Chapter 3

The preceding sketch has had reference mainly to the grammatical changes which the language has undergone; distinct from, though intimately connected with these (as where the confusion or loss of inflections was a consequence of the weakening of final sounds) are the great phonetic changes which have taken place between the 8th and 19th centuries, and which result in making modern English words very different from their Anglo-Saxon originals, even where no element has been lost, as in words likestone,mine,doom,day,nail,child,bridge,shoot, Anglo-Saxonstán,mín,dóm,dæg,nægel,cild,brycg,scéot. The history of English sounds (seePhonetics) has been treated at length by Dr A.J. Ellis and Dr Henry Sweet; and it is only necessary here to indicate the broad facts, which are the following, (1) In an accented closed syllable, original short vowels have remained nearly unchanged; thus the wordsat,men,bill,God,dustare pronounced now nearly as in Old English, though the last two were more like the Scotchoand North Englishurespectively, and in most words the shortahad a broader sound like the provincialainman. (2) Long accented vowels and diphthongs have undergone a regular sound shift towards closer and more advanced positions, so that the wordsbán,hær,soeceorséce,stól(bahnorbawn,hêr,sökorsaik,stōle) are nowbōne,hair,seek,stool; while the two high vowelsú(=oo) andi(ee) have become diphthongs, ashús,scír, nowhouse,shire, though the old sound ofuremains in the north (hoose), and the originaliin the pronunciationsheer, approved by Walker, “as in machine, and shire, and magazine.” (3) Short vowels in an open syllable have usually been lengthened, as innă-ma,cŏ-fa, nowname,cove; but to this there are exceptions, especially in the case ofĭandŭ. (4) Vowels in terminal unaccented syllables have all sunk into short obscureĕ, and then, if final, disappeared; sooxa,séo,wudubecameox-e,se-e,wud-e, and thenox,see,wood;oxan,lufod, nowoxen,loved,lov’d;settan,setton, latersetten,sette,sett, nowset. (5) The back consonants,c,g,sc, in connexion with front vowels, have often become palatalized toch,j,sh, ascirce,rycg,fisc, nowchurch,ridge,fish. A medial or finalghas passed through a guttural or palatal continuant towory, forming a diphthong or new vowel, as inboga,laga,dæg,heg,drig, nowbow,law,day,hay,dry.Wandhhave disappeared beforerandl, as inwrite, (w)lisp, (h)ring;hfinal (=gh) has becomef,k,wor nothing, but has developed the glidesuoribefore itself, these combining with the preceding vowel to form a diphthong, or merging with it into a simple vowel-sound, asruh,hoh,boh,deah,heah,hleah, nowrough,hough,bough,dough,high,laugh=ruf,hok,bŏw,dō,hī,lâf.Rafter a vowel has practically disappeared in standard English, or at most become vocalized, or combined with the vowel, as inhear,bar,more,her. These and other changes have taken place gradually, and in accordance with well-known phonetic laws; the details as to time and mode may be studied in special works. It may be mentioned that the total loss of grammaticalgenderin English, and the almost complete disappearance ofcases, are purely phonetic phenomena.Gender(whatever its remote origin) was practically the use of adjectives and pronouns with certain distinctive terminations, in accordance with thegenus,genre,genderorkindof nouns to which they were attached; when these distinctive terminations were uniformly levelled to finalĕ, or other weak sounds, and thus ceased to distinguish nouns into kinds, the distinctions into genders or kinds having no other existence disappeared. Thus whenþæt godé hors,þone godan hund,þa godan bóc, became, by phonetic weakening,þe gode hors,þe gode hownd,þe gode boke, and later still thegood horse, thegood hound, thegood book, the wordshorse,hound,bookwere no longer grammatically different kinds of nouns; grammatical gender had ceased to exist. The concord of adjectives has entirely disappeared; the concord of the pronouns is now regulated byrationalityandsex, instead of grammatical gender, which has no existence in English. The manwholosthislife; the birdwhichbuiltitsnest.

Our remarks from the end of the 14th century have been confined to the standard or literary form of English, for of the other dialects from that date (with the exception of the northernEnglish in Scotland, where it became in a social and literary sense a distinct language), we have little history. We know, however, that they continued to exist as local and popular forms of speech, as well from occasional specimens and from the fact that they exist still as from the statements of writers during the interval. Thus Puttenham in hisArte of English Poesie(1589) says:—

“Our maker [i.e.poet] therfore at these dayes shall not follow Piers Plowman, nor Gower, nor Lydgate, not yet Chaucer, for their language is now not of use with us: neither shall he take the termes of Northern-men, such as they use in dayly talke, whether they be noble men or gentle men or of their best clarkes, all is a [= one] matter; nor in effect any speach used beyond the river of Trent, though no man can deny but that theirs is the purer English Saxon at this day, yet it is not so Courtly nor so currant as ourSoutherneEnglish is, no more is the far Westerne mans speach: ye shall therefore take the usual speach of the Court, and that of London and the shires lying about London within lx myles, and not much above. I say not this but that in every shyre of England there be gentlemen and others that speake but specially write as good Southerne as we of Middlesex or Surrey do, but not the common people of every shire, to whom the gentlemen, and also their learned clarkes do for the most part condescend, but herein we are already ruled by th’ English Dictionaries and other bookes written by learned men.”—Arber’s Reprint, p. 157.

In comparatively modern times there has been a revival of interest in these forms of English, several of which following in the wake of the revival of Lowland Scots in the 18th and 19th centuries, have produced a considerable literature in the form of local poems, tales and “folk-lore.” In these respects Cumberland, Lancashire, Yorkshire, Devon, Somerset and Dorset, the “far north” and “far west” of Puttenham, where the dialect was felt to be so independent of literary English as not to be branded as a mere vulgar corruption of it, stand prominent. More recently the dialects have been investigated philologically, a department in which, as in other departments of English philology, the elder Richard Garnett must be named as a pioneer. The work was carried out zealously by Prince Louis Lucien Bonaparte and Dr A.J. Ellis, and more recently by the English Dialect Society, founded by the Rev. Professor Skeat, for the investigation of this branch of philology. The efforts of this society resulted in the compilation and publication of glossaries or word-books, more or less complete and trustworthy, of most of the local dialects, and in the production of grammars dealing with the phonology and grammatical features of a few of these, among which that of the Windhill dialect in Yorkshire, by Professor Joseph Wright, and that of West Somerset, by the late F.T. Elworthy, deserve special mention. From the whole of the glossaries of the Dialect Society, and from all the earlier dialect works of the 18th and 19th centuries, amplified and illustrated by the contributions of local collaborators in nearly every part of the British Isles, Professor Joseph Wright has constructed hisEnglish Dialect Dictionary, recording the local words and senses, with indication of their geographical range, their pronunciation, and in most cases with illustrative quotations or phrases. To this he has added anEnglish Dialect Grammar, dealing very fully with the phonology of the dialects, showing the various sounds which now represent each Old English sound, and endeavouring to define the area over which each modern form extends; the accidence is treated more summarily, without going minutely into that of each dialect-group, for which special dialect grammars must be consulted. The work has also a very full and valuable index of every word and form treated.

