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ENGLISH LAW (History)
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See also:ENGLISH See also:LAW (See also:History) . In English See also:jurisprudence " legal memory " is said to extend as far as, but no further than the See also:coronation of See also:Richard I. (See also:Sept. 3, 1189). This is a technical See also: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 See also:share of the See also:earth, has had not only an extremely continuous, but a matchlessly well-attested history, and, moreover, has been the subject See also:matter of rational exposition. Already in 1194 the daily doings of a tribunal which was controlling and moulding the whole See also:system were being punctually recorded in letters yet legible, and from that See also: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 See also:idea. If we are content to look no further than the See also:text-books—the books written by lawyers for lawyers—we may read our way backwards to See also:Blackstone (d. 178o), See also:Hale (d. 1676), See also:Coke (d. 1634), See also:Fitzherbert (d. 1538), See also:Littleton (d. 1481), See also:Bracton (d. 1268), See also:Glanvill (d. 1190), until we are in the reign of See also: Pursuing it through the See also:code of Canute (d. 1035) and the ordinances of See also:Alfred (c. goo) and his successors, we see See also:Ine See also:publishing See also:laws in the newly converted Wessex (c. 69o), and, almost a See also:century earlier, £Ethelberht doing the same in the newly converted See also:Kent (c. 600). This he did, says Beda, in accordance with See also:Roman precedents. Perhaps from the Roman missionaries he had heard tidings of what the Roman See also:emperor had lately been doing far off in New See also:Rome. We may at any See also:rate See also:notice with See also:interest that in See also:order of time Justinian's law-books fall between the Lex Salica and the earliest Kentish dooms; also that the great See also:pope who sent See also:Augustine to England is one of the very few men who between Justinian's See also:day and the 11th century lived in the Occident and yet can be proved to have known the
See also:Digest. In the Occident the time for the Germanic "folk-laws" (Leges Barbarorum) had come, and a See also:Canon law, ambitious of See also:independence, was being constructed, when in the Orient the See also:lord of See also: Then, though the 8th and 9th centuries are unproductive, we have from Alfred (c. 900) and his successors a See also:series of edicts which strongly resemble the Frankish capitularies —so strongly that we should see a clear See also:case of See also:imitation, were it not that in See also:Frankland the See also:age of legislation had come to its disastrous end See also:long before Alfred was See also: Even the strong Scandinavian See also:strain seems to have rapidly blended with the Anglian. It amplified the language and the law, but did not permanently divide the See also: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 See also: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 See also:court stood apart from and above all partial systems. The See also: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 See also:rivers were narrow and hills were See also:low. England was meant by nature to be the land of one law. Then as to Roman law. In England and elsewhere Germanic law See also:developed in an See also:atmosphere that was charged with traditions of the old See also:world, and many of these traditions had become implicit in the See also:Christian religion. It might be argued that all that we call progress is due to the See also:influence exercised by Roman See also:civilization; that, were it not for this, Germanic law would never have been set in See also:writing; and that theoretically unchangeable See also:custom would never have been supplemented or supersededby See also: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 See also:rule outside the ecclesiastical See also:sphere. Even within that sphere See also:modern See also:research is showing that the church-See also:property-law of the See also:middle ages, the law of the ecclesiastical " See also:benefice," is permeated by Germanic ideas. This is true of Gaul and Italy, and yet truer of an England in which See also:Christianity was for a while extinguished. Moreover, the laws that were written in England were, from the first, written in the English See also:tongue; and this gives them a unique value in the eyes of students of Germanic folk-law, for even the very See also: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 See also: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 See also:Continent we may see Gundobad, the Burgundian, publishing one law-See also: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 See also:Alaric the Visigoth for his Roman subjects before the days of Justinian, and this book (the so-called Breviarium Alarici or Lex See also:Romana Visigothorum) became for a long while the See also:chief representative of Roman law in Gaul. The Frankish king in his expansive See also: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 See also:personal law" prevailed: the homo See also:Romanus handed on his Roman law to his See also:children, while Frankish or Lombardic, Swabian or Saxon law would run in the blood of the See also:home barbarus. Of all this we hear nothing in England. Then on the mainland of Europe Roman and See also:barbarian law could not remain in juxtaposition without affecting each other. On the one See also: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 See also:short age which centres See also:round the See also:year Boo 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 See also:dream vanished before fratricidal See also:wars, See also:heathen invaders, centrifugal See also: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 See also:element in the See also:population. Meanwhile, the Norse pirates subdued a large See also:tract of what was to be See also:northern France—a land where Romani were few. Their restless and boundless vigour these See also:Normans retained; but they showed a wonderful See also:power of appropriating whatever of See also: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 See also:opinion that among them there lived some See also:sound traditions of the Frankish See also:monarchy's best days, and that Norman See also:dukes, rather than See also:German emperors or kings, of the French, are the truest spiritual heirs of See also: Also it must be allowed that when 'English law has taken shape in the 13th century it is very like one of the routumes of northern See also:France. Even when linguistic difficulties have been surmounted, the Saxon See also:Mirror
See also:man age.
