Front Page Titles (by Subject) PART V.: BENCH AND BAR FROM NORMAN TIMES TO THE NINETEENTH CENTURY - Select Essays in Anglo-American Legal History, vol. 1
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PART V.: BENCH AND BAR FROM NORMAN TIMES TO 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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BENCH AND BAR FROM NORMAN TIMES TO THE NINETEENTH CENTURY
THE FIVE AGES OF THE BENCH AND BAR OF ENGLAND1
IT is a singular fact that but two races in the history of the world have shown what may be called a genius for law. The systems of jurisprudence, which owe their development to those two races, the Roman and the Norman, now occupy the whole of the civilized world. Our common law is peculiarly the work of the Norman element of the English people. There is no English law, nor English lawyer, before the Norman Conquest. Just as the Saxons with their crude weapons and bull-hide shields broke before the Norman knights at Senlac, so their barbarous system of wer, wite, and bot, their ridiculous ordeals in the criminal law, their haphazard judicial tribunals, and their methods of proof, which had no connection with any rational theory of evidence, were certain to yield to the Norman organization, its love of order and of records, its royal inquisition for establishing facts, its King’s Court to give uniformity to the law. The Norman Conquest was more than a change of dynasty. It produced a revolution in jurisprudence.
The history of our legal development furnishes ample proof of this. Our huge mass of legal literature is a treasure that no other race possesses. Our records and reports of cases, many of them still imperfectly known, carry our legal history back almost to the Conquest. There the law can be seen in its growth, taking on new forms to meet new conditions. The genius of the Norman lawyer has developed our legal system from one precedent to another. Beginning with the barbarous legal ideas of the Anglo-Saxon, the Norman in the course of two centuries produced a rational coherent system of law, and a procedure capable of indefinite expansion. The growth and changes in our law have followed Lord Bacon’s rule: “It were good, therefore, that men in their innovations would follow the example of time itself; which, indeed, innovateth greatly, but quietly, and by degrees, scarce to be perceived.” The further fact, that this system of law has been applied by practically but one court, has rendered the common law uniform. It represents the slow and patient work of generation after generation of able men. To use a fine figure of Burke’s, our legal system has never been at any one time “old, or middle-aged, or young. It has preserved the method of nature; in what has been improved, it was never wholly new; in what it retained, it was never wholly obsolete.” Like some ancient Norman house, “it has its liberal descent, its pedigree and illustrating ancestors, its bearings and ensigns armorial, its gallery of portraits, its monumental inscriptions, its records, evidences, and titles.”
The design of these essays is to survey “the gallery of portraits” that belongs to the English law. It will not be possible to advert to legal doctrines further than may be necessary to illustrate the acts of eminent lawyers. An attempt will be made to describe the men who have assisted in the growth and development of our jurisprudence. Unlike France, England has never had a noblesse of the robe. Lawyers have found their rewards in the same honors that England has given to her admirals and her generals. The peerage is a fair standard by which to judge of the honors that have been attained by excellence in the law. While great soldiers are represented in the House of Lords by the Dukes of Marlborough and Wellington, the Marquis of Anglesey, Viscounts Hardinge, Wolseley and Kitchener, and Lords Napier of Magdala and Raglan, while great admirals are represented by Earl Nelson, the Earl of Effingham and Earl Howe, Viscounts Exmouth, St. Vincent, Bridport, and Torrington, and Lords Rodney and Vernon, the representatives of lawyers almost fill the benches of the Lords. Lord Thurlow’s famous reply to the Duke of Grafton asserted: “The noble duke can not look before him, behind him, or on either side of him, without seeing some noble peer who owes his seat in this House to his successful exertions in the profession to which I belong.” The King himself is king of Scotland through his descent from Lord Chief Justice Bruce. The Dukes of Beaufort, Devonshire, Manchester, Newcastle, Norfolk, Portland, Northumberland, Rutland and St. Albans are all descended from English judges. Chief Justice Catlin was an ancestor of the Spencer, who married the Marlborough title. The Marquises of Abergavenny, Ailesbury, Bristol, Camden, Ripon and Townsend, the Earls of Aylesford, Bathurst, Bradford, Buckinghamshire, Cadogan, Cairns, Carlisle, Cottenham, Cowper, Crewe, Eldon, Egerton, Ellesmere, Fortescue, Guildford, Hardwicke, Harrowby, Leicester, Lonsdale, Macclesfield, Mansfield, Sandwich, Selborne, Shrewsbury, Suffolk, Stamford, Verulam, Westmoreland, Nottingham and Winchelsea, and Yarborough, represent names great in English law. Other titles among the barons, such as Abinger, Bolton, Brougham, Erskine, James of Hereford, Le Despencer, Mowbray and Segrave, Northington, Redesdale, Romilly, St. Leonards, Campbell, Tenterden, Walsingham, Thurlow, and many others, were gained by great lawyers.
The fable of the ancients, which school boys read in Ovid’s Metamorphoses, divided the history of the world into a golden, a silver, a bronze and an iron age. The golden age “sine lege fidem et rectum colebat.” This is in a measure true of the common law. Its first age, without statutes, out of its own ample powers, gave a remedy for every wrong. There followed a silver age, “auro deterior,” when new remedies could be devised only by statute. Then a bronze or plastic age, by fictions, bent old remedies to suit new conditions. Later, an iron age, harsh and rigid, owing to the jury system, left a large part of jurisprudence to the courts of chancery. The golden age ends with the death of Bracton; the silver age is that of the three Edwards; the bronze age covers the Lancastrian and Yorkist kings to the death of Littleton; the iron age ends with the Revolution of 1688. Then a period of improvement and reform, slowly feeling its way by statutes of jeofails to the great reforms of our century, began; the end of that great effort is now almost attained, and perhaps the golden age is about to return.1
The Golden Age of the Common Law: From the Norman Conquest to the Death of Bracton2
The period of the Norman kings is one of gradual growth. The Norman lawyers, building upon what they found, made no violent changes. The Conqueror, under the wise guidance of Lanfranc, made no attempt to change existing laws and customs. Beyond taking ecclesiastical matters out of the jurisdiction of the county court, and protecting his Norman followers by special laws and tribunals, his reign was occupied in establishing the king as the ultimate owner of the conquered land and in the division of the spoil. But even in that troubled time, one capable man rose to eminence as a lawyer. The Italian Lanfranc, Archbishop of Canterbury, learned in the civil law, by his study of Anglo-Saxon laws prevailed in the one great lawsuit of this reign. The Domesday Survey, which enumerated all the lands in England, and ascertained the status of each subject, and the ownership of the land with its burdens and the rents and the services due from tenants of the land, was probably superintended by this great lawyer.
William Rufus had for his chief minister a man whom the annalist calls “invictus causidicus,” an ever successful pleader. This Ranulf Flambard was learned in the civil and the canon law, and is the first of that long line of trained lawyers, whose duty it was to fill the royal treasury. He worked out the legal principles of relief and wardship. Ecclesiastic though he was, he laid his hands upon the broad lands of the church. All church lands held of the king devolved, upon the death of bishop or abbot, according to Ranulf, upon the king as feudal lord. The great revenue to be derived from farming out these lands was an obvious temptation, but Flambard devised a further improvement. Since the bishop or abbot could not be inducted into office without the king’s consent and the payment of a relief, the candidate for high clerical honors was compelled to wait a number of years before receiving his office and at the same time was compelled to pay an ample relief before he received investiture of the lands. It is needless to say that the monkish chroniclers have loaded Ranulf’s memory with a mass of obloquy.
In Rufus’ time an event occurred which every lawyer recalls with peculiar interest. The King contemplated a new palace at Westminster, but only that part of it which constitutes Westminster Hall was built. It is true that the Hall has been twice rebuilt, once in Henry III.’s reign, and again under Richard II., but the Hall itself, saving for its higher roof, its windows, and higher walls, is what it was when finished in 1099. In this Hall the courts of England were held for many centuries. As soon as the Court of Common Pleas was fixed in certo loco, it continuously sat there. Later the King’s Bench took a portion of it. At one end of the Hall was fixed the marble seat and table of the Chancellor, where his court was held. Thus it happened that for centuries the courts of England were in plain sight of each other. When Sir Thomas More was being inducted as chancellor under Henry VIII., he stopped in his progress to the marble chair and knelt to receive a blessing from his father, a judge sitting in the Common Pleas. There is but one other building in the world that offers such a flood of legal memories. The old Palais de Justice in Paris has been the scene of many a great legal controversy, but Westminster Hall has listened to the judgments of Pateshull and Raleigh and Hengham. Here Gascoigne, Fortescue, Brian, Littleton, Dyer, Coke and Bacon sat. Here Hale and Nottingham, Hardwicke and Mansfield did their work for jurisprudence. The great forensic contests of England, the arguments in the case of Ship-Money, the trial of the Seven Bishops, Erskine’s perfect oratory in Hardy’s case, and Brougham in the Queen’s case, are among the memories that make this solid Norman edifice to lawyers the most interesting spot in England.
In the reign of Henry I., a man splendidly educated for that time, surnamed Beauclerk, the Scholar, we begin to see the growing interest in the law. Wearied of the oppressions of the Conqueror and Rufus, men looked back to the good old times of the Saxon. The King had married a princess of the Saxon royal house. Himself a usurper he looked to his Saxon subjects for support. They won for Stephen the Battle of the Standard against the Scotch, celebrated by Cedric in Ivanhoe. In the Saxon enthusiasm a large crop of Saxon laws appeared, some of them actual translations from old laws, some of them palpable forgeries. The King even promised to restore the old local courts of the Saxons; had he done so, we should have had no common law. It was by this time apparent that the king’s court was supplanting the old tribunals. The great lawsuits, being among the magnates, necessarily came before the king’s courts. That court was stronger than any other, and suitors instinctively would turn to it. The criminal jurisdiction of the king’s court was growing. Its jurisdiction was extended to suitors in civil causes first as a matter of favor. The bishop had been taken out of the county court and given a separate jurisdiction in ecclesiastical matters, among which were numbered the administration of estates of decedents and matters of marriage and divorce. Now under Henry I. began the practice of sending trained lawyers throughout the realm to take pleas of the crown and to hear civil causes. At the same time Roger of Salisbury, who was the legal adviser of Henry I., developed the exchequer portion of the king’s court. A group of men, some of them trained lawyers, gathered in the exchequer tribunal. They did incidental justice in civil controversies and traveled the circuit. Indeed, Pulling in his “Order of the Coif” dates his first serjeant at law from 1117; but this must be a printer’s error. Otherwise, Pulling’s first serjeant is as wild a piece of history as Chief Justice Catlin’s descent from Lucius Sergius Catiline.
Besides Roger of Salisbury we know of one very celebrated lawyer in this reign—a man then renowned in the law, named Alberic de Vere. He is described by William of Malmesbury as causidicus and homo causarum varietatibus exercitatus. Where he gained his legal education is not known. He was a son of one of the Conqueror’s chief barons, the Count of Guynes, in Normandy. One of the chiefs of that house marched with Godfrey of Bouillon to the rescue of the Holy Sepulchre. The lists of the men who acted as judges in the king’s courts show the names of many well-known Norman families during this reign. The educated lawyers were generally churchmen, yet the Norman barons had a natural taste for litigation. After a hundred years, scions of the great houses were to become the trained lawyers of the profession; but at this time the ecclesiastics did most of the technical legal work. They issued the writs from the chancery; they were needed to keep whatever records were kept. Alberic de Vere was not an ecclesiastic like Roger or Nigel of Salisbury, yet he was high in the confidence of Henry I., who granted to him and his heirs the dignity of Lord Great Chamberlain of England,—the only great office of state that by a regular course of inheritance has descended to its present holder.
When Henry I. died, the interregnum caused by the contest between Henry’s daughter Matilda and his nephew Stephen covered the land with misgovernment and oppression. Roger of Salisbury’s son, euphemistically called his nephew—and it was by no means an uncommon thing for bishops to have sons in those days—became chancellor, but he soon fell under the displeasure of King Stephen, and in consequence the aged Bishop Roger and his family received the harshest treatment. The churchmen complained of the King’s conduct, and a great council was called by the Bishop of Winchester to examine into the matter. King Stephen selected Alberic de Vere to represent him at the council. Alberic seems to have successfully defended the King, and either he or his son was rewarded with the earldom of Oxford.
Coke, following a saying of Fortescue, makes the quaint observation that “the blessing of Heaven specially descends upon the posterity of a great lawyer.” Certainly the high position of the posterity of Alberic de Vere may be adduced as proof of the saying. Earls of Oxford of the house of Vere were great figures in English history until after the Revolution of 1688. The third earl was one of the barons who extorted Magna Charta from King John. The well-known seal of the Earl of Oxford is on the charter. The next earl, who had as a younger son been brought up as a lawyer, was head of the Common Bench under Henry III. The seventh earl was in high command at Crecy under Edward III. and at Poitiers under the Black Prince. The ninth earl was a favorite of Richard II. and became Marquis of Dublin and Duke of Ireland. Although his honors were forfeited by Parliament, his uncle, another Alberic (or Aubrey) regained the earldom and the estates under Henry IV. The thirteenth earl was the chief of the party of the Red Rose and during the Yorkist reigns wandered over the continent. Scott’s romance, Anne of Geierstein, tells his story while in exile. He came back with Henry VII. and led the Lancastrians at the battle of Bosworth. The seventeenth earl, a courtier and poet, at the court of Elizabeth, did not disdain to introduce gloves and perfumes into England. When the eighteenth earl died without issue, a noted lawsuit ensued over the Oxford peerage; the judgment of Chief Justice Crewe1 is an oft quoted specimen of judicial eloquence:
“I have laboured to make a covenant with myself, that affection may not press upon judgment; for I suppose there is no man, that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine thread to uphold it. And yet, Time hath his revolutions. There must be a period and an end of all temporal things,—finis rerum,—an end of names and dignities and whatsoever is terrene; and why not of De Vere? For, where is Bohun? Where’s Mowbray? Where’s Mortimer? Nay, which is more, and most of all, where is Plantagenet? They are entombed in the urns and sepulchres of mortality.”
But the end of the house was not yet. The nineteenth earl died on the continent while fighting for Protestantism. The twentieth earl, “the noblest subject in England,” man of loose morals though he was, was too much a Protestant to follow James II. in his attempt to restore Roman Catholicism. When this twentieth earl died, the male posterity of Aubrey de Vere was extinct; but his daughter and heiress, Diana, was married to Nell Gwynn’s son by Charles II., the Duke of St. Albans. This son had been given the name of Beauclerk, and until recently the name of this family was de Vere Beauclerk. Topham and Lady Di Beauclerk will be remembered as friends of Dr. Johnson. But the present holder of the title seems to wish to forget his name Beauclerk and is well content to be simply de Vere. Heraldry, which is called “the short-hand of history,” shows this descent in the coat of arms of the St. Albans family; in the first and fourth quarters are the royal arms, debruised by a baton sinister to show illegitimate descent, while in the second and third quarters is the ancient cognizance of the Earls of Oxford, indicating a marriage with the heiress of the Veres.
Another stout judicial baron of this time is Milo of Gloucester, whose estates enriched in after times the house of Bohun. His exploit in marching to the relief of the widow of Richard de Clare, besieged in her castle by the Welsh after the murder of her husband, may have furnished Sir Walter Scott with his story of “The Betrothed,” where he tells of the succor of the Lady Eveline Berenger in the Garde Doloreuse. In fact, if we may judge from Ivanhoe, Scott must have taken many of his names from the judicial barons. Fronteboeuf, Grantmesnil and Malvoisin are names on the rolls of the courts. Segrave, a noted lawyer in Henry III.’s reign, was, like Ivanhoe, a Saxon who attained high position.
In the reign of Henry II., who succeeded Stephen, we begin to get a glimpse of an organized legal profession. This king was a great organizer and lawyer. His statutes of novel disseisin and mort dancester, his assize utrum and of last presentment were drawn by lawyers. In his reign the royal inquisition took a great step toward the modern jury. All litigation about land was thrown into the king’s courts. Many new writs and forms of action were invented. A fixed court made up of trained lawyers sat at Westminster. At the same time the country was divided into circuits, itinerant justices traveled the circuit and adapted the county court to the regular progresses of the king’s judges. The grand jury was now brought into form, and all the important criminal business came before the royal justices.
In the king’s court Henry himself often sat. He is surrounded by his council, but every now and then he retires to consult with a special body. The judges take sides and on one occasion the King orders Geoffrey Ridel, who seems too zealous for one party, from the room. The King peruses the deeds and charters, and when certain charters are produced we hear him swearing that “by God’s eyes” they cost him dearly enough. On another occasion two charters of Edward the Confessor, wholly contradictory, are produced. The King, nonplussed, says: “I don’t know what to say, except that here is a pitched battle between deeds.”
Now began the keeping upon parchment of the records of cases. The best picture of a lawsuit in this reign is the extraordinary litigation of Richard de Anesty. He claimed certain lands as heir of his uncle. An illegitimate daughter of the uncle was in possession. The question was as to her legitimacy and that depended for solution upon the issue of marriage or no marriage. Richard begins by sending to the King in Normandy for a writ of mort dancester. Then the issue of marriage must be directed by writ from the king’s court to the ecclesiastical court. The war in France intervenes, and Richard follows the King to France for a writ to order the court Christian to proceed. Three times he appeared in the latter court. Then he appealed from that court to the Pope, and for this he needed the King’s license. Finally the Pope decided in his favor. Thereupon Richard came back and followed the King until two justices were sent to hear his case, and at last he had judgment. Everywhere he had lawyers in his pay. His friends and advocates, among them Glanville, appeared for him in the secular court. In the ecclesiastical courts and before the Pope he hired lawyers, who were canonists, some of them learned Italians. After many years he obtained his uncle’s lands; but by that time, as he pathetically writes, he had become a bankrupt.
There are noted names among the king’s judges in this reign. Richard Lucy, Henry of Essex, William Basset, and Reginald Warenne were among the judges who went the circuit. Roger Bigot and Walter Map, the satirist, were of the itinerant judges. Ranulf Glanville and the three famous clerks, Richard of Ilchester, John of Oxford, and Geoffrey Ridel, sat at Westminster. The zeal with which the Norman barons attended to their judicial duties is amazing. The list of judges is almost an index of the great baronage. Marshalls, Warennes, Bigots, Bohuns, Bassets, Lucys, Laceys, Arundels, Fitz Herveys, Mowbrays, Ardens, Bruces, de Burghs, Beaumonts, Beauchamps, Cantilupes, Cliffords, Clintons, Cobbehams, de Grays, de Spensers, Fitz Alans, de Clares, Berkeleys, Marmions, de Quinceys, Sackvilles and Zouches are all among the itinerant judges.
The lawyers of this reign include both priests and laymen. Here begin the serjeants at law. Of the thirteen whom Pulling ascribes to this reign, are Geoffrey Ridel and Hugh Murdac, both priests, and such names as Reginald Warenne, William Fitz Stephen, William Basset and Ranulf Glanville, all laymen. It is a matter worthy of notice that the date at which each of the thirteen serjeants received the degrees of the coif is the date at which he began service as a judge. It is probable that the “status et gradus servientis ad legem,” in the writ calling a serjeant, was merely a nomination of the man to be a king’s justice. The matter is too obscure to admit of positive statement. But there must have been some reason for the rule that obtained for so many centuries, that no man could become a judge until he had been called to the degree of serjeant.
The first name among these lawyers is Glanville’s. Whether he wrote our first law book, which is called Glanville, is sharply debated. But he was at any rate a great judge with considerable legal learning. He probably received his legal training in the exchequer. But he was no less a warrior. As sheriff of Yorkshire he gathered an army and defeated the Scottish King and took him prisoner. King Henry entrusted to Glanville the custody of his wife, Elinor, whom he guarded for sixteen years. When in 1179 most of the King’s justices were removed, Glanville was continued in office and took his place in the court at Westminster. In the next year he became Chief Justiciar. One slanderous story of his judicial conduct has come down to us, but it is no more than idle gossip. Under Richard the Lion Hearted, Glanville took the vow of a crusader and preceded King Richard to the Holy Land, where he died under the walls of Acre.
It may be that Glanville did not write the book that passes under his name. Perhaps Hubert Walter, his nephew, a learned civil lawyer, who became Archbishop of Canterbury, put it together. It shows traces of the Roman influence, and Glanville was no partisan of Rome. There is on record a writ of prohibition issued by Glanville against the Abbot of Battle. On the hearing Glanville said to the priests: “You monks turn your eyes to Rome alone, and Rome will one day destroy you.” The prophecy came true after three hundred years.
Far more noted in this reign is the name of Becket. He was a trained lawyer educated in the canon and the civil law at Paris. He may very well have devised some of Henry’s statutes upon legal procedure, while he was chancellor. In the struggle that went on between the warring jurisdictions of courts ecclesiastical and secular courts, he boldly espoused the clerical side. The Chief Justiciar before Glanville, Richard Lucy, drew up the constitutions of Clarendon, which defined the jurisdiction of the king’s courts over priests, and brought on the struggle between Henry II. and Becket. Lucy was twice excommunicated by Becket, but he does not appear to have been seriously affected; yet, singularly enough, at the end of his life, he founded an abbey and assuming the cowl of a monk retired to the cloister and passed his remaining years in the works of piety.
The King, astute lawyer that he was, fought the Archbishop with the very best weapons. The chronicler records that Henry II. kept in his pay a gang of “bellowing legists” (ecclesiastical lawyers) whom he “turned loose” whenever he was displeased at an Episcopal election. In his controversy with Becket, Henry used the expert clerks, John of Oxford, Richard of Ilchester, and Geoffrey Ridel. John received as his reward the see of Norwich, Geoffrey was made bishop of Ely. Both of them, priests though they were, admirably served their royal client. They represented the King upon appeals to the Pope. Becket used a weapon against them that would hardly be in the power of a modern chancellor. Both lawyers and judges were excommunicated by the sainted archbishop. But the curse of Heaven and the reprobation of the faithful did not avail. At last, the murder of Becket ended the controversy, and while the victory remained with the King, it gave to Becket the peculiar honor of being one of the only two English chancellors who are numbered as saints in the canon of the church.
When the Conqueror took the bishop out of the county court and established church tribunals for ecclesiastics (a step which was taken at the demand of the priests), it could not have been foreseen what a tremendous influence this regulation would exert upon the history of English law. Yet the struggle which soon began between these warring jurisdictions is probably the real reason why the Roman law exerted so little influence upon the common law or its procedure. At Oxford there was a school of the civil and the canon law. Ecclesiastics educated under that system were constantly filling high judicial positions, yet these men were all faithful to the king’s courts and hostile to the ecclesiastical procedure. Practically all the trained lawyers were priests, yet they uniformly upheld the English law. In after times the canon law was to mold the procedure in the chancery courts; but the secular courts were not affected. No doubt the rational conceptions learned by these ecclesiastical lawyers from the civil law had no little effect upon the substance of their decisions; but the Roman law never affected the secular courts’ procedure.
An interesting figure among clerical judges is that noted Abbot Samson of St. Edmund’s Bury, who was made one of Henry II.’s justices. The priestly chronicler records with pride that a rich suitor cursed a court where neither gold nor silver could confound an adversary. The same chronicler tells us that Osbert Fitz-Hervey, a serjeant at law, the ancestor of the Marquises of Bristol, who was twenty-five years a judge at Westminster, said: “That abbot is a shrewd fellow; if he goes on as he begins, he will cut out every lawyer of us.” In a case where the Abbot was a party, Jocelyn says that five of the assize (jury) came to the Abbot to learn how they should decide, meaning to receive money, but the Abbot would promise them nothing, and told them to decide according to their consciences. So they went away in great wrath and found a verdict against the abbey. The juror who regards his place as an opportunity for pecuniary profit seems to be as old as the common law.
The intractability of the academic theorist in the person of Walter Map, the celebrated writer, crops out in his judicial experience. He once went the circuit, but was not called upon the second time, since he insisted on excepting from his oath to do justice to all men, “Jews and white monks,” both of which classes he detested. So he went back to his more congenial work of denouncing the whole body of the clergy, from Pope to hedge priest, as all of them busy in the chase for gain. But while that work is forgotten, we still are delighted by his tales of King Arthur and his knights and table round.
Under Richard and John, sons of Henry II., the regular enrolled records of the courts begin. Soon two sets of records are developed, those of the regular tribunal sitting at Westminster and those made in the presence of the king. The first are the records of what became the court of Common Pleas, the second of what became the King’s Bench. In John’s reign and that of his son Henry III. the learned lay lawyer appears in increasing numbers. First among them is Geoffrey Fitz Peter, who appears in the famous scene in the first act of King John, where the Faulconbridge inheritance is in question. Shakespeare cites the oldest English case on the orthodox rule of the English law, pater quem nuptiae demonstrant. Chief Justice Hengham in the next reign cites this case in the Year Book. It is needless to say that if Shakespeare had had the legal knowledge which has been by some lawyers ascribed to him, he could never have made the flagrant errors as to procedure which are found in King John.
Geoffrey Fitz Peter was the son of an itinerant justice of Henry II.’s reign, who had well upheld the dignity of civil justice against the church tribunals. A certain canon of Bedford was convicted of manslaughter in a bishop’s court, and was sentenced merely to pay damages to the relatives of the deceased. In open court the judge denounced the canon as a murderer; the priest retorted with insulting words, whereupon the King ordered the priest indicted. Perhaps at this time contempts of court were not punished by the court itself in a summary way. Geoffrey Fitz Peter inherited from his father, the judge, large possessions. With his wife he obtained the title and part of the estates of the Mandeville Earls of Essex. He was a learned lawyer, if we may believe Matthew Paris. He made a ruling which probably had the most far-reaching effect of any judicial decision. The last Mandeville earl, when he found that death was approaching, attempted to atone for a somewhat oragious life by devising a large portion of his lands to the church. Fitz Peter as the husband of one of the co-heiresses was directly interested in the case. Yet he is said to have ruled that a will of lands was invalid. From that day to the passage of the Statute of Wills, a devise of lands was impossible, except by virtue of some local custom. And so it is to-day that the realty devolves upon the heir, the personalty upon the executor. Fitz Peter served as a justice itinerant; he was a serjeant at law and upon John’s accession became Chief Justiciar. He held the place of head of the law for fifteen years, and with Hubert Walter, the chancellor, was able to keep King John under some restraint. The King joyfully exclaimed when he heard of his death: “He has gone to join Hubert Walter in hell. Now, by the feet of God, I am, for the first time, king and lord of England.” John at once entered upon the course that brought him into conflict with his baronage and ended with Magna Charta.
The long reign of John’s son, Henry III., may fairly be claimed as the golden age of the common law. The regular succession of the judges is now settled. John had promised in Magna Charta that he would appoint as judges only those men who knew the law. The judges whom the rolls show as sitting at Westminster establish the character of the court. The judges are promoted in regular order. The head of the court during the first years of this reign was William, Earl of Arundel; then for two years it is Robert de Vere, Earl of Oxford; then for seven years Pateshull, who had been a puisne, was head of the court. He is succeeded by Multon, who served for a long term. Raleigh, the second man in the court, followed Multon. In regular order follow Robert de Lexington, Thurkelby, Henry de Bath, Preston, and Littlebury. Thus it appears that the character of this court, a tribunal filled with trained lawyers, has become fully established.
The Earl of Arundel, who was Henry III.’s Chief Justiciar, belongs to a legal family whose successive marriages with other great legal families form a curious study in history. In the days of Henry I. a certain William de Albini was the son of the king’s butler or pincerna. He married Queen Adeliza, the young widow of Henry I., and with her obtained the castle and earldom of Arundel, the only earldom by tenure. The heiress of the de Albinis in the time of Henry II. married the son of John Fitz Alan, a judge in the king’s court, and thus the earldom and castle of Arundel passed to the Fitz Alans. Later, in the time of Edward III., the then Earl of Arundel by marriage acquired the title of Earl of Surrey and the estates of the Norman family of Warenne, whose first chief was the companion of the Conqueror and one of his chief justiciars. The great Earl of Arundel, who went to the block in Richard II.’s time, was the head of this mighty house. Still later the heiress of the Arundels married the Howard Duke of Norfolk. Singularly enough the Howards were descended from William Howard, a celebrated English serjeant at law, who, when the Year Books open, was in large practice in the courts. He rose to the bench (though he was not, as his tombstone records, a chief justice). His descendant, Sir Robert Howard, married the heiress of the Mowbrays, who held the Earl Marshalship of England hereditary in the Marshals. The sons of the great regent William Marshal, Earl of Pembroke, dying without male heirs, the dignity passed by marriage to the Bigots, Earls of Norfolk. From them by a special deed of the lands under the then new statute. De Donis, these estates and dignities became vested in Edward I.’s son, Thomas of Brotherton. His heiress married a Mowbray; the heiress of the Mowbrays married Sir Robert Howard; and when the Howards obtained by marriage the titles and estates of the Arundel family in the reign of Elizabeth, all these honors of Warennes, de Albinis, Fitz Alans, Plantagenets, and Mowbrays had become united in the Howards. Perhaps we may credit this remarkable acquisitiveness through judicious marriages to the legal strain in the Fitz Alan Howards. Not only the Duke of Norfolk, premier peer of England, but the Earl of Suffolk and Berkshire, the Earl of Effingham, the Earl of Carlisle, and Lords Howard de Walden and Howard of Glossop, thus represent to-day the serjeant at law of Edward I.’s reign.
To return to the judges of Henry III.’s reign. Two of them, Pateshull and Raleigh, have been canonized by Bracton’s treatise. Bracton cites these two judges’ decisions almost as his sole authority. Other well-known judges of the time he notices merely to remark that they committed error,—not by any means a failing confined to mediæval judges. The greatest of these lawyers, Martin de Pateshull, was a priest,—as was indeed Raleigh also, and Bracton himself. Pateshull’s origin was humble, but he became a justice itinerant in John’s reign and for many years he vigorously performed his duties. One of his brother justices in a letter to the King plaintively begs to be excused from going the York circuit, “for,” he says, “the said Martin is strong and in his labor so sedulous and practiced that all his fellows, especially William Raleigh, and the writer, are overpowered by the work of Pateshull, who labors every day from sunrise until night.” The Raleigh just spoken of was Bracton’s master. He managed to survive Pateshull, and succeeded him as head of the court. He first served as Pateshull’s clerk; his high character is shown by his election over the King’s uncle to the rich see of Winchester. Raleigh was ingenious in devising many new writs, and his name is of frequent occurrence in the Register of Writs.
The bravery of these judges in the performance of their duties is shown by a characteristic story. Fawkes de Breauté, a powerful baron and noted swashbuckler of the time, had so oppressed his neighbors that they proceeded against him in the king’s court. Three judges, Pateshull, Multon and Braybroc, went up from London to try the cases at Dunstable. Thirty verdicts were found against Fawkes and large fines imposed in all the cases. He was so incensed that he sent his followers under his brother’s leadership to seize the judges. He captured and imprisoned one of the court; but this conduct called out the royal power, then wielded by Hubert de Burgh. The brother and thirty of Fawkes’ retainers were hanged, but he himself escaped to lifelong exile.
Other judges like Hubert de Burgh, Thomas de Multon, Hugh Bigot, Earl of Norfolk, Humphrey de Bohun, Earl of Hereford, must be passed over. But Robert de Bruce deserves more than a passing mention. The first Robert de Bruce had come over with the Conqueror and had received ninety-four lordships as his share of the spoil. A cadet of the house, a grandson of the first Robert, had gone to the court of the Scottish King and had married the heiress of the lordship of Annandale. The fourth Robert in Scotland was Robert the Noble, lord of Annandale, the husband of a daughter of Prince David (the Knight of the Leopard in Scott’s Talisman).
The fifth Robert, a son of the princess, though a Scotch magnate, was educated for the law at Oxford. He practiced in Westminster Hall. He became Chief Justice and held the office until Henry III.’s death. Edward I. passed him by, and he retired in disgust to Scotland. But when the daughter of Alexander III. of Scotland died, the heirs to the throne were the descendants of Prince David’s daughters. This Robert, the Chief Justice, preferred his claim. He argued his own case before Edward I., the referee, but the decision on good legal grounds was given for John Balliol. But Robert’s grandson, another Robert, the national hero of Scotland, made good his title at Bannockburn.
Other judges of this reign are interesting figures,—like the Percy, whose family is the one so celebrated in ballad and story as the Percys of Northumberland, or like Gilbert Talbot, who married a Welsh princess, and whose descendant was the stout warrior John Talbot, the first of the Earls of Shrewsbury, among whose descendants appeared Lord Chancellor Talbot in the reign of George II. But the real lawyer of this reign is the man whom we know as Bracton. His book on the laws and customs of England is the finest production of the golden age of the common law. Bracton’s father was vicar of the church at Bratton, of which Raleigh was the rector. The rector took an interest in the boy. There is a tradition that he put him to school at Oxford. When Raleigh became a judge, he made Bracton a clerk. In due time Bracton was promoted to a justiceship in eyre, when he became in 1245 a serjeant at law. From 1245 to 1265 he traveled the circuit, but part of that period he sat at Westminster with Henry de Bath, Thurkelby and Preston. During this time he made a large collection of precedents (known as his Note-Book) out of the decisions of Pateshull and Raleigh. A fortunate inference by Vinogradoff, confirmed by the lamented Maitland, has identified this collection of precedents with a manuscript in the British Museum, and the work of Bracton, long considered a mere attempt to apply the civil law to our common law, has been shown to be a careful statement of the decisions of the notable judges, who preceded him.
That the general conceptions, the arrangement, and the classification of Bracton’s work should have been taken from a writer on the civil law is not at all strange. There was no other source to consult. The Roman and the canon law had been taught by Vacarius in England, and he had written a book for his students. Manuscripts of the Roman law no doubt were brought to England. The flourishing school “utriusque juris” at Oxford must have had many scholars. Ricardus Anglicus, an Englishman, gained celebrity in the law in Italy. Italian lawyers came to England, and the King had in his service the renowned Hostiensis. Simon Normannus, Odo de Kilkenny, Roger de Cantilupe, and Alexander Saecularis belonged to this band of “Romish footed” legists of the King. English students went to Bologna and studied under Azo, “lord of all the lords of law.” Azo’s book Bracton had constantly with him as he was writing his “De Legibus et Consuetudinibus Angliae.” Yet the substance of Bracton’s book is a careful statement of the actual law administered by the courts. A priest himself, he everywhere shows his loyalty to the secular tribunals. Like Henry de Bath, he was dismissed from the king’s court on account of his leanings toward the party of the barons; yet he continued a justice in eyre. The barons at one time sent him on a judicial errand to redress grievances. Perhaps Bracton had felt the rough edge of the King’s tongue. We are told that to William of York, a distinguished predecessor of Bracton, the King said: “I raised you from the depths, you were the scribbler of my writs, a justice and a hireling.” Bracton well knew the great patriot Simon de Montfort, and no doubt sympathized with his cause. We know not what he was doing when the Barons’ War was raging, but it is probable that he was quietly attending to his judicial duties.
In Bracton’s book we find that the rules of law are fixed and settled. They bind even the king. The sympathies of Bracton with the party of freedom and progress here and there appear. “While the king does justice,” says Bracton, “he is the vicegerent of the Eternal King, but when he declines to injustice he is the minister of the devil.” He had a noble ideal of the office of the lawyer and the judge. Using the phrase of the Digest he says of his profession, namque justitiam colimus et sacra jura ministramus, “We are the ministers at the altar of justice and feed its sacred flame.”1
The greatness of Bracton’s work is best proven by the reflection that five centuries were to pass away before another English lawyer, in the person of Blackstone, was to appear, competent to write a treatise upon the whole subject of English law. Fortescue’s De Laudibus is a panegyric, Littleton’s Tenures covers a small field, Coke’s Institutes are so poorly arranged and badly written as to be unfit to rank with the clear, precise, and flowing language of Bracton or of Blackstone.
The long period from the Conquest in 1066 to Bracton’s death in 1267 had been a period of marvelous growth. It began with a varied assortment of local courts lacking settled rules, and ends with a highly organized system of courts administering a settled and rational system of law. It begins with a barbarous procedure, and ends with a rationalized method of ascertaining the facts. In the criminal law it begins with a system where the criminal makes redress to the injured party or his kin, it ends in a direct punishment of crime for the benefit of the whole society. Succeeding ages have merely amplified and glossed the distinctive rules of Bracton. The common law by its very form was made capable of indefinite expansion.
In addition, the general progression of the justices, holding the assizes through the different counties, distributed the royal justice throughout the country. The different local tribunals were subjected to a close scrutiny. In fact, the holding of an eyre was regarded by the inhabitants rather as an oppressive thing. The justices inquired into all the affairs of the counties and into all the acts of the local tribunals, into the enforcement of the criminal law and into the judgments rendered in civil causes. The numerous fines imposed made royal justice the source of an imposing revenue.
About this time the clergy were forbidden by the Pope to study the temporal law, and were inhibited from sitting in lay tribunals. The lawyer ecclesiastics, like Raleigh, Pateshull, William of York, Robert de Lexington, and Bracton, were soon to pass away. While ecclesiastical chancellors remained for centuries, the common law was about to become the heritage of laymen. The lay lawyers are learned men. Fitz Peter, Segrave, Braybroc, Multon and Thurkelby are all cases in point. But the most noticeable thing is that a class of advocates, who practice in the courts, has grown up, and that the judges are uniformly selected from among the profession. The serjeants at law and the apprentices at law now form a distinct body of men, devoting themselves solely to the practice. This separate class needed but schools of law to make it a closed body of men, admission to which required special attainments. This want was soon to be supplied by the Inns of Court, where the common law was taught as at a university. Everywhere the need of retaining good lawyers was felt. This is enforced by the judges. In one of the first Year Books, the reporter makes the Chief Justice say: “B loses his money because he hadn’t a good lawyer.” A few remarks of this sort from the bench would soon prevent an appearance in court by any one except a trained lawyer.
The division of the profession into barristers and attorneys had already appeared—a distinction that endures to our own day in England.1 The barrister appears only for a client already present in court by himself or by an attorney. The effect of this division in the profession may be indicated in a later place. At present it is enough to note the influence that is bound to be exerted by the body of professional lawyers. Their judgment upon legal matters is sure to be of controlling importance, and their influence upon the selection of judges has invariably caused in England the promotion to judgeships of men who have proved their ability by the attainment of leadership in the practice. The great advantage of appointive judges over elective is that the influence of professional opinion can be more easily brought to bear upon the appointing power than upon an untutored electorate.
But the growing power of Parliament was making itself felt upon the growth of the law. Perhaps the conservatism of the profession assisted. It was now no longer possible to devise new writs to meet new conditions and to offer new remedies. Parliament was insisting that the grant of new writs and the creation of new remedies was the making of new laws, a power which belonged to the nation’s representatives in Parliament. Thus the growth of the law was hindered by the growth of representative government. The English law is now ready to enter upon its second period, which began with the legislative activity of Edward I.’s reign.
The peculiar feature of the development of the common law is that its moving force did not come from the mass of the people, but was imposed upon a population constantly demanding a return to old and barbarous methods. The universal jurisdiction of the king’s courts, the most valuable institution in the history of the law, was looked upon with the greatest jealousy. The extinction of the old ordeals—a measure which began with the sneers of William Rufus and was finished under John—was not demanded by any large portion of the nation. The palladium of our liberties, that jury which grew out of the royal inquisition, was wholly foreign to the English race, and was imposed upon the nation by the Norman and Angevin kings. The grand jury in its inception was to most of the people little better than an engine of royal oppression.
The Norman baronage represents the element of power among the makers of this jurisprudence. In spite of individual exceptions who were cruel and oppressive, the mass of the Normans insisted upon law and order. They demanded men learned in the law for judges, and insisted that the judges should be independent of royal dictation. They asked for their own rights, but in Magna Charta insisted upon the rights of their humblest followers. In the years when the baronage was fighting John or Henry III., when civil war was distracting the land, practically the same judges went on holding court at Westminster, uninfluenced by the varying fortunes of barons or of king. Many a tale has been told to the discredit of the Normans; the jus primae noctis superstition is still an article of faith. But the legal historian knows that English liberty and law, even representative government, was the work of the Norman. William, Earl of Pembroke, well answered the king in the spirit of the Norman lawyer: “Nor would it be for the king’s honor that I should submit to his will against reason, whereby I should rather do wrong to him and to that justice, which he is bound to administer towards his people; and I should give an ill example to all men in deserting justice and right in compliance with his mistaken will. For this would show that I loved my worldly wealth better than justice.” It was not until the Norman baronage was broken by the wars of the Roses that England was ready to submit to the tyranny of the Yorkist and Tudor sovereigns—a tyranny that found its support in the mass of the nation. And when the struggle was resumed against the Stuart kings, the words of Bracton and of William of Pembroke were eagerly cited to prove that the king himself was not above the law of the land.
The Silver Age of the Common Law: From the Accession of Edward I. to the Death of Edward III.1
The succession of Edward I. in 1272 was practically contemporaneous with Bracton’s death in 1268. A dictum of Sir William Herle, Chief Justice under Edward III. (delivered from the bench), asserts that, “he (Edward I.) was the wisest king that ever was.” Hale and Blackstone have repeated this language, and have called him the English Justinian. But Edward was no codifier or founder of legal institutions. He simply had the singular good judgment always to keep at hand the best legal advice, and to follow it. He had constantly by his side a very great Italian lawyer, Francis of Accursii. His closest friend was his chancellor, the English lawyer, Robert Burnel.2 The leading advocates of the bar were kept in his service. Burnel drew the code of laws called the Statute of Wales, which projected the English law over Wales. Chief Justice Hengham (whom Coke calls Ingham) drew the Statute De Donis and the provision that created the bill of exceptions. Other noted advocates like Inge, Lowther, and Cave drew the other well-known statutes, such as Quia Emptores, Coroners, Merchants, etc., which supplied the deficiencies of the existing law and procedure.
During his reign the reports of cases, called Year Books, open. There was for centuries a tradition that the Year Books were official. Plowden guardedly says that he had heard that four reporters were originally appointed by the king. Bacon is somewhat more positive. Coke swallows the tradition entire, and says that “four discreet and learned professors of the law” were appointed by the king. He even asserts that they were “grave and sad men.” Blackstone knows all about them, who they were, how they were paid, and how often the reports were published. But this is simply a growing legal myth. The reports show that they were not official. The reporter chooses among the cases as he pleases. Statements of well-known counsel are inserted as authority. The rulings of the judges are frankly criticized. One decision is said to have been “for the King’s profit rather than in accordance with law.” In another place the reporter contemptuously says of a judge’s dictum: “This is nothing to the purpose.” Even the dicta of Chief Justice Hengham are condemned as wrong. Of one ruling the reporter says that the court held the contrary at the Michaelmas term (this practice the courts have continued until the present day). The reporter makes certain judges say that a decision cited was obtained by favor and therefore was not authority. Finally, the reporter nicknames a precipitate judge, Hervey the Hasty. It is, of course, ridiculous to call such reports official, but they are all the more valuable.
The Year Books show us the legal profession in full bloom. The leaders of the bar are the serjeants, but they have not as yet a monopoly of the Common Pleas practice. Other counsel appear in the reports. There is the body of students of law, attending upon the courts; they are sometimes referred to by the judges. The leaders of the bar are few in number, but the weight of professional opinion is apparent. The reporter does not hesitate to say that the opinion of the serjeants against any decision is sure proof that it is erroneous.
The very fact that the Year Books appear shows the influence of professional opinion. The dry Latin records of the cases were sufficient for Bracton, but now there was a demand for the many things which never got on the record,—the arguments of counsel, the remarks of the judges during argument, the skilful plea of the one lawyer, the adroit shift of the other, in fact, the whole picture of the lawsuit as it progressed.
These Year Books were written in Norman French, the language of the courts and lawyers. One of the manuscripts shows us what was probably a lawyer’s library in the early thirteen hundreds. Besides the reports of cases, it contains a number of statutes of Edward I. and Edward II., Bracton’s treatise, another treatise on quashing writs, another on the duties of justices, another on pleas of the crown, Metingham’s work on Essoins, and Hengham’s treatise called Magnum and Parvum. These works, with Britton and the Register of Writs, would be an ample legal library; and all these books could be tied together in one manuscript volume.
The influence of the profession is apparent in the legislative activity of the opening years of Edward I. The statutes then passed were all remedial. Wherever a case was unprovided for, wherever a remedy was defective, wherever the law seemed insufficient, the existing law was supplemented by statutes. Take the statute creating the bill of exceptions. It enjoined upon the trial judge the duty of sealing a bill of exceptions tendered to any of his rulings, and made the bill a part of the record, which could be examined upon error. We know, without any proof of the fact, that this statute was procured by professional opinion. It brought all rulings to the supreme test of an appellate tribunal. Henceforth there could be but one rule of law for all Englishmen. The fact that these statutes, such as Westminster II. and Westminster III., are still law in almost every state in this Union, is the best proof of the sagacity of those long forgotten lawyers of Edward’s reign. Nowhere is better shown the wise conservatism of the true lawyer, whose instinct is not to commit waste upon the inheritance, but to repair the splendid edifice of which he is but the life tenant.
Still another indication of the growing influence of the profession is given by the impeachment of all the judges before Parliament in the year 1289. Some of the judges impeached bore honored names in the profession. Ralph de Hengham, Chief Justice of the King’s Bench, upon trivial charges was fined in a small sum, dismissed from office, and not reinstated until ten years had passed. Weyland, Chief Justice of the Common Bench, after a prosperous career as a lawyer and a long service as judge, was found guilty of heinous offences and abjured the realm. But with lawyer-like skill he had made his wife and children co-foeffees of several of his manors, which were not forfeited. Other judges were fined in large amounts ranging from 4,000 to 2,000 marks,—immense sums, when we reflect that a Chief Justice’s salary was then but forty pounds. Lovetot, Rochester, and Sadington are not heard of again. Boyland busied himself in building a splendid mansion and left a large fortune. Hopton and Saham returned to the practice. It will be seen that only after a bitter experience did England learn the necessity of paying large salaries to judges.
Two judges were “faithful found among the faithless,”—Elias de Beckingham and John de Metingham. The latter was promoted to the headship of the common bench. There he presided for twelve years. His memory is kept alive by the prayer directed to be made at Cambridge pro animo Domini John de Metingham, as one of the benefactors of the University. He was a learned and just judge. His treatise on Essoins was a valued law book. He in one of his opinions cites Porphyrius to a definition of surplusage, as something “which may be present or absent without detriment to the subject.” Once he ruled against the opinion of all the serjeants, putting his decision on the ground of convenience. In another case he ruled in Mutford’s favor, and the gratified counsel burst forth with a quotation from Holy Writ: “Blessed is the womb that bare thee.” In another case he patiently listened to many objections to a verdict and then dryly said: “Now it is our turn,” and made short work of the objections. A counsel, not a serjeant, who had pleaded badly and lost his client’s case, he addresses pityingly as “My poor friend,” and explains to him his hopeless error. Metingham in another case thought it no objection to a verdict that the prevailing party had entertained the jury at a tavern. We are reminded that the jury has hardly as yet attained a judicial function.
Hengham came back to the bench as the successor of Metingham. He was also a legal author. His treatise was a work on the method of conducting actions, divided into Magnum and Parvum. His predecessor in the King’s Bench, Thornton, had written an abridgment of Bracton. Britton and Fleta belong very close to this period, and it is plain that there was a demand for law books. Hengham is a great authority on writs, and issues instructions to the clerks from the bench. He sometimes delivers long dicta, but the reporter adds in one case that Hengham is wrong. He was firm with the lawyers. In one case he said to Friskeney and his associates: “We forbid you to speak further of that averment on pain of suspension,” and, adds the reporter, “they obeyed.” Sometimes Hengham lost his judicial poise, as when he says to pertinacious counsel: “Leave off your noise, and deliver yourself from this account.” One of his rebukes is on a much higher plane. To a lawyer who offered a plausible but unsound argument Hengham said: “That is a sophistry, and this place is designed for truth.”
But the greatest character on the bench is William de Bereford, who succeeded Hengham as Chief Justice of the Common Bench. He served thirty-four years as a judge. We can sit in court and hear Bereford’s oaths, “By God” and “By Saint Peter.” He says to an absurd plea: “In God’s name, now, this is good!” One day he was sitting with Mutford and Stonor, associate judges. Stonor held a lively debate with counsel. Mutford then said: “Some of you have said a good deal that runs counter to what has hitherto been accepted as law.” “Yes,” interjected Bereford, “that is very true and I won’t say who they are.” The reporter naively adds, “Some thought he meant Stonor.” Bereford is sometimes cutting to counsel: “We wish to know,” he once exclaimed, “whether you have anything else to say, for as yet you have done nothing but wrangle and chatter.” One day Serjeant Westcote disputed Bereford’s law: “Really,” Bereford sarcastically rejoined, “I am much obliged to you for the challenge, not for the sake of us who sit on the bench, but for the sake of the young men who are here.” He despised the ridiculous Anglo-Saxon wager of law. “Now God forbid,” he says from the bench, “that any one should get to his law about a matter of which the jury can take cognizance, so that with a dozen or a half dozen rascals, he could swear an honest man out of his goods.” He even corrects in open court statements of his fellow judges as to the law. One day he corrects a ruling of Hervey the Hasty in spite of that judge’s protests. He is sharp with the lawyers. To Malberthorpe, counsel in great practice, he says: “You talk at random.” To Passeley, a leader of the bar, he says in an action to quiet title: “There are forty fools here who think that, as soon as one has in such case acknowledged, there is nothing more to do, although he claims more than he has. Answer by what title you claim in fee.” He sometimes jokes from the bench. The law was that a villein who had gone to a city and remained there for a year became free, but Metingham had ruled that if the villein returned to his villein tenement again he lost his freedom. Bereford illustrates this point by a joke. “I have heard tell of a man who was taken in a brothel and hanged, and if he had stayed at home, it would not have happened. So here, if he was a free citizen, why didn’t he remain in the city?” Some of Bereford’s jokes are too broad for quotation. Even if the reporters were “grave and sad men,” as Coke says, they always record Bereford’s highly seasoned anecdotes with apparent zest.
Hervey de Staunton, who is called the Hasty, is quick to answer. Mutford, a leader of the bar, asserted that a female serf who became free by marrying a free man, returned to her servile status as soon as her husband died. “That is false,” said one judge. “Worse than false, it is a heresy,” added Staunton. In another case a younger lawyer was reproved by Staunton for a poor plea, and was told to go and seek advice of counsel. Instead of being angry, the lawyer went out and came back with two eminent counsel, Willoughby and Estrange. But this is the ordinary thing. Whenever an attorney or a young lawyer attempts to plead without a serjeant, he is quickly detected in an error and told to go out and get counsel. On the circuit Staunton is reproved by his fellow judges for making a ruling before he consulted them. The retorts of the judges are quick enough. “Why,” asks Asseby, “did the other side plead that they were seized?” “Because they are rather foolish,” said Hertford, Justice, shortly, “answer over.” Berewick, a judge, says to the great Howard: “If you wish to cite a case, cite one in point.” One almost forgets in reading this that he is back in the Middle Ages. Sometimes a lawyer is fined for contempt. Lisle paid a fine of 100 shillings, yet soon afterward was made a justice of assize.