The researches of Prince L.L. Bonaparte and Dr Ellis were directed specially to the classification and mapping of the existing dialects,28and the relation of these to the dialects of Old and Middle English. They recognized aNortherndialect lying north of a line drawn from Morecambe Bay to the Humber, which, with the kindred Scottish dialects (already investigated and classed),29is the direct descendant of early northern English, and aSouth-westerndialect occupying Somerset, Wilts, Dorset, Gloucester and western Hampshire, which, with theDevoniandialect beyond it, are the descendants of early southern English and the still older West-Saxon of Alfred. This dialect must in the 14th Century have been spoken everywhere south of Thames; but the influence of London caused its extinction in Surrey, Sussex and Kent, so that already in Puttenham it had become “far western.” AnEast Midlanddialect, extending from south Lincolnshire to London, occupies the cradle-land of the standard English speech, and still shows least variation from it. Between and around these typical dialects are ten others, representing the old Midland proper, or dialects between it and the others already mentioned. Thus “north of Trent” theNorth-westerndialect of south Lancashire, Cheshire, Derby and Stafford, with that of Shropshire, represents the early West Midland English, of which several specimens remain; while theNorth-easternof Nottingham and north Lincolnshire represents the dialect of theLay of Havelok. With theNorth Midlanddialect of south-west Yorkshire, these represent forms of speech which to the modern Londoner, as to Puttenham, are still decidedly northern, though actually intermediate between northern proper and midland, and preserving interesting traces of the midland pronouns and verbal inflections. There is anEasterndialect in the East Anglian counties; aMidlandin Leicester and Warwick shires; aWesternin Hereford, Worcester and north Gloucestershire, intermediate between south-western and north-western, and representing the dialect ofPiers Plowman. Finally, between the east midland and south-western, in the counties of Buckingham, Oxford, Berks, Hants, Surrey and Sussex, there is a dialect which must have once been south-western, but of which the most salient characters have been rubbed off by proximity to London and the East Midland speech. In east Sussex and Kent thisSouth-easterndialect attains to a more distinctive character. TheKentishform of early Southern English evidently maintained its existence more toughly than that of the counties immediately south of London. It was very distinct in the days of Sir Thomas More; and even, as we see from the dialect attributed to Edgar inLear, was still strongly marked in the days of Shakespeare. In the south-eastern corner of Ireland, in the baronies of Forth and Bargy, in county Wexford, a very archaic form of English, of which specimens have been preserved,30was still spoken in the 18th century. In all probability it dated from the first English invasion. In many parts of Ulster forms of Lowland Scotch dating to the settlement under James I. are still spoken; but the English of Ireland generally seems to represent 16th and 17th century English, as in the pronunciation oftea,wheat(tay,whait), largely affected, of course, by the native Celtic. The subsequent work of the English Dialect Society, and the facts set forth in theEnglish Dialect Dictionary, confirm in a general way the classification of Bonaparte and Ellis; but they bring out strongly the fact that only in a few cases can the boundary between dialects now be determined by precise lines. For every dialect there is a central region, larger or smaller, in which its characteristics are at a maximum; but towards the edges of the area these become mixed and blended with the features of the contiguous dialects, so that it is often impossible to define the point at which the one dialect ends and the other begins. The fact is that the various features of a dialect, whether its distinctive words, characteristic pronunciations or special grammatical features, though they may have the same centre, have not all the same circumference. Some of them extend to a certain distance round the centre; others to a much greater distance. The only approximately accurate way to map the area of any dialect, whether in England, France, Germany or elsewhere, is to take a well-chosen set of its characteristic features—words, senses, sounds or grammatical peculiarities, and draw a line round the area over which each of these extends; between the innermost and outermost of these there will often be a large border district. If the same process be followed with the contiguous dialects, it will be found that some of the lines of each intersect some of the lines of the other, and that the passing of one dialect into another is not effected by the formation of intermediate or blended forms of any one characteristic, but by the overlapping or intersecting of more or fewer of the features of each. Thus a definite border village or district may use 10 of the 20 features of dialect A and 10 of those of B, while a village on the one side has 12 of those of A with 8 of those of B, and one on the other side has 7 of those of A with 13 of those of B. Hence a dialect boundary line can at best indicate the line within which the dialect has, on the whole, more of the features of A than of B or C; and usually no single line can be drawn as a dialect boundary, but that without it there are some features of the same dialect, and within it some features of the contiguous dialects.

CHRONOLOGICAL TABLE OF THE PERIODS AND DIALECTS OF THE ENGLISH LANGUAGE

The vertical lines represent the four leading forms of English—Northern,Midland,Southern, andKentish—and the names occurring down the course of each are those of writers and works in that form of English at the given date. The thickness of the line shows the comparative literary position of this form of speech at the time:thickindicating aliterary language;medium, aliterary dialect;thin, apopular dialectorpatois; adottedline shows that this period isunrepresentedby specimens. The horizontal lines divide the periods; these (after the first two) refer mainly to the Midland English; in inflectional decay the Northern English was at least a century in advance of the Midland, and the Southern nearly as much behind it.

Beyond the limits of the British Isles, English is the language of extensive regions, now or formerly colonies. In all these countries the presence of numerous new objects and new conditions of life has led to the supplementing of the vocabulary by the adoption of words from native languages, and special adaptation and extension of the sense of English words. The use of a common literature, however, prevents the overgrowth of these local peculiarities, and also makes them more or less familiar to Englishmen at home. It is only in the older states of the American Union that anything like a local dialect has been produced; and even there many of the so-called Americanisms are quite as much archaic English forms which have been lost or have become dialectal in England as developments of the American soil.

The steps by which English, from being the language of a few thousand invaders along the eastern and southern seaboard of Britain, has been diffused by conquest and colonization over its present area form a subject too large for the limits of this article. It need only be remarked that within the confines of Britain itself the process is not yet complete. Representatives of earlier languages survive in Wales and the Scottish Highlands, though in neither case can the substitution of English be very remote. In Ireland, where English was introduced by conquest much later, Irish is still spoken in patches all over the country; though English is understood, and probably spoken after a fashion, almost everywhere. At opposite extremities of Britain, the Cornish of Cornwall and the Norse dialects of Orkney and Shetland died out very gradually in the course of the 18th century. The Manx, or Celtic of Man, is even now in the last stage of dissolution; and in the Channel Isles the Normanpatoisof Jersey and Guernsey have largely yielded to English.

The table on p. 599 (a revision of that brought before the Philological Society in Jan. 1876) graphically presents the chronological and dialectal development of English. Various names have been proposed for the different stages; it seems only necessary to add to those in the table the descriptive names of Dr Abbott, who has proposed (How to Parse, p. 298) to call the Old English, or Anglo-Saxon, the “Synthetical or Inflexional Period”; the Old English Transition (Late Anglo-Saxon of Dr Skeat), the “Period of Confusion”; the Early Middle English, “Analytical Period” (1250-1350); the normal Middle English, “National Period” (1350-1500); the Tudor English, “Period of Licence”; and the Modern English, “Period of Settlement.”

Bibliography.—As the study of English has made immense advances within the last generation, it is only in works recently published that the student will find the subject satisfactorily handled. Among the earlier works treating of the whole subject or parts of it may be mentioned—A History of English Rhythms, by Edwin Guest (London, 1838); thePhilological Essaysof Richard Garnett (1835-1848), edited by his son (London, 1859);The English Language, by R.G. Latham (5th ed., London, 1862);Origin and History of the English Language, by G.P. Marsh (revised 1885);Lectures on the English Language, by the same (New York and London, 1863);Historische Grammatik der englischen Sprache, by C.F. Koch (Weimar, 1863, &c.);Englische Grammatik, by Eduard Mätzner (Berlin, 1860-1865), (an English translation by C.J. Grece, LL.B., London, 1874);The Philology of the English Tongue, by John Earle, M.A. (Oxford, 1866, 5th ed. 1892);Comparative Grammar of the Anglo-Saxon Language, by F.A. March (New York, 1870);Historical Outlines of English Accidence, by the Rev. R. Morris, LL.D. (London, 1873), (new ed. by Kellner);Elementary Lessons in Historical English Grammar, by the same (London, 1874);The Sources of Standard English, by T.L. Kington Oliphant, M.A. (London, 1873);Modern English, by F. Hall (London, 1873);A Shakespearian Grammar, by E.A. Abbott, D.D. (London, 1872);How to Parse, by the same (London, 1875);Early English Pronunciation, &c., by A.J. Ellis (London, 1869);The History of English Sounds, by Henry Sweet (London, 1874, 2nd ed. 1888); as well as many separate papers by various authors in theTransactions of the Philological Society, and the publications of the Early English Text Society.Among more recent works are: M. Kaluza,Historische Grammatik der englischen Sprache(Berlin, 1890); Professor W.W. Skeat,Principles of English Etymology(Oxford, 1887-1891); Johan Storm,Englische Philologie(Leipzig, 1892-1896); L. Kellner,Historical Outlines of English Syntax(London, 1892); O.F. Emerson,History of the English Language(London and New York, 1894); Otto Jespersen,Progress in Language, with special reference to English (London, 1894); Lorenz Morsbach,Mittelenglische Grammatik, part i. (Halle, 1896); Paul, “Geschichte der englischen Sprache,” inGrundriss der german. Philologie(Strassburg, 1898); Eduard Sievers,Angelsächsische Grammatik(3rd ed., Halle, 1898); Eng. transl. of same (2nd ed.), by A.S. Cook (Boston, 1887); K.D. Bülbring,Altenglisches Elementarbuch(Heidelberg, 1902); Greenough and Kittredge,Words and their Ways in English Speech(London and New York, 1902); Henry Bradley,The Making of English(London, 1904). Numerous contributions to the subject have also been made inEnglische Studien(ed. Kölbing, later Hoops; Leipzig, 1877 onward);Anglia(ed. Wülker, Flügel, &c.; Halle, 1878 onward); publications of Mod. Lang. Assoc. of America (J.W. Bright; Baltimore, 1884 onward), and A.M. Elliott,Modern Language Notes(Baltimore, 1886 onward).

