When we speak of a body of law, we use a metaphor so apt that it is hardly a metaphor. We picture to ourselves a being that lives and grows, that preserves its identity while every atom of which it is composed is subject to a ceaseless process of change, decay, and renewal. At any given moment of time—for example, in the present year—it may, indeed, seem to us that our legislators have, and freely exercise, an almost boundless power of doing what they will with the laws under which we live; and yet we know that, do what they may, their work will become an organic part of an already existing system.
Already, if we look back at the ages which are the most famous in the history of English legislation—the age of Bentham and the radical reform, the age which appropriated the gains that had been won but not secured under the rule of Cromwell, the age of Henry VIII, the age of Edward I (“our English Justinian”)—it must seem to us that, for all their activity, they changed, and could change, but little in the great body of law which they had inherited from their predecessors. Hardly a rule remains unaltered, and yet the body of law that now lives among us is the same body that Blackstone described in the eighteenth century, Coke in the seventeenth, Littleton in the fifteenth, Bracton in the thirteenth, Glanvill in the twelfth. This continuity, this identity, is very real to us if we know that for the last seven hundred years all the judgments of the courts at Westminster have been recorded, and that for the most part they can still be read. Were the world large enough to contain such a book, we might publish not merely a biography, but a journal or diary, of English law, telling what it has done, if not day by day, at least term by term, ever since the reign of Richard I; and eventful though its life may have been, it has had but a single life.
Beyond these seven centuries there lie six other centuries that are but partially and fitfully lit, and in one of them a great catastrophe, the Norman Conquest, befell England and the law of England. However, we never quite lose the thread of the story. Along one path or another we can trace back the footprints, which have their starting-place in some settlement of wild Germans who are invading the soil of Roman provinces, and coming in contact with the civilisation of the old world. Here the trail stops, the dim twilight becomes darkness; we pass from an age in which men seldom write their laws to one in which they cannot write at all. Beyond lies the realm of guesswork.
About the year 600, Ethelbert, king of the Kentishmen, by the counsel of his wise-men, caused the laws of his people to be set down in writing. He had just received the Christian faith at the hands of Roman missionaries, and it was in imitation of the Romans that he and his folk desired to have written laws. His reign overlaps the reign of Justinian, and perhaps he had heard how in the Far East the Roman Emperor had been legislating on a magnificent scale. English law begins to speak just when Roman law has spoken what will, in a certain sense, be its final words. On the continent of Europe the same thing had been happening. No sooner did the barbarian tribe feel the influence of Rome than it wished for a written code of laws. Ethelbert and his Jutes in Kent are doing what the Salian Franks did a century earlier when they wrote down their famous Lex Salica; but while on the Continent the laws of the conquering Germans are written in the Latin language of the conquered, in England the barbarians from the first write down their law in the language that they speak, the language which is to become English.
Ethelbert's laws have come down to us, though only in a copy made after the Norman Conquest. They may seem to us primitive enough. The emperor at Byzantium, could he have seen them, would assuredly have denied that they had any points in common with the Roman law-books, save that they were laws, and were in writing. Nevertheless, we cannot call them primitive in any absolute sense of that term. They are Christian. Let us look at the first sentence, the first recorded utterance of English law:—“God's fee [property] and the church's, twelve-fold; bishop's fee, eleven-fold; priest's fee, nine-fold; deacon's fee, sixfold; clerk's fee, three-fold.” Churches, bishops, priests, deacons, clerks—these are no archaic German institutions; they are Latin, they have Latin names which must be taken up bodily into the Teutonic speech of the new converts. Unfortunately (so we may now think), Germanic law has no written memorials of the days of its heathenry. Every trace but the very faintest of the old religion has been carefully expurgated from all that is written, for all that is written passes under ecclesiastical hands. Thus we may guess that a new force is already beginning to transfigure the whole sum and substance of barbaric law, before that law speaks the first words that we can hear. It is a wild plant that has already been torn from its native soil and set to grow in a garden. The change of faith, and the substitution of one order of religious rites for another, would in any case mean much, for we have reason to believe that the old law had in it a strong sacral element; but as it is, they mean the influence of the old civilised world upon the new barbarian world.
Ethelbert's laws consist of ninety brief sentences. Two will serve as samples:—“If one man strike another with the fist on the nose—three shillings.” “If the eye be struck out let boot [i.e. amends] be made with fifty shillings.” To call this brief tariff a code may seem strange, but there are not wanting signs that the wise-men of Kent are committing to writing as much of their traditional law as they can remember in the form of abstract propositions. No doubt much more law—in particular, a law of procedure—is known to them implicitly. If a concrete case were to occur, they would be ready with a doom; but when asked for general rules, these ninety are all that they can call to mind. Thus we may say that our legal history starts with an act of codification. This code became the basis of Kentish law. Subsequent kings in the course of the seventh century, Lothair, Edric, Wihtred, with the counsel of the wise, add some fifty new dooms to the written law of the men of Kent.
Then the scene changes to Wessex. In the middle of the seventh century the West Saxons received Christianity; before its end they had written laws, the laws of Ine. By the advice of his bishops and of the oldest and wisest men, Ine published a set of laws which tell us a good deal more than we can learn from the Kentish series.
The next legislator whose work has come down to us is the great Alfred. His laws are divided from those of his ancestor Ine by a period of two centuries or thereabouts. This is the one great gap in our continuous legal history. In the history of religion and learning and letters these centuries are far from being the darkest. They cover the time when Northumbria was for a while a centre of light—not for England only, but for the world at large. It may be that we have lost some things. It is fairly certain that Offa of Mercia, in the days of Mercia's greatness, issued written laws. When Alfred is king, when all England is becoming united under the vigorous princes of the West Saxon house, the three legislators whose names are still remembered are Ethelbert of Kent, Ine of Wessex, and Offa of Mercia. From the manner in which Alfred speaks of them and of their laws we may gather that, heavy though our losses may have been, we have lost no document that testified to any revolutionary change in the law. Though nearly three hundred years have gone by since Ethelbert's death, his dooms are still in force among the Kentish people. Alfred tells us that he dared to add but little of his own to the work of his three great forerunners; and though we can see that during the last two centuries some new legal ideas have emerged, still the core of the law is what it was. What can be put in writing is for the more part a tariff of the sums that must be paid when deeds of violence are done.
The Alfred of sober truth is not the Alfred of legal legend—for the history of law has its legends—the inventive architect of a British Constitution; but his laws are the first member of a grand series—the capitularies, we might call them, of the English kings of the West Saxon house. Edward the Elder, Ethelstan, Edmund, and Edgar, with the counsel of their wise-men, legislate in a bold, masterful fashion. For the better maintenance of the peace, they sharpen the old rules and they make new rules. Written law accumulates somewhat rapidly; it is expected by this time that the doomsmen will be able to find in the “doombook,” the book of written law, judgments apt for most of the cases which come before them. This series extends from the beginning to the end of the tenth century. The laws of Ethelred continue it into the eleventh century. His laws were many, for he had to say the same thing over and over again; we can see on their face that they were ineffectual. He begs and prays men to keep the peace and desist from crime; he must beg and pray, for he cannot command and punish. The Danes were ravaging and conquering; the State tottered; the house of Cerdic fell. It was left for the mighty Canute to bring to a noble close the first great period in the history of English law, the period during which laws were written in the English language, the period which it is convenient to call Anglo-Saxon. Canute's code we must, if we have regard to the age in which it was issued, call a long and a comprehensive code. It repeats, with improvements, things that have been said before; the great Dane was able to enforce as laws rules which in the mouth of his predecessor had been little better than pious wishes; but it also contained many things that had not been said before. The whole economic and political structure of society was undergoing a great change. If by any two words we could indicate the nature of this elaborate process, we might say that tribalism was giving place to feudalism. Had Canute's successors been his equals in vigour and wisdom, perhaps the change might have been consummated peacefully, and by means of written laws which we now might be reading. As it was, there came to the throne the holy but imbecile Edward. In after days he won not only the halo of the saint, to which he may have been entitled, but the fame, to which he certainly was not entitled, of having been a great legislator. In the minster that he reared, king after king made oath to observe the laws of the Confessor. So far as we know, he never made a law. Had he made laws, had he even made good use of those that were already made, there might have been no Norman Conquest of England. But then had there been no Norman Conquest of England, Edward would never have gained his fictitious glories. As it was, men looked back to him as the last of the English kings of the English—for of Harold, who had become the perjured usurper, there could be no talk—and galled by the yoke of their French masters, they sighed for St Edward's law, meaning thereby the law that had prevailed in a yet unvanquished England.
Now these enacted and written laws of our fore-fathers, representing as they do some four centuries and a half, representing as long a period as that which divides us from the Wars of the Roses, will seem a small thing to the first glance of a modern eye. They might all be handsomely printed on a hundred pages such as that which is now before the reader. A session of Parliament which produced no larger mass of matter we should nowadays regard as a sterile session. In the Georgian age many more words than are contained in the whole code of Canute would have been devoted to the modest purpose of paving and lighting the borough of Little Peddlington. It is but fair to our ancient kings and their wise-men to say that when they spoke, they spoke briefly and pointedly. They had no fear that ingenious lawyers would turn their words inside out. “God's fee and the Church's, twelve-fold”—they feel that they need say no more than this about one very important matter. Also, we have to remember that life was simple; men could do, men could wish to do, but few things. Our increasing mastery over the physical world is always amplifying the province of law, for it is always complicating the relationships which exist between human beings. Many a modern Act of Parliament is the product of the steam-engine, and there is no great need for a law of copyright until long after the printing-press has begun its work. For all this, however, it is true that these old written and enacted dooms contain but a part of the law which was enforced in England.
If we say that law serves three great purposes, that it punishes crime, redresses wrong, and decides disputes—and perhaps we need not go into the matter more deeply than this—then we may go on to say that in ancient days the two first of these three purposes are indistinguishably blended, while with the third the legislator seldom troubles himself. If he can maintain the peace, suppress violence and theft, keep vengeance within moderate bounds, he is well satisfied; he will not be at pains to enact a law of contract or of inheritance, a law of husband and wife, a law of landlord and tenant. All this can safely be left to unwritten tradition. He has no care to satisfy the curiosity of a remote posterity which will come prying into these affairs and wish to write books about them. Thus, to take one example, the courts must have been ready to decide disputes about the property of dead men; there must have been a general law, or various tribal or local laws, of inheritance. But the lawgivers tell us nothing about this. If we would recover the old rules, we must make the best that we may of stray hints and chance stories, and of those archaisms which we find embedded in the law of later days.
The laws of the folk, the “folk-right”—“law” is one of those words which the Danes bring with them—is known to the men of the folk, but more especially to the old and wise. The freemen, or the free landowners, of the hundred are in duty bound to frequent the “moot,” or court, of the hundred, to declare the law and to make the dooms. The presiding alderman or sheriff turns to them when a statement of the law is wanted. As yet there is no class of professional lawyers, but the work of attending the courts is discharged chiefly by men of substance, men of thegnly rank; the small folk are glad to stay at home.
Also, some men acquire a great reputation for legal learning, and there was much to be learnt, though no one thought of setting it in writing. We should assuredly make a great mistake were we to picture to ourselves these old hundred-courts as courts of equity, where “the natural man” administered an informal “law of Nature.” For one thing, as will be said elsewhere, the law of the natural man is supernatural law, a law which deals in miracles and portents. But then, again, it is exceedingly formal. It is a law of procedure. The right words must be said without slip or trip, the due ceremonial acts must be punctiliously performed, or the whole transaction will go for naught. This is the main theme of the wise-man's jurisprudence. One suspects that sometimes the man who, in the estimate of his neighbours, has become very wise indeed, has it in his power to amplify tradition by devices of his own. We hear from Iceland a wonderful tale of a man so uniquely wise that though he had made himself liable to an action of a particular kind, no one could bring that action against him, for he and only he knew the appropriate words of summons: to trick him into a disclosure of this precious formula is a feat worthy of a hero. But formalism has its admirable as well as its ludicrous side. So long as law is unwritten, it must be dramatised and acted. Justice must assume a picturesque garb, or she will not be seen. And even of chicane we may say a good word, for it is the homage which lawlessness pays to law.