The most striking phenomenon is the smallness of the bar in active practice. A few names are constantly recurring. The fees of a leader must have been enormous. Most of them died rich. The case of William Howard, from whom flows “all the blood of all the Howards,” has been already instanced in describing the first period. Another great lawyer, a rival of Howard’s, is Hugh de Lowther. He is king’s serjeant, and appears in quo warranto proceedings, which Howard often defends. He was of an ancient family in Westmoreland. His lineal descendant became Viscount Lonsdale in 1689, and Lowther Castle (where the present Earl of Lonsdale so magnificently entertained the German Emperor) stands in the midst of the widespread domain of 35,000 acres which Edward I.’s attorney-general left to his descendants.
The largest fee of that day paid to a lawyer was £133 6s. 8d., paid by Edward II. to Herle, the king’s serjeant, and this was supplemented by a seat on the bench. After a long service on the bench Herle was permitted to retire; and it may be of interest to note that the permission spoke of “his approved fidelity, the solidity of his judgment, the gravity of his manner, and his unwearied service in his office.”
One of the names that often recurs is that of John Stonor. As a serjeant in large practice, and then as king’s serjeant, he no doubt made a fortune. He first served in the Common Pleas, then in the King’s Bench, then he was returned to the Common Pleas. Later he was chief Baron of the Exchequer, then Chief Justice of the Common Pleas, superseding Herle; but later Herle was reinstated, and Stonor took second place, but became Chief Justice again. Such is the remarkable record of this judicial maid-of-all-work. The one decision for which he is noted is a holding that an act of Parliament was invalid.
Throughout the Year Books of the three Edwards, it is noticeable that the judges are uniformly selected from the leaders of the bar. If a serjeant appears in large practice, he is almost certain to appear later on the bench. So noticeable is this that there are few great lawyers who do not reach a judicial position. Simon de Trewithosa was evidently a Cornishman. He was in immense practice, was a serjeant at law, but was never a judge. His statements of law are found in the Year Books quoted as of evident value. Another lawyer named Pole did not reach the bench. His practice was very large, and the singular fact is that he was not made even a serjeant at law. But such names as Howard, Lowther, Heyham, Hertford, Inge, Herle, Estrange, Westcote, Warrick, Passeley, Lisle, Touthby, Willoughby, Malberthorpe, Mutford, the two Scropes, Friskeney, Scotre and many others, show that professional eminence found a sure reward in a judgeship. No lawyer is elevated to the higher courts who is not a counsel in large practice.
The judges are no respecters of persons. Magnate and serf are equal before the law. Beauchamp, Earl of Warwick, pleading his own case and showing considerable technical knowledge, is treated like an ordinary counsel. Roger Bigot, Earl of Norfolk and Earl Marshal, son-in-law of the King, receives the same treatment as the humblest suitor. A poor man wrongly seized as a villein is given £100 damages, a verdict equal to ten thousand dollars at the present day. Yet we see the law’s delay, for four years elapsed between the awarding of the venire and the verdict.
The judges are skilful, tactful men. In a case where the plaintiffs failed in detinue of a charter on a variance, Berewick, the justice, said to the defendant: “What will this avail you? they can bring a new action and get it, so you may as well give it up,” and the charter was surrendered. In another case Howard has reached a difficult place and refuses to plead, but Berewick, the judge, calls up the client, takes him away from his counsel, and questions him so as to get replies which are taken as pleadings. Pleading was at that day a voluntary act. A criminal trial showed one of these judges at his best. Hugh, a man of importance, is arraigned upon an indictment for rape. He asked for counsel. “You ought to know,” the Judge replies, “that the king is party here ex officio, and you cannot have counsel against him, though if the woman appealed you, you could.” The prisoner’s counsel were then ordered to withdraw and did so. Hugh was then called upon to plead. Hugh replied that he was a clerk (a priest), and ought not to answer without his bishop. Then he was claimed for the bishop as a clerk. Thus it appears that the bishop had his representative sitting in court ready to claim the trial of any one who said he was a clerk. But the Judge was evidently informed, for he replied: “You have lost your clergy, because you married a widow.” Under the statute De Bigamis a priest who had married twice or had married a widow lost his right to be tried in the ecclesiastical court. “Answer,” said the Judge, “whether she was a widow or a virgin, and be careful, for I can call upon the jury here to verify your statement.” We note that a jury is sitting in court ready to decide, by the knowledge of its members, controverted questions of fact. Hugh replies: “She was a virgin when I married her.” The Judge calls upon the jury, who say that she was a widow. Then the Judge rules that he must answer as a layman, and asks him to consent to a jury trial. It is noticeable that the defendant in a criminal case must consent to a jury, a reminiscence of which is the question, and the answer of the prisoner, for centuries to come: “How will you be tried?” “By God and my country,” i. e. by the jury. But the prisoner objected that he was accused by the jury. (It is curious to note that the same jurymen acted as grand and petty jurors.) He further claimed that he was a knight, and the prisoner added: “I ought to be tried by my peers.” The Judge gave him a jury of knights, who were called, and the defendant was asked if he had any challenges. But Hugh still refused to consent to a jury trial, and the Judge warned him of close confinement on bread and water, if he did not consent. So Hugh consented, and asked that his challenges be heard. The Justice: “Freely, read them.” Then Hugh makes a slip: “I don’t know how to read.” The Justice: “How is this, you claim the privilege of clergy, and don’t know how to read?” Then the prisoner stands much confused; but the Judge calls on a bystander to read the challenges to the prisoner, who speaks them. The challenged jurors are excused. Then the judge states the charge to the jury and the jury say that the woman was ravished by Hugh’s men. The Justice: “Did Hugh consent?” The jury: “No.” The Justice: “Did the woman consent?” The jury: “She did,” and thereupon Hugh was acquitted. But who can say whether he was acquitted because the woman consented, and yet would have been considered liable criminally for the acts of his servants?
The counsel, however eminent, cannot wheedle the judges. In one case, Howard and Lowther on the same side urged a certain form of judgment. To Howard, Berewick replied: “We tell you that you never saw any other judgment under these circumstances, and you will get no other judgment with us.” Then Lowther argued with the Court, but Berewick was firm: “You will get no other judgment from us.” Again, Howard is on the bench, and Asseby says: “I think you would not give judgment in this wise, if you were in the case,” but Howard mildly replies: “I think you are wrong, wherefore answer.” But sometimes indulgence is shown. To a count challenged as bad, the Court say: “It would have been formal to have done this, but we will forgive him this time; but let everyone take care in the future, for whoever shall count in this manner, his writ shall abate, for it behooves us to maintain our ancient forms.”
In those days the counsel stated the proposed pleadings orally, and if held good by the Court they were reduced to legal form by the clerks. To the present day our pleadings still speak as if the party were in open court stating his pleadings. At this earlier stage of the common law the pleadings were necessarily all true. Whenever counsel in his pleading reaches a point as to which he is not advised, he imparls and seeks his client or the attorney for further information. The advocates show acuteness and ingenuity. The pleading is technically correct. All pleas must follow in their regular order,—pleas in abatement before pleas to the merits; there was, however, no such rule as (for example) that the judgment upon a plea in abatement was quod recuperet. At this sensible stage of the law there was no need for statutes to allow pleading over. Sometimes counsel get stubborn and refuse to plead further, and then say that they will do so merely to oblige the court. Touthby, a very good lawyer, in one case tries to plead without binding his client, Isolde. “I say for Gilbert de Touthby but not for Isolde,” he begins. Whenever the pleadings come to a point where the party whose turn it is to plead cannot deny or avoid, judgment is given at once. The clerks enter up the technical forms of pleadings. The glorious absque hoc is present in large numbers. In an action of assault the counsel says orally, in answer to a justification: “He took him of malice and not as he has said, ready, etc.” The clerk enters this up as the regular replication de injuria sua propria absque tali causa, etc.
In almost every case there are two counsel on each side. In some cases there is a great array. Thus Heyham, Hertford, Howard, and Inge are for the defendant and Lisle and Lowther for the plaintiff. No one seems to lead, but all speak. Sometimes different counsel appear at different terms. In a great case of replevin, Estrange, Scrope, and Westcote are for the defendant and Herle and Hertepol for the plaintiff at one time. At the next term Westcote and Huntingdon are for the defendant and Herle and Hertepol for the plaintiff. At the next term Westcote and Huntingdon are for the defendant, while the plaintiff has Kyngesham, Warrick, and Passeley. The lawyers who are practicing at Westminster are also found on the circuit at the assizes. These men must have kept in mind an enormous amount of procedural rules. There were four hundred and seventy-one different original writs, each showing a different form of action and requiring its own special procedure.
The useful law book was Britton, a sort of epitome of Bracton. Chief Justice Prisot in Henry VI.’s time said that Britton was written under the orders of Edward I., and fixes its date as 1275. It supplanted Bracton, so that judges in after ages would say with singular fatuity that Bracton was never accepted as an authority in English law. Certainly Bracton’s Roman law was not understood by his immediate successors; for in Britton the actio familiae herciscundae of the Roman law has become an action about the lady of Hertescombe, who probably had estates in Devonshire. Yet Passeley, one of these lawyers, was a civilian, for the judge says to him from the bench: “Passeley, you are a legist, and there is a written law that speaks of this subject,” quoting from the Code.
It is noteworthy that no complaints are heard of the practitioners in the higher courts. There is a single case of a lawyer being bribed by the opposing counsel. But the leading lawyers were faithful and zealous. Even against the king they fought well for their clients. Both Edward I. and Edward III. made determined assaults upon the private jurisdictions of various lordships, and in all the cases the defendant’s counsel was zealous against the king. But in the lower courts, municipal, local and seigniorial, the legal “shyster” was as brazen and disgraceful as he is to-day. In 1280 the mayor and aldermen of London lamented the ignorance and ill manners of the pleaders and attorneys, who practiced in the city courts. It was ordained that no advocate should be an attorney; and thus it is apparent that the separation of the two branches of the profession, which happily endured in England, was at that early time in full effect. The city fathers were compelled to threaten with suspension the pleader who took money from both sides or reviled his antagonist.
There is an occurrence in the Abbot of Ramsey’s court for the fair at St. Ives, which shows the local pettifogger at his worst. William of Bolton is the name of the “shyster.” He was lurking around the fair, looking for victims. Simon Blake of Bury was charged with using a false ell for measuring cloth. William, eager for business, rushed in and became surety for Simon’s appearance. Then to make certain of his fee he induced Simon’s friend John Goldsmith to retain him to defend Simon, and to promise him four shillings as a fee. William agreed to defend, provided Simon would swear that he got the false ell from a merchant of Rouen. Although Simon did so state and vouched the Rouen merchant to warranty, yet he withdrew his voucher of the Rouen merchant. The scheme, of course, was to fleece the rich foreign merchant; but Simon lost heart or was bought off. Then William had the effrontery to sue John Goldsmith for the four shillings retainer and ten pounds damages because John had induced Simon to withdraw the said voucher of the said merchant of Rouen, “out of whom,” William brazenly avers, “the said William had hoped to get a large sum of money.” The damages arose because the pettifogger was deprived of an opportunity for levying blackmail. Surely William was thrown away on that early time. He belonged to the “justice shop” of one of our large cities.
The evils of these local courts are manifest. In one case Bereford asks Malberthorpe, “Why did you not plead this exception in the county court?” “Because,” replied the counsel, “we thought it would have more chance before you than in that court.” In the same year Margery brought a writ of false judgment against the suitors of the court baron of Fulk Fitz Warin, lord of the manor, for failing to record her plea against Fitz in his own court. The suitors appeared in the king’s court before Bereford to answer the writ. Bereford, Justice: “Good people, Margery brings her writ, etc. What have you to say?” Heydon, retained for the suitors: “I will tell you all about the business.” Bereford: “You shall not say a word about it, but they out of their own mouths shall record it.” The suitors then said that they feared to record the woman’s plea out of fear of Fulk, who had beaten one of them and overawed them by force, so that they were compelled to come to the king’s court under protection. Bereford: “Go aside by yourselves and take a clerk with you and have him write down your record, taking care that Robert Heydon comes not near you.” Bereford was determined to get at the exact truth and that the suitors should make their record without the aid of counsel. The record made, Bereford issued a writ against Fulk. The king was far wiser than his subjects when he attempted by his writs of quo warranto to destroy these local courts.
The greatest lawsuit of this reign was not tried in any of the regular courts; for the Kingdom of Scotland was at stake, and the litigants were the claimants of the throne. The contestants referred the matter to the arbitration of Edward I. But Edward at once set his lawyers at work to devise by means of this arbitration some method by which he could extend his sovereignty over Scotland. Burnel, the chancellor, and Roger le Brabazon, a skilled lawyer and one of the puisne judges of the King’s Bench, prepared the case. Out of the records and the monkish chronicles, acts of fealty by former Scottish sovereigns were produced, especially that of William the Lion to Henry II. after his capture by Ranulf Glanville. They were careful to suppress Richard Coeur de Lion’s cancellation of his rights over Scotland for a large sum of money. Soon a parliament of English and Scotch was convened at Berwick. Brabazon opened the proceedings by a speech in which he adduced his proofs, and required, as a preliminary, that the contestants and all the Scotch swear fealty to Edward as their feudal suzerain. The contestants of course could not offend the court. The Scottish nobles murmured, but after seeing Brabazon’s proofs acquiesced. The Scottish commons, however, refused. A trial was then had, and Burnel, for the King, correctly adjudged the throne to Balliol. Then the King tried to extend the jurisdiction of his courts over Scotland. But Wallace, and afterwards Robert the Bruce, kept alive the resistance, until under Edward II. the crushing defeat of the English at Bannockburn ruined Edward I.’s dream of a kingdom of Great Britain. Brabazon, as Chief Justice of the King’s Bench, lived to see the fugitives from Bannockburn.
One of the results of the years of warfare was to scatter over England lawless characters called trailbaston men. To suppress these marauders special justices, fearless knights and barons, were sent throughout England. One of these justices in 33 Edward I. was John de Byrun, a lineal descendant of the Norman Ralph de Burun of the Domesday survey. In regular descent from the justice came Sir John Byron, the devoted adherent of Charles I., who was made Lord Byron. His descendant, the sixth Lord Byron, was the poet, who next to Shakespeare has been the greatest intellectual force in English literary history. Byron’s friend, the poet Shelley, was descended from William Shelley, a justice of the Common Pleas under Henry VIII. Even Shakespeare belongs on his mother’s side to the Norman Ardens, who furnished at least three justices under the Plantagenets; while Francis Beaumont, the collaborator of Fletcher, was the son and grandson of English judges belonging to the Norman Beaumonts.
The troubles of Edward II’s reign had little effect on the courts. Malberthorpe, Chief Justice of the King’s Bench, pronounced sentence of death on the Earl of Lancaster. When Edward II. was seized by his wife Isabella and her paramour Roger Mortimer, and put to death, Malberthorpe was brought to trial for his judgment against the Earl of Lancaster; but he proved by prelates and peers the fact that he gave that judgment by command of the King, whom he dared not disobey. Such is the disgraceful entry upon his pardon. But Malberthorpe was removed and went back to the practice. We pass by the two Scropes; Bourchier, who founded a distinguished family; and Cantebrig, who gave most of his property to endow that great institution which is now Corpus Christi at Cambridge. They were all great lawyers.
The most celebrated lawyer of Edward III.’s reign, however, was Robert Parning. The Year Books show him to be a man of remarkable erudition. He came to the Common Pleas as a judge at a rather early age. In a remarkable case Parning is sitting with Stonor, Shareshulle and Shardelowe. He takes issue with Shareshulle and a great debate is held between the judges on the bench, which is accurately reported. In the end Parning was overruled, but a few months later he became Chief Justice of the King’s Bench and then Chancellor.
This is the first instance of a great common lawyer attaining the marble chair. By reference to the Register, it will be found that in his two years’ service he provided a number of new remedies. Had the chancellors continued to be professors of the common law, there would have been no separate chancery system. But after Parning’s death the chancellorship was again bestowed upon an ecclesiastic. The growing opposition to the church is shown, however, by the Commons’ petition to the king in 1371 that only laymen should be appointed to the higher offices. Thereupon Robert de Thorpe, Chief Justice of the Common Pleas, was made chancellor. On his death John Knivet, Chief Justice of the King’s Bench, succeeded to the head of the chancery; but he remained for only five years, when the office was given to an ecclesiastic. No other layman held the office until Sir Thomas More. It is interesting to note that Parning, after he became chancellor, would return to sit in the law courts, and in 1370 there is the following entry in the Year Book: “Et puis Knivet le chanc. vyent en le place, et le case lui fuit monstre par les justices et il assenty.”1
Some of the happenings of the time give us some light on contemporary manners. Chief Justice Willoughby in 1331 was captured by outlaws and compelled to pay a ransom of ninety marks,—more than one year’s salary. Seton, a judge under Edward III., sued a woman who called him in his court “traitor, felon and robber.” The inference is that he had decided a case against the lady, but had not impressed her with the correctness of his decision. He recovered damages, but he was given a jury of his peers, that is, a jury of lawyers. The quaint simplicity of those times is shown by Thorpe and Green, two judges, going in state to the House of Lords and asking them what was meant by a statute lately passed. It would not occur to our judges to seek for such an explanation of an absurd law. Green once pronounced judgment against the Bishop of Ely for harboring one of the latter’s men who had committed arson and murder. For this judgment the Judge was cited before the Pope, and on his refusal to appear he was excommunicated. About this time there was considerable friction between the lawyers, called “gentz de ley,” and the churchmen, called “gentz de Sainte Eglise.” The “gents of law” probably instigated the petition that only laymen should be chosen to hold such offices as chancellor. But in the next Parliament the “gents of Holy Church” retorted by obtaining a petition from Parliament praying that henceforth “gentz de ley,” practicing in the king’s courts, who made the Parliament a mere convenience for transacting the affairs of their clients, to the neglect of public business, should no longer be eligible as knights of the shire. It is likely that the real ground of hostility to the church was its great possessions. Just as to-day the mass of people look with hatred and envy upon the possessors of great fortunes, so then many people turned to the broad lands of the church for relief against the taxation growing out of the French wars.
But the reign of Edward III. produced a ministerial ecclesiastic worthy to rank with Lanfranc, Flambard, Roger of Salisbury, and Robert Burnel. The career of William of Wykeham is one of the glories of the English church. Of humble birth, educated at Winchester, he attracted the attention of the bishop, who employed Wykeham’s truly wonderful architectural talents in the improvements of Winchester cathedral. Here he took the clerical tonsure. A little later he entered the service of the king, and at Windsor, on the site of an old fortress of William the Conqueror, he built the keep and battlemented towers, which are yet the noblest portion of one of the magnificent royal residences of the world. He was rapidly advanced to the bishopric of Winchester and the chancellorship. His declining years were taken up with the foundation of Winchester School, and with the far greater endowment of his college of St. Mary at Oxford, now called New College. Wykeham’s foundation still renders it a wealthy institution. After the lapse of five hundred years the buildings remain as they were designed by this greatest of art-loving prelates.1
It is sad to turn to the closing years of the king, whose reign began with the triumph of Cressy. He had had a long and in many ways glorious reign. His court had been the most splendid in Europe. The pageantry of knighthood had thrown its glamour over his reign. The spoil of France had enriched his people. But the ravages of the plague had almost ruined the nation. In the domain of law the prospect was dark. The king’s mistress, Alice Perrers, openly intrigued to influence the court’s decision. She caused a general ordinance against women attempting the practice of the law. The heavy fees charged for writs in the chancery were the cause of bitter complaint. The royal council was accusing men and trying them without indictment. Justice was delayed by royal writs. The very judges of the land, it was charged, condescended to accept robes and fees from the great lords. One judge was convicted of taking bribes in criminal cases. The inefficacy of appeals was a crying evil, and it was complained that the judges heard appeals against their own decisions. All these various evils were to cause a grim reckoning in the next reign. But here we must close the period which began with the legislation of Edward I. and ended in such ignominy with his grandson’s death in 1377.
The Bronze Age of the Common Law: From the Death of Edward III. to the Death of Littleton2
The period in legal history that reaches from the death of Edward III., in 1377, to the death of Littleton in 1481, may be called the age of bronze, on account of the efforts which the law was making to mold itself to fit new conditions. The amplification of the action of trespass, the invention of common recoveries, the dawning action of ejectment, were phenomena that characterize this age. The common law was showing little indication of its coming helplessness in the next age, when the developed jury system was to render it incapable of granting any relief but a sum of money or the recovery of specific real or personal property. And in the realm of constitutional law this Lancastrian age reached higher ground than the law was to again occupy for two hundred years.
The reign of Richard II. opens with a frightful tragedy. The effects of the great plague in 1349, the unrest caused by the repressive statutes, the insistence of the landholders upon the villcin-services, and the growth of the renting system, resulted in a widening chasm between farmer and laborer, which culminated in Wat Tyler’s rebellion. The populace rose over England, and mobs marched on London. The demand was that all serfdom be abolished, and that all vellein services and rentals be commuted for four pence per acre. In London the mob burst into the Tower and murdered the chancellor, Archbishop Sudbury, one of the greatest scholars of his time. But the bitterness was deepest against the lawyers, on account of the parchment records and the actions that had forced many a villein to perform his services. The Temple, the new school of the lawyers, was sacked and its records destroyed. In Shakespeare’s Henry VI., Dick the Butcher cries: “The first thing we do, let’s kill all the lawyers.” Cade: “Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment; that parchment being scribbled o’er should undo a man.” It is, perhaps, needless to say that Shakespeare is here completely astray in chronology, for this hatred of lawyers belongs to the revolt of Wat Tyler in 1381, not to Cade’s rebellion in 1450.
Out in Suffolk was living the venerable Chief Justice Cavendish. The mob attacked his domain, and finding the Chief Justice, they dragged him forth, gave him a mock trial, and then beheaded him. This fine old lawyer was from the Norman house of De Gernum. Under the name Candish he was in immense practice in the Year Books of Edward III., along with Belknap, Charlton, and Knivet. After serving as a puisne in the Common Pleas he became Chief Justice of the King’s Bench. One of his dicta from the bench is a gallant utterance upon the appearance of women: “Il n’ad nul home en Engleterre,” he says in barbarous French, “que puy adjudge a droit deins age ou de plein age, car ascun femes que sont de age xxx ans voilent apperer de age de xviii.”1 When he was murdered he had just been made Chancellor of the University of Cambridge, after a service on the bench for over ten years, with a great reputation for learning and fair dealing. His descendants in the elder line were Earls of Devonshire, now Dukes of Devonshire. Another descendant in the younger line was the celebrated commander in the Civil War, who became Marquis and Duke of Newcastle; but the estates of this line now belong to the Dukes of Portland, who are Cavendish-Bentincks.
The successor of Chief Justice Cavendish was Robert Tresilian. He had sat as Cavendish’s only puisne; and when he held the assizes after Wat Tyler’s rebellion, he made a record that was never equaled until Jeffreys held the “Bloody Assizes” after Monmouth’s rebellion. Later in the reign of Richard II., Tresilian became involved in the political troubles. Parliament had practically supplanted the King, by appointing eleven commissioners to administer the government. The King at first tried to elect a more favorable parliament. When the election proved unfavorable, Tresilian called the judges together, among them Belknap, Chief Justice of the Common Pleas, Fulthorpe, Burgh, and Holt (Skipwith excused himself), and by violent threats induced the judges to sign a series of prepared answers, holding the act of Parliament invalid. Poor Belknap as he signed the paper said: “Now here lacketh nothing but a rope, that I may receive a reward worthie for my desert.” This is an early instance of a practice that became common under the Stuarts, and was put into use as late as 1792 by Lord Eldon; while it has often been used in some of our States. Fulthorpe, one of the judges, at once communicated the matter to Parliament. The judges were appealed of high treason. Tresilian was beheaded, and the other judges were banished. Belknap had been a great advocate and an excellent judge; but he lacked courage, for in 1381 when he went the circuit, the rioters broke up his court and made him swear to hold no more sessions. His banishment caused a very remarkable ruling. Gascoigne held that Belknap’s wife could be sued as a feme sole, although her husband was living. The decision was certainly wrong. Chief Justice Markham at a later time made a rhymed couplet over this decision:
Belknap was allowed to return, the judgment against him was reversed, and his property that had not been alienated was restored.
The year 1388, when the judges were banished, was, of course, marked by a total change in the courts,—the first instance in English history when the whole bench was changed for political reasons. Even in 1399, when Henry of Bolingbroke supplanted Richard II. and the reigning king was compelled to sign an abdication, there was no change in the judiciary. The whole proceeding was in strict legal form, for Chief Justice Thirning yielded up the fealty, homage, and allegiance of all the English people, declared the King deposed, and announced Henry IV. to be his successor. The deposition took place in the midst of a splendid pageant in Westminster Hall. The Hall had just been remodeled in the last two years of the King’s reign. The Chancellor’s court and the King’s Bench, toward the end of Edward III.’s reign, had joined the Common Pleas in the Hall. King Richard, who had a keen appreciation of architectural beauty, had restored and remodeled the Hall after designs by William of Wykeham. The walls were built higher, the pillars in the hall were removed, and the magnificent timber roof, still one of the wonders of architecture, was thrown over the wide hall. Sadly enough, the first use made of the King’s structure, after he had rendered it so imposing, was the coronation of his usurping kinsman, Henry IV.
Revolutions or changes in dynasty in England have rarely affected the courts. The two Chief Justices and their colleagues continued to sit in the courts after the new King’s accession. One judge, Rickhill, was called upon to answer for a share in the murder of the late King’s uncle, the Duke of Gloucester, while in prison at Calais. But Rickhill proved that he had no part in the murder, and was allowed to resume his seat upon the bench. This judge, in attempting to draw his own deed, made some memorable law, which is still common learning. By his deed he attempted to anticipate the law by two centuries, and to settle his lands upon his sons successively in tail, but added a contingent limitation that if any son aliened in fee or in tail, the same lands should go over to the next son in tail. The contingent limitation was held bad as the creation of a remainder, which did not await the natural devolution of the preceding estate, but cut it short by the creation of a freehold beginning in futuro. English law was to await the Statute of Uses before such a limitation became good in a deed, and the Statute of Wills before it became possible by will.
Clopton, Chief Justice of the King’s Bench, vacated his seat to become a friar of the Minorites, and his successor was the celebrated William Gascoigne, whose surname the ingenious scribes of that day were able to spell in twenty-one different ways. The legend as to his firmness in committing the Prince of Wales for contempt of court is wholly mythical; but it is true that when, in 1405, he was commanded by the king to pronounce sentence of death upon Archbishop Scrope and the Earl Marshal, rebels taken in battle, he resolutely refused, saying: “Neither you, my Lord, nor any of your subjects, can, according to the law of this realm, sentence any prelate to death, and the Earl has a right to be tried by his peers.”
Throughout this period the regular succession from eminence at the bar to a judgeship was a constantly recurring process. In the Year Books we notice some interesting interpolations. Thus Hull, a judge, “said secretly,” of a decision of Chief Justice Thirning, “that it was never before this day adjudged to be law.” Another judge, Hill, passing upon a “stayout” agreement, where a dyer had bound himself by a bond not to pursue his trade for half a year, ruled that the covenant was against the common law, adding: “And by God, if the plaintiff was here, he should go to prison till he paid a fine to the King.” The learned Foss thinks this the only reported oath on the bench, but he is greatly in error. Bereford, Brumpton, Staunton and other judges in the older Year Books frequently invoke the Almighty. Henry II.’s favorite oath while sitting on the bench was, “by God’s eyes;” King John swore “by God’s feet”; and the Conqueror’s favorite oath was “by the splendor of God.” Archbishop Arundel, who as Chancellor presided in 1407 over the trial of a Lollard priest, William Thorpe, accused of heresy, swore freely from the marble chair, “by God” and “by St. Peter.” The accused priest upon this trial made a most felicitous Biblical quotation in answer to the Archbishop; the latter having said that God had raised him up even as a prophet of old to foretell the utter destruction of the false sect of the priest, the priest retorted with the words of Jeremiah: “When the word that is the prophecy of a prophet is known and fulfilled, then it shall be known that the Lord sent the prophet in truth.”1
But the most curious circumstance of that age is a performance of Judge Tirwhit, who affords ample proof that no man, not even a judge, can be his own lawyer. Tirwhit had brought an action against the tenants of the manor of Lord de Roos. Both sides were afraid to trust a jury, so the cause was referred to the arbitration of Chief Justice Gascoigne. The Judge thereupon appointed a day, called in the record somewhat cynically, “a loveday,” for the parties to come before him with their evidences, limiting the witnesses to a few friends of either party. But Tirwhit assembled four hundred men, who lay in wait for Lord de Roos to do him “harme and dishonure.” Lord de Roos avoided the ambuscade, but complained to the king. Tirwhit was arraigned before Parliament and acknowledged that “he hath noght born him as he sholde have doon.” The suit, by the award of the Archbishop of Canterbury and Lord de Grey, the Chamberlain, was again referred to Gascoigne, while Tirwhit was required to send two tuns of Gascony wine to Melton Roos, the manor-house of Lord de Roos, and to take there “two fatte oxen, and twelfe fat sheepe to be dispensed in a dyner to hem that there shall be,” and Tirwhit was to attend the feast with all “the knights and esquires and yomen” that had made his forces on the “forsaid loveday.” There he was to offer a full speech of apology, which concluded: “forasmuche as I am a justice, that more than a comun man scholde have had me more discreetly and peesfully, I know wele that I have failed and offended yow, my Lord the Roos, whereof I beseke yow of grace and mercy and offer you 500 mark to ben paid at your will.” But Lord de Roos was to refuse the 500 marks and forgive the judge and all his party. What happened at the feast, how much of the two hogsheads of heady wine were consumed, whether heated with the good cheer the parties fell to fighting over the legal issue, and how many good men fell (under the table) in the great hall of Melton Roos, history has not told us. But an archbishop who could prescribe a feast and two hogsheads of wine as a peace offering certainly cannot be accused of any prejudice in favor of sobriety.1
This was the age of noted lawyers. Such names as Hankford, Markham and Danby, Norton, Prisot, Hody, Moyle, Choke and Brian are great names in the Year Books. Hody, according to Coke, was “one of the famous and expert sages of the law.” He and Prisot, a Chief Justice of the Common Pleas, are said to have greatly assisted Littleton in writing his work on Tenures. Hody tried and condemned Roger Bolingbroke, “a gret and konnyng man in astronomye,” for attempting “to consume the king’s person by way of nygromancie.” The unfortunate scientist was sentenced to death and executed. Markham furnishes the first instance, for generations, of the removal of a judge for an unsatisfactory decision. It happened in this wise: Sir Thomas Cooke, lately Lord Mayor of London, was possessed of vast landed wealth. The Yorkists in 1469 brought him to trial for loaning money to Margaret of Anjou, the wife of the deposed king, Henry VI. The cormorants surrounding Edward IV., the hungry relatives of his wife, had condemned Cooke beforehand and considered his estate as their lawful prey. But Markham charged the jury that the act proven was merely misprision of treason, and thus the Lord Mayor was saved from forfeiture of his estate. Markham was immediately superseded as Chief Justice.
Another name celebrated in the Year Books is that of Skrene. He is a favorite with the reporters, for many of his deliverances are noted with the same approval as those of the judges. In later times such men as Coke deemed all statements of law as of equal value, and cited indiscriminately the arguments of counsel and the words of the judges, as entitled to equal credit. Skrene never attained a judicial position, but he left a fine estate called Skrenes which was many years afterwards purchased by Chief Justice Brampston.
Both Brian and Danby are sages of the law often cited by Coke as high authority. Choke, a contemporary, served on the bench for many years. His contribution to the law is composed of two erroneous and troublesome dicta. One asserts that if land be granted to a man and his heirs so long as John A’Down has heirs of his body, and John A’Down dies without heir of his body, the feoffment is determined. John Chipman Gray, with an amplitude of learning that has been wasted on a perverse generation, has demonstrated that Coke and Blackstone are in error in following Choke’s deliverance. Not less erroneous is Choke’s second dictum as to the reversion of the property of a corporation upon its dissolution, but the courts have long disregarded this latter proposition.
Another judge, Walter Moyle, who sat through the wars of the Roses, is notable as the progenitor of a most distinguished legal family. His granddaughter and heiress married Sir Thomas Finch, descended from an old Norman family. Their son, Henry Finch, was a celebrated serjeant at law. His son, John Finch, was Attorney General, then Chief Justice of the Common Pleas, and later Lord Keeper under Charles I., as Lord Finch of Daventry. Another grandson of the Moyle heiress was Heneage Finch, a celebrated lawyer. His son, another Heneage, was the celebrated chancellor, Lord Nottingham, the Father of Equity and the author of the Statute of Frauds. His son, a third Heneage, became celebrated by his valiant defence of the Seven Bishops and was made Earl of Aylesford. Three earldoms, Winchelsea, Nottingham, and Aylesford, were the rewards of this legal family.
About the middle of the fourteen hundreds, just before the wars of the Roses, it became apparent that the salaries paid to the judges were wholly inadequate. In 1440 William Ascough, who was rapidly advanced, was appointed a justice in the Common Pleas. He petitioned the king representing that “ere he had been two years a serjeant, he was called by your Highness to the bench and made justice, whereby all his earnings, which he would have had, and all the fees that he had in England, were and be ceased and expired to his great impoverishment, for they were the substance of his livelihood.” He modestly requested, since he was the poorest of the justices, a life estate in lands of £25 12s. 10d. per year. Even the summons to serjeantcy was sometimes refused, since it might result in an elevation to the bench. It is certain that prior to this time the serjeants had a monopoly of the Common Pleas, for in 1415, William Babington, John Juyn, John Martyn, and William Westbury were called to the degree of the coif. These four with several others declined to qualify and thereupon complaint was made in Parliament that there was an insufficiency of serjeants to carry on the business of the courts. Parliament responded by imposing a large penalty upon any one who refused a summons to become a serjeant. So the persons called assumed the degree, and the four named above afterwards became judges.
A judge who served under Henry VI. in the trying time of Cade’s rebellion has served for centuries to add to the gayety of nations. Sir John Fastolf, who held the Kent assizes in 1451, was a gallant soldier and a lover of learning. For some reason Shakespeare pictured him, under the name of Falstaff or Fastolfe, in his Henry VI., as a contemptible coward and craven. Later, in his Henry IV., when he changed the name of the fat knight Oldcastle so as not to offend Puritan prejudices, Shakespeare substituted the name of the character in his older play. In this way the blameless Fastolf has been handed down by the plays of Henry IV. and the Merry Wives of Windsor as the richest comic character in dramatic literature. The real man left a will, of which Judge Yelverton was an executor. It is said in the Paston letters that in a suit over the will Yelverton came down from the bench and pleaded the matter!
But this extraordinary conduct of Yelverton was surpassed by that of Serjeant Fairfax. On one occasion he was employed to prosecute certain defendants; but he declared at the bar that he knew that the men were not guilty, that he would labor their deliverance for alms, not taking a penny, whereupon the prosecutor naturally retained other counsel. It is to be hoped that this professional betrayal was not common at that day, though doubtless the foolish people who prate about the iniquity of a lawyer’s advocacy of a bad cause would find in such conduct much to approve. This Fairfax’s great-great-grandson was made Lord Fairfax in 1637, and in still later times the then Lord Fairfax, smarting under some court beauty’s disdain, buried himself in the Virginia wilderness, and added to history by befriending the young surveyor, George Washington. Washington was sent to survey his friend’s vast domain beyond the Blue Ridge, and there gained the knowledge that gave him his first military employment.
The fame of all the Lancastrian and Yorkist lawyers is eclipsed by that of Fortescue and Littleton. Both of them were legal authors and very successful practitioners. Fortescue, the Lancastrian judge, survived Littleton, the Yorkist judge, and will therefore be noticed after him.
Thomas Littleton came of a family that since the days of Henry II. had occupied an estate at South Littleton in Worcestershire. Although he was the eldest son he was bred to the bar at the Inner Temple. He became reader for his Inn, and the subject of his public reading, the Statute De Donis, shows the early tendency of his legal studies. He was in practice as early as 1445, for in that year a litigant named Hauteyn petitioned the Lord Chancellor to grant him Littleton as counsel in a case against the widow of Judge Paston, for the reason that none of the men of the court were willing to appear against the widow of a judge and her son, who was an advocate. This would seem to indicate that Littleton’s practice lay in the chancery and not in the law courts. In 1452 Littleton received a handsome fee, the grant of a manor for life pro bono et notabili consilio. In 1453 he became a serjeant, and in the next year was made king’s serjeant. In 1460 he was one of the king’s serjeants who successfully evaded an answer to the question asked by Parliament as to whether the Lancastrian King Henry or the Yorkist Duke Richard had the better title to the throne. In fact, from 1455 to 1466 Littleton practiced his profession, refusing to mingle in the political disputes. He even took the lawyer-like precaution in 1461, when Edward IV. supplanted Henry VI., to sue out a general pardon for acts done under the deposed monarch. In 1466 he was made a justice of the Common Pleas, and so remained, even under the short return of Henry VI. He died a judge in 1481. He assisted in fixing the legal landmark of Taltarum’s case, which held that a common recovery suffered by a tenant in tail barred not only the issue in tail, but also any remainder limited thereafter, as well as the reversion in fee. His tomb, in the form of an altar of white marble, still remains in Worcester Cathedral. His will, among other curious bequests, gallantly provides for prayers to be said for the good of the soul of his wife’s first husband. Gentle sarcasm has little in common with the treatise on Tenures; but it may be that, after an experience with the widow of the deceased, Littleton felt that the unfortunate man deserved the prayers. The will shows Littleton to be a pious soul fully persuaded of the efficacy of prayers to prevent the “long tarying” of the soul in purgatory.
While Littleton’s treatise was put into its final form in the latter part of his life, it is probable that the Tenures is an amplification of his reading on De Donis and represents the collected work of a lifetime. It is a marvel to find a work on the law into which no apparent error has crept. This book has remained the classic treatise on estates, and its words to-day are cited as the undoubted common law. Following Fortescue’s saying that “from the families of judges often descend nobles and great men of the realm,” it may be noted that Littleton’s eldest son married one of the coheiresses of Edmund Beaufort, Duke of Somerset, and by right of that descent, Littleton’s descendants, who are Viscounts Cobham, quarter the royal arms of the house of Lancaster. The descendant of Littleton’s second son is Lord Hatherton, while the great-grandson of Littleton’s third son was Lord Lyttleton, Lord Keeper under Charles I. Another descendant was a baron of the Exchequer under Charles II.
The traditional portrait of Littleton is unfortunately not authentic. He is shown wearing the collar of SS, still worn by the Lord Chief Justice of England, but absolute discredit is thrown on the portrait by the portcullis of the Tudors, next to the clasp of the collar, which was not introduced until Henry VII.’s time. The Elizabethan ruff is hardly the attire we should expect in the Yorkist age. Coke, however, who knew nothing about it, says that the picture is a very good likeness. But the monumental effigy of Littleton, possibly authentic, shows a kneeling figure. Out of his mouth issues the motto ung dieu et ung roy, and the face has the smooth look of a Yorkist courtier, but indicating the keenness of intellect required for the systematizer of the nice discriminations of the law of real estate.
Littleton was simply a great lawyer and judge, but his greatest contemporary was more than a great lawyer and judge; he was an enlightened statesman, a gallant soldier, a writer of transcendent merit upon constitutional law, and a scholar whose words upon his profession possess a peculiar charm even for men wholly unacquainted with legal lore. John Fortescue was a lineal descendant of the knight (Le Fort Escu) who bore the shield of William the Conqueror at Hastings. Educated at Exeter College, Oxford, Fortescue was trained for the bar at Lincoln’s Inn, of which he was a governor from 1425 to 1429. In the latter year he was made a serjeant, and is shown in the Year Books as in immense practice, until in 1442 he became Lord Chief Justice of the King’s Bench. His salary in that office was £120 a year, with an allowance of two robes and two tuns of Gascony wine per year. His yearly salary was afterwards increased to £160. He served as Chief Justice until 1461. During his term occurred Cade’s rebellion, and one of the charges against Fortescue and Prisot, the Chief Justices, was that of “falseness.” No sooner suppressed was this rebellion, where Cade took the significant name of Mortimer, than the Duke of York set up his claim to the throne, as descended through the Mortimers from the third son of Edward III. The judges, the king’s counsel, the serjeants at law, were all asked for legal opinions on the title to the throne, but all declined to give an opinion. Both parties took up arms. Chief Justice Fortescue vindicated his descent from a long line of knightly ancestors by taking the field. He was in almost every one of the battles; and after Towton, the bloodiest battle in English history, he went into exile with the Lancastrians. He returned and fought at Tewkesbury, the last battle of the war, and was taken prisoner.
During his exile he had written the work which we call De Laudibus Legum Angliae. The book was written to instil into the young Prince of Wales, Henry VI.’s son, whose education was entrusted to Fortescue, a proper knowledge of English institutions. The book is invaluable as showing not only a profound appreciation of the free and liberal principles of the common law, but also the condition of the English law at that epoch. Fortescue also wrote a tract in support of the Lancastrian title to the throne, which he based upon the solemn declaration of Parliament and the nation’s acceptance. When Fortescue found that the Lancastrian cause was ruined, he prayed for a pardon from the Yorkist king. There had been little change in the bar or the courts during Fortescue’s exile. Fortescue himself had been succeeded by Markham, and Prisot, another avowed Lancastrian, was displaced by Danby; but all the other judges had remained. The courts had gone on in regular fashion during the fierce wars, and the bar was composed of many of the men who had practiced before Fortescue. Billing, a subservient wretch who had succeeded Markham, although one of the first of a long line of the disgraceful judicial tools of Yorkist, Tudor and Stuart kings, kept up the traditional kindliness of the English bar by intervening strongly for Sir John Fortescue, and obtained for him a pardon with the restoration of his estates. But by a curious whim of Edward IV., Fortescue was required to write, in favor of the Yorkist title, a refutation of his book demonstrating the validity of the Lancastrian title to the throne. The two treatises appear in Fortescue’s works, and each of them constitutes the best argument for the respective opposing claims.
If one were asked to name in English law an equal to Fortescue, he could point to but three names—Bacon, Somers and Mansfield. Just as Bacon and Somers were impeached, and Mansfield bitterly denounced, so we find, here and there in the Paston letters, hints that Fortescue was an object of hatred. A correspondent during Cade’s rebellion says: “The Chief Justice hath waited to be assaulted all this sevennight nightly in his house, but nothing come as yet, the more pity.” It is not uncommon for Fortescue to be represented as more of a politician than a lawyer; but the Year Books of Henry VI. show him to be a consummate master of the common law, whom even Coke mentions with reverence. One decision of his, in the case of Thorpe, Speaker of the House of Commons, is written in our Federal and all our State constitutions.
In his books “De Laudibus” and “Monarchy” he shows that he is the first of England’s great constitutional lawyers. He points out to his young prince that the Roman maxim, “quidquid principi placuit, habet legis vigorem,” has no place in English law; that the king’s power is derived from the people and granted for the preservation of those laws, which protect the subjects’ persons and property; that the king cannot change the laws without the consent of the three estates of the realm, the baronage, clergy and commons; that the Parliament has power because it is representative of the whole people; that the king’s power of pardon and the whole domain of equity is the king’s for the good of his subjects; that the limitations upon kingly power are not a humiliation to, but for the glory of the king; that righteous judgment is his first duty, that the courts of law are his, but he does not act personally in judgment; that the laws of England are better than those of France, because they recognize no torture, because they provide the institution of the jury, carefully regulated courts, a legal profession trained in the great legal university, the Inns of Court, and because all men’s rights are equally protected by law. Certainly no nobler picture of a constitutional system has ever been put forth by any English lawyer. It is the precocious development of the three Henries, a system far ahead of the times; under a strong king like Henry V., England was the first power in Europe; but a weak king like Henry VI., kindly, just, temperate, humane, gentle in his methods, pure and upright of life, the best man who ever sat on the English throne, found himself ruined and dethroned. The nation which voluntarily abandoned this system deserved the Yorkist, Tudor, and Stuart tyranny. And every step that since was gained in England was obtained by restoring some principle of this theory of government so boldly sketched by Fortescue.
It is a pleasure to know that the manor which the Chief Justice bought and transmitted to his posterity gave a title to his descendants as Viscounts Ebrington, and that the head of the family, as Earl Fortescue, sits in the House of Lords, while three Fortescues since his time have sat as judges in Westminster Hall.
Here at this period, when modern history is just beginning, when the use of printing was about to multiply books and legal treatises, when the law itself was passing through a great transformation, when the growth of the chancellor’s jurisdiction by means of conveyances to uses was to suffer a great expansion, when chancery was to gain its control over common law actions by injunctions, when land was to become again alienable, when the actions of ejectment, of trespass, of trover and of assumpsit were developing and the older actions passing away, when the jury was becoming a body of men which heard evidence only in open court under the control of the judge, when the great advocate with his skill in eliciting evidence and in addressing the jury now first found a place in the practice, and all court proceedings, except formal declarations, were transacted in the English tongue, we have in Fortescue’s work a picture of the English legal system. But the most interesting portion of his work is the description of the system of legal education at the Inns.
The origin of the Inns of Court is lost in antiquity; but it is practically certain that there was a body of law students older than any of the Inns. One set of students in Edward II.’s reign, or soon thereafter, obtained quarters in the Temple and soon divided into the Middle and the Inner Temple. Another body of students probably obtained from that ill-starred woman, the heiress of the deLacys, the town-house of the Earls of Lincoln, and became Lincoln’s Inn. Still later another body obtained the mansion of the Lords Gray de Wilton, and became Gray’s Inn. Connected with the larger Inns were ten smaller Inns of Chancery, having no connection with the court of chancery, but so called because they were the preparatory schools where the students studied the original writs, which were issued out of the chancery.
But there was, of course, some reason why, on the edge of the city, just beyond the city wall, all these students should have found a lodging place. Fortescue explains that the laws of England cannot be taught at the university, but that they are studied in a much more commodious place, near the king’s court, where the laws are daily pleaded and argued and where judgments are rendered by grave judges, of full years, skilled and expert in the laws. The place of study is near an opulent city, but in a spot quiet and retired, where the throng of passers-by does not disturb the students, yet where they can daily attend the courts.
In the smaller Inns the nature of writs is studied. The students come there from the universities and grammar schools, and as soon as they have made some progress they pass into the larger Inns. At each of the smaller Inns are about a hundred students, while none of the larger Inns has less than two hundred. These four larger Inns were wholly voluntary institutions. The older and better known barristers of an Inn became the benchers, and they were self-perpetuating. They alone had and still retain the exclusive privilege of calling to the bar, but upon their refusal an appeal lay to the judges. In these four Inns the students studied the cases in the Year Books, the legal treatises called Fleta and Britton, read the statutes, and attended at court in term time.
Instruction was given by arguing moot cases before a bencher and two barristers sitting as judges, and by lectures called readings delivered by some able barrister belonging to the Inn. These readings were often cited as authority. Littleton’s was on De Donis, Bacon’s was on the Statute of Uses, Dyer’s upon the Statute of Wills, Coke’s upon the Statute of Fines. It was a high honor to be selected as reader, and the expense of readers’ feasts at the Inns became very great. After a student had studied for seven years (afterwards reduced to five), he was eligible to be called to the bar. The barristers before becoming serjeants were probably called apprentices, although that term was sometimes applied to the students. Whether an examination was required is problematical, but possibly that part of the ceremony of instituting a serjeant, which requires the serjeant to plead to a declaration, points to an examination of some perfunctory sort.
While the students were pursuing their studies in the law, they were instructed in various other branches of learning, if we may believe Fortescue. Singing, all kinds of music, dancing, and sports were taught to the students in the same manner as those who were brought up in the king’s household were instructed. The revels and masques of the law students became a great feature of court life. On week days the greater part of the students devoted themselves to their legal studies, but on festival days and Sundays after divine service, they read the Holy Scriptures and profane history. In the Inns of Court every virtue is learned and every vice is banished, says Fortescue; the discipline is pleasant, and in every way tends to proficiency. Such is the reputation of these schools that knights, barons, and the higher nobility put their children here, not so much for the purpose of making them lawyers as to form their manners and bring them up with a sound training. The constant harmony among the students, the absence of piques or differences or any bickerings or disturbances, which Fortescue asserts, taxes our credulity. But he claims that an expulsion from an Inn was feared more by the students than punishments are dreaded by criminals.
The high social position of the students, a phenomenon that is always noticeable in the English barrister, is warmly commended by Fortescue. The expense of the residence at an Inn, which is twenty-eight pounds a year (equal to almost twenty times that amount at present money values), restricts the study of the law to the sons of gentle folk. The necessity of a servant doubles this expense, and the poor and common classes are not able to bear so great a cost, while the mercantile people rarely desire to deplete their capital by such an annual burden. “Whence it happens that there is hardly a skilled lawyer who is not a gentleman by birth, and on this account they have a greater regard for their character, their honor and good name.”
After a barrister had been called, he generally practised on the circuit. Fortescue himself traveled the western circuit. He narrates how he saw a woman condemned and burned for the murder of her husband, and at the next assizes he heard a servant confess that he had killed the husband and that the wife was entirely innocent. From this occurrence Fortescue draws a justification for the law’s delay. “What must we think,” he says, “of this precipitate judge’s prickings of conscience and remorse, when he reflects that he could have delayed that execution. Often, alas, he has confessed to me that he could never in his whole life cleanse his soul from the stain of this deed.” In another place Fortescue makes the remark that has been so often quoted: “Indeed one would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be executed.”
The barrister after sixteen years’ service may be called upon to take the degree of serjeant at law. Then he dons a white silk cap, which a serjeant does not doff even while talking to the king. After much solemn and stately ceremonial and feasting, the new serjeant is assigned his pillar at the Parvis of St. Paul’s, where he consults his clients and attorneys. The orthodox rule, which became a custom in England, that it is unprofessional for a barrister to receive his instructions or fee from the client, did not then exist. Even in much later times Wycherly, who had been a law student, sees no incongruity in the client consulting a barrister. In his exceedingly filthy, but witty play, The Plain-dealer, the litigious Widow Blackacre is consulting her counsel, Serjeant Ploddon, and says to him: “Go then to your Court of Common Pleas and say one thing over and over again; you do it so naturally, that you will never be suspected for protracting time.”
