Page:The Green Bag (1889–1914), Volume 13.pdf/46

 A Century of English Judicature. A CENTURY OF ENGLISH JUDICATURE. I. BY VAN VECHTEN VEEDER. A LTHOUGH the fundamental princi/V pies of English law are matters of great antiquity, the complex legal system of the present day is to a very large extent the product of the nineteenth century. Much had been accomplished, it is true, in the eighteenth century. Blackstone, writing shortly after the middle of the century, had summarized, in the language of the scholar and the gentleman, the legal system of his day, and thus, for the first time, made the law available for purposes of general education. The genius of Lord Mansfield in common law and of Lord Hardwicke in equity had given a liberalizing and scientific impulse to the body of the law which forever marks their judicial service as the starting point of modern English jurisprudence. And as the nineteenth century dawned Erskine, at the bar, was instilling the principles of constitu tional liberty in those matchless arguments which forever set at rest the notion that there was any incompatibility between legal acumen and literary taste. These impulses from the eighteenth century have in the nineteenth been disseminated throughout the law. In the application of old principles to new circumstances principles have been restated, refined and developed until the armory of nineteenth century case law gen erally suffices for practical needs. The mere bulk of nineteenth century precedents tells the story. When the eighteenth century closed there were only three hundred and four volumes of reports. The output of the last one hundred years, exclusive of dupli cates, swells the total to a little more than twelve hundred volumes for England alone; for the United Kingdom the number prob ably exceeds twenty-three hundred. The judicial history of the century falls

naturally into two periods of about equal length, the dividing line being the reforms contemporaneous with the Common Law Procedure Act of 1852. The first period is marked by the domination of Lord Eldon in equity and of Baron Parke in the common law—a period of great technical learning, in which, however, the spirit and aim of legal administration was far removed from the actual conditions and needs of the world of affairs. The second period is distinguished by the labors of those great minds whose genius and energy have transformed the procedure and developed the principles of the law into the practical administration of jus tice which prevails in England to-day.

FROM THE BEGINNING OF THE CENTURY TO THE COMMON LAW PROCEDURE ACT. . When the century opened a new era of commercial and industrial activity, it found the judicature of the country not only unable to cope with the development in business, but animated moreover by a spirit and method which belonged to the past. Foremost was the traditional division between law and equity in courts having no common historical origin and administering justice on principles essentially unlike. This duplex system of procedure inevitably pro moted expense and delay, and very often led to failure of justice. As far as this separa tion was based upon the principle of division of labor,1 by which distinct machinery may be accommodated to special subject matter, much could be said in its favor. But the dis tinction between law and equity went far beyond the requirements of any natural divi