It seems unnecessary to trace this matter further, and we have come to the gap in our authorities due to the fact that no Year Books of Richard II’s reign are yet in print. Before the death of his grandfather the common law seems to be taking its final form; possession is not protected against ownership except in certain very exceptional circumstances. We shall here do well to observe that Coke, like Brooke before him, well knew that there had been a change in the law. “In ancient times,” he says, “if the disseisor had been in long possession, the disseisee could not have entered upon him. Likewise the disseisee could not have entered upon the feoffee of the disseisor, if he had continued a yeare and a day in quiet possession. But the law is changed in both these cases, only the dying seised, being an act in law, doth hold at this day 1 .” In the margin Coke refers to Bracton, Britton and Fleta, and to some of those cases in the Year Books which have already come before us.

Now as regards the owner’s right to enter, we seem fully entitled to say that Coke had good warrant for his opinion that there had been a great change in the law, a change in favour of the owner; he had gained a right to enter in many cases in which it would formerly have been denied to him. But for the more precise rule that a disseisor’s feoffee must not be disturbed after year and day, I have not been able to find any definite authority. I think that Coke may have taken it from a statement in Brooke’s Abridgement which has been mentioned above. The phrase however which Brooke uses is not “an et jour,” but “ans et jours,” and this I believe means vaguely “a considerable time.” Coke’s rule was not the rule of Bracton’s day, for this was yet more favourable to possession. Still even in Bracton’s time a year’s possession was required of an intruder before he could claim protection against the remainderman, and it seems to me very possible that the gradual dissolution of the old law was checked for a moment at the point when protection was still given to a disseisor’s feoffee if he had been in possession for year and day. There are certain reasons, which I hope to give on another occasion, for thinking that this may have been the case.

But now how are we to understand this episode in our legal history, this gradual victory of the rights of ownership over the rights given by possession? If, with Mr Justice Holmes, we regard it as a mark of “good sense” that a defendant in a possessory action should be allowed to rely on his title, then we may regard this as a gradual victory of good sense. But let us first note that after all the victory was but partial. It was the nineteenth century before a defendant became able to rely upon title, if by title be meant a right to possess the land. The only “title” that even the fully developed common law enabled him to assert was a right to enter upon the land 1 . In 1833 it was still possible that the person entitled to be in possession of land should have no right to enter upon it “sine judicio”; if he entered and ousted the possessor, he would, I take it, have had no defence to an action of ejectment or to an assize 2 . That in actual practice this happened very seldom was not due to the good sense of the common law, but to statutes which had helped the common law out of the bad mess into which it had got in Littleton’s day. A statute of 1540 confined the doctrine of descents which toll entries within very narrow limits 1 . Another statute of the same year prevented a husband from effecting a “discontinuance” of his wife’s lands 2 . The dissolution of the monasteries and legislation as to other ecclesiastical corporations, left tenant in tail the one person who could “discontinue the possession,” and this power of his became unimportant because generally he could do much more than “discontinue the possession,” he could utterly bar his issue, remaindermen and reversioners 3 .

Now by way of explanation of what happened between Bracton’s time and Littleton’s, it might be suggested that in the course of civilization wrongful ejectments became much rarer, and that therefore it was needless, and if needless then unjust, to maintain the old possessory action in all its pristine rigour. But it may well be doubted whether during the period of which we speak wrongful ejectments became rarer. The fifteenth century was at least as lawless as the thirteenth. This was the time of forcible entries and private wars, of maintenance and champerty. “In 1399,” says Dr Stubbs, “the commons petitioned against illegal usurpations of private property; the Paston Letters furnish abundant proof that this evil had not been put down at the accession of Henry VII 1 .” “Forcible entry and disseisin with violence,” says Mr Plummer, “were every-day occurrences, and were almost restored to the position of legal processes which they had held before the invention of the grand assize 2 .” Not a little of the blame for this state of things should rest upon the judges who, by allowing the utmost license to mendacious pleadings, had made the assize of novel disseisin anything but the festinum remedium which it still was in the days of Edward I. That assize must have been very badly handled; otherwise the Statutes of Forcible Entry would never have been necessary. In 1381, 1391, 1402, 1429, statutes were made which ransack the whole armoury of the law for weapons against disseisors, indictments, summary convictions, imprisonment, ransom, actions of trespass, special assizes, restitution, treble damages, treble costs. Even under the strong rule of Henry VIII it was necessary to furbish up these weapons. So late as 1623 there is a new statute for the protection of possessors who are not freeholders 1 . It may I think be gathered from these statutes and the decisions upon them, that the true remedy for a crying evil was found in making forcible entry a crime. The judges refused a civil remedy under the statute of 1429 to a possessor forcibly ejected by an owner whose right of entry had not been tolled; although such a possessor could have obtained restitution in criminal proceedings 2 . Whether the makers of the statute meant this may perhaps be doubted; but at any rate the decision shows how far the judges had departed from Bracton’s position; they could not conceive that a possessor with no title or bad title could be “disseised” by a person who had good title, and whose right to enter had not been tolled by descent cast or discontinuance. “Disseisin” in such a context had come to imply something more than dispossession of a possessor, something more than dispossession of a possessor who has colour of title; it had come almost to mean dispossession of one who has relatively good title by one who has relatively bad title.

It may be that for a long time past the judges had felt that there was some want of “good sense” in allowing A to recover possession from B , when B was willing to prove that he had a right to be in possession; some want of good sense because this would be putting A into possession merely in order that a question might be raised in some future action, which might very well be decided once for all in the present. But then the judges of Bracton’s day saw no want of good sense in this, so we have to account for the change of mind. What is more, we may never safely refer great changes in the common law directly and immediately to opinions as to what is politic or expedient, least of all changes which took place in the period of the Year Books. Judges and counsel talk little of public policy; “Fiat justitia, ruat coelum,” is their maxim; the social fabric may fall in with a crash, but their legal logic must have its way. Thoughts of the common weal must be expressed in forensic terms, “seisin” and “freehold” and so forth, before they can influence decisions. To a full explanation of the process indicated by those notes of cases which I have given above we shall hardly at present attain; but a little may be done towards clearing the way for other investigators.

In the first place something may be learned from the history of the law touching the time within which an assize must be brought. It seems that from the first the Norman writ of novel disseisin, which probably we ought to regard as the parent, or perhaps elder sister, of our own, could only be brought by one who had been disseised since last August. Each harvest set a term of limitation running; if a man was disseised at harvest time he had a full year within which to complain; if he was disseised shortly before harvest, then he had but a much shorter time. Year and day seems regarded as the normal term of limitation, but it is assumed that harvest time is the great time for disseisins. This gives to the Norman law a curiously homely character 1 . In England no such annual limitation was established. Glanvill tells us that the period within which an assize can be brought is fixed from time to time by royal ordinance. The writ that he gives mentions the king’s last journey into Normandy, an event that must have been quite recent 2 . Such ordinances were issued after Glanvill’s day; we find Richard’s first and second coronations, John’s coronation, John’s return from Ireland, Henry’s coronation, Henry’s journey to Gascony, are chosen as limits behind which a plaintiff may not go. When this last event was chosen it was but seven years old or thereabouts 3 . The Statute of Westminster I, while it altered the time for other writs, left this unaltered: so in 1275 it seems to have been considered that a disseisin committed five and forty years ago was yet “novel.” This means a great change, but is little to what follows; for no other time was limited until the reign of Henry VIII, so that in 1540 a disseisin three hundred years old was still “novel 4 .” Now this should be had in mind, for though in theory it may well be possible that an action shall be thoroughly and truly possessory, and yet be subject to no rule that limits a time within which it may be brought, still it would be difficult to maintain the theory in practice. If I be permitted to demand restitution of land on the ground that you ejected me eighty or even twenty years ago, whatever we may call this complaint, it will be difficult to think of it as other than a demand that you should restore to me what is mine, difficult to think of it as based not on proprietary right but on injured possession, and difficult because substantially unjust to prevent your pleading whatever title you may have.