As in after times, the judges were selected only from the serjeants. Fortescue describes the oath which the judges take,—to do justice to all men, to delay it to none, even though the king himself command otherwise, that he will take no gift or reward from any man having a cause before him and will take no robes or fees except from the king. Lovingly Fortescue tells of the life of leisure and study of the judges, how the courts sit only in the morning, from eight until eleven. Then the judges go to their dinner. At Serjeants’ Inn the judges dined and met the serjeants there. Fortescue himself had chambers in the old Serjeants’ Inn.1 From Clifford’s Inn one may now enter the old building where Fortescue lodged, but it is no longer used by the serjeants, for that ancient order is extinct. After their dinner the judges spent the rest of the day in the study of the laws, reading of the Scriptures, and other studies at their pleasure. It is a life rather of contemplation than of action, says Fortescue, free from every care and removed from worldly strife. Proudly he tells his prince that in his time no judge was found that had been corrupted with gifts or bribes.
Fortescue’s De Laudibus is the unique production of that age. Here we see the legal system set forth, from the day the student enters an Inn of Chancery through his studies in an Inn of Court, his service at the bar, until his elevation and work upon the bench. It is fully described by one of the greatest of common lawyers, “this notable bulwark of our laws,” as Sir Walter Raleigh calls Fortescue. But we ought not to part from this great lawyer without remarking his serene and steadfast faith in God’s direct government of the world,—that wonderful faith of the Middle Ages. Fortescue feels that the good man is blessed. The fact that upright judges leave behind them a posterity is to him one of God’s appropriate blessings upon just men. It is a fulfillment of the Prophet’s word that the generation of the righteous is blessed, that their children shall be blessed, and that their seed shall endure forever. Perhaps Fortescue, after the fatal field of Tewkesbury, when he lay a prisoner in the Tower, found consolation in the promise of the Psalmist: “The steps of a good man are ordered by the Lord; though he fall, yet shall he not be utterly cast down, for the Lord sustaineth him with his hand.” For once at least the promise came true. Fortescue lived his last years in peace and honor. He saw the bloody tyrant, Richard of Gloucester, on Bosworth field, pay the penalty of his many crimes, and when the great Chief Justice passed away, a Lancastrian king was in undisturbed possession of the throne.
The Iron Age of the Common Law: From Henry VII. to the Revolution of 16881
The Yorkist kings had betrayed a tendency to use the courts for the furtherance of tyrannical ends; but Henry VII., who had been trained in the Lancastrian tradition of the independence of the judiciary, made absolutely no change in the judges after his victory at Bosworth. The avarice of this king was, however, so great that we have an instance of a melancholy practice which became common under the Stuarts. The king sold to Robert Read, a very good lawyer, the chiefship of the Common Pleas, for four thousand marks.
There are no names of great lawyers in this reign. The worthy Fineux, who became Chief Justice, had an immense practice. He was steward to 129 manors and counsel for 16 noblemen. His industry was marvelous, for he left 23 folio volumes of notes of 3,502 cases that he had managed. The growing importance of the mercantile class is shown by the elevation of Frowick, a member of a London family of goldsmiths. He succeeded Brian as Chief Justice of the Common Pleas. Thomas Whittington, a baron of the Exchequer, was a grand nephew of the famous Richard Whittington, who walked to London and who while sitting discouraged at the foot of Highgate Hill heard the prophecy of Bow Bells, and lived to become the banker of kings and the greatest of merchant princes.
Another celebrated lawyer of this time was Richard Kingsmill. A letter still extant says: “For Mr. Kingsmill it were well doon that he were with you for his authority and worship, and he will let for no maugre, and yf the enquest passe against you he may showe you summ comfortable remedy, but, sir, his coming will be costly to you.” The childlike confidence in the high-priced lawyer is touching. But the fees seem ridiculously small. We know that the Goldsmiths’ Company of London paid a retainer of ten shillings. “A breakfast at Westminster spent on our counsel” cost one shilling sixpence. Serjeant Yaxley’s retainer from the litigious Plumpton for the next assizes at York, Notts, and Derby, was five pounds, and a fee of forty marks, if the Serjeant attended the assizes.
Two interesting features of this time are the beginning of our modern law of corporations, as applied to merchant guilds and trading corporations, and the growth of law book printing. Caxton printed no law book; but Wynken de Worde printed Lynwoode’s Provinciale, and Lettou and Machlinia, trained under Caxton, printed in 1480 Littleton’s Tenures, an edition supposed to have been superintended by the author. This book was most frequently reissued; and two famous printers, Pynson and Redman, got into a savage dispute over the merits of their respective editions. In a few years the demand for law books caused the printing of some of the Year Books, and the publication of the Abridgments or Digests of Statham and Fitzherbert. The New Natura Brevium, St. Germain’s Doctor and Student, Fitzherbert’s Diversity of Courts, and Perkins’ Profitable Book, soon appeared. The Year Books grow more and more scrappy, until under Henry VIII. they pass away. But in these latter years they are sad productions. The reporters have lost their French. Such words as “hue and cry,” “shoes,” “boots,” and “barley,” are not turned into French. The law French degenerated until it resembled modern phonetic script. A learned lawyer wrote in this wise: “Richardson, C. J. de C. B., at Assizes at Salisbury in summer 1631, fuit assault per prisoner la condemne pur felony; que puis son condemnation ject un brickbat a le dit justice que narrowly mist. Et pur ceo immediately fuit indictment drawn pur Noy envers le prisoner et son dexter manus ampute et fixe al gibbet sur que luy mesme immediatement hange in presence de court.” The matter of reporting, however, was now taken up by well-known lawyers and judges. Anderson, Dyer, Owen, Dalison, Popham, Coke, Plowden, Bendloe, Keilway, and Croke have left valuable reports, all in Norman French.
The evidence all points to a complete breakdown in the jury system at this time. The Star Chamber court merely continued a jurisdiction long existent in the king’s council; but some portion of the jurisdiction, such as that over corruptions of sheriffs in making jury panels and in false returns, over the bribery of jurors, and over riots and unlawful assemblies, was now put into statutory form. Yet the court would not allow even Serjeant Plowden to argue that it was confined in its jurisdiction by the words of the statute. The court was at first a most excellent engine for particular cases, and filled a great public necessity, but under the later Tudors and the Stuarts it became an engine of tyranny.
This period was characterized in the criminal law by most shameless oppression in all political cases. The unrestrained rule of Henry VIII. and Elizabeth shows many a cruel instance of judicial sycophancy. Yet it is a fact that both these rulers were always popular among the lawyers. Even to-day, on every state occasion at Gray’s Inn, “the glorious, pious, and immortal memory” of Queen Elizabeth is toasted by the benchers, the barristers, and the students rising, three at a time, and taking up the toast in succession. Yet it was Henry VIII. who reduced to an infallible system the art of murder by the forms of law. The judges certified Anne Boleyn to be guilty of high treason, because she was reported to have said the king never had her heart. A jury found the Earl of Surrey guilty of high treason, because he quartered the arms of Edward the Confessor; it is needless to say that Edward never had a coat of arms. The grey-haired, blameless Countess of Salisbury was executed, because her son Reginald Pole had become a Roman cardinal. The king adopted the ingenious methods of Chinese justice, by which, if the offender is not available, his nearest relative suffers in his stead. The judges certified that Catherine Howard, Henry’s fifth queen, was guilty of high treason, because she was not a virgin when she espoused the elderly and battered rake. Cromwell, Earl of Essex, committed high treason, because he had not warned Henry that Anne of Cleves, the king’s fourth bride, was hideously ugly.
Even torture was resorted to in criminal trials. Fox, in his Book of Martyrs (which is embellished by numberless falsehoods), says that Sir Thomas More tortured a prisoner. Elizabeth ordered Campion the Jesuit to be put upon the rack; and Chief Justice Wray presided over the trial. Throgmorton was convicted on confessions obtained by threats of torture. The evidence, where any was taken, was often worthless hearsay. The trial of Sir Thomas More was a travesty on justice. But the conviction of Fisher, Bishop of Rochester, stamps the judges with infamy. In that trial it appeared that Bishop Fisher, mindful of the act of Parliament which made it high treason to dispute the king’s headship of the Church, had steadily refused either to admit or deny the king’s supremacy. At last the Attorney General, Richard Rich, who by the most degrading subserviency to the humors of the king had gained preferment, was sent to Fisher in the Tower. He told the Bishop that he came from the King, who desired to know for his own information Fisher’s real opinion upon the disputed point. The Bishop spoke of the danger arising from the act of Parliament, but Rich assured him that no advantage would be taken of him and gave him the promise of the King that his answer would never be divulged. Thereupon, the Bishop stated that he thought an act of Parliament could no more declare the King head of the church than it could declare that God was not God. Fisher was at once brought to trial; Rich gave the sole evidence against him; and the judges allowed the Bishop to be convicted and executed. It is said that the judges shed tears when the saintly old man was condemned; but that conduct simply adds to their infamy. Sir Thomas More was convicted and brought to the block upon the very same kind of testimony.
Yet during this whole period the law provided even-handed justice as between one private citizen and another. The reports of Chief Justice Dyer, Chief Justice Anderson, and Serjeant Plowden, during the reign of Elizabeth, abundantly prove the fact. In ordinary criminal trials the law was growing much more lenient. It was only when the government was urging the prosecution that the tyranny of the Tudors and Stuarts left the individual no hope against the Crown. Judicial tenure became dependent upon subserviency to the wishes of the executive. Judicial appointments were given solely to those who pledged themselves to the royal designs. The real history of the law is found in the bloody records of the State Trials. The processes of law are used by the government with almost cynical indecency. The baronage was destroyed, and the great mass of the people, the cities and the country gentry, eagerly supported the royal authority.
Before passing from the reign of Henry VIII. we should notice Lord Chief Justice Montague, who founded a powerful family, and is now represented by the Duke of Manchester, the Earl of Sandwich, and the Earl of Wharncliffe. Another of Henry VIII.’s judges was John Spelman, the grandfather of the celebrated antiquary, Henry Spelman. He is not specially noted for his judicial utterances, but he became by one wife the father of twenty children.
Under Elizabeth, those unfortunate gentlemen upon whom the Queen had showered her favors were in peculiar peril. Anyone of her numerous lovers who had the temerity to take a furlough suffered for high treason. The Earl of Hertford was so misguided as to marry a wife. Although he prudently went abroad, the bride was thrown into the Tower, and when the Earl returned, he also was imprisoned. The Queen had the marriage declared void, and fined the Earl fifteen thousand pounds. The young Earl of Arundel had a similar but more trying experience, when he became reconciled to his wife after having been Elizabeth’s favorite. He was condemned to death, but was saved by the Queen’s ministers. Hatton, who became chancellor through the graces of his person, had the good sense to remain unmarried; and the Earl of Leicester kept his royal mistress’ favor by forgetting his duties as a husband. The Duke of Norfolk was convicted because he was suspected of a desire to marry the Queen of Scots. That Queen was executed after an absurd trial before the judges. The Secretary Davidson, who at the command of Queen Elizabeth had issued the warrant for the execution of the Queen of Scots, was savagely prosecuted and imprisoned for life.
The religious controversies fanned the cruel instincts of the age. Under Henry the faithful Catholics suffered the worst oppressions. The chief tool of Henry VIII. in these matters was Thomas Audley, who was a trained lawyer and succeeded More as Lord Chancellor. He devised those laws which imposed upon every man’s conscience the most contradictory oaths. It was a penal offence to acknowledge the Pope, yet it was no less penal to deny a single article of the Romish faith. Whoever was for the Pope was beheaded and whoever was against him was burned. The legislation that plundered the church was Audley’s work, and he selected for himself a rich portion of the spoil. The priory of Christ Church in Aldgate became his town house. He claimed the wealthy monastery of Walden, representing that he had sustained great damage and infamy in serving the King. On the ruins of that abbey his grandson Thomas Howard erected the stately Elizabethan mansion of Audley End.
When the Catholics returned to power under Mary, the Protestants in their turn suffered the penalties of heresy. One trial, however, stands out in this reign as the only instance where, under the Tudors, a prosecution for high treason resulted in a verdict of not guilty. Sir Nicholas Throckmorton was prosecuted by the learned Dyer, then Attorney General. The defendant completely outtalked the Attorney General, and made him appear something of a simpleton. He modestly compared himself to the Savior, and pictured Dyer in the character of Pilate. His self-confidence enabled him to interrupt Chief Justice Bromley’s charge to the jury. Throckmorton craved “indifferency” from the judge, and helped out the judge’s poor memory by his own recital of the facts. The jury that acquitted Throckmorton was imprisoned and heavily fined.
The judges, who were Protestants, on the accession of Mary conveniently became Roman Catholics; one of them, Sir James Hales, had scruples but was induced by his associate, Judge Portman, to recant. This act so worked on Hales’ conscience that he drowned himself. The coroner’s jury returned a verdict of suicide; and in two cases1 a number of hair-splitting subtleties were uttered by the court as to the effect of the suicide in forfeiting the Judge’s estates. Shakespeare makes the learned gravediggers in Hamlet discourse over Ophelia in words that are almost a literal parody on the arguments of the judges.
Elizabeth’s reign produced one very great judge. James Dyer was really appointed to the bench under Mary, but the most of his judicial service was under Elizabeth. He presided in the Common Pleas for twenty-three years. He took no part in the disgraceful political trials of this reign, but directed his court with efficiency and learning. The poet Whetstone has these lines upon Dyer:
John Popham offers a remarkable contrast to Dyer. Of high birth, educated at Oxford, he fell into evil ways while at the Middle Temple. He even resorted to the calling of a highwayman to replenish his purse. He reformed, however, and became a consummate lawyer; he was made Solicitor General and Speaker of the House of Commons. In regular order he became Attorney General, and as such took the lead in many state trials. He prosecuted Tilney, and caused Chief Justice Anderson, one of the greatest lawyers of the reign, to charge the jury on wholly insufficient evidence that the defendant was guilty of an attempt upon the Queen’s life. He attempted to prosecute Mary Queen of Scots; but Hatton, the Chancellor, took the work out of Popham’s hands. Both Elizabeth and Hatton were violently inflamed against the Stuart Queen, on account of the ridicule she had heaped on the love affair of the Virgin Queen and her Chancellor. Even the learned but apologetic Foss is compelled to say that the warmth of Elizabeth’s letters to Hatton “would be fatal to the character of a less exalted female.” On the trial of Knightley, a Puritan, who in temperate language had published some observations on the due observance of the Sabbath, Popham contended that the defendant, though guilty only of a technical violation of a royal proclamation and for that reason not guilty of an indictable offence, could yet be prosecuted in the Star Chamber. He sagely observed as to the defendant’s excuse for publishing his pamphlet: “Methinks he is worthy of greater punishment for giving such a foolish answer as that he did it at his wife’s desire.” When Popham became Lord Chief Justice he showed his prejudice against his former calling by an unexampled severity against highwaymen. On the trial of Essex he curiously mingled the functions of witness and judge, and in his summing up out of his own knowledge furnished the jury with statements of fact that had not been testified to by any witness. By his exertions at the bar he accumulated an immense estate amounting to ten thousand pounds a year; but it was all squandered by his son, another John Popham.
One court—the Court of Requests—that fulfilled a very important function during this period has long been forgotten. It was a court for civil causes—a companion court to the Star Chamber (which devoted itself to criminal cases). Its duty was to hear the causes of those suitors who were denied justice in the common law courts. Wolsey established one branch of the court at Whitehall, while another branch followed the sovereign. Wolsey’s fame as a churchman has wholly obscured his high reputation as a judge. In the court of chancery, in spite of his manifold duties as Prime Minister, he was regular and punctual, and his decrees were invariably sound. He made the Court of Requests emphatically a court to redress the injustice of jury trials. Those who failed before juries on account of the corruption of the panel or the power of their adversaries found themselves protected in the Court of Requests, which followed the chancery practice and was not hampered by a jury. Here the tenants of land appealed for justice against their landlords, here the copyholders sought relief against the enclosures of the commons and waste lands of the manors. The Protector Somerset owed his fall to his active intervention against the landholders; and the strict impartiality of Wolsey’s justice and the sternness with which he repressed the lawlessness of powerful nobles aided in his destruction. The Court of Requests was in continual collision with the common law courts. Coke invented certain imaginary judgments in order to destroy it. But the court held on, and in 1627 Henry Montague, a grandson of the Chief Justice, a very able lawyer, came to preside in this court, and gave it such a high reputation that it had almost as many suits and clients as the chancery. Blackstone1 tells us that this court was abolished in 1640; but he is mistaken, for in 1642, in sixteen days’ sittings, the court made 556 orders. It passed away in the turmoils of the civil war.
The jealousy of the common law courts toward the chancery culminated in Henry VIII.’s Statute of Uses, which attempted to convert every use or trust in land into a legal estate in the beneficiary; this was followed by the Statute of Enrollments requiring all conveyances of freehold by bargain and sale to be recorded in a public office. But the chancery judges and lawyers soon “drove a coach and four” through this act of Parliament; and by means of a bargain and sale for a lease, which the statute executed, followed by a release, which did not require recording, they abolished livery of seisin, as well as the recording of deeds. The Statute of Uses also abolished all uses to be declared by the feoffor’s will. The uses declared in the will had been sedulously protected by the chancery court. But when this method of devising lands was abolished by the Statute of Uses, it became necessary to pass the Statute of Wills. Both Coke and Bacon thought that the Statute of Uses abolished all devises except those that would have been good at common law as conveyances. But the statute was construed otherwise, and the chancery lawyers imported into wills all these conveyances to uses, and thus let in the various kinds of executory devises—estates that in wills rendered nugatory all the common law rules as to remainders. All this history shows the futility of attempting to control a natural development, by means of statutes.
In many ways the years of the first two Stuart kings are the saddest in the history of the law. The servility of the judges was no less marked than under the Tudors. As an added evil, judicial offices were openly made the subject of bargain and sale. Henry Montague gave to Buckingham’s nominee the clerkship of the court, worth four thousand pounds a year.1 Coventry paid Coke two thousand angels for his influence in securing a judicial appointment. The chiefship of the Common Pleas cost Richardson seventeen thousand pounds. Sir Charles Caesar paid fifteen thousand pounds for the mastership of the rolls. Henry Yelverton gave the King four thousand pounds for the office of attorney-general,—a place for which Ley, afterwards Chief Justice, vainly offered ten thousand pounds. Judge Nichols refused to pay for his place, and James I. always referred to him as “the judge that would give no money.” The fifteen serjeants called in 1623 each paid the King five hundred pounds. Under Cromwell, the pious Lord Chief Justice St. John had the granting of all pardons to delinquent lawyers, which netted him forty thousand pounds; nor did he scruple to receive bribes for places under the Protector. Under James II., the young daughters of the leading citizens of Salisbury, who had strewed flowers before the rebel Monmouth, being technically guilty of high treason, obtained pardons by paying money to the Queen’s maids of honor, to whom the King had given the pardons. That great and good man William Penn acted as the agent of the needy ladies in collecting the tribute.
The tone of adulation used by lawyers and judges toward the sovereign is almost incredible. Rich compared Henry VIII. “for justice and prudence, to Solomon; for strength and fortitude, to Samson; and for beauty and comeliness, to Absalom.” Bacon in a learned treatise felicitates James I. (who was little better than a drooling idiot), upon the deep and broad capacity of his mind, the grasp of his memory, the quickness of his apprehension, the penetration of his judgment, his lucid method of arrangement, and his easy facility of speech. The virtuous Coke claimed that King James was divinely illuminated by the Almighty. But this was the tone of the age. To Shakespeare, Elizabeth was “a fair vestal” and “a most unspotted lily.”
The vices of the age are summed up in the rivalry of its two greatest lawyers, Bacon and Coke,—the latter, the most learned of lawyers, but narrow, cruel, and unscrupulous; the other, of large insight, capacious intellect, but also little troubled by scruples.
Coke, the elder of the two men, was Solicitor-General, with a large practice and ample fortune, when Bacon, with his great family advantages, tried to gain the office of Attorney-General against him. Coke stood in the line of preferment. He bitterly resented Bacon’s nickname of the “Huddler”—not an undeserved name for the author of a book like Coke upon Littleton. Next they became rivals for the hand of the widow of Sir William Hatton, a beautiful woman, only twenty years old, with an immense fortune and great pretensions to fashion. The old and wrinkled Coke, a six months’ widower, prevailed. But while the lady was willing to marry Coke, she refused to espouse such an elderly scarecrow at a church wedding. So Coke married her in a private house, and thereby violated the law. His plea when prosecuted was ignorance of the statute. Perhaps this is the real reason for Coke’s oft quoted statement as to statute law. But Bacon made a fortunate escape, and had the satisfaction of enjoying Coke’s domestic infelicities. Lady Hatton refused, after several quarrels, to live with Coke; she further refused to take his name, which she insisted on spelling “Cook.” She refused even to let Coke see the daughter she had borne him, and turned him away from her door.
Then Essex’s trial came on. Coke surpassed even himself in brutality, while Bacon deserted his benefactor. The two men soon had a public altercation in the Exchequer Court. To curry favor with the new king, James, Coke prosecuted Raleigh so savagely that even the judges sickened. The remorseless Popham protested, and such a sycophant as Lord Salisbury rebuked Coke. Thereupon Coke sat down in a chafe and sulked, until the judges urged him to go on. Lord Mansfield said long afterwards: “I would not have made Sir Edward Coke’s speech against Sir Walter Raleigh to gain all Coke’s estate and reputation.” When Coke prosecuted the Gunpowder Plot conspirators, he showed to the full his cowardly method of insulting the prisoners. Other trials were no less disgraceful. Yet, all through, worse than Coke’s brutality, is his pharisaical self-satisfaction, his pitiable, snivelling, hypocritical piety. The best excuse for Bacon is that he was engaged in a rivalry with such a man.
Coke became Lord Chief Justice of the Common Pleas in 1606, and used his place to humble and coarsely insult Bacon. But Bacon’s suppleness was ingratiating him with the King. Coke had become so puffed up that he was growing independent. Bacon induced James to put Coke at the head of the King’s Bench. Coke bitterly reproached Bacon, who replied: “Ah, my Lord, you have grown all this while in breadth; you must needs grow in height, or else you would be a monster.” Coke on the bench was fully as brutal as at the bar. In one case he told the jury that the defendant, Mrs. Turner, had the seven deadly sins,—that she was a whore, a bawd, a sorcerer, a witch, a papist, a felon and a murderer.
At last Coke engaged in his famous controversy with Lord Chancellor Ellesmere, over the power of the Chancery to enjoin proceedings at law, and drew forth the masterly opinion in the famous case of the Earl of Oxford.1 Coke threatened to imprison everybody concerned; but Bacon persuaded the King that Coke was in the wrong, and the King’s Bench submitted. Bacon finally caused Coke to be suspended from office, and to be ordered to correct his book of reports, “wherein be many extravagant and exorbitant opinions set down and published for positive and good law.”
Bacon now succeeded Ellesmere as Lord Chancellor. But Coke, at the age of sixty-six, was not yet defeated. He had a young and pretty daughter; her he offered as a bride to Sir John Villiers, the brother of Buckingham. Coke’s wife fled with her child; but Coke pursued her, tore the child from her mother’s arms, and carried her off to London. Bacon was unable to help Lady Hatton. The mother in prison was compelled to submit, and the child, after a splendid marriage, was handed over to Sir John Villiers. The marriage turned out as might have been expected. The young wife eloped with Sir Robert Howard. Her only son was declared illegitimate, and did not receive the name of Villiers.
Coke received no reward for his unexampled baseness. He tried to make his peace with the King by a number of disgraceful judgments in the Star Chamber. But when his efforts met no return, he had himself returned to Parliament as a patriot. Dr. Johnson must have had Coke in mind when he made his famous definition of patriotism as “the last refuge of a scoundrel.” Thirsting for revenge on Bacon, Coke caused his impeachment and ruin. Coke lived on to be a very old man. Lady Hatton lent humor to the situation by constantly complaining of her husband’s good health. At last he died, watched over by his unfortunate daughter. He made an exceedingly pious end,—thus exhibiting his total unconsciousness of his own true character.
Under Charles I., some ably conducted trials took place over the King’s attempt to raise a revenue without recourse to Parliament. The bar was independent enough to hold out against the power of the Crown. The judges ruled that a commitment specifying no offense was bad. Another decision prohibited torture of prisoners. The rules of evidence were not yet settled; but in the ordinary criminal trials, a defendant was now held not bound to give evidence against himself. Shakespeare seems to think the rule a bad one, not to be followed in the Court of Heaven; for
In the famous Ship Money case of Hampden there was a great forensic display. The Solicitor General spoke for three days, the defendant’s leader spoke four days, Oliver St. John for the defense took two days, and the Attorney-General replied in three days. St. John’s argument was considered the finest that had ever been heard in Westminster Hall. But this speech was soon surpassed by the noble and pathetic plea of Strafford in his own behalf. At last the King himself was put upon trial. The leading Parliamentary lawyers, Rolle, St. John, and Whitelock, refused to sit in the court. Bradshaw, an able lawyer, was made Lord President of the illegal tribunal. The King’s line of defense was laid out for him by Sir Matthew Hale. Bradshaw tried to bully the King, but was overwhelmed by acute reasoning, a royal dignity, and a noble presence, by the King’s liberality of thought and real eloquence. In other trials, such as those of the Duke of Hamilton, the Earl of Holland, Lord Capel, and Sir John Owen, the defendants were convicted by conduct as arbitrary as anything under the Tudors. Serjeant Glyn at the trial of the gallant Penruddock rivalled Coke at Sir Walter Raleigh’s trial. The Protector Cromwell cared little for courts or law. The very men who had declaimed against ship money saw Cromwell’s arbitrary taxation. Chief Justice Rolle and the judges attempted to try the legality of such a tax; but Cromwell sent for them and severely reprehended their license, speaking with ribaldry and contempt of their Magna Charta. He dismissed the judges, saying that they should not suffer lawyers to prate what it would not become them to hear. Serjeant Maynard, who had argued against the tax, was committed to the Tower, while Prynne suffered a fine and imprisonment. Sir Matthew Hale was threatened by Cromwell’s government for his strong defense of the Duke of Hamilton and Lord Capel, but Hale replied that he was pleading in support of the law, was doing his duty to his clients, and was not to be daunted by threatenings. During the Cromwellian ascendency, Hale, at the solicitation of the Royalist lawyers, accepted a judgeship. On the circuit he tried and condemned one of Cromwell’s soldiers for the murder of a Royalist, and had the prisoner hanged so quickly that Cromwell could not grant a reprieve. He quashed a panel of jurors when he found that it had been returned at Cromwell’s orders. The Protector, on Hale’s return to London, soundly berated him, telling him that he was not fit to be a judge.
Many legal reforms were projected during the Commonwealth, but they came to naught at the Restoration. An attempt was made (among others) to substitute the law of Moses for the common law. There was an earnest attempt to abolish the Court of Chancery, but it was frustrated by St. John. An act was passed regulating chancery practice, but it was found to be impracticable. Most of the better class of lawyers were Royalists and ceased court practice. Confiscation and seizures were the order of the day. But the Royalist conveyancers, Orlando Bridgman and Jeffrey Palmer, while they would not appear in court, enjoyed an immense chamber practice and by their new devices of family settlements, superseding entails, preserved many a Royalist estate.
The Inns of Court during the Tudor and earlier Stuart reigns had continued to enjoy great prosperity. From Fortescue’s time to Charles I., it is almost impossible to point to a single lawyer of standing who had not been preliminarily educated at Oxford or Cambridge. In the reign of Queen Mary attorneys and solicitors were forever excluded from the Inns. Henceforth only barristers were trained in those institutions, and attorneys became objects of contempt. In fact, in an order in 16 Charles II., an attorney is called “an immaterial person of an inferior character.” The instruction in the Inns continued to be the same as in Fortescue’s time. The law was now all case-law. Fitzherbert says that the whole Court agreed that Bracton was never taken for an authority in our law. In social entertainments the Inns shone. Costly feasts, magnificent revels, masks, and plays, where the royal family attended, the splendid celebrations of calls of serjeants, the feasts given by the readers, are all fully described in contemporary annals. We read of “spiced bread, comfits and other goodly conceits, and hippocras,” and the bill of supply of one of the feasts, comprising “twenty-four great beefs,” “one hundred fat muttons,” “fifty-one great veales,” “thirty-four porkes,” “ninety-one piggs,” through endless capons, grouse, pigeons and swans to three hundred and forty dozen larks, shows that the vice of the time was gluttony.
It was found necessary during this period to restrain the students. Some of the regulations are curious,—the prohibition of beards of over a fortnight’s growth, of costly apparel, of the wearing of swords; and the restraints on sports point to unruly members in the Inns. It was found necessary to make attendance at the moots compulsory. The standard of attainment was raised. Ten years’ attendance was required before a call to the bar; this was afterwards put back to five years, and then raised to seven; and for three years after his call, a barrister was not permitted to practice before the courts at Westminster.
The Commonwealth time was almost destructive of the Inns, but at the Restoration they started on a new career of splendor. All the old ceremonies and practices were revived. Heneage Finch, afterwards Lord Nottingham, revived the readers’ feasts of former days. He saved the Temple walk from being built upon; and his daily consumption of wine offered an admirable example to the deep drinking young blades of the Restoration.
The two great lawers of Charles II.’s reign were almost exact opposites. Finch, born of an ancient family, of ample fortune, living in magnificent style, princely in his expenditures, a genuine cavalier, was the very antithesis of the Puritanism of Hale. His is one of the noted names on the roll of Christ Church at Oxford. He is the second of our great forensic orators. Ben Jonson has told us of Bacon’s impressive and weighty eloquence, but it could not be compared with the silver-tongued oratory and the graceful gestures of the “English Roscius.” Finch passed through the grade of Solicitor-General, to the Attorney-General’s place, and then became Lord Chancellor, with the title of Lord Nottingham. He was a model of judicial decorum, calm and patient in hearing, prompt in the business of his court, sitting to decide cases while racked with the pain of gout. Careful in the framing of his judgments, and at the same time, a finished man of the world, he stands unrivaled except by Lord Mansfield.
When he came to the marble chair, equity jurisprudence was a confused mass of unrelated precedents. While he invented nothing new, he introduced order into the chaos and settled the great heads of equity in their enduring form.
He settled, finally, the restraint upon executory interests, by his great ruling in the Duke of Norfolk’s case.1 It has been forgotten that Nottingham overruled the three chiefs of the common law courts—North, Pemberton and Montague—sitting with him. North, becoming Chancellor, reversed the case, but the House of Lords, at the instance of Lord Jeffreys (as great a lawyer as Nottingham), restored the first ruling, and reëstablished the rule against perpetuities.
Sir Matthew Hale is not such an engaging figure. He was rather a Puritan, and for thirty-six years never missed attendance at church on Sunday. He was Lord Chief Baron after the Restoration, and then Lord Chief Justice. In mere learning he was without a rival. Lord Nottingham has generously spoken of Hale’s “indefatigable industry, invincible patience, exemplary integrity, and contempt for worldly things,” and Nottingham adds, in his stately way: “He was so absolutely a master of the science of law, and even of the most abstruse and hidden parts of it, that one may truly say of his knowledge in the law what Saint Augustine said of Saint Jerome’s knowledge of the divinity—“Quod Hieronymus nescivit, nullus mortalium unquam scivit.” Hale’s preface to Rolle’s Abridgment contains the most helpful words ever addressed to students of law. The criticism, however, was urged against him that he dispatched business too quickly. And it is almost incredible that he believed in witchcraft with the utmost ignorant superstition, and tried and caused to be executed two poor old women, whom a foolish jury under his direction convicted of diabolical possession.1 It was but a few years later that another woman was tried for witchcraft before Judge Powell, a merry and witty old gentleman. Her offence was that she was able to fly. “Can you fly?” asked the judge. The crazy woman replied that she could. “Well, then,” he said, “you may, for there is no law against flying.” And so ended the trial.
A character of those times was the learned Prynne, an able lawyer, a great antiquarian authority. He assaulted everything, from long hair and actresses to bishops. First he lost his ears, then he was disbarred and condemned to the pillory. Again he lost what little of his ears had been left from the first shaving. He attacked the Quakers, then he suffered imprisonment under Cromwell; next he advocated the proceeding against the regicides, even against those who were dead, and at last rounded out his career as keeper of the records in the Tower. Equal to Prynne in fearless constancy was Judge Jenkins, the author of Jenkins’ Centuries,—a most curious series of reports.
It is customary to represent the succession of judges under James II. to the time of the Revolution of 1688 as a most ignorant, depraved, and worthless set of men. But this picture is badly overdrawn. It is true that the stately and dignified Cavaliers, like Lord Clarendon or Nottingham, were passing away, and that their successors were hardly their equals. Scroggs, the first Chief Justice, owed his elevation to his ability as a forensic orator. Once from the bench he told the listening mob that “the people ought to be pleased with public justice, and not justice seek to please the people. Justice should flow like a mighty stream, and if the rabble, like an unruly wind, blow against it, the stream they made rough will keep its course.” And so Scroggs rolled out his periods, making a splendid plea for judicial independence. It is a sign of the times that high prerogative rulings, which seemed perfectly natural under Elizabeth, should arouse such violent public resentment. Scroggs lost all influence with juries; so he was dismissed, and Francis Pemberton took his place. This man, born to a large fortune, had squandered it within a few years after attaining his majority, and awoke one day to find himself imprisoned under a mass of judgments. But in his five years’ imprisonment he made himself a consummate lawyer. He obtained a release from prison, and soon acquired eminence and wealth at the bar.
But not long after Pemberton’s elevation to the bench, it was determined to forfeit the charters of the City of London, so as to gain control of the panels of jurors, who were selected by a sheriff, elective under the charters. This advice had been given to the King by the noted special pleader, Edmund Saunders. This remarkable man had had a singular career. Born of humble parents, he had run away from home, drifted to London, and found shelter as an errand boy at Clement’s Inn. He learned to write, became a copying clerk, and in this way gained an insight into special pleading. The attorneys induced him to enroll himself at an Inn of Court. In due time a barrister, he made himself the greatest master of common law pleading that system has ever known. He had no political opinions, nor did he seek riches or advancement. Witty, genial and gay, he had always around him a crowd of students, with whom he was putting cases, answering objections and debating abstruse points. His physical appearance was repulsive. Brandy was his constant drink, varied by a pot of ale always near him. Drunkenness and gluttony had caused a general decay of his body. Hideous sores and an offensive stench made his presence an affliction. Yet the government had such need of his services that North, the Lord Keeper, actually asked him to dinner. Saunders drew the pleadings in the great Quo Warranto case, and caused the attorneys for the City of London to plead upon a point where they were sure to be defeated. Thereupon Saunders drew up an ingenious replication, to which the city demurred. Just as the cause was about to be argued Pemberton was removed and Saunders was appointed, and (incredible as it may seem) he then heard argument upon his own pleadings. The cause was argued for two terms, but when, at the third term, judgment was delivered, Saunders lay dying in his lodgings. His best memorial is his book of reports, the most perfect specimen of such work in our legal literature.
Saunders was succeeded, after an interval, by the noted Jeffreys, popularly considered the worst judge that ever sat in Westminster Hall. But this popular belief cannot be taken in place of the sober facts. He was of an ancient family in Wales. He received the usual education of his time, and attended at Trinity College, Cambridge. He studied at the Middle Temple, and was admitted to the bar at the age of twenty. He at once leaped to a commanding position. He was made Common Serjeant, and later Recorder of London. This was due to his splendid legal talents. He had one of those rare minds which under great masses of evidence seize upon the real issue. He had a marvellous skill in advocacy, and a flowing, impassioned, magnetic eloquence. Added to this was an overwhelming bitterness of denunciation that sometimes appalled his hearers. We know that Sir Matthew Hale was a good judge of lawyers, and we are told that Jeffreys gained as great an ascendency over Hale as ever counsel had over a judge.
To his intellectual gifts, Jeffreys added a noble and stately presence. There are three portraits of him; the first represents him when thirty years old, the next is of Jeffreys in his full robes as Lord Chief Justice, the last shows us the man in his robes as Chancellor. It is a very noble, delicate, and refined face that looks out from Kneller’s canvas. There is birth, breeding, distinction in every line. He must have been a great lawyer; for to Hale’s testimony we may add that of the accomplished judge, a confirmed Whig, Sir Joseph Jekyll; of Speaker Onslow, who bears testimony to his ability and uprightness in private matters; of Roger North, who hated Jeffreys but was forced to admit: “When he was in temper and matters indifferent came before him, he became his seat of justice better than any other I ever saw in his place.” But best witnesses of all are his recorded judgments. The incomparable stupidity of Vernon, the reporter, has destroyed the value of Eustace vs. Kildare and of Attorney General vs. Vernon;1 but his decision in the East India Company’s case is admitted by all lawyers to be a marvel of close legal reasoning. In the House of Lords he saved the Duke of Norfolk’s case, and even his political enemies after the Revolution did not reverse his cases. A master of the common law, he was yet a great chancellor. He promulgated a set of rules in chancery, the best since Bacon’s time. Other of his decisions can be found in the reports of Sir Bartholomew Shower, an excellent lawyer.
No doubt Jeffreys was a hard drinker. So was Lord Eldon, so were many able lawyers in our own country. He was no doubt savage and overbearing at times. He rode roughshod over defendants and their counsel. He hated Puritans and all their works. He was often cruel and remorseless. But even Lord Hale enlivened trials by breaking forth upon witnesses: “Thou art a perjured knave, a very villain! Oh, thou shameless villain!” Jeffreys’ “Bloody Assizes” is the greatest stain on his memory; but no innocent person was punished in those trials. The worst that can be said of Jeffreys may be read in Macaulay’s History. Much of it is true; some of it is untrue; but it all belongs to the spirit of that age of savage disputes and rancorous political hatreds. Yet, after all, Jeffreys was but one of the five judges who sat together on that circuit.
To see Jeffreys at his best, we should see him in the trial of Lord Grey de Werke. Jeffreys’ skill and adroitness in putting in the evidence against the great Whig lord, the brazen seducer of his own wife’s sixteen-years-old sister; his gentleness and exquisite suavity toward his witnesses, his few words of apology to the court for the tears of the victim’s mother, are models of forensic decorum. In his tact, his delicate management, never a word too much, now and then putting a question to bring out some point that had been overlooked, Jeffreys shows throughout the skill of the master.
He prosecuted Lord William Russell and convicted him. His great arts of advocacy simply overwhelmed the defendant; for Russell had a fair trial, and the jury was calmly charged by Pemberton. Jeffreys as judge tried Algernon Sidney, who was convicted upon evidence. Nothing in Jeffreys’ career can compare with Coke’s conduct at Raleigh’s trial, or with Glyn’s when he judicially murdered Penruddock. Even in Lady Lisle’s case, she was condemned on actual, credible testimony, offered in accordance with the rules of evidence.
When Jeffreys returned from his campaign in the west he was made Lord Chancellor and given a peerage. Wright succeeded as Lord Chief Justice, and before him came on the famous trial of the Seven Bishops. The besotted King attempted to abolish the Test Acts by proclamation. Both dissenters and churchmen united against a declaration which would tolerate Roman Catholics. The bishops remonstrated, and the King, against Jeffreys’ advice, caused the bishops to be indicted. The trial came on before the King’s Bench. The defense mustered a great array of counsel. Pemberton, a cashiered chief justice, Levinz, another dismissed judge, who had gone the bloody circuit with Jeffreys, Heneage Finch, son of Lord Nottingham, and Somers, afterwards the great Chancellor, appeared for the defense. Such a throng never appeared again at a trial in Westminster Hall, until Warren Hastings came back from India to meet an impeachment. The bishops were acquitted, and Wright and his fellows were disgraced.
The King filled up his court again; and the legality of martial law in the army then came on for trial before Chief Justice Herbert. At that day in England, in case of a desertion or mutiny, the army officers were powerless, unless they called in the sheriff. But Chief Justice Herbert refused to yield to the King’s wishes, and held that the army could not be governed by martial law. Again the King cleaned out his court. One of his new tools was Christopher Milton (a brother of the poet). The King called upon his judges to hold that the King by proclamation could dispense with acts of Parliament. Jones, the Chief Justice, refused. He told the King that he was mortified to think that his Majesty thought him capable of a judgment which none but an ignorant or dishonest man could give. The King said that he was determined to have twelve lawyers for judges, all of his way of thinking. Jones replied: “Your Majesty may find twelve judges of your mind, but never twelve lawyers.” But the King had now exhausted the public indulgence and he was soon in flight to France.
It would perhaps seem, from the record of this period, that little good could have been accomplished in the development of the law. But this inference would be an error. We have noticed, at the opening of this epoch, a general feeling that jury-trial was worthless. The work accomplished by this age was to improve the methods of jury trials so as to make them promotive of justice. The first thing done in this later period was to make the jury independent, by establishing the rule that they could not be fined or imprisoned for what was conceived to be a false verdict. The second improvement was to give the courts power to grant new trials, and thus to place the verdict under the control of the judge. The final improvement was to establish the rules of evidence. These rules were so framed and moulded as to exclude from the jury all testimony which would improperly influence them, or which did not depend for its credibility upon the veracity of a sworn witness. Above all, the jury was required to proceed solely upon evidence offered in open court, which had been subjected to the test of a cross-examination. It was in the bad times of the Stuarts that these rules were settled. Singularly enough, the first case that is authentic, in excluding hearsay, is a decision by Lord Jeffreys. Although the rules of evidence were amplified by Lord Mansfield, they have not been changed, except by statute, from that day to this. The greatest of forensic orators said in Hardy’s case: “The rules of evidence are founded in the charities of religion, in the philosophy of nature, in the truths of history, and in the experience of common life.” Surely, a generation of lawyers which created and formulated these rules is entitled to some grateful remembrance, and of that generation, the greatest common lawyer was, undoubtedly, the outlawed Jeffreys.
The Period of Reform: From William III. to Victoria1
As soon as the judges who had served under James II. had been removed, after the Revolution of 1688, a return was made to the old Lancastrian doctrine that judges hold their office during good behavior, not during the pleasure of the crown. Some of the judges who had refused to obey the mandates of the King, and in consequence had suffered dismissal, were now restored. Since the Revolution there has never been a removal of a judge by the executive power, nor a single known instance of a corrupt decision. The overwhelming importance of the House of Commons has since 1688 given the great prizes of the profession to lawyers who have been useful to their party in Parliament. The regular preferment for an able lawyer has been from a seat in the Commons to the solicitor-generalship, then to the attorney-general’s place, and finally to the chiefship of one of the law courts or to the office of Lord Chancellor. But the professional and political preferment has invariably come as the reward, not the cause, of professional eminence. Lord Somers, Sir John Holt, Lord Talbot, and Lord Hardwicke were very great lawyers before they received any political reward. Later Mansfield, Thurlow, Eldon, Erskine, Loughborough, Melville, and Ellenborough had become leaders of the bar, before they entered upon a parliamentary career. In the last century, Lyndhurst, Brougham, Tenterden, Cottenham, Denman, Campbell, Westbury, Cockburn, Selborne, Cairns, Coleridge, and Russell all gained their professional and judicial preferment by great legal attainments. The office of Master of the Rolls has been considered, one of the great professional rewards; but the puisne judges in the various common law courts, and later the vice-chancellors, and still later the lords justices of appeal, have not had any immediate connection with parliamentary life.
The wealth of information which we have in regard to lawyers and judges after the Revolution enables us to see far more clearly than in the case of the older judges the characters of the various great lawyers.1 But no doubt the same phenomena are noticeable in the preferment of lawyers to the bench that we should find in the earlier centuries if we had more accurate information. The race has not always been to the swift nor the battle to the strong. Often a leather-lunged, heavy-witted mediocrity, distancing brilliant competitors, has gained a seat upon the bench. Among the judges and lawyers, the same traits we notice to-day were prevalent in these former times. The jealousies among lawyers, the favoritism of judges toward some chosen member of the bar, are continually appearing. A mediocre individual, uttering dull wooden platitudes from the bench, has gained the reputation of a great judge, because his mind was on a level with that of a majority of the bar, although to the ablest lawyers his stupidity has been a constant irritation. The celebrated advocate, on the other hand, in certain instances, when he has reached the bench, has known too much law for the ordinary practitioner; he has been too quick, has leaped to conclusions, has taken one side or the other, and, unconscious of partiality, has been practically unfit to properly weigh conflicting evidence or authorities. The laborious lawyer, who has attained the bench, has often begun a hunt for foolish and irrelevant matters, and has impeded business by a morbid inability to formulate his own conclusions. The haughty, impatient, arbitrary, and overbearing judge, insolent to the bar and savage toward the witnesses, has not been wanting. The judge who has proclaimed his desire for less law and more justice, who has brayed about the people’s and the poor man’s rights, and has violated settled principles and become a judicial demagogue, has needed the rebuke and correction of higher tribunals. Through all judicial history, it is apparent that the true judicial mind, which hears the whole case before it decides, which is capable of suspending judgment until in possession of every consideration of value, which is absolutely unaffected by mere temporary or irrelevant matters, which looks at every case both from the standpoint of the general, fixed, and settled rules of law, but at the same time with an acute sense for right and a real desire to advance justice, is the rarest type of the human intellect.
But one fact about lawyers is a noticeable one. For centuries the common-law lawyers had been a race of men who took little interest in any science outside the common law itself. Noticing this narrowness of mind joined to acute understanding and wide learning in their own field, the great scholar Erasmus had remarked of the lawyers of Henry VII. and Henry VIII., that they were “doctissimum genus indoctissimorum hominum.” So far as we can ascertain, few of them knew anything of any other system of law. But a change was beginning to appear. Chief Justice Vaughan in Charles II.’s reign was once sitting in his court between his two puisnes, when a question of canon law arose. Both puisnes with some pride at once disclaimed any knowledge of that learning, but the Chief Justice, holding up his hands, exclaimed: “In God’s name, what sin have I committed, that I am condemned to sit here between two men, who openly admit their ignorance of the canon law?” Lord Nottingham had illustrated many of his decisions by references to the civil law. Holt obtained the reputation of enormous learning, by his knowledge of the Roman law. In short, from the Revolution onwards it will be found that the greatest of English lawyers are turning to the Roman jurisprudence and grafting its rules upon the indigenous law. Even Bracton comes into his own again, as the one worthy writer upon our jurisprudence.
As we have noted in preceding essays, the law had hitherto attempted its own reform. Without the aid of statutes, the immense array of common-law actions had been transformed into the few actions which we have in contract, in tort, and for the recovery of specific property. The whole chancery system was a natural, not a legislative growth. Even where statutes had attempted some interference with the law, they had produced little result. A fact that is most difficult for the lay mind, or for the inadequately informed legal mind, to comprehend, but is proven by the history of the law, is that the distinctions between law and equity, the distinctions between forms of action, inhere in the very nature of duties and rights and cannot be obliterated by legislation. While the procedure may be generalized, while the forms of actions may be reduced to one general form, while but one tribunal may be provided for applying to a controversy all the relevant rules furnished by the law, nevertheless we must still talk of contract and tort, of law and equity, of damages and specific relief.
The Revolution produced no changes in the legal procedure, except two. The first gave to persons charged with high treason the benefit of counsel and the right to produce witnesses; but as to all defendants prosecuted for felony the age was content to believe that the government would produce all the witnesses and that the presiding judge would act as counsel for the prisoner. The second was a statute of jeofails proposed by the new Chancellor, Lord Somers. Many of the original provisions of the bill were cut out by amendments, but as it passed it contained some improvements. It required a special demurrer to reach errors of form, but the procedure was practically already in that condition. It saved the statute of limitations from running in favor of persons absent from the realm. It gave the creditor the right to sue upon the bond given to the sheriff for the release of the debtor. It prohibited the issuance of process in chancery until the filing of the bill. This last requirement merely enacted a chancery rule of Lord Jeffreys. But a really important feature of the new law was that a defendant was given the right to plead to the declaration as many pleas as he had defences. Another provision enabled the grantee of land to sue a tenant in possession without proving an attornment. There were other provisions of the law, but the foregoing show its general scope. After its passage the energies of reform were exhausted, and all future changes and improvements, until the Benthamite agitation, were made by the judges themselves.
The new Chief Justice, Sir John Holt, had carefully studied the civil law. He was able to introduce much of the law merchant under the guise of custom. Holt’s decisions became a part of the common law, although the form in which the change was made rendered it necessary in many of our States to provide by statute for the rights of the indorsee of negotiable paper. Under other heads of the law, the same judge was able to assist the narrow rules of the common law by the enlightened distinctions of the civil law. In Coggs vs. Bernard1 the mediæval law of assumpsit, shown in the opinions of the puisnes, met the civil law in the opinion of Holt, and Bracton was rehabilitated by the Chief Justice as an authority in the English law.
The beginnings of a law of agency are apparent in the decisions upon the new business of banking. During the Middle Ages and up to the Restoration, the strong boxes of the merchants and landowners and their bailiffs provided the only banking facilities; but the practice adopted by goldsmiths of keeping the money of depositors, and the use of orders upon goldsmiths, which are our modern bank checks, came into vogue. The notes of goldsmiths began circulating as money, while the Bank of England, which was founded soon after the Revolution, began to issue its notes. The Childs’ banking house, originally a goldsmith’s shop, still remains as the oldest banking business in England.
The earlier cases1 treat all questions of agency in the terms of the law of master and servant. Historically, of course, it is impossible to separate the law of servants from that of agents; yet we now recognize the plain distinction in legal usage that the word “servant” is used only in regard to a liability in tort, while the word “agent” is used as to a liability arising out of a contract or its correlative, deceit. The word “agent,” borrowed from the continental jurisprudence, gradually came into common use, but the manner of the development of the law of agency has much to do with the confusion which arises even to-day from the failure to discriminate between an agent and a servant, in the above sense.
In 1733, during the chancellorship of Lord King, the lawyers were finally compelled to use their mother tongue. The record now spoke in English instead of in Latin, and the declaration and subsequent pleadings entered upon the roll now became literal translations of the old Latin forms. The advocates of the bill were forced to overcome a strong opposition from the judges. Lord Chief Justice Raymond on behalf of all the judges opposed the change. In later times both Blackstone and Ellenborough regretted the Act. Ellenborough asserted that it had a tendency to make attorneys illiterate; but surely a man must be misguided, indeed, who considers “law Latin” a literary language.
