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or on account of it, but a sum which is, as has been said, in the nature of a retaining fee. It is, again, by no means unusual for witnesses to expect to be paid for giving a statement to a solicitor. Of course, if a professional or expert witness does so, and thereby loses time which would otherwise be occupied in his business, it cannot be supposed that ihe should give his time for nothing. If, however, he does not lose by giving a statement, clearly a witness ought not to make a charge for so doing. But it is easy to see that a llitigant would naturally be very unwilling to offend a witness by resisting—at the very commencement of his relations with him—a charge in the nature of payment for a statement.
These points are touched on as illustrating the difficulties which must necessarily attend on every system of taxation. An up-to-date scale, a set of rules based on liberal and business principles, indicating liberal and businesslike treatment of a bill of costs on taxation, may do much. Such a scale, such rules-it must be repeated—will not satisfy all litigants. Be that as it may, the first point to be borne in mind is that the immediate necessity in regard to the taxation of costs, is, that the rules and scales should be revised and altered by a small and competent committee of officials and practitioners.
E. S. ROSCOE.
V.-NOTES ON THE EARLY HISTORY OF
LEGAL STUDIES IN ENGLAND.*
ROM the title of this paper it will be understood that
I have no intention to put forward any theory or scheme of legal education. My less ambitious design is to trace in outline the history of the study of English law in
* A paper read by Joseph Walton, Esq., Q.C., before the American Bar Association, at Buffalo, N.Y., August 29, 1899.
England from its commencement to the middle of the present century. I find in your printed transactions a full account of its later development.
In order to form any accurate conception of the early history of legal studies in England, it is necessary to recall something of the origin and development of English law. For the present purpose it would be unprofitable to explore the obscure period which preceded the Norman invasion of the eleventh century. We know that when the Normans came the ordinary courts for the public administration of justice were the county courts and the hundred courts. There were already some private jurisdictions, but the Norman lords set up everywhere, throughout the land, their own courts for the administration of justice to their own tenants; and of these feudal courts, the Court of the king, the universal overlord, was the first, exercising a supreme control, the precise character of which would be difficult to define.
The state of things under the Norman kings is described by Sir Frederick Pollock and Professor Maitland, in their admirable history of English law. “The country," they say, “was becoming covered with small courts; every one who could was acquiring or assuming sake and soke ; the courts rose one above the other ; the great old tribal customs were breaking up into multitudinous petty customs. This introduced new complexities. We can see that for the writer of the Leges Henrici the grand central problem of the law is the question, Who, in the myriad of possible cases, has sake and soke, the right to hold a Court for the offender, and to pocket the profits of jurisdiction? The claims of the lords, the claims of the church, the claims of the king, are adding to the number of the various fines and mulcts that can be exacted, and are often at variance with each other. ... The old law has consisted very largely of rules about these matters; but it is falling to pieces under the pressure of those new elements which feudalism has brought with it. For a time
there must be a chaos and 'unlaw;' every lord may assume what jurisdictional power he pleases, and will be able to find in the complicated tangle of rules some plausible excuse for the assumption. Only to one quarter can we look hopefully. Above all local customs rose the custom of the King's Court. Of the law that this Court administered we know little, only we may guess that, in a certain sense, it was equity rather than strict law. ... The jurisdiction of this Court, if we may use so general a phrase, was of necessity a flexible occasional jurisprudence dealing with an unprecedented state of affairs, meeting new facts by new expedients, capable of receiving impressions from without, influenced by the growth of canon law, influenced perhaps by Lombard learning, modern in the midst of antique surroundings. . . . The future was to make the jurisprudence of the King's Court by far the most important element in the law of England, but we can hardly say that it was this during the reigns of the Norman kings. The local courts, communal and seignorial, were the ordinary tribunals for ordinary causes; the king's justice was still extraordinary.”
Such was the state of things as described by Pollock and Maitland, at the time when the strong hand of Henry II. took up the reins of government. He was a lawyer by nature. He organized his Court, made it permanent, and gave to it a staff of judges, some of whom were laymen, and others great prelates, men of learning and wide experience. Before the end of the twelfth century the jurisdiction of the King's Court could no longer be considered extraordinary. It was no longer a Court to be appealed to only in exceptional cases and by the great men. It was becoming the ordinary Court for the administration of justice to all men.
It is, I believe, quite accurate to say that it was the custom of
Pollock and Maitland's History of English Law, i. pp. 84-86. I derive the material for my account of the origin of English law mainly from this very interesting and learned work.
the King's Court which became what we know as the common law of England. Pausing here for a moment, let us consider what had been the condition of legal learning, legal literature, and legal studies in Europe during this period, extending from the Norman Conquest of 1066 to the end of the twelfth century, the period which gave birth to our English common law. The Roman, or civil, law had never entirely lost its authority on the Continent of Europe. But by the beginning of the eleventh century the teaching and study of Roman law had become almost extinct. In the latter part of the same century, however, there came a revival, the influence of which must have reached as far as England and the English Court. Archbishop Lanfranc, the adviser and minister of William the Conqueror, had studied the Institutes at Pavia, and before he came to England had probably taught Roman law in Normandy. There is abundant evidence that the writings of the famous doctors of Bologna were well known in England. In the mean time, before the middle of the twelfth century, the great system of canon law had been codified by Gratian, a monk of Bologna, whose book, known as the Decretum, was soon accepted as the recognized authority on questions of ecclesiastical law throughout Europe. And it is important to remember that the canon law was very closely allied to the Roman law, whose spirit and forms and maxims it adapted and applied to the government of the Church. There is every reason to suppose that the twelfth century was in England, as elsewhere, a time of considerable activity in the study of the Roman law, especially in connection with the development and study of the canon law.*
It was just at this time, as we have seen, that the judges of the King's Court were laying the foundations of the common law of England. Their jurisdiction was asserted and
* See lectures on The History of the Canon Law in England. Stubbs, Lectures, pp. 292-333.
exercised by the issue from the Chancery of writs, which, at this earliest period, were undoubtedly framed with reference to the requirements of each particular case as it arose. The king did not allow his justice to be fettered or confined by any rigid bonds of precedent. Many of the forms were no doubt in frequent demand, and would become common forms or writs of course. If a novel case arose in which it seemed right that the suitor should have the assistance of the King's Court, no great difficulty was made about the modification of one of the ordinary forms to adapt it to the new case ; or,
if necessary, a writ in a form entirely new might be issued. It may be asked upon what principle the Court or the Chancery proceeded in sanctioning a new form of action, or in entertaining or refusing to entertain a new kind of case ? Certainly, not upon any general rules of jurisprudence to be discovered either in the Anglo-Saxon or Norman laws. The judges of the King's Court professed to administer, and no doubt believed that they were administering, no law other than the customary law of England. The truth is that they were making the law. We know that much new law has been made by judges and by chancellors and vice-chancellors in modern times. But the difference between the cases is this, that in the twelfth and early part of the thirteenth century, when the jurisdiction of the King's Court was gradually superseding local and private jurisdictions, and thus no doubt protecting the general body of the people from the exactions and oppressions of the great feudal lords, it was practically impossible to distinguish between the claim to jurisdiction and the right to declare, in the exercise of such jurisdiction, what the law was, or, at all events, what it should be as administered by the king's judges. In dealing with new cases as they arose, the judges must have been guided mainly by the analogy of other cases already entertained as of course, by considerations of natural justice and of public convenience and policy.