reasoning fails.1 Thus we find that philosophers generally make the worst judges that can be because they are transported from the ordinary measures of right and wrong by their overfine speculations, theoryes, and distinctions above the common staple of humane conversations"; while "men of observation and experience in humane affaires and conversation between man and man make many times good judges." 2 "3 As, then, pure reason often fails us when we come to apply general principles to particular cases, as it is above all necessary that the law should be certain, "the wiser sort of the world have in all ages agreed that it is absolutely necessary that the rules of law should be fixed and settled." No doubt the fixity of these rules may sometimes work hardship in particular cases; but obviously the evil would be greater if there were no certain rules at all.5 The justification for the fixity of its rules is the balance of convenience; and both the legislator and the judge must always have before their minds in making and expounding laws this necessity of balancing convenience against inconvenience.7 Now in this difficult task of judging the reasonableness of a law we should consider that the presumption is in favour of laws made by men of experience, and of laws by which “a kingdome hath been happily governed four or five hundred yeares.' Further, as certainty is a great object, we should presume in favour of 8 any steddiness as that of laws, for the regulation and ordering of civil societies and for the measureing of right and wrong, when it comes to particulars. And therefore it is not possible for men to come to the same certainty, evidence, and demonstration touching them as may be expected in mathematicall sciences, and they that please themselves with a perswasion that they can wth as much evidence and congruitie make out an unerring systeme of laws and politiques equally applicable to all states and occasions, as Euclide demonstrates his conclusions, deceive themselves with notions wch prove ineffectuall, when they come to particular application." p. 7. 1"In moralls and especially with relation to lawes for a communitie, tho the common notion of just and fitt are common to all men of reason, yett when persons come to particular application of those common notions to particular instances and occasions wee shall rarely finde a common consente or agreement between men tho of greate reason, and that reason improved by greate study and learning, wittness the greate disagreement, between Plato and Aristotle. And lett any man but 4 Pp. 9, 10. examine the weightiness of those men that pretend to be ye greate masters of reason and possibly they may be excellent men: yet no persons differ more than they touching things of this nature. And tho they perchance have this happiness to shake and weaken one the others principles or conclusions, yett when they sett up their own positions they are weake and generally displeasing," p. 8. 2 P. 9. 3 Ibid. 5 P. 10. 6"Yett certain it is that that law is best framed that at once hath certainty, and yett induceth as few particular mischiefs as may be. And hence it is, that it is a thing of greatest difficulty, so to contrive and order any lawe that while it remedyes or provides agst one inconvenience, it introduceth not a worse or any equall,” p. 11. 7 Pp. 11-13. 9"It is a reason for me to preferre a law by wch a kingdome hath been happily governed four or five hundrd yeares than to adventure the happiness and peace of a kingdome upon some new theory of my owne, tho' I am better acquainted with the reasonableness of my owne theory than wth that law,” ibid. 8 P. 14. institutions and rules which have been settled by long experience, though the particular reason of the institution appeare not."1 It follows that a trained common lawyer who has spent his life in studying the law "will be much better fitted for right judgement therein, than he that hath no other stock to trade upon than the bare exercise of his faculty of reason, or that hath only taken the paines to read over the Titles of the Statutes or Indexes or Repertoryes of some Law Books." 2 For, "itt is not impossible but that at least some of those that have applied themselves to the studye of the laws have as farr a measure of naturall reason, as those that have adicted themselves to philosophy or other studyes, and possibly would have proved as good proficients in them had they applyed and habituated their reason to those studyes" 3-a glance at that intellectual superiority which philosophers, legal or otherwise, then as now assume over the students of those other sciences which can produce results so tangible and undisputed as law. Thus, if the certainty of the law is to be secured, a legal training is essential, and this training is also essential if its uniformity and continuity are to be preserved.* The conclusion implied, though not expressed, is, that we can expect very little practical result from a priori criticisms upon law made by philosophers, like Hobbes, who are merely smatterers in legal knowledge. It may be said that Hale, in common with most lawyers of his day, was too intolerant of the criticism of laymen, who after all felt the pinch of defects in the law; that he sometimes writes as if law existed for its own technical sake; and that he is too apt to think that, because a rule of law is settled, nothing more can be said. This criticism is to a certain extent justified, but, on the whole, Hale is very free from these faults. We shall see from his tract on the Amendment of the Laws that he could criticize the law as well as expound it; for he was not only a 5 1P. 16-"'Tis a foolish and unreasonable thing for any to find fault wth an institution because he thinkes he could have made a better, or expect a mathematicall demonstration to evince the reasonableness of an institution or the selfe evidence thereof." 