Front Page Titles (by Subject) PART IV.: EXPANSION AND REFORM OF THE LAW IN THE NINETEENTH CENTURY - Select Essays in Anglo-American Legal History, vol. 1
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PART IV.: EXPANSION AND REFORM OF THE LAW IN THE NINETEENTH CENTURY - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 1 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1907). Vol. 1.
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EXPANSION AND REFORM OF THE LAW IN THE NINETEENTH CENTURY
[Other References on this Period:
In Select Essays:
The History of Code Pleading in America and England, by C. M. Hepburn: Volume II.
Changes in the English Law of Real Property during the Nineteenth Century, by A. Underhill: Volume III.
In other Treatises and Periodicals:
A Century of Law Reform, by various authors (1901); chapters on Equity, Corporations, etc.
Two Centuries’ Growth of American Law, by various authors (Yale Studies, 1901); chapters on Equity, Corporations, Property, Evidence, etc.
Treatise on Statutes, by F. Dwarris (1848); a list of reformatory statutes from Charles II to Geo. III, pp. 835-868.
The History of Legislation concerning Property in England, by J. F. de Villiers (1901).
Law Reform in the United States and its Influence Abroad, by D. D. Field, American Law Review, August, 1891.]
ANTICIPATIONS UNDER THE COMMONWEALTH OF CHANGES IN THE LAW1
THIS essay touches on some of the alterations made or suggested by the statesmen and jurists of the Republic in our judicature and in our criminal and civil law. It avoids social, constitutional, and political questions—political, like the union of Great Britain, though that involved an union of laws;3 constitutional, like the abolition and reconstruction of the Upper House of Parliament;4 social, like the establishment of public works for the poor,5 and of a public post-office.6
The goodness of the laws of Charles II., contrasted with the badness of his government, has drawn a compliment from Blackstone, epigrams from Burke and Fox, and a paradox from Buckle. An enquiry into the source of these laws may show that the paradox is unreal, the epigrams unfounded, the compliment due to the Republicans; that they, in redressing grievances which from the time of James and Bacon1 had been fostering rebellion, forestalled the law-reformers, not of the Restoration only, but of our own age.
The legislators of 1641 had struck blindly at all courts which seemed to them arbitrary or peculiar; they had not asked how far these were due to the faults of the Common Law, to the wants of society, to the difficulty of travelling. That year had seen the Privy Council, the Stannary Court, the Forest Court, nominally regulated, but, in fact, paralyzed, the Court of Chivalry abolished by resolution, the Courts of Star Chamber, of Requests and of High Commission, and the right of temporal jurisdiction, which was among the “royal rights” of the Bishops of Durham and of Ely, taken away by statutes. With the Star Chamber the Palatine courts, as far as they were its antitypes, and the Courts of the Councils of Wales and of the North fell to the ground. Nay, it was forbidden to erect such tribunals.2 But the necessity for them was overwhelming: diversity of usage, caused by difference of circumstances, made it possible to pass a bill for the uniformity of law.
Take, for instance, the series of High Courts of Justice constituted to try the King, the democrat Lilburn, the Royalists Hamilton, Holland, Norwich, Capel and Owen, constituted again or continued in 1650, again in 1651, again in 1652, again in 1653, again for the trial of Gerard and Vowel in 1654, again in 1656. Besides these, the jurisdiction of which was national, there was one erected in 1650 for Norfolk and Norwich, Suffolk, Huntingdonshire, Cambridgeshire, Lincolnshire and the Isle of Ely. They were constituted sometimes by Parliament, sometimes, seemingly, by the Executive. They were not meant to be perpetual; but they were meant to reach by Equity crimes and criminals which Common and Statute Law and public opinion would not have reached. Clarendon calls them “a new form.” Rather they were suggested by the Star Chamber, in favour of which the Privy Council and the Chancery had parted with their criminal jurisdiction, which dexterously construed intentions into acts, which (like the High Courts of Justice, as Clarendon taunts them) did away with “distinction of quality” in capital cases, and made “the greatest lord and the meanest peasant undergo the same judicatory and form of trial,”1 equalizing them in the dock as, during the French Revolution, the guillotine equalized them on the scaffold. Clarendon’s sneer, repeated in earnest in St. 1656, c. 3, that these tribunals were “for the better establishment of Cromwell’s empire,”2 in other words, for the maintenance of order, is their apology.
Changes more or less sweeping in the Superior Courts of Common Law and in the Law Terms were proposed. The latter were regarded by the people as of Norman, indeed, of the Conqueror’s institution, and wasted time and money. Nor need we have wondered if, as the early Christians, abhorring Pagan festivals, administered justice daily, so the Puritans, abhorring Catholic festivals, had effaced the distinction between term-time and vacation. However, Michaelmas Term having been shortened so as to suit the farmers, no more was done.3 The alterations made in the Superior Courts embarrassed Chief Justice Foster after the Restoration, but, such was the strength of the Common-lawyers, did not satisfy the reformers.4 Stt. 1649, c. 10, and 165¾, c. 4, only accommodated their forms to those of the new constitution. Fines on declarations were taken away with those on bills and on original writs; but fines on writs of covenant and of entry were left.1 The conflicts of jurisdiction carried on not only between the Common Law Courts and the Chancery and the Admiralty and the Ecclesiastical Courts, but also among the Courts of Common Law themselves, carried on by means of fictions and prohibitions and injunctions, and causing great expense, were a scandalous evil.2 The Committee of Law Reform (1653) dealt with this grievance.3 It would have confined all tribunals within certain bounds, have kept all actions between subjects under that “lock and key of the Common Law”—the Court of Common Pleas, have allowed barristers as well as serjeants to plead before that bench, and every attorney to practise in any court, and have paid the judges by salary and not by fees. Now, it was covetousness rather than desire to amplify jurisdiction, rather even than ambition, which led to those costly conflicts; and therefore such measures, combined with others against judicial corruption, would have abated nuisance. But they could not be carried. A century later Willes, C. J. C. P., proposed that Parliament should open his court to barristers; he was met by the plea that there should be there (as there now is to some extent in the courts of first instance in Equity) a resident bar. In 1834 another attempt was made: in 1840, amid a furious tempest of wind (as Bingham, the reporter, notes), it was repelled. In 1847 the plan of 1653 was accomplished.4
Between the Equity and the Common Law Bar there was a quarrel of old standing; and now that the latter, the soul of the Rebellion, was in the ascendant, the Chancery seemed marked for destruction. Bishops had presided over it, kings had favoured it, its jurisdiction had been extended (substantially, as time shewed, in compliance with the wants and spirit of the age), but illicitly, irregularly, and tyrannically. An injured public declared that it swarmed with “a numberless armado of caterpillars” and “Egyptian grasshoppers;” and in 1653 an act, which never operated, passed for its abolition.1 Meanwhile, it had been reforming itself. In 1649 the Commissioners of the Seals, Whitelock, Keble, and l’Isle, assisted by Lenthal, M. R., in provisional orders, forbade prolix, scandalous, and ambiguous pleadings and set bounds to multiplicity of suits, to suits in formá pauperis and to the granting of injunctions: these were granted often for the sake of the fees, and dissolved by connivance with the Common Law judges, that they, when they went circuit, might not have nothing to do.2 Many other attempts were made by the Commissioners and by the Commons to improve the court. But the “cases” of the latter were “far more precious than their carcases,” and little was done till the Committee of 1653 suggested the best part of Cromwell’s famous ordinance.3 That passed on the 22nd of August, 1654. It was bitterly attacked by the bar,4 and not unjustly; for it aimed with more earnestness than skill at rapidity, simplicity, and cheapness. Its prevailing tendency and that of the orders of 1649 and of public opinion was to deprive Equity of what she had taken from Law, and to protect obligors and mortgagees. Plaintiffs were to give security for costs; as many admissions as possible were to be made by each party; each was to suffer for causing unnecessary expense; witnesses were to be properly examined, but not, it seems, in court. On the other hand, no case was to be heard for more than one day. The schedule again, besides attacking the length of legal documents (“the round-about, Robin-Hood circumstances, with ‘saids’ and ‘aforesaids,’ ” the “huge gaps, wide as meridians in maps,” the reckoning fifteen or eighteen lines to a folio) as an absolute evil, attacked it also as profitable to the lawyers; the answer, that lawyers must be properly paid, indirectly if not directly, was old as Bacon.1 On the whole, though some of the reforms were tacitly adopted by Clarendon, they were not enough; and the best thing which the Commonwealth did for Equity was, not to fuse it with—I find no notion of fusing, but to reduce it to, Common Law. That it did by placing on the Equity Bench Common-lawyers whose political career had made them acquainted with the defects of their own school, and whose antecedents had disposed them to find in Equity one of the grounds of Common Law, to study it as a science, and administer it regularly.2 That view, so rational, so true to history, reconciling Coke and Selden with Bacon, Ellesmere and Hobbes, inherited from Hale by Nottingham, has descended through Camden and Eldon, and, if now out of date, was suited to England in the seventeenth century. England needed Equity, and yet that Equity should cease to be “mysterious,” and “the measure of the Chancellor’s foot.”3
A series of statutes professed to take away all “ordinary jurisdiction,”4 and, no doubt, from spiritual persons, took it and every privilege away. The Courts Christian had long been doomed. They remind those whose hatred of the episcopate had led them to fix on spotted dogs the name of “bishop” that prelacy had been in the ascendant:5 they reminded the many of penance done with paper lantern and in white sheet for heresies and vices;1 of comfort given to tyranny and to popery: the law which they administered was not English, and though intrinsically less obscure, was less easily understood by the people than Common Law: their judges had been corrupt2 and the civilians who pleaded in them unpopular:3 lastly, the time favoured, and the constitution of those tribunals justified, and alteration. Yet ordinary jurisdiction was transferred only, and not entirely taken away: partly it was necessary, and partly it was suited to the age. The business of the Clerical Courts, administrative and litigious, had still to be done; acts regarded in law as crimes did not cease in public opinion to be criminal; tithe was exacted still; property left by testators and intestates had still to be disposed of; clerks had still to be instituted and inducted: these duties were transferred by degrees to lay hands.4
On the civil side of the Spiritual Courts analogous changes were made, such as Bacon might have recommended,5 such as have nearly all been since carried out. All questions about tithes—“Norman” though they were—were tried at Common Law.6 As to probate and administration: Bacon and Selden had argued that, by the Civil and the Canon and the English Law, the profane hand has a better right than the sacred to grant probate, to distribute legacies, to administer the property of intestates;7Brown v. Wentworth and Hensloe’s Case were recent authorities in their favour,1 and another was the practice of civilized Europe,—France, and especially Brittany, excepted.2 In 1653, accordingly, a temporal tribunal was erected and endued with the powers of the Consistory and Prerogative Courts: it consisted of twenty judges, five of whom were a quorum; among them were Cooper, afterwards Lord Shaftesbury, Hale, Desborough, Cock, Peters, and Rushworth. The measure was crowned by the establishment of district registries for all wills and for letters of administration.3 Legacies were to be sued for at Common Law.4 St. 165, C. 43, appointed delegates to try the validity of questionable marriages.5 The effect of all this was to replace Ecclesiastical by Common Law, not simply to bound the jurisdiction of the former by the latter.6 “I would not have law bookes to be dealt withall like the Common Prayer Booke, which as (sic) happily laine aside like an old caske for its ill savour,” says John Coke, solicitor-general at Charles’s trial, and afterwards Chief Justice of Munster, “but refined, purged, and conformed to Right Reason, speedy justice, and consconable (sic) Equity. Let his expurgation be, at the first dash, of all matters ecclesiastical and bishops’ appurtenances, for what feare is there to expel that brats (sic) having banisht the father?”7
A mercantile country found our marine courts necessary, but in need of reform. Their judges were deputies, often without experience8 and often inclined by covetousness or by ambition to stretch their powers. During twenty years the Republicans settled and restrained their civil jurisdiction by statutes:1 and, when these were set aside at the Restoration a bill embodying them was brought into Parliament and supported by Sir Leoline Jenkins.2 St. 1649, c. 61, vested in the Common Law Courts (and presumably took from others) jurisdiction over crimes committed on or beyond the seas: St. 1650, c. 7, however, explained that the Court of Admiralty had such jurisdiction still. Letters of marque were granted though under restrictions.3 Stress of war and ignorance of Political Economy made the Commonwealth pass Acts of Navigation and maintain the pressgang.4 But impressment was balanced by high wages, short periods of service, provision made for disabled seamen and for seamen’s families. Stt. 1650, c. 28, and 1651, c. 22, perpetuated with aggravations in 1661 and 1663, approved by Blackstone, approved by even Adam Smith and Brougham,5 were not repealed till 1854.
District courts to try small causes were in demand: not only such as have been erected since 1846, but more like those which Smith, J., and the Solicitor-General have lately recommended.6 The sheriff’s county court, the hundred court, the freeholder’s court baron, had become inadequate, and were too often obliged, by writs of pone accedas, recordari and false judgment, to send cases up to the Superior Courts, there to be slowly and expensively decided. In Bacon’s time the subjects of England did already fetch justice somewhat far off, more than in any other nation that he knew, the largeness of the kingdom considered; nor did the circuits nor the Courts of the Councils of Wales and of the North, which he compared to the French Parliaments, and to which he would have added a Border Court at Carlisle or Berwick, meet the want.1 The inconveniences flowing from that practical denial of justice to those rustics who had sustained slight injuries or had little debts outstanding conspired with fashion to centralize England in London. The determination of wealth and ability to the capital had been resisted by Tudors, Stuarts and Republicans with futile measures against building and absentees.2 But the Republicans were for resisting it also by improving the judicial and administrative system of the country. Carey in 1627 had turned to Spain, then in many respects another and a better England,3 and asked for district courts with a summary jurisdiction such as he saw there.4 The first steps taken by the Long Parliament were even in an opposite direction: it abolished all courts of the kind, and, no doubt, their scope, like that of the Stannary Court according to Clarendon, “had been extended with great passion and fury.” But in 1645 complaint was made of the tedious journeys to Westminster: in 1648 Carey’s request was renewed and a proposal made that all Superior Courts but that of Parliament should be swept away; and many a pamphleteer joined in the chorus:—“Let the people have right at their own doors.”5 In answer, the Palatine and the Duchy Court of Lancaster were revived by statute under Bradshaw and others, courts of conscience were established and county judicatures planned for England, courts baron were erected in Scotland and manorial courts6 in Ireland.
I pass from the courts to the attorneys, barristers, and judges. The first, not long distinguished from the second, had multiplied with the increase of business, and, on the abolition of arbitrary courts in 1641, those of them who had practised in these, and were called solicitors, flooded the Court of Chancery. There, though much of the work done by their modern representatives was then done by clerks of the court acting as the suitors’ agents, they were very useful and very unpopular. The Commissioners of the Seals and Cromwell regulated both them and the clerks.1 They tried also to regulate counsel’s fees,2 but (because these had risen naturally) without success. They did not perceive how much the Common-lawyers had strengthened their position by their action in the Rebellion. It was recommended in 1645 and 1649, and proposed in 1653, that no one practising at the bar should be a M. P.3 That attempt to revive the Ordinance of 1372 would have been justified if the Lower House had sat as a law court; but, even so, had it not failed, it would have deprived the bar of those political instincts which may impair its scientific perfection, but, at least, keep it in the stream of national life.
On one important point the Republicans were beyond their age. Parliament recommended Cromwell and his Council “to take some effectual advice with the judges for . . . reviving the readings in the several inns of court, and the keeping up of exercises by the students there.”4 Among the Equity judges and those of the Court of Probate and Administration there were some laymen, and there were to have been others in the county judicatures. These were not welcomed by the lawyers,1 and, no doubt, they did some harm; but they were “expert assessors,” and also they brought public opinion to bear, as it is now brought by the Press to bear, upon jurisprudence and legal proceedings. Like the assessors in France and Germany, like those suggested by the Judicature Commission, and even like a jury, they gave the judicium to the lawyers’ jus. That separation of duties, says Mommsen, and the tendency of pleadings to a clear issue, were the distinctive excellences of Roman Law.2 On the abolition of the House of Lords some of the Common Law judges, Hale, Rolle, Saint John, sat in the Commons. The practice of appointing judges “during their good behaviour” was that of Spain and of mediæval England, and was once, at least, adopted by Charles. Under the Commonwealth it was established, and after the Restoration it was by degrees, in the course of a century, established again.3 Up to the time of the Great Rebellion judges had bought their places for fabulous sums, and had received in fees, bribes, and perquisites sums equally fabulous;4 and the inequality of their incomes led to the conflicts of jurisdiction of which I have spoken. The Puritans struck at the root of this: they seized the notion that a law court is for the advantage of the community—not a shop having the monopoly of a certain kind of justice; they laid the foundation of the suitors’ fee fund; they had all fees paid into a public account; they gave the judges fixed, but handsome, salaries; they did their best to check judicial simony.5
Partly principle, and partly necessity, compelled the Puritans to respect scruples about oaths and affirmations. Some of the sects were too strong to be oppressed; and, again, “variers” had the countenance of public opinion as long as they were “pious,” and their variations within limits. A bill drawn by the Committee of 1653 did away with promissory oaths on admission into universities, corporations, societies, companies, and with homage and fealty, and retained only oaths on admission to public offices. This anticipation of Locke and Berkeley and Bentham and even the Victorian legislation was due partly to dissent from the doctrine of the 39th Article, and partly to a sense of the harm done by multiplying oaths.1
But how imperfect was this tolerance! Stat. 1650, c. 27, repealing the Elizabethan statutes which enforced attendance at church, itself enforced attendance at some place of worship. The favour shown to the Hebrews, as much for pecuniary reasons as for religious,2 did not extend to Secularists, Friends, Socinians, Roman and Anglo-Catholics. Such as it was, the Restoration put an end to it, and, in spite of the efforts made in 1668 by Hale and Bridgeman, it but slowly obtained once more. Gould, J., allowed witnesses to hold up their hands after the ’45 and in 1786: so did Wilson, J., and the Recorder of London in 1788; and so in 1791, after some demur, did Lord Kenyon.3 The philosophical views contained in the Report of the Oaths Commission, and more fully in Mr. Denman’s bill, hardly existed under the Commonwealth.4
Legal proceedings and literature were in Latin or in French. The reformers demanded what Coke had advised,1 that they should be in English. The French, they said, was “pedlar’s” and “hotch-potch,” the Latin “barbarous” and “quelque chose,” and the only use of them was to give lawyers a monopoly of advocacy.2 In 1650 and 1651, Parliament, complying with a petition from the army and with the general wish, enacted English should be the language of law, committed to the Speaker, the Commissioners of the Seals and the three Heads of the Common Law Courts the supervision of the translators, and prohibited the use of court-hand. Only the proceedings in the Admiralty Court were to remain in Latin—the successor of Spanish, the predecessor of French—as the diplomatic and international language. In 1651 the Upper Bench made a rule in English, and afterwards, while the Commonwealth lasted, all courts, even those of manors, recorded their proceedings in the vulgar tongue.3
The reporters forewent the use of their “peculiar dialect,” now under protest, evasively, and with regret,4 now with cheerfulness, and even enthusiastically.5 French and Latin were restored with Charles. The Wimbledon rolls were again kept (all but the returns to precepts) in the latter; cases, even those decided under the Commonwealth, appeared “in their native beauty” in the former.6 But in ten years there was a cry for the late convenience;7 and in seventy years an act, bitterly opposed, almost neutralized two years later, and productive of some bad consequences, revived the statutes of 1650 and 1651.1
It is no wonder either that the Republican jurists should have desired a code, or that they should have failed to make one. The outline of a code had been partly and roughly drawn; the need for one was urgent; the necessary science wanting. The outline had been drawn: authorities had been published in great numbers since 1640, some for the first time—writs, original (by Hughes) and judicial (by Brownlow); “Bracton;” “Britton,” Bishop of Hereford, or whoever else; “The Mirror,” in French and in English; Fitz-Herbert’s “De natura brevium;” the last three parts of “The Institutes.” Cases and statutes had been abridged—statutes by Wingate and by Hughes; Coke’s reports by Trotman, Dyer’s by Ireland, Brooke’s by March; while Shepherd had abridged statutes and cases too.2 Digests, more or less systematic, had appeared—Swinburne on “Wills,” Bacon on “Uses,” Wingate’s “Statuta Pacis,” Shepherd’s “Parson’s Guide;” not to speak of Lambarde’s and Selden’s researches, West’s “Symboleography,” Brownlow’s “Declaration and Pleadings.” All these suggested something more, and made it seemingly feasible. “It is fit,” said Sir Anthony Ashley Cooper, “that laws should be plain for the people.”3 To make them plain, John Coke proposed to clear them of everything, “either properly and directly, or collaterally and obliquely, repugnant to the law of God,” a method which he may have pursued in Ireland,4 and which had been pursued in the Judaized code of New England.5 Ten years later Bulstrode wished “to file off the rust” from the laws, and to reduce them “into a sound and solid body:” the task would be heroic, and those who did it the founders and restorers of our laws.1 Parliament, meanwhile, had been less idle than ineffectual; it appointed a Committee of Law Reform; it read the book containing the whole system of the law which that committee composed; it ordered three hundred copies of it to be printed; and, after that, all Cromwell’s persuasion could not induce it to do any more.2 The truth is, that the Dutch or Swedish simplicity which Hugh Peters demanded3 was possible only in the United Provinces or in Sweden, and that the reformers were exorbitant. Still codification was desired. In 1666 a committee was appointed under Clarendon to make a code,4 and Hale’s “Pleas of the Crown,” and his “Analysis of the Civil [rather, of the non-criminal] Part of Our Law,” are torsos of parts of the code of the Commonwealth. On the latter, though neither exhaustive, nor free from cross-divisions, a system might have been built far more palatial and perfect than Blackstone’s; and, comparing those sections of it which correspond with the “Synopsis totius Littleton analytice” (1659), we see how near the Puritans were to that Baconian “reduction and recompilation of the laws” for which we wait. Mr. Fitz-James Stephen contrasts the “Pleas of the Crown” with the “Third Institute,” as a code with a digest; and Professor Amos says that though Hale has not extended his supremacy over the whole see of the Criminal Law, he was peculiarly qualified for the Papal Chair.5 A criminal code is easier to make than a civil, and perhaps more useful: the magistrate is never a more successful schoolmaster than when he teaches from such a textbook; and the value of a civil code to the laity was even more exaggerated under the Commonwealth than it now is.
In what is commonly though too narrowly called Criminal Law the Republicans made few improvements. As to treason and rebellion, that necessity of preserving some constitution which created High Courts of Justice must answer for their proceedings. As to other crimes, reforms were planned, but (so inadequate were conceptions of the dignity and value of the individual) few of these were carried out, and some measures were proposed and contemplated which were retrogressive. In 1648 it was suggested that treason, rebellion, and murder only should be capital, and that other felonies should be punished by fines or by servitude to the person injured.1 The Committee of 1653 proposed to discontinue pressing to death in default of pleading,2 to acquit (without penalty or forfeiture, pardon or deodand) justifiable and excusable homicides, to punish principals in manslaughter and accessories before the fact with judgment of death without forfeiture or corruption of blood, and accessories after the fact with forfeiture and five years’ imprisonment;3 to abolish “clergy;” to repeal the law approved by Selden “of devoting to the flames those wicked baggages who stain their hands with the nefarious murder of their husbands.”4 Then acts were passed—one, embodying another of their proposals, against provocations to duels;5 one against those who encouraged others in extravagance;6 others against cockfights and horseraces.7 But the imaginary offence of witchcraft was left criminal; deer-killing was punished by a fine of £15 or a year’s imprisonment; acts, sinful or vicious rather than criminal, were punished; incest, adultery, and repeated fornication were punished with death; so the Committee were for making bigamy capital, and cutting off the right hand of a murderer before hanging him.1 In 1649 Whitelock inveighed against the inequality of punishment; and in 1656 Cromwell repeated his invective.2 One doctrine of Whitelock’s was accepted by the Committee: it was that criminals prosecuted by counsel should be defended by counsel; that criminals should have copies of their indictments, and that their witnesses should be heard on oath. But it seems to have been thought that criminals had already too many chances, and therefore these rights and that of appeal were denied them.3
The law of marriage, in a country such as this, is almost the groundwork of the law of property. The variety, the occasional contempt of ceremony in which the Puritans indulged, the downfall of that hierarchy which had taken cognizance of matrimonial affairs, made legislation unavoidable. A form of solemnization had been prescribed by the Presbyterian Directory, but was regarded with ridicule by Churchmen, with suspicion by those who prescribed it; others did not regard it at all.4 The Committee of 1653 proposed a new order: it became law that year, and in 1656 ceased to be compulsory, but, as optional, was ratified. It directed three weeks’ advertisement to be given in Church, chapel or market-place of intended marriages; the parents’ or guardians’ consent to be obtained; the form to be a mutual agreement expressed before a justice of the peace: girls below fourteen and boys below sixteen were not to be married.5 That statute unwittingly revived something of the practice of Christian antiquity; then the faithful, though he might hallow his union by the benediction of the Church, yet, hating paganism, and perhaps being of the lower orders, would avoid anything like confarreatio, and, as a Roman citizen, would be bound by the civil contract only; it also anticipated our statute of 1837, and even the French codes.1 In accordance with it, the daughter of Saint John, C. J., was married in his presence; and in actions of debts and of ejectment marriages between Friends were held valid. But at the Restoration the greater part of these irregular rites were and had to be confirmed.2 The statutes of 1645 and 1653 improved also on the Tudor and Stuart registration system; that system did officially what private records (such as the Liber obitalis at Queen’s College, Oxford) had long done; it chronicled the performance of baptisms, weddings, and burials. The Republican method chronicled the occurrence of the birth, the making of the marriage contract, but the burial—not the death.3 The statute of 1650 against incest being penal, marriages took place within degrees which it did not prohibit, though the law existing did: many of these were pronounced invalid after the Restoration.4 Women were deservedly influential among the Republicans; men’s extravagance was restrained by statute; a bill intended to restrain women’s, and much needed, was thrown out; and, not to speak of other movements in their favour, the protection given under Charles II. by Hale and others to wives against their husbands.5
That men’s titles to their estates in land should be thoroughly known had become of great importance. Many an acre had been sequestrated and brought into the market; the market was full of powerful capitalists. Never had registration been in greater request. As long as landed property was transferred by physical delivery, so long its transfer was notorious to those to whom it was likely to pass.1 And though that form, like mancipatio in Rome, was abandoned on account of its awkwardness, there was a custom of selling “book-land” at the sheriff’s county court, and of recording the sale at the nearest monastery in a cartulary or in a m. s. of the Gospels or in a “land-book,” and these were sometimes placed on the Altar. Such a register, but of the house’s own title, is the Liber Evidentiarum of S. Augustin’s at Canterbury.2 Analogous to these records, dating from the earliest English times, were the court rolls of manors, as those of the manor of Taunton and Taunton Deane. But now monasteries had been swept away; the Statute of Inrolments did not apply to counties palatine and to many corporate towns, and was not regarded in one case out of an hundred.3 How many law suits were due to the want of a land registry we know from Hobbes4 and we might guess from the establishment of such institutions for soldiers’ debentures, and for the sale of Church, Crown, and Royalist property.5 There were even proposals for county registeries: sales not recorded in them within a certain time were to be void; land, the sale of which was so recorded, was not to be subject to any incumbrance. But, because the Committee could not, after trying for three months, settle what an incumbrance was, the proposal fell to the ground, and registration was left permissive, that is, nugatory. “The English people,” said Cromwell, “will take Ireland, which is as a clean paper in that particular, for a precedent; and when they see at how easy and cheap a rate property is there preserved, they will never permit themselves to be cheated and abused as they now are.”1 And yet the advocates of registration had not wholly failed. The Bedford Level was a creation of the Republicans; to them it owes its registration system:2 to them also are due, however remotely, the acts for Yorkshire, and Kingston, and Middlesex, the Victorian legislation for Ireland, the permissive statutes of 1862.3 Pierrepoint objected to their schemes, the injustice done to persons nominally entitled, and the expense.4 Hale was on the other side.5 But a student of the history of land registries in England may well doubt whether any one interested in land desires them. As Hale said, every feature of the title must be inrolled, “as well for the time past as for the time to come; otherwise the plaister is too narrow for the sore . . . for, if any one leak be left unstopped, the vessel will sink as if more were open.”
The law of personal property was at this time more important than that of real. Personal property, when employed in agriculture, had still a far higher relative value than it now has;6 and commerce was on the rapid increase. Cases like Twyne’s7 of mercantile immorality, connoting mercantile enterprise, complicating law which otherwise might have been as simple as the Swedish;1 the growth of banking;2 the fact that the Jacobean and Caroline exactions were so long borne; the evidences of Bacon, Mun, and Clarendon3 —all convince us of this. One result of that increase was that the mantle of Equity thrown by Ellesmere over the mortgagor was taken from him. Another was that debts, hitherto assignable by and to the Crown only, were made assignable by and to any one; hence that development of the law as to bills of exchange (especially necessary to commercial intercourse when the exportation of the precious metals was prohibited) which had taken place in Spain, took place in England.4 Then, besides the minor courts of which I have spoken, means were proposed of recovering small debts and debts due from corporations.5 Again, notwithstanding the jealousy of monopolies, inventors received patent rights, even if they did not come within the statute of James.6 The Statute of Fraudulent Devises was forestalled; and even that of Frauds and Perjuries, suggested by Hale to Nottingham, brought in by him, enlarged and revised by Guildford and Jenkins, may well have been planned by the Committee of 1653.7 Lastly, bankruptcy acts protected the unfortunate and sent the dishonest to be tried by a jury; imprisonment for debt, though no doubt unnecessarily cruel, and bitterly attacked, particularly by prisoners, was well and successfully defended.8
The frequency of sales of confiscated land, the unwillingness of purchasers to take a parliamentary title, the outcry against feudal and manorial rights, drew men’s eyes to the law of realty. “It were convenient,” wrote an essayist in 1648, “that there might be no estate but absolute, for life or inheritance, without conditions and entayles, whether given by will or purchased by deed in writing; and this would shorten all suits about estates.” Such a change, though considered, was never brought about,1 and another proposal of the essayist, that all customs should be assimilated, was rejected, even as to the customs affecting the inheritance of the land. But every temptation and security was offered to purchasers.2 James had consented to the sacrifice of many feudal incidents on condition of being repaid by fee farm rents. Gustavus Adolphus had abolished purveyance in Sweden; the Republicans abolished it in England, and, with it, billet and free quarter. They put an end to the Courts of Wards and Liveries, to wardships, liveries, primer seisin, ouster-le-main, and charges incident to these, to homage, to fines, licenses, and seizures for alienation of lands held by tenure in chief; they turned into common socage all higher tenures. The profits to the State from these were replaced by a real land-tax, itself replaced after the Restoration by an increase of the Republican excise.3 Then it was proposed to take away fines and recoveries, and to compel by simple means the payment of rent.4 Trusteeship to preserve contingent remainders was invented to evade the confiscatory acts; as from the statutes against Romanists so much else in conveyancing flowed.5 It would have been rash to disregard the claims of “the common people,” as the copyholders (in opposition to the gentry and the freeholders) were then and long afterwards called,1 for these had been led to think that the success of the Parliament would relieve them of their “Norman” lords.2 Accordingly, it was proposed to ascertain arbitrary fines upon the descent and alienation of copyholds, and to place the conditions of the tenure beyond the discretion of the homage.3 Many copyholds were actually enfranchised; but many, even of those confiscated, were still demised by copy of court roll and not otherwise. Commonable rights were not so far recognized that commoners were allowed to break up common land.4 The allotment system instituted under Henry VII, carried out under his grandchildren, recommended by Bacon, but already decaying, was partly restored, and there were fewer “silly” cottages.5
But, after the Restoration, Parliament continuing to the greater tenures the relief afforded to them under the Republic, but substituting an excise for a land-tax, left the lesser tenures exposed to the old abuses. That, as North says, “was somewhat unequal.”6
What would have been the economical effect of these changes? Would Coke’s copyholder,7 if his land, enfranchised during the Commonwealth, had not been reinstated at the Restoration, have escaped being bought up by capitalists? Would a land registry have preserved or aided to extinguish a peasant proprietary? Would the annihilation of equities of redemption have favoured any but the rich?
If we contrast the legislation of the Commonwealth with that of Frederick the Great, or with that of the French Revolutionists, or even with our legislation for India, we are struck by its poverty of principle, by its abundance of anomalies. How shall we account for this? The English had more learning than thought. They were not sufficiently nor critically acquainted either with Roman Law or with Comparative Nomology. They were illuminated, not by Philosophy, but by a misconception of what had been the religion of the Hebrews. They were slightly instructed in Philology (as opposed to Latin Literature), still more slightly in Natural Science, Political Economy, and other sciences and quasi-sciences ancillary to jurisprudence. They had chaos before them, and they had not, except in Ireland, “a clean paper” to work upon. Such a fair field lay in Prussia,1 in France, in India, and lies in Russia now. We in England have the materials which they had, but better digested; we have those sciences. Philology has redeemed Law from barbarism2 ; Political Economy and Natural Science have supplied it with principles. No solicitor-general and chief justice would propose John Coke’s theocratic reform of our statutes and leading cases. Not an Hale only, but ordinary students in our universities, read Roman Law by the light of Roman History and the History of Philosophy.3
We look at the systems of the Hebrews, the Spaniards, the Dutch, the Swedes, not with the contracted vision of the Republicans, but comprehensively, as critics should. And yet—I mean, and therefore—we cannot sneer with Blackstone at the crude and abortive schemes for amending the laws devised in the times of confusion.
