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Law Reporting in England 1550–1650

Published online by Cambridge University Press:  24 November 2017

John Baker
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Abstract

English law reports between 1550 and 1650 seem far more accessible today than the “year books” that preceded them. This is not because they were produced differently, for a different readership or by a different kind of reporter, but because the legal system itself had changed. We also encounter in the Tudor period the first reports written by eminent lawyers, two of whom (Plowden and Coke) saw a selection of them through the press in their lifetimes. Recent editorial work on the better reports has revealed something of the way they were compiled, and also of what was omitted when contemporary notes were turned into printed volumes.

Coke's reports are the most famous, traditionally cited simply as The Reports. Work has just begun on an edition of the underlying notebooks (first discovered just forty years ago), which will probably require at least six volumes. Coke's reporting style was controversial, and his alleged subjectivity was seized upon by Francis Bacon as one of the grounds for bringing him down in 1616. However, Bacon's scheme of 1617 to engage professional reporters, paid by the crown, seems to have collapsed after a few years. Law reporting was thus to remain a matter of private initiative until the end of the eighteenth century, and many of the best reports – even those written by judges – have still not been published. Anyone seeking to trace the evolution of a legal doctrine or practice before about 1700 must regard manuscript reports as an essential recourse.

Type
Articles
Information
International Journal of Legal Information , Volume 45 , Issue 3 , November 2017 , pp. 209 - 218
Copyright
Copyright © The Author(s) 2017 

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References

2 Title-pages were used for the collected editions. The lack of an author or title presents a challenge to bibliographers, but (as with the statutes) the solution adopted in the Short-Title Catalogue was to list them in a special section under England. They should never, of course, be catalogued under Great Britain, which has no distinct legal system.

3 Maitland, F. W., English Law and the Renaissance (Cambridge, 1901)Google Scholar. For what follows see Baker, J., ‘English Law and the Renaissance’ (1985) 44 Cambridge Law Journal 46–61 CrossRefGoogle Scholar, reprinted in Collected Papers on English Legal History (Cambridge, 2013), iii. 1460–77Google Scholar; Oxford History of the Laws of England, vi (Oxford, 2003), pp. 3–13 Google Scholar.

4 Library of Congress, Washington, D.C., Law Library, Law MS. 15; Baker, J. H., English Legal Manuscripts in the United States of America, vol. i (Zug, 1975)Google Scholar, p. 9, no. 24.

5 Coke came close to it, but his volumes contained selections of cases from different decades rather than a chronological series.

6 Townshend was even named in the colophon in early printings of 2 Edw. IV, but the name had disappeared by the time of the ‘vulgate’ reprint.

7 Ascuns novel cases collectes per le jades tresreverend judge, Mounsieur Jasques Dyer (1585). For Dyer's reports, printed and unprinted, see Baker, J. H., Reports from the Lost Notebooks of James Dyer (109–110 Selden Soc., 1994)Google Scholar, introduction.

8 Baker, J. H. ed., The Reports of Sir John Spelman (93–4 Selden Soc., 1977–78)Google Scholar; The Reports of William Dalison 1552–58 (124 Selden Soc., 2008)Google Scholar.

9 Baker, J., The Reinvention of Magna Carta 1216–1616 (Cambridge, 2017), pp. 155–66CrossRefGoogle Scholar.

10 Baker, J. H., ‘Coke's Notebooks and the Sources of his Reports’ (1972) 30 Cambridge Law Journal 59–86 CrossRefGoogle Scholar, reprinted in Collected Papers, ii. 722–54. Some of the observations below are based on editorial work in preparation for a forthcoming Selden Society volume, Reports from the Notebooks of Edward Coke, 1: 1579–88.

11 Baker, Collected Papers, ii. 736–7 (listing seven manuscripts); Catalogue of English Legal Manuscripts in Cambridge University Library, p. 133 (listing five more manuscripts). There is a dedication to Lord Buckhurst, dated 2 Jan. 1581/82 and signed by Coke (abbreviated in some copies to E. C.). The report is not in his notebooks and must have been written for immediate publication.

12 E.g. there are twenty-one cases in British Library [BL] MS. Lansdowne 1068 (1581–84), a different twenty-one in MS. Lansdowne 1095, ff. 4–6v (1576–83), and thirteen in MS. Lansdowne 1084 (1581–84). There are also examples of single cases, all identifiable in Coke's notebooks, e.g. BL MS. Harley 1693, fo. 100v (1580); Lincoln's Inn, MS. Maynard 29, fo. 1v (1582); Cambridge University Library [CUL] MS. Hh.2.9, fo. 233 (1582); MS. Lansdowne 1076, fos 119v–120 (1583–84); BL MS. Add. 35941, fo. 222 (1583). These are not mere citations, but transcripts of Coke's text.

