Old Law

“ How far they persuaded themselves that such a condition of the race had ever existed, is a point, as I have already stated, which their language leaves in much uncertainty; but they certainly do seem to have made the conjecture, which has at all times possessed much plausibility, that the institution of property was not so old as the existence of mankind. Modern jurisprudence, accepting all their dogmas without reservation, went far beyond them in the eager curiosity with which it dwelt on the supposed state of Nature. ”

“ The world moves on, civilization advances, science and the arts stride forward, but the law stands still. A principle which may have been somewhat changed, modified, bent, if you please, into an adaptation to the exigencies of the present, and a fitness for the changed circumstances of the times in which we live, is suddenly thrown back into its old position by the exhumation of some 'decision' from the dust of ages, made by some judge away back in the olden times, resurrected by the research of some antiquarian lawyer, who loves to delve among the rubbish of past generations. ”

“ A clear addition has been made to the precedents, and the canon of law elicited by comparing the precedents is not the same with that which would have been obtained if the series of cases had been curtailed by a single example. The fact that the old rule has been repealed, and that a new one has replaced it, eludes us, because we are not in the habit of throwing into precise language the legal formulas which we derive from the precedents, so that a change in their tenor is not easily detected unless it is violent and glaring. ”

“ It came at a time when the old order of things was giving way to the new—when the ancient customs of the barbarians, the ordeal, the wager of law, the wer-gild, were growing obsolete in the increasing intelligence of the age, when a new system was springing into life under the revived study of the Roman law, and when the administration of justice by the local feudal lord was becoming swallowed up in the widening jurisdiction of the crown. ”

“ These are the general characteristics of that incomparable monument of jurisprudence whose noble conceptions of the ends of legislation are best expressed in its own concise and energetic language:
“The law is the rival of divinity, the messenger of justice, and the guide of life. It dominates all classes of the state, and all ages of humanity, male and female, the young and the old, the wise and the ignorant, the noble and the peasant. It is not designed for the promotion of private aims, but to shelter and [189] protect the general interests of all. ”

“ That there was a persistent tradition in ancient society of a law of nature; (2.) That this tradition was invariably associated with the golden age, e.g.:—
“After nature had become a household word in the mouths of the Romans, the belief gradually prevailed among the Roman lawyers, [290] that the old jus gentium was in fact the lost code of nature, and that the prætors, in framing an edictal jurisprudence on the principles of the jus gentium, were gradually restoring a type from which law had only departed to deteriorate” (p. 56) . ”

“ The age of the laws now set in the framework of the Origins is a distinct question, or rather, as will be understood from what has been said above, it is a separate question for every law, and often for successive paragraphs of the same law. ”

“ And the rest of the acts of Robert Rede—we might say—and the arguments that he urged and the judgments that he pronounced, are they not written in queer old French in the Year Books of Henry VII and Henry VIII? Those ancient law reports are not a place in which we look for humanism or the spirit of the Renaissance: rather we look there for an amazingly continuous persistence and development of medieval doctrine. ”

“ Moving away from the consecrated field, I thought of the pilgrims that would come from afar, through successions of generations, to look upon the last home of the great Jurist. From all parts of our own country, from all the lands where law is taught as a science, and where justice prevails, they will come to seek the grave of their master. ”

“ In legislating for an ancient people, the question is not, what is the best possible system of law, but what is the best they can bear. Their habitudes and prejudices must always be respected; and, whenever it is practicable, those prejudices, instead of being destroyed, ought to be taken as the basis of the new regulations. ”

“ As to expiring laws—‘tis all a fallacy. One of the glorious privileges of the English Constitution is, that the laws never expire—neither do the lawyers—they are everlasting. Justice may die in this happy land, but law—never! ”

“ The exposition of the Corpus juris civilis in the school of the glossators was of great moment in the evolution of mediaeval political theory, which in its turn yields one more example of the mediaeval application of thoughts derived from antique and patristic sources. Political thinking in the Middle Ages sought its surest foundation in theology; then it built itself up with concepts drawn from the philosophy and social theory of the antique world; and lastly it laid hold on jurisprudence, using the substance and reasoning of the Roman and the Canon law. ”

“ The inferior kinds of property are first, from disdain and disregard, released from the perplexed ceremonies in which primitive law delights, and thus afterwards, in another state of intellectual progress, the simple methods of transfer and recovery which have been allowed to come into use serve as a model which condemns by its convenience and simplicity the cumbrous solemnities inherited from ancient days. ”

“ The rudiments of the social state, so far as they are known to us at all, are known through testimony of three sorts—accounts by contemporary observers of civilisations less advanced than their own, the records which particular races have preserved conceding their primitive history, and ancient law. ”

“ It may here be observed that we know enough of ancient Roman law to give some idea of the mode of transformation followed by legal conceptions and by legal phraseology in the infancy of Jurisprudence. The change which they undergo appear to be a change from general to special; or, as we might otherwise express it, the ancient conceptions and the ancient terms are subjected to a process of gradual specialisation. An ancient legal conception corresponds not to one but to several modern conceptions. ”

