Front Page Titles (by Subject) CHAPTER 13: THE GROWTH OF THE JUDICIARY - A Concise History of the Common Law
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CHAPTER 13: THE GROWTH OF THE JUDICIARY - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE GROWTH OF THE JUDICIARY
Amid all these changes, one thing remained constant, and that was the immense influence exercised by the judges, which was all the greater in view of the fact that before reaching the bench they had already achieved distinction at the bar, either as serjeants or barristers and King’s Counsel, and in some cases had been solicitor- or attorney-general. From one point of view quite a good deal of the history of the common law could be written in the form of a chronological series of biographies of the leading judges. Except in the case of the comparatively small number of judges, such as Coke, whose life is a part of the general politics of the day, the actual biographical details are of little importance. Most legal careers run upon a regular pattern: student days, the call to the bar, the growth of practice, the tenure of public offices and the rise to the bench—all these follow in regular course in the lives of most of the great judges, and there is no point in trying to remember all these details. It is much more important to try to ascertain the peculiar gifts and qualities of each judge, and the incidents in his career which contributed to the formation of his character and mental outlook. In the light of all this it would become possible to evaluate his contributions to the law; but unfortunately not all of the judges have been blessed with biographers of sympathy and imagination The present chapter will be devoted to biographical sketches of the principal common law judges; the Chancellors will be similarly treated when we deal with the history of equity.
THE OFFICE OF JUDGE
In the first place, however, there is the difficult problem of the evolution of the office of judge. Our earliest courts, according to the prevailing opinion, consisted of suitors who constituted the court and rendered its judgments. This tradition, developed in the communal courts, was continued by the feudal courts, whose suitors were bound by the condition of their tenure to render this “service” to their lords.1 In important matters the lord himself might preside, but more generally it was his steward who “held” the court. We have also seen that even the King’s court was at first of this nature;2 how then did the more modern type of court consisting of a judge come to supplant the ancient system?
This transformation took place late in the twelfth century and appeared first in the King’s courts. The details seem to be no longer recoverable, for that period has left but scanty records; all the same, it may be possible to suggest what happened by studying first the repetition of the process which took place much later in the history of the House of Lords. The ancient curia regis, consisting of household officers, officials of state, lawyers, prelates and nobles, has survived as the House of Lords with singularly little formal change in spite of its adaptation to more modern conditions. Of ceremonial survivals we have already spoken, but even more striking than these is the continued function of the House of Lords as a court of law. Its original jurisdiction was still exercisable in the ancient manner—that is to say, the House sat as a court consisting of suitors, every member of which took part in forming the judgment of the court, irrespective of his qualifications as a lawyer. The trial of peers and impeachments were of this character. It is indeed a curious reflection that the ancient conception of a court of suitors should have lasted, not merely as a historical survival in the House of Lords, but also as a fairly frequent procedure in cases of impeachment in America, although Europe began to abandon it in the twelfth century.
The jurisdiction of the House in error is partly an outcome of the fact that Parliament is the ultimate court, and partly of the fact that the King himself is there surrounded by all the talent of the realm to resolve difficulties and to supervise all the organs of government, both judicial and administrative. For centuries there has been a natural antipathy between the public and the functionary, between the baron and the official. It is but natural, therefore, that there should be some question whether the judicial powers of Parliament should be exercised by the lords or by the councillors. Once again the older principle prevailed, and the whole House maintained its ancient constitution as a court of suitors. And so it remains to-day in theory. Certain modifications have been introduced, however. Before the Act of 1876 the House frequently consulted the judges, and generally (though not always) accepted their opinion. Lay peers ceased to vote upon appeals1 in 1844, and in 1876 the Appellate Jurisdiction Act required the presence of certain law lords when appeals were heard. That act did not exclude lay lords from participating, and it was as late as 1883 that a lay lord’s vote was for the first time held void.2
The nineteenth century was probably repeating unconsciously what had been going on in the twelfth. There were several factors in that history. First, there was the powerful example of the ecclesiastical courts which consisted of judges—generally, in this period, single judges. Then there was the strong trend towards administrative forms which had already transformed certain sessions of the curia regis into the highly professional Exchequer. The success of that institution must certainly have strengthened the tendency towards professionalism in the King’s Court. Then there was the similar success of the judicial eyres. These were at first no doubt regarded as meetings of county courts presided over by royal commissioners,3 but the county itself so often fell under the displeasure of the commissioners that there can be no doubt that the eyre soon became in substance a court held before judges rather than before suitors.
Again, suit of court, whether of local courts or of the King’s own court, was an expensive burden, and agricultural pursuits do not leave much time for distant travel and prolonged absences. In many county and seignorial courts4 the statutory permission for suitors to attend by attorney must have compelled the steward to assume truly judicial functions if the courts were to meet with the accustomed frequency. Indeed, the reluctance of people to admit themselves suitors might lead the court’s owner to appoint judges to serve in their place. Thus the burgesses of Bury St Edmunds and the abbot’s council affirm that there is no question of suitors there, but that the abbot by his letters patent appoints judges to hear and determine suits.1 In the King’s Court the rapid increase of business would have needed almost permanent assemblies of barons for its dispatch if the old system was to endure. The solution was found in 1178 in the establishment of the five whom we have already mentioned;2 at first perhaps they acted as a sort of sub-committee of the whole curia,3 but the mass of business before them, and their success in handling it, must very soon have established them as true judges of a court of the new model.
Even this device only brought temporary relief; there was still constant recourse to the parent body—the King himself in his court, and there too the process was repeated when justices were “assigned to hear pleas before the king himself”. Once again, the result was a new bench of judges, and again it was possible to explain the anomaly by regarding them as a committee of the curia regis. In Parliament itself, as we have just seen, the process was slowest, being only completed within the last few generations. In logic the distinction between judges and suitors is perfectly clear, but in practice it is probable that the novelty of the new benches was obscured by the fact that they were regarded as deputies for the larger curia. As we have already seen, the connection between the judges and the council in Parliament was at one time very real.4
With the establishment of the Court of Common Pleas, the decisive step was taken: the future of the common law was put into the hands of judges.5 Everything will therefore depend on the mode of selection of these judges, and the position assigned to them.
