THE RENAISSANCE OF ENGLISH LEGAL HISTORY

Abstract John Baker's “English Law and the Renaissance” is perhaps the most significant paper in English legal history to appear in the Cambridge Law Journal. In many ways it was a response to, and development from, F. W. Maitland's Rede Lecture with the same title, published some 80 years previously. Baker's paper marks a punctuation in his study of English law under the early Tudors, a subject which he has made his own, culminating in his magisterial sixth volume of The Oxford History of the Laws of England. In addition, it marked a major break with the earlier orthodoxy that English law in this period was fundamentally distinct from the law which was developing on the European continent. The present paper explores both of these themes.


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[2021] The Cambridge Law Journal including Chief Justice Sir John Fyneux and Chancellor Sir Thomas More. Baker rightly rejects any theory which would link the legal Renaissance to the interest or avarice of a single group. 6 It might be possible to construct an argument hanging the changes taking place a century later around the dominant personality of Chief Justice Sir Edward Coke, 7 but the changes of the early sixteenth century were too diverse to make any such monocausal theory plausible.
A second red herring is the influence of legal humanism. Maitland had made something of this in 1901, but Baker rightly ignored it; and his later work suggests that he was right to do so. 8 We can identify a current in continental, especially French, law schools which we know as legal humanism, and we can identify the influence of Budé, perhaps the earliest of the "legal humanists", on Christopher St. German, and we know that the first Regius Professor of Civil Law in Cambridge prepared for his new office by studying the new science, 9 but there was no coherent movement of legal humanism in England. Nor would it be justifiable to make the leap from the humanism of Sir Thomas More to any current of so-called legal humanism. Even in continental Europe the undoubted trend of textcritical studies of the Roman sources, especially in the French universities, played little part in legal practice: Nemo jurista nisi Bartolista.
The third, and most important, red herring is the "Reception" of Roman law, which for Maitland was centre stage. In the orthodox historiography of his day, around 1500 the continental European legal systems were seen as adopting Roman law in place of their national or local customs, even if this adoption took on different aspects in different places. England did not experience any such reception, and for Maitland the question was, Why not? His answer was in the "tough law" taught in the Inns of Court. By 1984 the dominant European historiography had shifted. The "reception" of Roman law had come to be seen more in terms of the intellectualisation and professionalisation of legal practice. 10 Trained lawyers should staff and appear in courts; and across continental Europe training meant studying in a university, and the law studied in the universities 6 Baker, "English Law and the Renaissance", 49-50. 7 Essentially Maitland's "little Renaissance": English Law and the Renaissance, 201-02. 8   C.L.J. s93 The Renaissance of English Legal History was Roman law. 11 By applying Roman law, as understood in the early modern universities, disputes could be resolved by a fixed, written law rather than by uncertain and malleable custom, giving rise to a more certain, objective justice. Against this background, Baker sees the irrelevance of Maitland's primary question. The Inns of Court were as central for him as for Maitland, 12 but not so much as a gatekeeper against the supposed risk of a reception of Roman law; rather simpler than that, English law was already professionalised, staffed and operated by learned lawyers, lawyers who had learned their law not in universities but in the Inns of Court and later through legal practice.
III. DOCTRINE, JURISPRUDENCE THE GROWTH OF PRINTING By abandoning, or at least heavily downplaying, Maitland's quest to understand why England did not experience a "reception" of Roman law, Baker could bring the legal developments in England in this crucial period into the mainstream of European legal development at the time. Of course, in point of substance, English law and the law of most of the European continent were very different; the dominant role of Roman law on the continent ensured that. There is very considerable cross-citation of material across the various continental jurisdictions, but never, so far as we know, any reference to English cases in France, Italy or the like; Riccio's collection of decisions from all around Europe, published in 1619 contains references to around 250 volumes of reports, none of which is English. 13 The reverse is true in England; outside the ecclesiastical courts and the Admiralty, which applied the civil law, English lawyers paid no heed to continental decisions. 14 The difference between England and continental Europe lay in which previous decisions were used but not in the use of previous decisions in argument.