BENTHAM’S INFLUENCE IN THE REFORMS OF THE NINETEENTH CENTURY1
“BENTHAM’S theories upon legal subjects have had a degree of practical influence upon the legislation of his own and various other countries comparable only to those of Adam Smith and his successors upon commerce.” Such is the opinion of Sir James Stephen concerning the influence and effect of Bentham’s legal writings and labors.3 As late as 1874 Sir Henry Maine went so far as to declare: “I do not know a single law reform effected since Bentham’s day which cannot be traced to his influence; but a still more startling proof of the clearing of the brain produced by this system [the system of Hobbes, Bentham, and Austin], even in an earlier stage, may be found in Hobbes. In his ‘Dialogue of the Common Laws,’ he argues for a fusion of law and equity, a registration of titles to land, and a systematic penal code,—three measures which we are on the eve of seeing carried out at this moment.”4 Opposite views are entertained by others. It is worth while, therefore, to essay to define Bentham’s place in the history of our law, and to attempt an estimate of the character and influence of his writings; and such is the purpose of this hour. Bentham’s fertile and active mind embraced in the scope of its operations many other subjects than those of law and legislation, such as ethics, political economy, political reform, and even practical politics. Nevertheless, his principal attention was given to the English law and to the mode by which its improvement could best be effected; and this lecture will be restricted to his writings and labors concerning English law and the method of reforming or amending it.
It is essential to a correct view of the character and value of Bentham’s labors to bear in mind the period of time covered thereby, and also the condition of the English law especially as it existed when his efforts for its improvement were begun.1 Jeremy Bentham was born in London in 1748. In 1763, at the early age of sixteen, he was graduated with honors at Oxford. He was in due time called to the English bar. His first work, the Fragment on Government, being a criticism on a portion of Blackstone’s Commentaries, was published (anonymously) in 1776; his attack on Usury Laws in 1787; his Panopticon in 1791; his protest against Law Taxes in 1796; his great work (Dumont’s Edition, in Paris) on Legislation, Civil and Criminal, in 1802; on Codification in 1817; on Rewards and Punishments (Dumont’s Edition) in 1818; on Judicial Evidence, in Paris, in 1823, English translation thereof in 1825, and from original English manuscripts, edited by John Stuart Mill, in 1827. I omit in this enumeration, as not essential to my present purpose, some minor works concerning law or legislation, and many important writings relating to education, prison discipline, political reforms, morals, and kindred subjects.
Bentham was, broadly speaking, contemporary with what may be styled the legal reign of Eldon. The common law in its substance and procedure was by everybody in England regarded with a veneration superstitious to the verge of idolatry. It was declared, and generally believed to be, “the perfection of reason.” Lord Eldon and the Court of Chancery, with its suitorcide delays, “pressed heavily on mankind.” Imprisonment for debt, and distress for rent with all its harsh and oppressive incidents, were in unabated force. The criminal law, defective and excessively technical, abounding with capricious and cruel punishments, and which denounced the penalty of death on about two hundred offences, remained in a state which no one any longer hesitates to pronounce outrageous and shocking.1 It was on this system that Bentham, when he was under thirty years of age, solitary and alone, commenced the attack which he incessantly continued until his death in 1832, at the age of eighty-four. He was a multiform man; but it is as a law reformer that he stands the most conspicuous and pre-eminent. He had all the personal qualities of a reformer,—deep-hearted sincerity, unbounded faith in his own powers and self-sufficiency, unwearied zeal, and dauntless moral courage.2
One who should not bear in mind the peculiar aversion of the English people to innovation, the inveterate conservatism of the bar, and the awe and reverence with which they regarded the existing system, might suppose that the work of amendment would readily follow when the defects were pointed out. But Bentham’s voice for nearly fifty years, so far as England was concerned, was like that of one crying in the wilderness. Parliament did not heed it; the bar did not heed it; nobody heeded it. For quite twenty-five years he seems to have had no following beyond Mill, senior, and a few other personal friends. Happily for him he had a competence and was able to give his days and nights to the work to which he had resolved to consecrate his life. Happily, perhaps, also, he had no domestic cares or distractions, being without wife or children. Bowring preserves an affecting letter from which it appears that at one time in his earlier life a lady had engaged his affections and rejected his proposals. In a letter written long, long years afterwards to the lady herself, the Recluse says: “I am alive, more than two months advanced in my eightieth year,—more lively than when you presented me in ceremony with the flower in Green Lane. Since that day not a single one has passed in which you have not engrossed more of my thoughts than I could have wished.” He concludes: “I have a ring with some snow-white hair in it and my profile, which everybody says is like; at my death you will have such another;” and then playfully, perhaps pathetically, adds, “Should you come to want, it will be worth a good sovereign to you.”
There is in this a genuine touch of nature! Alike in peasant, prince, poet, and philosopher, the human heart, once truly touched by love, becomes thence like the ocean,—restless and insurgent evermore. Amid all his engrossing pursuits, in which he wholly shut himself out from society, and indeed from every person but a few friends whom he would occasionally meet when the toil of the day was over, the vision and the memory of the giver of the flower in Green Lane, pushing aside for the while Codes, Panopticons, Chrestomathias, Pannomions, and all such, were, he confesses, present to him every day. But although “along the plains, where Passionate Discord rears eternal Babel, the holy stream of wedded happiness glides on,” it glided not on for him, but passed him by irreversibly. One so thoroughly absorbed in work which he regarded as so pressing and so important to the world, would have made, it is to be feared, a poor husband, just in proportion as he was a devoted philosopher. Doubtless she judged wisely. It was well for her, and perhaps well for him, that he never saluted the woman who gave him the flower in Green Lane with the tender and sacred name of wife.
In forming a judgment of Bentham’s work and of the way he did it and of the efficiency of that way, it is almost as essential to see how he regarded the English law as it is to inquire precisely how far his opinions were correct. Bentham’s voluminous writings leave no doubt as to his views concerning English law. There was no health in it. Admitting, as he did, that the legislative enactments and the reports of adjudged cases contained more valuable materials for the construction of a system of laws than any other nation in the world possessed,1 he yet maintained that the existing law, so far from being the perfection of human reason or the product of matured experience, was (to use his own language) but “a fathomless and boundless chaos, made up of fiction, tautology, technicality, and inconsistency, and the administrative part of it a system of exquisitely contrived chicanery, which maximizes delay and denial of justice.” Thus viewing it, he saw no remedy but its overthrow and destruction as a system, and rebuilding it anew, using old materials as far as they were useful and no farther. He regarded the whole system, as I have often thought, with much the same feeling that the French people contemporaneously looked upon the Bastille, as a monument of feudalism, oppression, and injustice, fit only to be destroyed. Blackstone, on the other hand, viewing the system with the optimistic eyes of the age in which he wrote, compared it, in his inimitable style, to “an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult.”1 What could be more charming, what more desirable! All the interest and grandeur that attach to a structure at once imposing, venerable, and historic, combined with the convenience that results from its being already fitted to the amplest modern uses,—the only defect being, if, indeed, it is such, that the approaches may be (he does not feel quite sure that they are) somewhat winding and difficult.
Bentham’s claims upon our regard will not be duly valued unless we keep ever in mind the difficulties which he was called upon to face. He stood alone. For more than twenty-five years he stood absolutely alone. But like Milton (whose London house it was Bentham’s pride to own, although it was one of his peculiarities that he utterly disesteemed poetry),—like Milton in his blindness, through all neglect and discouragements, Bentham “bated not a jot of heart or hope, but still bore up and steered right onward.”
I have not the time, if I had the power, adequately to present a picture of the obstacles Bentham met with. And yet I must not pass these entirely over, as they are the background of any portraiture of the man and his work. There was the traditional, constitutional, ingrained aversion of the English people to innovation, combined with their idolatrous regard for the existing order of things.2 It is worth while to illustrate this. Burke was undoubtedly the most enlightened statesman of his age,—one of the profoundest political thinkers and philosophers of any age. In one of his greatest speeches3 he thus expressed in his felicitous way the traditional and habitual regard of the English mind for the established Constitution and for ancient acts of Parliament:—
“I do not dare to rub off a particle of the venerable rust that rather adorns and preserves than destroys the metal. It would be a profanation to touch with a tool the stones. I would not violate with modern polish the ingenuous and noble roughness of these truly constitutional materials. Tampering is the odious vice of restless and unstable minds. I put my foot in the tracks of our forefathers, where I can neither wander nor stumble. What the law has said, I say. In all things else I am silent. I have no organ but for her words. If this be not ingenious, I am sure it is safe.”
Again, in 1791, speaking of the English Constitution, Burke says:—
“We ought to understand this admired Constitution (of England) according to our measure, combining admiration with knowledge if we can, and to venerate even where we are not able presently to comprehend.”1
Than this nothing can be more opposed to Bentham’s mode of thought, since he would take nothing for granted, and would not, he said, admit murder or arson or any other act to be wrong unless it could be shown by reasoning to be so. I find in Henry Crabb Robinson’s Diary2 another contemporary illustration of the difficulty of attacking things established, so pertinent that it will excuse its irreverence. He relates that in 1788 a deputation of distinguished men waited on Lord Chancellor Thurlow to secure his support in their attempt to obtain the repeal of the Corporation and Test Act. The Chancellor received them very civilly, and then said: “Gentlemen, I’m against you, by G—. I am for the Established Church, d—me! Not that I have any more regard for the Established Church than for any other church, but because it is established. And if you can get your d—d religion established, I’ll be for that too!” This national peculiarity, as well as the natural conservatism of the bar, had been greatly intensified by the French Revolution. As late as 1808 Sir Samuel Romilly, speaking of his own parliamentary labors and discouraging experience, says: “If any person be desirous of having an adequate idea of the mischievous effects which have been produced in this country by the French Revolution and all its attendant horrors, he should attempt some legislative reform on humane and liberal principles. He will then find, not only what a stupid dread of innovation, but what a savage spirit it has infused into the minds of many of his countrymen.”1
Eldon was for a quarter of a century Lord Chancellor. It is certain that he never originated a reform act; and if he ever favored an act which could be fairly said to have been intended to amend the law, I do not recall it. It was difficult and almost impossible to pass any act which Eldon disapproved. He considered the existing system as perfect; or if not, that if the least innovation were favored or allowed no one could tell where it would stop, and therefore the true course was to destroy all innovation in the egg. He was “accused by Bentham of nipping in the bud the spread of improvement over the habitable globe.”2 And yet I love old Eldon. He could not help his impenetrable and incorrigible conservatism. He was sincere and immovable in his sincerity. If he was true to his party and “never ratted,” he was also true to his heart and conscience and sense of duty. No breath of suspicion ever rested upon him or the absolute purity of his court. What a great advance had been made from the time of Bacon to the time of Eldon. Eldon had, moreover, the qualities of a great judge. He loved right. He hated wrong. He appreciated arguments of counsel and freely heard them. He was deeply learned in his profession. His judgment was sure-footed. His love of justice was so great, his sense of the fearful responsibility attaching to the exercise of judicial power so keen, that he habitually hesitated and doubted; but his doubts and hesitations all had their origin in the dread of doing injustice, and a noble anxiety to know and to do the right. If he vigorously resisted amendment or change in our law, he as vigorously protected and conserved existing excellences and merits. Again I say I love old Eldon! With all his ultra-conservatism and dubitations,—his only defects,—I love his sturdy, genuine, honest nature. I have said this that you might not conceive an undue bias against Eldon from what Sydney Smith, Bentham and other Whigs have said of him and his court.
The libel laws even were in Bentham’s way. Not to mention other instances, as late as 1811 there was difficulty in obtaining a publisher for the “Introduction to the Rationale of Evidence.” More than one bookseller declined, giving as a reason that the book was libellous. The “Elements of the Art of Packing,” which lay six years printed but unpublished, had alarmed the “trade,” and it never was fully published until after Bentham’s death. But Bentham kept right on. At length he began to attract the attention of a few gifted minds. One of the earliest of these was Sir Samuel Romilly, who of all English lawyers is, as I think, the one that nearest approaches a perfect model.1
Romilly excepted, no persons in England of distinction or official influence acknowledged adhesion to Bentham’s doctrines until the early part of the present century. Among the most eminent of these was Mill, senior, the father of the still more eminent John Stuart Mill. Mill, the father, and his family were for years members of Bentham’s household; and Mill was one of the ablest exponents and advocates of Bentham’s doctrines. Afterwards came Bickersteth (subsequently Lord Langdale, Master of the Rolls), who was the well-beloved disciple; for not long before the master’s death he received his benediction in these words: “Of all my friends, Bickersteth was the most cordial to law reform to its utmost extent.” Then came Brougham and Sir James Mackintosh, and at a later period others. Romilly, Langdale, Brougham, and Mackintosh each held seats in Parliament; and their efforts for the reform of the laws, civil and criminal, and the slow, tedious, and piecemeal process by which such reforms were accomplished, are known to history, and need not be related here, even if time there were. Lord Brougham thus excellently states the grounds of Bentham’s title to distinction and to our regard:
“The age of law reform and the age of Jeremy Bentham are one and the same. No one before him had ever seriously thought of exposing the defects in our English system of jurisprudence. He it was who first made the mighty step of trying the whole provisions of our jurisprudence by the test of expediency, fearlessly examining how far each part was connected with the rest, and with a yet more undaunted courage inquiring how far even its most consistent and symmetrical arrangements were framed according to the principles which should pervade a code of laws, their adaptation to the circumstances of society, to the wants of men, and to the promotion of human happiness. Not only was he pre-eminently original among the lawyers and legal philosophers of his own country; he might be said to be the first legal philosopher who had appeared in the world. None of the great men before him had attempted to reduce the whole system of jurisprudence under the dominion of fixed and general rules; none ever before Mr. Bentham took in the whole departments of legislation; none before him can be said to have treated it as a science, and by so treating made it one. This is his pre-eminent distinction. To this praise he is justly entitled; and it is as proud a title to fame as any philosopher ever possessed.”1
Bowring once remarked to Talleyrand, “Of all modern writers, Bentham was the one from which most had been stolen, and stolen without acknowledgement.” “True,” replied Talleyrand; “et pillé de tout le monde, il est toujours “riche,”—“and robbed by everybody, he is always rich.”
I have thus sought to give a notion of Bentham’s intellectual qualities, of his times, and of the general character of his writings respecting law and legislation. This has been necessarily an outline view only. It remains to attempt, by way of summing up, a critical estimate of the value of his labors, and the nature and extent of the actual influence upon our laws and jurisprudence of his doctrines and writings.
If we are to form a sound judgment on this subject, we must not mistake the point of view from which to look at him. To be truly appreciated, Bentham must, as I have already said, be regarded primarily and essentially as a law reformer generally, and specially as a reformer of the then existing law of England. He was bold, courageous, and original. He was the first to expose its defects and to suggest the remedies required. He destroyed with his own force the professional and general superstition that the law was perfect, and by his labors and writings he was the means of at length awakening the public mind from its stupor and inertia on this subject. His merits as a critic and censor of the law as he found it in his day and in his country, it is difficult to overvalue. Blackstone, the type of the professional mind of his age, regarded the English law as almost perfection itself; and he found his pleasurable function to be to defend, to exalt, to glorify it.1 Bentham held precisely opposite views. To him the English law, instead of a model of excellence, was a system full of delays, frauds, snares, and uncertainties; and the lawyers were its unthinking or interested defenders. His remedy was not to stop leaks in the roof, put in new panes of glass, and otherwise repair the rotten and dilapidated structure, but to demolish it and rebuild anew. By many he was regarded for the greater part of his life as an iconoclast, and by others as a dreamer who labored under the harmless delusion that he was a benefactor of his race, while in reality he was passing his life uselessly in Utopia.1
It does not essentially detract from Bentham’s merits, or the regard in which posterity should hold him, that he exaggerated, as he doubtless did, the absurdities and defects of the system that he assailed, or that his invectives against lawyers, who as a body supported it and resisted all attempts to reform it, were extravagant and unjust. All this may well be pardoned to his honest convictions, to his lifelong labors and his disinterested zeal for the public good. Nor does it essentially detract from his just estimation that he is an illustration of Bacon’s observation that “there is a superstition in avoiding superstition, when men think to do best if they go farthest from the superstition formerly received.” Nor does it materially diminish his fame that we cannot accept all of his doctrines as sound, or all of his conclusions from doctrines whose general soundness are no longer questioned.
The following which I give in John Stuart Mill’s own words, seems to me to set forth with judicial fairness Bentham’s chief merits and the nature of the obligations of the world to him:—
“Bentham,” he says, “is one of the great seminal minds in England of his age.” “He is the teacher of teachers.” “To him it was given to discern more particularly those truths with which existing doctrines were at variance.” “Bentham has been in this age and country the great questioner of things established. It is by the influence of the modes of thought with which his writings inoculated a considerable number of thinking men, that the yoke of authority has been broken, and innumerable opinions, formerly received on tradition as incontestable, are put upon their defence and required to give an account of themselves. Who, before Bentham, dared to speak disrespectfully, in express terms, of the British Constitution or the English law? . . . Bentham broke the spell. It was not Bentham by his own writings; it was Bentham through the minds and pens which those writings fed,—through the men in more direct contact with the world, into whom his spirit passed. If the superstition about ancestorial wisdom; if the hardiest innovation is no longer scouted because it is an innovation,—establishments no longer considered sacred because they are establishments,—it will be found that those who have accustomed the public mind to these ideas have learned them in Bentham’s school, and that the assault on ancient institutions has been, and is, carried on for the most part with his weapons.”1
If time permitted, it would be easy to trace Bentham’s influence through other minds, and in the way here pointed out, in England and in this country,1 not only in modifications and changes in specific legislation and in modes of judicial procedure, but upon existing notions in respect of legal education, the necessity for and the methods of legal reform. It would be interesting, for example, to draw the parallel between Bentham and Austin, one of Bentham’s most eminent disciples, and to show the partial reaction of Austin against some of Bentham’s extreme views, and the extent to which the questions thus raised are profoundly agitating at this moment not only a few thinking minds but the body of the profession,—and this not only in England, but in every country which speaks the language and which has adopted the institutions of England. This would lead to a consideration of the controversies between the analytical and the historical schools of jurisprudence, which their respective advocates yet debate with much of their original warmth, tending to the result, however, that there is, after all, truth in each; that properly understood the two schools are not antagonistic but complementary; and that the true course is to combine the logical or analytical with the historical and experimental, the former mainly supplying data for scientific arrangement, the latter mainly supplying the matter for a revised, improved, and systematic jurisprudence. I must content myself with mentioning, without dwelling upon, these interesting subjects.
Passing from these general considerations, I proceed to notice specifically two other subjects. One is Bentham’s reforms in the Law of Evidence. Here the direct fruits of Bentham’s labors are plainly to be seen. In some respects his “Judicial Evidence,” before mentioned, is the most important of all his censorial writings on English law. In this work he exposed the absurdity and perniciousness of many of the established technical rules of evidence. “In certain cases,” he says, “jurisprudence may be defined, the art of “being methodically ignorant of what everybody knows.” Among the rules combated were those relating to the competency of witnesses and the exclusion of evidence on various grounds, including that of pecuniary interest. He insisted that these rules frequently caused the miscarriage of justice, and that in the interest of justice they ought to be swept away. His reasoning fairly embraces the doctrine that parties ought to be allowed and even required to testify. This work appeared in Paris in 1802, and in England in 1825 and 1827; but it produced no immediate effect on the professional mind. It was generally regarded as the speculations of a visionary. As I write I have before me Starkie’s Evidence, the third edition of which appeared in 1842, and the wisdom of the exclusionary rules of evidence is not so much as criticised or questioned.
But Bentham had set a few men thinking. He had scattered the seeds of truth. Though they fell on stony ground they did not all perish. But verily reform is a plant of slow growth in the sterile gardens of the practising and practical lawyer. Bentham lived till 1832, and these exclusionary rules still held sway. But in 1843, by Lord Denman’s Act, interest in actions at common law ceased, as a rule, to disqualify; and in 1846 and 1851, by Lord Brougham’s Acts, parties in civil actions were as a rule made competent and compellable to testify. I believe I speak the universal judgment of the profession when I say that changes more beneficial in the administration of justice have rarely taken place in our law, and that it is a matter of profound amazement, as we look back upon it, that these exclusionary rules ever had a place therein, and especially that they were able to retain it until within the last fifty years.
Let us be just. The credit of originating this great improvement is due not to Denman and Brougham, but it essentially belongs to Bentham, although he was in his grave before it was actually effected.1 Lord Justice Stephen forcibly remarks of Bentham’s assault on the system of judicial evidence that “it was like the bursting of a shell in the “powder magazine of a fortress, the fragments of the shell “being lost in the ruin which it has wrought.”2 The moral is obvious. The philosophic student of our laws may often have a keener and juster insight into their vices and imperfections than the practising lawyer, whose life and studies are exclusively confined to the ascertainment and application of the law as it is, and who rarely vexes himself with the question of what it ought to be, or makes any serious effort to reform it. But let me not be misunderstood. While the philosophic student is able to point out defects in the laws, yet the history of the law shows that only practical lawyers are capable of satisfactorily executing the work of reform. Bentham’s failure in directly realizing greater practical results grew out of his mistaken notion that the work of actual amendment could be accomplished without experts,—that is, without the aid of the bar and without its active support.
The last matter to which I shall refer is that to which Bentham gave the name by which it is now universally known,—codification.
With a view to ascertain with exactness Bentham’s views, I have recently gone over anew his writings relating to this subject. Very different ideas in our day are, as I have heretofore said, attached to what is meant or implied by a code, and much of the dispute concerning codification is after all one over words, or one arising from the want of a previous definition of the subject-matter of the disputation.1 What Bentham meant by codification, however, is plain enough. He meant that a code should embrace all general legislation, not simply as it exists, but as it ought to be amended and made to exist,—that is, all legislation except local and special statutes; that it also should embody all the principles of the common law which it were expedient to adopt,—these to be expressed in words by legislative enactment, the gaps or lacunæ to be filled up in like manner by the legislature; the whole to be systematically arranged, so that all possible cases would be expressly provided for by written rules; that the function of the courts to make “judge-made law” as he is fond of stigmatizing it, should cease, and that thereafter all changes or additions to this complete and authoritative body of law should be made by the law-making body, and by it alone.
I must say that in my judgment this in its full extent is not only an impracticable scheme, but one founded in part upon wrong principles. In a refined and complex civilization no legislative foresight, no finite intelligence, can anticipate, define, catalogue, and formulate in advance rules applicable to the infinite number and the infinite variety of cases that will inevitably arise. This view of a code also exaggerates, or, to use Bentham’s language, maximizes, the evils of case-law, and underrates or minimizes its advantages. It overlooks the fact that case-law is a permanent necessity. The judicial office will, at all times, under any possible code, have to deal with and determine questions and cases not possible to be provided for by any express statutory provision.1 A well-constructed code may, and doubtless will, lessen the number of such questions and cases; but no code can do more. The rest must be left to the courts. M. Portalis, in a well-known paper relating to the French Civil Code, expresses this truth with clearness and force. “It is to jurisprudence [using the term in distinction from statute or positive law] that the legislator must abandon those rare and extraordinary cases which cannot enter into the scheme of a rational legislation; the variable, unaccountable details which ought never to occupy the attention of the legislator, and all of those objects which it would be in vain to attempt to foresee, and dangerous prematurely to define.”
We have now, and for centuries have had, two wholly independent manufactories, so to speak, of law,—the legislature professedly making statute law, the courts silently making case-law; and this without any unity of conception, plan, or action. Statutes are piled upon statutes, and the law reports of Great Britain and America may be roundly put at eight thousand volumes, and are constantly multiplying.2 This colossal body of case-law is wholly unorganized and even unarranged, except so far as digests and elementary treatises may be considered as an arrangement, which scientifically viewed they are not. The infinite details of this mountainous mass in its existing shape—bear me witness, ye who hear me!—no industry can master and no memory retain. The English portion of it has been aptly likened to “chaos tempered by Fisher’s Digest.” The American portion already exceeds in size and complexity the English portion, and as we attempt to survey it we are reminded of the dread and illimitable region described by Milton, where
I do not believe that it is practicable to codify it all, in the sense that the resulting code shall supersede for all purposes the law reports; but on many subjects, and to a very large extent in respect of all, codification is practicable, and so far as it is practicable, it is, if well done, desirable. Mark the qualification, if well done, not otherwise.
Any code that is made, whatever may be its scope, must be based upon the fundamental principle that the existing body of our law as it has been developed in the workings of our institutions and tested by our experience is in substance the law that is best fitted to our condition and wants; for all true law has its root in the life, spirit, ideas, usages, instincts, and institutions of the people. It springs from within; it is not something alien to the people, to be imposed on them from without. If a metaphor will not mislead, true law is a native, independent, natural growth, and not an exotic. Bentham did not deny this in principle, but he was too much inclined to look at laws logically rather than historically. It follows that a code must not be one imitated from or servilely fashioned after Roman or foreign models. On this subject Bentham had correct notions. His bold, original mind and his self-sufficient powers saw as little to admire in the Roman as in the English law. I repeat it as my judgment that our code must not pre-suppose that the Roman law as it anciently existed, or as it exists in the modern adaptations of it in the States of Continental Europe, is superior in matter, substance, or value, to the native, natural, indigenous product. It must assume precisely the contrary. Freeman puts a general truth epigrammatically when he says “that we, the English people, are ourselves and not somebody else. . . . Englishmen after all are Englishmen.”1
This is equally true of the American people. And both Englishmen and Americans want their own laws, and not those of some other people. It would be as impossible radically to change their legal systems as to change the nature of the people. The materials for such a code already exist. A period of development is at some time reached in the legal history of every people when it is necessary to restate and reconstruct their laws. It seems to me that we have reached that period. Our materials for such restatement and reconstruction, which we may, if you please, call a code, are ample. They surpass in extent, in abundance, in variety, in richness, and above all, in adaptation to our wants, any supply that can come from foreign sources.2
What Sir Henry Maine aptly calls “tacit codification” is a process which is in constant operation, through the labors of judges and text-writers. In this work elementary writers of learning and experience take an important part. In the scattered condition of our case-law their works are indispensable. When judges and text-writers deduce from the cases a principle and formulate it, and that formula is stamped with authority, either by long usage or judicial sanction, so that the courts do not go behind it to the cases from which it was deduced, there you have to this extent codification. This “stereotyping, as it were, of certain legal rules, is,” says Maine, “at this moment proceeding with unusual rapidity, and is indeed one of the chief agencies which save us from being altogether overwhelmed by the enormous growth of our case-law.”3
What is needed is the constructive genius and practical wisdom that can take these truly rich, invaluable, native but scattered materials,—using with a wise and generous eclecticism foreign materials only when the native do not exist or the foreign are manifestly superior,—and out of all these build an edifice of law, primarily designed and adapted to daily use, which shall be at once symmetrical, harmonious, simple, and commodious. There is here room and need for all. The institutional writer, the law teacher, the philosophic student, the scientific jurist, the experienced lawyer, the learned judge, the practical legislator, has each his place. They are not repellent and antagonistic agencies, but allies and co-laborers in the noblest work that can engage the attention, and draw forth and exemplify the highest powers of the human intellect. Toward the realization of this ideal let us press on with generous ardor, guided not by the motto of Ihering, prescribed for Continental action,—“Through the Roman law, but beyond it,”—but rather by this other motto: “Through our own law, and beyond it wherever it is plainly defective or incomplete.”
PROGRESS IN THE ADMINISTRATION OF JUSTICE DURING THE VICTORIAN PERIOD1
NO story can be more difficult to tell than that of the progress of reforms in the administration of the law during a period of fifty years. It consists for the most part of the history of countless changes of detail, many of which must remain absolutely unintelligible to the greater portion of the public. To comprehend their exact value would require a number of minute and technical explanations sufficient to fill, not merely one chapter, but several volumes. All that can be aimed at within the compass of a few pages is to endeavour to sketch in outline the broad features of a picture which it would be hopeless to attempt to render elaborate or complete. The recent fusion of the superior tribunals of the country into a single Supreme Court of Judicature is a landmark on which the attention of the lay world fastens, and which it in some measure can appreciate. Yet this change, important as it is, has only perfected and crowned a long course of simplification and reform, of which it is the logical consequence. Perhaps the best way of making the narrative understood by those who are not adepts in the language or the procedure of the law will be to explain briefly, even if it must of necessity be roughly, what the great English Courts of Justice were at the beginning of the reign, and the kind of imperfection that existed in their constitution and their practice.
The ancient barrier which separated the several Courts of the Common Law from the Court of Chancery still subsisted in the year 1837. Two systems of judicature, in many respects at variance with each other, flourished side by side under the famous roof of Westminster Hall. The principle of a division of labour by which distinct machinery can be accommodated to special subject-matter is based upon reason and convenience. A large portion of the law business of the country is made up of litigation in the result of which no one is directly interested but the rival combatants. But there are many matters of which the law takes cognisance that necessitate a special and a more complicated mechanism for their adjustment. The property of infants, for example, requires to be protected—trusts to be managed day by day during a long period of years—the estates of deceased persons to be dealt with for the benefit of creditors, the assets to be collected and distributed, accounts to be taken, directions to be given, questions to be settled once for all that affect the interests of many. It is desirable that special tribunals should be armed with the particular organisation requisite for purposes such as these. The distinction between law and equity went, however, far beyond what was needed to carry out this natural division of labour. The two jurisdictions had no common historical origin, and the principles on which they administered justice were unlike. The remedies they afforded to the suitor were different; their procedure was irreconcilable; they applied diverse rules of right and wrong to the same matters. The common law treated as untenable claims and defences which equity allowed, and one side of Westminster Hall gave judgments which the other restrained a successful party from enforcing. The law had always cherished as its central principle the idea that all questions of fact could best be decided by a jury. Except in cases relating to the possession of land, the relief it gave took, as a rule, the shape of money compensation, in the nature either of debt or of damages. The procedure of the Court of Chancery, on the other hand, was little adapted for the determination of controverted issues of fact, and it was constantly compelled to have recourse for that purpose to the assistance of a court of law. The common law had no jurisdiction to prevent a threatened injury; could issue no injunctions to hinder it; was incompetent to preserve property intact until the litigation which involved the right to it was decided; had no power of compelling litigants to disclose what documents in their possession threw a light upon the dispute, or to answer interrogatories before the trial. In all such cases the suitor was driven into equity to assist him in the prosecution even of a legal claim. The Court of Chancery, in its turn, sent parties to the Law Courts whenever a legal right was to be established, when a decision on the construction of an Act of Parliament was to be obtained, a mercantile contract construed, a point of commercial law discussed. Suits in Chancery were lost if it turned out at the hearing that the plaintiff, instead of filing his bill in equity, might have had redress in a law court; just as plaintiffs were nonsuited at law because they should have rather sued in equity, or because some partnership or trust appeared unexpectedly on the evidence when all was ripe for judgment. Thus the bewildered litigant was driven backwards and forwards from law to equity, from equity to law. The conflict between the two systems, and their respective modes of redress, was one which, if it had not been popularly supposed to derive a sanction from the wisdom of our forefathers, might well have been deemed by an impartial observer to be expressly devised for the purpose of producing delay, uncertainty, and untold expense.
The common law tribunals of Westminster Hall consisted of three great courts, each with a different history and originally different functions. In the growth of time, and by dint of repeated legislation, all, so far as the bulk of the litigation of the country was concerned, had acquired equal jurisdiction, and no practical necessity was left for the maintenance side by side of three independent channels of justice, in each of which the streams ran in a similar fashion and performed the same kind of work. First came the Queen’s Bench, composed of a chief justice and four puisne judges. Its authority was supreme over all tribunals of inferior jurisdiction. It took sovereign cognisance of civil and criminal causes alike—kept the Ecclesiastical Courts and the Admiralty within bounds, controlled magistrates and justices, supervised the proceedings of civil corporations, repressed and corrected all usurpations, all encroachments upon common right. It wielded two great weapons of justice over public bodies: mandamus, whereby, when no other remedy appeared available, it compelled them to fulfil the law; prohibition, by means of which it confined all inferior authorities strictly to their respective provinces and powers. The Court of Common Pleas, historically the most ancient of the three, which had retained, with no particular benefit to society, supervision over the few ancient forms of real actions that still survived, exercised also a general authority over personal actions. It was directed by a chief justice and four puisne justices. It laboured, however, under the disadvantage that, as far as the general bar of England was concerned, it was a ‘champ clos.’ Serjeants-at-law had exclusive audience in it during term time, and it was not till 1847 that this vexatious and injurious monopoly was finally abolished. The Court of Exchequer had been from early years the special tribunal for dealing with matters in which the king’s revenue was interested. It still retained in revenue cases and some other matters a particular jurisdiction, though clothed by this time (like the Queen’s Bench and the Common Pleas) with power over all actions that were personal. Besides these functions, it was also a Court of Equity, and took part from time to time in the Chancery business of the realm. A chief baron was at the head, assisted by four puisne barons, of whom two still remain and preserve to us a title which otherwise would be extinct, the present Baron Pollock and Baron Huddleston.
