Edward III.'s measure prohibitory of French pleadings had therefore comparatively little influence on the educational course of law-students. The published reports of trials, known by the name of Year-Books, were composed in French, until the series terminated in the time of Henry VIII.; and so late as George II.'s reign, Chief Baron Comyn preferred such words as 'chemin,' 'dismes,' and 'baron and feme,' to such words as 'highway,' 'tithes,' 'husband and wife.' More liberal than the majority of his legal brethren, even as his enlightenment with regard to public affairs exceeded that of ordinary politicians of his time, Sir Edward Coke wrote his commentaries in English, but when he published them, he felt it right to soothe the alarm of lawyers by assuring them that his departure from ancient usage could have no disastrous consequences. "I cannot conjecture," he apologetically observes in his preface, "that the general communicating these laws in the English tongue can work any inconvenience."
Some of the primary text-books of legal lore had been rendered into English, and some most valuable treatises had been written and published in the mother tongue of the country; but in the seventeenth century no Inns-of-Court man could acquire an adequate acquaintance with the usages and rules of our courts and the decisions of past judges, until he was able to study the Year-Books and read Littleton in the original. To acquire this singular language—a dead tongue that cannot be said to have ever lived—was the first object of the law-student. He worked at it in his chamber, and with faltering and uncertain accents essayed to speak it at the periodic mootings in which he was required to take part before he could be called to the bar, and also after he had become an utter-barrister. In his 'Autobiography,' Sir Simonds D'Ewes makes mention in several places of his Law-French exercises (temp. James I.), and in one place of his personal story he observes, "I had twice mooted in Law-French before I was called to the bar, and several times after I was made an utter-barrister, in our open hall. Thrice also before I was of the bar, I argued the reader's cases at the Inns of Chancery publicly, and six times afterwards. And then also, being an utter-barrister, I had twice argued our Middle-Temple reader's case at the cupboard, and sat nine times in our hall at the bench, and argued such cases in English as had before been argued by young gentlemen or utter-barristers in Law-French bareheaded."
Amongst the excellent changes by which the more enlightened of the Commonwealth lawyers sought to lessen the public clamor of law-reform was the resolution that all legal records should be kept, and all writs composed, in the language of the country. Hitherto the law records had been kept in a Latin that was quite as barbarous as the French used by the reporters; and the determination to abolish a custom which served only to obscure the operations of justice and to confound the illiterate was hailed by the more intelligent purchasers of law as a notable step in the right direction. But the reform was by no means acceptable to the majority of the bar, who did not hesitate to stigmatize the measure as a dangerous innovation—which would prove injurious to learned lawyers and peace-loving citizens, although it might possibly serve the purposes of ignorant counsel and litigious 'lay gents.'[28]The legal literature of three generations following Charles I.'s execution abounds with contemptuous allusions to the 'English times' of Cromwell; the old-fashioned reporters, hugging their Norman-French and looking with suspicion on popular intelligence, were vehement in expressing their contempt for the prevalent misuse of the mother tongue. "I have," observes Styles, in the preface to his reports, "made these reports speak English; not that I believe that they will be thereby more generally useful, for I have always been and yet am of opinion, that that part of the Common Law which is in the English hath only occasioned the making of unquiet spirits contentiously knowing, and more apt to offend others than to defend themselves; but I have done it in obedience to authority, and to stop the mouths of such of this English age, who, though they be confessedly different in their minds and judgments, as the builders of Babel were in their language, yet do think it vain, if not impious, to speak or understand more than their own mother tongue." In like manner, Whitelock's uncle Bulstrode, the celebrated reporter, says of the second part of his reports, "that he had manny years since perfected the words in French, in which language he had desired it might have seen the light, being most proper for it, and most convenient for the professors of the law."
The restorers who raised Charles II. to his father's throne, lost no time in recalling Latin to the records and writs; and so gladly did the reporters and the practising counsel avail themselves of the reaction in favor of discarded usages, that more Law-French was written and talked in Westminster Hall during the time of the restored king, than had been penned and spoken throughout the first fifty years of the seventeenth century.
The vexatious and indescribably absurd use of Law-Latin in records, writs, and written pleadings, was finally put an end to by statute 4 George II. c. 26; but this bill, which discarded for legal processes a cumbrous and harsh language, that was alike unmusical and inexact, and would have been utterly unintelligible to a Roman gentleman of the Augustan period, did not become law without much opposition from some of the authorities of Westminster Hall. Lord Raymond, Chief Justice of the King's Bench, spoke in accordance with opinions that had many supporters on the bench and at the bar, when he expressed his warm disapprobation of the proposed measure, and sarcastically observed "that if the bill paused, the law might likewise be translated into Welsh, since many in Wales understood not English." In the same spirit Sir Willian Blackstone and more recent authorities have lamented the loss of Law-Latin. Lord Campbell, in the 'Chancellors,' records that he "heard the late Lord Ellenborough from the bench regret the change, on the ground that it had had the tendency to make attorneys illiterate."
The sneer by which Lord Raymond endeavored to cast discredit on the proposal to abolish Law-Latin, was recalled after the lapse of many years by Sergeant Heywood, who forthwith acted upon it as though it originated in serious thought. Whilst acting as Chief Justice of the Carmarthen Circuit, the sergeant was presiding over a trial of murder, when it was discovered that neither the prisoner, nor any member of the jury, could understand a word of English; under these circumstances it was suggested that the evidence and the charge should be explained verbatim, to the prisoner and his twelve triers by an interpreter. To this reasonable petition that the testimony should be presented in a Welsh dress, the judge replied that, "to accede to the request would be to repeal the act of parliament, which required that all proceedings in courts of justice should be in the English tongue, and that the case of a trial in Wales, in which the prisoner and jury should not understand English, was a case not provided for, although the attention of the legislature had been called to it by that great judge Lord Raymond." The judge having thus decided, the inquiry proceeded—without the help of an interpreter—the counsel for the prosecution favoring the jury with an eloquent harangue, no single sentence of which was intelligible to them; a series of witnesses proving to English auditors, beyond reach of doubt, that the prisoner had deliberately murdered his wife; and finally the judge instructing the jury, in language which was as insignificant to their minds as the same quantity of obsolete Law-French would have been, that it was their duty to return a verdict of 'Guilty.' Throwing themselves into the humor of the business, the Welsh jurymen, although they were quite familiar with the facts of the case, acquitted the murderer, much to the encouragement of many wretched Welsh husbands anxious for a termination of their matrimonial sufferings.
[28] In the seventeenth century, lawyers usually called their clients and the non-legal public 'Lay Gents.'
CHAPTER XXXVI.
STUDENT LIFE IN OLD TIME.