4" It is one of the thinges of greatest moment in the profession of the common law to keepe as neare as may be to the certainty of the law, and the consonance of it to it selfe, that one age and one tribunall may speake the same things and carry on the same thred of the law in one uniforme rule as neare as is possible; for otherwise that wch all places and ages have contended for in laws, namely certainty and to avoid arbitrariness and that extravagance that would fall out if the reasons of judges and advocates were not kept in their traces, wold in halfe an age be lost. And this conservation of laws within their boundes and limitts could never be, unless men be well informed by studyes and readeing what were the judgemts and resolutions and decisions and interpretations of former ages," pp. 20, 21; and at pp. 21, 22, it is pointed out that this same knowledge is also needed for the orderly exposition of 5 Vol. vi c. 8. statutes. practitioner of the common law, he was also a legal historian and a student of Roman law. He defended the complexity of laws and institutions, because he knew something of the complicated causes that had given them their present shape.1 Both his technical training, and his wide intellectual outlook, led him to distrust the simple reasoning of the analytical philosopher. That he was justified in this distrust we can see more clearly than men like Stephen, who lived when the influence of Bentham and Austin was at its height. And, though the victory of the views of Coke and Hale caused both the political theory of the English state and the rules of English law to lose the clearness and certainty which the victory of Hobbes's views would have given them, yet, we shall see, that both the world of politics and the world of law have in the long run been the gainers; for the victory of these views prevented a large breach in the continuity both of the political theory of the English state, and of many fundamental rules of English law, at a time when a preservation of this continuity was a condition precedent to the establishment of constitutional government, and to the orderly development of the common law.2 Hale's defence of the laws of England would have been incomplete if it had rested here; for it would have failed to deal with the major premise on which Hobbes's reasoning was founded -his theory of sovereignty. Hale takes up this subject in the second part of his tract; but the main interest of this part of the tract is the insight which it gives us into the minds of the political thinkers of the latter part of the seventeenth century. I shall therefore speak of it in the following chapter in which I discuss the public law of that century. Hobbes and Stephen saw part of the truth, but not the whole. At the end of the sixteenth century it was obvious to the leading lawyers and statesmen of the day that some kind of restatement of the law was necessary.3 Bacon had summed up "Ye texture of humane affaires is not unlike the texture of a diseased bodey labouring under maladies, it may be of so various natures that such phisique as may be proper for the cure of one of the maladies may be destructive in relation to ye other, and ye cure of one disease may be the death of the patient,” p. II. 2 Below 489-490, 492-493. 3 A project, "To enter into a general amendment of the state of the laws, and to reduce them to more brevity and certainty," had been before Parliament in 1593, see the Dedicatory Epistle to Bacon's Maxims of the Law, Works (Ed. Spedding) vii 316; of this project Bacon never lost sight; in 1614 he addressed to the king, "A memorial touching the review of penal laws and the amendment of the common law," Spedding, Letters and Life v 84-86; in 1616 he addressed to the king a more elaborate proposal, "Touching the compiling and amendment of the laws of England," ibid vi 61-71; in 1623, in Bk. viii c. 3 of the De Augmentis, a good many of these proposals were repeated and enlarged; what follows in the text is based on the two last-mentioned works; James himself was conscious of the need for reform, see his speeches to Parliament in 1607 and 1609, Works 512, 533-534. 1 tersely and accurately some of the chief defects from which it was suffering. "Certain it is," he wrote, "that our laws, as they now stand, are subject to great incertainties, and variety of opinion, delays, and evasions: whereof ensueth (1) that the multiplicity and length of suits is great. (2) That the contentious person is armed, and the honest subject wearied and oppressed. (3) That the judge is more absolute; who, in doubtful cases, hath a greater stroke and liberty. (4) That the chancery courts are more filled, the remedy of law being often obscure and doubtful. (5) That the ignorant lawyer shroudeth his ignorance of law in that doubts are so frequent and many. (6) That men's assurances of their lands and estates by patents, deeds, wills, are often subject to question, and hollow; and many the like inconveniences.' But what form should this restatement take? It was clear, at any rate to Bacon--the man whose legal and philosophical eminence best fitted him to give an opinion on such a questionthat the construction of a logical code was impossible. "I dare not," he wrote, "advise to cast the law into a new mould, for such a remove I should hold indeed for a perilous innovation." 