We have called the written laws “tariffs.” They prescribe in great detail the various sums of money which must be paid by wrong-doers. There are payments to be made to the injured person or the kinsfolk of the slain man; there are also payments to be made to the king, or to some other representative of the tribe or nation. The growth of this system of pecuniary mulcts gradually restricts the sphere of selfhelp and vengeance. The tie of blood-relationship has been the straitest of all bonds of union. If a man of one family was slain by the man of another, there would be a blood-feud, a private war. The State steps in and compels the injured family to accept the dead man's “wergild”—the dead man's price or worth, if it be duly tendered. King Edmund goes so far as to insist that the vengeance of the dead man's kinsfolk is not to comprise the guiltless members of the slayer's clan. The law's last weapon against lawlessness is outlawry. The contumacious offender is put outside the peace; he becomes the foe of all law-abiding men. It is their duty to waste his land and burn his house, to pursue him and knock him on the head as though he were a beast of prey, for “he bears the wolf's head.” As the State grows stronger, less clumsy modes of punishment become possible; the criminal can be brought to trial, and definitely sentenced to death or mutilation. We can watch a system of true punishments—corporeal and capital punishments—growing at the expense of the old system of pecuniary mulcts, blood-feud, and outlawry; but on the eve of the Norman Conquest mere homicide can still be atoned for by the payment of the dead man's price or “wergild,” and if that be not paid, it is rather for the injured family than for the State to slay the slayer. Men of different ranks had different prices: the thegn was worth six ceorls, and it seems very plain that if a ceorl killed a thegn, he had to die for it, or was sold into slavery, for a thegnly wergild was quite beyond the reach of his modest means. In the twelfth century the old system perished of over-elaboration. The bill that a man-slayer ran up became in the days of feudalism too complex to be summed, too heavy to be paid; for the dead man's lord, the lord of the place where the blood was shed, and it may be many other lords, would claim fines and forfeitures. He had to pay with his eyes or with his life a debt that he could not otherwise discharge.
As yet our Germanic law had not been exposed to the assaults of Roman jurisprudence, but still it had been slowly assuming and assimilating the civilisation of the old world. This distinction we must draw. On the one hand, there has been no borrowing from the Roman legal texts. We have no proof whatever that during the five centuries which preceded the Norman Conquest any one copy of a Roman law-book existed in England. We hear faint and vague tidings of law being taught in some of the schools, but may safely believe that very little is meant thereby. The written dooms of our kings have been searched over and over again by men skilled in detecting the least shred of Roman law under the most barbaric disguise, and they have found nothing worthy of mention. That these dooms are the purest specimens of pure Germanic law has been the verdict of one scholar after another. Even the English Church, though its independence may often have been exaggerated, became very English. On the other hand, as already said, to become Christian was in a certain sense to become Roman. Whether, had an impassable wall been raised round England in the last quarter of the sixth century, England would not be a barbarous country at this day—that is a question which cannot be answered. As a matter of fact, we had not to work out our own civilisation; we could adopt results already attained in the ancient world. For example, we did not invent the art of writing, we adopted it; we did not invent our alphabet, we took the Roman. And so again—to come nearer to our law—we borrowed or inherited from the Old World the written legal document, the written conveyance, the will. The written conveyance was introduced along with Christianity; to all seeming, Ethelbert himself began the practice of “booking” lands to the churches. We have a few genuine “land-books” from the seventh and eighth, many from the later centuries. For the more part they are written in Latin, and they were fashioned after Italian models; but at the same time we can see that those models have been barbarised and misunderstood; the English scribes pervert the neat devices of Roman lawyers. Any phrase which draws a contrast between a nation's law and its civilisation is of course open to objection. But let us suppose that at the present day a party of English missionaries is setting forth to convert a savage tribe: perhaps no one of them would know enough of English law to carry him through the easiest examination, and yet they would take with them many ideas that are in a certain sort the ideas of English law. Without being able to define murder, they would know that in this country murderers are condemned to death; they would think that a written expression of a man's last will should be respected, though they might well doubt whether a will is revoked by the testator's marriage. So it was in the seventh century. From the days of Ethelbert onwards English law was under the influence of so much of Roman law as had worked itself into the tradition of the Catholic Church.
The Normans when they invaded England were in one important particular a less civilised race than were those English whom they came to subjugate. We may say with some certainty that they had no written laws. A century and a half ago a king of the Franks had been compelled to cede a large province to a horde of Scandinavian pirates. The pirates had settled down as lords of a conquered people; they had gradually adopted the religion, the language, and the civilisation (such as it was) of the vanquished; they had become Frenchmen. They may have paid some reverence to the written laws of the Frankish race, to the very ancient Lex Salica and the capitularies of Merovingian and Carlovingian kings. But these were fast becoming obsolete, and neither the dukes of the Normans nor their nominal overlords, the kings of the Franks or French, could issue written dooms such as those which Canute was publishing in England. Some excellent traditions of a far-off past, of the rule of Charles the Great, the invaders could bring with them to England; and these transplanted into the soil of a subject kingdom, could burst into new life and bear new fruit—the great record that we call “Domesday Book” is a splendid firstfruit—but written laws they had none.
To all seeming, the Conqueror meant that his English subjects should keep their own old laws. Merely duke of the Normans, he was going to be king in England, and he was not dissatisfied with those royal rights which, according to his version of the story, had descended to him from King Edward. About a few points he legislated. For example, the lives of his followers were to be protected by the famous murder-fine. If a Frenchman was found slain, and the slayer was not produced, a heavy sum was to be exacted from the district in which the crime was done. The establishment of a presumption that every murdered man is a Frenchman until the contrary is proved—a presumption highly advantageous to the king's exchequer—gave rise in later days to the curious process known as “the presentment of Englishry.” The hundred had to pay the fine unless the kinsfolk of the dead man would testify to his English birth. But this by the way. William had also to regulate the scope of that trial by battle which the Normans brought with them, and in so doing he tried to deal equitably with both Normans and English. Also it was necessary that he who had come hither as in some sort the champion of Roman orthodoxy should mark off the sphere of spiritual from that of temporal law by stricter lines than had yet been drawn in England. Much, again—though by no general law—he altered in the old military system, which had lately shown itself to be miserably ineffectual. Dealing out the forfeited lands amongst his barons, he could stipulate for a force of armoured and mounted knights. Some other changes he would make; but in the main he was content that the English should live under their old law, the law that now bore the blessed Edward's name.
And so again when on the death of Rufus—from Rufus himself we get and we expect no laws—Henry seized the crown, and was compelled to purchase adherents by granting a charter full of all manner of promises, made to all manner of people—the promise by which he hoped to win the hearts of Englishmen was that he would restore them to Edward's law with those amendments that the Conqueror had made in it. Henry himself, great as a governor, was no great legislator. A powerful central tribunal, which is also an exacting financial bureau, an “exchequer,” began to take definite shape under the management of his expert ministers; but very few new laws were published. The most characteristic legal exploits of the Norman period are the attempts made by various private persons to reconstruct “the law of St Edward.” They translate some of the old English dooms into Latin as best they can—a difficult task, for the English language is rapidly taking a new shape. They modify the old dooms to suit a new age. They borrow from foreign sources—from the canon law of the Catholic Church, from Frankish capitularies, now and again from the Roman law-books. But in Henry I's reign they still regarded the Old English dooms, the law of King Edward, as the core of the law that prevails in England. They leave us wondering how much practical truth there is in what they say; whether the ancient criminal tariffs that they transcribe are really observed; whether the Frenchmen who preside in court pay much attention to the words of Canute, even when those words have been turned into Latin or into French. Still, their efforts assure us that there has been rather a dislocation than a complete break in the legal history of England; also that the Frenchmen have not introduced much new law of a sufficiently definite kind to be set down in writing.
As yet the great bulk of all the justice that was done, was done by local courts, by those shire-moots and hundred-moots which the Conqueror and Henry I had maintained as part of the ancient order, and by the newer seignorial courts which were springing up in every village. The king's own court was but a court for the protection of royal rights, a court for the causes of the king's barons, and an ultimate tribunal at which a persistent litigant might perhaps arrive when justice had failed him everywhere else. Had it continued to be no more than this, the old English law, slowly adapting itself to changed circumstances, might have cast off its archaisms and become the law for after-times, law to be written and spoken in English words. Far more probably “St Edward's law” would have split into a myriad local customs, and then at some future time Englishmen must have found relief from intolerable confusion in the eternal law of Rome. Neither of these two things happened, because under Henry II the king's own court flung open its doors to all manner of people, ceased to be for judicial purposes an occasional assembly of warlike barons, became a bench of professional justices, appeared periodically in all the counties of England under the guise of the Justices in Eyre. Then begins the process which makes the custom of the king's court the common law of England. Ever since the Conquest the king's court had been in a very true sense a French court. It had been a French-speaking court, a court whose members had been of French race, and had but slowly been learning to think of themselves as Englishmen. Its hands had been very free. It could not, if it would, have administered the Old English written laws in their native purity: for one thing they were unintelligible; for another thing in the twelfth century they had become barbarous—they dealt with crime in a hopelessly old-fashioned way. On the other part, there was, happily, no written Norman code, and the king did not mean to be in England the mere duke he had been in Normandy. And so the hands of his court were very free; it could be a law unto itself. Many old English institutions it preserved, in particular those institutions of public law which were advantageous to the king—the king, for instance, could insist that the sheriffs were sheriffs, and not hereditary vicomtes—but the private law, law of land tenure, law of possession, of contract, of procedure, which the court develops in the course of the twelfth century, is exceedingly like a coutume from Northern France. Hundreds of years will elapse before anyone tries to write about it in English; and when at length this is done, the English will be an English in which every important noun, every accurate term, is of French origin.
We may say a little more about the language of our law, for it is not an uninteresting topic. From the Conquest onwards until the year 1731 the solemnest language of our law was neither French nor English, but Latin. Even in the Anglo-Saxon time, though English was the language in which laws were published and causes were pleaded, Latin was the language in which the kings, with Italian models before them, made grants of land to the churches and the thegns. In 1066 the learned men of both races could write and speak to each other in Latin. We shall be pretty safe in saying that anyone who could read and write at all could read and write Latin. As to French, it was as yet little better than a vulgar dialect of Latin, a language in which men might speak, but not a language in which they would write anything except perhaps a few songs. The two tongues which the Conqueror used for laws, charters and writs were Latin and English. But Latin soon gets the upper hand, and becomes for a while the one written language of the law. In the king's Chancery they write nothing but Latin, and it is in Latin that the judgments of the king's courts are recorded. This, as already said, is so until the year 1731; to substitute English for Latin as the language in which the king's writs and patents and charters shall be expressed, and the doings of the law-courts shall be preserved, requires a statute of George II's day.
Meanwhile there had been many and great changes. Late in the twelfth or early in the thirteenth century French was beginning to make itself a language in which not only songs and stories but legal documents could be written. About the middle of the thirteenth century ordinances and statutes that are written in French began to appear. Just for one moment England puts in a claim to equality. Henry III “pur3 Godes fultume king on Engleneloande” issued one proclamation in English. But this claim was either belated or premature. Under Edward I French, though it cannot expel Latin from the records of litigation, becomes the language in which laws are published and law-books are written. It continues to be the language of the statute-book until the end of the Middle Ages. Under Henry VII English at length becomes the speech in which English lawgivers address their subjects, though some two hundred and fifty years must yet pass away before it will win that field in which Latin is securely entrenched.
