KD 
 
 '^ 
 
 «i 
 
 1 
 
 ^1 
 
 %, 
 
 
 11 
 
 
 
 ^ 
 
 ^ 
 
 
 1 
 
 i 
 
 «' 1 
 
 
 ^t; 
 
 
 
 '2 
 
 PfSI 
 
 ^K »^j 
 
 
 ^ 
 
 ^m 
 
 ^^ 
 
 (IJnntFU fCam ^rljnnl ICtbraty 
 
 Digitized by Microsoft® 
 
KD 198.B69yT""'""""-""''^ 
 
 3 1924 021 690 627 ,.„ 
 
 Digitized by Microsoft® 
 
This book was digitized by Microsoft Corporation in 
 
 cooperation witli Cornell University Libraries, 2007. 
 
 You may use and print this copy in limited quantity 
 
 for your personal purposes, but may not distribute or 
 
 provide access to it (or modified or partial versions of it) 
 
 for revenue-generating or other commercial purposes. 
 
 Digitized by Microsoft® 
 
THE YEAR BOOKS 
 
 Digitized by Microsoft® 
 
CAMBRIDGE UNIVERSITY PRESS 
 
 C. F. CLAY, Manager 
 
 LONDON . FETTER LANE, E.C. 4 
 
 LONDON : STEVENS AND SONS, Ltd., 
 
 iig and 120 Chancery Lane, W.C. 2 
 NEW YORK : THE MACMILLAN CO. 
 BOMBAY \ 
 
 CALCUTTA I MACMILLAN AND CO., Ltd. 
 MADRAS J 
 TORONTO : THE MACMILLAN CO. OF 
 
 CANADA, Ltd. 
 TOKYO: MARUZEN-KABUSHIKI-KAISHA 
 
 ALL RIGHTS RESERVED 
 
 Digitized by Microsoft® 
 
THE YEAR BOOKS 
 
 LECTURES DELIVERED IN THE UNIVERSITY 
 
 OF LONDON AT THE REQUEST OF 
 
 THE FACULTY OF LAWS 
 
 BY 
 WILLIAM CRADDOCK HOLLAND, M.A. 
 
 Of Lincoln's Inn, Barrister-at-Lam ; late Scholar 
 of Magdalene College, Cambridge 
 
 WITH AN INTRODUCTION 
 BY THE 
 
 Right Hon. Sir FREDERICK POLLOCK, Bart., 
 K.C., D.C.L., LL.D. 
 
 Honorary Fellow of Trinity College, Cambridge; 
 
 late Corpus Christi Professor of Jurisprudence 
 
 in the University of Oxford 
 
 CAMBRIDGE 
 
 AT THE UNIVERSITY PRESS 
 I 9 2 I 
 
 Digitized by Microsoft® 
 
/2? ^ / 4. 7 ^' 
 
 Digitized by Microsoft® 
 
PREFACE 
 
 VERY few words are necessary by way of pref 
 this little volume. In the first place I want to thank 
 the University of London for giving me, on the suggestion, 
 I believe, of Mr G. H. J. Hurst — j)almam qui meruit fer at 
 — the very welcome opportunity of doing something to- 
 wards making those priceless storehouses of many kinds 
 of learning, our old Year Books, more generally known 
 than they are at present. They have been too long 
 neglected; but it is not yet, I trust, too late to hope that 
 interest in them may be revived, and that their unique 
 value to many branches of scholarship may be increas- 
 ingly recognized. 
 
 Here, too, I gladly find an opportunity of thanking 
 my learned friend. Sir Frederick Pollock, for the sympa- 
 thetic Introduction which he has contributed to this 
 volume. Year Book scholarship has ever had his very 
 active and sincere support; and in my own personal 
 struggles in the editing of many Year Books I owe much 
 to him. 
 
 Finally this is to be said. No one can now write or 
 
 speak at length on the Year Books and their story without 
 
 owing much to the earher work of Maitland and Pike. 
 
 I have made frequent specific references to them in these 
 
 lectures, and here I gratefully acknowledge my general 
 
 indebtedness to them for what they have taught me and 
 
 for what, through their teaching, I have been enabled to 
 
 learn and to say. 
 
 W. C. B. 
 
 December, 1920. 
 
 a. 3 
 Digitized by Microsofi® 
 
The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021690627 
 
 Digitizea by Microsoft® 
 
TABLE OF CONTENTS 
 
 PAGE 
 
 INTRODUCTION . . . ix 
 
 FIRST LECTURE . . . i 
 
 The Year Books ; what they are. Less known than any other 
 branch of our national hterature. Nothing like them in any 
 other country. Over what period of time they extend. The 
 language in which they are written and some observations 
 thereon. For what purpose they were written. Their present 
 utility. A knowledge of their contents necessary to historians, 
 philologists and other speciahsts. 
 
 SECOND LECTURE ... 26 
 
 The Plea RoUs and their purpose. How they differ from the 
 reports in the Year Books. Each is supplementary to the 
 other. Who wrote the Year Books and in what circum- 
 stances? Almost certainly the work of private persons and 
 in no sense official. Was there ever any manuscript which 
 could be called an original Year Book? Printed editions of 
 the Year Books and some observations on them. The work 
 of the Selden Society. 
 
 THIRD LECTURE ... 54 
 
 The forgotten process by Bills in Eyre re-discovered in the 
 Year Books. The true meaning of the statute de donis different 
 from the one generally received and taught in later times. 
 Abjuration of the realm. Judicium payium. Extracts from 
 the Year Books illustrating the hfe and social customs of 
 the Middle Age. Proverbs in the Year Books. Conclusion. 
 
 INDEX .... 83 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
INTRODUCTION 
 
 MY kamed friend Mr Bolland's lectures will, I trust, 
 have the effect of awakenmg the attention of his- 
 torical students both inside and outside the profession 
 of the law to the unique interest of the documents we 
 know as Year Books. It is about a century since English 
 scholars began to emerge from the thick darkness which 
 had. then prevailed for a period of much the same length 
 with regard to everything mediaeval. Our Whig ancestors 
 of the eighteenth century, being quite sure that they 
 lived in the most enUghtened age of the world and had 
 achieved a perfect constitution, dismissed everything 
 that savoured of the Middle Ages, (except a nominal 
 reverence for Magna Charta) as "Gothic" or "monkish," 
 while for that very reason obscure mediaeval abuses con- 
 tinued to flourish, like toadstools in a cellar, unregarded. 
 Dayhght came with the birth of the romantic school in 
 letters and the historical school in learning. Serjeant 
 Manning, if one is to name any one man, revived the 
 study of "black-letter law." Blackburn, afterwards Justice 
 of the Queen's Bench and Lord of Appeal, was moved by 
 a somewhat hasty opinion of Manning's to discuss a Year 
 Book case at length in a treatise of modem law which 
 became classical. Willes', an even more learned judge than 
 Blackburn, knew the Year Books well and was glad to 
 impart his knowledge to younger men. All this time the 
 books were accessible only in cumbrous, ill edited, ill 
 
 Digitized by Microsoft® 
 
X INTRODUCTION 
 
 printed, ill indexed volumes. Mr BoUand has told us 
 what has been and is being done in our own generation, 
 and how much more remains to be done. 
 
 Endeavours have been made at various times to call 
 attention to the bearing of these books on economic and 
 social history. The late Mr Edward Manson pubUshed in 
 the Law Quarterly Review, more than twenty-five years 
 ago, a pretty Uttle selection of " Scenes in Court from the 
 Year Books^," but rather as professional anecdotes than 
 as contributions to knowledge of mediaeval England. 
 Mr BoUand's extracts make a great advance on anything 
 formerly done in this kind. 
 
 Not being of sufficient competence in the philology of 
 mediaeval French, I will not commit myself on the ques- 
 tion whether Anglo-French or Anglo-Norman is the better 
 name for the language of the Year Books. Historical 
 warrant may be vouched for either usage. The Dialogue 
 of the Exchequer speaks of " Normanni " in contrast with 
 "Angh," but in earher docmiients the men who came over 
 with William the Conqueror's great lords are called 
 Frenchmen. It is certain that Mr BoUand's preference 
 for "Anglo-Norman" has the weighty support of Prof. 
 Paul Studer in his Oxford inaugural lecture (1920) ; the 
 subject of that lecture is the literary language which 
 flourished in England, quite independent of the law courts, 
 down to the fourteenth century, and was not extinct in 
 the fifteenth. At the very end of the fourteenth century 
 French was the official language of the Cinque Ports, as 
 one may see in the archives of Rye ; but then their institu- 
 tions appear to have had a specially French cast from the 
 first 2. 
 
 1 L.Q.R., X. 63. 
 
 2 Round, Feudal England, 558. 
 
 Digitized by Microsoft® 
 
INTRODUCTION xi 
 
 As to the authorship and purpose of the Year Books, 
 I agree with Mr Bolland that the mss. we have cannot 
 well be mere private fair copies of notes taken in court. 
 His reasons for regarding them as commercial productions 
 are to my mind very persuasive. Exactly when the pro- 
 duction of such books for sale became a business, and 
 whether it was more systematic as time went on, are 
 questions capable of solution only when the later Year 
 Books are critically examined. 
 
 F. POLLOCK. 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
THE YEAR BOOKS 
 
 Lecture I 
 
 The Year Books, our old legal Year Books, what are 
 
 they? That is the question which I have set myself to 
 
 answer in these lectures. It is not a question which can 
 
 be answered in a couple of sentences, for these old books 
 
 can be looked at from many points of view. There are, 
 
 indeed, printed books already accessible from which much 
 
 knowledge about them may be gathered, but these are 
 
 books which, I am afraid, comparatively few people read; 
 
 for, indeed, of no other branch of our national hterature 
 
 does the modem man or woman of literary aptitude and 
 
 inclinations and of even much more than average culture 
 
 know so little,' and, knowing so little, care so httle, as 
 
 of our old Year Books. And, indeed, in stating the facts 
 
 in this fashion, I am putting them, seeing what they 
 
 really are, too favourably. I am afraid that it is not too 
 
 much to say that the great majority of men and women 
 
 who have passed through the general courses of our 
 
 Universities, the elder ones as well as the younger ones, 
 
 know nothing at all about them, not even the bare fact of 
 
 their existence. Even the Encyclopaedia Britannica itself, 
 
 now in its eleventh edition, knows nothing about them, 
 
 has never heard of them? That is a most depressing 
 
 truth. Several times it has happened to me to find that 
 
 men of my own calling, and not very young men, men 
 
 who, above other men, it might be fairly assumed, would 
 
 B. I 
 
 Digitized by Microsoft® 
 
2 THE YEAR BOOKS 
 
 have sufficient knowledge, at any rate, to enable them 
 to understand an allusion to the Year Books, were 
 blankly ignorant of them. One must confess that for 
 all but the comparative few The Annual Register, Who's 
 Who, Whitaker's Almanack and the Uke are the only Year 
 Books. But for those who do know them, for those who 
 have thought it worth while to wrestle a httle with their 
 difficulties, they have a peculiar charm and allurement 
 which you wiU scarcely find in anything else, for in the 
 literature of the whole world there is nothing else like 
 them. Lest you may think that I am speaking in the 
 exaggerated terms of an enthusiast, let me teU you two 
 very short stories; the one some three hundred years old, 
 the other of last summer; the one of an Enghsh Serjeant- 
 at-Law of the seventeenth century, the other of a young 
 American woman of to-day; two types of our race perhaps 
 as different the one from the other as you could find. It 
 is on record — you will find the story in Roger North's 
 Lives of the Norths — that Serjeant Maynard, who died 
 in 1690, had such a rehsh of the old Year Books that he 
 carried one in his coach to divert him in travel, and said 
 that he chose it before any comedy. That is one story; 
 the other is this. When Miss Bertha Putnam, the Head 
 of Mount Holyoke College in Massachusetts, one of the 
 leading women's colleges in the United States of America, 
 was in London a few months ago, she told me of one of 
 her assistants who took out with her in her boat every 
 afternoon a volume of the Selden Society's edition of 
 the Year Books of the Eyre of Kent of 6 and 7 Ed- 
 ward II, with which, Miss Putnam said, she was wholly 
 fascinated. 
 
 The Year Books; what are they? How cein I, in words 
 few or many, best enable you to realize most sharply and 
 
 Digitized by Microsoft® 
 
FIRST LECTURE 3 
 
 clearly what they really are? Come with me back through 
 the centuries to a time compared with which the Revolu- 
 tion and the Reformation Eire but modern events; to a 
 time away back beyond the Wars of the Roses, and beyond 
 the great story of Joan of Arc, which has been revived 
 for us all within the last week or two, to a time two 
 hundred years and more before Chaucer wrote the 
 Canterbury Tales or Gower the Confessio Amantis — to 
 the early years of Edward I. Then come with me to 
 Westminster HaU. There, sitting on a dais by the wall, 
 are the Justices of the King's Court of Common Bench, 
 some three, four or five of them, with the Chief Justice 
 in the middle, in their scarlet robes, with closely fitting 
 coifs on their heads. The clerks of the Court are doing 
 their business at a table in front of them. On the floor 
 of the HaU, standing here and there about the clerks' 
 table, are the Serjeants, who alone had the right of 
 audience in the Court of Common Bench. They, too, 
 wear coifs, for the coif is the mark of the Serjeant's 
 degree, and curious parti-coloured robes. Somewhere 
 near by is a stand or box, known as the Crib, where the 
 apprentices of the law sit or stand and hsten and learn 
 law and practice against the time when they shall be 
 entitled to wear the coif and to plead before the Justices. 
 Serjeants are arguing a case. There may be some half- 
 dozen or even more of them engaged in it. They are 
 talking one against another. The Justices are intervening 
 now and again in the debate. Repartees, sarcasms, aptly 
 quoted proverbs, verses from the Bible and what not 
 are being bandied about. The most highly cultured life 
 of the thirteenth century is finding its fullest expression 
 there. And somewhere in that Hall, perhaps in the 
 apprentices' Crib, perhaps elsewhere, there is a little 
 
 Digitized by Microsoft® 
 
4 THE YEAR BOOKS 
 
 company of men, how few or how many I will not even 
 attempt now to guess, who in some sort of shorthand of 
 their own are noting down in the hving language of the 
 day the speeches and shifting arguments of the Serjeants 
 and the matters of fact they spoke of, hot from the 
 actual present life of the time, the jibes, the retorts, the 
 quips, the criticisms by the Court, the judgments — 
 whatever else that might interest them. And what these 
 men noted and wrote down make what we call to-day the 
 Year Books, or part of them. For not in Westminster 
 Hall only were these mediaeval reporters ever Hstening 
 and making their notes, but in Yorkshire, in Kent, in 
 Cornwall, in every county of England, when the King's 
 Justices went on their periodical Eyres, practised re- 
 porters went too, and wrote full stories of all the pomp 
 and ceremony that accompanied the opening of these 
 visitations, with many a quaint detail of the proceedings 
 customary on such occasions, such, for example, as the 
 searching of all the neighbouring taverns for musty or 
 bad wine; and they teU us quite enough of the oppressive 
 nature of a General Eyre to make it easily intelligible 
 why the men of Cornwall in 1233 fled away into the 
 forests at the approach of the Justices rather than abide 
 their coming and all that it meant. Cases of every kind 
 were triable at a General Eyre, and of reports of the 
 trials of every kind of case the old reporters have left us 
 a plenteous store. AH this forms part of our Year Books. 
 Then in the county towns and the larger market towns 
 of the country Justices sat from time to time to try 
 Assizes — the mediaeval Assize, I may just note in passing, 
 was a very different thing from what we colloquially call 
 Assizes to-day— and we have reports of many of these, 
 which form another part of our old Year Books. 
 
 Digitized by Microsoft® 
 
FIRST LECTURE 5 
 
 The next thing, perhaps, to be said, and to be said 
 witli much emphasis, is that there is nothing else in the 
 whole world like these old Year Books of ours. "What," 
 Maitland asked, "has the whole world to put by their 
 side? Are they not the earliest reports, systematic re- 
 ports, continuous reports of oral debate? In 1500, in 
 1400, in 1300 (and even before then) English lawyers 
 were systematically reporting what of interest was said 
 in Court. WTio else in Europe was trying to do the Uke — 
 to get down on paper or parchment the shifting argument, 
 the retort, the quip, the expletive? Can we, for example, 
 hear what was really said in the momentous councils of 
 the Church, what was really said at Constance or Basel, 
 as we can hear what was really said at Westminster long 
 years before the beginning of the Conciliar age^?" In 
 these old Year Books of ours we can hear the actual 
 colloquial phrases and idioms used by the cultured classes 
 in England as they went about their daily business over 
 600 years ago. From no other source can we get direct 
 information in regard to the French spoken in England 
 in the middle age. In these respects they are absolutely 
 unique. There is nothing hke them an37where else. " There 
 are many mediaeval records of various kinds," Dr Holds- 
 worth has written, "which record contemporary events. 
 There are no other mediaeval records except the Year 
 Books which photograph the actual words and actions 
 and idiosyncrasies of the actors as they were bringing 
 these events to pass.... When we read the Year Books we 
 think of a human reporter, mainly interested, it is true, 
 in law, but, for all that, keenly alive to the exciting 
 incidents of the trial which is proceeding before his eyes 
 — to judicial wit and criticism and temper, to the shifts 
 1 Selden Society's Year Book Series, 1, p. xvii. 
 
 Digitized by Microsoft® 
 
6 THE YEAR BOOKS 
 
 and turns of counsel, to the skilful move or the bungUng 
 omission, even to the repartee and the exclamations 
 which the heat of a hardly contested fight evoked." And 
 what store have we set by these national treasures of 
 ours, the like of which no other country possesses? What 
 have we done with them? Our Universities, the Council 
 of Legal Education, the Law Society, have hitherto 
 ignored them; yet how shall law and the history of 
 law be taught without them? But I hope that I shall 
 be able to show you that there is much else than law to 
 be learnt from them. It stands to the credit of the 
 University of London that it has been the first of our 
 Universities, the first of our educational bodies of any 
 kind, so far as I know, to recognize officially the existence 
 of the Year Books and, in allowing me the privilege of 
 deUvering these lectures, to do something towards making 
 their existence and their paramount importance to 
 scholarship of many kinds more generally known. " They 
 should," said Sir Frederick PoUock and Maitland, writing 
 of the Year Books in their History of English Law^, "be 
 our glory, for no other country has anything like them: 
 they are our disgrace, for no other country would have 
 so neglected them." 
 
