Encyclopaedia Britannica, 11th Edition, "English Language" to "Epsom Salts" / Volume 9, Slice 6

by Various

The precipitation of English law in so coherent a 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 Pavia had come 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 Irnerius was teaching at Bologna, and from all parts of the West men were eagerly flocking to hear the new gospel of civilization. About the year 1149 Vacarius was teaching Roman law in England. The rest of a long life he spent here, and faculties of Roman and Canon law took shape in the nascent university of 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 decretals of Alexander III., would be the law of the English ecclesiastical tribunals. The great quarrel between Henry II. and Thomas of Canterbury brought this system into collision with the temporal law of England, and the king’s ministers must have seen that they had much to learn from the methodic enemy. Some of them were able men who became the justices of Henry’s court, and bishops to boot. The luminous Dialogue of the Exchequer (c. 1179), which expounds the English fiscal system, came from the treasurer, Richard Fitz Nigel, who became bishop of London; and the treatise on the laws of England came perhaps from Glanvill, perhaps from Hubert Walter, who was to be both primate and chief justiciar. There was healthy emulation of the work that was being done by Italian jurists, but no meek acceptance of foreign results.

A great constructive era had opened, and its outcome was a large and noble book. The author was Henry of Bratton (his name has been corrupted into Bracton), who died in 1268 after having been for many years one of Henry Bracton. III.’s justices. The model for its form was the treatise of Azo of Bologna (“master of all the masters of the laws,” an Englishman called him), and thence were taken many of the generalities of jurisprudence: maxims that might be regarded as of universal and natural validity. But the true core of the work was the practice of an English court which had yearly been extending its operations in many directions. For half a century past diligent record had been kept on parchment of all that this court had done, and from its rolls Bracton cited numerous decisions. He cited them as precedents, paying special heed to the judgments of two judges who were already dead, Martin Pateshull and William Raleigh. For this purpose he compiled a large Note Book, which was discovered by Prof. Vinogradoff in the British Museum in 1884. Thus at a very early time English “common law” shows a tendency to become what it afterwards definitely became, namely, “case law.” The term “common law” was being taken over from the canonists by English lawyers, who used it to distinguish the general law of the land from local customs, royal prerogatives, and in short from all that was exceptional or special. Since statutes and ordinances were still rarities, all expressly enacted laws were also excluded from the English lawyers’ notion of “the common law.” The Great Charter (1215) had taken the form of a grant of “liberties and privileges,” comparable to the grants that the king made to individual men and favoured towns. None the less, it was in that age no small body of enacted law, and, owing to its importance and solemnity, it was in after ages regarded as the first article of a statute book. There it was followed by the “provisions” issued at Merton in 1236 and by those issued at Marlborough after the end of the Barons’ War. But during Henry III.’s long reign the swift development of English law was due chiefly to new “original writs” and new “forms of action” devised by the 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 crowd of manuscript copies. Bracton had introduced just enough of Roman law and Bolognese method to save the law of England from the fate that awaited German law in Germany. His book was printed in 1569, 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 parliament of the three estates, the convocations of the clergy, the king’s council, the chancery or secretarial department, the exchequer or financial department, the king’s bench, the common bench, the commissioners of assize and 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, bore so fundamental a character that in subsequent ages they appeared as the substructure of huge masses of superincumbent law. Coke commented upon them 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 American states have, while others have not, accepted these statutes, that is a difference which is not unimportant to citizens of the United States in the 20th century. Then from the early years of Edward’s reign come the first “law reports” that have descended to us: the 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.-Hen. VIII.) which runs through the residue of the middle ages. Lawyers, we perceive, are already making and preserving notes of the discussions that take 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 secular employment. The clerical element had been strong among the judges of Henry III.’s reign: Bracton was an archdeacon, Pateshull a dean, 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 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 monopoly of legal aid is intricate, and at some points still obscure; but the influence of the canonical system is evident: the English attorney corresponds to the canonical proctor, and the English barrister to the canonical advocate. The main outlines were being 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 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 Fleta, the other as Britton; both of them, however, 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 practical kind. Under the cover of fables about King Alfred, the author of the Mirror of Justices made a 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 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 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 15th centuries. can be set to the legislative power of king and parliament. 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 parliamentary “omnicompetence” which we obtain from the Elizabethan statesman Sir Thomas Smith, and for those theories of sovereignty which we couple with the names of Hobbes and Austin. Nevertheless, English law was being developed rather by debates in court than by open legislation. The most distinctively English of English institutions in the later middle ages are the Year-Books and the Inns of Court. Year by year, term by term, lawyers were reporting cases in order that they and their 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 skeleton for the law was provided, not by the Roman rubrics (such as public and private, real and personal, possessory and proprietary, contract and delict), but by the 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 Parliament, and the growth of the law took the shape of an explication of the true 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 golden age of good pleading. The otherwise miserable time which saw the Wars of the Roses produced some famous lawyers, and some bold doctrines which 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 science) is an excellent statement of law in exquisitely simple language.

