were no system of law reporting. For a judge to be bound by previous decisions, there must be a way for the judge to access these decisions. That was the function played by the law reports. It has had a long and distinguished history. Shortly after the death of Bracton appeared the Year Books. The earliest of them came out in 1292. They were produced by lawyers who had been organized in the Inns of Court and Chancery. These Inns were virtual centers of legal study, which carried on and further strengthened the tradition of the common law as a system of case law.20 Brunner describes the Reports in this manner: Reports, i.e. professional memoranda, not, like records, serving as official memorials of judicial acts, but giving only secondary attention to the concrete facts of a particular case, and intended to give information of points of interest to legal practitioners. They therefore contain only a brief narration of facts, upon which the records lay the principal stress, but give more fully the arguments of counsel and grounds of decision. The Reports were written by officially appointed and paid reporters. It is uncertain when this was first done. The Reports from the time of Edward II to Henry VIII, barring several gaps, were printed under the name the Year Books.21 Holdsworth elaborates: The Year Books are the Law Reports of the Middle Ages and written by lawyers for lawyers. From the reign of Edward I to the reign of Richard III they stretch in a series which is almost continuous. In the reigns of Henry VII and VIII they become more and more intermittent; and the last printed Year Book is of the Trinity Term 27 Henry VIII. During the terms and years of these centuries they give us an account of the doings of the Kings Courts which are either compiled by eye-witnesses or from the narration of eye-witnesses. They are the precursors of those vast libraries of reports which accumulate wherever the common law or any legal system which has come under its influence, is studied and applied. If we except the plea rolls they are the only first-hand account we possess of the legal doctrines laid down by the judges of the fourteenth and fifteenth centuries, who, building upon the foundations which had been laid down by Glanvil and Bracton, constructed the unique fabric of the mediaeval common law. Because they are contemporary reports they are of the utmost value, not only to the legal historian, but also to the historian of any and every side of English life. Just as the common law is a peculiarly English possession, so these reports of the doings of the Courts which constructed this common law are a peculiarly English source of mediaeval history. No other nation has any historical material in any way like them. Yet, until well on into the last century, they existed only in black letter books, published in the seventeenth century, and printed in contracted law French so carelessly as to be in many instances unintelligible; and the greater part of them are still in this condition. No one had cared to study the manuscripts upon which these printed books were based; and the tale told by tradition as to their origin was accepted without question and without verification. For about the last forty years their unique historical importance has been gradually arousing some interest in them. The work done upon them by the late Mr. Horwood and by Mr. Pike for the Rolls Series, and, above all, the work done upon them by Professor Maitland for the Selden Society, has taught us much of

20 21

Id., p. 78. Heinrich Brunner, The Sources of English Law, Select Essays in Anglo-American Legal History, by various authors and compiled and edited by a Committee of the Association of American Law Schools, Boston: Little, Brown, and Company, 1908, Vol. II, pp. 31-32. The claim that the reporters were official is disputed.

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their origin, of the language in which they are written, and of their meaning and importance in the history of England and English law.22 The origins and history of law reporting are as follows: We cannot give the exact date when to some lawyer the happy thought first came of noting down the proceedings of the Court. The earliest printed Year Book in the Rolls Series is of the year 1292; but there are, as we have seen, earlier manuscripts. Their writers, Professor Maitland thinks, are person who are noting down the latest points for the use of themselves or their friends. They give no dates. Often they do not arrange their matter chronologically. Rather they distribute it under suitable heads after the manner of the writers of the later printed Abridgements. Thus, it is only by degrees that the oldest law reports became Year Books, and even when the purely chronological scheme has obtained the mastery, we may see that for a while the men who write the manuscripts or have the manuscripts written for them are by no means very careful about assigning the cases to the proper years and terms. In later times, the chronological scheme does obtain the mastery. No doubt as the years went on reporting became a regular pursuit. Still it was an open pursuit. The Books of Assizes are reports in a style very different from that of the other Year Books of Edward IIIs reign. They are more concise than the Year Books usually are, giving rather the gist of the argument and the decision than a report of the actual proceedings. The Longo Quinto represents a more elaborate form of reporting than had yet been seen. Often it seems to be more impersonal, and to give the gist of several reports rather than the actual account of the eye-witness. No doubt, too, the reporters became more skilful, more professional as time went on; they allowed themselves fewer scattered notes, fewer personal details. The report of the cases is the main thing; and the report grows fuller. Perhaps it may be allowable to conjecture that, with the growing organization of the legal profession, there grew up some sort of organized system of reporting. With the more frequent citation of cases in court, and the greater authority attached to them, the need for reports grew more pressing. We really have no positive evidence at all as to the conditions under which the Year Book was published to the profession. No doubt, as in later times, there was extensive borrowing, and hasty copying of borrowed materials as and when they could be got. It is, however, difficult to suppose that a profession so well organized as that of the law did not devise or encourage some sort of informal organization for the production of reports. It is perhaps more than a coincidence that the serjeants chief practice was in the Common Bench, and that the greater number of cases reported in the Year Books are common pleas. If there was some sort of organization for the production of reports, and if the legal profession exercised some control over it, we can easily see how the tale of their official origin arose. Such a tale would the more readily believed y an age which had had time to forget the conditions which had prevailed before the introduction of printing. We sometimes speak of the Law Reports as official; but the historian of our age will search the national accounts in vain for information as to the sums paid by reporters.23 The importance of a system of case reporting cannot be emphasized sufficiently: It is on the system of case law . . . that the common law of England was very largely based in Blackstones day. Let us recall Burkes emphatic words: The English Jurisprudence hath not any other sure foundation nor consequently the lives and property of the subject any sure hold, but in the maxims, rules and principles, and judicial traditionary line of decisions contained in the notes taken, and from time to time published (mostly under the sanction of

