English law and Renaissance-Frederic William-Maitland-1901

ENGLISH LAW AND THE RENAISSANCE

English Law and the
Renaissance

(The Rede Lecture for 1901)

Mr Vice-Chancellor and Fellow-Students:

Were we to recall to life the good Sir Robert Rede who endowed lecturers in this university, we might reasonably hope that he would approve and admire the fruit that in these last years has been borne by his liberality. And then, as in private duty or private interest bound, I would have him speak thus: ‘Yes, it is marvellous and more than marvellous this triumph of the sciences that my modest rent-charge stimulates you annually to record; nor do I wonder less at what my lecturers have said of humane letters and the fine arts, of the history of all times and of my time, of Erasmus whom I remember, and that age of the Renaissance (as you call it) in which (so you say) I lived. But there is one matter, one science (for such we accounted it) of which they seem to have said little or nothing; and it happens to be a matter, a science, in which I used to take some interest and which I endeavoured to teach. You have not, I hope, forgotten that I was not only an English judge, but, what is more, a reader in English law.’

Six years ago a great master of history, whose untimely death we are deploring, worked the establishment of the Rede lectures into the picture that he drew for us of The Early Renaissance in England. He brought Rede’s name into contact with the names of Fisher and More. That, no doubt, is the right environment, and this pious founder’s care for the humanities, for logic and for philosophy natural and moral was a memorable sign of the times. Nevertheless the fact remains that, had it not been for his last will and testament, we should hardly have known Sir Robert except as an English lawyer who throve so well in his profession that he became Chief Justice of the Common Bench. And the rest of the acts of Robert Rede—we might say—and the arguments that he urged and the judgments that he pronounced, are they not written in queer old French in the Year Books of Henry VII and Henry VIII? Those ancient law reports are not a place in which we look for humanism or the spirit of the Renaissance: rather we look there for an amazingly continuous persistence and development of medieval doctrine.

Perhaps we should hardly believe if we were told for the first time that in the reign of James I a man who was the contemporary of Shakespeare and Bacon, a very able man too and a learned, who left his mark deep in English history, said, not by way of paradox but in sober earnest, said repeatedly and advisedly, that a certain thoroughly medieval book written in decadent colonial French was ‘the most perfect and absolute work that ever was written in any human science.’ Yet this was what Sir Edward Coke said of a small treatise written by Sir Thomas Littleton, who, though he did not die until 1481, was assuredly no child of the Renaissance.

I know that the names of Coke and Littleton when in conjunction are fearsome names or tiresome, and in common honesty I am bound to say that if you stay here you will be wearied. Still I feel that what is at fault is not my theme. A lecturer worthy of that theme would—I am sure of it—be able to convince you that there is some human interest, and especially an interest for English-speaking mankind, in a question which Coke’s words suggest:—How was it and why was it that in an age when old creeds of many kinds were crumbling and all knowledge was being transfigured, in an age which had revolted against its predecessor and was fully conscious of the revolt, one body of doctrine and a body that concerns us all remained so intact that Coke could promulgate this prodigious sentence and challenge the whole world to contradict it ? I have not the power to tell and you to-day have not the time to hear that story as it should be told. A brief outline of what might be said is all that will be possible and more than will be tolerable.