We ought to look below this curious history to its cause, which is not to be found altogether in the remissness of parliament. In 1275 parliament in a splendid outburst of youthful vigour was beginning to overhaul the whole law of the land; and yet a term of more than forty years was not thought too long for the assize of novel disseisin. Ten years later the secret is revealed. “Forasmuch,” says the Statute of Westminster II, “as there is no writ in the Chancery whereby plaintiffs can have so speedy a remedy as by a writ of novel disseisin.” Here is a summary remedy for the recovery of land, why not extend its beneficent operation? Why insist that the defendant shall have obtained possession so very recently, or by what is technically called a disseisin? If we have come by a good form of action, why not use it? This seems the view of the matter taken by the parliaments of Edward I. A sensible, practical view it may be; but legal principle avenges itself. If we try to make our possessorium do the work of a petitorium, it will soon refuse to do its own proper work; questions of title will be raised in it and will be decided.

Thus the most elementary notions of the law are blurred. Take for instance the classification of actions as real and personal, or real, personal and mixed. This in all probability was not native in our law and was never thoroughly at home there. Bracton introduces it. He holds indeed that an action for goods cannot be in rem , because the defendant has the option of paying the value of the goods instead of surrendering them; but he knows too much of Roman law to call an action “real” merely because the successful plaintiff will thereby obtain possession of a specific thing. The Novel Disseisin, for example, is actio personalis ; it may be rei persecutoria , but it is personalis 1 . So the cognate writ of intrusion is omnino personalis 2 . So the Quod permittat is potius personalis quam realis 3 . With him the test is rather the nature of the mesne, than the nature of the final, process. If the mesne process is against the thing, if e.g. the land is seized into the king’s hand, the action is real, but if, as in the assize of novel disseisin, the process is attachment, then the action is personal. The active party in such litigation is not a demandant, he is a plaintiff, he is not petens , but quaerens . This last distinction perdured to the end; it is a mistake to speak of a “demandant” in an assize. But after a while an action becomes “real” merely because land is obtained thereby, and it is “mixed” if damages also can be obtained 4 . Indeed even an action on a covenant may be a real action 5 . Had Bracton been a pupil of Savigny he could not have stated more clearly than he has done, that the Novel Disseisin is a personal action founded on tort 1 . The mere change in terminology, a retrogressive change as it may seem to some, may be explained by the fact that our law became always more insular, our judges always more ignorant of any law but their own; but that the Novel Disseisin fell into the general mass of real actions requires some further explanation.

This we may find if we turn to another famous distinction, that between possessory and proprietary actions. Between the proprietary writ of right and the possessory assizes there grows up a large group of actions, the writs of entry. Of their history I hope to write a little on another occasion. Here it must be enough to say that in Bracton’s view they are, with some exceptions, distinctly proprietary actions. In course of time however they come to be called possessory. This one fact by itself is enough to warn us that the distinction becomes exceedingly obscure. Now these actions became quite as easy as the assize; indeed it would seem that they became even easier, for a particular form of writ of entry (the writ of entry in the nature of an assize, or writ in the quibus) came to be commonly used in the fifteenth century instead of the Novel Disseisin. As regards simplicity and dispatch, the equalising process seems to have been rather one whereby the possessorium was deteriorated than one whereby the petitorium was improved. So far as mere “process” is concerned the Novel Disseisin must down to the very end, down to 1833, have been a fairly rapid action, quite as rapid I should think as the action of ejectment. Why it went out of use is no very easy question; but apparently the subtleties of pleaders “feigned, dilatory and curious pleadings” worked its ruin 1 . The formulation in the original writ of the question for the jurors, was a device only suitable to an age whose law was as yet but meagre. As such terms as “freehold” and “disseisin” become more and more technical, the pleader of one litigant becomes more and more anxious that the question so formulated shall not be answered, and the justices take that pleader’s side, for they hold that matter of law is for the Court and only the purest fact for laymen. The pleadings in assizes become at least as complicated and “colourable” as the pleadings in other actions, perhaps more complicated and “colourable,” because there is a fixed question for the jurors which has to be evaded. And so the assizes fall into the ruck of “real actions.” Now it is not inconceivable that a possessory action should be strictly possessory, although it is not distinguished from proprietary actions by a specially summary procedure. But that this should be so must imply a legal theory of possession and of the reasons for protecting it, fully developed and precisely defined. Such a theory our lawyers of the fourteenth century had not got, and the momentous contrasts in procedure were things of the past. It was easy in Henry II’s time to distinguish the rapid possessory procedure in the king’s court from that proprietary procedure in the feudal courts wherein the tenant after manifold essoins could always wage battle if he pleased. In Edward II’s time, when normally all questions of fact (and no other questions) were tried by a jury, when there was as much pleading in an assize as in any other action, when there were writs of entry which some thought possessory and others proprietary, when there was hardly any “real” action in which damages could not be recovered, no wonder that the theory of the Novel Disseisin was not maintained, no wonder that it refused any longer to protect possession against ownership, or only did so in a spasmodic, capricious, half-hearted way.

Coming a little nearer to our problem, we see that the process which gradually extends the sphere of self-help allowed to the ousted owner begins by permitting him to enter, regardless of lapse of time, upon the person who has himself been guilty of a disseisin. Bracton, we have seen, had apparently inherited a set of ancient positive rules determining the time for reejectment; normally it must be accomplished within four days, but a longer time is allowed to an owner who is absent when the disseisin is committed. But he rationalizes these rules by speaking of patience, negligence and acquiescence. In this there is no harm, even on a very strict theory of possessory remedies, provided acquiescence in the mere physical fact of adverse possession be carefully distinguished from any such acquiescence as will serve to confer or extinguish proprietary rights. But even Bracton himself does not bring this out very clearly; a longa et pacifica seisina protects the possessor against the owner’s self-help; a longa et pacifica seisina bars the owner from his action and acts as a usucapio 1 . The old positive rules being rationalized away, such language becomes very dangerous. The problem then becomes this, What length of seisin will serve to confer a “title de fraunc tenement,” “an estate of freehold.” There is no answer ready; it is a matter for judicial discretion; the judges lean towards the owner; there is no longer a striking contrast between possessory and proprietary procedure to direct their thoughts; they no longer feel, what Bracton felt, that for an owner to take the law into his own hands, to make himself judge in his own cause, is a usurpation of judicial functions, a contempt of court; they no longer feel the force of the phrase, “injuste quia sine judicio.” The notion of acquiescence is an insecure foot-hold, and gradually it slips away. No distinction can be found between the acquiescence which bars entry, and the acquiescence, or rather lapse of time, which bars action. So on the disseisor himself the owner may always enter.

But cannot firm ground be found in the protection of titled possession? Let the owner enter on one who is “in by tort,” but not on one who is “in by title.” It seems that our law was arrested at this spot for a while. But really the ground is not firm. To protect possession as such even against ownership, may be wise; and to protect possession acquired by title and in good faith, may also be wise; but to require title and yet ask nothing as to good faith can hardly serve any useful purpose. Suppose that A has been disseised by B ; we refuse to protect B against A ’s selfhelp. Then B enfeoffs C ; shall we protect C against A , and this without inquiring whether C took the feoffment in good faith? To do so is absurd; for if we do it every disseisor will have a C ready to hand. Had a requirement of good faith been introduced, then indeed a halting-place might have been found. But this could not be done; a psychological investigation was beyond the means, beyond the ideas, of our law. “The thought of man shall not be tried, for the devil himself knoweth not the thought of man.”

