1911 Encyclopædia Britannica/English Law
ENGLISH LAW (History). In English jurisprudence “legal memory” is said to extend as far as, but no further than the coronation of Richard I. (Sept. 3, 1189). This is a technical doctrine concerning prescriptive rights, but is capable of expressing an important truth. For the last seven centuries, little more or less, the English law, which is now overshadowing a large share of the earth, has had not only an extremely continuous, but a matchlessly well-attested history, and, moreover, has been the subject matter of rational exposition. Already in 1194 the daily doings of a tribunal which was controlling and moulding the whole system were being punctually recorded in letters yet legible, and from that time onwards it is rather the enormous bulk than any dearth of available materials that prevents us from tracing the transformation of every old doctrine and the emergence and expansion of every new idea. If we are content to look no further than the text-books—the books written by lawyers for lawyers—we may read our way backwards to Blackstone (d. 1780), Hale (d. 1676), Coke (d. 1634), Fitzherbert (d. 1538), Littleton (d. 1481), Bracton (d. 1268), Glanvill (d. 1190), until we are in the reign of Henry of Anjou, and yet shall perceive that we are always reading of one and the same body of law, though the little body has become great, and the ideas that were few and indefinite have become many and explicit.
Beyond these seven lucid centuries lies a darker period. Nearly six centuries will still divide us from the dooms of Æthelberht (c. 600), and nearly seven from the Lex Salica (c. 500). We may regard the Norman conquest of England as marking the confluence of two streams of law. The one we may call French or Frankish. If we follow it upwards we pass through the capitularies of Carlovingian emperors and Merovingian kings until we see Chlodwig and his triumphant Franks invading Gaul, submitting their Sicambrian necks to the yoke of the imperial religion, and putting their traditional usages into written Latin. The other rivulet we may call Anglo-Saxon. Pursuing it through the code of Canute (d. 1035) and the ordinances of Alfred (c. 900) and his successors, we see Ine publishing laws in the newly converted Wessex (c. 690), and, almost a century earlier, Æthelberht doing the same in the newly converted Kent (c. 600). This he did, says Beda, in accordance with Roman precedents. Perhaps from the Roman missionaries he had heard tidings of what the Roman emperor had lately been doing far off in New Rome. We may at any rate notice with interest that in order of time Justinian’s law-books fall between the Lex Salica and the earliest Kentish dooms; also that the great pope who sent Augustine to England is one of the very few men who between Justinian’s day and the 11th century lived in the Occident and yet can be proved to have known the Digest. In the Occident the time for the Germanic “folk-laws” (Leges Barbarorum) had come, and a Canon law, ambitious of independence, was being constructed, when in the Orient the lord of church and state was “enucleating” all that was to live of the classical jurisprudence of pagan Rome. It was but a brief interval between Gothic and Lombardic domination that enabled him to give law to Italy: Gaul and Britain were beyond his reach.
The Anglo-Saxon laws that have come down to us (and we have no reason to fear the loss of much beyond some dooms of the Mercian Offa) are best studied as members of a large Teutonic family. Those that proceed from the Kent and Wessex of the 7th century are closely related to the continental folk-laws. Their next of kin seem to be the Lex Saxonum and the laws of the Lombards. Then, though the 8th and 9th centuries are unproductive, we have from Alfred (c. 900) and his successors a series of edicts which strongly resemble the Frankish capitularies—so strongly that we should see a clear case of imitation, were it not that in Frankland the age of legislation had come to its disastrous end long before Alfred was king. This, it may be noted, gives to English legal history a singular continuity from Alfred’s day to our own. The king of the English was expected to publish laws at a time when hardly any one else was attempting any such feat, and the English dooms of Canute the Dane are probably the most comprehensive statutes that were issued in the Europe of the 11th century. No genuine laws of the sainted Edward have descended to us, and during his reign England seems but too likely to follow the bad example of Frankland, and become a loose congeries of lordships. From this fate it was saved by the Norman duke, who, like Canute before him, subdued a land in which kings were still expected to publish laws.
In the study of early Germanic law—a study which now for some considerable time has been scientifically prosecuted in Germany—the Anglo-Saxon dooms have received their due share of attention. A high degree of racial purity may be claimed on their behalf. Celtic elements have been sought for in them, but have never been detected. At certain points, notably in the regulation of the blood-feud and the construction of a tariff of atonements, the law of one rude folk will always be somewhat like the law of another; but the existing remains of old Welsh and old Irish law stand far remoter from the dooms of Æthelberht and Ine than stand the edicts of Rothari and Liutprand, kings of the Lombards. Indeed, it is very dubious whether distinctively Celtic customs play any considerable part in the evolution of that system of rules of Anglian, Scandinavian and Frankish origin which becomes the law of Scotland. Within England itself, though for a while there was fighting enough between the various Germanic folks, the tribal differences were not so deep as to prevent the formation of a common language and a common law. Even the strong Scandinavian strain seems to have rapidly blended with the Anglian. It amplified the language and the law, but did not permanently divide the country. If, for example, we can to-day distinguish between law and right, we are debtors to the Danes; but very soon law is not distinctive of eastern or right of western England. In the first half of the 12th century a would-be expounder of the law of England had still to say that the country was divided between the Wessex law, the Mercian law, and the Danes’ law, but he had also to point out that the law of the king’s own court stood apart from and above all partial systems. The local customs were those of shires and hundreds, and shaded off into each other. We may speak of more Danish and less Danish counties; it was a matter of degree; for rivers were narrow and hills were low. England was meant by nature to be the land of one law.