As the oral speech of litigants and their advisers, French has won a splendid victory. In the king's own court it must prevail from the Conquest onwards, but in the local courts a great deal of English must long have been spoken. Then, however, under Henry II began that centralising movement which we have already noticed. The jurisprudence of a French-speaking court became the common law, the measure of all rights and duties, and it was carried throughout the land by the journeying justices. In the thirteenth century men when they plead or when they talk about law, speak French; the professional lawyer writes in French and thinks in French. Some power of speaking a decent French seems to have been common among all classes of men, save the very poorest; men spoke it who had few, if any, drops of foreign blood in their veins. Then in 1362, when the prolonged wars between England and France had begun, a patriotic statute endeavoured to make English instead of French the spoken tongue of the law-courts. But this came too late; we have good reason for thinking that it was but tardily obeyed, and at any rate, lawyers went on writing about law in French. Gradually in the sixteenth century their French went to the bad, and they began to write in English; for a long time past they had been thinking and speaking in English. But it was an English in which almost all the technical terms were of French origin. And so it is at the present day. How shall one write a single sentence about law without using some such word as “debt,” “contract,” “heir,” “trespass,” “pay,” “money,” “court,” “judge,” “jury”? But all these words have come to us from the French. In all the world-wide lands where English law prevails, homage is done daily to William of Normandy and Henry of Anjou.
What Henry did in the middle of the twelfth century was of the utmost importance, though we might find ourselves in the midst of obsolete technicalities were we to endeavour to describe it at length. Speaking briefly, we may say that he concentrated the whole system of English justice round a court of judges professionally expert in the law. He could thus win money—in the Middle Ages no one did justice for nothing—and he could thus win power; he could control, and he could starve, the courts of the feudatories. In offering the nation his royal justice, he offered a strong and sound commodity. Very soon we find very small people—yeomen, peasants—giving the go-by to the old local courts and making their way to Westminster Hall, to plead there about their petty affairs. We may allow that in course of time this concentrating process went much too far. In Edward I's day the competence of the local courts in civil causes was hemmed within a limit of forty shillings, a limit which at first was fairly wide, but became ever narrower as the value of money fell, until in the last century no one could exact any debt that was not of trifling amount without bringing a costly action in one of the courts at Westminster. But the first stages of the process did unmixed good—they gave us a common law.
King Henry and his able ministers came just in time—a little later would have been too late: English law would have been unified, but it would have been Romanised. We have been wont to boast, perhaps too loudly, of the pure “Englishry” of our common law. This has not been all pure gain. Had we “received” the Roman jurisprudence as our neighbours received it, we should have kept out of many a bad mess through which we have plunged. But to say nothing of the political side of the matter, of the absolute monarchy which Roman law has been apt to bring in its train, it is probably well for us and for the world at large that we have stumbled forwards in our empirical fashion, blundering into wisdom. The moral glow known to the virtuous schoolboy who has not used the “crib” that was ready to his hand, we may allow ourselves to feel; and we may hope for the blessing which awaits all those who have honestly taught themselves anything.
In a few words we must try to tell a long story. On the continent of Europe Roman law had never perished. After the barbarian invasions it was still the “personal law” of the conquered provincials. The Franks, Lombards, and other victorious tribes lived under their old Germanic customs, while the vanquished lived under the Roman law. In course of time the personal law of the bulk of the inhabitants became the territorial law of the country where they lived. The Roman law became once more the general law of Italy and of Southern France; but in so doing it lost its purity, it became a debased and vulgarised Roman law, to be found rather in traditional custom than in the classical texts, of which very little was known. Then, at the beginning of the twelfth century, came a great change. A law-school at Bologna began to study and to teach that Digest in which Justinian had preserved the wisdom of the great jurists of the golden age. A new science spread outwards from Bologna. At least wherever the power of the emperor extended, Roman law had—so men thought—a claim to rule. The emperors, though now of German race, were still the Roman emperors, and the laws of their ancestors were to be found in Justinian's books. But further, the newly discovered system—for we may without much untruth say that it was newly discovered—seemed so reasonable that it could not but affect the development of law in countries such as France and England, which paid no obedience to the emperors.
And just at this time a second great system of cosmopolitan jurisprudence was taking shape. For centuries past the Catholic Church had been slowly acquiring a field of jurisdiction that was to be all her own, and for the use of the ecclesiastical tribunals a large body of law had come into being, consisting of the canons published by Church Councils and the decretal epistles—genuine and forged—of the Popes. Various collections of these were current, but in the middle of the twelfth century they were superseded by the work of Gratian, a monk of Bologna. He called it “The Concordance of Discordant Canons,” but it soon became known everywhere as the Decretum. And by this time the Popes were ever busy in pouring out decretal letters, sending them into all corners of the western world. Authoritative collections of these “decretals” were published, and the ecclesiastical lawyer (the “canonist” or “decretist”) soon had at his command a large mass of written law comparable to that which the Roman lawyer (the “civilian” or “legist”) was studying. A Corpus Juris Canonici begins to take its place beside the Corpus Juris Civilis. Very often the same man had studied both; he was a “doctor of both laws”; and, indeed, the newer system had borrowed largely from the older; it had borrowed its form, its spirit, and a good deal of its matter also.
The canonical jurisprudence of the Italian doctors became the ecclesiastical law of the western world. From all local courts, wherever they might be, there was an appeal to the ultimate tribunal at Rome. But the temporal law of every country felt the influence of the new learning. Apparently we might lay down some such rule as this—that where the attack is longest postponed, it is most severe. In the thirteenth century the Parliament of Paris began the work of harmonising and rationalising the provincial customs of Northern France, and this it did by Romanising them. In the sixteenth century, after “the revival of letters,” the Italian jurisprudence took hold of Germany, and swept large portions of the old national law before it. Wherever it finds a weak, because an uncentralised, system of justice, it wins an easy triumph. To Scotland it came late; but it came to stay.
To England it came early. Very few are the universities which can boast of a school of Roman law so old as that of Oxford. In the troubled days of our King Stephen, when the Church was urging new claims against the feeble State, Archbishop Theobald imported from Italy one Vacarius, a Lombard lawyer, who lectured here on Roman law, and wrote a big book that may still be read. Very soon after this Oxford had a flourishing school of civil and canon law. Ever since William the Conqueror had solemnly sanctioned the institution of special ecclesiastical courts, it had been plain that in those courts the law of a Catholic Church, not of a merely English Church, must prevail; also that this law would be in the main Italian law. In the next century, as all know, Henry and Becket fell out as to the definition of the province that was to be left to the ecclesiastical courts. The battle was drawn; neither combatant had gained all that he wanted. Thenceforward until the Protestant Reformation, and indeed until later than that, a border warfare between the two sets of courts was always simmering. Victory naturally inclined to those tribunals which had an immediate control of physical force, but still the sphere that was left to the canonists will seem to our eyes very ample. It comprehended not only the enforcement of ecclesiastical discipline, and the punishment—by spiritual censure, and, in the last resort, by excommunication—of sins left unpunished by temporal law, but also the whole topic of marriage and divorce, those last dying wills and testaments which were closely connected with dying confessions, and the administration of the goods of intestates. Why to this day do we couple “Probate” with “Divorce”? Because in the Middle Ages both of these matters belonged to “the courts Christian.” Why to “Probate” and “Divorce” do we add “Admiralty”? Because the civilians—and in England the same man was usually both canonist and civilian—succeeded, though at a comparatively late time, in taking to themselves the litigation that concerned things done on the high seas, those high seas whence no jury could be summoned. So for the canonist there was plenty of room in England; and there was some room for the civilian: he was very useful as a diplomatist.
But we were speaking of our English common law, the law of our ordinary temporal courts, and of the influence upon it of the new Italian but cosmopolitan jurisprudence; and we must confess that for a short while, from the middle of the twelfth to the middle of the thirteenth century, this influence was powerful. The amount of foreign law that was actually borrowed has been underrated and overrated: we could not estimate it without descending to details. Some great maxims and a few more concrete rules were appropriated, but on the whole what was taken was logic, method, spirit rather than matter. We may see the effect of this influence very plainly in a treatise on the Laws of England which comes to us from the last years of Henry II. It has been ascribed to Henry's Chief Justiciar — Viceroy, we may say — Ranulf Glanvill; and whether or no it comes from his pen (he was a layman and a warrior), it describes the practice of the court over which he presided. There are very few sentences in it which we can trace to any Roman book, and yet in a sense the whole book is Roman. We look back from it to a law-book written in Henry I's time, and we can hardly believe that only some seventy years divide the two. The one can at this moment be read and understood by anyone who knows a little of mediaeval Latin and a little of English law; the other will always be dark to the most learned scholars. The gulf between them looks like that between logic and caprice, between reason and unreason. And then from the middle of the thirteenth century we have a much greater and better book than Glanvill's. Its author we know as Bracton, though his name really was Henry of Bratton. He was an ecclesiastic, an archdeacon, but for many years he was one of the king's justices. He had read a great deal of the king's justices. He had read a great deal of the Italian jurisprudence, chiefly in the works of that famous doctor, Azo of Bologna. Thence he had obtained his idea of what a law-book should be, of how law should be arranged and stated; thence also he borrowed maxims and some concrete rules; with these he can fill up the gaps in our English system. But he lets us see that not much more can now be done in the way of Romanisation. Ever since Henry II's time the king's court has been hard at work amassing precedents, devising writs, and commenting upon them. Bracton himself has laboriously collected five hundred decisions from the mile-long Rolls of the Court and uses them as his authorities. For him English law is already “case law”; a judgment is a precedent. While as yet the science of the civilians was a somewhat unpractical science, while as yet they had not succeeded in bringing the old classical texts into close contact with the facts of mediaeval life, the king's court of professional justices—the like of which was hardly to be found in any foreign land, in any unconquered land—had been rapidly evolving a common law for England, establishing a strict and formal routine of procedure, and tying the hands of all subsequent judges. From Bracton's day onwards Roman law exercises but the slightest influence on the English common law, and such influence as it exercises is rather by way of repulsion than by way of attraction. English law at this early period had absorbed so much Romanism that it could withstand all future attacks, and pass scathless even through the critical sixteenth century.
It may be convenient, however, to pause at this point in the development of our judicial institutions, in order to trace the history of our legal procedure.
For a long time past Englishmen have been proud of their trial by jury, and proud to see the nations of Europe imitating as best they might this “palladium of English liberties,” this “bulwark of the British Constitution.” Their pride, if in other respects it be reasonable, need not be diminished by any modern discoveries of ancient facts, even though they may have to learn that in its origin trial by jury was rather French than English, rather royal than popular, rather the livery of conquest than a badge of freedom. They have made it what it is; and what it is is very different from what it was. The story is a long and a curious one.
Let us try to put before our eyes a court of the twelfth century; it may be a county court or a hundred-court, or a court held by some great baron for his tenants. It is held in the open air—perhaps upon some ancient moot-hill, which ever since the times of heathenry has been the scene of justice. An officer presides over it—the sheriff, the sheriff's bailiff, the lord's steward. But all or many of the free landowners of the district are bound to attend it; they owe “suit” to it, they are its suitors, they are its doomsmen; it is for them, and not for the president, “to find the dooms.” He controls the procedure, he issues the mandates, he pronounces the sentence; but when the question is what the judgment shall be, he bids the suitors find the doom. All this is very ancient, and look where we will in Western Europe we may find it. But as yet we have not found the germ of trial by jury. These doomsmen are not “judges of fact.” There is no room for any judges of fact. If of two litigants the one contradicts the other flatly, if the plain “You did” of the one is met by the straight-forward “You lie” of the other, here is a problem that man cannot solve. He is unable as yet to weigh testimony against testimony, to cross-examine witnesses, to piece together the truth out of little bits of evidence. He has recourse to the supernatural. He adjudges that one or other of the two parties is to prove his case by an appeal to God.
The judgment precedes the proof. The proof consists, not in a successful attempt to convince your judges of the truth of your assertion, but in the performance of a task that they have imposed upon you: if you perform it, God is on your side. The modes of proof are two, oaths and ordeals. In some cases we may see a defendant allowed to swear away a charge by his own oath. More frequently he will have to bring with him oath-helpers—in later days they are called “compurgators”—and when he has sworn successfully, each of these oath-helpers in turn will swear “By God that oath is clean and true.” The doomsmen have decreed how many oath-helpers, and of what quality, he must bring. A great deal of their traditional legal lore consists in rules about this matter; queer arithmetical rules will teach how the oath of one thegn is as weighty as the oath of six ceorls, and the like. Sometimes they require that the oath-helpers shall be kinsmen of the chief swearer, and so warn us against any rationalism which would turn these oath-helpers into “witnesses to character,” and probably tell us of the time when the bond of blood was so strong that a man's kinsfolk were answerable for his misdeeds. A very easy task this oath with oath-helpers may seem in our eyes. It is not so easy as it looks. Ceremonial rules must be strictly observed; a set form of words must be pronounced; a slip, a stammer, will spoil all, and the adversary will win his cause. Besides, it is common knowledge that those who perjure themselves are often struck dead, or reduced to the stature of dwarfs, or find that they cannot remove their hands from the relics they have profaned.