Then again reference must be made to a statute. The Novel Disseisin was so convenient a remedy that its scope was enlarged. The statute of Westminster II, as already said, informs us that “there is no writ in the chancery whereby plaintiffs can have so speedy a remedy as by a writ of novel disseisin.” Therefore this writ is to be extended to cases in which as yet it has not lain. If a tenant for years or a guardian aliens in fee, both feoffor and feoffee are to be adjudged disseisors 1 . It seems probable both from the words of the statute and from Bracton’s text that before this act the feoffee was no disseisor, though I know that according to later opinion—at least according to the opinion of some later lawyers—this statute was made “in affirmance of the common law.” But this only means that in course of time the same rule was applied to cases not within the very words of the clause: the feoffee of a tenant at will, or by suffrance, or by elegit, or statute merchant was held to be a disseisor 2 . Such a feoffee therefore was not “in by title.” This must have opened up the question, What then is title? since the mere fact that a person had come to the land by feoffment was inconclusive. For this question there was no easy answer, and we soon find that one who takes a feoffment even from a tenant for life (a person who is seised), is regarded as “party to the tort.” It seems to me that the rule which treated a feoffment in fee made by a tenant for life as a forfeiture was not yet well settled in Bracton’s day, and that as the law of forfeiture grew stricter the position of feoffees grew worse and worse. Then, as may be seen in some of the cases noted at the beginning of this paper, the question arises as to the feoffee of a feoffee. But no logical rest can be found; twenty feoffments may be made in one day, and the last feoffee will be just as guilty as the first. So as a general rule the feoffee has no more protection than the feoffor has; he is unprotected against the owner. The “discontinuances” remain outstanding as exceptional cases. No forfeiture is involved in them; if a husband alienates his wife’s land, this of course cannot be a forfeiture; husband and wife are too much one for that: if an abbot alienates the abbey lands, there is no one who can have any right to take the land from the feoffee so long as that abbot is abbot; as to the tenant in tail, it would have been very difficult to hold that by alienating he forfeited his estate to his own issue. So in these few quite exceptional cases the feoffee comes in without there being any disseisin or any forfeiture; here then the old rule still prevails, he has a seisin of freehold in which the law protects him even against the true owner.

The doctrine of descents cast is another relic. Blackstone seeks to account for the law’s protection of the disseisor’s heir by some ingenious arguments:— (1) the heir comes to the land “by act of law, and not by his own act”; (2) “the heir may not suddenly know the true state of his title”; (3) this rule was “admirably adapted to the military spirit of the feodal tenures, and tended to make the feudatory bold in war; since his children could not by any mere entry of another be dispossessed of the lands whereof he died seised.” Such reasoning as this seems to me conspicuously absent in the Year Books. If Blackstone’s object was to explain the history of the rule and not to find some excuse for retaining it in the eighteenth century, then he asked the wrong question; instead of inquiring “Why is the disseisor’s heir protected?” he should have inquired, “Why is not the disseisor’s feoffee protected; why is not the disseisor himself protected?” It seems to me that English law having once given up the attempt to protect mere possession against ownership, stumbled forward towards the “good sense” (if such it be) of never giving any civil remedy against a person, who being entitled to possession, takes possession. But it knew not well whither it was going. For a long time, for a century and upwards, it had before it a vague idea that though mere possession is not to be protected against the owner, still innocent possession deserves protection. The disseisor’s feoffee loses protection because in very many cases he is party to a forfeiture and a tort. On the other hand the heir enters innocently; death and descent cast are not wrongful acts; there is no fraud in entering upon that of which one’s ancestor dies seised. The law demands innocence; but innocence it judges by rude external standards. To our minds of course the possessor, who of all others is best entitled to favour, is not the heir but “the bonâ-fide purchaser for value” who has honestly but unfortunately bought a bad title. But an inquiry into good faith, a respect for valuable consideration, these do not belong to the law of the fourteenth century, and if we suppose ourselves unable to try the thought of man, then we shall think that the heir’s position is stronger than that of the feoffee. Very probably the latter has been guilty of some tort, very possibly he is but a man of straw behind whom the disseisor himself is lurking; but the heir is presumably innocent, and undoubtedly he comes to the land by “title.” If however we read Littleton’s chapter on “Descents which toll Entries,” we shall hardly fail to observe that the protection which is still given when a descent has been cast is given very grudgingly; every sort of excuse seems accepted for allowing “him that right hath” to enter upon what is his own. The rule which protects the heir looks as if it were being pared to the quick. It has become an isolated anomaly; that it did not disappear altogether may be in great measure due to Littleton’s genius; a man of his ability had it in his power to stereotype the law at an evil moment. Then, as already said, Parliament came to the rescue and the tolling of an entry became an anomaly, and in actual practice a rare anomaly; but it was not until 1833 that the long experiment, the experiment of Henry Fitz Empress, was brought to a formal and final end. Practically for the last three hundred years and more, theoretically as well as practically for the last fifty years and more, we have had no action in which an ejected possessor could recover possession from the owner who ejected him: certainly this is a fact which deserves the consideration of all who are troubled with theories of possession 1 .

THE SUITORS OF THE COUNTY COURT 1

Who were the suitors at the county court? The generally accepted answer is, all the freeholders of the county. But as regards the thirteenth century there seems to be a great deal of evidence that this was not so. The opinion which our documents favour is much rather this: that suit to the county court was not an incident of freehold tenure, but had become a burden on specific lands; and that when the number of free-holders was increased by subinfeudation, the number of suitors was not thereby increased. This vill or this manor or this tract of land which belongs to A , owes suit to the county court; A enfeoffs B , C , and D with pieces of land; the whole vill, manor, or tract still owes the accustomed suit, but it owes no more; by whom this suit shall be done is a matter that A , B , C , and D settle among themselves by the terms of the feoffments. In this respect the burden of suit of court is very like the burden of scutage; the amount of scutage is not increased by the creation of new sub-tenancies, but the ultimate incidence of scutage can be settled by feoffor and feoffee.

The Hundred Rolls of 1279 supply a large stock of illustrations, a few of which shall be given. In Cambridgeshire the greater part of the vill of Bottisham is held of the earl of Gloucester by the priors of Anglesea and Tunbridge; but there are two tenants of the earl’s there who do suit to the hundred and county courts for the whole township: Dominus Simon de Mora tenet unam virgatam there de eodem Comite et facit sectam ad comitatum et hundredum pro Comite et pro tota villata ; Martin son of Eustace holds two virgates on the same terms 1 . The abbot of Ramsey has a manor at Burwell in the same county; the jurors do not know that he does any service for it except two suits to every county court; facit duas sectas comitatus Cantebrigie de comitatu in comitatum . But these two suits are actually done for him by two tenants; J. A. holds a hide and does one suit to the county and to the hundred from month to month for the abbot; B. B. holds ninety acres and does one suit to the county and to the hundred for the abbot 2 . In Croxton in the same county there are two manors; the lord of one does two-thirds of one suit ( duas partes unius secte ) to the hundred and county; the remaining one-third is done by a freehold tenant of the other manor 3 . The suit is thus split into fractions; at Yaxley a tenant owes a half-suit to the county court and an entire suit to the lord’s court ( dimidiam sectam, sectam integram ) 4 . At Isleham again the suit has been partitioned; for half the year it is done by H. H., for the other half of the year by two tenants of his 5 . Indeed in these rolls it is a quite common thing to find some one of the freehold tenants marked out as doing the suit for the manor or the vill 1 ; this is the service or part of the service whereby he “defends” his land against the lord ( defendit duas virgatas terrœ faciendo sectam ad comitatum Huntingdonie et ad hundredum de Normancros pro dicto domino 2 . In Oxfordshire the jurors have a technical name for such a tenant; he is the attornatus feoffatus . At Shifford the abbot of Eynsham has a manor for which he must come twice a year to the hundred court, and he owes suit from three weeks to three weeks by ( per ) William Freeman his enfeoffed attorney and his only freehold tenant 3 . The prior of Deerhurst owes one single suit ( debet unicam sectam ) to the county of Oxford for his manor of Taynton, and this is done for him by J. S. his attorney enfeoffed for this purpose in ancient times ( attornatum suum ad hoc antiquitus feoffatum ) 4 . Many of the Oxfordshire landowners owe suit to the county court but twice a year.