Remove the reception/no-reception distinction between continental England and Europe, the way was open for a more nuanced analysis of the use of Roman law in sixteenth-century English law. Baker himself, for example, has identified a Roman-inspired set of glosses in some copies of Littleton's Tenures, suggesting that some lawyers around 1600 must have found Roman law of use in understanding the English law of real property. 15 William West, a Yorkshire attorney, plagiarised work of the German Hermann Vulteius in his Second Part of the Symboleography in 1594; and this seems to have been a route for Romanised ideas to reach 11 Baker, "English Law and the Renaissance", 50-51. 12 Ibid., at 50: "Here, by a different route, we join Maitland." 13 G. Riccio, Collectanea Decisionum (Rome 1619). 14 An exception proving the rule is Rolle Abridgment, Nusans, F2, referring to Papon, Arrêts, Droits Seigneuriaux, 32 and De Servitutes, 11. 15 "Roman Law at the Third University of England" (2002) 55 Current Legal Problems 123 (Baker, CP, 367).

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[2021] The Cambridge Law Journal impeccably English lawyers. 16 Francis Bacon freely borrowed Roman texts alongside English materials in his Maxims of the Law. 17 Well before this, Christopher Saint German had used Aristotelian ideas channelled through the Swiss humanist Guillaume Budé to explain the "equity" of the English Court of Chancery, an understanding it took more than a century to grub out. 18 Nor should this surprise us. Why should English lawyers not borrow ideas from elsewhere if they seemed useful?
More importantly, it clears the way to removing the rather unthinking assumption that English law was from the start a system of case law based on judicial decisions, contrasting with continental law which was derived from, or centred round, the scientific study of Roman law, the French distinction between jurisprudence and doctrine, something which up to the late twentieth century had also bedevilled attempts to compare English and continental European legal history. 19 It was all too easy for those of Maitland's generation and after who wrote about legal history in England to give primacy to decided cases. Most of them were trained as lawyers and either taught or practised law (or indeed, as Maitland himself, both). Textbooks could, in theory, only be cited in support of a proposition of law after the death of the author; the textbook was supposed to reflect what the cases had decided, visible on every page by the copious case-law authorities printed in the footnotes. It was much the same in reverse for continental European legal historians, thinking substantially in terms of the modern lawyer's primary concern with legal science and reading it back into the early modern period. The heart of Baker's lecture was taken up with showing that around 1500 there was no such hard division between England and the continent. 20 Case law had, undoubtedly, its part to play in early Tudor England. So obvious was this to Maitland that he could see the cessation of the year books after 1535 as a threat to the Common law. 21 By the 1980s it was known that manuscript law reports continued to be produced in some number across this boundary 22no one has done more than Baker has to 16 s95 The Renaissance of English Legal History demonstrate this conclusively, through his editions of series of Henrician reports for the Selden Societyand it was becoming abundantly clear that the end of the canon of printed year books was more than anything a product of the economics of the printing trade. 23 But the contrast with continental Europe was more apparent than real. By 1500 lawyers in France and Italy were clearly taking an interest in decided cases; Baker traced this back to the reporting of decisions of the Roman Rota in the middle of the fourteenth century, moving into the secular context through the Grenoble decisions of Guy Pape in the middle of the fifteenth century, printed in 1490. 24 The existence of such continental reports was well known to scholars in Germany and elsewhere 25 and J.P. Dawson had referred to them in English in the 1960s, 26 but this had hardly been picked up by the mainstream of anglophone legal historians before Baker. 27 The reverse was the case for doctrine. Contrary to the unthinking orthodoxy, Baker stressed that the lawyer of the early sixteenth century put as much weight on opinions expressed in the Inns of Court as on what had been decided in Westminster Hall. 28 His later work, especially The Law's Two Bodies, has built on this. 29 Law was as much, perhaps more, the professional consensus of lawyers as it was something sent down from on high in judicial decisions. Moots and readings in the Inns of Courts, especially the latter, are quite as relevant as sources of the legal history of the period as reports of cases. Before Baker they were known but for the most part unstudied. Until the publication of his magisterial catalogue of readings they were for the most part undiscoverable. 30 He was soon to set a PhD student on a study of readings on the Statute of Wills of 1540. 31 From these substantially common beginnings we may see the divergence of English law from that of the European continent in the sixteenth and seventeenth centuries. It was not simply because, as Regius Professor Sir Thomas Smith wrote in the middle of the century, unlike in England in 23 Baker, Oxford History of the Laws of England, VI, 7 (referring to earlier writings of A.F. Pollard and T.F. T. Plucknett). 24 Baker, "English Law and the Renaissance", 54-56. 25  France, Italy, Spain and Germany they followed the civil law of the Romans compiled by Justinian. 32 The systems differed from each other because of the role their own customary law and their own judicial practice played, but Roman law was a "secure point of reference" 33 for them as it was not for the Common lawyer. It was, we may suspect, the printing press that magnified this difference between England and continental Europe and drove a wedge between the different traditions.