Then as to Roman law. In England and elsewhere Germanic law developed in an atmosphere that was charged with traditions of the old world, and many of these traditions had become implicit in the Christian religion. It might be argued that all that we call progress is due to the influence exercised by Roman civilization; that, were it not for this, Germanic law would never have been set in writing; and that theoretically unchangeable custom would never have been supplemented or superseded by express legislation. All this and much more of the same sort might be said; but the survival in Britain, or the reintroduction into England, of anything that we should dare to call Roman jurisprudence would be a different matter. Eyes, carefully trained, have minutely scrutinized the Anglo-Saxon legal texts without finding the least trace of a Roman rule outside the ecclesiastical sphere. Even within that sphere modern research is showing that the church-property-law of the middle ages, the law of the ecclesiastical “benefice,” is permeated by Germanic ideas. This is true of Gaul and Italy, and yet truer of an England in which Christianity was for a while extinguished. Moreover, the laws that were written in England were, from the first, written in the English tongue; and this gives them a unique value in the eyes of students of Germanic folk-law, for even the very ancient and barbarous Lex Salica is a Latin document, though many old Frankish words are enshrined in it. Also we notice—and this is of grave importance—that in England there are no vestiges of any “Romani” who are being suffered to live under their own law by their Teutonic rulers. On the Continent we may see Gundobad, the Burgundian, publishing one law-book for the Burgundians and another for the Romani who own his sway. A book of laws, excerpted chiefly from the Theodosian code, was issued by Alaric the Visigoth for his Roman subjects before the days of Justinian, and this book (the so-called Breviarium Alarici or Lex Romana Visigothorum) became for a long while the chief representative of Roman law in Gaul. The Frankish king in his expansive realm ruled over many men whose law was to be found not in the Lex Salica or Lex Ribuaria, but in what was called the Lex Romana. “A system of personal law” prevailed: the homo Romanus handed on his Roman law to his children, while Frankish or Lombardic, Swabian or Saxon law would run in the blood of the homo barbarus. Of all this we hear nothing in England. Then on the mainland of Europe Roman and barbarian law could not remain in juxtaposition without affecting each other. On the one hand we see distinctively Roman rules making their way into the law of the victorious tribes, and on the other hand we see a decay and debasement of jurisprudence which ends in the formation of what modern historians have called a Roman “vulgar-law” (Vulgarrecht). For a short age which centres round the year 800 it seemed possible that Frankish kings, who were becoming Roman emperors, would be able to rule by their capitularies nearly the whole of the Christian Occident. The dream vanished before fratricidal wars, heathen invaders, centrifugal feudalism, and a centripetal church which found its law in the newly concocted forgeries of the Pseudo-Isidore (c. 850). The “personal laws” began to transmute themselves into local customs, and the Roman vulgar-law began to look like the local custom of those districts where the Romani were the preponderating element in the population. Meanwhile, the Norse pirates subdued a large tract of what was to be northern France—a land where Romani were few. Their restless and boundless vigour these Normans retained; but they showed a wonderful power of appropriating whatever of alien civilization came in their way. In their language, religion and law, they had become French many years before they subdued England. It is a plausible opinion that among them there lived some sound traditions of the Frankish monarchy’s best days, and that Norman dukes, rather than German emperors or kings, of the French, are the truest spiritual heirs of Charles the Great.
In our own day, German historians are wont to speak of English law as a “daughter” of French or Frankish law. This tendency derived its main impulse from H. Brunner’s proof that the germ of trial by jury, which cannot be found in the Anglo-Saxon laws, can be found in the prerogative procedure of the Frankish kings. We must here remember that during a long age English lawyers wrote in French and even thought in French, and that to this day most of the technical terms of the law, more especially of the private law, are of French origin. Also it must be allowed that when English law has taken shape in the 13th century it is very like one of the coutumes of northern France. Even when linguistic difficulties have been surmounted, the Saxon Mirror of Eike von Repgow will seem far less familiar to an Englishman than the so-called Establishments of St Louis. This was the outcome of a slow process which fills more than a century (1066–1189), and was in a great measure due to the reforming energy of Henry II., the French prince who, in addition to England, ruled a good half of France. William the Conqueror seems to have intended to govern Englishmen by English law. After the tyranny of Rufus, Henry I. promised a restoration of King Edward’s law: that is, the law of the Confessor’s time (Lagam Eadwardi regis vobis reddo). Various attempts were then made, The Nor-man age. mostly, so it would seem, by men of French birth, to state in a modern and practicable form the laga Eadwardi which was thus restored. The result of their labours is an intricate group of legal tracts which has been explored of late years by Dr Liebermann. The best of these has long been known as the Leges Henrici Primi, and aspires to be a comprehensive law-book. Its author, though he had some foreign sources at his command, such as the Lex Ribuaria and an epitome of the Breviary of Alaric, took the main part of his matter from the code of Canute and the older English dooms. Neither the Conqueror nor either of his sons had issued many ordinances: the invading Normans had little, if any, written law to bring with them, and had invaded a country where kings had been lawgivers. Moreover, there was much in the English system that the Conqueror was keenly interested in retaining—especially an elaborate method of taxing the land and its holders. The greatest product of Norman government, the grandest feat of government that the world had seen for a long time past, the compilation of Domesday Book, was a conservative effort, an attempt to fix upon every landholder, French or English, the amount of geld that was due from his predecessor in title. Himself the rebellious vassal of the French king, the duke of the Normans, who had become king of the English, knew much of disruptive feudalism, and had no mind to see England that other France which it had threatened to become in the days of his pious but incompetent cousin. The sheriffs, though called vice-comites, were to be the king’s officers; the shire-moots might be called county courts, but were not to be the courts of counts. Much that was sound and royal in English public law was to be preserved if William could preserve it.