The influence of the civil law was constantly increasing. Lord Talbot, the best beloved of all the English chancellors, was learned in the civil law. Lord Hardwicke studied the Corpus Juris Civilis and the Commentaries of Vinnius and of Voet. Lord Camden pursued the same systematic study of the civil law. Many of Thurlow’s judgments are adorned by illustrations taken from the civil law; though it is said that those portions of his opinions were supplied by the learned Hargrave, who acted as Thurlow’s “devil” for some years.
Yet none of these men did anything for law reform. Hardwicke, as great a chancellor as Nottingham or Eldon, never proposed a single reform. Henry Fox, speaking of Hardwicke, said: “Touch but a cobweb of Westminster Hall, and the old spider of the law is out upon you, with all his younger vermin at his heels.” Lord Camden spent his energies in an attempt to make the jury judges of both law and fact in prosecutions for libel. In our helplessness in the presence of unjustifiable libels on every sort of person, we are to-day much inclined to regret his work and the subsequent legislation. Camden’s insistence upon punitive damages has made a large figure in the subject of our damage law. Lord Thurlow invented and perfected the equitable doctrine as to the separate estate of married women, which is the basis of to-day’s married-women statutes. Lord Loughborough’s attitude toward law reform is defined by his undisguised horror of Bentham; while Lord Eldon steadily set his face against every proposal of reform.
The eighteenth century in Europe was the age of a benevolent autocracy in politics and a cultivated optimism in literature. The latter trait is markedly apparent in England in the legal sphere.
The great mass of the nation and of the lawyers was amply satisfied with the English constitution and its laws. The language used by the worshippers of our own constitution is apparently borrowed from the older worship of the English constitution. Blackstone delivered his famous lectures at Oxford in 1763, and published them from 1765 to 1769. In a broad and comprehensive way, with ample learning, he sketched the whole field of the law. The literary charm of his easily flowing periods made his Commentaries general reading among even laymen. Criticism had not demonstrated any of Blackstone’s errors or fallacies. Englishmen, reading the lectures, swelled with pride to hear that “of a constitution, so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise, which is so justly and severely its due.” After a description of its solid foundations, its extensive plan, the harmony of its parts, the elegant proportion of the whole, Blackstone with impressive eloquence exhorted his countrymen: “To sustain, to repair, to beautify this noble pile, is a duty which Englishmen owe to themselves, who enjoy it, to their ancestors, who transmitted it, to their posterity, who will claim at their hands this the best birthright and the noblest inheritance of mankind.”
But even as Blackstone was writing these sonorous periods, two great reformers were at work. One of them, Lord Mansfield, was working by the slow and careful method of judicial legislation. The other, Jeremy Bentham, was storing up that great supply of reforming material, which was to supply Brougham and Romilly in the next generation. Mansfield’s work is not found in the statutes; it is recorded in the law reports. Bentham derided the judge-made law, and maintained that all the law should be written on the statute books. Mansfield followed the traditional practice of the English lawyer; Bentham turned to the continental codifiers. Mansfield extended and transformed old principles, building up whole branches of the law by the expansion of accepted rules. Bentham’s idea of a change was to wipe out all existing law, by a set of codes whose words should be the sole rule of decision.
William Murray, the first Earl of Mansfield, was born in 1705. The fates conspired to make him the greatest of lawyers. His family was almost the oldest in Scotland. Compared with these de Moravias or Murrays, the Bourbons, the Hapsburgs, and the Hohenzollerns are things of yesterday; even the house of Savoy is not older. A younger branch of the Murray family had the title of Viscount Stormont, and the Chief Justice was a younger son of that house. Early in life he was sent to England, to be educated, and Dr. Johnson always accounted for his marvellous capacity by saying that “much may be made of a Scotchman, if he is caught young.” The youth was carefully educated at Winchester School, and then at Christ Church, Oxford. He was entered at Lincoln’s Inn, and while there carefully studied the civil law; he always maintained it to be the foundation of jurisprudence. He studied with no less care the common law, but he had no particular reverence for it. Its oracle, Coke, he disliked; but he took pleasure in Bracton and Littleton. He was thoroughly conversant with the commercial code of France. His knowledge of ancient and modern history was singularly accurate and profound. At the same time he cultivated his literary taste by intimate association with men of letters. His physical constitution became robust and enabled him to sustain great labor. His mental faculties were acute and well-trained, his industry untiring, his memory capacious. When we add to these qualifications a marvellous talent for oratory and a voice of silvery clearness, we have described the best qualified man who ever undertook the profession of law.
Eminence at the bar was assured. He rapidly achieved the highest professional and pecuniary success. He passed from the office of Solicitor General to that of Attorney General, and became leader of his party in the House of Commons. He chose as his reward in 1756 the post of Lord Chief Justice, and held the place until his retirement in 1788. His career upon the bench is common knowledge. The law of shipping, of commerce, and of insurance was molded by him. The common-law action of assumpsit was expanded until it embraced a recovery upon almost every sort of pecuniary obligation. The law of evidence he amplified and illustrated, leaning strongly to the view that objections to testimony went rather to the credibility than to the competency of witnesses. By one decision he created the whole law of res gestae in evidence. His broad cultivation gave him a singularly free and open mind. He could not endure the laws against dissenters or Roman Catholics. He would not permit a priest to be convicted of celebrating the mass. In the “no popery riots” his mansion was burned by a Protestant mob. Yet Lord George Gordon, who was tried for high treason in assembling the mob, voluntarily chose to be tried before Lord Mansfield. His calm, colorless charge to the jury, no less than Erskine’s defense, caused the prisoner’s acquittal.
As a trial judge, his demeanor was blameless. His keenness of mind, his great experience, his firm but courteous manner, his great patience, his impartial treatment of all lawyers, his want of passion and enthusiasm, his power of dispatching business, his absolute freedom from all influence, made him an ideal judge. His decisions, with their fine literary finish, combining the polish of the scholar with the learning of a profound lawyer, make the reports of Burrow and Douglas the great repository of leading cases. In the thirty-three years he served on the bench, no bill of exceptions was ever tendered to one of his rulings; counsel being perfectly satisfied that when the motion for a new trial came before the full bench, the evidence would be fairly stated. Another singular fact is that he had but two judgments reversed, either in the Exchequer Chamber or in the House of Lords. Most rarely, too, did he allow a reargument of a case, and generally his decisions were made upon the conclusion of the arguments.
Lord Mansfield was singularly free from one fault that has characterized some of the greatest judges. He showed neither favoritism nor envy toward any of the leaders of the bar. Sir Matthew Hale had Jeffreys for his favorite, while he hated such men as Scroggs and Wright. Jeffreys, while he had no favorite, displayed violent antipathies. Lord Macclesfield took under his patronage Philip Yorke, afterwards Lord Hardwicke, and made his fortune at the chancery bar. Lord Kenyon had his fortune made by Thurlow, for whom he acted as “devil,” and by Dunning, many of whose opinions he signed in Dunning’s name. Kenyon while Lord Chief Justice was completely under the sway of Erskine, who induced him to charge the jury in one case that the question of libel or no libel was for the jury. Kenyon hated Law (afterwards Lord Ellenborough), and did whatever he could to oppose and humiliate that most accomplished advocate. Law retorted by sneering at Kenyon’s bad Latin, his cheap clothes, his parsimonious habits and general lack of gentlemanly accomplishments. Law delighted in addressing Latin quotations to Kenyon on the bench, and the judge, not understanding the Latin, was always in a quandary, whether to be gratified at the tribute to his learning or to resent the quotation as ridiculing some of his defects. Ellenborough while Lord Chief Justice reserved his most caustic utterances for Campbell; but Campbell revenged himself by writing a life of the judge. Lord Eldon had no favorite, but his kindest demeanor was shown, singularly enough, toward Romilly. Lord Tenterden made Scarlett an especial recipient of his favors, and lost no opportunity to put down Copley (afterwards Lord Lyndhurst). Lyndhurst on the bench was without any partiality or enmity among the lawyers. Brougham, himself never any judge’s favorite, hated Sugden, afterwards Lord St. Leonards, and missed no opportunity to sneer at his prosiness.
Had there been a succession of judges like Mansfield, the law would not have needed much statutory reforming. But Mansfield was succeeded by Kenyon, a very narrow-minded lawyer, while in the chancery court Lord Eldon was soon to rule supreme. Both of them were accustomed to talk slightingly of the “late loose notions” that had prevailed in Westminster Hall. Not the least debt the profession owes to Mansfield is his persuasion of Blackstone to deliver his lectures at Oxford. Afterwards Mansfield secured Blackstone a place in the Common Pleas. Yet even Blackstone was the chief factor in the Exchequer Chamber in reversing Mansfield’s ruling, where he laid his reforming hand upon the ark of the covenant of the real-estate lawyers, and attempted to make the rule in Shelley’s case yield to the clearly expressed intent of the testator.
It was after Mansfield’s retirement that the echoes of the French Revolution caused those State prosecutions which furnished the opportunity to Erskine to demonstrate his greatness as a forensic orator. It is a singular fact that the greatest English judge and the greatest English advocate were both Scotchmen of high descent. Erskine was a member of the house of the earls of Mar, the oldest title in Europe which has survived to our times. But he had not the fine training of Mansfield. The poverty of his father, the Earl of Buchan, caused Erskine at an early age to enter the army, and it was not until he was twenty-seven that he turned to the law. Again the profession has Mansfield to thank for his advice to the young subaltern. The uninterrupted career of Erskine at the bar justified Mansfield’s judgment. Perhaps the world may see again as perfect a forensic orator, but doubtless up to our time the Roman Cicero is the only advocate who can be found to rank with Erskine.
While Mansfield was on the bench, Jeremy Bentham had been writing his epoch-making works. He was the son and grandson of attorneys, members of the inferior grade of the profession. He was educated at Westminster School and at Queen’s College, Oxford. At twenty-five he entered Lincoln’s Inn. He attended the court of King’s Bench and listened, as he tells us, with rapture to the judgments of Lord Mansfield. He heard Blackstone’s lectures at Oxford, but he says that he immediately detected the fallacies underlying those smooth periods. Fortunately, he was the possessor of an ample fortune which gave him leisure for study. Becoming disgusted with the profession, and willing to disappoint the wishes of his father, who had hoped that his son’s great talents would at last place him in the marble chair, Bentham voluntarily relinquished all effort to take an active part in life, either as a lawyer or legislator, and devoted himself to the study of the subjects upon which legislation ought to act and the principles upon which it ought to proceed. His ample means to employ secretaries saved him from a life of drudgery. He gathered around him a small but brilliant company; prominent among his circle were Romilly, Mackintosh, and Brougham, the exponents of his views of legal reform.
Bentham’s legal reforms were but a small part of his activity. He was a philosopher, who claimed by his one principle to have solved the puzzle of human life and destiny. His utilitarian formula of the greatest happiness of the greatest number is but a restatement of the tenet of a Grecian school of philosophy. The lawyers for centuries had been applying the principle under the form of their maxim, “salus populi est suprema lex.” It was this dogma that gave a practical aspect to Bentham’s views of law reform. He is one of the few reformers of law who was widely read and instructed in the matter he was trying to reform. He had the capacity of the jurist to grasp legal principles, but with keen logic and inventive mind, he threw a flood of new light upon old stock notions in the law. Having mastered the practical doctrines of the law he took (in Brougham’s phrase) “the mighty step of trying the whole provisions of our jurisprudence by the test of expediency.” He tested its rules and arrangements by the circumstances of society, the wants of men, and above all by the promotion of human happiness.
Long years of study are contained in Bentham’s writings on legislation. In 1776, at the age of thirty-two, he published his Fragment on Government, of which Lord Loughborough said that it formulated a dangerous principle. His Principles of Morals and Legislation came out in 1789. His Art of Packing was published in 1821. His Rationale of Judicial Evidence saw the light in 1827, when he was seventy-nine. These works give but a small part of his labors on the law; bold and hardy indeed is the man who will undertake to read all that Bentham wrote upon the deficiencies of our legal system.
He had little respect for the law as he found it. The separate jurisdictions of law and equity were to him an absurdity. A bill in chancery he characterized as a volume of notorious lies. The technical common law procedure and the occult science of special pleading were relics of barbarism. He assaulted the rules excluding the testimony of parties and interested witnesses. His zeal to moderate the criminal law was a matter of humanity. The jury system did not meet his entire approval. He advocated local courts presided over by a single judge trained to judicial work, without a jury, except when specially demanded, and then only as a security against class feeling, governmental oppression or corruption. At first he was ignored by the profession as a foolish and visionary man, who put his ideas in very bad English. He did manage to secure an act against cruelty to animals, and this was all. Yet when he died in 1832 he was revered as the founder of modern legislation.
His disciples devoted themselves to his practical reforms on the side of the most important part of the law,—the means which it provides for the enforcement of rights and the redress of wrongs.1 Easily accessible courts, a cheapening of legal remedies, and the prevention of delays, were proposed as matters of the first moment. Judicial evidence was to be regulated, so that it would be certain that all the testimony could be heard. Pleadings were to be curtailed and simplified, fictions were to be abolished, sham pleadings made impossible, and all distinctions in forms of actions and in the jurisdiction of courts were to be swept away. For “glittering generalities” Bentham’s mind had no tolerance. He dissected with more or less severity the fallacies of our Declaration of Independence. He refuted the so-called self-evident truths that all men are created equal, that they are endowed with certain inalienable rights, among them the right to life, liberty, and the pursuit of happiness.
The struggle for reform had been initiated by Sir Samuel Romilly, in his effort to mitigate the penal code. Year after year Romilly passed his bill through the Commons; but it always failed in the Lords before the opposition of Eldon and Ellenborough. Eventually he must have succeeded, but his wife’s death in 1818 plunged him into such profound grief that in a moment of madness he took his own life. His practice at the bar was solely in the chancery court. The favor of Lord Eldon made him the leading chancery barrister. We have preserved to us the substance of his argument in a great leading case.1 Lord Cottenham, afterwards, speaking from the bench2 of Romilly’s celebrated reply, said: “From the hearing of it, I received so much pleasure, that the recollection of it has not been diminished by the lapse of more than thirty years.” Romilly’s winning personality, his charming manners, his uprightness and love of humanity, his really marvellous eloquence, make him one of the most interesting figures at the English bar. His son Lord Romilly, the well-known Master of the Rolls, has made the name a noted one in the judicial records.
A greater than Romilly now took up the burden of reform. Henry Brougham was, perhaps, at certain times, the most effective orator of the first half of the nineteenth century; but he was never a close and accurate lawyer. He had nothing like the success at the bar of Law, the defender of Warren Hastings, or of Erskine. He had neither steadiness nor application in ordinary practice. But he was the foremost figure in the most celebrated trial of the century. When George IV. attempted to rid himself of his wife, Caroline of Brunswick, by a bill of pains and penalties, she was defended by Brougham, Denman, and Wilde, while John Singleton Copley assisted in the prosecution. All of them attained the highest honors; three of them were chancellors and one a lord chief justice. Both Brougham and Denman on that trial made splendid speeches, but the finest argument from a lawyer’s standpoint was Copley’s.
Romilly, Brougham, and Mackintosh found the greatest obstacle to their work for law reform to be the presence of Lord Eldon in the House of Lords. Eldon himself had smarted under the attempts to reform his own court of chancery. His long chancellorship had witnessed a great increase in the business of the chancery court. His excessive deliberation clogged the calendar with unheard cases. Many suitors in despair abandoned their cases. Even when a cause had been heard, the decision was long in coming, while the vast expense of chancery proceedings was frightfully oppressive. Regularly, at the opening of each Parliament, Michael Angelo Taylor made his motion for an investigation of Eldon’s court. After Taylor gave up the fight, a barrister named John Williams took up the annual motion. In the debates the chancery court was roughly handled, although Eldon, as a judge, received every man’s praise. Lord Eldon was much annoyed at the complaints, but he resolutely opposed all change in his own court as well as in the common law courts. It perhaps is to his credit that he actually concurred in abolishing trial by battle; but he contested the statute taking away the death penalty for larceny. He opposed all changes in the law of real property. He lamented the bill abolishing fines and common recoveries, and even Sugden, the great authority on real-estate law, pronounced the new plan impossible. The bill abolishing sinecure offices in the chancery and simplifying certain chancery proceedings caused Eldon such anguish that he wrote that he would not go down to Parliament again. Railroads he denounced as dangerous innovations. The abolishment of rotten boroughs was to him a shocking invasion of vested rights. He exclaimed over the Reform bill: “ ‘Save my country, Heaven,’ is my morning and evening prayer, but that it can be saved, cannot be hoped.” The proposal to abolish the difference between wills of real and personal property excited Eldon’s greatest alarm. He frustrated the efforts of Romilly to mitigate the penal code. He resented reforms in the common law procedure as encroachments upon equity. In the general domain of politics Eldon was the same sort of obstructionist. He bitterly opposed the repeal of the Test Act, and when it was proposed to remove the disabilities of Roman Catholics, he declared in the House of Lords: “If I had a voice that would sound to the remotest corner of the Empire, I would re-echo the principle that, if ever a Roman Catholic is permitted to form part of the legislature of this country, or to hold any of the great executive offices of the government, from that moment the sun of Great Britain is set forever.” Such was the attitude toward reform of the man who, if we look alone at the substance of his decisions, must be called the greatest English chancellor.
After Brougham had quarreled with his party, the burden of passing the bills for the promised legal reforms fell upon Sir John Campbell. The ablest opponent of many of these measures was the Conservative leader, Lord Lyndhurst. This great man was born in Boston just before the Revolution. His father was the painter Copley, his mother a daughter of that unfortunate Boston merchant whose cargo of tea was dumped into Boston harbor.1 Lyndhurst was taken to England, educated at Cambridge, and called to the bar from Lincoln’s Inn; he slowly worked his way to the head of the profession. On the Queen’s trial he summed up the evidence in a speech which as a piece of legal reasoning far excels Brougham’s or Denman’s. As a judge he demonstrated that he was gifted with the finest judicial intellect that England can show in the nineteenth century. We are interested here solely in his attitude toward reforms in the law.
When Attorney General he had proposed a bill for reforming the chancery court, which as all parties were compelled to admit, stood in need of reform. In 1826 he made a great speech against allowing counsel for the accused in trials of felony to address the jury; but a few years later he concurred in such a change in the law. It should be remembered that Justice Park threatened to resign if a bill allowing counsel to the accused were passed, and that twelve of the fifteen judges strongly condemned the enactment. Most of the judges opposed the provision allowing defendants in criminal cases to produce witnesses.
In the debates on the Reform Bill there appears a practice in one of the rotten boroughs which throws a curious light on prevalent political morality. Lyndhurst, amidst the laughter of his hearers, read that part of the evidence which showed that Campbell, the eminent reformer, had paid for his election by the Stafford constituency, to five hundred and thirty-one out of five hundred and fifty-six electors, the sum of three pounds ten shillings for a single vote, and six pounds for a plumper. Campbell’s defence was that, “this could not properly be called bribery, for he had simply complied with the well-known custom of paying ‘head money,’ and the voter received the same sum on whichever side he voted.” During another debate Lyndhurst condemned the practice of chancery counsel in going from one court to another, and being actually engaged in carrying on causes of importance in two courts at the same time. But this sort of evil was no less marked in the common law courts.
Lyndhurst opposed the original county court bill, which after many changes and improvements has proved of such value in England; yet Lyndhurst appointed both the commission to enquire into the law of real property and another commission to investigate common law procedure. In 1852, when the Common Law Procedure Act was under discussion, both Lyndhurst and Brougham opposed the bill because it did not sweep away all written allegations. As a general rule, Lyndhurst was a friend to reasonable changes in the law, and most of the later reforms had his able advocacy.
Gradually the chancery court was reformed. Its fees and expenses were first reduced. In accordance with the report of a Chancery Commission composed of such lawyers as Lord Romilly, Turner, James, Bethell, and Page-Wood, the masters in chancery were abolished. Later, issues of law were done away with, and the evidence was required to be taken orally before examiners. Finally, examiners were abandoned for a system of evidence given in the form of affidavit for certain proceedings, or given orally before the judge.
As early as 1843 the law of evidence was changed by Lord Denman’s act so as to permit interested witnesses to give testimony. In 1851 a party, as well as the husband or wife of a party, became a competent witness in a civil case. All the common law judges and the Chancellor, Lord Truro (better known as the barrister, Wilde, who appeared with Brougham and Denman for Queen Caroline), opposed the bill. Even Lord Campbell, who gave the act its first trial, said: “It has made a very inauspicious start; one party, if not both parties, having hitherto been forsworn in every cause.” Finally, in 1898, the defendant in a criminal case was made a competent witness on his trial.
The original changes in the rules of pleading at common law were made under rules formulated by the judges. In 1860 all common law courts were given equity powers as to all questions at issue before them. This bill was violently opposed by Lord St. Leonards, but was supported by all the common law judges. Power was given to all the common law courts to examine witnesses de bene esse, to order the discovery of documents, and to compel an examination of a party by his opponent. In this way the whole distinctive auxiliary jurisdiction of equity was swept away.
Finally, the Judicature Commission made its report, and the two great lawyers, Lord Selborne for the Liberals and Lord Cairns for the Conservatives, proposed and carried the Judicature Act of 1873. All the historical courts of England were combined in a single High Court of Justice. It was given a Chancery Division, a King’s Bench Division, a Probate, Divorce and Admiralty Division.1 Above the High Court of Justice was constituted a Court of Appeal, and from the Court of Appeal a further appeal lay to the House of Lords. All branches of the High Court of Justice were given power to administer both legal and equitable relief, and wherever there was any conflict between the rules of equity and the rules of law, equity was to prevail. Power was given to transfer a cause from one division to another, so that Lord Cairns could say:2 “The court is not now a court of law or a court of equity, but a court of complete jurisdiction.” The result of the Act, it was asserted, “has been in the highest degree satisfactory, and has resulted in flexibility, simplicity, uniformity, and economy of judicial time.” The final result of the legislation is said by Lord Bowen to be, “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.” It is curious to note that the learned Foss mournfully recorded the Judicature Act. He deplored it as a restoration of the old Norman Aula Regis.
Thus we see that practically the whole of the Benthamite series of reforms has been carried out. In the course of a century, step by step, the whole face of the formal portion of the English law has been changed. And yet, as one looks back on the history of the law, he is compelled to admit that at any given time the system of law was fully as good as was merited by the people whom it governed. The highest and best index to the steady progression of the race is the continued improvement in jurisprudence. To the formalism of the old law we owe it that our substantive law is what it is. The growing rigidity of the common law procedure produced that equity system which borrowed so heavily from the Roman jurisprudence. To the differing jurisdictions of law and equity we are indebted for a progress which was achieved by the careful weighing of the one system against the other. Even the rules of evidence which excluded the testimony of interested witnesses and of parties to the litigation have borne their full fruit in assisting in the growing veracity of our race. The cruelties of the criminal law did their work in making our criminal law the most mercifully administered system of public punishment.
It is more than a coincidence that the reorganized procedure should begin its career in a new home. In 1882 Westminster Hall was finally abandoned for the new Courts of Justice. The lawyer who loves the traditions of his profession cannot refrain from regret when he parts with Westminster Hall, or when he sees the extinction of that ancient Order of the Coif which had endured for seven hundred years. Appropriately enough the new Courts stand in the midst of the ancient legal university. To the north rise the towers of Lincoln’s Inn, and across the Strand to the south stand the Middle and Inner Temple. Surrounded by so many legal memories, dense, indeed, must be the lawyer who is not moved to be worthy of that science of administering justice which has written the most glorious pages of English history.
A CENTURY OF ENGLISH JUDICATURE, 1800-19001
From the Beginning of the Century to the Common Law Procedure Act of 1852
FAR into the nineteenth century the administration of English law was characterized by methods and aims which belonged to the past. The traditional division between law and equity, in courts having no common historical origin and administering justice on principles essentially unlike, went far beyond the requirements of a rational division of labor. Law and equity applied divers rules to the same subject matters, and afforded different remedies for similar wrongs. In consequence of the refusal of the common law courts to recognize claims and defences which equity allowed, judgments obtained at common law were often nullified by injunctions obtained in equity. Theoretically the two jurisdictions were well defined, but in practice there was often uncertainty as to the proper forum. Suits in chancery were constantly dismissed because it appeared at the hearing that there was a remedy at law, while plaintiffs were non-suited at law because they should have sued in equity. Even when he found himself in the right forum, the perplexed litigant was driven backward and forward from law to equity in order to obtain complete redress. Whenever it was sought to prevent a threatened injury, to preserve the subject matter of litigation intact, or to discover documents, the common law was compelled to resort to equity to support even a legal claim. In consequence of its recognized incapacity for the determination of questions of fact, the court of chancery, in turn, constantly availed itself for such purposes of the assistance of the common law courts.
The three ancient superior courts of common law flourished side by side, although by various devices they had gradually acquired concurrent jurisdiction over personal actions. The Court of King’s Bench still maintained jurisdiction of civil and criminal cases alike, and had supreme authority over all inferior tribunals with its weapons of mandamus and prohibition. The Court of Common Pleas retained jurisdiction over the remaining forms of real action, and the Court of Exchequer still retained in revenue, equity and a few other matters a separate jurisdiction. Notwithstanding the pressure of a rapidly increasing volume of litigation, these courts, in accordance with an antiquated system, sat during only four short terms of three weeks each. Their procedure was based upon the system of special pleading, which, however admirable as a species of dialectic, inevitably promoted excessive technicality and absorption in mere forms. A system which based its claims to consideration upon its precision, it was nevertheless honeycombed with fictions. Just claims were liable to be defeated by trivial errors in pleading, by infinitesimal variances between pleading and proof, and by the absence or presence of merely nominal parties. The arbitrary classification of actions was another pitfall into which the most wary sometimes fell. If a surprise occurred at nisi prius, the court was unable to adjourn the proceedings a single day. And, as a crowning paradox, a fundamental rule of evidence excluded absolutely the testimony of all witnesses who had the remotest interest in the result. “The rules of evidence were so carefully framed to exclude falsehood that very often truth itself was unable to force its way through the barriers thus created.”
The lofty standard of right which chancery held out to suitors was apt to be an ignis fatuus luring them on to further expense and delay. In consequence of its application of a uniform procedure to contentious and administrative business alike, persons between whom there was really no dispute were compelled to engage in useless contests. Equity pleadings, like those at common law, were marvelous specimens of tautology and technicality. Evidence was gathered by means of written interrogatories, and throughout the whole contest the litigants groped after one another in the dark. No litigant entering into a chancery suit with a determined adversary could have any reasonable hope of living to witness its termination. Everybody even remotely interested was a necessary party, and whenever one of these parties died pending suit, bills of review or supplement bills were necessary to restore the symmetry of the litigation.1
During the first quarter of the century Lord Eldon (1801-6; 1807-27) reigned supreme in chancery. Time has been so busy with Eldon’s shortcomings that there is danger of losing sight of his eminent abilities. He possessed in a degree seldom surpassed some of the highest qualities of judicial excellence: quick apprehension, retentive memory, vast technical learning, a judgment which neither perplexity nor sophistry could confound, and an industry never enervated by luxury nor disturbed by passion. His understanding was capable of feats of metaphysical acumen and subtlety that would have enlisted the admiration of the schoolmen by whom equity was originally administered; but this was not in his case an advantage. Beyond his profession he was ill read, untraveled and without knowledge of the world. Aside from the performance of the political duties attached to his high office, he devoted himself to the law with entire singleness of purpose and indefatigable industry.
The vast arrears in chancery which accumulated during his administration is the most serious blot on his reputation. It would be an injustice to the memory of a really noble character to fix upon him the sole responsibility for that monstrous denial of justice. The chancery system had never been distinguished by despatch, and the rapid and sustained increase in litigation during Eldon’s time accentuated the delay which has come to be associated with his name. The arrears in chancery were due, in part, to the state of the law, to the insufficiency of the time applied to judicial business, and to the want of an adequate number of courts. Lord Eldon was a powerful political officer as well as a judge, and during his time the quasi-political duties of his office were particularly onerous. The investigation of the Berkeley and Roxburghe peerage claims and the trial of Queen Caroline are illustrations of the extra-judicial demands made upon his time. Slight relief was eventually afforded by the appointment of a deputy speaker of the House; but the ultimate establishment of a vice-chancellor’s court was not an immediate success, and it was many years before the master of the rolls was enabled to render any effective assistance. Considering the vast political power that Lord Eldon exercised in the cabinet councils, it is, however, a deep and permanent reproach upon his reputation that he did practically nothing to remedy the chancery system. And it must be admitted that Lord Eldon’s judicial methods were dilatory in the extreme. No one was ever better qualified by nature and by training to arrive at a speedy decision. Indeed, during his short term in the Court of Common Pleas he showed a capacity for prompt decision which contrasts curiously with his marked indecision in chancery. His delay was really due, not so much to want of readiness in reaching a decision, as to dilatoriness in formulating his opinion. The fact that this delay was due in large measure to his extreme conscientiousness does not affect the result, although it does to some extent relieve his memory. It may be well to quote his own justification as given in his diary:
“During my chancellorship I was much, very much, blamed for not giving judgment at the close of the arguments. I persevered in this, as some thought from obstinacy, but in truth from principle, from adherence to a rule of conduct, formed after much consideration, as to what course of proceeding was most consonant with my duty. With Lord Bacon, ‘I confess I have somewhat of the cunctative mind,’ and with him I thought that ‘whosoever is not wiser upon advice than upon the sudden, the same man is no wiser at fifty than he was at thirty.’ I confess that no man had more occasion than I had to use the expression which was Lord Bacon’s father’s ordinary word, ‘You must give me time.’ I always thought it better to allow myself to doubt before I decided, than to expose myself to the misery of doubting whether I had decided rightly and justly. It is true that too much delay before decision is a great evil. But in many instances delay leads eventually to prevent delay: that is, the delay which enables just decision to be made accelerates the enjoyment of the fruits of the suit; and I have some reason to hope that in a great many cases final decision would have been much longer postponed if doubts as to the soundness of original judgments had led to rehearings and appeals, than it was postponed when much and anxious and long consideration was taken to form an impregnable original decree. The business of the court was also so much increased in some periods of my chancellorship that I never could be confident that counsel had fully informed me of the facts or of the law of many of the cases. There may be found not a few instances in which most satisfactory judgments were pronounced which were founded upon facts or instruments with which none of the counsel who argued the cases were acquainted, though such facts and instruments formed part of the evidence in the case.”
Accordingly, he was given to reviewing a case in all conceivable aspects long after he had in fact exhausted the actual issue; and the reports are full of instances where in matters of difficulty he laboriously examined the whole volume of cases connected with the topic under consideration.1 Hence his decrees and opinions are so overlaid with fine distinctions and limitations that the ratio decidendi is not always easy to find. At no stage of his career did he ever display any evidence of the perspicuities, much less the graces, of literary style. So inextricably parenthetical and over abundant in qualifications is all his work that one can appreciate the feelings of Horne-Tooke when he declared that he would “rather plead guilty on a second trial than listen to a repetition of John Scott’s argument” for the prosecution. This is certainly a serious defect in any judge; and if the guiding principles of Eldon’s judgments had been as clearly enunciated and in as general terms as those of Hardwicke, the volume of his decisions, the care with which he considered them, the weight of his authority and the force of his example, would have gone far to remove the blight of uncertainty which rested upon the law in his day.
But with all their involution in mere phraseology Lord Eldon’s decisions, which extend through thirty-two volumes of reports, are, in substance, monuments of learning, acumen and practical application of equity. His judgments were seldom appealed from and hardly ever reversed; and, except where the law has since been altered by statute, time has not materially impaired their authority. Out of the vast body of his work, covering the whole equitable jurisdiction, it will suffice to call particular attention to the refinement and precision which he gave to the administration of estates in chancery and in bankruptcy, to the equities of mortgagors and mortgagees, to the remedy of specific performance, and the exemplary liberality with which he construed charitable bequests. Like many of his contemporaries, Eldon had very crude ideas of trade; the extent to which he pushed the ancient doctrines of forestalling and regrating seems, in this day, ridiculous. Nevertheless, his historical position must always remain conspicuous, for he definitely brought to a conclusion the work of binding down the chancellor’s discretion. “The doctrines of this court,” he said in Gee v. Pritchard, 2 Swanst. 414, “ought to be as well settled and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this court are to be changed with every succeeding judge. Nothing would inflict or give me greater pain in quitting this place than the recollection that I had done anything to justify the reproach that the equity of this court varies like the chancellor’s foot.” From his time onward the development of equity has been effected mainly by strict deduction from the principles of decided cases, and the work of succeeding chancellors has been practically confined to the elaboration of these principles by repeated review and definition.1
The first competent successor to Eldon was Cottenham. Lyndhurst (1827-30; 1834-35; 1841-46) was a consummate orator, but he had no training in equity and shone principally in politics. Brougham’s chancellorship (1830-34) was only an incident in his varied career. As a statesman he has left an abiding mark on the English legal system. For nearly fifty years he struggled with indefatigable industry and extraordinary ability in the cause of reform. The vast scheme of law reform which he laid before parliament in 1828 bore ample fruit in after times. The overthrow of the cumbrous and antiquated machinery of fines and recoveries, the abolition of the Court of Delegates and the substitution for it of the Judicial Committee of the Privy Council, the institution of the Central Criminal Court and the Bankruptcy Act, are a few of his herculean labors. Although he always upheld the cause of liberty and humanity, his character carried little moral force. As chancellor he worked with extraordinary energy, and expedited the work of the court in marked contrast with Eldon. But he had been trained in the common law, and was little fitted either by learning or by temperament for the judicial duties of the office. “If he had known a little law,” said the caustic St. Leonards, “he would have known a little of everything.1 Waring v. Waring, 6 Moo. P. C. 341, is a characteristic specimen of his judicial style.
Cottenham (1836-41; 1846-50) brought to the discharge of his duties a complete mastery of the existing principles and practice of the court of chancery, which he regarded as the perfection of human wisdom. Outside this sphere his learning was limited; and his mind was vigorous and sound rather than broad and subtle. He was an able and painstaking, if somewhat cautious, judge.2 His successor, Truro (1850-52), a learned but plodding lawyer, left the Court of Common Pleas, where he was serving with credit, to assume the chancellorship, for which he had no particular qualifications. He sacrificed his life in attempting to cope with the work. Lord St. Leonards (1852), who next held the seals for a brief period, within his limits realized as nearly as possible the ideal of an infallible oracle of the law. In complete contrast to Brougham, who knew a little of everything, St. Leonards knew a great deal of one thing and little besides. In comprehensive and accurate knowledge of the law of real property he stood for forty years without a rival. His judgments were always delivered promptly, without notes, and were seldom reversed. Yet it must be admitted that, from the technical character of the subject and his apparent lack of general culture, they are dry reading.1 St. Leonards was more competent than any of his contemporaries to reform the law of real property, but he seems to have been quite contented with it as it was. He literally lived in the law during his lifetime and bequeathed to it a leading case upon his death. His will could not be found, and its contents were established by oral evidence. Cranworth (1852-58), whose professional training had been in chancery, came to the woolsack after his long experience as a baron of the Exchequer. He thus combined a large acquaintance with both systems. He was a man of high character and a sound and acute judge. His extreme caution and timidity, however, limited the influence which his learning and experience would otherwise have exerted.2 Cranworth was followed by two common law chancellors, Chelmsford and Campbell. Chelmsford (1858-59; 1866-68) had shared with Sir William Follett the honors of the bar, and it has been customary to decry his judicial service, on the general theory, apparently, that an eloquent lawyer is not apt to be a profound judge. Undoubtedly he would have taken a higher position on the common law bench; but a fair examination of his work shows that he was a very respectable judge. Certainly he discharged his duties with assiduity, and his numerous judgments are often instructive in consequence of his habit of reviewing prior authorities.3 Lord Campbell’s brief chancellorship (1859-61) is really a minor feature of his career, owing to the advanced age at which he reached the woolsack. With his strong intellect and untiring industry he made a respectable equity judge, but his overbearing nature caused much friction where steady co-operation was needed.
The inferior chancery tribunals were the Rolls Court and the Vice-Chancellor’s Court. The judicial standing of the Rolls Court was established by Sir William Grant (1801-18). Kenyon, the most prominent prior incumbent of the office, discharged the duties of the office with his customary ability and expedition, but he was not really in sympathy with the equitable jurisdiction and habitually decided his cases on the narrowest grounds, avoiding the enunciation of general principles. Grant dignified the office with his high character and eminent abilities. He was unquestionably the most eminent judge sitting in this court until the time of Jessel. Calm, deliberate, patient in hearing, and clear, luminous, subtle and comprehensive in judgment, his powerful intellect made a deep impression upon his contemporaries. This reputation was enhanced by his parliamentary service, which was even more distinguished than his service as a judge. His opinions, which are comparatively few in number, are mostly brief but comprehensive statements of his conclusions, giving slight indications of that masculine reasoning which was the principal feature of his parliamentary oratory. The office was at this time a modest one. The master of the rolls simply supplied the place of the chancellor when the latter’s political duties required his presence elsewhere. On other occasions, when requested by the chancellor, the master of the rolls sat with the chancellor to give advice and assistance in cases argued before both. In order that he might assist the chancellor when present and supply his place during occasional absence, it was arranged that during the sitting of the chancellor the separate business of the master of the rolls should be transacted in the evening. Accordingly, during the greater part of the judicial year, the sittings of the master of the rolls in his own court were held in the evening.
The office at its best under Grant was not to be compared with its position in later times when the master ceased to sit as adviser to the chancellor, and was invested with a separate and, in some respects, independent judicial authority in his own court. This system continued with but little change during the short terms of Grant’s immediate successors, Plumer (1818-24), Gifford (1824-26), Copley (1826-27) and Leach (1827-34). The office probably reached its lowest point under Leach, who was fitted neither by learning nor by temperament for judicial office. Much was expected from the appointment of Pepys (1834-36); but he was soon advanced to the woolsack as Lord Cottenham. Improvement is noticeable soon after the advent of Lord Langdale (1836). From his time the decisions of the Rolls Court have been regularly reported in a separate series of reports, first by Keen (1836-38) and afterwards by Beavan (1838-66). Lord Langdale administered the duties of the office, at a time when its scope had been considerably enlarged, with industry and ability, as the few successful appeals from his judgments attest. If his reputation as a judge fell somewhat below the expectations raised by his distinguished professional career, his lucid and methodical exposition of the facts with which he had to deal gave perfect satisfaction to those who were most interested in a just decision. His lofty character and absolute impartiality inspired the utmost confidence.
The unbearable arrears in chancery during Lord Eldon’s administration finally led to the appointment of a vice-chancellor in 1813. But as constituted, the new court failed for many years to give satisfaction. The first incumbent, Plumer (1813) was slower than Eldon himself; while his successor, Leach (1818-27), disposed of his cases with such speed that a witty barrister comparing Leach’s court with that of the chancellor, characterized the former as terminer sans oyer and the latter as oyer sans terminer, and suggested that Leach employ his spare time in setting his decided cases back on the calendar and hearing the other side. Shadwell (1827-50) was an improvement upon his immediate predecessors; but the most efficient assistance in chancery came with the appointment of Knight-Bruce (1841-51) and Wigram (1841-51) as additional vice-chancellors. At the same time the equitable jurisdiction of the Court of Exchequer was taken away. Knight-Bruce was a judge of great capacity who afterwards distinguished himself as a lord justice of appeal in chancery. Wigram was profoundly learned in technical equity, and his opinions have always been held in high esteem for their lucid exposition of equitable principles.
Common Law Courts
During the first quarter of the century the Court of King’s Bench practically monopolized common law litigation. Lord Ellenborough, the chief justice of this court at the beginning of the century (1802-18), was unquestionably the ablest judge among Lord Mansfield’s immediate successors. He was a man of more general force than his predecessor, Kenyon, and his store of practical knowledge was quite as large. Although a judge of unquestioned integrity, he was nevertheless in many ways a reactionist. His strong political and religious opinions, which often influenced his judgment in criminal causes, savored of the past, and he sturdily opposed the rapidly rising sentiment for reform. In ordinary civil litigation, however, he gave great satisfaction, and his clear and concise opinions are still held in high esteem. He served at a time when the Napoleonic wars gave rise to novel and intricate problems in commercial law, and the skill and judgment with which he determined these questions may be studied to advantage in Campbell’s nisi prius reports.1
It is noticeable that the popularity of the King’s Bench during this period was due almost entirely to the energy and ability of its chief justice. His sole associate of first-rate ability was Bayley (1808-30), whose opinion in commercial cases carried great weight. During the tenure of Lord Ellenborough’s successor, Charles Abbott, afterwards Lord Tenterden (1818-32), this condition of affairs was reversed; the reputation of the court was then due in large measure to the puisnes. Tenterden was inferior to his predecessor in force of intellect, and was surpassed by some of his associates in acuteness and learning. But he was a judge of liberal tendencies, moderation and good sense. These qualities are most conspicuous in his clear and practical opinions, which, particularly in commercial cases, still command respect. During this period the court was highly efficient. “I do not believe,” says Lord Campbell, “that so much important business was ever done so rapidly and so well before in any other court that ever sat in any age or country.” The labors of three distinguished puisnes, Bayley, Holroyd (1816-28), and Littledale (1824-41), contributed materially to this high standing. These three judges represent the best fruits of the system of special pleading, and their labors, so far as they are capable of separation from an antiquated procedure, have stood the test of time.
The wave of reform precipitated by the Reform Bill stirred even the stagnant waters of the law. The Court of Exchequer Chamber was made a regular and permanent intermediate court of appeal from each of the superior courts of common law. The ancient and anomalous High Court of Delegates, which had been established in the reign of Henry VIII to take up the appellate jurisdiction in ecclesiastical matters theretofore exercised by the pope, was at length abolished, and its appellate jurisdiction was conferred upon the Judicial Committee of the Privy Council, which was now made a definite and serviceable tribunal with a well-defined jurisdiction. By the Uniformity of Procedure Act the concurrent jurisdiction of the three superior courts of common law was officially recognized, and a central criminal court was established. The antiquated and cumbrous machinery of fines and recoveries was finally abolished, and a general bankruptcy act ameliorated the condition of insolvent debtors. But the movement in favor of legal reform was not widespread, and comparatively little was accomplished. In fact, the quarter century following the Reform Bill is significant only because it marks the limits of the influence of Baron Parke in the common law courts.
The Queen’s Bench at the beginning of this period was still the ablest as well as the most prominent of the three courts of common law. Of the two chief justices during this time, Lord Denman (1832-50), the first, was a great and good man, whose predisposition to individual liberties was a new departure in a chief of this court. His judgment in Stockdale v. Hansard is a monument of learning and independence.1 Compared with his immediate predecessors he could not be called a great lawyer or a strong judge, but his high character and attractive personality won universal esteem. “To have seen him on the bench, in the administration of justice,” said Charles Sumner, “was to have a new idea of the elevation of the judicial character.” Campbell (1850-59), his successor, whose character is much less to be admired, surpassed him in learning and efficiency. With a strong intellect, wide knowledge and untiring industry, Campbell made during his short term a lasting reputation.2
Of the prominent puisnes during this period, Littledale (1824-41), a learned but scholastic lawyer, held over from earlier time, and Parke (1828-34) spent a few years in this court before going to the scene of his more distinguished labors in the Exchequer. During the latter part of the period the court was further strengthened by the accession of Wightman (1841-63) and Erle (1846-59). Wightman was one of the last of the great school of special pleaders; but he was besides a man of broad and practical views, and made an admirable judge. He sat in the Queen’s Bench twenty-three years, the trusted colleague of three chief justices.1 According to the unanimous voice of his contemporaries, Erle was one of the best of the earlier judges. He had that power of quickly grasping the essential features of a case which marks the legal mind; and, although his mind lacked flexibility and subtlety, and he was extremely tenacious of his own views, the common sense which generally characterized his work made him a safe judge.2 But the ablest associate throughout the period was Patteson (1830-52). He sat in this court twenty-one years; he was the strongest man in the court, and largely influenced its action. It was due mainly to his vigorous intellect and great learning that the court was able to maintain its standing during this period, in the face of the rapidly increasing reputation of the Exchequer.3 Coleridge (1835-58) was a very competent lawyer and a man of scholarly attainments. His opinions are among the most finished to be found in the earlier reports.4 His opinion in the case of Lumley v. Gye, upon the malicious procurement of a breach of contract, is a good specimen of his style.
The work of the Court of Common Pleas was limited in amount during this period. Until 1841 it was a closed court, and only sergeants could argue cases there. It enjoyed the services, however, of some very able lawyers. Of its three chiefs, Tindal (1829-46), Wilde (1846-50) and Jervis (1850-56), Tindal and Jervis take high rank as magistrates. Clear sighted, sagacious and quick of apprehension, they were masters at nisi prius. Tindal was furthermore a profound lawyer, and his numerous opinions in this court and in the Exchequer Chamber display grasp of principle, accuracy of statement, skill in analysis and wide acquaintance with precedents.1 Wilde was a learned but plodding lawyer whose subsequent elevation to the woolsack only served to detract by comparison from his superior reputation as a common law judge.
Of the puisnes, Maule (1839-55), who served through most of this period, was probably the most highly endowed. No one ever had a finer sense of the anomalies and incongruities of English law, and he never missed an opportunity to bring to bear on them his unrivalled powers of sarcasm and caustic humor. “As the rule is well established by decisions,” he ironically remarks in Emmens v. Elderton, 4 H. L. Cas. 624, “it is not necessary to give any reasons in its support, or to say anything to show it to be a good and useful one.” His subtle mind was balanced by good sense and entire freedom from technicality.2 But his mental gifts were smothered in indolence, and he is chiefly remembered for his cynical humor. It was he who, while reading a novel in bed by candle light, set fire to his chambers and burned down a large section of the Temple. Cresswell (1842-58) and E. V. Williams (1846-65) were the strong judges in this court during the latter part of the period. Cresswell was an accomplished lawyer who afterwards added to his reputation in the probate and matrimonial court. He was essentially a broad-minded judge. Williams, the second generation in a line of great lawyers of that name, was profoundly learned in the common law, and his concise and accurate if somewhat technical opinions have always been respected. He was somewhat labored in expression, but he had great influence with his associates during his twenty-two years’ service.1
The Court of Exchequer came into great prominence during this period. The first two chief barons, Lyndhurst (1831-34) and Abinger (1834-44), failed to sustain on the bench the great reputations they had made at the bar. Both were men of great gifts, but their success as advocates was due rather to their knowledge of men than to any mastery of legal principles. Pollock (1844-56), on the other hand, who succeeded them, brought to the bench the industry and general ability which had characterized his distinguished forensic career. There have been many more learned but few more useful judges. His high-toned personality is reflected in his scholarly and felicitous opinions, which, whether right or wrong in the result, are always interesting.2 Under his administration, with Parke (1834-55) and Alderson (1834-57) as associates, the Exchequer reached its greatest influence.
It is undeniable that this reputation was largely made by Parke (1834-55). “Baron Surrebutter,” as he was ironically named, was a modern Coke, profoundly learned in the common law and indefatigably industrious in its administration. He possessed the ability in grasping and fathoming a subject which is the supreme test of judicial power, and his extraordinary memory enabled him to draw at will upon his vast store of learning. It must be admitted that he was a man of high character and powerful intellect; no smaller man could have accomplished so much. For more than twenty years he was the ruling power in Westminster Hall. Considering the state of the law in his day and his fond adherence to its formalities and precedents, one’s admiration for his undoubted ability gives way to surprise that he should have required such ascendency over his brethren. Even so great a lawyer as Willes said that “to him the law was under greater obligations than to any judge within legal memory.” For more than twenty years he bent all the powers of his great intellect to foster the narrow technicalities and heighten the absurdities of the system of special pleading. The right was nothing, the mode of stating it everything. Conceive of a judge rejoicing at non-suiting a plaintiff in an undefended case, and reflecting only that those who drew loose declarations brought scandal on the law! Any attempt to change or ameliorate the law met with his uncompromising opposition. “Think of the state of the record,” was his invariable response to every effort to escape from the trammels of technicality. He defeated the act of parliament allowing equitable defences in common law actions by the exaction of all but impossible conditions, and expressed satisfaction in being able to do so. Broad-minded judges like Maule and Cresswell struggled in vain against his influence. “Well,” Maule would say, “that seems a horror in morals and a monster in reasoning. Now give us the judgment of Baron Parke which lays it down as law.” Parke stands at the head of the black-letter lawyers. It is related that once when one of his brethren was ill, Parke sent him a special demurrer. “It was so exquisitely drawn,” he said, “that he felt sure it must cheer him to read it.” “He loved the law,” as Bramwell said, “and like those who do so he looked with some distrust on proposals to change it.” He sincerely believed that the interests of justice were best served by a strict adherence to technical rules. The sixteen volumes of reports by Meeson and Welsby were his especial pride. “It is a lucky thing that there was not a seventeenth volume,” said Erle, “for if there had been the common law itself would have disappeared altogether amidst the jeers of mankind.”1 In these pages, indeed, he may be seen at his best and his worst. He was one of the last of the judges who systematically delivered written opinions. They were prepared with great fulness and care, and do not fall far short of two thousand in number. Alderson (1834-57) was a strong associate, learned, vigorous and efficient, and particularly capable as a criminal judge.2 Valuable assistance, particularly in its equitable jurisdiction, was rendered in this court by Rolfe (1839-50), who subsequently reached a higher station as Lord Cranworth.
Ecclesiastical and Admiralty Courts
Probate, matrimonial and admiralty affairs were administered for centuries by the civilians; but they left few records of their labors. As a system of judicial precedents this jurisdiction is the creation of the nineteenth century. While the main stream of legal business flowed through the Inns of Court and Westminster Hall, a close body of advocates and proctors, in the quiet backwaters of Doctors’ Commons, under the shadow of St. Paul’s, placidly pursued their vocation. In their cloister-like seclusion the learned doctors caused scarcely a ripple on the surface of legal affairs; no report was issued of their proceedings, and to the world at large they were unknown. From this obscurity the ecclesiastical and admiralty jurisdiction was rescued by the genius of Lord Stowell.
The brothers William and John Scott, who were destined in after life, as Lords Stowell and Eldon, to make such lasting impression on their chosen branches of English jurisprudence, were strikingly dissimilar in mental temperament. The strength of intellect which in the case of Eldon was applied with indefatigable industry to the confinement within rigid limits of the doctrines of a remedial system, was employed by Stowell in laying the foundation of the law of the sea in accordance with the principles of universal justice. Lord Stowell was a man of the most scholarly attainments—the friend of Johnson, Burke and Reynolds, and a keen participant in the intellectual movements of his time. The cosmopolitan sources of the civil law, which he originally studied as part of a liberal education—its philosophical, literary and historical associations—led him to adopt it as a vocation. The choice was most happy. He had the good fortune to live in an age peculiarly calculated to exercise and exhibit his great faculties. The greatest maritime questions that have ever presented themselves for adjudication arose in his time out of those vast European wars in which England obtained the sovereignty of the seas. Most of these questions were of first impression, and could be determined only by a cautious process of deduction from fundamental principles. The genius of Stowell, at once profound and acute, vigorous and expansive, penetrated, mastered and marshalled all the difficulties of these complex inquiries, and framed that comprehensive chart of maritime law which has become the rule of his successors.