 So much by way of a general and preliminary survey 
 of the Year Books and their nature and contents as may 
 serve as some sort of introduction to these lectures. I wiU 
 now say something more in detail. And first as to the 
 period covered by the Year Books. Chaucer, in the 
 Prologue to the Canterbury Tales, says of the Serjeant 
 of the Law that 
 
 In termes hadde he caas and domes alle. 
 
 That from the tyme of King William were falle; 
 
 1 History of English Law, 11,^.^60. 2 Vol. i, p. xxxv (anded.). 
 
 Digitized by Microsoft® 
 
FIRST LECTURE 7 
 
 which, in modem English, means that the Serjeant had 
 Year Books dating from the time of King WUliam I. 
 We cannot to-day accept that statement as trustworthy 
 evidence of the existence of Year Books towards the 
 end of the eleventh century. Chaucer was a poet, and 
 we have all heard something about poetic hcence. The 
 strong opinion held by those who are entitled to form 
 one is that there were no Year Books even down to the 
 end of Henry Ill's reign. Not everyone wiU know even 
 by name or reputation the book we call shortly Fitz- 
 herbert's Abridgement, or still more shortly just Fitz- 
 herbert; and so I may perhaps profitably say a word or 
 two about it now. It is a mighty work, usually to be found 
 bound in two generous foho volumes. It was first printed 
 in three volumes in gothic character in 15 14. Its formal 
 title is: La Graunde Abridgement Collect par le Judge 
 tresreuerend monsieur Anthony Fitzherbert. It consists 
 of a series of extracts from the Year Books arranged 
 under headings of the various subjects to which the 
 extracts are apposite. It is quite possible, probable even, 
 that Fitzherbert was able to use manuscripts which are 
 not now in existence: which, certainly, are not known to 
 be in existence! But they may quite possibly re-appear. 
 There are probably manuscript Year Books now l5nng 
 buried in private libraries, of the existence of which 
 their present owners are unaware, or of the nature ot 
 which they are ignorant. Not very long ago a hitherto 
 quite unknown manuscript of early Year Books was 
 discovered in the country. Its owner had no notion what 
 it was. So it is quite within the possibilities that the 
 earlier Year Books of Edward I may some day come to 
 light and to our knowledge again. On the other hand 
 we may say with reasonable confidence that of many 
 
 Digitized by Microsoft® 
 
8 THE YEAR BOOKS 
 
 manuscripts which we are studying to-day Fitzherbert 
 knew nothing. Fitzherbert gives us what purports to 
 be an extract from a Year Book of the fifteenth year of 
 Henry HI. It is written in true Year Book form, and 
 gives us the names of the coimsel engaged. But, unhappily, 
 a close examination and consideration of this report 
 shows that it does not in fact belong to Heiu-y Ill's time, 
 but to Edward Ill's, the letter H. in the margin of the 
 book having been misprinted for E. There are other 
 notes of cases in Fitzherbert attributed to Henry Ill's 
 reign, but these are not written in Year Book style, and 
 the character of the French is such as to make it certain 
 that they were written at a later time. The earHest ex- 
 tracts in Fitzherbert which we can accept as genuine are 
 of the eleventh year of Edward I. There is not the least 
 reason to suppose that Fitzherbert had not seen an 
 actual Year Book of that date. And it is not imreasonable 
 to suppose that if there were Year Books of ii Edward I, 
 there were Year Books also of the immediately succeeding 
 years. But these have disappeared; let us hope only 
 temporarily. So far as we know the earUest Year Book 
 now in existence is one of the eighteenth year of Edward I, 
 1289-90. From that time onwards until 27 Hemy VIII, 
 1535. we have a fairly perfect succession of them. There 
 are a few terms of Edward I's reign missing; and in the 
 reigns of Henry VII and VIII there are intermissions. 
 They stop finaUy, as I have Just said, in 1535, when 
 their place was taken by printed reports made by counsel 
 who pubUshed them in their own names. 
 
 These books which come to us from the middle age 
 are written in French, using the word somewhat loosely. 
 It is not very good French. It is a variety of French 
 which used to be called Norman French. We are now 
 
 Digitized by Microsoft® 
 
FIRST LECTURE 9 
 
 taught to call it Anglo-French, though I am inchned to 
 think that an even better name for it would be Anglo- 
 Norman. For the language never was French; neither 
 did it come to us from France, properly so-called. There 
 were in the early part of the middle age four quite different 
 dialects spoken in the northern part of what we now call 
 France; Norman, Picard, Burgundian, and, in the lie de 
 France, French. In the middle age a Frenchman meant 
 a native of the lie de France, and French, the French of 
 Paris, was the language or dialect spoken in the lie de 
 France. These dialects, if dialects one may call them, 
 were so widely different that a Norman looked upon 
 French almost as upon a foreign tongue. Roger Bacon, 
 writing towards the end of the thirteenth century, says: 
 "That which you may quite properly say in the language 
 of the Picards would horrify the Burgundians and even 
 the nearer Frenchmen." The language that became the 
 language of the Court and the cultured classes in England 
 after the Conquest was Norman and not French. Later 
 on, no doubt, the influence of Paris, the fact that Parisian 
 French had become good French, standard French, 
 affected the language spoken in England, and disturbed 
 the development of an Anglo-Norman language which, 
 had it been left to itself, might have pursued a more 
 regular course. Still, the language spoken in England was 
 originally Norman, and perhaps even our modem speech 
 of to-day is more influenced by Norman forms than by 
 French ones. But that is an intricate subject into which 
 I must not enter here. Just one illustration, however, 
 I will leave with you. Why does the EngHshwoman of 
 to-day wear a "veil" while the Frenchwoman wears a 
 voile? Because "veil," spelt and pronounced as we spell 
 and pronounce it to-day, was the Norman form and voile 
 
 Digitized by Microsoft® 
 
10 THE YEAR BOOKS 
 
 was the Parisian form. But though these old manuscripts 
 are written in French of a sort, yet when I read them and 
 examine their phrases I cannot help feeUng that the 
 writers of them were EngUshmen thinking their thoughts 
 in Enghsh form, and then expressing their Enghsh con- 
 cepts and sentences somewhat baldly and quite un- 
 idiomaticaUy in foreign words. 
 
 M. Taine, who looked into these old books when he 
 was preparing his History of English Literature, calls the 
 language in which they are written "a colonial French"; 
 avarie; which, I take it, properly describes a commodity 
 damaged in transit by water, by its transference across 
 the Channel; pronounced with the teeth clenched, with 
 a contortion of the throat, after the fashion, not of Paris, 
 but of Stratford-at-Bow. I do not know how M. Taine 
 found all this out ; but the obvious comment on it is that 
 as the language spoken in England in the middle age 
 was what one may call a local variety of Norman and not 
 of the French of the lie de France, which was the French 
 of the Parisians, it would have been a httle surprising 
 if our Enghsh forefathers had pronounced their words 
 after the manner of the Parisians. It might, indeed, be 
 very plausibly argued that of the French — to give it 
 that name — spoken in England in the time of the Edwards 
 there was no generally observed standard of pronunciation. 
 It was an age of phonetic speUing. We may not be able 
 to appraise correctly all the vowel sounds, but when we 
 find the same words spelt in several ways at the same 
 date by different scribes, in ways so different from each 
 other as not to admit, so it would seem, of the same 
 pronunciation, what other conclusion can we come to 
 than that there was no standard of pronunciation generally 
 observed by the cultured class of the time. Take a couple 
 
 Digitized by Microsoft® 
 
FIRST LECTURE ii 
 
 of instances, instances of words which no one, speaking 
 only a sentence or two, could avoid using; words which 
 must, above other words of rarer use, have acquired a 
 conventional pronunciation, if any words at aU had 
 acquired one. The Anglo-French or Anglo-Norman word 
 representing our "was" is written by scribes reporting 
 the same cases in at least as many different ways as these 
 — -fuit, fuist, feut, feust, fut, fust. The word which repre- 
 sented the old Latin apud with the general meaning of 
 "with" appears in even a greater variety of forms — 
 0, ou, oue, of, od, oed. All these certainly are to be found; 
 but it seems scarcely possible that they could all have 
 been pronounced in the same way. Take, again, the 
 words which we spell to-day with a terminal on, such 
 words as maison, a house. The old scribes could never 
 really make up their minds whether the last syllable of 
 such words should be written on or oun; though I think 
 that there was a distinct incUnation to favour oun. And 
 sometimes the last syllable is written one. Again, one 
 scribe will spell pere, father, as we speU it to-day. Another 
 will spell it piere ; another wiU write peire. And we find 
 the like variations of mere and frere. I could give you 
 endless other examples of the same sort, but these wiU 
 be sufficient for the present purpose. Finally, there are 
 no accents and practically no punctuation. Perhaps 
 I had better interpolate now the remark that the language 
 and general details of the whole series of Year Books 
 from Edward I to Henry VIII is far too wide a subject 
 for me to undertake; and I must be taken as referring 
 in these lectures only to the earher Year Books, those of 
 the three Edwards, when I do not make it plain that I am 
 speaking of later ones. 
 
 Before going further I will say just a word or two 
 
 Digitized by Microsoft® 
 
12 THE YEAR BOOKS 
 
 of these old books considered as mere masses of tangible 
 and ponderable matter. They consist of pages of parch- 
 ment of various sizes, foUo and quarto and odd sizes 
 for which the bibliographer has no name and can de- 
 scribe only in terms of inches or centimetres. We have 
 them now bound together in miscellaneous collections, 
 sometimes in terms running consecutively for several 
 years, sometimes in collections of odd terms of diSerent 
 reigns. The volumes are scattered about the country, in 
 the British Museum, at Cambridge and Oxford, in the 
 libraries of the Inns of Court. There are none in the 
 official possession of the Public Record Office. All the 
 volumes of Year Books now known to exist can be 
 traced back to private ownership; and this is a fact of 
 some importance, as we shall see when we come to 
 consider the question of their authorship. Some of the 
 volumes are in bindings which are centuries old, possibly 
 their original bindings; others have been boimd, or re- 
 bound, in more modem, and others in quite modem 
 times. And some have had their margins so barbarously 
 shorn that the side-notes are too badly mutUated to be 
 now inteUigible. Here I am prompted to say that some 
 of those to whom in modem times the work of stitching 
 together and binding these old manuscripts was entrusted 
 seem to have looked upon them as more or less useless 
 lumber, whose age was their only merit and could be the 
 only reason why anyone should want to preserve them 
 stUl longer; things which no one would ever want to read 
 or study. There is, for instance, an excellent manuscript 
 in the British Museum, one of which I have made much 
 use lately. But it has been somewhat recently bound or 
 re-bound, and the foUos have been drawn so tightly 
 together in the process that it is not only hopelessly 
 
 Digitized by Microsoft® 
 
FIRST LECTURE 13 
 
 impossible to photograph them — ^photographs of them 
 would be of great assistance to me — but it is a most 
 difficult and tedious task even to read the words on each 
 page which lie near to the stitching. To read and to 
 transcribe concurrently is quite impossible. 
 
 Something as to the manner in which these old books 
 are written should now be said; something as to the 
 character of the handwriting. There were at this time 
 two entirely different and distinct kinds of script. They 
 are known as Court hand and cursive hand. Official 
 documents for the most part, such as Plea RoUs, charters, 
 and the Uke, such documents as were going to be filed 
 and preserved as formal evidence of the facts they recited, 
 were written in Court hand. Other documents were 
 usually written in a cursive hand. The Court hand was 
 more formal, more closely modelled upon the received 
 pattern of the particular time — and the standard style 
 varied with the centuries — than the cursive hand was. 
 This, hke our cursive hand to-day, varied, and varied 
 widely, with the individual writer. The Year Books are 
 written in cursive hand. For the most part they are 
 written well and clearly in a script the characters of 
 which are easily legible by anyone who has had some 
 experience in deciphering these old manuscripts. The 
 chief difficulty hes in the manifold abbreviations used by 
 the writers. Some old schoolmaster who wrote a treatise 
 in the thirteenth century, which has survived to the 
 present day, for the instruction of his pupils in such 
 matters leiid down the rule that though you might 
 abbreviate Latin you must not abbreviate French. You 
 must write the words in full. Like a good many other 
 theoretical rules, counsels of perfection, that was a rule 
 which could not stand the strain and stress of practical 
 
 Digitized by Microsoft® 
 
14 THE YEAR BOOKS 
 
 life. It would scarcely be an exaggeration to call the 
 script of our early Year Books a mass of abbreviations. 
 And I think that I can see signs that this abbreviation 
 of French words was really recognized by the scribes as 
 in its nature an Uhcit process, sinfully carried out by 
 its perpetrators, in the fact that while there was a 
 recognized code of Latin abbreviations, which a man 
 might easUy learn and understand, an authorized code 
 which was generally recognized and followed, there 
 was no such generally recognized and observed system 
 of French abbreviation. Many of the stenographic forms 
 used in the abbreviation of Latin were used, when they 
 would serve, in the abbreviation of French. Many others 
 were invented and used by individual scribes. And whUe 
 in the system of Latin abbreviation there is a reasonable 
 certainty as to how any particular abbreviation should 
 be expanded, each abbreviation having a recognized 
 meaning and one meaning only, there is no such certainty, 
 no approximation even to any such certainty, in ex- 
 panding many of the French abbreviations. The student 
 of our old Year Books must very often guess to a certain 
 extent how he should expand a particular abbreviation, 
 what particular meaning he should give to it. And it is 
 not until he has had a good deal of experience that he 
 caji feel any strong confidence in the correctness of his 
 expansions. And even where certain stenographic 
 symbols were, in theory, carefuUy distinguished, the 
 scribes, terribly careless as many of them were, as I shall 
 show you later on, used them incorrectly. Take a few 
 examples. Where practically the only letter visible is a 
 p, a httle examination will disclose a short bar through 
 the foot of the letter, or a tittle over it, or some other 
 such tiny addition. If these tiny additions have been 
 
 Digitized by Microsoft® 
 
FIRST LECTURE 15 
 
 made correctly in the French script of our Year Books 
 and according to the rule observed in the abbreviation 
 of Latin, then we ought to have no difficulty in dis- 
 tinguishing between pas, par, pour and puis; though it 
 may be a harder matter to say whether we should write 
 par or per; pour, pur or por; puis or pus. Our old scribes 
 were lavish in their use of the indiscriminating and 
 doubt-breeding tittle or scriggle. Many of the common 
 law terms were never, or hardly ever, finished. The French 
 word which' means "to claim" — demander — naturally 
 occurs very frequently in one form or other. Count up 
 how many moods that verb has, how many tenses there 
 are in each mood, and remember that there are two 
 numbers in each tense, and three persons in each number. 
 Every one of aU those possible inflexions of demander 
 can be represented by a couple of d's written with a sort 
 of terminal sciiggle. And you have got to settle for 
 yourself which particular inflexion is the one which the 
 scribe had it in his mind to write. Similarly all the parts 
 of the French verb which means to vouch, another law 
 term of very frequent occurrence, may be represented by 
 vouch followed by a similar scriggle. All the parts of the 
 verb which means to warrant {garrantir) may be rendered 
 by the letters gar and a scriggle; and the same abbrevia- 
 tion may mean, besides all these, both "warrantor" 
 and "warranty." AU this may seem to you quite bad 
 enough and more than sufficiently perplexing, but there 
 is far worse to be told you about just the single letter r. 
 What may and what does r actually stand for at one 
 time or another? It may stand for the substantives reson 
 and response; it may stand for any and every part of the 
 verbs respondre and recevoir, and for a good many parts 
 of the verb recouvrir. Yes, he who would transcribe in 
 
 Digitized by Microsoft® 
 
i6 THE YEAR BOOKS 
 
 full the stenographic reports of the mediaeval reporters 
 has opportunities in plenty for going astray, but some 
 sort of reasonable certainty is acquired by experience. The 
 reading of many reports and the comparison of two or more 
 reports of the same case and of these with other reports of 
 other cases of like nature make one, in the great majority 
 of cases, fairly sure of what exactly the mediaeval reporter 
 would have written if he had written his words at fuU 
 length instead of in his more or less arbitrary and stinted 
 stenography. But there are cases where an editor can 
 only piously hope that he has been rightly directed. This 
 miserly stenography had its reason, I think, not in 
 economy of time, but in economy of parchment. Some 
 of the abbreviations of the smaller words, with their 
 bars or tittles, must have taken quite as much time to 
 write as would have been taken to write them at full 
 length; but it needed only a third of the space, and 
 parchment was very costly in the middle age. There were 
 few expedients which a mediaeval scribe would not 
 adopt if thereby he could save an inch or two of writing 
 space. We hear a good deal nowadays about Government 
 extravagance; but was not that ever a chciracteristic of 
 Government departments? At the time when these old 
 scribes were endangering the inteUigibUity of their 
 reports and laying up a store of distracting perplexities 
 for their future editors in their desire to get every word 
 on to a sheet of parchment that it could be made to hold, 
 the clerks of the King's Courts were leaving long skins 
 of the same costly material absolutely blank. I have 
 seen mediaeval Plea RoUs containing as much blank 
 parchment as a mediaeval reporter would have made 
 suf&cient for the whole of his reports of an average term. 
 But the modem editor profits by this mediaeval official 
 
 Digitized by Microsoft® 
 
FIRST LECTURE 17 
 
 extravagance. The transcription of the Latin Plea Rolls 
 written by clerks who were supplied freely with as much 
 parchment as they cared to have does not present nearly 
 the same difficulties as does the transcription of the 
 reports in the Year Books written by scribes who were 
 everlastingly hampered and conditioned by the high cost 
 of their materials. I must say something later in the 
 course of these lectures about these Plea Rolls and of the 
 light which they throw upon the Year Books, and of the 
 light which the Year Books in turn throw upon them. 
 