In the monastic cartularies we find the same thing. Thus, at Hemingford, according to the Ramsey Cartulary 5 , Simon Geoffrey’s son holds two virgates for which he “defends” the township at the county and hundred, and when the justices in eyre come round he must appear as reeve ( erit loco prepositi ). At Ellington, John John’s son holds a hide for which he does suit to every third county court 6 ; at Holywell, Aspelon of Holywell does the suit to the county and hundred 7 , at Broughton it has been done by Nicholas Freeman 8 . We can trace John of Ellington from the cartulary to the hundred roll, and still find him doing his “one-third part of one suit” to county and hundred 1 . Turning to the Gloucester Cartulary, we find a charter of feoffment whereby the feoffee is bound to acquit the vill from suit to all courts of the hundred, or of the county or of justices in eyre, and all other suits which pertain to the said vill 2 . At Clifford, R. E. and another freeholder pay no rent, but are bound to do the lord’s suit to the county and hundred; and if by their default the lord be distrained, they must indemnify him 3 . At Northleach is a freeholder who in respect of his land owes suit for the lord to the county court of Gloucestershire and to all the hundred courts of Cirencester, and must remain before the justices in eyre during the whole of their session 4 . A particularly clear case occurs on the Ramsey manor of Cranfield in Bedfordshire: there are four virgates which pay no rent because they defend the whole township from suit to the hundred and county courts—they are virgates quœ sequuntur comitatum et hundredum pro tota villata ; and this is an ancient arrangement, the result of some vetus feoffamentum 5 .

All this seems inconsistent with the notion that every freeholder as such owes suit to the county court. The quantum of suit due from the whole county is regarded as having been once for all fixed at some remote time. Very usually a vill is the unit which owes a full suit. In that case the lord of the vill, if the vill is owned by one lord, is primarily liable to do the suit or get the suit done: usually he has stipulated that it shall be done for him by one of his feoffees—the feoffee, let us say, of a particular virgate. Then as regards the feoffor that virgate is burdened with the suit, and the burden will lie on that virgate into whosesoever hands it may come.

Really when one looks at the Hundred Rolls it is quite impossible to suppose that every freeholder did suit to the county. There are too many free-holders for that. On many manors, it is true, there were hardly any freeholders; this is true in particular of the manors belonging to the religious houses; such houses were as a rule very chary of creating freehold tenancies; they kept but two or three freeholders, one of whom had often been enfeoffed for the special purpose of doing the suit due from the whole manor or township. But on the estates of lay lords there were often many small freeholders. Thus at Bottisham the earl of Gloucester seems to have over forty freeholders. Are they bound to go to the county court month by month? No, two of them do the suit for the whole vill 1 . The plenus comitatus was not a very large assembly.

As regards suit to the hundred court we have some yet clearer information. The view taken by the jurors from whose verdicts the Hundred Rolls were compiled, very distinctly was that suit was a burden upon particular tenements, and that the subdivision of those tenements by the process of subinfeudation ought not to increase the number of suitors. They complain that the earl of Surrey, who owns the hundred court of Gallow, has not observed this rule. There was, for instance, a tenement in South Creake containing 100 acres; it owed a single suit; it has been divided into forty tenements, and forty suits are exacted. Many other examples are given 1 . A similar complaint goes up from the hundred of Humbleyard 2 . So, again, when the tenement becomes divisible among coheiresses, the number of suitors should not be increased; the burden of the suit should lie on the share of the eldest sister. That this rule has been infringed is matter of complaint in the hundred of North Erpingham 3 . So in the Bingham wapentake of Nottinghamshire there are but twelve tenements which owe suit; their holders have been enfeoffed for the purpose, and there ought to be no other suitors 4 . The wapentake of Rushcliffe in the same county has but six suitors, each owes suit in respect of a particular tract of land 5 .

How could this somewhat capricious distribution of the burden, to which the Hundred Rolls bear witness, have been effected? By way of answer to this question we may suppose—this can be but an hypothesis, for evidence fails us—that when Henry I revived and enforced the duty of attending the local courts, that duty was conceived as being incumbent on all freeholders, or rather (and the exception is important) on all freeholders who or whose overlords had no chartered or prescriptive immunity; but that it was also conceived as being, like the taxes of the time, a burden on the land held by those freeholders, so that when the land held by one of them was split up by subinfeudation or partition among heiresses, the number of suits due was not increased. Some such supposition seems to be warranted by the “Leges Henrici Primi,” which after Dr Liebermann’s researches we may ascribe to Henry I’s reign. All the terrarum domini are bound to attend; but if any lord attends by himself or his steward, he thereby acquits his whole demesne 1 . This last passage may very well mean that if he bestows part of his demesne on a feoffee, a single suit will acquit them both. That during the thirteenth century the number of freeholders increased rapidly, there can be no doubt; but an increase in the number of freeholders did not mean an increase in the number of suits due to the county court.

Of course it may be that on special occasions, in particular to meet the justices in eyre, all the freeholders were bound to attend the county court. But it is possible to doubt even this. The words in the writ of summons directing all freeholders to come may well have been understood to mean all freeholders who owed suit. An examination of the amercements for non-attendance and the “essoins of the general summons” found on the eyre rolls might throw some light upon this problem; to a superficial glance they do not seem nearly adequate to support the received opinion. But at any rate it seems plain that the ordinary form of the county court, the plenus comitatus which heard cases and delivered judgments, was not an assembly of all freeholders, but an assembly of those persons who by means of proprietary arrangements between lords and tenants had become bound to do that fixed quantum of suit to which the county court was entitled. It was not an assembly of the king’s tenants in chief, though probably the persons primarily liable were in many or most cases the tenants in chief. On the contrary, the person who does the suit, and who is bound by tenure to do the suit, is sometimes a small socager holding a single virgate. But though it was not an assembly of tenants in chief, it was not an assembly of all freeholders.

It is impossible to speak of this matter without perceiving that there is a big question as to “the county franchise” in the near background. That question we need not now attack; but before it is solved we ought to have a clear opinion as to who were the persons bound to do suit at the county court, and it is here humbly submitted that the received opinion as to this obligation does not harmonise with the evidence. Of course, it is conceivable by us that though all freeholders were not bound to attend the court, still all had a right to attend. But would such a right have been conceivable by a man of the thirteenth century? If we asked him as to the existence of such a right, might he not reply by asking us whether those modern Englishmen who are not bound to pay income tax, enjoy the right of paying it if they please? The right to do what nobody wants to do can hardly be said to exist. It would have been very dangerous for any one to attend the county court unless he was bound to go there, for he would have been creating evidence of a duty to attend; solebat facere sectam, sed modo subtrahit se —this would have been the neighbours’ opinion as to the conduct of an occasional attendant. We may some day have to confess that the original “county franchise” (if we may use that term to describe what those who had it would have regarded as the very negation of a “franchise”), so far from being settled by the simple rule that all freeholders have votes, was really distributed through an intricate network of private charters and prescriptive liabilities.