Eadwardi which was thus restored. The result of their labours is an intricate See also:group of legal tracts which has been explored of See also:late years by Dr See also: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 See also:foreign See also:sources at his command, such as the Lex Ribuaria and an See also:epitome of the See also: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 See also: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 See also:attempt to See also:fix upon every landholder, French or English, the amount of geld that was due from his predecessor in See also:title. Himself the rebellious See also: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 See also:cousin. The sheriffs, though called See also:vice-comites, were to be the king's See also:officers; the See also:shire-moots might be called See also:county courts, but were not to be the courts of See also:counts. Much that was sound and royal in English public law was to be preserved if See also: The gulf that divides the so-called Leges Henrici (c. 1115) from the text-book ascribed to Ranulf Glanvill (c. 1188) seems Royal at first sight very wide. The one represents a not See also:Justice. easily imaginable See also:chaos and clash of old rules and new; it represents also a See also:stage in the development of 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 under-stood 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 See also:justiciar, Ranulf Glanvill, or may be Glanvill's See also:nephew, See also:Hubert See also: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 See also:mass of his subjects. See also:Judges chosen for their ability were to sit there, See also:term after term; judges were to travel in circuits through the land, and in many cases the procedure by way of " an See also:inquest of the country," which the Norman kings had used for the ascertainment of their fiscal rights, was to be at the disposal of See also:ordinary litigants. All this had been done in a piecemeal, experimental See also:fashion by ordinances that were known as " assizes." There had not been, and was not to be, any enunciation of a See also:general principle inviting all who were wronged to bring in their own words their complaints to the king's See also:audience. The general prevalence of feudal justice, and of the world-old methods of supernatural See also:probation (ordeals, See also:battle, oaths sworn with See also: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 See also:frame his case within the See also:compass of some carefully-worded and prescript See also:formula. With allusion to a remote stage in the historyof 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 See also:original (or, as we might say, originating) See also:writ; each has its own procedure and its appropriate mode of trial. The litigant chooses his writ, his See also: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 See also: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 See also:Pavia had come See also: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 See also:Irnerius was teaching at See also:Bologna, and from all parts of the See also:West men were eagerly flocking to hear the new See also:gospel of civilization. About the year 1149 See also:Vacarius was teaching Roman law in England. The See also:rest of a long See also:life he spent here, and faculties of Roman and Canon law took shape in the nascent university of See also: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 See also:decretals of See also: The great See also:quarrel between Henry II. and See also: But during Henry III.'s long reign the See also:swift development of English law was due chiefly to new " original writs " and new " forms of action " devised by the See also: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 See also:crowd of See also:manuscript copies. Bracton had introduced just enough of Roman law and Bolognese method to See also:save the law of England from the fate that awaited German law in See also:Germany. His book was printed in 1,569, 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 See also:parliament of the three estates, the convocations of the See also:clergy, the king's See also:council, the chancery or secretarial See also:department, the exchequer or See also:financial department, the king's See also:bench, the common bench, the commissioners of See also:assize and See also: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, See also:bore so fundamental a See also:character that in subsequent ages they appeared as the substructure of huge masses of superincumbent law. Coke commented upon them See also: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 See also:American states have, while others have not, accepted these statutes, that is a difference which is not unimportant to citizens of the See also:United States in the loth century. Then from the early years of Edward's reign come the first "law reports " that have descended to us: the See also: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.-See also:Hen. VIII.) which runs through the See also:residue of the middle ages. Lawyers, we perceive, are already making and preserving notes of the discussions that take See also: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 See also:secular employment. The clerical element had been strong among the judges of Henry III.'s reign: Bracton was an See also:archdeacon, Pateshull a See also:dean, See also: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 See also: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 See also:monopoly of legal aid is intricate, and at some points still obscure; but the influence of the canonical system is evident: the English See also:attorney corresponds to the canonical See also:proctor, and the English See also:barrister to the canonical See also:advocate. The main outlines were being See also: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 See also: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 See also:Fleta, the other as See also:Britton; both of them, however, See also: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 See also:practical See also:kind. Under the See also:cover of fables about King
Alfred, the author of the Mirror of Justices made a See also: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 See also: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 See also: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, '14th and can be set to the legislative power of king and parlia- centuries. ment. 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 See also:parliamentary " omnicompetence " which we obtain from the Elizabethan statesman See also:Sir Thomas See also: Year by year, term by term, lawyers were See also:reporting cases in order that they and their See also: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 See also:skeleton for the law was provided, not by the Roman rubrics (such as public and private, real and personal, possessory and proprietary, See also:contract and delict), but by the See also: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 Parlia-*See also:lent, and the growth of the law took the shape of an explication of the true See also: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 See also:golden age of good See also:pleading. The otherwise miserable time which saw the Wars of the See also:Roses produced some famous lawyers, and some bold doctrines which See also: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 See also:science) is an excellent statement of law in exquisitely See also:simple language. Meanwhile English law was being scholastically taught. This, if we look at the fate of native and See also:national law in Germany, or France, or Scotland, appears as a fact of See also:primary importance. From beginnings, so small and formless begat See also:education.
