Biography: Mr David Eryl Corbet Yale

Biography

 

Lesley Dingle -  Acquisition and Creation of Content

Daniel Bates - Visual Presentation, Technical Enhancement and Audio Editing

 

I had the privilege of talking to and recording the reminiscences of David Eryl Corbet Yale deep into his retirement in his characterful, but isolated home on the edge of Snowdonia in November 2019. Although only a mile from the centre of Porthmadog, the surrounding woods and rugged, rocky skyline hint of the wilderness that lies not far away. He and his wife Ann had retreated thence in 1992 and David had returned to the home of his childhood. Fittingly in Wales, he thus reconnects to his ancestral roots, though the Yales originated in NE Wales, where the mediaeval commote of Iâl (= Yale) was part of the lands of the Marcher Lordship of Bromfield and Yale (in modern Denbighshire). Speaking to David Yale in his rural setting greatly added to my appreciation of his life and career. Wales loaned David to Cambridge for 40 years, and has now reclaimed him. More of this anon.

David Yale has followed a career as a legal historian of the common law, and as such is in the Cambridge pantheon that includes Frederic Maitland [1], Toby Milsom [2], Michael Prichard [3] and more recently John Baker [4], David Ibbetson [5], and Neil Jones [6]. Surprisingly, however, his inspiration to follow this path came not from within Cambridge, but from a casual remark by a specialist in real property at King's College London, Harold Potter [7]. As David commented ruefully, the resident Cambridge legal historians of the inter-war years (Harry Hollond [8] and the American Harold Hazeltine[9]) had allowed the subject to "become rather a lost cause", and the legacy was the one the young David Yale inherited when he embarked on his initial studies. His career was therefore undertaken, at least partly, before the modern flowering: Baker, Ibbetson, Jones and the latter part of the Milsom era. David Yale was, consequently, along with Michael Prichard and Toby Milsom (in his first Cambridge manifestation), the earliest torch-carrier for legal history research at Cambridge in the immediate post-WWII years. With Milsom’s precipitous departure in 1955, David & Michael carried the subject forward alone until John Baker’s appearance at the Squire Law Library in 1971 from UCL. Thus in the early 70s, Cambridge efforts on the early history of the common law was sustained by an infusion of ideas fermented in the colleges of London University.

This brief account of David Yale’s life and career is based on his conversations with me, and substantial quotes (in italics) can be located in the transcripts by question number (Qx).

Early life

David Yale had a very "peripatetic" childhood. His father, Lt- Col J C L Yale, was in the army, and was, naturally, stationed "where the Army directed". In 1928 he was posted at Southsea in Victoria Barracks adjacent to Old Portsmouth, so on 31^st March 1928, David was born here.

His parents soon moved to the Far East, where his father was attached to the Indian Army, so David spent his earliest years (2-8 yrs) in India, where he did not attend a formal school. In 1936 he was despatched back to England, and because his parents "never owned a house" he was sent to live just outside Porthmadog with his grandmother in Saethon, the grand old house in which I spent such a pleasant day interviewing David eighty-three years later.

For the next six years (8-14 yrs) David attended the local school in Porthmadog. During this time the Second World War started (1939). In 1941, sadly his father was killed, and in 1942 he was "packed off to Malvern College in Worcestershire." (Q1). Shortly after his arrival at the boarding school, the whole establishment was requisitioned by the Government to house military facilities displaced and dispersed because of the war (the Telecommunications and Research Establishment) [10]. Malvern College was rehoused with Harrow School in north London (at Harrow-on-the-Hill), despite the risk of bombing in the London area. David spent the rest of his school days here. His leaving school in 1946 coincided with its relocation back to Malvern. By this stage of his education, David had determined that his interests were inclined towards history, as he had "no bent at all for mathematics or natural sciences, ". Consequently, it was fortunate that "Malvern had a good staff of historians who were quite gifted teachers" from which he was able to benefit. (Q2).

As he approached 18, it was mooted that David should try for Cambridge, although as he admitted "without any serious sense of direction". The question of which college to approach was settled by "A great-uncle of mine who was keen on genealogies [He had] discovered a couple of ancestors who in the 16^th century had worked their way from Wales to Cambridge and they had gone to Queens’ College. So to Queens’ College I must go." (Q3). Funds were tight, and David needed a scholarship to, as he put it, "float me there", and against the advice of his school, who thought it "over-ambitious" he travelled to Cambridge to sit the entrance exams over the what David described as the "disastrously cold winter of 46/47" [11]. Over four days he "furiously" wrote examinations, and triumphed by gaining an open scholarship to Queens’. His determination and fortitude had paid off.

Cambridge University: undergraduate days

1947-49 Queens’ College

When David Yale entered Queens’, the war had been over only two years, and, as with the rest of the country, the University and the Faculty of Law were in the process of re-establishment. A state of flux prevailed - student numbers significantly increased, and the lack of teaching staff felt acutely.

"Returning warriors". The former situation was brought starkly home to the freshman from rural Wales when he arrived in Cambridge once more in the autumn of 1947 [12].

"I was one of two persons in the college first year who were not ex-service. All the rest stumped in straight off the boat, as it were, and stamping the sand off their boots as they came. They had all been in the services of one sort or another, and the chap who stroked the boat I was in on the river had only six months before been captain of one of His Majesty’s submarines. That was the sort of milieu into which I was cast as a rather inexperienced schoolboy, and it was quite a challenge actually. In the event I got round to reconciling myself and them to it by joining in in the sporting activities at the college." (Q4).

This was the phenomenon of the "returning warriors" referred to by Mickey Dias in one of ESA’s earliest interviews. After reading law at Trinity Hall (1939-42), Mickey had himself seen active service [13]. When he became a lecturer at Magdalene in 1951 Mickey recalled the large numbers of "....people whose careers had been interrupted by the war and who came back to complete their studies. So it was very crowded as far as undergraduates were concerned."

This influx went on for several years after the war, and several other Eminent Scholars interviewed for the archive referred to it: Elihu Lauterpacht, Toby Milsom, Peter Stein, Tony Jolowicz, Michael Prichard and Kurt Lipstein.

Influx of new staff and "weekenders". During David’s time at Queens’ (1947-49), the Faculty took two steps to boost staff numbers to deal with this student influx, and to reinforce its teaching compliment depleted by war service. In those three years, eleven new assistant lecturers/lecturers were appointed, and an arrangement instigated whereby practicing lawyers (mainly London-based) were paid to give lectures and supervisions on Fridays and Saturdays to the undergraduates.

The latter were the "weekenders", who brought an element of practical experience into the lives of the undergraduates. This provision was not without some criticism from staff. The weekenders were a mixed bunch, and were employed well into the 50s. Some of our eminent scholars served in this capacity, for example Eli Lauterpacht, Tony Jolowicz, and Michael Prichard, while others were not fellows but later became eminent jurists (eg Lord Lane [14] and Gordon Slynn [15]). Nevertheless, as Tony Jolowicz commented "I’m afraid most people [in the faculty] thought this was a poor substitute for proper academics. I don’t agree." (Q53).

David, however, found them valuable, particularly when later burdened with the responsibility of organising teaching (once he had achieved an established post at Christ’s, three years later). "I used to employ them when I was Director of Studies in Christ’s because they were very valuable. They would come up on a Friday night and give the supervisions on Saturdays and disappear for the rest of the weekend, but they were very useful for plugging gaps. If you were a Director of Studies you had to provide supervisors in all the Tripos subjects and that was very difficult to do with the existing staff, who had their own priorities and preferences and so forth. So, we did rely on them to a considerable extent. They were very valuable because they were in touch with practicalities, and also they were very popular with the undergraduates who felt they were in contact with real lawyers who had their hands on the levers as they themselves hoped in the immediate future. So they were all, I think, quite well received as entirely amateur supervisors, but they were not professional academics at all..." (Q6).