THE SHALLOWS AND SILENCES OF REAL LIFE 1

In the above title we claim no copyright, and we freely place it at the service of any of our readers who may be on the outlook for a pretty name to give to some volume of pensive musings. “The Shallows and Silences of Real Life,” by the author of “Soul Flakes,” “Seaweed from the Sands of Time,” “The Cosier Corners of a Quiet Pew,” etc., would look well, and should command a sale in serious family circles. But it requires only a slight acquaintance with our classical literature and our current politics to understand that here we mean to speak of county government. Many mean to speak of it before long; we shall be deluged with speeches about it; there will be severe fighting, and like enough, before the end of the session, every one, by virtue of his political profession as Tory or Radical, will be bound to have or suppose that he has very definite opinions about all its pettiest details. While as yet the strife is but beginning, we have still time to cast a quiet look around us, and to inquire in a spirit of truth, what all the fuss that we anticipate is going to be about.

To put the matter briefly, an old form of local government which has served us for five centuries and more, is breaking up, and, to say the least, must undergo a great change which cannot leave even its essential character unaltered. A vital organ of the body politic must be renewed. Hitherto such government as our counties have had, has been government by justices of the peace—government, that is, by country gentlemen, appointed by the Lord Chancellor in the Queen’s name, on the recommendation of the Lord Lieutenant of the county, legally dismissible at a moment’s notice; but practically holding their offices for life. This institution has had a great past, we had almost said a splendid past; but Englishmen, unless they are taught by foreigners, seldom see its greatness, and to talk of splendour might therefore seem absurd. Our historians, even some who write what call themselves “constitutional histories,” are apt to spend all their energies upon describing the flashy episodes of national life, scenes in Parliament, tragedies on Tower Hill, the strife of Whigs and Tories, wars and rumours of wars.

To deal with the vulgar affairs of commonplace counties, to show what the laws made in Parliament, the liberties asserted in Parliament, really meant to the mass of the people, this was beneath their dignity or beyond their industry. To chronicle such exiguous beer (for even of the control over ale-houses there is much to be said) would bring no fame, and would be a very laborious task. Some day it will be otherwise: a history of the eighteenth century which does not place the justice of the peace in the very foreground of the picture, will be known for what it is—a caricature. The excuse for our historians—and of course there is an excuse—is this: that having been brought up to regard the justice of the peace as a perfectly natural phenomenon—natural as the air we breathe—they find nothing to say about this incarnation of the obvious. If there had not been justices, this indeed, as a thing contrary to nature, would have called for explanation, and perhaps regret. We say that some day it will be otherwise, for no doubt there is a great change coming. When it has come and has worked for a while, then to those reared under the new system the historian will have to explain that their fathers lived under a very different system, and one which well deserves retrospective examination, possibly retrospective praise. We think that the praise will come, that it has been deserved by centuries of honest, capable, unostentatious work. The justice is a modest man; he has no constituents, and therefore can afford to be modest; perhaps he seldom knows how important he really is. He has become accustomed also to hear small wit broken over “the great unpaid”; and, doubtless, to be great and yet unpaid is a piece of aristocratic insolence. We ourselves will confess to having referred to two famous justices of Henry IV’s reign, in the hope—a vain hope, we fear—of attracting readers by a title which should recall an excellent piece of good wit. But to have made men merry, this surely is not even yet the unpardonable sin; that from age to age people have been pleased to be pleasant over their governmental institutions is surely not a fact which damns those institutions as unsuitable to the people. A joke is better than a curse, and local rulers have not always gone uncursed in all parts of the world.

Certainly, to any one who has an eye for historic greatness it is a very marvellous institution, this Commission of the Peace, growing so steadily, elaborating itself into ever new forms, providing for ever new wants, expressing ever new ideas, and yet never losing its identity, carrying back our thoughts now to a Yorkist, now to a Lancastrian king, stamped with the sign manual of the Tudor monarchy, telling us of rebellion, restoration, revolution, of peaceful Georgian times, of the days of Bentham and the great reforms. Look where we may, we shall hardly find any other political entity which has had so eventful and yet so perfectly continuous a life. And then it is so purely English, perhaps the most distinctively English part of all our governmental organisation. The small group of country gentlemen appointed to keep the peace, to arrest malefactors, and lead the hue and cry, acquires slowly and by almost insensible degrees the most miscellaneous, multitudinous duties, judicial and administrative, duties which no theorist will classify, for their rich variety is not the outcome of theory, but of experience. And all the while this group shows the most certain sign of healthy life; it can assimilate fresh elements of the most different kinds, and yet never cease to be what it has been. Aristocratic it has been from the first, but never obligarchic; always ready to receive into itself new members who would have the time, the means, the will to do the work, without inquiring into the purity of their pedigrees or their right to coat armour. Our justices have never been a caste, nor the representatives of a caste; there has been nothing feudal, nothing patrimonial in their title; they have represented the State, and yet no one would call them officials. They have adapted themselves to many changes in their environment; they may do so yet once more.

Now, no one doubts that a great change is at hand, that the justices are going to lose some of their most important functions. But that this should be so is not a little strange. Generally, when some great change is at hand in the domain of politics, very strong language is used about the “abuse”—for such it is called—that is to be destroyed. The vials are outpoured, the trumpets are blown, doomsday has at last overtaken the wicked. A terrible indictment is sworn, in which the weakest words are incompetence and corruption, oppression and extravagance. In the present case there has been nothing of the sort; the most zealous advocates of reform have hardly gone beyond a more or less graceful pleasantry.

Shallow, as they call him, is at worst an anomaly, and Silence is obviously an anachronism in this eloquent nineteenth century. It is not asserted that the justices, in administering the affairs of the county, have been corrupt or extravagant. Notoriously the fact is otherwise. For the last half-century we have been trying many experiments in local government: we have had municipal corporations, poor-law boards, boards of health, school boards, all constituted on different principles. The result of these experiments is simply this: that of all known forms of local government, government by justices of the peace is the purest and the cheapest. More than this can be said; it is the form which requires least control on the part of the central Government; this is no slight merit in these days when all are complaining of over-centralisation. The average justice of the peace is a far more capable man than the average alderman, or the average guardian of the poor; consequently he requires much less official supervision. As a governor he is doomed; but there has been no accusation. He is cheap, he is pure, he is capable, but he is doomed; he is to be sacrificed to a theory, on the altar of the spirit of the age.

Let it well be understood that a great change is absolutely necessary. Taken as a whole, our local government is a weltering chaos out of which some decent order has to be got. During the last fifty years boards of ever so many different kinds have been created all over the country; their districts overlap, their powers conflict; they are not much respected, they are not much trusted; their duties are too humble to attract competent men; they have to be bound hand and foot by the orders of a central bureau. Rearrangement and consolidation there must certainly be, and the sooner the better. This work cannot possibly be done without interfering with the powers of the justices; and to increase the powers of the justices no one proposes. If we ask why not, the answer must be that the spirit of the age forbids it. Rightly or wrongly, we have determined to carry the principle of popular election into every department of Government. To regret this would be vain, and the control of the central Government having already been placed in the hands of the great mass of the people, it seems to us distinctly desirable that the control over the local government should be in the same hands.

