HARVARD LAW REVIEW VOL. XXX NOVEMBER, 1916 No. 1 A ENGLISH CIVIL LAW* I WRITER who, at the present day, should venture to offer any remarks of a general nature on English Law might well be asked to show his credentials. It may, accordingly, be mentioned, that the writer of these articles has, during the past thirteen years, been engaged, in happy conjunction with four of his former colleagues of the Oxford Law School, in a thorough and systematic examination of the whole body of the civil law of Englandi. e., the law governing the relations of English citizens with one another. Further, not only have he and they searched the evidence, but they have bound themselves to state the result in its most compact and logical form a task which has involved the keenest and most thorough discussion of disputed points, and an elaborate winnowing of the chaff from the grain. And, whilst it would be claiming too much to allege that each one of the 2200 and odd paragraphs of the Digest of English Civil Law 1 represents the individual opinion of all the five authors of that work (such a claim would, in effect, be its own condemnation), it is true Author's rights in all countries expressly reserved. 1 Digest of ENGLISH CIVIL LAW. By Edward Jenks (editor), W. M. Geldart, W. S. Holdsworth, R. W. Lee, and J. C. Miles. (Boston, U. S. A.; Boston Book Co., London (England); Butterworth & Co. 1905-16.) Referred to in these pages as the 'DIGEST' to say, that no one of these paragraphs has appeared in print without being subject to the scrutiny of at least three critics, whose criticism was none the less keen that it was entirely friendly. At least the writer of these pages, upon whom, as editor of the work, the shafts of criticism most fiercely fell, will hardly forget, whilst life lasts, the long arguments, sometimes prolonged almost to the point of physical exhaustion, which heralded the birth of some of the most contentious paragraphs of the Digest. The writer and his colleagues would fain hope that this work, though it cannot claim the full tale of Fortescue's viginti annorum lucubrationes, may be of some use to the students and practitioners of English Law, and fill an unique, if modest, niche in the temple of legal literature. At any rate, it seems not unfair to claim that its editor, under whose hands the image slowly grew, must have made some close acquaintance with the materials of which it is carved. The very fact that such a task has been accomplished, even with moderate success,2 would seem to be in itself of some importance as a refutation of the obscurantist theory, at one time widely prevalent, that English Law (or at least much of it) is incapable of being stated in the form of simple rules or principles. The advocates of this view would appear to have been blind to the grave imputation which it cast upon a system which they profess to admire; but it is not improbable that their attitude, in so far as it was not the result of mere conservative prejudice, was due to an imperfect apprehension of the difference between a Digest and a Code. The terms are, no doubt, used inconsistently by jurists; but, whatever the terms used, there is a clear distinction between a Code which professes to provide for all possible cases, and a Digest which merely professes to state in orderly form authoritative rules of law. That English Law is yet ripe, or ever will be, for codification in the sense above defined, may well be doubted; certainly the writer is not prepared to discuss here the wisdom of proposals for codification. But, as the success of the Sale of Goods Act, the Bills of Exchange The authors of the DIGEST may fairly pride themselves upon the fact that, in the eleven years during which the work has been in the press, no mistake of any importance has been discovered in the text. One or two omissions have been detected; and a certain number of changes in the law have been made while the work has been in progress. These have been duly noted in the Errata and Corrigenda of later volumes, and will be incorporated into the reissue of the completed work. Act, and the Partnership Act, has shown, the rich materials of English Law may with advantage be moulded into accessible and logical form. And, though the writer believes that he is speaking for his colleagues as well as for himself in disclaiming any comparison with those triumphs of the draftsman's art, he ventures to think that the Digest of English Civil Law has shown that the process may be extended a good deal further than it has at present gone. Another of the obvious lessons learned (or confirmed) from the thirteen years of hard labour which have gone to the making of the Digest, is a realization of the extraordinary inequalities which mark the different parts of the civil law of England. The English Law of Contract, for example, is scientific and complete; it assumed scientific form at a happy time, just when the genius of Lord Mansfield had incorporated the Law Merchant (surely a priceless adoption) into English Law. Had the structure been earlier framed, it might well have been cramped and inelastic; the archaic 'special contracts' which survive alongside the innominate contracts of modern business, and stand in such puzzling relationship to the general theory of contract,3 are warnings of what might have happened. But they have had their uses in building up a scientific theory, though as models they 'leave to be desired.' A friendly reviewer of the second volume of the Digest expended a certain amount of genial 'chaff' upon a sentence in the Preface to that volume, which spoke of Gaming Contracts as 'social relationships regulated by law'; but the writer of the Preface is wholly unrepentant, for he believes that the primitive and deep-seated