The procedure at the common law, as compared with the wants of the country, had become antiquated, technical, and obscure. In old days the courts at Westminster were easily able to despatch, during four short terms of three weeks each, together with the assizes and sittings at Guildhall, the mass of the business brought before them. But, from the beginning of the century, the population, the wealth, the commerce of the country had been advancing by great strides, and the ancient bottles were but imperfectly adapted to hold the new wine. At a moment when the pecuniary enterprises of the kingdom were covering the world, when railways at home and steam upon the seas were creating everywhere new centres of industrial and commercial life, the Common Law. Courts of the realm seemed constantly occupied in the discussion of the merest legal conundrums, which bore no relation to the merits of any controversies except those of pedants, and in the direction of a machinery that belonged already to the past. Frivolous and vexatious defences upon paper delayed the trial of a litigant’s cause. Merchants were hindered for months and years from recovering their just dues upon their bills of exchange. Causes of action had become classified, as if they were so many Aristotelian categories—a system which secured learning and precision, but at the risk of encouraging technicality; and two causes of complaint could not be prosecuted in one and the same action unless they belonged to the same metaphysical ‘form.’ An action on a bond could not be joined with a claim upon a bill of exchange. A man who had been assaulted and accused of theft in the market-place of his town was obliged, if he wished redress for the double wrong, to issue two writs and to begin two litigations, which wound their course through distinct pleadings to two separate trials. If a surprise occurred at Nisi Prius or the assizes, the court was unable to adjourn the proceedings beyond a single day. Old fictions still survived, invented in bygone ages to assist justice—with no particular harm left in them, it is true, but which were well fitted to encourage the popular delusion that English law was a mass of ancient absurdity. In order to recover possession of any piece of land, the claimant began his action by delivering to the defendant a written statement narrating the fictitious adventures of two wholly imaginary characters called John Doe and Richard Roe, personages who had in reality no more existence than Gog and Magog. The true owner of the land, it was averred, had given John Doe a lease of the property in question, but John Doe had been forcibly and wrongly ejected by Richard Roe, and had in consequence begun an action of trespass and ejectment against him. Richard Roe, meanwhile, being a “casual ejector” only, advised the real defendant to appear in court and procure himself to be made defendant in the place of the indifferent and unconcerned Richard Roe, otherwise the defendant would infallibly find himself turned out of possession. Till within the last twenty-six years, this tissue of invention of unreal persons and of non-existent leases preceded every investigation of the claim to possession of land. Nor was the trial itself of a common law cause productive of certain justice. Right was liable to be defeated by mistakes in pleading, by variances between the case as previously stated upon paper and the case as it stood ultimately upon the evidence, or by the fact that the right party to the suit had not been nominally joined, or that some wrong party had been accidentally joined with him. Perhaps the most serious blemish of all consisted in the established law of evidence, which excluded from giving testimony all witnesses who had even the minutest interest in the result, and, as a crowning paradox, even the parties to the suit themselves. ‘The evidence of interested witnesses,’ it was said, ‘can never induce any rational belief.’ The merchant whose name was forged to a bill of exchange had to sit by, silent and unheard, while his acquaintances were called to offer conjectures and beliefs as to the authenticity of the disputed signature from what they knew of his other writings. If a farmer in his gig ran over a foot-passenger in the road, the two persons whom the law singled out to prohibit from becoming witnesses were the farmer and the foot-passenger. In spite of the vigorous efforts of Lord Denman and others, to which the country owes so much, this final absurdity, which closed in court the mouths of those who knew most about the matter, was not removed till the year 1851.
In a strictly limited number of cases the decisions of the three courts could be reviewed in the Exchequer Chamber—a shifting body composed of alternate combinations of the judges, and so arranged that selected members from two of the courts always sat to consider such causes as came to them by writ of error from the third. The House of Lords, in its turn, was the appointed Court of Error from the Exchequer Chamber. The modern system of appeal, rendered necessary in our day by the weakening of the Courts in Banc and the development of what has been called the single-judge system, had not yet come into existence. Nor, in truth, on the common law side of Westminster Hall was there any great necessity for it. The Queen’s Bench, the Common Pleas, and the Exchequer—whatever the imperfection of the procedure—were great and powerful tribunals. In each of them sat a chief of mark, with three puisnes to assist him, and the weight of authority of four judges, amongst whom there could not well fail to be present one or more men of the first rank of intellect and experience, was sufficient as a rule to secure sound law and to satisfy the public. The prestige, again, of the Exchequer Chamber in such cases as were allowed to reach it upon error was of the highest order. But the principle upon which appeals were allowed by the law in some matters, and refused in others, was full of anomalies. Only matters of ‘error’ which were apparent on the record could be the subject of a hearing in the Exchequer Chamber. No appeal lay on subjects so important as a motion for a new trial or to enter a verdict or a nonsuit—motions which proceeded on the assumption of miscarriages in law by the judge or the jury who tried the cause. If the aggrieved party had not succeeded in complying at the trial with the difficult formalities of the rule as to bills of exceptions—an old-fashioned and often impracticable method of challenging the direction of a judge—no review of it was possible. Error lay from a special verdict, where the parties had arranged, or the judge directed at the trial, a special statement of the facts. No error lay upon a special case framed without a trial by consent. That is to say, no appeal was permitted unless the expensive preliminary of a useless trial had first been thrown away.
The technicalities which encumbered the procedure of the courts furnished one reason, no doubt, for the arrears which loaded the lists at the accession of her Majesty. Other accessory causes may be found in the survival till a late date of the old-fashioned term of three weeks, recurring four times a year, at the end of which the courts ceased sitting to decide purely legal questions while the three chiefs repaired to jury trials at Nisi Prius. It was not till after the beginning of the reign that an Act of Parliament was passed which enabled the Queen’s Bench, the Common Pleas, and the Exchequer to dispose in Banc sittings after term of business left unfinished on their hands. Under the old system, the last day of term was famous for the crowd of counsel and of solicitors solely intent upon having their pending rules ‘enlarged,’ or, in other words, adjourned till term should again begin. The Queen’s counsel in the front benches spent the day in obtaining the formal leave of the court to this facile process, and in marking each brief in turn with a large ‘E’ as the token of a regular ‘enlargement.’ ‘How do you manage to get through your business in the Queen’s Bench?” said a spectator to the late Sir Frederick Thesiger (afterwards Lord Chelmsford). ‘We find no difficulty,’ said the eminent counsel; ‘we do it always with great Ease.’ At the beginning of 1837, the accumulation of arrears in the Queen’s Bench, to which court the great bulk of business necessarily drifted, had been most formidable. Three hundred cases of various descriptions were waiting for argument in Banc. The Law Magazine of two years later still complained, in its notice of the current events of the quarter, that the Banc arrears had reached to such a pass that a rule nisi for a new trial could not in all probability be disposed of under two years and a half from the time of granting it, at the end of which time, if the application were even granted, the cause would still have to be reheard.
The Court of Chancery was both a judicial tribunal and an executive department of justice for the protection and administration of property, but the machinery that it employed for the two purposes was, unfortunately, not kept distinct. Its procedure in contentious business served as the basis of its administrative operations, and persons between whom there was no dispute of fact at all found themselves involved in the delays and the embarrassments of a needless lawsuit. In its judicial capacity the Court of Chancery gave effect to rights beyond the reach of the common law, corrected the evils that flowed from the imperfect jurisdiction and remedies of the Common Law Courts, and dealt with whole classes of transactions over which it had acquired a special cognisance. The code of ethics which it administered was searching and precise—academical, perhaps, rather than worldly, the growth of the brains of great masters of learning and of subtlety, whose maxims and refinements had crystallised into a system. But its practice was as dilatory and vexatious as its standard of right and wrong was noble and accurate. For deciding matters of conflicting testimony it was but little fitted. It tossed about as hopelessly in such cases as a ship in the trough of the sea, for want of oral testimony—a simple and elementary method of arriving at the truth, which no acuteness can replace. It had no effective machinery at all for the examination or the cross-examination of witnesses, and (as we have seen) fell back upon the Common Law Courts whenever questions of pure law were raised, or as soon as depositions and affidavits became hopelessly irreconcilable. Oral evidence had always been at common law the basis of the entire system, although the common law perversely excluded from the witness-box the parties to the cause who naturally knew most about the truth. The Court of Chancery, on the other hand, allowed a plaintiff to search the conscience of the defendants, and the defendants, by a cross bill, to perform a similar operation upon their antagonist, but only permitted the inquiry to be on paper. A bill in a Chancery suit was a marvellous document, which stated the plaintiff’s case at full length and three times over. There was first the part in which the story was circumstantially set forth. Then came the part which “charged” its truth against the defendant—or, in other words, which set it forth all over again in an aggrieved tone. Lastly came the interrogating part, which converted the original allegations into a chain of subtly framed inquiries addressed to the defendant, minutely dovetailed and circuitously arranged so as to surround a slippery conscience and to stop up every earth. No layman, however intelligent, could compose the ‘answer’ without professional aid. It was inevitably so elaborate and so long, that the responsibility for the accuracy of the story shifted, during its telling, from the conscience of the defendant to that of his solicitor and counsel, and truth found no difficulty in disappearing during the operation. Unless the defendant lived within twenty miles of London, a special commission was next directed to solicitors to attest the oath upon which the lengthy answer was sworn, and the answer was then forwarded by sworn messenger to London. Its form often rendered necessary a re-statement of the plaintiff’s whole position, in which case an amended bill was drawn requiring another answer, until at last the voluminous pleadings were completed and the cause was at issue. By a system which to lawyers in 1887 appears to savour of the Middle Ages, the evidence for the hearing was thereupon taken by interrogatories written down beforehand upon paper and administered to the witnesses in private before an examiner or commissioner. At this meeting none of the parties were allowed to be present, either by themselves or their agents, and the examiner himself was sworn to secrecy. If cross-examined at all (for cross-examination under such conditions was of necessity somewhat of a farce), the witnesses could only be cross-examined upon written inquiries prepared equally in advance by a counsel who had never had the opportunity of knowing what had been said during the examination-in-chief. If the examination was in the country, it took place at some inn before the comissioner and his clerk, the process seldom costing less than 60l. or 70l. It often lasted for days or weeks, at the end of which its mysterious product was sealed up and forwarded to London. On the day of the publication of the depositions copies were furnished to the parties at their own expense; but, from that moment, no further evidence was admissible, nor could any slip in the proofs be repaired, except by special permission of the court, when, if such leave was granted, a fresh commission was executed with the same formalities and in the same secret manner as before. The expense of the pleadings, of the preparation for the hearing, and of the other stages of the litigation may be imagined, when we recollect that it was a necessary maxim of the Court of Chancery that all parties interested in the result must be parties to the suit. If, for example, relief was sought against a breach of trust, all who were interested in the trust estate had to be joined, as well as all who had been privy to the breach of trust itself. During the winding journey of the cause towards its termination, whenever any death occurred, bills of review or supplemental suits became necessary to reconstitute the charmed circle of litigants which had been broken. On every such catastrophe the plaintiff had again to begin wearily to weave his web, liable on any new death to find it unravelled and undone. It was satirically observed that a suit to which fifty defendants were necessary parties (a perfectly possible contingency) could never hope to end at all, since the yearly average of deaths in England was one in fifty, and a death, as a rule, threw over the plaintiff’s bill for at least a year. The hearing in many cases could not terminate the cause. Often inquiries or accounts were necessary, and had still to be taken under the supervision of a master. Possibly some issue upon the disputed facts required to be sent for trial at the assizes, or a point of law submitted to a common law court. In such cases, the verdict of the jury, or the opinions of the court so taken, in no way concluded the conscience of the Court of Chancery. It resumed charge of the cause again, when the intermediate expedition to the common law was over, and had the power, if it saw fit, to send the same issue to a new trial, or to disregard altogether what had been the result. In a case which was heard in February 1830, there had been seven trials, three before judges and four before the Chancellor, at the close of which the suit found its way upwards to the House of Lords. When a cause had reached its final stage—when all inquiries had been made, all parties represented, all accounts taken, all issues tried—justice was done with vigour and exactitude. Few frauds ever in the end successfully ran the gauntlet of the Court of Chancery. But the honest suitor emerged from the ordeal victorious rather than triumphant, for too often he had been ruined by the way. Courts where ultimate justice is achieved, but where delay and expense reign supreme, became at last a happy hunting-ground for the fraudulent. The hour for reform has struck when the law can be made an instrument of abuse.
With all its distinction and excellence, the Court of Equity was thus practically closed to the poor. The middle classes were alarmed at its very name, for it swallowed up smaller fortunes with its delays, its fees, its interminable paper processes. The application of such a procedure to the large class of transactions, where no fact was in dispute, and only the careful administration of an estate required, was a cruel burden upon property. A large portion of the cases before the Court of Chancery had “nothing of hostility and very little of contentious litigation in them.” Trusts, it may be, had to be administered, obscure wills or deeds to be interpreted, assets of a deceased person to be got in, classes ascertained, creditors paid. Though nobody wished for war, yet all the forms of war had to be gone through—the plaintiff and the various defendants drew out the pleadings in battle array, interrogated and answered, took evidence upon commission, examined and cross-examined upon paper. “It is a matter of frequent occurrence in court,” say the Chancery Commissioners of 1851, “to see cases encumbered with statements and counter-statements, evidence and counter-evidence, with which the parties have for years been harassing each other, although there has been throughout no substantial dispute as to the facts, and although the real question lies in a very narrow compass, and would probably have been evolved in the first instance if the court had had the power summarily to ascertain and deal with the facts.
The judges of the court were the Lord High Chancellor (who then, as now, was a political officer and changed with every change of Ministry); the Master of the Rolls stood next in dignity; last came the Vice-Chancellor of England—a judge who in 1813 had been created to relieve the pressure. Some equity work was also done by the Chief Baron, or, in his stead, a puisne baron sitting on the equity side of the Exchequer; but this could only be during a limited portion of the year. The appellate system was defective in the extreme. The Chancellor sat singly on appeals from the Vice-Chancellor of England and from the Master of the Rolls (whose inferior in the science of equity he easily might be), and presided in the House of Lords over the hearing of appeals from himself—a position the less satisfactory inasmuch as, owing to the imperfect constitution of that august tribunal, the Chancellor was very often its ruling spirit. These appellate functions left him not too much time to bestow on his own duties as a Chancery judge of first instance. To a court so loaded with procedure and so undermanned in its judicial strength, the Chancery business of this kingdom, contentious or non-contentious, metropolitan or provincial, all flowed. A formidable list of arrears naturally blocked the entrance of the Temple of Equity. At the beginning of January 1839, 556 causes and other matters were waiting to be heard by the Chancellor and the Vice-Chancellor. Those at the head of the list, excluding all which had been delayed by accidental circumstances alone, had been set down and had been ripe and ready for hearing for about three years. Three hundred and three causes and other matters were in like manner waiting to come on before the Master of the Rolls. Those at the head of his list had been standing about a year and a half. The total amount of causes set down and to be heard was 859, and it was facetiously observed that a greater arrear would probably never appear in the lists of the Court of Chancery—seeing that it had become wholly useless to enter any cause which was not to be brought on out of its turn as a short or consent cause. Since in each suit there were on an average two hearings, each destined to be separated by a period of something like two years, it was obvious that, in even the most ordinary litigation—such, for example, as that which involved the payment of debts or legacies out of a deceased man’s estate—four years must be wasted in absolute inactivity, over and above any delays that might occur in taking accounts or prosecuting inquiries. If, as seemed possible to skilled observers of the day, the Chancellor should prove unable to do more than keep pace with his appellate work, it would be—so they calculated—six years before the last in the list of 1839 came on for hearing even on its first stage; if a second hearing was required, thirteen years or more would elapse before this was reached; while, if on the final hearing the master’s report was successfully objected to, the long process must begin de novo. “No man, as things now stand,” says in 1839 Mr. George Spence, the author of the well-known work on the equitable jurisdiction of the Court of Chancery, “can enter into a Chancery suit with any reasonable hope of being alive at its termination, if he has a determined adversary.”
Attached to the Court of Chancery, performing a large portion of its functions, responsible—if we are to believe the torrents of criticism directed against them during the earlier portions of the reign—for much of its delay, were the masters of the Court of Chancery, their offices, and their staff of clerks. One great blot upon this portion of the Chancery system was that it was for all practical purposes under the control and superintendence of nobody in particular. The office of master of the court was one of historical dignity and antiquity. His duty in 1837 was to act in aid of the judge, to investigate and report upon such matters as were referred to him, including the investigation of titles, to take complicated accounts, to superintend the management of property of infants and other incompetent persons within the jurisdiction, and to be responsible for taxation of costs. A considerable portion of these judicial and ministerial duties he discharged by deputy. The work was done in private with closed doors, removed from the healthy publicity which stimulates the action of a judge. There was little practical power to expedite proceedings or force on the procrastinating litigant. At the beginning of the reign, complaints were loud both as to the expense and the delays in the masters’ offices; and one of the best informed Chancery lawyers of that day recorded it as his opinion, in the year 1839, that, with proper regulations in those offices, nearly double the quantity of business might be done and with greater promptitude. The Chancery judges at this period only sat in open court, and did not despatch business at chambers, and the great pressure of arrears and the want of a chamber jurisdiction caused a good deal to be shunted upon the master’s office with which the judge himself would have been the best person to deal. Much legal literature during the beginning of the reign was devoted to attacking and defending the institution of the masters in Chancery; but when at a later period it fell, it fell with the general assent of the legal world.
A system of payment of officials by fees is often synonymous with a system of sinecures, of monopolies, of work done by deputy, as well as of work protracted and delayed. To such an epoch of administrative laxity belonged the origin of the institution of the “the six clerks,” whose places were worth about 1,600l. a year, and who were in theory at the head of a body of officers called the “clerks in court.” Mr. Edwin Field, a well-known solicitor of position, in a pamphlet published in 1840, tells us, that although he had been almost daily in the “six clerks” office during a considerable part of twenty years, he had never to his knowledge seen any one of the “six clerks,” nor could he conceive of a solicitor or a solicitor’s clerk having any occasion to see one officially. He believed that most of the “clerks in court” did not know even by sight the “six clerks” to whom they were nominally attached. The “clerks in court” were officers who were supposed to be πρόξενοι of the suitor and of the suitor’s solicitor. They were twenty-eight or thirty in number, and presided over the copying of records, the issue of writs, the signing of consents, the service of notices—for notices were served upon them by proxy, which they then sent on by post or by messenger to the solicitor in the cause. They also acted as mediators in taxing costs, for which they were paid by fees in proportion to the length of the bills to be taxed. Most of this work, however diligently performed, was useless, for it might have been done by the suitor’s own solicitor; but, useless as it was, it was lucrative to the clerks in court, and the chief clerk in each court received, it was said, an income varying from 3,000l. to 8,000l. The chief argument in favour of the institution was that the clerks in court were the repositories of the practice of the court. Whether they were the pundits their adherents represented it is difficult at this interval of time to decide; but an anecdote survives, according to which an eminent Chancery Queen’s Counsel, being consulted on a point of practice, recommended his client to ask his “clerk in court,” and to do exactly the opposite of what that official should advise.
Such, roughly speaking, were the salient defects of the Superior Courts of this kingdom, in the year 1837. To attempt on the present occasion to follow the changes as one by one they have been made, would be to lose oneself and to drown the reader in a sea of detail and of technicality. But, from the above outline, it will not be difficult for anyone to determine what kind of shape any legal reform was bound to take that was to be worthy of the name. In the first place, the distinction between the Chancery and Common Law Courts required to be swept away, except so far as it was founded on a natural division of labour. The Common Law and the Chancery Court each demanded to be clothed with complete and independent powers, and rendered competent to do in every individual instance full and perfect justice within its own four walls. The law and the equity which were to be administered needed to be made similar in each, the rights recognised by the one to be the same as those enforced by the other; the remedies given to be identical and in both final. The law of evidence at common law still laboured under the terrible absurdity which declined to permit of evidence from the parties to the action. A suit in Chancery had yet to be relieved of the mass of paper which swamped it, oral examination of parties and witnesses to be introduced, and both party and witness brought face to face with the judge who was to decide the cause. Technicalities on either side of Westminster Hall needed to be rooted out, and machinery provided to enable the opinion of the courts to be promptly and expeditiously obtained, without useless preliminaries, whether they took the shape of pleadings, or commissions, or trial. The staff of Chancery judges was moreover hopelessly inadequate, and as every Chancery judge sits singly, a satisfactory system of appeal in Chancery was essential. The offices of the masters in Chancery and of the clerks wanted to be overhauled, the progress of references and accounts brought more directly under the eye and supervision of the judge, arrears dealt with, delays minimised. Law reformers looked forward, but not with too sanguine anticipations, to some coming time, when a sovereign of the land might say, in the language of Lord Brougham, that “he found law dear and left it cheap, found it a two-edged sword in the hands of craft and of oppression, left it the staff of honesty and the shield of innocence.”
All of these evils, most of the requisite remedies—both for common law and for Chancery—were pointed out by the legal profession fifty years ago. But it was then the habit in England to advance slowly in the direction even of necessary change. By degrees, however, the horizon brightened, and improvement upon improvement became law. Six years after her Majesty’s accession, Lord Denman—Chief Justice of the Queen’s Bench and father of the present Mr. Justice Denman—carried an Act removing the archaic fetter by which persons interested in the result of an action or suit were disabled from becoming witnesses. Eight years later still, another statute rendered the parties to almost all civil proceedings competent and compellable to give evidence. Commissions sat to inquire into the procedure of the common law. Three Procedure Acts, the fruit of their labours, cleared it of its technicalities, improved its machinery, extended its remedies, and laid finally to rest most of the abuses above described. In connection with this invaluable work—which deserves from its importance to be called the Reformation of the English Common Law—a grateful country ought not to forget the names of Sir John Jervis (from 1850 to 1856 Chief Justice of the Common Pleas); of Mr. Baron Martin, with whom law was synonymous with shrewd common sense; of the late Sir Alexander Cockburn, the versatile and eloquent Chief Justice of the Queen’s Bench; of Lord Bramwell, a great lawyer who lives to survey the success of his own handiwork; of the late Mr. W. A. Walton; of Mr. Justice Willes, whose brilliant and subtle learning was lost to the nation by an untimely death.
Progress of no less moment was taking place in Chancery. Trustee Relief Acts, Acts to diminish the delay and cost, and to amend the practice and course of procedure, to abolish the circumlocution office of the masters, to enable the Chancery judges to sit in chambers so as to facilitate the management of estates, and to allow the opinion of the court to be obtained in a more summary and less expensive manner, followed in due course. Misjoinder of plaintiffs ceased to be a ground for dismissal of a suit; rules for classifying the necessary defendants, and for minimising their number, were laid down. The effete system of taking evidence disappeared; the pleadings, the taking of accounts, the progress of inquiries were simplified and subjected to control. The court was enabled to do speedy justice without the long preliminaries of a hearing. A code of orders was drawn up regulating the chamber practice. The Chancery Court was freed from the necessity of consulting the common law, and power was conferred upon it of giving damages in certain cases to avoid recourse to law. New Vice-Chancellors were appointed, and a Court of Appeal created, with two Lords Justices and the Chancellor at its head. The roll of names connected with this gigantic reformation is long. Upon it stand Lord Cottenham, her Majesty’s first Lord Chancellor, and the other Chancellors of her reign. The council of the Incorporated Law Society occupy a conspicuous and honourable position in the van of other law reformers. In addition to these may be mentioned Lord Langdale and Lord Romilly, Sir J. Knight Bruce, Sir George Turner, Vice-Chancellor Parker, Mr. Justice Crompton, the late Mr. Edwin Field, the late Mr. W. Strickland Cookson, and the late Lord Justice James, whose broad and lucid mind was till recently an element of strength in our new Court of Appeal, and whose services in the cause of reform, both at law and in equity, if equalled, have certainly not been surpassed by any lawyer of modern times. “Multi præterea, quos fama obscura recondit.”
The sketch of English justice at Westminster Hall in bygone days would hardly be complete if no mention were made of three important courts which, during the present reign, found their way thither, and have since followed the fortunes of the common law—the Court of Admiralty, the Court of Probate, and the Court of Divorce. The Admiralty in 1837 did not enjoy its present powers or importance. Borrowing from abroad the procedure of the civilians and the rules of foreign maritime law, confined for centuries within the bounds of a narrow jurisdiction by the prohibition of the Court of Queen’s Bench, the Admiralty Court had only been rescued from obscurity by the great wars of the reign of George III, by the prize cases for which it was the necessary tribunal, and by the genius of Lord Stowell. But its range still continued limited, and its rules occasionally conflicted with the rules of the common law. The spiritual or ecclesiastical courts of the country from an early period had exercised authority in matters of testacy and intestacy as regarded personal estate, had issued probates of the wills of those who died possessed of personalty, and letters of administration of the estates of those who died without a will. The bulk of the testamentary business of the Ecclesiastical Courts was chiefly non-contentious—formal representative proceedings where no dispute arose. If the validity of a will or the title to administer was challenged, a suit became necessary, and to this all parties interested were cited. A number of spiritual courts or chambers scattered through England took cognisance of this testamentary procedure—the courts of the Archbishops of Canterbury and York, the diocesan courts of the bishops, the archdeacons’ courts, and other tribunals of still more limited jurisdiction. The Court of Arches, which belonged to the Archbishop of Canterbury, served as the appellate centre for the province of Canterbury, and from it a further appeal lay to the Judicial Committee of the Privy Council, a body that had been recently substituted for the Court of Delegates of Henry VIII. Doctors’ Commons was the place where the principal ecclesiastical proceedings were held, and a body of advocates and proctors enjoyed in it a monopoly by which the general profession was excluded from audience and practice. All judges and officers of the spiritual courts were appointed by the prelates, and the other functionaries over whose tribunals they presided. They were sometimes lawyers of position, sometimes lawyers of no position at all, sometimes clergymen, and were usually paid by fees. Many offices were granted in succession and reversion, deputies discharging the duties, of which the emoluments were considerable. The inefficiency of the judges, the variations of practice and procedure, the expense, the delay, the frequently inconsistent and mistaken views of law and of fact adopted by the different authorities, the anachronism of a system which permitted civil rights to be decided by judges not appointed by, nor responsible to, the Crown, and, finally, a general sense that these tribunals were a soil in which abuses grew and flourished, rendered their fall inevitable. The flavour, the air, the humorous absurdity of many abuses in many branches of the law have been preserved to us by the pen of Charles Dickens. Writers of sentimental fiction not unfrequently exercise their powers of sarcasm on the subject of the enormities of law by inventing for the law courts an imaginary procedure which never yet was seen, and then denouncing its iniquities. But the caricatures of English law, at the beginning of the reign, which Dickens has made immortal, are full of the insight of a great artist—come direct from the brain of one who has sat in court and watched—represent real scenes and incidents as they might well appear to the uninitiated in the “gallery.” His pictures of the Chancery suit of “Jarndyce and Jarndyce;” of the common jury trial of “Bardell v. Pickwick;” of the debtors’ prison, of the beadle, of the constable, of the local justice and of the local justice’s clerk, contain genuine history, even if it is buried under some extravagance. In “David Copperfield” he has sketched with his usual felicity the fraternity of Doctors’ Commons and the ecclesiastical officials who thronged its purlieus. Like so many other of the antiquated subjects of his satire, Doctors’ Commons was soon destined to decay. A royal Court of Probate was established in its place at Westminster Hall, with district registries throughout the kingdom; and the various ecclesiastical jurisdictions which the new court superseded ceased to exist thenceforward, so far as testamentary causes were concerned.
The creation in 1858 of a Court for Divorce and Matrimonial Causes has been a measure, necessary no doubt, but not productive of unmixed benefit. Divorce a vinculo matrimonii, fifty years ago, was unrecognised by English jurisprudence, except where it was the result of an Act of Parliament. The laxer law of an exceptional period which followed upon the English Reformation had long disappeared, and from the close of the seventeenth century down to the recent statutes of our own days no one could be divorced otherwise than by the Legislature. After the year 1798, Parliament had declined to grant the relief to any husband who had not previously obtained damages at law against the adulterer, and prosecuted a further suit in the Ecclesiastical Courts for a divorce a mensâ et thoro. When a Divorce Bill reached the Commons from the Lords, the question of adultery had thus been tried three times over. The practice was adopted in 1840 of referring such cases to a Select Committee of nine members, who heard counsel and examined witnesses. This was the fourth and not the least expensive inquiry of all. A divorce in 1837 was therefore a luxury of the wealthy—a privilegium beyond the reach of a poor man’s purse. Its average cost in an ordinary case was estimated at from 1,000l. to 1,500l. An anecdote—timeworn among the bar—relates that the final stimulus to the change of public opinion which brought about reform was supplied by the caustic humour of the late Mr. Justice Maule. He was trying for bigamy a prisoner whose wife had run away with a paramour and left him with no one to look after his children and his home. “Prisoner at the bar,” said the judge to the disconsolate bigamist, who complained of the hardship of his lot, “the institutions of your country have provided you with a remedy. You should have sued the adulterer at the assizes and recovered a verdict against him, and then taken proceedings by your proctor in the Ecclesiastical Courts. After their successful termination, you might have applied to Parliament for a Divorce Act, and your counsel and your witnesses would have been heard at the Bar of the House.” “But, my lord,” pleaded the culprit, “I cannot afford to bring actions or obtain Acts of Parliament; I am only a very poor man.” “Prisoner,” said Mr. Justice Maule, “it is the glory of the law of England that it knows no distinction between the rich and the poor.” The present Divorce Court, whatever the social evil it has revealed, at least has brought within reach of the humble that which was supposed to be for the public advantage in the case of the rich. The nation has been fortunate in this, that a branch of justice so difficult has been administered in succession by presidents of singular personal dignity, wisdom, and discretion.
To the practical arbitrament of the Courts of Common Law was transferred, after no long interval, another class of cases of much importance to the State—the trials of controverted election petitions. At the time when her Majesty succeeded to the throne, the cognisance of such matters belonged exclusively to the House of Commons. Through a moral blindness which party politics occasionally encourage, the election committees of the House had become a tribunal as untrustworthy as if they had been pecuniarily corrupt. The composition of each committee proceeded upon strictly party lines. On the day appointed for the ballot the friends of the respective litigants were collected by a “whip.” Out of a House of a hundred members, thirty-three names were drawn, and these again reduced to eleven by repeated challenges—a process facetiously known as “knocking out the brains of the committee.” The Parliament court so chosen had often to decide difficult matters of law, on which the validity of votes or the qualification of voters or of candidates in former days might depend; often to determine issues of fact as to bribery or intimidation. In the result, the sitting members were seated or unseated with more regard to the colour of their politics than to any merits of the case. “The tribunal,” says Mr. Charles Buller in 1836, “is selected under a system by which those who have any professional acquirements, admitted abilities, proved industry or marked consideration in the political world are too often studiously excluded from it.” “We do not exaggerate,” observes the Law Magazine of 1837, “when we say, that during the last two or three sessions none but the uninitiated ever dreamed of supposing that the right to a disputed seat would be decided by the merits of the case.” In 1838, a writer in Fraser calculates that there had been ten Whig committees, and that they had decided in every case in favour of Whig members. In the session of 1838, twenty-four Whig committees, it was alleged, had defeated petitions against twenty Whigs and unseated six Tories, while they had only unseated two Whigs and dismissed two Whig petitions. During the like period, sixteen Tory committees appeared to have dismissed petitions against four Tories and unseated eight Whigs, while two Tories only were unseated and two Tory petitions were unsuccessful. Before the system was ultimately abolished a growing sense of public duty had substantially curtailed its gravest abuses, but the judicial vindication of electoral purity ought, like Cæsar’s wife, to be above suspicion.
The House of Commons, while reserving to itself the formal shadow of supreme jurisdiction, has at last delegated to the judges of the land the duty of dealing with these election controversies; and, in addition to the exacter justice thus secured, it is some advantage to the public that election petitions are now tried in the locality where the transactions have occurred. A similar change as regards a variety of private Bills, whose success or failure ought to depend upon evidence alone, is only as yet in the air. Private Bills continue to be referred to Select Committees of five—an institution which has, however, undergone considerable improvements during the reign. There is reason to hope, that the functions imposed upon the judges of dealing with electoral petitions are destined as time progresses to became light. After the hotly contested election of 1886 only one single election petition was set down for trial in her Majesty’s English courts, where the election turned upon a scrutiny. All these jurisdictions, all these scattered duties, as the reign progressed were gathered together by degrees and entrusted to courts sitting in Westminster Hall.