His first judicial service was as judge of the Consistory Court of London, where for ten years he delivered discourses on the regulation of the domestic forum which are exemplary alike in morals and in taste. In this jurisdiction, involving the most sacred rights of individuals and the best interests of society, his benevolent wisdom is indelibly recorded. Such cases as Dalyrymple v. Dalyrymple, on the nature, origin and sanctity of marriage; Evans v. Evans, the first great case on cruelty; Loveden v. Loveden; Sullivan v. Sullivan, and many others to be found in the contemporary reports of Haggard and Phillimore, are rare specimens of legal philosophy and practical ethics. In the case of Evans v. Evans, for instance, he benevolently points out to the parties the limits of his powers:
“The humanity of the court has been loudly and repeatedly invoked. Humanity is the second virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply, and of humanity which confined its means merely to the happiness of the present parties, it would be a question easily decided upon first impressions. Everybody must feel a wish to separate those who wish to live separate from each other, who cannot live together with any degree of harmony and, consequently, with any degree of happiness; but my situation does not allow me to indulge in the feelings, much less the first feelings, of an individual. The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. The disinclination must be founded upon reasons which the law approves, and it is my duty to see whether these reasons exist in the present case. To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it would not be difficult to show that the law in this respect has acted with its usual wisdom and humanity, with that true wisdom and that real humanity that regards the general interests of mankind. For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives, for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples, who now pass through the world with mutual comfort, with attention to their offspring and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good.”
But the highest sphere in which he exercised his faculties was the Court of Admiralty, where for a period of thirty years he was rather a law-giver than a judge. Except a few manuscript notes, and occasional references to tradition and personal memory, there were no precedents for his guidance in adjudicating upon the novel cases arising out of the most important war in English history. He was free to be guided by the writers on Roman, canon and international law, and by the historical material with which his wide reading had made him familiar. At the same time the unequalled variety of cases which came before him enabled him to give unity and consistency to a whole department of law. The legal interruption to navigation which both belligerent parties may create against neutrals, the rights of joint captors, cases of unlawful detention and seizure, the force and construction of different treaties, the existence of an actual blockade, the condemnation of merchant ships for resisting search, questions of domicile, the extent of the protection of cartel, the extent of territorial claims, the validity of orders in council—these are among the subjects adjudicated by him with such unerring accuracy that, though often appealed from, it is said that not one of his judgments was reversed. Upon many maritime points his judgments are still the only law; and little popular as they were at the moment among Americans, who often suffered by them, they have since been accepted by our courts as authoritative. Fortified by a store of knowledge at once profound and extensive, combining all the materials that indefatigable research, close and minute observation and intense study could provide, the judgments of Lord Stowell in international law have passed into precedents equal, if not superior, to those of the venerable authors of the science, Puffendorf, Grotius and Vattel. His work, like theirs, was animated by the spirit of universal justice. “I trust,” he said in the celebrated case of the Swedish Convoy, 1 C. Rob. 349, “that it has not escaped my anxious recollection for one moment what it is that the duty of my station calls for from me; namely, to consider myself stationed here, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nature holds out, without distinction, to independent states, some happening to be neutral, and some to be belligerent. The seat of judicial authority is, indeed, locally here in the belligerent country, according to the known law and practice of nations; but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting in Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances, and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same character. If therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as the universal law upon the question.”
“If ever the praise of being luminous could be bestowed upon human compositions,” says Brougham, “it was upon his judgments.” Aware of the value of his productions he bestowed extreme care in their preparation. In a few instances his language may seem somewhat stilted; the attention to diction may occasionally degenerate into purism; but the symmetry and elegance of the whole confirm Lord Lyndhurst’s opinion that it is as vain to praise as to imitate him. Probably his finest performance, from all points of view, is his luminous exposition in the case of the Gratitudine, 3 C. Rob. 240, of the power of the master of a vessel to hypothecate her cargo. But it is little, if any superior to the following: The Maria, the case of the Swedish Convoy, 1 C. Rob. 340; the case of the Slave Grace, 2 Hagg. Adm. 94; the Jane and Matilda, 1 Hagg. Adm. 187; the Neptune, 1 Hagg. Adm. 227; Le Louis, 2 Dods. Adm. 210.1
Stowell was followed in succession by Sir Christopher Robinson (1828-33), and Sir John Nichol (1833-38), whose short service was respectable, but not particularly distinguished. The next judge of this court maintained the high standard set by Stowell. Lushington (1838-67) was a man of high character, vast learning and sound judgment, who, during a service almost equal to that of Stowell in duration, administered the varied duties of his court with such accuracy and good sense that his judgment was seldom appealed from and rarely reversed. “All who ever heard one of those luminous expositions of law,” says a contemporory, “must remember the effect produced in court when, often without taking time to consider his judgment, Dr. Lushington would deliver one of those masterpieces of judicial wisdom and legal learning which rank him among the first of English jurists.” With maritime law in particular his name is permanently associated. The ancient jurisdiction of the Admiralty was largely restored by various statutes during his tenure, and it was finally made a court in 1861. Then the Crimean war, bringing in its train many questions of the rights of neutrals, blockade and contraband of war, enabled him to build up a high reputation as an authority on international law. The ecclesiastical controversies of his time, arising out of the ritualistic movement in the English Church, were also determined by him with broad-minded liberality.1
Courts of Appeal
The right of appeal is a modern conception. Down to very recent times it was rigidly withheld save in a strictly limited class of cases; and even in those cases in which an appeal was allowed the appellate jurisdiction was administered on principles which were anomalous and irrational in the extreme. In common law cases only matters of error apparent on the record were reviewable, and no appeal lay on a motion for a new trial or to enter a verdict on a non-suit. No error lay upon a special case framed by consent without a trial, but only from a special verdict where the parties had arranged or the judge had directed at the trial a special statement of the facts; in other words, the expense and delay of a useless trial were required as a condition of appeal. And even where appeal was possible the appellant was held to the strictest observance of all the difficult formalities involved in challenging the direction of a judge by means of a bill of exceptions.
The Exchequer Chamber, the intermediate court of appeal in common law, practically dates from 1832. The Court of Appeal in Chancery was not established until 1851. The courts of final appeal, the House of Lords and the Privy Council, are of great antiquity; but prior to the nineteenth century their judicial functions were of secondary importance. The appellate jurisdiction is almost entirely a creation of the nineteenth century. This late development may be explained in part, so far at least as the common law jurisdiction is concerned, by the efficiency of the trial courts. The three great common law courts in banc administered the system then in force as well as any court could administer it. It was not until the breakdown of the common law courts in banc that more liberal rights of appeal became necessary. Moreover, the House could at all times avail itself of the advice of the common law judges. This advice, it is true, they were not bound to follow, but, in fact, it was seldom overridden. In chancery, until the creation of the Court of Appeal in Chancery, the situation was not so satisfactory. The chancellor sat alone on appeal from the vice-chancellor and from the master of the rolls (often his superiors in technical learning); and there was usually small satisfaction in pursuing an appeal to the House of Lords, because, owing to the defective organization of that tribunal, there, too, the chancellor usually dominated. The advice of the chancery judges was not available, because the House had no authority to summon them unless, as rarely happened, they were also peers.
A Court of Exchequer Chamber existed from the earliest times, both as a court of error and a court of debate. As a court for debate it consisted of the assembled judges, presided over by the lord chancellor, where matters of importance and difficulty were discussed before judgment was rendered in the court below (e. g. Calvin’s case).1 By 31 Edw. III., c. 12, it was constituted a court of error from the common law side of the Exchequer, and in it sat the Lord Chancellor, the Lord High Treasurer and the judges of the other courts. In 1585 another court was created to take error from the King’s Bench. It was composed of the judges of the Common Pleas and the Exchequer. Both these courts were finally merged by statute (11 George IV and 1 William IV) into a court of appeal from all three common law courts, appeals from one court being heard by the judges of the other two. This continued to be the intermediate court of appeal in common law until the Judicature Act. As thus constituted it was at times a most powerful court. Its practical operation was, however, somewhat restricted. Occupied with the labors of their own courts, the judges were irregular in attendance. And the general satisfaction given by the common law courts in bane was evidenced by a limited right of appeal.
During the first half of the life of the court its most active members were Tindal and Parke; but valuable assistance was rendered by Denman, Patteson, Coleridge and Alderson. During the second period the active participants were Willes, Erle, Blackburn, Bramwell, Pollock, Wightman, Cockburn, Williams and Martin. During the forty-five years of the court’s existence it heard only about eight hundred appeals, and nearly two-thirds of these were heard during the last half of the period. The Queen’s Bench supplied the largest quota of these appeals, although the Exchequer was not far behind. Appeals from the Common Pleas were comparatively few in number. Of the eight hundred judgments reviewed by the court, a little more than one-fourth were reversed—somewhat less than the usual proportion. There was a remarkable consensus of opinion among the judges in this court, the number of cases in which there was a division of opinion being less than fifty.
The importance of the House of Lords as a court of final review in civil actions is a matter of recent development. After the break up of the Curia Regis and the establishment of the three courts of common law there remained in the sovereign a residuary power covering cases where the courts were not strong enough to do justice, or were deficient in rules applicable to the case or were alleged to committed error. In time the King in Council (at first the Star Chamber, and latterly the Privy Council) became the tribunal for the determination of cases where, from the greatness of the offender, or the magnitude of the issue, the ordinary courts were inadequate to do justice. The King in Chancery (by the Lord Chancellor) acquired exclusive jurisdiction in all cases where the rigor of the common law had to be relaxed by supplemental rules, and the appellate jurisdiction in case of error passed into the hands of the House of Lords. The extent of the jurisdiction of the House was long a matter of controversy. Its common law jurisdiction in error, which was settled in the first year of Henry VII, was decisively vindicated in the case of Ashby v. White, 14. St. Tr. 695. Its appellate jurisdiction in equity was clearly recognized by the statute of 27 Elizabeth, c. 28, and has been unquestioned since the case of Shirley v. Fagg, 6 St. Tr. 1121. In early times the House claimed and occasionally exercised an original jurisdiction between party and party; but this claim was finally abandoned after the conflict over the case of Skinner v. East India Co., 6 St. Tr. 709, in 1688. Jurisdiction over Scotch appeals dates from the Act of Union of 1707. Irish appeals have long been heard in the House. In 1696, and again in 1719, the Irish House of Lords claimed jurisdiction; this claim was allowed in 1783, but in 1800 it was finally taken away by the Act of Union.
Yet, even late in the eighteenth century the House was only beginning to be regarded as a regular court of justice. Its composition remained uncertain until it was finally settled by statute under the Judicature Act. The original conception doubtless implied the judgment of the whole House assisted by the advice of the assembled judges. Of course the lord chancellor presided, and there were generally eminent lawyers among the peers who would presumably lead in the discussion. The reports of the judicial proceedings of the House prior to the nineteenth century are so meagre that it is impossible to ascertain the character of their discussions. The earliest report of their judicial proceedings by Shower (1694-1733)—a brief report of about fifty cases confined mainly to a statement of the issues and the actual judgment of the House—was considered by the House an infringement of its privileges. The same meagreness characterizes other reporters of the eighteenth century: Colles (1697-1713) and Brown (continued by Tomlins, 1702-1800). Hall states that in his day judgment was regularly given by the majority of voices. In 1689 the judgment in the case of Titus Oates was affirmed by a vote of thirty-five to twenty-three, in opposition to the unanimous opinion of the assembled judges. The judgment of the Queen’s Bench in the celebrated case of Ashby v. White, 1 Bro. P. C. 62, in 1703, was reversed in the House by a general vote of fifty to sixteen.1 As late as 1806 lay peers voted in the case of Lord Hertford’s guardianship of Lord Seymour’s daughter. But the theory of final decision by a combination of lay and legal minds gradually broke down. Lay peers were, as a rule, little disposed to attend the hearing of purely private and technical cases; and they soon practically lost their right to sit even in cases of quasi-political and general public interest. The matter came to an issue in O’Connell’s case, 11 Cl. F. 155, in 1844, when the lay peers, in deference to the Duke of Wellington, finally waived their right to vote. The last occasion on which a lay peer voted was the case of Bradlaugh v. Clarke, 8 App. Cas. 354, when Lord Denman, son of Lord Chief Justice Denman, voted. Lord Denman had been educated for the bar, but he did not come within the recognized definition of a “law lord,” i. e., one who had held high judicial office; yet the law officers of the government were of opinion that the vote was lawful.
The other component part of the composition of the ancient tribunal, the assembled judges, has also practically disappeared. The right of the House of Lords to summon the judges at the beginning of each Parliament to be present for the purpose of assisting the House, when required, in the determination of legal questions, is of great antiquity. But, although the judges still receive this summons, they no longer attend unless specially summoned for a particular purpose. It seems to have been a common practice of the House during the eighteenth century to consult the judges. During the first quarter of the nineteenth century Lord Chancellor Eldon and Lord Redesdale, who performed most of the judicial functions of the House, seldom called for their views. During the period from the retirement of Eldon to the Judicature Act the judges were frequently consulted, and almost all the recorded advisory opinions of the judges come within this period. Since the Judicature Act the judges have been consulted in only four cases.1 The establishment of permanent courts of appeal has obviated the necessity for such consultations. In practice this method of consideration was subject to several objections. The judges were busy in their own courts and were irregular in responding. Moreover, the manner in which the House put questions of law, without regard to the form in which the questions arose, or to points actually raised, often made it difficult for the judges to give a satisfactory answer.2 Indeed, in the matter of the Westminster Bank, 2 Cl. & F. 192, the judges declined to answer on the ground that the question was “proposed in terms which render it doubtful whether it is a question confined to the strict legal construction of existing acts of Parliament.” However, in the matter of the Islington Market Bill, 3 Cl. & F. 512, the judges gave their opinion on a bill pending in Parliament; and it will be remembered that the judges were called upon for their opinions on the law of libel when Fox’s bill on that subject was pending in Parliament. The judges are called upon simply to advise; the decision rests with the House alone. Lord Campbell expressed the accepted doctrine in Burdett v. Spilsbury, 10 Cl. & F. 413: “When your lordships consult the Queen’s judges I do not at all consider that you are bound by the opinion of the majority, or even by their unanimous opinion, unless you are perfectly satisfied with the reasons which they assign for the opinion they give.” Individual lords have taken a different view of their duty, noticeably Lord Wynford.1 Still, there are only five instances in modern times in which the House has rendered judgment contrary to the opinion of a majority of the judges.2
The House of Lords reports from 1827 to 1900 contain one hundred and twenty-five cases in which the judges have been called upon for advice. Of this number not more than a score are in any sense landmarks in legal history. Indeed, aside from the relative unimportance of most of these cases, it is difficult to understand upon what principle the House acted in determining when the judges should be assembled. For in twenty-four cases there was no difference of opinion from the beginning of the case in the trial court to its final conclusion in the House of Lords; and in fifty-eight cases the asembled judges were unanimous in opinion. The form of judgment in the House is that of a motion, as in ordinary debates, recorded in the journal of the House. The House, unlike the Privy Council,3 holds itself bound by its own judgments. It also differs from the Privy Council in its privilege of summoning the judges.
The reports of Dow (1812-18) and of Bligh (1819-21) covering the long chancellorship of Lord Eldon, indicate the defects of the House as an appellate tribunal. During this time the judicial functions of the House were performed by Eldon, assisted from time to time by Redesdale, the Irish chancellor. So far as their attainments in equity were concerned these two eminent judges left little to be desired. But Eldon often sat alone. Inasmuch as three peers were required to constitute a House, it often became necessary to catch a bishop or two, or press one or more lay peers into service, to act as dummies, and then the lord chancellor, gravely assisted by these two mutes, finally disposed of appeals from his own decisions. As the Earl of Derby said to his colleagues in 1856, they were upon such occasions “like the lay figures which are introduced in a painter’s studio for the purpose of adding to the completeness of the judicial tableau.” In spite of its manifest absurdity this system was viewed with veneration. The satire of Swift did not prevent Lord Hardwicke from saying that if he went wrong in Penn v. Baltimore1 his errors would be corrected by “a senate equal to that of Rome itself.” Yet in every case that went to the House during his chancellorship Hardwicke himself constituted that senate, and in judicial solitude he affirmed his own excellent judgments. And we read in Blackstone the wondrous tale of peers “bound upon their conscience and honor (equal to other men’s oaths) to be skilled in the laws of their country!” It may be imagined that such a tribunal would also be likely to discourage common law appeals, particularly in view of Eldon’s assertion of his undoubted right to override the judgment of the assembled judges of the common law courts.
Upon the retirement of Eldon the judicial functions of the House were largely dominated for more than twenty years by Lord Brougham. During the period from the resignation of Eldon in 1827 to 1850 there were only three Chancellors,—Lyndhurst, Brougham and Cottenham. Lord Lyndhurst’s judicial services in the House were comparatively unimportant. His experience had been in common law; moreover, his great abilities were political rather than judicial, and when in office his attendance on judicial business was brief and irregular. Lord Cottenham, on the other hand, was an eminent lawyer. During the whole period of Brougham’s supremacy, and until the chancellorship of St. Leonards, aside from occasional assistance from Lord Langdale, the Master of the Rolls, he was the only competent equity judge in the court. The Irish chancellors, Manners and Plunkett, sat occasionally, but their service was inconspicuous. But Cottenham, a pure lawyer, profoundly versed within the narrow sphere of equity, but knowing little besides, was not constituted by mental temperament to take the same view of things as the versatile Brougham. In common law authority, on the other hand, the court was somewhat better, owing to the elevation to the peerage of several common law judges. Best, whose service as a legal peer, under the title of Lord Wynford, was second only to Brougham’s in duration, was a regular attendant on judicial business for a few years only; long before his death he ceased to sit. Chief Justice Tenterden sat quite regularly from his elevation to the peerage in 1827 to his death in 1832. His successor, Denman, was raised to the peerage a few years later expressly to assist Brougham in appellate work, but owing to the heavy work of his own court his attendance was irregular. With the accession of Lord Campbell in 1841, by virtue of his appointment to the Irish chancellorship, the House enjoyed the services of a thoroughly competent common law judge. The uncertain composition of the court was, however, a serious drawback. A litigant had no assurance that his appeal would be heard by a judge whose learning and experience in the particular subject was equal to that of the judge from whom he appealed. If Brougham’s technical knowledge had been equal to his energy and assurance, the situation would have been better; but it must be said that his work, except in Scotch appeals, is not of a high order. During the ten years from 1850 to 1860 five chancellors succeeded one another in rapid succession: Truro, St. Leonards, Cranworth, Chelmsford and Campbell. Truro left appellate work to Brougham, and St. Leonards and Cranworth, who frequently sat without a third peer, were so notoriously at odds that judgments were constantly affirmed on appeal in consequence of a dead-lock. To such grounds of complaint may be added the intermittent sittings of the court and consequent delays, its extreme disregard of the proceedings and engagements of the other courts, its absolute irresponsibility, and the immense expense attendant upon its procedure. Its habit of transacting legal business through the legislative form of general debate has always been a serious drawback. It always conduces to the dignity of a court, and to the authority of the rules which it lays down for future guidance, to formulate a single considered opinion clearly expressing the grounds upon which the judgment is based. Under the practice of the House, where each judge usually gives independent expression to the reasons upon which his vote is based, it is often extremely difficult to extract the ratio decidendi.
The judicial functions of the Privy Council arise out of its ancient position as the concilium ordinarium of the King, which decided cases that were too important for the ordinary courts but not of sufficient importance for the House of Lords. From this source sprang the Star Chamber and the Court of Requests as off-shoots. The first instance of the exercise of independent appellate jurisdiction by the Privy Council occurs in the reign of Elizabeth, when it took jurisdiction of an appeal from the Channel Islands. Coke calls the Council a board, not a court; and Hale, in treating systematically of all the existing jurisdictions, mentions it only in connection with its subservience to the House of Lords. By gradual encroachment, however, the Council built up a formidable jurisdiction. In the reign of Charles II it acquired jurisdiction of ecclesiastical and maritime appeals. Its judicial functions were placed upon a modern basis by the establishment of the Judicial Committee of the Privy Council (3 and 4, Wm. IV, c. 41), with jurisdiction principally over appeals from the colonies and in ecclesiastical and admiralty cases.1
For nearly two decades the labors of the Judicial Committee were borne mainly by Parke and Brougham. Some of Brougham’s most useful services were rendered in this court, where his encyclopedic mind and liberal views are displayed to best advantage. These two judges were to a great extent relieved by the accession in 1844 of Kingsdown, who served in this court with great distinction for more than twenty years. Kingsdown was one of the great judges of his time. Although a lawyer of vast and varied learning, his grasp of principle led him to deal but little with precedents. In the formulation of the conclusions of the court, in which he bore the principal part, his refined taste and fastidious use of language made his opinions models of judicial expression. From 1854 he practically took charge of appeals in prize cases, interpreting the law of blockade, capture and prize with marked liberality towards freedom of trade. His opinions in the cases of The Franciska, The Gerasimo, and Dyke v. Wolford, in the eighth volume of the State Trials, are good specimens of his style and method.1
From the Common Law Procedure of 1852 to the Judicature Acts of 1873-75
A well defined change in the administration of English law occurred shortly after the middle of the century. Years of agitation against the anomalies and abuses of the prevailing legal system culminated about that time in a series of practical reforms which brought the administration of justice into something like accord with the world of affairs. From this time forward the law ceased to appear to be designed as a restraint upon human activity. First and foremost was the Common Law Procedure Act of 1852. This great measure and its immediate successors largely transformed the ancient procedure. Causes of action by and against the same parties were permitted to be joined, and several equitable defences were allowed. Special demurrers were abolished, together with much of the ancient verbiage, and only such statements as must be proved were essential in pleading. In 1851 that final absurdity in the law of evidence which closed the mouth of the very person who knew most about the matter in dispute was abolished, and the testimony of interested witnesses became simply a matter of credibility. In equity a series of practical reforms removed many of the most obvious defects of procedure; additional vice-chancellors were appointed in 1851 to cope with the burden of arrears, and, above all, in the same year, a permanent court of appeal in chancery was established. The confusion and absurdities of the ecclesiastical administration of probate and matrimonial affairs were finally removed in 1858 by the creation of an independent court for probate and matrimonial causes. The demand for the infusion of new blood into the court of final appeal was also recognized. The Court of Crown Cases Reserved, where points of criminal law could be reviewed, dates from 1848.
But institutions are of little utility unless they are administered by men who are in sympathy with their purpose and spirit. From this point of view the middle of the century is of even greater significance as a turning point in legal history, for it marks the advent of Willes, Bramwell and Blackburn in common law, and of Knight-Bruce, Turner and Page-Wood in equity. Under the guidance of such minds, in which technical learning and common sense were combined in large measure, the law ceased to act as a sort of surprise upon mankind, and the realization of rights became practicable. A few years later the larger interests of the law in the court of final appeal were for the first time adequately administered by the master minds of Westbury and Cairns. This period has been aptly termed by Sir Frederick Pollock the classical period of English law.
Common Law Courts
The central figure in the Court of Queen’s Bench throughout this period was Blackburn. But he was ably assisted, and in some respects supplemented, by the chief justice of the court, Sir Alexander Cockburn (1859-80).
The large measure of public attention which Sir Alexander Cockburn commanded during his lifetime probably led to an undue estimate of the permanent value of his judicial services. Along with gifts which readily attract public admiration, he had an eye for effect little short of dramatic; and his distinguished manner was calculated to impress the senses even when his judgment failed to satisfy the understanding. Still, even a cursory examination of his work reveals singular ability. Combining in an eminent degree logical and imaginative qualities of mind, he was not only a consummate advocate, but also a distinguished judge. Possibly there have been more eminent advocates; certainly there have been more profound judges; but rarely a man who united to such an extent the attributes of each. Like Erskine and Brougham, with whom alone he shares the highest honors of forensic advocacy at the English bar, his mind was more capacious than powerful, clear rather than profound. In judgment he surpassed both, and the acute sensibility which was his most prominent characteristic, manifested itself in a range of imagination to which neither of his great rivals could make any pretension. Indeed, such was the range of his imagination that, had it been balanced by equal strength in reasoning faculty, his mental equipment would have been unsurpassed. But the acute sensibility that characterized his temperament was itself of no inconsiderable aid in the successful discharge of his judicial functions. The law is not merely a system of rules, nor is its administration simply the application of these rules by rigid logical deduction. Since the law is designed to serve the needs of mankind, its efficient administration requires a clear and just appreciation of the facts to which it is to be applied. The successful investigation of facts is therefore an essential preliminary to, and a most important element of, a just determination. And a learned lawyer who is wanting in imagination often misapprehends the bearing upon the facts of rules of which he has no full and pregnant, but only a dry and technical, knowledge. Of course, the value of such qualities depends upon the extent to which they coexist with a logical basis in the understanding; but in the perfect coördination of these diverse qualities resides the highest judicial capacity. In Cockburn’s equipment imaginative qualities certainly predominated. His mind was perhaps too quick and susceptible to admit of the tenacity essential to the highest excellence in the formal exposition of legal doctrines. Hence he was strongest in dealing with facts. At nisi prius his grace of manner, his knowledge of the world, his refined and eloquent diction, and his lucid and orderly intellect, combined to make him an ideal judge. His most conspicuous effort in this sphere was his charge to the jury in the memorable Tichborne case, in the course of which he formulated with eloquence and force the true functions of judges and juries:
“In my opinion a judge does not discharge his duty who contents himself with being a mere recipient of evidence, which he is afterwards to reproduce to the jury without pointing out the facts and inferences to which they naturally and legitimately give rise. It is the business of the judge so to adjust the scales of the balance that they shall hang evenly. But it is his duty to see that the facts as they arise are placed in the one scale or the other according as they belong to one or the other. It is his business to take care that the inferences which properly arise from the facts are submitted to the consideration of the jury, with the happy consciousness that if he go wrong there is the judgment of twelve men having experience in the every day concerns of life to set right anything in respect of which he may have erred. . . . In the conviction of the innocent, and also in the escape of the guilty, lies, as the old saying is, the condemnation of the judge. . . . You have been asked, gentlemen, to give the defendant the benefit of any doubts you may entertain. Most assuredly it is your duty to do so. It is the business of the prosecution to bring home guilt to the accused to the satisfaction of the jury. But the doubt of which the accused is entitled to the benefit must be the doubt that a rational, that a sensible man may fairly entertain, not the doubt of a vacillating mind that has not the moral courage to decide, but shelters itself in a vain and idle scepticism. . . . I should be the last man to suggest to any individual member of the jury that if he entertains conscientious, fixed convictions, although he may stand alone against his eleven fellow jurors, he should give up the profound and unalterable convictions of his own mind. . . . But then we must recollect that he has a duty to perform, and that it is this. He is bound to give the case every possible consideration before he finally determines upon the course he will pursue, and if a man finds himself differing from the rest of his fellows with whom he is associated in the great and solemn function of the administration of justice, he should start with the fair presumption that the one individual is more likely to be wrong than the eleven from whom he differs. He should bear in mind that the great purpose of trial by jury is to obtain unanimity and put an end to further litigation; he should address himself, and in all diffidence in his own judgment, to the task he has to perform, and carefully consider all the reasons and arguments which the rest of the body are able to put forward for the judgment they are ready to pronounce, and he should let no self-conceit, no notion of being superior to the rest in intelligence, no vain presumption of superiority on his part, stand in the way. . . . That is the duty which the juryman owes to the administration of justice and the opinion of his fellows, and therefore I must protest against the attempt to encourage a single juryman, or one or two among a body of twelve, to stand out resolutely, positively, and with fixed determination and purpose, against the judgment and opinion of the majority. . . . There is but one course to follow in the discharge of great public duties. No man should be insensible to public opinion who has to discharge a public trust. . . . But there is a consideration far higher than that. It is the satisfaction of your own internal sense of duty, the satisfaction of your own conscience, the knowledge that you are following the promptings of that still, small voice which never, if we listen honestly to its dictates, misleads or deceives—that still, small voice whose approval upholds us even though men should condemn us, and whose approval is far more precious than the honor or applause we may derive, no matter from what source.”1
By way of disparagement, it was said that Cockburn acquired his knowledge of legal principles while sitting on the bench beside Blackburn. Beyond doubt Blackburn’s vigorous intellect was the ruling power in the Queen’s Bench throughout Cockburn’s service; but, with his great natural acquisitive powers and assiduous application, Cockburn certainly acquired a firm grasp of the fundamental principles of the law. If the scope and activity of his intelligence, and the variety of his pursuits, to some extent impaired the fulness and accuracy of his knowledge of its details, his keen insight and knowledge of the world, acquired through cultivation, travel and extensive intercourse with all classes of men, frequently saved him from pitfalls into which less worldly men would have fallen.. On the whole, his influence has perhaps been felt more in the impulse and direction which he gave to certain topics than in any direct contribution to its formal contents.
The doctrine of partial insanity may be directly traced to his efforts. This doctrine was formulated by him in defending M’Naghten, in 1843, and the advisory opinions rendered by the judges to the House of Lords in a subsequent investigation of the case lent support to his theory. In the subsequent case of Banks v. Goodfellow, 5 Q. B. 549, he applied the doctrine to testamentary cases in terms which have since been generally accepted. His reasoning is that whatever may be the psychological theory as to the indivisibility of the mind, every one must be conscious that the faculties and functions of the mind are various and distinct, as are the powers and functions of our physical organization. The pathology of mental disease shows that while, on the one hand, all the faculties, moral and intellectual, may be involved in one common ruin, as in the case of the raving maniac, in other instances one or more only of these faculties may be disordered, leaving the rest undisturbed—that while the mind may be overpowered by delusions which utterly demoralize it, there often are, on the other hand, delusions which, though the offspring of mental disease, and so far constituting insanity, yet leave the individual in all other respects rational and capable of transacting the ordinary affairs of life.
On the law of libel—particularly with respect to the public press—Cockburn made a durable impression. In the leading case of Wason v. Walter, 4 Q. B. 73, he established the reservation in favor of privileged publications on its true foundation; i. e. that the advantage of publicity to the community at large outweighs any private injury that may be done. He also gave a strong impulse to the prevailing rule with respect to the limits of public criticism. His general principle was perfect freedom of discussion of public men, stopping short, however, of attacks on private character and reckless imputation of motives. When, therefore, a writer goes beyond the limits of fair criticism in making imputations on private character, it is no defence that he believed his statements to be true. “It is said that it is for the interests of society that the public conduct of men should be criticised without any other limits than that the writer should have an honest belief that what he writes is true. But it seems to me that the public have an equal interest in the maintenance of the public character of public men; and public affairs could not be conducted by men of honor with a view to the welfare of the country if we were to sanction attacks upon them destructive of their honor and character, and made without any foundation. Where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations upon his motives which arise fairly and legitimately out of his conduct, so that the jury shall say that the criticism was not only honest but also well founded, an action is not maintainable. But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is therefore justified in assailing his character as dishonest.”1
Lord Campbell records in his diary in June, 1856: “Having occasion for a new judge to succeed Erle, made Chief Justice of the Common Pleas, I appointed Blackburn, the fittest man in Westminster Hall, although wearing a stuff gown, whereas several Whig Queen’s Counsel, M. P.’s, were considering which of them would be the man, not dreaming that they could all be passed over. They got me well abused in the Times and other newspapers. . . . This was the sort of thing: ‘Everybody has been going about town asking his neighbour, who is Mr. Colin Blackburn? The very ushers in the courts shake their heads and tell you they never heard of such a party.’ ‘His legal claims to this appointment stand at a minimum.’ ‘The only reason which can be assigned for this strange freak of the Chancellor is that the new puisne judge is a Scotchman.’ ” But Lyndhurst came to his rescue in the House of Lords. “I have been asked,” he said, “who is Mr. Blackburn, and a journal which takes us all to task by turns has asked somewhat indignantly, ‘Who is Mr. Blackburn?’ I take leave to answer that he is a very learned person, a very sound lawyer, an admirable arguer of a law case and eminently fitted for a seat on the bench.” Never was a prediction more completely realized. This unknown Scotch lawyer proved himself to be the greatest common law judge of the century, and was destined in his long career of nearly thirty years in the Queen’s Bench, the Exchequer Chamber and the House of Lords, to make a larger volume of substantial contributions to English law than any other judge in English history save only Mansfield. From the outset he easily held his own with such judges as Cockburn, Wightman, Lush, Archibald and Field, and it was not long before he was recognized as the corner stone of the Queen’s Bench. In commercial law, of which he was completely master, he alone saved his court from being overshadowed by the authority of the Common Pleas under Willes. In real property law, also, he had no superior among his associates; and he was such a good all-round lawyer that even in those branches where a colleague was something of a specialist, he easily took second place. An acute observer has thus described the Court of Queen’s Bench in action during Blackburn’s supremacy: “So keen and alert was his mind, so full of the rapture of the strife, that in almost all cases it was he who in the point to point race made the running or picked up the scent. On such occasions all the papers and authorities in a case seemed to be drawn by a sort of magnetic attraction to his desk. And behind them he would sit with his wig on the back of his head, plunging his short-sighted eyes into one and another, firing off questions in quick succession at counsel on both sides, raising difficulties and objections, and at last, when the point was cleared, handing the conclusive document to the Lord Chief Justice, who, meanwhile, had often been leaning back in his chair in amused enjoyment of the scene, but, always ready to intervene at the psychological moment and bear off the honors of a point, or to enforce the conclusion in a judgment of inimitable force and diction.”
It is obvious that the law reports furnish no adequate memorial of the services of such a judge. Yet the volume of his work is immense. His name appears in almost every case, and, although his opinions are often admirably terse, he hardly ever simply concurred; on the other hand, he delivered the judgment of the court oftener than any of the puisnes. When he does undertake to formulate his views he gives fully the process by which he reaches his conclusion. While not so profuse in the use of authorities as Willes, his review of the cases is always thorough and interesting. He had no graces of style or flashes of imagination, but every conclusion is worked out with the hard headed and closely knit logic of his race. With a mind as vigorous as Jessel’s, and a humor, when called for, as caustic, he was always conscientiously scrupulous in the discharge of his judicial functions. Turner v. Walker, 1 Q. B. 118, illustrates his candor.
It is impracticable to give within brief limits more than an illustration of Blackburn’s vast contributions to the law. In mere volume his work was equalled during the century by Parke alone. There are more than six hundred cases in the reports in which he formulated in detail the reasons which influenced his judgment, and in more than one-quarter of these cases he delivered the unanimous opinion of the court. The list1 of cases cited in the note will give some indication of his work as a justice of the Court of Queen’s Bench, as a member of the Court of Exchequer Chamber, as an adviser to the House of Lords, and as a member of the court of final appeal.
As a general illustration of his method of exhausting a subject, both from principle and from precedent, reference may be made to his examination, in the case of Capital and Counties Bank v. Henty, 7 App. Cas. 741, of the modern law of libel. The value of the details of his elaborate arguments may be observed in his admirable statement in Cole v. North Western Bank, 10 C. P. 362, of the difficulties which the common law put in the way of the customs of merchants. Lord Blackburn contributed a leading case to the reports, not after his death, like Lord St. Leonards, but while serving as a judge. A litigant named Rosanna Fray, who felt aggrieved at his disposition of her case, sued him for damages, and the case of Fray v. Blackburn, 3 B. & S. 576, formally established the principle that no action will lie against a judge of a superior court for anything done in his judicial capacity, although it be alleged to have been done maliciously and corruptly.
Besides Wightman and Crompton (1853-65) in the earlier part, the other principal puisnes in the Queen’s Bench during the period were Mellor (1861-79), Shee (1863-68), and Lush (1865-80). Lush was the ablest of these judges; he closed his painstaking and useful service in the Court of Appeal.
During this period the Court of Common Pleas grew rapidly in importance and reached its highest standard. After Cockburn’s short service in this court (1856-59) the succeeding chiefs were Erle (1859-66), and Bovill (1866-73). In this court Erle added to the substantial reputation that he had made on the Queen’s Bench. The Court of Common Pleas under his presidency, as the Attorney-General said on his retirement, “obtained the highest confidence of the suitor, the public and the profession.” Bovill was unsurpassed in his practical mastery of commercial law, but his work as a judge suffered from want of more careful reflection in reaching conclusions.
The genius of this court, however, was Willes (1855-71), who was universally regarded by his contemporaries as the most learned lawyer of his time. He is said to have read systematically all the reports, from the first Year Book to the last volume of Meeson and Welsby. He was consequently familiar with the history of the law, and understood the relation which the principles of his day bore to past times. He was intimately acquainted with all the changes which the common law had undergone, and with all the rules and forms of the ancient system of pleading. He knew by heart every old term and maxim. To this thorough knowledge of the principles and history of English law in all its branches he added an extensive and accurate acquaintance with foreign systems of jurisprudence. To the great fountain head of civil law he habitually resorted for suggestion and comparison and analysis. Withal, his vast learning was his servant, not his master. And he could be as forcible with brevity as he was impressive in learning. Although his opinions are generally full and completely reasoned, his conclusion in the bankruptcy case of Marks v. Feldman, 5 Q. B. 284, is one of the shortest opinions on record: “Dolus circuiter non purgatur.” He constantly drew upon his vast store of case law for illustration and argument, to the unfailing interest of the profession, if not with uniform success with reference to the issue; but he never relied on mere authority where a principle could be discovered. An occasional tendency toward academical refinements, apparently inseparable from most scholastic minds, may be observed in his work, but it is almost invariably confined to the details of his exposition. His substantial conclusion is always marked by sound common sense. Unlike so many of his associates, whose technical learning was inferior to his own, he had no respect for technicalities, which he never hesitated to brush aside when they interfered with an obvious principle. It was this combination of mastery of detail and good sense which led to his employment in the preparation of the common law procedure acts. No one less familiar with the useless subtleties and effete technicalities of the legal system of that time, or less endowed with the breadth of mind necessary to free himself from their trammels, could have effected so completely and satisfactorily the revolution brought about by those acts.
Although reserved in disposition, among his intimates he seems to have been a singularly attractive personality. The authority of judicial station never dimmed the finer sensibilities of his nature. He was a man of the broadest culture, and seems to have taken all knowledge for his province. The classics were his familiar companions, and he found time to master all the spoken languages of Europe. The tone of his mind is largely reflected in the poetry of Wordsworth, of which he was a diligent student and admirer. In the unremitting performance of his judicial duties and the indefatigable pursuit of knowledge his over-worked mind finally gave way, and, in a moment of temporary insanity, he committed suicide. His remarks in the Fernandez contempt case, 30 L. J., C. P. 321, in answer to the suggestions of counsel that the dignity and privileges of the court were involved, may be taken as a true index to his judicial character: “I take leave to say that I am not conscious of the vulgar desire to elevate myself, or the court of which I may be a member, by grasping after pre-eminence which does not belong to me, and that I will endeavor to be ever valiant in preserving and handing down those powers to do justice and to maintain truth which, for the common good, the law has entrusted to the judges.”1
Besides Williams, who continued his service in this period, valuable assistance was rendered by Byles (1858-73), Keating (1859-75), and M. E. Smith (1865-71). Byles contributed largely to the popularity of the court in commercial cases, in which he was extremely accurate. Smith was an all-round influence for good; sagacious, sensible and practical, he added to the high standing of his tribunal.
During this period the Court of Exchequer declined in reputation, particularly during the latter half. Kelly, who succeeded Pollock in 1866 as Chief Baron, was old and soon became infirm; and an ill-assorted collection of barons, of whom Martin was the ablest,1 detracted from the unity and authority of the court. Nevertheless, this court was distinguished throughout the period by the services of Bramwell (1856-76).
In any consideration of modern English judges Baron Bramwell must hold a conspicuous place. In mere length of service (thirty-six years) he is surpassed in modern times only by Baron Parke, whom he succeeded. He is an interesting link between the past and the present. Coming to the bar soon after Lord Tenterden apologetically made a few changes in the supposed perfections of the common law, he lived to frame the Common Law Procedure Act and to assist in the final overthrow of the old system by the Judicature Act. He was doubtless a great lawyer and a learned judge, but his marked personality exerted an influence not limited by learning—the breezy, invigorating influence of sturdy common sense caustically applied to particular problems. In almost every respect he was a complete contrast to his prosaic predecessor, Baron Parke. He chose to mask a genial and generous nature under the garb of humorous cynicism; but in reality he was no cynic. Throughout his career he was one of the most popular as well as interesting of the judges. With a personality as vigorous as that of Maule or of Westbury, he was one of the sturdiest, manliest and kindest of men.2 He did not always respect conventional traditions, and his plain directness of speech sometimes shocked sensitive people. In the fearless discharge of his judicial functions he was never subservient to public opinion. Some observations in a charge having met with applause, he paused and then said quietly, “I recall those words—I must have been saying something foolish.”
Bramwell received his legal training in the strictest school of special pleading, and was familiar with all its mysteries. But he was not, like Parke, blind to the defects of the system. “I think,” he said, “that some twenty or thirty years hence, when the present generation of lawyers has ceased to exist, it will scarcely be believed that such a state of things did exist in a civilized country.” Consequently, when public opinion was ripe for a change, Bramwell was chosen for the task. It was conceded that Bramwell and Willes did most of the work. The final overthrow of the old system by the Judicature Acts received his cordial support.
He occasionally showed the effect of overtraining in the dialectic of special pleading in his fondness for framing dilemmas (see his opinion in the Bernina case, 13 App. Cas. 11) and, more rarely, in the maintenance of metaphysical positions somewhat removed from common sense. One of the most conspicuous instances of this susceptibility to scholastic logic was his contention that an action for malicious prosecution will not lie against a corporation (Abrath v. North Eastern Ry., 11 App. Cas. 247). A corporation, he maintained, is incapable of malice or motive; if the stockholders direct a malicious prosecution they are personally liable, while such action by the directors would be ultra vires.1 Another characteristic perversion was his application of the maxim volenti non fit injuria. “It is a rule of good sense,” he said in Smith v. Baker, (1891) A. C. 325, “that if a man voluntarily undertakes a risk for a reward which is adequate to induce him, he shall not, if he suffers from the risk, have a compensation for which he did not stipulate. He can, if he chooses, say, ‘I will undertake the risk for so much, and if hurt you must give me so much more, or an adequate equivalent for the hurt.’ But drop the maxim. Treat it as a question of bargain. The plaintiff here thought the pay worth the risk and did not bargain for a compensation if hurt; in effect he undertook the work with its risks for his wages and no more. He says so. Suppose he had said, ‘If I am to run this risk you must give me six shillings a day, and not five shillings,’ and the master agreed, would he in reason have a claim if he got hurt? Clearly not. What difference is there if the master says, ‘No, I will only give the five shillings.’ None. I am ashamed to argue it.” He reargued the same matter in Membery v. Great Western Ry. 14 App. Cas. 179: “I hold that where a man is not physically constrained, where he can at his option do a thing or not, and he does it, the maxim applies. What is volens? Willing; and a man is willing when he wills to do a thing and does it. No doubt a man, popularly speaking, is said to do a thing unwillingly, with no good will; but if he does it, no matter what his dislike is, he prefers doing it to leaving it alone. He wills to do it. He does not will not to do it. I suppose nolens is the opposite of volens, its negative. There are two men; one refuses to do work, wills not to do it, and does not do it. The other grumbles, but wills to do it and does it. Are both men nolens, unwilling? Suppose an extra shilling induced the man who did the work. Is he nolens or has the shilling made him volens? There seems to be a strange notion that a man who does a thing and grumbles is nolens, is unwilling, has not the will to do it, or that there is something intermediate nolens and volens, something like a man being without a will and yet who wills. If the shilling made him volens, why does not the desire to continue employed do so? If he would have a right to refuse the work and his discharge would be wrongful, with a remedy to him, why does not his preference of a certain to an uncertain law not make him volens as much as any other motive? There have been any infinity of profoundly learned and useless discussions as to freedom of the will; but this notion is new.”
The truth is, the good Baron’s political views were so pronounced that in a certain class of cases they influenced his judicial opinions. He was the stoutest of liberals, and looked with alarm upon modern socialistic tendencies—“grandmotherly protection,” he termed it. “Please govern me as little as possible,” he said. This was his point of view on many legal doctrines.1 Sometimes this tendency moved in directions where his fearless independence and plain speech were most needed. In the trades union case, R. v. Druitt, 10 Cox Cr. Cas. 592, he asserted in broad terms that by the common law of England the liberty of a man’s mind and will, how he should bestow himself and his means, his talents and his industry, was as much the subject of the law’s protection as was that of his body. Certain details of his exposition of the law in that case have since been regarded as obiter dicta, but his views deserve careful consideration. Nothing could be saner than his views in the great Mogul Steamship case (1892), A. C. 25, on the vital subject of freedom of trade. “It is admitted,” he said, “that there may be fair competition in trade, that two may offer to join and compete against a third. If so, what is the definition of fair competition? What is unfair that is neither forcible nor fraudulent? It seems strange that to enforce freedom of trade, of action, the law should punish those who make a perfectly honest agreement with a belief that it is fairly required for their protection.” The inquiry, “What is unfair that is neither forcible nor fraudulent?” is the sum and substance of his legal and political philosophy. Throughout his judicial and political career he stood firmly on the ground of strict adherence to contract. “A bargain is a bargain,” he used to say; and he strongly deprecated making contracts for people, whether by legislation or through equity. It may be inferred, therefore, that he had little sympathy with certain equitable doctrines. In the case of Salt v. Northampton, (1892) A. C. 18, on the validity of fetters on redemption in mortgage transactions, he took occasion to say: “Whether it would not have been better to have held people to their bargains, and taught them by experience not to make unwise ones, rather than relieve them when they had done so, may be doubtful. We should have been spared the double condition of things, legal rights and equitable rights, and a system of documents which do not mean what they say. But the piety or love of fees of those who administered equity has thought otherwise, and probably to undo this would be more costly and troublesome than to continue it.” And he adverts, in Derry v. Peck, 14 App. Cas. 337, to what he considered the mistake made by courts of equity in “disregarding a valuable general principle in their desire to effect what is, or is thought to be, justice in a particular instance.” But if he was inclined to lean too much toward the legal as distinguished from the equitable view of rights, he seldom failed to temper his common law views with the good sense which gives to technical rules their just limitations. Bramwell was quick to see the weak side of a case against a railway corporation. This tendency was not, however, an original prejudice, but rather an effort to rectify the injustice done by misdirected sympathy for the weaker side. “Let us hold to the law. If we want to be charitable, let us gratify ourselves out of our own pockets” (1891) A. C. 346. The authorities, he said on another occasion, “show a generous struggle on the one hand to make powerful companies liable to individuals, and on the other hand an effort for law and justice. Sometimes one succeeds, sometimes the other, and the cases conflict accordingly” (13 App. Cas. 51). “It does not follow that if a man dies in a fit in a railway carriage there is a prima facie case for his widow and children, nor that if he has a glass in his pocket and sits on it and hurts himself, there is something which calls for an answer or explanation from the company.”
Aside, however, from the well-recognized class of cases in which he was known to entertain favorite prepossessions, he was a sound judge. As a whole, clearness of perception, strength of judgment and wide acquaintance with the world of affairs are indelibly stamped upon his work. On many occasions his quick perception, good sense and dry humor were admirable solvents to the doubts and difficulties of his more subtle-minded brethren. A good instance is his characterization of the distinction sought to be made in Derry v. Peek, 14 App. Cas. 337, between legal and actual fraud: “I do not think we need trouble ourselves about ‘legal fraud,’ nor whether it is a good or bad expression, because I hold that actual fraud must be proved in this case to make the defendants liable, and, as I understand, there is never any occasion to use the phrase ‘legal fraud’ except when actual fraud cannot be established. ‘Legal fraud’ is only used when some vague ground of action is to be resorted to, or, generally speaking, when the person using it will not take the trouble to find, or cannot find, what duty has been violated or right infringed, but thinks that a claim is somehow made out.” In commercial law, in particular, he was a recognized authority. His powerful dissenting opinion in the Vagliano case (1891), A. C. 107, shows his familiarity with the subject. It was he who suggested the theory of limited liability. In the domain of torts, the application of the doctrine sic utere tuo ut alienum non laedas in Rylands v. Fletcher was due, in the first instance, to Bramwell, who differed from the other judges in the Exchequer.
Probably he was at his best sitting with a special jury. There, what has been aptly called the high initial velocity of his mind in mastering facts, assaying evidence and applying general principles to particular facts, came into full play. His insight into human nature was keen; he knew its weaknesses and its faults, and humbug had no chance before him. The force of common sense and caustic humor could go no further than his admirable charges to juries. In a case where a farmer was charged with shooting at a boy who was stealing apples, after a lengthy argument by the counsel for the defendant, Bramwell charged the jury as follows: “Considering the materials he had, I am surprised, gentlemen, that the learned counsel did not make his speech longer. I, however, shall leave the case to you in eight words: The prisoner aimed at nothing and missed it.” He had, moreover, rare skill in putting his view of a case before a jury without seeming to take a side. His highly original and independent mind contributed much to enliven the reports of his time. His clear and analytical intellect expressed itself in a vigorous and epigrammatic style which is as rare in the reports as it is refreshing. No man appeared to think less of words and more of substance, yet few Englishmen have used their mother tongue with greater effect. His discussion, in the case of the Commissioners of the Income Tax v. Pemsel, (1891) A. C. 531, as to what constitutes a charity, is a good example of his happy colloquialism:
“I hold that the conversion of heathens and heathen nations to Christianity or any other religion is not a charitable purpose. That it is benevolent, I admit. The provider of funds for such a purpose doubtless thinks that the conversion will make the converts better and happier during this life, with a better hope hereafter. I dare say this donor did so. So did those who provided the fagots and racks which were used as instruments of conversion in times gone by. I am far from suggesting that the donor would have given funds for such a purpose as torture; but if the mere good intent make the purpose charitable, then I say the intent is the same in the one case as in the other. And I believe in all cases of propagandism there is mixed up a wish for the prevalence of those opinions we entertain, because they are ours. But what is a charitable purpose? Whatever definition is given, if it is right as far as it goes, in my opinion this trust is not within it. I will attempt one. I think a charitable purpose is where assistance is given to the bringing up, feeding, clothing, lodging and education of those who from poverty, or comparative poverty, stand in need of such assistance—that a temporal benefit is meant, being money or having a money value. This definition is probably inefficient. It very likely would not include some charitable purposes, though I cannot think what, and include some not charitable, though also I cannot think what; but I think it substantially correct, and that no well-founded amendment of it would include the purposes to which this fund is dedicated. . . . I think there is some fund for providing oysters at one of the Inns of Court for the Benchers; this, however benevolent, would hardly be called charitable; so of a trust to provide a band of music on the village green.”