Of the newly appointed staff, David particularly recalls Kurt Lipstein [16], who had been appointed lecturer in 1946. Kurt was one of the immortal civil jurists who left Germany in 1934 to avoid persecution and settled in the UK [17]. He had been taken under the wing of Harold Gutteridge [18] while the faculty and Squire Law Library still occupied the original premises in Downing Street. Kurt was a comparative lawyer (having trained in Civil Law in Germany and had converted to the common law here). David took well to the lack of specialisation in Kurt’s subject. "The best sort of academic work is very often done in the field of comparative law where one is juggling with more than two systems at the same time. Like Kurt, for example, he was in comparative law." (Q8). At this point he made a telling observation " He [Kurt] was first of all at Trinity College under [Hersch] Lauterpacht [19] who felt, I think, that as refugees from Germany they should not be seen to be promoting each other and held down Kurt very much in ..... It was only after an inordinate period of time that he was rescued by Clare and taken in there as a Fellow [1956]. He was very badly dealt with by Trinity College, almost a scandal. He spent years working for them without any advancement at all. He was indeed a very easy person to get on with. "(Q8-9).

It should also be noted that during the war, Kurt was interned briefly as an alien of German background (1940 - at Bury St Edmunds and Liverpool), and that he spent the rest of the war years as a fire warden scanning the night skies over Cambridge from the roof of his beloved Squire Law Library (by then in the Cockerell Building) . In this sense, Kurt had personal experience of the war, if from an unusual angle.

Another new arrivee was Toby Milsom who had been an undergraduate at Trinity College during the war years. After military experience in the Far East and then a stint at Penn State, Toby returned briefly as a lecturer at Trinity (1949-55), while David was doing his undergraduate studies.

Having taken the study of legal history to heart, David was fortunate to benefit from Toby’s presence. As one of its radical exponents, who later re-interpreted much of the accepted wisdom of Maitland’s version of mediaeval history of the common law, Toby gave of his time to help the student. "Well, I followed him quite closely. When I started doing work on my own account, research work, he was quite generous of his time because I wasn’t a research student. I simply decided I would do my initial work and put in for things like a Yorke Prize, which I got, a university prize. Milsom at that time was a junior Fellow at Trinity and he allowed me to read to him some passages of what I was writing to get his comments on them. That was valuable to me because he was able to make suggestions and make criticisms. At that stage of my career I depended on him a fair amount, later on not so much." (Q10). Later their views diverged, but at this stage David was still finding his feet, We can return below to their relationship in those later years.

1950-51 Christ’s College: LLB

Armed with his BA from Queens’, David enrolled at Christ’s to read for the LLB, which he achieved in 1950. It was at this stage that a pivotal encounter took place which determined the direction of travel of David Yale’s academic and scholarly career.

To place this in context it is important to realise that at this time, Cambridge was not the intellectual powerhouse in legal history that it was soon to become. David described the plight into which this area of studies had declined - bearing in mind that it had inherited the legacy of the modern father of English legal history - Frederic Maitland, the giant as Toby Milsom later described him, who had died less than 50 years earlier. When David arrived at Cambridge, Harry Hollond was in the twilight of his career. "Old Hollond, Harry Hollond was the representative of legal history. As far as I was concerned he was a frightfully important person, but he was Vice Master of Trinity, and he was the only person in the Faculty who had survived Maitland as a lecturer. He’d heard Maitland lecture. He himself was a very pedestrian sort of scholar: he published nothing at all but ploughed his way on regardless." (Q5).

Before the war, the Downing Professor had been Harold Hazeltine, an American who promptly retreated back to the USA at the beginning of the war, and was never to return. As David remarked poignantly "....in the inter-war years the subject had become rather a lost cause. There was Professor Hazeltine at Downing who was supposed to be also in the advancement of legal history as a subject, but who didn’t really do very much about it.

So by the time we get to the post-war years, on the whole the subject was very much in the dog’s house as... comparatively speaking. Therefore the immediate post-war generation had quite a lot of catching up to do, rejuvenating the lecturing really. The lecturing had got very matter of fact and uninspiring." (Q5) [20].

Embarking on research. Given the state of legal history studies at Cambridge in the early 50s, it is not altogether surprising that David’s inspiration for the direction of his own career came from a source based at a London college: King’s Harold Potter.

Professor Potter lived at Royston and frequented the Squire Law Library, which was then situated in the Cockerell Building on the Old Schools site. David described the circumstances thus " He wasn’t at Cambridge, but he was in and about quite a lot. He used to come to Cambridge at weekends and deliver a lecture on Saturday or Friday night and buzz off again, but he was always in the Squire at a weekend. ....He wrote quite a good textbook on the subject of legal history [21]. He was quite willing to extend a helping hand, because I do recall very vividly how when I had finished being an examinee I was trying to collect a subject or a field which I could develop in a research direction and I tried a number of subjects that I needn’t bore you with, but none of them were really very satisfying. I found Potter in the Squire Library one Saturday afternoon and I said, "I am having a difficult time thrashing around taking up things and dropping them again. Have you any ideas?" He said, "Oh you had better do something on early Equity. So I asked him what his view about the openings there, or the vacancies of the interests which could be, as it were, supplied by some latter-day research. He then told me that Nottingham was a good bet and he suggested I run Nottingham as a trial, so I did." (Q29).

This encounter effectively determined the nature of David’s research, and the focus of his endeavours for the rest of his academic career. Poignantly, Potter died prematurely the following year (1951). Through such a narrow window of opportunity had David’s fate flown.

Potter’s influence touched David in a further manner. One of Harold Potter’s students at King’s College in the late 40s was Michael Prichard (1945-48). According to David, Michael was one of his "prize pupils" (Q35). Prichard chose to apply to read for the LLB at Queens’, and his decision owed much to Potter. As Michael recalled to ESA in 2012, "Harold Potter was in touch with Emlyn Wade [22], who was a great friend. Emlyn became very interested and got me to apply for a Squire Law scholarship. I remember the first letter I ever got from the Faculty was one from Kurt Lipstein. I’ve still got the letter, telling me that I had been awarded a Squire Law scholarship. They were £60 a year, but it made all the difference....So, I came up to Queens’ because Emlyn Wade and Harold Potter were suggesting I should try." (Q14). Without Potter’s involvement, Michael Prichard probably would not have gone to Cambridge, and his collaborations with David Yale, which occupied much of their respective careers over 33 years would not have materialised.

On completion of his LLB in the academic year 1950/51, David joined the Inner Temple and studied for his Bar exams. He spent six months under the pupillage of Hector Hillaby at 13 Old Square at Lincoln’s Inn and undertook conveyances, dealing with "trusts and property and transactions of that nature" (Q38).

It was during this period, when he was commuting back and forth to Old Square in London, that David began his researches on the writings of the 17^th century jurists that were to accompanying him on the rest of his journey through academia and beyond. The first to join him was Heneage Finch, aka Lord Nottingham [23] whom Harold Potter had suggested was worthy of his attention. This labour of love, which entailed initially copying handwritten tracts, eventually stretched into a task that lasted fourteen years from (1951 to 1965).