Robert Rede died in January, 1519. Let us remember for a moment where we stand at that date. The Emperor Maximilian also was dying. Henry VIII was reigning in England, Francis I in France, Charles I in Spain, Leo X at Rome. But come we to jurisprudence. Is it beneath the historic muse to notice that young Mr More, the judge’s son, had lately lectured at Lincoln’s Inn ? Perhaps so. At all events for a while we will speak of more resonant exploits. We could hardly (so I learn at second-hand) fix a better date than that of Rede’s death for the second new birth of Roman law. More’s friend Erasmus had turned his back on England and was by this time in correspondence with two accomplished jurists, the Italian Andrea Alciato and the German Ulrich Zäsi. They and the French scholar Guillaume Budé were publishing books which mark the beginning of a new era. Humanism was renovating Roman law. The medieval commentators, the Balduses and Bartoluses, the people whom Hutten and Rabelais could deride, were in like case with Peter Lombard, Duns Scotus and other men of the night. Back to the texts! was the cry, and let the light of literature and history play upon them[8]. The great Frenchmen who were to do the main part of the work and to make the school of Bourges illustrious were still young or unborn; Cujas was born in 1522; but already the advanced guard was on the march and the flourish of trumpets might be heard. And then in 1520—well, we know what happened in 1520 at Wittenberg, but perhaps we do not often remember that when the German friar ceremoniously and contumeliously committed to the flames some venerated law-books—this, if an event in the history of religion, was also an event in the history of jurisprudence. A current of new life was thrilling through one Corpus Juris[10]; the other had been sore stricken, and, if it escaped from violent death, might perish yet more miserably of a disease that becomes dangerous at the moment when it is discovered.

A few years afterwards an enlightened young humanist, of high rank and marked ability, a man who might live to be pope of Rome or might live to be king of England, was saying much evil of the sort of law that Rede had administered and taught; was saying that a wise prince would banish this barbaric stuff and receive in its stead the civil law of the Romans. Such, so we learn from one of his friends, was the talk of Reginald Pole, and a little knowledge of what was happening in foreign countries is enough to teach us that such talk deserves attention.

This was the time when Roman law was[8] driving German law out of Germany or forcing it to conceal itself in humble forms and obscure corners[12]. If this was the age of the Renaissance and the age of the Reformation, it was also the age of the ‘Reception.’ I need not say that this Reception—the reception of Roman law—plays a large part in modern versions of German history, and by no means only in such as are written by lawyers. I need not say that it has been judged from many different points of view, that it has been connected by some with political, by others with religious and by yet others with economic changes. Nor need I say that of late years few writers have had a hearty good word for the Reception. We have all of us been nationalists of late. Cosmopolitanism can afford to await its turn[13].

Then we observe that not long after Pole had been advocating a Reception, his cousin King Henry, whose word was law supreme in church and state, prohibited the academic study of one great and ancient body of law—the canon[9] law[14]—and encouraged the study of another—the civil law—by the foundation of professorships at Oxford and Cambridge. We observe also that his choice of a man to fill the chair at Cambridge fell on one who was eminently qualified to represent in his own person that triad of the three R’s—Renaissance, Reformation and Reception. We know Professor Thomas Smith as a humanist, an elegant scholar with advanced opinions about the pronunciation of Greek. We know the Reverend Thomas Smith as a decided, if cautious, protestant whose doings are of some interest to those who study the changeful history of ecclesiastical affairs. Then we know Dr Thomas Smith as a doctor in law of the university of Padua, for with praiseworthy zeal when he was appointed professor at Cambridge he journeyed to the fountain-head for his Roman law and his legal degree[15]. Also he visited those French universities whence a new jurisprudence was beginning to spread. He returned to speak to us in two inaugural[10] lectures of this new jurisprudence: to speak with enthusiasm of Alciatus and Zasius[16]: to speak hopefully of the future that lay before this conquering science—the future that lay before it in an England fortunately ruled by a pious, wise, learned and munificent Prince. Then in Edward VI’s day Thomas Smith as a Master of Requests was doing justice in a court whose procedure was described as being ‘altogether according to the process of summary causes in the civil law’ and at that moment this Court of Requests and other courts with a like procedure seemed to have time, reason and popularity upon their side[17]. Altogether, the Rev. Prof. Dr Sir Thomas Smith, Knt., M.P., Dean of Carlisle, Provost of Eton, Ambassador to the Court of France and Secretary of State to Queen Elizabeth was a man of mark in an age of great events. Had some of those events been other than they were, we might now be saying of him that he played a prominent part in Renaissance, Reformation and Reception,[11] and a part characteristic of that liberal and rational university of which he was professor, public orator and vice-chancellor[18].