But when crime is laid to a man's charge he will not always be allowed to escape with oaths. Very likely he will be sent to the ordeal. The ordeal is conceived as “the judgment of God.” Of heathen origin it well may be, but long ago the Christian Church has made it her own, has prescribed a solemn ritual for the consecration of those instruments—the fire, the water—which will reveal the truth. The water in the pit is adjured to receive the innocent and to reject the guilty. He who sinks is safe, he who floats is lost. The red-hot iron one pound in weight must be lifted and carried three paces. The hand that held it is then sealed up in a cloth. Three days afterwards the seal is broken. Is the hand clean or is it foul? that is the dread question. A blister “as large as half a walnut” is fatal. How these tests worked in practice we do not know. We seldom get stories about them save when, as now and again will happen, the local saint interferes and performs a miracle. We cannot but guess that it was well to be good friends with the priest when one went to the ordeal.
Then the Norman conquerors brought with them another ordeal—the judicial combat. An ordeal it is, for though the Church has looked askance at it, it is no appeal to mere brute force; it is an appeal to the God of Battles. Very solemnly does each combatant swear to the truth of his cause; very solemnly does he swear that he has eaten nothing, drunk nothing “whereby the law of God may be debased or the devil's law exalted.” When a criminal charge is made—“an appeal of felony”—the accuser and the accused, if they be not maimed, nor too young, nor too old, will have to fight in person. When a claim for land is made, the plaintiff has to offer battle, not in his own person, but in the person of one of his men. This man is in theory a witness who will swear to the justice of his lord's cause. In theory he ought not to be, but in practice he often is, a hired champion who makes a profession of fighting other people's battles. If the hireling be exposed, he may have his hand struck off; but as a matter of fact there were champions in a large way of business. At least in some cases the arms that are used are very curious; they are made of wood and horn, and look (for we have pictures of them) like short pickaxes. Possibly they have been in use for this sacral purpose—a sacral purpose it is—ever since an age which knew not iron. Also we know that the champion's head is shaved, but are left to guess why this is done. The battle may last the livelong day until the stars appear. The accuser has undertaken that in the course of a day he will “prove by his body” the truth of his charge; and if he cannot do this before the twilight falls, he has failed and is a perjurer. The object of each party in the fight is not so much to kill his adversary—this perhaps he is hardly likely to do with the archaic weapon that he wields—but to make him pronounce “the loathsome word,” to make him cry “craven.” In a criminal case the accused, if vanquished, was forthwith hanged or mutilated; but in any case the craven had to pay a fine of sixty shillings, the old “king's ban” of the Frankish laws, and, having in effect confessed himself a perjurer, he was thenceforth infamous.
But long ago the Frankish kings had placed themselves outside the sphere of this ancient formal and sacral procedure. They were standing in the shoes of Roman governors, even of Roman emperors. For themselves and their own affairs they had a prerOgatival procedure. If their rights were in question, they would direct their officers to call together the best and oldest men of the neighbourhood to swear about the relevant facts. The royal officers would make an inquisition, hold an inquest, force men to swear that they would return true answers to whatever questions might be addressed to them in the king's name. They may be asked whether or no this piece of land belongs to the king; they may be asked in a general way what lands the king has in their district; they may be asked (for the king is beginning to see that he has a great interest in the suppression of violent crime) to tell tales of their neighbours, to report the names of all who are suspected of murder or robbery, and then these men can be sent to the ordeal. This privilege that the king has he can concede to others; he can grant to his favourite churches that their lands shall stand outside the scope of the clumsy and hazardous procedure of the common courts; if their title to those lands be challenged, a royal officer will call upon the neighbours to declare the truth—in other words, to give a verdict. It is here that we see the germ of the jury.
The Norman duke in his conquered kingdom was able to use the inquest with a free hand and on a grand scale. Domesday Book was compiled out of the verdicts returned by the men of the various hundreds and townships of England in answer to a string of questions put to them by royal commissioners. We have read how the stern king thought it no shame to do what the English monk thought it shame to write, how he numbered every ox, every cow, every pig in England. Thenceforward the inquest was part of the machinery of government; it could be employed for many different purposes whenever the king desired information. He could use it in his own litigation, he could place it at the service of other litigants who were fortunate enough or rich enough to obtain this favour from him. But throughout the reigns of our Norman kings it keeps its prerogatival character.
Then Henry II, bent upon making his justice supreme throughout his realm, put this royal remedy at the disposal of all his subjects. This he did not by one general law, but piecemeal, by a series of ordinances known as “assizes,” some of which we may yet read, while others have perished. For example, when there was litigation about the ownership of land, the defendant, instead of accepting the plaintiff's challenge to fight, was allowed to “put himself upon the king's grand assize.” Thereupon the action, which had been begun in some feudal court, was removed into the king's court; and twelve knights, chosen from the district in which the land lay, gave a verdict as to whether the plaintiff or the defendant had the better right. In other cases—for example, when the dispute was about the possession, not the ownership, of land—less solemn forms of the inquest were employed; twelve free and lawful men, not necessarily knights, were charged to say whether the defendant had ejected the plaintiff. Before the twelfth century was at an end, the inquest in one form or another—sometimes it was called an assize, sometimes a jury—had become part of the normal procedure in almost every kind of civil action. Still there long remained many cases in which a defendant could, if he chose, reject the new-fangled mode of trial, and claim the ancient right of purging himself with oath-helpers, or of picking up the glove that the plaintiff had thrown down as a gage of battle. Even a prelate of the Church would sometimes rely rather upon the strong arm of a professional pugilist than upon the testimony of his neighbours. Within the walls of the chartered boroughs men were conservative of all that would favour the free burgher at the cost of the despised outsider. The Londoners thought that trial by jury was good enough for those who were not citizens, but the citizen must be allowed to swear away charges of debt or trespass by the oaths of his friends. In the old communal courts, too, the county and hundred courts, where the landowners of the district sat as doomsmen, trial by jury never struck root, for only by virtue of a royal writ could a jury be summoned: this is one of the reasons why those old courts languished, decayed, and became useless. However, before the Middle Ages were over, trial by jury had become the only form of trial for civil actions that had any vitality. So late as 1824 a lucky litigant, taking advantage of his adversary's slip, presented himself at the bar of the King's Bench, prepared to swear away a debt—“to make his law” was the technical phrase—with the aid of eleven oath-helpers, and not until 1833 was this world-old procedure abolished by statute; but long before this, if the plaintiff was well advised, he could always prevent his opponent from escaping in this easy fashion.
We have spoken of “trial by jury.” That term naturally calls up before our minds a set of twelve men called into court in order that they may listen to the testimony of witnesses, give a true verdict “according to the evidence,” and, in short, act as judges of those questions of fact that are in dispute. But it is very long after Henry II's day before trial by jury takes this form. Originally the jurors are called in, not in order that they may hear, but in order that they may give, evidence. They are witnesses. They are neighbours of the parties; they are presumed to know before they come into court the facts about which they are to testify. They are chosen by the sheriff to represent the neighbourhood—indeed, they are spoken of as being “the neighbourhood,” “the country”—and the neighbourhood, the country, will know the facts. In the twelfth century population was sparse, and men really knew far more of the doings of their neighbours than we know nowadays. It was expected that all legal transactions would take place in public; the conveyance of land was made in open court, the wife was endowed at the church-door, the man who bought cattle in secret ran a great but just risk of being treated as a thief; every three weeks a court was held in the village, and all the affairs of every villager were discussed. The verdict, then, was the sworn testimony of the countryside; and if the twelve jurors perjured themselves, the verdict of another jury of twenty-four might send them to prison and render them infamous for ever. In course of time, and by slow degrees—degrees so slow that we can hardly detect them—the jury put off its old and acquired a new character. Sometimes, when the jurors knew nothing of the facts, witnesses who did know the facts would be called in to supply the requisite information. As human affairs grew more complex, the neighbours whom the sheriff summoned became less and less able to perform their original duty, more and more dependent upon the evidence given in their presence by those witnesses who were summoned by the parties. In the fifteenth century the change had taken place, though in yet later days a man who had been summoned as a juror, and who sought to escape on the ground that he already knew something of the facts in question, would be told that he had given a very good reason for his being placed in the jury-box. We may well say, therefore, that trial by jury, though it has its roots in the Frankish inquest, grew up on English soil; and until recent times it was distinctive of England and Scotland, for on the continent of Europe all other forms of legal procedure had been gradually supplanted by that which canonists and civilians had constructed out of ancient Roman elements.
We have yet to speak of the employment of the inquest in criminal cases. The Frankish kings had employed it for the purpose of detecting crime. Do you suspect any of murder, robbery, larceny, or the like? This question was addressed by royal officers to selected representatives of every neighbourhood, and answered upon oath, and the suspected persons were sent to “the judgment of God.” The Church borrowed this procedure; the bishop could detect ecclesiastical offences as the king detected crimes. It is not impossible that this particular form of the inquest had made its way into England some halfcentury before the Norman Conquest; but we hear very little about it until the days of Henry II. He ordained that it should be used upon a very large scale and as a matter of ordinary practice, both by the justices whom he sent to visit the counties and by the sheriffs. From his time onward a statement made upon oath by a set of jurors representing a hundred, to the effect that such an one is suspected of such a crime, is sufficient to put a man upon his trial. It is known as an indictment. It takes its place beside the old accusation, or “appeal,” urged by the person who has been wronged, by the man whose goods have been stolen or the nearest kinsman of the murdered man. It is but an accusation, however, and in Henry's days the indicted person takes his chance at the hot iron or the cold water; God may be for him, though man be against him. But already some suspicion is shown of the so-called judgment of God; for though he comes clean from the ordeal, he has to leave the country, swearing never to return. At last, in 1215, the Fourth Lateran Council forbade the clergy to take part in this superstitious rite. After this we hear no more in England of the ordeal as a legal process, though in much later days the popular belief that witches will swim died hard, and many an old woman was put in the pond. The judges of the thirteenth century had no substitute ready to take the place of that supernatural test of which an enlightened Pope had deprived them. Of course, if the indicted person will agree to accept the verdict of his neighbours, will “put himself upon his country”—that is, upon the neighbourhood—for good and ill, all is easy. Those who have indicted him as a suspicious character can now be asked whether he is guilty or no; and if they say that he is guilty, there will be no harm in hanging him, for he consented to the trial, and he must abide the consequences. To make the trial yet fairer, one may call in a second jury different from that which indicted him. Here is the origin of those two juries which we see employed in our own days—the grand jury that indicts, and the petty jury that tries. But suppose that he will not give his consent; it is by no means obvious that the testimony of his neighbours ought to be treated as conclusive. Hitherto he has been able to invoke the judgment of God, and can we now deprive him of this ancient, this natural right? No, no one can be tried by jury who does not consent to be so tried. But what we can do is this—we can compel him to give his consent, we can starve him into giving his consent, and, again, we can quicken the slow action of starvation by laying him out naked on the floor of the dungeon and heaping weights upon his chest until he says that he will abide by the verdict of his fellows. And so we are brought to the pedantic cruelty of the “peine forte et dure.” Even in the seventeenth century there were men who would endure the agony of being pressed to death rather than utter the few words which would have subjected them to a trial by jury. They had a reason for their fortitude. Had they been hanged as felons their property would have been confiscated, their children would have been penniless; while, as it was, they left the world obstinate, indeed, but unconvicted. All this—and until 1772 men might still be pressed to death—takes us back to a time when the ordeal seems the fair and natural mode of ascertaining guilt and innocence, when the jury is still a new-fangled institution.