So far as doctrine was concerned, printing had a differential effect. In England, the equal weight attaching to decisions and opinions expressed in the Inns of Court was very much a phenomenon we should associate primarily with the oral culture which prevailed before the printing revolution. The printers did print treatise literature, but in the first half of the sixteenth century it was skewed somewhat in the direction of texts from the thirteenth and fourteenth centuries. The grant of a monopoly of the printing of law books (except statutes) to Richard Tottell in 1555 (renewed in 1559) 34 meant that there was no competitive pressure to produce new literature, and even when new books were printed they were substantially descriptive, not to say pedestrian. 35 We would be hard pressed to find any treatise literature in the sixteenth century which we could call scientific. Such treatise literature as there was in print took its place alongside the reported cases, but by the early seventeenth century the dominant authorities in legal reasoning were judicial precedents; 36 case law prevailed over doctrine. The contrast with continental Europe could not be more stark. There was an enormous outpouring of commentaries on particular aspects of Roman law, as well as the printing of massive commentaries by the glossators and post-glossators written from the twelfth century onwards. Any of them could be cited anywhere that Roman law was relevant, adding to the overwhelming mass of source material. But this did not really matter. These commentaries, general or specific, were no more than interpretations of the underlying texts of Roman law, added to by the mass of decisiones literature. Where English law was reducing its citation of, and apparent reliance on, discursive or interpretative literature, continental legal systems were increasing it.
So far as reports are concerned, in England the printing of the year books brought about a textualisation of case law. The canon of year books in print by the 1540s made possible the framing of arguments on a precisely worded legal text, and moreover one which was more or less thoroughly C.L.J. s97 The Renaissance of English Legal History searchable through the subject headings in Fitzherbert's Graunde Abridgment; before that, the framing of unorthodox or heterodox arguments would have been next to impossible. Contrary to Maitland's suggestion that the cessation of the year book tradition was a threat to the Common law, it may in truth have been the reverse. The formation of a canon of yearbooks rooted the Common law of the mid-sixteenth century in the legal practice of the fourteenth and fifteenth. As Baker points out, the failure to print new year books in the sixteenth century did not reflect the ending of law reporting, which went on apace in manuscript. It was a function of the economics of the printing trade, which required a guaranteed minimum sale in order to be profitable; and the grant of the monopoly of legal printing to Richard Tottell meant that there was no pressure which might have brought about the taking of risks. There is no evidence that Tottell was seeking out new reports to print. By 1600 there were only three further English printed texts of reports: Plowden (1571, 1578), Dyer (1585) and the first volume of Coke (1600), and all these were printed on the initiative of the reporter or (in the case of Dyer) his family. Moreover, before the appearance of Coke's Reports there may not even have been an appetite for new reports on the part of a large enough number of lawyers to make the printing of new reports commercially viable. There was an increase in the pace of printing after 1600, particularly with the eleven volumes of Coke's Reports which were published in his lifetime, but, crucially, the total number of volumes in print by 1630 was still not unmanageable, allowing English lawyers to frame their arguments around printed texts without always coming up against conflicting authorities. 37 Moreover, a further limit on the availability of source material was brought about by a system of licensing the printing of reports, which was formalised in 1637. 38 Continental Europe was different. Because Roman law lay at the base of the separate systems decisiones from one place could be freely cited in argument in another, just as much as commentaries on Roman law could. 39 Except where they were based on local custom or practice, individual decisions showed the way in which Roman law principles could be applied to sixteenth-century problems. Some decisions might have binding normative force in their region, but only if they had been reached, perhaps with some additional formality, by a sovereign court with legislative or quasi-legislative power; 40 beyond that, they were not formally binding 37   [2021] The Cambridge Law Journal and so might be as relevant hundreds of miles away as they were in the court in which they were decided. The economics of printing operated differently from the way in which they operated in England. The potential market for any volume was far larger than for any similar volume in England, as they were traded, perhaps haphazardly, across Europe (and indeed via Spain into South America). The greater market for continental decisiones encouraged greater production, and with a stronger expectation of sales and no single monopolist the economic pressure which affected English legal printing was far less significant. This created something of a crisis in continental Europe, as the number of volumes became utterly overwhelming. By the end of the seventeenth century some 700 volumes of decisiones had been printed; 41 in Italy alone by 1600 there more than 30 volumes compared with the three sixteenth-century texts in print in England. 42 Where the rise in the number of printed texts of reports in England served to blot out the use of manuscript reports in forensic argument, in continental Europe the whole edifice toppled, coalescing or re-coalescing into national systems. 