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court of record, according to Coke's opinion given in two places, is not that the Judges of the Court keep the record, but that the record itself is the only authentic and conclusive proof of what the Court has done. It is a minute question, for nobody doubted the power of the Court of Chancery, but still worth clearing up. Coke might just possibly have denied the name of a court of record to the Court of Chancery in its equitable jurisdiction on the ground that its procedure was not according to the course of the common law. This would obviously not apply to the functions of the Court in the issue of writs and the like, as officina iustitiae, or as holding pleas in its “ordinary" legal jurisdiction' He might also have taken the still more technical exception that the Chancery proceedings were not entered in a parchment roll like those of the Common Law Courts. Both these reasons would have involved an equal refusal to call the Star Chamber, a very exalted Court according to Coke's own statement in the Fourth Institute, a court of record. In point of fact I do not find that Coke said or suggested any such thing with regard either to the Star Chamber or to the Court of Chancery. We have lived so long with our unique wealth of documents that we take it as a matter of course and fail to be duly thankful for it. Let us consider for a moment the state of modern Romanists, and what they would give for a tithe of our resources. Many scores of learned volumes have been written about the procedure of republican and early imperial Roman law. No small amount of what had been written before the nineteenth century was rendered obsolete when the Verona palimpsest of Gaius gave up 30 much of his buried text as could be painfully revived. But how much greater would our enlightenment be if we could recover a complete record of the proceedings in a single attion under the formulary system. It is hardly uncharitable to suppose that about three-quarters of the learned monor graphs would lose their importance, be it greater or less. Reports of Roman forensic oratory we have, and at great length; but they are insufficient not only because Roman advocates, it seems, allowed themselves great latitude in deliber. ately talking bad law to an unlearned Court, but because their speeches assumed the very things to be known which the modern Romanist does not know and would like to find out.
Not that the official record alone, in any system I have heard of, would tell us the whole practice. But a report alone, official or unofficial, will even less enable us to understand the whole matter without authentic knowledge of the formal procedure. Our experience with the Year Books has given ample proof that in the case of a report made by private enterprise the record is of the utmost value as a check. I say private enterprise, for, with all respect for Mr. Pike's ingenious attempt to save the face of Bacon, Coke, and Blackstone, I hold that the legend of the Year Books having had an official or even semi-official character (which I tried to find credible as long as I could) is now finally exploded. The check in ques. tion is likewise applied from time to time by the Court itself, as every habitual reader of the current reports knows; and seldom without profit. Neither is this practice merely modern; we have at least one case, at present accessible only in Brooke's Abridgement,” where the Judges corrected an erroneous account of the actual decision in an earlier Year Book by comparing it with the roll. Accordingly the fathers of English reporting, Plowden and Coke, writing in the days when there were no published books of practice, were at the pains of setting out at the head of their reports a copy of the record itself or at least the pleadings. Considerable extracts from the pleadings, I need hardly remind this audience, are quite common in modern common law reports; and similarly in equity cases, where the exact form of the decree is often material, the minutes of decree were frequently added. It depends on the nature of the case, and the procedure applicable to it, how much or little information about the facts in evidence and the reasons for the decision can be derived from the official documents. A learned person lately said of the rolls of our Courts as distinguished from reports that “the objects of the record are science and jurisprudence.” That is exactly what officials and archivists would deny. The business of the record they would say, is to shew what was officially done, and nothing else; or if it does shew anything else, that is a superfluity which were better done away with. We are to learn from the roll what rights were asserted and denied by the parties, what was at issue between them in fact or law, and what judgment was given. How far any rule of general importance was laid down, to what extent received opinion or current practice is affected, whether the facts were of a familiar kind or novel, these are things we must find other ways of learning. Hence the distinction of which we are aware from our earliest student days between a record and a report. The record is authentic; a report has not, in this jurisdiction, any authentic or even official character, and can always be contradicted by a more accurate report or even by the clear recollection of the Court or counsel, though this does not often happen. Lines of technical distinction are in law, as in other sciences, more clearly and sharply drawn in later than in earlier days; and so we need not be surprised when we find that in the middle of the thirteenth century the Westminster record may tell us a good deal of what the case was really about, but in the middle of the eighteenth century it will, oftener than not, tell us nothing. The mediaeval fashion may be conveniently seen in Maitland's edition of Bracton's Note Book, and that of our great-grandfathers in the forms printed by way of appendix in the older and genuine editions of Blackstone's Commentaries: forms which ought to be studied, as well as the untouched text of the author himself, by every one who desires to understand the history of modern English law. In Chancery proceedings, on the other hand, all the facts relied on had to be asserted in the course of pleading, and therefore we have the story, though in a form which became more and more cumbrous and involved as the Court of Chancery developed a fixed procedure, and was reduced to rational order and dimen. sions only in the middle of the nineteenth century. Neither in common law nor in equitable procedure were the reasons for the ultimate decision apparent on the record itself, though in many cases a competent lawyer with the pleadings before him could form a pretty safe guess as to the point or points on which it turned. This. I think, may safely be said to be characteristic of the English judicial system, though I have no such extensive knowledge of foreign procedure as would justify me in either affirming or denying that our usage is singular.