At last the final blow was given to the old system which had divided equity from law. In 1873, Lord Selborne, as Chancellor, with the assistance of Lord Cairns and aided by the Attorney-General and the Solicitor-General of the day (the present Lord Coleridge and the late Sir G. Jessel), carried successfully through Parliament a measure which, supplemented by still later legislation, has swept away the old divisions. A “Supreme Court” of Judicature—a modern variety of the ancient Aula Regia—has been substituted, each chamber or department of which administers the same principles of equity and law, and is governed by a common and simple code of procedure. Some older lawyers still cast back at times a “longing, lingering” look to the ancient courts of Westminster with their glories and their historical associations, and to the former Court of Chancery with all its genius and its faults; but by no less trenchant a revolution could the reforms of the reign have been completed and the organisation of the law adapted to the necessities of this great kingdom. The scheme in its outline was the outcome of the labour of a Commission of 1869, the names of whose members are appended below.1 All imperfections of remedy, all conflicts of jurisdiction, were at last to cease, while such a classification of business was still retained in the different branches of the Supreme Court as common sense required. It took a few years of further legislative arrangement before the plan thus adopted ripened into its present precise form; but the details of this process may on the present occasion be passed by, in order to fix our attention on the broad result. The “Supreme Court” as constituted in 1887 is made up of the High Court of Justice and the Court of Appeal. The High Court contains several divisions. The largest in size is the Queen’s Bench, consisting of fourteen judges and the Lord Chief Justice of England. It represents the old Queen’s Bench, Exchequer, and Common Pleas rolled into a single tribunal; for the Exchequer, with its Chief Baron, and the Common Pleas, with its Chief Justice, exist no more. The Queen’s Bench tries, either by jury or by a single judge, any cause which does not belong to those special classes of business which for convenience are assigned to other departments. It conducts the assizes, civil and criminal, all over England; furnishes judges who preside at the Old Bailey; is, with unimportant exceptions, the final court of criminal jurisdiction; acts as a court of review on appeal from the judgments on matters of law of the county courts; controls the action of all inferior tribunals, wields all the powers and authority of the former Common Law Courts, and administers equity as well as law. A staff of fifteen to eighteen masters are attached to it, who exercise judicial functions in interlocutory matters, report on inquiries referred to them, preside at taxation of costs, and supervise the machinery of the central office and its clerks. The next branch of the High Court is the Chancery Division, consisting of five judges, who sit singly—a chief clerk and a body of clerks working under each. On the principle of division of labour, the Chancery Division attracts to itself administrative and other business, for which it has a special organisation and aptitude; but its jurisdiction is complete and not confined to any particular subject-matter, and it administers law as well as equity. Third comes the Probate, Admiralty, and Divorce Division (under a president and another single judge), independent in itself, managing the Admiralty, divorce, and probate business of the country and controlling the district registries throughout England. From the judgments and orders of all branches of the High Court alike an appeal (except in ordinary criminal matters) lies to the Court of Appeal, composed of the Master of the Rolls and five Lords Justices; the Lord Chancellor, the Lord Chief Justice of England, and the President of the Probate, Divorce, and Admiralty Division ranking as ex-officio members. The decisions of the Court of Appeal are only reviewable by the House of Lords—a tribunal that has been strengthened by the creation of law lords, and to which the appeal business of the Privy Council (at present the court of appeal from the colonies and the ecclesiastical courts) is destined in a few years to be virtually, though not perhaps nominally, transferred.
A complete body of rules—which possesses the great merit of elasticity, and which (subject to the veto of Parliament) is altered from time to time by the judges to meet defects as they appear—governs the procedure of the Supreme Court and all its branches. In every cause, whatever its character, every possible relief can be given with or without pleadings, with or without a formal trial, with or without discovery of documents and interrogatories, as the nature of the case prescribes—upon oral evidence or upon affidavits, as is most convenient. Every amendment can be made at all times and all stages in any record, pleading, or proceeding that is requisite for the purpose of deciding the real matter in controversy. It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation. The expenses of the law are still too heavy, and have not diminished pari passu with other abuses. But law has ceased to be a scientific game that may be won or lost by playing some particular move. Simultaneously with this culminating measure of reform, we have seen the creation of one central Palace of Justice for the trial of all civil causes. On December 4, 1882, the judges of the land, with the Chancellor at their head, bade good-bye, in long procession, to Westminster Hall, and followed in her Majesty’s train as she opened in State the present Royal Courts of Justice. The old order was over and the new had begun. Taking farewell of a profession which he long adorned, the late Vice-Chancellor Bacon—who has himself been a partaker in the great movement we have endeavoured to narrate—thus summed up in last November his own experience of the legal achievements of the reign. “I have seen,” he said, “many changes, all of which have had the effect of simplifying and perfecting the administration of the law, to the great advantage of our ever-increasing community, to the protection of civil rights, to the encouragement of arts and commerce, and the general prosperity of the realm.” The name of one happily still living, and the name of one who is deplored in more than one department of the State, will always be connected with the final consolidation of the English judicature. To the co-operation for the public weal of Lord Selborne and of the late Lord Cairns—rivals in politics, but fellow-workers in the reform of the law—is chiefly due the completeness of the contrast between the English judicial systems of 1887 and of 1837.
Justice would fail in one of her chief attributes if she concentrated all her attention upon the superior courts and made no effort to bring English law within the reach, so to speak, of every subject of the Crown. It is a striking reflection, that the system of county courts, which now forms so essential a part of our institutions under the management of a body of judges whose merits it would be presumptuous to praise, is entirely a growth of the present reign. The ancient county court of the common law (perhaps the oldest tribunal of the country) had long since fallen for all practical purposes into complete disuse. Since the time of James I, local “courts of request,” designed for the recovery of trifling debts and created by local Acts of Parliament, with a limited jurisdiction only, had gradually become common, but were wholly inadequate to the wants of the public. At her Majesty’s accession there was no tribunal in existence that discharged the duties or possessed the jurisdiction of the present county court. The year 1846 sounded the knell of the old-fashioned and comparatively useless courts of request. In their place was built up slowly, by a dozen or more successive statutes, the county court of to-day. Five hundred districts have been formed, with about fifty-nine circuits—a single judge, as a rule, being annexed to each circuit. Every judge in the matters submitted to his cognisance administers law and equity concurrently—is a judge of bankruptcy outside the jurisdiction of the London Bankruptcy Court, and in certain selected districts an Admiralty judge as well. The procedure has been rendered simple and rapid; but its details and the limits of the jurisdiction to which it belongs, though matters of considerable practical importance, are beyond the range of this paper. If the population of the country are at last furnished at their very doors with justice, cheap, excellent, and expeditious, they have to thank the county court legislation of the last forty years, and the men who have carried out its provisions in the provinces.
The progress of the general law relating to the enforcement of debts is a subject interwoven with the administration of the law both in our supreme and in our provincial courts. Ancient and modern history are alike full of the record of hard codes pressing severely upon debtors. In England, down to within living memory, our law of debtor and creditor reposed upon the persistent notion that insolvency was a crime. Paramount necessities of trade and commerce had taught us, indeed, the distinction between the case of the insolvent trader who was unable to fulfil his commercial engagements, and that of the ordinary debtor who had no such mercantile excuse. To the debtor who was not in trade, and who failed to liquidate his debt, the English law applied the sharp, stern corrective of imprisonment. It sent him to gaol—till he found security or paid—before the debt was even proved, and on a mere affidavit by an alleged creditor that it was owing. After verdict and judgment, the unsatisfied party had an absolute option of taking, in satisfaction, the body of his debtor. Traders to whom the bankrupt law applied might escape by making full disclosure and complete surrender of their effects for distribution among their general creditors; and, owing to the demands of the commercial world, the law of bankruptcy since the reign of Henry VIII had been the subject of constant amendment. But the general law of insolvency continued in its barbarous condition, owing in part perhaps to the legal difficulty of enforcing money debts against landed property. Occasional Insolvent Acts from time to time were passed for the relief upon terms of insolvents who might apply for their discharge, and ultimately a permanent Insolvent Court was established to deal with their petitions. Yet it was not till after the beginning of the reign that arrest upon mesne process was abolished, and imprisonment in execution of final judgments continued to be the law till a far more recent date. From October 1, 1838, to December 1, 1839 (a period of fourteen months), 3,905 persons were arrested for debt in London and the provinces, and of those 361 remained permanently in gaol in default of payment or satisfaction. Out of the 3,905 debtors so arrested, dividends were obtained in 199 cases only. The debtor who was left in durance vile shared a common prison with the murderer and the thief, and the spectacle of misfortune linked in this manner to the side of crime was as demoralising as it was cruel. The following1 is the account given in 1844 by a Government inspector of the condition of the debtors lodged in Kidderminster Gaol, which was read to the House of Commons by Sir James Graham:—
“At the time when I visited the gaol there were six male debtors confined under executions from the Court of Requests. They occupied a single room paved with bricks, the extent of which is twelve feet in length by twelve in breadth, which is destitute of table, bed, seat, or any other species of furniture whatever; and there is no fireplace or any means of lighting a fire. A heap of straw is scattered over the floor of half the room, on which the prisoners sleep, for they have no other bedclothes, and from time to time the worst part of the straw is removed and better substituted for it. The privy occupies a corner of the room, but, from the oppressiveness of the stench, the prisoners have been allowed to close it with straw. The yard into which the room opens measures thirteen feet in length by twelve feet in breadth, and is so badly drained that in wet weather the water lies in it to such a degree as to confine the prisoners entirely to their room. This yard is closed in by a high wall, surmounted by an iron lattice. The prisoners are very dirty, as they never take off their clothes, and are allowed only two jugfuls of water per day for drinking and washing themselves. Their diet consists of an allowance of the quarter part of a quartern loaf of bread per day, but their friends are permitted to bring them any other articles of food while the officer is there. In case of illness there is no means of getting assistance, for, though the prisoners might succeed in making themselves heard by the inhabitants of the neighbourhood, they could not afford any help without the beadle, who lives in a remote part of the town. Female prisoners, if confined there, were deprived of all separate accommodation, and cannot be visited by their own sex in cases of sickness, except while the officer is there.”
The leading idea of the law in the case of the ordinary insolvent was to seize his person. The principle of the law of bankruptcy with reference to a trader is to confiscate his property for the benefit of creditors. But during the first thirty years of the century, the English bankruptcy law had been, and at the beginning of the present reign still was, a discredit to a great country whose fleets covered the seas and whose commerce ranged the globe. Scotland and several Continental nations were far in advance of us. England alone among her commercial rivals still kept to the mischievous doctrine that mercantile insolvency was to be rooted out as if it were an offence against society. The bankruptcy law down to within fifty years ago maintained, accordingly, a procedure the severity of which from this distance of time appears monstrous. The one mitigating feature about it lay in the fact that the great commercial world, alienated and scared by the divergence of the English bankruptcy law from their own habits and notions of right and wrong, avoided the court of bankruptcy as they would the plague. The important insolvencies which had been brought about by pure mercantile misfortune were administered to a large extent under private deeds and voluntary compositions, which, since they might be disturbed by the caprice or malice of a single outstanding creditor, were always liable to be made the instruments of extortion. “To the honest insolvent the bankruptcy court was a terror.” To the evildoer it afforded means of endlessly delaying his creditors, while the enormous expenses of bankruptcy administrations rendered it the interest of few to resort to the remedy, except with the object of punishing the fraudulent or vexing the unfortunate.
The legal illusion that a debtor primâ facie must be wicked, produced in the bankruptcy law, as indeed was natural, a curious procedure which began in secrecy and ex parte processes, and every stage of which was capable of being abused. The declaration in 1831 of a Lord Chancellor, made from his place in Parliament, that “ever since he had been acquainted with the profession he had uniformly heard two evils complained of, the state of the bankrupt law and the mode of its administration,” was but the echo of general opinion. The adjudication, with which the performance opened, deprived the debtor (till it was reversed) of all his property, left him absolutely penniless, and pilloried his name as that of an insolvent in the Gazette. Yet this decree was granted ex parte in his absence, without the knowledge of anybody except the one soi-disant creditor who had chosen to put the law in motion. All that was needed was an affidavit of debt, coupled with a bond which bound the deponent to substantiate his allegation. Upon such material, a fiat issued to a group of commissioners, who assembled from their houses in town or country, as the case might be, met in private at a coffee-house or inn, and after an ex parte hearing declared the supposed debtor bankrupt. A warrant was thereupon delivered to a messenger, directing him to enter the bankrupt’s house, to lay hand upon his furniture, ready money, property, and books of account, and to serve him with a summons to appear. The sight of the officer armed with this authority was the first notice to the trader of an occurrence which put at issue his whole commercial reputation. Under this system the first merchant in London or in Manchester was liable to suffer unspeakable annoyance, and the whole Royal Exchange, as it was said, might wake up one morning and find themselves in the Gazette.
An adjudication so obtained necessarily lacked the element of finality. It could be impeached by the bankrupt himself as well as by others before any other civil court, even after the whole estate of the bankrupt had been divided. Its validity might be challenged in an action of trespass or of false imprisonment brought against the commissioners of bankruptcy, or against their messenger who had done nothing except execute his warrant, or against the assignee who had innocently dealt with the estate. The mere intimation on the part of the bankrupt that he disputed the propriety of the adjudication, and denied the alleged act of bankruptcy on which it was founded, was enough to paralyse the perplexed assignee, who thenceforward, if he distributed the assets, did so at his own risk. In the year 1825 a trader of the name of Campbell had been declared bankrupt on testimony that he had denied himself to a creditor. Campbell disputed the adjudication and the allegation upon which it was based. Thirteen years afterwards, in 1838, the question whether he had really denied himself to the creditor who called on him was still in controversy, and remained unsolved even after Campbell’s imprisonment and death. During the interval 170,000l. of his property had been received by his assignees, but not one farthing of the amount in 1838 had yet reached the hands of his general creditors, while 50,000l. had been expended in costs.
The commissioners under whose directions an adjudication took effect were gentlemen appointed to perform this function, who lived at a distance perhaps from one another, who had to be convened on each occasion and to travel (in the days of the infancy of railways) perhaps thirty or forty miles to attend the rendezvous. Shortly before 1837, the metropolis had been relieved from this incubus, and the seventy commissioners of London replaced by a London Court of Bankruptcy, consisting of a chief judge and two colleagues (forming a court of review) and six commissioners. But the country districts still groaned under a judicial army of 700 commissioners divided into 140 courts. Each tribunal, as a rule, had five members (generally a couple of local barristers and three local solicitors), who taxed among other things the local practitioners’ costs. During the years 1837-39 the number of fiats opened before the 700 country commissioners was, on an average, 780 per annum—nearly a judge to every fiat—while the fees paid for this process, and wrung out of insolvent estates, amounted to between 34,000l. and 35,000l. But the paucity of provincial fiats was no indication of provincial prosperity. London creditors found the difficulty of proceeding against debtors in the country nearly insuperable, and hesitated to throw good money after bad. Finally, the giving or withholding of the bankrupt’s certificate depended on his being able to procure the necessary number of creditors to sign his certificate of discharge. Secretion of traders’ effects, bribery of creditors, manufacture of fictitious claims, were the natural consequence of such a system.
Several distinct endeavours have been made by Parliament since those days to create an ideal plan for the administration of bankruptcy and for the distribution of a bankrupt’s property. The legislative pendulum has oscillated from one theory to another, as the imperfections of each were experienced in succession; and the pendulum will yet go on swinging. But the whole of the intolerable abuses above set forth have been swept away. Imprisonment for debt is gone, except in particular cases, where the non-payment of money is accompanied with fraud, misconduct, breach of trust or of duty, or disobedience to the order of a court, or where it is shown that the debtor can but will not pay. Courts of bankruptcy have been created, with a machinery the details of which require still to be watched with care, as they still belong to the category of legislative experiment; but traders and non-traders alike have been brought under a system which is as complete as the ingenuity of Parliament has hitherto been able to render it.
Meanwhile, the country had not stood idle in reference to the administration of the law for the repression of crime. As early as 1826, the late Sir Robert Peel initiated a course of legislation intended to consolidate and amend the criminal law, which till then had been scattered in fragments over the statute book, uncollected and unarranged. A commission had issued shortly before 1837 with the view of digesting the written and unwritten law into two monster Acts of Parliament, and the earlier portion of the reign produced a series of valuable reports of successive commissions upon the subject. But although a digest was prepared in 1848, it never became law. In 1852, Lord St. Leonards determined to attempt codification as an alternative expedient, but after two years of labour this project was also laid aside. Both digest and code appearing to be beyond the range of practical politics, the idea of consolidating and amending the existing law was revived again, and six Criminal Law Consolidation and Amendment Acts of much importance were passed in 1861, which now constitute the nucleus of our written criminal law. This is the greatest achievement of the reign in the branch of the law now under consideration. Mr. Justice Stephen has produced of late years a draft code that has not yet received the sanction of Parliament, but which in itself is an effort worthy to be remembered as one of the valuable pieces of industry of the last fifty years. Among the names that deserve to be recollected in connection with the amendment of the statute book stand pre-eminent those of Lord Campbell and Lord Cranworth, of Sir J. Jervis (the Chief Justice of the Common Pleas), and of the late Mr. Greaves. The law of libel has been corrected by enabling a plea of justification to be pleaded in matters where publication of the truth is for the public interest. In 1851 invaluable, though not unlimited, powers of amendment were conferred on criminal courts, and other practical changes in procedure enacted to prevent slips and miscarriages of justice. In 1865, the present Mr. Justice Denman introduced into Parliament an Act to rectify certain anomalies, chiefly in the law of evidence, and an Act due to the initiation of the late Mr. Russell Gurney contributed, two years afterwards, greater improvements to the procedure. The present Court of Crown Cases Reserved was created in 1848: a tribunal for which doubtful points of law may be reserved at the trial—reservations previously dealt with by the judges in a less public and general, and therefore a less satisfactory way. But the criminal procedure and practice has undergone less alteration than the civil, probably because ample protection for the prisoner was afforded even by the older law. Although miscarriages are but rare, the system of criminal pleading is still extraordinarily cumbrous and involved. Ten years ago, an indictment drawn by the present writer in an important Government prosecution, and settled in consultation with the present Lord Chancellor and the late Lord Justice Holker, reached, when engrossed on parchment and presented at the Old Bailey, ninety yards in length. Nevertheless there is no place in the world where justice is more admirably done than in our great courts of criminal law. Many difficulties yet remain to be overcome in devising, if possible, some adequate system for the interrogation and examination of the accused, in equalising sentences throughout the kingdom, in bringing those passed at quarter sessions into more complete harmony with those inflicted by the judge at the assizes, and in graduating and adjusting with greater nicety as well as in lessening the severity of the longer sentences of penal servitude. As regards the procedure before justices, and all matters that relate to their jurisdiction, the reign has been fruitful of the best and most careful legislation. Jervis’s Acts (drawn by Mr. Archbold and introduced by Sir T. Jervis when Attorney-General), the new Summary Jurisdiction Act of 1879, and a group of statutes that extend and regulate the summary powers of magistrates, have been of considerable benefit to society. At the beginning of the reign there were outside the metropolis but two or three stipendiary magistrates. The extension of their number has been a measure of unqualified good. Extradition statutes have been passed, which, together with a series of treaties, now enable justice to follow many English criminals beyond the seas, and to remit for trial to their own country many foreign culprits who have fled to seek an asylum here.
For some few years before 1837, the punishment of death had ceased to be inflicted except for the crime of murder. But the condition of the Statute-book in this respect had not kept pace with the humane practice of the Executive. Death was still the sentence for some lesser offences, though it was, as a rule, commuted. So lately as 1833, a poor little boy of nine pushed a stick through a broken window, and pulled out some painters’ colours worth twopence. He was sentenced to death for burglary. The result of this condition of the law was twofold. In the first place, it led prosecutors and witnesses to abstain from pressing home the evidence of a prisoner’s guilt, and to connive anxiously at his escape. In the second place, the deterring influence of the sentence was destroyed, since it was not likely that it ever would be enforced. In the year 1836, the number so condemned to death was four hundred and ninety-four, only thirty-four of whom were hanged. The first year of her Majesty saw a series of Acts of Parliament limiting the number of capital sentences and graduating the secondary punishments. In 1861, a still further amelioration of the law took place, and now murder and treason, piracy with violence, and setting fire to her Majesty’s dockyards, arsenals, ships, and naval stores are the only capital crimes. While the population of England and Wales has nearly doubled, the average number of executions, according to Sir Edmund Du Cane, has not increased at all, and the capital sentences have enormously decreased. The present reign, moreover, has seen the extinction of the savage custom of converting into a public spectacle the execution of the final sentence of the law. Down to 1837, the pillory was still a punishment for perjury and subornation of perjury. It ceased in that year; but public executions remained in fashion for thirty years longer. The scenes of licence and disorder which on such occasions might be witnessed outside the prison walls have been portrayed by the graphic pen of more than one great author of the age. Each unhappy criminal, as the fatal day drew near, became the object of sensational curiosity. In 1840, the Lady Mayoress of the day attended the funeral sermon preached in Courvoisier’s presence on the last Sunday before his death. On the night preceding an execution, brutal crowds took up their station in the vicinity of the gaol, and parties of pleasure were organised to witness the scene of death—parties not composed only of the uneducated. Even down to 1868 English gentlemen might be seen occasionally at the adjacent windows which commanded a commodious view of the gallows and the drop. The barbarous ceremony which served to familiarise thousands with the agonies of a death struggle is now a thing of the past, and since 1868 the law inflicts its most terrible punishment in private.
Prevention and detection of crime are subjects which, like the subject of the execution of the law’s judgments, may fairly rank under the head of its administration. Not the least valuable of the reforms of the reign has been the perfecting throughout the country of a proper system of police organisation. The metropolitan police, to which not merely London but all England owes so much, are a still earlier institution; and, before the year 1836, legislation had provided a constabulary for the boroughs. A police force for the rural parts of the county palatine of Chester was also in existence, and many country districts had themselves raised voluntary associations to maintain officers of their own—a task in which they received valuable aid from the police of the metropolis. But, with these exceptions, the lesser towns and the rural districts were guarded, in 1837, from the depredations of the criminal by the effete institution of the parish constable and the watchman. It requires an effort of the imagination to realise the extent to which lawlessness then reigned in the suburbs of our large towns and in our country places. In the smaller towns and villages the constable was chosen from the humblest order of tradesmen, farmers, or even day-labourers. He was frequently the master of the ale house or the village shop, who for a trifling remuneration had accepted the office, or had it forced upon him in rotation; and the guardians of the public peace could not always read or write. The last thing such officials wished was to incur the trouble, the danger, or the odium of pursuing or arresting a culprit. Over a considerable portion of England, property was less secure than in any great European country, excepting only Italy and Spain. Commercial travellers were loth to travel after dark. One of them, who for twenty years had made the round of the south-eastern counties from Norfolk to Devonshire, states in the year 1838 that, although perfect security prevailed within five or six miles of the metropolis, it would be imprudent beyond that distance to venture out after nightfall; and that if he could travel where there were no police with the same freedom as he could within the police district, he should be able on his rounds to save perhaps five days in forty. Property was safe neither on the river, nor on the canal, nor upon the turnpike road. Commercial houses came forward in numbers to complain that whole lines of canal were absolutely unprotected, that bales were opened, and their boxes and cases broken or abstracted. Along different lines of canal receivers of stolen goods set up regular establishments, and entire families in the neighbourhood lived on the receipt of the plunder. Silk, wine, spirits, flour, malt, groceries of every description disappeared wholesale. In the Enfield district, upwards of thirty gentlemen in the year 1838, during a period of twelve months, had their stables opened and large quantities of property carried away. Footpads lurked in the vicinity of the great manufacturing centres of the north; robbery with violence, murder itself, went often unpunished. Gangs from towns drifted into the country for the purposes of crime; the towns, in their turn, suffered from the bad characters who took up their residence in the country, with no apparent anxiety to avoid the presence of the parish constable. Vagrants perambulated the kingdom, living on their wits, and even the cottagers’ dwellings were rifled while the inmates were working in the fields. The farmer who kept no private watchman, or who did not live within the radius of an association, was liable to lose great quantities of agricultural produce. If he lived near a town like Leeds, he hesitated before returning home after dark from the market or the fair, unless he was in the company of friends. The local constable was sometimes too stupid, sometimes too busy, often too timid, to attend to information given him. It was due to the same cause that wreckers at this date haunted the dangerous and desolate places on the coast. Rural crime, in fact, went unprevented, undetected, unprosecuted. The returns of prosecutions and convictions, to which the statesman and the philanthropist in our time have recourse as affording some clue to the prevalence or absence of crime, told absolutely nothing, for they bore no relation at all to the good conduct of the locality. Men abstained from prosecuting when there was no certainty of redress, and the absence of criminal statistics resulted frequently from the undisturbed immunity of the offenders. In two instances towards the beginning of the reign, in neighbourhoods where crime was remarkably prevalent, her Majesty’s judges were presented with white kid gloves at the assizes, as emblematic of the purity of the district.
Even in country towns and places where a constabulary force was raised and paid by voluntary effort, the justice administered by it was rude. In one district, in 1838, the parish constables were under standing orders from the magistrates to tap with their staves the pockets of all labourers or other persons found abroad after nightfall, in order that the pheasants’ or partridges’ eggs therein, if any, might be broken! In conformity with the behest of the chief magistrate of one considerable town, the constables seized all vagrants found within their jurisdiction and took them to prison to have their heads shaved, after which operation they were set at liberty and went their ways. The superintendent of police was asked by what right he apprehended them and cut their hair. “The mayor,” he replied, “who is a man of few words, says he crops them for cleanliness.” In some rural districts the paid police were in the habit of dispensing altogether with the constitutional formality of a warrant. An officer interrogated on the subject frankly confessed the irregularity, but added, that “he chanced it.” In another new borough the superintendent of police prided himself “on never waiting for a warrant. It was not his plan. It was a waste of time.” “I am,” he added, “for being prompt in everything. I say, ‘If I can take him up with a warrant I can take him up without a warrant.’ ” In the year 1839, there were upwards of five hundred voluntary associations for promoting the apprehension and prosecution of felons—for performing, in fact, by individuals the first duty of a civilised government. Among the rules of some of them were rules for mutual insurance by payment of part of the loss caused by depredations. In some of the farmers’ associations members were bound by their code, in case of horse-stealing, to mount and join themselves in pursuit of the thief upon an alarm given.
By Acts of 1839 and 1840 Parliament enabled bodies of police to be established for a county. But the English farmer and the English ratepayer hesitated, from fear of loading the rates, to put in force the permission which the Legislature had given. It was not till seventeen years afterwards that the establishment of county police was made compulsory in all places where it had not been introduced, and that the organisation of what has been called our standing army against crime was placed upon its present footing. What requires to be done to perfect still further its efficiency, it would be beyond the limits of this paper to discuss. To what has already been accomplished is due the disappearance in the course of the present reign of a lawlessness and insecurity in our country districts which had become a disgrace to England.
The treatment of our criminal classes while undergoing sentence of imprisonment or penal servitude constitutes the last head of the present subject; and limits of space require that the notice of it should be brief. The darkest ages of English prisons had closed before 1837, but a prison system was as yet unorganised. Throughout our local gaols there was no uniformity of management—the hours of labour, the discipline, the diet varied in each; a separate system of confinement, a careful graduation of punishments, the classification of offenders, the construction and sanitation of the prison, all remained to be dealt with upon a natural and complete basis. The years 1840-43 began an epoch of improvement with the opening of Pentonville—a model establishment, with airy single cells and sanitary arrangements of the best kind, which has been the means of developing and perfecting in England the separate system, and been largely imitated abroad. Fifty-four new prisons were constructed on a similar method during the next six years. But prison reform still moved slowly, owing to the number of local gaols, each under a management of its own. Even in the year 1863, the food at one gaol was furnished from a neighbouring inn, while at another the inmates passed fifteen hours out of the twenty-four in bed. In some smaller prisons the prisoners slept two in a bed, in compartments which the warders were afraid to enter in the dark. Parliament in 1865 introduced the separate cell system, with rules for the discipline, health, diet, labour, and classification of the inmates; but the essential step towards complete uniformity was not adopted till 1877, when Government took over the local prisons of the country, and the Secretary of State and the Commissioners of Prisons became responsible for their management. A uniform code now regulates them all, and prisoners awaiting trial are separated from those who have been found guilty. The Government convict prisons, where sentences of penal servitude are carried out, belong to a different category, and are under a different direction and distinct rules. The “hulks” have been abandoned as a receptacle for convicts, and transportation to the Australian colonies has ceased since 1867. Its evils had long been intolerable to our colonists. The four or five thousand persons who were sent out on an average, at the beginning of the reign, as convicts to New South Wales alone, were not absorbed in the population, but, to borrow the language of Lord John Russell, “formed a large and vicious separate class.” The future of the convict depended on the character for humanity of the master to whom he was assigned, and flogging by colonial magistrates was a common and recognised punishment. Modifications of the system were tried between 1840 and 1850, but failed. At last, in 1853, penal servitude in England was substituted in the case of all crimes for which fourteen years’ transportation had been previously a possible sentence, and in 1857 was legalised in every case. Since the year 1867 no convict has been sent to Australia. Reformatories and industrial schools are institutions that belong wholly to the present reign, and will hereafter be reckoned among not the least of its humane inventions.
A lawyer may perhaps be excused for mingling with his retrospect of a period some names that appear bound up with the honour of his profession. The public service is greater than the men who serve it, and no judge, fortunately, is indispensable to the law, any more than a single wave is indispensable to the sea. Of the living, this is not the time nor place to speak. But as regards the dead, no generation can complain of judicial mediocrity that has seen upon the woolsack, Cottenham, Lyndhurst, St. Leonards, Cranworth, Chelmsford, Westbury, Cairns; at the Rolls, Langdale, Romilly, and Jessel; among its Lords Justices, Knight Bruce, Turner, Mellish, James, Giffard, Thesiger; in its Court of Chancery, Wigram, Kindersley, Stuart, Hatherley, Wickens; in its Queen’s Bench, Denman, Campbell, Cockburn, Williams, Wightman, Coleridge, Patteson, Crompton, Lush; at the Common Pleas, Jervis, Erle, Maule, Willes; at the Exchequer, Abinger, Pollock, Kelly, Parke, Alderson; at the Privy Council, Kingsdown; Cresswell in the Probate and Divorce Court, Lushington at the Admiralty. Transplanted to the House of Lords, or raised to the Privy Council, Lords Penzance, Blackburn, Bramwell, Sir John Mellor, Sir Henry Keating, Sir Montague Smith, and Sir James Bacon remain to remind us of the glories of courts now extinct. Apart from the luminaries of the Bench, the Bar of England looks back with pride on the memory of Follett, Karslake, Benjamin. The roll of the legal heroes of the past is always healthily inspiriting. It nerves those who come after—in the language of the Poet Laureate—to
For much always is left to be accomplished. There is and can be no such thing as finality about the administration of the law. It changes, it must change, it ought to change, with the broadening wants and requirements of a growing country, and with the gradual illumination of the public conscience.
THE DEVELOPMENT OF JURISPRUDENCE DURING THE NINETEENTH CENTURY1
THE term “jurisprudence” has been used with so many meanings, and each meaning is so vague, that it is necessary at the outset of any discussion of it to limit in some way the meaning intended to be put upon it. By jurisprudence, as used in the programme of this Congress, I understand to be meant the whole body of law of the European and American nations, regarded as a philosophical system or systems; in short, the science of justice, as practised in civilized nations. My own topic, therefore, is to describe the changes in the law or in the understanding of the law in the civilized world during the past century.
So broad a subject cannot, of course, be treated exhaustively, nor can any part of it be examined in detail. My effort will be merely to suggest, in case of a few branches of law where the changes seem to be typical, the course and reason of those changes.
If we compare the condition of the law at the beginning of the century with its present condition, we shall gain some idea of the amount of change in the law itself and its administration. In England conservatism and privilege and the dread inspired in the heart of the people by the excesses of the French revolution conspired to retain in the law the medieval subtleties and crudities, though the reason of them had been forgotten and the true application of them often mistaken. The criminal law was administered with ferocity tempered by ignorance; all the anomalies and mistakes which have disfigured its logical perfection are traceable to the period just before the beginning of the last century. Criminal procedure was still crude and cruel. The accused could neither testify nor be assisted by counsel; legally, death, actually, a small fine or at most transportation, was the punishment for most serious offenses. The amount of crime in proportion to the population was enormously greater than now; there were no preventive measures, no police, not even street lights. The law of torts occupied almost as small a place as it did in the proposed codes; the law of contracts was so unformed that it was not certain whether Lord Mansfield’s doctrine that a written commercial agreement needed no consideration, would prevail or not. Business corporations were hardly known; almost the whole field of equity was hidden by a portentous cloud. Lord Eldon had just become chancellor. What the law of England was, such with little difference was the law of our own country. Its application to the complex life of the present was not dreamed of; and it had to be greatly changed before it could be adapted to the needs of to-day. Yet to say, as did Bentham, that it was rotten to the core and incapable of amendment was grotesquely incorrect; to say, as one of his latest disciples did, that it was the laughing-stock of the Continental nations is strangely to misread history. In 1803, with all its imperfections and crudities, it was probably the most just and humane system of law under which human beings were then living.
On the Continent, feudal rights characterized civil law; torture was the basis of the administration of criminal law. And in no country of any size had the people yet obtained what had been given to Englishmen by their greatest king more than six hundred years before,—a common law. Each province throughout southern and western Europe had its custom, each land-owner his own jurisdiction. The rigor of the criminal law had been somewhat modified in France by the legislation of the revolution, and just at the beginning of our century the Civil Code, first of the French Codes, was adopted. These codes, temporarily or permanently impressed on a large part of Europe outside of France, constituted the beginning of modern legislative reform.
The spirit of the time molds and shapes its law, as it molds and shapes its manner of thought and the whole current of its life. For law is the effort of a people to express its idea of right; and while right itself cannot change, man’s conception of right changes from age to age, as his knowledge grows. The spirit of the age, therefore, affecting as it must man’s conception of right, affects the growth both of the common and of the statute law. But the progress toward ideal right is not along a straight line. The storms of ignorance and passion blow strong, and the ship of progress must beat against the wind. Each successive tack brings us nearer the ideal, yet each seems a more or less abrupt departure from the preceding course. The radicals of one period become the conservatives of the next, and are sure that the change is a retrogression; but the experience of the past assures us that it is progress.