43 The continental parallel may cause us to reassess the English evidence by asking a fundamental question: What is a report? It is easy to slip into the assumption that it is a memorial of the facts of a case, perhaps the arguments of counsel, the opinions of the judges and the result of the case; the opinions of the reporter are irrelevant except perhaps for an occasional sed quaere. If we look at French reports of the sixteenth century, typified by those of Nicolas Bohier, 44 they are in what we should think of as the classic "decisiones" form: a question in Latin, subdivided into separate points each of which is analysed largely (though not exclusively) through texts of the Roman law and canon law and their later commentators, commonly not giving the date or the names of the parties. Since Bohier was President of the Bordeaux court it is likely that he was privy to the court's reasons, or at least his own, but none the less the decisiones read like short essays answering specific questions. A major shift of focus occurred in the middle of the century. The collection of Jean Papon no longer bears the title "Decisiones"; rather it is described as "Arrêts", judgments. 45 They are not written in Latin, but French. Their whole focus is the judgment itself; they are not structured as short essays answering a specific question. C.L.J. s99 The Renaissance of English Legal History They have a very wide chronological range, and were hence clearly not the product of Papon's own experience; and they contain very little in the way of reasons. 46 The same is true of the slightly later collection of Georges Louet, 47 though he gave greater weight to the arguments of the advocates than had Papon. The contrast between decisiones and arrêts is very well brought out in Jorge de Cabedo's two Portuguese collections, explictly modelled on the French experience. Here we find a division between decisiones and arresta, described as sententia supremi senatus. 48 The former are in Latin and contain full reasons, structured analytically, largely based on Roman law and its later interpretation as well as the Portuguese Ordinationes and some decisiones. The latter are brief, in Portuguese and substantially unmotivated, though many of those in the second collection end with a statement of the "ratio". Clearly the decisiones and arresta are different. It seems that the latter are undistilled statements of judicial decisions, while the reasons in the former may be as much the work of the reporter as reflections of what the judges said or wrote.
Does this help us understand the English-law contrast between Plowden's Commentaries and Dyer's Reports on the one hand and Coke's Reports on the other? We know that Coke was criticised by Ellesmere for massaging his Reports, 49 and careful study of the relationship between his own manuscript report of a case and his printed version can reveal just how this massaging occurred. 50 Ellesmere was perhaps not being entirely fair when he lambasted Coke for this; it may be that Coke was just following (or experimenting with) a different model, one in which the reporter was expected to be shaping the reasons, perhaps even departing from any reasons given by the judges.

IV. EXTERNAL AND INTERNAL DRIVERS FOR LEGAL CHANGE
Maitland's third R, alongside Renaissance and Reception, was Reformation. At least sub-textually, for him the division between Protestantism and Roman Catholicism provided a major part of the background to English law's changes in the sixteenth century. The early protestant reformer John Wycliffe had argued that English law should be taught in 46 French courts' decisions were formally unreasoned: S. Dauchy and V. Demars-Sion, "La non-motivation des décisions judiciaires dans l'ancien droit: principe ou usage" (2004) 52 After the reformation England stuttered away from Roman catholicism, and at the same time its first Regius Professor of Civil Law in Cambridge, Thomas Smith, and the first reputable Regius Professor of Civil Law in Oxford, Alberico Gentili, were good protestants. 53 Asking why English law had experienced no reception of Roman law it was all too easy to hypothesise a link between Roman Catholicism and Roman law, though Maitland himself recognised that it was not so simple.
More theoretically, In Maitland's time it was not difficult to slip into a supposition that major legal change occurred in response to social forces external to the law, though no serious legal historiancertainly not Maitlandwould assert that this was the whole story. By 1984, the balance had shifted. Milsom's Historical Foundations of the Common Law had gone into its second edition, and Cambridge legal historians were being taught a model of legal historical development which was substantially internal. Baker steered a very careful middle course, accepting that the external forces at work in the early sixteenth century could hardly be ignored, but rightly counselling that seeking to identify the causal links between external forces and legal change is "fraught with difficulties". 54 The legislation which brought about the break with Rome around 1530 "had little direct effect on everyday law", 55 however much it inevitably formed part of the backdrop to the major legal changes which were occurring. Precise chronology is crucial. "There might be some perverse pleasure to be derived from linking the origins of the modern law of contract to Queen Katharine's inability to produce a son; but that possibility has been laid to rest by research which shows that the graph is illusory." 56 Legislation might be easier to explain as a response to external pressures, but even the Statute of Uses 1536, whose immediate cause can be seen as the need for Henry VIII to raise money independent of parliamentary taxation, can only be properly understood if we take into account the assimilation of the powers of the cestui que use to those of the freeholder over the previous half century.
