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English Law and the Renaissance

Published online by Cambridge University Press:  16 January 2009

J. H. Baker
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In his famous Rede lecture of 1901, Maitland posed the question why the medieval law of England survived the period when (as he said) old creeds were crumbling everywhere and Roman law was pushing German law out of Germany. Much controversy has reigned since Maitland's time not only about his conclusions and his evidence, but also about the precise gist of his question—since it is not wholly clear what assumptions he was making about the nature of the so-called “Reception” of Roman law in Europe or about the extent to which the medieval common law really did survive in England. It is not the purpose of this paper to provide yet another interpretation of Maitland, but rather to re-examine from a different viewpoint the subject which he opened.

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The Cambridge Law Journal , Volume 44 , Issue 1 , March 1985 , pp. 46 - 61
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Copyright © Cambridge Law Journal and Contributors 1985

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References

1 Maitland, F. W., English Law and the Renaissance (Cambridge, 1901).Google Scholar

2 See the introduction to The Reports of Sir John Spelman, Vol. II (1978), in Selden Society Vol. XCIV.

3 l Ric. III, c.l.

4 94 Selden Soc. 192–203.

5 Ibid., pp. 64–70.

6 Y.B. Hil. 1 Hen. VII, fo. 10, pl. 10.

7 94 Selden Soc. 180–187.

8 Ibid., pp. 204–206.

9 Ibid., pp. 255–298. The development was perhaps not confined to the King's Bench. In the Common Pleas London cases were always numerous, but the proportion of such cases seems to rise during the 16th century.

10 R. H. Helmholz, “Assumpsit and Laesio Fidei” (1975) 91 L.Q.R. 406. For related problems, see S. E. Thorne, “Tudor Social Transformation and Legal Change” (1951) 26 N.Y.U. Law Rev. 10.

11 94 Selden Soc. 236–244. A major study of this transition, by Professor R. H. Helmholz, is shortly to be published by the Selden Society.

12 94 Selden Soc. 53–57; Blatcher, M., The Court of King's Bench 1450–1550 (1978), pp. 7–9, 146, 149–150Google Scholar. Cf. the note of caution in Ives, E. W., The Common Lawyers of pre-Reformation England (Cambridge, 1983), pp. 209–216.CrossRefGoogle Scholar

13 An attempt is now being made to bridge this gap. Under the leadership of Professor H. Coing, and with the assistance of the Gerda Henkel Stiftung, eight working parties were established in 1982 to investigate common questions in Anglo-American and Continental legal history and to produce a series of exploratory volumes. It is hoped that publication of the series will begin in 1986.

14 For the date of composition of the book, and a brief bibliography, see the entry in Biographical Dictionary of the Common Law, ed. Simpson, A. W. B. (1984), pp. 315–317.Google Scholar

16 Cf. Simpson, A. W. B., “The Rise and Fall of the Legal Treatise” (1981) 48 Univ. Chicago Law Rev. 632, at pp. 634–635, 643–644, to the same effect.Google Scholar

16 For this phrase, see 94 Selden Soc. 161.

17 The autograph notebook of Sir John Port came to light in 1979 and is now in the H. E. Huntington Library, San Marino, California. It contains voluminous student notes from the 1490s, but later additions include cases in the King's Bench when Port was a judge there. An edition of its principal contents is in an advanced stage of preparation.

18 See the introduction to The Reports of Sir John Spelman, vol. I (1977), in Selden Society Vol. XCIII.

19 Yorke's notebook is known from four manuscript copies, but has not yet been edited. It contains reports down to the 1530s, but is mainly devoted to Gray's Inn material. See 93 Selden Soc. xxvii; 94 Selden Soc. 137, 172.

20 94 Selden Soc. 124.

21 Ibid., pp. 269–270. The remark was made by Fyneux C.J. in 1499 “in greis Inne”: Fitz. Abr., Action sur le case, pi. 45 (in the 1514 ed. only). The reference to the inn was omitted from later editions, and from Y.B. Mich. 21 Hen. VII, fo. 41, pi. 66, in which the passage was interpolated.