THE APPOINTMENT OF JUDGES
Several possibilities were open, but in the later years of the twelfth century there was little room for hesitation. The judges were drawn from the small group of royal clerks who constituted the nascent civil service. Their names are in many cases unknown, but their work was well done in the great tradition of Norman administration. At their head was often a justiciar who seemed to his contemporaries second only to the King in power and dignity. His duties, military, civil and judicial, were the product of the unseparated powers of the King himself. The justiciar is best regarded as a prime minister when the King was present, and as a viceroy when he was abroad. In the twelfth century, therefore, it is impossible to distinguish the lawyer from the statesman and the politician; men such as Glanvill and Becket, Lanfranc and Hubert Walter, must have had considerable influence upon legal development, but still we can hardly describe them as lawyers, or judges.
PATESHULL AND RALEIGH
In the early years of the thirteenth century it is easier to recognise the beginning of the modern judiciary in the great judges, Pateshull and Raleigh, whose judgments were the inspiration of our first great law writer, Bracton. Martin de Pateshull1 was Archdeacon of Norfolk and Dean of St. Paul’s; he became a Justice of the Bench in 1217 and was constantly employed upon judicial Eyres. So active was he that one of the clerks, on behalf of himself and his colleague Raleigh, complained to the Justiciar of the way in which Martin worked his colleagues from sunrise to sundown. When he died in 1229 he had gained the reputation (at least with Bracton) of being the finest lawyer in England. More than sixty years after his death, litigants asked that Pateshull’s rolls be searched for precedents, so highly were his judgments esteemed.2
William de Raleigh was rector of Bratton Fleming in Devon, which was perhaps the birthplace of Bracton himself. In any case, one Odo de Bratton was his vicar. Raleigh began his legal career as clerk to the great Pateshull (and it is quite possible that young Henry de Bracton began in his turn as Raleigh’s clerk3 ). In 1228 he became a Justice of the Bench and in 1234 treasurer of Exeter Cathedral—of which Bracton was later to become Chancellor. In 1238 he was bishop-elect of Winchester but did not gain possession until 1244 owing to opposition from a rival candidate promoted by the King. He died in 1250. He seems to have been one of the most important promoters of the Statute of Merton, from which we learn that he strongly supported the barons in their refusal to “change the laws of England” by adopting the canon law rule of legitimation by subsequent marriage. A cleric who held high ecclesiastic preferment could therefore take an independent view, and reconcile his orders with a nationalist outlook; because a man was a cleric it did not necessarily mean that he would favour the canon over the common law.
CLERICAL JUDGES AND THE CIVIL SERVICE
These thirteenth-century judges, like most of the clerks and officials, were technically “clergy”. This does not imply that they undertook parochial or diocesan duties; as a rule they were not priests nor even deacons, but had received one of the lowest orders. But however low their orders, they were still able, lawfully or unlawfully, to hold rich benefices, receiving the emoluments and appointing deputies to carry out the pastoral duties. This was a regular way of making provision for civil servants in the middle ages, for the Church was rich and the King comparatively poor. Salaries were indeed attached to many offices, but they were small and payment of them was irregular. The judges frequently had to complain that their salaries were several years in arrear. Moreover, the fact that many judges in this period were clerics must not be taken as evidence that they were also canonists. Canon law, like theology and philosophy, was one of the Church’s great contributions to civilisation, but it must not be supposed that every clerk in minor orders was a canonist, any more than that he was a theologian—or a saint. Many ways of advancement were open to an able and ambitious cleric—theology, canon law, ecclesiastical politics, diplomacy, finance, the royal civil service, and as part of the last-named, service in the royal courts of law. But it is unsafe to say that any mediaeval cleric was a canonist unless there is some direct evidence; it certainly cannot be presumed. In any case, we already find at the middle of the century a few knights on the bench, and at the close the proportion of lay judges steadily increases.
JUDGES AND THE LEGAL PROFESSION
During most of the thirteenth century, therefore, the bench was part of the civil service. Moreover, this same period saw the rise of a group of practitioners before the King’s courts which was small, active, learned and (like the court itself) centralised. Although the material traces of their organisation come from a later date, we can hardly escape the conclusion that this group of expert pleaders was united by something like a professional spirit, its members being in constant and intimate contact with one another, and drawn together by their common interest in the law and procedure of the King’s Court. In such a state of affairs there must arise the question of the relations between bench and bar. Not only is there the purely formal relationship to be settled, but there is the even more fundamental psychological attitude of bench and bar to be considered. When the same half-dozen judges are constantly being addressed by the same score or so of practitioners, these two small groups cannot help influencing each other. The practitioners will be constantly comparing the decisions of the court, taking notes of them, and endeavouring to reduce them to consistent principles. However much the bench might be tempted to handle cases in the spirit of administrative discretion, the small, vigilant body of pleaders with long memories and ready tongues are there to protest that decisions ought to be consistent and that settled courses of practice ought not to be disturbed. Much depended upon the personality of the judges, and some of the earlier members of Henry III’s bench were men of outstanding ability, as we have just seen. As we approach the great political crisis of the middle years of the century, however, it is clear that the situation has changed. Both Bracton and the baronial opposition openly accused the judges of ignorance and corruption—charges which were brought against other branches of the civil service as well.
Officialdom was under a cloud, and the result was momentous. If the old system had persisted, and if the judges had continued to be members of the civil service, with different careers from the bar, we should have had in England (and probably in America too) something like the system prevailing in several continental countries to-day. According to this system, the young lawyer has to decide very early in his career whether he will go to the bar or to the bench. Naturally, these two careers attract different types of men. At the bar the competition is severe, progress slow, but success brings considerable wealth and great social and political influence. Brilliant and adventurous men are attracted by a career at the bar. A candidate who elects for the bench has very different prospects. He has a salary instead of prospective profits, certainty instead of a gamble. His first post is in a petty court in the provinces; like other functionaries, satisfactory service will bring him advancement from lower to higher courts, from distant towns to the metropolis. The mentality which such a career attracts is very different from that of the advocate, and the result is that bench and bar are divided by differences of interest and training.
