English law

“ And thus, though the English law is unsystematic, ill-arranged, and superficially wanting in scientific accuracy, it does, in fact, represent a body of principles, worked out by the rough common sense of successive generations, and requires only to be tabulated and arranged to become a system of the highest excellence. ”

“ Those who deny it, argue the question upon its merits, upon principle, upon those legal relations and analogies that so nobly characterize the English law on the subject of human liberty. But those who affirm the constitutionality of the law, base their argument upon technicalities and upon precedents, and they cannot sustain themselves for a moment on any other ground. ”

“ Nothing like this has ever been possible among ourselves, and it should be acknowledged that in many criticisms passed on the English law the manner in which it has been enunciated seems to have been lost sight of. The hesitation of our courts in declaring principles may be much more reasonably attributed to the comparative scantiness of our precedents, voluminous as they appear to him who is acquainted with no other system, than to the temper of our judges. ”

“ One instance, however, of a distinct attempt on the part of the law to protect the stronger side must be given, because English law claims for itself not merely a supremacy, but something not far removed from a monopoly of justice. ”

“ The English adage to the effect that there is one law for the rich and another for the poor is one of those adages which are very subtly true. There is a law for the rich, certainly. There is also a law for the poor—namely, no law at all. On the whole the Englishman who has not had his [Pg 166] pristine dream of English law shattered by contact with the realities is to envied. All other Englishmen, whether their experience has lain in County Courts, High Courts, or Courts of Appeal, talk lovingly of English law with their tongues in their cheeks. ”

“ Could we dispose of the time and energies of the young man who is destined—surely he is born by this time—to tell the story of English law, we should advise him to pursue some such course of reading as that prescribed for our Tripos, to go into chambers and into court, even to do what in him lies to acquire some small practice ”

“ The English love to be ruled, just as eels are said to take delight in being skinned. They hold that a nation which is properly ruled cannot fail of happiness. Their notion of rule may be summed up in the phrase, "Law and order." The Englishman believes that law and order are heaven-sent blessings especially invented for his behoof. "Where else in the world," he will ask you grandiloquently, "do you get such law and such order as you get in England—the land of the free?" ”

“ The object of this society is, to promote study and investigation in the early principles of the law. No history of the English law, worthy of the name, has ever been written, and, to-day, no book would be more favorably received than a history embracing the genesis of the common law and of equity. ”

“ I make no doubt that it is easier for a Frenchman or a German to study medieval law than it is for an Englishman; he has not before his mind the fear that he is saying what is not 'practically sound', that he may seem to be unsettling the law or usurping the functions of a judge. There are many good reasons for wishing that some parts of our law, notably our land-law, were thoroughly purged of their archaisms; of these reasons it is needless to say anything; but I am sure that the study of legal history would not suffer thereby. ”

“ History involves comparison and the English lawyer who knew nothing and cared nothing for any system but his own hardly came in sight of the idea of legal history. And when the old scholastic plan of education broke down no other plan took its place, h is hardly too much to say that nobody taught law or attempted to teach it, and that no one studied law save with the most purely practical intentions. Whatever may be the advantages of such a mode of study it will never issue in a written history of English law. ”

“ Far be it from us to suggest that there is but one outgo from the dismal situation; there are many things that a man can do the better because he knows some law. But in that day of tribulation may it be remembered that the history of English law has not been written. Perhaps our imaginary student is not he that should come, not the great man for the great book. ”

“ What is got more cheaply will be guess-work or a merely curious collection of odds and ends, of precarious odds and questionable ends.
And now why is our history unwritten? In the first place, I think we may say, because of the traditional isolation of the study of English law from every other study, an isolation which is illustrated by the fact that it is only of late years, late years to us who have been dealing in centuries, that English law has had a home in the Universities. ”

“ A distinction, however, has arisen between the English and civil codes; by English law delivery either actual or (when from the nature of the thing actual delivery is impossible) constructive is essential, and this delivery must pass not only the possession but the dominion of the thing given ”

“ Well, a stranger might exclaim, what a race of medievalists you English lawyers ought to be! But on enquiry we shall find that the practical necessity for a little knowledge is a positive obstacle to the attainment of more knowledge and also that what is really required of the practising lawyer is not, save in the rarest cases, a knowledge of medieval law as it was in the middle ages, but rather a knowledge of medieval law as interpreted by modern courts to suit modern facts. ”

“ I may add that an Englishman should be better able than a foreigner to appreciate the historical fact that the "Themistes" preceded any conception of law, because, amid the many inconsistent theories which prevail concerning the character of English jurisprudence, the most popular, or at all events the one which most affects practice, is certainly a theory which assumes that adjudged cases and precedents exist antecedently to rules, principles, and distinctions. ”

