By Ken Fox
Let’s talk about Legal Information Institutes (LIIs). Every Canadian legal researcher knows about CanLII (I least we hope you do). But there is also LII (that’s the USA one), BaiLII (Britain and Ireland), AustLII (Australasia), AsianLII, HKLII (Hong Kong), PacLII (Pacific Islands), SAFLII (Southern Africa), WorldLII, and many others, all of which are part of the larger Access to Law Movement.
LIIs provide free access to current, primary law in their jurisdiction. But they do not always contain comprehensive collections of historic materials (in all cases, I assume, they are working on it). In the English-speaking world, the most earnest attempt to fill in the historical gaps is CommonLII, which covers the world of common law (assuming there is a high correlation between commonwealth countries and common law countries, that is).
Recently, CommonLII enhanced their historical vision with the Foundations of the Common Law Library (1215-1914). No, 1215 is not a typo. In addition to the Magna Carta, the site includes many obscure statutes from the thirteenth century and forward, including, for instance, the Treason Act of 1351.
The collection of English Reports goes back to 1220, but seems a bit patchy when compared to the statute law, as there are hundreds of cases tagged January 1220, but then nothing more until the year 1457. Despite being “reports,” many of these records are no more than what we would today call summaries or digests – an example from 1491:
Conusee. –A man had lands of ancient demesne in extent for debt, and they were recovered from him by the sufferance of the vouchee, whereby he was ousted ; in this case he shall be holpen here. Morton, Chancellor ; per Assent, Bryan, and Hussey, Justices (7 H. 7. 11 [1491-921).
It might require a historical legal scholar to determine in what way the debtor was “holpen” (helped) in this case, but it appears that people in 1491 got themselves into similar situations that many of us do in the 21st Century.
“Foundations” is perhaps an overused metaphor. Is the modern law really built upon these judgments, in the way that a courthouse is built upon concrete footings? In reviewing the above ruling and a few others, I am more inclined to think of them as the infancy of the common law. The law was smaller, simpler, and by appearances, more innocent. The modern law grows out of it, rather than resting upon it. In any event, to invoke yet another overused metaphor, this is the fresh spring that over time will become the mighty river that is the common law.
What else does this collection include? It’s a bit of a mixed bag. In the case of Canada, it includes only a link to the complete Supreme Court of Canada judgments on CanLII. For Australia, who led in the development of CommonLII, there are law report series for all provinces, each going back to the 19th Century or earlier. There are also collections for Uganda, Southern and Western Africa, Hong Kong, Burma, India, Pakistan, Sri Lanka, Jamaica, Bahamas, and ever other country in the Commonwealth with a significant collection of reported case law.
So the next time you see a citation for a very old British judgment, or one from any common law jurisdiction, or you just feel like exploring the cracks and fissures in the footings beneath modern jurisprudence, remember to revisit CommonLII.org and return to the Foundations.