The movement away from the civil service element in the administration of justice at the end of the thirteenth century led to an experiment in a different direction. Instead of recruiting judges from the ranks of officialdom, recourse was had to the bar. Even here there were at least two possibilities. Among the canonists at this moment the pope had become not only the ultimate court of appeal, but also a court of first instance as well. Litigants went direct to the highest tribunal of the Church. In practice this meant that the pope appointed delegates to hear the case, and these delegates were appointed ad hoc from among eminent practitioners. We did in fact have this same system in England some centuries later in admiralty and in ecclesiastical causes. Under such an arrangement there were no permanent professional judges, but simply a bar whose members might be advocates at one moment and judges-delegate at another. Dickens has given a vivid picture of the red-robed doctors of law who practised under this system in England, just as the canonists and civilians did in the middle ages. There are traces that in some cases at least we might have adopted this arrangement. It was in fact a common practice for the King to appoint special commissioners to hear particular cases which had been brought to his attention. Criminal matters could be heard by special commissions of oyer and terminer consisting partly of notable laymen and partly of professional lawyers. This system did not become general in England, however, and the principal reason must be that the hierarchy of courts one above the other had become too well established to be disturbed in favour of a method which implied that all jurisdiction was exercisable by the King. Such a theory would only fit English facts if it was qualified by the reservation that portions of this jurisdiction had been permanently delegated to the courts and that there could be no question of revoking the powers granted to the King’s Bench and Common Pleas.
JUDGES DRAWN FROM THE SERJEANTS
Hence the only remaining way of combining the permanent courts with the legal profession was to choose the permanent judges from among the serjeants (who for the moment were the branch of the profession which mattered most).1 The system has persisted, with very little modification, to the present day both in England and in all jurisdiction where the common law prevails. Its great characteristic is the intimate connection between bench and bar. In the middle ages this was emphasised by the fact that the serjeants during term time lived together in their inns and discussed their cases informally together simply as serjeants, without distinction between those on the bench and those at the bar. Even with the rise of newer branches of the profession, the decline of the serjeants and the rise of the attorney- and solicitor-general, the same fundamental situation remained. The judges had passed through the same career as the bar; they had achieved success in the same keen competition, and were therefore generally the equals of the best men at the bar; their point of view and their conception of law were derived from their experience as advocates instead of being the product of a different career under civil service conditions. Moreover, the judges were men who had passed a large portion of their lives in the world of practical affairs and had won success there. And finally, the common experience and training unite bench and bar in an understanding of each other which is difficult to attain when their professional lives are spent in different careers. This co-operation between bench and bar is of the utmost importance for the working of the common law system.
THE SCANDAL OF 1289
The thirteenth century has one other distinguished English judge, Henry de Bracton; his eminence rests so much upon his writings, however, that we speak of him in detail in discussing his book; and so with the closing years of the century, we come to the age of Edward I. Here we find the one great judicial scandal of English history (1289). Charges of corruption were investigated by a special commission headed by the Chancellor, Burnell.1 Lurid accusations of all sorts of crimes, from sorcery and murder downwards, were brought against various officials as well as the judges, and it is clear that the civil service came out worse than the judicial service. The Chief Justice of the Common Pleas fled the country; the Chief Justice of the King’s Bench, the famous Ralf de Hengham, was found guilty of tampering with a record—later tradition says that he did it out of charity for a poor man—and paid a very heavy fine. Short afterwards, however, he was restored to favour and made Chief Justice of the Common Pleas. Tradition has it that the fine was used to build a clock tower at Westminster which remained until 1715. Like Bracton before him, he became Chancellor of Exeter Cathedral. At least once in Parliament he withstood the King to his face in the cause of justice.2 And, as we shall mention later, he took a prominent share in drafting Edward’s legislation, notably the statute De Donis.
LAY JUDGES: BEREFORD
Most of the judges so far had been ecclesiastics, but from Edward II onwards the proportion of clergy on the bench tends to decline. The connection with the civil service is still close, and we find cases where the bench is used as a sort of honourable retirement for a civil servant.3 We also begin to find, however, that the law becomes a profession and a career. There is a tendency to promote serjeants from the bar to the bench—the first seems to have been Lawrence4 de Brok, who became a judge early in 1268—and so we finally arrive at the period of professional justices who had a long training at the bar as preparation for their high office.
William de Bereford is a typical example of the new professional justice.1 Bereford became distinguished in the service of Edward I; yet it is remarkable to notice that immediately Edward II came to the throne he was well known to be an intimate friend of the notorious favourite, Piers Gaveston. Indeed, he remained so constant to Gaveston that the baronial opposition demanded his banishment from the kingdom as one of the four men who had given the King evil counsel. At this critical moment his fortunes took a sudden and mysterious turn; instead of being banished, he was shortly afterwards promoted to succeed Hengham as Chief Justice of the Common Pleas (1309), and almost immediately the opposition adopted a formal vote of confidence in the new Chief Justice. By what feat of diplomacy this happy result was accomplished we are not told, but it is clear that the adroit Chief Justice enjoyed the fruits of his dexterity for the rest of his life. As a lawyer he stands out clearly among his fellows, and the Year Books of Edward II owe their peculiar flavour very largely to Bereford’s presence. His character appears most vividly even after a lapse of six hundred years; his quick temper, his anti-clericalism, his refusal to allow formalities and even statutes to stand in the way of substantial justice, appear constantly. On many points his views were highly original and it is not uncommon to find him in a very select minority. He was certainly one of the greatest and one of the most influential judges of mediaeval England. Although his career was almost entirely devoted to the law, like other judges he was occasionally employed upon diplomatic missions.