Among more recent works are: M. Kaluza,Historische Grammatik der englischen Sprache(Berlin, 1890); Professor W.W. Skeat,Principles of English Etymology(Oxford, 1887-1891); Johan Storm,Englische Philologie(Leipzig, 1892-1896); L. Kellner,Historical Outlines of English Syntax(London, 1892); O.F. Emerson,History of the English Language(London and New York, 1894); Otto Jespersen,Progress in Language, with special reference to English (London, 1894); Lorenz Morsbach,Mittelenglische Grammatik, part i. (Halle, 1896); Paul, “Geschichte der englischen Sprache,” inGrundriss der german. Philologie(Strassburg, 1898); Eduard Sievers,Angelsächsische Grammatik(3rd ed., Halle, 1898); Eng. transl. of same (2nd ed.), by A.S. Cook (Boston, 1887); K.D. Bülbring,Altenglisches Elementarbuch(Heidelberg, 1902); Greenough and Kittredge,Words and their Ways in English Speech(London and New York, 1902); Henry Bradley,The Making of English(London, 1904). Numerous contributions to the subject have also been made inEnglische Studien(ed. Kölbing, later Hoops; Leipzig, 1877 onward);Anglia(ed. Wülker, Flügel, &c.; Halle, 1878 onward); publications of Mod. Lang. Assoc. of America (J.W. Bright; Baltimore, 1884 onward), and A.M. Elliott,Modern Language Notes(Baltimore, 1886 onward).

(J. A. H. M.; H. M. R. M.)

1A careful examination of several letters of Bosworth’s Anglo-Saxon dictionary gives in 2000 words (including derivatives and compounds, but excluding orthographic variants) 535 which still exist as modern English words.2The practical convenience of having one name for what was the same thing in various stages of development is not affected by the probability that (E.A. Freeman notwithstanding)EngleandEngliscwere, at an early period,notapplied to the whole of the inhabitants of Teutonic Britain, but only to a part of them. The dialects ofEngleandSeaxanwere alike old forms of what was afterwards English speech, and so, viewed in relation to it,Old English, whatever their contemporary names might be.3The works of Gildas in the original Latin were edited by Mr Stevenson for the English Historical Society. There is an English translation inSix Old English Chroniclesin Bohn’s Antiquarian library.4As to the continued existence of Latin in Britain, see further in Rhys’sLectures on Welsh Philology, pp. 226-227; also Dogatschar,Lautlehre d. gr., lat. u. roman. Lehnworte im Altengl.(Strassburg, 1888).5Æthelstan in 934 calls himself in a charter “Ongol-Saxna cyning and Brytaenwalda eallaes thyses iglandes”; Eadred in 955 is “Angul-seaxna cyning and cásere totius Britanniae,” and the name is of frequent occurrence in documents written in Latin. These facts ought to be remembered in the interest of the scholars of the 17th century, who have been blamed for the use of the term Anglo-Saxon, as if they had invented it. By “Anglo-Saxon” language they meant the language of the people whosometimes at leastcalled themselves “Anglo-Saxons.” Even now the name is practically useful, when we are dealing with the subjectper se, as isOld English, on the other hand, when we are treating it historically or in connexion with English as a whole.6Transactions of the Philological Society(1873-1874), p. 620; new and much enlarged edition, 1888.7See on this Rhys,Lectures on Welsh Philology, v.8During the Old English period bothcandappear to have acquired a palatal value in conjunction with front or palatal vowel-sounds, except in the north wherec, and in some cases, tended to remain guttural in such positions. This value was never distinguished in Old English writing, but may be deduced from certain phonetic changes depending upon it, and from the use ofc,cc, as an alternative fortj(as inorteard,orceard= orchard,fetian,feccean= fetch), as well as from the normal occurrence ofchandyin these positions in later stages of the language,e.g.cild= child,taècean= teach,iellan= yell,dae= day, &c.9For a discriminating view of the effects of the Norman Conquest on the English Language, see Freeman,Norman Conquest, ch. xxv.10There is no reason to suppose that any attempt was made to proscribe or suppress the native tongue, which was indeed used in some official documents addressed to Englishmen by the Conqueror himself. Its social degradation seemed even on the point of coming to an end, when it was confirmed and prolonged for two centuries more by the accession of the Angevin dynasty, under whom everything French received a fresh impetus.11MS. Cotton Vesp. A. 22.12Gospels in Anglo-Saxon, &c., ed. for Cambridge Press, by W.W. Skeat (1871-1887), second text.13Old English Homilies of Twelfth Century, first and second series, ed. R. Morris (E.E.T.S.), (1868-1873).14The articleþebecomesteafter a precedingtordby assimilation.15Earle,Two of the Saxon Chronicles parallel(1865), p. 265.16Skeat,Anglo-Saxon and Northumbrian Gospels(1874).17Edited for the Surtees Society, by Rev. J. Stevenson.18Edited for the Early English Text Society, by Rev. Dr Morris.19The Vision of William concerning Piers the Ploughmanexists in three different recensions, all of which have been edited for the Early English Text Society by Rev. W.W. Skeat.20Edited by Rev. Dr Morris for Early English Text Society, in 1866.21Here, and intatt,tu,taer, forþatt,þu,þaet, aftert,d, there is the same phonetic assimilation as in the last section of the Anglo-Saxon Chronicle above.22Edited for the Early English Text Society by Dr Morris (1865).23Trevisa,Translation of Higden’s Polychronicon.24Skeat,Specimens of English Literature, pp. 49, 54.25A Shakspearian Grammar, by Dr E.A. Abbott. To this book we are largely indebted for its admirable summary of the characters of Tudor English.26Evangelist,astronomy,dialogue, are words that have so lived, of which their form is the result.Photograph,geology, &c., take this form asifthey had the same history.27See extended lists of the foreign words in English in Dr Morris’sHistorical Outlines of English Accidence, p. 33.28See description and map inTrans. of Philol. Soc., 1875-1876, p. 570.29The Dialect of the Southern Counties of Scotland, its Pronunciation, Grammar and Historical Relations, with an Appendix on the present limits of the Gaelic and Lowland Scotch, and the Dialectal Divisions of the Lowland Tongue; and a Linguistical Map of Scotland, by James A.H. Murray (London, 1873).30A Glossary (with some pieces of Verse) of the Old Dialect of the English Colony of Forth and Bargy, collected by Jacob Poole, edited by W. Barnes, B.D. (London, 1867).