* Tit. Earecutor, pt. 22.
It may be supposed that judicial records have lost much of their importance by reason of formalism having been abolished, or at least having greatly declined, in modern procedure. Such a view, I think, would be superficial. It is true that slips in procedure are no longer fatal, and that it is not necessary to disguise questions of principle under apparently technical controversies as to the proper form of action. But it is impossible to conduct the business of administering justice without rules of some sort; those rules have to be interpreted; and the necessity for applying them to
unforeseen facts may raise questions that go much deeper .
than form. A dispute whether a writ can be served out of the jurisdiction, for example, must not be assumed to be merely technical. It may depend on a determination of nationality, and require the Court to consider and review principles not only of general but of cosmopolitan interest. On the other hand, the manner in which questions of this kind arise, and the fact that they arise at one time rather than another, must in large measure depend on the structure of legal procedure even in the most modern and rational system. Roads are for the sake of traffic and not traffic for the sake of roads, and yet when a road is made the traffic has to follow it. So do the conditions of procedure, once established, determine the form of substantive legal problems and the lines on which they can be solved. The framework of procedure supplies the conventions without which no art can be practised; for in truth all art, from dancing to pleading, is conventional, and innovators who speak brave words about doing away with convention are only setting up some new convention of their own, which may be good or bad as it happens. Thus every new legal form and every material modification of an old one is a possible nucleus of further development which may very well be more than formal. It is also to be noted that many questions are on the borders of procedure and substantive law, questions of parties for example. Whether any man has done me a wrong, or owes me a debt or an account, and who, is certainly a substantive question, and finding the right man to sue can hardly be called an affair of procedure. But then questions may arise, in affairs of a certain complexity, whether other people are not necessary parties, whose business it is to bring them before the Court, and in what form; and if these are not matters of procedure it is difficult to say what is. There is a great harvest of knowledge yet to be gathered from our judicial records and the documents associated with them, and so far the labourers in any one generation have been few. Some difficulties are in the way, but not comparable to those that have been overcome in many other fields of scholarly research. It is simply a matter of having enough competent workers and encouraging them to carry on the work.
The method and instruments are sufficiently known, and there are masters willing to teach, but they want more learn. ers. Is it not fit to be considered what can be done in this behalf by the young and vigorous law faculty of a university established here in London, within easy reach of the centres of legal and mediaeval learning and the Record Office itself? Perhaps it may not be presumptuous to suggest that the local circumstances afford good reason for some special determina. tion of your university’s higher legal studies in this direction, There is the certainty of dissertations being required for the higher degrees, and candidates are often glad to have some guidance in choosing their subjects. There is the possibility, I should hope some probability, of a seminar such as my friend Prof. Vinogradoff is already conducting at Oxford. More. over, although for anything I know this may be, for the present, a counsel of perfection, I do not see why candidates for the higher honours of the faculty should not be expected to show some acquaintance with the language and the mater. ials of our mediaeval law. It is unhappily true that in the Inns of Court it is quite possible, partly for the hardness of men's hearts and partly for accidental reasons not necessary to mention here, to satisfy the requirements of the Bar exam. ination, which include Roman law, without being able to construe a sentence in Latin. But surely there can be no need to exhort a university audience to regard that state of things as warning rather than example. Many years ago I was examining for the Law Tripos at Cambridge, and overheard some examinees discussing a paper set by myself the same morning. Their judgment was unfavourable. “I thought we should have questions on history,” said one of them, “and they set a lot of beastly Latin.” It is precisely the vocation of a law faculty which takes its work seriously to make it plain to students that without the “beastly Latin” they cannot have any history deserving the name, and without adding mediaeval French to the Latin they cannot have any opinion of their own worthy of being considered by scholars, or even classed by examiners, on any part of the history of English law before the nineteenth century. My ideal Bachelor of Laws should be able to read the usual constitutional and legal texts in Latin, and to make out plain Year Book French with the aid of Horwood's and Maitland's editions. My ideal Doc. tor of Laws would not necessarily be able to read an original roll or a Year Book MS. with certainty, but I should like