JUDGES AND POLITICS IN THE FOURTEENTH CENTURY
The political adventures of Bereford can be matched by others during the fourteenth century, which all go to prove that the bench in this period was still part of the government, if not of the civil service. Thus in 1340 a financial crisis compelled Edward III to suspend his war with France. Returning unexpectedly to England, the King dismissed the Chancellor, the Treasurer, many clerks in their offices, Stonor, C.J., C.P., Shardelow, Sharshull and Willoughby, JJ., together with a number of financiers. An attempt to prove charges of corruption against them failed, for no accusers of consequence came forward, and it is clear that the incident was really an attempt by the King to dismiss with ignominy a ministry which he thought had betrayed him. A serious political crisis was the result, and in the end the judges were restored. It was vigorously maintained that these men were not responsible for the King’s difficulties, but no one suggested that judges, as such, were or ought to be outside of politics.2
To be independent of national politics was easier than to be independent of local connections, and entanglements of the latter sort were frequent. There is clear evidence that great monasteries (which, like great businesses of our own day, were constantly engaged in litigation) paid regular retaining fees to royal judges1 —and of course numerous gratuities to all grades of officials.2
A rather different and much more serious conflict occurred in the next reign. In 1386 a parliamentary commission was set up with powers which virtually superseded the normal functions of the King. Richard II formed a court party with Tresillian, C.J., K.B., at its head, and then called the other judges to Nottingham in August 1387 to pronounce on the legality of the commission. It seems clearly implied in this tactic that the judges were sufficiently outside party politics for their support—apparently impartially accorded on a point of law—to be valuable to the King. They declared that the commission was invalid and traitorous. The opposition, however, appealed the King’s friends of treason and Tresillian, C.J., was hanged. The judges who gave the opinion at Nottingham were impeached and banished; they were Belknap, C.J., C.P., Fulthorp, Holt, Burgh, JJ., and the chief baron.3
THE WARS OF THE ROSES
With the beginning of the fifteenth century we come to one justice who has achieved a fame in legend, Sir William Gascoign. Of him is told the famous story that the young Prince, afterwards Henry V, was charged before the Chief Justice and even offered violence to the court, whereupon Gascoign committed him to prison for contempt. The opinion of authorities is divided upon the authenticity of this story, the latest of them being content to present the authorities and to leave the question open.4 Of the two other outstanding judges in the fifteenth century, Littleton and Fortescue, we shall say more in the next chapter.
More important are the growing number of cases where the judges asserted the rule of law in the face of attempts to introduce royal influence into their courts, while it is abundantly clear that they had learnt the lessons of Richard’s reign. During the manifold changes of the fifteenth century, the judges quietly stood aside from the clash of party, with the result that successive changes of dynasty left the bench unaffected. Fortescue alone took any part in those struggles, and after long years of exile finally abandoned the attempt to combine dynastic attachments with judicial office. Not until 1553 do we again find judges removed for political or (since the Reformation) religious reasons. On Mary’s accession Cholmeley and Montague, C.JJ., and Hales, J., were dismissed,1 but Elizabeth made no changes on the bench when she restored Protestantism in 1558.
THE TUDORS AND THE JUDGES
The final separation of the Privy Council from the Star Chamber was a salutary development, for it kept the judiciary distinct from the executive. From 1540 onwards Henry VIII had no judges in his Privy Council. Edward VI and Mary put the Chief Justices on the Privy Council, but Elizabeth excluded them for some forty years. Only at the end of her reign was Popham, C.J., sworn of the Privy Council, in 1599. Thus the intimate connection of Star Chamber and Privy Council once again began,2 and was rapidly intensified under the earlier Stuarts, with disastrous results.
Meanwhile, the old practice of lawyers seeking election to Parliament meant that many judges had had some parliamentary experience, as part of the normal career of an ambitious lawyer. Some of them went even further, and in the sixteenth century many Speakers of the House of Commons were promoted to the judicial bench—and the Speakership was then an important political position.
THE STRUGGLES OF COKE AND BACON
The sixteenth century, although rich in legal changes, presents us no particularly striking figures in the law until its close when in the last years of Elizabeth we find the rise of Sir Edward Coke.3 Born in 1552, he proceeded in due course to Trinity College, Cambridge, and in his later years became High Steward of the University. He entered the Inner Temple and was called to the bar in 1578. Owing to the influence of Burghley he rapidly rose in public office, became Recorder of London in 1591, Solicitor-General in 1592, Speaker of the House of Commons in 1593, and Attorney-General in 1594. By 1601 he had made an enormous fortune, and entertained Queen Elizabeth in his house with great magnificence. In 1600 he began the publication of his Reports. In this early stage of his career, distinguished by his astonishingly rapid rise in the law and in politics (for it must be remembered that in his day a Speaker of the House of Commons was something like a modern Leader of the House), it is only natural that he should be full of enthusiasm for the Tudor conception of the State as expressed by Queen Elizabeth. Full of patriotism and national pride, Coke shared the feelings of others of his contemporaries who exalted the idea of the State, and displayed a violent hatred of Roman Catholics and political prisoners. Even contemporaries sometimes felt that he exaggerated a little, while his prosecution of Raleigh overstepped all bounds and was conspicuous among the State trials even at this period for its brutality. However, it must be remembered that Elizabeth’s reign had often been seriously threatened by a combination of foreign and domestic intrigue, and Coke, as a member of the Government, was well aware of these public dangers. During this period of his career he was naturally a firm supporter of the royal prerogative.
