A Recent History of English Law

Authors

Arthur Lyon Cross, University of Michigan Department of History

Abstract

In 1607, if his own word can be behaved, "tough old Sir Edward Coke," that monster of legal learning, told King James I "that causes which concern the life, or inheritance, or goods, or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of the law, which requires long study and experience before a man can attain to the cognizance of it." The celebrated Sir John Fortesque, when pressed on one occasion in the reign of Henry VI by the legal absurdity of a distinction he was laying down as to when a writ of scire facias would and when it would not issue against a person who had possession of the goods of one attainted, finally declared: "Sir, the law is as I say it is, and so it has been laid down ever since the law began, and we have several set forms which are held as law, and so held and used for good reason, though we cannot remember that reason." Then in the case of pleading, for example, we are told that: "rules based upon primitive legal ideas, and upon the physical necessities of an older age, became the permanent basis of an elaborate structure of technical rules. The rules of law on this subject had become fixed before they had had time to become rational." Truly the law does: often seem to be based upon artificial reason, and many rules that seem at present obscure and difficult to understand are only explicable by a knowledge of the circumstances under which they arose and by a patient study of their strange and tortuous development. No one of our existing institutions is more securely rooted in the past, none shows a more unbroken continuity of, growth than our law. The constant dependence of the judge of today upon ancient precedent is too well recognized to require comment. Burke said over a century ago: "the English jurisprudence hath not any other sure foundation nor consequently the lives and property of the subject any sure hold, but in the maxims, rules and 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. To give judgment privately is to put an end to the Reports; and to put an end to the Reports is to put an end to the law of England." These words would apply almost equally well to the law of present day England, and, to a somewhat less degree, to that of our own land.

Recommended Citation

Arthur L. Cross, A Recent History of English Law, 9 Mich. L. Rev. 1 (1910).
Available at: https://repository.law.umich.edu/mlr/vol9/iss1/2