Baker's basic analyses of the Statute of Uses and the action of assumpsit remain largely uncontroversial, but later work has filled in more detail and enabled us to have a more nuanced picture of their development. Greater study of the plea rolls of the Common Pleas and of the readings has cast more light on the ways in which the rights of the cestui que use were 51 Maitland, English Law and the Renaissance, 178, n. 20. 52 Ibid., at 172, n. 11. 53 Ibid., at 179-80, 182. 54 Baker, "English Law and the Renaissance", 47. 55 Ibid. 56 Ibid. C.L.J. s101 The Renaissance of English Legal History approximated to those of the freeholder after the statute of 1484; 57 work on the Chancery records has brought to the surface knowledge of the ways in which uses were being framed at about the time of the Statute of Uses; 58 and we understand more about how the Crown achieved its fiscal objectives after the Statute of Wills brought about a partial volte-face from the Statute of Uses in 1540. 59 A sharper understanding of the early history of assumpsit has developed, 60 but it cannot be said that we have reached finality. As Baker himself wrote in the Cambridge Law Journal earlier this year, a propos of a recent discovery he had made in the plea rolls, "The textbooks will have to be adjusted". 61 Looking at sources from the later sixteenth century, we have begun to investigate commercial developments against the background of what was then the well-established action of assumpsit. 62 Much of this builds upon Baker's work; and when we are examining these more specific contexts the discovery of the interplay between external and internal factors is not quite as "fraught" as trying to link general legal developments to broader historical currents. The main problem, always, is to get a very accurate fix on chronology so that legal responses to events outside the law can be evaluated; but even where the chronology can be pinned down influence can be next to impossible to establish firmly. Baker, for example, is right to be critical of any facile suggestion that the Pilgrimage of Grace "caused" the Statute of Wills; his own far more careful and detailed study of the immediate legal antecedents of the Statute furnishes us with a more persuasive story. 63

V. JUDICIAL LAW-MAKING
The final section of Baker's lecture as published in the Cambridge Law Journal bears the heading "Judicial Law Making". 64 This has two aspects: the development of this in England; and any parallel with continental Europe.
A good case could be made for saying that the rise of judicial lawmaking was the most significant of all the changes that marked sixteenthcentury English law, although as Baker himself says, "[T]here was never a time when the common law was not in some sense 'case-law', the s102 [2021] The Cambridge Law Journal outcome of solutions found in real cases." 65 But the "in some sense" bears a considerable weight here, andas Baker himself has shown more than anybodythe changes of the sixteenth century brought about a major transformation in the nature of case law. There are a number of dimensions to this. It may be that around 1500 there was a changed perception of law, shared between England and continental Europe, according to which disputes should be resolved according to determinate rules, a rise of legal positivism. 66 No longer would it be seen as ideal to leave to the jury a very general issue -Does the defendant owe the plaintiff £10 as the plaintiff says?in effect throwing it to them to decide in what circumstances money was owed. If dispute resolution was to be properly rule-based, then it be for the trained judges, judges who knew or who could discover the law, to say what those rules were and to apply them. This coincided with the enormous increase in post-verdict motions in the early part of the sixteenth century, and the more general acceptability of special verdicts by the end of the reign of Elizabeth. 67 Equally, it is reflected in more precise canons of contractual interpretation than would have been found before the Tudor transformation. 68 Secondly, the increased use of actions on the case, in which the plaintiff's case was spelled out in some detail, made it possible to raise more sharply focused objections to the way in which actions had been framed. This was especially the case with the post-verdict motion in arrest of judgment after a verdict had been given for the plaintiff. It was through such motions, for example, that the detailed contours of the doctrine of consideration in assumpsit were mapped. 69 Thirdly, there was a move from oral tentative pleading, the characteristic of the medieval Common law, to the enrolment of paper pleadings, with no pre-verdict judicial involvement; no doubt this was facilitated by the falling cost of paper, though the details of the shifts which occurred are very hard to track. 70 It was this, more than anything, which opened the way for the massive rise in post-verdict motions: if the pleadings had been settled without judicial involvement, it was only after the trial at nisi prius that legal argument about the sufficiency of the plaintiff's claim or the defendant's pleaded defence could be raised. The result of this was, whether they liked it or not, that the judges had little choice but to decide the case one way or another, unless they were to adjourn from term to term while they tried