Some German historians, as you are aware, have tried to find or to fashion links that will in some direct and obvious manner connect the Reformation and the Reception. In one popular version of the tale protestantism finds a congenial ally in the individualism and capitalism of the pagan Digest[19]. In truth I take it that the story is complex. Many currents and cross-currents were flowing in that turbid age. It so happens that in this country we can connect with the heresiarchal name of Wyclif a proposal for the introduction of English law, as a substitute for Roman law, into the schools of Oxford and Cambridge[20]. On the other hand, the desire for a practical Reception of the civil law is ascribed to the future cardinal, who in his last days reconciled England for a moment, not with the Rome of the Digest, but with the Rome of the Decretals. And by the way we may notice[12] that when the cardinal was here upon his reconciliatory errand he had for a while as his legal adviser one of the most learned lawyers of that age, the Spaniard Antonio Agustin. But we in England take little notice of this famous man, who, so foreigners assure us now-a-days, began the historical study of the canon law and knew more about the false Isidore than it was comfortable for him to know[21]. Our Dr Smith was protestant enough; but his Oxford colleague Dr John Story showed zeal in the cremation of protestants, helped Alva (so it is said) to establish the Inquisition in the Netherlands, was hanged as a traitor at Tyburn in 1571 and beatified as a martyr at Rome in 1886. Blessed John Story was zealous; but his permanent contribution to the jurisprudence of his native land was (so far as I am aware) an early precedent for the imprisonment of a disorderly member by the House of Commons, and a man may be disorderly without being a jurist[22]. Ulrich Zäsi went part of the way with[13] Luther; but then stayed behind with Erasmus[23]. He had once compared the work that he was doing for the Corpus Juris with the work that Luther was doing for the Bible[24]. The great Frenchmen answered the religious question in different ways. One said ‘That has nothing to do with the praetor’s edict.’ His rivals charged him with a triple apostasy[25]. Three or four of them were stout huguenots, and we must not forget that Calvin and Beza had both been at Bourges and had both studied the civil law. Melanchthon also was a warm admirer of Roman jurisprudence[26]. It is reported that Elizabeth invited Francis Hotman to Oxford[27]. He was protestant enough, and fierce enough to exchange letters with a tiger[28]. He is best known to English law-students as the man who spoke light words of Littleton and thus attracted Coke’s thunderbolt[29]; but if he thought badly of Littleton, he thought badly of Tribonian also, and would have been the last man to preach a Reception. Professor Alberigo Gentili[14] of Oxford, he too was protestant enough and could rail at the canonists by the hour; but then he as an Italian had a bitter feud with the French humanizers, and stood up for the medieval gloss[30].

Plainly the story is not simple and we must hurry past it. Still the perplexity of detail should not obscure the broad truth that there was pleasant reading in the Byzantine Code for a king who wished to be monarch in church as well as state: pleasanter reading than could be found in our ancient English law-books. Surely Erastianism is a bad name for the theory that King Henry approved: Marsilianism seems better, but Byzantinism seems best[31]. A time had come when, medieval spectacles being discarded, men could see with the naked eye what stood in the Code and Novels of Constantinople. In 1558 on the eve of an explosive Reformation ‘the Protestants of Scotland,’ craving ‘remedy against the tyranny of the estate ecclesiastical,’ demanded that the controversy should be judged[15] by the New Testament, the ancient fathers ‘and the godly approved laws of Justinian the emperor[32].’ University-bred jurists, even such as came from an oldish school, were very serviceable to King Henry in the days of the great divorce case and the subsequent quarrel with the papacy. Tunstall, Gardiner, Bonner, Sampson and Clerk, to say nothing of the Leghs and Laytons, were doctors of law and took their fees in bishoprics and deaneries[33]. Certainly they were more conspicuous and probably they were much abler men than those who were sitting in the courts of the common law. With the one exception of Anthony Fitzherbert, the judges of Henry’s reign are not prominent in our legal history, and we have little reason for attributing deep knowledge of any sort of law to such chancellors as Audley, Wriothesley and Rich. I doubt our common lawyers easily accommodated themselves to ecclesiastical changes. Some years after Elizabeth’s accession the number of barristers who were known to the[16] government as ‘papists’ was surprisingly large and it included the great Plowden[34]. But we must go back to our main theme.