13 See Anon. (1596) BL MS. Harley 4998, fo. 154v; MS. Add. 25211, fo. 131 (same report): ‘Le report del Buckbeards case [1589/90] fuit deliver a moy per Gawen, quel il copie hors del reportes de Mr Attorney (come il dit), come ensuist …’.

14 The original notebooks, written in law French, are in the Hertfordshire Record Office. They were printed in an English translation by Sir Harbottle Grimstone.

15 See CUL MS. Ii.5.14, fo. 57, per Henry Yelverton (Hil. 1611): ‘mon Seignior Cooke in le novel impression del 6 part de ses Reportes ad reforme le primer print et confesse que le judgment in ceo ne fuit enter mes sur non knowledge’. This refers to the **Case of the Marshalsea.

16 They may be found in The Works of Francis Bacon, ed. Spedding, J., Ellis, R. L. and Heath, D. D. (1857–74), xiii. 90–3Google Scholar; ‘Observations upon the Lord Coke's Reports’, in Law and Politics in Jacobean England: the Tracts of Lord Chancellor Ellesmere, ed. Knafla, L. A. (Cambridge, 1977), pp. 297–318 CrossRefGoogle Scholar.

17 The Letters and the Life of Francis Bacon, ed. Spedding, J., vi (1872), pp. 76–7Google Scholar.

18 ‘A Memorial touching the Review of the Penal Laws and the Amendment of the Common Law’ in The Letters and the Life Francis Bacon, ed. Spedding, J., v (1869), at p. 86Google Scholar. Spedding assigned this to 1614, which is possible.

19 Forenames here added. Hetley is spelt ‘Hedley’ in Bacon's list, and in some other sources, but in his will (1637) he is Sir Thomas Hetley, sergeant at law: PROB 11/173/369.

20 Printed, from Rymer's Foedera, in The Letters and the Life of Francis Bacon, ed. J. Spedding, vi (1872), pp. 264–5; and reprinted from thence by G. J. Turner in 26 Selden Soc. xix–xxiii.

21 The ordinance says ‘grave resolutions and arrests of the reverend and learned judges.’ The French word ‘arrests’ (arrêts) was not used in law French and is a curious interloper here.

22 Henry Calthorpe's reports, BL MS. Hargrave 386, fo. 259v (‘…et ils pristeront lour seate al feete de seignior keaper sur largument del cas de dismes que fuit le primer case que ils reportont’).

23 Ibid., fo. 378.

24 Introduction to 26 Selden Soc., pp. xix–xxiii.

25 CUL MS. Gg.5.6, fo. 216v.

26 The Pension Book of Gray's Inn 1569–1669, ed. Fletcher, R. J. (1901), pp. 255–7Google Scholar.

27 Baker, J. H., The Order of Serjeants at Law (1984), p. 357Google Scholar. He was fined in Nov. 1616 but called to the bench in Nov. 1618: Pension Book, ed. Fletcher, pp. 223, 233.

28 On the other hand, he may have aggravated his offence by leaving his refusal too late, so that the vacation was lost. The benchers were sufficiently irritated by his behaviour to report him to the judges, who also much disliked it: Pension Book, ed. Fletcher, p. 256.

29 Turner tried to identify him with Sir Thomas Widdrington, some of whose reports survive; but they were entirely different people.

30 They may have been by Humphrey Mackworth: see J. Baker, Collected Papers, iii. 1449–50; Catalogue of English Legal Manuscripts in Cambridge University Library, pp. 13–14 (listing list sixteen manuscripts).

31 Suffolk Record Office, HA 93/8/116.

32 Catalogue of English Legal Manuscripts in Cambridge University Library, pp. 7–8 (listing thirteen manuscripts, to which should be added BL MS. Harley 4561; MS. Hargrave 20; MS. Hargrave 47, ff. 43–115). The reports as printed in 1675–76 run from Easter term 1614 to Hilary term 1625. Rolle thus began reporting three years before his call to the bar in 1617.

33 All eleven parts of Coke's Reports had to be reprinted before 1640, some of them several times. The Short–Title Catalogue lists only two editions of the First Part (STC 5493–5494), but the writer has a third dated 1636; the writer also has a 1635 edition of the Second Part.

34 Hobart's reports had already circulated in manuscript.