22

William Searle Holdsworth, The Year Books, Select Essays in Anglo-American Legal History, by various authors and compiled and edited by a Committee of the Association of American Law Schools, Boston: Little, Brown, and Company, 1908, Vol. II, pp. 96-97. 23 Id., pp. 109-110.

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the judges), called Reports . . . To put any end to Reports is to put an end to the law of England.24 The origins of law reporting and how it came to be essential and indispensable to English legal practice is recounted as follows: In course of time the system of reporting gradually developed to meet the obvious needs of a legal profession engaged in administering a system of law, the principles of which depended almost entirely upon the practice of the Court. Just as books of precedents of writs and pleadings were necessary in order that the lawyer might present his case in proper form to the Court, so reports of decided cases were necessary if he was to know the principles which the Court would apply to decide the case. Indeed it is probable that it was only gradually that these books of precedents were differentiated from the law report. The book of precedents occasionally borrows from the Year Book; and the Year Book sometimes gives us extracts from the pleadings, and thus serves the purpose of a book of precedents. The two things came, however, to be entirely distinct. Broadly speaking, the book of precedents deals with the formal and procedural side of legal practice, while the Year Book deals chiefly with the application of the principles which underlie, not only the procedural rules, but also the rules of substantive law. Thus for an intelligent understanding, an intelligent application of the precedents, the reports in the Year Books were essential; and perhaps to many practitioners this consideration was a greater incentive to the study of the Year Books than the fact that it was only through them that a knowledge of the principles of the law could be attained. The spirit of the earliest Year Books, says Professor Maitland, will hardly be caught unless we perceive that instruction for pleaders rather than authoritative fixation of points of substantive law was the primary object of the reporters. But though the needs of the pleader may have been the paramount consideration in the minds of the earliest reporters, though such needs always continued to be an important consideration, it had been clear, since the days of Bracton, that without a knowledge of the doings of the Courts there could be no knowledge of English law. His treatise could not have been written if he had not access to such information through the records which he had retained for a period. But records were valuable things. By a lucky chance perhaps a lawyer might get access to a few of them; but neither the apprentice, nor even the serjeant, could be sure of getting the constant access to a series of such documents which would be necessary if they were to be used for purposes of instruction or as aids to practice. Moreover much pleading took place, and much argument thereon, which never appeared on the roll; and this was often as interesting to lawyers as the matters which appeared there. The legal profession was obliged to supply its own peculiar wants for itself; and thus the report of the doings of the Court made by lawyers for lawyers arose.25 The authoritativeness of judicial decisions, as reported in the Year Book, is explained thus: A reliance on cases was, as we have said, as old as Bracton; and we can see from the early Year Books that a considered decision was regarded as laying down a general rule for the future. The judgment to be given by you, said Herle in argument in 1304, will be hereafter an authority in every quare non admisit in England. This does not of course mean that all cases to be found in the lawyers notebooks were regarded as authoritative. Still cases are cited even in the early Year Books. The judges when pressed by the authority of precedents were sometimes restive, as the following dialogue shows. R. Thorpe. If it so seems to you, we are ready to say what is sufficient; and I think that you will do as others have done in the same case, or else we do not know what the law is. Hillary, J. It is the will of the Justices. Stonore, C.J. No; law is that which is right. And in Edward IIIs reigns, if we make allowance for the differences between the manuscripts and the printed book, and the
24

William Searle Holdsworth, The Case-Law System: Historical Factors which Controlled its Development, The Life of the Law, ed. by John Honnold, London: Collier-MacMillan Limited, 1964, p. 44. 25 Holdsworth, supra., n. 19, pp. 107-109.