 We come now to another question, a question that goes 
 to the root of our subject. Why were the Year Books 
 written? What was their purpose? Who was going to 
 use them, and how? We may clear the ground a little 
 by saying at once for what purpose they were not 
 written, a purpose which might on first thoughts seem 
 to be the very purpose for which they actually were 
 written. The evidence is aU against their having been 
 written for the purpose of citation in Court, for it is 
 only very rarely that we find anything in the nature 
 of a precedent cited to the Court or by the Court, not 
 more than once or twice in a term at most, and not 
 always even so often. And on these rare occasions the 
 precedent is not cited on the authority of any written 
 report. It is stated as a personal reminiscence, intro- 
 duced by some such phrase as "I remember," or "you 
 wiU remember," or "I have seen." Case law practically 
 did not exist in Edward II's time and thereabouts. 
 On at least one occasion the Court said distinctly 
 that in its rulings and judgments it was guided by the 
 circumstances of the individual case before it and not 
 by any precedent. In the nineteenth year of Edward III 
 Serjeant Robert Thorpe complained that it was impossible 
 
 B. 2 
 
 Digitized by Microsoft® 
 
i8 THE YEAR BOOKS 
 
 to know what the law was unless the Justices would 
 follow precedents; and thereupon Justice Hillary retorted 
 that the law {i.e. the common law as distinct from statute 
 law) was the pleasure of the Justices. Chief Justice 
 Stonore, however, seems to have thought that this was 
 putting the matter a httle too crudely. "Nay," he said, 
 "the law is what is according to reason^." Many years 
 before, in 1309, Chief Justice Hereford had said exactly 
 the same thing: "Law is based upon reason^." I do not 
 know whether Sir Edward Coke ever read these two 
 passages in the old Year Books- — one gets the impression 
 that his knowledge of the Year Books was confined to 
 the extracts from them contained in the Abridgements — 
 but he has said very much the same thing in his report 
 of Harbert's case: "Judges and sages of the law have 
 always expounded general statutes according to the rules 
 of common law, which is built on the perfection of reason, 
 and not according to any private and sudden conceit or 
 opinion^." The same thought seems to permeate a rather 
 extraordinary, perhaps I might even add amusing, 
 definition of the law of England which was given by 
 Justice Jemian in 1649. Addressing Lt. -Colonel J. Lilbume 
 who stood charged before him with high treason, he said: 
 "The law of England is the Law of God... the law of 
 England is no written law, it is the law that hath been 
 maintained by our Ancestors, by the tryed rules of 
 Reason, and the prime Lawes of Nature; for it does not 
 depend upon statutes or written and declared words or 
 hues; and this is our Lawes that have been maintained 
 by our Ancestors, and is subordinated to the law and 
 
 1 Rolls Series of Year Books, 18-19 Edw. Ill, p. 378. 
 * Selden Society's Year Book Series, 111, p. 80. 
 ' 3 Reports, 136. 
 
 Digitized by Microsoft® 
 
FIRST LECTURE 19 
 
 Wil of God, therefore I say again, the Law of England is 
 pure Primitive Reason, uncorrupted and unpolluted by 
 humane humours, or humane corruptions, Wits or Wils; 
 that's the Law of England^" 
 
 If the Year Books, then, were not reports for citation 
 in Court somewhat after the manner of the more modern 
 Law Reports, what were they? Maitland was at first 
 inchned to beUeve that they were, the earliest of them, 
 at any rate, something of the nature of student's note- 
 books; note-books in which the students, learning their 
 business in Court, in the Crib, jotted down what struck 
 them individually as being of importance or of interest, 
 as material for subsequent discussion amongst them- 
 selves. I do not know that Maitland ever definitely 
 formulated any other theory, but I think that before 
 he was, to the irreparable loss of legal scholarship in 
 general and Year Book scholarship in particular, taken 
 from us, he was disposed to revise this early opinion in 
 the light of his increased knowledge and fuller considera- 
 tion. This early view of Maitland's was far, very far, from 
 the view which Mr Pike, the very learned editor of the 
 Rolls Series of the Year Books of Edward III, took of 
 them. Whatever else they might be, they were certainly 
 not, in his opinion, student's note-books. But he, too, 
 died, before he had, I think, pronounced his final word 
 on the question. 
 
 In another place Maitland wrote that the object of 
 the report — the report of the Year Books — ^was, from 
 the very first, "science, jurisprudence, the advancement 
 of learning " ; and these are not quite the terms in which 
 one would generally speak of a law-student's note-book.. 
 Here, I have httle doubt — I hope that I may presume to 
 1 The Trial of Lt.-Colonel J. Lilbwrne (1649), p. 23. 
 
 2 — 3 
 
 Digitized by Microsoft® 
 
20 THE YEAR BOOKS 
 
 say so much — Maitland's more matm-e opinion found 
 expression. How can I in a few words best lead you to 
 understand exactly what he meant. Pleading in the 
 King's Courts of the middle age was entirely different 
 in nature and manner from the pleading in the King's 
 Courts to-day. It is now a matter of precision and pre- 
 cedent, speaking generally, settled in writing before the 
 parties come into Court. Then it had something of the 
 nature of a game of chess between experts, after they 
 came into Court. You never quite knew what shape the 
 attack would take; you never knew what shape the 
 defence would take; or how unexpectedly either would 
 be cleverly and suddenly varied to meet a variation on 
 the other side. Not even the Serjeants themselves who 
 were fighting the cases in Court knew upon what pleas 
 they would finally have to rely. It was even all more 
 doubtful in its own way than a game of chess, for in 
 playing chess you do, at any rate, know what moves 
 are permissible and what are not, but in the mediaeval 
 Courts counsel did not know what pleas the official 
 umpires, the Justices, would aUow and what they would 
 not allow. It was not much use citing precedents. And 
 so they came into Court rather uncertain as to the Hne 
 that would be best for them to take, very uncertain what 
 Une the manoeuvring of the other side would force them 
 to take, and what hne the Court would allow them to take. 
 Some cleverly conceived technical objection by counsel 
 on the other side, if the Court could be persuaded to 
 look favourably upon it, would throw the whole pre- 
 conceived plan of action out of gear. It was necessary 
 to be able to decide, all at a moment's notice, what was 
 then, in the circumstances, the best alternative line to 
 take up. Further, a plea when it was once formally 
 
 Digitized by Microsoft® 
 
FIRST LECTURE 21 
 
 made by counsel and accepted by the Court was binding 
 upon the party making it. It could neither be withdrawn 
 or modified. It was well, then, to find out, if you could, 
 what a Court which cared little or nothing about pre- 
 cedent and adapted its law to circimistances thought about 
 it; whether the Justices were hkely to give judgment on 
 it in your favour or against you. If a Serjeant's first 
 move, warily made, did not seem to enhst the Court's 
 sjmapathy on his behalf, he would vary it. He would, 
 as warily, try some other way to success, never finally 
 tjang himself to any definite plea until he thought he 
 had Hghted on some form which would bring him success 
 or had exhausted every form and variation of which he 
 could think. It is obvious that a book which told him of 
 all the various forms of pleas which Serjeants had made 
 in cases Uke his own, of the successful objections which 
 other Serjeants had made to them — for the unsuccessful 
 argument is reported as well as the successful — of the 
 views which the Justices had taken of this plea or that, 
 of the reasons why they had approved or disapproved 
 of it, woiald, if he had it at his fingers' end, if much study 
 of it had made him completely f amOiar with all that was 
 to be learnt from it, be invaluable to him. Such a book 
 would most certainly be for him a practical, a very 
 practical, text-book of science and jurisprudence. It 
 would be, without question, a book which made for the 
 advancement of his learning. 
 
 Who wrote the Year Books? Of all the questions which 
 can be asked in connexion with the Year Books this is, 
 perhaps, the hardest to answer. It has been the subject of 
 much discussion and no really certain answer has yet been 
 found. It cannot be dealt with in a few words, and I will 
 reserve what I have to say about it until a future lecture. 
 
 Digitized by Microsoft® 
 
22 THE YEAR BOOKS 
 
 The present utility of these old Year Books and the 
 urgent necessity for their presentation in a form in which 
 they can be available for the use and study of students of 
 most branches of learning — what of these? To discuss 
 the utiUty, the necessity of them to lawyers and to 
 students of legal history would be an obvious futility. 
 Such utihty, such necessity are too transparently obvious. 
 It wiU be sufficient, more than sufi&cient, for no laboured 
 argument can be needed, to quote some words of Lord 
 Chancellor Bacon's, words which would probably have 
 been very much stronger if he had known as much of 
 the contents of the Year Books as he might have done, 
 and I am sure would have done, if he had been hving now. 
 "For," said he, "the Common Law of England, it ap- 
 peareth, is no text law, but the substance of it consisteth 
 in the series and succession of Judicial Acts from time 
 to time which have been set out in the books which we 
 term Year Books." There, from the lawyer's point of 
 view, from the legal historian's point of view, you have 
 the whole matter set clearly out. The Year Books are 
 the foundation of the common law of England; that is, 
 I may explain for the information of those who may not 
 quite grasp the meaning of the term, the prescriptive and 
 immemorial law of the land as distinguished from the 
 law made by Act of Parhament. Though that common 
 law is now well and firmly established, there was a time, 
 long centuries ago, when it was not so estabhshed; a time 
 when it was being slowly and gradually forged. The Year 
 Books take us back to that long succession of fcir off years 
 and show us how those principles of law which are now 
 so thoroughly recognized and estabhshed were once 
 matters of doubt and contest, and after what struggles 
 and difficulties and vmcertainties they were at last 
 
 Digitized by Microsoft® 
 
FIRST LECTURE 23 
 
 generally accepted. In their History of English Law^ 
 Sir Frederick Pollock and Maitland declared that "the 
 first and indispensable preliminary to a better legal 
 history than we have of the later middle age is a new, 
 a complete, a tolerable edition of the Year Books." "If 
 to the whole mass of materials for the history of law 
 England had nothing to contribute but these Year Books, 
 England's contribution would stiU be of inestimable 
 valued." 
 
 But not to the legal historian alone are these old books 
 absolutely necessary for the full understanding of his 
 subject. They are equally necessary to the historian of 
 each and every side of mediaeval English life. There is, 
 indeed, nothing or practically nothing about battles and 
 statecraft in them, but if you search them and ask them 
 intelligently you will find in them answers to most 
 questions touching the history and condition of the 
 people. In the long panorama of mediaeval hfe which 
 they unfold we have pictures of all classes of society, of 
 the lives they lived, the circumstances in which they 
 lived them; of the deeds they did, of their relations with 
 their neighbours, with their dependants, with their equals, 
 with those superior to them in wealth and social position. 
 The villein or serf, the poor freedman, the well-to-do 
 tenant of land, the serjeant-at-law, the attorney, the 
 bailiff, the parson and the vicar, the great lord of many 
 manors, with his rights of wardship and marriage, the 
 Earl, the Bishop, the Prior and the mitred Abbot, all 
 these pass before us, distinct and living, as we turn over 
 the pages of our old Year Books; and we see, as we can 
 see nowhere else, see it as related by themselves and as 
 
 * Vol. I, p. XXXV (2nd ed.). 
 
 2 Maitland in the Selden Society's Year Book Series, .1, p. xvii. 
 
 Digitized by Microsoft® 
 
24 THE YEAR BOOKS 
 
 recorded from their own lips by their contemporaries, 
 the Hfe which men of all classes in EnglaJid lived six 
 centuries and more ago. "It will some day," Maitland 
 wrote, " seem a wonderful thing that men once thought 
 that they could write the history of mediaeval England 
 without using the Year Books.... These Year Books come 
 to us from hfe. Some day they will return to hfe once 
 more at the touch of some great historian." 
 
 The old Year Books are equally necessary to the 
 historian of our language, for they are reports of what 
 real hving men, relating and discussing the actual facts 
 of contemporary hfe in their own natural words, actually 
 said. They teU us exactly how French w£is spoken in 
 every-day hfe in England six hundred years ago. In them 
 we have no speeches savouring of unreality, couched in 
 the more or less artificial style of the study or the stage, 
 such as are put by poets or dramatists into the mouths 
 of feigned characters. The language of the Year Books 
 has been untouched by any editing. The words remain 
 to us as they were spoken. They come to us straight from 
 hfe, true to life, true to sound. 
 
 For the philologist the old Year Books are sources of 
 information of a quite unique nature; but they remain 
 practically unknown, and, because unknown, unused. 
 When the attention of the late Professor Skeat was 
 attracted to them he declared that he found in them a 
 rich mine of philological lore. He had been reading some 
 of the volumes of the Year Books of Edward II published 
 by the Selden Society, and in what must have been one 
 of the last letters he ever wrote he told me that he found 
 them highly important from a philological point of view. 
 He told me with hvely enthusiasm of what he called 
 starthng and important facts which he had already dis- 
 
 Digitized by Microsoft® 
 
FIRST LECTURE 25 
 
 covered from reading them and had noted for future use. 
 But he was unhappily lost to scholarship before time had 
 been allowed him to study the language of these old books 
 with the careful fulness with which he was hoping and 
 intending to study it. I had sent him a long list of the 
 appellations and trade-names of traders of all sorts in 
 England in the early years of Edward II, gathered from 
 the Year Books, in which he was greatly interested and 
 on which he sent me back some valuable comments. 
 But, he added, "the most extraordinary thing is that 
 your examples of these words are often a great deal earher 
 and older than those in the N.E.D., which requires much 
 explanation." I had that explanation some time later 
 from Dr Bradley, the present editor in chief of the Dic- 
 tionary, to whom I had sent some notes. " I don't think," 
 he wrote, "that anybody has searched the Year Books." 
 
 Digitized by Microsoft® 
 
Lecture II 
 
 Last week I tried to explain to you in some degree what 
 our old Year Books really are. I said that they are reports 
 of cases heard in the early EngHsh Courts made by men 
 who were actually present, reports of the words actually 
 spoken, reports of incidents which actually happened 
 made by men who were present when they happened; 
 reports made in the hving language of the time; and I 
 added that these reports were probably put together not 
 for the subsequent citation of them in Court as precedents, 
 but for the instruction of the Serjeants in the complicated 
 moves of the intricate game — so to speak — which they 
 bad to play; to show them what, when one move failed, 
 was the next best one to make in the circumstances. I told 
 you of the period of time they covered, and said some- 
 thing of the language in which they are written; of the 
 forms and complexities of the script used by the reporters 
 and scribes. I told you that they were absolutely unique; 
 that there was nothing else in the whole world like them; 
 and I tried to show you how necessary a knowledge of 
 them was, not only to the lawyer and to the legal historian, 
 but to the historian of each and every side of Enghsh 
 mediaeval life, and not even to these only, but also to 
 the historian of our language and to the serious student 
 of philology. 
 
 I want to say something to you this afternoon upon 
 what is, I suppose, the most difficult question in con- 
 nexion with the Year Books, the question of their 
 authorship. Who wrote them? But it may be helpful 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 27 
 
 if I first say something about the Plea Rolls, which are 
 as necessary for a full understanding of the Year Books as 
 the Year Books are necessary for the full understanding 
 of the Plea Rolls. First as to the form of these rolls. They 
 are engrossed in court hand on both sides of membranes 
 of parchment about a yard long and nine or ten inches 
 wide. The language in which they are written is Latin. 
 In the course of a legal term — ^there were four terms in 
 the legal year — a varying number of these membranes 
 would be filled according to the number and length of the 
 cases before the Court. In some of the terms in Edward II's 
 reign, for instance, four hundred membranes or more 
 were used. These were stitched together at the top end, 
 and form, in the bulkier rolls, a very great mass of matter. 
 How many copies of each of these rolls were made is not 
 quite certain. We know that certainly two copies of each 
 roll were made, one inscribed with the name of the Chief 
 Justice for the time being and known as the Chief Justice's 
 RoU; the other inscribed " Rex," and known as the King's 
 RoU. There were possibly other copies made; possibly 
 one for each of the Justices; but as to this I cannot as 
 yet say anything certainly. Now, what was the purpose 
 of these rolls? What was written in them? We generally 
 speak of the contents of these rolls as the record, and 
 when I use that term henceforward I shall mean that 
 which is written on the membranes of parchment forming 
 the Plea Rolls. The record was drawn up for the purpose 
 of preserving an exact account of the proceedings in the 
 various cases which came before the Court. It tells us 
 the names of the parties to an action, the nature of the 
 action, the plaintiff's statement of his case, the defendant's 
 defence, and the pleas upon which both parties finally 
 rested their case, the issue left to a jury, if an issue were 
 
 Digitized by Microsoft® 
 
28 THE YEAR BOOKS 
 
 left to one, the verdict of that jury if one were ever 
 delivered, and the judgment of the Court upon that 
 verdict. The object of the record being finality, a clear 
 and permanent statement, that could not at any future 
 time be controverted, that bound everybody, that pre- 
 vented the particular issues raised in a particular case 
 ever having to be argued again, there was no need to 
 burden it with pleas and arguments which were, later 
 in the hearing of the case, abandoned by the parties or 
 disallowed by the Court. These had nothing to do with 
 the purpose for which the record was compUed. The 
 record, therefore, ignored them. The reports as we have 
 them in the Year Books were drawn up for an entirely 
 different purpose. They were intended, not to show what 
 had actually been determined with regard to certain 
 special facts in htigation between A and B, a matter 
 which it was highly desirable should be authoritatively 
 recorded somewhere that there might be an end to aU 
 possible htigation in the future in respect of the same 
 set of facts; it was not for any purpose of this kind that 
 the reports were compiled. The record, one may say, 
 was compiled for the information of the general pubUc, 
 for the advantage of the people at large; the report was 
 intended for the use and instruction of the legal profession. 
 It was designed to show the general principles of law, 
 pleading and practice. The report was, of course, always 
 a report of a particular case, a case which had been 
 actually heard and tried, but it was a report of a case 
 which the reporter had reported solely because it con- 
 tained or was supposed to contain matter or principles 
 of general use and appUcation. The Roll contained a 
 record of every case and matter which came before the 
 Court, even though there were not the smallest legal 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 29 
 
 interest or importance in it. The record is very careful 
 to give us the names of the parties and of the places 
 concerned. In the report these names of parties and 
 places are very frequently omitted altogether or repre- 
 sented by letters chosen capriciously or even by names 
 obviously invented by the reporter on the spur of the 
 moment. These were not facts which the lawyer, as such, 
 was interested in knowing. They could teach him nothing 
 professionally; they could be of no sort of assistance to 
 him, no guide to him, in formulating his pleas in some 
 other action in which he might in time to come be engaged. 
 The Plea Rolls were made by the of&cials of the Court. 
 They had official authority, and they were retained and 
 kept in official custody. 
 