2The practical convenience of having one name for what was the same thing in various stages of development is not affected by the probability that (E.A. Freeman notwithstanding)EngleandEngliscwere, at an early period,notapplied to the whole of the inhabitants of Teutonic Britain, but only to a part of them. The dialects ofEngleandSeaxanwere alike old forms of what was afterwards English speech, and so, viewed in relation to it,Old English, whatever their contemporary names might be.

3The works of Gildas in the original Latin were edited by Mr Stevenson for the English Historical Society. There is an English translation inSix Old English Chroniclesin Bohn’s Antiquarian library.

4As to the continued existence of Latin in Britain, see further in Rhys’sLectures on Welsh Philology, pp. 226-227; also Dogatschar,Lautlehre d. gr., lat. u. roman. Lehnworte im Altengl.(Strassburg, 1888).

5Æthelstan in 934 calls himself in a charter “Ongol-Saxna cyning and Brytaenwalda eallaes thyses iglandes”; Eadred in 955 is “Angul-seaxna cyning and cásere totius Britanniae,” and the name is of frequent occurrence in documents written in Latin. These facts ought to be remembered in the interest of the scholars of the 17th century, who have been blamed for the use of the term Anglo-Saxon, as if they had invented it. By “Anglo-Saxon” language they meant the language of the people whosometimes at leastcalled themselves “Anglo-Saxons.” Even now the name is practically useful, when we are dealing with the subjectper se, as isOld English, on the other hand, when we are treating it historically or in connexion with English as a whole.

6Transactions of the Philological Society(1873-1874), p. 620; new and much enlarged edition, 1888.

7See on this Rhys,Lectures on Welsh Philology, v.

8During the Old English period bothcandappear to have acquired a palatal value in conjunction with front or palatal vowel-sounds, except in the north wherec, and in some cases, tended to remain guttural in such positions. This value was never distinguished in Old English writing, but may be deduced from certain phonetic changes depending upon it, and from the use ofc,cc, as an alternative fortj(as inorteard,orceard= orchard,fetian,feccean= fetch), as well as from the normal occurrence ofchandyin these positions in later stages of the language,e.g.cild= child,taècean= teach,iellan= yell,dae= day, &c.

9For a discriminating view of the effects of the Norman Conquest on the English Language, see Freeman,Norman Conquest, ch. xxv.

10There is no reason to suppose that any attempt was made to proscribe or suppress the native tongue, which was indeed used in some official documents addressed to Englishmen by the Conqueror himself. Its social degradation seemed even on the point of coming to an end, when it was confirmed and prolonged for two centuries more by the accession of the Angevin dynasty, under whom everything French received a fresh impetus.

11MS. Cotton Vesp. A. 22.

12Gospels in Anglo-Saxon, &c., ed. for Cambridge Press, by W.W. Skeat (1871-1887), second text.

13Old English Homilies of Twelfth Century, first and second series, ed. R. Morris (E.E.T.S.), (1868-1873).

14The articleþebecomesteafter a precedingtordby assimilation.

15Earle,Two of the Saxon Chronicles parallel(1865), p. 265.

16Skeat,Anglo-Saxon and Northumbrian Gospels(1874).

17Edited for the Surtees Society, by Rev. J. Stevenson.

18Edited for the Early English Text Society, by Rev. Dr Morris.

19The Vision of William concerning Piers the Ploughmanexists in three different recensions, all of which have been edited for the Early English Text Society by Rev. W.W. Skeat.

20Edited by Rev. Dr Morris for Early English Text Society, in 1866.

21Here, and intatt,tu,taer, forþatt,þu,þaet, aftert,d, there is the same phonetic assimilation as in the last section of the Anglo-Saxon Chronicle above.

22Edited for the Early English Text Society by Dr Morris (1865).

23Trevisa,Translation of Higden’s Polychronicon.

24Skeat,Specimens of English Literature, pp. 49, 54.

25A Shakspearian Grammar, by Dr E.A. Abbott. To this book we are largely indebted for its admirable summary of the characters of Tudor English.

26Evangelist,astronomy,dialogue, are words that have so lived, of which their form is the result.Photograph,geology, &c., take this form asifthey had the same history.

27See extended lists of the foreign words in English in Dr Morris’sHistorical Outlines of English Accidence, p. 33.

28See description and map inTrans. of Philol. Soc., 1875-1876, p. 570.

29The Dialect of the Southern Counties of Scotland, its Pronunciation, Grammar and Historical Relations, with an Appendix on the present limits of the Gaelic and Lowland Scotch, and the Dialectal Divisions of the Lowland Tongue; and a Linguistical Map of Scotland, by James A.H. Murray (London, 1873).

30A Glossary (with some pieces of Verse) of the Old Dialect of the English Colony of Forth and Bargy, collected by Jacob Poole, edited by W. Barnes, B.D. (London, 1867).

ENGLISH LAW(History). In English jurisprudence “legal memory” is said to extend as far as, but no further than the coronation of Richard I. (Sept. 3, 1189). This is a technical doctrine concerning prescriptive rights, but is capable of expressing an important truth. For the last seven centuries, little more or less, the English law, which is now overshadowing a large share of the earth, has had not only an extremely continuous, but a matchlessly well-attested history, and, moreover, has been the subject matter of rational exposition. Already in 1194 the daily doings of a tribunal which was controlling and moulding the whole system were being punctually recorded in letters yet legible, and from that time onwards it is rather the enormous bulk than any dearth of available materials that prevents us from tracing the transformation of every old doctrine and the emergence and expansion of every new idea. If we are content to look no further than the text-books—the books written by lawyers for lawyers—we may read our way backwards to Blackstone (d. 1780), Hale (d. 1676), Coke (d. 1634), Fitzherbert (d. 1538), Littleton (d. 1481), Bracton (d. 1268), Glanvill (d. 1190), until we are in the reign of Henry of Anjou, and yet shall perceive that we are always reading of one and the same body of law, though the little body has become great, and the ideas that were few and indefinite have become many and explicit.

Beyond these seven lucid centuries lies a darker period. Nearly six centuries will still divide us from the dooms of Æthelberht (c.600), and nearly seven from theLex Salica(c.500). We may regard the Norman conquest of England as marking the confluence of two streams of law. The one we may call French or Frankish. If we follow it upwards we pass through the capitularies of Carlovingian emperors and Merovingian kings until we see Chlodwig and his triumphant Franks invading Gaul, submitting their Sicambrian necks to the yoke of the imperial religion, and putting their traditional usages into written Latin. The other rivulet we may call Anglo-Saxon. Pursuing it through the code of Canute (d. 1035) and the ordinances of Alfred (c.900) and his successors, we see Ine publishing laws in the newly converted Wessex (c.690), and, almost a century earlier, Æthelberht doing the same in the newly converted Kent (c.600). This he did, says Beda, in accordance with Roman precedents. Perhaps from the Roman missionaries he had heard tidings of what the Roman emperor had lately been doing far off in New Rome. We may at any rate notice with interest that in order of time Justinian’s law-books fall between theLex Salicaand the earliest Kentish dooms; also that the great pope who sent Augustine to England is one of the very few men who between Justinian’s day and the 11th century lived in the Occident and yet can be proved to have known theDigest. In the Occident the time for the Germanic “folk-laws” (Leges Barbarorum) had come, and a Canon law, ambitious of independence, was being constructed, when in the Orient the lord of church and state was “enucleating” all that was to live of the classical jurisprudence of pagan Rome. It was but a brief interval between Gothic and Lombardic domination that enabled him to give law to Italy: Gaul and Britain were beyond his reach.

The Anglo-Saxon laws that have come down to us (and we have no reason to fear the loss of much beyond some dooms of the Mercian Offa) are best studied as members of a large Teutonic family. Those that proceed from the Kent and Wessex of the 7th century are closely related to the continental folk-laws. Their next of kin seem to be theLex Saxonumand the laws of the Lombards. Then, though the 8th and 9th centuries are unproductive, we have from Alfred (c.900) and his successors a series of edicts which strongly resemble the Frankish capitularies—so strongly that we should see a clear case of imitation, were it not that in Frankland the age of legislation had come to its disastrous end long before Alfred was king. This, it may be noted, gives to English legal history a singular continuity from Alfred’s day to our own. The king of the English was expected to publish laws at a time when hardly any one else was attempting any such feat, and the English dooms of Canute the Dane are probably the most comprehensive statutes that were issued in the Europe of the 11th century. No genuine laws of the sainted Edward have descended to us, and during his reign England seems but too likely to follow the bad example of Frankland, and become a loose congeries of lordships. From this fate it was saved by the Norman duke, who, like Canute before him, subdued a land in which kings were still expected to publish laws.