Initially, he did this in his spare time, between briefs, when he continued to travel up from Cambridge by train to study manuscripts held at the British Museum Library, and in the library of the Inner Temple [24]. This he had intended to be just an exercise in copying "as an "antiquarian worthy" who does not understand what he is copying", but it rapidly turned into an academic treatise to test whether Lord Nottingham could be considered the "father of modern equity".[25]

1952-69 Christ’s College: Assistant/Lecturer

By 1952, David was at a crossroads. He had his LLB, and had passed his Bar qualifications. He toyed with the notion of "seeking my fortune at the Bar" (Q42), but also had the inclination of staying in academia as Lord Nottingham called to him over the centuries. A vacancy of assistant lecturer at Christ’s became available, and he decided to apply for it. He was offered the post, and accepted it.

In fact, the die was cast early. His original appointment at Christ’s in 1950 was a Research Fellowship during which he was "supposed not to teach, but to do research", but as he wryly commented "it didn’t work out that way...I wasn’t [being employed] on my terms, but their terms." As soon as he started, he was given teaching duties and "they made me Director of Studies, which was a job in itself".(Q43) It was in this role that David found the "weekender" arrangement so advantageous (as already mentioned).

In our conversation he spoke candidly of the crucial factors that persuaded him to commit his loyalty to Cambridge and Christ’s for the next forty years. These were primarily family circumstance that had been brought about by his father death in the war, just over a decade earlier. "[A]t that time we were in need of some financial security too because, we had become rather impoverished as a family. My mother was an Army widow after my father’s death and that was only a pittance. There was no spare money whatsoever and ....a big overdraft at the bank and a mortgage on the house [in Porthmadog] and all the rest of it. We needed to resolve these unfortunate circumstances......a job in the hand was worth any amount of years waiting at the Bar....I wasn’t of a sufficiently dashing disposition to undertake that risk. So I was playing it safe rather, that’s why I stayed in Cambridge. They seemed willing to let me stay, so I stayed." (Q42).

At one point, I mentioned to David that his research record indicated that he had assiduously applied himself over the years, and that his output, particularly in his voluminous Selden Society monographs suggested a high level of dedication to research over a long period of time. While the evidence is there for all to see, it is clear that on reflection David himself regretted that he had not achieved the optimal symmetry in his career that he might have wished. It is a telling retrospective seen through the lens of his advanced years.

"Well, the whole balance of this is an interesting reflection isn’t it? They used to say in Cambridge....there are three areas, in which one can put in an effort. One is, of course, teaching and instruction and so on, and the second is the field of research and learning, and the third is administrative duties and committees and carry on of that sort. But you should never attempt more than two in any one person otherwise you run the risk of being submerged and not being able to cope at all. I confess I’ve tried all three and some of them I’ve tried simultaneously and I think I’ve overdone it badly. Because after a while I was very much drawn into the administrative side of the university. I spent much too much time on that, which is a confession I’m willing to make....,." (Q49).

Memories of the Old Schools. The whole of David Yale’s academic career was spent in the middle of town, in the area known as the Old Schools, which they "shared" with the University Administration. This lay adjacent to the Cockerell Building, which housed the Squire Law Library, although if there was such a thing, the centre of the faculty was the staff room adjacent to which sat the Faculty Secretary. Many of our eminent scholars have reflected on these quarters, which were cramped and scattered about the Old Court. For most of the faculty, this arrangement epitomised Oxbridge, where fellows’ home and heart has always (and still does) reside in their college.

In recent years, since 1995, the Squire and faculty facilities have been located in the futuristic Sir David Williams Building on the Sidgwick site off West Road, but as early as David Yale’s time, the struggle between the Law Faculty and the central University Administration was being played out. The latter eventually "won", of course.

David’s remembrances of this war came out when asked if he found the law facility in the Old Schools cramped. He replied "It was quite cramped, yes, certainly and it was also a battlefield between ourselves, the Law Faculty and the administrative people in the old King’s Court part of the building. They were constantly taking... they took away Room 3, for example, which was one of the best lecture rooms in the university. [Also, the Faculty] handed over the old School of Canon Law - that room was handed over to the computer wallahs. I remember that raid quite well. The Registry had the argument that they had been so used in the Administrative Court to taking the forms and papers off the shelf, that they couldn’t have a computer which was parked a mile away. It wouldn’t work because they always had been used to being at arm’s reach of what they wanted, therefore the computer had to be in the office." (Q11).

As for the Squire Library, he made the comment that "I remember the Squire Law Library and people who worked on it. In fact, John Baker was [then] an assistant librarian there.....It was a fine library. Still is a library, of course, .....it’s part of Caius now. Handed it over to Caius on a 400-year lease, a rather ambitious span of time to look ahead." (Q13-14).

Reminiscences on colourful personalities. David produced some anecdotes on deceased staff, whose reputations have persisted over the years.

Henry Barnes [26] was one, whose details seem particularly tinged with apocryphal charm. David recalled him well. "Yes, Henry Barnes. I was a favourite of Henry Barnes for some strange reason. He had a very extraordinary career which made him very popular with the undergraduates. He had been as a young man in Mexico and the Caribbean and had joined a pack of revolutionaries in Mexico at one stage. This was just before the First World War and the myth surrounding him was considerable, but it was said that he had for 48 hours been vice-president of Mexico.

I’m not sure whether that’s true or not, but he had a sort of gun-running youth and had survived that, miraculously, and washed up at Trinity College where he insisted on becoming a member of Trinity and qualifying himself as a sort of rough-and-ready lawyer. But his experiences made him very popular with the undergraduates because he lectured on some of the most raffish parts of criminal law with great gusto, and he had this extraordinary history of guerrilla warfare behind him and he was a person of really a rather generous disposition.

I remember once I had a long chat with him in his rooms overlooking Sidney and at the end of the discussion he leapt up and took down four volumes of Blackstone’s Commentaries which he handed over to me. It was a very precious set which had a distinguished Cambridge ownership of those books and he just pressed them onto me and told me to take them away and look after them. He was a very impulsive sort of man.

The undergraduates used to tell the most extraordinary stories about him, going up and sitting in his rooms waiting for him to appear to supervise them. He would come up the stairs and go to the windows overlooking Sidney Street and twitch the curtains across and then he would turn round and say, "You never know who will be shooting through the windows at dusk." Then he managed to engage the undergraduates most successfully by his reminiscences, I suppose, of his raffish days. He was a real character. Now I doubt whether he would be appointed to a university lectureship, but he had one for a number of years and was very popular. Was a strict teetotaler, as he had reason to be." (Q15-16)

David Daube [27] was not someone whom David knew well, but was familiar with his work. In this respect he made some perspicacious comments on the importance of studying Roman Law that would have pleased Peter Stein.

" Daube, no, I didn’t know him very well, but he was at Caius College. He was the one successor in Roman law after Buckland [28] who was entitled to respect in the academic scale of things. He was a very gifted man. He went on to be a Regius Professor in Oxford [1955-70] ....That was not his only subject. He was a great Jewish scholar as well.....I used to lecture a lot on Roman law and teach it, and in supervisions too because of its elementary character in introducing people to basic legal concepts. It’s very valuable in that respect, much more so than English law. You get a sense of pattern and of shape in Roman law which you don’t get in the heterogeneous collection which goes for English law and common law. The concepts are much sharper and I think more easily grasped, so although it was never a very popular subject with undergraduates I think educationally it was one of the more rewarding ones." (Q19).

The late Toby Milsom was a formative influence in the lives of two scholars in ESA: David Yale and John Baker [29]. His achievements as a legal historian led me to introduce his ESA tribute with the following: "Professor Ibbetson, described him as the "dominant intellectual voice in English Legal historiography for the last fifty years" [30]. This status was born out of an intellectual struggle with what he himself calls a "superhuman myth" [31] - the legacy of Frederic William Maitland." Milsom’s influence on the thinking of his contemporary legal historians should not be underestimated, therefore.

