Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

62 Legal History in the Making
Several factors help explain this heightened concern about the character
and sources of the common law. In the period around 1600, politically
charged jurisdictional conflicts with other courts in England fed the lawyers'
chauvinism about the superiority, antiquity, stability and certainty of their
common law. 4 Lawyers in 1600 also confronted the prospect that James
VI of Scotland would succeed Elizabeth and, on taking the throne, would
seek to integrate English law with Scottish law, a law they saw as 'civil',
hence 'foreign', hence undesirable. 5 Broader intellectual changes were at
work as well. More and more of these lawyers had come to the Inns of
Court from the universities, where they were exposed to new educational
methods aimed at reducing complex wholes to their simplest elements. 6
The common law itself had been changing: written pleading slowly replaced
oral pleading, post-trial motions made it possible for courts to resolve more
doctrinal issues, and lawyers looked to their volumes of reported cases for
settled points of law rather than for models of clever pleading. 7 In legal
education an oral tradition was giving way to a mass of disorderly legal
texts.
The lawyers' evident concern about giving order, 'method', or structure to
the common law leads us toward some of their assumptions about what the
common law was. For students and practitioners at the Inns of Court in 1600,
the common law was a body of knowledge, not a process. It was something
one could know, not something one did. 8 The problem was that this knowledge
could not be acquired easily. The common law was not written down in any
single text, nor was it simply the sum of all the written records and reports of
what the courts had decided. 9 It was, as John Baker has shown, the 'common
erudition' of the justices, Serjeants, benchers and apprentices, an unwritten
understanding reflected only imperfectly in the many volumes of lawyers'
4
See, e.g., J.G. A. Pocock, 'A Retrospect from 1986', The Ancient Constitution and the Feudal Law:
A Study of English Historical Thought in the Seventeenth Century (Cambridge, 1987), 261-80; D.R.
Kelley, 'A Rejoinder', Past and Present, Ixxii (1976), 144; J.H. Baker, Introduction to The Reports
of Sir John Spelman, Selden Society, xciv (1978), 33; W.R. Prest, 'The Art of Law', 115-16; C.P.
Rodgers, 'Humanism, History and the Common Law', Jour. Legal Hist., vi (1985), 138-39.
5
B.P. Levack, The Proposed Union of English and Scots Law in the Seventeenth Century', Jurid.
Rev., N.S.,xx (1975), 99-100.
6
L.A. Knafla, 'The Matriculation Revolution and Education at the Inns of Court in Renaissance
England', Tudor Men and Institutions: Studies in English Law and Government, A.J. Slavin, ed. (Baton
Rouge, 1972), 247; W.R. Prest, The Rise of the Barristers (Oxford, 1986), 110-13.
7
G.J. Turner, Introduction to The Year Books of 4 Edward II, Selden Society, xxvi (1914),
xxix; P. Stein, 'The Procedural Models of the Sixteenth Century', Jurid. Rev., N.S., xxvii (1982),
192-93; J.H. Baker, 'English Law and the Renaissance', Camb. Law Jour., xliv (1985), 57; G. de C.
Parmiter, Edmund Plowden: An Elizabethan Recusant Lawyer (1987), 114. Compare F.L. Boersma, An
Introduction to Fitzherbert's Abridgement (1981), 21 with J.H. Baker, Selden Society, xciv (1978), 96.
8
E.W. Ives, The Common Lawyers', Profession, Vocation and Culture in Later Medieval England,
C.H. Clough, ed. (Liverpool, 1982), 192.
9
Francis Bacon proposed the drastic remedy of codification in order to reduce the 'body of law' to
the texts of statutes and reported judgments, De Augmentis Scientiarum, bk. 8, Aph. 77, 1st ed. (1623);
The Works of Francis Bacon, J. Spedding, R.E. Ellis and D.D. Heath, ed., i (1872), 821.