Two such changes have come in the last century. The eighteenth had been, on the whole, a self-sufficient century; the leaders of thought were usually content with the world as it was, and their ideal was a classical one. The prophets of individuality were few and little heeded. But at the end of the century, following the American and French revolutions, an abrupt change came over the prevailing current of thought throughout the civilized world; and, at the beginning of the period under discussion, the rights of man and of nations become subjects not merely of theoretical discussion but of political action. The age became one of daring speculation. Precedent received scant consideration. The American revolution had established the right of the common people to a voice in the government. The French revolution had swept feudal rights from the civilized world. Although the French Republic was just passing into the French Empire, it was an empire which belonged to the people, and one of which they were proud. The Emperor was the representative and the idol, not of an aristocracy, but of his peasants and his common soldiers. The dreams of Napoleon himself, to be sure, were not of an individualistic paradise, where each man’s personality should have free play and restraint on his inclinations be reduced to the minimum; but so far as he was able to put his centralizing ideals into execution he raised but a temporary dam, which first spread the flood of liberty over all Europe and was finally swept away by the force of the current.
Starting from this point, the spirit of the time for more than a generation was humanitarian and individualistic. In political affairs independence was attempted by almost every subordinate people in the civilized world, and was attained by the South American colonies, by Greece, and by Belgium. In religion freethinking prevailed, and every creed was on the defensive. In society women and children were emancipated. Slavery was abolished, and the prisons were reformed. It was a destructive rather than a constructive age, and its thinkers were iconoclasts.
But a change, beginning with the second third of the century, was gradually accomplished. The application of the forces of steam and electricity to manufacture and transportation has had a greater effect on human life and thought than any other event of modern times. The enormous power exerted by these forces required great collections of labor and capital to make them effective. Association became the rule in business affairs, and as it proved effectual there, the principle of association became more and more readily accepted in social and political affairs, until it has finally become the dominating idea of the time. The balance has swung; the men of our time are more interested in the rights of men than in the rights of man; the whole has come to be regarded as of more value than the separate parts. Beginning with the construction of railroads, the idea attained a firm standing in politics in the sixties. Whereas before that time the movement had been toward separation, now it was toward consolidation. People felt the tie of nationality stronger than the aspiration for individual development. The unification of Italy and of Germany, the federation of Canada, the prevalence of corporate feeling in America which, first passionately expressed by Webster, prevailed in ’65, mark the principle of association in political affairs. In business the great combinations of capital have been the salient features of the change.
Professor Dicey, in a most suggestive series of lectures a few years ago, pointed out many ways in which the English law had been affected by this progress of thought during the nineteenth century. Since the thought of the whole world has been similarly affected we should expect to find, and we do find, that not merely English law but universal jurisprudence has developed in the direction of the progress of thought,—during the first period in the direction of strengthening and preserving individual rights, both of small states and of individuals, during the second period in the direction of creating, recognizing, and regulating great combinations, whether of states or of individuals. Let us develop this line of thought by examining the progress of law in a few striking particulars.
The most striking development of the law of nations during the last century has been in the direction of international constitutional law, if I may so call it, rather than of the substantive private law of nations. At the beginning of the period the fundamental doctrine of international law was the equality of all states great or small, and this idea, as one might expect, was fully recognized and insisted on during the first fifty years of the century. There was little development in the law otherwise. Each nation adopted and enforced its own idea of national rights, and was powerless to force its ideas upon other nations. When, at the beginning of the century, France set up her absurd notions of her own national rights, other nations were powerless to restrain or to teach her. There was no international legislature or court, no method of declaring or of developing the law of nations. Each state was a law to itself, giving little more than lip service to a vague body of rather generally accepted principles. The alliance to conquer Napoleon, to be sure, brought several great nations into a common undertaking; but this alliance, while of political importance, added nothing to the growth of the law.
In the last half of the century, however, there has been an enormous development of combinations, both to affect and to enforce law; and resulting therefrom a development of the substance of the law itself. The associations of civilized nations to suppress the slave trade both made and enforced a new law. The concert on the Eastern question, the Congress of Paris, the joint action of the Powers in the case of Greece and Crete, and in the settlement of the questions raised by the Russo-Turkish and Japanese wars, the Geneva and the Hague conventions, are all proofs of the increasing readiness of the Great Powers to make, declare, and enforce doctrines of law; and they have not hesitated, in case of need, to make their action binding upon weaker states, disregarding, for the good of the world, the technical theory of the equality of all states. While all independent states are still free, they are not now regarded as free to become a nuisance to the world. Perhaps the most striking change in the substance of international law has been the extraordinary development of the law of neutrality. A hundred years ago the rights and the obligations of neutrals were ill defined and little enforced. To-day they form a principal theme of discussion in every war, and the neutral nations, for the good of the whole world, force the belligerents to abate somewhat from their freedom of action.
It may be worth while, in order to see how far this constitutional change has progressed, to look for a moment at the present condition of the constitutional law of nations. We have a body of states known as the “Great Powers” which have assumed the regulation of the conduct of all nations. In this hemisphere the United States is sponsor for all the smaller independent nations. In Europe the Great Powers exercise control over the whole of Europe and Africa and a large part of Asia, while in the extreme Orient Japan seems likely to occupy a position similar to our own in the western hemisphere. The constitutional position of this Confederation of Powers is not unlike that of the states of the American Confederation in 1780, and in certain ways it is even further developed. Its legislation is not in the hands of a permanent congress, but it is accomplished by mutual consultation. For action, as Lord Salisbury once informed the world, “unanimous consent is required,” as was the case in our Confederation. Executive power has been exercised several times either by the joint show of force by two or more powers, or by deputing one power to accomplish the desired result. The judiciary, as a result of the Hague Convention, is much further developed than was that of the Confederation, even after 1781. All of this has been accomplished in fifty years, and the prospect of peace and prosperity for the whole world as a result of its further development is most promising.
The progress that has been described is well indicated by the course of the movement for codification.
Just a hundred years ago the first of the French Codes was adopted. These codes had two purposes: first, to unify the law which, before the adoption of the codes, had differed in every province and every commune of France; second, to simplify it so that every one might know the law. The first purpose appealed most strongly to lawyers and to statesmen. The second appealed to the people generally. Whatever reason weighed most with Napoleon, there is no doubt which made the codes permanent. The people of France, and of the other countries where they were introduced, hailed them as creating a law for the common people. They persisted in most countries where they had been introduced by Napoleon’s arms in spite of the later change in government; whether the country on which they had been imposed was Flemish, German, Swiss, or Italian, it retained the codes after the defeat of Napoleon, and they have remained almost the sole relic of his rule, the only governmental affairs which retain his name, and, except Pan-Germanism, the only lasting monument of his labor. They persisted because they were in consonance with the individualistic feelings of the times.
Bentham urged codification on England for the same reason:
“That which we have need of (need we say it?) is a body of law, from the respective parts of which we may each of us, by reading them or hearing them read, learn, and on each occasion know, what are his rights, and what his duties.”
The code, in his plan, was to make every man his own lawyer, and the spirit of individualism could go no further than that. Conservative England would not take the step which Bentham urged, but a code prepared by one of his disciples upon his principles was finally adopted (by belated action) in Dakota and California, and was acclaimed as doing away with the science of law and the need of lawyers.
The result of the adoption of the French Codes and the Benthamite Codes has been far from what was hoped and expected. They were to make the law certain and thus diminish litigation and avoid judge-made law. That litigation has not been diminished by codification can easily be shown by comparing the number of reported cases in the states which have adopted the codes, and in states which have not adopted them. As a result of this comparison, we find that France has over fifteen volumes a year of reports of decisions on points of law, four of them containing over 2500 cases each; England has about ten volumes a year of reports of decisions on points of law, containing in all about 900 cases. California has from three to four volumes of reports of decisions on points of law each year; 100 since the adoption of the code in 1871; Massachusetts has two to three volumes of reports of decisions on points of law, 76 in all during the same period. As bearing on the avoidance of judge-made law, which Bentham, by a curious ignorance one is perhaps not quite justified in calling insane, regarded as inferior to legislature-made law, the result of the codes in one or two points will be instructive. The French Code provided that all actions ex delicto should be decided by the court as questions of fact, without appeal for error of law. Notwithstanding this provision, recourse has been had to the Court of Cassation and a system of law has been built up on judicial decisions similar in character and comparable in amount to that built up in England in the same way during the same period. There is, for instance, a French law of libel which must be learned, not from the code but from the pages of Dalloz and the Pandectes Françaises, just as our law of libel must be studied in the law reports and the digests. Even if a point is apparently covered by an express provision of the code, judicial decisions may affix a meaning to the provision which can be known only to a student of law. Thus the French Code appears to lay down the proposition that capacity to contract is governed by the law of the party’s nation, yet the French courts refuse to apply this principle, and instead of it apply the French law of capacity in each case where the other party to the agreement is a Frenchman who acted bona fide or where the party to be bound was commorant and doing business in France. These are two examples only out of many that might be cited of the failure of the code to fulfill the hopes of its individualist sponsor. If we leave the French Code and come to those in our own country, we shall find the same process going on. The law of California has been developed in much the same way since the adoption of the code as before, and the common law decisions of other states are as freely cited by her courts as authority as if her own law had never been codified. The uncertainty and confusion caused by the adoption of the New York Civil Code of Procedure is a well-known scandal.
It is true that Bentham objected to the French Code as imperfect and made upon the wrong principle, and that Field objected to the New York Code of Civil Procedure as finally adopted. These objections were most characteristic. Every codifier desires not merely a code but his own code, and will not be satisfied with any other. Hence it follows that no complete code can be adopted which would be satisfactory to many experts in law. Furthermore, no codifier will be satisfied to accept the judgment of a court or any body of other men upon the meaning of his code, nor to accept the interpretation of the executive department on the proper execution of the law. It will follow that each codifier of the Benthamite type must be legislature, judge, and sheriff, and the logical result (like the logical result of all individualism carried to an extreme) is anarchy.
This failure of the hope of the individualistic codifiers and the change in the spirit of the age have affected our ideal of codification. The purpose of the modern codifiers is not to state the law completely, but to unify the law of a country which at present has many systems of law, or to state the law in a more artistic way. In other words, the spirit of the modern codifiers is not individualistic but centralizing. Thus the modern European codes of Italy, Spain, and Germany were adopted in countries where a number of different systems of law prevailed, and the purpose of codification in each state was principally to adopt one system of law for the whole country, and incidentally to make the expression of the law conform to the results of legal scholarship. The same purpose is at the basis of the American Commission for the Uniformity of Legislation. The purpose of the English codifiers appears to be merely an artistic one. It cannot be better expressed than by the last great disciple of Bentham, Professor Holland. The law expressed in a code, he says, “has no greater pretensions to finality than when expressed in statutes and reported cases. Clearness, not finality, is the object of a code. It does not attempt impossibilities, for it is satisfied with presenting the law at the precise stage of elaboration at which it finds it; neither is it obstructively rigid, for deductions from the general to the particular and ‘the competition of opposite analogies’ are as available for the decision of new cases under a code, as under any other form in which the law may be embodied. . . . It defines the terminus a quo, the general principle from which all legal arguments must start. . . . The task to which Bentham devoted the best powers of his intellect has still to be commenced. The form in which our law is expressed remains just what it was.”
Such a code as he describes is really very far from the ideal of Bentham. It does not do away with judge-made law; it does not enable the individual to know the law for himself; its only claim is that it facilitates the acquisition of knowledge by the lawyer by placing his material for study in a more orderly and logical form. The cherished ideals of the reformers of a hundred years ago have been abandoned, and an ideal has been substituted which is quite in accordance with the spirit of our own times.
The most striking characteristic of the progress of jurisprudence in the first half of the century was its increasing recognition of individual rights and protection of individuals. Humanity was the watchword of legislation; liberty was its fetich. Slavery was abolished, married women were emancipated from the control of their husbands, the head of the family was deprived of many of his arbitrary powers, and the rights of dependent individuals were carefully guarded. In the administration of criminal law this is seen notably. At the beginning of the century torture prevailed in every country, outside of the jurisdiction of the common law and the French Codes, but torture was abolished in every civilized state during this period. Many crimes at the beginning of the century were punishable with death. Few remained so punishable at the end of fifty years. The accused acquired in reality the rights of an innocent person until he was found guilty. He could testify, he could employ counsel and could be informed of the charge against him in language that he was able to understand; and, even after conviction, his punishment was inflicted in accordance with the dictates of humanity. Imprisonment for debt was abolished. Bankruptcy was treated as a misfortune, not a crime.
As with the emancipation of individuals, so it was with the emancipation of states. The spirit of the times favored the freedom of the oppressed nations as well as of individual slaves. The whole civilized world helped the Greeks gain their independence. The American people hailed with touching unanimity the struggles of Poland and of Hungary for freedom, and even the black republics of the West Indies were loved for their name, though they had no other admirable qualities.
While there has been little actual reaction in the last half-century against this earlier development of the law in the direction of liberty, there have been few further steps in that direction. The zeal for emancipation has in fact spent its force, because freedom, quite as great as is consistent with the present state of civilization, has already been obtained. So far as there has been any change of sentiment and of law in the last generation, it has been in the direction of disregarding or of limiting rights newly acquired in the earlier period. France, which secured the freedom of Italy, threatens the independence of Siam; England, which was foremost in the emancipation of the slaves, introduces coolie labor into the mines of South Africa; America, which clamored for an immediate recognition of the independence of Hungary, finds objections to recognizing the independence of Panama and refuses independence to the Philippines. In the criminal law there has been no reform, though there has been much improvement, since 1850. Married women have obtained few further rights, principally because there were few left for them to acquire, and, while we have freed our slaves, we have encouraged trade unionism. In short, the humanitarian movement of two generations ago which profoundly affected the law of the civilized world for fifty years has ceased to influence the course of jurisprudence.
The most characteristic development of the law during the last fifty years has been in the direction of business combination and association. A few great trading companies had existed in the middle ages; the Hanse merchants, the Italian, Dutch, and English companies wielded great power. They were exceptional organizations, and almost all had ceased to act by 1860. The modern form of business association, the private corporation with limited liability, is a recent invention. Such corporations were created by special action, by sovereign or legislature, in small though increasing numbers all through the last century; but during the last generation every civilized country has provided general laws under which they might be formed by mere agreement of the individuals associated. Now the anonymous societies of the Continent, the joint-stock companies of England and her colonies, and the corporations of the United States, all different forms of the limited liability association for business, have engrossed the important industries of the world. Different countries are competing for the privilege of endowing these associations with legal existence. Corporations are formed in one state to act in all other states or in some one other state, or (it may be) anywhere in the world except in the state which gave them being; and so in the last fifty years an elaborate law of foreign corporations has grown up all over the civilized world. But the corporation is only one form of business combination which has become important. Greater combinations of capital have been formed, that is, the so-called trusts; great combinations of laboring men have been formed, the so-called unions; and the enormous power wielded by such combinations has been exercised through monopolies, strikes, and boycotts. All these combinations have been formed under the law as it has been developed, and all are legal. Furthermore, the great business operations have come to depend more and more upon facilities for transportation, and great railroads and other common carriers have come to be equal factors with the trusts and the unions in the operations of modern business. The first effect, then, of the ideas of the present age upon the law is its development in the direction of forming great commercial associations into legal entities wielding enormous commercial power.
If such associations had been formed seventy-five years ago, the spirit of the age would have left them free to act as they pleased. Freedom from restraint being the spirit of the times, it would have been thought unwise to restrain that freedom in the case of a powerful monopoly as much as in the case of a poor slave. But at the present time we are more anxious for the public welfare than for the welfare of any individual, even of so powerful a one as a labor union or trust, and in accordance with the genius of our age the law has developed and is now developing in the direction of restraint upon the freedom of action of these great combinations, so far as such restraint is necessary to serve the public interest. For centuries innkeepers and carriers have been subject to such restraint, though little control was in fact exercised until within the last fifty years. To-day the law not only requires every public service company to refrain from discrimination and from aggrandizing itself at the expense of the public, but the trusts and the unions also are similarly restricted. The principle of freedom of action, the courts in all questions now agree, rests upon the doctrine that the interests of the public are best subserved thereby, and applies only so far as that is true. When freedom of action is injurious to the public it not only may be, but it must be, restrained in the public interest. That is the spirit of our age, and that is the present position of the law when face to face with combinations such as have been created in the last generation. An interesting example of restriction is that almost universally placed upon foreign corporations. In the competition of certain states for the privilege of issuing charters, great powers have been conferred, which were regarded as against the public policy of the states in which the corporations desired to act. Strict regulations for the action of such corporations have resulted, imposed in the European countries usually by treaty, in England and America by statute.
A summary of the history of jurisprudence in the last hundred years would be incomplete without a consideration of legal scholarship during the period and of the results of the scientific study of law. The reformers of a hundred years ago were profoundly indifferent to the history of law. Bentham, the founder of so-called analytic jurisprudence, wished not to understand the existing law, but to abolish it root and branch, and to build a new system, the principles of which should be arrived at merely by deductive reasoning. It seems to us now almost impossible that such a man should have believed himself more capable of framing a practicable and just system of law than all his wise predecessors, but Bentham was a marvel of egotism and self-conceit, and his reasoning powers were far from sound. He seems to have been incapable of understanding the nature of law. “If,” he said, “we ask who it is that the Common Law has been made by, we learn to our inexpressible surprise, that it has been made by nobody; that it is not made by King, Lords, and Commons, nor by anybody else; that the words of it are not to be found anywhere; that, in short, it has no existence; it is a mere fiction; and that to speak of it as having any existence is what no man can do, without giving currency to an imposture.” Employing the same reasoning, he would have concluded that justice, not being made by King, Lords, or Commons, nor by anybody else, had no existence; that truth, since the words of it are not to be found anywhere, is a mere fiction. But these defects are too often found in reformers. The humanitarian age brought enormous benefits to the world, but its ideas were often ignorant, crude, and impracticable, and needed to be modified by the better instructed minds of the present constructive age. While Bentham was at the height of his power, the Historical School of Jurists in Germany was beginning its great work. Savigny was already preaching the necessity of understanding the history of law before it was reformed. Mittermaier and Brunner were to follow and carry on the work of the master. The unity of the past and present, and the need of conforming the law of a people to its needs were among their fundamental principles. Bentham had said, “if a foreigner can make a better code than an Englishman we should adopt it.” Savigny said, with greater truth and knowledge of human nature, that no system of law, however theoretically good, could be successfully imposed upon a people which had not by its past experience become prepared for it.
The impulse given to legal study by the work of Savigny and his school has in the last generation spread over the civilized world and profoundly influenced its legal thought. The Italians, the natural lawyers of the world, have increased their power by adopting his principles. In England a small but important school of legal thinkers have followed the historical method, and in the United States it has obtained a powerful hold. The spirit of the age, here too, has supported it. We are living in an age of scientific scholarship. We have abandoned the subjective and deductive philosophy of the middle ages, and we learn from scientific observation and from historical discovery. The newly accepted principles of observation and induction, applied to the law, have given us a generation of legal scholars for the first time since the modern world began, and the work of these scholars has at last made possible the intelligent statement of the principles of law.
THE EXTENSION OF ROMAN AND ENGLISH LAW THROUGHOUT THE WORLD1
The Regions Covered by Roman and English Law
FROM a general comparison of Rome and England as powers conquering and administering territories beyond their original limits, it is natural to pass on to consider one particular department of the work which territorial extension has led them to undertake, viz. their action as makers of a law which has spread far out over the world. Both nations have built up legal systems which are now—for the Roman law has survived the Roman Empire, and is full of vitality to-day—in force over immense areas that were unknown to those who laid the foundations of both systems. In this respect Rome and England stand alone among nations, unless we reckon in the law of Islam which, being a part of the religion of Islam, governs Musulmans wherever Musulmans are to be found.
Roman law, more or less modified by national or local family customs or land customs and by modern legislation, prevails to-day in all the European countries which formed part either of the ancient or of the mediaeval Roman Empire, that is to say, in Italy, in Greece and the rest of Southeastern Europe (so far as the Christian part of the population is concerned), in Spain, Portugal, Switzerland, France, Germany (including the German and Slavonic parts of the Austro-Hungarian monarchy), Belgium, Holland. The only exception is South Britain, which lost its Roman law with the coming of the Angles and Saxons in the fifth century. The leading principles of Roman jurisprudence prevail also in some other outlying countries which have borrowed much of their law from some one or more of the countries already named, viz. Denmark, Norway, Sweden, Russia, and Hungary. Then come the non-European colonies settled by some among the above States, such as Louisiana, the Canadian province of Quebec, Ceylon, British Guiana, South Africa (all the above having been at one time colonies either of France or of Holland), German Africa, and French Africa, together with the regions which formerly obeyed Spain or Portugal, including Mexico, Central America, South America, and the Philippine Islands. Add to these the Dutch and French East Indies, and Siberia. There is also Scotland, which has since the establishment of the Court of Session by King James the Fifth in 1532 built up its law out of Roman Civil and (to some slight extent) Roman Canon Law.1
English law is in force not only in England, Wales, and Ireland but also in most of the British colonies. Quebec, Ceylon, Mauritius, South Africa, and some few of the West Indian islands follow the Roman law.2 The rest, including Australia, New Zealand, and all Canada except Quebec, follow English; as does also the United States (except Louisiana, but with the Hawaiian Islands), and India, though in India, as we shall see, native law is also administered.
Thus between them these two systems cover nearly the whole of the civilized, and most of the uncivilized world. Only two considerable masses of population stand outside—the Musulman East, that is, Turkey, North Africa, Persia, Western Turkistan and Afghanistan, which obey the sacred law of Islam, and China, which has customs all her own. It is hard to estimate the total number of human beings who live under the English common law, for one does not know whether to reckon in the semi-savage natives of such regions as Uganda, for instance, or Fiji. But there are probably one hundred and thirty millions of civilized persons (without counting the natives of India) who do: and the number living under some modern form of the Roman law is still larger.
It is of the process by which two systems which had their origin in two small communities, the one an Italian city, the other a group of Teutonic tribes, have become extended over nine-tenths of the globe that I propose to speak in the pages that follow. There are analogies between the forms which the process took in the two cases. There are also contrasts. The main contrast is that whereas we may say that (roughly speaking) Rome extended her law by conquest, that is, by the spreading of her power, England has extended hers by settlement, that is, by the spreading out of her race. In India, however, conquest rather than colonization has been the agency employed by England, and it is therefore between the extension of English law to India and the extension of Roman law to the Roman Empire that the best parallel can be drawn. It need hardly be added that the Roman law has been far more changed in descending to the modern world and becoming adapted to modern conditions of life than the law of England has been in its extension over new areas. That extension is an affair of the last three centuries only, and the whole history of English law is of only some eleven centuries reckoning from Kings Ine and Alfred, let us say, to ad 1900, or of eight, if we begin with King Henry the Second, whereas that of Roman law covers twenty-five centuries, of which all but the first three have witnessed the process of extension, so early did Rome begin to impose her law upon her subjects. To the changes, however, which have passed on the substance of the law we shall return presently. Let us begin by examining the causes and circumstances which induced the extension to the whole ancient world of rules and doctrines that had grown up in a small city.
The Diffusion of Roman Law by Conquest
The first conquests of Rome were made in Italy. They did not, however, involve any legal changes, for conquest meant merely the reduction of what had been an independent city or group of cities or tribes to vassalage, with the obligation of sending troops to serve in the Roman armies. Local autonomy was not (as a rule) interfered with; and such autonomy included civil jurisdiction, so the Italic and Greco-Italic cities continued to be governed by their own laws, which in the case at least of Oscan and Umbrian communities usually resembled that of Rome, and which of course tended to become assimilated to it even before Roman citizenship was extended to the Italian allies. With the annexation of part of Sicily in ad 230 the first provincial government was set up, and the legal and administrative problems which Rome had to deal with began to show themselves. Other provinces were added in pretty rapid succession, the last being Britain (invaded under Claudius in ad 43). Now although in all these provinces the Romans had to maintain order, to collect revenue and to dispense justice, the conditions under which these things, and especially the dispensing of justice, had to be done differed much in different provinces. Some, such as Sicily, Achaia, Macedonia and the provinces of Western Asia Minor, as well as Africa (i. e. such parts of that province as Carthage had permeated), were civilized countries, where law-courts already existed in the cities.1 The laws had doubtless almost everywhere been created by custom, for the so-called Codes we hear of in Greek cities were often rather in the nature of political constitutions and penal enactments than summarized statements of the whole private law; yet in some cities the customs had been so summarized.2 Other provinces, such as those of Thrace, Transalpine Gaul, Spain, and Britain, were in a lower stage of social organization, and possessed, when they were conquered, not so much regular laws as tribal usages, suited to their rude inhabitants. In the former set of cases not much new law was needed. In the latter set the native customs could not meet the needs of communities which soon began to advance in wealth and culture under Roman rule, so law had to be created.
There were also in all these provinces two classes of inhabitants. One consisted of those who enjoyed Roman citizenship, not merely men of Italian birth settled there but also men to whom citizenship had been granted (as for instance when they retired from military service), or the natives of cities on which (as to Tarsus in Cilicia, St. Paul’s birthplace) citizenship had been conferred as a boon.1 This was a large class, and went on rapidly increasing. To it pure Roman law was applicable, subject of course to any local customs.
The other class consisted of the provincial subjects who were merely subjects, and, in the view of the Roman law, aliens (peregrini). They had their own laws or tribal customs, and to them Roman law was primarily inapplicable, not only because it was novel and unfamiliar, so strange to their habits that it would have been unjust as well as practically inconvenient to have applied it to them, but also because the Romans, like the other civilized communities of antiquity, had been so much accustomed to consider private legal rights as necessarily connected with membership of a city community that it would have seemed unnatural to apply the private law of one city community to the citizens of another. It is true that the Romans after a time disabused their minds of this notion, as indeed they had from a comparatively early period extended their own private civil rights to many of the cities which had become their subject allies. Still it continued to influence them at the time (bc 230 to 120) when they were laying out the lines of their legal policy for the provinces.
Of that legal policy I must speak quite briefly, partly because our knowledge, though it has been enlarged of late years by the discovery and collection of a great mass of inscriptions, is still imperfect, partly because I could not set forth the details without going into a number of technical points which might perplex readers unacquainted with the Roman law. It is only the main lines on which the conquerors proceeded that can be here indicated.
Every province was administered by a governor with a staff of subordinate officials, the higher ones Roman, and (under the Republic) remaining in office only so long as did the governor. The governor was the head of the judicial as well as the military and civil administration, just as the consuls at Rome originally possessed judicial as well as military and civil powers, and just as the praetor at Rome, though usually occupied with judicial work, had also both military and civil authority. The governor’s court was the proper tribunal for those persons who in the provinces enjoyed Roman citizenship, and in it Roman law was applied to such persons in matters touching their family relations, their rights of inheritance, their contractual relations with one another, just as English law is applied to Englishmen in Cyprus or Hong Kong. No special law was needed for them. As regards the provincials, they lived under their own law, whatever it might be, subject to one important modification. Every governor when he entered his province issued an Edict setting forth certain rules which he proposed to apply during his term of office. These rules were to be valid only during his term, for his successor issued a fresh Edict, but in all probability each reproduced nearly all of what the preceding Edict had contained. Thus the same general rules remained continuously in force, though they might be modified in detail, improvements which experience had shown to be necessary being from time to time introduced.1 This was the method which the praetors followed at Rome, so the provincial governors had a precedent for it and knew how to work it. Now the Edict seems to have contained, besides its provisions regarding the collection of revenue and civil administration in general, certain more specifically legal regulations, intended to indicate the action which the governor’s court would take not only in disputes arising between Roman citizens, but also in those between citizens and aliens, and probably also to some extent in those between aliens themselves. Where the provisions of the Edict did not apply, aliens would be governed by their own law. In cities municipally organized, and especially in the more civilized provinces, the local city courts would doubtless continue to administer, as they had done before the Romans came, their local civil law; and in the so-called free cities, which had come into the Empire as allies, these local courts had for a long time a wide scope for their action. Criminal law, however, would seem to have fallen within the governor’s jurisdiction, at any rate in most places and for the graver offences, because criminal law is the indispensable guarantee for public order and for the repression of sedition or conspiracy, matters for which the governor was of course responsible.2 Thus the governor’s court was not only that which dispensed justice between Roman citizens, and which dealt with questions of revenue, but was also the tribunal for cases between citizens and aliens, and for the graver criminal proceedings. It was apparently also a court which entertained some kinds of suits between aliens, as for instance between aliens belonging to different cities, or in districts where no regular municipal courts existed, and (probably) dealt with appeals from those courts where they did exist. Moreover where aliens even of the same city chose to resort to it they could apparently do so. I speak of courts rather than of law, because it must be remembered that although we are naturally inclined to think of law as coming first, and courts being afterwards created to administer law, it is really courts that come first, and that by their action build up law partly out of customs observed by the people and partly out of their own notions of justice. This, which is generally true of all countries, is of course specially true of countries where law is still imperfectly developed, and of places where different classes of persons, not governed by the same legal rules, have to be dealt with.
The Romans brought some experience to the task of creating a judicial administration in the provinces, where both citizens and aliens had to be considered; for Rome herself had become, before she began to acquire territories outside Italy, a place of residence or resort for alien traders, so that as early as bc 247 she created a magistrate whose special function it became to handle suits between aliens, or in which one party was an alien. This magistrate built up, on the basis of mercantile usage, equity, and common sense, a body of rules fit to be applied between persons whose native law was not the same; and the method he followed would naturally form a precedent for the courts of the provincial governors.
Doubtless the chief aim, as well as the recognized duty, of the governors was to disturb provincial usage as little as they well could. The temptations to which they were exposed, and to which they often succumbed, did not lie in the direction of revolutionizing local law in order to introduce either purely Roman doctrines or any artificial uniformity.1 They would have made trouble for themselves had they attempted this. And why should they attempt it? The ambitious governors desired military fame. The bad ones wanted money. The better men, such as Cicero, and in later days Pliny, liked to be fêted by the provincials and have statues erected to them by grateful cities. No one of these objects was to be attained by introducing legal reforms which theory might suggest to a philosophic statesman, but which nobody asked for. It seems safe to assume from what we know of official human nature elsewhere, that the Roman officials took the line of least resistance compatible with the raising of money and the maintenance of order. These things being secured, they would be content to let other things alone.
Things, however, have a way of moving even when officials may wish to let them rest. When a new and vigorous influence is brought into a mixture of races receptive rather than resistent (as happened in Asia Minor under the Romans), or when a higher culture acts through government upon a people less advanced but not less naturally gifted (as happened in Gaul under the Romans), changes must follow in law as well as in other departments of human action. Here two forces were at work. One was the increasing number of persons who were Roman citizens, and therefore lived by the Roman law. The other was the increasing tendency of the government to pervade and direct the whole public life of the province. When monarchy became established as the settled form of the Roman government, provincial administration began to be better organized, and a regular body of bureaucratic officials presently grew up. The jurisdiction of the governor’s court extended itself, and was supplemented in course of time by lower courts administering law according to the same rules. The law applied to disputes arising between citizens and non-citizens became more copious and definite. The provincial Edicts expanded and became well settled as respects the larger part of their contents. So by degrees the law of the provinces was imperceptibly Romanized in its general spirit and leading conceptions, probably also in such particular departments as the original local law of the particular province had not fully covered. But the process did not proceed at the same rate in all the provinces, nor did it result in a uniform legal product, for a good deal of local customary law remained, and this customary law of course differed in different provinces. In the Hellenic and Hellenized countries the pre-existing law was naturally fuller and stronger than in the West; and it held its ground more effectively than the ruder usages of Gauls or Spaniards, obtaining moreover a greater respect from the Romans, who felt their intellectual debt to the Greeks.
It may be asked what direct legislation there was during this period for the provinces. Did the Roman Assembly either pass statutes for them, as Parliament has sometimes done for India, or did the Assembly establish in each province some legislative authority? So far as private law went Rome did neither during the republican period.1 The necessity was not felt, because any alterations made in Roman law proper altered it for Roman citizens who dwelt in the provinces no less than for those in Italy, while as to provincial aliens, the Edict of the governor and the rules which the practice of his courts established were sufficient to introduce any needed changes. But the Senate issued decrees intended to operate in the provinces, and when the Emperors began to send instructions to their provincial governors or to issue declarations of their will in any other form, these had the force of law, and constituted a body of legislation, part of which was general, while part was special to the province for which it was issued.
Meantime—and I am now speaking particularly of the three decisively formative centuries from bc 150 to ad 150—another process had been going on, even more important. The Roman law itself had been changing its character, had been developing from a rigid and highly technical system, archaic in its forms and harsh in its rules, preferring the letter to the spirit, and insisting on the strict observance of set phrases, into a liberal and elastic system, pervaded by the principles of equity and serving the practical convenience of a cultivated and commercial community. The nature of this process will be found described in other parts of this volume.2 Its result was to permeate the original law of Rome applicable to citizens only (ius civile) with the law which had been constructed for the sake of dealing with aliens (ius gentium), so that the product was a body of rules to be used by any civilized people, as being grounded in reason and utility, while at the same time both copious in quantity and refined in quality.