Meanwhile English law was being scholastically taught. This, if we look at the fate of native and national law in Germany, or France, or Scotland, appears as a fact of primary importance. From beginnings, so small and formless Legal education. that they still elude research, the Inns of Court had grown. The lawyers, like other men, had grouped themselves in gilds, or gild-like “fellowships.” The fellowship acquired property; it was not technically incorporate, but made use of the thoroughly English machinery of a trust. Behind a hedge of trustees it lived an autonomous life, unhampered by charters or statutes. There was a hall in which its members dined in common; there was the nucleus of a library; there were also dormitories or chambers in which during term-time lawyers lived celibately, leaving their wives in the country. Something of the college thus enters the constitution of these fellowships; and then something academical. The craft gild regulated apprenticeship; it would protect the public against incompetent artificers, and its own members against unfair competition. So the fellowship of lawyers. In course of time a lengthy and laborious course of education of the medieval sort had been devised. He who had pursued it to its end received a call to the bar of his inn. This call was in effect a degree. Like the doctor or master of a university, the full-blown barrister was competent to teach others, and was expected to read lectures to students. But further, in a manner that is still very dark, these 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 John Fortescue rehearsed the praises of the laws of England in a book which is one of the earliest efforts of comparative politics. Contrasting England with France, he rightly connects limited monarchy, public and oral debate in the law courts, trial by jury, and the teaching of national law in schools that are thronged by wealthy and well-born youths. But nearly a century earlier, the assertion that English law affords as subtle and civilizing a discipline as any that is to be had from Roman law was made by a man no less famous than John Wycliffe. The heresiarch naturally loathed the Canon law; but he also spoke with reprobation of the “paynims’ law,” the “heathen men’s law,” the study of which in the two universities was being fostered by some of the bishops. That study, after inspiring Bracton, had come to little in England, though the canonist was compelled to learn something of Justinian, and there was a small demand for learned civilians in the court of admiralty, and in what we might call the king’s diplomatic service. No medieval Englishman did anything considerable for Roman law. Even the canonists were content to read the books of French and Italian masters, though John Acton (c. 1340) and William Lyndwood (1430) wrote meritorious glosses. The Angevin kings, by appropriating to the temporal forum the whole province of ecclesiastical patronage, had robbed the decretists of an inexhaustible source of learning and of lucre. The work that was done by the legal faculties at Oxford and Cambridge is slight when compared with the inestimable services rendered to the cause of national continuity by the schools of English law which grew within the Inns of Court.

