Page images
PDF
EPUB

the way

the Year Books which photograph the actual words, and actions, and idiosyncrasies of the actors as they were bringing these events to pass. When we read the official record we think of a machine, which automatically eliminates all the human dramatic element, and describes events and results in one impersonal, accurate, stereotyped form of words. When we read the Year Book we think of a human reporter, mainly interested it is true in law, but, for all that, keenly alive to the exciting incidents of the trial which is proceeding before his eyes—to judicial wit, and criticism, and temper, to the shifts and turns of counsel, to the skilful move or the bungling omission, even to the repartee and the exclamations which the heat of a hardly contested fight evoke. Though therefore the Year Books are valuable because they tell us much of the development of law, they are unique because they picture for us days in court in successive terms and years through these two centuries. Because they do this faithfully, not neglecting that human element which to-day is and to-morrow is not, they supply just that information which is omitted by those who record with mechanical correctness merely the serious business done. We see not only the things done; we see also the men at work doing them,

these men did them, and how they came to be done in that particular way. It is for this reason that the Year Books are valuable documents not only to the historian of English law, but also to the historian of any part of English life. They create for us the personal element, the human atmosphere, which makes the things recorded in the impersonal record live again before our eyes.

There is a dramatic scene in Parliament in Edward I's reign, related by Bereford C. J. in a style very different from that of any formal record :

In the time of the late King Edward a writ issued from the Chancery to the Sheriff of Northumberland to summon Isabel Countess of Albemarle to be at the next Parliament to answer the King “touching what should be objected against her.” The lady came to the Parliament, and the King himself took his seat in the Parliament. And then she was arraigned by a Justice of full thirty articles. The lady, by her serjeant, prayed judgment of the writ, since the writ mentioned no certain article, and she was arraigned of divers articles. And there were two Justices ready to uphold the writ. Then said Sir Ralph Hengham to one of them: “Would you make such a judgment here as you made at the gaol delivery at C. when a receiver was hanged, and the principal (criminal] was afterwards acquitted before you yourself?” And to the other Justice he said: “A man outlawed was hanged before you at N., and afterwards the King by his great grace granted that man's heritago to his heir because such judgments were not according to the law of the land." And then Hengham said: “The law wills

[ocr errors]
[ocr errors]

that no one be taken by surprise in the King's Court. But, if you had your way, this lady would answer in court for what she has not been warned to answer by writ. Therefore she shall be warned by writ of the articles of which she is to answer, and this is the law of the land.” Then arose the King, who was very wise, and said: "I have nothing to do with your disputations, but, God's blood! you shall give me a good writ before you arise hence 1.".

The following dialogue between Roubury J. and the assise illustrates forcibly the relations between Judge and Jury:

Roubury.- How do you say that he was next 'heir ? The Assise. For the reason that he was son and begotten of the same father and mother, and that his father on his deathbed acknowledged him to be his son and heir. Roubury.You shall tell us in another way how he was next heir, or you shall remain shut up without eating or drinking until to-morrow morning. And then the Assise said that he was born before the solemnization of the marriage, but after the betrothal 2

The reasonableness of the borough customs is not always apparent to the royal Judges. In answer to a plea of Parning, that the usage of Hereford was that a man could sell his land when he could measure an ell and count up to twelve pence, Schardelowe J. said, the usage is contrary to law, for one person is twenty years old before he knows how to measure an ell, and another knows how when he is seven years old 3.' We get a glimpse at the actual working of the common field system in the following answer to a plea which set up common as a defence to an action of trespass :

• Whereas they have said that this field should lie fallow every third year, and has always done so, Sir, we tell you that that field has always by the custom of the vill, and by the agreement of those therein, been sown in such manner as

chose to agree upon, sometimes for three years, sometimes for one year; and we tell you that it was agreed by all the tenants of the vill who had land in the field whereof we have complained, that the field should be sown?'

We see, too, the tax collectors at work setting upon each vill a definite quota of the tax granted by Parliament; 'and afterwards each man was apportioned by his neighbours according to the goods and chattels which he had in the same vill 6.' We see an allusion to that uncertainty in the measures of land, and the causes for that uncertainty, which makes so much of our earlier history obscure 6.

1 Y. B. 3 Ed. II (S. S.), 196; something of the Countess of Albemarle will be found in Red Book of the Exchequer (R. S.), iii, cccxii-cccxv, 1014-1023. 2 Y. B. 21, 22 Ed. I (R. S.), 272,

Y. B. 12, 13 Ed. III (R. S.), 236. [' Parning' was really Parvyng; see Mr. Pike's introduction to Y. B. 18 Ed. III.]

· Y. B. 11, 12 Ed. III (R. S.), 370 ; cp. 3 Ed. II (S. S.), 112, 113. 5 Y. B. 17, 18 Ed. III (R. S.), 618.

