The history of ideas of precedent is understandably important; it is the history of the logic of authority, which
Maitland saw as the divide between historians and lawyers when using materials from the past.
1 The importance of prior cases and the doctrine of precedent as distinguishing features of the English common law means that
any ideas of precedent, or its practice, are important for the history of the common law and when considering the place of
the common law in a European context.
2 Ideas of precedent are remarked upon by the majority of writers dealing with legal theory in the time of the Year Books and
the first nominate reports. However, investigations through the materials usually come to little: an acknowledgement that
judges did, on occasion, describe what they were doing as making a ‘precedent’, followed by an admission that ‘precedent’
had a different meaning to that we have now,
being associated with the record rather than reports.
3 This linguistic approach does not work. Early-modern judges did pay considerable attention to their predecessors, as the
plethora of case citations in printed and manuscript law reports of the time shows.
4 Such citations are not necessarily precedent. What will be examined here is ‘precedent’ in the modern sense, that of previous
decisions binding a judge in a case to a particular conclusion on a point of law, whatever the language used.
5 It must be acknowledged that the evidence is relatively sparse, as even in a system with a functioning doctrine of
stare decisis, cases where judges are entirely constrained by previous cases are relatively rare: given the opportunity, lawyers can (and
lawyers did) distinguish cases not congenial to their argument rather than submit to an unwelcome earlier decision.
6
In the late sixteenth century it is apparent that law reports cannot be binding precedents. Judges, but much less frequently counsel, are seen disagreeing with cases put to
them, simply as they disagree with the conclusion. Dighton v. Bartholmew (1602) provides a good example. In that case:
it was agreed by all [the Judges of the King’s Bench] that a villein may not maintain an appeal of mayhem against his lord,
and yet Fenner cited that it was agreed in the reports of Keilway newly put in print by Mr. Recorder, that if the villein
sue an appeal of mayhem against his lord, this well lies, and that if he obtains judgment in this he shall be enfranchised.
But they all agreed that the law is not so.
8
This disagreement, and others like it, is not with the accuracy of the report but with the conclusion, the point of law.
9 Any system which has such a power in the judges cannot be considered to have a true notion of binding precedent if precedents
can be undermined at will.
However, we also see judges disagreeing with the conclusion in law reports, but admitting that they will change their mind
if the record, in the language of the time ‘precedents’, supports the conclusion seen in the reports. An example can be found
in
Stucley v.
Thynne, where
Browne J of the Common Pleas rejected a Year Book case showing that a writ of distress had been issued in similar circumstances
to that under discussion, but once it had been vouched by officials that there were precedents for such an issue, he said
he would change his mind if he could be shown them.
10 This seems to be a a purely procedural issue, that of whether or
not a writ should issue. To a modern legal historian there is clearly a substantive issue concealed behind the discussion:
to refuse a writ would be to deny a remedy and thereby limit the ambit of the substantive law of distress. There is no evidence
of
Browne J approaching the matter from such a perspective. As such, whilst law reports, and decisions, could be rejected, it
seems that precedents from the record were regarded as conclusive. From a modern perspective we would therefore regard the
record, where capable of being cited, as having more authority than a report.
This approach continues; in Easter Term 1629 we see a judge consciously admitting that he will change his mind if a particular
case put in argument is confirmed by the record. The judge therefore considered himself constrained to act in a particular
way. In
Browne v.
Strode in the King’s Bench, Jones J said that ‘if the case of 8. James 1 [previously put by Hyde J] is as my Lord has vouched it,
I will no more doubt in this matter and so he spoke to Noy to search the roll for it’.
11 The case does not seem to be reported in Trinity term, but by Michaelmas of 1629, on the same question, Jones J is reported
as saying that it ‘is not necessary to be argued’
and his view was now that of the others.
12 The point at issue, as in
Stucley v.
Thynne, seems to be a purely
procedural one: it is whether joint covenantees are entitled to sue in the same action and if both joint covenantees must
be joined in the action. So far this is not that dissimilar to earlier references to the record. However, the report makes
it clear that whilst the point appears to be procedural, participants were well aware that there was a substantive issue here,
it was noted that only one of the joint covenantees had assured the covenant and was burdened by it to pay money.
13 Other cases put make it clear that the issue was seen as if ‘he shall have the action[,] to whom the benefit of a promise
is made’; in effect, the issue was one of privity of contract mixed with consideration.
14 Furthermore, argument was made showing the differences between parol promises and covenants.
15 As such, there was a clear underlying tendency to see these issues as related to the general question of enforceability of
contracts, not merely covenants, despite the fact that
some of the contracts would have been unenforceable through the writ of covenant under discussion, as the contracts wanted
writing. This case brings out an important trend in early-modern legal thought which needs to be understood
.