David Yale first encountered Toby when the latter was a lecturer at Trinity for a spell (1949-55) during Yale’s undergraduate days. Milsom was helpful in guiding David with his early writings and giving advice, and, as David recalled, " [I] depended on him a fair amount, later on not so much" (Q10). This became clear as we talked about David’s research.

He illustrated the latter point by saying that although Toby Milsom "...was certainly influential on my career...." (Q47), there was a fundamental area of disagreement between the two on how the common law had developed. This was an ".....area in which I rather departed from Milsom....He was very dismissive of the view that great figures produce revolutionary changes at any one time. He thought that was quite the wrong way to go about things and....that difference of opinion rather coloured [our] relationship. His interpretation of the process was not quite my interpretation of the process to the extent that something of a fairly fundamental nature in approach to the subject made for certain awkwardnesses in later times....I was quite prepared to allow for much greater personal influence of certain individuals and certainly critical points than Toby was ever prepared to admit or believe in.....[nevertheless] we always remained on very good terms personally."(Q53).

David was also candid on the trajectory of their respective careers, and in his recollections one can detect an admission that staying at the same institution throughout one’s career can have distinct drawbacks. He implied that it severely affected his progression up the academic ladder, and he used the contrast with Toby Milsom’s career to illustrate his point.

"Of course, he spent much of his career outside Cambridge. After Trinity he was in London for quite a while .....and then he went off to Oxford at New College. He spent a bit of time at New College in Oxford [before] they made him Professor of Legal History [at LSE] after Plucknett’s [32] retirement or demise. [He] then returned in ’76 to Cambridge where he got a professorship which was then vacant.....He was always therefore one or two jumps ahead of me and jumping from place-to-place, and on the whole I think sometimes he found me too close on his heels for comfort. I didn’t jump about from place-to-place, I stuck in a rut." (Q47). [It is pertinent to remember that Toby was five years older than David.]

Research achievements. David Yale’s first publication appeared in 1955 [33], a short case note, but his main legacy are the five large monographs amounting to 2606 pages that appeared over forty years. A truly monumental contribution to scholarship. These fall into two categories, three on the works of Lord Nottingham, and two involving the writings of Matthew Hale [34] (together with William Fleetwood[35] in the contribution with Prichard). These monographs consist essentially of transcriptions of original, or copies of, writings by these two 17^th century jurists [36], preceded by lengthy and detailed commentaries on their significance to developments in legal notions and procedures (and/or jurisdictions) in the 17^th century.

The circumstances of the conception and the process of their writing occupied the span of David Yale’s academic career, towards the latter part of which, the joint compendium with Michael Prichard became a source of concern to both the authors. The latter occupied - one might hazard, consumed - the last decade of both their university careers. David retired in 1992 and Michael 1995.

The chronology of work on these four works defines significant episodes in David Yale’s career. With the exception of the monograph on Hale’s Prerogatives of the King, four of these works were conceived and/or were underway and completed in his 30s, and early in his assistant/lectureship. Clearly, David showed great endeavour and enthusiasm in those early years as he established himself, having taken Harold Potter’s advice to heart.

By 1954, at the dawn of his academic career, only two years after taking up his post at Christ’s, David had completed the first of his Nottingham monographs (Vol I) which was ready for publication, and it is clear from its Preface that Volume II was also essentially complete. This implies that he had not only transcribed a prodigious amount of Lord Nottingham’s material, but more impressively, he had formulated analyses of Nottingham’s notions and recognised the significance of the jurist’s work on Equity. For one so young - only in his early 20s - this was an impressive achievement.

Although both the two Nottingham’s Cases volumes were ready by 1954/55, they did not appear for several years (Vol I 1957) and Vol II (1961) - the publication mill ground slowly. Meanwhile, David already had the CUP volume on Nottingham’s "Manual of Chancery" and "Prolegomena of Chancery and Equity" underway. He "wanted to round off Nottingham by looking at what he had to start with...the ‘Manual of Chancery Practice’.... shows the tools he had to use when he was taking his steps in developing the subjective subject of equity itself, [while] the Prolegomena is a collection....of his predecessor’s decisions in some cases. [Nottingham] was educating himself as he went [along]... through his judgeship period of Chancery.... So, in a sense, if you want a historical sequence....these come first. You should read these first before you turn to his actual work in the Court as a judge. (Q93).

With this 1965 monograph (which was finished by 1962 [37]), David completed his main work on Lord Nottingham’s role in the evolution of Equity, and turned his attention to his joint project with Michael Prichard who was then into his teaching fellowship at Gonville & Caius.

In essence, this was to compile a history of the English High Court of Admiralty. This mammoth project lasted 33 years, and continued until both authors were on the verge of retirement. It began around 1960 at the suggestion of the then Registrar of the Admiralty Court.[38] This comprehensive history of the Admiralty Court, had been mooted before the war by Potter, who later handed it over to Albert Kiralfy[39], but they never carried it to fruition.

The occasion of McGuffie’s proposal was "a great celebration of 600 years since they thought of as an anniversary of Admiralty, but really, I think the Laws of Oléron [40] which was the code of law for the Bay of Biscay and that part of the Atlantic Ocean. Now, all these ports, Barcelona had its own code, Oléron, which is off Bordeaux, had all the wine trade, all the big freight work of the middle ages, that was the eastern seaboard of the Atlantic Ocean. Then there were other codes in the Baltic and elsewhere. The history of the matter really starts when all these tended to coalesce, and the Admiralty enforces these seafaring rights and wrongs by its own peculiar civil law means." (Q100).

The background to this long and complicated project that saw David and Michael amass a huge quantity of data as they waded deeper into records that they did not know existed, was also outlined by Michael during his ESA interview. It is worth adding his comments to David’s recollections. "[McGuffie] approached David who told him....that he couldn’t possibly do it alone. He suggested to me that I might join in the project....I’m afraid it dragged on far, far too long... [It] was quite remote, unfortunately, from anything we were actually engaged in teaching or researching on in our ordinary work...[and] both of us recognised that one had to wait until the end of term and then turn back to the files."(Q91)

By the 70s, as material piled up, David and Michael realised that they had taken on a project they would never be able to complete. As David put it "we only got a definition of what the monograph should be when we were pushed for time at the end of our working lives. So, we did have a considerable contraction of the original project in order to get something out."(Q100). Michael added "I think neither of us had realised just what a colossal amount of material there is down there [Public Record Office, Chancery Lane] - an absolutely phenomenal amount." (Q86).

Once it had dawned on them that a fundamental reappraisal of the scope of the project was necessary, Michael Prichard explained they decided that"....we would have to restrict what could possibly be published, and the most interesting side to a lawyer would be the jurisdictional side and the clash between the common law and the admiralty side. That could be very nicely brought out by comparing and looking at two works, Fleetwood and Hale. Admittedly, they are both common lawyers’ works, rather than the civilian works, but the civilians didn’t actually write anything quite as neatly compact as Hale and Fleetwood’s.

Hale’s writing on jurisdiction, the admiralty jurisdiction, is incredibly learned and that’s why we gravitated towards Hale. Fleetwood came in [when] ...David had the happy idea that Hale [on its own] would give an entirely common law approach and rather anti-civilian approach, [but with Fleetwood] who, although insisting on the supremacy of the common law, did have a feel for the sort of problems and thinking of civilian lawyers. Both of us found, and what is very difficult both to explain and for others to understand, is the totally different mind-set and way of thinking and expressing themselves that the civilians had." (Q92).

Despite this redirection of their efforts on the Admiralty project, the work continued to consume much of their research time, and the published Selden Society volume did not appear until the year after David retired in 1992. In total it occupied over half the period of his lectureship and the whole of his time as Reader at Christ’s.