In the study of early Germanic law—a study which now for some considerable time has been scientifically prosecuted in Germany—the Anglo-Saxon dooms have received their due share of attention. A high degree of racial purity may be claimed on their behalf. Celtic elements have been sought for in them, but have never been detected. At certain points, notably in the regulation of the blood-feud and the construction of a tariff of atonements, the law of one rude folk will always be somewhat like the law of another; but the existing remains of old Welsh and old Irish law stand far remoter from the dooms of Æthelberht and Ine than stand the edicts of Rothari and Liutprand, kings of the Lombards. Indeed, it is very dubious whether distinctively Celtic customs play any considerable part in the evolution of that system of rules of Anglian, Scandinavian and Frankish origin which becomes the law of Scotland. Within England itself, though for a while there was fighting enough between the various Germanic folks, the tribal differences were not so deep as to prevent the formation of a common language and a common law. Even the strong Scandinavian strain seems to have rapidly blended with the Anglian. It amplified the language and the law, but did not permanently divide the country. If, for example, we can to-day distinguish betweenlawandright, we are debtors to the Danes; but very soonlawis not distinctive of eastern orrightof western England. In the first half of the 12th century a would-be expounder of the law of England had still to say that the country was divided between the Wessex law, the Mercian law, and the Danes’ law, but he had also to point out that the law of the king’s own court stood apart from and above all partial systems. The local customs were those of shires and hundreds, and shaded off into each other. We may speak of more Danish and less Danish counties; it was a matter of degree; for rivers were narrow and hills were low. England was meant by nature to be the land of one law.

Then as to Roman law. In England and elsewhere Germanic law developed in an atmosphere that was charged with traditions of the old world, and many of these traditions had become implicit in the Christian religion. It might be argued that all that we call progress is due to the influence exercised by Roman civilization; that, were it not for this, Germanic law would never have been set in writing; and that theoretically unchangeable custom would never have been supplemented or superseded by express legislation. All this and much more of the same sort might be said; but the survival in Britain, or the reintroduction into England, of anything that we should dare to call Roman jurisprudence would be a different matter. Eyes, carefully trained, have minutely scrutinized the Anglo-Saxon legal texts without finding the least trace of a Roman rule outside the ecclesiastical sphere. Even within that sphere modern research is showing that the church-property-law of the middle ages, the law of the ecclesiastical “benefice,” is permeated by Germanic ideas. This is true of Gaul and Italy, and yet truer of an England in which Christianity was for a while extinguished. Moreover, the laws that were written in England were, from the first, written in the English tongue; and this gives them a unique value in the eyes of students of Germanic folk-law, for even the very ancient and barbarousLex Salicais a Latin document, though many old Frankish words are enshrined in it. Also we notice—and this is of grave importance—that in England there are no vestiges of any “Romani” who are being suffered to live under their own law by their Teutonic rulers. On the Continent we may see Gundobad, the Burgundian, publishing one law-book for the Burgundians and another for the Romani who own his sway. A book of laws, excerpted chiefly from the Theodosian code, was issued by Alaric the Visigoth for his Roman subjects before the days of Justinian, and this book (the so-calledBreviarium Alarici or Lex Romana Visigothorum) became for a long while the chief representative of Roman law in Gaul. The Frankish king in his expansive realm ruled over many men whose law was to be found not in theLex SalicaorLex Ribuaria, but in what was called theLex Romana. “A system of personal law” prevailed: thehomo Romanushanded on his Roman law to his children, while Frankish or Lombardic, Swabian or Saxon law would run in the blood of thehomo barbarus. Of all this we hear nothing in England. Then on the mainland of Europe Roman and barbarian law could not remain in juxtaposition without affecting each other. On the one hand we see distinctively Roman rules making their way into the law of the victorious tribes, and on the other hand we see a decay and debasement of jurisprudence which ends in the formation of what modern historians have called a Roman “vulgar-law” (Vulgarrecht). For a short age which centres round the year 800 it seemed possible that Frankish kings, who were becoming Roman emperors, would be able to rule by their capitularies nearly the whole of the Christian Occident. The dream vanished before fratricidal wars, heathen invaders, centrifugal feudalism, and a centripetal church which found its law in the newly concocted forgeries of the Pseudo-Isidore (c.850). The “personal laws” began to transmute themselves into local customs, and the Roman vulgar-law began to look like the local custom of those districts where the Romani were the preponderating element in the population. Meanwhile, the Norse pirates subdued a large tract of what was to be northern France—a land where Romani were few. Their restless and boundless vigour these Normans retained; but they showed a wonderful power of appropriating whatever of alien civilization came in their way. In their language, religion and law, they had become French many years before they subdued England. It is a plausible opinion that among them there lived some sound traditions of the Frankish monarchy’s best days, and that Norman dukes, rather than German emperors or kings, of the French, are the truest spiritual heirs of Charles the Great.

In our own day, German historians are wont to speak of English law as a “daughter” of French or Frankish law. This tendency derived its main impulse from H. Brunner’s proof that the germ of trial by jury, which cannot be found in the Anglo-Saxon laws, can be found in the prerogative procedure of the Frankish kings. We must here remember that during a long age English lawyers wrote in French and even thought in French, and that to this day most of the technical terms of the law, more especially of the private law, are of French origin. Also it must be allowed that when English law has taken shape in the 13th century it is very like one of thecoutumesof northern France. Even when linguistic difficulties have been surmounted, the Saxon Mirrorof Eike von Repgow will seem far less familiar to an Englishman than the so-called Establishments of St Louis. This was the outcome of a slow process which fills more than a century (1066-1189), and was in a great measure due to the reforming energy of Henry II., the French prince who, in addition to England, ruled a good half of France. William the Conqueror seems to have intended to govern Englishmen by English law. After the tyranny of Rufus, Henry I. promised a restoration of King Edward’s law: that is, the law of the Confessor’s time (Lagam Eadwardi regis vobis reddo). Various attempts were then made,The Norman age.mostly, so it would seem, by men of French birth, to state in a modern and practicable form thelaga Eadwardiwhich was thus restored. The result of their labours is an intricate group of legal tracts which has been explored of late years by Dr Liebermann. The best of these has long been known as theLeges Henrici Primi, and aspires to be a comprehensive law-book. Its author, though he had some foreign sources at his command, such as theLex Ribuariaand an epitome of the Breviary of Alaric, took the main part of his matter from the code of Canute and the older English dooms. Neither the Conqueror nor either of his sons had issued many ordinances: the invading Normans had little, if any, written law to bring with them, and had invaded a country where kings had been lawgivers. Moreover, there was much in the English system that the Conqueror was keenly interested in retaining—especially an elaborate method of taxing the land and its holders. The greatest product of Norman government, the grandest feat of government that the world had seen for a long time past, the compilation ofDomesday Book, was a conservative effort, an attempt to fix upon every landholder, French or English, the amount of geld that was due from his predecessor in title. Himself the rebellious vassal of the French king, the duke of the Normans, who had become king of the English, knew much of disruptive feudalism, and had no mind to see England that other France which it had threatened to become in the days of his pious but incompetent cousin. The sheriffs, though calledvice-comites, were to be the king’s officers; the shire-moots might be called county courts, but were not to be the courts of counts. Much that was sound and royal in English public law was to be preserved if William could preserve it.