The traditional categories of the
forms of action were breaking down in the late sixteenth century. This point has been made before,
16 but it is important to realise that it did not necessarily constitute a problem and the importance it has for the emergence
of ideas that prior cases are binding on a point of law. Some lawyers were happy to admit that the learning from the forms
of action could be applied in new contexts, such as
John Stone in the introduction to his 1612 reading in the Inner Temple, who considered that ‘all real actions learnings’ were
applied in trespass and ejectment, rather than in the medieval real actions themselves.
17 Edward Coke provides another example. Coke’s commonplace book does not feature separate sections for covenant, debt and assumpsit,
but does include a section entitled ‘Contract Bargain &c’.
18 Coke seems to have separated notions of contract from the particular forms of action involved. The examples of Stone and
Coke are very important, as their approach meant that learning associated with particular forms of action (whether in the
Year Books, common learning, or found from the record) was no longer tied to a procedural context, but was instead a free-standing
source of general ideas and treated as such. Such an approach was not only novel, but seems to have been so recognised, at
least by Stone. Lawyers were extracting substantive legal ideas from earlier materials based around the availability (or not)
of remedies in the form of writs. Seventeenth-century lawyers were, therefore, acting just as a modern legal historian using
the Year Books does: they saw where the remedies stopped and from that could discern substantive law applicable in a wider
variety of contexts. For the lawyers, rather than the legal historians, this was necessary to resolve disputes in the different
procedural context of the seventeenth century. It is the paradigm example of Edward Coke’s
new corn coming from old fields.
19 Debate that would once have seemed to be procedural became substantive – more accurately was procedural and substantive simultaneously.
An important example of the change is in actions on the case. In the context of defamation, many actions concerned the substantive
question whether or not particular words could constitute defamation in particular circumstances. However, defamation was
an action on the case and as such the words used, and their attendant circumstances, would all be included in the writ on
the record. The question of whether words constituted defamation was both substantive and procedural, in that if words did
not constitute defamation (the substantive question) then the writ did not lie, a classic procedural issue. In defamation
cases at the end of the sixteenth century we can therefore see
Anderson CJ (C.P.) saying that precedents from the record should be followed and wanting to see them.
20 Thirty years later
Crooke J was unwilling to accept counsel’s argument (against a judgment in the Exchequer Chamber) unless precedents could
be shown
.
21As such, although the record had previously been used to resolve procedural questions,
22 by the seventeenth century any answers would no longer be purely procedural; they would, in effect, have been decisions on
points of law. This change has massive repercussions: instead of the record serving simply to determine a point of procedure,
typically before trial, it could instead be used to resolve questions of substantive law raised after trial.
23 The citation of a case from the record could, in itself, determine the outcome of a case. At this point, ‘precedents’ in
the early-modern or medieval sense can be seen as a binding force on later judges on points of law.
There are some important
clarifications and qualifications to be made to the evidence put forward to this point. The first is that the record was not
always treated as an essential part of legal argument. In
Dighton v.
Bartholmew Yelverton J referred to his ‘consideration of all the books’ but not the record cited by counsel for the plaintiff.
24 However, this is probably because Yelverton’s judgment accepted the argument of the plaintiff, so recourse to the record
was unnecessary
. More important are the unusual cases where the record was rejected. Perhaps the simplest is
Bright v.
Forte (1595), where counsel, Drewe, sought to have the record rejected for being wholly
inaccurate as evidence of the past. According to Drewe, ‘this judgment was secretly entered without the order of the court
and I have spoken with Ewens Baron of the Exchequer who was of counsel in the case who said to me that after the judgment
he brought a writ of error to reverse this for the opinion of all the justices was against the judgment’.
25 Where the record was inaccurate, then it would not be followed in argument. This is perhaps unsurprising as the accuracy
of the record seems to have been the principal explanation for both its role and authority in argument. Such a concern with
accuracy might be associated with humanist textual awareness and the increased focus on memory found in the early-modern common
law.
26Many references to the record were simply for the
purpose of verifying a report and ensuring accuracy. If the record were inaccurate it could not perform this function.
Dighton v.
Bartholmew provides a good example of this concern for accuracy. Counsel produced a copy of the record of a case from the reign of Henry
VI which had been ‘certified’ by the second prothonotary of the King’s Bench,
Zachary Scott, at the time of
Dighton itself.
27 The use of a ‘certified’ copy of the record would suggest a concern for accuracy. This procedure has not been found replicated
elsewhere and is probably a consequence of the fact that here counsel produced the record independently, rather than having
the justices direct him to search for it.