Events. In 1959 David married Elizabeth Ann Brett, who hailed from Belfast, and it was she who provided generous hospitality and excellent company during my visit to their home Saethon at Porthmadog in November 2019.

Shortly after their marriage David took his first sabbatical leave in 1961 and spent a year in Newhaven, Connecticut, with Ann. He went as a visiting professor at Yale, where he had been invited by Rostow, the Dean at Yale [41], who had been at Cambridge the previous year as Pitt Professor of American History and Institutions. In contrast, Michael spent most of his first sabbatical (1964-65) digging out records for their Admiralty Court project.

1969-92 Christ’s College. Reader in English Legal History

David was promoted to Reader in 1969, at the age of 41, which he commented was at a "fairly early" age, but which he added in the same breath "it lasted a long time" (Q55). This became a state of affairs that rankles with him still - "....by the time I left ....which was two years before I was due to retire, I had become the most senior unadvanced reader in the university. Not just in the Law Faculty, in the whole university." (Q47). He was a reader for 23 years.

For the bulk of this time (i.e. after 1976, when his Hale’s King’s Prerogatives book appeared), David Yale, had only the long-running joint Admiralty Court research project as his major research activity. Instead of diversifying in his teaching or research, however, he allowed himself to be sucked into the trap to which he alluded during our interview (see Q49), viz, the fatal involvement into all three areas of academic endeavour: teaching, research and administration. It was the last of these, that during his readership, took a heavy toll of his time, so much so that "...it had a considerable effect upon the amount of work I was able to do in the field of teaching and research." (Q49), and by implication ultimately stunted his academic progression.

Burdens of administration, committees, and other encumbrances. Soon after his promotion in 1969, David began to accumulate duties spanning a variety of activities that ran parallel with his teaching and his research. These commitments conflated into a hectic four year period in the late 70s/early 80s when he had four significant responsibilities in addition to the latter two: Editor of the CUP series "Studies in English Legal History" (1970-93); Editor of the Cambridge Law Journal (1974-81); Chairman of the Faculty of Law (1976-79), and Literary Director of the Selden Society (1976-90).

It was within a year of gaining his readership (ie 1971) that David had taken on the first of these. The CUP "Studies in English Legal History" was a series established in 1921 which had been traditionally associated with the Cambridge Faculty. David had published his own volume in 1965 on Nottingham’s Manual & Prolegomena therein, when the editor had been Professor Hollond. He continued this work until after his retirement in 1993, and considered that his efforts served worthy purpose for young researchers by providing "a very valuable instrument for the subject because a lot of people, who are looking for initial appointments, would like a dissertation or something of that sort in book form. They would get on more readily if they have, a publication to their name. If it’s sufficiently good, why not publish it? That’s really the function of this series, to get people going." (Q56).

His tenure was not without thorny administrative problems, however. When "the [CUP] press had a rather remarkable scare financially. They thought they were insolvent or something horrible was going to happen and they were looking around for economies. They decided to axe the series. I had a very stiff time with them, including writing letters that are placed before the syndicate. Eventually the clouds lifted and they decided they could continue on reduced terms. Any rate they were not going to go in for suppression and disposal so .....that was a victory of a kind. "(Q57-58).

Contemporaneously with this commitment, he also volunteered for the editorship of the Cambridge Law Journal to help CUP out of a further crisis when they "cast round in a panic halfway through the year, and they pitched on me." (Q55). This was occasioned when their recently-appointed editor, Stanley de Smith [42] who had only recently taken over from Professor Hamson [43], died suddenly. "I had no connection with editorial work on the journal before at all, but they said, "You must pull us out of this emergency," and I pulled. I pulled my fingers out for the next half dozen years on the CLJ." (Q55). This extra burden lasted from 1974 until 1981.

By then, David had also acquired a third editorial role: Literary Director of the Selden Society. This was a position that David occupied in various guises for 15 years. He had had a long association with the society and published his first major work with then in the early 50s. Throughout his career he remained closely connected with its work, eventually serving as President after his retirement. During his spell as Literary Director he was associated "with Milsom as an assistant, but that was rather titular in the sense that he [Milsom] did all the work and we were simply available to him for consultation if and when wanted. I was an assistant, that was the arrangement, but then later, when he retired, I became for a very short time... sole editor or literary director. I then decided it really was a two-person job and associated John Baker with me. I dropped off, he took the post with the Selden as Literary Director [in 1991]." (Q67). Michael Prichard recalled David’s contribution to the society in his long stint "David Yale did an enormous amount as literary director and then John [Baker] took over" (Q84).

While David was engaged in these time-consuming editorial tasks, he also acquired the additional burden of Faculty administration, and in 1976 was appointed Faculty Chairman for three years. He recalled that his tenure was an "uneventful span of service", but it was the "spin-offs", as he called them, of having to deal with the university administration on general board duties, that caused him far more burdensome calls on his time. In particular " I found myself Chairman of the Standing Committee on Academic Work, and stipend matters for university staff of academic rating. That was quite an onerous job because it involved looking after the rights and duties of all the people working academically. You know, professor right down through departmental heads and all the rest of it, right down to the lower ranks and seeing that they got what they ought to get and they had to deliver what they ought to deliver. That took about one meeting a week. Of course, there was support from the university administrative staff, but even so it took up a lot of time and it’s what I was referring to earlier when we were talking about the division of time available to one, apart from teaching and research. There was this additional burden which occupied a good deal and probably too much of one’s time." (Q61)

David had had a foretaste of such time-consuming administrative work, when he allowed himself to be drafted onto a university committee in the early 70s that dealt with the recommendations ".....of Lord Devlin’s report [44] on discipline in the university. There were ructions and rows in the 60s [45]. The law school itself was under occupation, so called, for almost one whole term in the Lent term when the troubles were at their height and Devlin was called in. He had retired, I think, just then from the House of Lords [1964] and he, Patrick Devlin, came in and held an inquiry and published a report. I was involved in the job of translating the report into the new university ordinances which dealt with these matters. So I had that initial job. " (Q71).

The final significant administrative chore that befell David during his readership was his role in the late 80s as a member of the Wass [46] Committee. This was assembled to consider and translate into the university ordinances the recommendations of the report on revising the constitution of the university. As David described it, both Oxford and Cambridge had initiated some changes over the last century or so, but rather than relying on Parliament to impose further changes, it was time for the university to look at the problems internally. Consequently, "we got this highly-paid and regarded civil servant to come in and guide the deliberations. I was on that committee [47], as a delegate of course, but afterwards I had the job of trying to translate all this into university ordinances and many a long hour I spent with John Eastling of Trinity who had the job of being the university draftsman. He did a great deal of the work, but I had to be there at all times. I think we did fairly well...[but] of course, the press and the public thought of it entirely in terms of changing the Vice- Chancellorship from a rotating office into a permanent and established single head of house of the university. That was all that we were deemed to have done.....but we did much more than that." (Q71).

The first Vice-Chancellor to be appointed to a permanent post after the new ordinances were enacted was Sir David Williams [48] in 1992.

Research achievements. David completed two more substantial Selden Society monographs during his 23 years of readership, and both involved transcribing and interpreting the works of Matthew Hale. As already mentioned, it was during this period that David and Michael Prichard decided to re-focus their Admiralty Court project (1975) [49], and to concentrate their attentions on the works of Hale and Fleetwood, and they spent this time accumulating and poring over their writings. Michael had a second sabbatical in 1974, which he spent on the project, while David took another in the early 80s, which was mostly spent "...doing research..[while he and Ann only] went off for some weeks ....to the South of France." (Q54). The Admiralty volume appeared almost simultaneously with David’s retirement, after over 30 years of research by the two of them, and I asked David if it was with a sense of great relief. "[I]t was, yes, because we had been at it so long. It had taken a decision of some magnitude to get out anything at all, but we managed [this] ..... by changing the terms of reference. I don’t know whether we acted honestly or dishonestly in that. Dishonestly in the sense that just to our convenience something was done that was at least respectable, but not what was originally designed or promoted as desirable, [which had been planned as].... a general history, not a jurisdictional analysis of the legal history." (Q75). Clearly he regretted being unable to fulfill their original agreement to McGuffie [50], but admitted that undertaking had been too ambitious.

