Page:EB1911 - Volume 09.djvu/635

Rh Marlborough after the end of the Barons’ War. But during Henry III.’s long reign the swift development of English law was due chiefly to new “original writs” and new “forms of action” devised by the chancery and sanctioned by the court. Bracton knew many writs that were unknown to Glanvill, and men were already perceiving that limits must be set to the inventive power of the chancery unless the king was to be an uncontrollable law-maker. Thus the common law was losing the power of rapid growth when Bracton summed the attained results in a book, the success of which is attested by a crowd of manuscript copies. Bracton had introduced just enough of Roman law and Bolognese method to save the law of England from the fate that awaited German law in Germany. His book was printed in 1569, and Coke owed much to Bracton.

The comparison that is suggested when Edward I. is called the English Justinian cannot be pressed very far. Nevertheless, as is well known, it is in his reign (1272–1307) that English institutions finally take the forms that they are to keep through coming centuries. We already see the parliament of the three estates, the convocations of the clergy, the king’s council, the chancery or secretarial department, the exchequer or financial department, the king’s bench, the common bench, the commissioners of assize and gaol delivery, the small group of professionally learned judges, and a small group of professionally learned lawyers, whose skill is at the service of those who will employ them. Moreover, the statutes that were passed in the first eighteen years of the reign, though their bulk seems slight to us nowadays, bore so fundamental a character that in subsequent ages they appeared as the substructure of huge masses of superincumbent law. Coke commented upon them sentence by sentence, and even now the merest smatterer in English law must profess some knowledge of Quia emptores and De donis conditionalibus. If some American states have, while others have not, accepted these statutes, that is a difference which is not unimportant to citizens of the United States in the 20th century. Then from the early years of Edward’s reign come the first “law reports” that have descended to us: the oldest of them have not yet been printed; the oldest that has been printed belongs to 1292. These are the precursors of the long series of Year Books (Edw. II.-Hen. VIII.) which runs through the residue of the middle ages. Lawyers, we perceive, are already making and preserving notes of the discussions that take place in court; French notes that will be more useful to them than the formal Latin records inscribed upon the plea rolls. From these reports we learn that there are already, as we should say, a few “leading counsel,” some of whom will be retained in almost every important cause. Papal decretals had been endeavouring to withdraw the clergy from secular employment. The clerical element had been strong among the judges of Henry III.’s reign: Bracton was an archdeacon, Pateshull a dean, Raleigh died a bishop. Their places begin to be filled by men who are not in orders, but who have pleaded the king’s causes for him—his serjeants or servants at law—and beside them there are young men who are “apprentices at law,” and are learning to plead. Also we begin to see men who, as “attorneys at law,” are making it their business to appear on behalf of litigants. The history of the legal profession and its monopoly of legal aid is intricate, and at some points still obscure; but the influence of the canonical system is evident: the English attorney corresponds to the canonical proctor, and the English barrister to the canonical advocate. The main outlines were being drawn in Edward I.’s day; the legal profession became organic, and professional opinion became one of the main forces that moulded the law.

The study of English law fell apart from all other studies, and the impulse that had flowed from Italian jurisprudence was ebbing. We have two comprehensive text-books from Edward’s reign: the one known to us as Fleta, the other as Britton; both of them, however, quarry their materials from Bracton’s treatise. Also we have two little books on procedure which are attributed to Chief-Justice Hengham, and a few other small tracts of an intensely practical kind. Under the cover of fables about King Alfred, the author of the Mirror of Justices made a bitter attack upon King Edward’s judges, some of whom had fallen into deep disgrace. English legal history has hardly yet been purged of the leaven of falsehood that was introduced by this fantastic and unscrupulous pamphleteer. His enigmatical book ends that literate age which begins with Glanvill’s treatise and the treasurer’s dialogue. Between Edward I.’s day and Edward IV.’s hardly anything that deserves the name of book was written by an English lawyer.

During that time the body of statute law was growing, but not very rapidly. Acts of parliament intervened at a sufficient number of important points to generate and maintain a persuasion that no limit, or no ascertainable limit, can be set to the legislative power of king and parliament.

Very few are the signs that the judges ever permitted the validity of a statute to be drawn into debate. Thus the way was being prepared for the definite assertion of parliamentary “omnicompetence” which we obtain from the Elizabethan statesman Sir Thomas Smith, and for those theories of sovereignty which we couple with the names of Hobbes and Austin. Nevertheless, English law was being developed rather by debates in court than by open legislation. The most distinctively English of English institutions in the later middle ages are the Year-Books and the Inns of Court. Year by year, term by term, lawyers were reporting cases in order that they and their fellows might know how cases had been decided. The allegation of specific precedents was indeed much rarer than it afterwards became, and no calculus of authority so definite as that which now obtains had been established in Coke’s day, far less in Littleton’s. Still it was by a perusal of reported cases that a man would learn the law of England. A skeleton for the law was provided, not by the Roman rubrics (such as public and private, real and personal, possessory and proprietary, contract and delict), but by the cycle of original writs that were inscribed in the chancery’s Registrum Brevium. A new form of action could not be introduced without the authority of Parliament, and the growth of the law took the shape of an explication of the true intent of ancient formulas. Times of inventive liberality alternated with times of cautious and captious conservatism. Coke could look back to Edward III.’s day as to a golden age of good pleading. The otherwise miserable time which saw the Wars of the Roses produced some famous lawyers, and some bold doctrines which broke new ground. It produced also Sir Thomas Littleton’s (d. 1481) treatise on Tenures, which (though it be not, as Coke thought it, the most perfect work that ever was written in any human science) is an excellent statement of law in exquisitely simple language.

Meanwhile English law was being scholastically taught. This, if we look at the fate of native and national law in Germany, or France, or Scotland, appears as a fact of primary importance. From beginnings, so small and formless that they still elude research, the Inns of Court had

grown. The lawyers, like other men, had grouped themselves in gilds, or gild-like “fellowships.” The fellowship acquired property; it was not technically incorporate, but made use of the thoroughly English machinery of a trust. Behind a hedge of trustees it lived an autonomous life, unhampered by charters or statutes. There was a hall in which its members dined in common; there was the nucleus of a library; there were also dormitories or chambers in which during term-time lawyers lived celibately, leaving their wives in the country. Something of the college thus enters the constitution of these fellowships; and then something academical. The craft gild regulated apprenticeship; it would protect the public against incompetent artificers, and its own members against unfair competition. So the fellowship of lawyers. In course of time a lengthy and laborious course of education of the medieval sort had been devised. He who had pursued it to its end received a call to the bar of his inn. This call was in effect a degree. Like the doctor or master of a university, the full-blown barrister was competent to teach others, and was expected to read lectures to students. But further, in a manner that is still very dark, these societies