This role of the record as verification is twinned with (and perhaps explains) an absence of conceptual discussion of that
role. Lawyers instead relied upon the presumed accuracy of the record. This presumption is reflected in both contemporary
legal literature and in curial discussion. At its most general level, some common lawyers drew
conclusions from an etymological association between ‘record’ and the Latin
recordor.
28 Most of the lawyers who made this link stressed that the record was of particular ‘credit’ in verifying the truth of a particular
assertion.
29 Authors of law reports also relied upon the accuracy of the record: in his report of
Pinchon’s Case (1611)
Coke justified his decision to quote at length from the record in his report, explaining that ‘I have reported out of the
record itself at length, to the intent the reader may be assured of the truth of the said case.’
30 Similar ideas are found earlier, in
The Case of Mines (1568) reported by Plowden, where it is argued that ‘the reports of our law are made for the greater part of the words and
sayings of the judges, and that to which they assent is taken to be the law, a fortiori their judgments and affairs entered
in the record of courts must be taken to be of as great or much greater effect than their words or sayings’.
31 In Plowden’s report Onslow and Gerrard assert that ‘the records of any court are the most effectual proofs of the law’.
32 These statements all suggest that the record was the most accurate information that could be procured about cases, and was
therefore of especial authority, but there is no explanation as to why it is right to rely upon prior cases.
33 The only hint found in discussion of the record is by William Lambarde who suggested ‘to keep in mind’ as a translation of
recordor, implying that it was correct to take account of the prior decision on the record
, but such an implication is not drawn out or sustained by Lambarde.
34 Theoretical discussion which did consider the authority of the record did not distinguish between the record and reports,
an important point to be considered below
.
35Nevertheless, there are cases where the record is rejected without any such challenge to its accuracy.
Gawdy J seems to suggest in
Lowen v.
Cocks (1599) that ‘perhaps’ he would change his mind if counsel, Tanfield, could show a case to be adjudged as he claimed.
36 This case might reflect Gawdy’s somewhat combative nature on the bench, but in
Jenkin v.
Griffith (1630) Jones J noted that there was a judgment against his conclusion and ‘many precedents agreeing with that’, but persisted
in his views.
37 Jones argued that it had been agreed many times to the contrary in the King’s Bench and that the precedents ‘come too late’.
Given
Jones was also the judge who seems to have acknowledged that he was bound by a prior case in
Browne v.
Strode, this is a problematic case. Whilst it could be dismissed, as there is no recourse to the record visible in the report, despite
Jones’ language of ‘precedent’, it is a salutary reminder that notions of authority were flexible and that a judge could,
if he so desired, express sentiments seemingly contrary to them. A reference to the record as binding was one of a number
of responses open to judges, depending on their attitude to the case in hand, albeit a reference that counsel seems to have
expected the judges to accept and, indeed, comply with. In
Bright v.
Forte (1595), once it seemed possible that the judges might decide against their client, Williams and Harris exclaimed ‘but you
have the record of a judgment in the King’s Bench in the very point’.
38 To them, it was evidently wholly unanticipated that the judges might decide contrary to a decision found in the records of
the court.
The record’s principal role was to show what judgment (if any) had been reached in a case, but the importance of judgment
is taken for granted. Lawyers using the record were not concerned with whether or not a particular judgment was in some sense
right, but merely that it was a judgment. This was the essence of the complaint about the record in
Bright v.
Forte, that there was no judgment despite the evidence to the contrary on the record.
Jones J, in
Browne v.
Strode, made it clear that he would ‘no more doubt in this matter’ if the record of a judged case against him could be shown,
39 whilst
Browne J admitted that he would ‘subdue’ his ‘reason’ to such precedents.
40 These judges did consider themselves to be constrained by an earlier case – in modern terms, bound by an authority. Caution
should still be exercised; the role of record as the ‘ultimate authority’ is not a ‘strict doctrine of precedent such as is
found in the later Common Law’.
41 There is not a clear ‘doctrine’ of precedent; rather we can see an occasional, but powerful, practice of precedent, albeit
a practice without clear rules or much of an underlying theory. This absence of theory was a vulnerability in the status of
the record
.
In the longer term the record of the court ceased to be of major importance in legal argument. Its moment in the spotlight
was brief. By the time of the publication of his
Commentary on Littleton, even
Coke was reducing its significance. Although the record is included in Coke’s list of arguments from ‘authority’ (together
with reports), when Coke described argument from authority as the ‘strongest’ form of argument, he referred only to ‘book
cases’.