 Now it will be clear from what I have just said that 
 the record in Latin wiU naturally very often differ widely 
 from the report in French; each containing matter which 
 is absent from the other; each serving to illustrate the 
 other, and, for historical purposes, neither being complete 
 without the other. The report tells us what passed between 
 the_Judges and the Serjeants and the parties or their 
 attornies in the actual words spoken in Court, tells us of 
 many things which, because in the end they had no 
 bearing upon the issue ultimately left for decision, never 
 found their way into the record. In the reports, too, we 
 come across innuriierable matters of interest, legal, 
 historical, constitutional and social, about which the 
 record is entirely silent. Yet the record, in its own calmer 
 and more prosaic fashion, discloses many details which 
 supplement what we are told in the report; details without 
 which we could not draw a perfect picture of the social 
 condition of the country in the middle age. To put it 
 shortly, the reports are the living body, acting and 
 
 Digitized by Microsoft® 
 
30 THE YEAR BOOKS 
 
 speaking and thinking and wrangling and changing its 
 mind on the pressure of the moment; the record is the 
 skeleton, the dry bones of the bare facts. 
 
 Before I come to close quarters with the question of 
 the authorship of the Year Books it wUl be convenient 
 now to make yet another short digression which may help 
 you to a clearer understanding of the matter generally 
 later on. Several manuscripts dealing with the cases 
 heard in each several term of the legal year in the period 
 covered by the Year Books have come down to us. I mean 
 that we have several sets of reports for each term, or, at 
 any rate, for most of them. Of these several sets for any 
 particular term, two, three, four, or even more in some 
 cases, are all obviously derived ultimately from one and 
 the same original report. WhUe each of them varies from 
 each of the others of the same group to a varying extent, 
 there is such a general similarity amongst them all as 
 can only be accounted for by attributing them all to one 
 ultimate common origin. Then there may be another 
 group of reports of the same term which are widely 
 different from the first group. But they, in turn, so 
 strongly resemble each other that we are sure that they, 
 too, must all be derived from one common ancestor, an 
 original report made quite independently of the original 
 report from which the first group of reports was derived. 
 There may be one, two or more other similarly inde- 
 pendent groups of reports. One group will perhaps give 
 us, instead of the usual report in French, an extract from 
 the Latin record; it will give us cases which another group 
 of reports omits altogether; it will omit reports which 
 other groups wiU give. Where two or more of these 
 groups of manuscripts report the same cases they will 
 report them in quite different ways. When they report 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 31 
 
 the same facts and arguments they will report them in 
 quite different fashion; set them out on a quite different 
 plan. But, when dealing with the same cases, they will 
 not always report the same facts or the same arguments. 
 What struck one reporter as being more important 
 appeared to another as less so; and each reporter re- 
 ported what he thought most worthy of being reported. 
 Sometimes we get a report which seems to be compounded 
 of the reports contained in two different groups. The 
 earUer part of the report will follow the general lines of 
 one group; the latter part will follow the general lines 
 of another group; or the report will be continued, so far 
 as one knows, on what one may call original lines, on 
 lines, at any rate, which differ from those of any other 
 report of the case now known to us. 
 
 Having dealt with these preliminaries we may now 
 consider the question of the authorship of the Year Books. 
 Who wrote them? In the first place, had they, like the 
 Plea RoUs, an official origin? It wiU be well to get that 
 matter settled, if we can, before we go further. From the 
 seventeenth century up to a comparatively recent time 
 it was very generally beheved and very dogmatically 
 asserted that they had an of&cial origin. Coke, Bacon 
 and Blackstone, great nemies, and authorities as weighty 
 £is any, aU beheved and asserted this. They do not seem 
 to have entertained the least doubt about it. How came 
 they by this behef ? On what known facts was it founded? 
 It seems certain that this generally accepted theory of 
 the official origin of the Year Books rested ultimately 
 upon some words written by Plowden in the Preface 
 to his Commentaries or Reports first published in 1571. 
 So much has been built upon these words that I will 
 quote them as they there stand. "In former times," 
 
 Digitized by Microsoft® 
 
32 THE YEAR BOOKS 
 
 Plowden wrote, "as I have heard on good authority, 
 there were four reporters of our law cases, who were 
 men selected for the purpose, and who had an annual 
 stipend for their labours in the matter paid by the 
 King of this Kingdom, and they conferred together in 
 drawing up and producing a report. And their report, 
 by reason of the number of the reporters and their ap- 
 proved learning, carries great authority, as it rightly de- 
 serves^" Thus Plowden in 1571. Blackstone^ embroiders 
 and adds to Plowden's original statement without any 
 authority at all, and tells us that these reports were 
 taken by the protonotaries or chief scribes of the Court 
 at the expense of the Crown, and pubUshed annually, 
 whence, he adds, they are known under the denomination 
 of the Year Books. That is a statement for which there 
 is no authority to be found an5^where. It is obviously 
 founded on Plowden's words, but it goes beyond them 
 in the invention of the protonotaries, and the statement 
 that these reports were pubhshed annually, and were 
 therefore called Year Books. As a matter of fact they 
 were not called Year Books till a time long after the 
 fourteenth century. No mediaeval Serjeant ever cited 
 a Year Book by that name. For him they were simply 
 " the books." Now let me tell you what Sir Edward Coke 
 says. "It doth evidently appear that the Kings of this 
 realm did select and appoint four discreet and learned 
 professors of law to report the judgments cind opinions 
 
 ^ Plowden's own French text is: En auncient temps (sicome 
 iay sur credite oye) ilz y auoient quater Reporters del nostre cases 
 del ley, queux fueront homes eslieu, et auoyent vn annuall 
 stipend pur lour tramayl en ces, pay par le roy de cest Realme, 
 et ils conferront ensemble al fesance et produiment de le report. 
 Et lour report, pur le number de les reporters et lour approbate 
 scauoire port graund credite, come il de droit merite. 
 
 ' Commentaries, i, p. 71. 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 33 
 
 of the reverend Judges^." This is evidently only an echo 
 of Plowden's original statement, and Coke produces no 
 tittle of evidence or authority in support of what he says. 
 Bacon makes no specific statement on the matter. He 
 merely adopts the theory as an argument for a system 
 of official reportingi 
 
 I cannot within the limits of this lecture even epito- 
 mize aU that has been written from time to time by 
 competent scholars in criticism of the statement by 
 Plowden which I have quoted. I will note two facts only 
 touching the words as they actually stand, (i) Plowden's 
 statement confessedly rested upon vague hearsay only. 
 (2) It is not certain that it referred to the Year Books at 
 all. It probably did not, for it is not at all applicable 
 to the reports contained in them. Perhaps the strongest 
 reason why I should not spend much time now in dis- 
 cussing it here is the fact that Plowden's theory of the 
 authorship of the Year Books is to-day whoUy discredited 
 by all competent scholars. It wUl be sufficient here and 
 now to quote Sir Frederick Pollock's considered opinion. 
 "I hold," he has written, "that the legend of the Year 
 Books having had an official or even a semi-official 
 character (which I tried to find credible so long as I 
 could) is now finally exploded^." Thus Sir Frederick 
 Pollock denies the Year Books not only an official 
 character, but even a semi-official one. This brings us 
 to Mr Pike; and any opinion which Mr Pike expressed 
 touching any question relating to the Year Books must 
 be considered with great respect. Now, while Mr Pike 
 was strong in his disbehef of the Year Books having any 
 official character, he was somewhat inclined to believe 
 
 ^ Preface to 3 Reps. 
 
 ' Law Quarterly Review, xxix, p. 2n. 
 
 B. 3 
 
 Digitized by Microsoft® 
 
34 THE YEAR BOOKS 
 
 that they might have had what we may call a semi- 
 official origin. He was unwilling to beheve that Plowden's 
 statement, endorsed by Bacon and Coke and Blackstone, 
 was without some sort of warrant, was nothing but a 
 vain invention without any historical foundation, and 
 so he thought it not improbable that though the Year 
 Books had no ofl&cial authority they may have come from 
 an official source. In other words, he suggested that 
 these old reports were originally written by an officer 
 of the Court for his own use or for the use of others. 
 I think that this behef of Mr Pike's, if, indeed, I am 
 justified in caUing it an actual beUef, was based chiefly 
 on the fact that we not infrequently find in our French 
 Year Books — Year Books written mainly in French, 
 I mean — extracts from the official Plea RoUs, which 
 extracts could not be made, one supposes, without the 
 knowledge and consent of the clerk or officer who had the 
 custody of these roUs. They were not open to general 
 inspection. They were not even open to the inspection of 
 the Serjeants. Serjeant Toudebyi, for instance, early 
 in Edward IPs reign was very anxious to know on what 
 exact ground some land had been recovered by judgment 
 of the Court a Uttle while before. The knowledge was 
 necessary for the proper presentment of the case he was 
 arguing. If he had been allowed to inspect the roll he 
 certainly would have inspected it; but all that he could 
 do was to try to persuade the Court in a roundabout way, 
 not disclosing his real purpose, to order the roll to be 
 searched. But the Court quite saw through the Serjeant's 
 scheme, refused inspection of the roUs and told him to 
 get on with his case. Faced by, and fully recognizing, the 
 fact that all the manuscript Year Books which have 
 ' Selden Society's Year Book Series, i, p. 103. 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 35 
 
 descended to us have been found in circumstances which 
 indicate that they were originally in private hands, and 
 granting as beyond question that, whatever their author- 
 ship, they had no official recognition as part of the 
 property of any Court, Mr Pike^ has argued very learnedly 
 in support of this semi-official origin of the Year Books; 
 but scarcely, I think, with complete conviction. He 
 suggests no adequate reason why the custodians of the 
 rolls should have been at the trouble and expense of 
 writing these reports.. He makes no suggestion that they 
 were paid for the work. And why should they have done 
 it for nothing? I have not time here to review all Mr Pike's 
 arguments in support of this theory of the semi-of&cial 
 authorship of the Year Books, though they should cer- 
 tainly be read and considered by all who would qualify 
 themselves for forming an opinion of their own upon a 
 very difficult and knotty problem. 
 
 But if we cannot quite see our way to look upon these 
 old books as merely student's note-books nor to allow 
 them any official or even semi-official character, there is 
 yet a third theory possible; that they were the work of 
 professional reporters, that is, of reporters who made it 
 at any rate part of the business of their lives to report 
 cases heard in the Courts, making those reports not in 
 any way as officers of the Court, nor for the purposes of 
 the Court, but merely as men supplying for a price an 
 article for which there was a sufficient demand to make 
 the regular production of it sufficiently lucrative. No 
 one, I suppose, who has spent a good many years of his 
 life, as I have done, in studying and editing Year Books, 
 can very well avoid forming some theory as to their 
 origin and authorship and the purposes for which they 
 1 In his last volume in the Rolls Series of Year Books. 
 
 3—2 
 Digitized by Microsoft® 
 
36 THE YEAR BOOKS 
 
 were written, there being no generally received and 
 credited theory already in existence for his acceptance. 
 My own theory about them is something hke this. I give 
 it to you for what it is worth, merely premising, as 
 perhaps I may be permitted to do, that it has now been 
 before the world for some years, and, so far as I know, 
 has been generally accepted as a reasonable and probable 
 one. I have set it out at some length, together with my 
 reasons for disagreeing with Mr Pike, in the Introduction 
 to the second volume of the Eyre of Kent of 6 and 7 
 Edward II, edited by me for the Selden Society. 
 
 The question of the origin of the Year Books is really 
 a double question: the question of the origin of the 
 original Year Books, the original reports in the hand- 
 writing of the men who actually made the reports; and 
 the question of the origin of the Year Books as we have 
 them now. I remember Mr Pike telling me once that he 
 had never seen an original Year Book, meaning by that 
 term a book that had not almost certainly been copied, 
 with mistakes and omissions of various sorts, from some 
 earUer book or collection of reports. I do not think that 
 anyone living within a time to which I will not attempt 
 to put a limit has seen such a book. Was there ever, 
 in truth, anything that could have been called an original 
 Year Book? I suppose that there were in the days when 
 the early Year Books were put together, as there have 
 been ever since, men at the bar, apprentices of the law 
 as they were then called, there may even have been 
 Serjeants amongst them, who found it difficult or im- 
 possible to make a sufficient hving from the practice of 
 their calling. Then, as now, books of precedents, of 
 suggestions as to the various forms of pleas of which 
 parties to an action might avail themselves in the Vcirying 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 37 
 
 circumstances of particular cases, books of general in- 
 formation as to procedure, interspersed here and there 
 with such miscellaneous details as might be useful to the 
 practitioner and the student, were wanted; and, being 
 wanted, would, if they could be got, fetch their price. But, 
 if wanted at aU, they would probably be wanted in 
 considerable numbers. The mere writing of the words 
 contained in a single book — for you will remember we 
 are speaking of days a long time before the art of printing 
 was invented — ^meant the consumption of much time and 
 involved much continuous work; and more Year Books 
 were probably wanted than could be produced by the 
 unsupplemented labour of the few expert note-takers — 
 for I suppose that the number of men in any particular 
 court competent to take the necessary notes could not, 
 in mediaeval times, have been a large one; and these 
 books were also wanted at a smaller price than that at 
 which they could have been sold if they had been pro- 
 duced by the single-handed work of these few competent 
 reporters. Some mediaeval capitalists, possibly a syndicate 
 of Serjeants, for the Serjeants needed these reports as 
 much as other men, needed them, perhaps, more, see their 
 way to a profitable investment of capital. They will 
 engage two or three of the juniors of the Court to take 
 notes, to jot down on odd scraps of parchment just such 
 facts, just such fragments of dialogue as will make it plain 
 why the Serjeants engaged in the case thought it worth 
 while to venture upon the suggestion of this or that plea, 
 trying to discover with what favour or disfavour the 
 Justices regarded it, before committing themselves 
 irrevocably to it; noting what pleas were in the end 
 successful or unsuccessful and why; noting, in fact, all 
 those points of law and procedure a knowledge of which 
 
 Digitized by Microsoft® 
 
38 THE YEAR BOOKS 
 
 would usefully form part of the equipment of counsel 
 arguing similar cases; noting, too, such matters of general 
 interest, outside the strictly legal interest, as had a 
 personal appeal for them. These juniors, being constantly 
 in Court, would naturally be upon terms of at any rate 
 friendly acquaintanceship with the clerks of the Court 
 who made the entries in the Plea Rolls, and might quite 
 probably be given opportunities now and again of making 
 extracts from the roll; and the roll records, as I have told 
 you, the issues of fact as they were finally left to a jury 
 or the point of law that was left for the decision of the 
 Court. If the reporting junior has neglected to take a 
 note during the actual hearing of a case which he subse- 
 quently discovers he ought to have reported, there is a 
 possibihty, if he is in the good graces of the enrolling 
 clerk, that he may be allowed to supply the deficiency 
 to some extent from the roU. If it were the clerks them- 
 selves who put the Year Books together, as Mr Pike 
 suggested, it is difficult to understand why, using the 
 roll at all, they used it so sparingly as it is used; and why, 
 considering the very sparing use made of it, and com- 
 paring an extract from it in one Year Book with a 
 report in another in the usual Anglo-Norman dealing 
 with the same case, an individual clerk used it just when 
 he did. When it was used at aU, it was used not as 
 supplementary to a report, but as a substitute for one. 
 On the other hand if it were the juniors who made the 
 notes for the original Year Books, then we can easily 
 understand this sparing use of the record to which 
 they could have access only surreptitiously, when the 
 opportunity presented itself, or by the grace of the 
 clerk, who had no right to grant it and had to be 
 very careful how he did grant it. Let me work out 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 39 
 
 my hypothesis a little further. When the reporting 
 juniors, students or apprentices, have completed their 
 tale of work for the day, the scraps of parchment upon 
 which their notes have been written will be collected 
 by agents of the syndicate or capitalists, or wUl be gat 
 into their hands somehow, and carried off to the scriptoria 
 or writing rooms of their principals, which were, may be, 
 in some monastery or, more probably, in some mediaeval 
 Grub Street. That scriptoria in which scribes wrote in 
 Anglo-Norman did in fact exist in the thirteenth and 
 fourteenth centuries, the survival of treatises written 
 then for the instruction of such scribes is positive proof. 
 In these scriptoria wUl be gathered men who can write 
 with reasonable rapidity and legibility, but whom the 
 testimony of their work prevents us from crediting with 
 much more than this. There will be brought to each 
 scriptorium probably only one reporter's note of such 
 cases as it has been thought worth while to report. 
 Someone will read this note aloud. The scribes will follow 
 the spoken words as accurately as they can without taking 
 too much trouble, but they will not follow them quite 
 accurately. They will mistake one word for another that 
 has a somewhat Uke sound, but a quite unlike meaning, 
 and they write the wrong word, it being no business of 
 theirs to trouble themselves with the meaning. Others, 
 drowsy, perhaps, in the close atmosphere of a hot and 
 unventilated scriptorium on a summer afternoon, have 
 not been able to make their pens keep pace with the 
 reader's tongue, and have to write a good deal of what 
 they eventually do write from memories so flurried with 
 anxiety lest they should fall too hopelessly behind the 
 reader that often it is but muddled copy that they turn 
 out, faulty both in its omissions and repetitions as well 
 
 Digitized by Microsoft® 
 
40 THE YEAR BOOKS 
 
 as in its actual perversions of fact, and couched in a style 
 and in an orthography which vary with the skill and 
 intelligence of the individual scribe. And so from in- 
 accuracy of hearing, from carelessness, from inability 
 or neglect to f oUow the reader with the closeness necessary 
 for accurate reproduction, we get a series of first variants 
 from the same set of original notes. Our mediaeval 
 capitaUst or pubUsher — call him what you will — thus 
 obtains in process of time several copies of a Year Book 
 of a particular term — as many copies as he employs 
 scribes. For the production of still more copies other 
 means are now available. He can give his completed Year 
 Books to his scribes to copy. These wUl, the best of them, 
 really copy them, mistakes and all. But some of the 
 scribes will be very careless. They will, indeed, be very 
 careful not to amend mistakes already made, but they 
 will certainly add to their number. They will copy down 
 some word, and then, raising their eyes again to their 
 book, they will catch sight of a second occurrence of the 
 same word lower down in their text and will mechanically 
 continue their copy from that second occurrence, leaving 
 out all that intervenes, be it much or httle ; and sometimes 
 the omission amounts to several hues. If what is omitted 
 can be suppUed from another manuscript, we suffer no 
 great harm; but it cannot always be so supphed. Some- 
 times these omissions are made in circumstances which 
 make them more serious and bewildering than mere 
 omissions, pure and simple. The omitted text will include 
 the latter part of a speech by counsel on one side and the 
 first part of a speech by counsel on the other side, with 
 the sort of result that may be imagined — a speech wherein 
 the speaker seems to use arguments merely for the 
 purpose of showing a minute or two later how rotten 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 41 
 
 thej' are; of stating facts merely for the purpose of con- 
 tradicting them. Lapses of this kind are distracting to 
 the reader until he has grasped what has really happened. 
 So we get a second series of variants, all, with the first 
 series, lineally descended from a single original report. 
 And so the process went on, each series varying more 
 widely than its predecessors from the original. The 
 copies so made were evidently put upon the market just 
 as they were first written, mistakes, omissions, repetitions 
 and all. Clearly no scribe ever thought of reading over 
 what he had written. If he had done so, not even the 
 stupidest of them, one thinks, could fail to see the 
 nonsense he had made of his work here and there, and, 
 seeing that, would not have done something in the way 
 of correction. But there was obviously no thought of 
 revision. Business, then as now, was business. Then as 
 now it was caveat emptor — the book was sold at the buyer's 
 risk — the capitalist was anxious for his profit; the prac- 
 titioner and the student must correct the books for 
 themselves. Much, of course, that perplexes a modem 
 reader of the Year Books offered httle or no difficulty to 
 the contemporary student. He could mentally amend the 
 lapses of the hirehng scribe with far less difficulty and 
 with much greater confidence and certainty than we of 
 to-day can amend them. If there were sentences here and 
 there out of which even he could extract no inteUigible 
 meaning, these were possibly and probably sentences of 
 which the exact meaning did not very much matter to 
 him. There are comparatively few attempts at correction 
 in the manuscript Year Books that have come down to us, 
 correction, I mean, by those who had bought and used 
 them; and the probable explanation of this is that, 
 in spite of all their mistakes of one kind and another, the 
 
 Digitized by Microsoft® 
 
42 THE YEAR BOOKS 
 
 contemporary student could get from the reports as they 
 stood all that he really needed, and it was not worth his 
 while trying to correct what was reaUy immaterial. 
 