gambling instinct of the English race has played no small part in the evolution of the peculiarly English institution of the simple contract, and that the hundreds of lost and forgotten dice recovered from the ancient floor of the Middle Temple Hall may have had a closer connection with the theory of contract than has hitherto been guessed. Still, he would not deny, that the somewhat arbitrary rules which govern the Special Contracts dealt with in the third volume of the Digest, were well superseded by the simpler rules which now apply to innominate contracts. The English Law of Property, though different in many ways from the Law of Contract, resembles it in fullness and minuteness. • The true relationship of these two parts of the Law of Contract has been suggested in the Preface to Vol. III of the DIGEST./ In fact, so minute is it, that it not only provides two sets of rules, the one dealing with land, the other with movables; but in one corner of its field of operations it actually provides three alternative sets of rules for a single process, varying with the hands to which that process is entrusted. Thus, if an insolvent estate is administered by executors out of Court (surely a rash proceeding!), the old rules of equity, as they stood at the passing of the Judicature Acts, govern the case. If the estate is being administered by the Chancery Division, these rules are modified by such (but only such) of the bankruptcy rules as are incorporated into that administration by section 10 of the Judicature Act, 1875. If the proceedings are in the bankruptcy jurisdiction, all the bankruptcy rules (with slight modifications) apply. Surely this is excess of zeal. But if in some directions the English Law of Property is minute and detailed, in others it is extraordinarily incomplete. Thus, while it is possible to state with reasonable precision most of the rules of Real Property Law, yet, for want of an authoritative background, these rules must inevitably appear, to a student unacquainted with the history and the atmosphere of the system, arbitrary to the last degree. The author of Book III of the Digest has endeavoured to state, in the first Title of that Book, the fundamental principles upon which these rules are based; but, like Mr. William Lloyd Garrison's coloured interviewer, and for similar reasons, he will not attempt to disguise from his readers the fact that he has been obliged to supplement his text with a strictly unpermissible buttress of notes, and that, even with such assistance, he has laid himself open to the criticism of a learned friend, who observed that the Book was sadly oblivious of the 'mystery of seisin.' As for property in movables, the English system has frankly given up in despair any attempt to formulate scientific rules on that subject, and has, substantially speaking, contented itself with dealing only with possession. Analytical jurists, who are seldom less convincing than when they venture to draw conclusions from that history which they ostentatiously profess to despise, have, it • The narrowness of the territory common to both subjects may be realized from a glance at the scanty proportions of Bk. III, Sect. XV, of the DIGEST. But a certain allowance should be made for testamentary disposition. is believed, claimed this fact as a proof of the very debatable proposition, that property is the outcome of possession ripened by length of time and legal protection. To the writer, this doctrine appears to be, not only anarchical, and even immoral, but opposed to the well-known facts of English legal history. Surely the Writ of Right, and even the Grand Assize, are older than the Possessory Assizes and the Writ of Trespass; and, though the common law doctrine of larceny was based upon trespass, there is no evidence that the older English law of theft grew out of a law which protected seisin or possession. The matter is, perhaps, strictly irrelevant; but the truth seems to be, that, long ere the distinction between property and possession is recognized, primitive legal systems recognize some kinds of association between persons and material objects as a 'right' which is, at first, no doubt, inconceivable as existing apart from physical control, but which is at least as much proprietary as possessory in its character. And when the time comes for the specialization of ideas to be effected, it is, apparently, possession, rather than property, which is the conscious production of juristic speculation. At least, such appears to be the teaching of English Law; and it is supported by the facts of other systems. And if we ask why, for example, the common law devoted itself to the protection of the possession, rather than the ownership, of movables, the answer given by English legal history appears to be, that the invention of the great Writ of Trespass, introduced in the interests of public order, and the increasing sharpness of the notion of possession which resulted from it, were found so convenient, with a little adaptation, for deciding indirectly questions of ownership of chattels, that the need of a true proprietary process did not appear urgent. A similar result led to the practical disappearance from land law of the Writ of Right in the century following the invention of the Writ of Trespass; but it may be shrewdly suspected that, so long as the local courts continued to be active tribunals, a good deal was heard in them of questions of title. If we turn now from the Law of Contract and the Law of Property to Family Law and the Law of Torts, we shall be struck at once by the comparative poverty of these two important branches of English Law. It is assuredly no fault of Professor Geldart that Book IV of the Digest is so scanty, and that much even of its |