42 Whilst the record clearly was still of use in legal argument, as demonstrated by
Browne v.
Strode in 1629, the reduced role of the record and the enhanced strength of reported cases, as described by Coke, is both indicative
of changes in legal argument and perhaps formative of the attitudes of later generations. The declining role of the record
can be explained by two broad factors: the conflation of reports and the record in practice and theory, and deliberate attempts
at exclusion of the record from legal argument.
43Law reports and the record came to be closely intertwined due to developments in the practice of reporting. Printed reports
acknowledged as of high quality (Plowden and subsequently Coke) provided both the record and report, and the same occurred
with regard to some volumes of manuscript reports.
44 By the end of the 1590s, references to printed reports far outnumbered references to manuscripts, so this change in the format
of the printed reports in particular would have altered perceptions of what was normal in a law report.
45 The style of printed reports
developed by Plowden and Coke meant that by the second decade of the seventeenth century a lawyer referring to a report would
also have access to the record. The record and report of a case were therefore not fully separate sources. Although not a
theoretical development in itself, such a presentation in the literature must have contributed to ideas that reports and records
were not essentially different.
This essential similarity in both function and appearance of record and report can also be seen in the actions on the case.
Legal historians generally acknowledge the difficulties in using the record to show the state of the law at any given time
due to the typically bland, stereotyped, assertions found on it.
46 Such entries on the record were consequently difficult for lawyers to use. Actions on the case were unusual in presenting
the facts of the case on the writ itself and any judgment (at least any judgment where the plaintiff was successful) would
indicate that a writ on such facts was acceptable. Given the relatively brief nature of many early-modern law reports, such
as those by Dyer, this would often be as much information as a reader would obtain from the reports too.
These practical changes had the potential to intertwine the record and reports, their literary similarity joined to functional
equivalence. If that were so, then it was only a small conceptual step to assume they would have similar authority. The conflation
of the record and report would not simply be practical, but also theoretical. Precisely such a theoretical equivalence did
emerge.
William Fulbeck described the Year Books as the ‘record’ of the common law,
47 whilst the preface
to Coke’s
Third Reports makes it clear that the record was to be seen as consisting of ‘reports’ of ‘equal authority but less perspicuity’ compared
to the printed reports.
48 This is interesting, as Coke clearly regarded the record as being capable of use in legal argument as a report. In functional
terms, Coke therefore equated the record with reports. This is accurate as a description of early-modern legal argument, distinct
from legal reasoning, in that reports were clearly the principal mode of legal argument by the time of Coke. Comparing the
record to reports could be seen as paving the way for an increased use of the record in legal argument. Edward Coke the evangelist
seems unlikely, however; much
more probable is that Coke was simply reflecting existing practice by counsel in argument, that the record was used like reports,
but less frequently due to the difficulties in comprehension. Coke himself certainly did use the record in a similar manner
to reported cases, as did later lawyers.
49The incongruity in Coke’s remarks comes with the comment that the record has ‘equal authority’ with reports. The other evidence
does suggest that if we conceive of authority in something like the modern manner, the record was more authoritative than
law reports, being capable of overriding them and the only material seen in the sources binding judges. It may be that Coke
was writing as the advocate he still was in 1602. Certainly his advice that a lawyer should set down ‘all authorities, precedents,
reasons, arguments, and inferences whatsoever that may be probably applied to the case in question; For some will be persuaded,
or drawn by one, and some by an other’ is the attitude of an advocate (perhaps more accurately, a rhetorician) rather than
someone handling binding material
.
50 It is the judges who were bound by the record, seemingly willingly, and counsel may not have addressed argument to the judges
in terms of being ‘bound’ by the record simply because such arguments may not have been politic. Nevertheless, the theoretical
equation of report and record remains
.
Walmesley J went further. In the defamation case of
Holwood v.
Hopkins from which
Anderson CJ’s earlier remarks came, Walmesley J made a presumably deliberate statement that ‘[o]ur books are good precedents
to guide us’.
51 This was in response to Anderson CJ’s view in the case that the Common Pleas ought to follow the precedents of the King’s
Bench. Walmesley was clearly trying to argue that there was, at least, no difference between printed reports and the record.
This was unorthodox at the time and did not work. However, note that Walmesley was expressly trying to claim the authority
of the record, through the use of the language of ‘precedent’, for printed law reports. This is an early version of the modern
language of ‘precedent’ and is a deliberate piece of verbal disingenuity attempting to subvert the force of references to
the record and transfer that to reports.