The gulf that divides the so-called Leges Henrici (c. 1115) from the text-book ascribed to Ranulf Glanvill (c. 1188) seems at first sight very wide. The one represents a not easily imaginable chaos and clash of old rules and new; it represents also a stage in the development of Royal justice. feudalism which in other countries is represented chiefly by a significant silence. The other is an orderly, rational book, which through all the subsequent centuries will be readily understood by English lawyers. Making no attempt to tell us what goes on in the local courts, its author, who may be Henry II.’s chief justiciar, Ranulf Glanvill, or may be Glanvill’s nephew, Hubert Walter, fixes our attention on a novel element which is beginning to subdue all else to its powerful operation. He speaks to us of the justice that is done by the king’s own court. Henry II. had opened the doors of his French-speaking court to the mass of his subjects. Judges chosen for their ability were to sit there, term after term; judges were to travel in circuits through the land, and in many cases the procedure by way of “an inquest of the country,” which the Norman kings had used for the ascertainment of their fiscal rights, was to be at the disposal of ordinary litigants. All this had been done in a piecemeal, experimental fashion by ordinances that were known as “assizes.” There had not been, and was not to be, any enunciation of a general principle inviting all who were wronged to bring in their own words their complaints to the king’s audience. The general prevalence of feudal justice, and of the world-old methods of supernatural probation (ordeals, battle, oaths sworn with oath-helpers), was to be theoretically respected; but in exceptional cases, which would soon begin to devour the rule, a royal remedy was to be open to any one who could frame his case within the compass of some carefully-worded and prescript formula. With allusion to a remote stage in the history of Roman law, a stage of which Henry’s advisers can have known little or nothing, we may say that a “formulary system” is established which will preside over English law until modern times. Certain actions, each with a name of its own, are open to litigants. Each has its own formula set forth in its original (or, as we might say, originating) writ; each has its own procedure and its appropriate mode of trial. The litigant chooses his writ, his action, and must stand or fall by his choice. Thus a book about royal justice tends to become, and Glanvill’s book already is, a commentary on original writs.
The precipitation of English law in so coherent a form as that which it has assumed in Glanvill’s book is not to be explained without reference to the revival of Roman jurisprudence in Italy. Out of a school of Lombard lawyers at Pavia had come Lanfranc the Conqueror’s adviser, and the Lombardists had already been studying Justinian’s Institutes. Then at length the Digest came by its rights. About the year 1100 Irnerius was teaching at Bologna, and from all parts of the West men were eagerly flocking to hear the new gospel of civilization. About the year 1149 Vacarius was teaching Roman law in England. The rest of a long life he spent here, and faculties of Roman and Canon law took shape in the nascent university of Oxford. Whatever might be the fate of Roman law in England, there could be no doubt that the Canon law, which was crystallizing in the Decretum Gratiani (c. 1139) and in the decretals of Alexander III., would be the law of the English ecclesiastical tribunals. The great quarrel between Henry II. and Thomas of Canterbury brought this system into collision with the temporal law of England, and the king’s ministers must have seen that they had much to learn from the methodic enemy. Some of them were able men who became the justices of Henry’s court, and bishops to boot. The luminous Dialogue of the Exchequer (c. 1179), which expounds the English fiscal system, came from the treasurer, Richard Fitz Nigel, who became bishop of London; and the treatise on the laws of England came perhaps from Glanvill, perhaps from Hubert Walter, who was to be both primate and chief justiciar. There was healthy emulation of the work that was being done by Italian jurists, but no meek acceptance of foreign results.
A great constructive era had opened, and its outcome was a large and noble book. The author was Henry of Bratton (his name has been corrupted into Bracton), who died in 1268 after having been for many years one of Henry III.’s justices. The model for its form was the treatise of Azo Bracton. of Bologna (“master of all the masters of the laws,” an Englishman called him), and thence were taken many of the generalities of jurisprudence: maxims that might be regarded as of universal and natural validity. But the true core of the work was the practice of an English court which had yearly been extending its operations in many directions. For half a century past diligent record had been kept on parchment of all that this court had done, and from its rolls Bracton cited numerous decisions. He cited them as precedents, paying special heed to the judgments of two judges who were already dead, Martin Pateshull and William Raleigh. For this purpose he compiled a large Note Book, which was discovered by Prof. Vinogradoff in the British Museum in 1884. Thus at a very early time English “common law” shows a tendency to become what it afterwards definitely became, namely, “case law.” The term “common law” was being taken over from the canonists by English lawyers, who used it to distinguish the general law of the land from local customs, royal prerogatives, and in short from all that was exceptional or special. Since statutes and ordinances were still rarities, all expressly enacted laws were also excluded from the English lawyers’ notion of “the common law.” The Great Charter (1215) had taken the form of a grant of “liberties and privileges,” comparable to the grants that the king made to individual men and favoured towns. None the less, it was in that age no small body of enacted law, and, owing to its importance and solemnity, it was in after ages regarded as the first article of a statute book. There it was followed by the “provisions” issued at Merton in 1236 and by those issued at Marlborough after the end of the Barons’ War. But during Henry III.’s long reign the swift development of English law was due chiefly to new “original writs” and new “forms of action” devised by the chancery and sanctioned by the court. Bracton knew many writs that were unknown to Glanvill, and men were already perceiving that limits must be set to the inventive power of the chancery unless the king was to be an uncontrollable law-maker. Thus the common law was losing the power of rapid growth when Bracton summed the attained results in a book, the success of which is attested by a crowd of manuscript copies. Bracton had introduced just enough of Roman law and Bolognese method to save the law of England from the fate that awaited German law in Germany. His book was printed in 1569, and Coke owed much to Bracton.