* Y. B. 35 Hy. VI, Mich. pl. 33, p. 29. Prisot C. J. says, 'Un carue de terre est grand en ascun pais que n'est en auter pais; et uncore, mesque un soit moins

4

[ocr errors]
[ocr errors]

The difficulties of travel which made it necessary for the process of the Court to be slow if it was to be fair are forcibly illustrated by many cases?

We see the Judges like other people anxious for the beginning of the vacation. Catesby was arguing for a certain form of plea. Danby told him that he must plead specially, and that he had better plead in this way at once because we can't stay to argue matters of law at the very end of the term ?'

The Year Books are thus valuable in many ways to historians, other than the legal historian, for the glimpses which they give us of many sides of English life. But even from this more general point of view it is to the legal historian that they are chiefly valuable, because they contain a first-hand, and sometimes critical, account of the doings and sayings of the Court as they passed under the reporter's eye. As we have before hinted, it is this characteristic of the Year Books which is the strongest evidence against their official origin 3. We shall here give one or two illustrations of the scenes in court thus described and of the reporter's doubts and criticisms thereon. For convenience we shall group them under the following heads :- Manners and Wit of the Bench and Bar; the relations of Bar and Bench; the reporter's notes.

a

The Manners and Wit of the Bench and Bar, Both Judges and Counsel are fond of swearing, by God, by St. James, or by St. Nicholas. Even in that age, John of Mowbray's direction to the defendant, the Bishop of Chester, to go to the great devil,' is not easily surpassed 4. The satisfaction of Counsel when the Judge had given a ruling in their favour sometimes found odd expression. Mutford had recourse to his Vulgate. Blessed is the womb that bare thee' he said to Metingham J. when he had given a ruling in his favour •. Their dissatisfaction, too, is clearly marked:

· Toudeby.—Sir, we do not think that this deed ought to bind us, inasmuch as it was executed out of England. Howard J.-Answer

6

6

que un auter, chescun per luy est un carue, car un plough puit arrer plus terre en l'an en ascun pais que en auter pais.' 1 Y. B. 33-35 Ed. I (R. S.), 120; 38 Hy. VI, Pasch, pl. 13.

Longo Quinto, p. 54, Car ne purromus arguer matters en ley per cause del fine del terme.'

* See Y. B. 21 Ed. IV, Mich. pl. 4, Genney J. dissented ; the reporter hints that it was because he had just been raised to the bench and had argued the case at the bar—'la cause fuit come jeo croy pur ce qu'il fuit de counsel d'autre partie en meme le breve d'error quand il fuit Serjeant'; it is almost inconceivable that an official reporter should have thus imputed motives.

Y. B. 43 Ed. III, Pasch. pl. 43, cited Y. B. 30, 31 Ed. I (R. S.), xxxi.
Y. B. 20, 21 Ed. I (R. S.), 436 ; cp. 11, 12 Ed. III (R. S.), 312.

6

[ocr errors]

to the deed. Toudeby. We are not bound to do so for the reason aforesaid. Hengham C. J.-You must answer to the deed ; and if

l you deny it, then it is for the Court to see if it can try, &c. Toudeby.—Not so did we learn pleading ?.'

The reporters had a keen eye for the pithy saying, the apposite anecdote, or a wrangle on the bench. “You cannot deny,' said Howard J., 'that the tenements as well in one vill as in the other were holden by one and the same service; and you are seised of the tenements in one vill; will you then have the egg and the halfpenny too?' In a case of Edward III's reign, Willoughby J. was laying

?' down the law. That is not law now,' said his brother Sharshulle. • One more learned than you are adjudged it,' retorted Willoughby 3. The clergy of the province of Canterbury, argued Counsel, do not meddle with the clergy of the province of York, and neither is bound by a grant made by the other—' Because the Jews have no dealings with the Samaritans 4.'

