FOOTNOTES:

[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.

Encyclopaedia Britannica, 11th Edition, "English Language" to "Epsom Salts" Volume 9, Slice 6 · 第 14 / 39 题