The wisest advocates of representative government—those who have based their case, not upon natural rights, but upon considerations of national welfare—have laid much stress upon the educational influence of the electoral franchise. Now, if ever the multitude of the newly-enfranchised is to be educated by having votes, it must be by having votes which they can exercise about matters fairly within the range of their intellect and their interests. It is possible, and we hope not treasonable, very seriously to doubt whether the issues of national politics are at the present day within that range. About local affairs the judgment of the average elector is already better worth having, and it would become still more valuable if local affairs were to gain new dignity and importance. As it is, we have begun at the wrong end; we have asked men to have opinions about extremely difficult questions, when they have never had a chance of forming effective opinions about simpler questions. Any way, the education of the electoral body will be a very long affair; but there is no school for it but that which is kept by experience. Perhaps the lesson of the parish should have been learned before the study of the county was begun, and the county should have been mastered before the kingdom was touched. Things have fallen out otherwise. This could hardly have been helped, and the mistake may not yet be irretrievable. By the commission of copious blunders in local business, the governing class may be taught to avoid more disastrous blunders in national business. A highly-privileged governing class we have raised up—a class with ample political rights and few political duties. Duties should be provided for it. In vain we think of old times, when the voter was one who, in countless ways, had to serve his township, his county, his king. We cannot invite our rulers even to take their turn at jury service; they would refuse the invitation; and if they accepted it, there would soon be an end of trial by jury. We trust men to decide the question of Home Rule whom we would not trust to try an action for slander. There seems nothing for it but to give them a sphere of action in which the consequences of their errors should be very obviously manifest. At present there is no such sphere. The various local boards which exist are too obscure; governmental powers have been too much macadamised; responsibility has been scattered about in fragments; not one man in a thousand knows under how many “authorities” he lives.

The situation is critical; it should be faced boldly. If it is so faced there is a chance that out of a great deal of immediate evil some permanent good may come. There will be jobbery and corruption, incompetence and extravagance, very possibly there will be gross injustice. Then will come the cry for ever fresh interferences on the part of the central Government, for more State-appointed inspectors, accountants, auditors; but if the lesson of the past fifty years has really been of any good to us, the cry should be resolutely resisted. The local bodies should be left to flounder and blunder towards better things. A local board under the present pressure of central government is a sorry thing; a body, which, if it is unwise, is futile; which, if it is wise, is governed by its clerk. That pressure should be lightened; there is no good in half trusting men; they should be trusted fully or not at all. The fullest trust, however, does not necessarily imply that the person trusted is wise; it may well mean only that he ought to have an opportunity of showing himself how unwise he is. Give the local “authorities” a large room in which, if they can do no better, they can at least make fools of themselves upon a very considerable and striking scale. Such is the counsel that we are inclined to give, and it is one which should be acceptable to all parties in the State.

For a similar reason it may be hoped that no elaborate attempt will be made at a compromise between the old and the new. If the principle of government by elected representatives is to be extended, it should be extended frankly and courageously, otherwise there will only be fresh irritation and discontent. The hope of securing able and just administrators must now lie, not in the creation of fancy franchises, which at best are fleeting, rickety things, but in the character of the work. It must be made dignified and attractive. If possible, men of the same stamp as those who have hitherto been active at Quarter Sessions should be obtained; but no tinkering of the electoral machinery can assure this result. The old spirit, the spirit which century after century has moved the squires of England to work hard in their counties, doing justice and keeping order, is not yet extinct. Capable men there are, and it will be possible to attract them if the work to which they are called is interesting, important work, and not the mere registering of the orders of the central bureau. If they have patience they will be elected, if elected they will be heard; for even the most ignorant and careless electorate will at times be convinced that the foolishness of fools is folly.

The outlook is certainly gloomy; the darkest cloud has not yet been mentioned. If the justices are deprived of their governmental work, will they care to be justices any longer? This is a momentous question; on the answer to it depends a great deal of the future history of England. Suppose that they abandon the judgment seat; in place of the collegiate body of unpaid justices we shall have the paid professional magistrate, the inevitable “barrister of seven years’ standing.” This will mean more patronage for the Minister, more promotion for politically useful lawyers, and, of course, more expense. But it is not of expense that we would speak. It is indeed very difficult to tell how much of the English respect for law, which (though recent ebullitions may look to the contrary) is still deep-seated, is centred in the amateur justice of the peace. If we have to name the institution which has had most to do with its growth, we should long hesitate between the Commission of the Peace and Trial by Jury. Englishmen have trusted the law; it were hardly too much to say that they have loved the law; but they have not loved and do not love lawyers, and the law that they have loved they did not think of as lawyers’ law. The most learned “barrister of seven years’ standing” will find it hard to get so high a reputation among country folk for speaking with the voice of the law, as that which has been enjoyed by many a country squire whose only juristic attainment was the possession of a clerk who could find the appropriate page in Burn’s Justice .

This reputation depended in part on the fact that the squire was the squire, and respect for the squire as such is certainly disappearing; but it depended also on the fact that the squire was no trained lawyer, that his law was very simple, that his words were few and plain, and went straight to the point. Of course we can all, when occasion serves, make merry over justices’ justice; but if we look at the history of this justice as a whole, we see that it has been marvellously, paradoxically successful. Even at the present day, if the honest people who come in contact with magistrates (the votes of the criminal class we are not at pains to collect) had their choice between lawyers’ law and justices’ justice, we should find that the coarser article had many humble admirers. At any rate, it should be understood that the future of the amateur magistracy is very doubtful. Hitherto the dreary task of hearing petty charges has been varied and enlivened by very miscellaneous business of a more or less governmental kind. Whether many men will care to be mere police magistrates, and get no pay for the work, is certainly open to question. Time after time the country gentlemen have risen to the occasion; they may do so yet once more.

But the severance of administrative from judicial work must have very serious consequences. It is curious that some political theorists should have seen their favourite ideal, a complete separation of administration from judicature, realised in England; in England of all places in the world, where the two have for ages been inextricably blended. The mistake comes of looking just at the surface and the showy parts of the constitution. The work of separating what have never been conceived as separate will be hard enough; but suppose it done, shall we be the gainers? Hitherto all the business of granting licenses, and the like, has been transacted by men trained in judicial work, men seated on a bench, men holding sessions, men who on the same day would like enough have to try a vagabond, or to consider whether there was sufficient reason for sending a prisoner to trial for murder. We puzzle foreigners by our lax use of the word “jurisdiction,” and it is remarkable enough. Whatever the justice has had to do has soon become the exercise of a jurisdiction; whether he was refusing a license or sentencing a thief, this was an exercise of jurisdiction, an application of the law to a particular case. Even if a discretionary power was allowed him, it was none the less to be exercised with “a judicial discretion”; it was not expected of him that he should have any “policy”; rather it was expected of him that he should not have any “policy.” And now all this is likely to be otherwise. A board will take the place of the bench; a policy voted about by constituents will take the place of law. All will be very neat and pretty, and explicable by first principles; the administrative work will be performed by the elected representatives of those whose interests are concerned; for the judicial work there will be the barrister of seven years’ standing. The amphibious old justice who did administrative work under judicial forms, will be regarded as inadequately differentiated to meet the wants of a highly evolved society. But unless our reformers go very wisely to work, they will sacrifice the substance of just government to mere theoretic elegance. Much is at stake, no less than the general trust of the people in law and government. What first and foremost is wanted in local government, is not administrative ability, but plain justice; whether we shall get this out of boards elected to echo party cries, to represent policies, remains to be seen. Our best hope must be that such men as those who have hitherto done work of every kind under the name of justices, will still do that work, and more also, partly under the name of justices, partly under some other name. Unless the services of such men can be obtained, the present year will be a mournful year in English history. On the other hand, if the present Ministry and the present Parliament can meet and conquer the very serious difficulties of the case, we shall place to their credit one of the greatest legislative exploits of the century.

WHY THE HISTORY OF ENGLISH LAW IS NOT WRITTEN 1

Though I am speaking for the first time in a new character, though I have before me the difficult task of trying to fill the place of one who was honoured by all who knew him and loved by all who knew him well, I yet have not the disadvantage—or should I say advantage?—of coming as a stranger to the Cambridge Law School. At any rate I mean to excuse myself on this occasion from any survey of the whole of the vast subject that has been committed to my care; rather I will make a few remarks about one particular branch of study, a branch that is very interesting to me, though I hope that I shall never overrate its importance. And if I have to say that it is not flourishing quite as it ought to flourish, believe me that this is said very modestly.

