Monday, February 9, 2009

The Judicial Education of William de Grey

It is exciting to be able to talk about one's current work in this sort of forum, so I first want to thank Dan and Mary for the opportunity to guest blog.  I am just wrapping up a paper entitled The Judicial Education of William de Grey.  De Grey was appointed chief justice of the English Court of Common Pleas in January 1771.  Common Pleas was one of the three central common law courts that sat at Westminster.  De Grey came to the court a highly experienced barrister.  He had been successively solicitor and attorney general, and he had spent about twenty years as a successful Chancery barrister.  But he had never practiced before Common Pleas, and he had not spent that much time in common law courts at all since his early years at the bar (Chancery, of course, not being a common law court).  So when he took the bench, he faced a problem that must have been pretty common at the time and is certainly common today, namely, how was he supposed to learn how to be a judge?  Oddly, very little has been written on this problem, either historically or in the modern scholarship on the judiciary.  It is almost as if the mystique of the judge is so powerful that we do not want to acknowledge that judges don't come into their jobs already possessed of all the knowledge they need.  Perhaps this mystique formed in the Middle Ages, when judges likely did join the bench prepared, in part because they were chosen from a very select group of senior barristers--the serjeants-at-law--who served a sort of de facto judicial apprenticeship.  But by the 18th century, not only had most new judges not been serjeants (before taking the bench, that is, since all judges had to become serjeants at least right before going on the court), but legal practice had in many instances become specialized, and, as with de Grey, the top-flight barristers had often spent most of their careers in Chancery.  It appears that de Grey solved his problem by turning to basic practice manuals.   What little attention has been paid to these sorts of books has amounted to announcing that they were used by students and young clerks and were otherwise irrelevant in the development of English law.  But if one looks not only at the books de Grey bought upon taking the bench but also at evidence in judicial opinions, the Common Pleas judges were relatively open to receiving the law as expressed in textbooks and practice manuals, though it admittedly did not happen all that often.   It also makes perfect sense that de Grey would have used such books.  Ever since the decline of the Inns of Court in the seventeenth century, law students had obtained a lot of their legal education from books.  They then became lawyers, who continued to use books.  And when those lawyers became judges, why wouldn't they have turned back to their books once again?  One really interesting thing is that de Grey's self-education seems to have paralleled the sort of instruction that is provided today in the so-called baby judges schools.  I speculate that the first thing he was concerned about was judicial administration: he needed to know his staff.  Next, it was procedure, partially, perhaps, because he appears to have made a bit of a fool of himself on the bench at the very beginning.  Later he was more interested in the niceties of pleading, procedure, and the history of the Court.  The baby judges schools also focus on court administration and procedure, and they provide the new judges with handy desk reference manuals.  De Grey undertook that project his second year, when he bought, reordered, and annotated Francis Buller's guide to the law of civil trials.   All of this suggests a certain universality in the judicial learning experience.  In any event, whatever he did, it worked, because de Grey was thought well of in his time, and he was nice enough to leave behind sufficient evidence to get a glimpse at how he learned to be a judge.  

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