The comparison that is suggested when Edward I. is called the English Justinian cannot be pressed very far. Nevertheless, as is well known, it is in his reign (1272–1307) that English institutions finally take the forms that they are to keep through coming centuries. We already see the parliament of the three estates, the convocations of the clergy, the king’s council, the chancery or secretarial department, the exchequer or financial department, the king’s bench, the common bench, the commissioners of assize and gaol delivery, the small group of professionally learned judges, and a small group of professionally learned lawyers, whose skill is at the service of those who will employ them. Moreover, the statutes that were passed in the first eighteen years of the reign, though their bulk seems slight to us nowadays, bore so fundamental a character that in subsequent ages they appeared as the substructure of huge masses of superincumbent law. Coke commented upon them sentence by sentence, and even now the merest smatterer in English law must profess some knowledge of Quia emptores and De donis conditionalibus. If some American states have, while others have not, accepted these statutes, that is a difference which is not unimportant to citizens of the United States in the 20th century. Then from the early years of Edward’s reign come the first “law reports” that have descended to us: the oldest of them have not yet been printed; the oldest that has been printed belongs to 1292. These are the precursors of the long series of Year Books (Edw. II.-Hen. VIII.) which runs through the residue of the middle ages. Lawyers, we perceive, are already making and preserving notes of the discussions that take place in court; French notes that will be more useful to them than the formal Latin records inscribed upon the plea rolls. From these reports we learn that there are already, as we should say, a few “leading counsel,” some of whom will be retained in almost every important cause. Papal decretals had been endeavouring to withdraw the clergy from secular employment. The clerical element had been strong among the judges of Henry III.’s reign: Bracton was an archdeacon, Pateshull a dean, Raleigh died a bishop. Their places begin to be filled by men who are not in orders, but who have pleaded the king’s causes for him—his serjeants or servants at law—and beside them there are young men who are “apprentices at law,” and are learning to plead. Also we begin to see men who, as “attorneys at law,” are making it their business to appear on behalf of litigants. The history of the legal profession and its monopoly of legal aid is intricate, and at some points still obscure; but the influence of the canonical system is evident: the English attorney corresponds to the canonical proctor, and the English barrister to the canonical advocate. The main outlines were being drawn in Edward I.’s day; the legal profession became organic, and professional opinion became one of the main forces that moulded the law.
The study of English law fell apart from all other studies, and the impulse that had flowed from Italian jurisprudence was ebbing. We have two comprehensive text-books from Edward’s reign: the one known to us as Fleta, the other as Britton; both of them, however, quarry their materials from Bracton’s treatise. Also we have two little books on procedure which are attributed to Chief-Justice Hengham, and a few other small tracts of an intensely practical kind. Under the cover of fables about King Alfred, the author of the Mirror of Justices made a bitter attack upon King Edward’s judges, some of whom had fallen into deep disgrace. English legal history has hardly yet been purged of the leaven of falsehood that was introduced by this fantastic and unscrupulous pamphleteer. His enigmatical book ends that literate age which begins with Glanvill’s treatise and the treasurer’s dialogue. Between Edward I.’s day and Edward IV.’s hardly anything that deserves the name of book was written by an English lawyer.
During that time the body of statute law was growing, but not very rapidly. Acts of parliament intervened at a sufficient number of important points to generate and maintain a persuasion that no limit, or no ascertainable limit, can be set to the legislative power of king and parliament. 14th and 15th centuries. Very few are the signs that the judges ever permitted the validity of a statute to be drawn into debate. Thus the way was being prepared for the definite assertion of parliamentary “omnicompetence” which we obtain from the Elizabethan statesman Sir Thomas Smith, and for those theories of sovereignty which we couple with the names of Hobbes and Austin. Nevertheless, English law was being developed rather by debates in court than by open legislation. The most distinctively English of English institutions in the later middle ages are the Year-Books and the Inns of Court. Year by year, term by term, lawyers were reporting cases in order that they and their fellows might know how cases had been decided. The allegation of specific precedents was indeed much rarer than it afterwards became, and no calculus of authority so definite as that which now obtains had been established in Coke’s day, far less in Littleton’s. Still it was by a perusal of reported cases that a man would learn the law of England. A skeleton for the law was provided, not by the Roman rubrics (such as public and private, real and personal, possessory and proprietary, contract and delict), but by the cycle of original writs that were inscribed in the chancery’s Registrum Brevium. A new form of action could not be introduced without the authority of Parliament, and the growth of the law took the shape of an explication of the true intent of ancient formulas. Times of inventive liberality alternated with times of cautious and captious conservatism. Coke could look back to Edward III.’s day as to a golden age of good pleading. The otherwise miserable time which saw the Wars of the Roses produced some famous lawyers, and some bold doctrines which broke new ground. It produced also Sir Thomas Littleton’s (d. 1481) treatise on Tenures, which (though it be not, as Coke thought it, the most perfect work that ever was written in any human science) is an excellent statement of law in exquisitely simple language.
Meanwhile English law was being scholastically taught. This, if we look at the fate of native and national law in Germany, or France, or Scotland, appears as a fact of primary importance. From beginnings, so small and formless that they still elude research, the Inns of Court had Legal education. grown. The lawyers, like other men, had grouped themselves in gilds, or gild-like “fellowships.” The fellowship acquired property; it was not technically incorporate, but made use of the thoroughly English machinery of a trust. Behind a hedge of trustees it lived an autonomous life, unhampered by charters or statutes. There was a hall in which its members dined in common; there was the nucleus of a library; there were also dormitories or chambers in which during term-time lawyers lived celibately, leaving their wives in the country. Something of the college thus enters the constitution of these fellowships; and then something academical. The craft gild regulated apprenticeship; it would protect the public against incompetent artificers, and its own members against unfair competition. So the fellowship of lawyers. In course of time a lengthy and laborious course of education of the medieval sort had been devised. He who had pursued it to its end received a call to the bar of his inn. This call was in effect a degree. Like the doctor or master of a university, the full-blown barrister was competent to teach others, and was expected to read lectures to students. But further, in a manner that is still very dark, these societies had succeeded in making their degrees the only steps that led to practice in the king’s courts. At the end of the middle ages (c. 1470) Sir John Fortescue rehearsed the praises of the laws of England in a book which is one of the earliest efforts of comparative politics. Contrasting England with France, he rightly connects limited monarchy, public and oral debate in the law courts, trial by jury, and the teaching of national law in schools that are thronged by wealthy and well-born youths. But nearly a century earlier, the assertion that English law affords as subtle and civilizing a discipline as any that is to be had from Roman law was made by a man no less famous than John Wycliffe. The heresiarch naturally loathed the Canon law; but he also spoke with reprobation of the “paynims’ law,” the “heathen men’s law,” the study of which in the two universities was being fostered by some of the bishops. That study, after inspiring Bracton, had come to little in England, though the canonist was compelled to learn something of Justinian, and there was a small demand for learned civilians in the court of admiralty, and in what we might call the king’s diplomatic service. No medieval Englishman did anything considerable for Roman law. Even the canonists were content to read the books of French and Italian masters, though John Acton (c. 1340) and William Lyndwood (1430) wrote meritorious glosses. The Angevin kings, by appropriating to the temporal forum the whole province of ecclesiastical patronage, had robbed the decretists of an inexhaustible source of learning and of lucre. The work that was done by the legal faculties at Oxford and Cambridge is slight when compared with the inestimable services rendered to the cause of national continuity by the schools of English law which grew within the Inns of Court.
