[1] A careful examination of several letters of Bosworth's
Anglo-Saxon dictionary gives in 2000 words (including derivatives and
compounds, but excluding orthographic variants) 535 which still exist
as modern English words.
[2] The practical convenience of having one name for what was the
same thing in various stages of development is not affected by the
probability that (E.A. Freeman notwithstanding) _Engle_ and _Englisc_
were, at an early period, _not_ applied to the whole of the
inhabitants of Teutonic Britain, but only to a part of them. The
dialects of _Engle_ and _Seaxan_ were alike old forms of what was
afterwards English speech, and so, viewed in relation to it, _Old
English_, whatever their contemporary names might be.
[3] The works of Gildas in the original Latin were edited by Mr
Stevenson for the English Historical Society. There is an English
translation in _Six Old English Chronicles_ in Bohn's Antiquarian
library.
[4] As to the continued existence of Latin in Britain, see further in
Rhys's _Lectures on Welsh Philology_, pp. 226-227; also Dogatschar,
_Lautlehre d. gr., lat. u. roman. Lehnworte im Altengl._ (Strassburg,
1888).
[5] Aethelstan in 934 calls himself in a charter "Ongol-Saxna cyning
and Brytaenwalda eallaes thyses iglandes"; Eadred in 955 is
"Angul-seaxna cyning and casere totius Britanniae," and the name is
of frequent occurrence in documents written in Latin. These facts
ought to be remembered in the interest of the scholars of the 17th
century, who have been blamed for the use of the term Anglo-Saxon, as
if they had invented it. By "Anglo-Saxon" language they meant the
language of the people who _sometimes at least_ called themselves
"Anglo-Saxons." Even now the name is practically useful, when we are
dealing with the subject _per se_, as is _Old English_, on the other
hand, when we are treating it historically or in connexion with
English as a whole.
[6] _Transactions of the Philological Society_ (_1873-1874_), p. 620;
new and much enlarged edition, 1888.
[7] See on this Rhys, _Lectures on Welsh Philology_, v.
[8] During the Old English period both _c_ and [g] appear to have
acquired a palatal value in conjunction with front or palatal
vowel-sounds, except in the north where _c_, and in some cases [g],
tended to remain guttural in such positions. This value was never
distinguished in Old English writing, but may be deduced from certain
phonetic changes depending upon it, and from the use of _c_, _cc_, as
an alternative for _tj_ (as in _ort_[g]_eard_, _orceard_ = orchard,
_fetian_, _feccean_ = fetch), as well as from the normal occurrence
of _ch_ and _y_ in these positions in later stages of the language,
e.g. _cild_ = child, _taecean_ = teach, [g]_iellan_ = yell, _dae_[g]
= day, &c.
[9] For a discriminating view of the effects of the Norman Conquest
on the English Language, see Freeman, _Norman Conquest_, ch. xxv.
[10] There is no reason to suppose that any attempt was made to
proscribe or suppress the native tongue, which was indeed used in
some official documents addressed to Englishmen by the Conqueror
himself. Its social degradation seemed even on the point of coming to
an end, when it was confirmed and prolonged for two centuries more by
the accession of the Angevin dynasty, under whom everything French
received a fresh impetus.
[11] MS. Cotton Vesp. A. 22.
[12] Gospels in Anglo-Saxon, &c., ed. for Cambridge Press, by W.W.
Skeat (1871-1887), second text.
[13] _Old English Homilies of Twelfth Century_, first and second
series, ed. R. Morris (E.E.T.S.), (1868-1873).
[14] The article _the_ becomes _te_ after a preceding _t_ or _d_ by
assimilation.
[15] Earle, _Two of the Saxon Chronicles parallel_ (1865), p. 265.
[16] Skeat, _Anglo-Saxon and Northumbrian Gospels_ (1874).
[17] Edited for the Surtees Society, by Rev. J. Stevenson.
[18] Edited for the Early English Text Society, by Rev. Dr Morris.
