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V.: The Period of Reform: From William III. to Victoria 24 - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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This essay was solicited by John Wigmore for inclusion in Select Essays in Anglo-American Legal History, a three-volume collection of essays, the first volume of which appeared in 1907.1 Zane’s effort would lead Wigmore to describe him to others as “the most learned man in America on the traditions of bench and bar and many other things pertaining to the history of the law.”2
The Period of Reform: From William III. to Victoria24
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.25 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. Bernard26 the mediaeval 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 cases27 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.28 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.29 Lord Cottenham, afterwards, speaking from the bench30 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.31 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.32 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:33 “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.
bibliography of the works of john maxcy zane
selected bibliography on legal history
Ancient Near Eastern Law, Biblical Law, and Post-Biblical Jewish Law
Classical Greek and Roman Law
Early Medieval and Germanic Law of the Fifth Through Eleventh Centuries
Canon and Civil Law of the Twelfth Through Fifteenth Centuries
Continental Law Since 1500
renaissance and humanist jurisprudence
English Law Since 1066
constitutional and legal history
treatises and textbooks
constitutional and legal history
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[1. ]The case for this collection was argued by John Wigmore at the 1905 meeting of the Association of American Law Schools. The essays were collected and edited by a committee of scholars designated for this task by the Association. Such eminent names as Frederic Maitland, Frederick Pollock, Joseph Beale, and William Holdsworth grace its pages. The history of the decision by the AALS to produce this collection and the efforts that were expended in assembling it are reviewed in the Harvard Law Review’s book review of Select Essays. See Harvard Law Review 21 (1908): 640–41.
[2. ]Letter of John H. Wigmore to Robert P. Goldman, December 9, 1920, Wigmore Papers, Northwestern University School of Law.
[24. ]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. Welsby’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 Serjeants, 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.
[25. ]No attempt will be made here to do anything more than indicate the attitude of great lawyers toward reforms in the law.
[26. ]Ld. Raym, 909.
[27. ]Ward vs. Evans, 2 Salk. 442; Thorald vs. Smith, 11 Mod. 71, 87; Nickson vs. Brohan, 10 Mod. 109.
[28. ]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.
[29. ]Hugenin vs. Baselee, 14 Ves. 273.
[30. ]Dent vs. Russell, 4 Myl. & Cr. 277.
[31. ]This act of larceny is usually described as an outburst of patriotism.
[32. ]The two additional Divisions of the original Act, Common Pleas and Exchequer, were shortly afterwards abolished.
[33. ]7 App. Cas. 237.