The indictment, we have said, took its place beside the “appeal”—the old private accusation. The owner of the stolen goods, the kinsman of the murdered man, might still prosecute his suit in the old manner, and offer to prove his assertion by his body. The Church had not abolished, and could not abolish, the judicial combat, for though in truth it was an ordeal, no priestly benediction of the instruments that were to be used was necessary. By slow degrees in the thirteenth century the accused acquired the right of refusing his accuser's challenge and of putting himself upon a jury. What is more, the judges began to favour the “indictment” and to discourage the “appeal” by all possible means. They required of the accuser a punctilious observance of ancient formalities, and would quash his accusation if he were guilty of the smallest blunder. Still, throughout the Middle Ages we occasionally hear of battles being fought over criminal cases. In particular a convicted felon would sometimes turn “approver”—that is to say, he would obtain a pardon conditional on his ridding the world, by means of his appeals, of some three or four other felons. If he failed in his endeavour, he was forthwith hanged. But those who were not antiquarians must have long ago ceased to believe that such a barbarism as trial by battle was possible, when in 1818 a case arose which showed them that they had inadequately gauged the dense conservatism of the laws of their country. One Mary Ashford was found drowned; one Abraham Thornton was indicted for murdering her; a jury acquitted him. But the verdict did not satisfy the public mind, and the brother of the dead girl had recourse to an “appeal”: to this accusation the previous acquittal was no answer. Thornton declared himself ready to defend his innocence by his body, and threw down, in Westminster Hall, as his gage of battle, an antique gauntlet, “without either fingers or thumb, made of white tanned skin, ornamented with sewn tracery and silk fringes, crossed by a narrow band of red leather, with leathern tags and thongs for fastening.” The judges did their best to discover some slip in his procedure; but he had been careful and well advised; even his glove was of the true mediaeval pattern. So there was nothing for it but to declare that he was within his rights, and could not be compelled to submit to a jury if he preferred to fight. His adversary had no mind to fight, and so let the glove alone. After this crowning scandal Parliament at last bestirred itself, and in the year of grace 1819 completed the work of Pope Innocent III by abolishing the last of the ordeals.
If we regard it as an engine for the discovery of truth and for the punishment of malefactors, the mediaeval jury was a clumsy thing. Too often its verdicts must have represented guess-work and the tittle-tattle of the countryside. Sometimes a man must have gone to the gallows, not because anyone had seen him commit a crime, not because guilt had been brought home to him by a carefully tested chain of proved facts, but because it was notorious that he was just the man from whom a murder or a robbery might be expected. Only by slow degrees did the judges insist that the jurors ought to listen to evidence given by witnesses in open court, and rely only upon the evidence that was there given. Even when this step had been taken, it was long before our modern law of evidence took shape, long before the judges laid down such rules as that “hearsay is not evidence,” and that testimony which might show that the prisoner had committed other crimes was not relevant to the question whether he had perpetrated the particular offence of which he stood indicted.
But whatever may have been the case in the days of the ordeal—and about this we know very little—we may be fairly certain that in the later Middle Ages the escape of the guilty was far commoner than the punishment of the guiltless. After some hesitation our law had adopted its well-known rule that a jury can give no verdict unless the twelve men are all of one mind. To obtain a condemnatory unanimity was not easy if the accused was a man of good family; one out of every twelve of his neighbours that might be taken at random would stand out loyally for his innocence. Bribery could do much; seignorial influence could do more; the sheriff, who was not incorruptible, and had his own likes and dislikes, could do all, since it was for him to find the jury. It is easy for us to denounce as unconstitutional the practice which prevailed under Tudors and Stuarts of making jurors answer for their verdicts before the King's Council; it is not so easy for us to make certain that the jury system would have lived through the sixteenth century had it not been for the action of this somewhat irregular check. For the rest, we may notice that the jury of the Middle Ages, if it is to be called a democratic institution, can be called so only in a mediaeval sense. The jurors were freeholders. The great mass of Englishmen were not freeholders. The peasant who was charged with a crime was acquitted or convicted by the word of his neighbours, but by the word of neighbours who considered themselves very much his superiors.
If, however, we look back to those old days, we shall find ourselves deploring not so much that some men of whose guilt we are by no means satisfied are sent to the gallows, as that many men whose guilt is but too obvious escape scot-free. We take up a roll upon which the presentments of the jurors are recorded. Everywhere the same tale meets our eye. “Malefactors came by night to the house of such an one at such a place; they slew him and his wife and his sons and his daughters, and robbed his house; we do not know who they were; we suspect no one.” Such organisation as there was for the pursuit of these marauders was utterly inefficient. Every good and lawful man is bound to follow the hue and cry when it is raised, and the village reeve, or in later days the village constable, ought to put himself at the head of this improvised and unprofessional police force. But it was improvised and unprofessional. Outside the walls of the boroughs there was no regular plan of watch and ward, no one whose business it was to keep an eye on men of suspicious habits, or to weave the stray threads of evidence into a halter. The neighbours who had followed the trail of the stolen cattle to the county boundary were apt to turn back, every man to his plough. “Let Gloucestershire folk mind Gloucestershire rogues.” They would be fined, when the justices came round, for neglect of their duties—for the sheriff, or the coroner, or someone else, would tell tales of them—but meanwhile their hay was about, and the weather was rainy. Even when the jurors know the criminal's name, the chances seem to be quite ten to one that he has not been captured. Nothing could then be done but outlaw him. At four successive county courts—the county court was held month by month—a proclamation calling upon him to present himself, “to come in to the king's peace,” would be made, and at the fifth court he would be declared an outlaw. If after this he were caught, then, unless he could obtain some favour from the king, he would be condemned to death without any investigation being made of his guilt or innocence; the mere fact of his outlawry being proved, sentence followed as a matter of course. But the old law had been severer than this: to slay the outlaw wherever he may be found was not only the right but the duty of every true man, and even in the middle of the thirteenth century this was still the customary law of the Welsh marches. The outlaw of real life was not the picturesque figure that we have seen upon the stage; if he and his men were really “merry” in the greenwood, they were merry in creditable circumstances. Still, it is not to be denied that he attracted at times a good deal of romantic sympathy, even in the ages which really knew him. This probably had its origin in the brutal stringency of the forest laws, which must be charged with the stupid blunder of punishing small offences with a rigour which should have been reserved for the worst crimes.
The worst crimes were common enough. Every now and then the king and the nation would be alarmed, nor needlessly alarmed, by the prevalence of murder and highway robbery. A new ordinance would be issued, new instructions would be given to the judges, sheriffs would be active, and jurors would be eager to convict; a good deal of hanging would be done, perhaps too indiscriminately. But so soon as the panic was over, Justice would settle down into her old sluggish habits. Throughout the Middle Ages life was very insecure; there was a great deal of nocturnal marauding, and the knife that every Englishman wore was apt to stab upon slight provocation.
The Church had not mended matters by sanctifying places and persons. In very old days when the blood-feud raged, when punishment and vengeance were very much one, it was a good thing that there should be holy places to which a man might flee when the avenger of blood was behind—places where no drop of blood might be spilt without sacrilege. They afforded an opportunity for the peacemaker. The bishop or priest would not yield up the fugitive who lay panting at the foot of the altar until terms had been made between him and his pursuers. But at a later time when the State was endeavouring to punish criminals, and there would be no punishment until after trial, the sanctuary was a public nuisance. The law was this:—If a criminal entered a church he was safe from pursuit; the neighbours who were pursuing him were bound to beset the church, prevent his escape, and send for the coroner. Sometimes they would remain encamped round the church for many days. At last the coroner would come, and parley with the fugitive. If he confessed his crime, then he might “abjure the realm”—that is, swear to leave England within a certain number of days (he was allowed days enough to enable him to reach the nearest seaport), and never to return. If he strayed from the straight road which led to the haven, or if he came back to the realm, then he could at once be sentenced to death. For a man to take sanctuary, confess his crime and abjure the realm, was an everyday event, and we must have thus shipped off many a malefactor to plunder our neighbours in France and Flanders. If the man who had taken sanctuary would neither confess to a crime, not submit to a trial, the State could do no more against him. It tried to teach the clergy that their duty was to starve him into submission; but the clergy resented this interference with holy things. A bad element of caprice was introduced into the administration of justice. The strong, the swift, the premeditating murderer cheated the gallows. Especially in the towns he might fairly complain of bad luck if he could not slip into one of the numerous churches before he was caught. On the other hand, the man who had not plotted his crime would get hanged.
And then the clergy stood outside the criminal law. If a clerk in holy orders committed a crime—this was the law of the thirteenth century—he could not be tried for it in a lay court. He could be accused there, and the judges might ask a jury whether he was guilty or no; but even though they found him guilty, this was no trial. At the request of his bishop—and the bishops made such requests as a matter of course—he was handed over for trial in an ecclesiastical court. Such a court had power to inflict very heavy punishments. It might draw no drop of blood, but it could imprison for life, besides being able to degrade the clerk from his orders. As a matter of fact, however, we hear very little of any punishment save that of degradation. What is more, the criminal procedure of the ecclesiastical courts in England was of an absurdly old-fashioned and clumsy kind. They held by compurgation. If the accused clerk could but get some eleven or twelve friends of his own profession to swear that they believed him innocent, he was acquitted; he might resume his criminal career. Church and State are both to blame for this sad story. The Church would yield no jot of the claims that were sanctified by the blood of St Thomas; the lay courts would not suffer the bishops to do criminal justice in a really serious fashion. There can be no doubt that many of the worst criminals—men who had been found guilty by a jury of brutal murders and rapes—escaped scot-free, because they had about them some slight savour of professional holiness. It should be understood that this immunity was shared with the bishops, priests, and deacons by a vast multitude of men who were in “minor orders.” They might have no ecclesiastical duties to perform; they might be married; they might be living the same life which laymen lived; but they stood outside the ordinary criminal law. One of the worst evils of the later Middle Ages was this “benefit of clergy.” The king's justices, who never loved it, at length reduced it to an illogical absurdity. They would not be at pains to require any real proof of a prisoner's sacred character. If he could read a line in a book, this would do; indeed, it is even said that the same verse of the Psalms was set before the eyes of every prisoner, so that even the illiterate might escape if he could repeat by heart those saving words. Criminal law had been rough and rude, and sometimes cruel; it had used the gallows too readily; it had punished with death thefts which, owing to a great fall in the value of money, were becoming petty thefts. Still, cruelty in such matters is better than caprice, and the “benefit of clergy” had made the law capricious without making it less cruel.
During the period which divides the coronation of Henry II (1154) from the coronation of Edward I (1272) definite legislation was still an uncommon thing. Great as were the changes due to Henry's watchful and restless activity, they were changes that were effected without the pomp of solemn law-making. A few written or even spoken words communicated to his justices, those justices whom he was constantly sending to perambulate the country, might do great things, might institute new methods of procedure, might bring new classes of men and of things within the cognisance of the royal court. Some of his ordinances—or “assizes,” as they were called—have come down to us; others we have lost. No one was at any great pains to preserve their text, because they were regarded, not as new laws, but as mere temporary instructions which might be easily altered. They soon sink into the mass of unenacted “common law.” Even in the next, the thirteenth, century some of Henry's rules were regarded as traditional rules which had come down from a remote time, and which might be ascribed to the Conqueror, the Confessor, or any other king around whom a mist of fable had gathered.
Thus it came about that the lawyers of Edward I's day—and that was the day in which a professional class of temporal lawyers first became prominent in England—thought of Magna Carta as the oldest statute of the realm, the first chapter in the written law of the land, the earliest of those texts the very words of which are law. And what they did their successors do at the present day. The Great Charter stands in the forefront of our statute book, though of late years a great deal of it has been repealed. And certainly it is worthy of its place. It is worthy of its place just because it is no philosophical or oratorical declaration of the rights of man, nor even of the rights of Englishmen, but an intensely practical document, the fit prologue for those intensely practical statutes which English Parliaments will publish in age after age. What is more, it is a grand compromise, and a fit prologue for all those thousands of compromises in which the practical wisdom of the English race will always be expressing itself. Its very form is a compromise—in part that of a free grant of liberties made by the king, in part that of a treaty between him and his subjects, which is to be enforced against him if he breaks it. And then in its detailed clauses it must do something for all those sorts and conditions of men who have united to resist John's tyranny—for the bishop, the clerk, the baron, the knight, the burgess, the merchant—and there must be some give and take between these classes, for not all their interests are harmonious. But even in the Great Charter there is not much new law; indeed, its own theory of itself (if we may use such a phrase) is that the old law, which a lawless king has set at naught, is to be restored, defined, covenanted, and written.
