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If you open the current Law Reports at a venture, you will see just under the names of the parties at the head of a reported case a collection of symbols like this
which presumably conveys no meaning whatever to the lay people. This is what we call “reference to the record.” It is the key to the original and authentic documents containing the official history of every step taken in the action from the issue of the writ to the final judgment or other determination; a history which may cover a period varying from a few weeks in a matter of simple money claim (though such cases, I need hardly say, do not concern the Law Reports) to several years if it is a complicated administration suit in the Chancery Division. For twenty years these originals are to be found in the vaults of the Royal Courts; afterwards they pass into the custody of the Master of the Rolls at the Record Office, where they are permanently added to a series of judicial records unrivalled in the world for their extent, antiquity, and continuity. The selections of criminal and civil pleas which were among the first publications of the Selden Society contain entries of the year 1200. Through seven hundred years and more there has been change of many kinds external and internal; and yet no violent breach, unless the change from Latin to English in the eighteenth century be counted for such; but still change enough. An ordinary English scholar who knows classical Latin can no more read a judicial roll of our antique fashion than he could read a Hebrew roll of the Pentateuch, and an ordinary English lawyer would have but little advantage over him. First the script has to be mastered (and handwriting varied enough through the centuries, not for the better); then the business Latin of the Middle Ages, quite a living tongue in its day, very different from the Latin of the schools just because it was alive; and lastly the matter has to be understood. At this last lesson we are still working. Conversely we may guess that a thirteenth-century Judge, assuming him to have learnt modern English and to be reconciled to the innovation of printing, would be no less be: wildered at the sight of our twentieth-century files. I am not so sure, however, that the guess would be right without qualification, for in some things the whirligig of time has so brought us round that we are much nearer than Black. stone was to our mediaeval ancestors. If Henry of Bratton could be taken through the rolls of the subsequent centuries he might well shake his head at the stiffening technicalities of the fourteenth century, grumble at the flamboyant over. subtlety of the fifteenth, and cry aloud at the enormous ver. bosity of the sixteenth. When he came to the latest forms of Common Law and Chancery pleading in the eighteenth century—the time when Blackstone thought everything al. most perfect—he might peradventure break out, clerk in Or. ders and archdeacon though he was, into such oaths as are reported a little after his time in the mouth of Hervey de Stanton, nicknamed Hervey the hasty: “Parle sanke | dieu seigna! if any pleader had tried to pass off such a heap of jargon on us, we should have said, and in rounder French than your English, that if he did not tell us something bet. ter in five minutes we should give judgment against him.” The guide (whom we must suppose conducting the learned and Elysian author, not without aid of supra-mundane speed and ease, through a series of typical rolls picked out for his inspection in the Record Office) would explain with deser. ence that nowadays pleadings are not settled by discussion in Court. “So much the worse,” Bracton (to give him his conventional name) might reply: “all that writing with no prompt judicial check has spoilt your pleaders' common sense.” Nor would he be wholly mollified by an account of the modern interlocutory proceedings in Judges' chambers which have taken the place of the old dialectic passages he: tween the Court and counsel, so far as the place is supplied at all. We may as well go on overhearing the conversation between Henry of Bratton and the twentieth-century lawyer; it may be the shortest way to realise that there were many modern points about the thirteenth century.
* A lecture delivered before the Faculty of Law in the University of London, February 26, 1913.
IIenry of Bratton. Then I don't see where or how your young men learn pleading.
Guide. Well, sir, to be quite frank, they do not learn it; but then there is very much less of it to learn.
II. of B. How is that? Here is a roll of Queen Elizabeth before me, three centuries after my time, and so far I can only see that the tangle gets worse and worse. And such writing ! we wrote a good business hand, both justices and clerks, and set no store by the fancy tricks of the papal chancery, though I had to know those too.
G. Truly, sir, I am no great expert, and yet I can make a shift to read the rolls of your masters and companions; but I have known it three men’s work to make out a roll of King Charles II.
H. of B. What was the Chancellor about that he did not amend these matters? It was his duty to keep the forms of the King's Court in order, so that the king might do true justice, as we read in some mighty pretty verses writ by John of Salisbury, who was a great clerk—but perhaps you have no memory of him?
G. Now I am sure you are jesting or trying to catch me out in ignorance. If you and your companions hear anything in Elysium you must have heard that John of Salisbury acquired a European reputation and was quoted by learned Italians as Policratus Anglicus; and our news travels slow if you have not yet heard that his opus magnum is excellently edited by an Oxford scholar with all the honours of the University press. But for the Chancellor, sir, there were stiff-necked folks who would not let him invent anything: it was so already in your time: surely you remember the Provisions of Oxford and the oath by which the barons tied him up? And so he had to get a jurisdiction and a court of his own, about which I suspect you know more than you let me see, and the proceedings, while they were never so formally precise as those of the Common Law, became even more long-winded and cumbrous, and quite as captious.