A danger threatened: the danger that a prematurely osseous system of common law would be overwhelmed by summary justice and royal equity. Even when courts for all ordinary causes had been established, a reserve of residuary justice remained with the king. Whatever lawyers Chancery. and even parliaments might say, it was seen to be desirable that the king in council should with little regard for form punish offenders who could break through the meshes of a tardy procedure and should redress wrongs which corrupt and timid juries would leave unrighted. Papal edicts against heretics had made familiar to all men the notion that a judge should at times proceed summarie et de plano et sine strepitu et figura justitiae. And so extraordinary justice of a penal kind was done by the king’s council upon misdemeanants, and extraordinary justice of a civil kind was ministered by the king’s chancellor (who was the specially learned member of the council) to those who “for the love of God and in the way of charity,” craved his powerful assistance. It is now well established that the chancellors started upon this course, not with any desire to introduce rules of “equity” which should supplement, or perhaps supplant, the rules of law, but for the purpose of driving the law through those accidental impediments which sometimes unfortunately beset its due course. The wrongs that the chancellor redressed were often wrongs of the simplest and most brutal kind: assaults, batteries and forcible dispossessions. However, he was warned off this field of activity by parliament; the danger to law, to lawyers, to trial by jury, was evident. But just when this was happening, a new field was being opened for him by the growing practice of conveying land to trustees. The English trust of land had ancient Germanic roots, and of late we have been learning how in far-off centuries our Lombard cousins were in effect giving themselves a power of testation by putting their lands in trust. In England, when the forms of action were crystallizing, this practice had not been common enough to obtain the protection of a writ; but many causes conspired to make it common in the 14th century; and so, with the general approval of lawyers and laity, the chancellors began to enforce by summary process against the trustee the duty that lay upon his conscience. In the next century it was clear that England had come by a new civil tribunal. Negatively, its competence was defined by the rule that when the common law offered a remedy, the chancellor was not to intervene. Positively, his power was conceived as that of doing what “good conscience” required, more especially in cases of “fraud, accident or breach of confidence.” His procedure was the summary, the heresy-suppressing (not the ordinary and solemn) procedure of an ecclesiastical court; but there are few signs that he borrowed any substantive rules from legist or decretist, and many proofs that within the new field of trust he pursued the ideas of the common law. It was long, however, before lawyers made a habit of reporting his decisions. He was not supposed to be tightly bound by precedent. Adaptability was of the essence of the justice that he did.
A time of strain and trial came with the Tudor kings. It was questionable whether the strong “governance” for which the weary nation yearned could work within the limits of a parliamentary system, or would be compatible with the preservation of the common law. We see The Tudor Age. new courts appropriating large fields of justice and proceeding summarie et de plano; the star chamber, the chancery, the courts of requests, of wards, of augmentations, the councils of the North and Wales; a little later we see the high commission. We see also that judicial torture which Fortescue had called the road to hell. The stream of law reports became intermittent under Henry VIII.; few judges of his or his son’s reign left names that are to be remembered. In an age of humanism, alphabetically arranged “abridgments” of medieval cases were the best work of English lawyers: one comes to us from Anthony Fitzherbert (d. 1538), and another from Robert Broke (d. 1558). This was the time when Roman law swept like a flood over Germany. The modern historian of Germany will speak of “the Reception” (that is, the reception of Roman law), as no less important than the Renaissance and Reformation with which it is intimately connected. Very probably he will bestow hard words on a movement which disintegrated the nation and consolidated the tyranny of the princelings. Now a project that Roman law should be “received” in England occurred to Reginald Pole (d. 1558), a humanist, and at one time a reformer, who with good fortune might have been either king of England or pope of Rome. English law, said the future cardinal and archbishop, was barbarous; Roman law was the very voice of nature pleading for “civility” and good princely governance. Pole’s words were brought to the ears of his majestic cousin, and, had the course of events been somewhat other than it was, King Henry might well have decreed a reception. The rôle of English Justinian would have perfectly suited him, and there are distinct traces of the civilian’s Byzantinism in the doings of the Church of England’s supreme head. The academic study of the Canon law was prohibited; regius professorships of the civil law were founded; civilians were to sit as judges in the ecclesiastical courts. A little later, the Protector Somerset was deeply interested in the establishment of a great school for civilians at Cambridge. Scottish law was the own sister of English law, and yet in Scotland we may see a reception of Roman jurisprudence which might have been more whole-hearted than it was, but for the drift of two British and Protestant kingdoms towards union. As it fell out, however, Henry could get what he wanted in church and state without any decisive supersession of English by foreign law. The omnicompetence of an act of parliament stands out the more clearly if it settles the succession to the throne, annuls royal marriages, forgives royal debts, defines religious creeds, attaints guilty or innocent nobles, or prospectively lends the force of statute to the king’s proclamations. The courts of common law were suffered to work in obscurity, for jurors feared fines, and matter of state was reserved for council or star chamber. The Inns of Court were spared; their moots and readings did no perceptible harm, if little perceptible good.