A danger threatened: the danger that a prematurely osseous system of common law would be overwhelmed by summary justice and royal equity. Even when courts for all ordinary causes had been established, a reserve of Chancery. 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 punish offenders who could break through the meshes of a tardy procedure 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 judge should at times proceed summarie et de plano et sine strepitu et figura justitiae. And so extraordinary justice of a penal kind was done by the king’s council upon misdemeanants, and extraordinary justice of a civil kind was ministered by the king’s chancellor (who was the specially learned member of the council) to those who “for the love of 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 desire to introduce rules of “equity” which should supplement, or perhaps supplant, the rules of law, but for the purpose of 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 field of activity by parliament; the danger to law, to lawyers, to trial by jury, was evident. But just when this was happening, a new field was being opened for him by the growing practice of conveying land to trustees. The English trust of land had ancient Germanic roots, and of late we have been learning how in far-off centuries our Lombard cousins were in effect giving themselves a power of testation by putting their lands in trust. In England, when the forms of action were crystallizing, this practice had not been common enough to obtain the protection of a writ; but many causes conspired to make it common in the 14th century; and so, with the general approval of lawyers and laity, the chancellors began to enforce by summary process against the trustee the duty that lay upon his conscience. In the next century it was clear that England had come by a new civil tribunal. 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 “fraud, accident or breach of confidence.” His procedure was the summary, the heresy-suppressing (not the ordinary and 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 habit of reporting his decisions. He was not supposed to be tightly 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 The Tudor Age. with the preservation of the common law. We see new courts appropriating large fields of justice and proceeding summarie et de plano; the star chamber, the chancery, the courts of requests, of wards, of augmentations, the councils of the North and Wales; a little later we see the high commission. We see also that judicial torture which Fortescue had called the road to hell. The stream of law reports became intermittent under Henry VIII.; few judges of his or his son’s reign left names that are to be remembered. In an age of humanism, alphabetically arranged “abridgments” of medieval cases were the best work of English lawyers: one comes to us from Anthony Fitzherbert (d. 1538), and another from Robert Broke (d. 1558). This was the time when Roman law swept like a 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 Renaissance and Reformation with which it is intimately connected. Very probably he will bestow hard words on a 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 Pole (d. 1558), a humanist, and at one time a reformer, who with good fortune might have been either king of England or pope of Rome. English law, said the future cardinal and archbishop, was barbarous; Roman law was the very 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 rôle 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 head. The 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 Protector Somerset was deeply interested in the establishment of a great school for civilians at Cambridge. Scottish law was the own 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 drift of two British and Protestant kingdoms towards 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 act of parliament stands out the more clearly if it settles the succession to the throne, annuls royal marriages, forgives royal debts, defines religious creeds, attaints guilty or 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 print, and was a key to much that had been forgotten or misunderstood. Under Parker’s patronage, even the Anglo-Saxon dooms were brought to light; they seemed to tell of a Church of England that had not yet been enslaved by Rome. The new national pride that animated Elizabethan England issued in boasts touching the antiquity, humanity, enlightenment of English law. Resuming the strain of Fortescue, Sir Thomas Smith, himself a civilian, wrote concerning the Commonwealth of England a book that claimed the attention of foreigners for her law and her polity. There was dignified rebuke for the French jurist who had dared to speak lightly of Littleton. And then the common law took flesh in Coke. the person of Edward Coke (1552-1634). With an enthusiastic love of English tradition, for the 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 James and Charles, and historical research appeared as the guardian of national liberties. That the Stuarts united against themselves three such men as Edward Coke, John Selden and William Prynne, is the measure of their folly and their failure. Words that, rightly or wrongly, were ascribed to Bracton rang in Charles’s ears when he was sent to the scaffold. For the modern student of medieval law many of the reported cases of the Stuart time are storehouses of valuable material, since the lawyers of the 17th century were mighty hunters after records. Prynne (d. 1669), the fanatical Puritan, published ancient documents with fervid zeal, and made possible a history of parliament. Selden (d. 1654) was in all Europe among the very first to write legal history as it should be written. His book about tithes is to this day a model and a masterpiece. When this accomplished 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 tenure of office depended on the king’s will, were compelled to cite and discuss old precedents before they could give 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 police-state” which has too often become the ideal of foreign publicists trained in 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 the stream. In retrospect, Charles II. reigns so soon Hale. as life has left his father’s body, and James II. ends a lawless career by a considerate and convenient abdication. The statute book of the restored king was enriched by leaves excerpted from the acts of a lord protector; and Matthew Hale (d. 1676), who was, perhaps, the last of the great record-searching judges, sketched a map of English law which Blackstone was to colour. Then a time of self-complacency came for the law, which knew itself to be the perfection of wisdom, and any proposal for drastic legislation would have worn the garb discredited by the tyranny of the Puritan Cæsar. The need for the yearly renewal of the Mutiny Act secured an 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 Elizabeth. Parliament, it should be remembered, was endeavouring directly to govern the nation. There was little that resembled the permanent civil service of to-day. The choice lay between 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 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 capable of amendment. A vague doctrine, inherited from Coke, taught that statutes might be so unreasonable as to be null, and any 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 enlightened Europe. When Voltaire and Montesquieu applauded, the English lawyer had cause for complacency.