COKE AS CHIEF JUSTICE
The peaceful accession of James I in 1603 must have surprised many contemporaries, for there had been widespread anxiety in Elizabeth’s later years concerning the future after her decease. For a few years all went well. James seemed firmly seated on the throne and constantly proclaimed his adherence to the Tudor idea of government. In 1606 Coke became Chief Justice of the Common Pleas, and therefore high priest of the common law, for whose mysteries he had an almost superstitious reverence. As so often happened in mediaeval times (and Coke’s mind was essentially mediaeval), the attainment of a high office brought a change in his character and outlook. Just as the soldier and courtier, Thomas Becket, became transformed into a churchman of the sternest school on becoming Archbishop of Canterbury, so Coke, once the upholder of prerogative, discovered a new point of view from the bench at Westminster. Perhaps it was a tendency of his character to idealise whatever position he happened to be in; as a Crown lawyer he magnified the prerogative; as the head of the common law system he exalted law to almost mystical heights. This meant a complete revision of his attitude towards the Crown, and there can be no doubt that many capable minds besides Coke, who were content to trust the Crown under Elizabeth, were equally likely to distrust it under James, whose previous record in Scotland was not reassuring. Coke now transferred to the common law, of which he had become the oracle, that supremacy and pre-eminence which he had ascribed to the Crown while he was Attorney-General. A line of decisions, of which Bonham’s Case was a notable example, contained his new teaching.1 From this time onwards he never lost an opportunity of declaring against the prerogative. His first quarrel was with the ecclesiastical courts, and especially the Court of High Commission. The prerogative was soon involved in this dispute, and Coke quoted Bracton’s famous words that “the King is subject to God and the law” (that is to say, according to his enemies’ interpretation, to Chief Justice Coke and the Court of Common Pleas), while in the Case of Proclamations (1610) Coke found yet another opportunity of attacking the prerogative. So far Coke had contrived to maintain his personal popularity. The Prince, afterwards Charles I, enjoyed his company because “he so mixed mirth with wisdom”, and the youthful enthusiasm which runs through all his writings, and his undoubted sincerity, still further contributed to his popularity, while according to the fashion of the times he was fond of splendid attire, “delighting in good clothes, well worn, and being wont to say that the outward neatness of our bodies might be a monitor of purity to our souls”. Consequently, although he gave constant cause of annoyance to the King, yet for a long time the court party was prepared to tolerate him. Indeed, Coke’s position as the champion of the supremacy of the common law was extremely strong, for it certainly represented public feeling based upon centuries of mediaeval thought which had always looked to law rather than to the State. Proposals were soon made that Coke should be removed to some other sphere of activity, finance for example, in which he was reputed to be skilled, and finally, on the advice of Bacon, who was now entering upon a career of open rivalry with Coke, the latter was promoted to the less important but more dignified position of Chief Justice of the King’s Bench (1613).
BACON AS CHANCELLOR
The contrast between Coke and Bacon was as great as could possibly be imagined. As a scientist and a philosopher Bacon was laying the foundations of the modern scientific method, which to Coke was completely incomprehensible and only evoked satirical couplets. Bacon was a whole-hearted supporter of the Crown, and perhaps thought that Coke might be brought back to his early views if he were given one more change of office. But by this time Coke had decided not to change again. From the King’s Bench, Coke issued writs of prohibition to the Court of Chancery, thus opening a general attack upon equity. Coke, whose domestic affairs (in which Bacon also was involved) grew steadily more disastrous, now endeavoured to use his daughter, a child of fourteen, to consolidate his position at court by marrying her to the brother of the reigning favourite, Lord Buckingham. Lady Coke objected and the girl eloped, and Bacon no doubt enjoyed the opportunity of filing an information against Coke in the Star Chamber. At the same time Coke was at last dismissed from office in 1616. From 1617 to 1621 Bacon held the Great Seal and the two protagonists were now fairly ranged one against the other. Coke now entered Parliament and began the third epoch of his career as leader of the parliamentary opposition (1621). This time he got his revenge upon Bacon, for he was one of the managers of his impeachment, and from now onwards he was prominent in all the activities of the opposition. In 1622 he was put in the Tower for several months and his papers confiscated.
In 1625 James I was succeeded by his son, Charles I, and Coke was soon identified with the opposition’s policy of restricting supplies. The next year he was nominated sheriff (which was a compulsory office and conveniently disqualified the holder from sitting in Parliament, as he himself had once decided from the bench). These last years of his life (he was now seventy-seven) he devoted to preparing his manuscripts for the press. In 1628 he was again returned to Parliament, receiving the striking distinction of election in two different counties. By this time the Crown had attempted a variety of methods for obtaining money, and after much discussion in the Commons, Coke’s suggestion of presenting a Petition of Right was adopted, to which Charles in the end had to give his assent. This was beyond doubt the crown of Coke’s career. After six years of retirement he died in 1634, and immediately his manuscripts (including his will, upon which he had spent many years of learned care) were seized and, it would seem, destroyed. Of his political theory we have already spoken,1 and of his writings something will be said in the next chapter. His general influence upon the course of English law was to maintain continuity between modern and mediaeval times, and this achievement had vices as well as virtues. But, most important of all, he preserved the fabric of the common law, and in his judgments began the tendency towards bringing it into harmony with more modern needs. It is unfortunate that his mediaeval foundation made it necessary to advance by way of increasing complexity instead of simplification. Yet even here Coke’s mediaeval learning had such an air of finality about it that further recourse to mediaeval law was not so necessary, and it became more and more the tendency to take Coke’s word on matters of Year Book learning.
THE RESTORATION: HOLT
Of Chief Justice Hale, and of John Selden (who never held legal office), we shall speak more at length in describing legal literature; and so we pass to the Restoration,2 which saw the rise to prominence of Sir John Holt. His father was a serjeant and Recorder of Reading. His student days at Oxford were no doubt lively, and tradition has it that he was the only member of his set who did not end on the gallows. At the age of ten his name was already put upon the books of Gray’s Inn and at twenty-one he was called to the bar (1663). It was only after some ten years that Holt became prominent. In 1679 he defended Lord Danby in his impeachment; he was also counsel for Lord Russell and appeared for the East India Company in support of the royal grant of monopoly. In 1686 he became Recorder of London, was knighted and became a King’s serjeant, but he soon resigned the recordship rather than pass sentence of death upon a soldier who had deserted the Army in time of peace. When James II left the kingdom, Sir John Holt took a prominent part in finding a formula which would express the revolution in terms of constitutional law. He was immediately appointed Lord Chief Justice of the King’s Bench, where many notable cases came before him, for by this time the King’s Bench had become more important than the Common Pleas. Holt declined the Great Seal under the excuse that he was not an equity lawyer. He retired from the bench in 1710 and died shortly after. In politics he gave mortal offence to James II by resigning the recordership, and so he naturally maintained the revolution settlement which he had helped to formulate. As an advocate his early training under Hale had made him a sound lawyer with a contempt for trickery, while as a judge he restored the credit of the bench after the evil days of Charles II and James II. In the field of constitutional law he resisted innovation on all sides; if he took a firm stand against the excesses of martial law, he was also ready to defend the dispensing power of the Crown, and resisted an extreme claim of privilege by the House of Lords, which for a moment proposed to commit the Chief Justice for contempt. In the Aylesbury Election