that they still elude research, the Inns of Court had
grown. The lawyers, like other men, had grouped themselves in See also:gilds, or gild-like " fellowships." The fellowship acquired property; it was not technically incorporate, but made use of the thoroughly English machinery of a See also:trust. Behind a hedge of trustees it lived an autonomous life, unhampered by charters or statutes. There was a See also: But further, in a manner that is still very dark, these See also: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 See also: A danger threatened: the danger that a prematurely osseous
system of common law would be overwhelmed by See also:summary
Chancery. justice and royal See also:equity. Even when courts for all
ordinary causes had been established, a reserve of
residuary justice remained with the king. Whatever lawyers
and even parliaments might say, it was seen to be desirable that
the king in council should with little regard for form puni*
offenders who could break through the meshes of a tardy See also:pro-
cedure 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 See also:judge should at times
proceed summarie et de piano et sine strepitu et figure justitiae.
And so extraordinary justice of a penal kind was done by the
king's council upon misdemeanants, and extraordinary justice
of a See also:civil kind was ministered by the king's See also:chancellor (who was
the specially learned member of the council) to those who " for
the love of See also: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 See also:desire to introduce rules of
" equity " which should supplement, or perhaps supplant, the
rules of law, but for the purpose of See also: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
See also: 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 " See also:fraud, See also:accident or See also:breach of confidence." His procedure was the summary, the See also:heresy-suppressing (not the ordinary and See also: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 See also:habit of reporting his decisions. He was not supposed to be tightly See also: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 AgeThe Tudor . with the preservation of the common law. We see new courts appropriating large See also:fields of justice and proceeding summarie et de piano; the See also:star chamber, the chancery, the courts of See also:requests, of wards, of augmentations, the See also:councils of the See also:North and See also:Wales; a little later we see the high See also:commission. We see also that judicial See also:torture which Fortescue had called the road to See also:hell. The stream of law reports became intermittent under Henry VIII.; few judges of his or his son's reign See also:left names that are to be remembered. In an age of See also:humanism, alphabetically arranged " abridgments " of medieval cases were the best work of English lawyers: one comes to us from See also:Anthony Fitzherbert (d. 1538), and another from See also:Robert Broke (d. 1558). This was the time when Roman law swept like a See also: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 See also:Renaissance and See also:Reformation with which it is intimately connected. Very probably he will bestow hard words on a See also: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 See also:Pole (d. 1558), a humanist, and at one time a reformer, who .with good See also:fortune might have been either king of England or pope of Rome. English law, said the future See also:cardinal and See also:archbishop, was barbarous; Roman law was the very See also: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 role 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 See also:head. The See also: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 See also:Protector See also:Somerset was deeply interested in the See also:establishment of a great school for civilians at Cambridge. Scottish law was the own See also: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 See also:drift of two See also:British and See also:Protestant kingdoms towards See also: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 See also:act of parliament stands out the more clearly if it settles the See also:succession to the See also:throne, annuls royal marriages, forgives royal debts, defines religious See also:creeds, attaints guilty or See also: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 See also:print, and was a See also: There was
dignified rebuke for the French jurist who had dared to speak
lightly of Littleton. And then the common law took flesh in
the See also:person of Edward Coke (1552-1634). With an
coke.