This result had been reached about ad 150, by which time the laws of the several provinces had also been largely Romanized. Thus each body of law—if we may venture for this purpose to speak of provincial law as a whole—had been drawing nearer to the other. The old law of the city of Rome had been expanded and improved till it was fit to be applied to the provinces. The various laws of the various provinces had been constantly absorbing the law of the city in the enlarged and improved form latterly given to it. Thus when at last the time for a complete fusion arrived the differences between the two had been so much reduced that the fusion took place easily and naturally, with comparatively little disturbance of the state of things already in existence. One sometimes finds on the southern side of the Alps two streams running in neighbouring valleys. One which has issued from a glacier slowly deposits as it flows over a rocky bed the white mud which it brought from its icy cradle. The other which rose from clear springs gradually gathers colouring matter as in its lower course it cuts through softer strata or through alluvium. When at last they meet, the glacier torrent has become so nearly clear that the tint of its waters is scarcely distinguishable from that of the originally bright but now slightly turbid affluent. Thus Roman and provincial law, starting from different points but pursuing a course in which their diversities were constantly reduced, would seem to have become so similar by the end of the second century ad that there were few marked divergences, so far as private civil rights and remedies were concerned, between the position of citizens and that of aliens.
Here, however, let a difference be noted. The power of assimilation was more complete in some branches of law than it was in others; and it was least complete in matters where old standing features of national character and feeling were present. In the Law of Property and Contract it had advanced so far as to have become, with some few exceptions,1 substantially identical. The same may be said of Penal Law and the system of legal procedure. But in the Law of Family Relations and in that of Inheritance, a matter closely connected with family relations, the dissimilarities were still significant; and we shall find this phenomenon reappearing in the history of English and Native Law in India.
Two influences which I have not yet dwelt upon had been, during the second century, furthering the assimilation. One was the direct legislation of the Emperor which, scanty during the first age of the monarchy, had now become more copious, and most of which was intended to operate upon citizens and aliens alike. The other was the action of the Emperor as supreme judicial authority, sometimes in matters brought directly before him for decision, more frequently as judge of appeals from inferior tribunals. He had a council called the Consistory which acted on his behalf, because, especially in the troublous times which began after the reign of Marcus Aurelius and presaged the ultimate dissolution of the Empire, the sovereign was seldom able to preside in person. The judgements of the Consistory, being delivered in the Emperor’s name as his, and having equal authority with statutes issued by him, must have done much to make law uniform in all the provinces and among all classes of subjects.2
The Establishment of One Law for the Empire
Finally, in the beginning of the third century ad, the decisive step was taken. The distinction between citizens and aliens vanished by the grant of full citizenship to all subjects of the Empire, a grant however which may have been, in the first instance, applied only to organized communities, and not also to the backward sections of the rural population, in Corsica, for instance, or in some of the Alpine valleys. Our information as to the era to which this famous Edict of Caracalla’s belongs is lamentably scanty. Gaius, who is the best authority for the middle period of the law, lived fifty or sixty years earlier. The compilers of Justinian’s Digest, which is the chief source of our knowledge for the law as a whole, lived three hundred years later, when the old distinctions between the legal rights of citizens and those of aliens had become mere matters of antiquarian curiosity. These compilers therefore modified the passages of the older jurists which they inserted in the Digest so as to make them suit their own more recent time. As practical men they were right, but they have lessened the historical value of these fragments of the older jurists, just as the modern restorer of a church spoils it for the purposes of architectural history, when he alters it to suit his own ideas of beauty or convenience. Still it may fairly be assumed that when Caracalla’s grant of citizenship was made the bulk of the people, or at least of the town dwellers, had already obtained either a complete or an incomplete citizenship in the more advanced provinces, and that those who had not were at any rate enjoying under the provincial Edicts most of the civil rights that had previously been confined to citizens, such for instance as the use of the so-called Praetorian Will with its seven seals.
How far the pre-existing local law of different provinces or districts was superseded at one stroke by this extension of citizenship, or in other words, what direct and immediate change was effected in the modes of jurisdiction and in the personal relations of private persons, is a question which we have not the means of answering. Apparently many difficulties arose which further legislation, not always consistent, was required to deal with.1 One would naturally suppose that where Roman rules differed materially from those which a provincial community had followed, the latter could not have been suddenly substituted for the former.
A point, for instance, about which we should like to be better informed is whether the Roman rules which gave to the father his wide power over his children and their children were forthwith extended to provincial families. The Romans themselves looked upon this paternal power as an institution peculiar to themselves. To us moderns, and especially to Englishmen and Americans, it seems so oppressive that we cannot but suppose it was different in practice from what it looks on paper. And although it had lost some of its old severity by the time of the Antonines, one would think that communities which had not grown up under it could hardly receive it with pleasure.
From the time of Caracalla (ad 211-217) down till the death of Theodosius the Great (ad 395) the Empire had but one law. There was doubtless a certain amount of special legislation for particular provinces, and a good deal of customary law peculiar to certain provinces or parts of them. Although before the time of Justinian it would seem that every Roman subject, except the half-barbarous peoples on the frontiers, such as the Soanes and Abkhasians of the Caucasus or the Ethiopic tribes of Nubia, and except a very small class of freedmen, was in the enjoyment of Roman citizenship, with private rights substantially the same, yet it is clear that in the East some Roman principles and maxims were never fully comprehended by the mass of the inhabitants and their legal advisers of the humbler sort, while other principles did not succeed in displacing altogether the rules to which the people were attached. We have evidence in recently recovered fragments of an apparently widely used law-book, Syriac and Armenian copies of which remain, that this was the case in the Eastern provinces, and no doubt it was so in others also. In Egypt, for instance, it may be gathered from the fragments of papyri which are now being published, that the old native customs, overlaid, or re-moulded to some extent by Greek law, held their ground even down to the sixth or seventh century.1 Still, after making all allowance for these provincial variations, philosophic jurisprudence and a levelling despotism had done their work, and given to the civilized world, for the first and last time in its history, one harmonious body of legal rules.
The causes which enabled the Romans to achieve this result were, broadly speaking, the five following:—
(1) There was no pre-existing body of law deeply rooted and strong enough to offer resistance to the spread of Roman law. Where any highly developed system of written rules or customs existed, it existed only in cities, such as those of the Greek or Graecized provinces on both sides of the Aegean. The large countries, Pontus, for instance, or Macedonia or Gaul, were in a legal sense unorganized or backward. Thus the Romans had, if not a blank sheet to write on, yet no great difficulty in overspreading or dealing freely with what they found.
(2) There were no forms of faith which had so interlaced religious feelings and traditions with the legal notions and customs of the people as to give those notions and customs a tenacious grip on men’s affection. Except among the Jews, and to some extent among the Egyptians, Rome had no religious force to overcome such as Islam and Hinduism present in India.
(3) The grant of Roman citizenship to a community or an individual was a privilege highly valued, because it meant a rise in social status and protection against arbitrary treatment by officials. Hence even those who might have liked their own law better were glad to part with it for the sake of the immunities of a Roman citizen.
(4) The Roman governor and the Roman officials in general had an administrative discretion wider than officials enjoy under most modern governments, and certainly wider than either a British or an United States legislature would delegate to any person. Hence Roman governors could by their Edicts and their judicial action mould the law and give it a shape suitable to the needs of their province with a freedom of handling which facilitated the passage from local law or custom to the jurisprudence of the Empire generally.
(5) Roman law itself, i. e. the law of the city, went on expanding and changing, ridding itself of its purely national and technical peculiarities, till it became fit to be the law of the whole world. This process kept step with, and was the natural expression of, the political and social assimilation of Rome to the provinces and of the provinces to Rome.
At the death of Theodosius the Great the Roman Empire was finally divided into an Eastern and a Western half; so that thenceforward there were two legislative authorities. For the sake of keeping the law as uniform as possible, arrangements were made for the transmission by each Emperor to the other of such ordinances as he might issue, in order that these might be, if approved, issued for the other half of the Empire. These arrangements, however, were not fully carried out: and before long the Western Empire drifted into so rough a sea that legislation practically stopped. The great Codex of Theodosius the Second (a collection of imperial enactments published in ad 438) was however promulgated in the Western as well as in the Eastern part of the Empire, whereas the later Codex and Digest of Justinian, published nearly a century later, was enacted only for the East, though presently extended (by re-conquest) to Italy, Sicily, and Africa. Parts of the Theodosian Codex were embodied in the manuals of law made for the use of their Roman subjects by some of the barbarian kings. It continued to be recognized in the Western provinces after the extinction of the imperial line in the West in ad 476: and was indeed, along with the manuals aforesaid, the principal source whence during a long period the Roman population drew their law in the provinces out of which the kingdoms of the Franks, Burgundians, and Visigoths were formed.
Then came the torpor of the Dark Ages.
The Extension of Roman Law after the Fall of the Western Empire
Upon the later history of the Roman law and its diffusion through the modern world I can but briefly touch, for I should be led far away from the special topic here considered. The process of extension went on in some slight measure by conquest, but mainly by peaceful means, the less advanced peoples, who had no regular legal system of their own, being gradually influenced by and learning from their more civilized neighbours to whom the Roman system had descended. The light of legal knowledge radiated forth from two centres, from Constantinople over the Balkanic and Euxine countries between the tenth and the fifteenth centuries, from Italy over the lands that lay north and west of her from the twelfth to the sixteenth century. Thereafter it is Germany, Holland, and France that have chiefly propagated the imperial law, Germany by her universities and writers, France and Holland both through their jurists and as colonizing powers.
In the history of the mediaeval and modern part of the process of extension five points or stages of especial import may be noted.
The first is the revival of legal study which began in Italy towards the end of the eleventh century ad, and the principal agent in which was the school of Bologna, famous for many generations thereafter. From that date onward the books of Justinian, which had before that time been superseded in the Eastern Empire, were lectured and commented on in the universities of Italy, France, Spain, England, Germany, and have continued to be so till our own day. They formed, except in England (where from the time of Henry the Third onwards they had a powerful and at last a victorious rival in the Common Law), the basis of all legal training and knowledge.
The second is the creation of that vast mass of rules for the guidance of ecclesiastical matters and courts—courts whose jurisdiction was in the Middle Ages far wider than it is now—which we call the Canon Law. These rules, drawn from the canons of Councils and decrees of Popes, began to be systematized during the twelfth century, and were first consolidated into an ordered body by Pope Gregory the Ninth in the middle of the thirteenth.1 They were so largely based on the Roman law that we may describe them as being substantially a development of it, partly on a new side, partly in a new spirit, and though they competed with the civil law of the temporal courts, they also extended the intellectual influence of that law.
The third is the acceptance of the Roman law as being of binding authority in countries which had not previously owned it, and particularly in Germany and Scotland. It was received in Germany because the German king (after the time of Otto the Great) was deemed to be also Roman Emperor, the legitimate successor of the far-off assemblies and magistrates and Emperors of old Rome; and its diffusion was aided by the fact that German lawyers had mostly received their legal training at Italian universities. It came in gradually as subsidiary to Germanic customs, but the judges, trained in Italy in the Roman system, required the customs to be proved, and so by degrees Roman doctrines supplanted them, though less in the Saxon districts, where a native law-book, the Sachsenspiegel, had already established its influence. The acceptance nowhere went so far as to supersede the whole customary law of Germany, whose land-rights, for instance, retained their feudal character. The formal declaration of the general validity of the Corpus Iuris in Germany is usually assigned to the foundation by the Emperor Maximilian I, in 1495, of the Imperial Court of Justice (Reichskammergericht). As Holland was then still a part of the Germanic Empire, as well as of the Burgundian inheritance, it was the law of Holland also, and so has become the law of Java, of Celebes, and of South Africa. In Scotland it was adopted at the foundation of the Court of Session, on the model of the Parlement of Paris, by King James the Fifth. Political antagonism to England and political attraction to France, together with the influence of the Canonists, naturally determined the King and the Court to follow the system which prevailed on the European continent.
The fourth stage is that of codification. In many parts of Gaul, though less in Provence and Languedoc, the Roman law had gone back into that shape of a body of customs from which it had emerged a thousand years before; and in Northern and Middle Gaul some customs, especially in matters relating to land, were not Roman. At last, under Lewis the Fourteenth, a codifying process set in. Comprehensive Ordinances, each covering a branch of law, began to be issued from 1667 down to 1747. These operated throughout France, and, being founded on Roman principles, further advanced the work, already prosecuted by the jurists, of Romanizing the customary law of Northern France. That of Southern France (the pays du droit écrit) had been more specifically Roman, for the South had been less affected by Frankish conquest and settlement. The five Codes promulgated by Napoleon followed in 1803 to 1810.1 Others reproducing them with more or less divergence have been enacted in other Romance countries.
In Prussia, Frederick the Second directed the preparation of a Code which became law after his death, in 1794. From 1848 onwards parts of the law of Germany (which differed in different parts of the country) began to be codified, being at first enacted by the several States, each for itself, latterly by the legislature of the new Empire. Finally, after twenty-two years of labour, a new Code for the whole German Empire was settled, was passed by the Chambers, and came into force on the first of January, 1900. It does not, however, altogether supersede pre-existing local law. This Code, far from being pure Roman law, embodies many rules due to mediaeval custom (especially custom relating to land-rights) modernized to suit modern conditions, and also a great deal of post-mediaeval legislation.2 Some German jurists complain that it is too Teutonic; others that it is not Teutonic enough. One may perhaps conclude from these opposite criticisms that the codifiers have made a judiciously impartial use of both Germanic and Roman materials.
Speaking broadly, it may be said that the groundwork of both the French and the German Codes—that is to say their main lines and their fundamental legal conceptions—is Roman. Just as the character and genius of a language are determined by its grammar, irrespective of the number of foreign words it may have picked up, so Roman law remains Roman despite the accretion of the new elements which the needs of modern civilization have required it to accept.
The fifth stage is the transplantation of Roman law in its modern forms to new countries. The Spaniards and Portuguese, the French, the Dutch, and the Germans have carried their respective systems of law with them into the territories they have conquered and the colonies they have founded; and the law has often remained unchanged even when the territory or the colony has passed to new rulers. For law is a tenacious plant, even harder to extirpate than is language; and new rulers have generally had the sense to perceive that they had less to gain by substituting their own law for that which they found than they had to lose by irritating their new subjects. Thus, Roman-French law survives in Quebec (except in commercial matters) and in Louisiana, Roman-Dutch law in Guiana and South Africa.
The cases of Poland, Russia and the Scandinavian kingdoms are due to a process different from any of those hitherto described. The law of Russia was originally Slavonic custom, influenced to some extent by the law of the Eastern Roman Empire, whence Russia took her Christianity and her earliest literary impulse. In its present shape, while retaining in many points a genuinely Slavonic character, and of course far less distinctly Roman than is the law of France, it has drawn so much, especially as regards the principles of property rights and contracts, from the Code Napoléon and to a less degree from Germany, that it may be described as being Roman “at the second remove,” and reckoned as an outlying and half-assimilated province, so to speak, of the legal realm of Rome. Poland, lying nearer Germany, and being, as a Catholic country, influenced by the Canon Law, as well as by German teaching and German books, adopted rather more of Roman doctrine than Russia did.1 Her students learnt Roman law first at Italian, afterwards at German Universities, and when they became judges, naturally applied its principles. The Scandinavian countries set out with a law purely Teutonic, and it is chiefly through the German Universities and the influence of German juridical literature that Roman principles have found their way in and coloured the old customs. Servia, Bulgaria and Rumania, on the other hand, were influenced during the Middle Ages by the law of the Eastern Empire, whence they drew their religion and their culture. Thus their modern law, whose character is due partly to these Byzantine influences—of course largely affected by Slavonic custom—and partly to what they have learnt from France and Austria, may also be referred to the Roman type.
The Diffusion of English Law
England, like Rome, has spread her law over a large part of the globe. But the process has been in her case not only far shorter but far simpler. The work has been (except as respects Ireland) effected within the last three centuries; and it has been effected (except as regards Ireland and India) not by conquest but by peaceful settlement. This is one of the two points in which England stands contrasted with Rome. The other is that her own law has not been affected by the process. It has changed within the seven centuries that lie between King Henry the Second and the present day, almost if not quite as much as the law of Rome changed in the seven centuries between the enactment of the Twelve Tables and the reign of Caracalla. But these changes have not been due, as those I have described in the Roman Empire were largely due, to the extension of the law of England to new subjects. They would apparently have come to pass in the same way and to the same extent had the English race remained confined to its own island.
England has extended her law over two classes of territories.
The first includes those which have been peacefully settled by Englishmen—North America (except Lower Canada), Australia, New Zealand, Fiji, the Falkland Isles. All of these, except the United States, have remained politically connected with the British Crown.
The second includes conquered territories. In some of these, such as Wales, Ireland, Gibraltar, the Canadian provinces of Ontario and Nova Scotia, and several of the West India Islands, English law has been established as the only system, applicable to all subjects.1 In others, such as Malta, Cyprus, Singapore, and India, English law is applied to Englishmen and native law to natives, the two systems being worked concurrently. Among these cases, that which presents problems of most interest and difficulty is India. But before we consider India, a few words may be given to the territories of the former class. They are now all of them, except the West Indies, Fiji and the Falkland Isles, self-governing, and therefore capable of altering their own law. This they do pretty freely. The United States have now forty-nine legislatures at work, viz. Congress, forty-five States, and three organized Territories. They have turned out an immense mass of law since their separation from England. But immense as it is, and bold as are some of the experiments which may be found in it, the law of the United States remains (except of course in Louisiana) substantially English law. An English barrister would find himself quite at home in any Federal or State Court, and would have nothing new to master, except a few technicalities of procedure and the provisions of any statutes which might affect the points he had to argue. And the patriarch of American teachers of law (Professor C. C. Langdell of the Law School in Harvard University), consistently declining to encumber his expositions with references to Federal or State Statutes, continues to discourse on the Common Law of America, which differs little from the Common Law of England. The old Common Law which the settlers carried with them in the seventeenth century has of course been developed or altered by the decisions of American Courts. These, however, have not affected its thoroughly English character. Indeed, the differences between the doctrines enounced by the Courts of different States are sometimes just as great as the differences between the views of the Courts of Massachusetts or New Jersey and those of Courts in England.
The same is true of the self-governing British colonies. In them also legislation has introduced deviations from the law of the mother country. More than forty years ago New Zealand, for instance, repealed the Statute of Uses, which is the corner-stone of English conveyancing; and the Australian legislatures have altered (among other things) the English marriage law. But even if the changes made by statute had been far greater than they have been, and even if there were not, as there still is, a right of appeal from the highest Courts of these colonies to the Crown in Council, their law should still remain, in all its essential features, a genuine and equally legitimate offspring of the ancient Common Law.
We come now to the territories conquered by England, and to which she has given her law whether in whole or in part. Among these it is only of India that I shall speak, as India presents the phenomena of contact between the law of the conqueror and that of the conquered on the largest scale and in the most instructive form. What the English have done in India is being done or will have to be done, though nowhere else on so vast a scale, by the other great nations which have undertaken the task of ruling and of bestowing what are called the blessings of civilization upon the backward races. Russia, France, Germany, and now the United States also, all see this task before them. To them therefore, as well as to England, the experience of the British Government in India may be profitable.
English Law in India
When the English began to conquer India they found two great systems of customary law in existence there, the Musulman and the Hindu. There were other minor bodies of custom, prevailing among particular sects, but these may for the present be disregarded. Musulman law regulated the life and relations of all Musulmans; and parts of it, especially its penal provisions, were also applied by the Musulman potentates to their subjects generally, Hindus included. The Musulman law had been most fully worked out in the departments of family relations and inheritance, in some few branches of the law of contract, such as money loans and mortgages and matters relating to sale, and in the doctrine of charitable or pious foundations called Wakuf.
In the Hindu principalities, Hindu law was dominant, and even where the sovereign was a Musulman, the Hindu law of family relations and of inheritance was recognized as that by which Hindus lived. There were also of course many land customs, varying from district to district, which both Hindus and Musulmans observed, as they were not in general directly connected with religion. In some regions, such as Oudh and what are now the North-West provinces, these customs had been much affected by the land revenue system of the Mogul Emperors. It need hardly be said that where Courts of law existed, they administered an exceedingly rough and ready kind of justice, or perhaps injustice, for bribery and favouritism were everywhere rampant.
There were also mercantile customs, which were generally understood and observed by traders, and which, with certain specially Musulman rules recognized in Musulman States, made up what there was of a law of contracts.
Thus one may say that the law (other than purely religious law) which the English administrators in the days of Clive and Warren Hastings found consisted of—
First, a large and elaborate system of Inheritance and Family Law, the Musulman pretty uniform throughout India, though in some regions modified by Hindu custom, the Hindu less uniform. Each was utterly unlike English law and incapable of being fused with it. Each was closely bound up with the religion and social habits of the people. Each was contained in treatises of more or less antiquity and authority, some of the Hindu treatises very ancient and credited with almost divine sanction, the Musulman treatises of course posterior to the Koran, and consisting of commentaries upon that Book and upon the traditions that had grown up round it.
Secondly, a large mass of customs relating to the occupation and use of land and of various rights connected with tillage and pasturage, including water-rights, rights of soil-accretion on the banks of rivers, and forest-rights. The agricultural system and the revenue system of the country rested upon these land customs, which were of course mostly unwritten and which varied widely in different districts.
Thirdly, a body of customs, according to our ideas comparatively scanty and undeveloped, but still important, relating to the transfer and pledging of property, and to contracts, especially commercial contracts.
Fourthly, certain penal rules drawn from Musulman law and more or less enforced by Musulman princes.
Thus there were considerable branches of law practically non-existent. There was hardly any law of civil and criminal procedure, because the methods of justice were primitive, and would have been cheap, but for the prevalence of corruption among judges as well as witnesses. There was very little of the law of Torts or Civil Wrongs, and in the law of property of contracts and of crimes, some departments were wanting or in a rudimentary condition. Of a law relating to public and constitutional rights there could of course be no question, since no such rights existed.
In this state of facts the British officials took the line which practical men, having their hands full of other work, would naturally take, viz. the line of least resistance. They accepted and carried on what they found. Where there was a native law, they applied it, Musulman law to Musulmans, Hindu law to Hindus, and in the few places where they were to be found, Parsi law to Parsis, Jain law to Jains. Thus men of every creed—for it was creed, not race nor allegiance by which men were divided and classified in India—lived each according to his own law, as Burgundians and Franks and Romanized Gauls had done in the sixth century in Europe. The social fabric was not disturbed, for the land customs and the rules of inheritance were respected, and of course the minor officers, with whom chiefly the peasantry came in contact, continued to be natives. Thus the villager scarcely felt that he was passing under the dominion of an alien power, professing an alien faith. His life flowed on in the same equable course beside the little white mosque, or at the edge of the sacred grove. A transfer of power from a Hindu to a Musulman sovereign would have made more difference to him than did the establishment of British rule; and life was more placid than it would have been under either a rajah or a sultan, for the marauding bands which had been the peasants’ terror were soon checked by European officers.
So things remained for more than a generation. So indeed things remain still as respects those parts of law which are inwoven with religion, marriage, adoption (among Hindus) and other family relations, and with the succession to property. In all these matters native law continues to be administered by the Courts the English have set up; and when cases are appealed from the highest of those Courts to the Privy Council in England, that respectable body determines the true construction to be put on the Koran and the Islamic Traditions, or on passages from the mythical Manu, in the same business-like way as it would the meaning of an Australian statute.1 Except in some few points to be presently noted, the Sacred Law of Islam and that of Brahmanism remained unpolluted by European ideas. Yet they have not stood unchanged, for the effect of the more careful and thorough examination which the contents of these two systems have received from advocates, judges, and text-writers, both native and English, imbued with the scientific spirit of Europe, has been to clarify and define them, and to develop out of the half-fluid material more positive and rigid doctrines than had been known before. Something like this may probably have been done by the Romans for the local or tribal law of their provinces.
In those departments in which the pre-existing customs were not sufficient to constitute a body of law large enough and precise enough for a civilized Court to work upon, the English found themselves obliged to supply the void. This was done in two ways. Sometimes the Courts boldly applied English law. Sometimes they supplemented native custom by common sense, i. e. by their own ideas of what was just and fair. The phrase “equity and good conscience” was used to embody the principles by which judges were to be guided when positive rules, statutory or customary, were not forthcoming. To a magistrate who knew no law at all, these words would mean that he might follow his own notions of “natural justice,” and he would probably give more satisfaction to suitors than would his more learned brother, trying to apply confused recollections of Blackstone or Chitty. In commercial matters common sense would be aided by the usage of traders. In cases of Tort native custom was not often available, but as the magistrate who dealt out substantial justice would give what the people had rarely obtained from the native courts, they had no reason to complain of the change. As to rules of evidence, the young Anglo-Indian civilian would, if he were wise, forget all the English technicalities he might have learnt, and make the best use he could of his mother-wit.1
For the first sixty years or more of British rule there was accordingly little or no attempt to Anglify the law of India, or indeed to give it any regular and systematic form. Such alterations as it underwent were the natural result of its being dispensed by Europeans. But to this general rule there were two exceptions, the law of Procedure and the law of Crimes. Courts had been established in the Presidency towns even before the era of conquest began. As their business increased and subordinate Courts were placed in the chief towns of the annexed provinces, the need for some regular procedure was felt. An Act of the British Parliament of ad 1781 empowered the Indian Government to make regulations for the conduct of the provincial Courts, as the Court at Fort William (Calcutta) had already been authorized to do for itself by an Act of 1773. Thus a regular system of procedure, modelled after that of England, was established; and the Act of 1781 provided that the rules and forms for the execution of process were to be accommodated to the religion and manners of the natives.
As respects penal law, the English began by adopting that which the Musulman potentates had been accustomed to apply. But they soon found that many of its provisions were such as a civilized and nominally Christian government could not enforce. Mutilation as a punishment for theft, for instance, and stoning for sexual offences, were penalties not suited to European notions; and still less could the principle be admitted that the evidence of a non-Musulman is not receivable against one of the Faithful. Accordingly a great variety of regulations were passed amending the Musulman law of crimes from an English point of view. In Calcutta the Supreme Court did not hesitate to apply English penal law to natives; and applied it to some purpose at a famous crisis in the fortunes of Warren Hastings when (in 1775) it hanged Nuncomar for forgery under an English statute of 1728, which in the opinion of many high authorities of a later time had never come into force at all in India. It was inevitable that the English should take criminal jurisdiction into their own hands—the Romans had done the same in their provinces—and inevitable also that they should alter the penal law in conformity with their own ideas. But they did so in a very haphazard fashion. The criminal law became a patchwork of enactments so confused that it was the first subject which invited codification in that second epoch of English rule which we are now approaching.
Before entering on this remarkable epoch, one must remember that the English in India, still a very small though important class, were governed entirely by English law. So far as common law and equity went, this law was exactly the same as the contemporaneous law of England. But it was complicated by the fact that a number of Regulations, as they were called, had been enacted for India by the local government, that many British statutes were not intended to apply and probably did not apply to India (though whether they did or not was sometimes doubtful), and that a certain number of statutes had been enacted by Parliament expressly for India. Thus though the law under which the English lived had not been perceptibly affected by Indian customs, it was very confused and troublesome to work. That the learning of the judges sent from home to sit in the Indian Courts was seldom equal to that of the judges in England was not necessarily a disadvantage, for in traversing the jungle of Indian law the burden of English case lore would have too much impeded the march of justice.
The first period of English rule, the period of rapid territorial extension and of improvised government, may be said to have ended with the third Maratha war of 1817-8. The rule of Lord Amherst and Lord William Bentinck (1823-35) was a comparatively tranquil period, when internal reforms had their chance, as they had in the Roman Empire under Hadrian and Antoninus Pius. This was also the period when a spirit of legal reform was on foot in England. It was the time when the ideas of Bentham had begun to bear fruit, and when the work begun by Romilly was being carried on by Brougham and others. Both the law applied to Englishmen, and such parts of native law as had been cut across, filled up, and half re-shaped by English legal notions and rules, called loudly for simplification and reconstruction.
The era of reconstruction opened with the enactment, in the India Charter Act of 1833, of a clause declaring that a general judicial system and a general body of law ought to be established in India applicable to all classes, Europeans as well as natives, and that all laws and customs having legal force ought to be ascertained, consolidated, and amended. The Act then went on to provide for the appointment of a body of experts to be called the Indian Law Commission, which was to inquire into and report upon the Courts, the procedure and the law then existing in India. Of this commission Macaulay, appointed in 1833 legal member of the Governor-General’s Council, was the moving spirit; and with it the work of codification began. It prepared a Penal Code, which however was not passed into law until 1860, for its activity declined after Macaulay’s return to England and strong opposition was offered to his draft by many of the Indian judges. A second Commission was appointed under an Act of 1853, and sat in England. It secured the enactment of the Penal Code, and of Codes of Civil and of Criminal Procedure. A third Commission was crated in 1861, and drafted other measures. The Government of India demurred to some of the proposed changes and evidently thought that legislation was being pressed on rather too fast. The Commission, displeased at this resistance, resigned in 1870; and since then the work of preparing as well as of carrying through codifying Acts has mostly been done in India. The net result of the sixty-six years that have passed since Macaulay set to work in 1834 is that Acts codifying and amending the law, and declaring it applicable to both Europeans and natives, have been passed on the topics following:—
Criminal Procedure (1861, 1882, and 1898).
Civil Procedure (1859 and 1882).
Limitation of Actions (1877).
Specific Relief (1877).
Probate and Administration (1881).
Contracts (1872) (but only the general rules of contract with a few rules on particular parts of the subject).
Negotiable Instruments (1881) (but subject to native customs).
Besides these, codifying statutes have been passed which do not apply (at present) to all India, but only to parts of it, or to specified classes of the population, on the topics following:—
Transfer of Property (1882).
Guardians and Wards (1890).
These statutes cover a large part of the whole field of law, so that the only important departments not yet dealt with are those of Torts or Civil Wrongs (on which a measure not yet enacted was prepared some years ago); certain branches of contract law, which it is not urgent to systematize because they give rise to lawsuits only in the large cities, where the Courts are quite able to dispose of them in a satisfactory way; Family Law, which it would be unsafe to meddle with, because the domestic customs of Hindus, Musulmans, and Europeans are entirely different; and Inheritance, the greater part of which is, for the same reason, better left to native custom. Some points have, however, been covered by the Succession Act already mentioned. Thus the Government of India appear to think that they have for the present gone as far as they prudently can in the way of enacting uniform general laws for all classes of persons. Further action might displease either the Hindus or the Musulmans, possibly both: and though there would be advantages in bringing the law of both these sections of the population into a more clear and harmonious shape, it would in any case be impossible to frame rules which would suit both of them, and would also suit the Europeans. Here Religion steps in, a force more formidable in rousing opposition or disaffection than any which the Romans had to fear.
In such parts of the law as are not covered by these enumerated Acts, Englishmen, Hindus and Musulmans continue to live under their respective laws. So do Parsis, Sikhs, Buddhists (most numerous in Burma), and Jains, save that where there is really no native law or custom that can be shown to exist, the judge will naturally apply the principles of English law, handling them, if he knows how, in an untechnical way. Thus beside the new stream of united law which has its source in the codifying Acts, the various older streams of law, each representing a religion, flow peacefully on.
The question which follows—What has been the action on the other of each of these elements? resolves itself into three questions:—
How far has English Law affected the Native Law which remains in force?
How far has Native Law affected the English Law which is in force?
How have the codifying Acts been framed—i. e. are they a compromise between the English and the native element, or has either predominated and given its colour to the whole mass?
The answer to the first question is that English influence has told but slightly upon those branches of native law which had been tolerably complete before the British conquest, and which are so interwoven with religion that one may almost call them parts of religion. The Hindu and Musulman customs which regulate the family relations and rights of succession have been precisely defined, especially those of the Hindus, which were more fluid than the Muslim customs, and were much less uniform over the whole country. Trusts have been formally legalized, and their obligation rendered stronger. Adoption has been regularized and stiffened, for its effects had been uncertain in their legal operation. Where several doctrines contended, one doctrine has been affirmed by the English Courts, especially by the Privy Council as ultimate Court of Appeal, and the others set aside. Moreover the Hindu law of Wills has been in some points supplemented by English legislation, and certain customs repugnant to European ideas, such as the self-immolation of the widow on the husband’s funeral pyre, have been abolished. And in those parts of law which, though regulated by local custom, were not religious, some improvements have been affected. The rights of the agricultural tenant have been placed on a more secure basis. Forest-rights have been ascertained and defined, partly no doubt for the sake of the pecuniary interests which the Government claims in them, and which the peasantry do not always admit. But no attempt has been made to Anglify these branches of law as a whole.
On the other hand, the law applicable to Europeans only has been scarcely (if at all) affected by native law. It remains exactly what it is in England, except in so far as the circumstances of India have called for special statutes.
The third question is as to the contents of those parts of the law which are common to Europeans and Natives, that is to say, the parts dealt by the codifying Acts already enumerated. Here English law has decisively prevailed. It has prevailed not only because it would be impossible to subject Europeans to rules emanating from a different and a lower civilization, but also because native custom did not supply the requisite materials. Englishmen had nothing to learn from natives as respects procedure or evidence. The native mercantile customs did not constitute a system even of the general principles of contract, much less had those principles been worked out in their details. Accordingly the Contract Code is substantially English, and where it differs from the result of English cases, the differences are due, not to the influence of native ideas or native usage, but to the views of those who prepared the Code, and who, thinking the English case-law susceptible of improvement, diverged from it here and there just as they might have diverged had they been preparing a Code to be enacted for England. There are, however, some points in which the Penal Code shows itself to be a system intended for India. The right of self-defence is expressed in wider terms than would be used in England, for Macaulay conceived that the slackness of the native in protecting himself by force made it desirable to depart a little in this respect from the English rules. Offences such as dacoity (brigandage by robber bands), attempts to bribe judges or witnesses, the use of torture by policemen, kidnapping, the offering of insult or injury to sacred places, have been dealt with more fully and specifically than would be necessary in a Criminal Code for England. Adultery has, conformably to the ideas of the East, been made a subject for criminal proceedings. Nevertheless these, and other similar, deviations from English rules which may be found in the Codes enacted for Europeans and natives alike, do not affect the general proposition that the Codes are substantially English. The conquerors have given their law to the conquered. When the conquered had a law of their own which this legislation has effaced, the law of the conquerors was better. Where they had one too imperfect to suffice for a growing civilization, the law of the conquerors was inevitable.