Michael Prichard also gave a sense of the regret that he and David had felt at their inability to complete their original plan. "one always feels sad that [McGuffie] died before we could get out the Selden Society volume, because he had been terribly anxious: "I see a grand, great history of the Court of Admiralty", For a long time, we tried to produce an account of the history of the court, but that proved far too difficult - just too vast a project for just two persons. We hadn’t any research assistants, and also it was down in London and one was just coming backwards and forwards and backwards and forwards." (Q95).

One major spin-off from their work on the Admiralty project was the interest David cultivated in the works of Matthew Hale beyond his work on the Admiralty. In particular, David collated three manuscripts preserved in Lincoln’s Inn and the British Museum written by Hale in the period 1649-1660, and later transcribed by Hargrave [51]. Hale, who was a royalist, probably prudently hid his writings during the Commonwealth, and they appeared again only on the Restoration of Charles II.

Obviously fired by enthusiasm for a parallel project to the Admiralty work which had tied both him and Michael down, David processed these three manuscripts in only a few years, and produced a comprehensive and insightful introduction that impressed the noted legal historian Charles Gray [52]. The volume appeared in 1976 as another contribution from the Selden Society while Toby Milsom (then in his latter years at LSE) was the Literary Director [53]. David explained that what he had presented was only a small part of what Hale had envisaged as a much more comprehensive work. "It’s a composite volume actually, because he [Hale] wrote that in instalments So I had to give it rather a stitch-up job.....but it’s only the opening chapters of a very vast work which he prefigured. I was able to track down the outline of the whole discourse and he only achieved a very partial opening....He was aiming to write a very long work indeed on public law generally." (Q66). Its execution at a time when David was engaged in teaching, various administrative and editorial duties, as well as the continuing Admiralty saga, shows that he had lost none of the verve and enthusiasm for research he had possessed twenty years earlier.

Midway through his readership, David was made a Fellow of the British Academy. When I asked him about this honour, he was surprisingly nonchalant and merely commented that there had been nothing remarkable in his election at his age (he was 52 at the time).

1991 Retirement

David retired two years before he needed to, at the end of the 1990/91 academic year: "I left two years early,... but by that time I had done 40 years in a university post in various grades, so I thought that 40 years is the maximum which you can ring up for pension purposes. I gave up a salary, of course, and turned to a pension which wasn’t an advantage straight away but it gave me two years, in effect, to leave." (Q73).

He and Ann then retreated to the rural solitude of Snowdonia, to what had been his grandmother’s house. It was here that he had spent several years of his childhood, and for the financial rescue of which he had committed himself to Christ’s College in 1953. I had the pleasure of visiting it to conduct my interviews with David in November 2019, and was moved by its charm and peaceful setting. The move from Fulbourn, where the family had lived for many years was not without some inconvenience, but had always been anticipated: "[We had] always kept half the house here for holiday purposes. We divided the hall there, and people were tenants in the wing which runs along there. We were able to keep the ownership of the building and when we came back, we reintegrated it into one house and that was quite a job too. We had to pull down things and rewire and re-roof and all the rest." (Q74).

Professionally, the first years of David’s retirement were not uneventful. Foremost was the culmination of his decades of support and contribution to the Selden Society. In 1994 David was elected President of the Selden Society for three years, but he was very modest when asked to comment on the honour. "[I]t has been an understanding that ever since the earlier days, the job of being President should be a rotated round the judiciary and the Bar, and also the academic side of things, so that different interests are involved. It’s a three-year term, so there is plenty of chance to change the chairmanship of the whole outfit. The President presides over the meetings, and on the whole that’s worked pretty well. At the moment the Chairman is Nicholas Le Poidevin [54], who is a QC in Chancery in New Square in Lincoln’s Inn, and he is very suitable because he has got a footstep in the Year Book series as well." (Q76). Under the circumstances, it seems fitting to remember that the society was named to commemorate John Selden [55], a contemporary of Fleetwood, Hale and Nottingham, sometime Parliamentary Commissioner for the Admiralty, and a member of the Inner Temple (1604). These are distant but real links to David and his life’s work.

A year after his presidency (ie 1998), as a further tribute to his distinguished contributions to legal history, the Selden Society inaugurated the David Yale Prize [56]. To quote from the Society’s website "This prize was instituted in 1998 in honour of Mr David Yale, QC, FBA, then President of the Society and formerly Literary Director. A prize of £1000 is offered every other year for an outstanding contribution to the history of the law of England and Wales from scholars who have been engaged in research in the subject for not longer than about ten years. In 2017, the prize committee decided to award two prizes, one for the best article and one for the best book submitted." [57]

Again, David was characteristically very modest in his reply to my query for a comment on this notable memorial to his dedicated researches over 45 years. "Yes, well, that is a sum of money which was accepted from various contributors to found a prize for beginners who would find it difficult to get published, but who were able to produce an article or something of that sort which was worth a prize of a few hundred pounds, for a suitable submission." (Q77).

A further example of his unpretentiousness at post-retirement honours occurred when David made light of receiving an Honorary QC in 2000. He stressed that it was "honorary". "It’s not the real thing. As they say at the Bar, the real silk is different from the artificial silk. I’m an artificial silk, and it’s the same thing as you get in the university when you get in the summer proceedings at the commencement some people dressed up as doctors of law honoris causa. I’m not a professional QC, I’m a, as it were, a QC as a mark of respect...Strictly professional promotions all had a large crowd of people who had acquired big practices in the law. That doesn’t apply to any of the honorary QCs" (Q79).

The event did provide David with an unique opportunity to rub shoulders with a global celebrity, which he recounted as noteworthy. "[During] the occasion....in the line I was hanging onto Nelson Mandela’s [58] coattails....he came all the way from South Africa to receive an honorary QC, and I happened to be number two in the line of four persons. There was a criminologist after me and someone else at the fourth rank." (Q79).

A fascinating legal issue arose early in his retirement (1997) which took him back to the Welsh Marches in Denbighshire, where his family had its mediaeval roots. I had been alerted to this involvement during my earlier conversation with Michael Prichard who had also been called out of his own retirement by the chambers in London for whom he had worked 45 years earlier. " I was dragged back into Chambers...by an ex-pupil, who is now one of the leading QC’s in that set of Chambers for Stone Buildings...Because I did mineral rights. The case had been rumbling on for centuries on mineral rights in North Wales and turned very largely upon the meaning of a particular sentence, or a couple of sentences, in a grant in 1635. [It] went on four or five years, [but the case] had been going on for about four centuries.... It was [to do with] the Crown and it concerned the Lordship of Bromfield and Yale, in North Wales. ..John Baker [59] was then dragged in on the other side...It never went to court. It only got to arbitration, before Mr Lord Justice Slade[60], who is retired. ... We called in David Yale.. for his help which proved remarkably apt because of the connection between... March of the Lordship of Bromfield and Yale...We had an outing and went back to see the old house in Yale to look at the great big map which the plaintiff’s family had kept since the middle of the eighteenth century. [It] was enormous fun. The parties hired a room in Middle Temple."(Q112-115).

