The history of early legal education begins in the 12th and 13th centuries, when law was taught primarily by members of the clergy in the City of London. However, on 2 December 1234, a decree by Henry III prohibited the clergy from teaching the common law, limiting their role to cannon law. As a result, legal education moved to nearby Holborn.
Image:
Incipit of HLS MS 1,
Bracton's De legibus et consuetudinibus Angliae. Manuscript on vellum,
written about 1300, probably at Worcester. This copy is corrected and annotated
in a contemporary hand and contains numerous citations to cases brought from Devon
during the reign of Edward I (1272-1307). http://bracton.law.harvard.edu/ManuscriptEdPage.htm
Devon born, Henry of Bratton was an English judge of the Coram Rege (later King's Bench) from 1247-1250 and again from 1253-1257. His manuscripts appears to be unfinished, possibly due to the fact that Bracton was ordered to surrender the judicial records he had been using when he ceased to be a member of the Coram Rege.
By the mid-13th century, manuals and books were produced in Court-French rather than Latin, which would have limited circulation. However, having obtained a placement in a set of barristers' chambers, trainee barristers were trained in court procedure and advocacy by attending and listening to arguments in the royal law courts during the four legal terms. In order to develop their knowledge of substantive law, students were expected to keep the two vacations, at Easter and in the summer, by attending readings on individual legal statutes. By the Elizabethan period readings were given and moots took place on a regular basis and barristers who had been called to the Bar were expected to play a part in teaching students.
From the Middle Ages, the Inns of Chancery, offered training in the writing and employment of writs and other procedures in use in the common law courts. These minor Inns were later subsumed within the four Inns of Court we see today, as follows:
·
Clement's
Inn, Clifford's Inn and Lyon's Inn - Inner Temple
·
Strand
Inn (abolished in the 16th century) and New Inn - Middle Temple
·
Thavies'
Inn and Furnivall's Inn - Lincoln's Inn
·
Barnard's
Inn and Staple Inn - Gray's Inn
Image: A happy female student (and friend) on her call to the Bar, Trinity Term, 1982: grounds of The Middle Temple.
While the oral scholarship
of ‘reading’ would have inspired later written scholarship, it is inevitably a
difficult area to research, and relies on references to unpublished readings by
earlier jurists. For example, the first volume of Edward Coke's work Institutes
of the Lawes of England (1628),
known as Coke on Littleton, is
ostensibly a commentary on Sir Thomas
Littleton’s On Tenures (1481). Dr Williams observed that commentaries
from the Elizabethan period on Littleton may have provided an opportunity to
produce in text that which was earlier published through oral readings and recorded
in personal manuscripts, such as 17th century jurist, William
Fleetwood’s, ‘Observacons sur Littleton’.
Each Inn
was a closed society and the circulation of legal scholarship was generally limited
to those who were members of the same Inn. Only members and special invitees
could attend readings, making oral readings a valuable text. Surviving
manuscripts based on readings tend to have been compiled by specialist scribes
employed by private individuals, for their personal use (at about 7½ d per page),
whereas law reports were produced commercially by general scribes (at about 1d
per page).
Dr Williams’ evidence on the limited access to
written recordings of readings included the example of Henry Sherfield.
Sherfield’s notes on his readings in Lincoln’s Inn were lent to only four other
lawyers in the decade after they were delivered in 1631. Three recipients were fellow
members of Lincoln’s Inn, including the puritan, William Prynne. The fourth
recipient was [Richard?] Townsend, who was not a member of the Inn and only
permitted to receive the manuscript by asking Sherfield directly for a copy, as
no copies were publicly available. Terms imposed on Townsend were that the manuscripts
were kept safely; returned safely; and that they were not defaced. When the
records were handed over, Sherfield made a note of the exchange in his account
book and had the entry witnessed by two people. Likewise, when Matthew Hale
died in 1676, his will included instructions that his manuscripts should be
given to Lincoln’s Inn and to be lent only to members of the Inn.
Dr
Williams observed that some pieces of written text may have been the result of
patronage, or an attempt to obtain patronage, rather than a trend towards
disseminating written text to a wider audience. He gave the example of James
Morris [?] and Sir William Cecil, in which Morris (at Cecil’s request) sent an
edited version of his reading on the ‘royal prerogative’ to Cecil, who in turn
edited the text to suit his own ends. [Any comments and sources on Cecil and Morris
would be appreciated]. Similarly,
during the 1580’s, Edward Coke represented the Howard family, Dukes of Norfolk,
and some of his manuscripts were commissioned by them.
Readings
on the common law and statute laws, delivered in the different Inns of Court, frequently
received the sanction of senior lawyers. Sir Edward Coke lamented that this
custom was falling into disuse:
Here, it is to be observed, of
what authority ancient Lectures, or readings upon the
statutes were, for they
had five excellent qualities. First, they declared what the common law was
before the making of the statute. Secondly, they opened the true sense and
meaning of the statute. Thirdly, their cases were brief, having, at the most,
one point upon the common law, and another upon the statute. Fourthly, plain
and perspicuous; for, then, the honour of the reader was to excel others in
authorities, arguments, and reasons, for proof of his opinion, and confutation
of the objections against it. And fifthly, they read to suppress subtle
inventions to creep out of the statute. But now readings have lost the said
former qualities, have lost also their former authorities: for now the cases
are long, obscure, and intricate, full of new conceits, like rather to riddles
than lectures, which, when they are opened, they vanish away like smoke.
Source: The
Law Journal for 1804: Consisting of Original Communications on Legal Subjects, Opinions of Counsel, Account and
Analysis of New Law Books, Ancient Readings; Memoir on the manuscript of Lord Coke’s
Commentary upon Littleton, Lincoln’s Inn: W. Clarke and Sons.
Dr
Williams suggested that the advantage of different readings on the statutes
discussed within the separate Inns allowed for wider debate before a judge,
when different interpretations on the statutes were presented, allowing judges
to ‘make’ or state’ the law on declaring their decision. One law report
contains the words: “I have heard the views of the Middle Temple”. Another: “We
will never reach that decision until all four judges are form the Inner Temple”.
In terms of
written material, some of the notable works of the Early Modern Period (in chronological order) are as follows:
- Henry de Bracton De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England) (c.1235, published in 1569 by Richard Tottel, and reprinted in 1640).
- John Fortescue, De Laudibus legum Angliae (late 15th century, published 1714) in which he first expressed that which was later attributed to William Blackstone: “one would rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be condemned, and suffer capitally".
- Edmund Plowden, Law Reports, Part 1 (1571), Part 2 (1579).
- Sir Edmund Anderson, Law Reports, 1574-1603 (published 1664).
- Abraham Fraunce, Lawiers Logike (1588): an account of the common law.
- William Lambarde, Eirenarcha, or Of the Office of the Justice of Peace (1581-1588,1610).
- Sir Edward Coke, Reports, in thirteen parts, 1600-1615.
- Ferdinando Pulton, Statutes at Large (1618).
- Sir Edward Coke, Institutes of the Laws of England, in four parts (1628, 1642, 1644).
- Sir George Buck, The Third Universitie of England: An account of all the Inns of Court of the time in London [an appendix to John Stow’s Annales of England (1631)].
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