ceedings of these popular tribunals in India, they have been compelled to admit, in a great degree, their evils, especially in the absence of anything like certainty or uniformity in the administration of the law; and it has been manifest from the tenor of their observations, that the view they had taken was comparative with reference to a system of procedure then established in this country, which was infinitely too formal and artificial, and led many to suppose that a system could not have forms without being formal, could not be regular without being technical. And these writers have admitted the advantages of a regular judicature, and a regular system of procedure, with its records and appeals, and its guarantees against error or uncertainty in law. But when an order of judges were appointed, however inferior, yet acting in the regular discharge of a judicial duty under the authority of government, and under some sense of responsibility, the great superiority of this approach to a regular judicatnre, and a settled system of administration of justice, was so apparent to the people, that their ancient native tribunals were soon deserted, and the new order of judges, notwithstanding all their imperfections, were appealed to in preference.1 The interest and the importance of the study of our legal history may be enhanced and illustrated by some further considerations. would pronounce, was therefore almost always uncertain, almost always arbitrary (Mill's Hist. Brit. India, b. ii. c. 4). It would surely be impossible to imagine a greater fallacy. Mr Mills approved of the Hindoo and Mohammedan systems of procedure because, he says, they were so "simple and natural," merely summoning the parties, and making a direct and simple investigation. This system may do well enough for simple cases, and, as shown in the text, it has always been allowed in our law for such cases, with the advantage, however, of a central system of control in the superior courts to prevent excess or abuse of jurisdiction (p. 171, and p. 6, c. i., vol. i.) Under the Hindoo and Mohammedan systems, however, it seems to have been applied to all cases, and without control or appeal; and Mr Mills admits that it made no provision for securing uniformity: “no provision made for the preservation by writing of judicial decisions; no regard for uniformity" (p. 171); so that what judicature would pronounce was almost always uncertain and arbitrary" (Ibid.) And he admits "that the Indian system of procedure is liable to the evil of the arbitrary power with which it entrusts the judge" (p. 141, 1st ed.) His only defence for it is, that a regular-as he calls it-technical system could not avoid the same evil. But a regular system need not be technical; and may, as ours does, regard only what is substantial, and may be sufficient to guard against the evils he points out. It is due to him to add that our system of procedure has been greatly altered since he wrote; not, indeed, in its principles, but in its forms, which were infinitely too strict and technical. 66 1 "But a court, the members of which acknowledged no responsibility, and performed their functions only for such a term or at such times as suited their own convenience; who were guided by no light except their own good sense; and who, even if incorrupt, could scarcely be impartial; who had no power to carry their own decrees In the numerous dominions and dependencies within the compass of our vast empire, while, on the one hand, our own law is, more or less prevalent in the greater portion of them, yet, on the other hand, there are many of them in which other systems of law are more or less prevalent; but most of these derived, like our own, from the Roman or civil law. It is manifest that to the subjects of such an empire, in whatever portion of its dominions they may live, the study of her legal history must be of great interest and advantage, whether as being itself the law under which they live, or as derived from the same law which was the parent of their own, and which was based on great principles, capable of application in every civilised community. There is probably no empire in which the law is more honoured than in our own. In this respect, again, the British empire resembles the Roman. A semi-barbarous people pay more regard to arms than to morals, to commerce, or to law. Thus, in Russia at this day, commerce, the law, and all civil employments, are held in no esteem (Sir A. Alison's Hist. Europe, vol. ii. p. 391). So the same writer says, "Nothing astonishes the Russian or Polish noblemen so much as seeing the estimation in which the civil professions, and especially the bar, are held in Great Britain" (Hist. Europe, vol. x. p. 566). As the Roman empire extended the study of the Roman law through its provinces, so it has been with our own; and nowhere is law more regarded than in our colonies. Thus very early in the history of our American colonies, their respect for law was remarkable. Burke was struck by it. "In no country perhaps in the world is the law so general a study” (Burke's Works, vol. i. p. 188). Mr Buckle cites this remarkable testimony, and adduces more modern works to establish the same