[19] _The Vision of William concerning Piers the Ploughman_ exists in
three different recensions, all of which have been edited for the
Early English Text Society by Rev. W.W. Skeat.
[20] Edited by Rev. Dr Morris for Early English Text Society, in
1866.
[21] Here, and in _tatt_, _tu_, _taer_, for _thatt_, _thu_, _thaet_,
after _t_, _d_, there is the same phonetic assimilation as in the
last section of the Anglo-Saxon Chronicle above.
[22] Edited for the Early English Text Society by Dr Morris (1865).
[23] Trevisa, _Translation of Higden's Polychronicon_.
[24] Skeat, _Specimens of English Literature_, pp. 49, 54.
[25] _A Shakspearian Grammar_, by Dr E.A. Abbott. To this book we are
largely indebted for its admirable summary of the characters of Tudor
English.
[26] _Evangelist_, _astronomy_, _dialogue_, are words that have so
lived, of which their form is the result. _Photograph_, _geology_,
&c., take this form as _if_ they had the same history.
[27] See extended lists of the foreign words in English in Dr
Morris's _Historical Outlines of English Accidence_, p. 33.
[28] See description and map in _Trans. of Philol. Soc._, 1875-1876,
p. 570.
[29] _The Dialect of the Southern Counties of Scotland, its
Pronunciation, Grammar and Historical Relations, with an Appendix on
the present limits of the Gaelic and Lowland Scotch, and the
Dialectal Divisions of the Lowland Tongue; and a Linguistical Map of
Scotland_, by James A.H. Murray (London, 1873).
[30] _A Glossary (with some pieces of Verse) of the Old Dialect of
the English Colony of Forth and Bargy_, collected by Jacob Poole,
edited by W. Barnes, B.D. (London, 1867).
ENGLISH LAW (_History_). In English jurisprudence "legal memory" is said
to extend as far as, but no further than the coronation of Richard I.
(Sept. 3, 1189). This is a technical 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 share of the earth, has had not only an extremely
continuous, but a matchlessly well-attested history, and, moreover, has
been the subject matter of rational exposition. Already in 1194 the
daily doings of a tribunal which was controlling and moulding the whole
system were being punctually recorded in letters yet legible, and from
that 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 idea. If
we are content to look no further than the text-books--the books written
by lawyers for lawyers--we may read our way backwards to Blackstone (d.
1780), Hale (d. 1676), Coke (d. 1634), Fitzherbert (d. 1538), Littleton
(d. 1481), Bracton (d. 1268), Glanvill (d. 1190), until we are in the
reign of Henry of Anjou, and yet shall perceive that we are always
reading of one and the same body of law, though the little body has
become great, and the ideas that were few and indefinite have become
many and explicit.
Beyond these seven lucid centuries lies a darker period. Nearly six
centuries will still divide us from the dooms of Aethelberht (c. 600),
and nearly seven from the _Lex Salica_ (c. 500). We may regard the
Norman conquest of England as marking the confluence of two streams of
law. The one we may call French or Frankish. If we follow it upwards we
pass through the capitularies of Carlovingian emperors and Merovingian
kings until we see Chlodwig and his triumphant Franks invading Gaul,
submitting their Sicambrian necks to the yoke of the imperial religion,
and putting their traditional usages into written Latin. The other
rivulet we may call Anglo-Saxon. Pursuing it through the code of Canute
(d. 1035) and the ordinances of Alfred (c. 900) and his successors, we
see Ine publishing laws in the newly converted Wessex (c. 690), and,
almost a century earlier, Aethelberht doing the same in the newly
converted Kent (c. 600). This he did, says Beda, in accordance with
Roman precedents. Perhaps from the Roman missionaries he had heard
tidings of what the Roman emperor had lately been doing far off in New
Rome. We may at any rate notice with interest that in order of time
Justinian's law-books fall between the _Lex Salica_ and the earliest
Kentish dooms; also that the great pope who sent Augustine to England is
one of the very few men who between Justinian's day and the 11th century
lived in the Occident and yet can be proved to have known the Digest.