“ COMMON LAW.—The common law had its roots in the customary law of the Germanic peoples of western Europe, and was developed by the English courts from the thirteenth to the nineteenth centuries. Like the Roman law, it has spread all over the world wherever English-speaking peoples have settled, and founded colonies. ”

“ I observe that not a few continental jurists have much difficulty in comprehending the nature of the connection between the conceptions blended in a universal succession, and there is perhaps no topic in the philosophy of jurisprudence on which their speculations, as a general rule, possess so little value. But the student of English law ought to be in no danger of stumbling at the analysis of the idea which we are examining. Much light is cast upon it by a fiction in our own system with which all lawyers are familiar. ”

“ When the middle of the century is past the signs that English law has a new lease of life become many. The medieval books poured from the press, new books were written, the decisions of the courts were more diligently reported, the lawyers were boasting of the independence and extreme antiquity of their system [62] . We were having a little Renaissance of our own: or a gothic revival if you please. The Court of Requests in which Prof. Smith and Prof. Haddon had done justice was being tried for its life. ”

“ But it is hardly to Parliament that one's hopes must turn in the first instance." Certain ancient and honourable societies, proud of a past that is unique in the history of the world, may become fully conscious of the heavy weight of responsibility that was assumed when English law schools saved, but isolated, English law in the days of the Reception. ”

“ 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 Legal education. grown. ”

“ English legislation is a tamed tiger with a velvet paw, but the claws are still there. Cut the claws of the law, and you will do well. Law almost ignores right. On one side is penalty, on the other humanity. Philosophers protest; but it will take some time yet before the justice of man is assimilated to the justice of God. ”

“ But we can say this, that a thorough training in modern law is almost indispensable for any one who wishes to do good work on legal history. In whatever form the historian of law may give his results to the world—and the prejudice against beginning at the end is strong if unreasonable—he will often have to work from the modern to the ancient, from the clear to the vague, from the known to the unknown. ”

“ But look at the history of French law or of German law; it has been written many times on many different scales from that of the popular handbook to that of the erudite treatise, while the modern literature of monographs on themes of legal history is enormous, a literature the like of which is almost unknown in England. For our backwardness it is some excuse, though hardly a sufficient excuse, that we are overburdened by our materials, are becoming always better aware at once of their great value and of their unmanageable bulk. ”

“ English lawyers have for the last six centuries exaggerated the uniqueness of our legal history by overrating and antedating the triumphs of Roman law upon the continent I know just enough to say this with confidence, that there are great masses of medieval law very comparable with our own ”

“ English case-law is sometimes spoken of as unwritten, and there are some English theorists who assure us that if a code of English jurisprudence were prepared we should be turning unwritten law into written—conversion, as they insist, if not of doubtful policy, at all events of the greatest seriousness. Now, it is quite true that there was once a period at which the English common law might reasonably have been termed unwritten. ”

“ And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student will imagine his time mis-employed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation, upon which what remains is erected; and that it is impracticable to comprehend many rules of the modern law, in a scholarlike scientifical manner, without having recourse to the antient. ”

“ The common law was founded upon the manners and customs of the people, and many of the principles of the common law have come down to the present day. And a careful study of the common laws of England is the best guide to English civilization long centuries ago. ”

“ In most of the United States the English law on this subject is adhered to as the rule of practice. But in others it has been changed either by usage and decisions of the courts founded thereon, or by positive statutes. ”

“ The more modern the decision the more valuable for his purpose. That process by which old principles and old phrases are charged with a new content, is from the lawyer's point of view an evolution of the true intent and meaning of the old law; from the historian's point of view it is almost of necessity a process of perversion and misunderstanding. Thus we are tempted to mix up two different logics, the logic of authority, and the logic of evidence. What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better. ”

“ Respect for the law: that is the English phrase. In England they venerate so many laws, that they never repeal any. They save themselves from the consequences of their veneration by never putting them into execution. ”

“ Let me not be misunderstood:—there is not much 'comparative jurisprudence' for those who do not know thoroughly well the things to be compared, not much 'comparative jurisprudence' for Englishmen who will not slave at their law reports; but still there is nothing that sets a man thinking and writing to such good effect about a system of law and its history as an acquaintance however slight with other systems and their history. One of the causes why so little has been done for our medieval law is I feel sure our very complete and traditionally consecrated ignorance of French and German law. ”

“ Well, that reproach has passed away; but the manipulation which was required to make the political precedents of the middle ages serve the turn of Whig or Tory was a coarse and obvious distortion when compared with the subtle process against which the historian of our law will have to be on his guard, the subtle process whereby our common law has gradually accommodated itself to changed circumstances. ”

“ But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Take again a notion which as popularly understood is the widest conception which the law contains;—the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. ”

“ Nevertheless, the contrary was maintained in England by a party of men of legal eminence, and the explanation of this is only to be found in the fact that these English lawyers were applying to the interpretation of the Declaration the rules which govern the interpretation of English statutes. ”