 Such, briefly, are the opinions which up to the present 
 I have formed on this question of the authorship of our 
 old Year Books. It is a subject upon which I could easily 
 dwell much longer, but I have still severed other matters 
 to speak of, and this must suffice for the present. When 
 more of these old manuscripts have been critically 
 examined and considered, it is quite possible that some 
 clearer and more certain clue to their authorship may be 
 discovered than has yet been found in the comparatively 
 few which modem scholarship has so far been able ade- 
 quately to study; and the serious study of the Year Books 
 dates from not very many years back. There are many, 
 very many, of these old manuscripts which have yet their 
 secrets to disclose to him or to her who will go in all 
 seriousness and seek to discover them. Some day, per- 
 haps, there wiU be classes in our schools and universities 
 for the regular study of the Year Books and kindred 
 subjects. But that day is not yet, nor can it be, at all 
 generally, I fear, for many days to come, for you must 
 first train your teachers, and no provision has anywhere 
 been made or even considered for training these. When 
 you have the teachers ready, perhaps pupils enough to 
 make it worth while may foUow. At present I know that 
 he has a hard task before him — no one knows it better 
 than I do — who would teach himself, without any help 
 or guidance from others, enough to enable him to study 
 a manuscript Year Book with any ease or pleasure to 
 himself or to the profit of general scholarship. 
 
 I said just now that there was probably a large enough 
 demand for manuscript copies of the Year Books to make 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 43 
 
 the systematic production of them on commercial Unas 
 a profitable imdertaking. This belief seems to get sub- 
 stantial confirmation from the fact that only seven or 
 eight years after the introduction of printing into England 
 our EngUsh printers began to print and publish volumes 
 of the Year Books^. William de Machlinia was the first 
 of our printers to take them in hand. He began with 
 some of the later years of Henry VI, from the 33rd to 
 the 37th. Why he should have selected these particular 
 years of this particular reign is not known; but it may 
 be noted that they were almost contemporaneous reports, 
 having been originally made not much more than twenty 
 years before their publication by MachUnia. The date 
 of their pubhcation does not actually appear on them, 
 but it is supposed, on good grounds, to be 148 1 or 1482. 
 Caxton does not seem to have printed any Year Books; 
 and it remains uncertain whether Wynkyn de Worde in 
 his long business career ever printed any, though two 
 volumes of the seventeenth and eighteenth years of 
 Edward III have been attributed either to him or to 
 John Rastell, on account of certain peculiarities in the 
 tj^e used in printing these volumes. Richard Pynson 
 was the first systematic publisher of Year Books. His 
 earliest dated edition is 3 Henry VI, October 12, 15 10, 
 but four of his undated pieces have been assigned by 
 experts to the last ten years of the fifteenth century. 
 Fifty editions surely, and perhaps five more, bear his 
 name. In 1553 the greatest of all the Year Book pub- 
 lishers, Richard TotteU, entered the field, and for thirty- 
 eight years occupied it so completely and fully as to 
 
 '■ I owe much in this connexion to Mr C. C. Soule's very com- 
 plete article on Year Book Bibliography in The Harvard Law 
 Review, xiv, p. 557. 
 
 Digitized by Microsoft® 
 
44 THE YEAR BOOKS 
 
 leave no room for any rival. There are about 225 known 
 editions of separate years or of groups of years which 
 bear his imprint or can be certainly attributed to his 
 press. He is pre-eminently the publisher of Year Books 
 and he turned out so many editions and so lowered their 
 price that he evidently succeeded in making them a 
 popular and profitable literature. Some other pubhshers 
 had also by this time dabbled in the business of Year 
 Book publication, but to such a small extent that in this 
 general survey I need not trouble you with their names 
 and the details of what Uttle they did. Up to the date 
 which I have now reached no Year Book reports of the 
 reigns of Edward I, Edward II or Richard II had been 
 printed. Probably the reason why nothing of Richard II 
 had been printed was that no printer had been able to 
 lay his hand on any manuscript reports of that reign; but 
 in 1584 Richard BeUewe, a barrister of Lincoln's Inn, 
 edited and pubhshed a small volume measuring only 
 six inches by four and containing 326 pages in which he 
 brought together the notes of cases heard in Richard II's 
 time which were scattered through the Abridgements 
 pubhshed by Statham originally in 1495, by Fitzherbert 
 originally in 1514 and by Broke in 1568. We stiU remain 
 without any serious attempt to print the Year Books of 
 this reign, though sufficient manuscripts are now avail- 
 able. In 1678 an association of printers produced an 
 edition of the Year Books of the whole of the reign of 
 Edward II together with the Memoranda of cases heard 
 in the Exchequer during the first twenty-nine years of 
 Edward I; but these latter cannot be properly reckoned 
 amongst Year Books. After issuing this volume the same 
 printers proceeded to reprint the then out-of-print volumes 
 of the earlier editions, issuing nine volumes in 1679 and 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 45 
 
 one in 1680. These eleven volumes form what are now 
 looked upon as the standard black letter edition of the 
 Year Books, and are generally known as the Vulgate, a 
 name which, I believe, Maitland first bestowed upon them. 
 With the pubhcation of this edition the curtain fell upon 
 the printing of Year Books and was not hfted again for 
 nearly two hundred years. 
 
 What, shortly, am I to say about these old printed 
 editions? In the first place I ought to say that I do not 
 suppose that anyone has really read in any seriously 
 critical sort of fashion the whole of them. No one who is 
 competent to do so has had the time to give to such an 
 unprofitable piece of work. "To read straight through 
 the Year Books in their present condition," Sir Frederick 
 Pollock wrote many years ago^, "is a task that no man 
 Uving can be expected to undertake." Of many of these 
 old printed volumes one has only a superficial knowledge; 
 but, on the other hand, many of them, the earUer ones 
 especially, have been read, and read and studied very 
 carefully. And what is the considered judgment passed 
 upon them by those whose full competence to judge them 
 is acknowledged? "Those who have attempted to read 
 them," Maitland wrote, "will know how bad, how in- 
 corrigibly bad they are " ; and he referred to them again 
 as "that hopeless mass of corruption that passes as a 
 text of the Year Books." No one who knows anything 
 much about them will think that Maitland was in the 
 least degree exaggerating in so speaking of them. The 
 original manuscripts, one knows, are corrupt enough, 
 are full enough of bewildering omissions and blundering 
 perversions and distracting mistakes of aU kinds; but 
 
 1 In the Introduction to the third edition of his Principles of 
 Contract. 
 
 Digitized by Microsoft® 
 
46 THE YEAR BOOKS 
 
 what these old printers found quite bad and more than 
 bad enough they have left still worse. The men employed 
 by the publishers to transcribe the manuscripts for the 
 printers' use were obviously unequal to their task. Quite 
 possibly the publishers would not pay the wages which 
 really competent men wanted. Anyway the men they 
 did employ were certainly not competent. They could 
 not even read with certainty the original manuscripts. 
 When the original manuscript was correct enough and 
 spoke quite intelligible sense they miscopied it, from 
 inabOity to read it, and turned the report into absolute 
 nonsense. They then did not know how to expand many 
 of the abbreviations used by the original scribes — and 
 a transcriber who cannot correctly expand the abbrevia- 
 tions, of which the manuscripts so largely consist, is 
 sure to make a horrible mess of the work. The men who 
 set up the type, the compositors, were in aU probability 
 and seeming not quahfied to do this special kind of work ; 
 and their bungling added generously to the mass of 
 mistakes in the copy in front of them. There was certainly, 
 one may confidently assert, no attempt at proof-reading, 
 no revision of any sort. Just what the compositors first 
 set up was printed and sent out into the world with aJl 
 the sins of the transcribers and printers upon its head. 
 Perhaps, indeed, the first question a critical modem 
 reader of these sixteenth and seventeenth century 
 printed editions of the Year Books is prompted to put to 
 himself is this: What use could these books ever have 
 been to anyone? Why should anyone ever have paid for 
 them the prices which they actually did pay for them? 
 Yet there can be no doubt that these volumes were 
 bought in large numbers, and that many lawyers and 
 students found it worth their while to buy them and to 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 47 
 
 go on buying them. Why? What is the explanation? 
 I think it is this. The men who bought and read these old 
 printed editions were men who were steeped to the linger 
 tips in the lore of the old law and the old practice and 
 procedure. They knew, where it is hard for us even to 
 guess in halting fashion, what the book ought to say; 
 what, therefore, it must be taken to say. They could, 
 consequently, afford to put up with very slipshod texts. 
 Even if they could not suggest exactly the right form of 
 that which the printers had given them in a sadly dis- 
 torted form, they could with reasonable certainty — with a 
 certainty sufficient, at any rate, for their own purposes — 
 infer the upshot of a nebulous phrase from the general 
 trend of the argument. And there I will leave these old 
 printed editions of the Year Books to rest for the moment 
 in peace. 
 
 I should hke to mention here a fact which stands to 
 the credit of the Honourable Society of the Inner Temple. 
 The Society possesses a very fine manuscript, contem- 
 porary, or very nearly so, of the Year Books of 10-16 
 Edward III. Just a hundred years ago the Masters of 
 the Bench commissioned Mr Serjeant Manning to make 
 a translation into Enghsh of this manuscript and paid 
 him very generously for doing so. This translation, now 
 bound in a series of eight volumes, has never been printed, 
 but is preserved in the Library of the Inner Temple. 
 Both the original manuscript and Serjeant Manning's 
 translation were kindly put by the Masters of the Bench 
 at the service of Mr Pike when editing the Rolls Series 
 of Year Books. 
 
 In July, 1800, just a hundred and twenty years ago, 
 the Select Committee appointed to inquire into the 
 state of the Public Records of Great Britain and Ireland 
 
 Digitized by Microsoft® 
 
48 THE YEAR BOOKS 
 
 recommended that "the Series of the Year Books from 
 Edward I to Hemy VIII be completed by printing those 
 hitherto unpubhshed...and also by reprinting the rest 
 from more correct copies, as those which are in print are 
 known to be in many instances incorrect and erroneous." 
 The Committee made also some other excellent recom- 
 mendations, but as nothing has ever come of them I will 
 not go further into them now. But of their first recom- 
 mendation something did eventually come, though not 
 until after the lapse of two-thirds of a century. Some time 
 before 1863 Mr A. J. Horwood was commissioned by the 
 then Master of the Rolls to edit the unpubhshed Year 
 Books of Edward I and afterwards to fill up, from original 
 MSS., the gap existing in the old editions between the 
 tenth and seventeenth years of Edward III. Of the reign 
 of Edward I Mr Horwood pubhshed five volumes, which 
 included reports of the twentieth, the twenty-first, 
 twenty-second, and on from the thirtieth to the thirty- 
 fifth years inclusive. He left unfinished at the time of 
 Ms death a volume which included the reports of the 
 whole of the eleventh and the first three terms of the 
 twelfth year of Edward III. His work was then taken up 
 by Mr Luke Owen Pike, who completed, in successive 
 volumes, the assigned task of fiUing up the gaps existing 
 between the tenth and seventeenth years and between the 
 eighteenth and twenty-first years of Edward III; and 
 Mr Pike also re-edited and pubhshed the reports of the 
 seventeenth and eighteenth years. A very few years after 
 the pubhcation of his last volume Mr Pike died, to the 
 great loss of Year Book scholarship. Mr Horwood's work 
 was far, very far, in advance of anything that had gone 
 before; so far in advance of it that no comparison can 
 possibly be made. In his volumes we got for the first 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 49 
 
 time a really scholarly edition of the Year Books which 
 they dealt with. He produced a text in fully extended 
 and no loriger in abbreviated French, and he added a 
 translation in English, a most obvious necessity, if the 
 reports were ever to be of much use to those who were 
 not more or less expert in understanding the original 
 Anglo-Norman. Mr Pike's methods were an improvement 
 even upon Mr Horwood's. He introduced the admirable 
 innovation of supplementing and illustrating, wherever 
 possible, the report in the Year Book by the corre- 
 sponding record in the Plea Roll. As I have said before 
 the report and the record are mutually interpretative of 
 each other. Neither is complete without the other. It is 
 difficult to imagine Year Books edited in more accurate 
 and scholarly fashion than Mr Pike edited them; a fact 
 which gives one the greater cause to regret that we have 
 not more of his editing. This series of Year Books edited 
 by Mr Horwood and Mr Pike is part of the official 
 publication known as the Rolls Series^. 
 
 Now I must say something about the work the Selden 
 Society has done in this matter of editing and publish- 
 ing the old Year Books, and first of all let me teU you 
 what the Selden Society is. The Society was founded in 
 1887, very largely by the efforts of Maitland, to advance 
 the knowledge and to encourage the study of the History 
 of EngKsh Law. It is the only society aiming at and 
 carrying out these ends. It is a purely private society. 
 It has no government subvention. It has no funds at its 
 disposal save the yearly subscriptions of its members, 
 supplemented by grants of £50 from each of the Inns of 
 Court and £10 from the Law Society. Though a purely 
 
 1 The full title is "Chronicles and Memorials of Great Britain 
 and Ireland during the Middle Ages." 
 
 B. 4 
 
 Digitized by Microsoft® 
 
50 THE YEAR BOQKS 
 
 private society, it has done and is doing work which goes 
 far beyond any private or limited interests; work which 
 scholars, regardless of place or country, could not and 
 cannot possibly leave undone, if in any way it can be got 
 done; nor could, nor can, it is to be hoped, Enghshmen 
 patiently contemplate being done by other than British 
 or American editors. Of all the work the Society has done 
 and is doing the editing and pubhcation of the early 
 Enghsh Year Books is the most important and is the most 
 urgent. This was the especial task which Maitland, su- 
 premely conscious of its urgent necessity and importance, 
 set himself during the last years of his Hfe to do and to 
 provide for getting done. He realized, as some others of 
 us have through his teaching now also learned to realize, 
 what a complete edition of our early Year Books, edited 
 by competent scholars,would mean for general scholarship. 
 Last week I quoted to you his statement — ^it wiU bear 
 quoting again and again — that some day it will seem a 
 wonderful thing that men once thought that they could 
 write the history of mediaeval England without using 
 the Year Books. Elsewhere he has written that "the 
 first and indispensable preliminary to a better legal 
 history than we have now is a new, a complete, a tolerable 
 edition of the Year Books^." As the surviving Year Books 
 of Edward I's reign — there are not very many of them — 
 and the hitherto unedited years of Edward HI had been 
 put into the safe hands of Mr Horwood and Mr Pike, the 
 Selden Society determined to commence its work on the 
 Year Books with a new and fair edition of those of the 
 reign of Edward II. The text of the Vulgate edition is 
 extremely corrupt. It is made from one single manu- 
 script only, and there are several others known to us 
 1 PolJock and Maitland, History of English Law, i, p. xxxv. 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 51 
 
 now, supplying many additional cases besides enabling 
 us to correct the errors and corruptions in the one text 
 which the old edition followed, or was supposed to foUow, 
 for, as I have told you, the transcriber and printers added 
 with liberal hands to the already sufficiently manifold 
 errors of their original. Maitland himself was the first 
 editor. The first volume of the series was published in 
 1903, and was followed at intervals by three other 
 volumes, also edited by Maitland. I need not say more 
 about these volumes now than that they fuUy reached 
 the standard of Maitland's best work, the standard of 
 absolute excellence. But I must direct the attention of 
 those who do not know them to the wonderfully luminous 
 and informing Introductions to his first and third volumes. 
 No words of praise can well be too high for them. In that 
 to the first volume he put together what is nothing less 
 than a complete grammar of the Anglo-Norman language 
 of the earUer Year Books; and the French government 
 paid him the great compliment of having this reprinted 
 in a French translation for the use of schools ^.nd colleges 
 in France. That learned and able scholar, Mr G. J. Turner, 
 who had already assisted Maitland in his work on the 
 Year Books, edited another volume. And since then the 
 Selden Society has published some seven or eight other 
 volumes of the series, about which I, at any rate, had 
 better observe a discreet silence. 
 