For authorities however venerable, if irrational or founded on doubtful principles, he had scant respect. “I am prone,” he once said, “to decide cases on principles, and when I think I have got the right one I am apt (I hope I am not presumptuous), like Caliph Omar, to think authorities wrong or needless.” He was well equipped with self-confidence. “Lord Cairns was a great lawyer and a consummate judge,” he said in one case, “but I differ with him unhesitatingly.” He was too tenacious of his personal opinions, some thought. The view that posting acceptance of an offer which never reaches the offerer constitutes a contract, is one of the doctrines to which he would not assent.1 It is often amusing to observe his efforts to enforce his favourite views. In the Membery case2 his discussion of the doctrine volenti non fit injuria was really unnecessary to the determination of the issue. This is the way he introduces it: “Of course it is in a sense not necessary that I should express an opinion on this, as the ground I have just mentioned, in my opinion, disposes of the case. But if, instead of mentioning that ground first, I had mentioned the one I am now dealing with, it would, on the same reasoning, be unnecessary to mention that. What I am saying is not obiter, not a needless expression of opinion on a matter not relevant to the decision. There are two answers to the plaintiff, and I decide against him on both, one as much as the other.”3
The courts of equity responded slowly to the spirit of reform. A new and better period in chancery may be said to have begun with the accession of Lord Westbury to the woolsack in 1861. During the succeeding fifteen years the Chancery was presided over by Westbury, Cairns, Hatherley and Selborne. Of these judges, Westbury, Cairns and Selborne rank among the most distinguished names known to English law.
Lord Westbury once said of a distinguished contemporary that “the monotony of his character was unrelieved by a single fault.” From such a characterization Westbury himself was surely exempt. With professional capacity of the highest order he combined peculiarities of mind and faults of character which marred much of his work. His eminence as a lawyer was unquestioned by his bitterest enemies. Baron Parke considered him the greatest advocate at the bar; Sir George Jessel described him as a man of genius who had taken to the law. Gladstone, who had frequent occasion to learn the temper of Westbury’s mind, said of him: “It was subtlety of thought, accompanied with the power of expressing the most subtle shades of thought in clear, forcible, and luminous language, which always struck me most among the gifts of Lord Westbury. In this extraordinary power he seemed to have but one rival among all the men, lawyers and non-lawyers, of his age. I may be wrong, but the two men whom, in my own mind, I bracketed together were Lord Westbury and Cardinal Newman.” It was this rare combination of thought and expression which particularly distinguished him. His power of lucid statement, which was accompanied by a rare capacity for marshaling a multitude of facts and collateral details in their logical order, arose from readiness and clearness of conception. “Clearness of expression,” he said, “measures the strength or vigor of conception. If you have really grasped a thought, it is easy enough to give it utterance.” His mental bent was almost wholly judicial; he convinced by appeals to sober judgment rather than to considerations of expedient or sentiment; and the elevation which he gave to the simplest discussion arose from his habit of bringing the driest details to the test of original principles.
Westbury’s most conspicuous defect was an arrogant consciousness of intellectual superiority, manifesting itself, with utter disregard for the feelings of others, in fondness for caustic wit and rather spinous humor. He was too much in the habit of what his biographer has termed thinking aloud, without regard to the effect which the expression of his thoughts might have on others. His deliberate method of setting people right provoked intense irritation; when roused by pretentiousness or humbug, his sarcasm fell with blistering effect. In fact he bids fair to be remembered by the public at large merely as the author of innumerable sharp sayings. He took a characteristic part in the theological controversies of the time; baiting the bishops in the House of Lords was his favorite occupation. By his judgments in the case of the authors of “Essays and Reviews” and the Colenso case, he was said to have “dismissed hell with costs and taken away from the orthodox members of the Church of England their last hope of everlasting damnation.” His description of a synodical judgment as “a well-lubricated set of words, a sentence so oily and saponaceous that no one could grasp it,” has never been forgotten. The consequence of his unfortunate lack of restraint was that his enemies not only succeeded in blocking the great scheme of law reform which seems to have been the one continuous purpose of his life, but also contrived to make so much of a case of official delinquency in the distribution of the patronage of his office that Westbury resigned after a vote of censure. It may suffice to say that his personal honor was in no way involved. Since Westbury’s day other men, better suited by temperament for the patient diplomacy by which alone radical legislative action is attained, have carried on the work of law reform which he began; and as the outline of his splendid conception is gradually filled in by accomplished fact, it becomes us to remember him for his aspirations as well as for his actual achievements.
The law reports contain about two hundred and fifty cases in which Lord Westbury formulated an opinion. In reading them, one is struck with his facility in stripping cases of complicated and bewildering detail, and reducing them to simple, intelligible propositions. Impatient of authority, he sought to ground his conclusions upon elementary principles. It is common to find in his work such opening statements as these: “My lords, we are all exceedingly glad when, in a collection of miserable technicalities such as these which are before us here, we can find our way to something like a solid and reasonable ground of decision” (5 E. & I. App. 25). “There is no difficulty at all in the matter, and if the general rules of law were more steadily kept in view it would be unnecessary to range up and down a variety of decisions, because those rules would afford the best answer and secure the removal of every difficulty” (5 E. & I. App. 529). His skill in exposition was of the highest order. His statement of the principles of extra-territorial jurisdiction in Cookney v. Anderson, 32 L. J., Ch. 427, is a good illustration of his style and method. Although his lack of respect for authority sometimes led him to go somewhat beyond the mark, his mental acuteness was restrained, in the exercise of his judicial functions at least, by good sense.1 His substantial contributions to the law deal mostly with topics upon which there was a conflict of opinion, or which fall outside the ambit of well-settled authority. His great opinion in the case of Taylor v. Meads, 4 DeG., J. & S. 597, on the testamentary capacity of married women, is a good illustration of his remarkable skill in settling discussion of a complex subject. The domain of what has been called private international law afforded scope for his peculiar powers.1 Trade-marks and patents were also congenial subjects.2 He made several contributions of importance to the law of prescriptive easements.3 Other miscellaneous decisions will be recognized by the professional reader as legal landmarks.4
It is difficult to characterize the mind and career of Lord Cairns (1868; 1874-80) without seeming to exaggerate. It may therefore be well to quote, at the outset, the deliberate opinion of his life-long professional and political antagonist, Lord Selborne. Referring to Lord Salisbury’s statement that Cairns “had an eminence not often granted to a single man, in that he was equally great as lawyer, statesman and legislator,” Selborne said: “Even that enumeration of his titles to greatness fell short of the truth; for he was also a great orator, and a man exemplary in private life. It would be difficult to name any chancellor (except Lord Hardwicke) who was certainly his superior, or indeed in all respects his equal. Lord Somers was a greater statesman, Lord Lyndhurst a greater orator, Lord Eldon a more profoundly learned lawyer; but the degree in which they severally excelled him in these respects was less than that in which he excelled them in other qualities, more necessary than statecraft or eloquence and not less necessary than learning for a great judge; and the gifts which in them shone separately were in him combined. Lord Thurlow, Lord Rosslyn and Lord Westbury had not less ability; but he was more of a statesman, a more persuasive orator and on the whole a better judge than any of them. There have been chancellors, such as Lord Talbot, Lord Cranworth and Lord Hatherley, whose private virtues were not less conspicuous and whose public reputation was not less honorable, yet who were not, like him, as fit to play a great part in political as in judicial affairs.”1 By Jessel, Benjamin, and his most distinguished contemporaries, he was regarded as the ablest lawyer of his day. It may be said at the outset that his high reputation derived no adventitious support from personal affection. He was never popular. His manner was austere, cold and sternly self-repressive. This was undoubtedly due in a large measure to continual ill health. His gloomy religious views may also have influenced his temperament. Religion, indeed, seems to have enlisted the deepest feelings of his nature. It was with him the paramount consideration, in comparison with which, he once said, all else—honor, reputation, wealth, recreation—were “nothing, absolutely nothing.” A stern Protestant in his views of ecclesiastical polity, he disliked with all the strength of his austere nature the tolerance of modern thought.
The most obvious characteristic of his career is his astonishing versatility. At the outset of his professional labors his constitutional diffidence was so great that he deemed himself fitted only for chamber practice. He soon gained confidence in his powers, however, and at an early age became the acknowledged leader of the chancery bar. Although his professional labors were confined almost entirely to equity cases, he argued many Scotch and ecclesiastical appeals with marked ability; and on the rare occasions when he appeared before a jury—such as the Windham lunacy case, and the Alexandra case, arising out of our Civil War—he displayed, as if by intuition, the most consummate powers of popular advocacy. In public life, too, he displayed a capacity for statesmanship which few great lawyers have possessed. He was not only “great in council,” as Disraeli said, but, next to the Prime Minister himself, he was the ablest orator of the Conservative party. Almost alone among great lawyers, he seems to have had a strong apprehension of the class of considerations which determine party policy and influence public opinion. Legal distinctions, it has often been pointed out, are so specific in kind that they seem to incapacitate ordinary minds for the apprehension of moral and political distinctions. Distinguished lawyers in public life are apt to become either so merged in mere party advocacy that they cease, like Westbury, to exhibit individual character and conviction, or, like Selborne, when once they leave the firm ground of legal principle, they lean toward extreme views on either side from sheer want of apprehension of the intermediate resting places of political thought. But Cairns’ public speeches are replete with independent political thought and strong personal conviction, and his sagacity is as keen and his logic as close on subjects of purely political interest as on legal topics. In manner, both at the bar and in public life, he was Scotch rather than Irish, logical rather than emotional. His great speech on the Reform Bill of 1867 was described by one of his opponents as “frozen oratory;” “It flows like the water from a glacier; or rather it does not flow at all, for though Cairns never hesitates or recalls a phrase, he can scarcely be called a fluent speaker. His words rather drop with monotonous and inexorable precision than run on in a continuous stream. The several stages of his speech are like steps cut out of ice, as sharply defined, as smooth and as cold.” There was a studied absence of passion, and an entire concentration on thought, clear exposition and remorseless logic. Beneath his cold exterior, however, there was the deepest feeling. Occasionally, when he was deeply moved, this suppressed fire came to the surface. One of these occasions was the disestablishment of the Irish Church, which aroused the deepest feelings of his nature. An eye witness to the final debate relates how “the Lord Chancellor, pale, emaciated, evidently very ill, but possessed by a spirit which no physical infirmities could overcome, stood at the side of the woolsack pouring forth for hours an unbroken stream of clear and logical eloquence against the measure before the House.”1
An examination of Cairns’s judgments is apt, on first view, to be somewhat disappointing. In the first place, ill health constantly interfered with his work. He participated in the hearing of less than four hundred cases during his whole judicial career. In more than half of these cases he did not formulate an independent opinion. Moreover, Cairns seldom explained the process by which his mind reached a result. Yet his mind was severely logical; he had attained the perfect mental discipline which enabled him to follow without reflecting on the rule. With his swift, strong, subtle instinct for the truth, he was able to disregard the slow, syllogistic processes along which ordinary minds move. He made no display of learning, like Willes and Blackburn, though his learning was unquestioned. He exhausted the argument from principle, and only in conclusion illustrated it by reference to a few leading cases. His solution of the great case of Rylands v. Fletcher, 3 E. & I. App. 330, on the “duty of insuring safety,” is a typical illustration of his method. Ward v. Hobbs, 4 App. Cas. 19, is one of the rare instances in which he exposed the process by which he reached his conclusion. For a specimen of his skill in exposition reference may be made to his address to the jury in the celebrated Windham lunacy case: “It may be convenient to remind you what the precise issue is. You are to decide whether Mr. Windham is incapable of managing his affairs—not whether he is of unsound mind, but whether he is incapable of managing his affairs by reason of unsoundness of mind. The object of making that distinction is plain and simple. There are many cases in which a man may be said to be incapable of managing his affairs. He may be incapable by reason of ignorance, or on account of inexperience and want of peculiar skill, or because of a preference for literary or other pursuits of a kind utterly unconnected with the management of property, or in consequence of a ruinous and inveterate habit of gambling. Such a person may justly be said, in a certain sense, to be incapable of managing his affairs, and, indeed, the Roman law made no distinction between unthrifts and idiots. But in England a man cannot be deprived of his personal liberty or his property on the ground of incapacity, until a jury of his countrymen are satisfied, first, that he is incapable of managing his affairs, and, secondly, that his incapacity arises from unsoundness of mind. Moreover, you are to bear in mind that the presumption is in favor of sanity, and that it lies upon those who allege unsoundness to make out and prove their case. I call your attention to the peculiar nature of the insanity alleged in the petition against Mr. Windham. It is not an ordinary case of insanity accompanied by delusions—a case in which the great and critical test of sanity is the absence or presence of hallucinations—but a case of imbecility approaching to idiocy, or amounting to unsoundness of mind. In a case of insanity accompanied by delusions, the mode of investigating it, so as to arrive at the truth, is a matter of great difficulty and doubt; but in a case of imbecility, where there is either no mind at all or next to none, the task of coming to a right or just decision is comparatively easy. It is impossible for a man who is said to have only a limited amount of mind, or none at all, to assume at any moment or for any purpose a greater amount of mind than he really possesses. If the mind is not there, or only there in a certain small and limited quantity, no desire on the part of the individual to show a greater amount of mind, or to assume the appearance of a greater amount of mind, can supply him with that which nature has denied him. Hence when a man is charged with imbecility, if it can be shown that for a considerable time and in various situations he has acted like a natural being, any acts of folly which might be alleged against him should be carefully, deliberately and keenly investigated, because at first sight it is next to impossible that a man can at certain times assume a mind and intelligence which are wholly absent.”
Although a scholar of the highest attainments, Cairns’ opinions are never academic. The frugality of his style is in marked contrast to the fertility of thought. Of words or illustrations or expository digressions, he is sparing to a fault; he never relaxes the tension of the argument. These characteristics point toward the most conspicuous quality of his work—lucidity. The most complex legal problem seemed to present no difficulty to his mind. He disembarrassed himself of details and grasped principles, and by strict logical deduction from general principles about which there could be no dispute, he not only settled the law, but also terminated discussion.1 He had, moreover—and this was his crowning gift—that cultured imagination which is essential to the highest juridical art. Imagination, after all, is, for the most part, simply depth and breadth of insight; and, far from being detrimental to judicial thought, surely no quality could be more desirable in the administration of the law than the intellectual and imaginative insight which goes to the heart of things and expresses in perfect form a rule for future guidance. The luminous effect of Cairns’ imagination may be observed to splendid advantage in the case of Gardner v. London, etc., Ry., 2 Ch. App. 201, on the vexed question of the relative rights and obligations of railway companies and their debenture holders. The briefs of counsel on either side will indicate the doubt and conflict of opinion in which the subject was involved. Cairns’ solution of the problem by reference to a going concern as a “fruit-bearing tree” is highly imaginative, and was so convincing that further discussion ceased. In the vibration case of Hammersmith Ry. v. Brand, 4 E. & I. App. 215, involving the right to recover for damage incident to authorized acts, he failed for once to convince his colleagues. Probably his most important contributions to the law lie within the domain of company affairs. But they are scarcely superior to his judgments in cases of contract. One of his most original contributions to jurisprudence is his series of decisions as arbitrator in the complicated affairs of the Albert Insurance Company. This company was the final result of various financial transformations, and many of the claims against it turned upon the doctrine of novation. Cairns took an advanced position with respect to the assent of the debtor to novation, justifying his position by considerations drawn from the rapidly changing nature of commercial transactions in the present day.1 As a law reformer he was the worthy successor of Westbury. Although the Judicature Act of 1873 was passed under Lord Selborne’s chancellorship, public opinion had been aroused and the main outlines of the reform suggested by Cairns, who was chairman of the first Judicature Commission of 1866. It was he who influenced the modification of the act so as to retain the final appellate jurisdiction of the House of Lords.1
Hatherley (1868-’72) sustained on the woolsack the reputation which he had made as vice chancellor. He was an accurate and sound judge, although somewhat overshadowed by his distinguished contemporaries. He thought so quickly and expressed his opinion so readily (he always delivered oral judgments) that his opinions lacked form. Lord Campbell, on appeal, once commented strongly on the “prodigious length” and slipshod style of his judgments. He was amiable and exceedingly religious. “The monotony of his character,” said Westbury, “was unrelieved by a single fault.”1
Sir John Romilly (1851-’73) presided over the Rolls Court during this period, when the work of the court was rapidly increasing. His numerous decisions display industry rather than breadth and grasp. His haste in disposing of cases led him sometimes to decide without sufficiently considering the principles involved and the precedents by which they were governed, and he was often reversed on appeal. Vice chancellors of various degrees of ability served during this period. Upon the promotion of Knight-Bruce in 1851, and of Turner in 1853, to the Court of Appeals in Chancery, and of Rolfe, in 1851 to the woolsack, the office was held during the next fifteen years by Kindersley (1851-’66), Stuart (1852-’71) and Page-Wood (1853-’68). Kindersley was a sound equity lawyer, whose decisions were seldom reversed. His opinions are, as a rule, based upon broad principles, and bear the impress of a superior mind. Stuart was the weakest of the later vice chancellors, and was generally reversed on appeal. A witty barrister once placed an appeal from his decision on the calendar of motions of course. Page-Wood was one of the most competent and satisfactory judges holding this office. It was as vice chancellor that he laid the basis of the reputation in equity which led to his appointment as chancellor. The principal vice chancellors in later times were Malins (1866-’81), and Bacon (1870-’86). Gifford (1868-’69) and James (1869-’70) spent a brief period in this court on their way to the Court of Appeal, and Hall (1873-’82) was not particularly distinguished. Malins, in spite of judicial peculiarities, was a competent equity lawyer, and the reports contain some excellent expositions by him of various branches of real property law. Bacon, the last of the vice chancellors, was a man of varied accomplishments, not the least of which was the literary skill which makes his opinions such entertaining reading.
Probate, Divorce and Admiralty Courts
The outcry against the ecclesiastical administration of probate and matrimonial affairs at length became too formidable to be resisted. The inefficiency of most 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 neither appointed by nor responsible to the Crown, called loudly for reform. The humorous absurdity of many of the ancient abuses have been preserved in lasting caricature by Dickens in “David Copperfield.” The practical objection to the jurisdiction was that, in the absence of its power to bind the heir in relation to land, there might be a decision one way in the ecclesiastical courts as to personal property, and another at common law as to real estate, arising out of the same document. It seems incredible that such a state of affairs could have lasted for centuries.
With respect to matrimonial affairs the conditions were quite as unsatisfactory. The abuses of the procedure of the ecclesiastical courts had affected the trial of these causes to such an extent that redress was practically denied to persons of moderate means. To obtain an absolute divorce resort had to be made to Parliament, and the cost of carrying a bill through both Houses was practically prohibitive. Justice Maule brought out the incongruities of the law with characteristic irony in passing sentence in a bigamy case. “I will tell you,” he said, addressing the prisoner, “what you ought to have done under the circumstances, and if you say you did not know, I must tell you that the law conclusively presumes that you did. You should have instructed your attorney to bring an action against the seducer of your wife for damages. That would have cost you about £100. Having proceeded thus far, you should have employed a proctor and instituted a suit in the ecclesiastical courts for a divorce a mensa et thoro. That would have cost you £200 or £300 more. When you had obtained a divorce a mensa et thoro you had only to obtain a private act of Parliament for a divorce a vinculo matrimonii. This bill might possibly have been opposed in all its stages in both Houses of Parliament, and altogether these proceedings would have cost you £1,000. You will probably tell me that you never had a tenth of that sum, but that makes no difference. Sitting here as an English judge, it is my duty to tell you that this is not a country where there is one law for the rich and another for the poor. You will be imprisoned for one day.”
Finally, in 1857, this anomalous condition of affairs came to an end. The ecclesiastical courts were by statute divested of all power to entertain suits relating to probate of wills and grants of administration, to declare the validity of marriages, and pronounce divorces a mensa et thoro, and such jurisdiction was conferred upon a new court of common law, which was to sit in Westminster Hall in two divisions, called respectively the Court of Probate and the Court for Divorce and Matrimonial Causes. The success of the change depended largely upon the judge who should first exercise the new jurisdiction. Fortunately, Cresswell was transferred from the Common Pleas. He was a strong, able and experienced judge, and a man of the world, and justified every reasonable expectation. Under his guidance the procedure of the court was adapted to modern ideas, witnesses were examined viva voce in open court, a concise form of pleading was introduced, and parties could, upon application, have any disputed matter of fact tried by a jury. The reports of Swabey and Tristram, which contain his clear and concise opinions and charges to juries, are monuments of learning and common sense; and so skilfully, and with such foresight, were the modern foundations of this jurisdiction laid that his judgment is said to have been only once reversed.1 Wilde, an industrious and painstaking judge, who is best remembered by his subsequent title as a legal peer, Lord Penzance, succeeded Cresswell in 1863, and in turn gave way to Hannen in 1872, on the eve of the Judicature Act.
Lushington continued his distinguished labors in admiralty and ecclesiastical affairs until 1867, when he was succeeded by Phillimore (1867-83). Through his voluminous writings and his work on the bench, Phillimore attained great distinction. A new practice and a rapidly increasing volume of litigation gave rise to novel and intricate problems. His elaborate opinions are replete with historical knowledge, and are always luminously expressed. In 1875, under the Judicature Act, he became a member of the Probate, Divorce and Admiralty Division of the High Court.2
Court of Appeal in Chancery
The Court of Appeal in Chancery, which was established in 1851, was throughout its brief history one of the most satisfactory courts that ever administered English law. The original lords justices were Knight-Bruce (1851-66), and Rolfe (1851-52). Rolfe was soon made chancellor, and Turner (1853-67) succeeded him. The court for fifteen years consisted of Knight-Bruce and Turner—an ideal court, animated by profound knowledge of law, and marked aptitude in its successful application to new conditions. Turner was on all occasions courageous in expanding the remedial powers of the court to meet modern developments; and so anxious was Knight-Bruce to shake off the trammels of technical procedure when they interfered with what he conceived to be the justice of the case, that in some of his decisions as vice chancellor (generally overruled by Cottenham) he anticipated reforms which shortly followed. One of Knight-Bruce’s most prominent characteristics was his fastidious English; and a certain irrepressible humor pervaded his gravest judgments. So vigorous and original was his mind, so animated and epigrammatic his style, so constant his flow of humor, that his opinions are veritable oases in the dreary wastes of the chancery reports. These sentences are taken at random: “Men may be honest without being lawyers, and there are doings from which instinct without learning may make them recoil.” “Some breaches of good manners are breaches of law also.” “The decree in this case is a matter of course unless the court and the laws of this country are to be reconstructed with a view to this particular case.” See, also, his highly characteristic opinion in Thomas v. Roberts, where the father of a child had joined a new sect and had gone to live in “a sort of spiritual boarding-house,” to which, as a home for the child, Knight-Bruce said he would prefer a “camp of gypsies.”1 The contrast between Knight-Bruce and Turner in their habits of thought and modes of expression—the vivacity and dry humor of the one and the steadiness and gravity of the other—blended admirably in result.2
Several distinguished chancery lawyers sat in this court for brief periods. Cairns (1866-68) and Page-Wood (1868) were elevated to the woolsack, and Rolt (1868-69), Selwyn (1868-69) and Gifford (1869-70) died in office. During his brief service as lord justice, Cairns justified the expectations raised by his distinguished career at the bar. He began in this court the splendid service which, continued in a higher tribunal, placed him in the front rank of English judges. In 1870 the unity of the court was again restored under James (1870-81) and Mellish (1870-77). James was a most eminent judge, exceptionally learned, and gifted with rare power in the formulation of principles. Cairns said of him that he had a no less admirable share of common sense than of law. In quoting his own decisions he would humorously add, “which is an authority though I joined in it.” His comprehension of a case was rapid and masterly, and his memory marvelous. Bramwell said of him that “he possessed every quality and accomplishment that a judge needed. He had a very great intellect, at once keen and profound. He was a consummate lawyer, thoroughly imbued with legal principles. He was a man of vast experience, not merely in the law, but in those things which make a man what is commonly called a man of the world, fitted to deal with the affairs of the world. He had but one desire when he took his seat upon the bench, and that is, that justice should be done according to right. It was said of him, and truly, that he was rapid in the formation of his opinions and confident in the expression of them, and so he was, and so a man of his ability had a right to be; but I can say this of him, that a more candid man never lived, nor one more ready to renounce an opinion, though he had given expression to it in the most confident way, if he thought it was wrong.” His most substantial contributions to the law were in the domain of company, bankruptcy and patent law.1
Mellish was considered by many eminent judges the ablest advocate of his time before a court in banc. Lord Selborne said of him that “as an advocate he was distinguished above all other men whom I remember at the bar by the candor of his arguments and by the decision with which he threw aside everything which did not seem to him relevant to the case and deserving of serious consideration by the court which he was addressing.” Mellish belonged to the common law bar, but his mastery of the principles of jurisprudence and the judicial quality of his intellect qualified him to sit in any court. He came to the bench with an impaired constitution, which limited his work both in quality and in extent; but his subtle mind, stored with the learning of the common law, in combination with James’ profound knowledge of equity, made a most satisfactory court of appeal, and justified the subsequent establishment of a single court of appeal in law and equity.1
The House of Lords and the Privy Council
The ultimate reorganization of the House of Lords as an appellate tribunal owes much to Lord Westbury. As the leader of the chancery bar and a law officer of the government, it was his caustic wit that concentrated attention upon the defects of the existing system and overcame the inertia of public sentiment; and subsequently, as lord chancellor, it was he who brought to the discharge of his judicial functions the commanding ability which led the way to better things.2 It was finally determined to reinforce and infuse adequate ability in the House by the creation of life peers. The plan itself was admirable, but the elevation of Baron Parke as Lord Wensleydale, in pursuance of the plan, was not calculated to further liberal views. Wensleydale came to the House of Lords after his long domination in the common law courts—and, it may be added, just as his domination ceased. The Common Law Procedure Act seemed to him a desecration of the sacred system of special pleading, and led to his retirement from the Exchequer. The atmosphere of the House during his twelve years’ service was not congenial to his peculiar powers. Lord Campbell, whose unquestioned learning was his servant, not his master, combated here, as he had in the courts below, the narrow technicalities within which Wensleydale sought to confine the common law. Then the preponderance of equity lawyers, due to the rapid succession of chancellors, was little calculated to lend support to his general views. A far more accomplished lawyer was added to the court in 1858 in the person of Lord Kingsdown, after his brilliant services in the Privy Council. From the chancellorship of Westbury (1861-65) a new period may be said to begin. Himself one of the ablest lawyers who ever held the seals, Westbury had the assistance of four ex-chancellors and two legal peers. The chancery element now predominated, and the eminent ability of the succeeding chancellors, Cairns, Hatherley and Selborne, maintained this ascendancy for the remainder of the period. In 1867 the court was further strengthened by the addition of a distinguished Scotch lawyer, Lord Colonsay. In 1869 Sir James Wilde was also raised to the peerage as Lord Penzance. The court now, for the first time, gave satisfaction, particularly in equity. The reports of its decisions, as contained in the last volumes of Clark’s House of Lords Cases, the English and Irish Appeal Cases (1865-75), and the Scotch and Divorce Appeal Cases (1865-75) are of the first importance. They deal less with public and more with private cases, and the discussion of legal principles is much more scientific than any of the prior debates of the House.
In the Privy Council during this period Kingsdown received valuable assistance from Knight-Bruce, who was learned in foreign systems of jurisprudence, and from Turner, Penzance and Westbury. Peel and Colville had great weight in Indian appeals. By a statute of 34 and 35 Victoria, provision was made for the addition of four paid judges, in consequence of which the court was strengthened by the appointment of Peacock, Collier, Montague E. Smith and Byles. Byles’ service was unimportant, and Peacock confined his attention mainly to Indian appeals; but Collier and Smith were able and industrious judges. Collier took an important part in formulating the opinions of the court, and the work performed by Smith was both considerable in amount and of permanent value. These judges were assisted principally by Cairns and Penzance.
From the Judicature Acts of 1873-75 to the End of the Century
In his great speech introducing the Judicature Act of 1873, Lord Selborne enumerated the principal defects of the existing system under four heads: (1) The artificial separation of legal and equitable jurisdictions; (2) divided courts and divided jurisdictions; (3) lack of cheapness, simplicity and uniformity of procedure; (4) necessity of improving the constitution of the court of appeals. “We must bring together,” he said, “our many divided courts and divided jurisdictions by erecting or rather re-erecting—for after all there was in the beginning of our constitutional system one supreme Court of Judicature—a supreme court which, operating under convenient arrangements and with a sufficient number of judges, shall exercise one single undivided jurisdiction, and shall unite within itself all the jurisdictions of all the separate superior courts of law and equity now in existence.”1 Accordingly the Curia Regis of the Norman kings was taken as a model, and all the existing courts were consolidated into one Supreme Court of Judicature.2
This Supreme Court was divided into two sections, the High Court of Justice and the Court of Appeal. The High Court is a court of first instance, exercising general jurisdiction in civil and criminal matters. It consisted originally of five divisions, corresponding to the old courts, of which it was made up. But in 1881 the Common Pleas and Exchequer were finally abolished; and by subsequent legislation the Court of the Master of the Rolls was likewise abolished, and that judge was placed at the head of a division of the Court of Appeal. The court now sits in three divisions: King’s Bench, Chancery, and Probate, Divorce and Admiralty. The business assigned to each division corresponds to its ancient jurisdiction; but the changes effected by the Judicature Act are these: any judge may sit in any court belonging to any division, or may take the place of any other judge, and any relief which might be given by any of the courts whose jurisdiction is now vested in the supreme court may be given by any judge or division of the supreme court, and any ground of claim or defence which would have been recognized in any of the old courts may be recognized by any division of the new court. Where the rules of equity, common law and admiralty conflict, equity prevails in the absence of specific provisions. Besides this uniform administration of the principles of law and equity, the act also provided a common and simple code of procedure. The main characteristics of this procedure are similar to those which have long been familiar in this country: a single form of action for the protection of all primary rights, whether legal or equitable; a limited pleading characterized by a plain and concise statement of the substantive facts; provision for rejoinder of different causes of action and the bringing in of new parties, with a view to the adjustment of the substantial rights of all the parties and the complete determination of the whole controversy in a single action.
In some respects this great measure of reform has failed to meet the expectations of its supporters. In accordance with the original design, the chancery judges ceased to be vice-chancellors, and as justices of the High Court took turns with the judges of the Queen’s Bench in going on circuit to try common law cases. But the practice was soon abandoned, and the chancery judges now confine themselves to the administrative and other business for which they have special aptitude. Hence the dividing line between the two ancient jurisdictions is still observed. In other respects the original scheme of assimilation has broken down. Probate, divorce and admiralty matters still form a class by themselves; bankruptcy affairs have a court of their own, and separate courts sit for the trial of commercial and of railway and canal cases.
The High Court of Justice
The establishment of a permanent Court of Appeal under the Judicature Act has served to detract from the relative importance of the judges of the High Court. The presidents of the three great divisions are of course most conspicuous. The presiding judge of the Queen’s Bench Division is now the Lord Chief Justice of England. Lord Coleridge, the first chief to assume this title, succeeded Cockburn in 1880. Like Cockburn he was a man of ripe scholarship and polished eloquence, and as a presiding magistrate he left nothing to be desired in the way of dignity and urbanity. With an intellect quite as strong and with even broader views, he was nevertheless inferior to Cockburn in industry and application. He did not seem to enjoy wrestling with principles and authorities in the solution of difficult problems, and was content to contribute less to the law than colleagues not so gifted. Occasionally a case of general public interest roused him from his seeming indifference, and on such occasions his work was so admirable as to prompt a feeling of regret that he was not more assiduous in the exercise of his undoubted ability. The reports contain several such expositions of the law, animated by learning, exquisite diction, elevation of sentiment and liberality of thought. The interesting case of Reg. v. Dudley, 15 Cox Cr. Cas. 624, where the issue was whether shipwrecked persons were justified in taking the life of one of their number in order to save themselves from death by starvation, displays his powers at their best. His statement of the modern law relating to blasphemy, on the trial of Ramsey and Foote, 48 L. T. 733, is in every way a notable effort. With his ready wit and fluent tongue, Coleridge was perhaps at his best when sitting with a jury. In summing up a case he was always admirable.1
Russell, who succeeded Coleridge as chief justice in 1894, had been for many years the leader of the common law bar. Although not a profound lawyer, he was a man of great force, and displayed commendable energy in the furtherance of practical reforms in the procedure of his division. The institution of the new court for commercial causes was largely due to him. Like many of his predecessors he displayed great ability as a criminal judge. He enjoyed the distinction of being the first Roman Catholic to hold the office of chief justice since the Reformation.
The lord chancellor, the president of the Chancery Division, now practically confines his judicial labors to the House of Lords. The first president of the Probate, Divorce and Admiralty Division was Hannen. With his knowledge of the law relating to the various sections of his court, his painstaking industry, absolute impartiality and keen sense of the value of evidence, he won universal esteem. The spirit which animated his labors was displayed in his address at the conclusion of the hearing before the Parnell Commission, over which he presided. In speaking of the responsibility of the judges he said that one hope supported them: “Conscious that throughout this great inquest we have sought only the truth, we trust that we shall be guided to find it, and set it forth plainly in the sight of all men.” His opinions, which are more fully reasoned than those of Cresswell, are notable for their graceful diction and apt illustrations.1 Among the more prominent justices of the Queen’s Bench Division during this period were Hawkins2 and Stephen,3 whose specialty was criminal law, Mathew and Wright in commercial law, and Chitty and Kay in equity.
The Court of Appeal
The second section of the Supreme Court, the Court of Appeal, is composed of the Master of the Rolls and five Lords Justices, with the heads of the three great divisions of the High Court, the Lord Chancellor, the Lord Chief Justice and the President of the Probate, Divorce and Admiralty Divisions, as members ex officio. It exercises a general appellate jurisdiction in civil cases from the determinations of the High Court. It was originally planned to make this the final court of appeal, but the pressure from the House of Lords was too strong, and in the end the judicial functions of the House were left undisturbed; so that the Supreme Court is supreme only in name. The original conception of this court, as a single court in law and equity, was that the contact of minds trained in the different systems would subject the current ideas and tendencies of the rival systems to scrutiny, and thereby dispel confusion, explode inveterate fallacies, and give increased clearness and force to principles of permanent value. But here, as in the court of first instance, this expectation has not been realized. The Court of Appeal now sits in two divisions, chancery appeals being allotted to one division, common law appeals to the other; and it usually happens that chancery appeals are heard by chancery lawyers and common law appeals by lawyers trained in the common law. Nevertheless, this court has given general satisfaction. It is, indeed, as one of its most distinguished members called it, the backbone of the judicial system.
The principal judges of the first decade of the court, during the service of Sir George Jessel as master of the rolls (1873-83), were James (to 1881), Baggallay (1875-85), Bramwell (1876-81), Brett (1876-97), and Cotton (1877-90).
Jessel’s short service of less than ten years sufficed to give him a place in the narrow circle of great judges. Other judges have been more subtle in intellect, but in swiftness and sureness of apprehension, in grasp of facts, tenacity of memory and healthy superiority to mere precedent, he presented a combination of qualities not to be found to the same degree in any other judge of his time. His quickness of perception amounted almost to intuition. His learning was profound; yet he was no mere follower of precedent, no mere directory of cases. He was able to take up the confused mass of the law and mould it to the ends of justice. No matter what the subject under discussion was—and no branch of the law seemed unfamiliar to him—he was alike clear, practical and profound. Such achievements are possible only to a man gifted with the swiftest apprehension and the most ample and tenacious memory. It was these faculties which enabled him to deal with such extraordinary sagacity with facts, however numerous and complicated, and to deliver occasionally those judgments in which the statement of facts gives at once the reasoning and the conclusion. The excellence of his judicial opinions becomes truly marvelous when we are assured that he never reserved judgment, except in deference to the wishes of a colleague, and that he never read a written opinion. A remarkable feat of this kind was his decision in the great Epping Forest case, concerning the ancient rights of twenty manors. The hearing lasted twenty-two days, one hundred and fifty witnesses having been examined. Jessel delivered judgment orally immediately upon conclusion of the evidence, and no appeal was taken from his decision, although the largest forest in the vicinity of London was thereby thrown open to the public. “I may be wrong,” he once said, “and doubtless I sometimes am; but I never have any doubts.”
Apart from the soundness of his conclusions, his opinions are always expressed with vigorous and pungent emphasis. His work is conspicuous for the spirit in which he approached his cases. “There is a mass of real property law,” he frankly told a friend, “which is nonsense. Look at things as they are and think for yourself.” This he certainly did. No judge has ever been plainer in denunciation of ancient technicalities. In Couldrey v. Bartrum, 19 Ch. D. 394, he said: “According to the English law a creditor might accept anything in satisfaction of a debt except a less amount of money. He might take a horse or a canary or a tomtit if he chose, and that was accord and satisfaction; but by a most extraordinary peculiarity of the English law he could not take 19s. 6d. in the pound. That was one of the mysteries of the English common law, and as every debtor had not on hand a stock of canary birds or tomtits or rubbish of that kind it was felt desirable to bind the creditors,” etc. Of authorities which conflicted with his views of equity he was not always as tolerant as he was in the case of Jackson’s Will, 13 Ch. D. 189, where, in speaking of the question whether a reversionary interest in personality should be excluded from a gift of “any estate or interest whatever,” he said: “I see no reason whatever why it should; but not wishing to speak disrespectfully of some of the decisions I shall say nothing further about it.” In Re National Funds Assurance Co., 11 Ch. D. 118, he began his opinion thus: “This question is one of great difficulty by reason of the authorities, and my decision may possibly not be reconcilable with one or more of them. In the view which I take of them I think they do not, when fairly considered, prevent my arriving at the conclusion at which I should have arrived had there been no authorities at all.” He was equally unceremonious in dealing with the opinions of his colleagues. In referring, in Re Hallett’s Estate, 13 Ch. D. 676, to a decision by Mr. Justice Fry, where that learned judge had felt himself “bound by a long line of authorities,” Jessel said: “That being so, I feel bound to examine his supposed long line of authorities, which are not very numerous, and show that not one of them lends any support whatever to the doctrine or principle which he thinks is established by them.” At all events he was no respecter of persons. In Johnson v. Crook, 12 Ch. D. 439, he took a view contrary to most of the other equity judges, and despatched them in order. After quoting from Vice-Chancellor Wood he says: “All I can say about it is that it was simply a mistake of the Vice-Chancellor, and that is how I shall treat it.” Then, quoting from Lord Chelmsford’s opinion, he adds: “I am no Œdipus; I do not understand the passage.” Further on he remarks: “Lord Selborne says, ‘Lord Thurlow said’ so and so. There is a very good answer to that—he did not say so.” “What is the proper use of authorities?” he inquire in Re Hallett’s Estate, 13 Ch. D. 676. He declares it to be “the establishment of some principle which the judge can follow out in deciding the case before him.” Jessel had a convenient application of this rule by means of which even the decision of a higher court was not binding unless it decided a principle which he recognized as such. In Re International Pulp Co., 6 Ch. D. 556, where he was pressed with the authority of two cases previously decided by a higher court, he said: “I will not attempt to distinguish this case from the cases before the Court of Appeal, but I will say that I do not consider them as absolutely binding upon me in the present instance, and for this reason, that as I do not know the principle upon which the Court of Appeal founded their decision I cannot tell whether I ought to follow them or not. If these decisions do lay down any principle I am bound by it; but I have not the remotest notion what that principle is. Not being at liberty to guess what the principle of those decisions is, I am only bound to follow them in a precisely similar case; consequently, as the legal decisions do not stand in my way, I dismiss the summons with costs.”
It is remarkable that so strong and positive a mind should have gone wrong so seldom. In the few cases in which he was reversed his errors came from his keen sense of justice and impatience with the law’s delays.1 His complacency was never disturbed by reversals. “That is strange,” he said when his attention was called to the fact that the Court of Appeal had reversed one of his decisions; “when I sit with them they always agree with me.” Jessel’s mental fibre was so strong that it was coarse grained. He lacked the cultivated imagination of such men as Cairns, whom, alone of his contemporaries, he conceded to be his superior, and second only to Hardwicke. In the rank of supremacy in the long line of chancery judges he modestly placed himself third.2
Bramwell had few of those subtle and impressives attributes which go toward the make-up of a great judge of appeal. It would be idle to compare him as such with such contemporaries as Cairns, Selborne or Bowen. But his sturdy common sense was an invaluable influence for good among associates differently constituted. In the Court of Appeal, sitting with Brett and Mellish, he supplemented the impetuosity of the former and the somewhat academic narrowness of the latter. Sitting in equity with Jessel and James he was not so much in his element. On one occasion, in following the chancery judges in giving opinion in an equity case, he said: “Having listened all day to things which I don’t think I ever heard of before, I can safely say I am of the same opinion and for the same reasons.” His pronounced views upon the desirability of holding people to their bargains prompted little sympathy with certain equitable doctrines. Cotton, through a longer term of service, made a very respectable reputation. He brought to the discharge of his judicial duties the clearness of thought and thorough preparation which had characterized his vast labors as an equity lawyer, and, notwithstanding a certain want of facility in expression, his numerous opinions (for he was rarely satisfied with mere acquiescence) will repay careful study.1 Upon the death of Jessel in 1883 he became more prominent as the presiding judge of the chancery division of the court.
When Brett (better known by his subsequent title, Lord Esher) was made one of the first judges of the Court of Appeal he had already served an apprenticeship of eight years as a judge of the Court of Common Pleas. Being further promoted to the post of master of the rolls in 1883, he served until 1897, thus completing a continuous service of thirty years. Unfortunately for his reputation, he clung to office so long after age had impaired his usefulness that he was often spoken of by his contemporaries with reproach. But no one who has examined with any care the total result of his long service will be apt to overlook its value. That he was a learned lawyer, particularly in the domain of commercial law, cannot be gainsaid; shortly after his accession to the bench we find the learned Willes adopting and commending the opinion of his young associate.2 Still, it was rather as an invigorating influence that his services were of most value. He resembled Bramwell in an ingrained aptitude for logic, and often displayed a tendency to reach beyond established authorities and the particular facts of individual cases for broad principles and logical symmetry. It must be confessed, also that he sometimes went to the other extreme in his desire to do full justice in particular cases. “The law of England,” he once said, “is not a science. It is the practical application of the rule of right and wrong to the particular case before the court, and the canon of law is that that rule should be adopted and applied to the case which people of honor, candor and fairness in the position of the two parties would apply in respect of the matter in hand.” In the pursuit of this laudable end he occasionally seemed to overlook the necessity for fixed principles. He was independent to a fault, and frequently differed from his colleagues. When a precedent stood in his way he did not hesitate to pass it by. “There is no such thing in law,” he said, “as a rule which says that the court shall determine that to be true which the court believes and knows to be untrue.” All his learning and experience had been in common law, and, like most of his colleagues, he was not above an occasional sneer at equity. But in the practical administration of justice as a judge of appeal he was, perhaps, next to Bowen, the common law judge who displayed least bigotry in favor of common law technicalities as opposed to equity. However little his style may be admired, his opinions are, in substance, invariably interesting and suggestive.1
Under the service of Esher as master of the rolls his principal associates were Lindley (1881-99) and Fry (1883-92) in equity, and Bowen (1882-94) and A. L. Smith (1892-1900) in common law.
After a laborious career at the chancery bar Lord Lindley spent six years as a judge in the Court of Common Pleas, and thus came to the Court of Appeal thoroughly equipped. Had other judges been equally well trained, Lord Selborne’s original scheme for the consolidation of law and equity might have been realized. As it happened, Lindley found his sphere of usefulness in the chancery division of the Court of Appeal, where for twenty years his accurate and methodical mind set a high standard of efficiency for his associates. As a specialist he completely mastered the law relating to companies and to partnership. His opinions are logical, comprehensive and convincing, and the only criticism that the most captious could make is that when any of his brethren dissent he is apt to wander off in all the by-paths of the subject in his evident desire to fortify his conclusion.1 Lord Justice Fry was one of the greatest technical masters of modern equity, and contributed materially to the high standing of the court.1
Laymen have seldom found the law reports entertaining reading. Lord Bowen is probably the only judge in recent times whose work has commanded general interest. The reason is not far to seek. Besides grasp of principle, breadth of view and cogent reasoning, the style is so lucid, the illustrative matter so aptly chosen, the analogies so dexterously handled, the whole fabric of the exposition so admirably articulated, that he may be said to have combined, to an extent unsurpassed in English law, legal learning and literary form. He had a refreshing conception of intellectual reserve, a fine sense of proportion and wholesome mental habits of discrimination; and he expounded the historical evolution of legal principles in a style so pure, accurate and distinguished that it appeals to all persons of cultivated taste. In comparison with contemporaries who were his peers in intellectual power, he may be said to have shared with Westbury, Cairns and Selborne a precision of thought and logical faculty which rendered his mind capable at once of entertaining the broadest views and the most subtle distinctions. But he lacked their versatility. He was perhaps the equal of Blackburn and Jessel in legal learning, without the pedantry of one or the dogmatism of the other. But he fell short of them in energy. In affinity and contrast Cairns probably furnishes the best comparison. Cairns has never been surpassed in intuitive insight in legal principles; his judgments are illuminations rather than ratiocinations. Bowen shows us the process by which he arrives at a conclusion; we may observe the penetration and precision of a severely logical mind. Cairns was a genius; Bowen was a scholar.
The most obvious characteristic of Bowen’s opinions is purity, ease and accuracy of style. Along with legal acquirements which he shared with many of his judicial contemporaries, he had what is rare in such minds, a keen sense of literary form—“an instinctive preference for the right way of saying a thing, and the literary conscientiousness which impelled him to seek for the best expression of his thoughts.” In distinction of style his only equal among contemporary writers on legal subjects was Sir Henry Sumner Maine; he had no rival on the bench. One may find in his work aphorisms and lucid definitions which crystallize a principle in a phrase. Such, for instance, is his remark in a case of deceit that “the state of a man’s mind is as much a fact as the state of his digestion;” and his statement that a person’s knowledge of danger is the “vanishing point” of the liability of the occupier of premises. But the power of expressing the most subtle shades of thought which made Westbury, for instance, such a source of legal maxims, manifested itself in Bowen’s work rather in the production of a total effect or artistic whole. He had great skill in graphic illustration. Witness his forcible illustration in the Mogul Steamship case of the expedient by merchants of sowing one year a crop of unfruitful prices in order, by drawing away competition, to reap a fuller harvest of profits in the future; and his query in the same case whether it would be an indictable conspiracy to drink all the water from a common spring in time of drought. Among other instances are his illustration in Hutton v. Railway Company1 of sending all the porters at a railway station to have tea in the country at the company’s expense; his success in laying bare the issue in Thomas v. Quartermaine2 by reference to a builder employed to make repairs; his query in the Carbolic Smoke Ball case3 whether everybody who sought to find a dog for a reward must sit down and write a note to the owner accepting the proposal; his illustration in the Queensland Bank case4 of being waylaid in Pall Mall; and his reference in Saunders v. Weil5 to the Apostles’ spoons.
The law, to Lord Bowen, was not a mere collection of rules. “There is no magic at all in formalities,” he said. He recognized, to use his own language, the duty of endeavoring to apply legal doctrines so as to meet “the broadening wants or requirements of a growing country, and the gradual illumination of the public conscience.” In the course of a bold application of an established principle he said: “It is not a valid objection to a legal doctrine that it will not be always easy to know whether the doctrine is to be applied in a particular case. The law has to face such embarrassments. . . . The instance to which the legal principle is now for the first time adopted by this court may be new, but the principle is old and sound; and the English law is expansive, and will apply old principles, if need requires it, to new contingencies. Just as, in America, the law of watercourses and of waste has modified itself to suit the circumstances of enormous rivers and wide tracts of uncultivated forests, so the English law accommodates itself to new forms of labor and new necessities of [arbor] culture.” Dashwood v. Magniac, (1891) 3 Ch. 306. Therefore, in applying, in a leading modern case, the ancient rule as to contracts in restraint of trade, he said:
“A covenant in restraint made by such a person as the defendant with a company he really assists in creating to take over his trade, differs widely from the covenant made in the days of Queen Elizabeth by the traders and merchants of the then English towns and country places. When we turn from the homely usages out of which the doctrine of Mitchell v. Reynolds, 1 P. Wms. 181, sprang, to the central trade of the few great undertakings which supply war material to the executives of the world, we appear to pass to a different atmosphere from that of Mitchell v. Reynolds. To apply to such transactions at the present time the rule that was invented centuries ago in order to discourage the oppression of English traders and to prevent monopolies in this country, seems to be the bringing into play of an old-fashioned instrument. In regard, indeed, of all industry, a great change has taken place in England. Railways and steamships, postal communication, telegraphs and advertisements have centralized business and altered the entire aspect of local restraints on trade. The rules, however, still exist, and it is desirable that they should be understood to remain in force. Great care is evidently necessary not to force them upon transactions which, if the meaning of the rule is to be observed, ought really to be exceptions.” Maxim-Nordenfelt Co. v. Nordenfelt, (1893) 1 Ch. 631.
Bowen vitalized and enforced his exposition of legal principles by reference to history. “The only reasonable and the only satisfactory way of dealing with English law,” he once said, “is to bring to bear upon it the historical method. Mere legal terminology may seem a dead thing. Mix history with it and it clothes itself with life.” In his brilliant application of this method he avoided many of the errors which have resulted from the attempt to give a rational or scientific basis to doctrines which owe their origin to historical accidents. A brief quotation from his opinion in a nisi prius action for illegal distraint, in which it was claimed that the landlord had broken an outer door, will illustrate his use of the historical method: “The doctrine of the inviolability of the outer doors of a house and its precinct has long been established by English law. The principle is one which carries us back in imagination to wilder times, when the outer door of a house, or the outer gates and enclosures of land, were an essential protection, not merely against fraud, but violence. The proposition that a man’s house is his castle, which was crystallized into a maxim by the judgment in Semayne’s case, and by Lord Coke, dates back to days far earlier still, when it was recognized as a limitation imposed by law on all process except that which was pursued at the King’s suit and in his name. A landlord’s right to distrain for arrears of rent is itself only a survival of one among a multitude of distraints which, both in England and other countries, belonged to a primitive period when legal procedure still retained some of the germs of a semi-barbarous custom of reprisals, of which instances abound in the early English books, and in the Irish Senchus Mor. Later, all creditors and all aggrieved persons who respected the King’s peace, the sheriff in a civil suit and the landlord in pursuit of his private remedy for rent and services, were both of them held at bay by a bolted door or barred gate. To break open either was to deprive the owner of protection against the outer world for his family, his goods and furniture and his cattle.” American Must Corp. v. Hendry, 62 L. J., Q. B. 389.