The gulf that divides the so-calledLeges Henrici(c.1115) from the text-book ascribed to Ranulf Glanvill (c.1188) seems at first sight very wide. The one represents a not easily imaginable chaos and clash of old rules andRoyal justice.new; it represents also a stage in the development of feudalism which in other countries is represented chiefly by a significant silence. The other is an orderly, rational book, which through all the subsequent centuries will be readily understood by English lawyers. Making no attempt to tell us what goes on in the local courts, its author, who may be Henry II.’s chief justiciar, Ranulf Glanvill, or may be Glanvill’s nephew, Hubert Walter, fixes our attention on a novel element which is beginning to subdue all else to its powerful operation. He speaks to us of the justice that is done by the king’s own court. Henry II. had opened the doors of his French-speaking court to the mass of his subjects. Judges chosen for their ability were to sit there, term after term; judges were to travel in circuits through the land, and in many cases the procedure by way of “an inquest of the country,” which the Norman kings had used for the ascertainment of their fiscal rights, was to be at the disposal of ordinary litigants. All this had been done in a piecemeal, experimental fashion by ordinances that were known as “assizes.” There had not been, and was not to be, any enunciation of a general principle inviting all who were wronged to bring in their own words their complaints to the king’s audience. The general prevalence of feudal justice, and of the world-old methods of supernatural probation (ordeals, battle, oaths sworn with oath-helpers), was to be theoretically respected; but in exceptional cases, which would soon begin to devour the rule, a royal remedy was to be open to any one who could frame his case within the compass of some carefully-worded and prescript formula. With allusion to a remote stage in the history of Roman law, a stage of which Henry’s advisers can have known little or nothing, we may say that a “formulary system” is established which will preside over English law until modern times. Certain actions, each with a name of its own, are open to litigants. Each has its own formula set forth in its original (or, as we might say, originating) writ; each has its own procedure and its appropriate mode of trial. The litigant chooses his writ, his action, and must stand or fall by his choice. Thus a book about royal justice tends to become, and Glanvill’s book already is, a commentary on original writs.

The precipitation of English law in so coherent a form as that which it has assumed in Glanvill’s book is not to be explained without reference to the revival of Roman jurisprudence in Italy. Out of a school of Lombard lawyers at Pavia had come Lanfranc the Conqueror’s adviser, and the Lombardists had already been studying Justinian’s Institutes. Then at length the Digest came by its rights. About the year 1100 Irnerius was teaching at Bologna, and from all parts of the West men were eagerly flocking to hear the new gospel of civilization. About the year 1149 Vacarius was teaching Roman law in England. The rest of a long life he spent here, and faculties of Roman and Canon law took shape in the nascent university of Oxford. Whatever might be the fate of Roman law in England, there could be no doubt that the Canon law, which was crystallizing in theDecretum Gratiani(c.1139) and in the decretals of Alexander III., would be the law of the English ecclesiastical tribunals. The great quarrel between Henry II. and Thomas of Canterbury brought this system into collision with the temporal law of England, and the king’s ministers must have seen that they had much to learn from the methodic enemy. Some of them were able men who became the justices of Henry’s court, and bishops to boot. The luminousDialogue of the Exchequer(c.1179), which expounds the English fiscal system, came from the treasurer, Richard Fitz Nigel, who became bishop of London; and the treatise on the laws of England came perhaps from Glanvill, perhaps from Hubert Walter, who was to be both primate and chief justiciar. There was healthy emulation of the work that was being done by Italian jurists, but no meek acceptance of foreign results.

A great constructive era had opened, and its outcome was a large and noble book. The author was Henry of Bratton (his name has been corrupted into Bracton), who died in 1268 after having been for many years one of HenryBracton.III.’s justices. The model for its form was the treatise of Azo of Bologna (“master of all the masters of the laws,” an Englishman called him), and thence were taken many of the generalities of jurisprudence: maxims that might be regarded as of universal and natural validity. But the true core of the work was the practice of an English court which had yearly been extending its operations in many directions. For half a century past diligent record had been kept on parchment of all that this court had done, and from its rolls Bracton cited numerous decisions. He cited them as precedents, paying special heed to the judgments of two judges who were already dead, Martin Pateshull and William Raleigh. For this purpose he compiled a large Note Book, which was discovered by Prof. Vinogradoff in the British Museum in 1884. Thus at a very early time English “common law” shows a tendency to become what it afterwards definitely became, namely, “case law.” The term “common law” was being taken over from the canonists by English lawyers, who used it to distinguish the general law of the land from local customs, royal prerogatives, and in short from all that was exceptional or special. Since statutes and ordinances were still rarities, all expressly enacted laws were also excluded from the English lawyers’ notion of “the common law.” The Great Charter (1215) had taken the form of a grant of “liberties and privileges,” comparable to the grants that the king made to individual men and favoured towns. None the less, it was in that age no small body of enacted law, and, owing to its importance and solemnity, it was in after ages regarded as the first article of a statute book. There it was followed by the “provisions” issued at Merton in 1236 and by those issued atMarlborough after the end of the Barons’ War. But during Henry III.’s long reign the swift development of English law was due chiefly to new “original writs” and new “forms of action” devised by the chancery and sanctioned by the court. Bracton knew many writs that were unknown to Glanvill, and men were already perceiving that limits must be set to the inventive power of the chancery unless the king was to be an uncontrollable law-maker. Thus the common law was losing the power of rapid growth when Bracton summed the attained results in a book, the success of which is attested by a crowd of manuscript copies. Bracton had introduced just enough of Roman law and Bolognese method to save the law of England from the fate that awaited German law in Germany. His book was printed in 1569, and Coke owed much to Bracton.

The comparison that is suggested when Edward I. is called the English Justinian cannot be pressed very far. Nevertheless, as is well known, it is in his reign (1272-1307) that English institutions finally take the forms that they are to keep through coming centuries. We already see the parliament of the three estates, the convocations of the clergy, the king’s council, the chancery or secretarial department, the exchequer or financial department, the king’s bench, the common bench, the commissioners of assize and gaol delivery, the small group of professionally learned judges, and a small group of professionally learned lawyers, whose skill is at the service of those who will employ them. Moreover, the statutes that were passed in the first eighteen years of the reign, though their bulk seems slight to us nowadays, bore so fundamental a character that in subsequent ages they appeared as the substructure of huge masses of superincumbent law. Coke commented upon them sentence by sentence, and even now the merest smatterer in English law must profess some knowledge ofQuia emptoresandDe donis conditionalibus. If some American states have, while others have not, accepted these statutes, that is a difference which is not unimportant to citizens of the United States in the 20th century. Then from the early years of Edward’s reign come the first “law reports” that have descended to us: the oldest of them have not yet been printed; the oldest that has been printed belongs to 1292. These are the precursors of the long series of Year Books (Edw. II.-Hen. VIII.) which runs through the residue of the middle ages. Lawyers, we perceive, are already making and preserving notes of the discussions that take place in court; French notes that will be more useful to them than the formal Latin records inscribed upon the plea rolls. From these reports we learn that there are already, as we should say, a few “leading counsel,” some of whom will be retained in almost every important cause. Papal decretals had been endeavouring to withdraw the clergy from secular employment. The clerical element had been strong among the judges of Henry III.’s reign: Bracton was an archdeacon, Pateshull a dean, Raleigh died a bishop. Their places begin to be filled by men who are not in orders, but who have pleaded the king’s causes for him—his serjeants or servants at law—and beside them there are young men who are “apprentices at law,” and are learning to plead. Also we begin to see men who, as “attorneys at law,” are making it their business to appear on behalf of litigants. The history of the legal profession and its monopoly of legal aid is intricate, and at some points still obscure; but the influence of the canonical system is evident: the English attorney corresponds to the canonical proctor, and the English barrister to the canonical advocate. The main outlines were being drawn in Edward I.’s day; the legal profession became organic, and professional opinion became one of the main forces that moulded the law.

