Literature and the Bench novelist (but Mr. Maurice Hewlett was probably the only novelist qualified to use it). A few of these nameless com pilers, such as the collector of precedents for the Court Baron in the fourteenth century (published twenty years ago by the Selden Society) seemed to have had some literary faculty and sense of humor. But none of these books, on the whole, could be called literature. In the Elizabethan period they had several classics of the common law, but there were no classics of English letters. Coke was a pedantic, old-fashioned scho lar (not illiterate, as one or two recent writers had unjustly said). Bacon's pro fessional writings had no marked literary distinction. Sir Thomas Smith's "Com monwealth of England" was a political classic, but he was, properly speaking, not an English lawyer at all; his learn ing was civilian. The handling of law in a scholarly and literary fashion by English lawyers began in the eighteenth century. A case might be made out for Lord Mansfield as a pioneer, which still had a European reputation. It was Blackstone, however, in 1765, who produced a doubly classical work. His Commentaries were a great literary performance. As his great ad versary, Bentham, handsomely allowed, he taught jurisprudence to speak the language of the scholar and the gentle man. From the latter part of the eighteenth century onwards they had reports of carefully written judgments in the super ior courts (in books that only lawyers knew how to consult), many of them by good scholars, not a few of them serious contributions to political and historical science beyond legal techni cality. Lord Stowell's judgments in the Admiralty, which made our modern law of nations in time of war, were models of English exposition. How many of
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our publicists who talk glibly of contra band and the Declaration of London had read them at first hand? (Laughter.) Then, in the second and third quarters of the nineteenth century, we had a golden age of great English judges, handling the language partly with fin ished scholarship and partly with mother wit sharpened by long experience of affairs and advocacy. Not striving to adorn their plain business, they could rise to the height of great occasions. There had been infinite talk among authors about the principles of copy right. How many authors knew that the fundamental question of natural right was elaborately discussed (though not strictly decided) in a case before the House of Lords in 1854, and the argu ments on both sides set forth in the opinions of the Lords and the judges, not only with learned reasoning, but with judicial eloquence? Again, there was much talk just now of marriage and divorce. Half a cen tury ago the marriage law of England before the Reformation was explained in an opinion given to the House of Lords, which was really a masterly chap ter of historical research, expressed with great literary skill. The author of that opinion was the late Mr. Justice Willes. Another time a Judge of Assize commit ted a witness for contempt in refusing to answer, and the question was raised whether he had the powers of a superior court. Sir James Shaw Willes (who was not only a very learned lawyer, but an accomplished scholar in several tongues), wrote a judgment which, after fully fifty years, was a classical and, he believed, a faultless authority on the whole subject of Justices of Assize and their jurisdiction — surely a matter of students of English history as well as lawyers — and excellent English, too. He suspected very few historical stu