 Since the completion by Mr Pike, some ten years ago, 
 of the narrowly limited programme proposed by the 
 Record Office, the Selden Society remains the only body 
 which is doing anything towards giving the world a 
 tolerable edition of the Year Books; nor does there at the 
 present time seem the smallest probability of any other 
 society or person or government department attempting 
 
 4—3 
 Digitized by Microsoft® 
 
52 THE YEAR BOOKS 
 
 to do the like work. The Selden Society has, like all other 
 publishing societies, suffered very grievously from the 
 effects and results of the war. It costs now, I suppose, 
 nearly three times as much in paper, binding and printing 
 charges to produce a Selden Society volume of Year 
 Books as it cost four or five years ago. To meet these extra 
 charges th» Society has already been compelled to sell 
 out some of its small invested funds. From some source 
 or other its income must be increased, largely increased, 
 if, in the present conditions of money values and trade 
 charges, it is to be able to continue its special work; 
 work of high national importance, as I hope that I have 
 made it abundantly plain to you that it is; work which 
 one cannot without some feeling of shame contemplate 
 being dropped through mere base lack of pence by those 
 to whom these unique national treasures belong by right 
 of heritage and descent, dropped by them only to be taken 
 over — yes, certainly to be taken over, we are certain of 
 it from what has happened before through our own short- 
 comings — certainly to be taken over and edited and 
 pubhshed by appreciative foreign scholars. We must not, 
 we cannot, let this come to pass with our own Yesir Books. 
 Surely England and America — and these old books are 
 America's heritage equally as ours — will wake up ; surely 
 they will see that the Year Books which are England's 
 and America's unique possession, shall not be left to the 
 editorship of any but Enghsh or American editors. Some 
 three months or so ago the President of the Selden 
 Society, Lord Sumner, issued a circular letter to the 
 universities and other educational organizations of 
 England and America, and to many private persons also, 
 setting out the aims and past efforts of the Society to- 
 gether with its present position and needs. I am glad to 
 
 Digitized by Microsoft® 
 
SECOND LECTURE 53 
 
 say that already one result of that letter has been the 
 addition of many new members to the Society's roU. One 
 generous benefactor has given the Society £1000 to form 
 the nucleus of what is needed very badly, an endowment 
 fund. Would that some half-dozen others were inspired 
 to foUow his example, and enable the fund to get past the 
 nucleus stage. If the Selden Society is to go on doing 
 the work which it has set itself to do on anything Uke 
 the scale on which it has done it in the past, with anything 
 like its former fulness, if, in fact, it is to do it at all, it 
 must have from one source or another a much ampler 
 support than it has hitherto received. It has never made 
 any special appeal before, because what it had was, in 
 the old conditions, sufficient for its needs. In the present 
 conditions its income is not merely insufficient, but it 
 will not support life. 
 
 Digitized by Microsoft® 
 
Lecture III 
 
 So far I have given you a discursive account of the old 
 Year Books, trying to make fairly plain to you what, 
 speaking generally, they are; in what fashion they are 
 written ; when they were wri^'ten ; and I have made some 
 suggestions as to their probable authorship. Of their 
 actual contents I have as yet spoken in only very general 
 and indefinite tenns. I have said, indeed, that they 
 contain innumerable matters of interest, legal, historical, 
 constitutional, social, philological; interest of almost 
 every kind ; but I have not as yet put you into a position 
 of being able to judge of this for yourselves by giving you 
 any actual specimens of the multifarious contents of 
 these old books; specimens, samples, from which you may 
 form some opinion of the bulk. This afternoon I am going 
 to try to do something of this kind. It is not a very easy 
 task, with such a wealth of matter to choose from, to 
 determine what best to choose that I may in a short time 
 try to make you realize what treasure-mines of all sorts 
 of knowledge these old books are; what potentialities of 
 treasure trove they offer to those who set out to search 
 them, equipped with just that knowledge which will, so 
 to speak, enable them to recognize a precious stone when 
 they turn it up; to distinguish it amongst the more or 
 less worthless matter amongst which it is imbedded. 
 These books were undoubtedly written primarU}' for the 
 use and instruction of lawyers by lawyers. Law, there- 
 fore, shall have the precedence now in the particular 
 instances I select. I shall not now say anything more of 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 55 
 
 the great fact, all important though it be, that it is upon 
 the old Year Books that our common law is based. That 
 has been recognized and admitted fully these many years 
 past. Perhaps the most important addition to our know- 
 ledge of our own legal history which has been made of 
 late years is the re-discovery of the very ancient process 
 by bills in Eyre. That is an addition to our knowledge 
 which we owe entirely to recent study of the manuscript 
 Year Books. AU knowledge of it had been lost for, I 
 suppose, nearly six hundred years, because the Year 
 Books of the General Eyres in which it is buried had 
 never been printed, had never, I suppose, even been read 
 in the original manuscript by anybody since shortly after 
 the days when they were written. You may search from 
 cover to cover every book on our law and procedure and 
 upon the history of our law and procedure that has been 
 printed more than seven or eight years, and not a word 
 will you find in any of them about Bills in Eyre. I should 
 need the fuU compass of a whole lecture to speak to you 
 at all adequately about these intensely interesting bills. 
 Time will allow me to say only just so much as may 
 enable you to understand what they were; to grasp in 
 some sort of fashion the importance of the re-discovery 
 of the process; the intrinsic interest of the actual bills 
 themselves. In the ordinary way the men of the middle 
 age, speaking broadly, got justice in the Court of Common 
 Bench, when they did not or could not for some reason 
 or other get it in their own local courts. The procedure 
 in that Court was not easily adaptable for the remedy of 
 many wrongs which might be very real wrongs and yet 
 could not be brought within any of the heads for which 
 a man might get a writ. No Court which administers 
 strict law, and strict law only, is so adaptable; and the 
 
 Digitized by Microsoft® 
 
56 THE YEAR BOOKS 
 
 Court of Common Pleas administered strict law ; and law 
 strictly administered often involves hardship and morally 
 inequitable results. Process in the Common Bench was 
 slow, one may fairly suppose, somewhat expensive and 
 was certainly often very dilatory. Further, the Court of 
 Common Bench sat only at Westminster, a fact which 
 put it stiU further out of the reach of the poor man hving 
 far away from London. Every few years our earUer 
 Kings sent out a company of Justices to hold what were 
 called General Eyres in every county of the kingdom. 
 The King's Justices of Eyre had the powers, within their 
 several jurisdictions, of the King himself. Again I am 
 speaking generally; but they did represent the King in a 
 very special and full sense. The King's residual or extra- 
 ordinary function of causing justice to be done where 
 ordinary means failed lay in their hands, and they were 
 not only entitled but bound to exercise it. And they 
 exercised it in this way. When they arrived at the county 
 town in which they were to hold their Eyre they caused 
 pubhc proclamation to be made that anyone who desired 
 to make complaint of and to have a remedy for any wrong 
 of any sort done to him might present to them a biU 
 stating all the facts, and they promised that justice should 
 be done to him by them. These bUls were presented to 
 the Justices in large, in very large numbere. I found a 
 large collection of them at the Pubhc Record Office, 
 where they are catalogued under the misleading and 
 disguising title of Assize Rolls. They have nothing of the 
 nature of rolls and have absolutely nothing to do with 
 Assizes. The Justices inquired into the complaints in a 
 very thorough -going way. They were bound by none of 
 the shackles which bound them when trying a case com- 
 menced in the ordinary way by writ. They were ad- 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 57 
 
 ministering a sort of primaeval law, absolute equity; the 
 sort of law one may suppose the Jewish Kings adminis- 
 tered in the gate of Jerusalem. No rules stood in their 
 way to prevent their finding out the exact truth of the 
 matter. They did not concern themselves with finding 
 out what, if any, particular law applied to the matter. 
 They were there to see that right was done, no matter 
 what the law said. They even interrogated the parties; 
 a thing unknown to common law process. This equitable 
 jurisdiction of the Justices in Eyre is earlier than the 
 equitable jurisdiction exercised by the Chancellor or even 
 by the King's Council. It is the very beginning of our 
 Enghsh equity; yet all remembrance of it had been lost 
 for nearly six hundred years. Within the last seven or 
 eight years the Year Books have given us back a fairly 
 complete knowledge of it; and have told us a great deal 
 more about the origin of equity in England than has been 
 known for the last five hundred years. I wish that I had 
 time to dwell longer upon this matter of extreme im- 
 portance to all interested in the history of English law, 
 and to lay before you a few of the actual bills, full, as 
 many of them are, with quaint details throwing a fuUer 
 hght than anything else I know upon the social con- 
 ditions prevalent in England in the thirteenth and four- 
 teenth centuries. Yet just one of these bills I must and 
 wUl lay before you. A word by way of introduction to this 
 particular biU. In the middle age there were no old age 
 pensions, and there were no offices to which a man could 
 go and buy an annuity. The only thing that anyone could 
 do who wanted to make provision for his old age, for 
 the time when he could no longer support himself by his 
 daily toil, was to enter into a contract with somebody else 
 that for the rest of his Ufe he should be provided with 
 
 Digitized by Microsoft® 
 
58 THE YEAR BOOKS 
 
 board and lodging in consideration of a money payment 
 then and there made to him. In the year 1291 John 
 Feyrewyn presented the bill of complaint which I am 
 going to read to you to Sir John Berewick, the Justice 
 presiding over the Eyre of Shropshire held in that year. 
 It is written in most illiterate French. I wUl try to trans- 
 late it for you into EngUsh, though I am conscious that 
 I can make no really adequate translation. The pathos 
 of its illiteracy is untranslatable. " Dear Sir, I cry mercy 
 of you who are put in the place of our lord the King to 
 do right to poor and to rich. I John Fe5n-ewyn make my 
 complaint to God and to you, Sir Justice, that Richard 
 the carpenter that is a clerk of the bailiff of Shrewsbury 
 detaineth from me six marks which I paid him upon 
 receiving from him an undertaking in writing wherein 
 he bound himself to find me in board and lodging in 
 return for the money he had from me; and he keepeth 
 not what was agreed between us, but as soon as he had 
 gotten hold of the money he abandoned me and con- 
 strained my person and gave me a scrap of bread as though 
 I had been but a pauper begging my bread for God's sake, 
 and I was nigh dying of hunger through him. And for 
 aU this I cry you mercy, dear Sir, and pray for God's sake 
 that you wUl see that I get my money back before you 
 leave this town, or else never shall I have it back again, 
 for I tell you that the rich folk all back each other up 
 to keep the poor folk in this town from getting their 
 rights. As soon, my lord, as I get my money I will go 
 to the Holy Land, and there I will pray for the King of 
 England and for you especially. Sir John of Berewick; 
 for I tell you that I have not a half-penny to spend on a 
 pleader; and so for this, dear Sir, be gracious unto me 
 that I may get my money back." This bill bears an 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 59 
 
 endorsement that Richard the carpenter acknowledged 
 the truth of John's allegations, and that the two of them 
 came to terms sanctioned by the Court ; so we may suppose 
 that John recovered at any rate a substantial part of 
 his money from Richard the carpenter that was the 
 bailiff's clerk; and if he afterwards succeeded in getting to 
 the Holy Land I hope that he did not forget his promises 
 to Sir John Berewick. If any of you would like to know 
 more of these BiUs in Eyre, of their interest and import- 
 ance, of their actual contents, I may refer you to the 
 Introduction to the second volume of The Eyre of Kent, 
 published by the Selden Society, to Select Bills in Eyre, 
 published by the same Society, and to the paper on The 
 Transformation of Equity read by Sir Frederick PoUock 
 before the International Congress of Historical Studies 
 held in London in 1913, and printed in the volume of 
 Essays in Legal History read before that Congress. 
 
 Take now another matter on which we have gathered 
 from a study of the Year Books some new information as 
 to the effect of one of the best known of our mediaeval 
 statutes, the statute known as the statute de donis 
 condicionalibus, the statute touching conditional grants 
 of land. Land was frequently granted to a man and the 
 heirs of his body, with the attached condition that if he 
 died without leaving an heir of his body the land was to 
 go back to the grantor or to his heir. Before this statute 
 was enacted land so granted was alienable on the birth 
 of an heir to the grantee. This, obviously, Wcis not in 
 accordance with the wishes or intention of the donor. 
 It was also something in the nature of a fraud upon him, 
 for the donee's heir might die before his father, in which 
 case the land should have reverted to the donor, which, 
 of course it did not if alienated by the donee upon the 
 
 Digitized by Microsoft® 
 
6o THE YEAR BOOKS 
 
 birth of an heir. The object of the statute was to remedy 
 this very obvious inequity; and the statute de donis, 
 enacted in 13 Edward I, has been held for centuries past 
 by all lawyers and historians to have certainly restrained 
 the aUenation of lands so conditionally granted, until the 
 highly ingenious method of what was known as a feigned 
 recovery, invented many years later, made waste paper 
 of it. The subject is too technical a one for full discussion 
 here but it seems quite clear from the report of a case 
 heard in the Court of Common Bench in 5 Edward II 
 that the doctrine so universally held and taught for 
 centuries past, right down to the present time, is incorrect. 
 The statute restrained only the actual grantee from 
 alienating. It did not restrain his heir from doing so. 
 This was Chief Justice Bereford's ruhng as to the words 
 of the statute as they actually stand, and a careful 
 examination of them in the hght of the Chief Justice's 
 remarks makes it plain that this is their effect. But then 
 the Chief Justice went on to assert that he that drafted 
 the statute meant to bind the issue in fee tail as well as 
 the feoffee or actual grantee until the tail had reached 
 the fourth degree — that is, until the great-grandson of 
 the original donee had succeeded — and no further; and 
 it was only through neghgence that he omitted to insert 
 express words in the statute to that effect. And then 
 he immediately went on to read these missing words 
 into the statute and gave effect to them in his judgment. 
 And he gave the same ruling and judgment when the 
 same point Wcis afterwards raised before him. And 
 apparently no one at any time protested. Of course we 
 cannot imagine a judge of to-day doing anything of the 
 kind. I have never been able to find anything which 
 throws any hght upon, or at all confirms. Chief Justice 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 6i 
 
 Bereford's assertion that the words which he read into 
 the statute ought actually to have been there, were 
 intended to be there, and were not there only by reason 
 of the draftsman's carelessness. But this was not the 
 only time when Bereford declared that a statute did not 
 contain all that it ought to contain, and construed it 
 according to his own theory of what it should have said. 
 The powers of a mediaeval Justice in interpreting the 
 law, whether statute law or common law, seem to have 
 been recognized as plenary. Some of them went to an 
 extent which appears to have shocked even Bereford 
 himself. Here is a story which I give you on Bereford's 
 own authority. I take it from an unprinted Year Book. 
 A jury had acquitted a man charged with felony, evi- 
 dently to the dissatisfaction of the Justices, Scrope and 
 Spigumel, before whom he had been tried. "Since the 
 jury have acquitted you, we acquit you," Scrope said 
 grudgingly, "get you gone." And Spigurnel, the other 
 Justice, said that upon the evidence the man ought to 
 have been hanged. Then Bereford happened to come into 
 Court, and the facts were stated to him. No expression 
 of his opinion is reported, but you may draw your own 
 inferences from the story he proceeded to tell his brother 
 Justices and the whole Court of how a man, or, more 
 probably, a lad, was hanged in circumstances which he, 
 the Chief Justice, certainly considered afforded no legal 
 warrant for his execution. He was sitting, he said, with 
 another Justice at a Gaol DeUvery. "A master had a 
 servant, and the servant was punished by him, and when 
 the master was asleep in bed, the servant, planning to 
 carry off his master's goods, came to his bedside at night 
 with the intention of cutting his throat. The master was 
 lying sound asleep with his back towards the servant, who 
 
 Digitized by Microsoft® 
 
62 THE YEAR BOOKS 
 
 gave him a deep wound in his back, beheving that he 
 had cut his throat. The servant then ran away. The 
 master was quickly awakened by the copious bleeding 
 from his neck, and recognized that he had been wounded. 
 He alarmed his neighbours, who got up and arrested the 
 servant. He was charged before me, but I refused to let 
 the matter go before a jury because the master was alive, 
 and the servant was remanded to prison. And afterwards, 
 by St Mary ! he was arraigned before my companion and 
 was hanged on the ground that in the circumstances the 
 will must be taken for the deed." Bereford was a great 
 teller of stories with a point in them. Many times we 
 find him telling a tale to make plain and drive home some 
 principle of law. I will give you one of these stories which 
 has a special interest in that it reproduces for us with 
 considerable dramatic force a scene in Parhament in 
 Edward I's time. The Chief Justice was insisting upon 
 the necessity of a writ making it quite plain what charge 
 a defendant was called upon to answer. It must not be 
 couched in such nebulous phrases as left the defendant 
 in doubt as to what he would be actually charged with, 
 what particular charges he would have to answer, when 
 he came into Court. This is Bereford's story. "In the 
 time of King Edward that is dead" — ^he was speaking 
 early in Edward II's reign — "a writ issued out of the 
 Chancery to the Sheriff of Northumberland to summon 
 Isabel, Countess of Aumale, to appear at the next 
 Parliament to answer the King, and the writ ran that 
 'she was to answer such charges as should be brought 
 against her.' The lady came to the Parhament, and the 
 King himself sat in the Parliament. And afterwards she 
 was arraigned by a Justice on thirty definite charges. 
 The lady, by her Serjeant, asked judgment of the writ. 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 63 
 
 since it made no definite charge, and she was now called 
 upon to answer divers definite charges. There were two 
 Justices present who wanted to rule the writ a good one. 
 But Sir Ralph of Hengham said to one of these Justices, 
 'Would you give judgment here after the manner that 
 you did at the gaol-deUvery at C, when the receiver was 
 hanged and the principal was afterwards acquitted before 
 yourself? ' And then he said to the other Justice: 'When 
 you were sitting at N. you caused one who had been 
 outlawed on a matter of accounts to be hanged. Those 
 judgments were not in accordance with the common law.' 
 And afterwards Sir Ralph said that the law willeth not 
 that any should be taken by surprise in the King's Court, 
 'but you would have the lady called upon to answer in 
 Court of other matters than those she had notice of in 
 the writ. She must have notice in the writ of the articles 
 on which she will be arraigned, and that is the law of 
 the land.' And then the King, who was passing wise, 
 rose and said: 'Naught wot I of your quibbling, but by 
 God's blood you shall give me a good writ before you 
 get you up from hence.'" Here is another of the Chief 
 Justice's stories, possibly invented at the moment. 
 A plaintiff was seeking to recover some land, of which 
 it appeared that an ancestor of the defendant had illegally 
 obtained possession. All that the defendant could plead 
 was that the land had been in the possession of his 
 ancestors for some time, and that he had succeeded to 
 it in the ordinary course of descent. This was a defence 
 which did not commend itself to Sir William Bereford. 
 " If you have continued the wrongful estate of your an- 
 cestors you have done all the more wrong." And then 
 he went on to tell this story. Once upon a time a man 
 lay sick abed, and so weak was he that he swooned, and 
 
 Digitized by Microsoft® 
 
64 THE YEAR BOOKS 
 
 lay in a trance, and it seemed to him that he came 
 unto a certain place and there saw three pairs of gallows, 
 each one higher than the last, and on the shortest hung 
 his grandfather and on the middle one his father; and 
 he asked wherefore this was so; and one answered him 
 and said that his grandfather did a disseisin, and for this 
 trespass was hanged, and after him for continuance in 
 the wrong his son was hanged higher, and the third and 
 highest pair of gallows was for his own proper use when 
 he should be dead because of the yet longer continuance 
 in the wrong. So do not trust too much to what you say 
 about your doing no wrong in continuing the estate of 
 your ancestors; for if their estate be wrongful, so is your 
 own. And here I must leave Chief Justice Hereford and 
 his stories and go on to something else. 
 