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differences between the Year Book and the modern report, we see cases cited and distinguished much in the same way as they are cited and distinguished in modern times. This would seem to show that the later Year Books are something much more than students notebooks. Just as voluntary associations of students for the purposes of legal education won their way to the position of the Honourable Societies of the Inns of Court, so these students notebooks became those Reports which Burke called the sure foundation of English law, and the sure hold of the lives and property of all Englishmen.26 In ending, a graphic description of the Year Books and their peculiar source of historical knowledge is provided: There are many mediaeval records of various kinds which report contemporary events. There are no other mediaeval records except the Year Books which photograph the actual words, and actions, and idiosyncracies of the actors as they were bringing these events to pass. When we read the official record we think of a machine, which automatically eliminates all the human dramatic element, and describes events and results in one impersonal, accurate, and stereotyped form of word. When we read the Year Book we think of a human reporter, mainly interested it is true in law, but, for all that, keenly alive to the exciting incidents of the trial which is proceeding before his eyesto judicial wit, an criticism, and temper, to the shifts and turns of counsel, to the skilful move or the bungling omission, even to the repartee and the exclamations which the heat of a hardly contested fight evoke. Though therefore the Year Books are valuable because they tell us much of the development of law, they are unique because they picture for us days in court in successive terms and years and through two centuries. Because they do this faithfully, not neglecting that human element which today is and to-morrow is not, they supply just that information which is omitted by those who record with mechanical correctness merely the serious business done. We see not only the things done; we see also the men at work doing them, the way these men did them, and how they came to be done in that particular way. It is for this reason that the Year Books are valuable documents not only to the historian of English law, but also to the historian of any part of English life. They create for us the personal element, the human atmosphere, which makes the things recorded in the impersonal record live again before our eyes. VII. COMMENTS AND CRITICISMS As a natural law theory, which shares the classical natural law doctrine that there is a universal and objective justice which common law judges are unearthing and discovering while they decide cases, and along with that the doctrine that the moral order is part of the legal order, the criticisms of Classical Natural Law Jurisprudence, as developed and articulated in the previous chapter, are applicable also to Common Law Theory. As a result, there is no need to once again reiterate those points. This chapter merely goes to show that natural law jurisprudence had a pervasive influence throughout various jurisdictions and legal systems, particularly in England, due to the common law. 00000 REFERENCES Blackstone, William, Commentaries on the Laws of England, i. p. 67.

26

Holdsworth, William Searle, The Year Books, Select Essays in Anglo-American Legal History, by various authors and compiled and edited by a Committee of the Association of American Law Schools, Boston: Little, Brown, and Company, 1908, Vol. II, pp. 110-111.

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Brunner, Heinrich, The Sources of English Law, Select Essays in Anglo-American Legal History, by various authors and compiled and edited by a Committee of the Association of American Law Schools, Boston: Little, Brown, and Company, 1908, Vol. II, pp. 7-52. Davies, John, Irish Reports (1612), Introduction. Hale, Matthew, A History of the Common Law, 3rd edn. C. M. Gray (Chicago, 1971), p. 17. Holdsworth, William Searle, The Case-Law System: Historical Factors which Controlled its Development, The Life of the Law, ed. by John Honnold, London: Collier-MacMillan Limited, 1964, pp. . -----------A History of English Law, Vol. I, ed. by A.L. Goodhart and H.G. Hanbury, London: Sweet and Maxwell, 1903. -----------The Year Books, Select Essays in Anglo-American Legal History, by various authors and compiled and edited by a Committee of the Association of American Law Schools, Boston: Little, Brown, and Company, 1908, Vol. II, pp. 110-111. Postema, Gerald J., Some Roots of our Notion of Precedent, Precedent in Law, ed. by Lawrence Goldstein, Clarendon Press, Oxford, 1987, p. 16. -----------Bentham and the Common Law Tradition, Oxford: Clarendon Press, 1986. Wesley-Smith, Peter, Theories of Adjudication and the Status of Stare Decisis, Precedent in Law, ed. by Lawrence Goldstein, Clarendon Press, Oxford, 1987. Wu, John C. H., Fountain of Justice, New York: Sheed and Ward, 1955.

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