The Magna Carta of our statute book is not exactly the charter that John sealed at Runnymede; it is a charter granted by his son and successor, Henry III, the text of the original document having been modified on more than one occasion. Only two other acts of Henry's long reign attained the rank of statute law. The Provisions of Merton, enacted by a great assembly of prelates and nobles, introduced several novelties, and contain those famous words, “We will not have the laws of England changed,” which were the reply of the barons to a request made by the bishops, who were desirous that our insular rule, “Once a bastard always a bastard,” might yield to the law of the universal Church, and that marriage might have a retroactive effect. Among Englishmen there was no wish to change the laws of England. If only the king and his foreign favourites would observe those laws, then—such was the common opinion—all would be well. A change came; vague discontent crystallised in the form of definite grievances. After the Barons’ War the king, though he had triumphed over his foes, and was enjoying his own again, was compelled to redress many of those grievances by the Provisions of Marlborough, or, as they have been commonly called, the Statute of Marlbridge. When, a few years afterwards, Henry died, the written, the enacted law of England consisted in the main of but four documents, which we can easily read through in half an hour—there was the Great Charter, there was the sister-charter which defined the forest law, there were the Statutes of Merton and of Marlbridge. To these we might add a few minor ordinances; but the old Anglo-Saxon dooms were by this time utterly forgotten, the law-books of the Norman age were already unintelligible, and even the assizes of Henry II, though but a century old, had become part and parcel of “the common law,” not to be distinguished from the unenacted rules which had gathered round them Englishmen might protest that they would not change the law of England, but as a matter of fact the law of England was being changed very rapidly by the incessant decisions of the powerful central court.
On the death of Henry III there followed some eighteen years which even at this day may seem to us the most brilliant eighteen years in the whole history of English legislation. At all events, if we are to find a comparable period we must look forward, for five hundred years and more, to the age of the first Reform Bill. Year by year King Edward I in his Parliaments made laws on a grand scale. His statutes will not be in our eyes very lengthy documents; but they are drastic, and they are permanent. They deal with all sorts of matters, public and private, but in particular with those elementary parts of the law of property and the law of civil procedure which English legislators have, as a general rule, been well content to leave alone. Just for this reason they are exceedingly permanent; they become fundamental; elaborate edifices of gloss and comment are reared upon them. To this day, despite all the reforms of the present century, we have to look to them, and the interpretation which has been set upon them, for some of the most elementary principles of our land law. When all has been said that can be said for the explanation of this unique outburst of legislation, it still remains a marvellous thing.
A professional class of English temporal lawyers was just beginning to form itself. We say “of English temporal lawyers,” because for more than a century past there had been “legists” and “decretists” in the land. These legists and decretists constituted a professional class; they held themselves out as willing to plead the causes of those who would pay their fees. They did a large business, for the clergy of the time were extremely litigious. The bishop who was not perennially engaged in interminable disputes with two or three wealthy religious houses was either a very fortunate or a very careless guardian of the rights of his see. And all the roads of ecclesiastical litigation led to Rome. Appeals to the Pope were made at every stage of every cause, and the most famous Italian lawyers were retained as advocates. The King of England, who was often involved in contests about the election of bishops—contests which would sooner or later come before the Roman Curia—kept Italian canonists in his pay. Young Englishmen were sent to Bologna in order that they might learn the law of the Church. The University of Oxford was granting degrees in civil and canon law, the University of Cambridge followed her example. There was no lack of ecclesiastical lawyers; indeed, the wisest and most spiritual of the clergy thought that there were but too many of them, and deplored that theology was neglected in favour of a more lucrative science. And what we might call an ecclesiastical “Bar” had been formed. The canonist who wished to practice in a bishop's court had to satisfy the bishop of his competence, and to take an oath obliging him to practise honestly. The tribunals of the Church knew both the “advocate” (who pleads on behalf of a client), and the “procurator” or “proctor” (who represents his client's person and attends to his cause).
In course of time two groups similar to these grew up round the king's court. We see the “attorney” (who answers to the ecclesiastical proctor) and the “pleader,” “narrator,” or “countor” (who answers to the ecclesiastical advocate). But the formation of these classes of professional lawyers has not been easy. Ancient law does not readily admit that one man can represent another; in particular, it does not readily admit that one man can represent another in litigation. So long as procedure is extremely formal, so long as all depends on the due utterance of sacramental words, it does not seem fair that you should put an expert in your place to say those words for you. My adversary has, as it were, a legal interest in my ignorance or stupidity. If I cannot bring my charge against him in due form, that charge ought to fail; at all events, he cannot justly be called upon to answer another person, some subtle and circumspect pleader, whom I have hired. Thus the right to appoint an attorney who will represent my person in court, and win or lose my cause for me, appears late in the day. It spreads outwards from the king. From of old the king must be represented by others in his numerous suits. This right of his he can confer upon his subjects—at first as an exceptional favour, and afterwards by a general rule. In Henry III's reign this process has gone thus far:—A litigant in the king's court may appoint an attorney to represent him in the particular action in which he is for the time being engaged: he requires no special licence for this; but if a man wishes to appoint prospectively a general attorney, who will represent him in all actions, the right to do this he must buy from the king, and he will not get it except for some good cause. The attorneys of this age are by no means always professional men of business. Probably every free and lawful man may act as the attorney of another; indeed, shocking as this may seem to us, we may, not very unfrequently, find a wife appearing in court as her husband's attorney.
The other “branch of the profession” grows from a different stock. In very old days a litigant is allowed to bring his friends into court, and to take “counsel” with them before he speaks. Early in the twelfth century it is already the peculiar mark of a capital accusation that the accused must answer without “counsel.” Then sometimes one of my friends will be allowed, not merely to prompt me, but even to speak for me. It is already seen that the old requirement of extreme verbal accuracy is working injustice. A man ought to have some opportunity of amending a mere slip of the tongue; and yet old legal principles will not suffer that he should amend the slips of his own tongue. Let another tongue slip for him. Such is the odd compromise between ancient law and modern equity. One great advantage that I gain by putting forward “one of my counsel” to speak for me is that if he blunders—if, for example, he speaks of Roger when he should have spoken of Richard—I shall be able to correct the mistake, for his words will not bind me until I have adopted them. Naturally, however, I choose for this purpose my acutest and most experienced friends. Naturally, also, acute and experienced men are to be found who will gladly be for this purpose my friends or anybody else's friends, if they be paid for their friendliness. As a class of expert pleaders forms itself, the relation between the litigant and those who are “of counsel for him” will be very much changed, but it will not lose all traces of its friendly character. Theoretically one cannot hire another person to plead for one; in other words, counsel cannot sue for his fees.
Seemingly it was in the reign of Henry III that pleaders seeking for employment began to cluster round the king's court. Some of them the king, the busiest of all litigants, kept in his pay; they were his “serjeants”—that is, servants—at law. Under Edward I a process, the details of which are still very obscure, was initiated by the king, which brought these professional pleaders and the professional attorneys under the control of the judges, and began to secure a monopoly of practice to those who had been formally ordained to the ministry of the law. About the same time it is that we begin to read of men climbing from the Bar to the Bench, and about the same time it is that the judges are ceasing to be ecclesiastics. If we look back to Richard I's reign we may see, as the highest temporal court of the realm, a court chiefly composed of ecclesiastics, presided over by an archbishop, who is also Chief Justiciar; he will have at his side two or three bishops, two or three archdeacons, and but two or three laymen. The greatest judges even of Henry III's reign are ecclesiastics, though by this time it has become scandalous for a bishop to do much secular justice. These judges have deserved their appointments, not by pleading for litigants, but by serving as clerks in the Court, the Exchequer, the Chancery. They are professionally learned in the law of the land, but they have acquired their skill rather as the civil servants of the Crown than as the advocates or advisers of private persons; and if they serve the king well on the Bench, they may hope to retire upon bishoprics, or at all events deaneries. But the Church has been trying to withdraw the clergy from this work in the civil courts. Very curious had been the shifts to which ecclesiastics had been put in order to keep themselves technically free of blood-guiltiness. The accused criminal knew what was going to happen when the ecclesiastical president of the court rose but left his lay associates behind him. Hands that dared not write “and the jurors say that he is guilty, and therefore let him be hanged,” would go so far as “and therefore, etc.” Lips that dared not say any worse would venture a sufficiently intelligible “Take him away, and let him have a priest.” However, the Church has her way. The clerks of the court, the Exchequer, the Chancery, will for a very long time be clerks in holy orders; but before the end of Edward I's reign the appointment of an ecclesiastic to be one of the king's justices will be becoming rare. On the whole, we may say that from that time to the present, one remarkable characteristic of our legal system is fixed—all the most important work of the law is done by a very small number of royal justices who have been selected from the body of pleaders practising in the king's courts.
Slowly the “curia” of the Norman reigns had been giving birth to various distinct offices and tribunals. In Edward's day there was a “King's Bench” (a court for criminal causes and other “pleas of the Crown”); a “Common Bench” (a court for actions brought by one subject against another); an Exchequer, which both in a judicial and an administrative way collected the king's revenue and enforced his fiscal rights; a Chancery, which was a universal secretarial bureau, doing all the writing that was done in the king's name. These various departments had many adventures to live through before the day would come when they would once more be absorbed into a High Court of Justice. Of some few of those adventures we shall speak in another place, but must here say two or three words about a matter which gave a distinctive shape to the whole body of our law—a shape that it is even now but slowly losing. Our common law during the later Middle Ages and far on into modern times is in the main a commentary on writs issued out of the king's Chancery. To understand this, we must go back to the twelfth century, to a time when it would have seemed by no means natural that ordinary litigation between ordinary men should come into the king's court. It does not come there without an order from the king. Your adversary could not summon you to meet him in that court; the summons must come from the king. Thus much of the old procedure we still retain in our own time; it will be the king, not your creditor, who will bid you appear in his High Court. But whereas at the present day the formal part of the writ will merely bid you appear in court, and all the information that you will get about the nature of the claim against you will be conveyed to you in the plaintiffs own words or those of his legal advisers, this was not so until very lately. In old times the writ that was drawn up in the king's Chancery and sealed with his great seal told the defendant a good many particulars about the plaintiff's demand. Gradually, as the king began to open the doors of his court to litigants of all kinds, blank forms of the various writs that could be issued were accumulated in the Chancery. We may think of the king as keeping a shop in which writs were sold. Some of them were to be had at fixed prices, or, as we should say nowadays, they could be had as matters of course on the payment of fixed court-fees; for others special bargains had to be made. Then, in course of time, as our Parliamentary constitution took shape, the invention of new writs became rarer and rarer. Men began to see that if the king in his Chancery could devise new remedies by granting new writs, he had in effect a power of creating new rights and making new laws without the concurrence of the estates of the realm. And so it came to be a settled doctrine that though the old formulas might be modified in immaterial particulars to suit new cases as they arose, no new formula could be introduced except by statute. This change had already taken place in Edward I's day. Thenceforward the cycle of writs must be regarded as a closed cycle; no one can bring his cause before the king's courts unless he can bring it within the scope of one of those formulas which the Chancery has in stock and ready for sale. We may argue that if there is no writ there is no remedy and if there is no remedy there is no wrong; and thus the register of writs in the Chancery becomes the test of rights and the measure of law. Then round each writ a great mass of learning collects itself. He who knows what cases can be brought within each formula knows the law of England. The body of law has a skeleton, and that skeleton is the system of writs. Thus our jurisprudence took an exceedingly rigid and permanent shape; it became a commentary on formulas. It could still grow and assimilate new matter, but it could only do this by a process of interpretation which gradually found new, and not very natural, meanings for old phrases. As we shall see hereafter, this process of interpretation was too slow to keep up with the course of social and economic change, and the Chancery had to come to the relief of the courts of law by making itself a court of equity.