His subtle intellect could not have made him the great judge that he was had it not been balanced by good sense. He was continually using the terms common law and common sense as equivalents; he likened the common law to an “arsenal of sound common sense principles.” A multitude of illustrations could be given. One will suffice. In speaking of the standard to be used in weighing the evidence as to whether a certain hospital was an “annoyance” to neighboring inhabitants, he said: “ ‘Annoyance’ is a wider term than nuisance, and if you find a thing which really troubles the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of a house,—if you find there is anything which disturbs his reasonable peace of mind, that seems to me to be an annoyance, although it may not appear to amount to physical detriment or discomfort. You must take sensible people; you must not take fanciful people on the one side or skilled people on the other; and that is the key as it seems to me of this case. Doctors may be able to say, and, for anything I know, to say with certainty, that there is no sort of danger from this hospital to the surrounding neighborhood. But the fact that some doctors think there is, makes it evident at all events that it is not a very unreasonable thing for persons of ordinary apprehension to be troubled in their minds about it. And if it is not an unreasonable thing for any ordinary person who lives in the neighborhood to be troubled in his mind by the apprehension of such risk, it seems to me that there is danger of annoyance, though there may not be a nuisance.” Tod-Heatly v. Benham, 40 Ch. D. 611. No better illustration of the triumph of reason and common sense over technicalities can be found in the reports than Bowen’s judgment in Ratcliffe v. Evans, (1892) 2 Q. B. 529.
The Maxim-Nordenfelt case and the Mogul Steamship case are probably his greatest efforts, illustrating as they do all his peculiar powers. For a brief example of clear exposition reference may be made to the case of Smith v. Land & House Property Corporation, 28 Ch. D. 14, where the vendee under a contract for the sale of certain property resisted an action for specific performance on the ground of misrepresentation, the vendor having stated that the property was let to “a most desirable tenant,” when in fact the tenant had been in arrears on his last quarter’s rent, and soon afterward went into liquidation: “It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both parties, what one of them says to another is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact about the condition of a man’s own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally well known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion. Now a landlord knows the property is let to a most desirable tenant; other persons either do not know them at all or do not know them equally well, and if the landlord says that he considers that the relations between himself and his tenant are satisfactory, he really avers that the facts peculiarly within his knowledge are such as to render that opinion reasonable. Now are the statements here statements which involve such a representation of material facts? They are statements on a subject as to which prima facie the vendors know everything and the purchasers nothing. The vendors state that the property is let to a most desirable tenant; what does that mean? I agree that it is not a guaranty that the tenant will go on paying his rent, but it is to my mind a guaranty of a different sort, and amounts at least to an assertion that nothing has occurred in the relations between the landlord and the tenant which can be considered to make the tenant an unsatisfactory one. That is an assertion of a specific fact. Was it a true assertion? Having regard to what took place between Lady Day and Mid-summer, I think it was not. . . . In my opinion a tenant who had paid the last quarter’s rent by driblets under pressure must be regarded as an undesirable tenant.”
His subtlety in legal analysis may be seen to good advantage in Le Lievre v. Gould and Angus v. Clifford. What could be clearer, to give a single quotation, than his statement in Badeley v. Consolidated Bank, 38 Ch. D. 262, of the manner in which the lower court had gone wrong on an issue of partnership: “The question is whether there is a joint business or whether the parties are carrying on business as principals and agents for each other. Now where has Mr. Justice Stirling gone wrong? He has gone wrong because he has not followed that test. What he has done is this. He has taken one of the circumstances which in many cases affords an ample guide to truth; he has taken that circumstance as if, taken alone, it shifted the onus of proof—as if it raised a presumption of partnership—and then he has looked about over the rest of the contract to see if he could find anything which rebutted that presumption. Now that cannot be a right way of dealing with the case. You have a group of facts—A, B, C, D, E and F—and you want to know the right conclusion to draw from them. The right way is to weigh the facts separately and together, and to draw your conclusion. It is not to take A, and say that if A stood alone it would shift the onus of proof, and then to look over B, C, D, E and F and see if the remainder of the proof is sufficient to rebut the presumption supposed to be raised.”
Besides the Maxim-Nordenfelt case, see Finlay v. Chirney, Dashwood v. Magniac, Steinman v. Angier Line and Brunsden v. Humphrey, for applications of the historical method. Allcard v. Skinner is one of the finest specimens of his style at its best. Borthwick v. Evening Post, Hutton v. West Cork Ry. Co., and the Carbolic Smoke Ball case are characteristic specimens of his colloquial style. Whatever the form of the argument may be—whether pure development of principle without the citation of a single authority (Allcard v. Skinner), or elaborate analysis and review of a mass of conflicting cases (Phillips v. Homfray, Mitchell v. Darley Main Colliery Co.); a perfect example of systematic logic (Ratcliffe v. Evans, Quartz Hill Gold Mining Co. v. Eyre), or a series of detailed answers to specific points urged in argument (Carlill v. Carbolic Smoke Ball Co.); statutory construction (Hewlett v. Allen, Thomas v. Quartermaine), or argument on the facts (Medawar v. Grand Hotel Co., Abrath v. Northeastern Ry. Co.)—we invariably find the same characteristic precision, sense of proportion, force and completeness of logic. Whatever the form, the result was well described by him in the course of his opinion in Re Portuguese, etc., Mines, 45 Ch. D. 60: “As soon as one applies one’s mind to dissect the ingenious argument, the light breaks through and makes the case perfectly plain.”1
The House of Lords
The membership of the House of Lords as a judicial tribunal is confined by the Judicature Act to Lords of Appeal, i. e., the Lord Chancellor of Great Britain, Lords of Appeal in Ordinary (limited to four), and peers who have held high judicial office. High judicial office means the office of Lord Chancellor of Great Britain or Ireland, of a paid judge of the Judicial Committee of the Privy Council, or of a judge of one of the superior courts of Great Britain or Ireland. As a judicial tribunal the House reached its highest usefulness under the Judicature Act. With a membership defined by statute, with a reasonable assurance of regular attendance (brought about by relieving the lord chancellor from his ancient duties as a judge of first instance), with the appointment of paid judges as lords in ordinary, and the elevation to the peerage of several eminent and experienced judges, the composition of the court has given much satisfaction. In sheer ability, with Cairns, Selborne and Hatherley in equity, and Blackburn, Bramwell, Watson and Herschell in common law, no other English court has ever equalled it. During this period there have been only four chancellors. Cairns, Selborne, Herschell and Halsbury. Cairns lived until 1885, Selborne and Herschell almost to the end of the century. The most distinguished English lords have been Blackburn, Bramwell, Penzance, Field, Macnaghten1 and Davey. Untimely death deprived the court of the services of two of its most promising members, Hannen and Bowen. Watson was the ablest of the Scotchmen, the others being Gordon and Shand. O’Hagan ranks at the head of the Irish representation, which includes Fitzgerald, Ashbourne and Morris.
In his obituary eulogy on Lord Selborne in the House of Lords, Lord Rosebery felicitously compared Selborne with those great ecclesiastics by whom equity was originally administered. “There was something in his austere simplicity of manner which recalled those great lawyers of the middle ages who were also churchmen, for to me Selborne always embodied that great conception and that great combination.” Selborne (1872-74; 1880-85) was not only, like Cairns, an ardent churchman; he had also something of the ecclesiastical cast of mind and impassive manner. But he had, above all, that intuitive insight into legal principles and power of grasping and expounding facts which are certain tests of legal genius. With intellectual gifts of the highest order he combined habits of patient industry, without which intuitions are deceitful and gifts of exposition vain. The terms in which a contemporary observer described his characteristics at the bar, bring out clearly the qualities upon which his success was founded. “At this time there were three great advocates before all others, Bethel [Lord Westbury], Palmer [Lord Selborne], Cairns. Each of them had his own points of superiority, though each was very good at all points. Cairns excelled in strong common sense and broad, lucid arrangement of facts; Bethel in force of exposition and direct attack on his opponent, whether counsel or judge; Palmer in power of work, in knowledge of his briefs, in ready memory and vast resources of case law, in subtlety and great skill in addressing himself to unforeseen emergencies. He could perform the most difficult operations of strategy, changing front in the face of the enemy. It was an admirable sight to see him turning the flank of a hostile position taken up by the court, such as Bethel would have attacked in front; rounding off an angle here, attenuating a difference there; bringing some previously neglected portion of the case into relief, relegating others to the background, and so restoring the battle. What gave Palmer the superiority in these movements (apart from the great versatility and adaptability of his mind and his complete command of temper) was above all his perfectly accurate and ready knowledge of every detail of his case.”
His marked characteristic as a judge was his profound knowledge of case law and his masterly dealing with it. In this respect he has seldom been surpassed. It was his habit to extract the ruling principle of prior decisions, and then to trace the development of the branch of law under discussion.1 From his conservative regard for precedent he was essentially a sound judge. He was inferior to Cairns in terseness, clearness and force because he indulged himself in his remarkable gift of subtlety. Beyond certain limits subtlety ceases to be desirable in the exposition of practical rules of human conduct. While many of his opinions are masterpieces of luminous reasoning, he had too often a habit of pursuing a fine train of reasoning on a matter collateral to the main issue. This undue prominence of matters of minor importance and trains of reasoning running off into collateral matters, explain the absence of proportion which characterizes some of his work. But his statements of legal propositions are carefully worded with a far seeing regard for the future, and few hasty dicta are to be found in his opinions.
Although he was great in council and dextrous in debate, he did not display in political life the marvelous adaptability which was so conspicuous in Cairns. In some respects he would seem to have been better equipped for public life than his great rival. He had larger and more genial sympathies, and his flowing and diffuse style was more apt to impress the public mind than the highly concentrated manner of Cairns. But his ecclesiastical subtlety again hampered his influence. And he was prone to rely upon considerations too purely moral and speculative to exert any considerable influence on public opinion. Hence the arguments by which he attempted to support a conclusion were often far more conspicuously vulnerable and far more offensive to his adversaries than the conclusion itself. As a law reformer alone Selborne takes a high rank. The reforms inspired by Brougham in 1832 had been followed at fitful intervals by the successive acts which, from 1847 onward, under the guidance of Cranworth, Westbury and Cairns, had eradicated most of the perversities of ancient procedure. But the most radical and comprehensive legal reform of the century was accomplished by Selborne in the passage of the Judicature Acts.1
When Blackburn (1876-87) was appointed one of the first lords of appeal in ordinary under the Judicature Act it afforded satisfactory evidence to the profession that a new era in the court of final appeal had in reality begun. Blackburn had given abundant evidence of his complete mastery of the common law, and he soon showed that his grasp of Scotch and colonial and ecclesiastical law was no less strong. In chancery appeals he did not hesitate to express independent views, but he was naturally overshadowed by the authority of Cairns and Selborne. In common law appeals his pre-eminence was undisputed. It was not until the last year or two of Blackburn’s service that Watson began to take a prominent part in English appeals, and the sturdy Bramwell did not become a member of the court until 1882.
Lord Watson (1880-99), the ablest judge contributed by Scotland to the House of Lords, was one of the most remarkable judicial characters of his time. In the domain of Scots law, to which his predecessors had mainly confined their attention, he displayed at the outset his eminent qualifications for judicial office. But Watson was not content to play a minor part. He proceeded to study English law; and, as his confidence in his knowledge increased, the modest expression of opinion with which he had been content in his earlier cases, gave way, shortly before Blackburn’s retirement, to those masterly expositions of English law for which, after the death of Herschell, he was unsurpassed by any of his associates. It is only necessary to mention in support of this statement such cases as Smith v. Baker, Allen v. Flood, Clarke v. Carfin Coal Company, Solomon v. Solomon, Macdonald v. Whitfield, Nordenfelt v. Maxim-Nordenfelt, and Mogul Steamship Co. v. McGregor. His long and splendid service in the Judicial Committee of the Privy Council would alone place him in the front rank of modern judges. His opinions in Le Mesurier v. Le Mesurier and Abdul Messih v. Fassa, on the intricate subject of domicile, to cite only two examples, are as luminous as they are exhaustive. In ecclesiastical appeals, also, Presbyterian though he was, he took a prominent part.
His knowledge of English case law was, under the circumstances, extraordinary; yet it can hardly be said to have exceeded his grasp of principle and certainty of judgment. Witness his sensible and suggestive reflections in refusing to adhere to a strict observance of the old doctrine with respect to restraint of trade: “A series of decisions based upon grounds of public policy, however eminent the judges by whom they were delivered, cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal. The course of policy pursued by any country in relation to and for promoting the interests of its commerce must, as time advances, and as its commerce thrives, undergo change and development from various causes which are altogether independent of the action of its courts. In England, at least, it is beyond the jurisdiction of her tribunals to mould and stereotype national policy. Their function when a case like the present is brought before them is, in my opinion, not necessarily to accept what was held to have been the rule of policy a hundred or a hundred and fifty years ago, but to ascertain, with as near an approach to accuracy as circumstances permit, what is the rule of policy for the then present time. When that rule has been ascertained it becomes their duty to refuse to give effect to a private contract which violates the rule and would, if judicially enforced, prove injurious to the community.” Nordenfelt v. Maxim-Nordenfelt, (1894) A. C. 514.
To literary form and refinement of style Watson appears to have been wholly indifferent. Clear, direct and compact in expression, his opinions are nevertheless not without charm from simplicity of diction and the occasional use of the quaint legal phraseology of his native land. Probably the best expression of this is his interesting opinion in the matrimonial case of Mackenzie v. Mackenzie, (1895) A. C. 384. “There can be hardly a more odious form of cruelty,” he says in one place, “than a deliberate attempt to wound the feelings of a mother through her affection for her infant child. It is nevertheless true that the law of Scotland permits a married man to gratify his taste for that species of cruelty, subject to these conditions, that it must be practiced upon his own wife, and that he must stop short of injuring her health of mind or body or of rendering her existence intolerable. How far he can carry his experiments without exceeding the limits so prescribed, and thereby becoming guilty of legal saevitia, must depend very much upon the circumstances of the case, and, in particular, upon the victim’s capacity of endurance.”1
In the House of Lords Bramwell (1882-92) exerted, in the main, the same general influence for good that characterized his earlier judicial service. Perhaps his unconventionality was even more conspicuous in his new surroundings. Although he was to some extent overshadowed by the commanding authority of Blackburn, he was sturdily independent in his views. And even when wrong—for he was often in the minority—he used his mother-tongue with the same directness and dry humor. At a very advanced age he showed no decay in mental power; his strong opinion in the Vagliano case was delivered in his eighty-second year. But it is observable that his personal views on certain topics which had not commanded judicial assent became in later years more pronounced and extreme.
Lord Herschell’s conspicuous judicial service in the House of Lords (1886-99) entitles him to a place among the great judges of the last quarter of the century. If he fell short of Cairns’ breadth of mind and lacked Selborne’s subtlety, he had, nevertheless, in large measure, the qualities which make for judicial excellence. His most prominent characteristics were indefatigable industry, thoroughness and accuracy. Not even Selborne more completely exhausted a subject than Herschell did in such leading cases as Derry v. Peek, Bank of England v. Vagliano, Allen v. Flood, London Joint Stock Bank v. Simmons, British South Africa Co. v. Mozambique, Russell v. Russell, Trego v. Hunt, and the Maxim-Nordenfelt case. In his zeal to leave no consideration unnoticed, he sometimes seems to wander around the issue, instead of aiming directly at it, as Cairns did. But this fault is confined mostly to his earlier opinions; his work improved steadily in structure and finish, and his best efforts are among the highest models of judicial exposition. He was a man of broad views. The basis of his very able opinion in the great case of Allen v. Flood, (1808) A. C. 1, is an illustration: “I do not doubt that every one has a right to pursue his trade or employment without ‘molestation’ or ‘obstruction,’ if those terms are used to imply some act in itself wrongful. This is only a branch of a much wider proposition, namely, that every one has a right to do any lawful act he pleases without molestation or obstruction. If it be intended to assert that an act not otherwise wrongful always becomes so if it interferes with another’s trade or employment, and needs to be excused or justified, I say that such a proposition in my opinion has no solid foundation in reason to rest upon. A man’s right not to work or not to pursue a particular trade or calling, or to determine when or where or with whom he will work, is in law a right of precisely the same nature, and entitled to just the same protection, as a man’s right to trade or work. They are but examples of that wider right of which I have already spoken. That wider right embraces also the right of free speech. A man has a right to say what he pleases, to induce, to advise, to exhort, to command, provided he does not slander or deceive or commit any other of the wrongs known to the law of which speech may be the medium. Unless he is thus shown to have abused this right, why is he to be called upon to excuse or justify himself because his words may interfere with some one else in his calling?”
Herschell believed that it was a judge’s duty to interpret and administer the law, not to make it. He was sturdily averse to the process of refinement by means of which particular cases were withdrawn from the application of general rules. A characteristic illustration may be found in his opinion in the celebrated case of Russell v. Russell, (1897) A. C. 460, where it was sought to extend the legal doctrine with respect to cruelty in matrimonial relations so as to cover the facts of a particular case. “The only criterion of cruelty which I have heard suggested as warranting a judgment for the appellant, is whether the discharge of the duties of married life has become impossible owing to the conduct of the respondent. How is the word ‘impossible’ to be interpreted in the proposition thus stated? . . . If it be extended to what is sometimes called ‘moral’ impossibility, a proposition could scarcely be conceived more elastic. It would afford no sort of guide, but would, in my opinion, unsettle the law and throw it into hopeless confusion. Views as to what is possible in this sense would differ most widely. . . . Not a few would think that the discharge of the duties of married life was impossible whenever love had been replaced by hatred, when insulting and galling language was constantly used, when, in short, the ordinary marital relation no longer prevailed. One opinion may be held by many that it would be well that in all such cases a judicial separation should be granted—that relief should always be given where the prospect of happiness so long as the parties cohabited appeared hopeless. But these are considerations for the legislature, not for the courts. . . . Our duty, on the present occasion, is to administer, not to make the law. I have no inclination towards a blind adherence to precedents. I am conscious that the law must be moulded by adapting it on established principles to the changing conditions which social development involves. But marital misconduct is, unfortunately, as old as matrimony itself. Great as have been the social changes which have characterized the last century, in this respect there has been no alteration, no new development. I think it is impossible to do otherwise than proceed upon the old lines.”
While he believed that the amendment of the law should be left to the legislature, he was not unmindful of the hardship often occasioned by the application of established rules. But he held that “in laying down a proposition of law it is necessary to keep in view the consequences, and not to contemplate its operation in the particular case.” Therefore, in holding, in Derry v. Peek, 14 A. C. 376, that an untrue statement made negligently, but with an honest belief in its truth, would not sustain an action for deceit, he said: “I have arrived, with some reluctance, at the conclusion to which I have felt myself compelled, for I think that those who put before the public a prospectus to induce them to embark their money in a commercial enterprise, ought to be vigilant to see that it contains such representations only as are in strict accordance with fact, and I should be very unwilling to give any countenance to the contrary idea. I think there is much to be said for the view that this moral duty ought, to some extent, to be converted into a legal obligation, and that the want of reasonable care to see that statements, made under such circumstances, are true, should be made an actionable wrong. But this is not a matter fit for discussion on the present occasion. If it is to be done, the legislature must intervene and expressly give a right of action in respect of such a departure from duty. It ought not, I think, to be done by straining the law, and holding that to be fraudulent which the tribunal feels cannot properly be so described. I think mischief is likely to result from blurring the distinction between carelessness and fraud, and equally holding a man fraudulent, whether his acts can or cannot be justly so designated.” In common with many strong minded judges, Lord Herschell was much given to interrupting counsel during argument. His propensity in this direction is said to have been temporarily checked when, during the hearing of the case of Allen v. Flood, one of his more conservative colleagues remarked with caustic humor, “We can all pretty well understand from the present proceedings what amounts to molesting a man in his business.”1
Lord Halsbury enjoys the double distinction of having risen to the woolsack from the criminal bar, and of having held this high office under three administrations. These facts are, in themselves, evidence of varied ability and marked force. If he does not possess the profound knowledge of equity which distinguished his more eminent predecessors, his wide experience at the bar developed other gifts not less essential than learning to the successful discharge of the multifarious duties with which the chancellor is now charged. A distinguished French observer has described the English chancellor as a living image of the Trinity, embodying in his own person the three branches of government. As a peer, as speaker of the House of Lords, and as a member of the cabinet, he participates in legislation. As the creator of judges, with extensive administrative duties in regard to the courts, he represents the executive. In his judicial capacity he is president of the Court of Appeal and of the High Court, with a statutory right of sitting as a judge of first instance, if he so desires. Many years have passed since the chancellor sat as a judge of first instance, and, except when an occasional press of business may demand his presence in the Court of Appeal, his judicial duties are now confined to the House of Lords. As presiding judge of the court of final appeal, Lord Halsbury has served through many years with credit to himself and to the satisfaction of the bar. Among colleagues of greater special acquirements he has displayed unfailing tact and self-reliance, and the record of his judicial service reveals the good sense which results from wide experience with men and affairs.1
The Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is composed of the Lord President, such members of the Privy Council as hold or have held high judicial office, the Lords Justices of Appeal and a limited number of Privy Councillors appointed by the Crown. In recent years several colonial judges have been added to the tribunal, thus bringing it in closer touch with the vast empire for which it administers justice. Its jurisdiction includes colonial, Indian and ecclesiastical appeals, petitions for the prolongation of letters patent, and matters specially referred to it by the Crown. The tribunal was dominated for many years by the vast learning and powerful intellect of Lord Watson, who sat in this court for a longer period than any permanent member, except Lord Kingsdown, by whom alone Watson’s substantial contributions to imperial law are equalled.
The variety, novelty and importance of the questions coming before this tribunal lend to it an interest which transcends the merits of individual controversies. The cases specially referred to it by the Crown often involve questions of fundamental importance; and, apart from the recognized right of appeal from the colonies, the Privy Council may give special leave to appeal in cases of general or constitutional importance, or in criminal cases where grave injustice may have been done.1 Moreover, there is hardly any system of civilized law which does not prevail in some parts of the vast empire subject to the jurisdiction of this court,—in the West Indies the civil law of Spain, in Canada the civil law of France, in Africa the Roman law as modified by the Dutch, in India the laws of the Hindoo and the Mohammedan. Therefore, whether ultimately incorporated with the House of Lords to form a single court of appeal for the whole empire, or exercised as heretofore in an independent tribunal, this great imperial jurisdiction, sustaining diverse customs and principles of conduct which have been stamped with the approval of generations, is a matter of vast moral as well as legal significance. It is an effort to heed the cry of humanity for justice and peace among men.
AN AMERICAN LAW STUDENT OF A HUNDRED YEARS AGO1
New York, October 6th, 1828.
Your very kindly & friendly letter of the 15th ult. was duly received, and also your argument in the Case of Ivey vs. Pinson. I have read the Pamphlet with much interest & pleasure. It is composed with masterly ability, of this there can be no doubt, & without presuming to give any opinion on a great case, still Sub Judice, & only argued before me on one side, I beg leave to express my highest respect for the law reasoning & doctrine of the argument, & my admiration of the spirit, & eloquence which animate it. My attention was very much fixed on the perusal, & if there be any lawyer in this State who can write a better argument in any point of view I have not the honor of his acquaintance.
As to the rest of your letter concerning my life & studies, I hardly know what to say, or to do. Your letter & argument, & character & name have impressed me so favorably, that I feel every disposition to oblige you, if it be not too much at my own expense. My attainments are of too ordinary a character, & far too limited, justly to provoke such curiosity. I have had nothing more to aid me in all my life than plain method, prudence, temperance & steady persevering diligence. My diligence was more remarkable for being steady & uniform, than for the degree of it, which never was excessive, so as to impair my health or eyes, or prevent all kinds of innocent & lively recreation. I would now venture to state briefly but very frankly & at your special desire, somewhat of the course & progress of my studious life. I know you cannot but smile at times at my simplicity, but I commit myself to your indulgence & honor.
I was educated at Yale College & graduated in 1781. I stood as well as any in my class, but the test of scholarship at that day was contemptible. I was only a very inferior classical scholar, & we were not required, & to this day I have never looked into a Greek book but the New Testament. My favorite studies were Geography, History, Poetry, bellesletter, &c. When the College was broken up & dispersed in July 1779 by the British, I retired to a country village & finding Blackstone’s com. I read the 4th volume, parts of the work struck my taste, & the work inspired me at the age of 16 with awe, and I fondly determined to be a lawyer. In November 1781 I was placed by my father with Mr. (now called Judge) Benson, who was then attorney general at Poughkeepsie on the banks of the Hudson, & in my native County of Dutchess. There I entered on law, & was the most modest, steady, industrious student that such a place ever saw. I read the following winter Grotius & Puffendorf in huge folios, & made copious extracts. My fellow students who were more gay and gallant, thought me very odd and dull in my taste, but out of five of them four died in middle life drunkards. I was free from all dissipation, and chaste as pure virgin snow. I had never danced, or played cards, or sported with a gun, or drank anything but water. In 1782 I read Smollets history of England, & procured at a farmers house where I boarded, Rapins History (a huge folio) and read it through; and I found during the course of the last summer among my papers, my M. S. abridgment on Rapins dissertation on the laws and customs of the Anglo Saxons. I abridged Hales history of the common law, and the old books of practice, and read parts of Blackstone again & again. The same year I procured Humes History and his profound reflections & admirable eloquence struck most deeply on my youthful mind. I extracted the most admired parts and made several volumes of M. S. S. I was admitted to the bar of the Supr. Court in January 1785, at the age of 21, and then married without one cent of property; for my education exhausted all my kind father’s resources and left me in debt $400.00, which took me two or three years to discharge. Why did I marry? I answer that.
At the farmers house where I boarded, one of his daughters, a little modest, lovely girl of 14 generally caught my attention & insensibly stole upon my affections, & I before I thought of love or knew what it was, I was most violently affected. I was 21. and my wife 16 when we married, & that charming lovely girl has been the idol & solace of my life, & is now with me in my office, unconscious that I am writing this concerning her. We have both had uniform health & the most perfect & unalloyed domestic happiness, & are both as well now & in as good spirits as when we married. We have three adult children. My son lives with me and is 26, & a lawyer, & of excellent sense, & discretion, & of the purest morals. My eldest daughter is well married, & lives the next door to me, with the intimacy of our family, my youngest daughter is now of age, she lives with me, & is my little idol.
I went to housekeeping at Poughkeepsie, 1786, in a small, snug cottage, & there I lived in charming simplicity for eight years. My practice was just about sufficient to redeem me from debt, & to maintain my wife & establishment decently, and supply me with books about as fast as I could read them. I had neglected & almost entirely forgotten my scanty knowledge of the Greek & Roman classics, & an accident turned my attention to them very suddenly. At the June Circuit in 1786, I saw Ed. Livingstone1 (now the codifier for Louisiana) & he had a pocket Horace & read some passages to me at some office & pointed out their beauties, assuming that I well understood Horace. I said nothing, but was stung with shame & mortification, for I had forgotten even my Greek letters. I purchased immediately Horace and Virgil, a dictionary & grammar, and a Greek Lexicon & grammar and the testament, & formed my resolution promptly and decidedly to recover the lost languages.
I studied in my little cottage mornings and devoted an hour to greek and another to latin daily, I soon increased it to two for each tonge in the 24 hours, my acquaintance with the languages increased rapidly. After I had read Horace and Virgil I ventured upon Livy for the first time in my life, & after I had completed the Greek Testament I took up the Iliad, & I can hardly describe at this day1 with which I progressively read and studied in the original Livy & the Iliad. It gave me inspiration, I purchased a French Dictionary & grammar & began French & gave an hour to this language daily. I appropriated the business part of the day to law, & read Co. Litt, & made copious notes. I devoted evening to English literature in company with my wife. From 1788 to 1798 I steadily divided the day into five portions, & alotted them to Greek, Latin, law and business, French & English. I mastered the best of the Greek, Latin and French classics, & as well as the best English & law books at hand & read Machiavel & all collateral branches of English history, such as Libeletines H. 2nd Bacons H. 7th. Lord Clarendon on the great Rebellion, &c. I even sent to England as early as 1790 for Warbertons divine legation Lusiad.
My library which started from nothing grew with my growth, & it has now attained to upwards of 3,000 volumes, & it is pretty well selected, for there is scarcely a work, authority or document referred to in the 3 volumes of my commentaries but what has a place in my own library, next to my wife, my library has been the solace of my greatest pleasure & devoted attachment.
The year 1793 was another era in my life, I removed from Poughkeepsie to the city of New York, with which I had become well acquainted, & I wanted to get rid of the incumbrance of a dull law partner at P, but though I had been in practice nine years, I had acquired very little property. My furniture & library were very scanty, & I had not $500 extra in the world. But I owed nothing, & came to the City with good character & with a scolar’s reputation. My newspaper writings, & speeches in the assembly had given me some notoriety. I do not believe any human being ever lived with more pure and perfect domestic repose & simplicity & happiness than I did for those nine years.
I was appointed professor of law in Columbia College late in 1793 & this drove me to deeper legal researches. I read that year in the original Bynkersheek Quinctillion & Ciceros rhetorical works, besides reports and digests, & began the compilation of law lectures. I read a course in 1794 & 5 to about 40 gentlemen of the first rank in the City. They were very well received, but I have long since discovered them to have been slight & trashy productions. I wanted Judicial labors to teach me precision. I dropped the course after one term, & soon became considerably involved in business, but was never fond of, nor much distinguished in the contentions of the bar.
I had commenced in 1786 to be a zealous Federalist & read everything on politics. I got the Federalist almost by heart, and became intimate with Hamilton. I entered with ardor into the federal politics against France in 1793, & my hostility to the French democracy, & to French power beat with strong pulsation down to the battle of Waterloo, now you know my politics.
I had excellent health owing to the love of simple diet, & to all kinds of temperance, & never read late nights. I rambled daily with my wife on foot over the hills, we were never asunder. In 1795 we made a voyage through the lakes George & Champlain. In 1797 we run over the 4 New England States. As I was born and nourished in boyish days among the highlands East of the Hudson, I have always loved rural & wild scenery, & the sight of mountains & hills, & woods & streams always enchanted me, and do still. This is owing in part to early associations, & it is one secret of my uniform health & chirfulness.
In 1796 I began my career of official life. It came upon me entirely unsolicited & unexpected. In Feby 1796 Governor Jay wrote me a letter stating that the office of Master in Chancery was vacant, & wished to know confidentially whether I would accept. I wrote a very respectful but very laconic answer. It was “That I was content to accept of the office if appointed.” The same day I received the appointment, & was astonished to learn that there were 16 professed applicants all disappointed. This office gave me the monopoly of the business of that office, for there was but one other master in N York. The office kept me very busy in petty details and outdoor concerns, but was profitable. In March 1797 I was appointed Recorder of N. York. This was done at Albany, & without my knowledge that the office was even vacant or expected to be. The first I heard of it was the appointed announced in the papers. This was very gratifying to me, because it was a judicial office. I thought that it would relieve me from the drudgery of practice & gave me a way of displaying what I knew; & of being useful entirely to my taste. I pursued my studies with increased appetite & enlarged my law library very much. But I was encumbered with office business, for the governor allowed me to retain the other office also, & with these joint duties & counsel business in the Sup. Court, I made a great deal of money that year. In Feby 1798 I was offered by Gov Jay & accepted the office of youngest Judge of the Supreme Court. This was the summit of my ambition. My object was to return back to Poughkeepsie, & resume my studies, & ride the circuits, & inhale country air, & enjoy otium cum dignitate. I never dreamed of volumes of reports & written opinions. Such things were not then thought of. I retired back to P in the Spring of 1798 & in that Summer rode all over the Western wilderness & was delighted. I returned home and began my Greek & Latin, & French, & English, & law classics as formerly, & made wonderful progress in books that year.
In 1799 I was obliged to remove to Albany, in that I might not be too much from home, & there I remdined stationary for 24 years. When I came to the bench there (1 ) no reports or State precedents. The opinions from the bench were delivered ore tenus. We had no law of our own, & nobody knew what it was. I first introduced a thorough examination of cases & written opinions. In Jany T 1799 the 2d case reported in 1st Johnsons cases, of Ludlow vs. Dale2 is a sample of the earliest. The judges when we met all assumed that foreign sentences were only good prime facie. I presented and read my written opinion that they were conclusive & they all gave up to me & so I read it in court as it stands.3 This was the commencement of a new plan, & then was laid the first stone in the subsequently erected temple of our jurisprudence.
Between that time & 1804 I rode my share of circuits, attended all the terms, & was never absent, & was always ready in every case by the day. I read in that time (4 ) and completely abridged the latter, & made copious digests of all the English new reports and treatises as they came out. I made much use of the Corpus Juris, & as the Judges (Livingston excepted) knew nothing of French or civil law I had immense advantage over them. I could generally put my Brethern to rout & carry my point by mysterious want of French and civil law. The Judges were republicans & very kindly disposed to everything that was French, & this enabled me without exciting any alarm or jealousy, to make free use of such authorities & thereby enrich our commercial law.
I gradually acquired preponderating influence with my brethern, & the volumes in Johnson after I became Ch. J in 1804 show it. The first practice was for each judge to give his portion of opinions when we all agreed, but that gradually fell off, but for the two or three last years before I left the bench, I gave the most of them. I remember that in 8th Johnson all the opinions one Term are per curiam. The fact is I wrote them all, & proposed that course to avoid existing jealousy & many a per curiam opinion was so inserted for that reason.
Many of the cases decided during the 16 years I was in the Supr. Court were labored by me most unmercifully, but it was necessary under the circumstances in order to subdue opposition. We had but few American precedents. One judge was democratic, and my brother Spencer particularly of a bold, vigorous, dogmatic mind, & overbearing manner. English authorities did not stand very high in those feverish times, & this led me a hundred times to attempt to bear down opposition, or flame it by exhausting research & overwhelming authority. Our Jurisprudence was probably on the whole improved by it. My mind certainly was roused, & was always kept ardent and inflamed by collision.
In 1814 I was appointed Chancellor. The office I took with considerable reluctance. It had no claims. The person who left it was stupid, & it is a curious fact that for the nine years I was in that office, there was not a single decision, opinion or dictum of either of my two predecessors (Ch. Livingston & Ch. (1 ) ) from 1777 to 1814 cited to me or even suggested. I took the court as if it had been a new institution, & never before known to the U. S. I had nothing to guide me, & was left at liberty to assume all such English chancery powers and jurisdiction as I thought applicable under our constitution. This gave me great scope, & I was only checked by the revision of the Senate & court of Errors. I opened the gates of the court immediately, & admitted almost gratuitously the first year 85 counsellors, though I found there had not been but 13 admitted for 13 years before. Business flowed in with a rapid tide. The result appears in the seven volumes of Johnson’s Ch. reports.
My study in Equity jurisprudence was very much confined to the topics elicited by the cases. I had previously read, of course, the modern Equity reports, down to the time, & of course I read all the new ones as fast as I could procure them. I remember reading Pear Williams as early as 1792 and made a digest of the leading doctrines. The business of the court of chancery oppressed me very much, but I took my daily exercise, & my delightful country rides among the Catskill or the Vermont mountains with my wife, & kept up my health and spirits. I always took up the cases in their order, & never left one until I had finished it. This was only doing one thing at a time. My practice was first to make myself perfectly & accurately (mathematically accurately) master of the facts. It was done by abridging the bill, & then the answers, & then the depositions, & by the time I had done this slow tedious process I was master of the cause & ready to decide it. I saw where justice lay and the moral sense decided the cause half the time, & I then sed down to search the authorities until I had exhausted my books, & I might once & a while be embarrassed by a technical rule, but I most always found principles suited to my views of the case, & my object was to discuss a point (1 ) as never to be teazed with it again, & to anticipate an angry & vexatious appeal to a popular tribune by disappointed counsel.
During those years at Albany, I read a great deal of English literature, but not with the discipline of my former division of time. The avocations of business would not permit it. I had dropped the Greek as it hurt my eyes. I persevered in Latin, & used to read Virgil, Horace, Juvenal, Lucan, Salust, Tacitus, &c & Ciceros offices, & some of them annually. I have read Juvenal, Horace & Virgil eight or ten times. I read a great deal in Pothiers works and always consulted him when applicable. I read the Ed & Q reviews & Annl register ab initio & thoroughly, & voyages & travels & the Waverley novels &c, as other folks did. I have always been excessively fond of voyages and travels.
In 1823 a solemn era in my life arrived. I retired from the office at the age of 60, & then immediately with my son visited the Eastern States. On my return the solitude of my private office & the new dinasty did not please me. I besides would want income to live as I had been accustomed. My eldest daughter was permanently settled in N York, & I resolved to move away from Albany, & I ventured to come down to N. Y. & be Chamber Counsel, & the trustees of Columbia College immediately tendered me again the old office of professor which had been dormant from 1795. It had no salary, but I must do something for a living, & I undertook (but exceedingly against my inclination) to write & deliver law lectures. In the two characters of Chamber Counsellor and College lecturer, I succeeded by steady perseverance beyond my most sanguine expectations, & upon the whole the five years I have lived here in this City since 1823 have been happy & prosperous, & I live aside of my daughter, & I take excursions every Summer with my wife & daughter all over the country. I have been twice with he (1 ) Canada & in every direction. I never had better health. I walk the battery uniformly before breakfast. I give a great many written opinions, & having got heartily tired of lecturing I abandoned it, & it was my son that pressed me to prepare a volume of lectures for the press. I had no idea of publishing them when I delivered them. I wrote over one volume & published it as you know. This led me to remodel & enlarge, & now the 3rd volume will be out in a few days, & I am obliged to write a 4th to complete my law.
My reading now is as you may well suppose, quite desultory, but still I read with as much zeal and pleasure as ever, I was never more engaged in my life than during the last Summer. I accepted the trust of receiver to the Franklin (insolvent) Bank, & it has occupied, & perplexed, & vexed me daily, & I had to write part of the 3rd volume, & search books a good deal for that very object, and I have revised the proof sheet.
If I had a convenient opportunity (though I do not see how I can have one) I would send the 3rd volume out to you, & another to our excellent friend, Governor Carroll, to whom I beg you will be so good as to present my best respects & the expression of my great esteem.
Your suggestion of an Equity treatise contains a noble outline of a great & useful work, but I cannot & will not enter on such a task. I have much more to lose than to gain & I am quite tired of Equity law. I have done my part, & choose to live more at my ease, & to be prepared for the approaching infirmities of age.—On reviewing what I have written, I had thoughts of burning it, I speak of myself too entirely, & it is entirely against my habit or taste, but I see no other way fairly to meet your desires.
I am with great respect and good wishes,
Thomas Washington, Esq.
[1 ]Hitherto unpublished, except that the first part appeared in the Illinois Law Review, volume II, p. 1, June, 1907. All five parts were publicly read as lectures, in February and March, 1906, in the Law School of Northwestern University.
[2 ]Lecturer on Legal History and Biography in Northwestern University, 1905-1906. A. B. Michigan University, 1884; admitted to the bar in Salt Lake City, Utah, 1888; Reporter of the Supreme Court of Utah, 1889-1894; Member of the Chicago Bar since 1899; Lecturer on Mining Law in the University of Chicago, since 1902.
[1 ][A Table of Regnal Years is prefixed to this volume.—Eds.]
[2 ]The authorities for this period, beside the well-known works of Pollock and Maitland, Foss, Lord Campbell, Stubbs, Hallam and the other historians, include Bigelow’s Placita Anglo-Normannica, Freeman’s William Rufus, Burke’s Dormant and Extinct Peerages, Dugdale’s Baronage, Maitland’s Domesday, Pollock’s King’s Justice (12 Harv. L. Rev.), Pollock’s King’s Peace (13 Harv. L. Rev.), Foss’ Memories of Westminster Hall, Hall’s Court Life Under the Plantagenets, Mrs. Green’s Henry II., Pulling’s Order of the Coif, Beale’s Introduction to his edition of Glanville, Maitland’s Register of Writs (3 Harv. L. Rev.), Maitland’s Introduction to Bracton’s Note Book, Maitland’s Bracton and Azo, Select Pleas of the Crown (Selden Society), Select Civil Pleas (Selden Society), and numerous sources of general history, such as William of Malmesbury, Matthew Paris, etc.
[1 ]W. Jones Rep. 101.
[1 ]The above free translation is more than a reminiscence of Coleridge’s lines.
[1 ]The origin of this distinction, taking us back to the more primitive Germanic ideas and the contrast between an attornatus or anwalt and a vorsprecher, causidicus, or conteur, has been once for all set forth in Professor Heinrich Brunner’s essay on “Die Zulässigkeit der Anwaltschaft im französischen, normannischen, and englischen Rechte des Mittelalters,” first printed in the Zeitschrift für vergleichende Rechtswissenschaft. I, 321, and afterwards abbreviated in § 100 of his Deutsche Rechtsgeschichte (1892, vol. II).
[1 ]General references for this period: The Year Books of Horwood and of Pike; Maitland’s Year Books of Edward II, Selden Society; the Liber Assisarum; Maitland’s Conveyancer in the Thirteenth Century; Select Pleas in Manorial Courts (Selden Society); Placita de Quo Warranto; Mirror of Magistrates (Selden Society); Thayer’s Preliminary Treatise on Evidence; Ames’ History of Assumpsit (3 Harv. L. Rev.); Maitland’s Register of Writs (3 Harv. L. Rev.); Baldwin’s Introduction to his edition of Britton; Fleta; Burke’s Dormant and Extinct Peerages; Jenks’ Edward I; Pike’s History of Crime; the works of Foss, Campbell and Stubbs; Reeves’ History of English Law is reliable only in regard to the statute book.
[2 ]The last English Papal bishop who left a family of acknowledged children.
[1 ]“And then Knivet the Chancellor came into the court and the case was explained to him by the judges and he concurred.”
[1 ]New College is equalled by Merton at Oxford, founded by Walter de Merton, Henry III.’s chancellor. Its exquisite chapel and noble hall are the work of that chancellor. Even Christ Church, which was long the most splendid college foundation in the world, is the work of Henry VIII.’s chancellor, Cardinal Wolsey. Magdalen, too, the loveliest of them all, is the work of William of Waynflete, “the right trusty and well beloved clerk and chancellor” of Henry VI. To these may be added Wadham at Oxford, founded from the estate left by a celebrated English judge, and Corpus Christi at Cambridge.
[2 ]The Year Books for this period must be read in the Norman French (so called). Bellewe’s Reports are Richard II.’s Year Books so far as printed. Stubbs, Campbell and Foss are, of course, necessary reading. Further general references are: Select Cases in Chancery (Selden Society), Wambaugh’s edition of Littleton’s Tenures, Plummer’s Introduction to Fortescue’s Monarchy, Lord Clermont’s Fortescue’s De Laudibus, Pulling’s Order of the Coif, Herbert’s Antiquities of the Inns of Court, Pierce’s Inns of Court, Douthwaite’s Gray’s Inn, Loftie’s Inns of Court and Chancery, Dillon’s Laws and Jurisprudence, Kerly’s Equitable Jurisdiction, Ames’ History of Assumpsit, Thayer’s Preliminary Treatise, Wigmore on Evidence. Ames’ Notes to De Laudibus may be read in addition. Reeves now becomes more reliable. Dugdale’s Origines Juridiciales has much curious information. Walsingham’s Chronicle is valuable. Mr. Holdsworth is to write on The Legal Profession in the 14th and 15th centuries, in the Law Quarterly Review for 1907.
[1 ]“There is no man in England who can tell whether she is within age or of full age, for some women who are thirty years old will appear to be only eighteen.”
But the learned Markham was mistaken. The wife did not bring the writ; she was made defendant.
[1 ]Our version has it: “When the word of the prophet shall come to pass, then shall the prophet be known, that the Lord hath truly sent him.” Jer. 28:9.
[1 ]The grandson of a noted lawyer of that time, by name Rede, afterwards endowed Jesus College at Oxford with a fellowship and a brewery. The brewery for the use of undergraduates is a startling commentary on our Puritanical practices.
[1 ]The serjeants at law had their lodgings in the Old Serjeants’ Inn, which stands in Chancery Lane. But it is likely that the lodgings were occupied only during term time. The Paston Letters tell us how the good wife at home sent up from the country hams, chickens and cheese. But as soon as court adjourned for the long vacation the serjeants and judges hurried to their homes in the country. The arrangement of the terms with the long vacation at harvest time proves the country residence of the judges and lawyers.
[1 ]General references for this period: Foss and Campbell now become much fuller in detail. The State Trials are invaluable for the whole period. Besides these may be named: Fitzherbert’s Abridgement, New Natura Brevium and Diversity of Courts, Lynwoode’s Provinciale, St. Germain’s Doctor and Student, Select Cases from the Court of Requests (Selden Society), Select Cases from the Star Chamber (Selden Society), Reeves’ History of English Law, Spedding’s Life of Bacon, Anderson’s, Dyer’s, Popham’s and Plowden’s Reports, Pollock’s Land Laws, Dugdale’s Origines, Staunforde’s Pleas of the Crown, Coke upon Littleton, Coke’s Institutes, Coke’s Reports with the Introductions, Whitelocke’s Memorials, Hale’s Introduction to Rolle’s Abridgement (in Hargrave’s Collecteana Juridica), Saunders’ Reports, North’s Life of Lord Keeper North, Irving’s Life of Jeffreys, Roscoe’s Lives of Eminent Lawyers. Hale’s Pleas of the Crown and History of the Common Law are not critical. For the historical development of the rules of evidence consult Wigmore on Evidence under the particular rule.
[1 ]Bishop of Chichester v. Webb, 2 Dyer 107; Lady Hales v. Pettit, Plowden 253.
[1 ]3 Com. 50.
[1 ]Perhaps we ourselves have as yet no right to condemn this, when we still see in some regions masterships in chancery turned over to the successful political party to be filled.
[1 ]2 White and Tudor Lead. Cas. Equity 601.
[1 ]3 Ch. Cas. 1.
[1 ]6 State Trials 647.
[1 ]1 Vernon 419, 369.
[1 ]The authorities for this period are too numerous to be named here. Lord Campbell’s Lives, both of Chief Justices and of Lord Chancellors, are very full. His lives of Mansfield and Eldon are excellent; but his Brougham and Lyndhurst are pitiable. Foss is reliable. Welsbv’s Lives of Eminent English Judges, Roscoe’s Lives of Eminent Lawyers, Cooksey’s Life of Somers, Twiss’ Life of Eldon, Brougham’s Autobiography, Arnould’s Memoir of Denman, Martin’s Life of Lyndhurst. Atlay’s Victorian Chancellors, and Woolrych’s Lives of Eminent Serieants, may be consulted. A Century of Law Reform summarizes the changes made in the law, while Dicey’s Law and Opinion in England shows the spirit underlying the legal changes. There are, of course, endless other authorities for this period, including almost innumerable magazine articles. Bowring’s edition of Bentham’s works, with his Memoirs prefixed, is valuable.
[1 ]No attempt will be made here to do anything more than indicate the attitude of great lawyers toward reforms in the law.
[1 ]Ld. Raym. 909.
[1 ]Ward vs. Evans, 2 Salk. 442; Thorald vs. Smith, 11 Mod. 71, 87; Nickson vs. Brohan, 10 Mod. 109.
[1 ]One change in the law, which once seemed a very important matter in England, had been made before the reformers set to work. The judges of England had uniformly held that in a prosecution for libel the jury passed upon the facts, the court upon the law. The construction of the written document, whether it was libellous or not, was according to well-settled principles a question for the court. The matters of fact, as to whether the defendant had published the libel and whether its references were to the persons and things stated in the indictment or information, were for the jury. But as long as the jury rendered a general verdict of not guilty, there was presented a chance to the jury to find a verdict of not guilty, upon the ground that, although the publication was found and the innuendoes proven, the document was in fact no libel. The judges had tried to escape this dilemma by putting to the jury the question of publication and of the truth of the innuendoes, but Fox’s Libel Act provided, in effect, that the jury should pass upon both fact and law.
[1 ]Hugenin v Baselee, 14 Ves. 273.
[2 ]Dent v. Russell, 4 Myl. & Cr. 277.
[1 ]This act of larceny is usually described as an outburst of patriotism.
[1 ]The two additional Divisions of the original Act, Common Pleas and Exchequer, were shortly afterwards abolished.
[2 ]7 App. Cas. 237.
[1 ]This essay was first published as a series of articles in the Green Bag, volume XIII. (1901), pp. 23 et seq, and volume XIV. (1902), 27 et seq.; it has been revised by the author for this collection.
[2 ]Member of the Bar of New York City; M. A. Union College.
[1 ]See Lord Justice Bowen’s graphic description of the technicalities, confusions and obscurities which beset litigation at the beginning of Queen Victoria’s reign, in the collection of essays published by Thos. Humphrey Ward in honor of the Queen’s Jubilee. [Lord Bowen’s essay is reprinted as No. 16 of this Collection.—Eds.]
[1 ]6 Vesey 263; 14 do. 203; 1 Ves. & B. 59; 1 Rose 253; 1 Glyn & J. 384; 2 Swanst. 36; 2 Bligh P. C. 402.
[1 ]Lord Eldon’s leading cases are: Ellison v. Ellison, 6 Ves. 656; Mackreth v. Symmons, 15-329; Murray v. Elibank, 10-84; Aldrich v. Cooper, 8-382; Brece v. Stokes, 11-319; Howe v. Dartinouth, 7-137; Huguenen v. Baseley, 14-273; Ex parte Pye, 18-140; Seton v. Slade, 7-265; Agar v. Fairfax, 17-533; Murray’s Benbow, 4 St. N. 1410; Lucena v. Crawford, 2 Bos. & P. (N. R.) 317; Duffreld v. Elwes, 1 Bligh (Ns.) 499; Jeeson v. Wright, 2 Bligh, 54; Evans v. Bicknell, 6 Ves. 174; Booth v. Blundell, 19 Ves. 494; Callow v. Walker, 7-1; Southey v. Sherwood, 2 Meriv, 435; Wykham v. Parker, 19 Ves. 21; Gee v. Pritchard, 2 Swanst. 414; Davis v. Duke of Marlborough, 2 Swanst. 162; Atty. Gen. v. Forstes, 10 Ves. 342; Landsdowne v. Lansdowne, 2 Bligh, 86; Gordon v. Majoribanks, 6 Dow, 111.
