room. Men were apprenticed to the study of law as to a craft. When they had mastered its rudiments under the guidance of the older members of the bar, supervised, moreover, under royal order, by the judges, they were admitted to practice, and rewarded if especially and permanently successful with the title of serjeant or servant of the king's people. From the ranks of successful practitioners, rather than as in the older days from those of clerks trained in the various divisions of the king's courts, the judges were selected-men who had won their distinction by knowledge of the law and skill in dealing with it in practice. The results of this professionalizing of the administration of justice were both good and bad. On the one hand, the law was to be formulated by men whose training and experience were extensive, and moreover highly practical. The practitioners and the bench were sympathetic, and professional opinion could and did exercise a strong influence on the development of the law. On the other hand, the effect of this professional monopoly was to narrow and make highly technical the learning which constituted the preparation for practice. A common lawyer need have no such knowledge of the canon law as the clerics of an earlier period possessed. The rules of the common law were best learned by studying the records of cases decided in the past, by observing the practice of the courts, the writs they allowed, the causes of action which might be included within the terms of these writs, and the rules governing the decisions made by the judges. To supplement and aid their memories, diligent stu dents made notes of the arguments of counsel and the reasons for the decisions in the cases which they heard in the courts. Collections of these notes, some of them perhaps made by young students, and others by practicing lawyers, and handed down from one to another, constitute, according to the prevailing theory, the long series of rough reports of cases known as the Year Books. In the legal text-books of Edward's time also appears the narrow and intense practicality which was valued in the legal profession. They are mere commentaries on writs or discussions of other elements of procedure. As Professor Holdsworth says: "The Common Law is becoming a special subject, known only to the practitioners of the royal courts, and the principal need of the practitioner is for some simple information as to the rules of court. The law itself lies beyond. The rank and file of the profession, immersed in the routine of practice, never attain to a conception of law as a reasonable and logical science." 19 56. The ossification of the common law. The reign of Edward marks the culmination of a great period in the history of our law. In this period the conception of the function of law had broadened from a mere preservation of the peace and order of society to the conscious provision of remedies for wrongs. Bracton laid it down as law that there was a writ for every form of action.20 But as we have seen, even before the end of Edward's reign this was no longer true. At the moment of its precocious 19 Holdsworth, History of English Law, vol. II, p. 272. maturity the common law had begun to ossify. It was self-limited by technical rules as to jurisdiction which excluded from its control the foreign merchants and the growing commerce of the sea. It was unwilling to grant relief except where the wrong complained of could be brought within the purview of some established writ, either a writ of course or, if new, one sanctioned by Parliament. The development of the jury system has led, in many ways too intricate for discussion here, to the growth of an elaborate, highly technical system of pleading, the refinements of which tended to delay and often entirely to frustrate justice. The judges were jealously watched by barons and commons for fear that their decisions might be biased by the fact that they were royal appointees. The surest safeguard against favoritism was adherence to a definite and rigid rule provided by statute or by earlier decisions. Thus straitened, the administration of justice became more and more formal. If the letter of the rule was satisfied the moral aspects of the case in litigation were quite disregarded. The substance of the law was being developed not in the large by theoretical discussion and generalization, or even, after Edward's reign, by any far-reaching legislative changes, but by very slow degrees and very short steps taken almost unconsciously: by the wresting of a rigid form like a writ of course to some new use only slightly different from the old, or with a material difference disguised under a fiction of identity, and by the gradual working out and M.A.L.-5 adaptation of principles embodied in the accumulated precedents found in decided cases. The desire for certainty in the law, the dread of judicial caprice or dishonesty, made for an aversion to change which was intensified rather than lessened by the growing influence of a trained professional opinion upon decisions. 57. The need for elasticity.-Yet England at the beginning of the fourteenth century was a rapidly growing nation. Edward had enlarged her boundaries and she was cherishing further political ambitions. Her foreign commerce, though still largely in the hands of alien merchants, was great and growing. The universities were the center of a vigorous intellectual life. Parliament was in the full tide of its early activity, with an astonishing list of legislation to its credit. Moreover, the new century and the one that followed it were to be centuries of the utmost social, political, and moral unrest, demanding institutions, legal as well as political and economic, which could deal with the tremendous problems of adjustment that a period of such change involved. But the courts of common law had chosen to regard as closed many of the avenues by which the past growth of the law had been achieved, and so the further development of an administration of justice adequate to the needs of the time had to be sought elsewhere. 58. Legislation in the fourteenth and fifteenth centuries.-Nor could the legislative organ of the state provide what was needed. The period from the death of Edward I to the end of the Wars of the Roses is one of increasing governmental feebleness. Incompetent kings, foreign wars, and internecine strife, succeeding one another, combined to turn Parliamentary activity from constructive legislation to an ignoble participation in the history of factional intrigue and armed conflict. There are some few noteworthy statutes. In 1350 and 1360 the organization of the Justices of the Peace completed the outline of the common law control over the peace of the realm. These royally commissioned Justices absorbed the remnants of local court jurisdiction over the minor offenses we now group as misdemeanors. At the same time the statutes gave to these magistrates important administrative powers, which practically put the local government of England into their hands. Edward III's Statute of Mortmain (1390) constitutes the first recognition in English law of that important figure, the corporation, as a juristic person. Legislation was, in truth, actively enacted throughout the period. Parliament dealt with all manner of subjects in minute detail, exhibititing apparent confidence in its power to regulate by statute the price of food and labor, and the garb appropriate to the various social classes. But the statutes reflect how it had become the tool of the great nobles in their factional fights and in the preservation of their selfish economic interests, particularly against the unrest among the peasantry that began with the Black Death (1349) and came to bloody outbreak against oppression in the revolts of Wat Tyler (1381) and Jack Cade (1450). Of the legislative activity of the Parliament of Edward I's reign |