In the Occident the time for the Germanic "folk-laws" (_Leges
Barbarorum_) had come, and a Canon law, ambitious of independence, was
being constructed, when in the Orient the lord of church and state was
"enucleating" all that was to live of the classical jurisprudence of
pagan Rome. It was but a brief interval between Gothic and Lombardic
domination that enabled him to give law to Italy: Gaul and Britain were
beyond his reach.
The Anglo-Saxon laws that have come down to us (and we have no reason to
fear the loss of much beyond some dooms of the Mercian Offa) are best
studied as members of a large Teutonic family. Those that proceed from
the Kent and Wessex of the 7th century are closely related to the
continental folk-laws. Their next of kin seem to be the _Lex Saxonum_
and the laws of the Lombards. Then, though the 8th and 9th centuries are
unproductive, we have from Alfred (c. 900) and his successors a series
of edicts which strongly resemble the Frankish capitularies--so strongly
that we should see a clear case of imitation, were it not that in
Frankland the age of legislation had come to its disastrous end long
before Alfred was king. This, it may be noted, gives to English legal
history a singular continuity from Alfred's day to our own. The king of
the English was expected to publish laws at a time when hardly any one
else was attempting any such feat, and the English dooms of Canute the
Dane are probably the most comprehensive statutes that were issued in
the Europe of the 11th century. No genuine laws of the sainted Edward
have descended to us, and during his reign England seems but too likely
to follow the bad example of Frankland, and become a loose congeries of
lordships. From this fate it was saved by the Norman duke, who, like
Canute before him, subdued a land in which kings were still expected to
publish laws.
In the study of early Germanic law--a study which now for some
considerable time has been scientifically prosecuted in Germany--the
Anglo-Saxon dooms have received their due share of attention. A high
degree of racial purity may be claimed on their behalf. Celtic elements
have been sought for in them, but have never been detected. At certain
points, notably in the regulation of the blood-feud and the construction
of a tariff of atonements, the law of one rude folk will always be
somewhat like the law of another; but the existing remains of old Welsh
and old Irish law stand far remoter from the dooms of Aethelberht and Ine
than stand the edicts of Rothari and Liutprand, kings of the Lombards.
Indeed, it is very dubious whether distinctively Celtic customs play any
considerable part in the evolution of that system of rules of Anglian,
Scandinavian and Frankish origin which becomes the law of Scotland.
Within England itself, though for a while there was fighting enough
between the various Germanic folks, the tribal differences were not so
deep as to prevent the formation of a common language and a common law.
Even the strong Scandinavian strain seems to have rapidly blended with
the Anglian. It amplified the language and the law, but did not
permanently divide the 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 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 court stood apart from and
above all partial systems. The 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 rivers were
narrow and hills were low. England was meant by nature to be the land of
one law.
Then as to Roman law. In England and elsewhere Germanic law developed in
an atmosphere that was charged with traditions of the old world, and many
of these traditions had become implicit in the Christian religion. It
might be argued that all that we call progress is due to the influence
exercised by Roman civilization; that, were it not for this, Germanic law
would never have been set in writing; and that theoretically unchangeable
custom would never have been supplemented or superseded by 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 rule
outside the ecclesiastical sphere. Even within that sphere modern
research is showing that the church-property-law of the middle ages, the
law of the ecclesiastical "benefice," is permeated by Germanic ideas.