H. of B. So it seems, indeed. Here is eighteenth-century writing; it is from the time of my successor Blackstone, who had the advantage of using his mother tongue as a polished literary language, and so surpassed me greatly in form. But when you talk of mistakes in Roman law, now, you must remember in charity that Exeter was a very long way from Rome, and I had to puzzle out my Azo mostly by myself. Really I think Blackstone's dogmatic and historical mistakes about Roman law had less excuse than mine, for surely he might have consulted doctors of the Civil Law at Oxford.
G. Very true, sir, but I could shew you one place where
Blackstone was misled by a more learned man than himself, no less a man than John Seldon.
H. of B. Certainly we are all fallible. Anyhow my brother Blackstone was too easy-going when he tolerated this monstrous overgrowth of parchment.
G. Suppose we skip a century or so; you may find something to please you better. H. of B. Why, this is printers’ work; plain enough to me too, for it is not much unlike my grandfather's writing: and the pleader sets out to tell the story so that one can see at least what the suit is about; and most of the rubbishing jargon is done away with. But at Westminster they are still writing on parchment late in Queen Victoria's time, it seems, and their forms are only in part more intelligible. The Chancellor had got some way ahead of the King's judges— I mean the Queen's. But what it this title of his that catches my eye at the head of a printed bill? Lord High Chancellor—of Great Britain. G. By your favour, sir, he had been so for about a cen: tury and a half. II. of B. Yes, I remember now, but the name of Great Britain is a strange mouthful to a thirteenth-century Eng. lishman. We old fellows can hardly get over our surprise at the Bishop of Durham no longer being a great frontier chief, with the cares of a secular principality, and Scottish foemen to provide against. It was little I heard tell of Scots in Devonshire, but I met northcountrymen at the King's Court and listened to their tales of border feud and forays. Well, the kingdom has grown out of all knowledge, and our children have played, up and down the world, the part of the gens robusta et longinqua et ignola foretold by Jeremy the prophet; I have heard talk of your judges having to learn strange heathen laws. G. That tale is elsewhere, sir. of the King's Council and what has sprung from it we can hardly speak now, for it is a long matter. Let us pass on to the latest records. H. of B. Well done, young fellows; this is better still. I should not have thought you could clear yourselves of all those cobwebs, and make for the simplicity I was trying to attain in my own time. So you have got rid of the diversities of Courts, and restored our lord the king in possession of his one Curia Regis. Well done, I say again.— G. Now, sir, let us go back to your old rolls for a moment. See here your own marks, which have been brought to light again in these latter days, in the margin of the cases you took out for your note book.
H. of B. A good sight; and better to see that book well handled and made free of the world of letters; and best of all that the work was done by a fellow west-countryman, almost a neighbour of mine. G. I should guess, if it were lawful to guess, that you have already had right good talk with Maitland. H. of B. My young friend—for even when your hair is turning grey you all seem very young to me—you shall not imitate the pleader who wanted to be plus sage qe Dieur. We may not report the matter nor the manner of our heavenly converse; and you would not understand it if we might. This visit of mine is exceptional enough of itself, such a thing as does not happen nisi aliquando de gratia. But you may salute for me the good clerk who found my book, Paul the son of Gabriel whom Oxford has captured from the far land of Muscovy. . . . When that guide awoke he felt certain pricks of conscience, wondering whether he ought to have produced the Rules of Court and the White Book, and how far Henry of Bratton's approval of our simplified pleading might be damped by the contemplation thereof. But it is certain in any case that the White Book is not of record; and therewith his conscience was pacified. This imaginary dialogue, which might be indefinitely extended, may serve as well as any other device to recall to us in a summary way what an immense amount of legal and political history the records of our Courts have embodied, and the fact that for much of it they are the real ultimate authority. I will mention here a little technical point for the sake of any student who may be puzzled by it, as I was for a time. Sir G. Jessel once committed himself to the statement that the Court of Chancery was not a court of record.” The only reason he gave was that the records were in the custody not of the Chancellor but of the Master of the Rolls. The statement is directly contrary to Blackstone's,” and, with great respect, the reason is doubly wrong. First, according to general understanding and practice the Master of the Rolls was only the Chancellor's deputy, though this was not free from controversy. Secondly, the decisive mark of a
* L. R. 20 Eq. at p. 347. * Comm., i. 68.