English Law and the Renaissance: The Rede Lecture for 1901Maitland, Frederic William
History
English Law and the Renaissance: The Rede Lecture for 1901
Maitland, Frederic William
Law -- England -- History; Renaissance -- England
But, be all this as it may, the fact seems clear that the ancient
practice of law reporting passed through a grave crisis in the sixteenth
century. We know the reign of Edward IV and even that of Edward II better
than we know that of Edward VI. The zeal with which Tottell from 1553
onwards was printing old reports makes the dearth of modern reports the
more apparent. Then Plowden expressly says that he reported ‘for my
private instruction only,’ and Dyer’s Reports (which comprise some cases
too early to have been reported by him) were posthumously published. The
total mass of matter from the first half of the century that we obtain
under the names of Broke, Benloe, Dalison, Keilwey, Moore and Anderson
is by no means large, and in many cases its quality will not bear
comparison with that of the Year Books of Edward IV. (J. W. Wallace, _The
Reporters_, ed. 4, Boston, 1882, is an invaluable guide; see also V. V.
Veeder, _The English Reports_, in _Harvard Law Review_, vol. XV., p. 1.)
[Sidenote: _Burke on law reports._]
[50] Burke, _Report from Committee appointed to inspect the Lords’
Journals_: ‘To give judgment privately is to put an end to reports; and
to put an end to reports is to put an end to the law of England.’
[Sidenote: _The Students’ petition in 1547. Incroachment of the civil
law. Civilians as judges. Common law and the Pilgrimage of Grace._]
[51] _Acts of the Privy Council_, 1547-1550, pp. 48-50. Petition of
divers students of the common laws to the Lord Protector and the
Privy Council: ‘Pleasith it your honorable Lordships to call to your
remembrance that whereas the Imperial Crowne of this realme of Inglande
and the hole estate of the same have been alwayes from the beginning a
Reame Imperial, having a lawe of itself called the Commen Lawes of the
realme of Inglande, by which Lawe the Kinges of the same have as Imperial
Governours thereof ruled and governed the people and subjectes in suche
sorte as the like thereof hath nat been seen in any other.… So it is,
if it like your good Lordships, that now of late this Commen Lawes of
this realme, partely by Injunctions, aswel before verdictes, jugementes
and execucions as after, and partly by writtes of Sub Pena issuing owte
of the Kinges Courte of Chauncery, hath nat been only stayed of their
directe course, but also many times altrid and violated by reason of
Decrees made in the saide Courte of Chauncery, most grounded upon the
lawe civile and apon matter depending in the conscience and discrecion
of the hearers thereof, who being Civilians and nat lerned in the Comen
Lawes, setting aside the saide Commen Lawes, determyne the waighty causes
of this realme according either to the saide Lawe Civile or to their
owne conscience; which Lawe Civile is to the subjectes of this realme
unknowne, and they nat bounden ne inheritable to the same lawe, and
which Jugementes and Decrees grownded apon conscience ar nat grounded ne
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