Our patience of centennial celebrations has been somewhat severely tasked this year, nevertheless it may be allowed me to remind you that next year will see the seven-hundredth birthday of English legal memory. The doctrine that our memory goes back to the coronation of Richard I and no further is of course a highly technical doctrine, the outcome of a statute of limitation, capricious as all such statutes must be; still in a certain sense it is curiously true. If we must fix a date at which English law becomes articulate, begins to speak to us clearly and continuously, the 3rd of September 1189 is perhaps the best date that we can choose. The writer whom we call Glanvill had just finished the first text-book that would become a permanent classic for English lawyers; some clerk was just going to write the earliest plea-roll that would come to our hands; in a superb series of such rolls law was beginning to have a continuous written memory, a memory that we can still take in our hands and handle. I would not for one moment speak slightingly of the memorials of an earlier time, only I would lay stress on the fact that before the end of the twelfth century our law is becoming very clear and well attested. When another century has gone by and we are in Edward I’s reign the materials for legal history, materials of the most authoritative and authentic kind, are already an overwhelming mass; perhaps no one man will ever read them all. 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.

Our neighbours on the continent are not so fortunate as we are. True that for some very early ages they have fuller memorials than we can show; but already in the eleventh century Domesday Book stands out in its unique grandeur, and when our rolls of the King’s Court begin in Richard’s day, when our manorial rolls begin in Henry III’s or John’s, and our Year Books in Edward I’s, then we become the nation whose law may be intimately known. Owing to the very early centralization of justice in this conquered country we acquired, owing to our subsequent good fortune we have preserved, a series of records which for continuity, catholicity, minute detail and authoritative value has—I believe that we may safely say it—no equal, no rival, in the world. 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 have said that our neighbours are less fortunate than we are; but perhaps that is not so, for hoarded wealth yields no interest. Of what has been done for the history of Roman law it is needless to speak; every shred of evidence seems to have been crushed and thrashed and forced to give up its meaning and perhaps somewhat more than its meaning. 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. A Romanist may be able to say about some historical problem—I know all the firsthand evidence that there is, nay, I know it by heart; the truthful English historian will have to confess that he has but flitted over the surface. On the other hand, if we compare the task of writing English legal history with that which French and German historians have before them, there is a fact which goes far to outbalance any disadvantage occasioned by the heavy weight of our materials. The early centralization of justice gives to our history a wonderful unity; we have not to compare the customs of divers provinces, or the jurisprudences of rival schools; our system is a single system and revolves round Westminster Hall.

Well, I am afraid that it must be allowed that Englishmen have not done all that might have been expected of them by those who do not know them well. I believe that no attempt has ever been made to write the history of English law as a whole. The praiseworthy work of Reeves on the law of the later middle ages was done at a dark time and is long out of date. In some particular departments very excellent work has been done; the constitutional law of the middle ages has been fully explored; the same may be said of the constitutional law of later days if we give to “constitutional” a narrow meaning, and much has been done for criminal law and real property law. But there are vast provinces which lie unreclaimed, not outlying provinces but the very heart of the country. For instance, take the forms of action, the core of English law; a history of them ought to be a most interesting book, dealing as it would have to deal with the evolution of the great elementary conceptions, ownership, possession, contract, tort and the like. Perhaps there are countries in which the writing of historical monographs has become a nuisance; but surely it is better to have too many than none at all. And then again, look at the state of the raw material, look at the hopeless mass of corruption that passes as a text of the Year Books, then look at Mr Pike’s volumes and see what might be done. Then think of the tons of unprinted plea rolls. It is impossible to print them all; but think what ten men might do in ten years, by selecting, copying, indexing, digesting; the gain would be enormous, not merely for the history of English law, but for the history of law in general. There is so much to be done that one hardly knows where to begin. He who would write a general history thinks perhaps that his path should be smoothed by monographs; he who would write a monograph has not the leisure to win his raw material from manuscripts; but then only by efforts at writing a general history will men be persuaded that monographs are wanted, or be brought to spend their time in working at the rolls. And so we go round in a vicious circle.

There is I think some danger lest the history of English law should be better known and better taught in other countries than in England. As regards the very oldest periods, “the time beyond memory,” this is no longer a danger but an accomplished fact. It gives us no surprise when we hear that a new edition of our oldest laws will be published by the Bavarian Academy; who else should publish the stupid things? And the process of annexation is being pushed further and further. Foreigners know that the history of our law has a peculiar interest. I am not speaking merely of political matters, but of our private law, law of procedure, criminal law; a great part of the best work that has been done has not been done by Englishmen. Of what has been done in America we will say nothing, for in this context we cannot treat the Americans as foreigners; our law is their law; at times we can even be cosmopolitan enough to regret an arrangement of the universe which has placed our records in one hemisphere and those who would make the best use of them in another. And all foreigners are welcome, Frenchmen and Germans and Russians; there is room enough and to spare; still we are the children of the kingdom and I do not see why we should cast ourselves out. But we are such a humble nation, we are. It is easy to persuade us that the early history of Roman law is interesting. To know all about the Roman formulary system, that is juristic science; to know anything about our own formulary system, which we only abolished the other day, that would be barbarian pedantry. But foreigners do not take this view.

A good deal, as it seems to me, depends upon our asserting our right, though it be no exclusive right. Think for a moment what lies concealed within the hard rind of legal history. Legal documents, documents of the most technical kind, are the best, often the only evidence that we have for social and economic history, for the history of morality, for the history of practical religion. Take a broad subject—the condition of the great mass of Englishmen in the later middle ages, the condition of the villagers. That might be pictured for us in all truthful detail; its political, social, economic, moral aspects might all be brought out; every tendency of progress or degradation might be traced; our supply of evidence is inexhaustible: but no one will extract its meaning who has not the patience to master an extremely formal system of pleading and procedure, who is not familiar with a whole scheme of actions with repulsive names. There are large and fertile tracts of history which the historian as a rule has to avoid because they are too legal.

It need hardly be added that the science of comparative jurisprudence “if it ever exists” will involve the most elaborate study of particular systems of law, and among others assuredly of that system which has the most unbroken record. “If it ever exists”:—I have used the cautious phrase used thirteen years ago by our Rede Lecturer, Sir Henry Maine. Of the great man who when that science exists will be honoured as its prophet, and its herald, of the great man whom we have lost, may I say this?—His wonderful modesty, his dislike of all that looked like parade or pedantry, the fascination of his beautiful style are apt to conceal the width and depth of his reading. He was much more than learned, but then he was learned, very learned in law of all sorts and kinds. It is only through learning wide and deep, tough and technical, that we can safely approach those world-wide questions that he raised or criticize the answers that he found for them. 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. In 1850 when my predecessor Professor Amos came to the chair, the class of English law in this University consisted of one M.A., one B.A. and two undergraduates. At another time it may be interesting to account for this, to observe the formation of law schools in London while the Universities are teaching to ever fewer students a kind of law, Roman and Canon Law, which is not the law of the King’s Courts, and becomes of ever less and less importance to the bulk of Englishmen. This process had momentous results and, all things considered, we cannot regret them. If the Universities had taught English law, English law would sooner or later have ceased to be English. But as it was, the education of the English lawyer—I speak of the later middle ages and of the Tudor time—was not academic; it was scholastic. It would be a great mistake to suppose that the lawyers of that age got their law in the haphazard hand-to-mouth fashion that is familiar to us under the name of “reading in chambers.” They went through an elaborate scholastic course which if not severe was at least prolonged—ten or twelve years of “readings,” “mootings” and “boltings,” of hearing and giving lectures, and the path of scholastic success was the path to profit and to place. The law which this school evolved stood us in good stead: it was the bridge which carried us safely from medieval to modern times and we will speak well of it. But one thing it could not do, it could not possibly produce its own historian. 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. It 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.