This is true of Gaul and Italy, and yet truer of an England in which
Christianity was for a while extinguished. Moreover, the laws that were
written in England were, from the first, written in the English tongue;
and this gives them a unique value in the eyes of students of Germanic
folk-law, for even the very 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 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 Continent we may see Gundobad, the
Burgundian, publishing one law-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 Alaric the Visigoth for his Roman subjects
before the days of Justinian, and this book (the so-called _Breviarium
Alarici or Lex Romana Visigothorum_) became for a long while the chief
representative of Roman law in Gaul. The Frankish king in his expansive
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 personal law" prevailed: the _homo Romanus_ handed on his Roman
law to his children, while Frankish or Lombardic, Swabian or Saxon law
would run in the blood of the _homo barbarus_. Of all this we hear
nothing in England. Then on the mainland of Europe Roman and barbarian
law could not remain in juxtaposition without affecting each other. On
the one 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 short
age which centres round the year 800 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 dream
vanished before fratricidal wars, heathen invaders, centrifugal
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 element in the population. Meanwhile,
the Norse pirates subdued a large tract of what was to be northern
France--a land where Romani were few. Their restless and boundless vigour
these Normans retained; but they showed a wonderful power of
appropriating whatever of 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 opinion that among them there lived
some sound traditions of the Frankish monarchy's best days, and that
Norman dukes, rather than German emperors or kings, of the French, are
the truest spiritual heirs of Charles the Great.
The Norman age.
In our own day, German historians are wont to speak of English law as a
"daughter" of French or Frankish law. This tendency derived its main
impulse from H. Brunner's proof that the germ of trial by jury, which
cannot be found in the Anglo-Saxon laws, can be found in the prerogative
procedure of the Frankish kings. We must here remember that during a
long age English lawyers wrote in French and even thought in French, and
that to this day most of the technical terms of the law, more especially
of the private law, are of French origin. Also it must be allowed that
when English law has taken shape in the 13th century it is very like one
of the _coutumes_ of northern France. Even when linguistic difficulties
have been surmounted, the Saxon Mirror of Eike von Repgow will seem far
less familiar to an Englishman than the so-called Establishments of St
Louis. This was the outcome of a slow process which fills more than a
century (1066-1189), and was in a great measure due to the reforming
energy of Henry II., the French prince who, in addition to England,
ruled a good half of France. William the Conqueror seems to have
intended to govern Englishmen by English law. After the tyranny of
Rufus, Henry I. promised a restoration of King Edward's law: that is,
the law of the Confessor's time (_Lagam Eadwardi regis vobis reddo_).
Various attempts were then made, mostly, so it would seem, by men of
French birth, to state in a modern and practicable form the _laga
Eadwardi_ which was thus restored. The result of their labours is an
intricate group of legal tracts which has been explored of late years by
Dr 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 foreign sources at his command, such as the _Lex
Ribuaria_ and an epitome of the 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 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
attempt to fix upon every landholder, French or English, the amount of
geld that was due from his predecessor in title. Himself the rebellious
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 cousin. The sheriffs, though called
_vice-comites_, were to be the king's officers; the shire-moots might be
called county courts, but were not to be the courts of counts. Much that
was sound and royal in English public law was to be preserved if William
could preserve it.
Royal justice.
The gulf that divides the so-called _Leges Henrici_ (c. 1115) from the
text-book ascribed to Ranulf Glanvill (c. 1188) seems at first sight
very wide. The one represents a not easily imaginable chaos and clash of
old rules and new; it represents also a 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 understood 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 justiciar, Ranulf
Glanvill, or may be Glanvill's nephew, Hubert 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 mass of his subjects. Judges chosen for
their ability were to sit there, term after term; judges were to travel
in circuits through the land, and in many cases the procedure by way of
"an inquest of the country," which the Norman kings had used for the
ascertainment of their fiscal rights, was to be at the disposal of
ordinary litigants. All this had been done in a piecemeal, experimental
fashion by ordinances that were known as "assizes." There had not been,
and was not to be, any enunciation of a general principle inviting all
who were wronged to bring in their own words their complaints to the
king's audience. The general prevalence of feudal justice, and of the
world-old methods of supernatural probation (ordeals, battle, oaths
sworn with 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 frame his case within the
compass of some carefully-worded and prescript formula. With allusion to
a remote stage in the history of 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 original (or, as we
might say, originating) writ; each has its own procedure and its
appropriate mode of trial. The litigant chooses his writ, his 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 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.
Bracton.
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 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.
14th and 15th centuries.
