Judges

If you read the first two articles in this series, you may have noticed an interesting thing: early common-law procedures can be described and understood perfectly well without any mention of lawyers. Early plaintiffs made their own complaints and the standardization of the practice produced legal procedure as we know it: this oversimplifies but captures the essence. Where, then, did we come from?

Lawyers have existed in recognizable form since ancient Rome, which had what we would call transactional lawyers, trial lawyers, and solicitors in the English sense (i.e., lawyers who prepared cases but did not try them). Those distinctions helped form the English distinctions, since early common-law bureaucrats were influenced by Roman legal thought's tendency toward pigeonholing. But common-law lawyers arose in the medieval context, independent of Roman influence (which came later, in the form of medieval commentaries on Roman law books).

Consider the historical context. It is a short step from petitioning the King yourself to hiring a professional to do it for you. The pro is a court functionary or hanger-on, of which there are always a lot; he hangs around the center of power, knows the people, and knows how things get done. You can turn (atourn in Old French; the English doubled the “t”) over your case to him and, in return for a suitable emolument, he will try to talk the King into ruling for you. Your opponent — since you are both people of some wealth and standing, else you wouldn’t be doing this to begin with — hires his own lobbyist (which is of course what they were).

To call this bribery or corruption would be anachronistic. But there was a taint to it even from earliest times. A quote from about 1330 says “attourneis in cuntre theih geten silver for noht” (i.e., get money for doing nothing). An early fifteenth-century writer condems “Ye advocates, ye laweours and maynteners of wrong.” [I do not have the context of this quote to tell whether the writer is addressing the advocates or merely talking about them. The first word could be “ye” but could also be “the”; the symbol for Y was used by earlier printers who had no font for the single symbol used by Anglo-Saxons for the soft “th” sound. The pub sign “Ye Olde [bull or bear or lantern or whatever]” means “the” old, as was pronounced that way until people forgot what they were doing.] Dislike of lawyers is not Troubling New Development; it is a Grand Old Tradition.

To understand why judges were invented, remember that before then the King did everything. He faced the usual problems — war, rebellion, money — and also the demands of his subjects that he remedy the day-to-day afflictions of medieval life — seized land, stolen cows, murdered fathers, etc. Local and regional legal systems existed (including the original moot court, then spelled “mote”) but, prone to manipulation by the wealthy and powerful, they were often seen as corrupt and unjust. So, subjects tried to go over the heads of the local courts; kings had reason to favor this since it increased their own power relative to the local nobles who ran the local courts. The result, of course, was that the King could not do everything that needed doing.

He did, though, have lots of people around him. And a good many of them — the clerks — could actually read and write. And so the King began to delegate. His various lieutenants knew his mind, they knew how he tended to rule on things, and they had some knowledge of the law. If the litigants were not satisfied, and if they and their dispute were substantial enough, they could appeal to the king — from which grew the legal use of the word.

Of course, kings have no doubt delegated such things since they themselves were invented. And judges existed long before the middle ages. But we are speaking now of the history of English common law. The process as this article describes it did essentially happen in England, particularly during the first century or two after the Norman Conquest, i.e., in the 11th through 13th centuries.

Improving the legal system, though, makes people more eager to use it. The new method decreases the King’s work but increases the total case load. One solution is that the people acting as judges start doing so full-time, rather than in and around other court duties. The other — developed during the reign of Henry II (1154-1189) is to send some of them on the road. They hold court in more important towns at specified times of the year. While they are at it, they can also handle other odd jobs such as announcing royal decisions, taking the census, and collecting taxes.

In case you missed it, we just invented judges, courts of law, circuit courts, appellate review, and stare decisis (as well as overcrowded dockets, another non-Startling New Development).

After the 11th century, members of the royal law court were given a fancy Latin title: Justitia. When the central royal court developed into the higher law courts, those who presided in them were called “Justices.” “Judge” was a more prosaic Middle English word, used for more prosaic courts. Both come ultimately from some form of the Latin word jus, “law.” But since an English judge by any name was the King’s stand-in, one treated him as one would the King — by bowing to him upon entering and leaving his presence. And since the early clerks were also priests — “clerk,” “clerical,” and “clergy” are all from the Latin clericus, “priest” — they wore robes. (The wigs are a modern invention, not standard until the 17th century.) (Arizona lawyers should note that our Constitution refers to the members of our Supreme Court as “judges” and that is what they were called until some time in the middle 1960s. At that point the Court passed a rule that said that the “judges” of the Supreme Court shall be referred to as “Justices.” One might think that the Constitution should have been good enough for them, though that is hardly the only way in which they have expressed their reservations about it.)