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