2 It was, he saw, politically impossible; and it is clear from the De Augmentis that there was a good deal in the existing institutions of English law which he did not wish to see changed. He accepts and approves the existence of separate courts administering civil and criminal equity on the principles of the court of Chancery and the Star Chamber. He approves the authority given in English law to reported cases, and disapproves the institution of binding responsa.5 He accepts the existence of courts of co-ordinate jurisdiction, and lays down rules for their relations inter se, not unlike those which have ultimately prevailed. In his opinion the complete codification of the law was not the best remedy. "Sure I am," he said, "there are more doubts that arise upon our statutes, which are a text law, than upon the common law, which is no text law."7 That Bacon's 1 Spedding, Letters and Life vi 64. 3 2 Ibid 67; and see ibid 18-19 for the praise which he bestowed on the common law in his letter of advice to Villiers. 3 Bk. viii c. 3 Aph. 32-46. See Aph. 45-" Apud nonnullos receptum est, ut jurisdictio, quæ decernit secundum æquum et bonum, atque illa altera, quæ procedit secundum jus strictum, iisdem curiis deputentur; apud alios autem, ut diversis. Omnino placet curiarum separatio. Neque enim servabitur distinctio casuum, si fiat commixtio jurisdictionum : sed Arbitrium Legem tandem trahet.” 4.66 Judicia enim anchoræ legum sunt, ut leges reipublicæ," Aph. 73. 7 Spedding, op. cit. vi 67-"It is too long a business to debate whether lex scripta aut non scripta, a text law or customs well registered, with received and approved grounds and maxims, and acts and resolutions judicial from time to time duly entered and reported, be the better form of declaring and authorizing laws. Customs are laws written in living tables; and some traditions the Church doth not disauthorize. In all sciences, they are the soundest that keep close to particulars; opinion was wise we can see if we take any of our great codifying statutes of the nineteenth century, and ask ourselves what kind of a codifying statute would have been produced, if that branch of the law had been codified in the sixteenth century. Bacon suggested a very much more conservative measure of law reform-of a sort not unlike that which Justinian applied to Roman law. The law was to be restated; and, as thus restated, it was to consist of two main parts—a digest of case law and a digest of statute law. In addition there were to be two auxiliary parts-a book de antiquitatibus juris, and certain other books "that conduce to the study and science of the law."2 The digest of case law was to be compiled from the Year Books and reports. Obsolete and overruled cases were to be omitted. When a case merely repeated the decisions previously settled, the bare decision was to be retained. Reports which were too prolix were to be pruned. Contradictory rulings were to be settled by Parliament or the judges. In the De Augmentis Bacon made a further suggestion to obviate one of the greatest defects of a system of case law-the defect, namely, that the solution of doubtful points of law depends upon the accident of a case arising for decision, and the willingness of the litigants to fight it. He suggested that difficult points of law might be referred to the judges from the king or state, and that they, after argument, should give an authoritative decision. The Digest of statute law was to purge the statute book of obsolete laws, penalties were to be mitigated, and statutes dealing with the same subject matter were to be consolidated. Bacon sug 3 gested later that these digests should not supersede wholly the material upon which they were based. "It will be expedient in this new digest of laws, that the old volumes do not altogether perish and pass into oblivion; but that they be preserved at least in libraries, though the ordinary and promiscuous use of them be prohibited. For in important cases it will not be amiss to and sure I am there are more doubts that rise upon our statutes, which are a text law, than upon the common law, which is no text law." Id quod fecit Tribonianus in Digesto et Codice," De Augmentis, Bk. viii c. 3 Aph. 61. 2 Spedding, op. cit. vi 68-71. 3 Aph. 92-" Judicium igitur solummodo tam judicia, quam responsa et consulta sunto. Illa de litibus pendentibus; hæc de arduis juris quæstionibus in thesi. Ea consulta, sive in privatis rebus, sive in publicis, a judicibus ipsis ne poscito (id enim si fiat, judex transeat in advocatum) sed a principe aut statu. Ab illis ad judices demandentur. Judices, vero, tali auctoritate freti, disceptationes advocatorum, vel ab his, quorum interest, adhibitorum, vel a judicibus ipsis, si opus sit, assignatorum, et argumenta ex utraque parte, audiunto; et re deliberata jus expediunto et declaranto. Consulta hujus modi inter judicia referunto et edunto, et paris auctoritatis sunto; the idea is a good one; but the only approach to anything like carrying it out is to be seen in the power of the Crown to refer points of law to the Judicial Committee of the Privy Council, vol. i 524-525. |