Yet it is no reception of alien jurisprudence that must be chronicled, but a marvellous resuscitation of English medieval law. We may see it already in the Commentaries of Edward Plowden (d. 1585) who reported cases at length and lovingly. Bracton’s great book was put in print, and was a key to much that had been forgotten or misunderstood. Under Parker’s patronage, even the Anglo-Saxon dooms were brought to light; they seemed to tell of a Church of England that had not yet been enslaved by Rome. The new national pride that animated Elizabethan England issued in boasts touching the antiquity, humanity, enlightenment of English law. Resuming the strain of Fortescue, Sir Thomas Smith, himself a civilian, wrote concerning the Commonwealth of England a book that claimed the attention of foreigners for her law and her polity. There was dignified rebuke for the French jurist who had dared to speak lightly of Littleton. And then the common law took flesh in Coke. the person of Edward Coke (1552–1634). With an enthusiastic love of English tradition, for the sake of which many offences may be forgiven him, he ranged over nearly the whole field of law, commenting, reporting, arguing, deciding,—disorderly, pedantic, masterful, an incarnate national dogmatism tenacious of continuous life. Imbued with this new spirit, the lawyers fought the battle of the constitution against James and Charles, and historical research appeared as the guardian of national liberties. That the Stuarts united against themselves three such men as Edward Coke, John Selden and William Prynne, is the measure of their folly and their failure. Words that, rightly or wrongly, were ascribed to Bracton rang in Charles’s ears when he was sent to the scaffold. For the modern student of medieval law many of the reported cases of the Stuart time are storehouses of valuable material, since the lawyers of the 17th century were mighty hunters after records. Prynne (d. 1669), the fanatical Puritan, published ancient documents with fervid zeal, and made possible a history of parliament. Selden (d. 1654) was in all Europe among the very first to write legal history as it should be written. His book about tithes is to this day a model and a masterpiece. When this accomplished scholar had declared that he had laboured to make himself worthy to be called a common lawyer, it could no longer be said that the common lawyers were indoctissimum genus doctissimorum hominum. Even pliant judges, whose tenure of office depended on the king’s will, were compelled to cite and discuss old precedents before they could give judgment for their master; and even at their worst moments they would not openly break with medieval tradition, or declare in favour of that “modern police-state” which has too often become the ideal of foreign publicists trained in Byzantine law.
The current of legal doctrine was by this time so strong and voluminous that such events as the Civil War, the Restoration and the Revolution hardly deflected the course of the stream. In retrospect, Charles II. reigns so soon as life has left his father’s body, and James II. ends a lawless Hale. career by a considerate and convenient abdication. The statute book of the restored king was enriched by leaves excerpted from the acts of a lord protector; and Matthew Hale (d. 1676), who was, perhaps, the last of the great record-searching judges, sketched a map of English law which Blackstone was to colour. Then a time of self-complacency came for the law, which knew itself to be the perfection of wisdom, and any proposal for drastic legislation would have worn the garb discredited by the tyranny of the Puritan Cæsar. The need for the yearly renewal of the Mutiny Act secured an annual session of parliament. The mass of the statute law made in the 18th century is enormous; but, even when we have excluded from view such acts as are technically called “private,” the residuary matter bears a wonderfully empirical, partial and minutely particularizing character. In this “age of reason,” as we are wont to think it, the British parliament seems rarely to rise to the dignity of a general proposition, and in our own day the legal practitioner is likely to know less about the statutes of the 18th century than he knows about the statutes of Edward I., Henry VIII. and Elizabeth. Parliament, it should be remembered, was endeavouring directly to govern the nation. There was little that resembled the permanent civil service of to-day. The choice lay between direct parliamentary government and royal “prerogative”; and lengthy statutes did much of that work of detail which would now be done by virtue of the powers that are delegated to ministers and governmental boards. Moreover, extreme and verbose particularity was required in statutes, for judges were loath to admit that the common law was capable of amendment. A vague doctrine, inherited from Coke, taught that statutes might be so unreasonable as to be null, and any political theory that seemed to derive from Hobbes would have been regarded with not unjust suspicion. But the doctrine in question never took tangible shape, and enough could be done to protect the common law by a niggardly exposition of every legislating word. It is to be remembered that some main features of English public law were attracting the admiration of enlightened Europe. When Voltaire and Montesquieu applauded, the English lawyer had cause for complacency.
The common law was by no means stagnant. Many rules which come to the front in the 18th century are hardly to be traced farther. Especially is this the case in the province of mercantile law, where the earl of Mansfield’s (d. 1793) long presidency over the king’s bench marked an epoch. It is too often forgotten that, until Elizabeth’s reign, England was a thoroughly rustic kingdom, and that trade with England was mainly in the hands of foreigners. Also in medieval fairs, the assembled merchants declared their own “law merchant,” which was considered to have a supernational validity. In the reports of the common law courts it is late in the day before we read of some mercantile usages which can be traced far back in the statutes of Italian cities. Even on the basis of the excessively elaborated land law—a basis which Coke’s Commentary on Littleton seemed to have settled for ever—a lofty and ingenious superstructure could be reared. One after another delicate devices were invented for the accommodation of new wants within the law; but only by the assurance that the old law could not be frankly abolished can we be induced to admire the subtlety that was thus displayed. As to procedure, it had become a maze of evasive fictions, to which only a few learned men held the historical clue. By fiction the courts had stolen business from each other, and by fiction a few comparatively speedy forms of action were set to tasks for which they were not originally framed. Two fictitious persons, John Doe and Richard Roe, reigned supreme. On the other hand, that healthy and vigorous institution, the Commission of the Peace, with a long history behind it, was giving an important share in the administration of justice to numerous country gentlemen who were thus compelled to learn some law. A like beneficial work was being done among jurors, who, having ceased to be regarded as witnesses, had become “judges of fact.” No one doubted that trial by jury was the “palladium” of English liberties, and popularity awaited those who would exalt the office of the jurors and narrowly limit the powers of the judge.
But during this age the chief addition to English jurisprudence was made by the crystallization of the chancellor’s equity. In the 17th century the chancery had a narrow escape of sharing the fate that befell its twin sister the star chamber. Its younger sister the court of requests perished under Equity. the persistent attacks of the common lawyers. Having outlived troubles, the chancery took to orderly habits, and administered under the name of “equity” a growing group of rules, which in fact were supplemental law. Stages in this process are marked by the chancellorships of Nottingham (1673–1675) and Hardwicke (1737–1756). Slowly a continuous series of Equity Reports began to flow, and still more slowly an “equity bar” began to form itself. The principal outlines of equity were drawn by men who were steeped in the common law. By way of ornament a Roman maxim might be borrowed from a French or Dutch expositor, or a phrase which smacked of that “nature-rightly” school which was dominating continental Europe; but the influence exercised by Roman law upon English equity has been the subject of gross exaggeration. Parliament and the old courts being what they were, perhaps it was only in a new court that the requisite new law could be evolved. The result was not altogether satisfactory. Freed from contact with the plain man in the jury-box, the chancellors were tempted to forget how plain and rough good law should be, and to screw up the legal standard of reasonable conduct to a height hardly attainable except by those whose purses could command the constant advice of a family solicitor. A court which started with the idea of doing summary justice for the poor became a court which did a highly refined, but tardy justice, suitable only to the rich.
