I.

Lecture never can be. It can never reach a fixed and final form. English law in the shape in which we have it is thus essentially a growth, a historical development, the work, I repeat, chiefly of the lawyers and judges of England through a succession of

Reposi

tories of English law.

centuries.

and

As the lawyers and judges of England are the main builders of the English law (at least as respects its repositories and its external and authoritative form), it is at all events interesting in my judgment it is in no small degree necessary to a thorough conception of the manner in which they have wrought this great work, and of their fitness for it to understand the methods of the legal education, training, and discipline of the bar, and the nature of the powers, functions, and duties of the judges. And here it is to be observed that the judges in England are not a distinct branch of the profession, but are merely eminent members of it, selected for judicial office by reason of qualifications and character. So that, in fact, the fashioning of the laws of England is, in its last analysis, the work, not of lawyers and judges, but in a broad sense the work of the bar, of whom the judges are an integral, and in virtue of the functions and powers of the judicial office a most important, part.

The extant English judicial records do not begin until 1194 (Mich. 6 Rich. I.). We have a series of

1 "From an early time our judicial system has been independent of Continental culture, and singularly independent of the other departments of the government. The judges have not been a special branch of the profession, but selected, under an efficient criticism of skilled opinion, from the profession at large." Pollock, "Oxford Lectures," London, 1890, p. 25. See post Lecture II.

I.

such records from 1384 (6 Rich. II.). The first law Lecture treatise by Glanvill was not written before 1187. The law reports begin in 1292.1 The knowledge of the laws of England prior to the twelfth century is in many points obscure and uncertain. From that time, however, the growth and development of these laws can be traced in the parliamentary and official records, treatises, and law reports.

our legal system

due to the evolution

mode of its

By the time of Edward I., if not before, we reach the important era when the judicial office is separated from the kingly office, and when justice is administered by the judges and in the judicial courts. I have not time to unfold all that this sim- Merits of ple statement implies, or to set forth its great, permanent, and beneficent consequences. To this fact may indeed be traced nearly all that in the course of these lectures I shall say concerning the merits and value of the laws of England and America as they now exist. I can only remark that administering justice by and through the judges and in the courts theoretically means, and for two hundred years has actually meant, that the judges are free from any

1 Markby, "Elements of Law," § 90. 5 Harvard Law Review, 1892, p. 252, Professor Thayer's paper on "The Jury and its Development.”

2 "We may say," remarks Freeman, "that in the time of Edward I., A. D. 1272–1307, the English Constitution definitely put on the same essential form which it has kept ever since. . . . From that time English constitutional history is not merely an inquiry, however interesting and instructive, into something which has passed away. It is an inquiry into something that still lives; it is an inquiry into laws which, whenever they have not been formally repealed, are in full force at this day. Up to the reign of Edward I. English history is strictly the domain of antiquaries. From the reign of Edward I. it becomes the domain of lawyers." Freeman's "Growth of the English Constitution," chap. ii.

in the ju

dicial

courts.

I.

Merits of our legal system due to its

judicial evolution.

Lecture control or interference by the Crown or Parliament, and that the King, though in legal theory the fountain of justice, cannot pronounce any judgment, or in the slightest degree infringe or authorize an infringement upon the legal rights of the least of his subjects. It means that the judges must be selected from the bar; and until very recently the common law judges had to be of the degree or estate of serjeant-at-law, long the highest, and never in point of learning an inferior, rank in the profession. The judges act under the solemnity of an oath of office. They sit in public. They must hear arguments on both sides. They do not possess arbitrary power, but are bound by positive enactments and by the decisions of their predecessors. They must deliver judgments openly, and in important causes state the grounds and reasons therefor. They have the power to enforce their judgments and decrees. Publicity as a restraint upon judicial tyranny, oppression, and corruption, both in its grosser and subtler forms, is of the highest and most wholesome consequence. The discontinuance of the salutary practice of giving reasoned opinions is justly regarded as one of the worst innovations of servile judges of the Stuart period.3

1 See post Lectures IV., VIII.

2 See post Lecture II.

3 Hearn, “Government of England,” 2d ed., pp. 66, 71, 78, 558, 562, 563. Lord Bacon condenses the matter thus: "Let not the judgments of the courts be given in silence, but let the judges produce the reasons of their sentence openly and in full audience of the court, so that what is free in power may yet be limited by regard to fame and reputation." Bacon, "Advancement of Learning," Book VIII., chap. iii., Aphorism xxxviii., Devey's Translation, Bohn Libraries. The importance of judicial opinions, and of their publicity, is

I.