 Chapter 39 of Magna Carta says, to put it very shortly, 
 that no free man shall be convicted unless by the lawful 
 judgment of his peers — ^er legale judicium parium suorum. 
 Long usage has divided the community for the purposes 
 of this chapter into two clcisses, peers of the realm and 
 persons not of that degree. Lord Coke gives this con- 
 tracted meaning to the word. But that this was far from 
 what the word meant to lawyers in the thirteenth and 
 early fourteenth centuries, is made plain by a very in- 
 teresting case tried, probably, in 1302; a case which 
 certainly ought to be considered in every treatise or 
 dissertation on Magna Carta, but is mentioned in none 
 of them, because, I suppose, the writers had not thought 
 it worth their whUe to study the old Year Books. Sir Hugh 
 — there is no fuller description given of him— was charged 
 with the commission of a criminal offence. There were 
 twelve men, ready to pass their judgment upon him in 
 due course, and the Justice asked Sir Hugh if he agreed 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 65 
 
 to them. "I am a knight," Sir Hugh replied, "and I 
 ought not to be tried except by my peers." "Because 
 you are a knight," the Justice replied, "we will that you 
 be judged by your peers," and a jury of knights was 
 formed, subject to Sir Hugh's challenges; and this jury 
 acquitted Sir Hugh. Now what I want you to note is that 
 there was no argument, no discussion by the Court, as 
 to the meaning of judicium parium, judgment by peers. 
 As soon as Sir Hugh said that he was a knight and claimed 
 to be judged by a j ury of knights, his claim was immediately 
 allowed. It was held to be a matter of course, something 
 that no one could contest, that a knight should be judged 
 by a jury of knights. This is a most important case in 
 its bearing on the real meaning oi judicium parium; and 
 you will not find the smallest allusion to it in any treatise 
 on Magna Carta that has yet been written. There are 
 several other points of interest in Sir Hugh's case, but 
 I am afraid that I have not time to go into them to-day. 
 This mention oi judicium parium reminds me of another 
 interesting poLut in connexion with it upon which the 
 Year Books are illuminating. In later times the com- 
 monly received opinion has been and is that a spiritual 
 lord, a Bishop with a seat in the House of Lords, is not, 
 as such, a peer of the realm. This, it would seem, is 
 contrary to the older doctrine. In the Trinity term of 
 13 Edward III, a question arose in a case in the Common 
 Bench as to the sufficiency of a jury, it being alleged that 
 when a peer of the realm {pere de la terre) was a party to 
 a civil action it was his privilege that there should be a 
 special jury, consisting partly of knights. The point was 
 contested, but the privilege was affirmed by the Justices. 
 In this particular case, however, which is the point of 
 importance, it was a Bishop on whose behalf the privilege 
 
 Digitized by Microsoft® 
 
66 THE YEAR BOOKS 
 
 was claimed as being a peer of the realm. No one sug- 
 gested that a Bishop was not a peer of the realm. By 
 the counsel on both sides and by the Justices themselves 
 it was clearly admitted as a fact about which there could 
 be no dispute that the Bishop was a peer of the realm. 
 Again, to give you another instance, in the Easter term 
 of the same year it was stated by counsel that the Abbot 
 of Ramsey, a mitred Abbot sitting in Parliament, was 
 a peer of the realm, and no one attempted to suggest or 
 to argue that the Abbot was not a peer of the leahn. 
 
 This mention of juries suggests to me that I may say 
 something here, very shortly, about the uncomfortable 
 position in which the mediaeval juror occasionally, or, 
 I dare say, very often, found himself. There is a note in 
 one of the unprinted Year Books of Edward II that a 
 juror was sent to prison merely because he would not agree 
 with the eleven others. In another case when a jury could 
 not agree, the presiding Justice, Hervey of Stanton, thus 
 addressed them: "Good people, you cannot agree? " Hien 
 turning to John AUen, the Marshal of the Court, he said: 
 " Go atid put them in a house until Monday, and let them 
 not eat or drink." On that commandment, the old Year 
 Book goes on to say, John put them in a house without 
 food or drink. At length on the same day about vesper 
 time they agreed, and John went to Sir Hervey and told 
 him that they were agreed. Then Sir Hervey gave them 
 leave to eat. 
 
 In a case tried in the nineteenth year of Edward III 
 it is reported that the jury could not agree. The Court 
 got tired of waiting and went home to dine. I do not know 
 where the Justices hved, but somewhere fairly east of 
 Westminster Hall, I should suppose, for when they were 
 told that the jurors were at last in agreement these were 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 67 
 
 brought to St Clement's Church, and there Justice Thorpe 
 took their verdict. Afterwards the objection was raised 
 by Serjeant Pole that the verdict could not be acted upon 
 because it had been taken out of Court and not at a 
 proper time. "We can take a verdict by candle-light," 
 said Chief Justice Scot, "if the jury will not agree; and 
 if the Court were to move we could take the jurors about 
 with us in carts, and the Justices of Assize do so." They 
 would make a pretty picture for a historical painter on 
 the look out for an original subject, these wretched jurors 
 being dragged about in mediaeval carts from assize town to 
 assize town. I am going to tell you something now of what 
 used to be called abjuration of the realm, an interesting 
 mediaeval custom of which we get several notices in the 
 Year Books of the Eyres. If a man were guilty of any 
 crime except high treason and could escape arrest for 
 the moment and get himself inside a church, he was safe, 
 at any rate for a time. This was called taking sanctuary. 
 Let us follow the fortunes of a mediaeval criminal who 
 commits a murder, say, and then, before he can be 
 arrested, succeeds in getting inside a church. As soon as 
 knowledge of the crime and of the presence of the criminal 
 in the church comes to the pubHc ear, it is the duty of the 
 inhabitants of the four nearest vills or centres of popula- 
 tion to set a guard about the church to make sure that 
 the criminal does not escape, and then to send for a 
 coroner. When the coroner arrives he begins to discuss 
 matters with the refugee; that is all he can do. No one 
 may dare to arrest him or drag him out of the protection of 
 the Holy Church. He had the right to remain in sanctuary 
 and of having food taken to him there for forty days; 
 a right which no one would have thought of violating, 
 and if anyone had done so the nearest Bishop would have 
 
 5—2 
 
 Digitized by Microsoft® 
 
68 THE YEAR BOOKS 
 
 promptly excommunicated him, and the bravest man in 
 the middle age shrank before the threat of excommunica- 
 tion and all it entailed even in this hfe. At the end of 
 the forty days the refugee might, if he Uked, still remain 
 in the church, but all supply of food was cut off. The 
 refugee, of course, knew all this, and he knew that he 
 must accept the usual terms as propounded to him by 
 the coroner; and these terms were that he must swear to 
 depart from the realm, never to return to it. He must 
 embark from the particular port assigned to him by 
 the coroner, and he must make all possible speed in 
 getting there, but he must never leave the highway. If he 
 deviates from it then his life is at once forfeit and any 
 man may slay him. There was not much allowed to him 
 in the matter of clothes. "He that abjureth the realm," 
 says a note in one of the early Year Books, "shall keep 
 his jacket {tunicam), shirt and breeches; and whatever 
 else he hath shall be confiscate"; but it was ordered that 
 he should carry a cross in his hand. I will now read you 
 the oath which these refugees took in the presence of 
 the coroner. It is interesting and sets out what the refugee 
 undertakes to do. "This hear thou. Sir Coroner, that I, 
 M. of H., am a robber of sheep, or a murderer of one or 
 more persons, and a felon of our lord the King of 
 England; and, because I have done many such evils or 
 robberies in this land, I do abjure the land of our lord 
 Edward, King of England, and I swear that I wUl haste 
 me towards the port of such a place which thou hast 
 given me, and will not go out of the highway, and if I 
 do I wiU that I be taken as a robber and a felon of our 
 lord the King; and that at such a place I will diUgently 
 seek for passage, and that I will tarry there but one flood 
 and ebb if I can have passage, and unless I can have it 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 69 
 
 within such a space I will go every day into the sea up 
 to my knees assaying to pass over, and unless I can do 
 this within forty days I will put myself again into the 
 Church as a robber and felon of our lord the King. So 
 God me help and His Holy Judgment^." Now, what did 
 these men really do when they reached the port assigned 
 to them? The oath they took tells us plainly what they 
 ought to have done — to get themselves across the seas 
 within forty days, or, faiUng this, to put themselves into 
 the sanctuary of the church again as robbers and felons; 
 and, then, I suppose, go through the whole process over 
 again. This latter course, so far as can be gathered from 
 our records, they did not take. It seems difficult to beUeve 
 that any but an exceptional few could find means of 
 transport. They had no money and could not buy a 
 passage. They could not all work their passage across, 
 and least of all the women. What became of them? 
 Let me conclude these remarks on abjuration with the 
 story of John the son of WiUiam of Westfield. I do not 
 know that there is anything exceptional about it, but 
 it will bring home to you how dangerous a thing it was 
 for an abjuror to break his oath. In the fourth year of 
 King Edward I, on April 20, 1276, John was arrested and 
 put into prison in Houghton in Bedfordshire on suspicion 
 of larceny. He escaped from the prison and fled into 
 the parish church. A few days afterwards he abjured the 
 King's realm with the customary formaUties. The port 
 of Dover was assigned to him, and for that port he set 
 out when he left the church. But, the old record tells us, 
 "he fled from the highway and was followed by WiUiam 
 of Houghton and on the hue and pursuit of the whole 
 township he was beheaded by the township of Houghton^. ' ' 
 
 1 See The Statutes of the Realm, i, p. 250. 
 
 2 See Select Coroners' Rolls (Selden Society), p. 37. 
 
 Digitized by Microsoft® 
 
70 THE YEAR BOOKS 
 
 There was a curious institution in the monasteries of 
 mediaeval England known as a corrody. A corrody was 
 the enjoyment of board, lodging, clothing and all neces- 
 saries in a religious house. It was granted on the ap- 
 pointment of one who had the right of nomination. It was 
 sometimes, perhaps, attached to a particular office as 
 part of the holder's wages. The King was entitled to 
 nominate to a corrody in every rehgious house of royal 
 foundation, except where the house held its land in 
 frankalmoigne or free alms. "When the house was a 
 nunnery there Wcis a corrody certainly for a female. 
 Whether or not the King could have made the nuns take 
 in a man as a boarder I will not say certainly, not being 
 under any compulsion to do so. This is what old Fitz- 
 herbert has to say on the point; written, probably, with 
 a smile on his hps. "Where the King is founder of any 
 abbey or priory of nuns, the King shall have a corrody 
 for the Queen's maidens or others of her cousins for whom 
 he pleaseth to write; but if the King wiU write unto an 
 abbey of monks for a maiden to have a corrody there for 
 her sustenance it seems the same shall not be obeyed, 
 for the inconvenience thereof; nor contrary if he write to 
 a nunnery for his vadelect^ to have a corrody there — tamen 
 quaere"; "yet," one hears him adding under his breath, 
 "I am not quite sure." These grants of corrodies were 
 made in specific terms. They did not leave it to the 
 monastery to give the beneficiary just what it chose to 
 give him or even to set him down to just the daily fare 
 of the brothers of the house, whatever it might happen 
 to be. And this fact constitutes the special interest to 
 us to-day of these mediaeval corrodies ; for from them we 
 learn what was considered a reasonable provision of board 
 and lodging for different classes of the people in the 
 
 • /.e. a young man of good birth in his personal service. 
 Digitized by Microsoft® 
 
THIRD LECTURE 71 
 
 thirteenth and fourteenth centuries. These corrodies, 
 I may add, were usual and useful means for providing 
 pensions for the King's servants without any expense to 
 himself or to the Exchequer. The King had the right of 
 nomination to a corrody in the Priory of Merton. Ed- 
 ward III in the early part of his reign granted this 
 corrody to an officer of the Royal Wardrobe. We may 
 reasonably suppose that this officer was an esquire, a 
 man of some fairly high social position. What, in the 
 thirteenth year of Edward III, was considered a reasonable 
 provision for such a man? We have it all set out very 
 fully in the King's grant of the corrody. This particular 
 pensioner was to have a suitable chamber [camera) in the 
 priory. He was to have stabling for three horses; six 
 loaves of one kind of bread and three loaves of another 
 kind daily throughout the year; with six gallons (lagenas) 
 of ale and two monastery dishes (fercula) of pottage 
 {potagium). On every flesh day there were to be two 
 monastery dishes of meat, and on every fish day two 
 monastery dishes of fish, apparently for the mid-day meal. 
 On every flesh day there were to be also two monastery 
 dishes of meat for the evening meal, and on every fish 
 day, unless the pensioner happened to be fasting, two 
 monastery dishes of fish. Six wax candles were to be 
 provided every day by the priory for the pensioner's 
 chamber. He was to be allowed in addition to all this 
 a basket or bushel {busellum) of oats daily and twelve 
 loads of hay yearly for his two horses. Further, he was 
 to have six loads of straw every year for his chamber — and 
 this fact throws a strong light upon what we to-day should 
 consider the rough and uncomfortable surroundings in 
 which a man of good social position lived in the middle 
 age. He was also to be allowed twelve loads of wood 
 
 Digitized by Microsoft® 
 
72 THE YEAR BOOKS 
 
 (bused) for fuel; and every year he was to be provided 
 with one robe — that is what to-day we should call a suit 
 of clothes — of the kind and quality worn by the Prior's 
 esquires, for himself, and another, such as was worn by 
 the Prior's servants, for his own servant. And in addition 
 to aU this he was to be allowed twenty sMUings a year 
 for shoes and other necessaries. That is a very instructive 
 and interesting statement and shows us clearly what in 
 the middle age was the standard of Uving of a man of 
 good social position. 
 
 Now let us see what these old Year Books can tell 
 us as to what was, I suppose, considered the smallest 
 provision upon which a poor man could Uve decently. 
 Certain lands had been given to the Abbot of Creake in 
 Norfolk, and, by way of consideration for them, he had 
 contracted for himself and his successors in office, amongst 
 other things, to support five poor persons in a certain 
 place. He was to find every day a loaf of the weight of 
 fifty solidi, which, I suppose, would be the equivalent 
 of some thirty ounces, nearly two pounds, according to 
 our modem computation, together with pottage and ale, 
 and also a dish of meat or fish, according to the day, be- 
 tween two of them, and half a dish to the fifth. Each 
 of these poor men was to have also a cloth tunic suitable 
 to his condition every other year. 
 
 Then, lastly, what was considered a reasonable pro- 
 vision of food for one who was of an intermediate class, 
 for the Beadle of the Honour of Westminster and Middle- 
 sex, who, I suppose, was an official of some importance 
 in his time? The terms of his corrody were that he was 
 to receive every day in the Abbey of Westminster a loaf 
 of white bread and a loaf of bread of another quality 
 {un hys pain), and a gallon [une galone) and a half of ale; 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 73 
 
 and two messes of flesh every flesh day and two messes 
 of fish every fish day. On the whole, one is indined to 
 think that it was no bad thing to have a corrody within 
 a wealthy Abbey or Priory. 
 
 The amount of ale to which the five poor men were 
 entitled is not specifically stated, but I do not suppose 
 that the allowance was an ungenerous one. The Beadle 
 had a gallon and a half a day, and the Esquire had six 
 gallons, though probably this included his servant's 
 allowance also. The amount of beer drunk in mediaeval 
 England seems to have been enormous, judged by 
 modem standards. Englishmen, indeed, appear to have 
 been noted throughout the mediaeval world from very 
 early days as mighty beer-drinkers. Even so far back as 
 the first half of the thirteenth century Pope Innocent IV 
 held this national weakness for ale responsible for a certain 
 want of clearness of grasp of the principles of ecclesiastical 
 law in our English masters and professors. There was 
 a dispute as to certain matters between the Abbot of 
 Evesham and the Bishop of Worcester which was 
 adjourned to Rome for determination by the Pope. In 
 the course of his argument, Robert CUpstone, who was 
 of counsel for the Bishop, thus addressed the Pope: 
 "Holy Father," said he, "we have learnt in our schools, 
 and such is the opinion of our masters, that prescription 
 runneth not against episcopal rights." "Of a surety, 
 then," replied the Pope, "both you and your masters 
 must have drunk deeply of Enghsh ale when you learnt 
 that." 
 
 The Year Books are not exactly books to which we 
 should naturally turn to in search of horticultural in- 
 formation; but there is much knowledge to be gleaned 
 from them about the trees, fruit trees and forest trees, 
 
 5—5 
 Digitized by Microsoft® 
 
74 THE YEAR BOOKS 
 
 grown in England in the middle age, and their money 
 value. Sometimes we get something more than this. In 
 an action of waste heard in 14 Edward III it was alleged 
 that waste had been committed by the destruction of 
 four apple trees and one whitethorn in a garden. It was 
 pleaded, amongst other things, on behalf of the defendant 
 that whitethorn was underwood and could not, conse- 
 quently, be the subject of waste in a garden. To this it 
 was replied that whitethorn is a tree upon which a graft 
 can be made. It is not generally known that fruit was 
 cultivated with such art and skill in the first half of 
 the fourteenth century, and I think that the fact is 
 worth bringing to your knowledge. 
 
 I am going to take you a long way back now for my 
 next anecdote from the old Year Books. In 1293 one 
 Thomas Corbet was in possession of eight acres of land — 
 he had other land besides these eight acres — in King's 
 Bromley in the Forest of Cannock in Staffordshire. 
 Somebody brought an action against Thomas to get this 
 land from him on the ground that he had no legal title 
 to it; but Thomas brought convincing evidence before 
 the jury of the fact that King Henry II was once upon a 
 time provided with dinner on that spot by his, Thomas's, 
 ancestor, who entertained him in such a hospitable 
 manner that the King gave him eight acres of land. And 
 from this you learn incidentally why King's Bromley was 
 so named, because it was Bromley within the King's 
 manor, so distinguishing it from Abbots Bromley, which 
 was the manor of the Abbots of BUthbury, and from 
 some other Bromleys in Staffordshire. 
 