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, 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.
Legal education.
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 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.
Chancery.
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 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.
The Tudor Age.
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 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 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 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.
Coke.
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 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.
Hale.
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 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 Caesar. 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.
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 mercantile law, where the earl of
Mansfield's (d. 1793) long presidency over the king's bench marked an
epoch. It is too often forgotten that, until Elizabeth's reign, England
was a thoroughly rustic kingdom, and that trade with England was mainly
in the hands of foreigners. Also in medieval fairs, the assembled
merchants declared their own "law 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 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 maze of evasive fictions, to which only a few learned
men held the historical 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 Roe, reigned supreme. On the
other hand, that healthy and vigorous institution, the Commission of the
Peace, with a long history behind it, was giving an important share in
the 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 "palladium"
of English liberties, and popularity awaited those who would exalt the
office of the jurors and narrowly limit the powers of the judge.
Equity.
But during this age the chief addition to English jurisprudence was made
by the crystallization of the chancellor's equity. In the 17th century
the chancery had a narrow escape of sharing the fate that befell its
twin sister the star 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 Nottingham (1673-1675) and 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 principal outlines
of equity were drawn by men who were steeped in the common law. By way
of ornament a Roman 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 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 plain man in the jury-box, the chancellors were tempted to
forget how plain and rough good law should be, and to screw up the legal
standard of reasonable conduct to a height hardly attainable except by
those whose purses could command the constant advice of a family
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 rich.
Blackstone.
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 guide to
professional students and a useful aid to practitioners, his book set
before the unprofessional public an 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 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 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 eve of a great and successful rebellion. Yet so it was. Out in
America, where books were few and lawyers had a mighty task to perform,
Blackstone's facile presentment of the law of the 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 march from the Atlantic to the
Pacific Ocean. Excising only what seemed to savour of oligarchy, those
who had defied King George retained with marvellous tenacity the law of
their forefathers. Profound discussions of English medieval law have
been heard in American courts; admirable researches into the recesses of
the Year-Books have been made in American law schools; the names of the
great American judges are familiar in an England which knows little
indeed of foreign jurists; and the debt due for the loan of Blackstone's
_Commentaries_ is being fast repaid. Lectures on the common law
delivered by Mr Justice Holmes of the Supreme Court of the United States
may even have begun to turn the scale against the old country. No
chapter in Blackstone's book nowadays seems more antiquated than that
which describes the modest territorial limits of that English law which
was soon to spread throughout Australia and New Zealand and to follow
the dominant race in India.
Bentham.
Long wars, vast economic changes and the conservatism generated by the
French Revolution piled up a monstrous arrear of work for the English
legislature. Meanwhile, Jeremy Bentham (d. 1832) had laboured for the
overthrow 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 Spain or Russia at the shortest
notice; and, scornful as he was of the past and its historic 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 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 compurgation, deodands and benefit of clergy, John Doe and
Richard Roe. It is perhaps the main 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 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;
Romilly and Brougham were inspired by Bentham, and the great changes in
constitutional law which cluster round the Reform Act of 1832 were
accompanied by many measures which purged the private, procedural and
criminal law of much, though hardly enough, of the medieval dross. Some
credit for rousing an interest in law, in definitions of legal terms,
and in schemes of codification, is due to John Austin (d. 1859) who was
regarded 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
Savigny, the 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-Right--was 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 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 scheme of Roman jurisprudence is not the scheme into which
English law will run without distortion.
Recent changes.
In the latter half of the 19th century some great and wise changes were
made by the legislature. Notably in 1875 the old courts were merged in a
new Supreme Court of Judicature, and a concurrent administration of law
and 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 "socialism" and "imperialism" has
distracted the attention of the British parliament from the commonplace
law of the land, and the development of obstructive tactics has caused
the issue of too many statutes whose brevity was purchased by
disgraceful obscurity. By way of "partial codification" some branches of
the common law (bills of exchange, sale of goods, partnership) have been
skilfully stated in statutes, but a draft criminal code, upon which much
expert labour was expended, lies pigeon-holed and almost forgotten.
