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IV. OUTLINE OF THE PROGRESS OF LEGAL CHANGES IN ENGLAND.

Let us now turn to England and see what have been the forces that have from time to time brought about and guided the march of legal change, and what have been the relations of that change to the general history of the country.

As with Rome we began at the moment when the ancient customs were first committed to writing and embodied in a comprehensive statute, so in England it is convenient to begin at the epoch when the establishment of the King's Courts enabled the judges to set about creating out of the mass of local customs a body of precedents which gave to those customs definiteness, consistency and uniformity. Justice, fixed and unswerving justice, was in the earlier Middle Ages the chief need of the world, in England as in all mediaeval countries; and the anarchy of Stephen's reign had disposed men to welcome a strong government, and to acquiesce in stretches of royal power that would otherwise have. been distasteful. Henry II was a man of great force of character and untiring energy, nor was he wanting in the talent for selecting capable officials. He had to struggle, not only against the disintegrating tendencies of feudalism, but also against the pretensions of the churchmen, who claimed exemption from his jurisdiction, and maintained courts which were in some directions formidable rivals to his own. He prevailed in both contests, though it was not till long after that the victory was seen to have remained with the Crown. It was his fortune to live at a time when the study of law, revived in the schools of Italy, had made its way to England, where it was pursued with a zeal which soon told upon the practice of the Courts, sharpening men's wits and providing for them an arsenal of legal weapons. It is true that the law taught at the Universities was the Roman law, and that the practitioners were

almost entirely ecclesiastics. Now the barons, however jealous they might be of the Crown, were not less jealous of ecclesiastical encroachments and of the imperial law. They could not prevent judges from drawing on the treasures which the jurists of ancient Rome had accumulated, but they did prevent the Roman law from becoming recognized as authoritative; so that whatever it contributed to the law of England came in an English guise, and served rather to supplement than to supersede the old customs of the kingdom.

In this memorable epoch, which stamped upon the common law of England a character it has never lost, the impulse which the work of law-making received came primarily from the political circumstances of the time, that is, from the desire of the king to make his power as the receiver of taxes and the fountain of justice effective through his judges, and from the sense in all classes that the constant activity of the Courts in reducing the tangle of customs to order, no less than the occasional activity of the king when he enacted with the advice and consent of his Great Council statutes such as the Constitutions of Clarendon, was a beneficial activity, wholesome to the nation. But though political causes were the main forces at work, much must also be allowed to the influence of ideas, and particularly to the intellectual stimulus and the legal training which the study of Roman jurisprudence had given to the educated men who surrounded and worked for the king and the bishops.

The development of English institutions has been at all times so slow and so comparatively steady that it is not easy to fix upon particular epochs as those most conspicuously marked by change. However I take the epoch of Edward I and Edward III. Under Edward I, whose reign was one of comparative domestic tranquillity, the organ of government whose supreme legislative authority was to become unquestioned took its final

shape in passing from a Great Council of magnates to an Assembly consisting of two Houses, in one of which the chief tenants of the Crown sat, while the other was composed of representatives of the minor tenants and of boroughs. Under his grandson the chief judicial Minister of the Crown began to sit as a Court, granting redress in the name of the Crown in cases or by methods which the pre-existing Courts were unable or unwilling to deal with. Parliament passed under Edward I some statutes of the first magnitude, such as Quia Emptores and De Donis Conditionalibus, which impressed a peculiar character on the English land system, and introduced some valuable improvements in the sphere of private rights and remedies. But the legislature was, for two or three centuries, in the main content to leave the building up of the law to the old Common Law Courts and (in later days) to the Chancellor. The action of this last-named officer was, during the fifteenth, sixteenth and seventeenth centuries, of capital importance, so that the establishment of his jurisdiction is one of the landmarks of our legal history. It was really a renewal, two hundred years after Henry II's time, of that king's efforts to secure the due administration of justice through the realm, but it grew up naturally and spontaneously, with less of conscious purpose than Henry II had shown. Both the legislature and the Chancellor were the outcome of political causes, but it must not be forgotten that in the methods taken by the Chancellor (hardly reduced to a system till the seventeenth century) we find the working of a foreign influence which thereafter disappears from English law, that, namely, of the civil and canon laws of Rome and of the Roman Church, for the Chancellors of the fourteenth and fifteenth centuries were all ecclesiastics and drew largely from Roman

sources.

The days of the Reformation bring two new and powerful influences to bear upon laws and institutions. One of these influences is economic, the other religious.

The growth of industry and trade had so far disintegrated the old structure of society and brought about new conditions that not a few new laws, among which the most familiar and significant are the Statute of Uses and the Statute of Wills, were now needed. The nation was passing out of the stiffness of a society based on landholding and recognizing serfdom into a larger and freer life. At the same time the religious revolution which severed it from Rome, which was accompanied by the dissolution of the monasteries, and which ended by securing the ascendency of a new body of theological ideas and of simpler forms of worship, involved many legal changes. The ecclesiastical courts were shorn of most of their powers, and the law they administered was cut off from the influences that had theretofore moulded and dominated it. The position of the clergy was altered. New provisions for the poor soon began to be called for. New tendencies, the result of a bolder spirit of inquiry, made themselves felt in legislation. One sees them stirring in the mind of Sir Thomas More. It was some time before the religious and economic changes, took their full effect upon the law. But nearly all the remarkable developments that make the time of Henry VIII and Elizabeth an epoch of legal change, may be traced not so much to politics as to the joint influence of commerce (including the growth of personal, as distinguished from real, property) and of theology. Even the oceanic power and territorial expansion of England, which began with the voyages of Drake and the foundation of the Virginia Company and of the East India Company, did not affect either the law or the institutions of the country. The establishment of distant settlements was largely the result of the growing force of commercial enterprise, in which there was at first very little of political ambition, though it cordially lent itself to a political antagonism first to Spain and then to France.

With the time of the Great Civil War we return to

an era in which, though religion and commerce continue to be potent forces, the first place must again be assigned to political causes. The struggle which overthrew the old monarchy effected two things. It extinguished the claims of the Crown to a concurrent legislative or quasi-legislative power. The two Houses of Parliament were established as an engine for effecting legal changes, prompt in action and irresistible in strength1. Towards this England had long been slowly tending, as during a century before Augustus Rome slowly tended to a monarchy. The work was completed at the Boyne and Aughrim, but the decisive blow was struck at Naseby. And, secondly, it occasioned the accomplishment of several broad and sweeping reforms in institutions as well as in law proper. A Parliamentary Union of England, Scotland and Ireland was effected which, though annulled by the Restoration, was a significant anticipation of what the following century was to bring. The old system of feudal tenure and the relics of feudal finance were abolished. New provisions were made, and old ones confirmed and extended, for the protection of the freedom of the subject in person and estate. Commercial transactions were regulated, perhaps embarrassed, by a famous enactment (the Statute of Frauds) regarding the evidence required to prove a contract. Such of these things as lay outside the purely political sphere were due partly to the development of industry and commerce, which had gone on apace during the reign of James I, and was resumed during the government of Cromwell and Charles II, partly to that sense which political revolutions bring with them, that the time has come for using the impulse of liberated forces to effect forthwith changes which had for a long time before been in the air. On a still larger scale, it was the Revolution and Empire in France that led to

1 As Milton says:—

And that two-handed engine at the door

Stands ready to strike once and strike no more.'

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