The study of English law fell apart from all other studies, and the impulse that had flowed from Italian jurisprudence was ebbing. We have two comprehensive text-books from Edward’s reign: the one known to us asFleta, the other asBritton; both of them, however, quarry their materials from Bracton’s treatise. Also we have two little books on procedure which are attributed to Chief-Justice Hengham, and a few other small tracts of an intensely practical kind. Under the cover of fables about King Alfred, the author of theMirror of Justicesmade a bitter attack upon King Edward’s judges, some of whom had fallen into deep disgrace. English legal history has hardly yet been purged of the leaven of falsehood that was introduced by this fantastic and unscrupulous pamphleteer. His enigmatical book ends that literate age which begins with Glanvill’s treatise and the treasurer’s dialogue. Between Edward I.’s day and Edward IV.’s hardly anything that deserves the name of book was written by an English lawyer.

During that time the body of statute law was growing, but not very rapidly. Acts of parliament intervened at a sufficient number of important points to generate and maintain a persuasion that no limit, or no ascertainable limit,14th and 15th centuries.can be set to the legislative power of king and parliament. Very few are the signs that the judges ever permitted the validity of a statute to be drawn into debate. Thus the way was being prepared for the definite assertion of parliamentary “omnicompetence” which we obtain from the Elizabethan statesman Sir Thomas Smith, and for those theories of sovereignty which we couple with the names of Hobbes and Austin. Nevertheless, English law was being developed rather by debates in court than by open legislation. The most distinctively English of English institutions in the later middle ages are the Year-Books and the Inns of Court. Year by year, term by term, lawyers were reporting cases in order that they and their fellows might know how cases had been decided. The allegation of specific precedents was indeed much rarer than it afterwards became, and no calculus of authority so definite as that which now obtains had been established in Coke’s day, far less in Littleton’s. Still it was by a perusal of reported cases that a man would learn the law of England. A skeleton for the law was provided, not by the Roman rubrics (such as public and private, real and personal, possessory and proprietary, contract and delict), but by the cycle of original writs that were inscribed in the chancery’sRegistrum Brevium. A new form of action could not be introduced without the authority of Parliament, and the growth of the law took the shape of an explication of the true intent of ancient formulas. Times of inventive liberality alternated with times of cautious and captious conservatism. Coke could look back to Edward III.’s day as to a golden age of good pleading. The otherwise miserable time which saw the Wars of the Roses produced some famous lawyers, and some bold doctrines which broke new ground. It produced also Sir Thomas Littleton’s (d. 1481) treatise on Tenures, which (though it be not, as Coke thought it, the most perfect work that ever was written in any human science) is an excellent statement of law in exquisitely simple language.

Meanwhile English law was being scholastically taught. This, if we look at the fate of native and national law in Germany, or France, or Scotland, appears as a fact of primary importance. From beginnings, so small and formlessLegal education.that they still elude research, the Inns of Court had grown. The lawyers, like other men, had grouped themselves in gilds, or gild-like “fellowships.” The fellowship acquired property; it was not technically incorporate, but made use of the thoroughly English machinery of a trust. Behind a hedge of trustees it lived an autonomous life, unhampered by charters or statutes. There was a hall in which its members dined in common; there was the nucleus of a library; there were also dormitories or chambers in which during term-time lawyers lived celibately, leaving their wives in the country. Something of the college thus enters the constitution of these fellowships; and then something academical. The craft gild regulated apprenticeship; it would protect the public against incompetent artificers, and its own members against unfair competition. So the fellowship of lawyers. In course of time a lengthy and laborious course of education of the medieval sort had been devised. He who had pursued it to its end received a call to the bar of his inn. This call was in effect a degree. Like the doctor or master of a university, the full-blown barrister was competent to teach others, and was expected to read lectures to students. But further, in a manner that is still very dark, these societieshad succeeded in making their degrees the only steps that led to practice in the king’s courts. At the end of the middle ages (c.1470) Sir John Fortescue rehearsed the praises of the laws of England in a book which is one of the earliest efforts of comparative politics. Contrasting England with France, he rightly connects limited monarchy, public and oral debate in the law courts, trial by jury, and the teaching of national law in schools that are thronged by wealthy and well-born youths. But nearly a century earlier, the assertion that English law affords as subtle and civilizing a discipline as any that is to be had from Roman law was made by a man no less famous than John Wycliffe. The heresiarch naturally loathed the Canon law; but he also spoke with reprobation of the “paynims’ law,” the “heathen men’s law,” the study of which in the two universities was being fostered by some of the bishops. That study, after inspiring Bracton, had come to little in England, though the canonist was compelled to learn something of Justinian, and there was a small demand for learned civilians in the court of admiralty, and in what we might call the king’s diplomatic service. No medieval Englishman did anything considerable for Roman law. Even the canonists were content to read the books of French and Italian masters, though John Acton (c.1340) and William Lyndwood (1430) wrote meritorious glosses. The Angevin kings, by appropriating to the temporal forum the whole province of ecclesiastical patronage, had robbed the decretists of an inexhaustible source of learning and of lucre. The work that was done by the legal faculties at Oxford and Cambridge is slight when compared with the inestimable services rendered to the cause of national continuity by the schools of English law which grew within the Inns of Court.

A danger threatened: the danger that a prematurely osseous system of common law would be overwhelmed by summary justice and royal equity. Even when courts for all ordinary causes had been established, a reserve ofChancery.residuary justice remained with the king. Whatever lawyers and even parliaments might say, it was seen to be desirable that the king in council should with little regard for form punish offenders who could break through the meshes of a tardy procedure and should redress wrongs which corrupt and timid juries would leave unrighted. Papal edicts against heretics had made familiar to all men the notion that a judge should at times proceedsummarie et de plano et sine strepitu et figura justitiae. And so extraordinary justice of a penal kind was done by the king’s council upon misdemeanants, and extraordinary justice of a civil kind was ministered by the king’s chancellor (who was the specially learned member of the council) to those who “for the love of God and in the way of charity,” craved his powerful assistance. It is now well established that the chancellors started upon this course, not with any desire to introduce rules of “equity” which should supplement, or perhaps supplant, the rules of law, but for the purpose of driving the law through those accidental impediments which sometimes unfortunately beset its due course. The wrongs that the chancellor redressed were often wrongs of the simplest and most brutal kind: assaults, batteries and forcible dispossessions. However, he was warned off this field of activity by parliament; the danger to law, to lawyers, to trial by jury, was evident. But just when this was happening, a new field was being opened for him by the growing practice of conveying land to trustees. The English trust of land had ancient Germanic roots, and of late we have been learning how in far-off centuries our Lombard cousins were in effect giving themselves a power of testation by putting their lands in trust. In England, when the forms of action were crystallizing, this practice had not been common enough to obtain the protection of a writ; but many causes conspired to make it common in the 14th century; and so, with the general approval of lawyers and laity, the chancellors began to enforce by summary process against the trustee the duty that lay upon his conscience. In the next century it was clear that England had come by a new civil tribunal. Negatively, its competence was defined by the rule that when the common law offered a remedy, the chancellor was not to intervene. Positively, his power was conceived as that of doing what “good conscience” required, more especially in cases of “fraud, accident or breach of confidence.” His procedure was the summary, the heresy-suppressing (not the ordinary and solemn) procedure of an ecclesiastical court; but there are few signs that he borrowed any substantive rules from legist or decretist, and many proofs that within the new field of trust he pursued the ideas of the common law. It was long, however, before lawyers made a habit of reporting his decisions. He was not supposed to be tightly bound by precedent. Adaptability was of the essence of the justice that he did.