Case (Ashby v. White1 ) Holt held that although the plaintiff had suffered no loss in consequence of the constables’ refusing to allow him to vote, yet he had a good cause of action on the principle that every right has a remedy—and this in spite of some pretention by the House of Commons to make it a question of privilege. In the Bankers’ Case2 he and his fellow justices held that a petition of right lay against the Crown for damages on breach of contract. It is interesting to note that he several times anticipated Lord Mansfield’s decision in Summersett’s Case, holding that one could not be a slave on English soil.3 In another case he laid down the rule that land which is colonised by English settlers is thereby subject to English law, while land which is conquered retains its own laws until further order.4 In private law he laid the foundation of modern commercial law. Coke had already stated the claim of the common law courts to entertain mercantile cases, but a great practical advance was made when Holt adopted the policy of deciding such cases in the light of mercantile custom instead of by the strict rules of the common law, which were, indeed, entirely unsuitable as a basis of commercial law. Like Lord Mansfield after him, he readily accepted evidence of mercantile custom and consulted merchants freely upon the matter. He tells us that once when he had to decide whether a bill could be accepted after it was due he invited all the eminent merchants in London to discuss the matter with him.5 He has also given us an early decision upon an employer’s liability for the acts of his servants done in the course of their employment.1 He dissented, however, from a decision that the Postmaster-General was not liable for packets lost in the post.2 Another of his decisions on master and servant has a less modern sound:
“If a master gives correction to his servant it ought to be with the proper instrument, as a cudgel, etc. And then if by accident a blow gives death this would be but manslaughter. The same law of a schoolmaster. But a sword is not a proper instrument for correction.”3
Unlike most of his predecessors he was willing to favour the action of slander. The most famous of all his decisions is, of course, Coggs v. Bernard (1703),4 which is an elaborate treatment of the general principles of the law of bailments, based upon a Romanesque passage in Bracton. As Lord Birkenhead has observed, “throughout all branches of law one may still cite judgments delivered by Holt”.5 As a criminal judge he had enormous influence in changing the tone of the courts. In trials for treason he atoned for the legal disabilities under which prisoners were then placed by treating them with great patience and indulgence; he even allowed Lord Preston to address the jury in his defence after his own summing up, and he discontinued the practice of bringing prisoners into court in chains. It was an old theory that prisoners tried for felony needed no counsel, for the judge was their defender; Holt lived up to the letter of the rule. As Sir Richard Steele wrote in the Tatler:
“Wherever he was judge he never forgot that he was also counsel. The criminal before him was always sure he stood before his country, and, in a sort, the parent of it. The prisoner knew that though his spirit was broken with guilt and incapable of language to defend itself, all would be gathered from him which could conduce to his safety; and that his judge would wrest no law to destroy him, nor conceal any that would save him.”6
One notable piece of legislation associated with him was the Statute 3 & 4 Anne, c. 8, which made promissory notes negotiable, for when the point was raised before him in a case Lord Holt would not venture to make so great a departure.7 He therefore felt compelled as the law then stood to hold that notes were not negotiable, using his influence with the legislature to make the necessary reform.
Holt’s career at the bar coincides with the darkest page in the history of the English judiciary. The most notorious examples are Scroggs and Jeffreys, both men of ability but unscrupulous in any matter which involved politics: many others were men of undistinguished attainments whose names are unknown outside of biographical dictionaries, their appointment being solely due to their pliability. Many who showed signs of resistance to the wishes of the court party were removed—Pemberton was twice dismissed; Bertie, Wilde and Dolben are others who were removed for political reasons. So high did political passions run that even Parliament, after the revolution of 1688, followed the example of the Stuarts and went so far as to imprison ex-judges whose decisions years before had limited the vast privilege claimed for either house.
AFTER THE ACT OF SETTLEMENT
We have already mentioned this act which restored the tenure of judges quamdiu se bene gesserint as it generally had been until Charles II and James II had made appointments durante bene placito. It did not take the bench entirely out of politics: that would be impossible, and perhaps undesirable. As far as English conditions are concerned, parliamentary experience may even be useful and broadening to a lawyer who might otherwise become too far removed from the world of affairs. Once on the bench, however, judges no longer are expected to take part in political affairs. For more than a century no Chief Justice has been a member of the Cabinet:1 and although the Chancellor goes out with his party, and while in office is a member of the Cabinet, there are nevertheless conventional limits to his political activities—to say nothing of physical limits due to the multifarious nature of his duties.
Mansfield is, in fact, an example of a judge who remained in active politics while on the bench.
William Murray, first Earl of Mansfield, was the fourth son of Lord Stormont, a Scotch peer of distinguished lineage but slender fortune. He was educated at Oxford, being intended first for the Church, but a friend afterwards assisted him in preparing for the law. His family were staunch Jacobites and all through his career his enemies were ready to reproach him, no doubt unjustly, with only a half-hearted devotion to the House of Hanover. At Oxford and soon afterwards, Murray made the acquaintance of the principal wits of the time, including the poet Alexander Pope, before whom and a looking-glass he practised eloquence. His reputation as a man of culture was so high that even Dr Johnson (who had a deep-rooted prejudice against Scots) was bound to admit that one could do a lot with a Scot if he were caught young enough. The most significant event in his career at Oxford was his winning a prize for Latin verse against William Pitt, afterwards Earl of Chatham, for here began a bitter rivalry which lasted all their lives. Being a Scotchman, Murray was soon able to acquire a good deal of Scotch business, both legal and political. As early as 1733 he argued a Scotch case before the House of Lords. In 1742 he became Solicitor-General, entered the House of Commons, and immediately became the most brilliant defender of the government in the House, withstanding single-handedly the fierce attacks of Pitt. In spite of his supposed Jacobite sympathies he prosecuted the Jacobite lords who had been concerned with the Rebellion of 1745. Notwithstanding Pitt’s incessant attacks, Murray continued his successful defence of the government; in 1754 he became Attorney-General, but in 1756 he insisted upon leaving the House of Commons to become Lord Chief Justice of the King’s Bench, and was created Baron Mansfield. In the House of Lords he continued to take an active part in politics. He opposed the repeal of the Stamp Act by Lord Rockingham, taking on this and some other constitutional questions a somewhat narrow view. On the bench he inevitably incurred some unpopularity in connection with the cases in which Wilkes was involved, and was bitterly assailed by the anonymous Junius. His rulings in several libel actions, to the effect that the jury had no right to pass upon anything except the facts of authorship and publication, increased his unpopularity, although there is little doubt that his view of the law was correct until the passing of Fox’s Libel Act.1 On the other hand, in 1771 he decided the famous Summersett’s Case in favour of a slave. In 1774 he decided that the Crown had no right to legislate for conquered countries merely by prerogative in such a way as to contravene the usual principles of constitutional law. In 1776 he received an earldom, and soon took less part in politics. In 1778 when it was known that he supported a bill which would have relieved Roman Catholics his house was burnt in the course of the Gordon riots. Lord Chatham, who had followed him in the Lords, died in 1778, and Mansfield absented himself from the funeral and refused to join in the acts of mourning for his late rival. In 1784 he himself retired from politics, and in 1788 resigned from the bench to devote the rest of his days to society and letters. In 1793, at the age of eighty-nine, he died and was buried in Westminster Abbey.
