Common law. The Giants and the Gods 2

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Common law. The Giants and the Gods 2

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From Sir Frederick Pollock, The Genius of the Common Law [1912]

Such were the strange guardians among whom our lady the Common law was born and cradled. For they were true guardians in their day. Caprice, even well meant and at times, as it might chance, well doing caprice, had to be kept at arm’s length at all costs. Better even bad rules than a rule which is not of law. It was a great and a true word that Jhering spoke when he said: ‘Form is the sworn foe of caprice, she is Freedom’s twin sister.’1 The giants of the prime are stark and grim figures in our sight, yet their force cleared a way for the Gods through chaos, and without them the Gods would never have come to Valhalla. But the guardians became tyrants when, in a community growing civilized, the judicial results of a semi-magical ritual ceased to be tolerable, and the so-called judgments of God were openly deemed unjust alike by men of war and by men of religion. Their ways could not be mended; they must be broken, and a new body must be fashioned for the justice which in its old embodiment was too visibly blind even in the eyes of twelfth century suitors. The masters who were no longer protectors but oppressors must be fought with and overthrown if the law were to be made an organ of living righteousness. Truly the spirit of our infant laws had need of a mighty champion. It was written of the Church that kings should be her nursing fathers. No less truly might it be said of the Common law . The king’s overriding power, a power both to devise and to execute, was the only one strong enough for the work. Royal inquests, royal precepts and decisions, ingenuity of royal officers at least as eager to bring fees into the king’s coffers and enhance the reputation of the king’s court as to procure ease and satisfaction to suitors, were the means, not precisely of abolishing the inflexible and cumbrous old procedure – we had not formally begun to abolish anything – but of relegating it to an obscurity where it was speedily forgotten, and so completely forgotten too that professed antiquarian lawyers could, almost down to our own time, believe trial by jury to be immemorial. Indeed, we should be speaking almost literal truth if we said that our lady the Common Law never had much trouble with the forms of archaic proof. By the time she had got to serious work they were hardly more dangerous than Giant Pagan. Proof by oath lingered through the Middle Ages, and much later, in the wager of law, but in so many ways hampered and discouraged that it is already something of a curiosity in the sixteenth century. Monsters of this brood are, at a modern lawyer’s first sight, clumsy lubber fiends from whom there is not even the sport of a good fight to be had. The real danger was more insidious. The ancient rigid formalism was dead but not exorcised, and the ghost of it walked, in some jurisdictions it still walks, disguising itself under more or less plausible reasons of logic or expediency. Without letting ourselves be too much entangled in the maze of technical details, let us now see how this came about.

Whatever we may think of the king’s new justice, as it stood between six and seven centuries ago, comparing it with all that we have learnt and accomplished since, there is no doubt that it was immensely more rational than the prehistoric methods it supplanted, or that its rapid success was due to its merits. The king did not want to make it cheap; it had to support itself and be a source of revenue. It was not to be had at all times or at all places; the commissioners of assize carried it round the country , but at considerable intervals. As for the older visitations of itinerant justices, the justices in eyre as they were called, they were quite as much bent on collecting fines, and discovering the irregularities which bred them, as on improving the administration of the law. Their appearance was certainly not welcome in the latter days of the thirteenth century, if it ever had been; and in the course of the fourteenth century the cumbrous machinery of the eyre was wholly superseded by the more convenient jurisdiction of the justices of assize. Otherwise no special pains were taken to make the king’s courts easy of access or attractive, though there are indications that the king’s judges had the deliberate purpose of keeping the old popular courts in a lower place. When we speak of their jurisdiction and methods as supplanting those of the county court, it must not be understood that the process was sudden, or was ever logically completed. Our lady the Common Law is not like a tidy French housewife whose broom sweeps out all the corners; one doubts whether she ever will be. Remnants of archaism, wager of law and such like, hung about the older forms of action. Still the characteristic merits of the king’s justice were great, and its own. So far as it had a free hand, it did not charge men with crimes on suspicion and drive them to clear themselves, if they could, by absurd and precarious tests. It did not decide civil controversies by counting oaths or by competition in exact knowledge of verbal formulas. It did make some serious attempt at ascertaining facts and applying intelligible rules of law to the facts of which the Court was possessed by admission or proof. Pleading in civil actions, down to the fourteenth century, was already a game of skill, but it was played by living discussion before the judges, who acted as moderators and directors. It ended, not in a judgment, but in a preliminary settlement of the points at issue. To understand the necessary limitations and the real merit of the system, we must remember that the king’s Court did not profess to have universal jurisdiction. It provided certain remedies in certain cases in which the king thought worthy of his interference. The plaintiff had to show the Court how the facts he alleged brought him within some species of justice it professed to do. He could not tell his story at large and leave the Court to find, with or without the aid of Advocacy , what law was applicable. A dialectic process of some kind was necessary to fix the point for adjudication, and to guide the future practice of the professional counsellors who were now becoming the servants of the law. This creative dialectic, working on a still fresh and plastic material, is what we find in the earlier Year Books; not official or formal records (as we now know, thanks to Maitland, and as at least one American scholar suspected before), but notes of young lawyers keen on Learning their business, and eager to make sure how far they could venture to be ingenious without rashness. They cared very little who the parties were, and less about the end of the case. Good pleading was their ambition; the art which commanded the approval of the Court and the confidence of clients, and might lead them one day to be serjeants themselves, canvassing points familiarly with the judges, and bring a fortunate few of them even to the Bench. When the semi-official talking in any cause in the Common Pleas was done, the students knew pretty well what was sound pleading in the general opinion of the judges and serjeants. To be sure, some counsel were more obstinate in their own views than others. In the very latest days of oral pleading counsel might say to the Court, thinking his adversary had not the courage of his invention: Surely he will never dare to put that on the record! But in this case the Court promptly said it was well enough, and enrolled it on the spot.1 What goes on the record after discussion is understood to be informally passed as good. Only the graver doubts are set down as matter for solemn decision. Then we have meetings of all the judges at which they argue with counsel and with one another, take new points, throw out hints and warnings for the benefit of juniors, with all the zest of their earlier days in the profession. It was a highly technical affair, no doubt. Medieval lawyers and probably medieval laymen would have been shocked at the suggestion that it could be anything else. But the system was very far from being a hide-bound formalism. It was spoilt by abuse of its own power of free and varied development.