“ And let those who think the twelfth century too late an age to be interesting, who wish for the law of more primitive times, consider how sound a base for their studies these records are. If once we were certain of our twelfth century we might understand Domesday, if once we understood the state of England on the day when the Confessor was alive and dead, then we might turn with new hopes of success to the Anglo-Saxon dooms and land-books. ”

“ 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. ”

“ Or, if I may say so, an ancient and ever-altering constitution is like an old man who still wears with attached fondness clothes in the fashion of his youth: what you see of him is the same; what you do not see is wholly altered. ”

“ If an attempt were made to demonstrate in England the superiority of the historical method of investigation to the modes of inquiry concerning Jurisprudence which are in fashion among us, no department of Law would better serve as an example than Testaments or Wills. Its capabilities it owes to its great length and great continuity. At the beginning of its history we find ourselves in the very infancy of the social state, surrounded by conceptions which it requires some effort of mind to realise in their ancient form ”

“ The lawyer must be orthodox otherwise he is no lawyer; an orthodox history seems to me a contradiction in terms. If this truth is hidden from us by current phrases about 'historical methods of legal study', that is another reason why the history of our law is unwritten. If we try to make history the handmaid of dogma she will soon cease to be history. ”

“ Our object is now to familiarise ourselves with an immortal monument of ancient wisdom, to shape our legal education by it, to be helped by it to a clearer understanding of our own codes, and to contemplate it in its successive manifestations, while we search for its regulating law. ”

“ At present, in very many cases, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. We follow it into the Year Books, and perhaps beyond them to the customs of the Salian Franks, and somewhere in the past, in the German forests, in the needs of Norman kings, in the assumptions of a dominant class, in the absence of generalized ideas, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. ”

“ But during the Middle Ages these conceptions gradually yielded to the classical idea of the legal order as a means of preserving the social status quo, the more since the latter was fortified by the unassailable authority of texts of scripture and of the Roman law. Moreover, from the thirteenth century on, philosophers more and more sought to sustain authority by reason, and in this way they prepared the way for a new conception which developed in the seventeenth century. ”

“ They demanded that the rights of the land and the ancient custom should not be cast aside; but that the courts as of old should be served by reasonable and honest judges, who should be men of the same feudal livery and of the same country as those whom they tried. ”

“ But the grand point of interest is, the continued degradation of these commodities when their importance had increased and their number had multiplied. Why were they not successively included among the favoured objects of enjoyment? One reason is found in the stubbornness with which Ancient Law adheres to its classifications. It is a characteristic both of uneducated minds and of early societies, that they are little able to conceive a general rule apart from the particular applications of it with which they are practically familiar. ”

“ These political changes and the failure of ancient customs to fit new social and economic conditions naturally led to a demand for written law, which alone can be the basis of even justice and protection. ”

“ But though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach: nothing being more difficult than to ascertain the precise beginning and first spring of an antient and long established custom. Whence it is that in our law the goodness of a custom depends upon it's having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. ”

“ The reason why one legal conception continues so long to cover several conceptions, and one technical phrase to do instead of several, is doubtless that practical changes are accomplished in the law of primitive societies long before men see occasion to notice or name them. ”

“ But for protection against physical weakness and for protection against intellectual incapacity, the Romans looked to two different institutions, distinct both in theory and design. The ideas attendant on both are combined in the modern idea of guardianship.
The Law of Persons contains but one other chapter which can be usefully cited for our present purpose. The legal rules by which systems of nature jurisprudence regulate the connection of Master and Slave, present no very distinct traces of the original condition common to ancient societies. ”

“ We might know the law of Edward's time in very minute detail; the more we know the less ready shall we be to say that there is anything unknowable. The practical limit set to our knowledge is not set by any lack of evidence, it is the limit of our leisure, our strength, our studiousness, our curiosity. Seven hundred years of judicial records, six hundred years of law reports; think how long a time seven centuries would be in the history of Roman Law. ”

“ As with a number of the more enlightened country gentlemen of his time, the law of the constitution was a favourite study, and it was the conclusions he drew from it that inspired him to resist any infringement of ancient rights from whatever quarter it might come. ”

“ If we may claim to know more than our forefathers about the actual historical development of law, it is only because we have become possessed of a new historical method which has already wrought signal, if not fundamental, alterations in our point of view so far as regards the origin and early history of institutions. ”

“ If we confine our attention, then, to those fragments of ancient institutions which cannot reasonably be supposed to have been tampered with, we are able to gain a clear conception of certain great characteristics of the society to which they originally belonged. Advancing a step further, we can apply our knowledge to systems of law which, like the Code of Menu, are as a whole of suspicious authenticity ”

“ A thousand bad precedents that keep us bound to medievalism would go with the law-books: there would be a chance to pronounce, here and now as human beings, on such things as capital punishment;—which remains, though we do not recognise the fact, solely because it has been in vogue all these centuries, and is a habit hard to break with. ”

“ 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. ”