As an orator in Parliament he was second only to Pitt, with whose thunderous style Mansfield’s own quiet and elegant manner was in striking contrast. At the bar the same gift enabled him to present his case and his arguments with winning lucidity. On the bench he acquired a reputation for complete impartiality, long patience and a profound understanding of legal problems. To these advantages he added the study of somewhat unusual subjects for lawyers of his day. His old master Denison had taught him special pleading and conveyancing on black-letter lines, but at the same time Mansfield felt more attracted by the cosmopolitan learning of Bracton, and under his influence was drawn (like Holt before him) to a study of Roman law and of the French commercial ordonnance which at that moment was the best body of mercantile law in existence. His interest in commerce was deep; a generation before it was fashionable he had adopted free trade principles, and among his many claims to fame his commercial decisions are perhaps the most imposing. It is impossible here to enumerate all the really important decisions which Mansfield made, and we must be content with reproducing two somewhat differing estimates of his work. In one of them Sir William Holdsworth examines Mansfield’s place in the legal controversies of his time:
“Lord Mansfield was a Scotchman by birth, but he was educated at Westminster and Oxford, and he was a barrister of Lincoln’s Inn. He had kept up some connection with Scotland and Scotch law, so that both his birth and his education, as well as the qualities of his mind, tended to make him a jurist learned in Roman and continental law as well as in English law. The breadth of his learning prevented him from attaining that accurate knowledge of the development of common law rules which could only come to an English lawyer who had devoted the largest part of his time to the study of its complex technicalities. He approached the common law from the viewpoint of a student of the broad principles of jurisprudence, not from the viewpoint of a student of the evolution of its rules. These qualities of his mind fitted him admirably for the work of creating and settling the law merchant, which in England was in a backward and unsettled state. They enabled him also to rationalise and liberalise other branches of the common law, notably quasi-contract and estoppel, by an infusion of broad and equitable principles. But, naturally, the continued exercise of these qualities tended to make him think that he could settle on rational principles all the branches of the common law. This was a mistake. The principles of some of the older branches of that law were too well settled to be thus reformed. The ground was covered by authority; and the authorities could be understood aright only by lawyers who had studied their history and development. An attempt to rationalise these branches of the common law by the help of pure reason and foreign analogies could not succeed, because the principles founded on this basis could be proved to be contrary to ascertained principles of the common law. Thus Lord Mansfield’s attempts to recast the doctrine of consideration, to restate the rule in Shelley’s Case, and to make the court of King’s Bench a court of equity as well as a court of law met the same fate as [his] attempt to extend the doctrine of disseisin at election.”1
In the other, Lord Birkenhead setting aside those things which Mansfield failed to achieve, estimates his place in legal development in these words:2
“It was first and foremost his work in developing and explaining the commercial law that has ensured him a foremost place among English judges. His practice was to try such cases at the Guildhall with a jury. The panel was chosen with great care from among the merchants of the city, to whom there was no greater source of pride than to become “Lord Mansfield’s jurymen”. He invited them to dine with him frequently, and enquired minutely into the practice of reputable merchants, in return explaining to them with the greatest care the principles of law. When a case arose which involved a point of principle or some novel practice, he was accustomed to take their verdict subject to a case for the opinion of the full court. He was aware that such a practice might cause undue delays, and was therefore careful to draw the case at once and see that it was signed by counsel, before calling on another case. He made it an invariable condition that the case was set down for argument in the first four days of the next law term. In this way he examined, restated, or created the whole of the law of merchants. His long career and deserved reputation have somewhat obscured the work of his predecessors, especially Holt, who in many instances will be found to have decided the same point the same way. No judge can be a complete innovator. He is one of a long procession of fellow workers, and undue prominence given to one may obscure the merits of another. Nevertheless, Holt could not have done Mansfield’s work. He lived too soon, but he did noble work on the foundations of which Mansfield built the commanding fabric of our commercial law. The law relating to shipping, commercial transactions, and insurance was practically remade by Mansfield, who never lost sight of the fact that international commerce requires the law of each country to be based on the same principles; the practice of honesty and fair dealing among prudent and honourable merchants. Coke captured the law merchant for the common law; Holt retained it; Mansfield formally incorporated it into our system.”
For some details throwing light on this obscure but important transition, see Ganshof Origines des cours féodales in  Revue historique de droit, 644-665, and cf. Maitland Select Pleas in Manorial Courts, 105; J. Goebel, in J. H. Smith, Appeals to the Privy Council, xl ff.; Vinogradoff, in Magna Carta Essays (ed. H. E. Malden), 87-88. In some places it was only the decisions of the suitors which became res judicata, and not those of the presiding bailiff, whose decisions were not true judgments: Beaumanoir, Coutumes de Beauvaisis, art. 31; Vinogradoff, Roman Law in Mediaeval Europe (ed. de Zulueta), 95. See too the interesting suggestion that this process may have begun before the Conquest: J. E. A. Jolliffe, Constitutional History, 112-113. For Bracton and the Romanists, cf. F. Schulz, A new approach to Bracton, Seminar, ii. 45.
Above, p. 143.
Holdsworth, i. 376-377, citing Re Lord Kinross,  A.C. 468, at 476. Cf. Mr Megarry’s note in the Law Quarterly Review, lxv. 22 ff.