When I asked David for his version of the intriguing tale, he added further detail to a truly Dickensian legal wrangle that ended after 400 years in a compromise. "I was asked to come in as a historian rather than as a lawyer, to dig into the records and if I could give what help I might to the case of the Grosvenors. It’s the Westminster estate. What had happened was that in the time of Charles I [61], the Crown had given to the then Grosvenors, (later Dukes of Westminster [62]), the rights to all mine and minerals within the old Lordship, much of it in Lordships of Bromfield and Yale. Yale is a district up in the Denbighshire Hills, Bromfield also nearby. [T]hese were challenged by the Crown... the extent of the grant and what it meant, whether it included quarries.... We were employed by the Grosvenor interest....Eventually it became clear that the Crown was probably not going to win as much as it sought, so that they agreed to a settlement. They just paid out to the Grosvenors a settlement sum and the litigation finished before it was decided." (Q80).

Finally, David recalled how there had been some unexpected ramifications of the work he had done with Michael during their Admiralty saga. This related to the jurisdictional aspect, and illustrated how long the arm of the law could be over 450 years. It concerned valuables located by divers on one of the wrecks from the Spanish Armada in 1588. "We had to advise the Foreign Office on one occasion about the contents of a Spanish galleon wrecked off the coast of Antrim in Ireland, because they were all anxious to know whether any bits of gold and silver recovered from the wreck was disposable by the law of wreck or whether it was still the property of the Spanish government, or the property of a deceased Spanish Admiral who was drowned. They didn’t know what to do with the stuff and we had the rather daunting task of saying what we thought they ought to do, or could do in legal terms....It was really about the position of archaeologists who go down below the low water mark." (Q81-82).

Reflections on David Yale’s monographs

It would be invidious to attempt to analyse in detail David’s scholarly contributions in his Selden Society and CUP volumes in this short piece, but a few general observations and comments based on our conversations might bring out some of the highlights.

David’s initial research in the early 50s was on the writings of Heneage Finch, Lord Nottingham, whose works Harold Potter advised David to study. His goal was to assess the claim that Finch could be acclaimed as the Father of Modern Equity, and David set upon his task over the next twelve years with verve and application.

In 1962, he rounded off his work on Nottingham when he completed the text of his CUP monograph entitled Lord Nottingham’s "Manual of Chancery Practice" and "Prolegomena of Chancery and Equity" [63]. These two tracts, as David explained in Q93, were based on Nottingham’s own working notes and remarks along with collections of his predecessors’ decisions.

Nottingham had used them to develop his own notions during the formative stage of his judgeship in Chancery, so although David completed this book seven years after the Selden Society volumes I and II of Nottingham’s Cases, readers ought to consult it before they tackled the latter. This would preserve the historical sequence of Nottingham’s own legal development, and place in perspective one important aspect of the evolution of equity as illustrated in the Cases volumes.

The latter relates to the fraught period that was characterised by differences between the civil and common law practitioners in the application of equity in Chancery brought to the fore by Parliament’s confrontation with Charles I. This highlighted differences in approach between Parliament lawyers and the Royalist prelates, and culminated during the Commonwealth period by Parliament’s attempts to reform equity (1654). Only some of the changes wrought were retrieved with the Restoration (1660).

David discussed this dichotomy, but his treatment drew criticism from one reviewer, J P Dawson of Harvard, who thought that David had over-emphasised it [64]. David defended his analysis, and commented that "I don’t know that I did make too much emphasis about that or too little...I think the conflict was quite real considering that there were quite formal propositions in parliament to abolish the Court outright....they were in the full swing of reform...they’d abolished Star Chamber, they’d abolished wards and liveries....why, in the throes of radical reform, one can’t abolish Chancery, is also a question which they actually did debate. I think it was on the cards." (Q96). For a period, therefore, equity was an endangered species and perhaps Nottingham saved it from extinction. Such information is essential background knowledge against which to assess David’s Nottingham’s legacy.

Despite the chronological imbalance of David’s order of publication of Nottingham’s works, by 1962 he had produced two lengthy introductory chapters for his Cases volumes I and II, and he concluded that indeed Nottingham could be considered the Father of Modern Equity. At the risk of over-simplifying David’s reasoning, the fulcrum on which the argument hinged was Nottingham’s inclination to resolve that in equity decisions should no longer be primarily matters of conscience, the Chancellor having traditionally been the Keeper of the King’s Conscience.

The original logic in equity had been that conscience was a matter of morality rather than legality and so was liable to individual interpretation, originally the King’s, but with time, the Chancellor’s in the King’s name. Before Nottingham’s time there had been no notion of appealing to precedent in equity, as understood in modern terms [65], but Heneage Finch veered, if that is not too strong a term, towards bringing method into the process. Method entailed rules, thereby limiting discretion. Precedent offered the route to achieve this and modern equity was conceived, if not actually born. As David concluded, Nottingham was the "Father of systematic equity" [66], which led inexorably to the modern concepts thereof.

At the time, this notion was contentious, and David cites Vaughan CJ in 1670 saying "equity is a universal truth and there can be no precedent to it," [67] but this view did not prevail.

David summed up his conclusion in answer to Q84: "Nottingham, I think, was the person who decided for the future that equity should not be a matter of an individual conscience of the Lord Chancellor but should be a system of law on the grounds of equity, that is to say to some extent following precedent and following prescribed patterns of development."

Commenting on reviews to the Cases volumes, a fascinating throwback arises to remarks David (in Q53) had made regarding his relationship with Toby Milsom, who had developed very firm notions on the development of the common law in the middle ages. One of the reviewers of Vol I remarked approvingly that David’s approach was reminiscent of that of Holdsworth[68], whom the reviewer, Hanbury[69] greatly admired. He said that David had expressed himself in a manner that exemplified the notion favoured by Holdsworth that "much of legal history must be found in biography". As David remarked, such personalising of developments in legal history "was the sort of statement which would have been strongly repudiated by Toby Milsom....it was against his principle [that] a biographical explanation is something he would not have thought of as sufficient law." (Q85). Milsom would have sought a more nuanced, evolutionary route for the change in direction of equity, rather than attributing it primarily to the influence of one man.

After Lord Nottingham, David Yale concentrated his attentions on a concatenation of three of Sir Matthew Hale’s manuscripts relating to the prerogative powers of the English monarch. In our current era of constitutional flux, this work has a resonance, making it particularly topical[70].

David outlined Hale’s understanding of the source of the King’s powers as being rooted in the community, thus being customary. This made them part of the common law of the realm, in contrast to law of special courts [71]. Although the King’s office was the source of all legitimate authority, Hale did not believe that the law was changeless - customs change - and the King’s prerogative were part of this changing law [72]. One of the book’s reviewers, Charles Gray[73] a leading scholar in legal history and contemporary of David’s, was fulsome in his praise for David’s analysis. Gray pointed out that at the time Hale was writing[74], the powers of the crown were "virtually coterminous with constitutional law"[75]. The King was, effectively, the government, not part of it, yet as Hale recognised, the king by himself could not make a statute, but all statutes were king’s law, and he was bound by them, though not subject to their penalties[76].

Given the recent (2019-20) constitutional conundrums thrown up by political events, I asked David to comment on the stark decline in the modern monarch’s powers in the UK. His response was pithy, to say the least. "[T]he Head of State obviously had a role to play outside statutory law and that’s what we mean by the common law powers core prerogative. They are common law powers [with] which the executive head has to make the constitution serve its purpose.... in modern times those have been limited in the sense of shifting of powers to the legislative part of the Government. But the diminishing role....is a very obvious feature of modern law. We had one the other day, didn’t we, Brenda Hale [77] and their Lordships declaring Her Majesty "out of order" on publishing a prorogation order. It’s certainly part of the prerogative to suspend or end parliament and call for a new election, but people are surprised now that the thing is remitted to a judgement at all. It’s a question of deciding how to limit the prerogative and still leave the executive with some powers in cases of emergency, like war and peace and so forth." (Q99).