British India has been the 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 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 present condition, no one would
think of codifying: notably the law of real property, in which may still
be found numerous hurtful 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
ministry. The quality of legal text-books has steadily improved; some of
them are models of clear statement and good arrangement; but no one has
with any success aspired to be the Blackstone of a new age.
Law reporting.
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 president of the Incorporated Law Society, and
ten members 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 superior courts and the
House of Lords, and the judicial 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 information. In addition the subscriber
receives the chronological index of the statutes published from time to
time by the 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 of "Current Indexes," which are published monthly
and annually, and consolidated into a digest at stated intervals (say)
of five years. The Indian appeals series, which is not required by the
general practitioner, is supplied separately at one guinea a year.
Legal education.
In the 16th and 17th centuries the corporate life of the Inns of Court in
London became less and less active. The general decay of the organization
of crafts and gilds showed itself among lawyers as among other craftsmen.
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 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 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; 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 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 special pleader,
or, in more 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 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 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 admission as attorney or solicitor
should submit to examination by one of the judges, who was to test his
fitness and capacity in consideration of a fee of one shilling. At the
same time 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 examinations were established, and in 1860 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 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 and examinations held is calculated to give
a student a sound fundamental knowledge of general principles, as well
as an elementary acquaintance with the rules of modern English law.
Jurisprudence, Roman law, Constitutional law and International law are
taught, as well as the law of Real and Personal Property, the Law of
Contract and 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 Manchester and at
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.
AUTHORITIES.--F. Liebermann, _Die Gesetze der Angelsachsen_ (1898);
K.E. Digby, _History of the Law of Real Property_; Sir W. Dugdale,
_Origines juridicales_ (1671); O.W. Holmes, _The Common Law_ (Boston,
1881); H. Hallam, _Constitutional History_; W.S. Holdsworth, _History
of English Law_, 3 vols. (1903-9); J. Reeves, _History of English
Law_, ed. W.F. Finlason (1869); T. Madox, _History and Antiquities of
the Exchequer_ (1769); C. de Franqueville, _Le Systeme judiciaire de
la Grande-Bretagne_ (Paris, 1893); Sir F. Pollock and F.W. Maitland,
_History of English Law_ (2 vols., 1898); H. Brunner, _The Sources of
the Law of England_, trans. by W. Hastie (1888); Sir R.K. Wilson,
_History of Modern English Law_ (1875); A.V. Dicey, _Law and Public
Opinion in England_ (1905); Sir J.F. Stephen, _History of the Criminal
Law of England_ (3 vols., 1883); W. Stubbs, _Select Charters,
Constitutional History_; the Publications of the Selden Society and
the Year Books in the Rolls Series. (F. W. M.)
ENGLISH LITERATURE. The following discussion of the evolution of English
literature, i.e. of the contribution to literature made in the course of
ages by the writers of England, is planned so as to give a comprehensive
view, the details as to particular authors and their work, and special
consideration of the greater writers, being given in the separate
articles devoted to them. It is divided into the following sections: (1)
Earliest times to Chaucer; (2) Chaucer to the end of the middle ages;
(3) Elizabethan times; (4) the Restoration period; (5) the Eighteenth
century; (6) the Nineteenth century. The object of these sections is to
form connecting links among the successive literary ages, leaving the
separate articles on individual great writers to deal with their special
interest; attention being paid in the main to the gradually developing
characteristics of the product, qua literary. The precise delimitation
of what may narrowly be called "English" literature, i.e. in the English
language, is perhaps impossible, and separate articles are devoted to
American literature (q.v.), and to the vernacular literatures of
Scotland (see SCOTLAND; and CELT: _Literature_), Ireland (see CELT:
_Literature_), and Wales (see CELT: _Literature_); see also CANADA:
_Literature_. Reference may also be made to such general articles on
particular forms as NOVEL; ROMANCE; VERSE, &c.