Technical dialectic is an excellent servant; the lay people may talk as they please, after their own ‘talent’ as The Year Books say, but every lawyer who has sat on committees knows that untrained amateur pedantry can be both more absurd and more unjust than any professional bias. Nevertheless good servants often want to be masters, and make very bad masters when they get their way. So it happened with common-law pleading and procedure. The mischief cannot be ascribed in any great measure to the partial survivals of extreme archaism. Those curiosities, as they occur in relatively modern law-books, have received quite as much attention as they deserve for any purpose except that of pure archæology. Various devices kept them within bounds which made them practically harmless. It is true that this was not done without paying a price for it, but that is not the subject immediately before us. On the whole, what little was left of the genuine ancient formalism caused less inconvenience than might have been expected. But the old spirit of it was scotched, not killed, and the ghost fell to work, with only too much success, to effect a lodgment in the new body. John Bunyan made a pretty bad mistake when he represented Giant Pope as decrepit; if he could have looked outside England he would have seen the counterreformation making its conquests. Probably Henry of Bratton, perhaps even Glanvill or the learned clerk who wrote under the shield of his name, was sanguine enough to hope that no man would dare to make new rubbish-heaps where once the king’s broom had swept. If so, they were mistaken in the same sort. The new material itself was attacked by a parasitic growth of later medieval exuberance. Form for form’s sake had been a stern mistress; the demon of subtilty for subtilty’s sake was an alluring siren. Her charms might not allure us very much; they were fatal to scholars whose intellectual habits were in many ways like those of a clever schoolboy. The tendency to useless refinement is apparent even during the time of oral pleading; but the fatal step was the change from open discussion in Court to the delivery of written pleadings between the parties without any judicial control. Future editors of the later Year Books will probably be able to clear up various details. The main points of the story, however, have long been well known.1 Inasmuch as this newer formalism was not honestly archaic but must rather be classed, from an artist’s point of view, as a product of flamboyant archaistic decadence, we need not feel bound to treat it with any respect.

[1 ]Kemble, Cod. Dipl. DCCLV; Essays in Anglo-Saxon Law, p. 365.

[1 ]Brunner, D. R. G. ii. 433, and Forschungen zur Gesch. des deutschen u. franzos Rechts, 385, 386. In some French custumals rules of this kind are recorded as still in force, with only slight relaxations, in the late fifteenth century, as appears from the passage last cited.

[1 ]The well known case of Ashford v. Thornton, see Stephen, Hist. Cr. Law, i. 249. It is perhaps a superfluous precaution to remind the reader that there was no battle; the appellant hoped to persuade the court that the case was so clear against the appellee as to deprive him of the right to ‘defend the same with his body.’

[2 ]Neilson, Trial by Combat, 329. All the authorities on the subject, I believe, are collected in this excellent book. A note of the ceremonies made in 1346 was edited by Mr. Pike, among other unprinted cases, in 1908: Y.B. 20 Ed. III (Rolls series), p. 483. A still earlier one (1330) was printed by Dugdale, Orig Jurid 68, from a Lincoln’s Inn Ms. The fact that a minute report was thought worth making at those dates is significant.

[1 ]Geist des rom. Rechts, ii, 471, 4th ed., 1883.

[1 ]42 Ed. III, 4, pl. 14 ad fin. (the text as printed is not free from difficulty).

[1 ]They were set forth in the early nineteenth century in an excellent book which is perhaps more honoured at this day in America than in the mother land, Stephen on Pleading. Fuller confirmation has been added by later scholars, such as (to speak only of my own countrymen) Maitland, Mr. Pike, and Dr. Holdsworth; all of them accept Stephen’s account as correct in essentials.



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