About the middle of the century William Blackstone, then a disappointed barrister, began to give lectures on English law at Oxford (1758), and soon afterwards he began to publish (1765) his Commentaries. Accurate enough in its history and doctrine to be an invaluable guide to Blackstone. professional students and a useful aid to practitioners, his book set before the unprofessional public an artistic picture of the laws of England such as had never been drawn of any similar system. No nation but the English had so eminently readable a law-book, and it must be doubtful whether any other lawyer ever did more important work than was done by the first professor of English law. Over and over again the Commentaries were edited, sometimes by distinguished men, and it is hardly too much to say that for nearly a century the English lawyer’s main ideas of the organization and articulation of the body of English law were controlled by Blackstone. This was far from all. The Tory lawyer little thought that he was giving law to colonies that were on the eve of a great and successful rebellion. Yet so it was. Out in America, where books were few and lawyers had a mighty task to perform, Blackstone’s facile presentment of the law of the mother country was of inestimable value. It has been said that among American lawyers the Commentaries “stood for the law of England,” and this at a time when the American daughter of English law was rapidly growing in stature, and was preparing herself for her destined march from the Atlantic to the Pacific Ocean. Excising only what seemed to savour of oligarchy, those who had defied King George retained with marvellous tenacity the law of their forefathers. Profound discussions of English medieval law have been heard in American courts; admirable researches into the recesses of the Year-Books have been made in American law schools; the names of the great American judges are familiar in an England which knows little indeed of foreign jurists; and the debt due for the loan of Blackstone’s Commentaries is being fast repaid. Lectures on the common law delivered by Mr Justice Holmes of the Supreme Court of the United States may even have begun to turn the scale against the old country. No chapter in Blackstone’s book nowadays seems more antiquated than that which describes the modest territorial limits of that English law which was soon to spread throughout Australia and New Zealand and to follow the dominant race in India.
Long wars, vast economic changes and the conservatism generated by the French Revolution piled up a monstrous arrear of work for the English legislature. Meanwhile, Jeremy Bentham (d. 1832) had laboured for the overthrow of much that Blackstone had lauded. Bentham’s largest Bentham. projects of destruction and reconstruction took but little effect. Profoundly convinced of the fungibility and pliability of mankind, he was but too ready to draw a code for England or Spain or Russia at the shortest notice; and, scornful as he was of the past and its historic deposit, a code drawn by Bentham would have been a sorry failure. On the other hand, as a critic and derider of the system which Blackstone had complacently expounded he did excellent service. Reform, and radical reform, was indeed sadly needed throughout a system which was encumbered by noxious rubbish, the useless leavings of the middle ages: trial by battle and compurgation, deodands and benefit of clergy, John Doe and Richard Roe. It is perhaps the main fault of “judge-made law” (to use Bentham’s phrase) that its destructive work can never be cleanly done. Of all vitality, and therefore of all patent harmfulness, the old rule can be deprived, but the moribund husk must remain in the system doing latent mischief. English law was full of decaying husks when Bentham attacked it, and his persistent demand for reasons could not be answered. At length a general interest in “law reform” was excited; Romilly and Brougham were inspired by Bentham, and the great changes in constitutional law which cluster round the Reform Act of 1832 were accompanied by many measures which purged the private, procedural and criminal law of much, though hardly enough, of the medieval dross. Some credit for rousing an interest in law, in definitions of legal terms, and in schemes of codification, is due to John Austin (d. 1859) who was regarded as the jurist of the reforming and utilitarian group. But, though he was at times an acute dissector of confused thought, he was too ignorant of the English, the Roman and every other system of law to make any considerable addition to the sum of knowledge; and when Savigny, the herald of evolution, was already in the field, the day for a “Nature-Right”—and Austin’s projected “general jurisprudence” would have been a Nature-Right—was past beyond recall. The obsolescence of the map of law which Blackstone had inherited from Hale, and in which many outlines were drawn by medieval formulas, left intelligent English lawyers without a guide, and they were willing to listen for a while to what in their insularity they thought to be the voice of cosmopolitan science. Little came of it all. The revived study of Germanic law in Germany, which was just beginning in Austin’s day, seems to be showing that the scheme of Roman jurisprudence is not the scheme into which English law will run without distortion.
In the latter half of the 19th century some great and wise changes were made by the legislature. Notably in 1875 the old courts were merged in a new Supreme Court of Judicature, and a concurrent administration of law and equity was introduced. Successful endeavours have Recent changes. been made also to reduce the bulk of old statute law, and to improve the form of acts of parliament; but the emergence of new forces whose nature may be suggested by some such names as “socialism” and “imperialism” has distracted the attention of the British parliament from the commonplace law of the land, and the development of obstructive tactics has caused the issue of too many statutes whose brevity was purchased by disgraceful obscurity. By way of “partial codification” some branches of the common law (bills of exchange, sale of goods, partnership) have been skilfully stated in statutes, but a draft criminal code, upon which much expert labour was expended, lies pigeon-holed and almost forgotten. British India has been the scene of some large legislative exploits, and in America a few big experiments have been made in the way of code-making, but have given little satisfaction to the bulk of those who are competent to appreciate their results. In England there are large portions of the law which, in their present condition, no one would think of codifying: notably the law of real property, in which may still be found numerous hurtful relics of bygone centuries. So omnipresent are statutes throughout the whole field of jurisprudence that the opportunity of doing any great feat in the development of law can come but seldom to a modern court. More and more, therefore, the fate of English law depends on the will of parliament, or rather of the ministry. The quality of legal text-books has steadily improved; some of them are models of clear statement and good arrangement; but no one has with any success aspired to be the Blackstone of a new age.