The desire for continuous legislation is modern. We have come to think that, year by year, Parliament must meet and pour out statutes; that every statesman must have in his mind some programme of new laws; that if his programme once become exhausted he would cease to be a statesman. It was otherwise in the Middle Ages. As a matter of fact a Parliament might always find that some new statute was necessary. The need for legislation, however, was occasioned (so men thought) not by any fated progress of the human race, but by the perversity of mankind. Ideally there exists a perfect body of law, immutable, eternal, the work of God, not of man. Just a few more improvements in our legal procedure will have made it for ever harmonious with this ideal; and, indeed, if men would but obey the law of the land as it stands, there would be little for a legislator to do.
During the fourteenth century a good deal is written upon the statute roll, and a good deal can still be said in very few words. “Also it is agreed that a Parliament shall be holden once a year or more often if need be.” This is a characteristic specimen of the brief sentences in which great principles are formulated and which by their ambiguity will provide the lawyers and politicians of later ages with plenty of matter for debate. Many of these short clauses are directed against what are regarded as abuses, as evasions of the law, and the king's officers are looked upon as the principal offenders. They must be repeated with but little variation from time to time, for it is difficult to bind the king by law. Happily the kings were needy; in return for “supply” they sold the words on the statute roll, and those words, of some importance when first conceded, became of far greater importance in after times. When we read them nowadays they turn our thoughts to James and Charles, rather than to Edward and Richard. The New Monarchy was not new. This, from its own point of view, was its great misfortune. It had inherited ancient parchment rolls which had uncomfortable words upon them.
But Parliament by its statutes was beginning to interfere with many affairs, small as well as great. Indeed, what we may consider small affairs seem to have troubled and interested it more even than those large constitutional questions which it was always hoping to settle but never settling. If we see a long statute, one guarded with careful provisos, one that tells us of debate and compromise, this will probably be a statute which deals with one particular trade; for instance, a statute concerning the sale of herring at Yarmouth fair. The thorniest of themes for discussion is the treatment of foreign merchants. Naturally enough our lords, knights, and burgesses cannot easily agree about it. One opinion prevails in the seaports, another in the upland towns, and the tortuous course of legislation, swaying now towards Free Trade and now towards Protection, is the resultant of many forces. The “omnicompetence,” as Bentham called it, of statute law was recognised by all, the impotence of statute law was seen by none. It can determine the rate of wages, the price of goods, the value of money; it can decide that no man shall dress himself above his station.
On the other hand, the great outlines of criminal law and private law seem to have been regarded as fixed for all time. In the twentieth century students of law will still for practical purposes be compelled to know a good deal about some of the statutes of Edward I. They will seldom have occasion to know anything of any laws that were enacted during the fourteenth or the first three-quarters of the fifteenth century. Parliament seems to have abandoned the idea of controlling the development of the common law. Occasionally and spasmodically it would interfere, devise some new remedy, fill a gap in the register of writs, or circumvent the circumventors of a statute. But in general it left the ordinary law of the land to the judges and the lawyers. In its eyes the common law was complete, or very nearly complete.
And then as we read the statute-roll of the fifteenth century we seem for a while to be watching the decline and fall of a mighty institution. Parliament seems to have nothing better to do than to regulate the manufacture of cloth. Now and then it strives to cope with the growing evils of the time, the renascent feudalism, the private wars of great and small; but without looking outside our roll we can see that these efforts are half-hearted and ineffectual. We are expected to show a profound interest in “the making of worsteds,” while we gather from a few casual hints that the Wars of the Roses are flagrant. If for a moment the Parliament of Edward IV can raise its soul above defective barrels of fish and fraudulent gutter tiles, this will be in order to prohibit “cloish, kayles, half-bowl, hand-in-hand and hand-out, quekeboard,” and such other games as interfere with the practice of archery.
In the end it was better that Parliament should for a while register the acts of a despot than that it should sink into the contempt that seemed to be prepared for it. The part which the assembled Estates of the Realm have to play in the great acts of Henry VIII may in truth be a subservient and ignoble part; but the acts are great and they are all done “by the authority of Parliament.” By the authority of Parliament the Bishop of Rome could be deprived of all jurisdiction, the monasteries could be dissolved, the king could be made (so far as the law of God would permit) supreme head of the English Church, the succession to the Crown could be settled first in this way, then in that, the force of statute might be given to the king's proclamations. There was nothing that could not be done by the authority of Parliament. And apart from the constitutional and ecclesiastical changes which everyone has heard about, very many things of importance were done by statute. We owe to Henry VIII—much rather to him than to his Parliament—not a few innovations in the law of property and the law of crime, and the Parliaments of Elizabeth performed some considerable legal exploits. The statutes of the Tudor period are lengthy documents. In many a grandiose preamble we seem to hear the voice of Henry himself; but their length is not solely due to the pomp of imperial phrases. They condescend to details; they teem with exceptions and saving clauses. One cannot establish a new ecclesiastical polity by half-a-dozen lines. We see that the judges are by this time expected to attend very closely to the words that Parliament utters, to weigh and obey every letter of the written law.
Just now and then in the last of the Middle Ages and thence onwards into the eighteenth century, we hear the judges claiming some vague right of disregarding statutes which are directly at variance with the common law, or the law of God, or the royal prerogative. Had much come of this claim, our constitution must have taken a very different shape from that which we see at the present day. Little came of it. In the troublous days of Richard II a chief justice got himself hanged as a traitor for advising the king that a statute curtailing the royal power was void. For the rest, the theory is but a speculative dogma. We can (its upholders seem to say) conceive that a statute might be so irrational, so wicked, that we would not enforce it; but, as a matter of fact, we have never known such a statute made. From the Norman Conquest onwards, England seems marked out as the country in which men, so soon as they begin to philosophise, will endeavour to prove that all law is the command of a “sovereign one,” or a “sovereign many.” They may be somewhat shocked when in the seventeenth century Hobbes states this theory in trenchant terms and combines it with many unpopular doctrines. But the way for Hobbes had been prepared of old. In the days of Edward I the text-writer whom we call Britton had put the common law into the king's mouth: all legal rules might be stated as royal commands.
Still, even in the age of the Tudors, only a small part of the law was in the statute-book. Detached pieces of superstructure were there; for the foundation men had to look elsewhere. After the brilliant thirteenth century a long, dull period had set in. The custody of the common law was now committed to a small group of judges and lawyers. They knew their own business very thoroughly, and they knew their own business very thoroughly, and they knew nothing else. Law was now divorced from literature; no one attempted to write a book about it. The decisions of the courts at Westminster were diligently reported and diligently studied, but no one thought of comparing English law with anything else. Roman law was by this time an unintelligible, outlandish thing, perhaps a good enough law for half-starved Frenchmen. Legal education was no longer academic—the universities had nothing to do with it, they could only make canonists and civilians—it was scholastic. By stages that are exceedingly obscure, the inns of court and inns of chancery were growing. They were associations of lawyers which had about them a good deal of the club, something of the college, something of the trade-union. They acquired the “inns” or “hospices”—that is, the town houses—which had belonged to great noblemen: for example, the Earl of Lincoln's inn. The house and church of the Knights of the Temple came to their hands. The smaller societies, “inns of chancery,” became dependent on the larger societies, “inns of court.” The serjeants and apprentices who composed them enjoyed an exclusive right of pleading in court; some things might be done by an apprentice or barrister, others required a serjeant; in the Court of Common Pleas only a serjeant could be heard. It would take time to investigate the origin of that power of granting degrees which these societies wielded. To all seeming the historian must regard it as emanating from the king, though in this case, as in many other cases, the control of a royal prerogative slowly passed out of the king's hand. But here our point must be, that the inns developed a laborious system of legal education. Many years a student had to spend in hearing and giving lectures and in pleading fictitious causes before he could be admitted to practice.
It is no wonder that under the fostering care of these societies English jurisprudence became an occult science and its professors “the most unlearned kind of most learned men.” They were rigorous logicians, afraid of no conclusion that was implicit in their premises. The sky might fall, the Wars of the Roses might rage, but they would pursue the even course of their argumentation. They were not altogether unmindful of the social changes that were going on around them. In the fifteenth century there were great judges who performed what may seem to us some daring feats in the accommodation of old law to new times. Out of unpromising elements they developed a comprehensive law of contract; they loosened the bonds of those family settlements by which land had been tied up; they converted the precarious villein tenure of the Middle Ages into the secure copyhold tenure of modern times. But all this had to be done evasively and by means of circumventive fictions. Novel principles could not be admitted until they were disguised in some antique garb.
A new and a more literary period seems to be beginning in the latter half of the fifteenth century, when Sir John Fortescue, the Lancastrian Chief Justice, writing for the world at large, contrasts the constitutional kingship of England with the absolute monarchy of France, and Sir Thomas Littleton, a Justice in the Court of Common Pleas, writing for students of English law, publishes his lucid and classical book on the tenure of land. But the hopes of a renascence are hardly fulfilled. In the sixteenth century many famous lawyers added to their fame by publishing reports of decided cases and by making “abridgments” of the old reports, and a few little treatises were compiled; but in general the lawyer seems to think that he has done all for jurisprudence that can be done when he has collected his materials under a number of rubrics alphabetically arranged. The alphabet is the one clue to the maze. Even in the days of Elizabeth and James I Sir Edward Coke, the incarnate common law, shovels out his enormous learning in vast disorderly heaps. Carlyle's felicity has for ever stamped upon Coke the adjective “tough”—“tough old Coke upon Littleton, one of the toughest men ever made.” We may well transfer the word from the man to the law that was personified in him. The English common law was tough, one of the toughest things ever made. And well for England was it in the days of Tudors and Stuarts that this was so. A simpler, a more rational, a more elegant system would have been an apt instrument of despotic rule. At times the judges were subservient enough: the king could dismiss them from their offices at a moment's notice; but the clumsy, cumbrous system, though it might bend, would never break. It was ever awkwardly rebounding and confounding the statecraft which had tried to control it. The strongest king, the ablest minister, the rudest Lord-Protector could make little of this “ungodly jumble.”
To this we must add that professional jealousies had been aroused by the evolution of new courts, which did not proceed according to the course of the common law. Once more we must carry our thoughts back to the days of Edward I. The three courts—King's Bench, Common Bench, and Exchequer—had been established. There were two groups of “Justices,” and one group of “Barons” engaged in administering the law. But behind these courts there was a tribunal of a less determinate nature. Looking at it in the last years of the thirteenth century we may doubt as to what it is going to be. Will it be a house of magnates, an assembly of the Lords Spiritual and Temporal, or will it be a council composed of the king's ministers and judges and those others whom he pleases for one reason or another to call to the council board? As a matter of fact, in Edward I's day, this highest tribunal seems to be rather the council than the assembly of prelates and barons. This council is a large body; it comprises the great officers of state—Chancellor, Treasurer, and so forth; it comprises the judges of the three courts; it comprises also the Masters or chief clerks of the Chancery, whom we may liken to the “permanent under-secretaries” of our own time; it comprises also those prelates and barons whom the king thinks fit to have about him. But the definition of this body seems somewhat vague. The sessions or “parliaments” in which it does justice often coincide in time with those assemblies of the Estates of the Realm by which, in later days, the term “parliaments” is specifically appropriated, and at any moment it may take the form of a meeting to which not only the ordinary councillors, but all the prelates and barons, have been summoned. In the light which later days throw back upon the thirteenth century we seem to see in the justiciary “parliaments” of Edward I two principles, one of which we may call aristocratic, while the other is official; and we think that, sooner or later, there must be a conflict between them—that one must grow at the expense of the other. And then again we cannot see very plainly how the power of this tribunal will be defined, for it is doing work of a miscellaneous kind. Not only is it a court of last resort in which the errors of all lower courts can be corrected, but as a court of first instance it can entertain whatever causes, civil or criminal, the king may evoke before it. Then lastly, acting in a manner which to us seems half judicial and half administrative, it hears the numerous petitions of those who will urge any claim against the king, or complain of any wrong which cannot be redressed in the formal course of ordinary justice.