A Reception there was not to be, nor dare I say that a Reception was what our Regius Professor or his royal patron desired. As to Smith himself, it is fairly evident that some time afterwards, when he had resigned his chair and was Elizabeth’s ambassador at the French court, he was well content to contrast the public law of England with that of ‘France, Italy, Spain, Germany and all other countries which’ to use his words ‘do follow the civil law of the Romans compiled by Justinian into his Pandects and Code[35].’ The little treatise on the Commonwealth of England which he wrote at Toulouse in 1565—a remarkable feat for he had no English books at hand[36]—became a classic in the next century, and certainly did not underrate those traditional, medieval, Germanic and parliamentary elements which were still to be found in English life and law under the fifth and last of[17] the Tudors. Nevertheless I think that a well-equipped lecturer might persuade a leisurely audience to perceive that in the second quarter of the sixteenth century the continuity of English legal history was seriously threatened[37].

Unquestionably our medieval law was open to humanistic attacks. It was couched partly in bad Latin, partly in worse French. For the business Latin of the middle age there is much to be said. It is a pleasant picture that which we have of Thomas More puzzling the omniscient foreigner by the question ‘An averia carucae capta in withernamio sunt irreplegibilia[38].’ He asked a practical question in the only Latin in which that question could have been asked without distortion. Smith’s acute glance saw that withernamium must have something to do with the German wiedernehmen; for among his other pursuits our professor had interested himself in the study of English words[39]. But this business Latin was a pure and elegant language when compared with what[18] served our lawyers as French. Pole and Smith might well call it barbarous; that it was fast becoming English was its one redeeming feature. You are likely to know what I must not call the classical passage: it comes from the seventeenth century. In all the Epistolae Obscurorum Virorum there is nothing better than the report which tells how one of Sir Robert Rede’s successors was assaulted by a prisoner ‘que puis son condemnation ject un brickbat a le dit justice que narrowly mist[40].’ It is as instructive as it is surprising that this jargon should have been written in a country where Frenchmen had long been regarded as hereditary foes. This prepares us for the remark that taught law is tough law. But when ‘Dunce’ had been set in Bocardo (and it was a doctor of the civil law who set him there[41]), why should the old law books be spared? They also were barbarous; they also were sufficiently papistical.

Turning to a more serious aspect of affairs, it would not I think be difficult to show that[19] the pathway for a Reception was prepared. Not difficult but perhaps wearisome. At this point it is impossible for us to forget that the year 1485, if important to students of English history for other reasons, is lamentably important for this reason, that there Dr Stubbs laid down his pen. In his power of marshalling legal details so as to bring to view some living principle or some phase of national development he has had no rival and no second among Englishmen. Howbeit, we may think of the subjected church and the humbled baronage, of the parliament which exists to register the royal edicts, of the English Lex Regia which gives the force of statute to the king’s proclamations[42], of the undeniable faults of the common law, of its dilatory methods, of bribed and perjured juries, of the new courts which grow out of the King’s Council and adopt a summary procedure devised by legists and decretists. Might not the Council and the Star Chamber and the Court of Requests—courts not tied and bound by ancient[20] formalism,—do the romanizing work that was done in Germany by the Imperial Chamber Court, the Reichskammergericht[43]? This was the time when King Henry’s nephew James V was establishing a new court in Scotland, a College of Justice, and Scotland was to be the scene of a Reception[44].

