The History of English Law before the Time of Edward I. Frederic William Maitland

the Second Book we have tried to set forth at some length the doctrines and rules of English law which prevailed in the days of Glanvill and the days of Bracton, or, in other words, under Henry II., his sons and grandson. The chapters of our First Book are allotted to various periods of history, those of the Second to various branches of law. In a short Introduction we hope to explain why we have been guilty of what may be regarded as certain offences, more especially certain offences of omission.

      It has been usual for writers commencing the exposition of any particular system of law to undertake, to a greater or less extent, philosophical discussion of the nature of laws in general, and definition of the most general notions of jurisprudence. We purposely refrain from any such undertaking. The philosophical analysis and definition of law belongs, in our judgment, neither to the historical nor to the dogmatic science of law, but to the theoretical part of politics. A philosopher who is duly willing to learn from lawyers the things of their own art is full as likely to handle the topic with good effect as a lawyer, even if that lawyer is acquainted with philosophy, and has used all due diligence in consulting philosophers. The matter of legal science is not an ideal result of ethical or political analysis; it is the actual result of facts of human nature and history. Common knowledge assures us that in every tolerably settled community there are rules by which men are expected to order their conduct. Some of these rules are not expressed in any authentic form, nor declared with authority by any person or body distinct from the community at large, nor enforced by any power constituted for that purpose. Others are declared by some person or body having permanently, or for the time being, public authority for that purpose, and, when so declared, are conceived as binding the members of the community in a special manner. In civilized states there are officers charged with the duty and furnished with the means of enforcing them. Of the former kind are the common rules of morals and manners, in so far as they do not coincide with rules of law. We shall find that in England, as elsewhere, and in times which must be called recent as compared with the known history of ancient civilization, many things were left to the rule of social custom, if not to private caprice or uncontrolled private force, which are now, as a matter of course, regulated by legislation, and controlled by courts of justice. By gradual steps, as singularly alike in the main in different lands and periods, at the corresponding stages of advance, as they have differed in detail, public authority has drawn to itself more and more causes and matters out of the domain of mere usage and morals; and, where several forms of public authority have been in competition (as notably, in the history of Christendom, the Church has striven with secular princes and rulers to enlarge her jurisdiction at their expense), we find that some one form has generally prevailed, and reigns without serious rivalry. Thus, in every civilized Commonwealth we expect to find courts of justice open to common resort, where judges and magistrates appointed in a regular course by the supreme governors of the Commonwealth, or, at least, with their allowance and authority, declare and administer those rules of which the State professes to compel the observance. Moreover, we expect to find regularly appointed means of putting in force the judgments and orders of the courts, and of overcoming resistance to them, at need, by the use of all or any part of the physical power at the disposal of the State. Lastly, we expect to find not only that the citizen may use the means of redress provided and allowed by public justice, but that he may not use others. Save in cases particularly excepted, the man who takes the law into his own hands puts himself in the wrong, and offends the community. “The law is open, and there are deputies; let them implead one another.” Such are for the citizen, the lawyer, and the historian, the practical elements of law. When a man is acquainted with the rules which the judges of the land will apply to any subject of dispute between citizens, or to any act complained of as an offence against the common weal, and is further acquainted with the manner in which the decision of the competent court can be enforced, he must be said to know the law to that extent. He may or may not have opinions upon the metaphysical analysis of laws or legal duty in general, or the place of the topic in hand in a scientific arrangement of legal ideas. Law, such as we know it in the conduct of life, is matter of fact; not a thing which can be seen or handled, but a thing perceived in many ways of practical experience. Commonly there is no difficulty in recognizing it by its accustomed signs and works. In the exceptional cases where difficulties are found, it is not known that metaphysical definition has ever been of much avail.

      It may be well to guard ourselves on one or two points. We have said that law may be taken for every purpose, save that of strictly philosophical inquiry, to be the sum of the rules administered by courts of justice. We have not said that it must be, or that it always is, a sum of uniform and consistent rules (as uniform and consistent, that is, as human fallibility and the inherent difficulties of human affairs permit) administered under one and the same system. This would, perhaps, be the statement of an ideal which the modern history of law tends to realize rather than of a result yet fully accomplished in any nation. Certainly it would not be correct as regards the state of English legal institutions, not only in modern but in quite recent times. Different and more or less conflicting systems of law, different and more or less competing systems of jurisdiction, in one and the same region, are compatible with a high state of civilization, with a strong government, and with an administration of justice well enough liked and sufficiently understood by those who are concerned.

      Another point on which confusion is natural and may be dangerous is the relation of law to morality. Legal rules are not merely that part of the moral rules existing in a given society which the State thinks proper to enforce. It is easily recognized that there are, and must be, rules of morality beyond the commandments of law; no less is it true, though less commonly recognized, that there are and must be rules of law beyond or outside the direct precepts of morality. There are many things for which it is needful or highly convenient to have a fixed rule, and comparatively or even wholly indifferent what that rule shall be. When, indeed, the rule is fixed by custom or law, then morality approves and enjoins obedience to it. But the rule itself is not a moral rule. In England men drive on the left-hand side of the road, in the United States and nearly all parts of the Continent of Europe on the right. Morality has nothing to say to this, except that those who use the roads ought to know and observe the rule, whatever it be, prescribed by the law of the country. Many cases, again, occur, where the legal rule does not profess to fulfil anything like perfect justice, but where certainty is of more importance than perfection, and an imperfect rule is therefore useful and acceptable. Nay, more, there are cases where the law, for reasons of general policy, not only makes persons chargeable without proof of moral blame, but will not admit proof to the contrary. Thus, by the law of England, the possessor of a dangerous animal is liable for any mischief it may do, notwithstanding that he may have used the utmost caution for its safe keeping. Thus, in our modern law, a master has to answer for the acts and defaults of a servant occupied about his business, however careful he may have been in choosing and instructing the servant. Thus, again, there are cases where an obviously wrongful act has brought loss upon innocent persons, and no redress can be obtained from the primary wrong-doer. In such cases it has to be decided which of those innocent persons shall bear the loss. A typical example is the sale of stolen goods to one who buys them in good faith. The fraudulent seller is commonly out of reach, or, if within reach, of no means to make restitution. Either the true owner must lose his goods, or the purchaser must lose his money. This question, simple enough as to the facts, is on the very border-line of legal policy. Some systems of law favour the first owner, some the purchaser, and in our English law itself the result may be one way or the other, according to conditions quite independent of the actual honesty or prudence of the parties. In the dealings of modern commerce, questions which are reducible to the same principle arise in various ways which may be complicated to an indefinite extent. Evidently there must be some law for such cases; yet no law can be made which will not seem unjust to the loser. Compensation at the public expense would, perhaps, be absolutely just, and it might be practicable in a world of absolutely truthful and prudent people. But in such a world frauds would not be committed on individuals any more than on the State.

      Another point worth mention is that the notion of law does not include of necessity the existence of a distinct profession of lawyers, whether as judges or as advocates. There cannot well be a science of law without such a profession; but justice can be administered according to settled rules by persons taken from the general body of citizens for the occasion, or in a small community even by the whole body of qualified citizens; and under the most advanced legal