22 See Dawson, J. P., Oracles of the Law, (Ann Arbor, 1968), pp. 144–145Google Scholar (Italy), 218–232 (Germany), 290–339 (France); Handbuch der Quellen und Literatur der neuren Europäischen Privatrechtsgeschichte, ed. Coing, H., Vol. II, part 2 (Munich, 1976), pp. 1113–1445. The latter contains full bibliographies of printed reports.Google Scholar

23 Ermini, G., “Giurisprudenza della Rota Romana come fattore costitivo delle jus commune” in Studi in Onore di Francesco Scaduto (Florence, 1936), Vol. I, pp. 283–298, who cites Gomes (1557) to the effect that opinions of the Rota were held communis “non solum propter eius authoritatem, sed etiam propter numerum doctorum in ea militantium.”Google Scholar

24 For a full survey see Fliniaux, A., “Les anciennes collections de Decisiones Rotae” (1925) 4 R.H.D. (4th ser.) 61–93, 382–410Google Scholar; Dolezalek, G. and Nörr, K. W., “Die Rechtsprechungssammlungen der mittelalterlichen Rota” in Coing, op. cit. in n. 22, Vol. I, pp. 849–856.Google Scholar

25 The decisions of “Falstoli” were first printed in Decisiones sive conclusiones antique dominorum de Rota (Rome, 1475), ff. 263–274v. Two manuscripts have been discovered. The compiler has been identified as Thomas Fastolf (d. 1361), an auditor of the Rota in the 1330s and 1340s, who became bishop of St. David's in 1352. In a paper delivered to the 7th International Congress of Medieval Canon Law, at Cambridge, on 23 July 1984, the writer argued that Fastolf belonged to the circle of East Anglian lawyers associated with William Bateman (d. 1355), founder of Trinity Hall.

26 The only known contender for primacy of place is William Bateman himself. See Dolezalek, G., “Quaestiones motae in Rota: Richterliche Beratungsnotizen aus dem vierzehnten Jahrhundert” in Proceedings of the Fifth International Congress of Medieval Canon Law, ed. Kuttner, S. and Pennington, K. (Vatican, 1980), pp. 99–114.Google Scholar

27 Decisiones capelle sedis archiepiscopalis Tholose (Lyon 1508), printed with additions by Dr. Étienne D'Aufrère. The author is identifiable from the preface.

28 Guido Papa, Decisiones Grationopolitane (1490). Pape mentions actual cases in only 20 per cent, of the “decisions”: Dawson, Oracles of the Law, p. 299.

29 Nove decisiones supreme curie Parlamenti Delphina. Per magnificum quondam dominum Franciscum Marcum (Grenoble, 1532).

30 Matthaeus de Afflictis, Decisiones Neapolitane (Naples, 1508). D'Afflitto was followed in Naples by Antonio Capece (d. 1545), Gian Tommaso Minadoi (d. 1555) and Tommaso Grammatico (d. 1556), all of them lords of the Sacro Regio Consiglio. The Neapolitan reporters were greatly respected elsewhere in Europe. The writer has a collected edition of D'Afflitto, Capece and Grammatico printed in Lyon in 1566.

31 D'Afflitto treated with respect the decisions of certain councillors, such as Antonio di Gennaro, Giovanni Antonio Palmieri and Carlo di Ruggiero, and was particularly respectful towards Antonio d'Alessandro (d. 1499), the vice-prothonotary, “doctissimus iurisconsultus … qui me ob suas virtutes nimia charitate dilexit, et me coram nostris superioribus extollebat, qui multum ingenium meum erudivit, et ab eo multa docui, cuius anima requiescat cum sanctis angelis et praesentiam Dei videat” (dec. 257). But he was not afraid to dissent even from his master: e.g., dec. 195 (“Dicebat dominus Antonius de Alexandro viceprotonotarius … Ego autem et dominus Marcellus de Gaieta et quidam alii consiliarii dicebamus contrarium … Dicebat dominus Antonius … tamen ego et dominus Marcellus et dominus Carolus de Rogeriis et dominus Iacobus de Gello dicebamus …”), dec. 263 (“Dicebat dominus Antonius de Alexandro, et tres domini vel quatuor secuti sunt eum,… sed ego dicebam … Et ideo ego fui in voto contrario solus … Tamen salubrior est mea opinio”).

32 See, e.g., dec. 383, §6–8 (“Domini de consilio dixerunt quod semper fuit observatum tarn in Magna Curia Vicariae quam in Sacro Consilio quod … Et ego alias audivi a doctoribus antiquis Sacri Consilii quod ita per eos fuit observatum, et illi dicebant quod ita ab aliis doctoribus fuit observatum et iudicatum. Et ita affirmaverunt omnes domini de Consilio seniores … Et ego etiam vidi sic pluries fuisse iudicatum in Magna Curia Vicariae et in Sacro Consilio. Ideo minime sunt mutanda quae antiquam interpretationem habuerunt … et maxime quando sic iudicatum fuit per Consilium, ubi semper sunt aliqui doctores valentissimi in iure …”).

33 D'Afflitto, dec. 149, §6. Cf. Grammatico, dec. 76, §34 (“Et ideo, omnibus pro et contra bene ruminatis per Sacrum Consilium, solitum et consuetum iudicare nedum per iuris tramiles sed etiam secundum veritatem et equitatem naturalcm: cum habeat supremam iurisdictionem et principem ipsum repraesentat,” citing Baldus). The reference to conciliar equity suggests an obvious English parallel.