It seems fairly certain that, besides all that he effected, Henry had at times large projects in his mind: a project for a great college of law (possibly a College of Justice in the Scotch sense), a project for the reformation of the Inns of Court, which happily were not rich enough to deserve dissolution[45], also perhaps a project for a civil code as well as the better known project for a code ecclesiastical. In Edward VI’s day our Regius and German Professor of Divinity, Dr Martin Butzer, had heard, so it seems, that such a scheme had been taken in hand, and he moved in circles that were well informed. He urged the young Josiah to go forward in the good work; he denounced the barbarism of[21] English law and (to use Bentham’s word) its incognoscibility[46]. The new ecclesiastical code, as is generally known, was never enacted; but we know equally well that the draft is in print. Its admired Latinity is ascribed to Prof. Smith’s immediate successor, Dr Walter Haddon. I take it that now-a-days few English clergymen wish that they were living—or should I not say dying?—under Dr Haddon’s pretty phrases[47]. Codification was in the air. Both in France and in Germany the cry for a new Justinian was being raised, and perhaps we may say that only because a new Justinian was not forthcoming, men endeavoured to make the best that they could of the old[48]. How bad that best would be Francis Hotman foretold.

And then we see that in 1535, the year in which More was done to death, the Year Books come to an end: in other words, the great stream of law reports that has been flowing for near two centuries and a half, ever since the days of Edward I, becomes discontinuous and[22] then runs dry. The exact significance of this ominous event has never yet been duly explored; but ominous it surely is[49]. Some words that once fell from Edmund Burke occur to us: ‘To put an end to reports is to put an end to the law of England[50].’ Then in 1547 just after King Henry’s death a wail went up from ‘divers students of the common laws.’ The common laws, they said, were being set aside in favour of ‘the law civil’ insomuch that the old courts had hardly any business[51]. Ten years later, at the end of Mary’s reign, we read that the judges had nothing to do but ‘to look about them,’ and that for the few practitioners in Westminster Hall there was ‘elbow room enough[52].’ In criminal causes that were of any political importance an examination by two or three doctors of the civil law threatened to become a normal part of our procedure[53]. In short, I am persuaded that in the middle years of the sixteenth century and of the Tudor age the life of our ancient law was by no means lusty.

[23]

And now we may ask what opposing force, what conservative principle was there in England? National character, the genius of a people, is a wonder-working spirit which stands at the beck and call of every historian. But before we invoke it on the present occasion we might prudently ask our books whether in the sixteenth century the bulk of our German cousins inherited an innate bias towards what they would have called a Welsh jurisprudence. There seems to be plentiful evidence that the learned doctores iuris who counselled the German princes and obtained seats in the courts were cordially detested by the multitude. In modern times they often have to bear much blame for that terrible revolt which we know as the Peasants’ War[54]. No doubt there were many differences between England and Germany, between England and France, between England and Scotland[55]. Let us notice one difference which, if I am not mistaken, marked off England from the rest of the world. Medieval England had schools of national law.

[24]

The importance of certain law schools will be readily conceded, even to one who is in some sort officially bound to believe that law schools may be important. A history of civilization would be miserably imperfect if it took no account of the first new birth of Roman law in the Bologna of Irnerius. Indeed there are who think that no later movement,—not the Renaissance, not the Reformation—draws a stronger line across the annals of mankind than that which is drawn about the year 1100 when a human science won a place beside theology. I suppose that the importance of the school of Bourges would also be conceded. It may be worth our while to remark that the school of Bologna had a precursor in the school of Pavia, and that the law which was the main subject of study in the Pavia of the eleventh century was not Roman law but Lombard law: a body of barbaric statutes that stood on one level with the Anglo-Saxon laws of the same age. This I say, not in order that I may remind you what sort of law it was that Archbishop Lanfranc[25] studied when as a young man he was a shining light in the school of Pavia, but because this body of Lombard law, having once become the subject of systematic study, showed a remarkable vitality in its struggle with Roman jurisprudence. Those Italian doctors of the middle age who claimed for their science the fealty of all mankind might have been forced to admit that all was not well at home. They might call this Lombard law ius asininum and the law of brute beasts, but it lingered on, and indeed I read that it was not utterly driven from the kingdom of Naples until Joseph Bonaparte published the French code. Law schools make tough law[56].

