22, Hyde Park Gate, S.W.
September, 1888.
Has this occurred to you?—how extremely different the whole fate of English land law would have been if the King's court had not opened its doors to the under-vassals, to the lowest freeholders. But this was a startling interference with feudal justice and only compassed by degrees, in particular by remedies which in theory were but possessory etc. Now if the lower freehold tenants had not had the assizes, the line between them and the villein tenants would have been far less sharp. You hint at all this in chap. IV but might it not be worth a few more words—for there will be a tendency among your readers to say of course freeholders had remedies in the King's courts while really there is no of course in the matter. The point that I should like emphasized—but perhaps you are coming to this—is that not having remedies in the King's own court is not equivalent to not having rights.
Downing.
14 Oct. 1888.
I have been picking up my strength and am doing a little work. Yesterday I got through my inaugural lecture; possibly I may print it and in that case I will ask you to accept a copy; but it was meant to be heard and not read and so I allowed myself some exaggerations.
... I am now quite ready to see proofs of your book.... My Introduction for the manorial rolls is taking shape; it will deal only with the courts, their powers and procedure. You can I think trust me not to take an unfair advantage of our correspondence and your kindness—but if you had rather that I did not see the sheets of your book which deal with the courts, please say so. I hope to have got this Introduction written in a month or six weeks.
To Henry Sidgwick.
The West Lodge,
Downing College,
Cambridge.
11 Dec. 1888.
I have been reading your proof sheets[16] with great interest, and really as regards the parts which most concern me I have little to suggest. I think the chapter on law and morality particularly good. Were I writing the book I should in my present state of ignorance "hedge" a little about continental notions of law. Since I had some talk with you I have been reading several German law books, and my view of the duties of a German judge is all the more hazy. I find that a jurist, even when he is writing about elementary legal ideas, e.g. possession, will cite "Entscheidungen der oberste Gerichte von Celle, Darmstadt, Rostock etc.," if he thinks them sound—but how far he would think himself bound as judge by decisions which made against his theory I cannot tell. All seems rendered so vague by the notion of a heutige römische Recht. But I think that you have just hit off the English idea of a good judge—he does justice when he sees an opportunity of doing it. I do not think that a man could be a judge of quite the highest order without a strong feeling for political morality. On p. [92], chap. XII. you might add if you could do so that our highest courts of appeal, House of Lords and Judicial Committee, hold themselves bound by their own decisions in earlier cases.