A subsidiary observation made by David of Matthew Hale’s analysis epitomises the difficulties legal historians have in understanding legal thinking in eras before mass communication and recording - at least widespread printing, let alone electronic communications. Namely, that knowledge was restricted to those with access to libraries and other specialist repositories of information. This accounted for David’s identifying a fundamental flaw in Hale’s view of history, and hence Hale’s model of the constitution. Hale saw history as a seamless diorama of political theory, not as we know today of its having been punctuated by wars and conquests. And Hale was a well-educated, well-read lawyer.

This conundrum harks back to Toby Milsom’s basic tenet that Maitland’s interpretation of mediaeval law viewed through the lens of Victorian law caused him to mis-interpret certain concepts. David’s analysis in The Prerogatives of the King illustrates this point so well.

David’s last-published monograph was the jointly-authored Hale and Fleetwood on Admiralty Jurisdiction[78] whose compilation occupied the last 17 years of his readership. As I have already cited, David and Michael Prichard originally undertook to write a general review of the history of the Admiralty Court (~1960), but by the early 70s had re-focused on jurisdiction, as documented in the writings of William Fleetwood and Matthew Hale. Michael and David prefaced their transcriptions of these 16-17th century works by what Barton[79] considered a "very full and learned introduction....in which they trace the history and the procedure of the court from its early beginnings to the 19^th century". He considered this to "belong to the genre of legal polemic making use of historical material rather than of legal history."[80]

Their lengthy introduction is divided into three parts, two of which deal with the respective ambits of the civil and criminal jurisdictions of the court. The accounts contain a feast of topics, many of which relate to long-abandoned legal practices - benefit of clergy, and corruption of blood and peine forte et dure being two of the more colourful notions to modern lawyers - but all written with authority and in an engaging style.

Today, the Admiralty Court is no more, or merely a shadow of its former stature, and this monograph points to where the seeds of its demise were fertilised, germinated and finally sprouted. Selecting two of the more important causes for the court’s decline, we can first look at a unique feature of the Admiralty Criminal Court that makes it such a fascinating subject for study. This was the interplay between the common law and Admiralty law (which was civil law), which during his ESA interview, Michael Prichard had described thus: "the Admiralty Criminal Court was quite unique, because it was set up in 1535 as a common law assize court, but staffed by civilians, that is Roman lawyer civilian, clerks. It was a curious combination of civil law procedure, when the actual trial, however, was in English criminal law, and presided usually by an English common law judge, though technically the one who’s in charge of it was the admiralty judge. An almost unique combination of civilian and common law judge. It must be about the only time they ever sat side by side on the bench administering the same law." (Q87).

David amplified this "rather special arrangement...[which] was set up by statute by Thomas Cromwell’s [81] endeavours in the reign of Henry VIII, 1535, as a court which could convict pirates. The problem [had been] that when the pirates went on the rampage and captured a ship they immediately threw into the sea and killed all of the mariners who might otherwise be survivors and become witnesses to the act of piracy... The idea was that if you could change the Admiralty civilian court into a statutory court for piracy, and for other crimes as well, then you could get juries who would convict more readily in the absence of witnesses. It was the... feeling that to capture and hang pirates was a desirable move.... to get a more effective murder trial against them because they usually, under the civil law, needed a couple of witnesses before you could convict anyone of any serious offence. Well, if the witnesses had all been duly murdered, the pirates went liable to be discharged in a civilian court for lack of evidence. That was really what was alleged by Cromwell and others, and I dare say it’s basically the truth of the matter." (Q103).

A second crucial factor was emphasised by another reviewer, Frank Wiswall [82] who commented that Prichard and Yale "[came] as close as we are ever likely to get to the truth of the original nature of the actions in rem and in personam."[83] In their section on "ambit of civil jurisdictions", Prichard and Yale point out [84], that in Tudor and Stuart Admiralty courts a wide variety of causes of actions were remedied by the court, "by in rem and in personam process alike", whereas in the course of the 18^th century, the Admiralty had ceased to use in personam "because recourse to it was blocked by prohibition". As a consequence "most commercial contracts had to be litigated elsewhere" [85]

It is not difficult to see why the court withered, and Barton [86] pointed out in his review that around the turn of the 18^th century Holt CJ[87] held that the court had jurisdiction over the thing, not the person. David spoke of the current situation in English Admiralty matters - "in this country it’s been taken over by the common law. Today if you get a dispute over mariners’ wages, for example....the ship has been discharged and the mariners have been discharged, but their pay has been withheld, what they do in Admiralty law is to go into the court having arrested the ship as a pledge for the payment of the money not paid. It works remarkably well but the in rem procedure, a civilian procedure, is the only one which is available and surviving in the hands of the common law. It’s no longer a civilian court. There is no Court of Admiralty now it’s a jurisdiction exercised by the High Court of the old Admiralty matters and litigation. [But] it has still one vital point of separate procedure when it chooses to exercise it." (Q104).

One might simplistically conclude that Thomas Cromwell’s determination to hang pirates sowed the seeds of the court’s eventual demise.

Retrospective

Several features stand out from my conversations with David Yale, which reinforce the view that the career paths taken by the scholars to whom I have had the privilege of speaking for the ESA, in so many cases pivot on chance events early in their lives. I have explored some of these in a recent publication[88], and my experience in the solitude of NW Wales with the venerable legal historian adds to this catalogue. David’s accepting the post at Christ’s in 1950 was predicated on the premature death of his father in WWII. Had he followed a more peripatetic course, as he saw with Toby Milsom, perhaps he would not have ended as the "the most senior unadvanced reader in the university", a situation in which I felt he regretted discovering himself . Contingency had determined his course in 1941.

I found two other reminiscences of David’s very revealing, both emphasising his self-effacing, modest persona. I asked him what aspect of his academic career he would consider his most important achievement, and which of his many articles he considered his most significant. Considering the former he reckoned "possibly for remembrance sake, it might be the writing and research, but I would rather prefer to claim tutorial teaching as the best memorial although the memory of that only lasts the lifetime of perhaps 50 years or less because it is a personal interplay" Although he was alive to the possibility that writing and research might persist, he summed up his chosen speciality in rather brutal fashion "Legal history is, up to a point, rather a self-indulgent exercise, and although when it’s well done, I think it can claim to be time well spent, I don’t think it’s as time well spent as if one is actually helping people get in the way of the science of it." (Q120).

His choice of most significant article also dwelt on the longevity of its influence, and one which had a prosaic source: a report in the Cambridge Daily News of 15 August 1988. Herein David had read of the death of a victim of a vicious attack, who had succumbed more than a year and a day after the assault, and whose killer had thereby escape a murder charge. David wrote a paper [89] on this common law rule, and traced its roots. He included "a proof of how the rule came into existence in the middle ages which I was able to explain historically, the actual cases in which this highly restrictive rule was manufactured," (Q117) . He concluded his paper with "Its continuing utility must be open to serious question".

The upshot of his article was that "The Law Reform Commission took it up and with correspondence with me they drafted an Act of Parliament, and an Act of Parliament was passed to abolish the law [90]. So that’s the one article I would wish to, as it were, offer as a justification for anything I’d written earlier, but it did solve a point of law and lead the way to making things more sensible and if people do inflict fatalities on other people they are not protected from the consequences." (Q117).

It is touching to think that whatever else he achieved, David’s legacy would be that justice might be brought to a small group of victims of crimes who would otherwise have been denied it.