The one great law book of the last century may serve to illustrate two points, though I have some hesitation about mentioning the first of them. Blackstone’s work was the firstfruits of a professorship of law; in the presence of that book every professor of law will always feel very small, but there it stands the imperishable monument of what may be done by obliging a lawyer to teach law. But in the second place let us take one of Blackstone’s greatest exploits, his statement of our land-law and of its history. Every one now-a-days can pick holes in “the feudal system” and some great writers can hardly mention it without loss of temper. But the theory of a feudal system it was that enabled Blackstone to paint his great picture, a picture incomplete and with many faults in it, but the first picture ever painted. Whence did he get the theory which made this possible? From Coke? Coke had no such theory and because he had none was utterly unable to give any connected account of the law that he knew so well. No, the feudal system was a very early essay in comparative jurisprudence, and the man who had the chief part in introducing the feudal system into England was Henry Spelman. It was the idea of a law common to all the countries of Western Europe that enabled Blackstone to achieve the task of stating English law in a rational fashion. And so it will be found during the length of our national life; an isolated system cannot explain itself, still less explain its history. When great work has been done some fertilizing germ has been wafted from abroad; now it may be the influence of Azo and now of the Lombard feudists, now of Savigny and now of Brunner. 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. 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; a little knowledge of them would send us to our Year Books with new vigour and new intelligence.

In the second place it may seem a paradox, but I think it true, that the earlier ages of English law are so little studied because all English lawyers are expected to know something about them. In his first text-book the student is solemnly warned that he must know the law as it stood in Edward I’s day, and unfortunately it is quite impossible to write the simplest book about our land-law without speaking of the De Donis and the Quia Emptores . 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. A lawyer finds on his table a case about rights of common which sends him to the Statute of Merton. But is it really the law of 1236 that he wants to know? No, it is the ultimate result of the interpretations set on the statute by the judges of twenty generations. 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. This when stated is obvious; but often we conceal it from ourselves under some phrase about “the common law.” It is possible to find in modern books comparisons between what Bracton says and what Coke says about the law as it stood before the statutes of Edward I, and the writer of course tells us that Coke’s is “the better opinion.” Now if we want to know the common law of our own day Coke’s authority is higher than Bracton’s and Coke’s own doctrines yield easily to modern decisions. But if we are really looking for the law of Henry III’s reign, Bracton’s lightest word is infinitely more valuable than all the tomes of Coke. A mixture of legal dogma and legal history is in general an unsatisfactory compound. I do not say that there are not judgments and text-books which have achieved the difficult task of combining the results of deep historical research with luminous and accurate exposition of existing law—neither confounding the dogma nor perverting the history; but the task is difficult. 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.

Macaulay in an amusing passage, amusing because it comes from him, has told us how “the historical literature of England has suffered grievously from a circumstance which has not a little contributed to her prosperity. . . . A Frenchman,” he says, “is not now compelled by any strong interest either to exaggerate or to underrate the power of the kings of the house of Valois.. . . . The gulph of a great revolution completely separates the new from the old system. No such chasm divides the existence of the English nation into two distinct parts. . . . With us the precedents of the middle ages are still valid precedents and are still cited on the gravest occasions by the most eminent statesmen. . . . In our country the dearest interests of parties have frequently been staked on the researches of antiquaries. The inevitable consequence was that our antiquaries conducted their researches in the spirit of partisans.” 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. 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. I do not ask for “the gulph of a great revolution”; but it is to the interest of the middle ages themselves that they be not brought into court any more.

Are we to say then that the study of modern law and the study of legal history have nothing to do with each other? That would be an exaggeration; but it is true and happily true that a man may be an excellent lawyer and know little of the remoter parts of history. We can not even say that every sound lawyer will find an interest in them; many will; some will not. 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. Of course he must work forwards as well as backwards; the stream must be traced downwards as well as upwards; but the lower reaches are already mapped and by studying the best maps of them he will learn where to look for the sources. Again I do not think that an Englishman will often have the patience to study medieval procedure and conveyancing unless he has had to study modern procedure and modern conveyancing and to study them professionally.

This brings us to the heart of the matter. The only persons in this country who possess very fully one of the great requisites for the work are as a rule very unlikely to attempt it. They are lawyers with abundant practice or hopes of abundant practice; if they have the taste they have not the time, the ample leisure, that is necessary for historical research.

What then can the Universities do? Pardon me if I say that I do not answer this question very cheerfully. In the first place, the object of a law school must be to teach law, and this is not quite the same thing as teaching the history of law. We should not wish to see a professor of law breaking and entering the close of the professor of history, though the result of our scheme of Triposes may be that legal history falls to the ground between two schools. Secondly, I believe that any one who aspires to study legal history should begin by studying modern law. 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; many other things he should do, but these should not be left undone. Thirdly, the time that we have at our command is exceedingly short. We can not reckon that an undergraduate will give so much as two years to English law, and what he can learn in two years is not very much, regard being had to the enormous scope of our modern law. Fourthly, our students are many and teachers are few. Thus I have come to the conclusion, reluctantly for I have had my dreams, that in the ordinary teaching of our law school there is very little room for history, hardly any for remote history. At the same time every effort should be made which can possibly have the result of inducing a few students, those who will have taste and leisure for the work, to turn their thoughts towards the great neglected subject. They might at least learn to know where the evidence lies. May I mention my own case? I had not the advantage of studying law at Cambridge, otherwise perhaps I should not have been a barrister of seven years’ standing before I had any idea of the whereabouts of the first-hand evidence for the law of the middle ages. It were to be wished that we had more prizes like the Yorke prize; already it has done more for the cause than any Tripos could do. It were to be wished that our doctor’s degree had all along been reserved for those who had done some considerable thing for law or legal history:—but then what could we have done for potentates and politicians and such? Impossible to convict them of divinity or medicine, it was convenient to fall back on the legal principle that every one must be taken to know the law sufficiently well to be a doctor thereof.

Where then lies our trust? Perhaps in failure. Failure is not a pleasant word to use in the presence of youth and hope; it would be pleasanter to wish all our law students success in their chosen profession. But let us look facts in the face. Only a few of the men who choose that profession succeed in it: the qualities which make a man a great lawyer are rare and the space on the wool-sack is strictly limited. The Cambridge law student should be prepared for either fortune. The day may come when in the bitterness of his soul he will confess that he is not going to succeed, when he is weary of waiting for that solicitor who never comes, when the prolonged and costly education seems thrown away. That is the hopeful moment; that is the moment when something that has been said here may bear its fruit. 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. To be frank with him, this is probable; great historians are at least as rare as great lawyers. But short of the very greatest work, there is good work to be done of many sorts and kinds, large provinces to be reclaimed from the waste, to be settled and cultivated for the use of man. Let him at least know that within a quarter of a mile of the chambers in which he sits lies the most glorious store of material for legal history that has ever been collected in one place, and it is free to all like the air and the sunlight. At least he can copy, at least he can arrange, digest, make serviceable. Not a very splendid occupation and we can not promise him much money or much fame—though let it be confessed that such humble work has before now been extravagantly rewarded. He may find his reward in the work itself:—one can not promise him even that; but the work ought to be done and the great man when he comes may fling a foot-note of gratitude to those who have smoothed his way, who have saved his eyes and his time.

At the end of this long and dismal discourse let me tell a story. It is said that long ago a certain professor of English law was also the chief justice of an ancient episcopal franchise. It is said that one of his rulings was cited in the court presided over by a chief justice of a more august kind, the Lord Chief Justice of England. “Did he rule that?” said my lord, “why he is only fit to rule a copy-book.” Well, I will not say that this pedagogic function is all that should be expected of a professor of law; but still copy-books there ought to be and I would gladly spend much time in ruling them, if I thought that they were to be filled to the greater glory of the history of English law.