Essential

of justice.

The essential attributes of courts of justice, if I Lecture may attempt to define them, are that they shall be held by judges appointed or selected for that pur- attributes pose; that cases and controversies therein shall be of courts cast in some form of pleadings resulting in specific issues of law or fact, in which, on issues of fact, only competent evidence is admissible, and if not documentary, to be given under the sanction of an oath, with the right to cross-examine; that there shall be a public trial or hearing resulting in a judgment or

enforced by Burke in his great and (considering that he had never been called to the bar) wonderful Report of April 30, 1794, from the committee appointed to inspect the Lords' Journal in relation to their proceeding upon the trial of Warren Hastings. "Works of Edmund Burke," vol. xi., 4th ed., Little, Brown, & Co., Boston, 1871, pp. 2949, 153. It was in the course of this report that he made the following most weighty observations: "English jurisprudence has not any other sure foundation, nor, consequently, the lives and properties of the subject any sure hold, but in the maxims, rules, principles, and judicial traditionary line of decisions contained in the notes taken, and from time to time published (mostly under the sanction of the judges), called Reports." Ib., p. 42. To give judgment privately is to put an end to reports; and to put an end to reports is to put an end to the law of England. It was fortunate for the Constitution of this kingdom that in the judicial proceedings in the case of shipmoney the judges did not then venture to depart from the ancient course. They gave and they argued their judgment in open court. Their reasons were publicly given, and the reasons assigned for their judgment took away all its authority. The great historian, Lord Clarendon, at that period a young lawyer, has told us that the judges gave as law from the bench what every man in the hall knew not to be law." lb., p. 44. "All courts," says Lord Brougham, "ought to sit and give their judgments in public, and the fullest liberty should be given to the publication through the press of all their proceedings." "The British Constitution," vol. ii., p. 322, Black's ed., Edinburgh, 1872. And elsewhere he observes that: "With an enlightened bar and an intelligent people, the mere authority of the bench will cease to have any weight at all, if it be unaccompanied with argument and explanation." Further as to Law Reports, see post Lectures VI., IX., X., and XIII.

Lecture decree, which the court has the inherent power, by

I.

Judicial

as the

its own officers, process and machinery, to enforce. Such a court is the tribunal to which Mr. Justice Blatchford, speaking for the Supreme Court of the United States, refers in the great Minnesota case, wherein he affirms the right of a party to "a judi"cial investigation by due process of law under the "forms and with the machinery provided by the "wisdom of successive ages for the investigation "judicially of the truth of a matter in controversy." The difference between judicial courts constituted of judges, and any form of legislative tribunal not constituted of judges but of commissioners or other officials by whatsoever name they may be called, is of vital moment to the rights and liberties of the citizen.

แ

1

I shall hereafter take especial occasion further to judgments show that the rules of English law are all-embracing source and in their protective energy, and that they have, in the individual main, been the work of the courts which have

evidence of

rights.

defined, established, and enforced them. They have their source or authoritative evidence in the

adjudged rights of individuals. These rights, secured by the decisions of the courts, make the Constitution of England; they are not created by and are not the product of the Constitution.2 These glorious characteristics, these fundamental principles, these crowning excellences of the English law, have been inherited or adopted in all their amplitude in this country. Not only so, but

1 Chicago, etc., Railway Company v. Minnesota (extent of legislative power to fix railway rates), 134 U. S. Rep. 418, 457, 1889. 2 See on this subject post Lecture VII.