enthusiastic love of English tradition, for the See also: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 See also: His book about See also:tithes is to this day a See also:model and a masterpiece. When this accomplished See also: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 See also:tenure of See also:office depended on the king's will, were compelled to cite and discuss old precedents before they could give See also: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 See also:police-state " which has too often become the ideal of foreign publicists trained in See also: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 Hale. the stream. In retrospect, Charles II. reigns so soon as life has left his See also:father's body, and James II. ends a lawless career by a considerate and convenient See also:abdication. The statute book of the restored king was enriched by leaves excerpted from the acts of a lord protector; and See also:Matthew Hale (d. 1676), who was, perhaps, the last of the great See also:record-searching judges, sketched a See also:map of English law which Blackstone was to See also:colour. Then a time of self-complacency came for the law, which knew itself to be the perfection of See also:wisdom, and any proposal for drastic legislation would have worn the garb discredited by the tyranny of the Puritan See also:Caesar. The need for the yearly renewal of the See also:Mutiny Act secured an See also: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 See also: There was little that resembled the permanent civil service of to-day. The choice lay between See also: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 See also: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 capableof See also:amendment. A vague doctrine, inherited from Coke, taught that statutes might be so unreasonable as to be null, and any See also: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 en-lightened Europe. When See also:Voltaire and See also: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 See also:mercantile law, where the See also:earl of See also:Mansfield's (d. 1793) long See also:presidency over the king's bench marked an See also:epoch. It is too often forgotten that, until Elizabeth's reign, England was a thoroughly rustic See also:kingdom, and that See also:trade with England was mainly in the hands of foreigners. Also in medieval fairs, the assembled merchants declared their own " law See also: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 See also: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 See also:maze of evasive See also:fictions, to which only a few learned men held the historical See also: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 See also:Roe, reigned supreme. On the other hand, that healthy and vigorous institution, the Commission of the See also:Peace, with a long history behind it, was giving an important share in the See also: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 " See also: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 See also:crystallization of the chancellor's equity. In the 17th century the chancery had a narrow See also:escape of sharing the fate that befell its twin sister the star Bq"!tv. chamber. Its younger sister the court of requests perished under 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 See also:Nottingham (1673–1675) and See also: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 See also:principal outlines of equity were drawn by men who were steeped in the common law. By way of See also:ornament a Roman See also: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 See also: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 See also:plain man in the jury-See also:box, the chancellors.were tempted to forget how plain and rough good law should be, and to See also:screw up the legal See also:standard of reasonable conduct to a height hardly attainable except by those whose purses could command the See also:constant See also:advice of a family See also: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 See also: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 See also:guide to professional students and a useful aid to practitioners, his book set before the unprofessional public an See also: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 See also: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 See also: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 See also:eve of a great and successful See also:rebellion. Yet so it was. Out in See also:America, where books were few and lawyers had a mighty task to perform, Blackstone's facile presentment of the law of the See also: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 See also: 1832) had laboured for the over- throw of much that Blackstone had lauded. Bentham's largest 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 See also:Spain or See also:Russia at the shortest notice; and, scornful as he was of the past and its historic See also: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 See also: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 See also:compurgation, deodands and benefit of clergy, John Doe and Richard Roe. It is perhaps the main See also: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 See also: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; See also:Romilly and See also:Brougham were inspired by Bentham, and the great changes in constitutional law which cluster round the Reform Act of 1832 were accompanied by many See also:measures which purged the private, procedural and criminal law of much, though hardly enough, of the medieval dross. Some See also:credit for rousing an interest in law, in See also:definitions of legal terms, and in schemes of codification, is due to John Austin (d. 1859) who was rega,rded 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 See also:Savigny, the See also: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-Rightwas 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 See also: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 See also:scheme of Roman jurisprudence is not the scheme into which English. law will run without distortion. In the latter half of the loth century some great and See also:wise changes were made by the legislature. Notably in 1875 the old courts were merged in a new Supreme Court of Judi-Rem cature, and a concurrent administration of law and channge changes. equity was introduced. Successful endeavours have 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 " See also:socialism " and " imperialism " has distracted the attention of the British parliament from the See also:commonplace law of the land, and the development of obstructive See also:tactics has caused the issue of too many statutes whose brevity was See also:purchased by. disgraceful obscurity. By way of " partial codification " some branches of the common law (bills of See also:exchange, See also:sale of goods, See also:partnership) have been skilfully stated in statutes, but a draft criminal code, upon which much See also:expert labour was expended, lies See also:pigeon-holed and almost forgotten. British India has been the See also: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 See also: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 See also:present See also:condition, no one would think of codifying: notably the law of real property, in which may still be found numerous hurtful See also: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 See also:ministry. The quality of legal text-books has steadily improved; some of them are See also: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 See also:president of the Incorporated Law Society, and ten members reporting appointed by the three Inns of Court, the Incorporated 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 See also:superior courts and the Ho{ of Lords, and the judicial See also: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 See also:information. In addition the subscriber receives the See also:chronological See also:index of the statutes published from time to time by the See also: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
See also:Black-See also: Successful barristers, sharing in the general prosperity 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 See also: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 See also: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; See also: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 See also: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 See also:special pleader, or, in more See also: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 See also: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 See also: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 See also:admission as attorney or solicitor should submit to examination by one of the judges, who was to test his fitness and capacity in See also:consideration of a See also:fee of one See also:shilling. At the same time See also: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 See also:examinations were established, and in 186o 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 See also: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 andexaminations held is calculated to give a. student a sound fuhdamental knowledge of general principles, as well as an elementary acquaintance with the rules of modern English law. Jurisprudence,. Roman law, Constitutional law and See also:International law are taught, as well as the law of Real and Personal Property, the Law of Contract and See also: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 See also:Manchester and at See also: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. Additional information and CommentsThere are no comments yet for this article.
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