52 As Walmesley disagreed with the position supported by
the records of the King’s Bench, his remark is good evidence of the perceived strength of the record. Walmesley’s position
would also seem to undermine Coke’s suggestion that the record enjoyed ‘equal authority’ to reports, as he tried to claim
reports had authority equal to the record. In this regard, Walmesley’s argument, and attempted subversion, is actually more
accurate and revealing as to the position of the record in argument, at least from the perspective of a judge
.
Coke’s discussion of the role and nature of citations from the record did not end or begin with his comments in the
Third Reports. Coke’s argument in, and report of,
Slade v.
Morley also discusses the role of the record.
53 In
Slade’s Case, Coke explained that precedents are to be followed and that this is due to following the judges, who are held in high regard.
In itself this may not be especially important: it is Coke providing a justification for an existing form of legal argument.
The conceptual development is the separation of judicial and non-judicial ‘precedents’, although Coke does not use that language
until later in his career.
54 Coke regarded ‘precedents’ in the sense of arguments from the record based on writs issued as more powerful where the judges
have debated them. The notion of debate leading to authority can also be seen with regard to reports of cases.
55 As such, Coke’s justification for the authority of the record shows a further clear tendency to conflate the record with
reports, this time through a common theoretical justification for their place in argument.
Whilst Coke’s views on ‘silent’ precedents may not have been original (a similar argument had been used against Coke by Tanfield
in
Ognel v.
Paston),
56 it was Coke’s printed report of
Slade’s Case which popularised the distinction, and carried with it the shared theoretical basis for the use of material from both report
and record.
Francis Bacon relied on
Slade’s Case for the same distinction between precedents in the Star Chamber in 1614, and whilst this may have been a deliberate goad
to Coke
(who was sitting as one of the judges), presumably Bacon would not have made the argument unless he considered it had some
weight.
57 In Caroline England the distinction between judged and unjudged precedents, and the concern about a lack of judicial discussion,
was an important part of argument in
Lord Mountjoy v.
Sir Henry Mildmay58 and the notorious case of ship money, both of which referenced
Slade’s Case on the point.
59As such, we can see that the record could be a binding authority and at the same time at least some lawyers began to regard
the record and reports as equivalent. This had the potential to create a situation where reports could be viewed with the
same authority as the record, although Walmesley’s approach in Holwood v. Hopkins is the only express attempt at this yet found in curial discussions.
The authority of the record had one other impact on the practice of precedent. Given the power of references to the record,
lawyers developed strategies to overcome it. Walmesley J’s remark in
Holwood v.
Hopkins is the first example of this found, but there were others. In the dispute over the jurisdiction of the Common Pleas to grant
writs of prohibition in the late sixteenth and early seventeenth centuries, arguments against the Common Pleas’ jurisdiction
had to contend with the fact that the Common Pleas clearly had ‘precedents’, albeit recent ones, supporting its claims.
60 The dispute casts light on a number of issues, particularly the relationship between print and manuscript in the early
seventeenth-century common law, but for present purposes, opponents of the Common Pleas made a number of attempts to undermine
the jurisdiction of the court to issue writs of prohibition. The doctrinally innovative position was to question the judges
as to whether the jurisdiction of the Common Pleas could be justified by reference to printed material, thereby entirely excluding
the record as there were no relevant reports containing the record in print.
61Whilst this attempt to exclude the record was not entirely successful in the prohibitions dispute, it seems to have had a
longer-term impact. In 1616,
when James I listed the materials of which judges should take account when performing their function, references to the record
(or at least to recent entries) were as conspicuously absent as Coke’s Reports. James expounded that the judges were to follow
precedents but ‘not every snatched precedent, carped now here, now there, as it were running by the way; but such as have
never been controverted, but by the contrary, approved by common usage, in times of best Kings, and by most learned Judges’.
More precisely, he instructed them to ‘[l]ook to Plowdens Cases, and your old
Responsa prudentum: if you find it not there then (
ab initio non fuit si) I must say with Christ, Away with the new polygamy, and maintain the ancient Law pure and undefiled’.
62 Similarly, when Lord Keeper
Thomas Coventry instructed new judges as to their duties in the 1630s, he told them to judge according to reported cases.
Coventry advised
Robert Heath ‘not to stand upon novelties or new inventions of wit, but
upon the authority of books’ [emphasis added] and a year later instructed
Francis Crawley ‘to judge according to the precedents and cases
before times reported and judged’ [emphasis added],
63 omitting the record once again. If judges were discouraged from relying upon the record, prudent lawyers would avoid founding
their arguments upon it. This may not have been unwelcome; given the need to descend into ‘Hell’ to view the record,
64 it is perhaps unsurprising that few lawyers fancied themselves an Orpheus and instead relied on more readily available (increasingly,
printed) texts
.