Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/573

 17. BEALE: JURISPRUDENCE 559 the century with its present condition, we shall gain some idea of the amount of change in the law itself and its administra- tion. In England conservatism and privilege and the dread inspired in the heart of the people by the excesses of the French revolution conspired to retain in the law the medieval subtleties and crudities, though the reason of them had been forgotten and the true application of them often mistaken. The criminal law was administered with ferocity tempered by ignorance ; all the anomalies and mistakes which have dis- figured its logical perfection are traceable to the period just before the beginning of the last century. Criminal pro- cedure was still crude and cruel. The accused could neither testify nor be assisted by counsel ; legally, death, actually, a small fine or at most transportation, was the punishment for most serious off*enses. The amount of crime in proportion to the population was enormously greater than now ; there were no preventive measures, no police, not even street lights. The law of torts occupied almost as small a place as it did in the proposed codes ; the law of contracts was so unformed that it was not certain whether Lord Mansfield's doctrine that a writ- ten commercial agreement needed no consideration, would prevail or not. Business corporations were hardly known; almost the whole field of equity was hidden by a portentous cloud. Lord Eldon had just become chancellor. What the law of England was, such with httle difference was the law of our own country. Its application to the complex life of the present was not dreamed of; and it had to be greatly changed before it could be adapted to the needs of to-day. Yet to say, as did Bentham, that it was rotten to the core and incapable of amendment was grotesquely; incorrect; to say, as one of his latest disciples did, that it was the laughing-stock of the Continental nations is strangely tou,^ misread history. In 1803, with all its imperfections and] crudities, it was probably the most just and humane system I of law under which human beings were then hving. — On the Continent, feudal rights characterized civil law; torture was the basis of the administration of criminal law. And in no country of any size had the people yet obtained what had been given to EngHshmen by their great-