The Sixteenth Century
Bill Long 12/22/04
Sir John Baker Speaks
A while ago Oxford University Press announced a 12-volume "Oxford History of the Laws of England." The first volume of this series, which is being written by a star-studded series of scholars, appeared in 2003 and was authored by the Dean of English legal historians: Sir John Baker. It is volume 6 in the series and doesn't really cover the 16th century: it deals with the more manageable and historically more defensible period from the accession of Henry VII until the death of Mary I (1485-1553). Bakers' daunting scholarship, clear writing, and copious notations will make it the standard legal history of this period for some time to come. In this mini-essay I would like to present the central thesis of Baker's book, articulated in Part I.
Dealing with Maitland
Any legal historian of the common law tradition has to come to grips with F.W. Maitland (d. 1906), the most eloquent modern expositor of that tradition. With respect to the 16th century, Maitland argued that it was simply quite amazing that England's legal system avoided being swallowed up by the rediscovery of Roman Law which was proceding apace at the time and which seemed to form the basis of the civil law system on the Continent. In addition, according to Maitland, the English common law seemed to resist all change in this period. Otherwise how could Edward Coke be correct when in the first volume of his Institutes (written in the 1620s), which is a commentary on Littleton's Tenuries (written around 1480), he claims that Littleton's was "the most perfect and absolute work that wever was written in any human science?"
How could both of these things be true (English resistance to internal change and to the Roman law tradition)? Maitland's response was that England resisted change because it was equipped with non-university legal education institutions, called the Inns of Court, which were not as susceptible to the intellectual fashions of the time. 'Law schools make tough law,' in Maitland's mind, and the Inns of Court thus were able to resist the potentially overwhelming power of Roman legal intrusion.
Baker argues that Maitland was wrong in every one of his assumptions, but that his question of the nature of English law in this period really drives the field of inquiry. Maitland was mistaken, first of all, in thinking that the Roman law tradition was a real threat to the common law. The terminology was foreign to English experience; England was in no condition to produce a codification of its own laws much less than a reception of a foreign system; there was no sense in England that the Roman tradition was superior.
Maitland was further mistaken in supposing that the reception of Roman law on the continent was complete. Certainly there were many continental scholars who were enamored of Rome, but the Roman tradition at first seemed to take root on an academic rather than a practical plane. In addition, to the extent that Roman law was "received," it was in a society, Germany, that consisted of hundreds of small principalities, most of which were politically unstable. Thus, there is not a complete analogy between life on the Continent and in England in the 16th century.
Finally, Maitland's thesis overemphasizes the static nature of English law between the times of Littleton and Coke. In fact, unpublished sources, which were not available to Maitland 100 years ago, have come into their own, including a vast array of litigation materials called the "plea rolls." Baker concludes, "Taken in combination, these show that English law was undergoing something of a transformation, a process which in a rapidly changing world provided additional insurance against more drastic change imposed from without (p. 13)."
Changes in the 16th Century
Therefore, before he launches into the analytical presentation of his material, Baker argues for transformation in English law, a new spirit if you will, affected by the rise of humanism in the fifteenth century, and permeating the English mind. The six factors contributing to this change are: 1) A new awareness of hegal history and the sense of change; 2) The quest for order and system in the sources of law; 3) The advent of printing; 4) Individualism and the "Common Weal"; 5) The new importance of legislation; and 6) The growth of equity jurisprudence. Space will only permit a brief consideration of a few of these.
Under the first point he shows how common lawyers had, around 1480, an anachronistic view of legal history which gradually, during the 16th century, became focused on tracing the origin of English institutions by reliance on written sources. Magna Carta assumed central importance; Bracton, the 13th century writer, was diligently read and studied; history was increasingly not seen for the sake of ornament but for explaining current legal institutions.
With respect to the second point, Baker argues that a new written phenomenon, called abridgments of the law, arose in this period. Abridgments, such as those by Fitzherbert in 1514 and Brooke in 1558, not only allowed lawyers to "sort out" what the law was on a subject but had the further beneficial effect of "paving the way for the scientific analysis of discrete branches of the law (p. 27)."
Finally, with respect to the growth of equity, Baker begins by noting the tremendous growth in litigation (which Maitland had not known) during the 16th century. "Would the common-law courts themselves respond to the needs of plaintiffs, or would the solution be found in a jurisdictional movement towards the Chancery and conciliar courts (p. 40)?" In fact, a jurisprudential revolution of sorts was realized in England through its unique specialized equity tribunals. English equity provided a judicial procedure for delving into individual circumstances which might require a more "one on one" treament than a jury trial at common law was equipped to provide. Equity as the "court of conscience" then provided a way for English law to develop apart from the common law rigidities but without taking over foreign (i.e., Roman) models.
By the end of Part I, then, Professor Baker has provided the context for us to see the 16th century in English law in a new way: as a time where growth and transformation took place in the context of a growing European society. In many ways such a conclusion ought not to seem strange: the thesis fits in with the larger intellectual currents of our time which would like to see change, rather than continuity, in institutions over time. Yet Baker has persuasively argued his case and prepared us to dive into the development of various institutions and legal doctrines in the period. I can hardly wait to continue my reading.
Copyright © 2004-2008 William R.Long