enslaved by Rome. The new national pride that animated
Elizabethan England issued in boasts touching the antiquity,
humanity, enlightenment of English law. Resuming the strain
of Fortescue, Sir Thomas Smith, himself a civilian, wrote concerning
the Commonwealth of England a book that claimed the
attention of foreigners for her law and her polity. There was
dignified rebuke for the French jurist who had dared to speak
lightly of Littleton. And then the common law took flesh in
Coke.
the person of Edward Coke (1552–1634). With an
enthusiastic love of English tradition, for the sake
of which many offences may be forgiven him, he ranged over
nearly the whole field of law, commenting, reporting, arguing,
deciding,—disorderly, pedantic, masterful, an incarnate national
dogmatism tenacious of continuous life. Imbued with this new
spirit, the lawyers fought the battle of the constitution against
James and Charles, and historical research appeared as the
guardian of national liberties. That the Stuarts united against
themselves three such men as Edward Coke, John Selden and
William Prynne, is the measure of their folly and their failure.
Words that, rightly or wrongly, were ascribed to Bracton rang
in Charles’s ears when he was sent to the scaffold. For the
modern student of medieval law many of the reported cases of
the Stuart time are storehouses of valuable material, since the
lawyers of the 17th century were mighty hunters after records.
Prynne (d. 1669), the fanatical Puritan, published ancient
documents with fervid zeal, and made possible a history of
parliament. Selden (d. 1654) was in all Europe among the very
first to write legal history as it should be written. His book
about tithes is to this day a model and a masterpiece. When
this accomplished scholar had declared that he had laboured
to make himself worthy to be called a common lawyer, it could
no longer be said that the common lawyers were indoctissimum
genus doctissimorum hominum. Even pliant judges, whose
tenure of office depended on the king’s will, were compelled to
cite and discuss old precedents before they could give judgment
for their master; and even at their worst moments they would
not openly break with medieval tradition, or declare in favour
of that “modern police-state” which has too often become the
ideal of foreign publicists trained in Byzantine law.
The current of legal doctrine was by this time so strong and voluminous that such events as the Civil War, the Restoration and the Revolution hardly deflected the course of the stream. In retrospect, Charles II. reigns so soon as life has left his father’s body, and James II. ends a lawless Hale. career by a considerate and convenient abdication. The statute book of the restored king was enriched by leaves excerpted from the acts of a lord protector; and Matthew Hale (d. 1676), who was, perhaps, the last of the great record-searching judges, sketched a map of English law which Blackstone was to colour. Then a time of self-complacency came for the law, which knew itself to be the perfection of wisdom, and any proposal for drastic legislation would have worn the garb discredited by the tyranny of the Puritan Cæsar. The need for the yearly renewal of the Mutiny Act secured an annual session of parliament. The mass of the statute law made in the 18th century is enormous; but, even when we have excluded from view such acts as are technically called “private,” the residuary matter bears a wonderfully empirical, partial and minutely particularizing character. In this “age of reason,” as we are wont to think it, the British parliament seems rarely to rise to the dignity of a general proposition, and in our own day the legal practitioner is likely to know less about the statutes of the 18th century than he knows about the statutes of Edward I., Henry VIII. and Elizabeth. Parliament, it should be remembered, was endeavouring directly to govern the nation. There was little that resembled the permanent civil service of to-day. The choice lay between direct parliamentary government and royal “prerogative”; and lengthy statutes did much of that work of detail which would now be done by virtue of the powers that are delegated to ministers and governmental boards. Moreover, extreme and verbose particularity was required in statutes, for judges were loath to admit that the common law was capable of amendment. A vague doctrine, inherited from Coke, taught that statutes might be so unreasonable as to be null, and any political theory that seemed to derive from Hobbes would have been regarded with not unjust suspicion. But the doctrine in question never took tangible shape, and enough could be done to protect the common law by a niggardly exposition of every legislating word. It is to be remembered that some main features of English public law were attracting the admiration of enlightened Europe. When Voltaire and Montesquieu applauded, the English lawyer had cause for complacency.
The common law was by no means stagnant. Many rules which come to the front in the 18th century are hardly to be traced farther. Especially is this the case in the province of mercantile law, where the earl of Mansfield’s (d. 1793) long presidency over the king’s bench marked an epoch. It is too often forgotten that, until Elizabeth’s reign, England was a thoroughly rustic kingdom, and that trade with England was mainly in the hands of foreigners. Also in medieval fairs, the assembled merchants declared their own “law merchant,” which was considered to have a supernational validity. In the reports of the common law courts it is late in the day before we read of some mercantile usages which can be traced far back in the statutes of Italian cities. Even on the basis of the excessively elaborated land law—a basis which Coke’s Commentary on Littleton seemed to have settled for ever—a lofty and ingenious superstructure could be reared. One after another delicate devices were invented for the accommodation of new wants within the law; but only by the assurance that the old law could not be frankly abolished can we be induced to admire the subtlety that was thus displayed. As to procedure, it had become a maze of evasive fictions, to which only a few learned men held the historical clue. By fiction the courts had stolen business from each other, and by fiction a few comparatively speedy forms of action were set to tasks for which they were not originally framed. Two fictitious persons, John Doe and Richard Roe, reigned supreme. On the other hand, that healthy and vigorous institution, the Commission of the Peace, with a long history behind it, was giving an important share in the administration of justice to numerous country gentlemen who were thus compelled to learn some law. A like beneficial work was being done among jurors, who, having ceased to be regarded as witnesses, had become “judges of fact.” No one doubted that trial by jury was the “palladium” of English liberties, and popularity awaited those who would exalt the office of the jurors and narrowly limit the powers of the judge.
But during this age the chief addition to English jurisprudence was made by the crystallization of the chancellor’s equity. In the 17th century the chancery had a narrow escape of sharing the fate that befell its twin sister the star chamber. Its younger sister the court of requests perished under Equity. the persistent attacks of the common lawyers. Having outlived troubles, the chancery took to orderly habits, and administered under the name of “equity” a growing group of rules, which in fact were supplemental law. Stages in this process are marked by the chancellorships of Nottingham (1673–1675) and Hardwicke (1737–1756). Slowly a continuous series of Equity Reports began to flow, and still more slowly an “equity bar” began to form itself. The principal outlines of equity were drawn by men who were steeped in the common law. By way of ornament a Roman maxim might be borrowed from a French or Dutch expositor, or a phrase which smacked of that “nature-rightly” school which was dominating continental Europe; but the influence exercised by Roman law upon English equity has been the subject of gross exaggeration. Parliament and the old courts being what they were, perhaps it was only in a new court that the requisite new law could be evolved. The result was not altogether satisfactory. Freed from contact with the plain man in the jury-box, the chancellors were tempted to forget how plain and rough good law should be, and to screw up the legal standard of reasonable conduct to a height hardly attainable except by those whose purses could command the constant advice of a family solicitor. A court which started with the