The Working of the Indian Codes
Another question needs to be answered. It has a twofold interest, because the answer not only affects the judgment to be passed on the course which the English Government in India has followed, but also conveys either warning or encouragement to England herself. This question is—How have these Indian Codes worked in practice? Have they improved the administration of justice? Have they given satisfaction to the people? Have they made it easier to know the law, to apply the law, to amend the law where it proves faulty?
When I travelled in India in 1888-9 I obtained opinions on these points from many persons competent to speak. There was a good deal of difference of view, but the general result seemed to be as follows. I take the four most important codifying Acts, as to which it was most easy to obtain profitable criticisms.
The two Procedure Codes, Civil and Criminal, were very generally approved. They were not originally creative work, but were produced by consolidating and simplifying a mass of existing statutes and regulations, which had become unwieldy and confused. Order was evoked out of chaos, a result which, though beneficial everywhere, was especially useful in the minor Courts, whose judges had less learning and experience than those of the five High Courts at Calcutta, Madras, Bombay, Allahabad and Lahore.
The Penal Code was universally approved; and it deserves the praise bestowed on it, for it is one of the noblest monuments of Macaulay’s genius. To appreciate its merits, one must remember how much, when prepared in 1834, it was above the level of the English criminal law of that time. The subject is eminently fit to be stated in a series of positive propositions, and so far as India was concerned, it had rested mainly upon statutes and not upon common law. It has been dealt with in a scientific, but also a practical common-sense way: and the result is a body of rules which are comprehensible and concise. To have these on their desks has been an immense advantage for magistrates in the country districts, many of whom have had but a scanty legal training. It has also been claimed for this Code that under it crime has enormously diminished: but how much of the diminution is due to the application of a clear and just system of rules, how much to the more efficient police administration, is a question on which I cannot venture to pronounce.1
No similar commendation was bestowed on the Evidence Code. Much of it was condemned as being too metaphysical, yet deficient in subtlety. Much was deemed superfluous, and because superfluous, possibly perplexing. Yet even those who criticized its drafting admitted that it might possibly be serviceable to untrained magistrates and practitioners, and I have myself heard some of these untrained men declare that they did find it helpful. They are a class relatively larger in India than in England.
It was with regard to the merits of the Contract Code that the widest difference of opinion existed. Any one who reads it can see that its workmanship is defective. It is neither exact nor subtle, and its language is often far from lucid. Every one agreed that Sir J. F. Stephen (afterwards Mr. Justice Stephen), who put it into the shape in which it was passed during his term of office as Legal Member of Council, and was also the author of the Evidence Act, was a man of great industry, much intellectual force, and warm zeal for codification. But his capacity for the work of drafting was deemed not equal to his fondness for it. He did not shine either in fineness of discrimination or in delicacy of expression. Indian critics, besides noting these facts, went on to observe that in country places four-fifths of the provisions of the Contract Act were superfluous, while those which were operative sometimes unduly fettered the discretion of the magistrate or judge, entangling him in technicalities, and preventing him from meting out that substantial justice which is what the rural suitor needs. The judge cannot disregard the Act, because if the case is appealed, the Court above, which has only the notes of the evidence before it, and does not hear the witnesses, is bound to enforce the provisions of the law. In a country like India, law ought not to be too rigid: nor ought rights to be stiffened up so strictly as they are by this Contract Act. Creditors had already, through the iron regularity with which the British Courts enforce judgements by execution, obtained far more power over debtors than they possessed in the old days, and more than the benevolence of the English administrator approves. The Contract Act increases this power still further. This particular criticism does not reflect upon the technical merits of the Act in itself. But it does suggest reasons, which would not occur to a European mind, why it may be inexpedient by making the law too precise to narrow the path in which the judge has to walk. A stringent administration of the letter of the law is in semi-civilized communities no unmixed blessing.
So much for the rural districts. In the Presidency cities, on the other hand, the Contract Code is by most experts pronounced to be unnecessary. The judges and the bar are already familiar with the points which it covers, and find themselves—so at least many of them say—rather embarrassed than aided by it. They think it cramps their freedom of handling a point in argument. They prefer the elasticity of the common law. And in point of fact, they seem to make no great use of the Act, but to go on just as their predecessors did before it was passed.
These criticisms may need to be discounted a little, in view of the profound conservatism of the legal profession, and of the dislike of men trained at the Temple or Lincoln’s Inn to have anything laid down or applied on the Hooghly which is not being done at the same moment on the Thames. And a counterpoise to them may be found in the educational value which is attributed to the Code by magistrates and lawyers who have not acquired a mastery of contract law through systematic instruction or through experience at home. To them the Contract Act is a manual comparatively short and simple, and also authoritative; and they find it useful in enabling them to learn their business. On the whole, therefore, though the Code does not deserve the credit which has sometimes been claimed for it, one may hesitate to pronounce its enactment a misfortune. It at any rate provides a basis on which a really good Code of contractual law may some day be erected.
Taking the work of Indian codification as a whole, it has certainly benefited the country. The Penal Code and the two Codes of Procedure represent an unmixed gain. The same may be said of the consolidation of the statute law, for which so much was done by the energy and skill of Mr. Whitley Stokes. And the other codifying acts have on the whole tended both to improve the substance of the law and to make it more accessible. Their operation has, however, been less complete than most people in Europe realize, for while many of them are confined to certain districts, others are largely modified by the local customs which they have (as expressed in their saving clauses) very properly respected. If we knew more about the provinces of the Roman Empire we might find that much more of local custom subsisted side by side with the apparently universal and uniform imperial law than we should gather from reading the compilations of Justinian.
It has already been observed that Indian influences have scarcely at all affected English law as it continues to be administered to Englishmen in India. Still less have they affected the law of England at home. It seems to have been fancied thirty or forty years ago, when law reform in general and codification in particular occupied the public mind more than they do now, that the enactment of codes of law for India, and the success which was sure to attend them there, must react upon England and strengthen the demand for the reduction of her law into a concise and systematic form. No such result has followed. The desire for codification in England has not been perceptibly strengthened by the experience of India. Nor can it indeed be said that the experience of India has taught jurists or statesmen much which they did not know before. That a good code is a very good thing, and that a bad code is, in a country which possesses competent judges, worse than no code at all—these are propositions which needed no Indian experience to verify them. The imperfect success of the Evidence and Contract Acts has done little more than add another illustration to those furnished by the Civil Code of California and the Code of Procedure in New York of the difficulty which attends these undertakings. Long before Indian codification was talked of, Savigny had shown how hard it is to express the law in a set of definite propositions without reducing its elasticity and impeding its further development. His arguments scarcely touch penal law, still less the law of procedure, for these are not topics in which much development need be looked for. But the future career of the Contract Act and of the projected Code of Torts, when enacted, may supply some useful data for testing the soundness of his doctrine.
One reason why these Indian experiments have so little affected English opinion may be found in the fact that few Englishmen have either known or cared anything about them. The British public has not realized how small is the number of persons by whom questions of legal policy in India have during the last seventy years been determined. Two or three officials in Downing Street and as many in Calcutta have practically controlled the course of events, with little interposition from outside. Even when Commissions have been sitting, the total number of those whose hand is felt has never exceeded a dozen. It was doubtless much the same in the Roman Empire. Indeed the world seldom realizes by how few persons it is governed. There is a sense in which power may be said to rest with the whole community, and there is also a sense in which it may be said, in some governments, to rest with a single autocrat. But in reality it almost always rests with an extremely small number of persons, whose knowledge and will prevail over or among the titular possessors of authority.
Before we attempt to forecast the future of English law in India, let us cast a glance back at the general course of its history as compared with that of the law of Rome in the ancient world.
Comparison of the Roman Law with English Law in India
Rome grew till her law became first that of Italy, then that of civilized mankind. The City became the World, Urbs became Orbis, to adopt the word-play which was once so familiar. Her law was extended over her Empire by three methods:—
Citizenship was gradually extended over the provinces till at last all subjects had become citizens.
Many of the principles and rules of the law of the City were established and diffused in the provinces by the action of Roman Magistrates and Courts, and especially by the Provincial Edict.
The ancient law of the City was itself all the while amended, purged of its technicalities, and simplified in form, till it became fit to be the law of the World.
Thus, when the law of the City was formally extended to the whole Empire by the grant of citizenship to all subjects, there was not so much an imposition of the conqueror’s law upon the conquered as the completion of a process of fusion which had been going on for fully four centuries. The fusion was therefore natural; and because it was natural it was complete and final. The separation of the one great current of Roman law into various channels, which began in the fifth century ad and has continued ever since, has been due to purely historical causes, and of late years (as we shall see presently) the streams that flow in these channels have tended to come nearer to one another.
During the period of more than four centuries (bc 241 to ad 211-7), when these three methods of development and assimilation were in progress, the original law of the City was being remoulded and amended in the midst of and under the influence of a non-Roman population of aliens (peregrini) at Rome and in the provinces, and that semi-Roman law which was administered in the provinces was being created by magistrates and judges who lived in the provinces and who were, after the time of Tiberius, mostly themselves of provincial origin. Thus the intelligence, reflection, and experience of the whole community played upon and contributed to the development of the law. Judges, advocates, juridical writers and teachers as well as legislators, joined in the work. The completed law was the outcome of a truly national effort. Indeed it was largely through making a law which should be fit for both Italians and provincials that the Romans of the Empire became almost a nation.
In India the march of events has been different, because the conditions were different. India is ten thousand miles from England. The English residents are a mere handful.
The Indian races are in a different stage of civilization from the English. They are separated by religion; they are separated by colour.
There has therefore been no fusion of English and native law. Neither has there been any movement of the law of England to adapt itself to become the law of her Indian subjects. English law has not, like Roman, come halfway to meet the provinces. It is true that no such approximation was needed, because English law had already reached, a century ago, a point of development more advanced than Roman law had reached when the conquest of the provinces began, and the process of divesting English law of its archaic technicalities went on so rapidly during the nineteenth century under purely home influences, that neither the needs of India nor the influences of India came into the matter at all.
The Romans had less resistance to meet with from religious diversities than the English have had, for the laws of their subjects had not so wrapped their roots round religious belief or usage as has been the case in India. But they had more varieties of provincial custom to consider, and they had, especially in the laws of the Hellenized provinces, systems more civilized and advanced first to recognize and ultimately to supersede than any body of law which the English found.
There is no class in India fully corresponding to the Roman citizens domiciled in the provinces during the first two centuries of the Roman Empire. The European British subjects, including the Eurasians, are comparatively few, and they are to a considerable extent a transitory element, whose true home is England. Only to a very small extent do they enjoy personal immunities and privileges such as those that made Roman citizenship so highly prized, for the English, more liberal than the Romans, began by extending to all natives of India, as and when they became subjects of the British Crown, the ordinary rights of British subjects enjoyed under such statutes as Magna Charta and the Bill of Rights. The natives of India have entered into the labours of the barons at Runnymede and of the Whigs of 1688.
What has happened has been that the English have given to India such parts of their own law (somewhat simplified in form) as India seemed fitted to receive. These parts have been applied to Europeans as well as to natives, but they were virtually applicable to Europeans before codification began. The English rulers have filled up those departments in which there was no native law worthy of the name, sometimes, however, respecting local native customs. Here one finds an interesting parallel to the experience of the Romans. They, like the English, found criminal law and the law of procedure to be the departments which could be most easily and promptly dealt with. They, like the English, were obliged to acquiesce in the retention by a part of the population of some ancient customs regarding the Family and the Succession to Property. But this acquiescence was after all partial and local; whereas the English have neither applied to India the more technical parts of their own law, such as that relating to land, nor attempted to supersede those parts of native law which are influenced by religion, such as the parts which include family relations and inheritance. Thus there has been no general fusion comparable to that which the beginning of the third century ad saw in the Roman Empire.
As respects codification, the English have in one sense done more than the Romans, in another sense less. They have reduced such topics as penal law and procedure, evidence and trusts, to a compact and well-ordered shape, which is more than Justinian did for any part of the Roman law. But they have not brought the whole law together into one Corpus Iuris, and they have left large parts of it in triplicate, so to speak, that is to say, consisting of rules which are entirely different for Hindus, for Musulmans, and for Europeans.
Moreover, as it is the law of the conquerors which has in India been given to the conquered practically unaffected by native law, so also the law of England has not been altered by the process. It has not been substantially altered in India. The uncodified English law there is the same (local statutes excepted) as the law of England at home. Still less has it been altered in England itself. Had Rome not acquired her Empire, her law would never have grown to be what it was in Justinian’s time. Had Englishmen never set foot in India, their law would have been, so far as we can tell, exactly what it is to-day.
Neither have those natives of India who correspond to the provincial subjects of Rome borne any recognizable share in the work of Indian legal development. Some of them have, as text-writers or as judges, rendered good service in elucidating the ancient Hindu customs. But the work of throwing English law into the codified form in which it is now applied in India to Europeans and natives alike has been done entirely by Englishmen. In this respect also the more advanced civilization has shown its dominant creative force.
The Future of English Law in India
Here, however, it is fit to remember that we are not, as in the case of the Romans, studying a process which has been completed. For them it was completed before the fifth century saw the dissolution of the western half of the Empire. For India it is still in progress. Little more than a century has elapsed since English rule was firmly established; only half a century since the Punjab and (shortly afterwards) Oudh were annexed. Although the Indian Government has prosecuted the work of codification much less actively during the last twenty years than in the twenty years preceding, and seems to conceive that as much has now been done as can safely be done at present, still in the long future that seems to lie before British rule in India the equalization and development of law may go much further than we can foresee to-day. The power of Britain is at this moment stable, and may remain so if she continues to hold the sea and does not provoke discontent by excessive taxation.
Two courses which legal development may follow are conceivable. One is that all those departments of law whose contents are not determined by conditions peculiar to India will be covered by further codifying acts, applicable to Europeans and natives alike, and that therewith the process of equalization and assimilation will stop because its natural limits will have been reached. The other is that the process will continue until the law of the stronger and more advanced race has absorbed that of the natives and become applicable to the whole Empire.
Which of these two things will happen depends upon the future of the native religions, and especially of Hinduism and of Islam, for it is in religion that the legal customs of the natives have their roots. Upon this vast and dark problem it may seem idle to speculate; nor can it be wholly dissevered from a consideration of the possible future of the religious beliefs which now hold sway among Europeans. Both Islam and Hinduism are professed by masses of human beings so huge, so tenacious of their traditions, so apparently inaccessible to European influences, that no considerable declension of either faith can be expected within a long period of years. Yet experience, so far as it is available, goes to show that no form of heathenism, not even an ancient and in some directions highly cultivated form like Hinduism, does ultimately withstand the solvent power of European science and thought. Even now, though Hinduism is growing every day, at the expense of the ruder superstitions among the hill-folk, it is losing its hold on the educated class, and it sees every day members of its lower castes pass over to Islam. So Islam also, deeply rooted as it may seem to be, wanes in the presence of Christianity, and though it advances in Central Africa, declines in the Mediterranean countries. It has hitherto declined not by the conversion of its members to other faiths, but by the diminution of the Muslim population; yet one must not assume that when the Turkish Sultanate or Khalifate has vanished, it may not lose much of its present hold upon the East. Possibly both Hinduism and Islam may, so potent are the new forces of change now at work in India, begin within a century or two to show signs of approaching dissolution. Polygamy may by that time have disappeared. Other peculiar features of the law of family and inheritance will tend to follow, though some may survive through the attachment to habit even when their original religious basis has been forgotten.
In the Arctic seas, a ship sometimes lies for weeks together firmly bound in a vast ice-field. The sailor who day after day surveys from the masthead the dazzling expanse sees on every side nothing but a solid surface, motionless and apparently immoveable. Yet all the while this ice-field is slowly drifting to the south, carrying with it the embedded ship. At last, when a warmer region has been reached and the south wind has begun to blow, that which overnight was a rigid and glittering plain is in the light of dawn a tossing mass of ice-blocks, each swiftly melting into the sea, through which the ship finds her homeward path. So may it be with these ancient religions. When their dissolution comes, it may come with unexpected suddenness, for the causes which will produce it will have been acting simultaneously and silently over a wide area. If the English are then still the lords of India, there will be nothing to prevent their law from becoming (with some local variations) the law of all India. Once established and familiar to the people, it will be likely to remain, whatever political changes may befall, for nothing clings to the soil more closely than a body of civilized law once well planted. So the law of England may become the permanent heritage, not only of the hundreds of millions who will before the time we are imagining be living beyond the Atlantic, but of those hundreds of millions who fill the fertile land between the Straits of Manaar and the long rampart of Himalayan snows.
We embarked on this inquiry for the sake of ascertaining what light the experience of the English in India throws upon the general question of the relation of the European nations to those less advanced races over whom they are assuming dominion, and all of whom will before long own some European master.1
These races fall into two classes, those which do and those which do not possess a tolerably complete system of law. Turks, Persians, Egyptians, Moors, and Siamese belong to the former class; all other non-European races to the latter.
As to the latter there is no difficulty. So soon as Kafirs or Mongols or Hausas have advanced sufficiently to need a regular set of legal rules, they will (if their European masters think it worth while) become subject to the law of those masters, of course more or less differentiated according to local customs or local needs. It may be assumed that French law will prevail in Madagascar, and English law in Uganda, and Russian law in the valley of the Amur.
Where, however, as is the case in the Musulman and perhaps also in the Buddhist countries belonging to the former class, a legal system which, though imperfect, especially on the commercial side, has been carefully worked out in some directions, holds the field and rests upon religion, the question is less simple. The experience of the English in India suggests that European law will occupy the non-religious parts of the native systems, and will tend by degrees to encroach upon and permeate even the religious parts, though so long as Islam (or Brahmanism) maintains its sway the legal customs and rules embedded in religion will survive. No wise ruler would seek to efface them so far as they are neither cruel nor immoral. It is only these ancient religions—Hinduism, Buddhism, and especially Islam—that can or will resist, though perhaps only for a time, and certainly only partially, the rising tide of European law.
Present Position of Roman and English Law in the World
European law means, as we have seen, either Roman law or English law, so the last question is: Will either, and if so which, of these great rival systems prevail over the other?
They are not unequally matched. The Roman jurists, if we include Russian as a sort of modified Roman law, influence at present a larger part of the world’s population, but Bracton and Coke and Mansfield might rejoice to perceive that the doctrines which they expounded are being diffused even more swiftly, with the swift diffusion of the English tongue, over the globe. It is an interesting question, this competitive advance of legal systems, and one which would have engaged the attention of historians and geographers, were not law a subject which lies so much outside the thoughts of the lay world that few care to study its historical bearings. It furnishes a remarkable instance of the tendency of strong types to supplant and extinguish weak ones in the domain of social development. The world is, or will shortly be, practically divided between two sets of legal conceptions or rules, and two only. The elder had its birth in a small Italian city, and though it has undergone endless changes and now appears in a variety of forms, it retains its distinctive character, and all these forms still show an underlying unity. The younger has sprung from the union of the rude customs of a group of Low German tribes with rules worked out by the subtle, acute and eminently disputatious intellect of the Gallicized Norsemen who came to England in the eleventh century. It has been much affected by the elder system, yet it has retained its distinctive features and spirit, a spirit specially contrasted with that of the imperial law in everything that pertains to the rights of the individual and the means of asserting them. And it has communicated something of this spirit to the more advanced forms of the Roman law in constitutional countries.
At this moment the law whose foundations were laid in the Roman Forum commands a wider area of the earth’s surface, and determines the relations of a larger mass of mankind. But that which looks back to Westminster Hall sees its subjects increase more rapidly, through the growth of the United States and the British Colonies, and has a prospect of ultimately overspreading India also. Neither is likely to overpower or absorb the other. But it is possible that they may draw nearer, and that out of them there may be developed, in the course of ages, a system of rules of private law which shall be practically identical as regards contracts and property and civil wrongs, possibly as regards offences also. Already the commercial law of all civilized countries is in substance the same everywhere, that is to say, it guarantees rights and provides remedies which afford equivalent securities to men in their dealings with one another and bring them to the same goal by slightly different paths.
The more any department of law lies within the domain of economic interest, the more do the rules that belong to it tend to become the same in all countries, for in the domain of economic interest Reason and Science have full play. But the more the element of human emotion enters any department of law, as for instance that which deals with the relations of husband and wife, or of parent and child, or that which defines the freedom of the individual as against the State, the greater becomes the probability that existing divergences between the laws of different countries may in that department continue, or even that new divergences may appear.
Still, on the whole, the progress of the world is towards uniformity in law, and towards a more evident uniformity than is discoverable either in the sphere of religious beliefs or in that of political institutions.
[1 ]This essay is taken from volume III, pp. 567-601, of “Papers read before the Juridical Society” (London: Wildy and Sons). It is without date, but was read in 1869 or 1870.
[2 ]Barrister-at-law, Fellow of Owen’s College, Oxford.
[3 ]St. 1654, cc. 8, 9, 10: Whitelock, 517, 532, 632: “The decisions of the Engl. judges during the ursurpation,” etc. Cp. Bacon, “Certayne articles touching the Union . . . of Engl. and Scotl.” [M. s. Qu. Coll. Oxf. 32.27 (D. 2. 129, )].
[4 ]Stt. 1648-9, c. 17; 1656-7, cc. 6, 18; 1659, July 12: Comm. Journ.: Whitelock, 377, 569, foll.: 6 Thurloe, 107, 668: Ludlow (246).
[5 ]J. Coke, “Unum necessarium:” Stt. 1649, May 7: 1653-4, c. 20: Whitelock, 384, 531. Cp. St. 43 Eliz. c. 2: Child, “Proposals for the relief and employment of the poor” [11 Somers’s Tracts, 606].
[6 ]Comm. Journ. 1649, Mar. 21; 1657, June 9: Stt. 1654, c. 51; 1656, c. 30.
[1 ]J. Coke, “The vindication of the profession and professors of the Law,” A 4: Bacon, “Works” [e. g. vol. 10, ed. Spedding: essay “of Judicature:” “De Augm. Sc.:” “Henry VII.”]
[2 ]St. 16 and 17 Car. i. cc. 10, 11, 15, 16, 28: Comm. Journ.: Clar. bks. 3 and 4.
[1 ]Stt. 1648-9, cc. 6, 10: 1650, c. 1, Apr. 2, cc. 24, 40; 1651, cc. 8, 20; 1653, c. 25; 1653-4, c. 4; 1654, c. 27; 1656, c. 3; Comm. Journ.: “State Trials:” Cock, “English Law” (1651), p. 74: Whitelock: Clar. bks. 11, 13, 14: Spence, pt. 2, bk. 1, c. 4, and bk. 4, c. 1. For the reference to Spence I have to thank Sir G. Young.
[2 ]“Divers officers and soldiers” call Cromwell “the first Christian King and Emperour” [“A supply to a draught of an act,” etc. (1653). p. 22]. Cp. “The Homilies” (1547), bk. 1, serm. 10, pt. 3. I am indebted to the Rev. J. R. Green for reminding me that Archbp. Heath, in 1559, spoke of Elizabeth as “our Emperour and Empress” [Freeman, 1 “Norman Conquest” 161, 626].
[3 ]Selden, “Janus Angl.” bk. 2, § 9: Warr, “The corruption and deficiency of the laws of Engl.” etc., cc. 3 and 4: Winstanly, Barker, and Star, “An Appeal to the H. of C. etc., pp. 18, 19: Jones, “The new returna brevium,” etc., passim: Thierry, “The Conquest of Engl.” etc., conclusion, § 4: Spelman, “Of the Terms:” St. 16 Car. i., c. 6.
[4 ]“Examen legum Angl.” (1656): Cole, “A rod for the lawyers” (1659). But see “A vindication of the laws of Engl. as they are now established.”
[1 ]6 Somers’s Tracts, 179: St. 1653, c. 4: Resolution, Nov. 7: Stt. 1654, c. 53; 1656, c. 10.
[2 ]North, “Guilford” (1742), p. 99. See Mr. Commissioner Hill’s “Letter to Thomas Pemberton,” etc. (1838), pp. 27-38: Bacon, “Works,” vol. 10, p. 367 (ed. Spedding): 12 Rep. 109: 4 Inst. 99: Jones, u. s.; and other works, passim.
[3 ]See its draughts in 6 Somers’s Tracts, 211 foll. ridiculed in “The proposals of the Committee for regulating the law,” etc. [ibid. 528-32], and sensibly criticized by the army in “A supply to a draught of an act,” etc. (1653).
[4 ]Wynne, “Serjeant at Law:” Manning, “Serviens ad Legem:” 10 Bing. 571: 1 and 6 Bing. n. c.: St. 9 & 10 Vict. c. 54: 3 C. B. 537.
[1 ]Jones, “The new returna brevium,” etc. Hudson, 25 “Archaeol” 349, foll.: J. Coke, “A vindication,” etc. “An exact relation of the proceedings and transactions of the Parliament which began July 4, 1653, by a member thereof.”
[2 ]Orders in Beames: Jones, “Judges judged,” etc., p. 92.
[3 ]Whitelock, 519, 548: Jones, “The new ret. brev.” etc. A 6: 6 Somers’s Tract, 202, foll.
[4 ]Stt. 1654, c. 44; 1656, c. 10: Whitelock, 621-7. Cp. 4 Comm. Journ. 701.
[1 ]Carey, “The present state of England” (1627): “Saint Hilary’s tears” (1642 or 1643): 2 “Hudibras” 3, 325-30, and Grey’s n.: Bacon, “Arguments against the Bill of Sheets” [“Works,” vol. 10, p. 287 (ed. Spedding), cp. vol. 8, p. 226]: Williams, “Real Property,” pt. 1, c. 9.
[2 ]“A noble person,” in Burnet’s “Hale,” pp. 113 foll. (1682).
[3 ]Cp. Selden, “Table Talk” and Whitelock, 378, with Hooker [5E. P. 9] and Hobbes, “A dialogue between a philosopher and a student of the Common Laws of Engl.” And see Smith, 1 Ex. Dev. 534 n. t. (1844); 2 Swanston, 414; 3 De G. F. and J. 238; Best, 1 Jur. Soc. Pap. 399, foll.; Marshall, ib., 2, 283, foll.
[4 ]Stt. 16 Car. i. c. 11; 17 Car. i. c. 28 (repealed by 13 Car. ii. c. 2); 1646, cc. 64, 66; 1649, c. 24: Clar. bks. 3, 4.
[5 ]1 “Hudibras” 2, 531; 3, 2, 544; and Grey’s notes.
[1 ]Ib, 2, 1, 870: Proceedings in the Bp.’s and Archdn.’s Cts., Oxf.
[2 ]13 Rep. 24: 12 Rep. 78 and 3 Ist. 147: 4 Inst. 336; cp., as to Sir John Bennet, Willet, “Synopsis Papismi” (Charitable work done in the U. of O.) and Macray, “Annals of the Bodl.,” p. 37.
[3 ]Froude, c. 24: Hallam, cc. 2, 4, 8: Steph., “Comm.” intr. § 1: Clar. u. s., Burton, “Dairy,” 4 Nov. 1654: Whitelock, 655: “Merc. Pol.,” No. 238.
[4 ]Stt. 1643, May 17 and 20, c. 10; 1644 Nov. 5. Cp. the permission given by St. 1 Eliz. c. 1, §§ 39-43 to proceed with appeals to the Court of Rome in the cases of Tyrril v. Chetwood and Wife and Harcourt v. Tydell.
[5 ]See his “Certain considerations touching the better pacifications and edification of the Church of England.”
[6 ]Statt. 1644, c. 45, 1647, March 24, c. 85; 1648, cc. 110, 121, 1649, cc. 24, 31; 1650, c. 5; 1654, c. 45; 1656, c. 10: Harwood v. Paty, Hardres, 63: Jones, “The crie of bloud,” p. 16; “A case concerning tythes;” Winstanly, etc. u.s. pp. 18, 19: W[m.] S[hepherd], “The Parson’s Guide” (1654), c. 8.
[7 ]Bacon u. s.: Selden, “Eccl. Jurisdiction of testaments.” (c. 1626).
[1 ]Yelverton, 92: 9 Rep. 37. Cp. 5 Rep. i, xvi., xvij., 74: 9 Rep. 48.
[2 ]Selden, 1. c. pt. 1, c. 6.
[3 ]“An experimental essay,” etc. p. 3: Statt. 1653, c. 2, Dec. 24; 1654, c. 4: Burton, “Diary,” 1656, Dec. 3 and 24: Wynne, Jenkins, 2, 695.
[4 ]St. 1654, c. 44, § 48: “Exam. legg. Angl.,” c. 14, §§ 31, 33, 34: Rep. on Eccl. Cts. (1832), P. 39.
[5 ]“Exam. legg. Angl.,” c. 14, § 27; p.s. § 69: 3 “Hudibras,” 1, 623-30. The attacks made in “A plea for ladies,” etc. on Milton’s book about divorce, which he defended by translating Bucer’s, and by writing “Colasterion” and “Tetrachordon,” prevented thorough legislation.
[6 ]Wingate, “Maxims of Reason,” 1, 4.
[7 ]“The Vindication,” etc., p. 83.
[8 ]As Lewes, Principal first of New Inn Hall, and then of Jesus Coll. Oxf., appointed by Lord Clinton, in 1558, Judge of the High Ct., of Admiralty [Ms. among the records of the court: Wood, 1 “Fasti Oxon.” 127].
[1 ]See among other Stt. 1648, c. 112; 1648-9, cc. 13, 14; 1640, cc. 21, 22, 23, 38; 1650, cc. 7, 33, 48, 50; 1651, cc. 3, 4; 1654, cc. 21; 1656, c. 10.
[2 ]Williams and Bruce, “Admiralty Jurisdiction and Practice,” intr. pp. 13, 14: Browne, “Civil Law,” vol. 2, c. 1.
[3 ]Statt. 1649, cc. 21, 38; 1650, c. 7.
[4 ]Stt. 16 Car. i. c. 5; 17 Car. i. cc. 30, 32; 1647, cc. 78, 101; 1648-9, cc. 12, 15; 1649, cc. 21, 73; 1650, c. 7; 1651, cc. 21, 29; 1652, cc. 15, 36; 1653, ord. 21; 1654, c. 13; 1656, c. 24.
[5 ]Bla. 1 “Comm.” 418: Adam Smith, “W. of N.” bk. 4, c. 2, and McCulloch’s 12th n.: Campbell, “Brougham,” c. 8.
[6 ]1st. Rep. of the Judicature Commission (1869), note.
[1 ]Bacon, “Certayne articles touching the Union of Engl. and Scotl.,” u. s.
[2 ]St. 1656, c. 24. Cp. d’Israeli, “Cur. of Lit.” (“Building in the Metropolis,” etc., and “Royal Proclamations”): Hallam, C. 8: Evelyn, “Fumifugium:” “The Apology for the Builder” (1685).
[3 ]Robertson, “Charles V.,” notes: Allen, “The Royal Prerogative in Engl.,” pp. 100 foll.: Stubbe, “a select senate” (1659).
[4 ]Carey, “The present state of Engl.:” Jones, “Every man’s case,” p. 17.
[5 ]Jones, “Eight observable points of law:” “An experimental essay, touching the reformation of the laws of Engl.:” Warr, “The corruption and deficiency of the laws of Engl.,” cc. 3, 4: Jones, “Judges judged,” etc.; “the new returna brevium:” “Exam. Legg. Angl.” c. 13: Lechford, “Plaine dealing,” p. 25.
[6 ]These manors were created under the confiscatory statt. of Eliz., under “The Adventurers Act.” (17 Car. i. c. 34), and under St. 1656, c. 23. Cp. St. 37 Hen. viij. c. 2; and see Kingston’s case (1 Ridg. 384, Vern. and Scr. 135), and Ormond’s (St. 8 & 9 Will. iij. c. 5; 2 Bro. P. C. 256), and 2 T. R. 425, 705. They were perhaps created also by patent as in Delacherois’ case (11 H. L. C. 62). They had no freeholders nor copyholders.
[1 ]Earle, “Miscrocosmographie” (“and aturney”): Clar. bk. 9: Hudson, u. s.: J. Coke, “The Vindication,” etc., p. 25: Orders in Beames: St. 1654, c. 44: Oglander, “Mem. of the Isle of Wight:” “Exam. Legg. Angl.,” and Cock, u. s.
[2 ]“Some advertisements for the new election of burgesses for the H. of C.:” J. Coke, l. c.: Clayton, “Reports and pleas of assises at Yorke,” pref.: 6 Somers’s Tracts, 184, 189: St. 1654, c. 44.
[3 ]“Some advertisements,” etc.: Whitelock, 430-3: 6 Somers’s Tracts, 184.
[4 ]Burton, “Diary,” 1657, June 26: “Merc. Pol.,” No. 309. Cp. 4 Rep. xviij., xix.: North, “Guilford,” p. 22: Burnet, “Hale,” etc., on “put-cases” and “mooters”: Smith, 1 Jur. Soc. Pap., 385, foll.