characteristic. (See Lyell's Second Visit to the United States, vol. i. p. 48; and Combe's North America, vol. ii. p. 329). It is obvious that in such countries and colonies the study of our legal history must have a great interest. into effect, and whose sentences were liable to no revision; such a court must have been a very inadequate substitute for any tribunal, the proceedings of which were regulated by fixed rules, removed from personal influence, and subject to vigilant supervision. Whatever defects might still adhere to the administration of justice through individual judges, native or European, appointed by the government, their courts continued to be crowded, while the Panchayats were deserted, &c. patels were mostly ignorant men, little qualified by superiority of knowledge or talent to command respect for their decisions. Recourse was rarely had to their judgments, and the chief labour fell upon the officers appointed by the state for the distribution of justice among the people" (Wilson's Hist. Brit. India, vol. ii. p. 522). The There are, it will have been observed, many uses or objects of legal history, which, however, perhaps may be included under the two great heads mentioned by Montesquieu: the illustration of history by law, or of law by history. The former belongs rather to the general student, to the politician, the jurist, the legislator, or the statesman. The latter alone belongs specially to the lawyer. It has been well said by an eminent luminary of the law that no man can be a good lawyer who is not well acquainted with the history of law. The reason is obvious enough, upon reflection, for to be a lawyer, and, still more, to be a jurist, demands a thorough acquaintance with the principles of law,1 and these can only be acquired by tracing them, so to speak, to their real source and origin, an inquiry which belongs to legal history. The principles of every part of our law are to be found in their simple, original forms, in its more ancient forms and proceedings; and though these may long ago have become obsolete, the principles endure, for, as a learned judge once observed to the writer, forms may perish, but principles remain, and they only reappear in new forms more suited to the manners and exigencies of the age.2 Thus the old writs or proceedings of our law embodied the principles and objects which are now worked out by more modern procedure. The ancient tribunals of the country are superseded by other institutions directed to the attainment of the same object, and not only the vast domain of common law, but still more complicated systems, like our systems of conveyancing or of equity, are to be deduced from simple elements to be found in the Year-Books. There is a passage in our author to this effect (vide vol. iii. c. xxxv.), et vide p. 497. * For instance, advertisement in the papers now takes practically the place of proclamations in the ancient county court, or assemblies of the people. Thus the old writ of ad quod damnum was superseded, as to the stoppage or diversion of highways, &c., by the Highway Act, 13 Geo. III. (Ex parte Armitage Ambler, 294; Dairson v. Gill (East); Rex v. Netherthong, 2; B. and Ald., 179). The whole statute law as to the liability of the hundred for damage done by rioters (going back to 1 & 6 Geo. I., and the 27 Eliz. c. xiii.) is based on the common law liability, founded on customs derived from the ancient Saxon laws (Rex v. Clark, 7 T. R. 496). An action on the case was held maintainable upon the 6 Geo. I. c. xvi. s. 1, by the party grieved, to recover damages against the inhabitants of the adjoining township, for trees, coppice, and underwood, unlawfully and feloniously burnt by persons unknown, though the clause directed the party grieved to recover his damages in the same manner and form as given by the stat. 13 Edw. I. st. 1, c. xlvi., for dykes and hedges overthrown by persons in the night, upon which the usual course of proceeding had been by the writ of noctantur (Thornhill v. Hudders field, 11 East, 349). So as to the statute of Hue and Cry as to robbery (Whitworth v. Grimshaw, 2 Wils. 105; Rex v. Halfshire, 5 T. R. 341). These are only instances. It is laid down by all great writers that the only way to become a lawyer is to study the more ancient authorities of our law, and it is often otherwise impossible to master the law on a subject;1 yet it is as impossible, without an acquaintance with the history of the law, to understand them, for the very reason that the forms and proceedings they mention have long been obsolete, and yet without understanding them, the statutes and the reports are unintelligible, and the sources of the principles on which the law rests are sealed and inaccessible. No part of our law can be thoroughly understood without tracing back that tradition to its origin and source. But to do so it is necessary to have the guidance afforded by legal history. On the other hand, as one who was both a lawyer and an historian,2 and himself well understood and applied the mutual illustration of law and history, observed, law as often illustrates history, as history elucidates law. These, therefore, are the uses and objects of legal history, and these the ideas