 Let me now conclude these tales from the Year Books 
 with a string of short stories; a series of pictures of certain 
 phases of English hfe in the thirteenth and fourteenth 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 75 
 
 centuries. Cutting out the tongues of those who had been 
 injured in person or property, to prevent their giving 
 information against those who had so injured them, was 
 so common that a special statute (5 Hen. IV, c. 5) was 
 in 1403 directed against the practice. I translate the 
 following directly from the Roll of the Kent Eyre of 1313. 
 " John of the Mill that lived opposite St Lawrence's gate 
 in Canterbury, together with other malefactors whose 
 names be imknown, came to Ellis Honeywood's house 
 in Littleboume and broke into the said house and 
 wounded the said Ellis and Christina his wife, and 
 cut out their tongues. And they put the said Ellis 
 upon a brazier wherein was fire burning. And one 
 Phihp Hole they slew in the same place, and straight- 
 way fled." 
 
 This again comes straight from the Eyre Roll. ' ' Richard 
 of Rye that was ten years old begged for his Uvelihood 
 through the countryside. He died from weakness and 
 exhaustion, and the jury brought it in misadventure." 
 This is by no means an exceptional case. It seems to have 
 been not uncommon for little feUows of ten years old, 
 and even of some years less, to be tramping the country, 
 homeless and friendless, picking up a living as best they 
 could. 
 
 Here is another story — one you can easily picture to 
 yourselves. "John Whityng and Alice of Strood had 
 boiled some water in the house of John Saul in the borough 
 of Wyke and they poured it into a certain large bowl. 
 And then they began to sport with each other, and in 
 embracing the one the other with their arms they fell 
 into the said water and were both so badly scalded that 
 on the next night following they died." 
 
 This next story must be my last one. "Giles the 
 
 Digitized by Microsoft® 
 
76 THE YEAR BOOKS 
 
 shepherd, being minded to kill a certain pig of his, was 
 boiling water in a certain earthen vessel that therewith 
 he might scald the carcase of the said pig. But this same 
 pig ran against the said vessel that was full of hot water 
 and overturned it, so that both vessel and boiUng water 
 fell upon Richard that was the son of the said GUes and 
 was of the age of seven years, and so severely scalded him 
 that on the third day thereafter he died." Not long 
 afterwards this same GUes the Shepherd was killed in a 
 quarrel. These obscure people hved their common-place 
 hves and died their tragic deaths in the England of more 
 than six hundred years ago. And to-day I am telling their 
 stories, after all these centuries of oblivion, in the Uni- 
 versity of London. 
 
 Lastly I want to revive and recall to general knowledge 
 some interesting proverbs and proverbial sayings scat- 
 tered about the Year Books which, current once, had 
 gone out of use and become forgotten before HoweU and 
 Ray thought of making their collections of such things. 
 They are worth recovering now. In a case tried before 
 Chief Justice Metingham in the fifteenth year of Edward I's 
 reign, the paternity of a party to the action was contested. 
 Though it was admitted that he was bom within wedlock 
 it was alleged that his father was not his mother's 
 husband. But the Chief Justice refused to entertain any 
 such objection. "Hwo so boleyth myn kyn," he said, 
 "ewere is the calf myn^." The rhymes of this jingle 
 bespeak the proverb. 
 
 Serjeant Mutford, afterwards a Justice of the Common 
 
 Bench, seeing that his opponent in an action tried in 
 
 Edward IFs reign was growing hot and angry, said: 
 
 "I learned this verse from a master I once had — Lex 
 
 ^ I.e. Whoso buUeth my cow, the calf is always mine. 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 77 
 
 vidit iratum, iratus non vidit illam. Selde grendeth well 
 the lothe and selde pledeth well the wrothe^." Here we 
 have, seemingly, a couple of mediaeval proverbs, one 
 in Latin and the other in the vernacular, which have 
 entirely disappeared from modern speech and hterature. 
 
 There seems to have been a mediaeval proverb in 
 common use, for we find it occurring several times in the 
 Year Books, carr5dng much the same meaning as our 
 present day saying that you cannot eat your cake and 
 have it. A man, for example, had let certain land at a 
 certain rent. Afterwards he regained possession of a 
 parcel of the land and yet wanted the tenant of the 
 outstanding parcel to pay him the fuU rent for which 
 the whole of the land had been let. "He wants," said 
 Bereford, C.J., "to have the eggs and the halfpenny as 
 well." A variant of this is "the chicken and the half- 
 penny." 
 
 In a case where a very young widow, said to have been 
 only eight years of age at the time of her husband's death, 
 was seeking to get dower assigned to her, the counsel on 
 the other side took the prehminary objection that she 
 was too young and not sufficiently developed physically 
 to have been able to fulfil the conditions necessary for 
 the acquirement of a right to dower. He asked the Court 
 to see the claimant, and then, if after seeing her they 
 should yet be of opinion that she was capable of having 
 become entitled to dower, he would take a further 
 objection. "No," said Bereford, the Chief Justice, "if 
 at this point we were to award that she was able, that 
 would be for wine and candle " ; meaning, I suppose, that 
 such an award would finally dispose of the case in the 
 
 1 I.e. Seldom grindeth well the loath, and seldom pleadeth 
 well the wroth. Additional MS. (British Museum), 35116, f. 24 d. 
 
 Digitized by Microsoft® 
 
78 THE YEAR BOOKS 
 
 claimant's favour, and that no further plea against her 
 would be allowed. Wine and candle are the end of the 
 day's work. In Devonshire, I understand, people still 
 say "that's supper beer and bed," meaning thereby 
 "that's all over" or "there's an end of it." 
 
 The heir of a vendor of land was called upon to warrant 
 the purchaser's title, which had been questioned. He 
 was willing to do so after a limited fashion, but not ab- 
 solutely and unconditionally unless the Court should 
 formally rule that he must. "If you let it come to a 
 decision," Bereford said to him, "by the faith that I 
 owe you, you will have to warrant with the sauce," 
 that is, with the very fullest consequences, adverse to 
 yourself, that such a formal decision could carry. Other 
 instances of this phrase, used in the same sense, occur in 
 these old reports. 
 
 Two brothers had fallen out with each other and the 
 consequence was an action in the Common Bench. The 
 Court seems to have made up its mind before the matter 
 had gone very far on which side right lay, and gave him 
 that was in the wrong a strong hint that he had better 
 come to a settlement with his brother before the next 
 morning, lest a worse thing should befall him; "and so," 
 the reporter tells us, "they made agreement with each 
 other, and Pilate and Herod became friends "—et facti 
 sunt amid Pilatus et Herodes. Have we here the suggestion 
 of some old and forgotten proverb? Another old proverb 
 I have come across is "Once forsworn always forlorn." 
 The old meaning of "forlorn" was "morally lost." The 
 Old English Chronicle (1154) speaks of the lawless barons 
 of King Stephen's time as " forcursed and forsworn and 
 forlorn." 
 
 One of the most cryptic utterances reported in the 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 79 
 
 Year Books is attributed to Bereford in the reports of 
 the Michaehnas Term of the eleventh year of Edward II. 
 It possibly and probably embodies some old proverb 
 obsolete long ago. The plaintiff in an action in the Court 
 of Common Pleas asserted his right to pasture his cattle 
 in a certain place. Counsel for the defendant said that 
 such a claim must be proved in one of two ways; and he 
 asked the plaintiff whether he proposed to prove it in 
 this way or in that. The plaintiff's counsel objected to 
 being forced to answer either of the alternative questions 
 put to him on behalf of the defendant; and he asked 
 for the ruUng of the Court on the point. The Chief 
 Justice gave that ruling. He is reported as saying, and 
 saying in EngHsh, be it noted, and not in the customary 
 Anglo-Norman of the Courts, " Bothe thei scheUen out of 
 this house benedicite and dominus"; and the reporter 
 tells us that by this form of words he intimated that the 
 plaintiff need not answer either of the questions put by 
 the other side. "Both Benedicite and Dominus shall go 
 out of this house." It is hard to understand how these 
 words carry the meaning which the contemporary reporter 
 tells us that they did carry, or, indeed, any other meaning; 
 but one cannot question the reporter's interpretation. 
 And, because the reporter has told us what the Chief 
 Justice meant, it must not be thought that there was 
 anything occult in the words used by him or that their 
 import was not obvious to everyone who heard them, 
 for unless a Judge made a perfectly straightforward 
 assertion the mediaeval reporters always thought it 
 necessary to put the most obvious inference beyond all 
 doubt by a quasi diceret. The Chief Justice's remark was 
 probably either a common proverb of itself or was 
 founded upon some common proverb, and this is made 
 
 Digitized by Microsoft® 
 
8o THE YEAR BOOKS 
 
 the more likely by the fact that he spoke in the vernacular. 
 The old black letter edition^, that "hopeless mass of 
 corruption that passes as a text of the Year Books" — 
 as Maitland called it — makes absolute nonsense of the 
 whole sentence by turning the "bothe thei" of the 
 original manuscript into "boche per." 
 
 I have left myself but scant time to say something 
 which I want to say, which, indeed, I think it is my duty 
 to say, seeing that the opportunity has been given to me 
 of sajdng it in this place. A fortnight ago I said that to 
 the University of London belonged the credit of being 
 the first of our Universities or of our educational organiza- 
 tions of any sort officially to recognize the existence of 
 the Year Books, of the paramount importance of which 
 to scholarship of many sorts I have tried to convince you. 
 Now that a real beginning has been made by the Uni- 
 versity of London, I do hope and trust that the matter 
 will not be allowed to die out again entirely; that these 
 lectures which I have been allowed to give here will not 
 remain a mere flash in the pan, without effect or result. 
 The critical study of the Year Books, Uke most other 
 scientific research work, is not a lucrative pursuit. There 
 is no money to be made by it. No one could five on 
 editing Year Books, edited he them never so well and 
 lived he never so narrowly. And yet I hope that no one 
 who knows even no more about them than I have been 
 able to tell you in the course of these three lectures would 
 be inchned to say that they should remain for ever 
 unedited, unpubUshed and quite inaccessible to all but 
 a few experts, and even to them accessible only with 
 much difficulty. If Year Book study and scholarship is 
 to continue in England and is not to be left to Germany 
 
 ' Mich. II Edw. II, p. 327. 
 
 Digitized by Microsoft® 
 
THIRD LECTURE 8i 
 
 — which has already edited for us our own ancient Anglo- 
 Saxon laws — or to some other land that is not ours, it 
 must be endowed in some shape or form. There must 
 be some inducement to a competent man to give up his 
 life to it; an assurance that he will at any rate be able 
 to Uve. Someone has got to enforce home truths; and 
 if perchance I am not the right man to do it, then one 
 greater than I shall do it for me. "As matters now stand," 
 Maitland said, in an address he dehvered at Cambridge 
 some twenty years ago\ " an endowed of&ce is almost the 
 only reward that can attract a man from the beaten and 
 lucrative paths of practice and induce him to write about 
 law something that will not be of direct use to legal 
 practitioners. I have spoken of professorships and reader- 
 ships and the like as rewards and I am now going to say 
 something that wiU sound to you extremely selfish, but 
 as it seems to me to be true I will say it all the same. 
 I think that as matters now stand in England there would 
 be a great need of professorships as prizes even if the 
 professor when appointed generally fell at once into his 
 dotage. To take by way of example a matter in which 
 just at present I am much interested. How am I as 
 Literary Director of the Selden Society to induce young 
 men to learn enough about the law of the fourteenth 
 century to enable them to edit Year Books? I Uve in 
 terror lest the Savigny Stiff or the £cole des Chartes 
 should undertake an edition." Thus Maitland. I wUl 
 end with a very few words of my own. The outlook is 
 perhaps even less promising than it was when Maitland 
 said what I have just quoted to you. There is as yet no 
 answer forthcoming to his question; and because there 
 is not our young men will not quaUfy themselves to edit 
 1 On "Law at the Universities." Collected Papers, iii, p. 424. 
 
 Digitized by Microsoft® 
 
82 THE YEAR BOOKS 
 
 Year Books. They think that it is not worth their while. 
 One last word, which is an urgent word. With Year 
 Book scholarship time is pressing. The lighted torch is now 
 in very few hands. Are we going to do anything, is any- 
 body going to do anything, to ensure that when perforce 
 it falls from those few hands there shall be men properly 
 quaUfied to take it up and carry it on before it dies out? 
 It may be easier to keep it alight than to relight it. 
 
 Digitized by Microsoft® 
 
y^\X i"V/P^,^ 
 
 INDEX 
 
 Abjuration of the realm, 67- 
 
 69 
 Abjurer's oath, 68 
 Abridgments, The, 44 
 Anglo-Norman, a more correct 
 
 description of the language 
 
 of the Year Books than 
 
 Anglo-French, g 
 Apples grafted on whitethorn, 
 
 74 
 Assizes, 4, 67 
 
 Bacon, Lord, 31 
 
 Beer - drinking in mediaeval 
 England, 73 
 
 Bellewe, Richard, of Lincoln's 
 Inn, 44 
 
 Bereford C.J., Stories told by, 
 61-64 
 
 Bills in Eyre, 55-59 
 
 Blackstone, 31, 32 
 
 " Bothe thei schellen out of this 
 house benedicite and do- 
 minus," 79 
 
 Bradley, Dr Henry, 25 
 
 Chaucer on Year Books, 6, 7 
 Coke and the authorship of the 
 
 Year Books, 31, 32 
 Common Bench, Description of 
 
 the mediaevar Court of, 3 
 Corrodies, 70-73 
 Court, The Inns of, 49 
 
 De donis condicionalibus. The 
 Statute, 59-61 
 
 " Eggs and the halfpenny. The," 
 
 Eyres, General, 4, 56 
 
 Facti sunt amid Pilatus et 
 
 Herodes, 78 
 Fitzherbert's Abridgment, 7, 8 
 
 Gallows, Bereford C.J.'s, Story 
 of the three, 63 
 
 Henry II's dinner and the price 
 
 he paid for it, 74 
 Holdsworth, Dr W. S., on the 
 
 Year Books, 5 
 Horwood, A. J., 48-50 
 Hurst, G. H. J., V 
 
 Inner Temple and a Year Book 
 manuscript, 47 
 
 Jerman J.'s, definition of the 
 
 Law of England, 18 
 Judicium parium, 64, 65 
 Jurors carried about the colm- 
 try in carts, 67 
 
 — Generaltreatmentof, 66, 67 
 
 Languages spoken in mediaeval 
 
 France, 9 
 Law Society, The, 49 
 Lex vidit iratum, iratus non 
 
 vidit illam, 76 
 London, University of, and the 
 
 Year Books, 6, 80 
 
 Machlinia, Wilham de, the first 
 printer of Year Books, 43 
 
 Magna Carta, 64 
 
 Maitland, F. W., 5, 6, 19, 23, 
 45. 50. 81 
 
 Manning, Serjeant, ix, 47 
 
 Maynard, Serjeant, Story of, ij 
 
 "Once forsworn always for- 
 lorn," 78 
 
 Peers of the Realm, 65 
 Pike, L. O., 19, 33-36, 48, 49, 
 50, 51 
 
 — on the authorship of the 
 Year Books, 33-35 
 
 Digitized by Microsoft® 
 
84 
 
 INDEX 
 
 Plea Rolls, The, 13, 17 
 
 — Description of, 27—29 
 
 — how they differ from the 
 Year Books, 29, 30 
 
 Plowden, 31, 32 
 
 Plowden's statement of the 
 authorship of the Year 
 Books criticized, 31 
 
 Pollock, Sir F., 6, 23, 33, 45, 59 
 
 Proverbs in the Year Books, 
 76-80 
 
 Putnam, Story told by Miss 
 Bertha, 2 
 
 Pynson, Richard, the first sys- 
 tematic publisher of Year 
 Books, 43 
 
 Rastell, John, printer, 43 
 
 Sanctuary, 67 
 
 Sauce, To warrant with the, 79 
 
 Scriptoria, Mediaeval, 39 
 
 " Selde grendeth well the lothe 
 
 and selde pledeth well the 
 
 wrothe," 77 
 Selden Society, The, Account 
 
 of, 49 
 
 — Work of, 50-53 
 
 — its urgent need of support, 
 52, 53 
 
 Select Committee appointed to 
 inquire into the state of 
 the Pubhc Records, 47 
 
 Skeat, Professor, 24 
 
 Soule, C. C, 43 
 
 SpelUng, Variations in, 1 1 
 
 Spiritual Peers as Peers of the 
 Realm, 66 
 
 Stories from the Year Books, 
 74-76 
 
 Sumner, Lord, 52 
 
 Taine, M., his description of 
 
 the language of the Year 
 
 Books, 10 
 Tottell, Richard, the greatest 
 
 of Year Book publishers, 
 
 43 
 
 Turner, G. J., 51 
 
 Veil and voile, 9 
 "Vulgate, The," 44 
 — Corrupt text of, 45, 50 
 
 "Whoso buUeth my cow, the 
 
 calf is ever mine," 76 
 "Wine and candle," 77 
 Worde, Wynkyn de, printer, 43 
 
 Year Books, The — 
 
 Abbreviations in, 13-16 
 America's heritage equally as 
 
 England's, 52 
 Authorship of, 21, 30-42 
 Careless binding of the mss. 
 
 of, 12 
 Character of the handwriting 
 
 of, 13. 14 
 Chaucer on, 6 
 Corruptness of the printed 
 
 texts of, 45, 50 
 Groups of MSS. of, 30, 31 
 Knowledge of. A, necessary 
 
 for the full understanding 
 
 of many studies, 21-25 
 Language of, 6-1 1 
 Less known than any other 
 
 branch of our national 
 
 literature, i 
 Material condition of, 1 2 
 Period over which they ex- 
 tend, 6-8 
 Printed editions of, 43-45 
 — number of 
 
 known, 43 
 Purpose of, 17-21 
 Philologists, importance of, 
 
 to, 24 
 Proverbs in, 76-80 
 Rolls Series of, 48, 49 
 Scriptoria, probably written 
 
 in, 39 
 Stories from, 74-76 
 Uniqueness of, 5 
 University of London and, 
 
 6, 80 
 
 CAMBRIDGE; PRINTED BY J. B. PEACE, M.A,, AT THE UNIVERSITY PRESS 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
uiQiti,zefl oy Microsoft'