The Council of Law Reporting was formed in the year 1863. The council now consists of three ex-officio members—the attorney-general, the solicitor-general and the president of the Incorporated Law Society, and ten members appointed by the three Inns of Court, the Incorporated Law reporting. Law Society and the council itself on the nomination of the general council of the bar. The practitioner and the student now get for a subscription of four guineas a year the reports in all the superior courts and the House of Lords, and the judicial committee of the privy council issued in monthly parts a king’s printer’s copy of the statutes, and weekly notes, containing short notes of current decisions and announcements of all new rules made under the Judicature Acts and other acts of parliament, and other legal information. In addition the subscriber receives the chronological index of the statutes published from time to time by the Stationery Office, and last, but not least, the Digests of decided cases published by the council from time to time. In 1892 a Digest was published containing the cases and statutes for twenty-five years, from 1865 to 1890, and this was supplemented by one for the succeeding ten years, from 1891 to 1900. The digesting is now carried on continuously by means of “Current Indexes,” which are published monthly and annually, and consolidated into a digest at stated intervals (say) of five years. The Indian appeals series, which is not required by the general practitioner, is supplied separately at one guinea a year.
In the 16th and 17th centuries the corporate life of the Inns of Court in London became less and less active. The general decay of the organization of crafts and gilds showed itself among lawyers as among other craftsmen. Successful barristers, sharing in the general prosperity Legal education. of the country, became less and less able and willing to devote their time to the welfare of their profession as a whole. The Inns of Chancery, though some of their buildings still remain—picturesque survivals in their “suburbs”—ceased to be used as places for the education of students. The benchers of the Inns of Court, until the revival towards the middle of the 19th century, had wholly ceased to concern themselves with the systematic teaching of law. The modern system of legal education may be said to date from the establishment, in 1852, of the council of legal education, a body of twenty judges and barristers appointed by the four Inns of Court to control the legal education of students preparing to be called to the bar. The most important feature is the examination which a student must pass before he can be called. The examination (which by degrees has been made “stiffer”) serves the double purpose of fixing the compulsory standard which all must reach, and of guiding the reading of students who may desire, sooner or later, to carry their studies beyond this standard. The subjects in which the examination is held are divided into Roman law; Constitutional law and legal history; Evidence, Procedure and Criminal law; Real and Personal Property; Equity; and Common law. The council of legal education also appoint a body of readers and assistant readers, practising barristers, who deliver lectures and hold classes.
Meanwhile the custom remains by which a student reads for a year or more as a pupil in the chambers of some practising barrister. In the 18th century it first became usual for students to read with a solicitor or attorney, and after a short time the modern practice grew up of reading in the chambers of a conveyancer, equity draftsman or special pleader, or, in more recent times, in the chambers of a junior barrister. Before the modern examination system, a student required to have a certificate from the barrister in whose chambers he had been a pupil before he could be “called,” but the only relic of the old system now is the necessity of “eating dinners,” six (three for university men) in each of the four terms for three years, at one of the Inns of Court.
The education of solicitors suffered from the absence of any professional organization until the Incorporated Law Society was established in 1825 and the following years. So far as any professional education is provided for solicitors or required from them, this is due to the efforts of the Law Society. As early as 1729 it was required by statute that any person applying for admission as attorney or solicitor should submit to examination by one of the judges, who was to test his fitness and capacity in consideration of a fee of one shilling. At the same time regular preliminary service under articles was required, that is to say, under a contract by which the clerk was bound to serve for five years. The examination soon became, perhaps always was, an empty form. The Law Society, however, soon showed zeal for the education of future solicitors. In 1833 lectures were instituted. In 1836 the first regular examinations were established, and in 1860 the present system of examinations—preliminary, intermediate and final—came into effect. Of these only the last two are devoted to law, and both are of a strictly professional character. The final examination is a fairly severe test of practical acquaintance with all branches of modern English law. The Law Society makes some provision for the teaching of students, but this teaching is designed solely to assist in preparation for the examinations.
At the universities of Oxford and Cambridge there has, since 1850, been an attempt to promote the study of law. The curriculum of legal subjects in which lectures are given and examinations held is calculated to give a student a sound fundamental knowledge of general principles, as well as an elementary acquaintance with the rules of modern English law. Jurisprudence, Roman law, Constitutional law and International law are taught, as well as the law of Real and Personal Property, the Law of Contract and Tort, Criminal law, Procedure and Evidence. But the law tripos and the law schools suffer from remoteness from the law courts, and from the exclusively academical character of the teaching. Law is also taught, though not on a very large scale, at Manchester and at Liverpool. London University has encouraged the study of law by its examinations for law degrees, at which a comparatively high standard of knowledge is required; and at University College, London, and King’s College, London, teaching is given in law and jurisprudence.
Authorities.—F. Liebermann, Die Gesetze der Angelsachsen (1898); K. E. Digby, History of the Law of Real Property; Sir W. Dugdale, Origines juridicales (1671); O. W. Holmes, The Common Law (Boston, 1881); H. Hallam, Constitutional History; W. S. Holdsworth, History of English Law, 3 vols. (1903–9); J. Reeves, History of English Law, ed. W. F. Finlason (1869); T. Madox, History and Antiquities of the Exchequer (1769); C. de Franqueville, Le Système judiciaire de la Grande-Bretagne (Paris, 1893); Sir F. Pollock and F. W. Maitland, History of English Law (2 vols., 1898); H. Brunner, The Sources of the Law of England, trans. by W. Hastie (1888); Sir R. K. Wilson, History of Modern English Law (1875); A. V. Dicey, Law and Public Opinion in England (1905); Sir J. F. Stephen, History of the Criminal Law of England (3 vols., 1883); W. Stubbs, Select Charters, Constitutional History; the Publications of the Selden Society and the Year Books in the Rolls Series. (F. W. M.)