[1 ]Clayton, l. c. But see a petition against the monopoly of lawyers (British Museum 190, g. 12),45 ) and the 1st Rep. of the Judicature Commission, p. 14.
[2 ]“Hist. Rome,” bk. 2, c. 8, n.
[3 ]See Walter’s case (Whitelock 11, 16: Kal. St. Pap. [Dom. Ser.], 1629-31, pp. 76-8), and Rolle’s, Whitelock’s, Keble’s l’Isle’s, Hale’s. See also 1 Sid. 2: St. 12 and 13 Will. iij. c. 2, § 3: Hallam, c. 15 (compared with Macauley, c. 18): St. 1 Ann. s. 1, c. 8: 2 Ld. Raym. 747: St. 1 Geo. iij. c. 23: Blackstone in Steph. “Comm.,” bk. 4, pt. 1, c. 6.
[4 ]As Vernon, J.; Richardson, C. B.; Cæsar and Buck: Jones, “The new returna brevium,” pp. 23, 30.
[5 ]Comm. Journ. 5,528; 7,670: 6 Somers’s Tracts, 186, 189: Whitelock, 382, 680: Cock, “Christian Government,” p. 186.
[1 ]Cp. 6 Somers’s Tracts, 181, with Bps. Burnet and Tomline on the 39th Article, and with St. 17 & 18 Vict. c. 71, §§ 43, 44. And see “Hudibras,” 1, 2, 1112, and 2, 2, and “The Lady’s answer to the Knight,” 183, and Grey; “Exam. legg. Angl.:” Sanderson, “de Jur. Prom. Obl.,” s. f.
[2 ]Brett, “Narrative of the proceedings of a great council of Jews:” Dury, “A case of conscience:” “A narrative of the late proceedings at Whitehall concerning the Jews:” Ben Israel, “Vindiciae Judaeorum:” Lingard, vol. 8, c. 7: Hallam, c. 11: Carlyle, “Cromwell,” pt. 9. Contrast Kal. St. Pap. (Dom. Ser.), 1660-1, p. 366. There were, of course, undisguised Jews in England before Cromwell connived at their return [Smith, “Willet,” (1634)].
[3 ]Mildrone’s Case, 1 Leach, C. L. 412: Walker’s, id. ib. 498: Mee v. Reid, 1 Peake, 23. Cp. Reilly, 1 Jur. Soc. Pap. 435, foll., with Anstey. ib., 371, foll.
[4 ]But see Cock, “Christian Govt.,” p. 175.
[1 ]4 Rep. xx., xxi.: 1 Inst. xl., xli. (citing St. 35 Edw. iij. c. 5).
[2 ]Jones, “Eight observable points of law,” §§ 4, 8; “The new ret. brev.,” pp. 7, 15, 21-3; “Judges judged,” etc., pp. 107, 114, 115; “Jurors judges of law and fact,” pp. 4, 5, 51, 77, 79, 86: Warr, “The Corruption,” etc., cc. 3, 4: Winstanly, etc., u. s., pp. 18, 19: Cock, “Christian Govt.,” pp. 133-5.
[3 ]Stt. 1650, c. 37; 1651, c. 4: followed up by Stt. 1654, c. 28; 1656, c. 10: Whitelock, 384, 475-83: Style, 261: Wimbledon rolls, Nos. 12-15; roll of misc. scripts; bks. 7-9: “Merc. Pol.,” No. 19.
[4 ]Bulstr. u. s.: Noy [?], pref.: Clayton, u. s.: Hetley, pref., 26, 36.
[5 ]March, pref.: Bridgeman, pref.: Leonard by Hughes, u. s.
[6 ]Yelverton, pref.: 2 Siderfin.
[7 ]“An appendix by way of dialogue [to the 2nd part of ‘The people’s ancient and just liberties asserted in the proceedings against and tryals of Thomas Rudyard, Francis Moor,’ etc.]” (1670): North, “Guilford,” p. 22.
[1 ]Stt. 4 Geo. ii. c. 26 (see 7 C. B., 462: Willes, 601); 6 Geo. ii. c. 14, §§ 3, 5 (cp. Noy [?], pref.): Bl. 2 “Comm.,” 323: Smollett, bk. 2, c. 4, § 25: J. Wesley, “The doctrine of original sin,” 1, 2, 9.
[2 ]Add “Special and selected law cases concerning persons and estates, collected out of the Reports and Year Books of the Common Law of Engl.” (1641), and Finch’s “Law” condensed by Wingate.
[3 ]Burton, “Diary,” 1657-8, Febr. 2, Rutt’s note.
[4 ]“The Vindication,” etc., pp. 25, 26. Cp. “Exam. legg. Angl.,” cc. 11; 12; 14, § 13. Coke, though his “Vindication” is flattering and cowardly, was praised by Cromwell for his conduct in Ireland and died bravely [Ludlow, 123 (137), 398 (407)].
[5 ]Lechford, “Plaine dealing,” pp. 26, 27, cited in “Exam. legg. Angl.,” c. 14, § 3. Even then English Puritanism looked to America.
[1 ]1 Bulstr., pref. Cp. “An experimental essay,” etc. (1648).
[2 ]Whitelock, 519: Carlyle, “Cromwell,” Speeches 2 and 5: “A Vindication of the laws of Engl.,” u. s.
[3 ]Peters, “Legacy” (in Harris 1 “Lives,” xxv., quoted by Rutt., u. s.): Whitelock, 430-3, 521, 601.
[4 ]Comm. Journ. 1666, Oct. 5.
[5 ]Austin, “Lectures” (1863), vol. 1, p. cix.; vol. 3, p. 279: A. Amos, “Ruins of the time exemplified in Sir Matthew Hale’s ‘Hist. of the Pleas of the Crown’ ” (1856), pp. 1, 3: Stephen, “Criminal Law,” c. 2: Bacon, “Certayne articles,” u. s., etc.
[1 ]“An experimental essay,” etc.
[2 ]6 Somers’s Tracts, 234, 235: “Exam. legg. Angl.” c. 11, § 9. Cp. Stt. 12 Geo. iij. c. 20; 7 and 8 Geo. iv. c. 28.
[3 ]6 Somers’s Tracts, 235.
[4 ]6 Somers’s Tracts, 236: 6 Rep. pref. (quoting Cæsar, 6 B. G. 19): Selden, “Janus Augl.,” bk. 1, c. 11. Cp. Statt. 30 Geo. iii. c. 48; 54 Geo. iii. c. 146; 9 Geo. iv. c. 31.
[5 ]6 Somers’s Tracts, 188: Statt. 1654, c. 36; 1656, c. 10.
[6 ]St. 1656, c. 26: Comm. Journ. 1650, June 7: 3 Parl. Hist. 1346.
[7 ]Statt. 1654, cc. 2, 39: Grey’s note on “Hudibras,” 1, 1, 800.
[1 ]Statt. 1652, c. 27 (cp. 14 “St. Tr.” 639 foll., 690 foll.); 1651, c. 12: 6 Somers’s Tracts, 190, 235, and statutes cited above, pp. 589, 590: “Exam. legg. Angl.” c. 14, §§ 29, 32.
[2 ]Carlyle’s “Cromwell” (speech 5): “Exam. legg. Angl.” c. 11.
[3 ]Whitelock, 433; “Life,” 109-120: 6 Somers’s Tracts 235: Hutton, 133: “Directions for justices of the peace,” No. 7 (prefixed to Kelyng): Mr. Commissioner Hill, “The repression of crime” (1857), pp. 25-41.
[4 ]St. 1645, c. 51: Grey on “Hudibras,” 3, 1, 888. Cp. Nelson, “Bull,” § 9: Cock, “Christian Govt.,” p. 52.
[5 ]Stt. 1653, c. 6; 1656, c. 10: 6 Somers’s Tracts, 179. Cp. the New Engl. law (Lechford, l. c. p. 39).
[1 ]Milman, “Latin Christianity,” bk. 3, c. 5: “Manuale Ebor.” and “Man. Sarisb.:” Dr. Goldingham in Bunting v. Lepingwell, Moore, 170: Chaucer, “The wife of Bathe’s prologue:” Menochius, “De praesumptionibus” (1595), 3. 2. 7, et 11 cc.: Dalrymple v. Dalrymple, 2 Hagg. C. R. 64, 67-70: Jurieu, “Hist. Counc. Trent,” bks. 7 and 8: Stt. 6 & 7 Will. iv. c. 85; 10 & 11 Vict. c. 58: Le Code Civil, §§ 75, 76, 165: Le Code Penal, §§ 199, 200. The ring is a trace of coemptio: cp. Benjamin, “contract of sale.”
[2 ]1 Hagg. C. R. app. 9 n.: Burnet, “Hale:” North, “Guilford:” Stt. 12 Car. ii. c. 33; 13 Car. ii. c. 11. And see St. 6 & 7 Will. iii. c. 6, §§ 63, 64.
[3 ]Cp. the 70th Canon with 6 Somers’s Tracts, 179; Stt. 1645, c. 51; 1653, c. 6, §§ 4, 10, 11: and these again with St. 30 Car. ii. c. 3, and the acts since 1820. St. 1653 c. 6, extended to Ireland.
[4 ]See Harrison v. Burwell: Hill and Wife v. Good: Watkinson v. Murgatroyd; Collet v. Collet; Hinks v. Harris. Cp. Selden, “De successionibus,” etc., cc. 14, 15; “Uxor Ebraica,” bk. 1, cc. 12-15.
[5 ]2 Lev. 128; 1 Str. 477; 1 Sid. 113, 116: 3 Keble, 433. Cp. St. 1656, c. 26, with “Parl. Hist.” 1650, June 7.
[1 ]1st Rep. of the Registration and Conveyancing Comm. (1850) pp. 3, 4; app. 6; Rep. of the Registration of Title Comm. (1857), p. 2; Steph. “Comm.” 2, 1, 17, 20: Williams, 1 Jur. Soc. Pap. 45; 2, 589; Ludlow, ib. 2, 140.
[2 ]Hickes to Shower, “Dissertatio epistolaris,” p. 9 (1703) Brit. Mus. Arundel Mss. 310. The inventories or “stars,” perhaps the same as shetarim, which Richard I. made the Hebrews keep of their debts, mortgages, lands, houses, revenues and possessions, were rather part of an apparatus for extortion than registers of title. See Roger of Hoveden, “Annales,” pars post., Riv. prim., capitula de Judaeis; Selden, “Of the Jews sometimes living in Engl.: “Du Cange,” sv. “starrum:” Steph. “Comm.” 6, 14, 3, n.
[3 ]Sanders, 2 Uses, 66: Pierrepoint, “A treatise concerning registers,” etc. (c. 1660). Was he the Protector’s friend (as to whom see Carlyle, “Cromwell”)?
[4 ]“A dialogue between a philosopher and a student of the Common Laws of Engl.” (of Courts): “Exam. legg. Angl.” c. 14, § 35: Cock, “Christian Govt.” p. 171: Grey on 3 “Hudibras,” 1, 1519, 1520.
[5 ]Stt. 1646, c. 66; 1647, c. 75; 1648, c. 113; 1649, cc. 24, 42, 76; 1650, cc. 29, 30, 47; 1651, c. 10; 1652, cc. 6, 16, 23, 31; 1653, c. 10.
[1 ]7 Comm. Journ. 67, 100, etc.: Ludlow, 123 (137), 165 (184), 398 (407) St. 1653, c. 10. Cp. G. Smith, “Irish Hist. and Irish Character,” s. f.
[2 ]Statt. 1649, c. 29; 1654, c. 20 (cp. c. 57); 1650, c. 10; 15 Car. ii. c. 17 (cp. 10 Sim. 127): Dugdale, “Hist. of Imbanking,” etc., cc. 32-41, 54 (1662): Carlyle “Cromwell.”
[3 ]With St. 25 and 26 Vict. c. 53 cp. Bradish v. Ellames 10 Jur. (N. S.)
[4 ]“A treatise,” etc. u. s.
[5 ]“A treatise showing how useful . . . the enrolling and registering of all conveyances of lands may be,” etc. Cp. Philpot, “Reasons and proposals for a registry,” etc. (1671); Adam Smith, “W. of N.,” book 5, c. 2, pt. 2, app. to articles 1, 2: Mill, “Pol. Ec.” bk 5, c. 8, § 3.
[6 ]Prof. Rogers, “The laws affecting landed property” (1869), p. 11.
[7 ]3 Rep. 82 (“quaeritur ut crescant tot magna volumina legis: in promptu caussa est; crescit in orbe dolus”).
[1 ]Whitelock, 430-32; 601.
[2 ]“Exam. legg. Angl.” c. 14, § 39: Clar. “Life,” 3, 7: St. 22 and 23 Car. ij. c. 3, § 2.
[3 ]Bacon, “Advice to Sir G. Villiers” (1615-16): Mun. “Engl. treasure by foreign trade” (c. 1625): Clar. bk. 1.
[4 ]Breverton’s Case, Dyer, 30 b.: Rolle, “Abr.” (action sur case [V] 60, 61): Stt. 1646, c. 65; 1649, c. 24 (Scobell , pt. 2, pp. 23, 28): 6 Somers’s Tracts, 187. But see Mayor, “Baker’s ‘Saint John’s Coll., Cambr.’ p. 383.”
[5 ]6 Somers’s Tracts, 184, 187.
[6 ]Stt. 1650, c. 39; 1651, c. 2.
[7 ]6 Somers’s Tracts, 186: St. 1654, c. 25. Cp. Stt. 29 Car. ii. c. 3; 3 & 4 W. & M. c. 14: and see Benjamin, “Contracts of Sale,” bk. 1, pt. 2, c. 1 (where read 5 East, 17, and Wynne, “Jenkins,” I, liij.); Gilbert, 171.
[8 ]Statt. 1653, c. 13; 1654, c. 41: Jones, “The new ret. brev.” p. 11; “The peace of justice” p. s.; “Judges judged,” etc.; “The crie of bloud;” “Every man’s case,” etc.: petition to Cromwell from the prisoners in the Fleet against oppression [Brit. Mus. 190, g. 12121]: “Reasons for the continuance of the process of arrests,” etc. (c. 1651). Hugh Peters’s “Good work for a good magistrate” was answered by Vaughan [Jones, “The crie of bloud,” A 2].
[1 ]“An experimental essay,” etc., u. s. Cp. 6 Somers’s Tracts, 182: “Exam. legg. Angl.” c. 11, §§ 22, 23.
[2 ]Stt. 1642, c. 4; 1646, c. 67; 1647, c. 124; 1648, c. 122; etc.
[3 ]Bacon, “Works,” ed. Spedding, vol. 10, pp. 178 foll., 266 foll., 304, 305: Stt. 1643, c. 19; 1645, c. 59; 1646, Feb. 24; 1647, c. 92; 1649, c. 25; 1652, c. 14; 1654, c. 9 (abolishing wardship, etc., in Scotland); 1656, cc. 4, 7, 10,—25 St. 1656, c. 4, especially: 1 Bl. “Comm.” 288, 319. Cp. the Statt. of 12, 13, 14, and 15 Car. ii.
[4 ]6 Somers’s Tracts, 182, 183.
[5 ]Williams, 1 Jur. Soc. Pap. 54, 55: Davidson, “Precedents,” intr. c. 1: Prof. Rogers, u. s. pp. 9, 10.
[1 ]Winstanly, Barker and Star, u. s.: Foote, “The Mayor of Garratt,” 2, 1. Sheridan, “A trip to Scarborough,” 5, 2.
[2 ]Winstanly, etc., u. s. Cp. Cock, “Engl. Law,” p. 48; Thierry, u. s. Absurd as it was to call the Royalists “Norman,” still in that party were probably most of the lords of manors. Lambert was Lord of the Manor of Wimbledon during the Commonwealth.
[3 ]6 Somers’s Tracts, 183: “Exam. legg. Angl.” c. 14, § 36.
[4 ]Winstanly, etc., u. s.: St. 1646-7, c. 72: Cock, “Christian Govt.” p. 174.
[5 ]Bacon essay “of the true greatness of kingdoms and estates;” “Henry VII.;” speech of naturalization (1607): “An experimental essay,” etc., u. s.: “The Pall Mall Gazette,” No. 1286.
[6 ]North, “Guilford,” pp. 23, 24, 140, 241. Contrast Cock, “Christian Govt.” p. 170.
[7 ]Co. Cop. in Williams, “Real Property,” pt. 3.
[1 ]See Carlyle, “Frederick,” 11, 1; 16, 1, 2, 4, 8.
[2 ]Cp. “praebendarius, qui praebet auxilium episcopo” [E. Coke], “qui praebendam suscipit” [Du Cange]: and see Hamilton, “Discussions,” (1853), pp. 344, 345: Phillimore. “Roman Law,” pt. 1, c. 1: Doellinger, “Universities past and present.”
[3 ]Burnet, “Hale,” pp. 17, 18: cp. Leibnitz, “New methods of teaching and learning law” (1667), and “Plan for rearranging the Corpus Juris” (1668); and see the lines beginning, “In Institutis comparo vos brutis,” quoted by Lord Westbury, 1 Jur. Soc. Pap. 6; Phillimore, l. c., pt. 2, c. 4: Gueterbock, “Bracton,” c. 7.
[1 ]These passages are taken from “The Laws and Jurisprudence of England and America,” 1894, being lectures delivered at Yale University; (Boston: Little, Brown, & Co.), Lecture XII, pp. 316-347; the author has revised them for this Collection.
[2 ]Member of the New York Bar. M. D. Iowa University; admitted to the Iowa Bar, 1852; judge of the seventh judicial circuit of Iowa, 1858-1863; judge of the Supreme Court of Iowa, 1863-1869; judge of the United States Circuit Court for the eighth judicial district, 1869-1879; professor of law in Columbia University, 1879-1882; former President of the American Bar Association.
[3 ]Sir James FitzJames Stephen, “History of Criminal Law of England,” London, 1883, vol. ii., chap. xxi., p. 216.
[4 ]Early History of Institutions, Lecture XIII. Others also, well qualified to judge, have assigned to Bentham a place in the foremost rank of men of extraordinary intellectual endowments. I subjoin an extract giving Macaulay’s judgment. He is by no means a partial witness: he was a Whig of the Whigs; Bentham, a Radical of the Radicals. If there was anything that a Whig hated more than a Tory, it was a Radical. Macaulay had in Bentham’s lifetime attacked with fierceness and rancor the Benthamic notions of politics. Yet within a few months after the death of Bentham, in reviewing (July, 1832) Dumont’s “Mirabeau,” Macaulay thus expresses his opinion of Bentham’s character and labors: “Of Mr. Bentham,” he says, “we would at all times speak with the reverence which is due to a great original thinker and to a sincere and ardent friend of the human race. In some of the highest departments in which the human intellect can exert itself he has not left his equal or his second behind him. From his contemporaries he has had, according to the usual lot, more or less than justice. He has had blind flatterers and blind detractors,—flatterers who could see nothing but perfection in his style; detractors who could see nothing but nonsense in his matter. He will now have his judges. Posterity will pronounce its calm and impartial decision; and that decision will, we firmly believe, place in the same rank with Galileo and with Locke the man who found jurisprudence a gibberish and left it a science.” (A general truth, rather too strongly expressed.) See below for opinions of Brougham and others concerning Bentham’s writings and labors.
[1 ]See ante Lecture XI.
[1 ]See post Lecture XIII.
[2 ]See ante Lecture VI., p. 180.
[1 ]See ante Lecture VI., p. 174; Lecture X., p. 270.
[1 ]3 Black. Com., 268; 2 Dillon, “Municipal Corporations” (4th ed.) § 934, a, and note.
[2 ]See ante Lecture XI.
[3 ]Conciliation with America, 1775.
[1 ]Appeal from the New to the Old Whigs. Burke’s Works, vol. iv., p. 213 (Little, Brown, & Co.’s Ed.).
[2 ]Vol. i., chap. xv., American Ed., p. 243.
[1 ]“Life of Sir Samuel Romilly,” edited by his sons, vol. i., Diary, June, 1808. See also his beautifully written Letters to C., letter iii., September, 1807, in same volume, 3d ed., London, 1842, p. 537.
[2 ]Townsend, “Lives of Twelve Eminent Judges,” vol. ii., chap. x., p. 455, London, 1846. Bowring says that Bentham hated Eldon as much as it was possible to his benevolent nature to hate,—considered him the mightiest and most mischievous of all the opponents of law reform; and he calls him, in another place, the Lord of Doubts. Defective as the laws were, they were doubtless in a vastly better condition than they would have been if Bentham could have subjected them to the full operation of his radical, and to a large extent impracticable views, which, however, were never favored in their full scope and details by such conservative reformers as Brougham, Romilly, and Bickersteth.
[1 ]Romilly was the means of rendering Bentham what turned out to be a most signal service. About 1788, when Bentham was forty years of age, Romilly sent to Genevese Dumont some of Bentham’s writings. They greatly impressed this gifted man with their originality and value. Dumont gave a large portion of his life to the redaction and translating into French some of the most important of Bentham’s works. But this required years. On April 5, 1791, Romilly writes to Dumont: “Bentham leads the same kind of life as usual at Hendon,—seeing nobody, reading nothing, and writing books which nobody reads.” In 1802 Dumont’s French edition of Bentham’s treatise on “Legislation Civil and Criminal” appeared, and was translated into Spanish, Russian and Italian; in 1811 “Rewards and Punishments,” and in 1823 “Judicial Evidence,” thus treated and translated by Dumont, were published in Paris. This gave Bentham a European reputation, and quickened his tardy appreciation at home. In the history of letters there is nothing more remarkable than the relation between Dumont and Bentham. Macaulay’s account of the services rendered by Dumont is as interesting as it is, generally speaking, accurate. Of the character and value of Dumont’s labors the great reviewer remarks:—
[1 ]Lord Brougham’s Speeches, Edinburgh, 1838, vol. ii., p. 288, Black’s Edition. Brougham and Bentham were well acquainted. In a sense Brougham was one of Bentham’s disciples. Both aspired to be law reformers. Indeed, Brougham’s most useful labors in Parliament were directed towards law reform. There were, however, radical differences of opinion between Bentham and Brougham as to the best method of effecting the desired improvement. These differences naturally arose out of the difference in the situation and surroundings of the two men. Bentham, though he was regularly bred to the law and called to the bar, never pursued the profession. Bentham thus summarized his own career as a practising lawyer: “I never pleaded in public. On my being called to the bar, I found a cause or two at nurse for me. My first thought was how to put them to death; and the endeavors were not, I believe, altogether without success. Not long after a case was brought to me for my opinion. I ransacked all the codes. My opinion was right according to the codes; but it was wrong according to a manuscript unseen by me and inaccessible to me,—a manuscript containing the report of I know not what opinion, said to have been delivered before I was born, and locked up, as usual, for the purpose of being kept back or produced according as occasion served.”
[1 ]See ante Lecture XI.
[1 ]Sir Samuel Romilly gives this interesting account of a visit which he made in 1817 to Bentham:—
[1 ]Essay on Bentham, “Dissertations and Discussions” (Am. Ed.), vol. i., pp. 355-358. John Stuart Mill in his Autobiography says: “During the winter of 1821-22, Mr. John Austin, with whom at the time of my visit to France my father had but lately become acquainted; kindly allowed me to read Roman law with him. [John Stuart Mill was then in his seventeenth year.] My father, notwithstanding his abhorrence of the chaos of barbarism called English law, had turned his thoughts towards the bar as on the whole less ineligible for me than any other profession; and these readings with Mr. Austin, who had made Bentham’s best ideas his own, and added much to them from other sources and from his own mind, were not only a valuable introduction to legal studies, but an important portion of general education. With Mr. Austin I read Heineccius on the Institutes, his Roman Antiquities, and part of his exposition of the Pandects, to which was added a considerable portion of Blackstone. It was at the commencement of these studies that my father, as a needful accompaniment to them, put into my hands Bentham’s principal speculations, as interpreted to the Continent, and indeed to all the world, by Dumont, in the ‘Traité de Législation.’ The reading of this book was an epoch in my life, one of the turningpoints in my mental history” (chap. iii.).
[1 ]The influence of Bentham in America, not only in respect of the emendations of the Law of Evidence, but through the efforts of other men who had caught his spirit, is directly seen in the extent to which codification has been adopted. See ante Lecture IX., p. 260, note. The labors of the celebrated Edward Livingston afford another interesting illustration of Bentham’s influence in this country. In the prime of his life misfortunes led Livingston in 1804 to quit the home of his ancestors in New York and to make a new home in New Orleans, then recently acquired by the United States. The question whether the procedure in Louisiana should be according to the common law or continue upon the basis of the civil and Spanish law having been judicially determined in favor of the latter, Livingston drew up what is in effect a Code of Procedure, which was adopted by the Legislature in 1805, consisting of twenty sections and of about twenty-five printed pages. In its essential features it anticipated the codes of nearly half a century later. Under an act of the General Assembly of Louisiana, approved February 10, 1820, which provided that a person learned in the law shall be appointed to prepare a Code of Criminal Law, Evidence, and Procedure, Livingston was on February 13, 1821, elected by the joint ballot of the Legislature to discharge this duty. He reported his plan to the next Assembly, which “earnestly solicited him to prosecute this work according to his report.”
[1 ]See post Lecture XIII.
[2 ]“General View of the Criminal Law of England,” p. 206; also Introduction to his Digest of Evidence.
[1 ]See ante Lecture VI., p. 180.
[1 ]See ante Lecture X., p. 268; Dillon, Munic. Corp. (4th ed.), vol. ii., § 934, a; Amos, “Science of Law,” chap. v.
[2 ]See ante Lectures VIII., IX, X., passim.
[1 ]Preface to lecture, “Chief Periods of European History.”
[2 ]See ante Lecture VI., p. 174; Lecture X.
[3 ]Village Communities” (Am. Ed.), pp. 368, 369. The subject of text-books as one of the literary authorities of our law, their office and use, the functions of text-book writers, and the nature of text-book law, I have seen nowhere so fully or well presented as in Professor Clarke’s “Practical Jurisprudence,” part ii., chaps. vii.-xii., inclusive.
[1 ]This essay was published as a chapter in “The Reign of Queen Victoria; a Survey of Fifty Years of Progress,” 1887, volume I, pp. 281-329, edited by Thomas Humphrey Ward (London: Smith, Elder, & Co.).
[2 ]1835-1894. B. A. Balliol College, Oxford, 1857, M. A. 1872, D. C. L. 1883; Barrister and Bencher of Lincoln’s Inn; judge of the High Court, Queen’s Bench Division, 1879; judge of the Court of Appeal, 1888; lord of appeal in ordinary, 1893.
[1 ]Lord Cairns, Lord Hatherley, Sir W. Erle (Chief Justice of the Common Pleas), Sir Jas. Wilde (now Lord Penzance), Sir R. Phillimore, Mr. G. Ward Hunt, Mr. Childers, Lord Justice James, Mr. Baron Bramwell (now Lord Bramwell), Mr. Justice Blackburn (now Lord Blackburn), Sir Montague Smith, Sir R. Collier (afterwards Lord Monkswell), Sir J. Coleridge (now Lord Coleridge), Sir Roundell Palmer (now Lord Selborne), Sir John Karslake, Mr. Quain (afterwards Mr. Justice Quain), Mr. H. Rothery, Mr. Ayrton, Mr. W. G. Bateson, Mr. John Hollams, Mr. Francis D. Lowndes.
[1 ]Hansard, vol. lxxvi, p. 1711.
[1 ]This essay was originally delivered as one of the principal addresses at the World’s Congress of Arts and Science held in St. Louis at the Louisiana Purchase Exposition in 1904, and was published in the Proceedings of the Congress, volume VII, pp. 470-481 (Department of Jurisprudence), and also in the Harvard Law Review, 1904-5, volume XVIII, pp. 271-283.
[2 ]Bussey Professor of Law in Harvard University. A. B. Harvard University, 1882; A. M., LL. B., 1887; LL. D. Wisconsin and Chicago Universities; assistant professor of law in Harvard University, 1892, professor of law since 1897; professor of law and dean of the law school in Chicago University, 1902-1904.
[1 ]This essay appears as the second essay in “Studies in History and Jurisprudence,” 1901, pp. 73-123 (New York: Oxford University Press, American Branch).
[2 ]A bibliographical note of this author is prefixed to essay No. 10, ante, p. 322.
[1 ]There is scarcely a trace of Celtic custom in modern Scottish law. The law of land, however, is largely of feudal origin; and commercial law has latterly been influenced by that of England.
[2 ]In these West Indian islands, however, that which remains of Spanish law, as in Trinidad and Tobago, and of French law, as in St. Vincent, is now comparatively slight; and before long the West Indies (except Cuba and Puerto Rico, Guadeloupe and Martinique) will be entirely under English law. See as to the British colonies generally, C. P. Ilbert’s Legislative Methods and Forms, chap. ix.
[1 ]Cicero says of Cicily, “Siculi hoc iure sunt ut quod civis cum cive agat, domi certet suis legibus; quod Siculus cum Siculo non eiusdem civitatis, ut de eo praetor iudices sortiatur.” In Verrem, ii. 13, 32.
[2 ]The laws of Gortyn in Crete, recently published from an inscription discovered there, apparently of about 500 bc, are a remarkable instance. Though not a complete code, they cover large parts of the field of law.
[1 ]When I speak of citizenship, it is not necessarily or generally political citizenship that is to be understood, but the citizenship which carried with it private civil rights (those rights which the Romans call connubium and commercium,) including Roman family and inheritance law and Roman contract and property law. Not only the civilized Spaniards but the bulk of the upper class in Greece seem to have become citizens by the time of the Antonines.
[1 ]As to this see Essay XIV, p. 692 sqq. [in the Author’s Studies, etc., cited above].
[2 ]In S. Paul’s time, however, the Athenian Areopagus would seem to have retained its jurisdiction; cf. Acts xvii. 19. The Romans treated Athens with special consideration.
[1 ]One of the charges against Verres was that he disregarded all kinds of law alike. Under him, says Cicero, the Sicilians “neque suas leges neque nostra senatus consulta neque communia iura tenuerunt;” In Verr. i. 4, 13.
[1 ]The Lex Sempronia mentioned by Livy, xxxv. 7, seems to be an exception, due to very special circumstances.
[2 ]See Essay XI, and Essay XIV, p. 706 [in the Author’s Studies, etc., cited above].
[1 ]Such as the technical peculiarities of the Roman stipulatio, and the Greek syngraphe.
[2 ]These decreta of the Emperor were reckoned among his Constitutiones (as to which see Essay XIV, p. 720 sqq.). There does not seem to have been any public record kept and published of them, but many of them would doubtless become diffused through the law schools and otherwise. The first regular collections of imperial constitutions known to us belong to a later time.
[1 ]See upon this subject the learned and acute treatise (by which I have been much aided) of Dr. L. Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen des Römischen Kaiserreichs, Chap. VI.
[1 ]This is carefully worked out both as to Syria and to Egypt by Dr. Mitteis, op. cit. He thinks (pp. 30-33) that the law of the Syrian book, where it departs from pure Roman law as we find it in the Corpus Iuris, is mainly of Greek origin, though with traces of Eastern custom. He also suggests that the opposition, undoubtedly strong, of the Eastern Monophysites to the Orthodox Emperors at Constantinople may have contributed to make the Easterns cling the closer to their own customary law. The Syrian book belongs to the fifth century ad, and is therefore earlier than Justinian (Bruns und Sachau, Syrisch-römisches Rechtsbuch aus dem fünften Jahrhundert).
[1 ]Other parts were added later.
[1 ]Among the States in which the French Code has been taken as a model are Belgium, Italy, Spain, Portugal, Mexico, and Chili. See an article by Mr. E. Schuster in the Law Quarterly Review for January, 1896.
[2 ]An interesting sketch of the “reception” of Roman law in Germany (by Dr. Erwin Grüber) may be found in the Introduction to Mr. Ledlie’s translation of Sohm’s Institutionen (1st edition).
[1 ]In Lithuania the rule was that where no express provision could be found governing a case, recourse should be had to “the Christian laws.” Speaking generally, one may say that it was by and with Christianity that Roman law made its way in the countries to the east of Germany and to the north of the Eastern Empire.
[1 ]It has undergone little or no change in the process. The Celtic customs disappeared in Wales; the Brehon law, though it was contained in many written texts and was followed over the larger part of Ireland till the days of the Tudors, has left practically no trace in the existing law of Ireland, which is, except as respects land, some penal matters, and marriage, virtually identical with the law of England.
[1 ]It is related that a hill tribe of Kols, in Central India, had a dispute with the Government of India over some question of forest-rights. The case having gone in their favour, the Government appealed to the Judicial Committee. Shortly afterwards a passing traveller found the elders of the tribe assembled at the sacrifice of a kid. He inquired what deity was being propitiated, and was told that it was a deity powerful but remote, whose name was Privy Council.
[1 ]For the facts given in the following pages I am much indebted to the singularly lucid and useful treatise of Sir C. P. Ilbert (formerly Legal Member of the Viceroy’s Council) entitled The Government of India.
[1 ]The merits of this Code are discussed in an interesting and suggestive manner by Mr. H. Speyer in an article entitled Le Droit Pénal Anglo-indien, which appeared in the Revue de l’Université de Bruxelles in April, 1900.
[1 ]Among the “less advanced races” one must not now include the Japanese, but one may include the Turks and the Persians. The fate of China still hangs in the balance. It is not to be assumed that she will be ruled, though she must come to be influenced, and probably more and more influenced, by Europeans.