[1 ]Ferguson v. Kinnoul, 9 Cl. & F. 250; Stokes v. Herron, 12 do. 163; Birtwhistle v. Vardell, 2 do. 581; 7 do. 895; Cookson v. Cookson, 12 do. 121; O’Connell’s case, 11 do. 155; R. v. Millis, 10 do. 534; Atwood v. Small, 6 do. 232; Wright v. Tatham, 5 do. 670; Purves v. Landell, 12 Cl. & F. 97; Egerton v. Brownlow, 4 H. L. Cas. 1; Greenough v. Gaskell, 1 Myln. & K.; McCarthy v. De Caix, 2 Russ. & Mylne; Cooper v. Bockett, 4 Notes of Cases, 685.
[2 ]Auchterarder case, 6 Cl. & F. 46; O’Connell’s case, 11 do. 155; Tullett v. Armstrong; Scarborough v. Borman, 4 Myln & Cr. 120; Cookson v. Cookson, 12 Cl. & F. 121; Atwood v. Small, 6 do. 232; Shore v. Wilson, 9 do. 353; R. v. Millis, 10 do. 534; Stokes v. Heron, 12 do. 163; Dunlop v. Higgins, 1 H. L. Cas. 351; Wilson v. Wilson, 1 do. 538; Faun v. Malcomson, 1 do. 637; Thynne v. Earl of Glengall, 2 do. 131; Duke of Brunswick v. King of Hanover, 2 do. 1; Folev v. Hill, 2 do. 28; Piers v. Piers, 2 do. 331; Charlton’s case, 2 Myln & Cr. 316; Pym v. Locker, 5 do. 29.
[1 ]Egerton v. Brownlow, 4 H. L. Cas. 203; Maunsell v. White, 4 do. 1037; Jeffreys v. Boosey, 4 do. 842; Lumley v. Wagner, 5 De G. & S. 485; Grey v. Pearson, 6 H. L. Cas. 61; Brook v. Brook, 9 do. 195; Colyer v. Finch, 5 do. 905; Savery v. King, 5 do. 627; Bargate v. Shortridge, 5 do. 297; Jordan v. Money, 5 do. 185.
[2 ]Cox v. Hickman, 8 H. L. Cas. 267; Egerton v. Brownlow, 4 do. 1; Jeffreys v. Boosey, 4 do. 842; Oakes v. Turquand, 2 do. 369; Brook v. Brook, 9 do. 195; Ranger v. Great Western Ry. 5 do. 72; Ricket v. Metropolitan Ry. 2 E. & I. App. 174; Rylands v. Fletcher, 3 do. 330; Shaw v. Gould, 3 do. 55; Startup v. Macdonald, 12 L. J., Ex. 477; Clift v. Schwabe, 17 L. J., C. P. 2; Money v. Jorden, 2 De G. M. & G., 318; Hills v. Hills, 8 M. & W. 401; Jones v. Lock, 1 Ch. App. 25.
[3 ]Chasemore v. Richards, 7 H. L. Cas. 360; Peek v. Gurney, 6 E. & I. App. 377; Bain v. Fothergill, 7 do. 170; Hollins v. Fowler, 7 do. 762; Robinson v. Mallett, 7 do. 802; Rankin v. Potter, 6 do. 83; Overend v. Gurney, 5 do. 480; Daniel v. Metropolitan Ry., 5 do. 49; Knox v. Gye, 5 do. 656; Duke of Buccleuch, 5 do. 418; Ricket v. Metropolitan Ry., 2 do. 174; Shaw v. Gould, 3 do. 55; Hammersmith Ry. v. Brand, 4 do. 171; Lister v. Perryman, 4 do. 521; Gilbin v. McMullen, 2 P. C. 318; Steele v. No. Met. Ry., 15 W. R. 597.
[1 ]See also Higham v. Ridgeway, 1 East. 109; Elwes v. Mawe, 3 do. 98; Wain v. Warlters, 5 do. 10; Vicars v. Wilcocks, 8 do. 1; Godsall v. Boldero, 9 do. 72; Horn v. Baker, 9 do. 215; Disbury v. Thomas, 14 do. 323; Roe d. Earl of Berkeley v. Archbishop of York, 6 do. 101; Erle v. Rowcroft, 8 do. 133; Tanner v. Smart, 6 Barn. & Cress, 604. His political prepossessions may be studied in the numerous state prosecutions over which he presided, reported in the collection of State Trials, volumes twenty-three to thirty-one. The most important of these are the trials of Peltier, Hardy, Horne-Tooke, Stone, Despard, Johnson, Hunt, Lambert and Watson.
[1 ]See also R. v. O’Connell, Cl. & F., 155, R. v. Millis, 10, do. 534; Wolveridge v. Steward, 3 L. J., Ex. 360; Neal v. Mackenzie, 6 do. 263; Nepean v. Knight, 7 do. 335; Muspratt v. Gregory, 7 do. 385; Rhodes v. Smethurst, 9 do. 330; Davies v. Lowndes, 12 do. 506; McCallum v. Mortimer, 11 do. 429.
[2 ]Hochster v. De la Tour, 2 E. & B. 678; Queen v. Bedfordshire, 4 do. 535; Levy v. Green, 8 do. 575; Brass v. Maitland, 6 do. 70; Humphries v. Brogden, 20 L. J., Q. B. 10; Harrison v. Bush, 25 do. 25; Wheelton v. Hardisty, 26 do. 265; In re Alicia Race, 26 do. 169; Humfrey v. Dale, 26 do. 137; Thompson v. Hopper, 26 do. 18; Queen v. Munneley, 27 do. 345; Lewis v. Levy, 27 do. 282; Knight v. Faith, 19 do. 509; Morton v. Tibbett, 19 do. 382; De Haber v. Queen of Portugal, 20 do. 488; Shallcross v. Palmer, 20 do. 367; Boosey v. Jeffries, 20 L. J. Ex. 354; Lynch v. Knight, 9 H. L. Cas. 580; Gibson v. Small, 4 do. 352; Brook v. Brook, 9 do. 195.
[1 ]Clift v. Schwabe, 17, L. J., C. P., 2; Howard v. Gossett, 14 L. J. Q. B., 373; Chasemore v. Richards, 7 H. L. Cas. 360; Jeffreys v. Boosey, 4 do. 842; Lumley v. Gye, 2 E. & B. 216.
[2 ]Kennedy v. Brown, 13 C. B. (N. S.) 677; Ionides v. Universal Marine Association, 14 do. 259; R. v. Rowlands, 5 Cox Cr. Cas. 406; R. v. Rowton, 10 do. 25; Thompson v. Hopper, 25 L. J., Q. B., 240; Wheelton v. Hardisty, 26 do. 265; Ricket v. Metropolitan Ry. 34 do. 257; Ex parte Fernandez, 30 L. J., C. P. 321; Brand v. Hammersmith Ry. 36 L. J., Q. B. 139; Gibson v. Small, 4 H. L. Cas. 352; Jeffreys v. Boosey, 4 do. 842; Lumley v. Gye, 2 E. & B. 216; Kay v. Wheeler, L. R. 2 C. P. 302.
[3 ]R. v. O’Connell, 11 Cl. & F. 155; Startup v. Macdonald, 12 L. J., Ex. 477; Clift v. Schwabe, 17 L. J., C. P. 2; East Counties Ry. v. Broom, 20 L. J., Ex. 196; Wright v. Tatham, 5 Cl. & F. 670; R. v. Rowlands, 5 Cox Cr. Cas. 406.
[4 ]Some of his best efforts are Lumley v. Gye, 2 E. & B. 216; Mennie v. Blake, 225, L. J., Q. B. 399; Blackmore v. B. & E. Ry. Co., 27 do. 167; Wilson v. Eden, 19 do. 104; R. v. Scott, 25 L. J., Mag. Cas. 128; Egerton v. Brownlow, 4 H. L. 1; Jeffreys v. Boosey, 4 do. 842; Wright v. Tatham, 5 Cl. & F. 670; Shore v. Wilson, 9 do. 353.
[1 ]Acton v. Blundell, 13 L. J., Ex. 289; Marston v. Fox. 8 do. 293; Panton v. Williams, 10 do. 545; James v. Plant, 6 do. 260; Hitchcock v. Cocker, 6 do. 266; Scarborough v. Saville, 6 do. 270; Howden v. Simpson, 8 do. 281; Chanter v. Leese, 9 do. 327; Sadler v. Dixon. 11 do. 435; Whyte v. Rose, 11 do. 457; Collins v. Evans, 13 L. J., Q. B. 180; R. v. Frost, 4 St. Tr. 130; Charge to Grand Jury, do. 1411; R. v. O’Connell, 11 Cl. & F. 155; R. v. Millis, 10 do. 534; Shore v. Wilson, 9 do. 353; Coxhead v. Richards, 2 C. B. 569; Flight v. Booth, 1 Bing. N. C. 377; Cook v. Ward, 4 M. & P. 99; Kemble v. Farren, 3 do. 425; Margetson v. Wright, 5 do. 606.
[2 ]R. v. Burton, 1 Dears. C. C. 282; Borrodaile v. Hunter, 5 M. & G. 639; M’Naghten’s case, 10 Cl. & F. 199; Shore v. Wilson, 9 Cl. & F. 353.
[1 ]Earl of Shrewsbury v. Scott, 6 C. B. (N. S.) 1; Behn v. Burness, 1 B. & S. 877; Ex parte Swan, 7 C. B. (N. S.) 400; Johnson v. Stear, 15 C. B. (N. S.) 30; Spence v. Spence, 31 L. J., C. P. 189; Hall v. Wright, E., B. & E. 1; Cooper v. Slade, 6 E. & B. 447; Anderson v. Radcliffe, 29 L. J., Q. B. 128; Bamford v. Turnley, 31 do. 286; Penhallow v. Mersey Docks Co., 30 L. J., Ex. 329; Shore v. Wilson, 9 Cl. & F. 353; Wright v. Tatham, 5 do. 670; Roddam v. Morley, 1 De G. & J. 1; Hounsell v. Smith, 7 C. B. (N.S.) 731.
[2 ]Clift v. Schwabe, 17 L. J., C. P. 2; Attorney General v. Sillem, 33 L. J., Ex. 92; Hall v. Wright, 29 L. J., Q. B. 43; Egerton v. Brownlow, 4 H. L. Cas. 1; Gibson v. Small, 4 do. 352; Jeffreys v. Boosey, 4 do. 842; Wood v. Wand, 3 Ex. 774; Molton v. Caurraux, 4 do. 17; Bellamy v. Major, 7 do. 389; Hudson v. Roberts, 6 do. 697; R. v. Abbott, 1 Dears. C. C. 273.
[1 ]When asked once why he had not written a book he replied: “My works are to be found in the pages of Meeson and Welsby.” These volumes are the best monument of his industry. As most of the opinions are rendered by him, it is unnecessary to undertake to give a comprehensive selection. The following will suffice as examples: Norton v. Elain, 2 M. & W. 461; Langridge v. Levy, 2 do. 461; Nepean v. Knight, 2 do. 894; Doe d. Rees v. Williams, 2 do. 749; Harris v. Butler, 2 do. 539; Jackson v. Cummings, 5 do. 342; Evans v. Jones, 5 do. 77; Merry v. Green, 7 do. 623; Acton v. Blundell, 12 do. 324; King v. Hoare, 13 do. 494.
[2 ]Hadley v. Baxendale, 9 Ex. 341; Wood v. Leadbitter, 13 M. & W. 840; King v. Hoare, 13 do. 494; Skeffington v. Whitehurst, 1 Y. & C. 1; Startup v. Macdonald, 12 L. J., Ex. 477; Egerton v. Brownlow, 4 H. L. Cas. 1; Gibson v. Small, 4 do. 352; Jeffreys v. Boosey 4 do. 842; O’Connell’s case, 11 Cl. & F. 155; Wright v. Tatham, 5 do. 670.
[1 ]Following is a fairly comprehensive list of his most important contributions to international law: The Santa Cruze, 1 C. Rob. 50; Mercurius, ib. 80; Frederick Molke, ib. 86; Betsy, ib. 93; Flad Oyen, ib. 135; Hendrick and Maria, ib. 146; Columbia, ib. 154; Mentor, ib. 179; Jouge Margaretha, ib. 189; Hoop, ib. 196; Two Friends, ib. 271; Vrow Margaretha, ib. 336; Maria, ib. 340; Immanuel, 2 C. Rob. 186; Indian Chief, 3 C. Rob. 12; Portland, ib. 41; Twee Gebroeder, ib. 162, 336; Inuan, ib. 167; Atlas, ib. 299; Bremen Flugge, 4 C. Rob. 90; Anna Catharina, ib. 107; Fortuna, ib. 278; Venus, ib. 355; Phoenix, 5 C. Rob. 20; Carlotta, ib. 54; Boedes Lust, ib. 233; Anna, ib. 373; Orozambo, 6 C. Rob. 430; Atalanta, 6 ib. 440; Neptunus, 6 ib. 403; Madison, Edwards, 224; Coylon, 1 Dods. 505; Eliza Ann, ib. 244; Fanny, 2 Dods. 210; Le Louis, ib. 210.
[1 ]Some of Lushington’s conspicuous cases in Admiralty are: The Milan, Lush. 388; Franciska, 2 Spink’s Adm. and Ecc. 1; Banda and Kirwee Booty, L. R., 1 A. and E. 109; Batavia, 9 Moo. P. C. 286; Europe, Br. and Lush. 89; Pacific, ib. 245; Helen, L. R., 1 A. and E. 1.
[1 ]It was in the Exchequer Chamber that the judges assembled when they were consulted by the king. These consultations were frequent in early times. The judges were consulted by Richard II as to his kingly power; by Henry VII as to whether the devolution of the crown upon him purged him of his attainder by Richard III; by Henry VIII as to whether on a bill of attainder a person need be heard in his own defence. The practice became so common that in 1591 the assembled judges volunteered some good advice on the subject of illegal commitments.
[1 ]Some of the other cases in which the lay peers participated were Douglas v. St. John (Lord’s Journal, XXXII, 264), in 1769; Alexander v. Montgomery (Lord’s Journal, XXXIII, 519), in 1773; Hill v. St. John (Lord’s Journal, XXXIV, 443), in 1775; Bishop of London v. Fytche (Lord’s Journal, XXXVI, 687), in 1783.
[1 ]Mordaunt v. Moncrieff, 1 Pr. & Div. App. 374, upon the question whether the statutory proceeding for dissolution of a marriage can be instituted or proceeded with either on behalf of or against a husband or a wife who prior to the institution of such proceedings had become incurably insane; Allison v. Bristol Marine Insurance Co., 1 App. Cas. 214; Dalton v. Angus, 6 App. Cas. 742, as to the right of lateral support for buildings; and the celebrated trade union case of Allen v. Flood, (1898) A. C. 1.
[2 ]These difficulties were clearly defined by Justice Maule in M’Naghten’s case, 10 Cl. & F. 199, where he hesitated to answer the questions propounded, “first, because they do not appear to rise out of and are not put with reference to a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers ought to be applicable to every possible state of facts not inconsistent with those assumed in the questions; secondly, because I have heard no argument at your lordships’ bar or elsewhere on the subject of these questions, the want of which I feel the more the greater are the number and extent of questions which might be raised in argument; and, thirdly, from a fear, of which I cannot divest myself, that as these questions relate to matters of criminal law of great importance and frequent occurrence, the answers to them by the judges may embarrass the administration of justice when they are cited in criminal cases.”
[1 ]Atty. Gen. v. Winstanley, 5 Bligh (N. S.) 14.4.
[2 ]O’Connell v. The Queen, 11 Cl. & F. 232, on the validity of a general judgment when some of the counts in an indictment are bad; Jeffreys v. Boosey, 4 H. L. 815, on copyright; Unwin v. Heath, 5 H. L. recover for damage necessarily resulting from the exercise of powers conferred by Parliament; and Allen v. Flood, (1898) A. C. 1.
[3 ]Cushing v. Dupuy, 5 App. Cas. 409.
[1 ]I Ves. Sr., 446.
[1 ]Prior to this time the only Privy Council reports, aside from occasional decisions contained in the early House of Lords reports, were those of Acton and Knapp. The former (1809-11) is made up mostly of brief opinions in prize and colonial cases by Sir William Grant, who was during the early part of the century the dominant influence in the court. The reports of the court under its modern establishment begin with Knapp (1829-36), and the two series of his successor, Moore, overlap the authorized reports.
[1 ]The following are among his ablest opinions in various branches of the law: Schacht v. Otter, 9 Moo. P. C. 150; Allen v. Maddock, 11 do. 438; Baltazzi v. Ryder, 12 do. 168; Kirchner v. Venus, 12 do. 361; Secretary of State of India v. Kamachee Boye Sahaba, 13 do. 22; Bland v. Ross, 14 do. 210; Ward v. McCorkill, 15 do. 133; Attorney General of Bengal v. Ranee Surnomoye Dossee, 2 Moo. P. C. (n. s.) 22; Cleary v. McAndrew, 2 do. 216; Brown v. Gugy, 2 do. 341; Austen v. Graham, 1 Spink 357; The Otsee, 2 do. 170; The Julia, Lush. 224; The Hamburgh, Br. and Lush. 271. His opinions in ecclesiastical cases were likewise characterized by breadth of mind. Among his most prominent cases of this kind are Gorham v. Bishop of Exeter, Liddell v. Weaterton, Long v. Bishop of Capetown, and the Essays and Reviews case.
[1 ]Among other causes célèbres in which he presided were the Matlock will case; the Wainwright murder case, a leading case on circumstantial evidence; the convent case of Saurin v. Starr, an action by a sister of mercy against her mother superior for assault, and Reg. v. Gurney, a famous case of fraud conspiracy.
[1 ]Campbell v. Spottiswood, 3, B. & S. 769. See also Hunter v. Sharp, 4 F. & F. 983, as to the protection afforded with respect to statements of motive.
[1 ]In the Court of Queen’s Bench: Campbell v. Spottiswoode, 32 L. J., Q. B. 185; Lloyd v. Guibert, 33-241, etc.; Burges v. Wickham, 33-17; Coe v. Wise, 33-281; Moody v. Corbett, 34-166; Maurpoice v. Westley, 34-229; Wilson v. Bank of Victoria, 36-89; Fleet v. Perrins, 37-223; Allen v. Graves, 39-157; Godard v. Gray, 40-62; Ionides v. Pacific Ins. Co., 41-33; Lloyd v. Spence, 41-93; Newby v. Van Oppen, 41-188; Armstrong v. Stokes, 41-253; Crouch v. Credit Foncier Co., 42-183; Searle v. Laverick, 43-43; Queen v. Castro, 43-105; Taylor v. Greenhalg, 43-168; Ionides v. Pender, 43-227; Bettini v. Gye, 45-209; Mackenzie v. Whitworth, 45-233; Lindsay v. Cundy, 45-381; Queen v. Collins, 45-413; Shand v. Bowes, 45-507.
[1 ]Some of his most elaborate and exhaustive opinions are Beamish v. Beamish, 9 H. L. C. 274, an examination of the ecclesiastical sanctions to the contract of marriage; Ex parte Fernandez, 30 L. J., C. P. 321, on the validity of a commitment for contempt by a court of assize; Lloyd v. Guibert, I Q. B. 115, as to what law governs as to sea damage in a contract of affreightment; Exposito v. Bowden, 8 St. Tr. 817, as to the effect on a contract of affreightment of trading with an enemy; Mayor of London v. Cox, 3 E. and I. App. 252, on the history and principles of the practice of foreign attachment; Notara v. Henderson, 7 Q. B. 225, on the duties of the master of a vessel; Seymour v. London and Insurance Co., 41 L. J., C. P. 193, on contraband of war; Phillips v. Eyre, 6 Q. B. 1, on the jurisdiction of English courts over acts committed abroad; Mody v. Gregson, 4 Ex. 49, as to the application of the doctrine of warranty in a sale by sample; Dawkins v. Lord Rokeby, 4 F. and F. 829, as to absolute privilege in libel; Henwood v. Harrison, 7 C. P. 606, on fair criticism of matters of public interest; Shrewsbury v. Scott, 6 C. B. 1, on the disabilities of Catholics with respect to real property. It may be said of all these opinions, as Lord Campbell said in the House of Lords of Willes’s opinion in Beamish v. Beamish, that they “display extraordinary research and will hereafter be considered a repertory of all the learning to be found in any language upon the subject.” For further study, see also: Cook v. Lister, 13 C. B. (n. s.) 543 (bills of exchange); Dakin v. Oxley, 15 C. B. (n. s.) 646 (charter party); Gt. Western Ry. v. Talley, 6 C. P. 44 (negligence); Hall v. Wright, 29 L. J., Q. B. 43 (breach of promise); Intermaur v. Dames, 1 C. P. 274 (negligence); Ionides v. Marine Ins. Co., 14 C. B. (n. s.) 259 (insurance); Kidston v. Empire Marine Ins. Co., 1 C. P. 535 (insurance); Malcomson v. O’Dea, 10 H. L. 611 (evidence); Mountstephen v. Lakeman, 7 Q. B. 196 (statute of frauds); Patter v. Rankin, 3 C. P. 562 (marine insurance); Ryder v. Wombell, 4 Ex. 32 (infant’s necessaries); Reg. v. Rowton, 10 Cox Cr. Cas. 37 (evidence); Reuss v. Picksley, 1 Ex. 342 (statute of frauds); Santos v. Illidge, 28 L. J., C. P. 317 (emancipation act); Wilson v. Jones, 2 Ex. 139 (insurance); Bonillon v. Lupton, 15 C. B. (n. s.) 113 (marine insurance).
[1 ]Miller v. Salomons, 7 Ex. 475, etc.; Embrey v. Owen, 6 ib. 353: Bellamy v. Majoribanks, 7 ib. 389; Crouch v. Great Northern Ry., 11 ib. 742; Hubbertsty v. Ward, 8 ib. 330; Read v. Legard, 6 ib. 636; Dublin Ry. v. Black, 8 ib. 181.
[2 ]Upon his retirement he could recall only one unpleasantness. “Once a very old and dear friend of mine provoked me so much and made me so angry that I actually threatened to commit him, and I remember that on my asking him what he would have done if I had committed him, he answered promptly, ‘Move for my own discharge.’ ”
[1 ]Observe, also, his position on the liability for rent of an original lessee whose assignee has become bankrupt and disclaimed the case. Smyth v. North, 7 Ex. D., 250.
[1 ]See his articles on “Drink” in Nineteenth Century, May and June, 1885, and his pamphlet “On the Liabilities of Masters to Workmen for Injuries from Fellow-Servants,” London, 1880.
[1 ]British and American Tel. Co. v. Colson, 6 Ex. 118; Household Fire Insurance Co. v. Grant, 4 Ex. D. 216.
[2 ]14 A. C. 179.
[3 ]Baron Bramwell’s principal efforts are: Derry v. Peek, 14 App. Cas. 337 (deceit); Jackson v. Insurance Co., 10 C. P. 25 (marine insurance); Hall v. Wright (breach of promise); Bullen v. Sharp, 1 C. P. 86 (partnership); Debenham v. Mellon, 5 Q. B. D. 394 (wife’s necessaries); Rankin v. Patter, 6 E. and I. App. 131 (marine insurance); Reg. v. Druitt, 10 Cox Cr. Cas. 592; Commrs. of Income Tax v. Pemsel, (1891) A. C. 531 (charity); Mogul Steamship Co. v. McGregor, (1892) A. C. 25 (conspiracy); Mills v. Armstrong, 13 A. C., 1 (negligence); Capital and Counties Bank v. Henty, 7 A. C. 741 (libel); Degg v. Midland Ry. 1 H. and W. 781 (master and servant); Jones v. Tapling, 31 L. J., C. P. 342 (easements); Gray v. Carr, 6 Q. B. 522 (shipping); Hammersmith Ry. v. Brand (damage for vibration); Bryant v. Foot, 3 Q. B. 497 (prescription); Rodocanachi v. Elliott, 9 C. P. 578 (marine insurance); Mullinger v. Florence, 3 Q. B. D. 484 (liens); Clark v. Molyneux, 3 Q. B. D. 237 (libel); Massam v. Cattle Food Co., 14 Ch. D. 763 (trade name); Honck v. Muller, 7 Q. B. D. 92 (sales); Sewell v. Burdick, 10 A. C. 74 (bill of lading); Britton v. Gt. Western Cotton Co., 7 Ex. 130 (master and servant); Duke of Buccleuch v. Board of Works, 3 Ex. 306; Reg. v. Castro, 5 Q. B. D. 507 (criminal procedure); Drew v. Nunn, 4, Q. B. D. 668 (agency); Ryder v. Wombell, 3 Ex. 218 (infants’ necessaries).
[1 ]For example, in Overend v. Gibbs, 5 E. and I. App. 495, he offers the following sensible reflection:
[1 ]Udny v. Udny, 1 Sc. & Div. App. 457; Cookney v. Anderson, 32 L. J. Ch. 427; Ex parte Chavasse, 34 L. J., Bank. 17; Enohin v. Wylie, 10 H. L. Cas. 1; Bell v. Kennedy, 1 Sc. & Div. App. 320, and Shaw v. Gould, 3 E. & I. App. 80.
[2 ]Leather Cloth Co., v. Leather Cloth Co., 33 L. J. Ch. 199; McAndrew v. Bassett, 33 L. J. Ch. 561; Witherspoon v. Currie, 5 E. & I. App. 521; Hills v. Evans, 31 L. J. Ch. 458;. Betts v. Menzies, 10 H. L. Cas. 151.
[3 ]Tapling v. Jones, 11 H. L. Cas. 303; Suffield v. Brown, 33 L. J. Ch. 249; Backhouse v. Bonomi, 9 H. L. Cas. 503.
[4 ]Holroyd v. Marshall, 10 H. L. Cas. 208; Cooper v. Phibbs, 2 H. L. Cas. 149; St. Helen’s Smelting Co. v. Tipping, 11 H. L. Cas. 649; Blades v. Higgs, 11 H. L. Cas. 630; Isenberg v. East Indian Estates Co., 33 L. J., Ch. 392; Lister v. Perryman, 5 E. & I. App. 538; Sackville West v. Holmesdale, 5 E. & I. App. 565.
[1 ]Personal and Political Memoirs, pt. 2, vol. 1, pp. 157, 158.
[1 ]The peroration of his speech on the English humiliation in the Transvaal has often been admired as a specimen of parliamentary eloquence:
[1 ]A comparison between his solution of the case of Goodwin v. Robarts, 1 App. Cas. 488, with Chief Justice Cockburn’s judgment in the lower court (10 Ex. 337) will illustrate his habit of seeking ultimate principles.
[1 ]See Cairns’ Decisions in the Albert Insurance Company Arbitration, 1870-’72, particularly Kennedy’s case, p. 5.
[1 ]Among his other legislative achievements are the Conveyancing Act, the Vendors’ and Purchasers’ Act, and the Registry Act. The only statute which bore his name, however, was the act enabling the Chancery Courts to give damages in lieu of specific performance or injunction.
[1 ]Castrique v. Imrie, 4 E. &. I. App. 414; Barber v. Meyerstein, 4 do. 317; Aister v. Perryman, 4 do. 521; Knox v. Gye, 5 do. 656; Daniel v. Metropolitan Ry., 5 do. 49; Overend v. Gurney, 5 do. 480; Rankin v. Potter, 6 do. 83; Bain v. Fothergill, 7 do. 170; Orr Ewing v. Colquhoun, 2 App. Cas. 839; Thorn v. Mayor of London, 1 do. 120; Rhodes v. Forwood, 1 do. 256; Bowes v. Shand, 2 do. 455; Brogden v. Metropolitan Ry., 2 do. 666; Rossiter v. Miller, 3 do. 1124; Kendall v. Hamilton, 4 do. 504; Sturla v. Freccia, 5 do. 623; Harrod v. Harrod, 1 K. & J. 4; Reade v. Lacy, 1 J. & H. 524.
[1 ]Hope v. Hope, 1 Sw. & Tr. 94; Keats v. Keats, 1-346; Mette v. Mette, 1-416; Tallemache v. Tallemache, 1-561; Tompkins v. Tompkins, 1-168; Ward v. Ward, 1-185; Egerton v. Brownlow, 4 H. L. 1; Sutton v. Sadler; Coxhead v. Richards, 2 C. B. 569.
[2 ]Some of his notable admiralty cases are: The Charkieh, 4 Adm. & Ecc. 50; The Tentonia, 3 do. 394; The Halley, 2 do. 3; The Circassian; The Constitution; The Parlement Belge, 5 P. D. 197; The City of Mecca, 5 do. 28; The Macleod, 5 do. 254; R. v. Keyn, 2 Ex. D. 63.
[1 ]Thomas v. Roberts, 3 De G. & Sm. 758; Walter v. Selfe, 4 do. 315; Prince Albert v. Strange, 2 do. 652; Re Cumming, 1 De G., M. & G. 559; Kekewich v. Manning, 1 do. 176; Burgess v. Burgess, 3 do. 896; Briggs v. Penny, 3 De G., M. & S. 525.
[2 ]A fine illustration of their benevolent wisdom is their disposition of the case of Stourton v. Stourton, 8 D. M. & G. 760, where it was sought to interfere with the education of a child who was being reared by his guardians in a different faith from that professed by the boy’s father. The judges had an interview with the child, and Lord Justice Knight-Bruce expressed the opinion that “the Protestant seed sown in his mind has taken such hold that if we are to suppose it to contain tares they cannot be gathered up without great danger of rooting up also the wheat with them. Upon much consideration, I am of the opinion that the child’s tranquillity and health, his temporal happiness and, if that can exist apart from his spiritual welfare, his spiritual welfare also, are too likely now to suffer importantly from an endeavor at effacing his Protestant impressions not to render any such attempt unsafe and improper.” And Lord Justice Turner sagely adds, in answer to the argument that the child was too young to have formed fixed opinions: “May it not be that the impressions which have been formed might lead to the instruction which would be given being received with carelessness or indifference, or, which would certainly not be less dangerous or less destructive to the character of the boy, with affected acquiescence?”
[1 ]Harvey v. Farnie, 6 P. D. 35; Niboyet v. Nibeyet, 4 do. 1; Massam v. Cattle Food Co., 14 Ch. D. 748; In re Campden’s Charities, 18 do. 310; New Sombrero Co. v. Erlanger, 5 do. 73; Smith v. Anderson, 15 do. 247; Re Goodman’s Trusts, 44 L. T. 527; Wimbleton Conservators v. Dixon, 1 Ch. D. 362; Pike v. Fitzgibbon, 14 do. 837; In re Agar Ellis, 10 do. 49; Re Canadian Oil Works, 10 Ch. App. 599; Barnes v. Addy, 9 Ch. 244; Day v. Brownrigg, 10 Ch. D. 294; Johns v. James, 8 do. 744; Macdonald v. Irvine, 8 do. 101; Rogers v. Ingham, 3 do. 351; Nitro Phosphate Co. v. London, etc., Docks, 9 do. 503.
[1 ]Nugent v. Smith, 1 C. P. D. 423; Nichols v. Marsland, 2 Ex. D. 1; Aynsley v. Glover, 10 Ch. 283; Hext v. Gill, 7 do. 712; Crook v. Hill, 6 do. 311; Lindsay v. Cundy, 2 Q. B. D. 96; Dickinson v. Dodds, 2 Ch. D. 463; Wimbleton Conservators v. Dixon, 1 Ch. D. 362; Rogers v. Ingham, 3 do. 351; Re South Wales, etc., Co., 2 do. 763; Hopkins v. Great Northern Ry. Co., 2 Q. B. D. 228.
[2 ]His various arguments in answer to the supporters of the old order of things afford fine specimens of his powers. For instance, in reply to the contention that judgments of the highest authority had been rendered in the House by the chancellor alone, he said: “If there be a single judge who, by the common consent of mankind, embodies the highest qualities of a judge, then the decisions of that individual, being uniform, certain, definite and clear, would be of the highest possible value; precisely as if you had an arbitrary government, with absolute authority vested in a man of the highest possible moral and intellectual perfections, one would desire to live under that government rather than any other. But it is so difficult to obtain such a man, and still more a succession of such men, that it is impossible, particularly in the case of a tribunal which has causes brought before it from all quarters of the globe, involving all possible questions, to suppose that one individual will at all times be equal to the satisfactory determination of such a vast and multitudinous assembly of subjects; therefore it is that we desire a greater number of minds than one, in order that some may supply what is wanting in others.”
[1 ]Hansard’s Parl. Debates, vol. 214, pp. 331, 337.
[2 ]The first Judicature Act was passed in 1873, and was designed to take effect in 1874; but this not being practicable its operation was postponed until 1875, when a second act was passed, and the judges took their seats as members of the Supreme Court.
[1 ]Other evidences of his ability may be found in Reg. v. Bradlaugh, 15 Cox Cr. Cas. 225; Usill v. Hales, 3 C. P. D. 319; Reg. v. Labouchere, 15 Cox Cr. Cas. 423; Mogul Steamship Co. v. McGregor, 21 Q. B. D. 544; Reg. v. Keyn, 2 Ex. D. 63; Twycross v. Grant, 2 C. P. D. 469; Bowen v. Hall, 6 Q. B. D. 333 (dissenting); Ford v. Wiley, 16 Cox Cr. Cas. 688; Bradlaugh v. Newdigate, 11 Q. B. D. 1.; Currie v. Misa, 10 Ex. 153 (dissenting); Mackonochie v. Penzance, 4 Q. B. D. 697; Ex parts Daisy Hopkins, 17 Cox Cr. Cas. 448.
[1 ]Boughton v. Knight L. B. 3 P. 64; Durham v. Durham; Sugden v. St. Leonards, 1 P. D. 154; Gladstone v. Gladstone; Crawford v. Dilke; Frederick Legitimacy Case; Niboyet v. Niboyet, 4 P. D. 1: Smee v. Smee, 5 P. D. 84; Sottomayor v. De Barros, 5 P. D. 94; Bloxam v. Favre, 9 P. D. 130; Harvey v. Farine, 52 L. J. P. 53; Peek v. Derry, 37 Ch. D. 591; Haster v. Haster, 42 L. J. P. 1; Duke of Buccleuch v. Met. Bd. Wks. 5 E. and I. App. 418; Bailey v. De Crespigny, 4 Q. B. 184.
[2 ]Re Castioni, 17 Cox Cr. Cas. 237; R. v. Curtis, 15 do. 749; R. v. Clarence, 58 L. J., Mag. Cas. 10; R. v. Lillyman, 65 do. 195; Ford v. Wiley, 16 Cox Cr. Cas. 688.
[3 ]R. v. Tolson, 23 Q. B. 169; D. v. Serné, 16 Cox Cr. Cas. 311; R. v. Clarence, 16 do. 523; R. v. Cox, 15 do. 612; R. v. Price, 15 do. 393; R. v. Doherty, 16 do. 307.
[1 ]See Coventry and Dixon’s case, 14 Ch. D. 660.
[2 ]Jessel’s work may be studied in the following list of representative opinions: Re Hallett’s Estate, 13 Ch. D. 693; Smith v. Chadwick, 46 L. T. 702, 20 Ch. D. 67; Wallis v. Smith, 21 Ch. D. 243; Re Campden’s Charities, 18 Ch. D. 310; Baker v. Sebright, 13 Ch. D. 179; Rossiter v. Miller, 36 L. T. 304; Adams v. Angell, 5 Ch. D. 634; Anglo-Italian Bank v. Davies, 9 Ch. D. 275; Carter v. Wake, 4 Ch. D. 605; Dymond v. Croft, 3 Ch. D. 512; Re Eager, 32 Ch. D. 86; Flower v. Lloyd, 6 Ch. D. 297; Freeman v. Cox, 8 Ch. D. 148; Re Hargreave’s Contract, 32 Ch. D. 454; Henty v. Wrey, 21 Ch. D. 332; Patman v. Harland, 17 Ch. D. 353; Redgrave v. Hurd, 20 Ch. D. 1; Richards v. Delbridge, L. R. 18 Eq. 11; Steed v. Preece, L. R. 18 Eq. 192; Sutton v. Sutton, 22 Ch. D. 511; Tussaud v. Tussaud, 9 Ch. D. 363; Walsh v. Lonsdale, 21 Ch. D. 9; Couldery v. Bartrum, 19 Ch. D. 394; Sugden v. St. Leonards, 1 P. D. 154; Ex parte Reynolds, 20 Ch. D. 294; Suffell v. Bk. of England, 9 Q. B. D. 555; Mersey Steel Co. v. Naylor, 9 Q. B. D. 648; Aynsley v. Glover, 18 Eq. 544; Speight v. Gaunt, 22 Ch. D. 727; Ewing v. Orr Ewing, 22 Ch. D.; Re W. Canada Oil Co. 17 Eq. 1 (first case); Ex parte Willey, 74 L. T. 366 (last case).
[1 ]Johnstone v. Milling, 16 Q. B. D. 460; Henty v. Capital & Counties Bank, 7 do. 174; Davies v. Davies, 36 Ch. D., 359; Allcard v. Skinner, 36 do. 145; Tod Heatley v. Benham, 40 do. 97; Angus v. Dalton, 6 App. Cas. 779; Harney v. Farnie, 6 P. D. 35; Niboyet v. Niboyet, 4 do. 1; Re Goodman’s Trusts, 44 L. T. 527; Turton v. Turton, 61 do. 571; Kensit v. Great Eastern Ry., 51 do. 863; Hunt v. Clarke, 61 do. 343.
[2 ]Gray v. Carr, 6 Q. B. 554.
[1 ]The following cases will give an accurate idea of his great labors: Le Lievre v. Gould, (1893) 1 Q. B. 491; Johnstone v. Milling, 16 Q. B. D. 460; The Bernina, 12 P. D., 58; Mitchell v. Darley Main Colliery, 14 Q. B. D. 125; Bowen v. Hall, 6 do. 333; Randall v. Newson, 2 do. 102; Mogul Steamship Co. v. McGregor, 23 do. 598; Johnson v. Roylton, 7 do. 438; Harrison v. Duke of Rutland, (1893) 1 Q. B. 142; Niboyet v. Niboyet, 4 P. D. 1; Currie v. Misa, 10 Ex. 153; R. v. Judge of the City of London Court, 66 L. T. 135; The Gas Float Whitton, 65 L. J., P. 17; Dawkins v. Antrobus, 17 Ch. D. 615; Angus v. Dalton, 6 App. Cas. 779; Drew v. Nunn, 4 Q. B. D. 661; R. v. Keyn, 2 Ex. D. 63; R. v. Bunn, 12 Cox Cr. Cas. 338; Brunsden v. Humphrey, 14 Q. B. D. 141; Thomas v. Quartermaine, 18 do. 685; Finlay v. Chirney, 20 do. 494; Merivale v. Carson, 20 do. 275; Henty v. Capital & Counties Bank, 7 Q. B. D. 174; Mackonochie v. Penzance, 4 do. 697; Abrath v. North Eastern Ry., 11 do. 440; Sewell v. Burdick, 13 do. 159; Rankin v. Potter, 6 E. & I. App. 83; Hollins v. Fowler, 7 do. 762; The Parlement Belge, 5 P. D. 197; Bridges v. No. London Ry., 7 E. & I. App. 213; Bank of England v. Vagliano, 61 L. T. 420; Medawar v. Grand Hotel Co., 64 do. 851; R. v. Barnado, 64 do. 73; Castillian v. Preston, 49 do. 29; Ballard v. Tomlinson, 52 do. 952; The Pondita, 51 do. 849; Macdougall v. Knight, 55 do. 274; The Moorcock, 60 do. 654; Searles v. Scarlett, 66 do. 837; Campania de Mocambique v. British So. Africa Co., 66 do. 773; South Hettor Coal Co. v. News Asso., 63 do. 293; Meux v. Great Eastern Ry., 64 do. 657; Wakelin v. London & South Western Ry., 65 do. 224; Seten v. Lafone, 57 do. 547; Walter v. Everard, 65 do. 443; Salmon v. Warner, 65 do. 132; Cleaver v. Mutual Life Asso., 66 do. 220; Royal Aquarium v. Parkinson, 66 do. 513; Turton v. Turton, 61 do. 571.
[1 ]R. v. Keyn, 2 Ex. D. 63; The Bernina, 12 P. D. 58; Angus v. Clifford, 6 App. Cas. 779; Scaramanga v. Stamp, 4 C. P. D. 316; Hollins v. Merney, 13 Q. B. D. 305; Tod Heatley v. Benham, 40 Ch. D. 97; Dashwood v. Magniac, (1891) 3 Ch. 306; Allcard v. Skinner, 36 Ch. D., 145; Maxim-Nordenfelt case, (1893) 1 Ch. 631; Carlill v. Carbolic Smoke Ball Co., (1893) 1 Q. B. 265; Dalton v. Angus, 6 App. Cas. 740; Smith v. Chadwick, 20 Ch. D. 67; Stuart v. Bell, 64 L. T. 633; Reddaway v. Hemp Spinning Co., 67 do. 301; Whitwood Chemical Co. v. Hardman, 64 do. 716; Re Piercy, 78 do. 277; Re Perry Almshouses, 79 do. 366; Lyons v. Wilkins, 79 do. 709; Pemberton v. Hughes, 80 do. 592; Low v. Bonvière, 65 do. 533; McClatchie v. Hasham, 65 do. 691; Ballard v. Tomlinson, 52 do. 942; White v. White, 62 L. J., Ch. 342; Lemmon v. Webb, 63 do. 570; Hudson v. Ashby, 65 do. 515; Powell v. Birne Vinegar Co., 65 do. 563; Macduff v. Macduff, 65 do. 700; Hardacker v. District Council, 65 L. J., Q. B. 363; Speight v. Gaunt, 22 Ch. D. 727.
[1 ]Cochrane v. Moore, 25 Q. B. D. 57; Davies v. Davies, 36 Ch. D. 359; Northern Counties Fire Ins. v. Whipp, 26 do. 482; Miles v. New Zealand Co. 32 do. 266; Nitro-Phosphate Co. v. London Docks Co., 9 do. 503; Fritz v. Hobson, 14 do. 42; Smith v. Chadwick, 20 Ch. D. 67; Dalton v. Angus, 6 App. Cas. 740; Roussilon v. Roussilon, 14 Ch. D. 358; Salmon v. Warner, 65 L. T. 132; Walter v. Everard, 65 do. 445; Wallis v. Smith, 47 do. 389; Campania de Mocambique v. British So. Africa Co., 66 do. 773; R. v. Jackson, 64 do. 679.
[1 ]23 Ch. D. 654.
[2 ]18 Q. B. D. 694.
[3 ](1893) 1 Q. B. 265.
[4 ]37 Ch. D. 479.
[5 ](1893) 1 Q. B. 474.
[1 ]For Lord Bowen’s substantial contributions to English law the following cases may be cited:
[1 ]Solomon v. Solomon, (1897) A. C. 22; Ooregum Gold Mining Co. v. Roper, (1892) A. C. 125; Nordenfelt v. Maxim-Nordenfelt Co. (1894) A. C. 535; Tailby v. Official Receiver, 13 App. Cas. 523; Trevor v. Wentworth, 12 App. Cas. 409; Drummond v. Van Ingen, 12 App. Cas. 284.
[1 ]Aylesford v. Morris, 8 Ch. App. 484; Noble v. Willock, 8 Ch. App. 778.
[1 ]Some of Selborne’s more important opinions are: Maddison v. Alderson, 8 App. Cas. 467 (statute of frauds); Debenham v. Mellon, 6 App. Cas. 24 (wife’s necessaries); Dalton v. Angus, 6 App. Cas. 740 (easements; Sewell v. Burdick, 10 App. Cas. 74 (bill of lading); Pearks v. Moseley, 5 App. Cas. 714 (bequest); Lyell v. Kennedy, 14 App. Cas. 448 (real property); Sturla v. Freccia, 5 App. Cas. 623 (evidence); Speight v. Gaunt, 9 App. Cas. 1 (trust); Bank of England v. Vagliano, (1891) A. C. 107; Duncan v. Wales Bank, 6 App. Cas. 8 (bill of exchange); Harvey v. Farnie, 8 App. Cas. 43 (Scotch divorce); Mackonochie v. Penzance, 6 App. Cas. 424 (ecclesiastical law); Whyte v. Pollock, 7 App. Cas. 400 (will); Mayor of London v. London Bank, 6 App. Cas. 393 (attachment); Mersey Steel Co. v. Naylor, 9 App. Cas. 434 (contracts); London, etc., Ry. v. Truman, 11 App. Cas. 45; Drummond v. Van Ingen, 12 App. Cas. 284; Ewing v. Orr-Ewing, 10 App. Cas. 499; Minors v. Battison, 1 App. Cas. 428; Sarf v. Jardine, 7 App. Cas. 345; Singer Mfg. Co. v. Loog, 8 App. Cas. 15; Kendal v. Hamilton, 4 App. Cas. 504; Brogden v. Met. Ry., 2 App. Cas. 666; Capital and Counties Bank v. Henty, 7 App. Cas. 741; Erlanger v. Phosphate Co., 3 App. Cas. 1218; Dublin Ry. Co. v. Slattery, 3 App. Cas. 1155; Lyon v. Fishmonger’s Co., 1 App. Cas. 662; Clyde Navigation Co. v. Barclay, 1 App. Cas. 790; Bradlaugh v. Clarke, 8 App. Cas. 345; Foakes v. Beer, 9 App. Cas. 605; Earl of Aylesford v. Morris, 8 Ch. App. 484; Ex. parte Watkins, 8 Ch. 520; Cooper v. McDonald, 16 Eq. 258; Ayerst v. Jenkins, 16 Eq. 275; Freke v. Lord Carbery, 16 Eq. 461; Noble v. Willock, 8 Ch. App. 778; Cooper v. Macdonald, 16 Eq. 258.
[1 ]Lord Watson’s ablest efforts are: English Appeals: Allen v. Flood, (1898) A. C. 1; Smith v. Baker, (1891) A. C. 325; Scholfield v. Londesborough, (1896) A. C. 514; Johnson v. Lindsay, (1891) A. C. 371; Nordenfelt v. Maxim-Nordenfelt, (1894) A. C. 514; Mogul Steamship Co. v. McGregor, (1892) A. C. 52; The Bernina, 13 App. Cas. 1; Solomon v. Solomon, (1897) A. C. 22; Trevor v. Whitworth, 12 App. Cas. 409; Bank of England, v. Vagliano, (1891) A. C. 107; Ooregum Gold Mining Co. v. Roper, (1892) A. C. 25; Tailby v. Official Receiver, 13 App. Cas. 523; Wakelin v. London and S. W. Ry. Co., 12 App. Cas. 41; London Joint Stock Bank v. Simmons, (1892) A. C. 201; Bradford Corporation v. Pickles, (1895) A. C. 595; Lyell v. Kennedy, 9 App. Cas. 89; Enraght v. Lord Penzance, 7 App. Cas. 240.
[1 ]The following are Lord Herschell’s ablest opinions: Allen v. Flood, (1898) A. C. 1; Nordenfelt v. Maxim-Nordenfelt, (1894) A. C. 535; British South Africa Co. v. Mozambique, (1893) A. C. 602; Bank of England v. Vagliano, (1891) A. C. 107; Solomon v. Solomon, (1897) A. C. 22; Russell v. Russell, (1897) A. C. 395; Smith v. Baker, (1891) A. C. 325; Derry v. Peek, 14 App. Cas. 359; The Bernina, 13 App. Cas. 1; Reddaway v. Banham, (1896) A. C. 207; London Joint Stock Bank v. Simmons, (1892) A. C. 201; Trego v. Hunt, (1896) A. C. 7; Concha v. Concha, 11 App. Cas. 541; White v. Mellin, (1895) A. C. 155; Ooregum Gold Mining Co. v. Roper, (1892) A. C. 125; Trevor v. Whitworth, 12 App. Cas. 409; Alexander v. Jenkins, (1892) 1 Q. B. 797; Mackenzie v. Mackenzie, (1895) A. C. 388; Wild v. Waywood, (1892) 1 Q. B. 783; Tabley v. Official Receiver, 13 App. Cas. 523; Hawthorn v. Fraser, (1892) 2 Ch. 27; Commissioners of Income Tax v. Pemsel, (1891) A. C. 531; London County Council v. Erith, (1893) A. C. 562; Ward v. Dunscomb, (1893) A. C. 369; Barnado v. McHugh, (1891) A. C. 388; Woodward v. Goulston, 11 App. Cas. 469; Makin v. Atty Gen., (1894) A. C. 57.
[1 ]Some of the best specimens of his powers are: Allen v. Flood, (1898) A. C. 1; Monson v. Madam Tassaud, 63 L. J., Q. B. 454; R. v. Jackson, 64 L. T. 679; Derry v. Peek, 14 App. Cas. 337; Membery v. Great Western Ry., 14 App. Cas. 179; Great Western Ry. v. Bunch, 13 App. Cas. 31; London, etc., Ry. v. Truman, 11 App. Cas. 45; Adam v. Newbigging, 13 App. Cas. 308; Macdougall v. Knight, 60 L. T. 762; Cox v. Halles, 63 L. T. 679; Bank of England v. Vagliano, (1891) A. C. 107; London Joint Stock Bank v. Simmons, (1892) A. C. 201; Mogul Steamship Co. v. McGregor, (1892) A. C. 25; Smith v. Baker, (1891) A. C. 325; Russell v. Russell, (1897) A. C. 395.
[1 ]Re Skinner, 3 P. C. 451; Prince v. Gagnon, 8 App. Cas. 102; Re Dillet, 12 App. Cas. 459; Levien v. Reg., 1 P. C. 536.
[1 ]A letter to a correspondent in Tennessee, printed in the Green Bag (Boston: Boston Book Co.), 1897, volume IX, pp. 206-211, with the following note: “This letter was recently found in the old Capitol at Jackson, Miss. There is no record showing how it got there. The Thomas Washington to whom it was addressed was a lawyer of some note who lived at Nashville, Tenn.”
[2 ]1763-1847. Judge of the Supreme Court of New York, 1798; chief justice of the same Court, 1804-1814; chancellor of New York, 1814-1823. Further biographical and bibliographical data appear in the letter.
[1 ]For the work of Edward Livingstone in American law, see Essay No. 15, ante (Dillon: Bentham’s Influence in the Reforms, etc.).—Eds.
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[2 ]Probably January, 1806, 1st Case in 1 John. Ludlow v. Bowne.
[3 ]For a note indicating an error of memory in Chancellor Kent’s allusion to the tenor of this decision, see Professor Schofield’s article in 1 Illinois Law Rev. p. 257.—Eds.
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[1 ]“So” omitted.
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