34 D'Afflitto, dec. 169, §9 (“… ista est nova decisio Sacri Consilii, quae habet vim legis, et sic facit ius,” citing Baldus, Alessandro, “Abbas” and Andrea d'Isernia). Cf. dec. 190, §7 (“Et in hoc versatur aequitas Sacri Consilii. Et ita sub nomine regio fuit sententiatum … Haec sic notavi in specie, quia iste articulus erat dubius et nunc est decisus per sententiam regis cum Consilio, quae facit ius universale in regno”); dec. 383, §8 (“doctores valentissimi in iure. quorum sententiae … quia proferuntur sub nomine regiae maiestatis habent vim generalis legis in regno,” citing Baldus, Hostiensis and Butrio).

35 Quaestiones lohannis Galli, ed. Boulet, M. (Paris, 1944), p. lxx.Google Scholar and qu. 18. (These reports by Jean le Coq, king's advocate, are the only Continental reports to have been edited together with the corresponding records.) A contemporary of le Coq (cited ibid., p. lix, n.9) said that the decisions of the Burgundian council “sont dictes coustumes approuvés qui valent lois et emportent force lois en Bourgoingne”.

36 Godding, P., “L'origine et l'authorité des recueils de jurisprudence dans les Pays-Bas meridionaux (13e—18e siècles)” in Rapports beiges au 8e congrès international de droil comparé (1970), pp. 1–37, at 15–16.Google Scholar

37 Ibid., pp. 29–30.

38 English Law and the Renaissance, pp. 19–20.

39 From this tradition may be partly excepted the year books of 12–14 Hen. VIII. in which most of the cases were of the decisive category; but the records were not printed, and the texts (which were obviously not prepared for the press by their unknown author) are unpolished and defective. The writer has prepared an edition of these books, together with the relevant records.

40 The few citations in the printed text are all interpolations. Littleton did, on the other hand, regard the general opinion of the readers in the inns of court as authority (see s.481). Coke, commenting on s.481, felt obliged to remark that the position had changed since the 15th century: “new readings have not that honour, for that they are so obscure and dark” (Co.Litt. 280b).

41 Both were justices of the Common Pleas: Littleton from 1466 to 1481, Staundford from 1554 to 1558. Staundford saw Les plees del coron published in 1557. His An exposition of the kinges prerogative was published posthumously in 1567.

42 Township and Borough (Cambridge, 1898), p. 34.Google Scholar

43 For Parliament, see Pronay, N. and Taylor, J., Parliamentary Texts of the late Middle Ages (Oxford, 1980), pp. 74, 87, 107; Y.B. Mich. 15 Edw. IV, fo. 2. pi. 2, per Littleton J. In the 15th-century council the problem seems rather to have been that of ensuring that the majority prevailed over a powerful minority: Rot. Part., Vol. IV, p. 201, no. 17, para. [4]; p. 343, no. 27, para. 13. The first case in D'Afflitto contained a full discussion in 1496 of whether the president of the council could pass sentence according to a minority opinion if the minority seemed more learned; it was held that he should not, though there were precedents for so doing. This was the familiar conundrum of whether the sanior pars (or valentior pars) was preferable to a numerical majority: the majoritarian principle was itself taken for granted.Google Scholar

44 Y.B. Mich. 41 Edw. III, fo. 31, pl. 36.

45 For the importance of securing unanimity (at least in public) in a controversial case, see Lord Dacre's Case (1535) in 93 Selden Soc. 228–230; 94 Selden Soc. 140, 201.

46 What follows will be discussed in more detail in a forthcoming paper, “The Changing Concept of a Court”.

47 The fact that four was commonly the number of judges in each bench tells its own story about the attitude to majorities.

48 Bartlett v. Wright (1593) Cro.Eliz. 300, pl. 12, ad finem.

49 Les Comentaries (1571), prologue, sig. B; 94 Selden Soc. 155.

50 This figure is based on a study of the plea rolls, CP 40/1017–1041. No earlier figures arc yet available. Professor M. S. Arnold has estimated that about one-third of 14th century demurrers were decided; but the proportion may have dropped in the 15th century.

51 94 Selden Soc. 157–159.

52 Ibid., pp. 114, 158.

53 For examples of the use of all these devices in exploring the doctrine of consideration between the 1560s and 1580s, see “Origins of the Doctrine of Consideration 1535–1585” in On the Laws and Customs of England,, ed. Arnold, M. S. and others (Chapel Hill, 1981), pp. 336–358 at 337.Google Scholar

54 It may be that “humanism” itself should be traced to the new spirit of enquiry among lawyers: see Kelley, D. R., Foundations of Modern Historical Scholarship (New York, 1970).Google Scholar