The Five Ages of the Bench and Bar of England
by
John Maxcy Zane[March 26, 1863 – December 6, 1937]
From: The Story of Law [1927]
It is a singular fact that but two races in the history of the world have shown what may be called a genius for law. The systems of jurisprudence, which owe their development to those two races, the Roman and the Norman, now occupy the whole of the civilized world. Our common law is peculiarly the work of the Norman element of the English people. There is no English law, nor English lawyer, before the Norman Conquest. Just as the Saxons with their crude weapons and bull-hide shields broke before the Norman knights at Senlac, so their barbarous system of wer, wite, and bot, their ridiculous ordeals in the criminal law, their haphazard judicial tribunals, and their methods of proof, which had no connection with any rational theory of evidence, were certain to yield to the Norman organization, its love of order and of records, its royal inquisition for establishing facts, its King’s Court to give uniformity to the law. The Norman Conquest was more than a change of dynasty. It produced a revolution in jurisprudence.
The history of our legal development furnishes ample proof of this. Our huge mass of legal literature is a treasure that no other race possesses. Our records and reports of cases, many of them still imperfectly known, carry our legal history back almost to the Conquest. There the law can be seen in its growth, taking on new forms to meet new conditions. The genius of the Norman lawyer has developed our legal system from one precedent to another. Beginning with the barbarous legal ideas of the Anglo-Saxon, the Norman in the course of two centuries produced a rational coherent system of law, and a procedure capable of indefinite expansion. The growth and changes in our law have followed Lord Bacon’s rule: “ It were good, therefore, that men in their innovations would follow the example of time itself; which, indeed, innovateth greatly, but quietly, and by degrees, scarce to be perceived.” The further fact, that this system of law has been applied by practically but one court, has rendered the common law uniform. It represents the slow and patient work of generation after generation of able men. To use a fine figure of Burke’s, our legal system has never been at any one time “old, or middle-aged, or young. It has preserved the method of nature; in what has been improved, it was never wholly new; in what it retained, it was never wholly obsolete.” Like some ancient Norman house, “it has its liberal descent, its pedigree and illustrating ancestors, its bearings and ensigns armorial, its gallery of portraits, its monumental inscriptions, its records, evidences, and titles.”
The design of these essays is to survey “the gallery of portraits” that belongs to the English law. It will not be possible to advert to legal doctrines further than may be necessary to illustrate the acts of eminent lawyers. An attempt will be made to describe the men who have assisted in the growth and development of our jurisprudence. Unlike France, England has never had a noblesse of the robe. Lawyers have found their rewards in the same honors that England has given to her admirals and her generals. The peerage is a fair standard by which to judge of the honors that have been attained by excellence in the law. While great soldiers are represented in the House of Lords by the Dukes of Marlborough and Wellington, the Marquis of Anglesey, Viscounts Hardinge, Wolseley and Kitchener, and Lords Napier of Magdala and Raglan, while great admirals are represented by Earl Nelson, the Earl of Effingham and Earl Howe, Viscounts Exmouth, St. Vincent, Bridport, and Torrington, and Lords Rodney and Vernon, the representatives of lawyers almost fill the benches of the Lords. Lord Thurlow’s famous reply to the Duke of Grafton asserted: “The noble duke can not look before him, behind him, or on either side of him, without seeing some noble peer who owes his seat in this House to his successful exertions in the profession to which I belong.” The King himself is king of Scotland through his descent from Lord Chief Justice Bruce. The Dukes of Beaufort, Devonshire, Manchester, Newcastle, Norfolk, Portland, Northumberland, Rutland and St. Albans are all descended from English judges. Chief Justice Catlin was an ancestor of the Spencer, who married the Marlborough title. The Marquises of Abergavenny, Ailesbury, Bristol, Camden, Ripon and Townsend, the Earls of Aylesford, Bathurst, Bradford, Buckinghamshire, Cadogan, Cairns, Carlisle, Cottenham, Cowper, Crewe, Eldon, Egerton, Ellesmere, Fortescue, Guildford, Hardwicke, Harrowby, Leicester, Lonsdale, Macclesfield, Mansfield, Sandwich, Selborne, Shrewsbury, Suffolk, Stamford, Verulam, Westmoreland, Nottingham and Winchelsea, and Yarborough, represent names great in English law. Other titles among the barons, such as Abinger, Bolton, Brougham, Erskine, James of Hereford, Le Despencer, Mowbray and Segrave, Northington, Redesdale, Romilly, St. Leonards, Campbell, Tenterden, Walsingham, Thurlow, and many others, were gained by great lawyers.
The fable of the ancients, which school boys read in Ovid’s Metamorphoses, divided the history of the world into a golden, a silver, a bronze and an iron age. The golden age “sine lege fidem et rectum colebat.” This is in a measure true of the common law. Its first age, without statutes, out of its own ample powers, gave a remedy for every wrong. There followed a silver age, “auro deterior,” when new remedies could be devised only by statute. Then a bronze or plastic age, by fictions, bent old remedies to suit new conditions. Later, an iron age, harsh and rigid, owing to the jury system, left a large part of jurisprudence to the courts of chancery. The golden age ends with the death of Bracton; the silver age is that of the three Edwards; the bronze age covers the Lancastrian and Yorkist kings to the death of Littleton; the iron age ends with the Revolution of 1688 (Glorious Revolution). Then a period of improvement and reform, slowly feeling its way by statutes of jeofails to the great reforms of our century, began; the end of that great effort is now almost attained, and perhaps the golden age is about to return