In the course of the fourteenth century some of these questions were settled. It became clear that the Lords’ House of Parliament, the assembly of prelates and barons, was to be the tribunal which could correct the mistakes in law committed by the lower courts. The right of a peer of the realm to be tried for capital crimes by a court composed of his peers was established. Precedents were set for those processes which we know as impeachments, in which the House of Lords hears accusations brought by the House of Commons. In all these matters, therefore, a tribunal technically styled “the King in Parliament,” but which was in reality the House of Lords, appeared as the highest tribunal of the realm. But, beside it, we see another tribunal with indefinitely wide claims to jurisdiction—we see “the King in Council.” And the two are not so distinct as an historian, for his own sake and his readers’, might wish them to be. On the one hand, those of the King's Council who are not peers of the realm, in particular the judges and the Masters of the Chancery, are summoned to the Lords’ House of Parliament, and only by slow degrees is it made plain to them that, when they are in that House, they are mere “assistants” of the peers, and are only to speak when they are spoken to. On the other hand, there is a widespread, if not very practical, belief that all the peers are by rights the king's councillors, and that any one of them may sit at the council board if he pleases. Questions enough are left open for subsequent centuries.
Meanwhile the Council, its actual constitution varying much from reign to reign, does a great deal of justice, for the more part criminal justice, and this it does in a summary, administrative way. Plainly there is great need for such justice, for though the representative commoners and the lawyers dislike it, they always stop short of demanding its utter abolition. The commoners protest against this or that abuse. Sometimes they seem to be upon the point of denouncing the whole institution as illegal; but then there comes some rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, which convinces them that, after all, there is a place for a masterful court which does not stand upon ceremony, which can strike rapidly and have no need to strike twice. They cannot be brought to admit openly that one main cause of the evils that they deplore is the capricious clumsiness of that trial by jury which has already become the theme of many a national boast. They will not legislate about the matter, rather they will look the other way while the Council is punishing rich and powerful offenders, against whom no verdict could have been obtained. A hard line is drawn between the felonies, for which death is the punishment, and the minor offences. No one is to suffer loss of life or limb unless twelve of his neighbours have sworn to his guilt after a solemn trial; but the Council must be suffered to deal out fines and imprisonments against rioters, conspirators, bribers, perjured jurors; otherwise there will be anarchy. The Council evolves a procedure for such cases, or rather it uses the procedure of the canon law. It sends for the accused; it compels him to answer upon oath written interrogatories. Affidavits, as we should call them, are sworn upon both sides. With written depositions before them, the Lords of the Council, without any jury, acquit or convict. The extraction of confessions by torture is no unheard-of thing.
It was in a room known as the Star Chamber that the Council sat when there was justice to be done, and there, as “the Court of Star Chamber,” it earned its infamy. That infamy it fairly earned under the first two Stuart kings, and no one will dispute that the Long Parliament did well in abolishing it. It had become a political court and a cruel court, a court in which divines sought to impose their dogmas and their ritual upon a recalcitrant nation by heavy sentences; in which a king, endeavouring to rule without a Parliament, tried to give the force of statutes to his proclamations, to exact compulsory loans, to gather taxes that the Commons had denied him; a whipping, nose-slitting, ear-cropping court; a court with a grim, unseemly humour of its own, which would condemn to an exclusive diet of pork the miserable Puritan who took too seriously the Mosaic prohibition of swine's flesh. And then, happily, there were doubts about its legality. The theory got about that it derived all its lawful powers from a statute passed in 1487, at the beginning of Henry VII's reign, while manifestly it was exceeding those powers in all directions. We cannot now accept that theory, unless we are prepared to say that for a century and a half all the great judges, including Coke himself, had taken an active part in what they knew to be the unlawful doings of the Council—the two Chief Justices had habitually sat in the Star Chamber. Still we may be glad that this theory was accepted. The court was abolished in the name of the common law.
It had not added much to our national jurisprudence. It had held itself aloof from jurisprudence; it had been a law unto itself, with hands free to invent new remedies for every new disease of the body politic. It had little regard for precedents, and, therefore, men were not at pains to collect its decisions. It had, however, a settled course of procedure which, in its last days, was described by William Hudson in a very readable book. Its procedure, the main feature of which was the examination of the accused, perished with it. After the Civil War and the Restoration no attempt was made to revive it, but that it had been doing useful things then became evident. The old criminal law had been exceedingly defective, especially in relation to those offences which did not attain the rank of felonies. The King's Bench had, for the future, to do what the Star Chamber had done, but to do it in a more regular fashion, and not without the interposition of a jury.
Far other were the fortunes of the Star Chamber's twin sister, the Court of Chancery. Twin sisters they were; indeed, in the fourteenth century it is hard to tell one from the other, and even in the Stuart time we sometimes find the Star Chamber doing things which we should have expected to be done by the Chancery. But, to go back to the fourteenth century, the Chancellor was the king's first minister, the head of the one great secretarial department that there was, the President of the Council, and the most learned member of the Council. Usually he was a bishop; often he had earned his see by diligent labours as a clerk in the Chancery. It was natural that the Lords of the Council should put off upon him, or that he should take to himself, a great deal of the judicial work that in one way or another the Council had to do. Criminal cases might come before the whole body, or some committee of it. Throughout the Middle Ages criminal cases were treated as simple affairs; for example, justices of the peace who were not trained lawyers could be trusted to do a great deal of penal justice, and inflict the punishment of death. But cases involving civil rights, involving the complex land law, might come before the Council. Generally, in such cases, there was some violence or some fraud to be complained of, some violence or fraud for which, so the complainant alleged, he could get no redress elsewhere. Such cases came specially under the eye of the Chancellor. He was a learned man with learned subordinates, the Masters of the Chancery. Very gradually it became the practice for complainants who were seeking the reparation of wrongs rather than the punishment of offences, to address their petitions, not to the King and Council, but to the Chancellor. Slowly men began to think of the Chancellor, or the Chancery of which he was president, as having a jurisdiction distinct from, though it might overlap, that of the Council.
What was to be the sphere of this jurisdiction? For a long time this question remained doubtful. The wrongs of which men usually complained to the Chancellor were wrongs well enough known to the common law—deeds of violence, assaults, land-grabbing, and so forth. As an excuse for going to him, they urged that they were poor while their adversaries were mighty, too mighty for the common law, with its long delays and its purchasable jurors. Odd though this may seem to us, that court which was to become a byword for costly delay started business as an expeditious and a poor man's court. It met with much opposition: the House of Commons did not like it, and the common lawyers did not like it; but still there was a certain half-heartedness in the opposition. No one was prepared to say that there was no place for such a tribunal; no one was prepared to define by legislation what its place should be.
From the field of the common law the Chancellor was slowly compelled to retreat. It could not be suffered that, merely because there was helplessness on the one side and corruptive wealth on the other, he should be suffered to deal with cases which belonged to the old courts. It seems possible that this nascent civil jurisdiction of the Chancellor would have come to naught but for a curious episode in the history of our land law. In the second half of the fourteenth century many causes were conspiring to induce the landholders of England to convey their lands to friends, who, while becoming the legal owners of those lands, would, nevertheless, be bound by an honourable understanding as to the uses to which their ownership should be put. There were feudal burdens that could thus be evaded, ancient restrictions which could thus be loosened. The Chancellor began to hold himself out as willing to enforce these honourable understandings, these “uses, trusts or confidences” as they were called, to send to prison the trustee who would not keep faith. It is an exceedingly curious episode. The whole nation seems to enter into one large conspiracy to evade its own laws, to evade laws which it has not the courage to reform. The Chancellor, the judges, and the Parliament seem all to be in the conspiracy. And yet there is really no conspiracy: men are but living from hand to mouth, arguing from one case to the next case, and they do not see what is going to happen. Too late the king, the one person who had steadily been losing by the process, saw what had happened. Henry VIII put into the mouth of a reluctant Parliament a statute which did its best—a clumsy best it was—to undo the work. But past history was too strong even for that high and mighty prince. The statute was a miserable failure. A little trickery with words would circumvent it. The Chancellor, with the active connivance of the judges, was enabled to do what he had been doing in the past, to enforce the obligations known as trusts. This elaborate story we can only mention by the way; the main thing that we have to notice is that, long before the Tudor days—indeed, before the fourteenth century was out—the Chancellor had acquired for himself a province of jurisdiction which was, in the opinion of all men, including the common lawyers, legitimately his own. From time to time he would extend its boundaries, and from time to time there would be a brisk quarrel between the Chancery and the law courts over the annexation of some field fertile of fees. In particular, when the Chancellor forbade a man to sue in a court of law, or to take advantage of a judgment that he had obtained in a court of law, the judges resented this, and a bitter dispute about this matter between Coke and Ellesmere gave King James I a wished-for opportunity of posing as the supreme lord of all the justice that was done in his name and awarding a decisive victory to his Chancellor. But such disputes were rare. The Chancellors had found useful work to do, and they had been suffered to do it without much opposition. In the name of equity and good conscience they had, as it were, been adding an appendix to the common law. Every jot and tittle of the law was to be fulfilled, and yet, when a man had done this, more might be required of him in the name of equity and good conscience.
Where were the rules of equity and good conscience to be found? Some have supposed that the clerical Chancellors of the last Middle Ages found them in the Roman or the Canon Law, and certain it is that they borrowed the main principles of their procedure from the canonists. Indeed, until some reforms that are still very recent, the procedure of the Court of Chancery was the procedure of an Ecclesiastical Court. In flagrant contrast to the common law, it forced the defendant to answer on oath the charges that were brought against him; it made no use of the jury; the evidence consisted of written affidavits. On the other hand, it is by no means certain that more than this was borrowed. So far as we can now see, the Chancellors seem to get most of their dominant ideas from the common law. They imitate the common law whenever they can, and depart from it reluctantly at the call of natural justice and common honesty. Common honesty requires that a man shall observe the trust that has been committed to him. If the common law will not enforce this obligation it is failing to do its duty. The Chancellor intervenes, but in enforcing trusts he seizes hold of and adopts every analogy that the common law presents. For a long time English equity seems to live from hand to mouth. Sufficient for the day are the cases in that day's cause-list. Even in the seventeenth century men said that the real measure of equity was the length of the Chancellor's foot. Under the Tudors the volume of litigation that flowed into the Chancery was already enormous; the Chancellor was often sadly in arrear of his work, and yet very rarely were his decisions reported, though the decisions of the judges had been reported ever since the days of Edward I. This shows us that he did not conceive himself to be straitly bound by precedents: he could still listen to the voice of conscience. The rapid increase in the number of causes that he had to decide began to make his conscience a technical conscience. More and more of his time was spent upon the judgment-seat. Slowly he ceased to be, save in ceremonial rank, the king's first minister. Wolsey was the last Chancellor who ruled England. Secretaries of State were now intervening between the king and his Great Seal. Its holder was destined to become year by year more of a judge, less of a statesman. Still we must look forward to the Restoration for the age in which the rules of equity begin to take a very definite shape, comparable in rigour to the rules of the common law.
Somehow or another, England, after a fashion all her own, had stumbled into a scheme for the reconciliation of permanence with progress. The old mediaeval criminal law could be preserved because a Court of Star Chamber would supply its deficiencies; the old private law could be preserved because the Court of Chancery was composing an appendix to it; trial by jury could be preserved, developed, transfigured because other modes of trial were limiting it to an appropriate sphere. And so our old law maintained its continuity. As we have said above, it passed scathless through the critical sixteenth century, and was ready to stand up against tyranny in the seventeenth. The Star Chamber and the Chancery were dangerous to our political liberties. Bacon could tell King James that the Chancery was the court of his absolute power. But if we look abroad we shall find good reason for thinking that but for these institutions our old-fashioned national law, unable out of its own resources to meet the requirements of a new age, would have utterly broken down, and the “ungodly jumble” would have made way for Roman jurisprudence and for despotism. Were we to say that that equity saved the common law, and that the Court of Star Chamber saved the constitution, even in this paradox there would be some truth.
Social England, ed. H. D. Traill. Cassell & Co., 1893.
Last modified April 13, 2016