and views upon which this history has been edited. Even although they have for ages been obsolete. Thus, for instance, on the important subject of bail in criminal cases, Lord Coke is careful and copious in expounding the enactment in the first statute of Westminster, although the writ founded thereon was, as he mentions, taken away by the subsequent act, 28 Edw. III., because (he says) "the statute of Philip and Mary concerning bail has relation to our act (2 Inst. 190). So he cites the Mirror, Bracton, and Britton constantly and copiously to explain our older statutes, and he frequently speaks strongly as to the necessity for a knowledge of the history of law. For instance, he says: "It is necessary not only to know the law, but also the root and reason out of which the law deriveth his life-viz., whether from the common law or from some act of parlia ment, lest, if he taketh it to spring from the common law, it may lead him into error" (2 Inst. 296). So in another place he says, "And though this act (of 18 Edward I.) be repealed, yet it may serve in many respects to explain the statutes of 4 Henry VII., and 32 Henry VIII., for the true understanding of the common law, and of former statutes, is the sure master-expositor of the later" (2 Inst. 518). But it is manifest that the very language and terms of the Year-Books or old statutes cannot be understood without an acquaintance with legal history. No man who has not read Britton can well understand the Year-Books; and to master the law, it is necessary to refer to the Year-Books, and often to the Roman law. Thus the liability of innkeepers and carriers can be traced back through the Year-Books (42 Edward III., fol. 11; 11 Henry IV., fol. 45) to the civil law (Dig., lib. iv. tit. 9, leg. 3, s. 2), whence, no doubt, it was derived, by custom, into our own. 2 Lord Bacon, who says "It is a defect even in the best writers of history, that they do not often enough summarily set down the most memorable laws that passed in the times whereof they write, being indeed the principal acts of peace. For, though they may be had in the original books of laws themselves, yet that informeth not the judgment of king's councillors and persons of estate so well as to see them described and entered in the title and portrait of the times" (Life of Henry VII., p. 46). HISTORY OF THE ENGLISH LAW. THE SAXONS. The Laws of the Saxons-Thainland and Reveland-Freemen-Slaves-The Tourn County Court-Other inferior Courts-The Wittenagemote-Nature of Landed Property-Method of Conveyance Decennaries-Criminal Law -Were-Murder-Larceny-Deadly Feuds-Sanctuary-Ordeal-Trials in Civil Suits-Alfred's Dom-boc-Compilation made by Edward the Confessor-Saxon Laws. THE law of England is constituted of Acts of Parliament and the custom of the realm (a); on both which courts of justice exercise their judgment; giving construction and effect to the former, and, by their interpretation, declaring what is and what is not the latter. We possess many of these Acts of Parliament from Magna Charta, 9 Henry III., to the time of Edward III., and from thence in a regular series to the present time. The statutes, except some very few, enacted by the legislature before that period, are lost; though, no doubt, many of the regulations made by them, having blended themselves with the custom of the realm, have been received under that denomination, since the evidence of their parliamentary origin is destroyed (b). The custom of the realm, or (a) This, it will be observed, is a definition rather of law, or of the "formal grounds or constituents," as Lord Hale calls them, of the law, than of legal history. And it omits what he includes among them, judicial decisions (c. 4), which he says are incorporated into the law (c. 1), together with the materials on which they proceeded, which are often lost to us, whether it be ancient statutes or usage. And as to this he points out that the canon or civil law has been, by immemorial usage, in some matters adopted into our own (c/2). And, elsewhere, he also points out that these judicial decisions are in part themselves the result of a knowledge of the law (c. 4). It seems to follow that a history of our law ought to go back to, or be founded upon, that system of law which was the earliest civilised law known in the country, and was established here for ages. Because in that system of law it needs must be that we have the fountain whence our oldest customs were derived, the sources from which, by judicial decisions, all our subsequent law has been developed. (b) Lord Hale says that "acts made before the reign of Richard I., and not since repealed either by contrary usage or subsequent acts, are now accounted part of the lex non scripta, being incorporated therein and part of the common law, and many of those things that now obtain as common law had their origin by acts or institutions, though those acts are now either not extant, or if extant, were made before time of memory: and that this appears thus, that in many of the old acts made before time of memory (ie., temp. Richard I.), and are yet extant, we find many of those laws enacted which now obtain as common law, or the custom of the realm. He says fur A |