The relations of Bar and Bench. The relation between the Serjeants and the Judges was not quite the same as the relation between the Bar and Bench in modern times. The Judges and the Serjeants together formed the highest branch of the legal profession—the order of the coif; so that to become a Serjeant was a more solemn and important step than to become a Judge. Traces of this old fellowship long survived in the coinmon life of the Serjeants and Judges in the Serjeants Inns, in the rule that all Judges must be chosen from the Serjeants, and in the practice of addressing a Serjeant from the Bench by the title of brother. The Year Books testify to the fact that the Serjeants and Judges are brothers of one order. The Court asks them for their opinion. Resolutions are come to with their consent. Their dissent or approval is recorded ; and the reporter regards their opinions with more respect sometimes than the dicta of the Judges. "Judgment is pending,' says the reporter, ‘but all the countors say the writ was invalid?' A demandant was nonsuited, ' because all the Serjeants agreed that the writ could not be supported in this case 8.' 'And this was the opinion of Herle and,

1 Y. B. 32, 33 Ed. I (R. S.), 72.
* Y. B. 14, 15 Ed. III (R. S.), 114; cp. 11, 12 Ed. III (R. S.), 442.
· Y. B. 21 Ed. IV, Mich. pl. 6 (p. 47).

* Y. B. 2 Hy. VI, Mich. pl. 3. An apprentice had put a case to the court, and then, Martin l'un des justices mettra le cas a les Serjeants a le barre et demanda que semble a eux seroit fait en ce cas.'

• See e.g. Y. B. 34 Hy. VI, Mich. pl. 13, Quod fuit concessum per omnes justitiarios et per plusors Sergeants al barre.' 21, 22 Ed. I (R. S.), 218.

30, 31 Ed. I (R. S.), 106.

2 Ibid. 400.

6

[ocr errors]
[ocr errors]

6

for the greater part, of all the serjeants, except Passeley, who told Hedon boldly to stick to his point. And so [Helon] did ".' After a dispute on the Bench it is noted that the common opinion is against the view of Parning. Even a dictum of the apprentices is noted 3, and sometimes conversations out of court 4 At the same time the intimacy of the relations between Bar and Bench did not prevent the Judges from speaking their minds very freely to the Bar. We forbid you on pain of suspension to speak further of that averment'; leave off your noise and deliver yourself from this account'; 'that is a sophistry and this is a place designed for truth'-are remarks attributed to Hengham 6. 'Are not the tallies sealed with your seal? About what would you tender and make law? For shame!'; 'get to your business. You plead about one point, they about another, so that neither of you strikes the other'; these seven years I never was put to study a writ, so much as this;

I but there is nothing in what you say'-are remarks attributed to Bereford ®. Shame to him who pleaded this plea,' said Malore J.? • This is not the first time we have heard a plea of this kind,' sarcastically remarked Sharshulle J.8 Pulteney had said, “We do not see what will become of the first plea if this issue be entered.' • It will go to the winds as does the greater part of that which you say,' brutally remarked the same Judge'. A somewhat neater score was made by one of Edward IV's Chancellors.

The plaintiff has no remedy, argued Counsel, because he has made no deed; and if a man is so simple that he enfeoffs another on trust without a deed he has no remedy and has only himself to blame. Not so, said the Chancellor, he will have a remedy here in Chancery, for God protects the simple 10.

[ocr errors]
[ocr errors]
[ocr errors]

The reporter's notes. The reporters were quick to note a quick retort, a foolish argument or a bungling plea. 'My client is a poor man and knows no law,' argued Toudeby. 'It is because he knows no law that he has · Y. B. 3 Ed. II (S. S.), 160.

14 Ed. III (R. S.), 214, 216 (see note 3, p. 280 above). * Y. B. 21, 22 Ed. I (R. S.), 446.

Y. B. 2, 3, Ed. II (Š. S.), xv, xvi ; 30, 31 Ed. I (R., s.), 234 ; 14 Hy. IV, Hil. pl. 37; 33 Hy. VI, Trin. pl. 26.

• Y. B. 32, 33 Ed. I (R. S.), 446 ; 33-35 Ed. I (R. S.), 6, 20. 6 Y. B. 3 Ed. II (S. S.), 47, 169, 195.

? Y. B. 33-35 Ed. I (R. S.), 348. 8 Y. B. 16 Ed. III (R. S.), ii, 446 ; cp. ibid. 480, 482. 9 Y. B. 17, 18 Ed. III (R. S.), 350. 10 Y. B. 8 Ed. IV, Pasch. pl. 11, Il avera (remedie) et issint poies dire si joo enfeoffe un home en trust etc., s'il ne voit faire ma volunte jeo n'avera remedy per vous, car il est ma folie d'enfeoffer tiel person que ne voit faire ma volunté etc.; mez il avera remedie en cest courte car Deus est procurator fatuorum'; for other scenes between judge and counsel cp. Y. BB. II Hy. IV, Trin. pl. 49, and 5 Hy. V, Hil. pl. 11.

« PreviousContinue »