Very rarely do we see elsewhere the academic teaching of any law that is not Roman: imperially or papally Roman. As a matter of course the universities had the two legal faculties, unless, as at Paris, the Pope excluded the legists from an ecclesiastical preserve. The voice of John Wyclif pleading that English law was the law that should be taught in English universities[26] was a voice that for centuries cried in the wilderness. It was 1679 before French law obtained admission into the French universities[57]. It was 1709 before Georg Beyer, a pandectist at Wittenberg, set a precedent for lectures on German law in a German university[58]. It was 1758 before Blackstone began his ever famous course at Oxford. The chair that I cannot fill was not established until the transatlantic Cambridge was setting an example to her elderly mother[59]. But then, throughout the later middle age English law had been academically taught.

No English institutions are more distinctively English than the Inns of Court; of none is the origin more obscure. We are only now coming into possession of the documents whence their history must be gathered, and apparently we shall never know much of their first days[60]. Unchartered, unprivileged, unendowed, without remembered founders, these groups of lawyers formed themselves and in course of time evolved a scheme of legal education: an academic scheme[27] of the medieval sort, oral and disputatious. For good and ill that was a big achievement: a big achievement in the history of some undiscovered continents. We may well doubt whether aught else could have saved English law in the age of the Renaissance. What is distinctive of medieval England is not parliament, for we may everywhere see assemblies of Estates, nor trial by jury, for this was but slowly suppressed in France. But the Inns of Court and the Year Books that were read therein, we shall hardly find their like elsewhere. At all events let us notice that where Littleton and Fortescue lectured, there Robert Rede lectures, Thomas More lectures, Edward Coke lectures, Francis Bacon lectures, and highly technical were the lectures that Francis Bacon gave. Now it would, so I think, be difficult to conceive any scheme better suited to harden and toughen a traditional body of law than one which, while books were still uncommon, compelled every lawyer to take part in legal education and every distinguished[28] lawyer to read public lectures. That was what I meant when I made bold to say that Robert Rede was not only an English judge but ‘what is more’ a reader in English law.

Deus bone! exclaimed Professor Smith in his inaugural lecture, and what excited the learned doctor to this outcry was the skill in disputation shown by the students of English law in their schools at London. He was endeavouring to persuade his hearers that in many ways the study of law would improve their minds. If, he urged, these young men, cut off as they are from all the humanities, can reason thus over their ‘barbaric and semi-gallic laws,’ what might not you, you cultivated scholars do if you studied the Digest and Alciatus and Zasius? And then the professor expressed a hope that he might be able to spend his vacation in the Inns of Court[61]. His heart was in the right place: in a school of living law. Even for the purposes of purely scientific observation the live dog may be better than the dead lion.

[29]

When the middle of the century is past the signs that English law has a new lease of life become many. The medieval books poured from the press, new books were written, the decisions of the courts were more diligently reported, the lawyers were boasting of the independence and extreme antiquity of their system[62]. We were having a little Renaissance of our own: or a gothic revival if you please. The Court of Requests in which Prof. Smith and Prof. Haddon had done justice was being tried for its life. Its official defender was, we observe, Italian by blood and Parisian by degree: Dr Adelmare, known to Englishmen as Sir Julius Caesar[63]. That wonderful Edward Coke was loose. The medieval tradition was more than safe in his hands. You may think it pleasant to turn from this masterful, masterless man to his great rival. It is not very safe to say what Thomas More did not know, less safe to say what was unknown to Francis Bacon, but I cannot discover that either of these scholars,[30] these philosophers, these statesmen, these law reformers, these schemers of ideal republics, these chancellors of the realm, these law lecturers, had more than a bowing acquaintance with Roman law.

If Reginald Pole’s dream had come true, if there had been a Reception—well, I have not the power to guess and you have not the time to hear what would have happened; but I think that we should have had to rewrite a great deal of history. For example, in the seventeenth century there might have been a struggle between king and parliament, but it would hardly have been that struggle for the medieval, the Lancastrian, constitution in which Coke and Selden and Prynne and other ardent searchers of mouldering records won their right to be known to school-boys. In 1610 when the conflict was growing warm a book was burnt by the common hangman: it was written by an able man in whom Cambridge should take some pride, Dr Cowell, our Regius Professor, and[31] seemed to confirm the suspicion that Roman law and absolute monarchy went hand in hand[64].