It is probable that the same process on a much smaller scale was going on in the Middlesex County Court as a consequence of eighteenth-century legislation; see above, p. 208.
See above, p. 103.
Statute of Merton (1237), c. 10. Royal writs might still be necessary: Denholm-Young, Collected Papers, 160.
Select Cases in King’s Bench (Selden Society), ii. 3-5 (1290).
Above, p. 148.
Vinogradoff, Roman Law in Mediaeval Europe (ed. de Zulueta), 95, 105, remarks on the use of the idea of custom, both in Bracton and in Beaumanoir, to avoid the difficulty which was felt as to the power of a single judge to lay down the law.
Above, p. 151.
N. Denholm-Young, Collected Papers (1946), 150, produces a highly interesting argument that the “paper constitution of 1244” really belongs to 1238, and that its object was to check the professionalising of the courts (typified by Raleigh) by reverting to ideas of peerage (i.e. a court of barons as suitors of the curia regis). It is difficult to follow Mr Denholm-Young, however, in thinking that Raleigh had any sympathies with this policy. The famous addicio in Bracton, f. 34, expresses the same sort of high baronial claim, but the view of H. Kantorowicz, Bractonian Problems (1942), 49 ff., that the addicio is genuinely Bracton’s, has been subjected to rigorous criticism by G. Lapsley, English Historical Review (1947), 1. This restoration of Maitland’s view that the addicio is spurious restores to Bracton his reputation for lawyerly professionalism, and makes it easy to suppose that his master Raleigh held similar views.
For his career, see D. M. Stenton, Eyre Rolls of Lines. and Worcs. (Selden Society), vol. liii, xvii ff.; C. A. F. Meekings, Martin Pateshull and William Raleigh, Bulletin of the Institute of Historical Research, xxvi. 157 ff.; Six Letters concerning the Eyres of 1226-8, English Historical Review, lxv. 492; Maitland, Gloucester Pleas of the Crown, xii.
Rot. Parl., i. 66 b.
D. M. Stenton, op. cit., xx.
The first attempt at a list of English judges is W. Dugdale, Origines Juridiciales (1666). E. Faoss, Judges of England (9 vols., 1848-64) and Biographica Juridica (1870) must be supplemented by the lists by Maitland in Bracton’s Note Book, by T. F. Tout in his Edward II, and by G. O. Sayles in his King’s Bench (Selden Society). Cf. the valuable lists in R. Somerville, The Duchy of Lancaster (1953) and C. A. F. Meekings, Justices of the Jews, Bulletin of the Institute of Historical Research, xxviii. 173. The Chancellors and Chief Justices of Lord Campbell, Atlay’s Chancellors, and F. E. Ball. The Judges in Ireland are well known.
The history and the documents are printed in Tout and Johnstone, State Trials of Edward I.
Y.BB. Edward II (Selden Society), iii. 196. See, in general, Vinogradoff’s article on him in Essays presented to Tout, 189 (reprinted, with mutilations, in Vinogradoff’s Collected Papers, i. 245), and the life prefixed by W. H. Dunham to his edition of Hengham’s works.
John Benstede, for example, after a long career as Keeper of the Wardrobe became a Justice of the Common Pleas in 1309.
Not Thomas, as Holdsworth, ii. 229.
For his life, see Bolland, Chief Justice Bereford (Cambridge, 1924).
Cf. p. 158 above. The fact that in 1341-1345, 1371-1372, and 1372-1377 the chancellorship was held by common law judges is one further proof that they were eligible for a purely political office.
G. Sayles, Medieval Judges as Legal Consultants, Law Quarterly Review, lvi. 247. The statute 8 Richard II, c. 3 (suspended by 9 Richard II, c. 1), represents the mediaeval point of view.
N. Denholm-Young, Seignorial Administration, 116.
The most recent interpretations of these events will be found in Tout, Chapters in English Administrative History, iii. 323-495, iv. 1-68, and in A. Steel, Richard II.
Fox, Contempt of Court, 52, 53.
Hales committed suicide, whence Bp. of Chichester v. Webb, Dyer, 108, and Hales v. Petit (1562), Plowden, 253; cf. Shakespeare, Hamlet, Act V, scene 1.
Pollard, in English Historical Review, xxxviii. 59-60.
For a full and entertaining biography, see Lyon and Block, Edward Coke, Oracle of the Law (Houghton Mifflin, 1929); his library catalogue, ed. W. O. Hassall, with a preface by S. E. Thorne, is no. 12 of the Yale Law Library Publications.
His views are discussed above, pp. 50-51.
Above, p. 50.
See now, A. F. Havighurst, The Judiciary and Politics in the reign of Charles II, Law Quarterly Review, lxvi. 62, 229, and James II and the twelve Men in Scarlet, ibid., lxix. 522.
2 Ld. Raym. 938 (1703).
14 S.T. 1 (1700).
Smith v. Brown (1705), 2 Salk. 666; Chamberlain v. Harvey (1667), 1 Ld. Raym. 146.
Blankard v. Galdy (1693), 2 Salk. 411; Smith v. Brown, 2 Salk. 666.
Mutford v. Walcot (1700), 1 Ld. Raym. 574.
Tuberville v. Stampe (1697), 1 Ld. Raym. 264.
Lane v. Cotton (1701), 1 Ld. Raym. 646.
R. v. Keite (1697), 1 Ld. Raym. 138.
2 Ld. Raym. 909; for some extracts, see Pound and Plucknett, Readings, 593-601.
Birkenhead, Fourteen English Judges, 116.
Quoted in Holdsworth, vi. 519.
Clerke v. Martin (1702), 2 Ld. Raym. 757. It is discussed in J. M. Holden, History of Negotiable Instruments in English Law, 77 ff.
Ellenborough was the last in 1806; unless, indeed, the remarkable career of Lord Reading during the 1914-18 war is treated also as an exception.
Below, p. 500.
Holdsworth, vii. 44, 45. There is now a full treatment of Mansfield and his colleagues in Holdsworth, xii. 464-560, and C. H. S. Fifoot’s Lord Mansfield is a learned and entertaining biography.
Birkenhead, Fourteen English Judges, 186. Compare the words of Lord Campbell, quoted in Pound and Plucknett, Readings, 223-226.