A time of strain and trial came with the Tudor kings. It was questionable whether the strong “governance” for which the weary nation yearned could work within the limits of a parliamentary system, or would be compatibleThe Tudor Age.with the preservation of the common law. We see new courts appropriating large fields of justice and proceedingsummarie et de plano; the star chamber, the chancery, the courts of requests, of wards, of augmentations, the councils of the North and Wales; a little later we see the high commission. We see also that judicial torture which Fortescue had called the road to hell. The stream of law reports became intermittent under Henry VIII.; few judges of his or his son’s reign left names that are to be remembered. In an age of humanism, alphabetically arranged “abridgments” of medieval cases were the best work of English lawyers: one comes to us from Anthony Fitzherbert (d. 1538), and another from Robert Broke (d. 1558). This was the time when Roman law swept like a flood over Germany. The modern historian of Germany will speak of “the Reception” (that is, the reception of Roman law), as no less important than the Renaissance and Reformation with which it is intimately connected. Very probably he will bestow hard words on a movement which disintegrated the nation and consolidated the tyranny of the princelings. Now a project that Roman law should be “received” in England occurred to Reginald Pole (d. 1558), a humanist, and at one time a reformer, who with good fortune might have been either king of England or pope of Rome. English law, said the future cardinal and archbishop, was barbarous; Roman law was the very voice of nature pleading for “civility” and good princely governance. Pole’s words were brought to the ears of his majestic cousin, and, had the course of events been somewhat other than it was, King Henry might well have decreed a reception. The rôle of English Justinian would have perfectly suited him, and there are distinct traces of the civilian’s Byzantinism in the doings of the Church of England’s supreme head. The academic study of the Canon law was prohibited; regius professorships of the civil law were founded; civilians were to sit as judges in the ecclesiastical courts. A little later, the Protector Somerset was deeply interested in the establishment of a great school for civilians at Cambridge. Scottish law was the own sister of English law, and yet in Scotland we may see a reception of Roman jurisprudence which might have been more whole-hearted than it was, but for the drift of two British and Protestant kingdoms towards union. As it fell out, however, Henry could get what he wanted in church and state without any decisive supersession of English by foreign law. The omnicompetence of an act of parliament stands out the more clearly if it settles the succession to the throne, annuls royal marriages, forgives royal debts, defines religious creeds, attaints guilty or innocent nobles, or prospectively lends the force of statute to the king’s proclamations. The courts of common law were suffered to work in obscurity, for jurors feared fines, and matter of state was reserved for council or star chamber. The Inns of Court were spared; their moots and readings did no perceptible harm, if little perceptible good.

Yet it is no reception of alien jurisprudence that must be chronicled, but a marvellous resuscitation of English medieval law. We may see it already in the Commentaries of Edward Plowden (d. 1585) who reported cases at length and lovingly. Bracton’s great book was put in print, and was a key to much that had been forgotten or misunderstood. Under Parker’s patronage, even the Anglo-Saxon dooms were brought to light; they seemed to tell of a Church of England that had not yet beenenslaved by Rome. The new national pride that animated Elizabethan England issued in boasts touching the antiquity, humanity, enlightenment of English law. Resuming the strain of Fortescue, Sir Thomas Smith, himself a civilian, wrote concerning the Commonwealth of England a book that claimed the attention of foreigners for her law and her polity. There was dignified rebuke for the French jurist who had dared to speak lightly of Littleton. And then the common law took flesh inCoke.the person of Edward Coke (1552-1634). With an enthusiastic love of English tradition, for the sake of which many offences may be forgiven him, he ranged over nearly the whole field of law, commenting, reporting, arguing, deciding,—disorderly, pedantic, masterful, an incarnate national dogmatism tenacious of continuous life. Imbued with this new spirit, the lawyers fought the battle of the constitution against James and Charles, and historical research appeared as the guardian of national liberties. That the Stuarts united against themselves three such men as Edward Coke, John Selden and William Prynne, is the measure of their folly and their failure. Words that, rightly or wrongly, were ascribed to Bracton rang in Charles’s ears when he was sent to the scaffold. For the modern student of medieval law many of the reported cases of the Stuart time are storehouses of valuable material, since the lawyers of the 17th century were mighty hunters after records. Prynne (d. 1669), the fanatical Puritan, published ancient documents with fervid zeal, and made possible a history of parliament. Selden (d. 1654) was in all Europe among the very first to write legal history as it should be written. His book about tithes is to this day a model and a masterpiece. When this accomplished scholar had declared that he had laboured to make himself worthy to be called a common lawyer, it could no longer be said that the common lawyers wereindoctissimum genus doctissimorum hominum. Even pliant judges, whose tenure of office depended on the king’s will, were compelled to cite and discuss old precedents before they could give judgment for their master; and even at their worst moments they would not openly break with medieval tradition, or declare in favour of that “modern police-state” which has too often become the ideal of foreign publicists trained in Byzantine law.

The current of legal doctrine was by this time so strong and voluminous that such events as the Civil War, the Restoration and the Revolution hardly deflected the course of the stream. In retrospect, Charles II. reigns so soonHale.as life has left his father’s body, and James II. ends a lawless career by a considerate and convenient abdication. The statute book of the restored king was enriched by leaves excerpted from the acts of a lord protector; and Matthew Hale (d. 1676), who was, perhaps, the last of the great record-searching judges, sketched a map of English law which Blackstone was to colour. Then a time of self-complacency came for the law, which knew itself to be the perfection of wisdom, and any proposal for drastic legislation would have worn the garb discredited by the tyranny of the Puritan Cæsar. The need for the yearly renewal of the Mutiny Act secured an annual session of parliament. The mass of the statute law made in the 18th century is enormous; but, even when we have excluded from view such acts as are technically called “private,” the residuary matter bears a wonderfully empirical, partial and minutely particularizing character. In this “age of reason,” as we are wont to think it, the British parliament seems rarely to rise to the dignity of a general proposition, and in our own day the legal practitioner is likely to know less about the statutes of the 18th century than he knows about the statutes of Edward I., Henry VIII. and Elizabeth. Parliament, it should be remembered, was endeavouring directly to govern the nation. There was little that resembled the permanent civil service of to-day. The choice lay between direct parliamentary government and royal “prerogative”; and lengthy statutes did much of that work of detail which would now be done by virtue of the powers that are delegated to ministers and governmental boards. Moreover, extreme and verbose particularity was required in statutes, for judges were loath to admit that the common law was capable of amendment. A vague doctrine, inherited from Coke, taught that statutes might be so unreasonable as to be null, and any political theory that seemed to derive from Hobbes would have been regarded with not unjust suspicion. But the doctrine in question never took tangible shape, and enough could be done to protect the common law by a niggardly exposition of every legislating word. It is to be remembered that some main features of English public law were attracting the admiration of enlightened Europe. When Voltaire and Montesquieu applauded, the English lawyer had cause for complacency.

The common law was by no means stagnant. Many rules which come to the front in the 18th century are hardly to be traced farther. Especially is this the case in the province of mercantile law, where the earl of Mansfield’s (d. 1793) long presidency over the king’s bench marked an epoch. It is too often forgotten that, until Elizabeth’s reign, England was a thoroughly rustic kingdom, and that trade with England was mainly in the hands of foreigners. Also in medieval fairs, the assembled merchants declared their own “law merchant,” which was considered to have a supernational validity. In the reports of the common law courts it is late in the day before we read of some mercantile usages which can be traced far back in the statutes of Italian cities. Even on the basis of the excessively elaborated land law—a basis which Coke’s Commentary on Littleton seemed to have settled for ever—a lofty and ingenious superstructure could be reared. One after another delicate devices were invented for the accommodation of new wants within the law; but only by the assurance that the old law could not be frankly abolished can we be induced to admire the subtlety that was thus displayed. As to procedure, it had become a maze of evasive fictions, to which only a few learned men held the historical clue. By fiction the courts had stolen business from each other, and by fiction a few comparatively speedy forms of action were set to tasks for which they were not originally framed. Two fictitious persons, John Doe and Richard Roe, reigned supreme. On the other hand, that healthy and vigorous institution, the Commission of the Peace, with a long history behind it, was giving an important share in the administration of justice to numerous country gentlemen who were thus compelled to learn some law. A like beneficial work was being done among jurors, who, having ceased to be regarded as witnesses, had become “judges of fact.” No one doubted that trial by jury was the “palladium” of English liberties, and popularity awaited those who would exalt the office of the jurors and narrowly limit the powers of the judge.

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