The profit and loss account would be a long affair. I must make no attempt to state it. If there was the danger of barbarism and stupidity on the one side, there was the danger of pedantry on the other: the pedantry that endeavours to appropriate the law of another race and galvanizes a dead Corpus Juris into a semblance of life. Since the first of January 1900 the attempt to administer law out of Justinian’s books has been abandoned in Germany. The so-called ‘Roman-Dutch’ law of certain outlying parts of the British Empire now stands alone[65], and few, I imagine, would foretell for it a brilliant future, unless it passes into the hand of the codifier and frankly ceases to be nominally Roman. Let us observe, however, that much had been at stake in the little England of the sixteenth century.

In 1606 Coke was settling the first charter of Virginia[66]. In 1619 elected ‘burgesses’ from the[32] various ‘hundreds’ of Virginia were assembling, and the first-born child of the mother of parliaments saw the light[67]. Maryland was granted to Lord Baltimore with view of frankpledge and all that to view of frankpledge doth belong, to have and to hold in free and common socage as of the castle of Windsor in the county of Berks, yielding yearly therefor two Indian arrows of those parts on the Tuesday in Easter week[68]. The port and island of Bombay in one hemisphere[69], and in another Prince Rupert’s land stretching no one knew how far into the frozen north were detached members of the manor of East Greenwich in the county of Kent[70]. Nearly twenty-five hundred copies of Blackstone’s Commentaries were absorbed by the colonies on the Atlantic seaboard before they declared their independence. James Kent, aged fifteen, found a copy, and (to use his own words) was inspired with awe[71]; John Marshall found a copy in his father’s library[72]; and the common law went straight to the Pacific[73].

[33]

A hundred legislatures—little more or less—are now building on that foundation: on the rock that was not submerged. We will not say this boastfully. Far from it. Standing at the beginning of a century and in the first year of Edward VII, thinking of the wide lands which call him king, thinking of our complex and loosely-knit British Commonwealth, we cannot look into the future without serious misgivings. If unity of law—such unity as there has been—disappears, much else that we treasure will disappear also, and (to speak frankly) unity of law is precarious. The power of the parliament of the United Kingdom to legislate for the colonies is fast receding into the ghostly company of legal fictions. Men of our race have been litigious; the great Ihering admired our litigiousness[74]; it is one of our more amiable traits; but it seems to me idle to believe that distant parts of the earth will supply a tribunal at Westminster with enough work to secure uniformity. The so-called common law of one colony will swerve[34] from that of another, and both from that of England. Some colonies will have codes[75]. If English lawyers do not read Australian reports (and they cannot read everything), Australian lawyers will not much longer read English reports.

Still the case is not yet desperate. Heroic things can be done by a nation which means to do them: as witness the mighty effort of science and forbearance which in our own time has unified the law of Germany, and, having handed over the Corpus Juris to the historians, has in some sort undone the work of the Reception[76]. Some venerable bodies may understand the needs of the time, or, if I may borrow a famous phrase, ‘the vocation of our age for jurisprudence and legislation.’ Our parliament may endeavour to put out work which will be a model for the British world. It can still set an example where it can no longer dictate, and at least it might clear away the rubbish that collects round every body of law. To make[35] law that is worthy of acceptance by free communities that are not bound to accept it, this would be no mean ambition. Nihil aptius, nihil efficacius ad plures provincias sub uno imperio retinendas et fovendas[77]. But it is hardly to parliament that our hopes must turn in the first instance. Certain ancient and honourable societies, proud of a past that is unique in the history of the world, may become fully conscious of the heavy weight of responsibility that was assumed when English law schools saved, but isolated, English law in the days of the Reception. In that case, the glory of Bourges, the glory of Bologna, the glory of Harvard may yet be theirs[78].


Note:

  1. Robert Rede was Autumn Reader at Lincoln’s Inn in 1481
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